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diff --git a/5268-h/5268-h.htm b/5268-h/5268-h.htm new file mode 100644 index 0000000..f0f6127 --- /dev/null +++ b/5268-h/5268-h.htm @@ -0,0 +1,8115 @@ +<?xml version="1.0" encoding="us-ascii"?> + +<!DOCTYPE html + PUBLIC "-//W3C//DTD XHTML 1.0 Strict//EN" + "http://www.w3.org/TR/xhtml1/DTD/xhtml1-strict.dtd" > + +<html xmlns="http://www.w3.org/1999/xhtml" lang="en"> + <head> + <title> + Courts and Criminals, by Arthur Train + </title> + <style type="text/css" xml:space="preserve"> + + body { margin:5%; background:#faebd0; text-align:justify} + P { text-indent: 1em; margin-top: .25em; margin-bottom: .25em; } + H1,H2,H3,H4,H5,H6 { text-align: center; margin-left: 15%; margin-right: 15%; } + hr { width: 50%; text-align: center;} + .foot { margin-left: 20%; margin-right: 20%; text-align: justify; text-indent: -3em; font-size: 90%; } + blockquote {font-size: 97%; font-style: italic; margin-left: 10%; margin-right: 10%;} + .mynote {background-color: #DDE; color: #000; padding: .5em; margin-left: 10%; margin-right: 10%; font-family: sans-serif; font-size: 95%;} + .toc { margin-left: 10%; margin-bottom: .75em;} + .toc2 { margin-left: 20%;} + div.fig { display:block; margin:0 auto; text-align:center; } + div.middle { margin-left: 20%; margin-right: 20%; text-align: justify; } + .figleft {float: left; margin-left: 0%; margin-right: 1%;} + .figright {float: right; margin-right: 0%; margin-left: 1%;} + .pagenum {display:inline; font-size: 70%; font-style:normal; + margin: 0; padding: 0; position: absolute; right: 1%; + text-align: right;} + pre { font-style: italic; font-size: 90%; margin-left: 10%;} + +</style> + </head> + <body> +<pre xml:space="preserve"> + +The Project Gutenberg EBook of Courts and Criminals, by Arthur Train + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: Courts and Criminals + +Author: Arthur Train + +Release Date: March 26, 2009 [EBook #5268] +Last Updated: February 7, 2013 + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK COURTS AND CRIMINALS *** + + + + +Produced by An Anonymous Volunteer, and David Widger + + + + + + +</pre> + <p> + <br /><br /> + </p> + <h1> + COURTS AND CRIMINALS + </h1> + <p> + <br /><br /> + </p> + <h2> + By Arthur Train + </h2> + <p> + <br /><br /> + </p> + <blockquote> + <p> + These essays, which were written between the years 1905-1910 are + reprinted without revision, although in a few minor instances the laws + may have been changed. + </p> + </blockquote> + <p> + <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> + </p> + <h2> + Contents + </h2> + <table summary="" style="margin-right: auto; margin-left: auto"> + <tr> + <td> + <a href="#link2HCH0001"> CHAPTER I. </a> + </td> + <td> + The Pleasant Fiction of the Presumption of Innocence + </td> + </tr> + <tr> + <td> + <a href="#link2HCH0002"> CHAPTER II. </a> + </td> + <td> + Preparing a Criminal Case for Trial + </td> + </tr> + <tr> + <td> + <a href="#link2HCH0003"> CHAPTER III. </a> + </td> + <td> + Sensationalism and Jury Trials + </td> + </tr> + <tr> + <td> + <a href="#link2HCH0004"> CHAPTER IV. </a> + </td> + <td> + Why Do Men Kill? + </td> + </tr> + <tr> + <td> + <a href="#link2HCH0005"> CHAPTER V. </a> + </td> + <td> + Detectives and Others + </td> + </tr> + <tr> + <td> + <a href="#link2HCH0006"> CHAPTER VI. </a> + </td> + <td> + Detectives Who Detect + </td> + </tr> + <tr> + <td> + <a href="#link2HCH0007"> CHAPTER VII. </a> + </td> + <td> + Women in the Courts + </td> + </tr> + <tr> + <td> + <a href="#link2HCH0008"> CHAPTER VIII. </a> + </td> + <td> + Tricks of the Trade + </td> + </tr> + <tr> + <td> + <a href="#link2HCH0009"> CHAPTER IX. </a> + </td> + <td> + What Fosters Crime + </td> + </tr> + <tr> + <td> + <a href="#link2HCH0010"> CHAPTER X. </a> + </td> + <td> + Insanity and the Law + </td> + </tr> + <tr> + <td> + <a href="#link2HCH0011"> CHAPTER XI. </a> + </td> + <td> + The Mala Vita in America + </td> + </tr> + <tr> + <td> + </td> + </tr> + </table> + <p> + <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> <a name="link2HCH0001" id="link2HCH0001"> + <!-- H2 anchor --> </a> + </p> + <h2> + CHAPTER I. The Pleasant Fiction of the Presumption of Innocence + </h2> + <p> + There was a great to-do some years ago in the city of New York over an + ill-omened young person, Duffy by name, who, falling into the bad graces + of the police, was most incontinently dragged to headquarters and "mugged" + without so much as "By your leave, sir," on the part of the authorities. + Having been photographed and measured (in most humiliating fashion) he was + turned loose with a gratuitous warning to behave himself in the future and + see to it that he did nothing which might gain him even more invidious + treatment. + </p> + <p> + Now, although many thousands of equally harmless persons had been + similarly treated, this particular outrage was made the occasion of a + vehement protest to the mayor of the city by a certain member of the + judiciary, who pointed out that such things in a civilized community were + shocking beyond measure, and called upon the mayor to remove the + commissioner of police and all his staff of deputy commissioners for + openly violating the law which they were sworn to uphold. But, the + commissioner of police, who had sometimes enforced the penal statutes in a + way to make him unpopular with machine politicians, saw nothing wrong in + what he had done, and, what was more, said so most outspokenly. The judge + said, "You did," and the commissioner said, "I didn't." Specifically, the + judge was complaining of what had been done to Duffy, but more generally + he was charging the police with despotism and oppression and with + systematically disregarding the sacred liberties of the citizens which it + was their duty to protect. + </p> + <p> + Accordingly the mayor decided to look into the matter for himself, and + after a lengthy investigation came to the alleged conclusion that the + "mugging" of Duffy was a most reprehensible thing and that all those who + were guilty of having any part therein should be instantly removed from + office. He, therefore, issued a pronunciamento to the commissioner + demanding the official heads of several of his subordinates, which order + the commissioner politely declined to obey. The mayor thereupon removed + him and appointed a successor, ostensibly for the purpose of having in the + office a man who should conduct the police business of the city with more + regard for the liberties of the inhabitants thereof. The judge who had + started the rumpus expressed himself as very much pleased and declared + that now at last a new era had dawned wherein the government was to be + administered with a due regard for law. + </p> + <p> + Now, curiously enough, although the judge had demanded the removal of the + commissioner on the ground that he had violated the law and been guilty of + tyrannous and despotic conduct, the mayor had ousted him not for pursuing + an illegal course in arresting and "mugging" a presumptively innocent man + (for illegal it most undoubtedly was), but for inefficiency and + maladministration in his department. + </p> + <p> + Said the mayor in his written opinion: + </p> + <p> + "After thinking over this matter with the greatest care, I am led to the + conclusion that as mayor of the city of New York I should not order the + police to stop taking photographs of people arrested and accused of crime + or who have been indicted by grand juries. That grave injustice may occur + the Duffy case has demonstrated, but I feel that it is not the taking of + the photograph that has given cause to the injustice, but the inefficiency + and maladministration of the police department, etc." + </p> + <p> + In other words, the mayor set the seal of his official approval upon the + very practice which caused the injustice to Duffy. "Mugging" was all + right, so long as you "mugged" the right persons. + </p> + <p> + The situation thus outlined was one of more than passing interest. A + sensitive point in our governmental nervous system had been touched and a + condition uncovered that sooner or later must be diagnosed and cured. + </p> + <p> + For the police have no right to arrest and photograph a citizen + unconvicted of crime, since it is contrary to law. And it is ridiculous to + assert that the very guardians of the law may violate it so long as they + do so judiciously and do not molest the Duffys. The trouble goes deeper + than that. The truth is that we are up against that most delicate of + situations, the concrete adjustment of a theoretical individual right to a + practical necessity. The same difficulty has always existed and will + always continue to exist whenever emergencies requiring prompt and + decisive action arise or conditions obtain that must be handled + effectively without too much discussion. It is easy while sitting on the + piazza with your cigar to recognize the rights of your fellow-men, you may + assert most vigorously the right of the citizen to immunity from arrest + without legal cause, but if you saw a seedy character sneaking down a side + street at three o'clock in the morning, his pockets bulging with jewelry + and silver! Would you have the policeman on post insist on the fact that a + burglary had been committed being established beyond peradventure before + arresting the suspect, who in the meantime would undoubtedly escape? Of + course, the worthy officer sometimes does this, but his conduct in that + case becomes the subject of an investigation on the part of his superiors. + In fact, the rules of the New York police department require him to arrest + all persons carrying bags in the small hours who cannot give a + satisfactory account of themselves. Yet there is no such thing under the + laws of the State as a right "to arrest on suspicion." No citizen may be + arrested under the statutes unless a crime has actually been committed. + Thus, the police regulations deliberately compel every officer either to + violate the law or to be made the subject of charges for dereliction of + duty. A confusing state of things, truly, to a man who wants to do his + duty by himself and by his fellow-citizens! + </p> + <p> + The present author once wrote a book dealing with the practical + administration of criminal justice, in which the unlawfulness of arrest on + mere "suspicion" was discussed at length and given a prominent place. But + when the time came for publication that portion of it was omitted at the + earnest solicitation of certain of the authorities on the ground that as + such arrests were absolutely necessary for the enforcement of the criminal + law a public exposition of their illegality would do infinite harm. Now, + as it seems, the time has come when the facts, for one reason or another, + should be faced. The difficulty does not end, however, with "arrest on + suspicion," "the third degree," "mugging," or their allied abuses. It + really goes to the root of our whole theory of the administration of the + criminal law. Is it possible that on final analysis we may find that our + enthusiastic insistence upon certain of the supposedly fundamental + liberties of the individual has led us into a condition of legal hypocrisy + vastly less desirable than the frank attitude of our continental neighbors + toward such subjects? + </p> + <p> + The Massachusetts Constitution of 1785 concludes with the now famous + words: "To the end that this may be a government of laws and not of men." + That is the essence of the spirit of American government. Our forefathers + had arisen and thrown off the yoke of England and her intolerable system + of penal government, in which an accused had no right to testify in his + own behalf and under which he could be hung for stealing a sheep. + "Liberty!" "Liberty or death!" That was the note ringing in the minds and + mouths of the signers of the Declaration and framers of the Constitution. + That is the popular note to-day of the Fourth of July orator and of the + Memorial Day address. This liberty was to be guaranteed by laws in such a + way that it was never to be curtailed or violated. No mere man was to be + given an opportunity to tamper with it. The individual was to be protected + at all costs. No king, or sheriff, or judge, or officer was to lay his + finger on a free man save at his peril. If he did, the free man might + immediately have his "law"—"have the law on him," as the good old + expression was—for no king or sheriff was above the law. In fact, we + were so energetic in providing safeguards for the individual, even when a + wrong-doer, that we paid very little attention to the effectiveness of + kings or sheriffs or what we had substituted for them. And so it is + to-day. What candidate for office, what silver-tongued orator or senator, + what demagogue or preacher could hold his audience or capture a vote if, + when it came to a question of liberty, he should lift up his voice in + behalf of the rights of the majority as against the individual? + </p> + <p> + Accordingly in devising our laws We have provided in every possible way + for the freedom of the citizen from all interference on the part of the + authorities. No one may be stopped, interrogated, examined, or arrested + unless a crime has been committed. Every one is presumed to be innocent + until shown to be guilty by the verdict of a jury. No one's premises may + be entered or searched without a warrant which the law renders it + difficult to obtain. Every accused has the right to testify in his own + behalf, like any other witness. The fact that he has been held for a crime + by a magistrate and indicted by a grand jury places him at not the + slightest disadvantage so far as defending himself against the charge is + concerned, for he must be proven guilty beyond any reasonable doubt. These + illustrations of the jealousy of the law for the rights of citizens might + be multiplied to no inconsiderable extent. Further, our law allows a + defendant convicted of crime to appeal to the highest courts, whereas if + he be acquitted the people or State of New York have no right of appeal at + all. + </p> + <p> + Without dwelling further on the matter it is enough to say that in general + the State constitutions, their general laws, or penal statutes provide + that a person who is accused or suspected of crime must be presumed + innocent and treated accordingly until his guilt has been affirmatively + established in a jury trial; that meantime he must not be confined or + detained unless a crime has in fact been committed and there is at least + reasonable cause to believe that he has committed it; and, further, that + if arrested he must be given an immediate opportunity to secure bail, to + have the advice of counsel, and must in no way be compelled to give any + evidence against himself. So much for the law. It is as plain as a + pikestaff. It is printed in the books in words of one syllable. So far as + the law is concerned we have done our best to perpetuate the theories of + those who, fearing that they might be arrested without a hearing, + transported for trial, and convicted in a king's court before a king's + judge for a crime they knew nothing of, insisted on "liberty or death." + They had had enough of kings and their ways. Hereafter they were to have + "a government of laws and not of men." + </p> + <p> + But the unfortunate fact remains that all laws, however perfect, must in + the end be administered by imperfect men. There is, alas! no such thing as + a government of laws and not of men. You may have a government more of + laws and less of men, or vice versa, but you cannot have an + auto-administration of the Golden Rule. Sooner or later you come to a man—in + the White House, or on a wool sack, or at a desk in an office, or in a + blue coat and brass buttons—and then, to a very considerable extent, + the question of how far ours is to be a government of laws or of men + depends upon him. Generally, so far as he is concerned, it is going to be + of man, for every official finds that the letter of the law works an + injustice many times out of a hundred. If he is worth his salary he will + try to temper justice with mercy. If he is human he will endeavor to + accomplish justice as he sees it so long as the law can be stretched to + accommodate the case. Thus, inevitably there is a conflict between the law + and its application. It is the human element in the administration of the + law that enables lawyers to get a living. It is usually not difficult to + tell what the law is; the puzzle is how it is going to be applied in any + individual case. How it is going to be applied depends very largely upon + the practical side of the matter and the exigencies of existing + conditions. + </p> + <p> + It is pretty hard to apply inflexibly laws over a hundred years old. It is + equally hard to police a city of a million or so polyglot inhabitants with + a due regard to their theoretic constitutional rights. But suppose in + addition that these theoretic rights are entirely theoretic and fly in the + face of the laws of nature, experience, and common sense? What then? What + is a police commissioner to do who has either got to make an illegal + arrest or let a crook get away, who must violate the rights of men + illegally detained by outrageously "mugging" them or egregiously fail to + have a record of the professional criminals in his bailiwick? He does just + what all of us do under similar conditions—he "takes a chance." But + in the case of the police the thing is so necessary that there ceases + practically to be any "chance" about it. They have got to prevent crime + and arrest criminals. If they fail they are out of a job, and others more + capable or less scrupulous take their places. The fundamental law + qualifying all systems is that of necessity. You can't let professional + crooks carry off a voter's silverware simply because the voter, being + asleep, is unable instantly to demonstrate beyond a reasonable doubt that + his silver has been stolen. You can't permit burglars to drag sacks of + loot through the streets of the city at 4 A.M. simply because they are + presumed to be innocent until proven guilty. And if "arrest on suspicion" + were not permitted, demanded by the public, and required by the police + ordinances, away would go the crooks and off would go the silverware, the + town would be full of "leather snatchers" and "strong-arm men," + respectable citizens would be afraid to go out o' nights, and liberty + would degenerate into license. That is the point. We Americans, or at + least some of the newer ones of us, have an idea that "liberty" means the + right to steal apples from our neighbor's orchard without interference. + Now, somewhere or other, there has got to be a switch and a strong arm to + keep us in order, and the switch and arm must not wait until the apples + are stolen and eaten before getting busy. If we come climbing over the + fence sweating apples at every pore, is Farmer Jones to go and count his + apples before grabbing us? + </p> + <p> + The most presumptuous of all presumptions is this "presumption of + innocence." It really doesn't exist, save in the mouths of judges and in + the pages of the law books. Yet as much to-do is made about it as if it + were a living legal principle. Every judge in a criminal case is required + to charge the jury in form or substance somewhat as follows: "The + defendant is presumed to be innocent until that presumption is removed by + competent evidence"... "This presumption is his property, remaining with + him throughout the trial and until rebutted by the verdict of the + jury."... "The jury has no right to consider the fact that the defendant + stands at the bar accused of a crime by an indictment found by the grand + jury." Shades of Sir Henry Hawkins! Does the judge expect that they are + actually to swallow that? Here is a jury sworn "to a true verdict find" in + the case of an ugly looking customer at the bar who is charged with + knocking down an old man and stealing his watch. The old man—an + apostolic looking octogenarian—is sitting right over there where the + jury can see him. One look at the plaintiff and one at the accused and the + jury may be heard to mutter, "He's guilty,—all right!" + </p> + <p> + "Presumed to be innocent?" Why, may I ask? Do not the jury and everybody + else know that this good old man would never, save by mistake, accuse + anybody falsely of crime? Innocence! Why, the natural and inevitable + presumption is that the defendant is guilty! The human mind works + intuitively by comparison and experience. We assume or presume with + considerable confidence that parents love their children, that all college + presidents are great and good men, and that wild bulls are dangerous + animals. We may be wrong. But it is up to the other fellow to show us the + contrary. + </p> + <p> + Now, if out of a clear sky Jones accuses Robinson of being a thief we know + by experience that the chances are largely in favor of Jones's accusation + being well founded. People as a rule don't go rushing around charging each + other with being crooks unless they have some reason for it. Thus, at the + very beginning the law flies in the face of probabilities when it tells us + that a man accused of crime must be presumed to be innocent. In point of + fact, whatever presumption there is (and this varies with the + circumstances) is all the other way, greater or less depending upon the + particular attitude of mind and experience of the individual. + </p> + <p> + This natural presumption of guilt from the mere fact of the charge is + rendered all the more likely by reason of the uncharitable readiness with + which we believe evil of our fellows. How unctuously we repeat some + hearsay bit of scandal. "I suppose you have heard the report that Deacon + Smith has stolen the church funds?" we say to our friends with a + sententious sigh—the outward sign of an invisible satisfaction. + Deacon Smith after the money-bag? Ha! ha! Of course, he's guilty! These + deacons are always guilty! And in a few minutes Deacon Smith is ruined + forever, although the fact of the matter may well have been that he was + but counting the money in the collection-plate. This willingness to + believe the worst of others is a matter of common knowledge and of + historical and literary record. "The evil that men do lives after them—" + It might well have been put, "The evil men are said to have done lives + forever." However unfair, this is a psychologic condition which plays an + important part in rendering the presumption of innocence a gross + absurdity. + </p> + <p> + But let us press the history of Jones and Robinson a step further. The + next event in the latter's criminal history is his appearance in court + before a magistrate. Jones produces his evidence and calls his witnesses. + Robinson, through his learned counsel, cross-examines them and then + summons his own witnesses to prove his innocence. The proceeding may take + several days or perhaps weeks. Briefs are submitted. The magistrate + considers the testimony and finally decides that he believes Robinson + guilty and must hold him for the action of the grand jury. You might now, + it would perhaps seem, have some reason for suspecting that Robinson was + not all that he should be. But no! He is still presumed in the eyes of the + law, and theoretically in the eyes of his fellows, to be as innocent as a + babe unborn. And now the grand jury take up and sift the evidence that has + already been gone over by the police judge. They, too, call witnesses and + take additional testimony. They likewise are convinced of Robinson's guilt + and straightway hand down an indictment accusing him of the crime. A bench + warrant issues. The defendant is run to earth and ignominiously haled to + court. But he is still presumed to be innocent! Does not the law say so? + And is not this a "government of laws"? Finally, the district attorney, + who is not looking for any more work than is absolutely necessary, + investigates the case, decides that it must be tried and begins to prepare + it for trial. As the facts develop themselves Robinson's guilt becomes + more and more clear. The unfortunate defendant is given any opportunity he + may desire to explain away the charge, but to no purpose. + </p> + <p> + The district attorney knows Robinson is guilty, and so does everybody + else, including Robinson. At last this presumably innocent man is brought + to the bar for trial. The jury scan his hang-dog countenance upon which + guilt is plainly written. They contrast his appearance with that of the + honest Jones. They know he has been accused, held by a magistrate, + indicted by a grand jury, and that his case, after careful scrutiny, has + been pressed for trial by the public prosecutor. Do they really presume + him innocent? Of course not. They presume him guilty. "So soon as I see + him come through dot leetle door in the back of the room, then I know he's + guilty!" as the foreman said in the old story. What good does the + presumption of innocence, so called, do for the miserable Robinson? None + whatever—save perhaps to console him in the long days pending his + trial. But such a legal hypocrisy could never have deceived anybody. How + much better it would be to cast aside all such cant and frankly admit that + the attitude of the continental law toward the man under arrest is founded + upon common sense and the experience of mankind. If he is the wrong man it + should not be difficult for him to demonstrate the fact. At any rate + circumstances are against him, and he should be anxious to explain them + away if he can. + </p> + <p> + The fact of the matter is, that in dealing with practical conditions, + police methods differ very little in different countries. The authorities + may perhaps keep considerably more detailed "tabs" on people in Europe + than in the United States, but if they are once caught in a compromising + position they experience about the same treatment wherever they happen to + be. In France (and how the apostles of liberty condemn the iniquity of the + administration of criminal justice in that country!) the suspect or + undesirable receives a polite official call or note, in which he is + invited to leave the locality as soon as convenient. In New York he is + arrested by a plainclothes man, yanked down to Mulberry Street for the + night, and next afternoon is thrust down the gangplank of a just departing + Fall River liner. Many an inspector has earned unstinted praise (even from + the New York Evening Post) by "clearing New York of crooks" or having a + sort of "round-up" of suspicious characters whom, after proper + identification, he has ejected from the city by the shortest and quickest + possible route. Yet in the case of every person thus arrested and driven + out of the town he has undoubtedly violated constitutional rights and + taken the law into his own hands. + </p> + <p> + What redress can a penniless tramp secure against a stout inspector of + police able and willing to spend a considerable sum of money in his own + defence, and with the entire force ready and eager to get at the tramp and + put him out of business? He swallows his pride, if he has any, and + ruefully slinks out of town for a period of enforced abstinence from the + joys of metropolitan existence. Yet who shall say that, in spite of the + fact that it is a theoretic outrage upon liberty, this cleaning out of the + city is not highly desirable? One or two comparatively innocent men may be + caught in the ruck, but they generally manage to intimate to the police + that the latter have "got them wrong" and duly make their escape. The + others resume their tramp from city to city, clothed in the presumption of + their innocence. + </p> + <p> + Since the days of the Doges or of the Spanish Inquisition there has never + been anything like the morning inspection or "line up" of arrested + suspects at the New York police head-quarters.* (*Now abolished.) One by + one the unfortunate persons arrested during the previous night (although + not charged with any crime) are pointed out to the assembled detective + force, who scan them from beneath black velvet masks in order that they + themselves may not be recognized when they meet again on Broadway or the + darker side streets of the city. Each prisoner is described and his + character and past performances are rehearsed by the inspector or head of + the bureau. He is then measured, "mugged," and, if lucky, turned loose. + What does his liberty amount to or his much-vaunted legal rights if the + city is to be made safe? Yet why does not some apostle of liberty raise + his voice and cry aloud concerning the wrong that has been done? Are not + the rights of a beggar as sacred as those of a bishop? + </p> + <p> + One of the most sacred rights guaranteed under the law is that of not + being compelled to give evidence against ourselves or to testify to + anything which might degrade or incriminate us. Now, this is all very fine + for the chap who has his lawyer at his elbow or has had some similar + previous experience. He may wisely shut up like a clam and set at defiance + the tortures of the third degree. But how about the poor fellow arrested + on suspicion of having committed a murder, who has never heard of the + legal provision in question, or, if he has, is cajoled or threatened into + "answering one or two questions"? Few police officers take the trouble to + warn those whom they arrest that what they say may be used against them. + What is the use? Of course, when they testify later at the trial they + inevitably begin their testimony with the stereotyped phrase, "I first + warned the defendant that anything which he said might be used against + him." If they did warn him they probably whispered it or mumbled it so + that he didn't hear what they said, or, in any event, whether they said it + or not, half a dozen of them probably took him into a back room and, + having set him with his back against the wall, threatened and swore at him + until he told them what he knew, or thought he knew, and perhaps confessed + his crime. When the case comes to trial the police give the impression + that the accused quietly summoned them to his cell to make a voluntary + statement. The defendant denies this, of course, but the evidence goes in + and the harm has been done. No doubt the methods of the inquisition are in + vogue the world over under similar conditions. Everybody knows that a + statement by the accused immediately upon his arrest is usually the most + important evidence that can be secured in any case. It is a police + officer's duty to secure one if he can do so by legitimate means. It is + his custom to secure one by any means in his power. As his oath, that such + a statement was voluntary, makes it ipso facto admissible as evidence, the + statutes providing that a defendant cannot be compelled to give evidence + against himself are practically nullified. + </p> + <p> + In the more important cases the accused is usually put through some sort + of an inquisitorial process by the captain at the station-house. If he is + not very successful at getting anything out of the prisoner the latter is + turned over to the sergeant and a couple of officers who can use methods + of a more urgent character. If the prisoner is arrested by headquarters + detectives, various efficient devices to compel him to "give up what he + knows" may be used—such as depriving him of food and sleep, placing + him in a cell with a "stool pigeon" who will try to worm a confession out + of him, and the usual moral suasion of a heart-to-heart talk in the back + room with the inspector. + </p> + <p> + This is the darker side of the picture of practical government. It is + needless to say that the police do not always suggest the various + safeguards and privileges which the law accords to defendants thus + arrested, but the writer is free to confess that, save in exceptional + cases, he believes the rigors of the so-called third degree to be greatly + exaggerated. Frequently in dealing with rough men rough methods are used, + but considering the multitude of offenders, and the thousands of police + officers, none of whom have been trained in a school of gentleness, it is + surprising that severer treatment is not generally met with on the part of + those who run afoul of the criminal law. The ordinary "cop" tries to do + his duty as effectively as he can. With the average citizen gruffness and + roughness go a long way in the assertion of authority. In the task of + policing a big city, the rights of the individual must indubitably suffer + to a certain extent if the rights of the multitude are to be properly + protected. We can make too much of small injustices and petty + incivilities. Police business is not gentle business. The officers are + trying to prevent you and me from being knocked on the head some dark + night or from being chloroformed in our beds. Ten thousand men are trying + to do a thirty-thousand-man job. The struggle to keep the peace and put + down crime is a hard one anywhere. It requires a strong arm that cannot + show too punctilious a regard for theoretical rights when prompt decisions + have to be made and equally prompt action taken. The thieves and gun men + have got to be driven out. Suspicious characters have got to be locked up. + Somehow or other a record must be kept of professional criminals and + persons likely to be active in law-breaking. These are necessities in + every civilized country. They are necessities here. Society employs the + same methods of self-protection the world over. No one presumes a person + charged with crime to be innocent, either in Delhi, Pekin, Moscow, or New + York. Under proper circumstances we believe him guilty. When he comes to + be tried the jury consider the evidence, and if they are reasonably sure + he is guilty they convict him. The doctrine of reasonable doubt is almost + as much of a fiction as that of the presumption of innocence. From the + time a man is arrested until arraignment he is quizzed with a view to + inducing him to admit his offence or give some evidence that may help + convict him. Logically, why should not a person charged with a crime be + obliged to give what explanation he can of the affair? Why should he have + the privilege of silence? Doesn't he owe a duty to the public the same as + any other witness? If he is innocent he has nothing to fear; if he is + guilty—away with him! The French have no false ideas about such + things and at the same time they have a high regard for liberty. We merely + cheat ourselves into thinking that our liberty is something different from + French liberty because we have a lot of laws upon our statute books that + are there only to be disregarded and would have to be repealed instantly + if enforced. + </p> + <p> + Take, for instance, the celebrated provision of the penal laws that the + failure of an accused to testify in his own behalf shall not be taken + against him. Such a doctrine flies in the face of human nature. If a man + sits silent when witnesses under oath accuse him of a crime it is an + inevitable inference that he has nothing to say—that no explanation + of his would explain. The records show that the vast majority of accused + persons who do not avail themselves of the opportunity to testify are + convicted. Thus, the law which permits a defendant to testify in reality + compels him to testify, and a much-invoked safeguard of liberty turns out + to be a privilege in name only. In France or America alike a man accused + of crime sooner or later has to tell what he knows—or take his + medicine. It makes little difference whether he does so under the + legalized interrogation of a "juge d'instruction" in Paris or under the + quasi-voluntary examination of an assistant district attorney or police + inspector in New York. It is six of one and half a dozen of the other if + at his trial in France he remains mute under examination or in America + refrains from availing himself of the privilege of testifying in his own + behalf. + </p> + <p> + Thus, we are reluctantly forced to the conclusion that all human + institutions have their limitations, and that, however theoretically + perfect a government of laws may be, it must be administered by men whose + chief regard will not be the idealization of a theory of liberty so much + as an immediate solution of some concrete problem. + </p> + <p> + Not that the matter, after all, is particularly important to most of us, + but laws which exist only to be broken create a disrespect and disregard + for law which may ultimately be dangerous. It would be perfectly simple + for the legislature to say that a citizen might be arrested under + circumstances tending to create a reasonable suspicion, even if he had not + committed a crime, and it would be quite easy to pass a statute providing + that the commissioner of police might "mug" and measure all criminals + immediately after conviction. As it is, the prison authorities won't let + him, so he has to do it while he has the opportunity. + </p> + <p> + It must be admitted that this is rather hard on the innocent, but they now + have to suffer with the guilty for the sins of an indolent and + uninterested legislature. Moreover, if such a right of arrest were + proposed, some wiseacre or politician would probably rise up and denounce + the suggestion as the first step in the direction of a military + dictatorship. Thus, we shall undoubtedly fare happily on in the blissful + belief that our personal liberties are the subject of the most solicitous + and zealous care on the part of the authorities, guaranteed to us under a + government which is not of men but of laws, until one of us happens to be + arrested (by mistake, of course) and learns by sad experience the + practical methods of the police in dealing with criminals and the + agreeable but deceptive character of the pleasant fiction of the + presumption of innocence. + </p> + <p> + <a name="link2HCH0002" id="link2HCH0002"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + CHAPTER II. Preparing a Criminal Case for Trial + </h2> + <p> + When the prosecuting attorney in a great criminal trial arises to open the + case to the impanelled jury, very few, if any, of them have the slightest + conception of the enormous expenditure of time, thought and labor which + has gone into the preparation of the case and made possible his brief and + easily delivered speech. For in this opening address of his there must be + no flaw, since a single misstated or overstated fact may prejudice the + jury against him and result in his defeat. Upon it also depends the jury's + first impression of the case and of the prosecutor himself—no + inconsiderable factor in the result. In a trial of importance its careful + construction with due regard to what facts shall be omitted (in order to + enhance their dramatic effect when ultimately proven) may well occupy the + district attorney every evening for a week. But if the speech itself has + involved study and travail, it is as nothing compared with the amount + required by that most important feature of every criminal case—the + selection of the jury. + </p> + <p> + For a month before the trial, or whenever it may be that the jury has been + drawn, every member upon the panel has been subjected to an unseen + scrutiny. The prosecutor, through his own or through hired sleuths, has + examined into the family history, the business standing and methods, the + financial responsibility, the political and social affiliations, and the + personal habits and "past performances" of each and every talesman. When + at the beginning of the trial they, one by one, take the witness-chair (on + what is called the voir dire) to subject themselves to an examination by + both sides as to their fitness to serve as jurors in the case, the + district attorney probably has close fit hand a rather detailed account of + each, and perchance has great difficulty in restraining a smile. When some + prospective juror, in his eagerness either to serve or to escape, + deliberately equivocates in answer to an important question as to his + personal history. + </p> + <p> + "Are you acquainted with the accused or his family?" mildly inquires the + assistant prosecutor. "No—not at all," the talesman may blandly + reply. + </p> + <p> + The answer, perhaps, is literally true, and yet the prosecutor may be + pardoned for murmuring + </p> + <p> + "Liar!" to himself as he sees that his memorandum concerning the juror's + qualifications states that he belongs to the same "lodge" with the + prisoner's uncle by marriage and carries an open account on his books with + the defendant's father. + </p> + <p> + "I think we will excuse Mr. Ananias," politely remarks the prosecutor; + then in an undertone he turns to his chief and mutters: "The old rascal! + He would have knifed us if we'd given him the chance!" And all this time + the disgruntled Mr. Ananias is wondering why, if he didn't "know the + defendant or his family," he was not accepted as a juror. + </p> + <p> + Of course, every district attorney has, or should have, information as to + each talesman's actual capabilities as a juror and something of a record + as to how he has acted under fire. If he is a member of the "special" + panel, it is easy to find out whether he has ever acquitted or convicted + in any cause celebre, and if he has acquitted any plainly guilty defendant + in the past it is not likely that his services will be required. If, + however, he has convicted in such a case the district attorney may try to + lure the other side into accepting him by making it appear that he himself + is doubtful as to the juror's desirability. Sometimes persons accused of + crime themselves, and actually under indictment, find their way onto the + panels, and more than one ex-convict has appeared there in some + inexplicable fashion. But to find them out may well require a double shift + of men working day and night for a month before the case is called, and + what may appear to be the most trivial fact thus discovered may in the end + prove the decisive argument for or against accepting the juror. + </p> + <p> + Panel after panel may be exhausted before a jury in a great murder trial + has been selected, for each side in addition to its challenges for "cause" + or "bias" has thirty* peremptory ones which it may exercise arbitrarily. + If the writer's recollection is not at fault, the large original panel + drawn in the first Molineux trial was used up and several others had to be + drawn until eight hundred talesmen had been interrogated before the jury + was finally selected. It is usual to examine at least fifty in the + ordinary murder case before a jury is secured. + </p> +<pre xml:space="preserve"> + * In the State of New York. +</pre> + <p> + It may seem to the reader that this scrutiny of talesmen is not strictly + preparation for the trial, but, in fact, it is fully as important as + getting ready the facts themselves; for a poor jury, either from ignorance + or prejudice, will acquit on the same facts which will lead a sound jury + to convict. A famous prosecutor used to say, "Get your jury—the case + will take care of itself." + </p> + <p> + But as the examination of the panel and the opening address come last in + point of chronology it will be well to begin at the beginning and see what + the labors of the prosecutor are in the initial stages of preparation. Let + us take, for example, some notorious case, where an unfortunate victim has + died from the effects of a poisoned pill or draught of medicine, or has + been found dead in his room with a revolver bullet in his heart. Some time + before the matter has come into the hands of the prosecutor, the press and + the police have generally been doing more or less (usually less) effective + work upon the case. The yellow journals have evolved some theory of who is + the culprit and have loosed their respective reporters and "special + criminologists" upon him. Each has its own idea and its own methods—often + unscrupulous. And each has its own particular victim upon whom it intends + to fasten the blame. Heaven save his reputation! Many an innocent man has + been ruined for life through the efforts of a newspaper "to make a case," + and, of course, the same thing, though happily in a lesser degree, is true + of the police and of some prosecutors as well. + </p> + <p> + In every great criminal case there are always four different and + frequently antagonistic elements engaged in the work of detection and + prosecution—first, the police; second, the district attorney; third, + the press; and, lastly, the personal friends and family of the deceased or + injured party. Each for its own ends—be it professional pride, + personal glorification, hard cash, or revenge—is equally anxious to + find the evidence and establish a case. Of course, the police are the + first ones notified of the commission of a crime, but as it is now almost + universally their duty to inform at once the coroner and also the district + attorney thereof, a tripartite race for glory frequently results which + adds nothing to the dignity of the administration of criminal justice. + </p> + <p> + The coroner is at best no more than an appendix to the legal anatomy, and + frequently he is a disease. The spectacle of a medical man of small + learning and less English trying to preside over a court of first instance + is enough to make the accused himself chuckle for joy. + </p> + <p> + Not long ago the coroners of New York discovered that, owing to the fact + that the district attorney or his representatives generally arrived first + at the scene of any crime, there was nothing left for the "medicos" to do, + for the district attorney would thereupon submit the matter at once to the + grand jury instead of going through the formality of a hearing in the + coroner's court. The legal medicine men felt aggrieved, and determined to + be such early birds that no worm should escape them. Accordingly, the next + time one of them was notified of a homicide he raced his horse down + Madison Avenue at such speed that he collided with a trolley car and broke + his leg. + </p> + <p> + Another complained to the district attorney that the assistants of the + latter, who had arrived at the scene of an asphyxiation before him, had + bungled everything. + </p> + <p> + "Ach, dose young men!" he exclaimed, wringing his hands—"Dose young + men, dey come here and dey opened der vindow and let out der gas and all + mine evidence esgaped." + </p> + <p> + It is said that this interesting personage once instructed his jury to + find that "the diseased came to his death from an ulster on the stomach." + </p> + <p> + These anecdotes are, perhaps, what judges would call obiter dicta, yet the + coroner's court has more than once been utilized as a field in the actual + preparation of a criminal case. When Roland B. Molineux was first + suspected of having caused the death of Mrs. Adams by sending the famous + poisoned package of patent medicine to Harry Cornish through the mails, + the assistant district attorney summoned him as a witness to the coroner's + court and attempted to get from him in this way a statement which Molineux + would otherwise have refused to make. + </p> + <p> + When all the first hullabaloo is over and the accused is under arrest and + safely locked up, it is usually found that the police have merely run down + the obvious witnesses and made a prima facie case. All the finer work + remains to be done either by the district attorney himself or by the + detective bureau working under his immediate direction or in harmony with + him. Little order has been observed in the securing of evidence. Every one + is a fish who runs into the net of the police, and all is grist that comes + to their mill. The district attorney sends for the officers who have + worked upon the case and for the captain or inspector who has directed + their efforts, takes all the papers and tabulates all their information. + His practiced eye shows him at once that a large part is valueless, much + is contradictory, and all needs careful elaboration. A winnowing process + occurs then and there; and the officers probably receive a "special + detail" from headquarters and thereafter take their orders from the + prosecutor himself. The detective bureau is called in and arrangements + made for the running down of particular clues. Then he will take off his + coat, clear his desk, and get down to work. + </p> + <p> + Of course, his first step is to get all the information he can as to the + actual facts surrounding the crime itself. He immediately subpoenas all + the witnesses, whether previously interrogated by the police or not, who + know anything about the matter, and subjects them to a rigorous + cross-examination. Then he sends for the police themselves and + cross-examines them. If it appears that any witnesses have disappeared he + instructs his detectives how and where to look for them. Often this + becomes in the end the most important element in the preparation for the + trial. Thus in the Nan Patterson case the search for and ultimate + discovery of Mr. and Mrs. Morgan Smith (the sister and brother-in-law of + the accused) was one of its most dramatic features. After they had been + found it was necessary to indict and then to extradite them in order to + secure their presence within the jurisdiction, and when all this had been + accomplished it proved practically valueless. + </p> + <p> + It frequently happens that an entire case will rest upon the testimony of + a single witness whose absence from the jurisdiction would prevent the + trial. An instance of such a case was that of Albert T. Patrick, for + without the testimony of his alleged accomplice—the valet, Jones—he + could not have been convicted of murder. The preservation of such a + witness and his testimony thus becomes of paramount importance, and + rascally witnesses sometimes enjoy considerable ease, if not luxury, at + the expense of the public while waiting to testify. Often, too, a case of + great interest will arise where the question of the guilt of the accused + turns upon the evidence of some one person who, either from mercenary + motives or because of "blood and affection," is unwilling to come to the + fore and tell the truth. A striking case of this sort occurred some ten + years ago. The "black sheep" of a prominent New York family forged the + name of his sister to a draft for thirty thousand dollars. This sister, + who was an elderly woman of the highest character and refinement, did not + care to pocket the loss herself and declined to have the draft debited to + her account at the bank. A lawsuit followed, in which the sister swore + that the name signed to the draft was not in her handwriting. She won her + case, but some officious person laid the matter before the district + attorney. The forger was arrested and his sister was summoned before the + grand jury. Here was a pleasant predicament. If she testified for the + State her brother would undoubtedly go to prison for many years, to say + nothing of the notoriety for the entire family which so sensational a case + would occasion. She, therefore, slipped out of the city and sailed for + Europe the night before she was to appear before the grand jury. Her + brother was in due course indicted and held for trial in large bail, but + there was and is no prospect of convicting him for his crime so long as + his sister remains in the voluntary exile to which she has subjected + herself. She can never return to New York to live unless something happens + either to the indictment or her brother, neither of which events seems + likely in the immediate future. + </p> + <p> + Perhaps, if the case is one of shooting, the weapon has vanished. Its + discovery may lead to the finding of the murderer. In one instance where a + body was found in the woods with a bullet through the heart, there was + nothing to indicate who had committed the crime. The only scintilla of + evidence was an exploded cartridge—a small thing on which to build a + case. But the district attorney had the hammer marks upon the cap + magnified several hundred times and then set out to find the rifle which + bore the hammer which had made them. Thousands of rifles all over the + State were examined. At last in a remote lumber camp was found the weapon + which had fired the fatal bullet. The owner was arrested, accused of the + murder, and confessed his crime. In like manner, if it becomes necessary + to determine where a typewritten document was prepared the letters may be + magnified, and by examining the ribbons of suspected machines the desired + fact may be ascertained. The magnifying glass still plays an important + part in detecting crime, although usually in ways little suspected by the + general public. + </p> + <p> + On the other hand, where the weapon has not been spirited away the + detectives may spend weeks in discovering when and where it was purchased. + Every pawnshop, every store where a pistol could be bought, is + investigated, and under proper circumstances the requisite evidence to + show deliberation and premeditation may be secured. + </p> + <p> + These investigations are naturally conducted at the very outset of the + preparation of the case. + </p> + <p> + The weapon, in seven trials out of ten, is the most important thing in it. + By its means it can generally be demonstrated whether the shooting was + accidental or intentional—and whether or not the killing was in + self-defence. + </p> + <p> + Where this last plea is interposed it is usually made at once upon the + arrest, the accused explaining to the police that he fired only to save + his own life. In such a situation, where the killing is admitted, + practically the entire preparation will centre upon the most minute tests + to determine whether or not the shot was fired as the accused claims that + it was. The writer can recall at least a dozen cases in his own experience + where the story of the defendant, that the revolver was discharged in a + hand-to-hand struggle, was conclusively disproved by experimenting with + the weapon before the trial. There was one homicide in which a bullet + perforated a felt cap and penetrated the forehead of the deceased. The + defendant asserted that he was within three feet of his victim when he + fired, and that the other was about to strike him with a bludgeon. A + quantity of felt, of weight similar to that of the cap, was procured and + the revolver discharged at it from varying distances. A microscopic + examination showed that certain discolorations around the bullet-hole + (claimed by the defence to be burns made by the powder) were, in fact, + grease marks, and that the shot must have been fired from a distance of + about fifteen feet. The defendant was convicted on his own story, + supplemented by the evidence of the witness who made the tests. + </p> + <p> + The most obvious and first requirement is, as has been said, to find the + direct witnesses to the facts surrounding the crime, commit their + statements under oath to writing, so that they cannot later be denied or + evaded, and make sure that these witnesses will not only hold no + intercourse with the other side, but will be on hand when wanted. This + last is not always an easy task, and various expedients often have to be + resorted to, such as placing hostile witnesses under police surveillance, + or in some cases in "houses of detention," and hiding others in + out-of-the-way places, or supplying them with a bodyguard if violence is + to be anticipated. When the proper time comes the favorable witnesses must + be duly drilled or coached, which does not imply anything improper, but + means merely that they must be instructed how to deliver their testimony, + what answers are expected to certain questions, and what facts it is + intended to elicit from them. Witnesses are often offended and run amuck + because they are not given a chance upon the stand to tell the story of + their lives. This must be guarded against and steps taken to have their + statements given in such a way that they are audible and intelligible. A + few lessons in elementary elocution are generally vitally necessary. The + man with the bassoon voice must be tamed, and the birdlike old lady made + to chirp more loudly. But all this is the self-evident preparation which + must take place in every case, and while highly important is of far less + interest than the development of the circumstantial evidence which is the + next consideration of the district attorney. + </p> + <p> + The discovery and proper proof of minute facts which tend to demonstrate + the guilt of an accused are the joy of the natural prosecutor, and he may + in his enthusiasm spend many thousands of dollars on what seems, and often + is, an immaterial matter. Youthful officials intrusted with the + preparation of important cases often become unduly excited and forget that + the taxpayers are paying the bills. The writer remembers sitting beside + one of these enthusiasts during a celebrated trial. A certain woman + witness had incidentally testified to a remote meeting with the deceased + at which a certain other woman was alleged to have been present. The + matter did not seem of much interest or importance, but the youth in + question seized a yellow pad and excitedly wrote in blue pencil, "Find + Birdie" (the other lady) "at any cost!" This he handed to a detective, who + hastened importantly away. It is to be hoped that "Birdie" was found + speedily and in an inexpensive manner. + </p> + <p> + When the case against Albert T. Patrick, later convicted of the murder of + the aged William M. Rice, was in course of preparation, it was found + desirable to show that Patrick had called up his accomplice on the + telephone upon the night of the murder. Accordingly, the telephone company + was compelled to examine several hundred thousand telephone slips to + determine whether or not this had actually occurred. While the fact was + established in the affirmative, the company now destroys its slips in + order not to have to repeat the performance a second time. + </p> + <p> + Likewise, in the preparation of the Molineux case it became important to + demonstrate that the accused had sent a letter under an assumed name + ordering certain remedies. As a result, one of the employees of the + patent-medicine company spent several months going over their old mail + orders and comparing them with a certain sample, until at last the letter + was unearthed. Of course, the district attorney had to pay for it, and it + was probably worth what it cost to the prosecution, although Molineux's + conviction was reversed by the Court of Appeals and he was acquitted upon + his second trial. + </p> + <p> + The danger is, however, that a prosecutor who has an unlimited amount of + money at his disposal may be led into expenditures which are hardly + justified simply because he thinks they may help to secure a conviction. + Nothing is easier than to waste money in this fashion, and public + officials sometimes spend the county's money with considerably more + freedom than they would their own under similar circumstances. + </p> + <p> + The legitimate expenses connected with the preparation of every important + case are naturally large. For example, diagrams must be prepared, + photographs taken of the place of the crime, witnesses compensated for + their time and their expenses paid, and, most important of all, competent + experts must be engaged. This leads us to an interesting aspect of the + modern jury trial. + </p> + <p> + When no other defence to homicide is possible the claim of insanity is + frequently interposed. Nothing is more confusing to the ordinary juryman + than trying to determine the probative value of evidence touching + unsoundness of mind, and the application thereto of the legal test of + criminal responsibility. In point of fact, juries are hardly to be blamed + for this, since the law itself is antiquated and the subject one abounding + in difficulty. Unfortunately the opportunity for vague yet damaging + testimony on the part of experts, the ease with which any desired opinion + can be defended by a slight alteration in the hypothetical facts, and the + practical impossibility of exposure, have been seized upon with avidity by + a score or more of unscrupulous alienists who are prepared to sell their + services to the highest bidder. These men are all the more dangerous + because, clever students of mental disease and thorough masters of their + subject as they are, they are able by adroit qualifications and skilful + evasions to make half-truths seem as convincing as whole ones. They ask + and receive large sums for their services, and their dishonest testimony + must be met and refuted by the evidence of honest physicians, who, by + virtue of their attainments, have a right to demand substantial fees. Even + so, newspaper reports of the expense to the State of notorious trials are + grossly exaggerated. The entire cost of the first Thaw trial to the County + of New York was considerably less than twenty thousand dollars, and the + second trial not more than half that amount. To the defence, however, it + was a costly matter, as the recent schedules in bankruptcy of the + defendant show. Therein it appears that one of his half-dozen counsel + still claims as owing to him for his services on the first trial the + modest sum of thirty-five thousand dollars. The cost of the whole defence + was probably ten times that sum. Most of the money goes to the lawyers, + and the experts take the remainder. + </p> + <p> + It goes without saying that both prosecutor and attorney for the defence + must be masters of the subject involved. A trial for poisoning means an + exhaustive study not only of analytic chemistry, but of practical medicine + on the part of all the lawyers in the case, while a plea of insanity + requires that, for the time being, the district attorney shall become an + alienist, familiar with every aspect of paranoia, dementia praecox, and + all other forms of mania. He must also reduce his knowledge to concrete, + workable form, and be able to defeat opposing experts on their own ground. + But such knowledge comes only by prayer and fasting—or, perhaps, + rather by months of hard and remorseless grind. + </p> + <p> + The writer once prosecuted a druggist who had, by mistake, filled a + prescription for a one-fourth-grain pill of calomel with a + one-fourth-grain pill of morphine. The baby for whom the pill was intended + died in consequence. The defence was that the prescription had been + properly filled, but that the child was the victim of various diseases, + from acute gastritis to cerebro-spinal meningitis. In preparation the + writer was compelled to spend four hours every evening for a week with + three specialists, and became temporarily a minor expert on children's + diseases. To-day he is forced to admit that he would not know a case of + acute gastritis from one of mumps. But the druggist was convicted. + </p> + <p> + Yet it is not enough to prepare for the defence you believe the accused is + going to interpose. A conscientious preparation means getting ready for + any defence he may endeavor to put in. Just as the prudent general has an + eye to every possible turn of the battle and has, if he can, + re-enforcements on the march, so the prosecutor must be ready for + anything, and readiest of all for the unexpected. He must not rest upon + the belief that the other side will concede any fact, however clear it may + seem. Some cases are lost simply because it never occurs to the district + attorney that the accused will deny something which the State has twenty + witnesses to prove. The twenty witnesses are, therefore, not summoned on + the day of trial, the defendant does deny it, and as it is a case of word + against word the accused gets the benefit of the doubt and, perhaps, is + acquitted. + </p> + <p> + No case is properly prepared unless there is in the court-room every + witness who knows anything about any aspect of the case. No one can + foretell when the unimportant will become the vital. Most cases turn on an + unconsidered point. A prosecutor once lost what seemed to him the clearest + sort of a case. When it was all over, and the defendant had passed out of + the courtroom rejoicing, he turned to the foreman and asked the reason for + the verdict. + </p> + <p> + "Did you hear your chief witness say he was a carpenter?" inquired the + foreman. + </p> + <p> + "Why, certainly," answered the district attorney, + </p> + <p> + "Did you hear me ask him what he paid for that ready-made pine door he + claimed to be working on when he saw the assault?" + </p> + <p> + The prosecutor recalled the incident and nodded. + </p> + <p> + "Well, he said ten dollars—and I knew he was a liar. A door like + that don't cost but four-fifty!" + </p> + <p> + It is, perhaps, too much to require a knowledge of carpentry on the part + of a lawyer trying an assault case. Yet the juror was undoubtedly right in + his deduction. + </p> + <p> + In a case where insanity is the defence, the State must dig up and have at + hand every person it can find who knew the accused at any period of his + career. He will probably claim that in his youth he was kicked in a game + of foot-ball and fractured his skull, that later he fell into an elevator + shaft and had concussion of the brain, or that he was hit on the head by a + burglar. It is usually difficult, if not impossible, to disprove such + assertions, but the prosecutor must be ready, if he can, to show that + foot-ball was not invented until after the defendant had attained + maturity, that it was some other man who fell down the elevator shaft, and + to produce the burglar to deny that the assault occurred. Naturally, + complete preparation for an important trial demands the presence of many + witnesses who ultimately are not needed and who are never called. Probably + in most such cases about half the witnesses do not testify at all. Most of + what has been said relates to the preparation for trial of cases where the + accused is already under arrest when the district attorney is called into + the case. If this stage has not been reached the prosecutor may well be + called upon to exercise some of the functions of a detective in the first + instance. + </p> + <p> + A few years ago it was brought to the attention of the New York + authorities that many blackmailing letters were being received bearing the + name of "Lewis Jarvis." These were of a character to render the + apprehension of the writer of them a matter of much importance. The + letters directed that the replies be sent to a certain box in the New York + post-office, but as the boxes are numerous and close together it seemed + doubtful if "Lewis Jarvis" could be detected when he called for his mail. + The district attorney, the police, and the post-office officials finally + evolved the scheme of plugging the lock of "Lewis Jarvis's" box with a + match. The scheme worked, for "Jarvis," finding that he could not use his + key, went to the delivery window and asked for his mail. The very instant + the letters reached his hand the gyves were upon the wrists of one of the + best-known attorneys in the city. + </p> + <p> + When the district attorney has been apprised that a crime has been + committed, and that a certain person is the guilty party, he not + infrequently allows the suspect to go his way under the careful watch of + detectives, and thus often secures much new evidence against him. In this + way it is sometimes established that the accused has endeavored to bribe + the witnesses and to induce them to leave the State, while the whereabouts + of stolen loot is often discovered. In most instances, however, the + district attorney begins where the police leave off, and he merely + supplements their labors and prepares for the actual trial itself. But the + press he has always with him, and from the first moment after the crime up + to the execution of the sentence or the liberation of the accused, the + reporters dog his footsteps, sit on his doorstep, and deluge him with + advice and information. + </p> + <p> + Now a curious feature about the evidence "worked up" by reporters for + their papers is that little of it materializes when the prosecutor wishes + to make use of it. Of course, some reporters do excellent detective work, + and there are one or two veterans attached to the criminal courts in New + York City who, in addition to their literary capacities, are natural-born + sleuths, and combine with a knowledge of criminal law, almost as extensive + as that of a regular prosecutor, a resourcefulness and nerve that often + win the case for whichever side they espouse. I have frequently found that + these men knew more about the cases which I was prosecuting than I did + myself, and a tip from them has more than once turned defeat into victory. + But newspaper men, for one reason or another, are loath to testify, and + usually make but poor witnesses. They feel that their motives will be + questioned, and are naturally unwilling to put themselves in an equivocal + position. The writer well remembers that in the Mabel Parker case, where + the defendant, a young and pretty woman, had boasted of her forgeries + before a roomful of reporters, it was impossible, when her trial was + called, to find more than one of them who would testify—and he had + practically to be dragged to the witness chair. In point of fact, if + reporters made a practice of being witnesses it would probably hurt their + business. But, however much "faked" news may be published, a prosecutor + who did not listen to all the hints the press boys had to give would make + a great mistake; and as allies and advisers they are often invaluable, for + they can tell him where and how to get evidence of which otherwise he + would never hear. + </p> + <p> + The week before a great case is called is a busy one for the prosecutor in + charge. He is at his office early to interview his main witnesses and go + over their testimony with them so that their regular daily work may not be + interrupted more than shall be actually necessary. Some he cautions + against being overenthusiastic and others he encourages to greater + emphasis. The bashful "cop" is badgered until at last he ceases to begin + his testimony in the cut-and-dried police fashion. + </p> + <p> + "On the morning of the twenty-second of July, about 3.30 A.M., while on + post at the corner of Desbrosses Street—," he starts. + </p> + <p> + "Oh, quit that!" shouts the district attorney. "Tell me what you saw in + your own words." + </p> + <p> + The "cop" blushes and stammers: + </p> + <p> + "Aw, well, on the morning of the twenty-second of July, about 3.30 A.M." + </p> + <p> + "Look here!" yells the prosecutor, jumping to his feet and shaking his + fist at him, "do you want to be taken for a d—n liar? 'Morning of + the twenty-second of July, about 3.30 A.M., while on post I' You never + talked like that in your life." + </p> + <p> + By this time the "cop" is "mad clear through." + </p> + <p> + "I'm no liar!" he retorts. "I saw the ——— pull his gun + and shoot!" + </p> + <p> + "Well, why didn't you say so?" laughs the prosecutor, and the officer + mollified with a cigar, dimly perceives the objectionable feature of his + testimony. + </p> + <p> + About this time one of the sleuths comes in to report that certain + much-desired witnesses have been "located" and are in custody downstairs. + The assistant makes immediate preparation for taking their statements. + Then one of the experts comes in for a chat about a new phase of the case + occasioned by the discovery that the defendant actually did have spasms + when an infant. The assistant wisely makes an appointment for the evening. + A telegram arrives saying that a witness for the defence has just started + for New York from Philadelphia and should be duly watched on arrival. The + district attorney sends for the assistant to inquire if he has looked up + the law on similar cases in Texas and Alabama—which he probably has + not done; and a friend on the telephone informs him that Tomkins, who has + been drawn on the jury, is a boon companion of the prisoner and was + accustomed to play bridge with him every Sunday night before the murder. + </p> + <p> + Coincidently, some private detectives enter with a long report on the + various members of the panel, including the aforesaid Tomkins, whom they + pronounce to be "all right," and as never having, to their knowledge, laid + eyes on the accused. Finally, in despair, the prosecutor locks himself in + his library with a copy of the Bible, "Bartlett's Familiar Quotations," + and a volume of celebrated speeches, to prepare his summing up, for no + careful trial lawyer opens a case without first having prepared, to some + extent, at least, his closing address to the jury. He has thought about + this for weeks and perhaps for months. In his dreams he has formulated + syllogisms and delivered them to imaginary yet obstinate talesman. He has + glanced through many volumes for similes and quotations of pertinency. He + has tried various arguments on his friends until he knows just how, if he + succeeds in proving certain facts and the defence expected is interposed, + he is going to convince the twelve jurors that the defendant is guilty + and, perhaps, win an everlasting reputation as an orator himself. + </p> + <p> + This superficial sketch of how an important criminal case is got ready for + trial would be incomplete without some further reference to something + which has been briefly hinted at before—preparation upon its purely + legal aspect. This may well demand almost as much labor as that required + in amassing the evidence. Yet a careful and painstaking investigation of + the law governing every aspect of the case is indispensable to success. + The prosecutor with a perfectly clear case may see the defendant walk out + of court a free man, simply because he has neglected to acquaint himself + with the various points of law which may arise in the course of the trial, + and the lawyer for an accused may find his client convicted upon a charge + to which he has a perfectly good legal defence, for the same reason. + </p> + <p> + Looking at it from the point of view of the prisoner's counsel, it is + obvious that it is quite as efficacious to free your client on a point of + law, without having the case go to the jury at all, as to secure an + acquittal at their hands. + </p> + <p> + At the conclusion of the evidence introduced in behalf of the State there + is always a motion made to dismiss the case on the ground of alleged + insufficiency in the proof. This has usually been made the subject of the + most exhaustive study by the lawyers for the defence, and requires equal + preparation on the part of the prosecutor. The writer recalls trying a + bankrupt, charged with fraud, where the lawyer for the defendant had + written a brief of some three hundred pages upon the points of law which + he proposed to argue to the court upon his motion to acquit. But, + unfortunately, his client pleaded guilty and the volume was never brought + into play. + </p> + <p> + But a mastery of the law, a thorough knowledge and control of the + evidence, a careful preparation for the opening and closing addresses, and + an intimate acquaintance with the panel from which the jury is to be drawn + are by no means the only elements in the preparation for a great legal + battle. One thing still remains, quite as important as the rest—the + selection of the best time and the best court for the trial. "A good + beginning" in a criminal case means a beginning before the right judge, + the proper jury, and at a time when that vague but important influence + known as public opinion augurs success. A clever criminal lawyer, be he + prosecutor or lawyer for the defendant, knows that all the preparation in + the world is of no account provided his case is to come before a stupid or + biased judge, or a prejudiced or obstinate jury. Therefore, each side, in + a legal battle of importance, studies, as well as it can, the character, + connections, and cast of mind of the different judges who may be called + upon to hear the case, and, like a jockey at the flag, tries to hurry or + delay, as the case may be, until the judicial auspices appear most + favorable. A lawyer who has a weak defence seeks to bring the case before + a weak judge, or, if public clamor is loud against his client, makes use + of every technical artifice to secure delay, by claiming that there are + flaws in the indictment, or by moving for commissions to take testimony in + distant points of the country. The opportunities for legal procrastination + are so numerous that in a complicated case the defence may often delay + matters for over a year. This may be an important factor in the final + result. + </p> + <p> + Yet even this is not enough, for, ultimately, it is the judge's charge to + the jury which is going to guide their deliberations and, in large + measure, determine their verdict. The lawyers for the defence, therefore, + prepare long statements of what they either believe or pretend to believe + to be the law. These statements embrace all the legal propositions, good + or bad, favorable to their side of the case. If they can induce the judge + to follow these so much the better for their client, for even if they are + not law it makes no difference, since the State has no appeal from an + acquittal in a criminal case, no matter how much the judge has erred. In + the same way, but not in quite the same fashion, the district attorney + prepares "requests to charge," but his desire for favorable instructions + should be, and generally is, curbed by the consideration that if the judge + makes any mistake in the law and the defendant is convicted he can appeal + and upset the case. Of course, some prosecutors are so anxious to convict + that they will wheedle or deceive a judge into giving charges which are + not only most inimical to the prisoner, but so utterly unsound that a + reversal is sure to follow; but when one of these professional bloodhounds + is baying upon the trail all he thinks of is a conviction—that is + all he wants, all the public will remember; to him will be the glory; and + when the case is finally reversed he will probably be out of office. These + "requests" cover pages, and touch upon every phase of law applicable or + inapplicable to the case. Frequently they number as many as fifty, + sometimes many more. It is "up to" the judge to decide "off the bat" which + are right and which are wrong. If he guesses that the right one is wrong + or the wrong one right the defendant gets a new trial. + </p> + <p> + <a name="link2HCH0003" id="link2HCH0003"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + CHAPTER III. Sensationalism and Jury Trials + </h2> + <p> + For the past twenty-five years we have heard the cry upon all sides that + the jury system is a failure, and to this general indictment is frequently + added the specification that the trials in our higher courts of criminal + justice are the scenes of grotesque buffoonery and merriment, where + cynical juries recklessly disregard their oaths and where morbid crowds + flock to satisfy the cravings of their imaginations for details of blood + and sexuality. + </p> + <p> + It is unnecessary to question the honesty of those who thus picture the + administration of criminal justice in America. Indeed, thus it probably + appears to them. But before such an arraignment of present conditions in a + highly civilized and progressive nation is accepted as final, it is well + to examine into its inherent probabilities and test it by what we know of + the actual facts. + </p> + <p> + In the first place, it should be remembered that the jury was instituted + and designed to protect the English freeman from tyranny upon the part of + the crown. Judges were, and sometimes still are, the creatures of a ruler + or unduly subject to his influence. And that ruler neither was, nor is, + always the head of the nation; but just as in the days of the Normans he + might have been a powerful earl whose influence could make or unmake a + judge, so to-day he may be none the less a ruler if he exists in the + person of a political boss who has created the judge before whom his + political enemy is to be tried. The writer has seen more than one judge + openly striving to influence a jury to convict or to acquit a prisoner at + the dictation of such a boss, who, not content to issue his commands from + behind the arras, came to the courtroom and ascended the bench to see that + they were obeyed. Usually the jury indignantly resented such interference + and administered a well-merited rebuke by acting directly contrary to the + clearly indicated wishes of the judge. + </p> + <p> + But while admitting its theoretic value as a bulwark of liberty, the + modern assailant of the jury brushes the consideration aside by asserting + that the system has "broken down" and "degenerated into a farce." + </p> + <p> + Let us now see how much of a farce it is. If four times out of five a + judge rendered decisions that met with general approval, he would probably + be accounted a highly satisfactory judge. Now, out of every one hundred + indicted prisoners brought to the bar for trial, probably fifteen ought to + be acquitted if prosecuted impartially and in accordance with the strict + rules of evidence. In the year 1910 the juries of New York County + convicted in sixty-six per cent of the cases before them. If we are to + test fairly the efficiency of the system, we must deduct from the + thirty-four acquittals remaining the fifteen acquittals which were + justifiable. By so doing we shall find that in the year 1910 the New York + County juries did the correct thing in about eighty-one cases out of every + hundred. This is a high percentage of efficiency.* Is it likely that any + judge would have done much better? + </p> +<pre xml:space="preserve"> + * The following table gives the yearly percentages of + convictions and acquittals by verdict in New York County since + 1901: + + NUMBER NUMBER + YEAR CONVICTIONS ACQUITTALS CONVICTIONS ACQUITTALS + BY VERDICT BY VERDICT PER CENT PER CENT + + 1901........551...........344..........62............38 + 1902........419...........349..........55............45 + 1903........485...........307..........61............39 + 1904........495...........357..........58............42 + 1905........489...........299..........62............38 + 1906........464...........246..........65............35 + 1907........582...........264..........68............32 + 1908........649...........301..........62............38 + 1909........463...........235..........66............34 + 1910........649...........325..........66............34 +</pre> + <p> + After a rather long experience as a prosecutor, in which he conducted many + hundreds of criminal cases, the writer believes that the ordinary New York + City jury finds a correct general verdict four times out of five. As to + talesmen in other localities he has no knowledge or reliable information. + It seems hardly possible, however, that juries in other parts of the + United States could be more heterogeneous or less intelligent than those + before which he formed his conclusions. Of course, jury judgments are + sometimes flagrantly wrong. But there are many verdicts popularly regarded + as examples of lawlessness which, if examined calmly and solely from the + point of view of the evidence, would be found to be the reasonable acts of + honest and intelligent juries. + </p> + <p> + For example, the acquittal of Thaw upon the ground of insanity is usually + spoken of as an illustration of sentimentality on the part of jurymen, and + of their willingness to be swayed by their emotions where a woman is + involved. But few clearer cases of insanity have been established in a + court of justice. The district attorney's own experts had pronounced the + defendant a hopeless paranoiac; the prosecutor had, at a previous trial, + openly declared the same to be his own opinion; and the evidence was + convincing. At the time it was rendered, the verdict was accepted as a + foregone conclusion. To-day the case is commonly cited as proof of the + gullibility of juries and of the impossibility of convicting a rich man of + a crime. + </p> + <p> + There will always be some persons who think that every defendant should be + convicted and feel aggrieved if he is turned out by the jury. Yet they + entirely forget, in their displeasure at the acquittal of a man whom they + instinctively "know" to be guilty, that the jury probably had exactly the + same impression, but were obliged under their oaths to acquit because of + an insufficiency of evidence. + </p> + <p> + An excellent illustration of such a case is that of Nan Patterson. She is + commonly supposed to have attended, upon the night of her acquittal, a + banquet at which one of her lawyers toasted her as "the guilty girl who + beat the case." Whether she was guilty or not, there is a general + impression that she murdered Caesar Young. Yet the writer, who was present + throughout the trial, felt at the conclusion of the case that there was a + fairly reasonable doubt of her guilt. Even so, the jury disagreed, + although the case is usually referred to as an acquittal and a monument to + the sentimentality of juries. + </p> + <p> + The acquittal of Roland B. Molineux is also recalled as a case where a + man, previously proved guilty, managed to escape. The writer, who was then + an assistant district attorney, made a careful study of the evidence at + the time, and feels confident that the great majority of the legal + profession would agree with him in the opinion that the Court of Appeals + had no choice but to reverse the defendant's first conviction on account + of the most prejudicial error committed at the trial, and that the jury + who acquitted him upon the second occasion had equally no choice when the + case was presented with a proper regard to the rules of evidence and + procedure. Indeed, on the second trial the evidence pointed almost as + convincingly toward another person as toward the defendant. + </p> + <p> + I have mentioned the Patterson, Thaw, and Molineux trials because they are + cases commonly referred to in support of the general contention that the + jury system is a failure. But I am inclined to believe that any single + judge, bench of judges, or board of commissioners would have reached the + same result as the juries did in these instances. + </p> + <p> + It is quite true that juries, for rather obvious reasons, are more apt to + acquit in murder cases than in others. In the first place, save where the + defendant obviously belongs to the vicious criminal class, a jury finds it + somewhat difficult to believe, unless overwhelming motive be shown, that + he could have deliberately taken another's life. Thus, with sound reason, + they give great weight to the plea of self-defence which the accused urges + upon them. He is generally the only witness. His story has to be disproved + by circumstantial evidence, if indeed there be any. Frequently it stands + alone as the only account of the homicide. Thus murder cases are almost + always weaker than others, since the chief witness has been removed by + death; while at the same time the nature of the punishment leads the jury + unconsciously to require a higher degree of proof than in cases where the + consequences are less abhorrent. All this is quite natural and inevitable. + Moreover, homicide cases as a rule are better defended than others, a fact + which undoubtedly affects the result. These considerations apply to all + trials for homicide, notorious or otherwise, the results of which in New + York County for ten years are set forth in the following table: + </p> +<pre xml:space="preserve"> + YEAR CONVICTIONS ACQUITTALS CONVICTIONS ACQUITTALS + PER CENT PER CENT + 1901.........25............17..........60............40 + 1902.........31............11..........74............26 + 1903.........42.............8..........84............16 + 1904.........37............14..........72............28 + 1905.........32............13..........71............29 + 1906.........53............22..........70............30 + 1907.........39............10..........78............22 + 1908.........35............17..........67............33 + 1909.........43............11..........80............20 + 1910.........45............15..........75............25 + TOTAL.......382...........138......Av. 74........Av. 27 +</pre> + <p> + A popular impression exists at the present time that a man convicted of + murder has but to appeal his case on some technical ground in order to + secure a reversal, and thus escape the consequences of his crime. How wide + of the mark such a belief may be, at least so far as one locality is + concerned, is shown by the fact that in New York State, from 1887 to 1907, + there were 169 decisions by the Court of Appeals on appeals from + convictions of murder in the first degree, out of which there were only + twenty-nine reversals. Seven of these defendants were again immediately + tried and convicted, and a second time appealed, upon which occasion only + two were successful, while five had their convictions promptly affirmed. + Thus, so far as the ultimate triumph of justice is concerned, out of 169 + cases in that period the appellants finally succeeded in twenty-two only. + </p> + <p> + Since 1902 there have been twenty-seven decisions rendered in first-degree + murder cases by the Court of Appeals, with only three reversals.* (* + Written in 1909.) The more important convictions throughout the State are + affirmed with great regularity. + </p> + <p> + As to the conduct of such cases, the writer's own experience is that a + murder trial is the most solemn proceeding known to the law. He has + prosecuted at least fifty men for murder, and convicted more than he cares + to remember. Such trials are invariably dignified and deliberate so far as + the conduct of the legal side of the case is concerned. No judge, however + unqualified for the bench; no prosecutor, however light-minded; no lawyer + however callous, fails to feel the serious nature of the transaction or to + be affected strongly by the fact that he is dealing with life, and death. + A prosecutor who openly laughed or sneered at a prisoner charged with + murder would severely injure his cause. The jury, naturally, are + overwhelmed with the gravity of the occasion and the responsibility + resting upon them. + </p> + <p> + In the Patterson, Thaw, and Molineux cases the evidence, unfortunately, + dealt with unpleasant subjects and at times was revolting, but there was a + quiet propriety in the way in which the witnesses were examined that + rendered it as inoffensive as it could possibly be. Outside the court-room + the vulgar crowd may have spat and sworn; and inside no doubt there were + degenerate men and women who eagerly strained their ears to catch every + item of depravity. But the throngs that filled the courtroom were quiet + and well ordered, and the justified interested outnumbered the morbid. + </p> + <p> + The writer deprecates the impulse which leads judges, from a feeling that + justice should be publicly administered, to throw wide the doors of every + courtroom, irrespective of the subject-matter of the trial. We need have + no fear of Star Chamber proceedings in America, and no harm would be done + by excluding from the courtroom all persons who have no business there. + </p> + <p> + It is, of course, not unnatural that in the course of a trial occupying + weeks or months the tension should occasionally be relieved by a gleam of + humor. After one has been busy trying a case for a couple of weeks one + goes to court and sets to work in much the same frame of mind in which one + would attack any other business. But the fact that a small boy sometimes + sees something funny at a funeral, or a bevy of giggling shop-girls may be + sitting in the gallery at a fashionable wedding, argues little in respect + to the solemnity or beauty of the service itself. + </p> + <p> + What are the celebrated cases—the trials that attract the attention + and interest of the public? In the first place, they are the very cases + which contain those elements most likely to arouse the sympathy and + prejudices of a jury—where a girl has taken the life of her supposed + seducer, or a husband has avenged his wife's alleged dishonor. Such cases + arouse the public imagination for the very reason that every man realizes + that there are two sides to every genuine tragedy of this character—the + legal and the natural. Thus, aside from any other consideration, they are + the obvious instances where justice is most likely to go astray. + </p> + <p> + In the next place, the defence is usually in the hands of counsel of + adroitness and ability; for even if the prisoner has no money to pay his + lawyer, the latter is willing to take the case for the advertising he will + get out of it. + </p> + <p> + Third, a trial which lasts for a long time naturally results in creating + in the jury's mind an exaggerated idea of the prisoner's rights, namely, + the presumption of innocence and the benefit of the reasonable doubt. For + every time that the jury will hear these phrases once in a petty larceny + or forgery case, they will hear them in a lengthy murder trial a hundred + times. They see the defendant day after day, and the relation becomes more + personal. Their responsibility seems greater toward him than toward the + defendant in petty cases. + </p> + <p> + Last, as previously suggested, murder cases are apt to be inherently + weaker than others, and more often depend upon circumstantial evidence. + </p> + <p> + The results of such cases are therefore an inadequate test of the + efficiency of a jury system. They are, in fact, the precise cases where, + if at all, the jury might be expected to go wrong. + </p> + <p> + But juries would go astray far less frequently even in such trials were it + not for that most vicious factor in the administration of criminal justice—the + "yellow" journal. For the impression that public trials are the scenes of + buffoonery and brutality is due to the manner in which these trials are + exploited by the sensational papers. + </p> + <p> + The instant that a sensational homicide occurs, the aim of the editors of + these papers is—not to see that a swift and sure retribution is + visited upon the guilty, or that a prompt and unqualified vindication is + accorded to the innocent, but, on the contrary, so to handle the matter + that as many highly colored "stories" as possible can be run about it. + </p> + <p> + Thus, where the case is perfectly clear against the prisoner, the "yellow" + press seeks to bolster up the defence and really to justify the killing by + a thinly disguised appeal to the readers' passions. Not infrequently, + while the editorial page is mourning the prevalence of homicide, the front + columns are bristling with sensational accounts of the home-coming of the + injured husband, the heartbreaking confession of the weak and erring wife, + and the sneering nonchalance of the seducer, until a public sentiment is + created which, if it outwardly deprecates the invocation of the unwritten + law, secretly avows that it would have done the same thing in the + prisoner's place. + </p> + <p> + This antecedent public sentiment is fostered from day to day until it has + unconsciously permeated every corner of the community. The juryman will + swear that he is unaffected by what he has read, but unknown to himself + there are already tiny furrows in his brain along which the appeal of the + defence will run. + </p> + <p> + In view of this deliberate perversion of truth and morals, the euphemisms + of a hard-put defendant's counsel when he pictures a chorus girl as an + angel and a coarse bounder as a St. George seem innocent indeed. It is not + within the rail of the courtroom but within the pages of these sensational + journals that justice is made a farce. The phrase "contempt of court" has + ceased practically to have any significance whatever. The front pages teem + with caricatures of the judge upon the bench, of the individual jurors + with exaggerated heads upon impossible bodies, of the lawyers ranting and + bellowing, juxtaposed with sketches of the defendant praying beside his + prison cot or firing the fatal shot in obedience to a message borne by an + angel from on high. + </p> + <p> + How long would the "unwritten law" play any part in the administration of + criminal justice if every paper in the land united in demanding, not only + in its editorials, but upon its front pages, that private vengeance must + cease? Let the "yellow" newspapers confine themselves simply to an + accurate report of the evidence at the trial, with a reiterated insistence + that the law must take its course. Let them stop pandering to those morbid + tastes which they have themselves created. Let the "Sympathy Sisters," the + photographer, and the special artist be excluded from the court-room. When + these things are done, we shall have the same high standard of efficiency + upon the part of the jury in great murder trials that we have in other + cases. + </p> + <p> + <a name="link2HCH0004" id="link2HCH0004"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + CHAPTER IV. Why Do Men Kill? + </h2> + <p> + When a shrewd but genial editor called me up on the telephone and asked me + how I should like to write an article on the above lurid title, I laughed + in his—I mean the telephone's face. + </p> + <p> + "My dear fellow!" I said (I should only have the nerve to call him that + over a wire). "It would ruin me! How could I keep my self-respect and + write that kind of sensational stuff—Why do men kill? Why do men + eat? Why do men drink? Why do men love? Why do men—" + </p> + <p> + "Look here!" he interrupted. "I want to know why one man kills another + man. If we knew why, maybe we could stop it, couldn't we? We could try to, + anyhow. And you know something about it. You've prosecuted nearly a + hundred men for murder. Get the facts—that's what I want. Cut the + adjectives and morality, and get down to the reasons. Anything + particularly undignified about that?" And he rang off. + </p> + <p> + I arose and walked over to the bookcase on which reposed several shelves + of "minutes" of criminal trials. They were dusty and depressing. + Practically every one of them was a memento of some poor devil gone to + prison or to the chair. Where were they now—and why did they kill—yes, + why DID they? + </p> + <p> + I glanced along the red-labeled backs. + </p> + <p> + "People versus Candido." Now why did HE kill? I remembered the Italian + perfectly. He killed his friend because the latter had been too attentive + to his wife. "People versus Higgins." Why did he? That was a drunken row + on a New Year's Eve within the sound of Trinity chimes. "People versus + Sterling Greene." Yes, he was a colored man—I recalled the evidence—drink + and a "yellow gal." "People versus Mock Duck"-a Chinese feud between the + On Leong Tong and the Hip Sing Tong—a vendetta, first one Chink shot + and then another, turn and turn about, running back through Mott Street, + New York, Boston, San Francisco, until the origin of the quarrel was lost + in the dim Celestial mists across the sea. Out of the first four cases the + following motives: Jealousy—1. Drink—1. Drink and jealousy—1. + Scattering (how can you term a "Tong" row?)—1. + </p> + <p> + I began to get interested. Supposing I dug out all the homicide cases I + had ever tried, what would the result show as to motive for the killing? + Would drink and women account for seventy-five per cent? Mentally I ran my + eye back over nearly ten years. What OTHER motives had the defendants at + the bar had? There was Laudiero—an Italian "Camorrista"—he had + killed simply for the distinction it gave him among his countrymen and the + satisfaction he felt at being known as a "bad" man—a "capo maestra." + There was Joseph Ferrone—pure jealousy again. Hendry—animal + hate intensified by drink. Yoscow—a deliberate murder, planned in + advance by several of a gang, to get rid of a young bully who had made + himself generally unpleasant. There was Childs, who had killed, as he + claimed, in self-defence because he was set upon and assaulted by rival + runners from another seaman's boarding house. Really it began to look as + if men killed for a lot of reasons. + </p> + <p> + One consideration at once suggested itself. How about the killings where + the murderer is never caught? The prisoners tried for murder are only a + mere fraction of those who commit murder. True, and the more deliberate + the murder, the greater, unfortunately, the chance of the villain getting + away. Still, in cases merely of suspected murder, or in cases where no + evidence is taken, it would be manifestly unfair arbitrarily to assign + motives for the deed, if deed it was. No, one must start with the + assumption, sufficiently accurate under all the circumstances, that the + killings in which the killer is caught are fairly representative of + killings as a whole. + </p> + <p> + All crimes naturally tend to divide themselves into two classes—crimes + against property and crimes against the person, each class having an + entirely different assortment of reasons for their commission. + </p> + <p> + There can be practically but one motive for theft, burglary, or robbery. + It is, of course, conceivable that such crimes might be perpetrated for + revenge—to deprive the victim of some highly prized possession. But + in the main there is only one object—unlawful gain. So, too, + blackmail, extortion, and kidnapping are all the products of the desire + for "easy money." But, unquestionably, this is the reason for murder in + comparatively few cases. + </p> + <p> + The usual motive for crimes against the person—assault, + manslaughter, mayhem, murder, etc.—is the desire to punish, or be + avenged upon another by inflicting personal pain upon him or by depriving + him of his most valuable asset—life. And this desire for retaliation + or revenge generally grows out of a recent humiliation received at the + hands of the other person, a real or fancied wrong to oneself, a member of + one's family, or one's property. But this was too easy an answer to my + friend's question. He wanted and deserved more than that, and I set out to + give it to him. + </p> + <p> + My first inquiry was in the direction of original sources. I sought out + the man in the district attorney's office who had had the widest general + experience and put the question to him. This was Mr. Charles C. Nott, Jr., + (now judge of the General Sessions) who had been trying murder cases for + nearly ten years. It so happened that he had kept a complete record of all + of them and this he courteously placed at my disposal. The list contains + sixty-two cases, and the defendants were of divers races. These homicides + included seventeen committed in cold blood (about twenty-five per cent, an + extraordinary percentage) from varying motives, as follows: One defendant + (white) murdered his colored mistress simply to get rid of her; another + killed out of revenge because the deceased had "licked" him several times + before; another, having quarrelled with his friend over a glass of soda + water, later on returned and precipitated a quarrel by striking him, in + the course of which he killed him; another because the deceased had + induced his wife to desert him; another lay in wait for his victim and + killed him without the motive ever being ascertained; one man killed his + brother to get a sum of money, and another because his brother would not + give him money; another because he believed the deceased had betrayed the + Armenian cause to the Turks; another because he wished to get the deceased + out of the way in order to marry his wife; and another because deceased + had knocked him down the day before. One man had killed a girl who had + ridiculed him; and one a girl who had refused to marry him; another had + killed his daughter because she could no longer live in the house with + him; one, an informer, had been the victim of a Black Hand vendetta; and + the last had poisoned his wife for the insurance money in order to go off + with another woman. There were two cases of infanticide, one in which a + woman threw her baby into the lake in Central Park, and another in which + she gave her baby poison. Besides these murders, five homicides had been + committed in the course of perpetrating other crimes, including burglary + and robbery. + </p> + <p> + Passing over three cases of culpable negligence resulting in death, we + come to thirty-seven homicides during quarrels, some of which might have + been technically classified as murders, but which being committed "in the + heat of passion," in practically every instance resulted in a verdict of + manslaughter. The quarrels often arose over the most trifling matters. One + was a dispute over a broom, another over a horse blanket, another over + food, another over a twenty-five cent bet in a pool game, another over a + loan of fifty cents, another over ten cents in a crap game, and still + another over one dollar and thirty cents in a crap game. Five men were + killed in drunken rows which had no immediate cause except the desire to + "start something." One man killed another because he had not prevented the + theft of some lumber, one (a policeman) because the deceased would not + "move on" when ordered, one because a bartender refused to serve him with + any more drinks, and one (a bartender) because the deceased insisted that + he should serve more drinks. One man was killed in a quarrel over + politics, one in a fuss over some beer, one in a card game, one trying to + rob a fruit-stand, one in a dispute with a ship's officer, one in a dance + hall row. One man killed another whom he found with his wife, and one wife + killed her husband for a similar cause; another wife killed her husband + simply because she "could not stand him," and one because he was fighting + with their son. One man was killed by another who was trying to collect + from him a debt of six hundred dollars. One quarrel resulting in homicide + arose because the defendant had pointed out deceased to the police, + another because the participants called each other names, and another + arose out of an alleged seduction. Three homicides grew out of street rows + originating in various ways. One man killed another who was fighting with + a friend of the first, a janitor was killed in a "continuous row" which + had been going on for a long time, and one homicide was committed for + "nothing in particular." + </p> + <p> + This astonishing olla podrida of reasons for depriving men of their lives + leaves one stunned and confused. Is it possible to deduce any order out of + such homicidal chaos? Still, an attempt to classify such diverse causes + enables one to reach certain general conclusions. Out of the sixty-two + homicides there were seventeen cold-blooded murders, with deliberation and + premeditation (in such cases the reasons for the killing are by comparison + unimportant); three homicides due to negligence, five committed while + perpetrating a felony; thirty-seven manslaughters, due in sixteen cases to + quarrels (simply), thirteen to drink, four to disputes over money, three + to women, one to race antagonism. + </p> + <p> + Reclassifying the seventeen murders according to causes, we have: Six due + to women, four to quarrels, five to other causes, and two infanticides. + Added to the manslaughters previously classified, we have a total of + sixty-two killings, due in twenty cases to quarrels, thirteen to drink, + nine to women, four to disputes over money, one to race antagonism, five + to general causes, three to negligence, two infanticides, five during the + commission of other crimes. + </p> + <p> + The significant features of this analysis are that about seventy-five per + cent of the killings were due to quarrels over small sums or other + matters, drink and women; over fifty per cent to drink and petty quarrels; + and about thirty per cent to quarrels simply. The trifling character of + the causes of the quarrels themselves is shown by the fact that in three + of these particular cases, tried in a single week, the total amount + involved in the disputes was only eighty-five cents. That is about + twenty-eight and one-half cents a life. Many a murder in a barroom grows + out of an argument over whether a glass of beer has, or has not, been paid + for, or whose turn it is to treat; and more than one man has been killed + in New York City because he was too clumsy to avoid stepping on somebody's + feet or bumping into another man on the sidewalk. + </p> + <p> + The writer sincerely regrets that his own lack of initiative prevented his + keeping a diary during his seven years's service as a prosecutor. It is + now impossible for him to refresh his memory as to the causes of all the + various homicides which he prosecuted, but where he can do so the evidence + points to a conclusion similar to that deduced from Mr. Nott's record. The + proximate causes were trifling—the underlying cause was the lack of + civilization of the defendant—his brutality and absence of + self-control. + </p> + <p> + With a view to ascertaining conditions in general throughout the United + States, I asked a clipping agency to send me the first one hundred notices + of actual homicides which should come under its scissors. The immediate + result of this experiment was that I received forty-five notices + supposedly relating to murders and homicides, which on closer examination + proved to be anything but what I wanted for the purpose in view. With only + one or two exceptions they related not to deaths from violence reported as + having occurred on any particular day, but to notices of convictions, + acquittals, indictments, pleas of guilty and not guilty, rewards offered, + sentences, executions, "suspicions" of the police, "mysteries revived," + and even editorials on capital punishment. + </p> + <p> + A letter of protest brought in due course, but much more slowly, one + hundred and seven clippings, which yielded the following reasons why men + killed: There were four suicides, three lynchings, one infanticide, three + murders while resisting arrest, three criminals killed while resisting + arrest, two men killed in riots, eight murders in the course of committing + burglaries and robberies, seven persons killed in vendettas, three grace + murders, and twenty-four killed in quarrels over petty causes; there were + twelve murders from jealousy, followed in four instances by suicide on the + part of the murderer; six killings justifiable on the "higher law" theory + only, but involving great provocation, and thirty deliberate slaughters. + The last clipping recounted how an irate husband pounded a "masher" so + hard that he died. Leaving out the suicides and those killed while + resisting arrest, there remain one hundred persons murdered, not only by + persons insane or wild from the effects of liquor, but by robbers and + burglars, brutes, bullies, and thugs, husbands, wives, and lovers, and by + a vast number of people who not only destroyed their enemies in the fury + of anger, but in many instances openly went out gunning for them, lay in + wait for them in the dark, or hacked off their heads with hatchets while + they slept. + </p> + <p> + It is, indeed, a sanguinary record, from which little consolation is to be + derived, and the only comfort is the probability that the accounts of the + first one hundred murders anywhere in Europe would undoubtedly be just as + blood-curdling. I had simply asked the clipping bureau to send me one + hundred horrors and I had got them. They did not indicate anything at all + so far as the ratio of homicide to population was concerned or as to the + bloodthirstiness of Americans in general. They merely showed what + despicable things murders were. + </p> + <p> + As to the reasons for the killings, they were as diverse as those which + Mr. Nott had prosecuted, save that there were more of an ultra + blood-thirsty character, due probably to the fact that the young lady who + did the clipping wanted (after one rebuff) to make sure that I was + satisfied with the goods she sent me. And this suggests a reason for the + large percentage of cold-blooded killings prosecuted by my friend—namely, + that Mr. Nott being the most astute prosecutor available, the district + attorney, whenever the latter had a particularly atrocious case, sent it + to him in order that the defendant might surely get his full deserts. + </p> + <p> + The reasons for these homicides were of every sort; police officers and + citizens were shot and killed by criminals trying to make "get-aways," and + by negroes and others "running amuck"; despondent young men shot their + unresponsive sweethearts and then either blew out their own brains of + pretended to try to do so; two stable-men had a duel with revolvers, and + each killed the other; several men were shot for being too attentive to + young women residing in the same hotels; an Italian, whose wife had left + him and gone to her mother, went to the house and killed her, her sister, + her sister's husband, his mother-in-law, two children, and finally + himself; the "Gopher Gang" started a riot at a "benefit" dance given to a + widow and killed a man, after which they fled to the woods and fired from + cover upon the police until eighteen were overpowered and arrested; a + young girl and her fiance, sitting in the parlor, planning their + honeymoon, were unexpectedly interrupted by a rejected suitor of the + girl's, who shot and killed both of them; an Italian who peeked into a + bedroom, just for fun, afterward rushed in and cut off two persons' heads + with an ax—one of them was his wife; a gang of white ruffians shot + and then burned a negro family of three peacefully working in the fields; + a man who went to the front door to see who had tapped on his window was + shot through the heart; a striker was killed by a twenty-five-pound piece + of flagging thrown from a roof; there was a gun fight of colored men at + Madison, Wisconsin, at which three were shot; a gang of negro ruffians + killed and mutilated a white woman (with a baby in her arms) and her + husband; masked robbers called a man to his barn at Winston-Salem, North + Carolina, and cut his throat; an Italian was found with his head split in + two by a butcher's cleaver; a negress in Lafayette, Louisiana, killed a + family of six with a hatchet; a negro farmer and his two daughters were + lynched and their bodies burned by four white men (who will probably also + be lynched if caught); a girl of eleven shot her girl friend of about the + same age and killed her; several persons were found stabbed to death; a + plumber killed his brother (also a plumber) for saying that he stole two + dollars; a murderer was shot by a posse of militia in a cornfield; a card + game at Bayonne, New Jersey, resulted in a revolver fight on the street in + which one of the players was killed; bank robbers killed a cashier at + twelve o'clock noon; a jealous lover in Butte, Montana, shot and killed + his sweetheart, her father, and mother; a deputy sheriff was murdered; + burglars killed several persons in the course of their business; + Kokolosski, a Pole, kicked his child to death; and a couple of dozen + people were incidentally shot, stabbed, or otherwise disposed of in the + course of quarrels over the most trivial matters. In almost no case was + there what an intelligent, civilized man would regard as an adequate + reason for the homicide. They killed because they felt like killing, and + yielded to the impulse, whatever its immediate origin. + </p> + <p> + This conclusion is abundantly supported by the figures of the 'Chicago + Tribune' for the seven years ending in 1900, when carefully analyzed. + During this period 62,812 homicides were recorded. Of these there were + 17,120 of which the causes were unknown and 3,204 committed while making a + justifiable arrest, in self-defence, or by the insane, so that there were + in fact only 42,488 felonious homicides the causes of which can be + definitely alleged. The ratio of the "quarrels" to this net total is about + seventy-five per cent. There were, in addition, 2,848 homicides due to + liquor—that is, without cause. Thus eighty per cent of all the + murders and manslaughters in the United States for a period of seven years + were for no reason at all or from mere anger or habit, arising out of + causes often of the most trifling character. + </p> + <p> + Nor are the conclusions changed by the figures of the years between 1904 + and 1909. + </p> + <p> + During this period 61,786 homicides were recorded. Of these there were + 9,302 of which the causes were not known, and 2,480 committed while making + a justifiable arrest, in self-defence, or by the insane, leaving 50,004 + cases of felonious homicides of known causes. Of these homicides, 33,476 + were due to quarrels and 4,799 to liquor, a total of 38,275 out of the + 50,004 cases of known causes being traceable in this, another seven years, + to motives the most casual. + </p> + <p> + It would be stupid to allege that the reason men killed was because they + had been stepped on or had been deprived of a glass of beer. The cause + lies deeper than that. It rests in the willingness or desire of the + murderer to kill at all. Among barbaric or savage peoples this is natural; + but among civilized nations it is hardly to be anticipated. If the negro + who shoots his fellow because he believes himself to have been cheated out + of ten cents were really civilized, he would either not have the impulse + to kill or, having the impulse to kill, would have sufficient power of + self-control to refrain from doing so. This power of self-control may be + natural or acquired, and it may or may not be possessed by the man who + feels a desire to commit a homicide. The fact to be observed—the + interesting and, broadly speaking, the astonishing fact—is that + among a people like ourselves anybody should have a desire to kill. It is + even more astonishing than that the impulse should be yielded to so often + if it comes. + </p> + <p> + This, then, is the real reason why men kill—because it is inherent + in their state of mind, it is part of their mental and physical make-up—they + are ready to kill, they want to kill, they are the kind of men who do + kill. This is the result of their heredity, environment, educational and + religious training, or the absence of it. How many readers of this paper + have ever experienced an actual desire to kill another human being? + Probably not one hundredth of one per cent. They belong to the class of + people who either never have such an impulse, or at any rate have been + taught to keep such impulses under control. Hence it is futile to try to + explain that some men kill for a trifling sum of money, some because they + feel insulted, others because of political or labor disputes, or because + they do not like their food. Any one of these may be the match that sets + off the gunpowder, but the real cause of the killing is the fact that the + gunpowder is there, lying around loose, and ready to be touched off. What + engenders this gunpowder state of mind would make a valuable sociological + study, but it may well be that a seemingly inconsequential fact may so + embitter a boy or man toward life or the human race in general that in + time he "sees red" and goes through the world looking for trouble. Any + cause that makes for crime and depravity makes for murder as well. The + little boy who is driven out of the tenement onto the street, and in turn + off the street by a policeman, until, finding no wholesome place to play, + he joins a "gang" and begins an incipient career of crime, may end in the + "death house." + </p> + <p> + The table on the opposite page gives the figures collected by the 'Chicago + Tribune' for the years from 1881 to 1910. + </p> + <p> + In view of the foregoing it may seem paradoxical for the writer to state + that he questions the alleged unusual tendency to commit murder on the + part of citizens of the United States. Yet of one fact he is absolutely + convinced—namely, that homicide has substantially decreased in the + last fifteen years. Even according to the figures collected by the + 'Chicago Tribune', there were but 8,975 homicides in 1910 as compared with + 10,500 in 1895, and 10,652 in 1896. Meantime the population of our country + has been leaping onward. + </p> +<pre xml:space="preserve"> + NUMBER OF MURDERS AND HOMICIDES IN THE UNITED STATES EACH + YEAR SINCE 1891, COMPARED WITH THE POPULATION + + NUMBER OF NUMBER OF + MURDERS AND ESTIMATED MURDERS AND + YEAR HOMICIDES IN POPULATION HOMICIDES + THE UNITED OF THE FOR EACH + STATES UNITED STATES MILLION OF + PEOPLE + + 1881......1,266..........51,316,000..........24.7 + + 1882......1.467..........—————..........27.9 + + 1883......1,697..........—————..........31.6 + + 1884......1,465..........—————..........26.7 + + 1885......1,808..........56,148,000..........32.2 + + 1886......1,499..........—————..........26.1 + + 1887......2,335..........—————..........39.8 + + 1888......2,184..........————-...........36.4 + + 1889......3,567..........————-...........58.0 + + 1890......4,290.........62,622,250...........68.5 + + 1891......5,906..........————-...........92.4 + + 1892......6,791..........————-..........104.2 + + 1893......6,615..........————-..........99.5 + + 1894......9,800..........————-.........144.7 + + 1895.....10,500.........69,043,000.........152.2 + + 1896.....10,652..........————-.........151.3 + + 1897......9,520..........————-.........132.8 + + 1898......7,840..........————-.........107.2 + + 1899......6,225..........————-..........83.6 + + 1900......8,275.........75,994,575.........108.7 + + 1901......7,852.........77,754,000.........100.9 + + 1902......8,834.........79,117,000.........111.7 + + 1903......8,976..........————-.........112.0 + + 1904......8,482..........————-............... + + 1905......9,212..........————-............... + + 1906......9,350.........————-................ + + 1907......8,712..........————-............... + + 1908......8,952..........————-............... + + 1909......8,103..........————-............... + + 1910......8,975.........91,972,266...........97.5 + + Total......191,150 +</pre> + <p> + We are blood-thirsty enough, God knows, without making things out any + worse than they are. Our murder rate per 100,000 unquestionably exceeds + that of most of the countries of western Europe, but, as the saying is, + "there's a reason." If our homicide statistics related only to the white + population of even the second generation born in this country we should + find, I am convinced, that we are no more homicidal than France and + Belgium, and less so than Italy. It is to be expected that with our + Chinese, "greaser," and half-breed population in the West, our Black Belt + in the South, and our Sicilian and South Italian immigration in the North + and East, our murder rate should exceed those of the continental nations, + which are nothing if not well policed. + </p> + <p> + But of one thing we can be abundantly certain without any figures at all, + and that is that our present method of administering justice (less the + actions of juries than of judges)—the system taken as a whole—offers + no deterrent to the embryonic or professional criminal. The administration + of justice to-day is not the swift judgment of honest men upon a criminal + act, but a clever game between judge and lawyer, in which the action of + the jury is discounted entirely and the moves are made with a view to + checkmating justice, not in the trial courtroom, but before the appellate + tribunal two or three years later. + </p> + <p> + "My young feller," said a grizzled veteran of the criminal bar to me long + years ago, after our jury had gone out, "there's lots of things in this + game you ain't got on to yet. Do you think I care what this jury does? Not + one mite. I got a nice little error into the case the very first day—and + I've set back ever since. S'pose we are convicted? I'll get Jim here [the + prisoner] out on a certificate and it'll be two years before the Court of + Appeals will get around to the case. Meantime Jim'll be out makin' money + to pay me my fee—won't you, Jim? Then your witnesses, will be gone, + and nobody'll remember what on earth it's all about. You'll be down in + Wall Street practicing real law yourself, and the indictment will kick + around the office for a year or so, all covered with dust, and then some + day I'll get a friend of mine to come in quietly and move to dismiss. And + it'll be dismissed. Don't you worry! Why, a thousand other murders will + have been committed in this county by the time that happens. Bless your + soul! You can't go on tryin' the same man forever! Give the other fellers + a chance. You shake your head? Well, it's a fact. I've been doin' it for + forty years. You'll see." And I did. That may not be why men kill, but + perhaps indirectly it may have something to do with it. + </p> + <p> + <a name="link2HCH0005" id="link2HCH0005"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + CHAPTER V. Detectives and Others + </h2> + <p> + A Detective, according to the dictionaries, is one "whose occupation it is + to discover matters as to which information is desired, particularly + wrong-doers, and to obtain evidence to be used against them." A private + detective, by the same authority, is one "engaged unofficially in + obtaining secret information for or guarding the private interests of + those who employ him." The definition emphasizes the official character of + detectives in general as contrasted with those whose services may be + enlisted for hire by the individual citizen, but the distinction is of + little importance, since it is based arbitrarily upon the character of the + employer (whether the State or a private client) instead of upon the + nature of the employment itself, which is the only thing which is likely + to interest us about detectives at all. + </p> + <p> + The sanctified tradition that a detective was an agile person with a + variety of side-whiskers no longer obtains even in light literature, and + the most imaginative of us is frankly aware of the fact that a detective + is just a common man earning (or pretending to earn) a common living by + common and obvious means. Yet in spite of ourselves we are accustomed to + attribute superhuman acuteness and a lightning-like rapidity of intellect + to this vague and romantic class of fellow-citizens. The ordinary work of + a detective, however, requires neither of these qualities. Honesty and + obedience are his chief requirements, and if he have intelligence as well, + so much the better, provided it be of the variety known as "horse" sense. + A genuine candidate for the job of Sherlock Holmes would find little + competition. In the first place, the usual work of a detective does not + demand any extraordinary powers of deduction at all. + </p> + <p> + Leaving out of consideration those who are merely private policemen (often + in uniform), and principally engaged in patrolling residential streets, + preserving order at fairs, race-tracks, and political meetings, or in + breaking strikes and preventing riots, the largest part of the work for + which detectives are employed is not in the detection of crime and + criminals, but in simply watching people, following them, and reporting as + accurately as possible their movements. These functions are known in the + vernacular as spotting, locating, and trailing. It requires patience, some + powers of observation, and occasionally a little ingenuity. The real + detective under such circumstances is the man to whom they hand in their + reports. Yet much of the most dramatic and valuable work that is done + involves no acuteness at all, but simply a willingness to act as a spy and + to brave the dangers of being found out. + </p> + <p> + There is nothing more thrilling in the pages of modern history than the + story of the man (James McPartland) who uncovered the conspiracies of the + Molly McGuires. But the work of this man was that of a spy pure and + simple. + </p> + <p> + Another highly specialized class of detectives is that engaged in police + and banking work, who by experience (or even origin) have a wide and + intimate acquaintance with criminals of various sorts, and by their + familiarity with the latters' whereabouts, associates, work, and methods + are able to recognize and run down the perpetrators of particular crimes. + </p> + <p> + Thus, for example, there are men in the detective bureau of New York City + who know by name, and perhaps have a speaking acquaintance with, a large + number of the pick-pockets and burglars of the East Side. They know their + haunts and their ties of friendship or marriage. When any particular job + is pulled off they have a pretty shrewd idea of who is responsible for it + and lay their plans accordingly. If necessary, they run in the whole gang + and put each of them through a course of interrogation, accusation, and + browbeating until some one breaks down or makes a slip that involves him + in a tangle. These men are special policemen whose knowledge makes them + detectives by courtesy. But their work does not involve any particular + superiority or quickness of intellect—the quality which we are wont + to associate with the detection of crime. + </p> + <p> + Now, if the ordinary householder finds that his wife's necklace has + mysteriously disappeared, his first impulse is to send for a detective of + some sort or other. In general, he might just as well send for his + mother-in-law. Of course, the police can and will watch the pawnshops for + the missing baubles, but no crook who is not a fool is going to pawn a + whole necklace on the Bowery the very next day after it has been "lifted." + Or he can enlist a private detective who will question the servants and + perhaps go through their trunks, if they will let him. Either sort will + probably line up the inmates of the house for general scrutiny and try to + bully them separately into a confession. This may save the master a + disagreeable experience, but it is the simplest sort of police work and is + done vicariously for the taxpayer, just as the public garbage man relieves + you from the burden of taking out the ashes yourself, because he is paid + for it, not on account of your own incapacity or his superiority. + </p> + <p> + The real detective is the one who, taking up the solution of a crime or + other mystery, brings to bear upon it unusual powers of observation and + deduction and an exceptional resourcefulness in acting upon his + conclusions. Frankly, I have known very few such, although for some ten + years I have made use of a large number of so-called detectives in both + public and private matters. As I recall the long line of cases where these + men have rendered service of great value, almost every one resolves itself + into a successful piece of mere spying or trailing. Little ingenuity or + powers of reason were required. Of course, there are a thousand tricks + that an experienced man acquires as a matter of course, but which at first + sight seem almost like inspiration. I shall not forget my delight when + Jesse Blocher, who had been trailing Charles Foster Dodge through the + South (when the latter was wanted as the chief witness against Abe Hummel + on the charge of subornation of perjury of which he was finally + convicted), told me how he instantly located his man, without disclosing + his own identity, by unostentatiously leaving a note addressed to Dodge in + a bright-red envelope upon the office counter of the Hotel St. Charles in + New Orleans, where he knew his quarry to be staying. A few moments later + the clerk saw it, picked it up, and, as a matter of course, thrust it + promptly into box No. 420, thus involuntarily hanging, as it were, a red + lantern on Dodge's door. + </p> + <p> + There is no more reason to look for superiority of intelligence or mental + alertness among detectives of the ordinary class than there is to expect + it from clerks, stationary engineers, plumbers, or firemen. While + comparisons are invidious, I should be inclined to say that the ordinary + chauffeur was probably a brighter man than the average detective. This is + not to be taken in derogation of the latter, but as a compliment to the + former. There are a great many detectives of ambiguous training. I + remember in one case discovering that of the more important detectives + employed by a well-known private Anti-Criminal Society in New York, one + had been a street vender of frankfurters (otherwise yclept "hot dogs"), + and another the keeper of a bird store, which last perhaps qualified him + for the pursuit and capture of human game. There is a popular fiction that + lawyers are shrewd and capable, similar to the prevailing one that + detectives are astute and cunning. But, as the head of one of the biggest + agencies in the country remarked to me the other day, when discussing the + desirability of retaining local counsel in a distant city: "You know how + hard it is to find a lawyer that isn't a dead one." I feel confident that + he did not mean this in the sense that there was no good lawyer except a + dead lawyer. What my detective friend probably had in mind was that it was + difficult to find a lawyer who brought to bear on a new problem any + originality of thought or action. It is even harder to find a detective + who is not in this sense a dead one. I have the feeling, being a lawyer + myself, that it is harder to find a live detective than a live lawyer. + There are a few of both, however, if you know where to look for them. But + it is easy to fall into the hands of the Philistines. + </p> + <p> + The fundamental reason why it is so hard to form any just opinion of + detectives in general is that (except by their fruits) there is little + opportunity to discriminate between the able and the incapable. Now, the + more difficult and complicated his task the less likely is the sleuth + (honest or otherwise) to succeed. The chances are a good deal more than + even that he will never solve the mystery for which he is engaged. Thus at + the end of three months you will have only his reports and his bill—which + are poor comfort, to say the least. And yet he may have really worked + eighteen hours a day in your service. But a dishonest detective has only + to disappear (and take his ease for the same period) and send you his + reports and his bill—and you will have only his word for how much + work he has done and how much money he has spent. You are absolutely in + his power—unless you hire another detective to watch HIM. + Consequently there is no class in the world where the temptation to + dishonesty is greater than among detectives. This, too, is, I fancy, the + reason that the evidence of the police detective is received with so much + suspicion by jurymen—they know that the only way for him to retain + his position is by making a record and getting convictions, and hence they + are always looking for jobs and frame-ups. If a police detective doesn't + make arrests and send a man to jail every once in a while there is no + conclusive way for his superiors to be sure he isn't loafing. + </p> + <p> + There are a very large number of persons who go into the detective + business for the same reason that others enter the ministry—they + can't make a living at anything else, Provided he has squint eyes and a + dark complexion, almost anybody feels that he is qualified to unravel the + tangled threads of crime. The first resource of the superannuated or + discharged police detective is to start an agency. Of course, he may be + first class in spite of these disqualifications, but the presumption in + the first instance is that he is no longer alert or effective, and in the + second that in one way or another he is not honest. Agencies recruited + from deposed and other ex-policemen usually have all the faults of the + police without any of their virtues. There are many small agencies which + do reliable work, and there are a number of private detectives in all the + big cities who work single-handed and achieve excellent results. However, + if he expects to accomplish anything by hiring detectives, the layman or + lawyer must first make sure of his agency or his man. + </p> + <p> + One other feature of the detective business should not be overlooked. In + addition to charging for services not actually rendered and expenses not + actually incurred, there is in many cases a strong temptation to betray + the interests of the employer. A private detective may, and usually does, + become possessed of information even more valuable to the person who is + being watched than to the person to whom he owes his allegiance. + Unreliable rascals constantly sell out to the other side and play both + ends against the middle. In this they resemble some of the famous + diplomatic agents of history. And police detectives employed to run down + criminals and protect society have been known instead to act as stalls for + bank burglars and (for a consideration) to assist them to dispose of their + booty and protect them from arrest and capture. It has repeatedly happened + that reliable private detectives have discovered that the police employed + upon the same case have in reality been tipping off the criminals as to + what was being done and coaching them as to their conduct. Of course the + natural jealousy existing between official and unofficial agents of the + law leads to many unfounded accusations of this character, but, on the + other hand, the fact that much of the most effective police work is done + by employing professional criminals to secure information and act as + stool-pigeons often results in a definite understanding that the latter + shall be themselves protected in the quiet enjoyment of their labors. The + relations of the regular police to crime, however, and the general subject + of police graft have little place in a chapter of this character. + </p> + <p> + The first question that usually arises is whether a detective shall or + shall not be employed at all in any particular case. Usually the most + important thing is to find out what the real character, past, and + associations of some particular individual may be. Well-established + detective agencies with offices throughout the country are naturally in a + better position to acquire such information quickly than the private + individual or lawyer, since they are on the spot and have an organized + staff containing the right sort of men for the work. If the information + lies in your own city you can probably hire some one to get it or ferret + it out yourself quite as well, and much more cheaply, than by employing + their services. The leads are few and generally simple. The subject's past + employers and business associates, his landlords and landladies, his + friends and enemies, and his milkman must be run down and interrogated. + Perhaps his personal movements must be watched. Any intelligent fellow who + is out of a job will do this for you for about $5 a day and expenses. The + agencies usually charge from $6 to $8 (and up), and prefer two men to one, + as a matter of convenience and to make sure that the subject is fully + covered. If the suspect is on the move and trains or steamships must be + met, you have practically no choice but to employ a national agency. It + alone has the proper plant and equipment for the work. In an emergency, + organization counts more than anything else. Where time is of the essence, + the individual has no opportunity to hire his own men or start an + organization of his own. But if the matter is one where there is plenty of + leisure to act, you can usually do your own detective work better and + cheaper than any one else. + </p> + <p> + Regarding the work of the detective as a spy (which probably constitutes + seventy-five per cent of his employment to-day), few persons realize how + widely such services are being utilized. The insignificant old Irishwoman + who stumbles against you in the department store is possibly watching with + her cloudy but eagle eye for shoplifters. The tired-looking man on the + street-car may, in fact, be a professional "spotter." The stout youth with + the pince nez who is examining the wedding presents is perhaps a + central-office man. All this you know or may suspect. But you are not so + likely to be aware that the floor-walker himself is the agent of a rival + concern placed in the department store to keep track, not only of prices + but of whether or not the wholesalers are living up to their agreements in + regard to the furnishing of particular kinds of goods only to one house; + or that the conductor on the car is a paid detective of the company, whose + principal duty is not to collect fares, but to report the doings of the + unions; or that the gentleman who is accidentally introduced to you at the + wedding breakfast is employed by a board of directors to get a line on + your host's business associates and social companions. + </p> + <p> + In the great struggle between capital and labor, each side has expended + large sums of money in employing confederates to secure secret information + as to the plans and doings of the enemy. Almost every labor union has its + Judas, and less often a secretary to a capitalist is in the secret + employment of a labor union. The railroads must be kept informed of what + is going on, and, if necessary, they import a man from another part of the + country to join the local organization. Often such men, on account of + their force and intelligence, are elected to high office in the + brotherhoods whose secrets they are hired to betray. Practically every big + manufacturing plant in the United States has on its payrolls men acting as + engineers, foremen, or laborers who are drawing from $80 to $100 per month + as detectives either (1) to keep their employers informed as to the + workings of the labor unions, (2) to report to the directors the actual + conduct of the business by its salaried officers, superintendents, and + overseers, or (3) to ascertain and report to outside competing concerns + the methods and processes made use of, the materials utilized, and the + exact cost of production. + </p> + <p> + There are detectives among the chambermaids and bellboys in the hotels, + and also among the guests; there are detectives on the passenger lists and + in the cardrooms of the Atlantic liners; the colored porter on the private + car, the butler at your friend's house, the chorus girl on Broadway, the + clerk in the law office, the employee in the commercial agency, may all be + drawing pay in the interest of some one else, who may be either a + transportation company, a stock-broker, a rival financier, a yellow + newspaper, an injured or even an erring wife, a grievance committee, or a + competing concern; and the duties of these persons may and will range from + the theft of mailing lists, books, papers, and private letters, up to + genuine detective work requiring some real ability. + </p> + <p> + Detective work of the sort which involves the betrayal of confidences and + friendships naturally excites our aversion—yet in many cases the end + undoubtedly justifies the means employed, and often there is no other way + to avert disaster and prevent fiendish crimes. Sometimes, on the other + hand, the information sought is purely for mercenary or even less worthy + reasons, and those engaged in these undertakings range from rascals of the + lowest type to men who are ready to risk death for the cause which they + represent and who are really heroes of a high order. One of the latter + with whom I happened to be thrown professionally was a young fellow of + about twenty named Guthrie. + </p> + <p> + It was during a great strike, and outrages were being committed all over + the city of New York by dynamiters supposed to be in the employ of the + unions. Young Guthrie, who was a reckless daredevil, offered his services + to the employers, and agreed to join one of the local unions and try to + find out who were the men blowing up office buildings in process of + construction and otherwise terrorizing the inhabitants of the city. + Accordingly he applied for membership in the organization, and by giving + evidence of his courage and fiber managed to secure a place as a volunteer + in the dynamiting squad. So cleverly did he pass himself off as a bitter + enemy of capital that he was entrusted with secrets of the utmost value + and took part in making the plans and procuring the dynamite to execute + them. The quality of his nerve (as well as his foolhardiness) is shown by + the fact that he once carried a dress-suit case full of the explosive + around the city, jumping on and off street cars, and dodging vehicles. + When the proper moment came and the dynamite had been placed in an + uncompleted building on Twenty-second Street, Guthrie gave the signal and + the police arrested the dynamiters—all of them, including Guthrie, + who was placed with the rest in a cell in the Tombs and continued to + report to the district attorney all the information which he thus secured + from his unsuspecting associates. Indeed, it was hard to convince the + authorities that Guthrie was a spy and not a mere accomplice who had + turned State's evidence, a distinction of far-reaching legal significance + so far as his evidence was concerned. + </p> + <p> + The final episode in the drama was the unearthing by the police of Hoboken + of the secret cache of the dynamiters, containing a large quantity of the + explosive. Guthrie's instructions as to how they should find it read like + a page from Poe's "Gold Bug." You had to go at night to a place where a + lonely road crossed the Erie Railroad tracks in the Hackensack meadows, + and mark the spot where the shadow of a telegraph pole (cast by an arc + light) fell on a stone wall. This you must climb and walk so many paces + north, turn and go so many feet west, and then north again. You then came + to a white stone, from which you laid your course through more latitude + and longitude until you were right over the spot. The police of Hoboken + did as directed, and after tacking round and round the field, found the + dynamite. Of course, the union said the whole thing was a plant, and that + Guthrie had put the dynamite in the field himself at the instigation of + his employers, but before the case came to trial both dynamiters pleaded + guilty and went to Sing Sing. One of them turned out to be an ex-convict, + a burglar. I often wonder where Guthrie is now. He certainly cared little + for his life. Perhaps he is down in Venezuela or Mexico. He could never be + aught than a soldier of fortune. But for a long time the employers thought + that Guthrie was a detective sent by the unions to compromise THEM in the + very dynamiting they were trying to stop! + </p> + <p> + I once had a particularly dangerous and unfortunate case where a private + client was being blackmailed by a half-crazy ruffian who had never seen + him, but had selected him arbitrarily as a person likely to give up money. + The blackmailer was a German Socialist, who was out of employment—a + man of desperate character. He had made up his mind that the world owed + him a living, and he had decided that the easiest way to get it was to + make some more prosperous person give him a thousand dollars under threat + of being exposed as an enemy of society. + </p> + <p> + The charge was so absurd as to be almost ludicrous, but had my client + caused the blackmailer's arrest the matter would have been the subject of + endless newspaper notoriety and comment. It was therefore thought wise to + make use of other means, and I procured the assistance of a young + German-American of my acquaintance, who, in the guise of a vaudeville + artist seeking a job, went to the blackmailer's boarding-house and + pretended to be looking for an actor friend with a name not unlike that of + the criminal. + </p> + <p> + After two or three visits he managed to scrape an acquaintance with the + blackmailer and thereafter spent much time with him. Both were out of + work, both were German, and both liked beer. My friend had just enough + money to satisfy this latter craving. In a month or so they were intimate + friends and used to go fishing together down the bay. At last, after many + months, the criminal disclosed to the detective his plan of blackmailing + my client, and suggested that as two heads were better than one they had + better make it a joint venture. The detective pretended to balk at the + idea at first, but was finally persuaded, and at the other's request + undertook the delivery of the blackmailing letters to my client! Inside of + three weeks he had in his possession enough evidence in the criminal's own + handwriting to send him to a prison for the rest of his life. When at last + the detective disclosed his identity the blackmailer at first refused to + believe him, and then literally rolled on the floor in his agony and fear + at discovering how he had been hoodwinked. The next day he disappeared and + has not been heard of since, but his letters are in my vault, ready to be + used if he again puts in an appearance. + </p> + <p> + The records of the police and of the private agencies contain many + instances where murderers have confessed their guilt long after the crime + to supposed friends, who were in reality decoys placed there for that very + purpose. It is a peculiarity of criminals that they cannot keep their + secrets locked in their own breasts. The impulse to confession is + universal, particularly in women. Egotism has some part in this, but the + chief element is the desire for companionship. Criminals have a horror of + dying under an alias. The dignity of identity appeals even to the tramp. + This impulse leads oftentimes to the most unnecessary and suicidal + disclosures. The murderer who has planned and executed a diabolical + homicide and who has retired to obscurity and safety will very likely in + course of time make a clean breast of it to some one whom he believes to + be his friend. He wants to "get it off his chest," to talk it over, to + discuss its fine points, to boast of how clever he was, to ask for + unnecessary advice about his conduct in the future, to have at least one + other person in the world who has seen his soul's nakedness. + </p> + <p> + The interesting feature of such confessions from a legal point of view is + that, no matter how circumstantial they may be, they are not usually of + themselves sufficient under our law to warrant a conviction. The admission + or confession of a defendant needs legal corroboration. This corroboration + is often very difficult to find, and frequently cannot be secured at all. + This provision of the statutes is doubtless a wise one to prevent + hysterical, suicidal, egotistical, and semi-insane persons from meeting + death in the electric chair or on the gallows, but it often results in the + guilty going unpunished. Personally, I have never known a criminal to + confess a crime of which he was innocent. The nearest thing to it in my + experience is when one criminal, jointly guilty with another and sure of + conviction, has drawn lots with his pal, lost, confessed, and in the + confession exculpated his companion. + </p> + <p> + In the police organization of almost every large city there are a few men + who are genuinely gifted for the work of detection. Such an one was + Guiseppe Petrosino, a great detective, and an honest, unselfish, and + heroic man, who united indefatigable patience and industry with reasoning + powers of a high order. The most thrilling evening of my life was when I + listened before a crackling fire in my library to Joe's story of the Van + Cortlandt Park murder, the night before I was going to prosecute the case. + Sitting stiffly in an arm-chair, his ugly moon-face expressionless save + for an occasional flash from his black eyes, Petrosino recounted slowly + and accurately how, by means of a single slip of paper bearing the + penciled name "Sabbatto Gizzi, P.O. Box 239, Lambertville, N.J.," he had + run down the unknown murderer of an unknown Italian stabbed to death in + the park's shrubbery. + </p> + <p> + Petrosino's physical characteristics were so pronounced that he was + probably as widely, if not more widely, known than any other Italian in + New York. He was short and heavy, with enormous shoulders and a bull neck, + on which was placed a great round head like a summer squash. His face was + pock-marked, and he talked with a deliberation that was due to his desire + for accuracy, but which at times might have been suspected to arise from + some other cause. He rarely smiled and went methodically about his + business, which was to drive the Italian criminals out of the city and + country. Of course, being a marked man in more senses than one, it was + practically impossible to disguise himself, and, accordingly, he had to + rely upon his own investigations and detective powers, supplemented by the + efforts of the trained men in the Italian branch, many of whom are + detectives of a high order of ability. If the life of Petrosino were to be + written, it would be a book unique in the history of criminology and + crime, for this man was probably the only great detective of the world to + find his career in a foreign country amid criminals of his own race. + </p> + <p> + I have instanced Petrosino as an example of a police detective of a very + unusual type, but I have known several other men on the New York Police + Force of real genius in their own particular lines of work. One of these + is an Irishman who makes a specialty of get-rich-quick men, oil and mining + stock operators, wire-tappers and their kin, and who knows the antecedents + and history of most of them better than any other man in the country. He + is ready to take the part of either a "sucker" or a fellow crook, as the + exigencies of the case may demand. + </p> + <p> + There are detectives—real ones—on the police force of all the + great cities of the world to-day, most of them specialists, a few of them + geniuses capable of undertaking the ferreting out of any sort of mystery, + but the last are rare. The police detective usually lacks the training, + education, and social experience to make him effective in dealing with the + class of elite criminals who make high society their field. Yet, of + course, it is this class of crooks who most excite our interest and who + fill the pages of popular detective fiction. + </p> + <p> + The headquarters man has no time nor inclination to follow the sporting + duchess and the fictitious earl who accompanies her in their picturesque + wanderings around the world. He is busy inside the confines of his own + country. Parents or children may disappear, but the mere seeking of + oblivion on their part is no crime and does not concern him except by + special dispensation on the part of his superiors. Divorced couples may + steal their own children back and forth, royalties may inadvertently + involve themselves with undesirables, governmental information exude from + State portals in a peculiar manner, business secrets pass into the hands + of rivals, racehorses develop strange and untimely diseases, husbands take + long and mysterious trips from home—a thousand exciting and worrying + things may happen to the astonishment, distress, or intense interest of + nations, governments, political parties, or private individuals, which + from their very nature are outside the purview of the regular police. + Here, then, is the field of the secret agent or private detective, and + here, forsooth, is where the detective of genuine deductive powers and the + polished address of the so-called "man of the world" is required. + </p> + <p> + There are two classes of cases where a private detective must needs be + used, if indeed any professional assistance is to be called in: first, + where the person whose identity is sought to be discovered or whose + activities are sought to be terminated is not a criminal or has committed + no crime, and second, where, though a crime has been committed, the + injured parties cannot afford to undertake a public prosecution. + </p> + <p> + For example, if you are receiving anonymous letters, the writer of which + accuses you of all sorts of unpleasant things, you would, of course, much + prefer to find out who it is and stop him quietly than to turn over the + correspondence to the police and let the writer's attorneys publicly + cross-examine you at his trial as to your past career. Even if a diamond + necklace is stolen from a family living on Fifth Avenue, there is more + than an even chance that the owner will prefer to conceal her loss rather + than to have her picture in the morning paper. Yet she will wish to find + the necklace if she can. + </p> + <p> + When the matter has no criminal side at all, the police cannot be availed + of, although we sometimes read that the officers of the local precinct + have spent many hours in trying to locate Mrs. So-and-So's lost + Pomeranian, or in performing other functions of an essentially private + nature—most generously. But if, for example, your daughter is made + the recipient, almost daily, of anonymous gifts of jewelry which arrive by + mail, express, or messenger, and you are anxious to discover the identity + of her admirer and return them, you will probably wish to engage outside + assistance. + </p> + <p> + Where will you seek it? You can do one of two things: go to a big agency + and secure the services of the right man, or engage such a man outside who + may or may not be a professional detective. I have frequently utilized + with success in peculiar and difficult cases the services of men whom I + knew to be common-sense persons, with a natural taste for ferreting out + mysteries, but who were not detectives at all. Your head bookkeeper may + have real talents in this direction—if he is not above using them. + Naturally, the first essential is brains—and if you can give the + time to the matter, your own head will probably be the best one for your + purposes. If, then, you are willing to undertake the job yourself, all you + need is some person or persons to carry out your instructions, and such + are by no means difficult to find. I have had many a case run down by my + own office force—clerks, lawyers, and stenographers, all taking a + turn at it. Why not? Is the professional sleuth working on a fixed salary + for a regular agency and doing a dozen different jobs each month as likely + to bring to bear upon your own private problem as much intelligence as you + yourself? + </p> + <p> + There is no mystery about such work, except what the detective himself + sees fit to enshroud it with. Most of us do detective work all the time + without being conscious of it. Simply because the matter concerns the + theft of a pearl, or the betraying of a business or professional secret, + or the disappearance of a friend, the opinion of a stranger becomes no + more valuable. And the chances are equal that the stranger will make a + bungle of it. + </p> + <p> + Many of the best available detectives are men who work by themselves + without any permanent staff, and who have their own regular clients, + generally law firms and corporations. Almost any attorney knows several + such, and the chief advantage of employing one of them lies in the fact + that you can learn just what their abilities are by personal experience. + They usually command a high rate of remuneration, but deductive ability + and resourcefulness are so rare that they are at a premium and can only be + secured by paying it. These men are able, if necessary, to assume the + character of a doctor, traveller, man-about-town, or business agent + without wearing in their lapels a sign that they are detectives, and they + will reason ahead of the other fellow and can sometimes calculate pretty + closely what he will do. Twenty-five dollars a day will generally hire the + best of them, and they are well worth it. + </p> + <p> + The detective business swarms with men of doubtful honesty and morals, who + are under a constant temptation to charge for services not rendered and + expenses not incurred, who are accustomed to exaggeration if not to + perjury, and who have neither the inclination nor the ability to do + competent work. + </p> + <p> + Once they get their clutches on a wealthy client, they resemble the + shyster lawyer in their efforts to bleed him by stimulating his fears of + publicity and by holding out false hopes of success, and thus prolonging + their period of service. An unscrupulous detective will, almost as a + matter of course, work on two jobs at once and charge all his time to each + client. He will constantly report progress when nothing has been + accomplished, and his expenses will fill pages of his notebook. Meantime + his daily reports will fall like a shower of autumn leaves. In no + profession is it more essential to know the man who is working for you. If + you need a detective, get the best you can find, put a limit on the + expense, and give him your absolute confidence. + </p> + <p> + <a name="link2HCH0006" id="link2HCH0006"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + CHAPTER VI. Detectives Who Detect + </h2> + <p> + In the preceding chapter the writer discussed at some length the real, as + distinguished from the fancied, attributes of detectives in general, and + the weaknesses as well as the virtues of the so-called detective "agency." + There are in the city of New York at the present time about one hundred + and fifty licensed detectives. Under the detective license laws each of + these has been required to file with the State comptroller written + evidences of his competency, and integrity, approved by five reputable + freeholders of his county, and to give bond in the sum of two thousand + dollars. He also has to pay a license fee of one hundred dollars per + annum, but this enables him to employ as many "operators" as he chooses. + In other words, the head of the agency may be of good character and his + agents wholly undesirable citizens. How often this is the case is known to + none better than the heads themselves. The strength and efficiency of a + detective agency does not lie in the name at the top of its letter-paper, + but in the unknown personnel of the men who are doing or shirking the + work. I believe that most of the principals of the many agencies + throughout the United States are animated by a serious desire to give + their clients a full return for their money and loyal and honest service. + But the best intentions in the world cannot make up for the lack of + untiring vigilance in supervising the men who are being employed in the + client's service. + </p> + <p> + It is the right here that the "national" has an immense advantage over the + small agency which cannot afford to keep a large staff of men constantly + on hand, but is forced to engage them temporarily as they may be needed. + The "national" agency can shift its employees from place to place as their + services are required, and the advantages of centralization are felt as + much in this sort of work as in any other industry. The licensed detective + who sends out a hurry call for assistants is apt to be able to get only + men whom he would otherwise not employ. In this chapter, the word + "national," as applied to a detective agency, refers not to the title + under which such an agency may do its business, but to the fact that it is + organized and equipped to render services all over the country. + </p> + <p> + In this connection it is worth noticing that the best detective agencies + train their own operators, selecting them from picked material. The + candidate must as rule be between twenty and thirty-five years of age, + sound of body, and reasonably intelligent. He gets pretty good wages from + the start. From the comparatively easy work of watching or "locating," he + is advanced through the more difficult varieties of "shadowing" and + "trailing," until eventually he may develop into a first-class man who + will be set to unravel a murder mystery or to "rope" a professional + criminal. But with years of training the best material makes few real + detectives, and the real detective remains in fact the man who sits at the + mahogany desk in the central office and presses the row of mother of pearl + buttons in front of him. + </p> + <p> + If you know the heads or superintendents of the large agencies you will + find that the "star" cases, of which they like to talk, are, for the most + part, the pursuit and capture of forgers and murderers. The former, as a + rule, are "spotted" and "trailed" to their haunts, and when sufficient + evidence has been obtained the police are notified, and a raid takes + place, or the arrest is made, by the State authorities. In the case of a + murderer, in a majority of cases, his capture is the result of skilful + "roping" by an astute detective who manages to get into his confidence. + For example, a murder is committed by an Italian miner. Let us suppose he + has killed his "boss," or even the superintendent or owner. He disappears. + As the reader known, the Italians are so secretive that it is next to + impossible to secure any information—even from the relatives of the + murdered man. + </p> + <p> + The first thing is to locate the assassin. An Italian detective is sent + into the mine as a laborer. Months may elapse before he gets on familiar + or intimate terms with his fellows. All the time he is listening and + watching. Presently he hears something that indicates that the murderer is + communicating with one of his old friends either directly or through third + parties. It is then generally only a question of time before his + whereabouts are ascertained. Once he is "located" the same method is + followed in securing additional evidence or material in the nature of a + confession or admission tending to establish guilt. Having previously + "roped" the murderer's friends, the detective now proceeds to the more + difficult task of "roping" the murderer himself. Of course, the life of a + detective in a Pennsylvania coal mine would be valueless if his identity + were discovered, and yet the most daring pieces of detective work are + constantly being performed under these and similar conditions. Where the + criminal is not known, the task becomes far more difficult and at times + exceedingly dangerous. + </p> + <p> + One of my own friends, an Italian gentleman, spent several months in the + different mines of this country, where Italians are largely employed, + investigating conditions and ascertaining for the benefit of his + government the extent to which anarchy was prevalent. It was necessary for + him to secure work as a miner at the lowest wages and to disguise himself + in such a way that it would be impossible for anybody to detect his true + character. Fortunately, the great diversity of Italian dialects + facilitated his efforts and enabled him to pass himself off as from + another part of the country than his comrades. Having made his + preparations he came to New York as an immigrant and joined a party of + newly arrived Italians on their way to the coal mines of West Virginia. + Without following him further, it is enough to say that during his service + in the mines he overheard much that was calculated to interest exceedingly + the authorities at Rome. Had his disguise been penetrated the quick thrust + of a five-inch blade would have ended his career. He would never have + returned to New York. There would only have been another dead "Dago" + miner. The local coroner would have driven up in his buggy, looked at the + body, examined the clean, deep wound in the abdomen, shrugged his + shoulders, and empanelled a hetrogeneous jury who would have returned a + verdict to the effect that "deceased came to his death through a stab + wound inflicted by some person to the jury unknown." My friend was not a + professional detective, but the recital of his experiences was enough to + fill me with new respect for those engaged in the "man hunt" business + among the half civilized miners of the coal regions. + </p> + <p> + But the work of even the "national" agencies is not of the kind which the + novel-reading public generally associates with detectives—that is to + say, it rarely deals with the unravelling of "mysteries," except the + identity of passers of fraudulent paper and occasional murderers. The + protection of the banks is naturally the most important work that such an + agency can perform. + </p> + <p> + The National Bankers' Association has eleven thousand members. + "Pinkerton's Bank and Bankers' Protection" also has a large organization + of subscribers. These devote themselves to identifying and running down + all criminals whose activities are dangerous to them. Here the agency and + the police work hand in hand, exchanging photographs of crooks and + suspects and keeping closely informed as to each other's doings. Yet there + is no official connection between any detective agency and the police of + any city. It is an almost universal rule that a private detective shall + not make an arrest. The reasons for this are manifold. In the first place, + the private detective has neither the general authority nor the facilities + for the manual detention of a criminal. A blue coat and brass buttons, to + say nothing of a night stick, are often invaluable stage properties in the + last act of the melodrama. And as the criminal authorities are eventually + to deal with the defendant anyway, it is just as well if they come into + the case as soon as may be. It goes without saying, of course, that a + detective per se has no more right to make an arrest than any private + citizen—nor has a policeman, for that matter, save in exceptional + cases. The officer is valuable for his dignity, avoirdupois, "bracelets," + and other accessories. The police thus get the credit of many arrests in + difficult cases where all the work has been done by private detectives, + and it is good business for the latter to let them know it. + </p> + <p> + One of the chief assets of the big agency is its accumulated information + concerning all sorts of professional criminals. Its galleries are quite as + complete as those of the local police headquarters, for a constant + exchange of art objects is going on with the police throughout the world. + And as the agency is protecting banks all over the United States it has + greater interest in all bank burglars as a class than the police of any + particular city who are only concerned with the burglars who (as one might + say) burgle in their particular burg. Thus, you are more likely to find a + detective from a national agency than a sleuth from 300 Mulberry Street, + New York, following a forger to Australasia or Polynesia. + </p> + <p> + The best agencies absolutely decline to touch divorce and matrimonial + cases of any sort. It does not do a detective agency any good to have its + men constantly upon the witness stand subject to attack, with a consequent + possible reflection upon their probity of character or truthfulness. + Moreover, a good detective is too valuable a person to be wasting his time + in the court-room. In the ordinary divorce case the detective, having + procured evidence, is obliged to remain on tap and subject to call as a + witness for at least three or four months, during which time he cannot be + sent away on distant work. Neither can the customer be charged ordinarily + for waiting time, and apart from its malodorous character the business is + not desirable from a financial point of view. + </p> + <p> + The national agencies prefer clean criminal work, murder cases, and + general investigating. They no longer undertake any policing, + strike-breaking, or guarding. The most ridiculous misinformation in regard + to their participation in this sort of work has been spread broadcast + largely by jealous enemies and by the labor unions. + </p> + <p> + By way of illustration, one Thomas Beet, describing himself as an English + detective, contributed an article to the 'New York Tribune' of September + 16, 1906, in which he said: + </p> + <p> + "In one of the greatest of our strikes, that involving the steel industry, + over two thousand armed detectives were employed supposedly to protect + property, while several hundred men were scattered in the ranks of + strikers as workmen. Many of the latter became officers in the labor + bodies, helped to make laws for the organizations, made incendiary + speeches, cast their votes for the most radical movements made by the + strikers, participated in and led bodies of the members in the acts of + lawlessness that eventually caused the sending of State troops and the + declaration of martial law. While doing this, these spies within the ranks + were making daily reports of the plans and purposes of the strikers. To my + knowledge, when lawlessness was at its height and murder ran riot, these + men wore little patches of white on the lapels of their coats so that + their fellow detectives of the two thousand would not shoot them down by + mistake." + </p> + <p> + He, of course, referred to the great strike at Homestead, Pennsylvania, in + 1892. In point of fact, there were only six private detectives engaged on + the side of the employers at that time, and these were there to assist the + local authorities in taking charge of six hundred and fifty watchmen, and + to help place the latter upon the property of the steel company. These + watchmen were under the direction of the sheriff and sworn in as peace + officers of the county. Mr. Beet seems to have confused his history and + mixed up the white handkerchief of the Huguenots of Nantes with the + strike-breakers of Pennsylvania. It is needless to repeat (as Mr. Robert + A. Pinkerton stated at the time), that the white label story is + ridiculously' untrue, and that it was the strikers who attacked the + watchmen, and not the watchmen the strikers. One striker and one watchman + were killed. + </p> + <p> + But this attack of Mr. Beet upon his own profession, under the guise of + being an English detective (it developed that he was an ex-divorce + detective from New York City), was not confined to his remarks about + inciting wanton murder. On the contrary, he alleged (as one having + authority and not merely as a scribe) that American detective agencies + were practically nothing but blackmailing concerns, which used the + information secured in a professional capacity to extort money from their + own clients. + </p> + <p> + "Think of the so-called detective," says Mr. Beet, "whose agency pays him + two dollars or two dollars and fifty cents a day, being engaged upon + confidential work and in the possession of secrets that he knows are worth + money! Is it any wonder that so many cases are sold out by employees, even + when the agencies are honest?" + </p> + <p> + We are constrained to answer that it is no more wonderful than that any + person earning the same sum should remain honest when he might so easily + turn thief. As the writer has himself pointed out in these pages, there + are hundreds of so-called detective agencies which are but traps for the + guileless citizen who calls upon them for aid. But there are many which + are as honestly conducted as any other variety of legitimate business. I + do not know Mr. Beet's personal experience, but it appears to have been + unfortunate. At any rate, his diatribe is unfounded and false, and the + worst feature of it is his assertion that detective agencies make a + business of manufacturing cases when there happen to be none on hand. + </p> + <p> + "Soon," says he, "there were not enough cases to go around, and then with + the aid of spies and informers the unscrupulous detectives began to make + cases. Agencies began to work up evidence against persons and then + resorted to blackmail, or else approached those to whom the information + might be valuable, and by careful manoeuvring had themselves retained to + unravel the case. This brought into existence hordes of professional + informers who secured the opening wedges for the fake agencies. Men and + women, many of them of some social standing, made it a practice to pry + around for secrets which might be valuable able; spies kept up their work + in large business establishments and began to haunt the cafes and resorts + of doubtful reputation, on the watch for persons of wealth and prominence + who might be foolish enough to place themselves in compromising + circumstances. Even the servants in wealthy families soon learned that + certain secrets of the master and mistress could be turned to profitable + account. We shudder when we hear of the system of espionage maintained in + Russia, while in the large American cities, unnoticed, are organizations + of spies and informers on every hand who spend their lives digging + pitfalls for the unwary who can afford to pay." + </p> + <p> + One would think that we were living in the days of the Borgias! "Ninety + per cent," says Mr. Beet, "of private detective agencies are rotten to the + core and simply exist and thrive upon a foundation of dishonesty, deceit, + conspiracy, and treachery to the public in general and their own patrons + in particular. There are detectives at the heads of prominent agencies in + this country whose pictures adorn the Rogues' Gallery; men who have served + time in various prisons for almost every crime on the calendar." + </p> + <p> + This harrowing picture has the modicum of truth that makes it insidiously + dangerous. But this last extravagance betrays the denunciator. One would + be interested to have this past-master of overstatement mention the names + of these distinguished crooks that head the prominent agencies. Their + exposure, if true, would not be libellous, and it would seem that he had + performed but half his duty to the public in refraining from giving this + important, if not vital, information. + </p> + <p> + I know several of these gentlemen whose pictures I feel confident do not + appear in the Rogues' Gallery, and who have not been, as yet, convicted of + crime. A client is as safe in the hands of a good detective agency as he + is in the hands of a good attorney; he should know his agency, that is all—just + as he should know his lawyer. The men at the head of the big agencies + generally take the same pride in their work as the members of any other + profession. They know that a first-class reputation for honesty is + essential to their financial success and that good will is their stock in + trade. Take this away and they would have nothing. + </p> + <p> + In 1878 the founder of one of the most famous of our national agencies + promulgated in printed form for the benefit of his employees what he + called his general principles. One of these was the following: + </p> + <p> + "This agency only offers its services at a stated per diem for each + detective employed on an operation, giving no guarantee of success, except + in the reputation for reliability and efficiency; and any person in its + service who shall, under any circumstances, permit himself or herself to + receive a gift, reward, or bribe shall be instantly dismissed from the + service." + </p> + <p> + Another: + </p> + <p> + "The profession of the detective is a high and honorable calling. Few + professions excel it. He is an officer of justice, and must himself be + pure and above reproach." + </p> + <p> + Again: + </p> + <p> + "It is an evidence of the unfitness of the detective for his profession + when he is compelled to resort to the use of intoxicating liquors; and, + indeed, the strongest kind of evidence, if he continually resorts to this + evil practice. The detective must not do anything to farther sink the + criminal in vice or debauchery, but, on the contrary, must seek to win his + confidence by endeavoring to elevate him, etc." + </p> + <p> + "Kindness and justice should go hand in hand, whenever it is possible, in + the dealings of the detective with the criminal. There is no human being + so degraded but there is some little bright spark of conscience and of + right still existing in him." + </p> + <p> + Last: + </p> + <p> + "The detective must, in every instance, report everything which is + favorable to the suspected party, as well as everything which may be + against him." + </p> + <p> + The man who penned these principles had had the safety of Abraham Lincoln + in his keeping; and these simple statements are the best refutation of the + baseless assertions above referred to. + </p> + <p> + It may be that in those days the detection of crime was a bit more + elementary than at the present time. One can hardly picture a modern + sleuth delaying long in an attempt to evangelize his quarry, but these + general principles are the right stuff and shine like good deeds in a + naughty world. + </p> + <p> + As one peruses this little pink pamphlet he is constantly struck by the + repeated references to the detective as an actor. That was undoubtedly the + ancient concept of a sleuth. "He must possess, also, the player's faculty + of assuming any character that his case may require, and of acting it out + to the life with an ease and naturalness which shall not be questioned." + This somewhat large order is, to our relief, qualified a little later on. + "It is not to be expected, however," the author admits, "that every + detective shall possess these rare qualifications, although the more + talented and versatile he is, the higher will be the sphere of operation + which he will command." + </p> + <p> + The modern detective agency is conducted on business principles and does + not look for histrionic talent or general versatility. As one of the heads + of a prominent agency said to me the other day: + </p> + <p> + "When we want a detective to take the part of a plumber we get a plumber, + and when we need one to act as a boiler-maker we go out and get a real one—if + we haven't one on our pay rolls." + </p> + <p> + "But," I replied, "when you need a man to go into a private family and + pretend to be an English clergyman, or a French viscount, or a brilliant + man of the world—who do you send?" + </p> + <p> + The "head" smiled. + </p> + <p> + "The case hasn't arisen yet," said he. "When it does I guess we'll get the + real thing." + </p> + <p> + The national detective agency, with its thousands of employees who have, + most of them, grown up and received their training in its service, is a + powerful organization, highly centralized, and having an immense sinking + fund of special knowledge and past experience. This is the product of + decades of patient labor and minute record. The agency which offers you + the services of a Sherlock Holmes is a fraud, but you can accept as + genuine a proposition to run down any man whose picture you may be able to + identify in the gallery. The day of the impersonator is over. The + detective of this generation is a hard-headed business man with a stout + pair of legs. + </p> + <p> + This accumulated fund of information is the heritage of an honest and long + established industry. It is seventy-five per cent of its capital. It is + entirely beyond the reach of the mushroom agency, which in consequence has + to accept less desirable retainers involving no such requirements, or go + to the wall. The collection of photographs is almost priceless and the + clippings, letters, and memoranda in the filing cases only secondarily so. + Very few of the "operators" pretend to anything but common-sense, with + perhaps some special knowledge of the men they are after. They are not + clairvoyants or mystery men, but they will tirelessly follow a crook until + they get him. They are the regular troops who take their orders without + question. The real "detective" is the "boss" who directs them. + </p> + <p> + The reader can easily see that in all cases where a crime, such as + forgery, is concerned, once the identity of the criminal is ascertained, + half the work (or more than half) is done. The agencies know the face and + record of practically every man who ever flew a bit of bad paper in the + United States, in England, or on the Continent. If an old hand gets out of + prison his movements are watched until it is obvious that he does not + intend to resort to his old tricks. After the criminal is known or + "located," the "trailing" begins and his "connections" are carefully + studied. This may or may not require what might be called real detective + work; that is to say, work requiring superior power of deducing + conclusions from first-hand information, coupled with unusual skill in + acting upon them. Mere trailing is often simple, yet sometimes very + difficult. A great deal depends on the operator's own peculiar information + as to his man's habits, haunts, and associates. It is very hard to say in + most cases just where mere knowledge ends and detective work proper + begins. As for disguises, they are almost unknown, except such as are + necessary to enable an operator to join a gang where his quarry may be + working and "rope" him into a confession. + </p> + <p> + Detective agencies of the first-class are engaged principally in clean-cut + criminal work, such as guarding banks from forgers and "yeggmen"—an + original and dangerous variety of burglar peculiar to the United States + and Canada. In other words, they have large associations of clients who + need more protection than the regular police can give them, and whose + interest it is that the criminal shall not only be driven out of town, but + run down (wherever he may be), captured, and put out of the way for as + long a time as possible. + </p> + <p> + The work done for private individuals is no less important and effective, + but it is secondary to the other. The great value of the "agency" to the + victim of a theft is the speed with which it can disseminate its + information—something quite impossible so far as the individual + citizen is concerned. Let me give an illustration or two. + </p> + <p> + Between 10.30 P.M. Saturday, February 25, 1911, and 9.30 A.M. Sunday, + February 26, 1911, one hundred and thirty thousand dollars worth of pearls + belonging to Mrs. Maldwin Drummond were stolen from a stateroom on the + steamship 'Amerika' of the Hamburg-American line. The London underwriters + cabled five thousand dollars reward and retained to investigate the case a + well-known American agency, which before the 'Amerika' had reached + Plymouth on her return trip had their notifications in the hands of all + the jewelers and police officials of Europe and the United States, and had + covered every avenue of disposal in North and South America. In addition, + this agency investigated every human being on the Amerika from first cabin + to forecastle. + </p> + <p> + Within a year or so an aged stock-broker, named Bancroft, was robbed on + the street of one hundred thousand dollars in securities. Inside of + fifty-five minutes after he had reported his loss a detective agency had + notified all banks, brokers, and the police in fifty-six cities of the + United States and Canada. + </p> + <p> + In the story books your detective scans with eagle eye the surface of the + floor for microscopic evidences of crime. His mind leaps from a cigar ash + to a piece of banana peel and thence to what the family had for dinner. + His brain is working all the time. It is, of course, all quite wonderful + and most excellent reading, and the old-style sleuth really thought he + could do it! Nowadays, while the fake detective is snooping around the + back piazza with a telescope, the real one is getting the "dope" from the + village blacksmith or barber or the waitress at the station. He may not be + highly intelligent, but he knows the country, and, what is more important, + he knows the people. All the brains in the world cannot make up for the + lack of an elementary knowledge of the place and the characters + themselves. It stands to reason that no strange detective could form as + good an opinion as to which of the members of your household would be most + likely to steal a piece of jewelry as you could yourself. Yet the + old-fashioned Sherlock knew and knows it all. + </p> + <p> + One of the best illustrations of the practical necessity of some + first-hand knowledge is that afforded by the recovery of a diamond + necklace belonging to the wife of a gentleman in a Connecticut town. The + facts that are given here are absolutely accurate. The gentleman in + question was a retired business man of some means who lived not far from + the town and who made frequent visits to New York City. He had made his + wife a present of a fifteen thousand-dollar diamond necklace, which she + kept in a box in a locked trunk in her bedroom. While she had owned the + necklace for over a year she had never worn it. One evening having guests + for dinner on the occasion of her wedding anniversary she decided to put + it on and wear it for the first time. That night she replaced it in its + box and enclosed this in another box, which she locked and placed in her + bureau drawer. This she also locked. The following night she decided to + replace the necklace in the trunk. She accordingly unlocked the bureau + drawer, and also the larger box, which apparently was in exactly the same + condition as when she had put it away. But the inner box was empty and the + necklace had absolutely disappeared. Now, no one had seen the necklace for + a year, and then only her husband, their servants, and two or three old + friends. No outsider could have known of its existence. There was no + evidence of the house or bureau having been disturbed. + </p> + <p> + A New York detective agency was at once retained, which sent one of its + best men to the scene of the crime. He examined the servants, heard the + story, and reported that it must have been an inside job—that there + was no possibility of anything else. But there was nothing to implicate + any one of the servants, and there seemed no hope of getting the necklace + back. Two or three days later the husband turned up at the agency's office + in New York, and after beating about the bush for a while, remarked: + </p> + <p> + "I want to tell you something. You have got this job wrong. There's one + fact your man didn't understand. The truth is that I'm a pretty easy going + sort, and every six months or so I take all the men and girls employed + around my house down to Coney Island and give 'em a rip-roaring time. I + make 'em my friends, and I dance with the girls and I jolly up the men, + and we are all good pals together. Sort of unconventional, maybe, but it + pays. I know—see?—that there isn't a single one of those + people who would do me a mean trick. Not one of 'em but would lend me all + the money he had. I don't care what your operator says, the person who + took that necklace came from outside. You take that from me. The + superintendent, who is wise in his generation, scratched his chin. + </p> + <p> + "Is that dead on the level?" he inquired. + </p> + <p> + "Gospel!" answered the other. + </p> + <p> + "I'll come up myself!" said the boss. + </p> + <p> + Next day the boss behind a broken-winded horse, in a dilapidated buggy, + drove from another town to the place where his client lived. At the smithy + on the crossroads he stopped and borrowed a match. + </p> + <p> + "Anybody have good hosses in this town?" asked the detective. + </p> + <p> + "Sure!" answered the smith. "Mr. ——— up on the hill has + the best in the county!" + </p> + <p> + "What sort of a feller is he?" + </p> + <p> + The smith chewed in silence for a moment. + </p> + <p> + "Don't know him myself, but I tell you what, his help says he's the best + employer they ever had—and they stay there forever!" + </p> + <p> + The boss drove on to the house, which he observed was situated at about an + equal distance from three different railway stations and surrounded by a + piazza with pillars. He walked around it, examining the vines until his + eye caught a torn creeper and a white scratch on the paint. It had been an + outside job after all, and two weeks had already been lost. Deduction was + responsible for a mistake which would not have occurred had a little + knowledge been acquired first. That is the lesson of this story. + </p> + <p> + The denouement, which has no lesson at all, is interesting. The + superintendent saw no prospect of getting back the necklace, but before so + informing the client, decided to cogitate on the matter for a day or two. + During that time he met by accident a friend who made a hobby of studying + yeggmen and criminals and occasionally doing a bit of the amateur tramp + act himself. + </p> + <p> + "By the way," said the friend, "do you ever hear of any 'touches' up the + river or along the Sound?" + </p> + <p> + "Sometimes," answered the boss, pricking up his ears. "Why do you ask?" + </p> + <p> + "Why, the other night," replied the friend, "I happened to be meeting my + wife up at the Grand Central about six o'clock and I saw two yeggs that I + knew taking a train out. I thought it was sort of funny. Pittsburgh Ike + and Denver Red." + </p> + <p> + "When was it?" + </p> + <p> + "Two weeks ago," said the friend. + </p> + <p> + "Thanks," returned the boss. "You must excuse me now; I've got an + important engagement." + </p> + <p> + Three hours later Pittsburgh Ike and Denver Red were in a cell at + headquarters. At six o'clock that evening the necklace had been returned. + This was a coincidence that might not occur in a hundred years, but had + the deductive detective determined the question he would still be + pondering on the comparative probability of whether the cook, the chore + man, or the hired girl was the guilty party. + </p> + <p> + A clean bit of detection on the part of an agency, and quite in the day's + work, was the comparatively recent capture of a thief who secured three + hundred and sixty thousand dollars worth of securities from a famous + banking institution in New York City by means of a very simple device. A + firm of stock brokers had borrowed from this bank about two hundred and + fifty thousand dollars for a day or two and put up the securities as + collateral. In the ordinary course of business, when the borrower has no + further use for the money, he sends up a certified check for the amount of + the loan with interest, and the bank turns over the securities to the + messenger. In this particular case a messenger arrived with a certified + check, shoved it into the cage, and took away what was pushed out to him + in return—three hundred and sixty thousand dollars in bonds. The + certification turned out to be a forgery and the securities vanished. I do + not know whether the police were consulted or not. Sometimes in such cases + the banks prefer to resort to more private methods and, perhaps, save the + necessity of making a public admission of their stupidity. When my friend, + the superintendent, was called in, the officers of the bank were making + the wildest sort of guesses as to the identity of the master mind and hand + which had deceived the cashier. He must, they felt sure, have made the + forgery with a camel's hair brush of unrivalled fineness. + </p> + <p> + "A great artist!" said the president. + </p> + <p> + "The most skilful forger in the world!" opined another. + </p> + <p> + "We must run down all the celebrated criminals!" announced a third. + </p> + <p> + "Great artist-nothing!" remarked the boss, rubbing his thumb over the + certification which blurred at the touch. "He's no painter! Why, that's a + rubber stamp!" + </p> + <p> + What a shock for those dignified gentlemen! To think that their cashier + had been deceived by a mere, plebeian, common or garden thing of rubber! + </p> + <p> + "Good-day, gents!" said the boss, putting the check in his wallet. "I've + got to get busy with the rubber stamp makers!" + </p> + <p> + He returned to his office and detailed a dozen men to work on the East + Side and a dozen on the West Side, with orders to search out every man in + New York who manufactured rubber stamps. Before the end of the afternoon + the maker was found on the Bowery, near Houston Street. This was his + story: A couple of weeks before, a young man had come in and ordered a + certification stamp, drawing at the time a rough design of what he wanted. + The stamp, when first manufactured, had not been satisfactory to him; and + on his second visit, the customer had left a piece of a check, carefully + torn out in circular form, which showed the certification which he desired + copied. This fragment the maker had retained, as well as a slip of paper, + upon which the customer had written the address of the place to which he + wished the stamp sent—The Young Men's Christian Association! The + face of the fragment showed a part of the maker's signature. The + superintendent ran his eye over a list of brokers and picked out the name + of the firm most like the hieroglyphics on the check. Then he telephoned + over and asked to be permitted to see their pay roll. Carefully comparing + the signature appearing thereon with the Y.M.C.A. slip, he picked his man + in less than ten minutes. + </p> + <p> + The latter was carefully trailed to his home, and thence to the Young + Men's Christian Association, after which he called on his fiancee at her + father's house. He spent the night at his own boarding place. Next morning + (Sunday) he was arrested on his way to church, and all the securities + (except some that he later returned) were discovered in his room. More + quick work! The amateur's method had been very simple. He knew that the + loan had been made and the bonds sent to the bank. So he forged a check, + certified it himself, and collected the securities. Of course, he was a + bungler and took a hundred rash chances. + </p> + <p> + A good example of the value of the accumulated information—documentary, + pictorial, and otherwise—in the possession of an agency was the + capture of Charles Wells, more generally known as Charles Fisher, alias + Henry Conrad, an old-time forger, who suddenly resumed his activities + after being released from a six-year term in England. A New York City bank + had paid on a bogus two hundred and fifty dollar check and had reported + its loss to the agency in question. The superintendent examined the check + (although Fisher had been in confinement for six years on the other side) + spotted it as his work. The next step was to find the forger. Of course, + no man who does the actual "scratching" attempts to "lay down" the paper. + That task is up to the "presenter." The cashier of the bank identified in + the agency's gallery the picture of the man who had brought in the two + hundred and fifty dollar check, and he in turn proved to be another + ex-convict well known in the business, whose whereabouts in New York were + not difficult to ascertain. He was "located" and "trailed" and all his + associates noted and followed. In due course he "connected up" (as they + say) with Fisher. Now, it is one thing to follow a man who has no idea + that he is being followed and another to trail a man who is as suspicious + and elusive as a fox. A professional criminal's daily business is to + observe whether or not he is being followed, and he rarely if ever, makes + a direct move. If he wants a drink at the saloon across the street, he + will, by preference, go out the back door, walk around the block and dodge + in the side entrance under the tail of an ice wagon. In this case the + detectives followed the presenter for days before they reached Fisher, and + when they did they had still to locate his "plant." + </p> + <p> + The arrest in this case illustrates forcibly the chief characteristic of + successful criminals—egotism. The essential quality of daring + required in their pursuits gives them an extraordinary degree of + self-confidence, boldness, and vanity. And to vanity most of them can + trace their fall. It seems incredible that Fisher should have returned to + the United States after his discharge from prison and immediately resumed + his operations without carefully concealing his impedimenta. Yet when he + was run down in a twenty-six family apartment house, the detectives found + in his valise several thousand blank and model checks, hundreds of letters + and private papers, a work on "Modern Bank Methods," and his "ticket of + leave" from England! This man was a successful forger and because he was + successful, his pride in himself was so great that he attributed his + conviction in England to accident and really felt that he was immune on + his release. + </p> + <p> + The arrest of such a man often presents great legal difficulties which the + detectives overcome by various practical methods. Of course, no officer + without a search warrant has a right to enter a house or an apartment. A + man's house is his castle. Mayor Gaynor, when a judge, in a famous opinion + (more familiarly known in the lower world even than the Decalogue) laid + down the law unequivocally and emphatically in this regard. Thus, in the + Fisher case, the defendant having been arrested on the street, the + detectives desired to search the apartment of the family with which he + lived. They did this by first inducing the tenant to open the door and, + after satisfying themselves that they were in the right place, ordering + the occupants to get in line and "march" from one room to another while + they rummaged for evidence. "Of course, we had no right to do it, but they + didn't know we hadn't!" said the boss. + </p> + <p> + But frequently the defendant knows his rights just as well as the police. + On one occasion the same detective who arrested Fisher wanted to take + another man out of an apartment where he had been run to earth. His mother + (aged eighty-two years) put the chain on the door and politely declined to + open it. All the evidence against the forger was inside the apartment and + he was actively engaged in burning it up in the kitchen stove. In half an + hour to arrest him would have been useless! The detectives stormed and + threatened, but the old crone merely grinned at them. She hated a "bull" + as much as did her son. Fearing to take the law into their own hands, they + summoned a detective sergeant from head-quarters, but, although he + sympathized with them, he had read Mayor Gaynor's decision and declined to + take any chances. They then "appealed" to the cop on the beat, who proved + more reasonable, but although he used all his force, he was unable to + break down the door which had in the meantime been reinforced from the + inside. After about an hour, the old lady unchained the door and invited + the detectives to come in. The crook was sitting by the window smoking a + cigar and reading St. Nicholas, while all evidence of his crime had + vanished in smoke. + </p> + <p> + One more anecdote, at the expense of the deductive detective. A watchman + was murdered, the safe of a brewery blown open and the contents stolen. + Local detectives worked on the case and satisfied themselves that the + night engineer at the brewery had committed the crime. He was a quiet and, + apparently, a God-fearing man, but circumstances were conclusive against + him. In fact, he had been traced within ten minutes of the murder on the + way to the scene of the homicide. But some little link was lacking and the + brewery officials called in the agency. The first thing the superintendent + did was to look over the engineer. At first sight he recognized him as a + famous crook who had served five years for a homicidal assault! One would + think that that would have settled the matter. But it didn't! The + detective said nothing to his associates or employers, but called on the + engineer that evening and had a quiet talk with him in which he satisfied + himself that the man was entirely innocent. The man had served his time, + turned over a new leaf, and was leading an honest, decent life. Two months + later the superintendent caused the arrest of four yeggmen, all of whom + were convicted and are now serving fifteen years each for the crime. + </p> + <p> + Thus, the reader will observe that there are just a few more real + detectives still left in the business-if you can find them. Incidentally, + they, one and all, take off their hats to Scotland Yard. They will tell + you that the Englishman may be slow (fancy an American inspector of police + wearing gray suede gloves and brewing himself a dish of tea in his office + at four o'clock), but that once he goes after a crook he is bound to get + him—it is merely a question of time. I may add that in the opinion + of the heads of the big agencies the percentage of ability in the New York + Detective Bureau is high—one of them going so far as to claim that + fifty per cent of the men have real detective ability—that is to say + "brains." That is rather a higher average than one finds among clergymen + and lawyers, yet it may be so. + </p> + <p> + <a name="link2HCH0007" id="link2HCH0007"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + CHAPTER VII. Women in the Courts + </h2> + <p> + AS WITNESSES + </p> + <p> + Women appear in the criminal courts constantly as witnesses, although less + frequently as complainants and defendants. As complainants are always + witnesses, and as defendants may, and in point of fact generally do become + so, whatever generalizations are possible regarding women in courts of law + can most easily be drawn from their characteristics as givers of + testimony. Roughly speaking, women exhibit about the same idiosyncrasies + and limitations in the witness-chair as the opposite sex, and at first + thought one would be apt to say that it would be fruitless and absurd to + attempt to predicate any general principles in regard to their testimony, + but a careful study of female witnesses as a whole will result in the + inevitable conclusion that their evidence has virtues and limitations + peculiar to itself. + </p> + <p> + The ancient theory that woman was man's inferior showed itself in the + tendency to reject, or at least to regard with suspicion, her evidence in + legal matters. + </p> + <p> + "The following law," says W. M. Best, "is attributed to Moses by Josephus: + 'Let the testimony of women not be received on account of the levity and + audacity of their sex'; a law which looks apocryphal, but which, even if + genuine, could not have been of universal application.... The law of + ancient Rome, though admitting their testimony in general, refused it in + certain cases. The civil canon laws of mediaeval Europe seem to have + carried the exclusion much further. Mascardus says: 'Feminis plerumque + omnino non creditur, et id dumtaxat, quod sunt feminae qua ut plurimum + solent esse fraudulentre fallaces, et dolosae' [Generally speaking, no + credence at all is given to women, and for this reason, because they are + women, who are usually deceitful, untruthful, and treacherous in the very + highest degree.] And Lancelottus, in his 'Institutiones Juris Canonici,' + lays it down in the most distinct terms, that women cannot in general be + witnesses, citing the language of Virgil: 'Varium et mutabile semper + femina'.... + </p> + <p> + "Bruneau, although a contemporary of Madame de Sevigne, did not scruple to + write, in 1686, that the deposition of three women was only equal to that + of two men. At Berne, so late as 1821, in the Canton of Vaud, so late as + 1824, the testimony of two women was required to counterbalance that of + one man.... A virgin was entitled to greater credit than a widow.... In + the 'Canonical Institutions of Devotus,' published at Paris in 1852, it is + distinctly stated that, except in a few peculiar instances, women are not + competent witnesses in criminal cases. In Scotland also, until the + beginning of the eighteenth century, sex was a cause of exclusion from the + witness-box in the great majority of instances." + </p> + <p> + Cockburn in his Memoirs tells of an incident during the trial of + Glengarry, in Scotland, for murder in a duel, which is, perhaps, + explicable by this extraordinary attitude: A lady of great beauty was + called as a witness and came into court heavily veiled. Before + administering the oath, Lord Eskgrove, the judge (to whom this function + belongs in Scotland), gave her this exposition of her duty: + </p> + <p> + "Young woman, you will now consider yourself as in the presence of + Almighty God and of this High Court. Lift up your veil, throw off all your + modesty, and look me in the face." + </p> + <p> + Whatever difference does exist in character between the testimony of men + and women has its root in the generally recognized diversity in the mental + processes of the two sexes. Men, it is commonly declared, rely upon their + powers of reason; women upon their intuition. Not that the former is + frequently any more accurate than the latter. But our courts of law (at + least those in English-speaking countries) are devised and organized, + perhaps unfortunately, on the principle that testimony not apparently + deduced by the syllogistic method from the observation of relevant fact is + valueless, and hence woman at the very outset is placed at a disadvantage + and her usefulness as a probative force sadly crippled. + </p> + <p> + The good old lady who takes the witness-chair and swears that she knows + the prisoner took her purse has perhaps quite as good a basis for her + opinion and her testimony (even though she cannot give a single reason for + her belief and becomes hopelessly confused on cross-examination) as the + man who reaches the same conclusion ostensibly by virtue of having seen + the defendant near by, observed his hand reaching for the purse, and then + perceived him take to his heels. She has never been taught to reason and + has really never found it necessary, having wandered through life by + inference or, more frankly, by guesswork, until she is no longer able to + point out the simplest stages of her most ordinary mental processes. + </p> + <p> + As the reader is already aware, the value of all honestly given testimony + depends first upon the witness's original capacity to observe the facts; + second upon his ability to remember what he has seen and not to confuse + knowledge with imagination, belief or custom, and lastly, upon his power + to express what he has, in fact, seen and remembers. + </p> + <p> + Women do not differ from men in their original capacity to observe, which + is a quality developed by the training and environment of the individual. + It is in the second class of the witness's limitations that women as a + whole are more likely to trip than men, for they are prone to swear to + circumstances as facts, of their own knowledge, simply because they + confuse what they have really observed with what they believe did occur or + should have occurred, or with what they are convinced did happen simply + because it was accustomed to happen in the past. + </p> + <p> + Perhaps the best illustration of the female habit of swearing that facts + occurred because they usually occurred, was exhibited in the Twitchell + murder trial in Philadelphia, cited in Wellman's "Art of + Cross-Examination." The defendant had killed his wife with a blackjack, + and having dragged her body into the back yard, carefully unbolted the + gate leading to the adjacent alley and, retiring to the house, went to + bed. His purpose was to create the impression that she had been murdered + by some one from outside the premises. To carry out the suggestion, he + bent a poker and left it lying near the body smeared with blood. In the + morning the servant girl found her mistress and ran shrieking into the + street. + </p> + <p> + At the trial she swore positively that she was first obliged to unbolt the + door in order to get out. Nothing could shake her testimony, and she thus + unconsciously negatived the entire value of the defendant's adroit + precautions. He was justly convicted, although upon absolutely erroneous + testimony. + </p> + <p> + The old English lawyers occasionally rejected the evidence of women on the + ground that they are "frail." But the exclusion of women as witnesses in + the old days was not for psychological reasons, nor did it originate from + a critical study of the probative value of their testimony. + </p> + <p> + Though the conclusions to which women frequently jump may usually be shown + by careful interrogation to be founded upon observation of actual fact, + their habit of stating inferences often leads them to claim knowledge of + the impossible—"wiser in [their] own conceit than seven men that can + render a reason." + </p> + <p> + In a very recent case where a clever thief had been convicted of looting + various apartments in New York City of over eighty thousand dollars' worth + of jewelry, the female owners were summoned to identify their property. + The writer believes that in every instance these ladies were absolutely + ingenuous and intended to tell the absolute truth. Each and every one + positively identified various of the loose stones found in the possession + of the prisoner as her own. This was the case even when the diamonds, + emeralds and pearls had no distinguishing marks at all. It was a human + impossibility actually to identify any such objects, and yet these + eminently respectable and intelligent gentlewomen swore positively that + they could recognize their jewels. They drew the inference merely that as + the prisoner had stolen similar jewels from them these must be the actual + ones which they had lost, an inference very likely correct, but valueless + in a tribunal of justice. + </p> + <p> + Where their inferences are questioned, women, as a rule, are much more + ready to "swear their testimony through" than men. They are so accustomed + to act upon inference that, finding themselves unable to substantiate + their assertion by any sufficient reason, they become irritated, "show + fight," and seek refuge in prevarication. Had they not, during their + entire lives, been accustomed to mental short-cuts, they would be spared + the humiliation of seeing their evidence "stricken from the record." + </p> + <p> + One of the ladies referred to testified as follows: + </p> + <p> + "Can you identify that diamond?" + </p> + <p> + "I am quite sure that it is mine:" + </p> + <p> + "How do you know?" + </p> + <p> + "It looks exactly like it." + </p> + <p> + "But may it not be a similar one and not your own?" + </p> + <p> + "No; it is mine." + </p> + <p> + "But how? It has no marks." + </p> + <p> + "I don't care. I know it is mine. I SWEAR IT IS!" + </p> + <p> + The good lady supposed that, unless she swore to the fact, she might lose + her jewel, which was, of course, not the case at all, as the sworn + testimony founded upon nothing but inference left her in no better + position than she was in before. + </p> + <p> + The writer regrets to say that observation would lead him to believe that + women as a rule have somewhat less regard for the spirit of their oaths + than men, and that they are more ready, if it be necessary, to commit + perjury. This may arise from the fact that women are fully aware that + their sex protects them from the same severity of cross-examination to + which men would be subjected under similar circumstances. It is today + fatal to a lawyer's case if he be not invariably gentle and courteous with + a female witness, and this is true even if she be a veritable Sapphira. + </p> + <p> + In spite of these limitations, which, of course, affect the testimony of + almost every person, irrespective of sex, women, with the possible + exception of children, make the most remarkable witnesses to be found in + the courts. They are almost invariably quick and positive in their + answers, keenly alive to the dramatic possibilities of the situation, and + with an unerring instinct for a trap or compromising admission. + </p> + <p> + A woman will inevitably couple with a categorical answer to a question, if + in truth she can be induced to give one at all, a statement of damaging + character to her opponent. For example: + </p> + <p> + "Do you know the defendant?" + </p> + <p> + "Yes, to my cost!" + </p> + <p> + Or + </p> + <p> + "How old are you?" + </p> + <p> + "Twenty-three,—old enough to have known better than to trust him." + </p> + <p> + Forced to make an admission which would seem to hurt her position, the + explanation, instead of being left for the re-direct examination of her + own counsel, is instantly added to her answer then and there. + </p> + <p> + "Do you admit that you were on Forty-second Street at midnight?" + </p> + <p> + "Yes. But it was in response to a message sent by the defendant through + his cousin." + </p> + <p> + What is commonly known as "silent cross-examination" is generally the most + effective. The jury realize the difficulties of the situation for the + lawyer, and are not unlikely to sympathize with him, unless he makes bold + to attack the witness, when they quickly chance their attitude. + </p> + <p> + One question, and that as to the witness's means of livelihood, is often + sufficient. + </p> + <p> + "How do you support yourself?" + </p> + <p> + "I am a lady of leisure!" replies the witness (arrayed in flamboyant + colors) snappishly. + </p> + <p> + "That will do, thank you," remarks the lawyer with a smile. "You may step + down." + </p> + <p> + The writer remembers being nicely hoisted by his own petard on a similar + occasion: + </p> + <p> + "What do you do for a living?" he asked. + </p> + <p> + The witness, a rather deceptively arrayed woman, turned upon him with a + glance of contempt: + </p> + <p> + "I am a respectable married woman, with seven children," she retorted. "I + do nothing for a living except cook, wash, scrub, make beds, clean + windows, mend my children's clothes, mind the baby, teach the four oldest + their lessons, take care of my husband, and try to get enough sleep to be + up by five in the morning. I guess if some lawyers worked as hard as I do + they would have sense enough not to ask impertinent questions." + </p> + <p> + An amusing incident is recorded of how a feminine witness turned the laugh + upon Mr. Francis L. Wellman, the noted cross-examiner. In his book he + takes the opportunity to advise his lawyer readers to "avoid the mistake, + so common among the inexperienced, of making much of trifling + discrepancies. It has been aptly said," he continues, "that 'juries have + no respect for small triumphs over a witness's self-possession or memory!' + Allow the loquacious witness to talk on; he will be sure to involve + himself in difficulties from which he can never extricate himself. Some + witnesses prove altogether too much; encourage them and lead them by + degrees into exaggerations that will conflict with the common-sense of the + jury." + </p> + <p> + Mr. Wellman is famous for following this precept himself and, with one eye + significantly cast upon the jury, is likely to lead his witness a merry + dance until the latter is finally "bogged" in a quagmire of absurdities. + Not long ago, shortly after the publication of his book, the lawyer had + occasion to cross-examine a modest-looking young woman as to the speed of + an electric car. The witness seemed conscious that she was about to + undergo a severe ordeal, and Mr. Wellman, feeling himself complete master + of the situation, began in his most winsome and deprecating manner: + </p> + <p> + "And how fast, Miss, would you say the car was going?" + </p> + <p> + "I really could not tell exactly, Mr. Wellman." + </p> + <p> + "Would you say that it was going at ten miles an hour?" + </p> + <p> + "Oh, fully that!" + </p> + <p> + "Twenty miles an hour?" + </p> + <p> + "Yes, I should say it was going twenty miles an hour." + </p> + <p> + "Will you say it was going thirty miles an hour?" inquired Wellman with a + glance at the jury. + </p> + <p> + "Why, yes, I will say that it was." + </p> + <p> + "Will you say it was going forty?" + </p> + <p> + "Yes." + </p> + <p> + "Fifty?" + </p> + <p> + "Yes, I will say so." + </p> + <p> + "Seventy?" + </p> + <p> + "Yes." + </p> + <p> + "Eighty?" + </p> + <p> + "Yes," responded the young lady with a countenance absolutely devoid of + expression. + </p> + <p> + "A hundred?" inquired the lawyer with a thrill of eager triumph in his + voice. + </p> + <p> + There was a significant hush in the court-room Then the witness, with a + patient smile and a slight lifting of her pretty eyebrows, remarked + quietly: + </p> + <p> + "Mr. Wellman, don't you think we have carried our little joke far enough?" + </p> + <p> + There is no witness in the world more difficult to cope with than a shrewd + old woman who apes stupidity, only to reiterate the gist of her testimony + in such incisive fashion as to leave it indelibly imprinted on the minds + of the jury. The lawyer is bound by every law of decency, policy and + manners to treat the aged dame with the utmost consideration. He must + allow her to ramble on discursively in defiance of every rule of law and + evidence in answer to the simplest question; must receive imperturbably + the opinions and speculations upon every subject of both herself and + (through her) of her neighbors; only to find when he thinks she must be + exhausted by her own volubility, that she is ready, at the slightest + opportunity, to break away again into a tangle of guesswork and hearsay, + interwoven with conclusions and ejaculation. Woe be unto him if he has not + sense enough to waive her off the stand! He might as well try to harness a + Valkyrie as to restrain a pugnacious old Irishwoman who is intent on + getting the whole business before the jury in her own way. + </p> + <p> + In the recent case of Gustav Dinser, convicted of murder, a vigorous old + lady took the stand and testified forcibly against the accused. She was as + "smart as paint," as the saying goes, and resolutely refused to answer any + questions put to her by counsel for the defence. Instead, she would raise + her voice and make a savage onslaught upon the prisoner, rehearsing his + brutal treatment of the deceased on previous occasions, and getting in the + most damaging testimony. + </p> + <p> + "Do you say, Mrs.—" the lawyer would inquire deferentially, "that + you heard the sound of three blows?" + </p> + <p> + "Oh, thim blows!" the old lady would cry—"thim turrible blows! I + could hear the villain as he laid thim on! I could hear the poor, pitiful + groans av her, and she so sufferin'! 'Twas awful! Howly Saints,'twould + make yer blood run cowld!" + </p> + <p> + "Stop! stop!" exclaimed the lawyer. + </p> + <p> + "Ah, stop is it? Ye can't stop me till Oi've had me say to tell the whole + truth. I says to me daughter Ellen, says I: 'Th' horrid baste is afther + murtherin' the poor thing,' says I; 'run out an' git an officer!'" + </p> + <p> + "I object to all this!" shouts the lawyer. + </p> + <p> + "Ah, ye objec', do ye?" retorts the old lady. "Shure an' ye'd have been + after objectin' if ye'd heard thim turrible blows that kilt her—the + poor, sufferin', swate crayter! I hope he gits all that's comin' to him—bad + cess to him for a blood-thirsty divil!" + </p> + <p> + The lawyer ignominiously abandoned the attack. + </p> + <p> + The writer recalls a somewhat similar instance, but one even better + exhibiting the cleverness of an old woman, which occurred in the year + 1901. A man named Orlando J. Hackett, of prepossessing appearance and + manners, was on trial, charged with converting to his own use money which + had been intrusted to him for investment in realty. The complainant was a + shrewd old lady, who together with her daughter, had had a long series of + transactions with Hackett which would have entirely confused the issue + could the defence have brought them before the jury. The whole contention + of the prosecution was that Hackett had received the money for one purpose + and used it for another. During preparation for the trial the writer had + had both ladies in his office and remembers making the remark: + </p> + <p> + "Now, Mrs. ———, don't forget that the charge here is + that you gave Mr. Hackett the money to put into real estate. Nothing else + is comparatively of much importance." + </p> + <p> + "Be sure and remember that, mother," the daughter had admonished her. + </p> + <p> + In the course of a month the case came on for trial before Recorder Goff, + in Part II of the General Sessions. Mrs. ——— gave her + testimony with great positiveness. Mr. Lewis Stuyvesant Chanler, now + Lieutenant-Governor of the State, arose to cross-examine her. + </p> + <p> + "Madam," he began courteously, "you say you gave the defendant money?" + </p> + <p> + "I told him to put it into real estate, and he said he would!" replied + Mrs. firmly. + </p> + <p> + "I did not ask you that, Mrs. ———," politely interjected + Mr. Chanler. "How much did you give him?" + </p> + <p> + "I told him to put it into real estate, and he said he would!" repeated + the old lady wearily. + </p> + <p> + "But, madam, you do not answer my question!" exclaimed Chanler. "How much + did you give him?" + </p> + <p> + "I told him to put it into real—" began the old lady again. + </p> + <p> + "Yes, yes!" cried the lawyer; "we know that! Answer the question." + </p> + <p> + "estate, and he said he would!" finished the old woman innocently. + </p> + <p> + "If your Honor please, I will excuse the witness. And I move that her + answers be stricken out!" cried Chanler savagely. + </p> + <p> + The old lady was assisted from the stand, but as she made her way with + difficulty towards the door of the court-room she could be heard repeating + stubbornly: + </p> + <p> + "I told him to put it into real estate, and he said he would!" + </p> + <p> + Almost needless to say, Hackett was convicted and sentenced to seven years + in State's prison. + </p> + <p> + To recapitulate, the quickness and positiveness of women make them + ordinarily better witnesses than men; they are vastly more difficult to + cross-examine; their sex protects them from many of the most effective + weapons of the lawyer, with the result that they are the more ready to + yield to prevarication; and, even where the possibility of complete and + unrestricted cross-examination is afforded, their tendency to inaccurately + inferential reasoning, and their elusiveness in dodging from one + conclusion to another, render the opportunity of little value. + </p> + <p> + In general, however, women's testimony differs little in quality from that + of men, all testimony being subject to the same three great limitations + irrespective of the sex of the witness, and the conclusions set forth + above are merely the result of an effort on the part of the writer to + comment somewhat upon those small differences which, under close scrutiny, + may fairly be said to exist. These differences are quite as noticeable at + the breakfast-table as in the court-room; and are no more patent to the + advocate than to the ordinary male animal whose forehead habitually + reddens when he hears the unanswerable reason which, in default of all + others, explains and glorifies the mental action of his wife, sister or + mother: "Just because!" + </p> + <p> + AS COMPLAINANTS AND DEFENDANTS + </p> + <p> + The ratio of women to men indicted and tried for crime is, roughly, about + one to ten. Could adequate statistics be procured, the proportion of + female to male complainants in criminal cases would very likely prove to + be about the same: In a very substantial proportion, therefore, of all + prosecutions for crime a woman is one of the chief actors. The law of the + land compels the female prisoner to submit the question of her guilt or + innocence to twelve individuals of the opposite sex; and permits the + female complainant to rehearse the story of her wrongs before the same + collection of colossal intellects and adamantine hearts. + </p> + <p> + The first thing the ordinary woman hastens to do if she be summoned to + appear in a court of justice is not, as might be expected, to think over + her testimony or try to recall facts obliterated or confused by time, but + to buy a new hat; and precisely the same thing is true of the female + defendant called to the bar of justice, whether it be for stealing a pair + of gloves or poisoning her lover. + </p> + <p> + Yet how far does the element of sex defeat the ends of justice? To answer + this question it is necessary to determine how far juries are liable to + favor the testimony of a woman plaintiff merely because she is a woman, + and how far sympathy for a woman arraigned as a prisoner is likely to warp + their judgment. + </p> + <p> + As to the first, it is fairly safe to say that a woman is much more likely + to win a verdict in a civil court or to persuade the jury that the + prisoner is guilty in a criminal case than a man would be in precisely + similar circumstances. In most criminal prosecutions for the ordinary run + of felonies little injustice is likely to result from this. There is one + exception, however, where juries should reach conclusions with extreme + caution, namely, where certain charges are brought by women against + members of the opposite sex. + </p> + <p> + Here the jury is apt to leap to a conclusion, rendered easy by the + attractiveness of the witness and the feeling that the defendant is a "cur + anyway," and ought to be "sent up." + </p> + <p> + The difficulty of determining, even in one's office, the true character of + a plausible woman is enhanced tenfold in the court-room, where the lawyer + is generally compelled to proceed upon the assumption that the witness is + a person of irreproachable life and antecedents. Almost any young woman + may create a favorable impression, provided her taste in dress be not too + crude, and, even when it is so, the jury are not apt to distinguish + carefully between that which cries to Heaven and that which is merely + "elegant." + </p> + <p> + When the complaining witness is a woman who has merely lost money through + the acts of the defendant, the jury are not so readily moved to accept her + story in toto as when the crime charged is of a different character. They + realize that the complainant, feeling that she has been injured, may be + inclined to color her testimony, perhaps unconsciously, until the wrong + becomes a crime. + </p> + <p> + An ordinary example of this variety of prosecution is where the witness is + a young woman from the East Side, usually a Polish or Russian Jewess, who + charges the defendant, a youth of about her own age, with stealing her + money by means of false pretences. They have been engaged to be married, + and she has turned over her small savings to him to purchase the diamond + ring and perhaps set him up in a modest business of his own. He has then + fallen in love with some other girl, has broken the engagement, and the + ring now adorns the fourth finger of her rival. Her money is gone. She is + without a dot. She hurries with her parents and loudly vociferating + friends to the Essex Market Police Court, and secures a warrant for the + defendant on the theory that he defrauded her by "trick and device" or + "false representations." Usually the only "representation" has been a + promise to marry her. Her real motive is revenge upon her faithless + fiance. In nine cases out of ten the fellow is a cad, who has deliberately + deserted her after getting her money, but it is doubtful whether any real + crime is involved. + </p> + <p> + If the judge lets the case go to the jury it is a pure gamble as to what + the result will be, and it may largely turn on the girl's physical + attractiveness. If she be pretty and demure a mixture of emotions is + aroused in the jury. "He probably did love her," say the twelve, "because + any one would be likely to do so. If he did love her, of course he didn't + falsely pretend to do so; but if he deserted a woman like that he ought to + be in jail anyway." Thus the argument that ought to acquit in fact may + convict the defendant. If the rival also is pretty, hopeless confusion + results; while if the complainant be a homely girl the jury feels that he + must have intended to swindle her anyway, as he could never have honestly + intended to marry her. Thus in any case the Lothario is apt to pay a + severe penalty for his faithlessness. + </p> + <p> + The man prosecuted by a woman, provided she cannot be persuaded to + withdraw the charge against him, is likely to get but cold consideration + for his side of the story and short shrift in the jury-room. Turn about, + if he can get a young and attractive woman to swear to his alibi or good + reputation the honest masculine citizen whom he has defrauded may very + likely have to whistle for his revenge. Many a scamp has gone free by + producing some sweetly demure maiden who faithfully swears that she knows + him to be an honest man. A blush at the psychological moment and a wink + from the lawyer is quite enough to lead the jury to believe that, if they + acquit the defendant, they will "make the young lady happy," whereas if he + is convicted she will remain for aye a heart-broken spinster. Like enough + she may be only the merest acquaintance. + </p> + <p> + The writer is not likely to forget a distinguished lawyer's instructions + to his client who happened also to be a childhood acquaintance—as + she was about to go into court as the plaintiff in a suit for damages: + </p> + <p> + "I would fold my hands in my lap, Gwendolyn—yes, like that—and + be calm, very calm. And, Gwendolyn, above all things, be demure, + Gwendolyn! Be demure!" + </p> + <p> + Gwendolyn was the demurest of the demure, letting her eyes fall beneath + their pendant black lashes at the conclusion of each answer, and won her + case without the slightest difficulty. + </p> + <p> + The unconscious or conscious influence of women upon the intellects of + jurymen has given rise to a very prevalent impression that it is difficult + if not impossible successfully to prosecute a woman for crime. This + feeling expresses itself in general statements to the effect that as + things stand to-day a woman may commit murder with impunity. Experience, + supplemented by the official records, demonstrates, however, that, curious + as it must seem, the same sentiment aroused by a woman supposed to have + been wronged is not inspired in a jury by a woman accused of crime. It is, + indeed, true that juries are apt to be more lenient with women than with + men, but this leniency shows itself not in acquitting them of the crimes + charged against them, but of finding them guilty in lower degrees. + </p> + <p> + Of course flagrant miscarriages of justice frequently occur, which, by + reason of their widespread publicity in the press, would seem to justify + the almost universal opinion that women are immune from the penalities for + homicide. It is also true that such miscarriages of justice are more + likely when the defendant is a woman than if he be a man. + </p> + <p> + One of these hysterical acquittals which give color to popular impression, + but which the writer believes to be an exception, was the case of a young + mother tried and acquitted for murder in the first degree, December 22, + 1904. This young woman, whose history was pathetic in the extreme, was + shown clearly by the evidence to have deliberately taken the life of her + child by giving it carbolic acid. The story was a shocking one, yet the + jury apparently never considered at all the possibility of convicting her, + but on retiring to the jury-room spent their time in discussing how much + money they should present her on her acquittal. + </p> + <p> + No better actor ever played a part upon the court-room stage than old + "Bill" Howe. His every move and gesture was considered with reference to + its effect upon the jury, and the climax of his summing-up was always + accompanied by some dramatic exhibition calculated to arouse sympathy for + his client. Himself an adept at shedding tears at will, he seemed able to + induce them when needed in the lachrymal glands of the most hardened + culprit whom he happened to be defending. + </p> + <p> + Mr. Wellman tells the story of how he was once prosecuting a woman for the + murder of her lover, whom she had shot rather than allow him to desert + her. She was a parson's daughter who had gone wrong and there seemed + little to be said in her behalf. She sat at the bar the picture of injured + innocence, with a look of spirituality which she must have conjured up + from the storehouse of her memories of her father. Howe was rather an + exquisite so far as his personal habits were concerned, and allowed his + finger-nails to grow to an extraordinary length. He had arranged that at + the climax of his address to the jury he would turn and, tearing away the + slender hands of his client from her tear-stained face, challenge the jury + to find guilt written there. Wellman was totally unprepared for this and a + shiver ran down his spine when he saw Howe, his face apparently surcharged + with emotion, turn suddenly towards his client and roughly thrust away her + hands. As he did so he embedded his finger-nails in her cheeks, and the + girl uttered an involuntary scream of nervous terror and pain that made + the jury turn cold. + </p> + <p> + "Look, gentlemen! Look in this poor creature's face! Does she look like a + guilty woman? No! A thousand times no! Those are the tears of innocence + and shame! Send her back to her aged father to comfort his old age! Let + him clasp her in his arms and press his trembling lips to her hollow eyes! + Let him wipe away her tears and bid her sin no more!" + </p> + <p> + The jury acquitted, and Wellman, aghast, followed them downstairs to + inquire how such a thing were possible. The jurors said that they had + agreed to disclose nothing of their deliberations. + </p> + <p> + "But," explained Wellman, "you see, in a way I am your attorney, and I + want to know how to do better next time. She had offered to plead guilty + if she could get off with twenty years!" + </p> + <p> + The abashed jury slunk downstairs in silence and the secret of their + deliberations remains as yet untold. + </p> + <p> + In spite of such cases, where guilty women have been acquitted through + maudlin sentiment or in response to popular clamor, nothing could be more + erroneous than the idea that few women who are brought to the bar of + justice are made to suffer for their offences. Thus, although no woman has + suffered the death penalty in New York County in twenty years, the average + number of convictions for crime is practically the same for women as for + men in proportion to the number indicted. The last unreversed conviction + of a woman for murder in the first degree was that of Chiara Cignarale, in + May, 1887. Her sentence was commuted to life imprisonment. Since then + thirty women have been actually tried before juries for homicide with the + following results: + </p> +<pre xml:space="preserve"> + Convicted of murder in first degree...........0 + Acquitted "...................................7 + " " murder in second degree...........3 + " " manslaughter in first degree.....10 + " " manslaughter in seconds degree...10 + + Total.......................................30 +</pre> + <p> + The percentage of convictions to acquittals is as follows: + </p> +<pre xml:space="preserve"> + Convictions Acquittals Convictions Acquittals + Per Cent Per Cent + 1887-1907......23........7..........77..........23 +</pre> + <p> + It is distinctly interesting to compare this with the table showing the + results of all the homicide trials for the past eight years irrespective + of the sex of the defendants: + </p> +<pre xml:space="preserve"> + Convictions Acquittals Convictions Acquittals + Per Cent Per Cent + + 1900.............5.......12...........29.........71 + 1901............17.......17...........50.........50 + 1902............15.......11...........58.........42 + 1903............24........8...........75.........25 + 1904............19.......14...........58.........42 + 1905............18.......13...........58.........42 + 1906............21.......22...........49.........51 + 1907............16.......10...........62.........38 + + Total..........135......107.....Aver. 55...Aver. 45 +</pre> + <p> + The reader will observe that the percentage of convictions to acquittals + of women defendants averages twenty-two per cent greater than the + percentage for both sexes. A more elaborate table would show that where + the defendants are men there are a greater proportionate number of + acquittals, but more verdicts in higher degrees. A verdict of manslaughter + in the second degree in the case of a man charged with murder is + infrequent, but convictions of murder in the second degree are exceedingly + common. + </p> + <p> + The reason for the higher percentage of convictions of women is that fewer + women who commit crime are prosecuted than men, and that they are rarely + indicted unless they are clearly guilty of the degree of crime charged + against them; while practically every man who is charged with homicide and + who, it seems, may be found guilty is indicted for murder in the first + degree. + </p> + <p> + The trial of women for crime invariably arouses keen public interest, and + the dethronement of a Czar, or the assassination of an Emperor, pales to + insignificance before the prosecution of a woman for murder. Some of this + interest is fictitious and stimulated merely by the yellow press, but a + great deal of it is genuine. The writer remembers attending a dinner of + gray-headed judges and counsellors during the trial of Anna Eliza, alias + "Nan," Patterson, where one would have supposed that the lightest subject + of conversation would be not less weighty than the constitutionality of an + income tax, and finding to his astonishment that the only topic for which + they showed any zest was whether "Nan" would be found guilty. + </p> + <p> + One of the earliest, if not the earliest, record of a woman being held for + murder is that of Agnes Archer, indicted by twelve men on April 4, 1435, + sworn before the mayor and coroner to inquire as to the death of Alice + Colynbourgh. The quaint old report begins in Latin, but "the pleadings" + are set forth in the language of the day, as follows: + </p> + <p> + "Agnes Archer, is that thy name? which answered, yes.... Thou art endyted + that thou.... feloney moderiste her with a knyff fyve tymes in the throte + stekyng, throwe the wheche stekyng the saide Alys is deed.... I am not + guilty of thoo dedys, ne noon of hem, God help me so.... How wylte thou + acquite the?... By God and by my neighbours of this town." + </p> + <p> + The subsequent history of Agnes is lost in obscurity, but since she had to + procure but thirty-six compurgators who were prepared to swear that they + believed her innocent, and as she was at liberty to choose these herself + from her native village of Winchelsea, it is probable that she escaped.* + </p> +<pre xml:space="preserve"> + * Cf. Thayer, as cited, supra. +</pre> + <p> + Fortunately the sight of a woman, save of the very lowest class, at the + bar of justice is rare. The number of cases where women of good + environment appear as defendants in the criminal courts in the course of a + year may be numbered upon the fingers of a single hand, and, although the + number of female defendants may equal ten per cent of the total number of + males, not one-tenth of the women brought to the bar of justice have had + the benefit of an honest bringing up and good surroundings. + </p> + <p> + <a name="link2HCH0008" id="link2HCH0008"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + CHAPTER VIII. Tricks of the Trade + </h2> + <p> + "Tricks and treachery," said Benjamin Franklin, "are the practice of fools + that have not wit enough to be honest." Had the kindly philosopher been + familiar with all the exigencies of the criminal law he might have added a + qualification to this somewhat general, if indisputably moral, maxim. + Though it doubtless remains true as a guiding principle of life that + "Honesty is the best policy," it would be an unwarrantable aspersion upon + the intellectual qualities of the members of the criminal bar to say that + the tricks by virtue of which they often get their clients off are "the + practice of fools." On the contrary, observation would seem to indicate + that in many instances the wiser, or at least the more successful, the + practitioner of criminal law becomes, the more numerous and ingenious + become the "tricks" which are his stock in trade. This must not be taken + to mean that there are not high-minded and conscientious practitioners of + criminal law, many of them financially successful, some filled with a + noble humanitarian purpose, and some drawn to their calling by a sincere + enthusiasm for the vocation of the advocate which, in these days of + "business" law and commercial methods, reaches perhaps its highest form in + the criminal courts. + </p> + <p> + There are no more "tricks" practised in these tribunals than in the civil, + but they are more ingenious in conception, more lawless in character, + bolder in execution and less shamefaced in detection. + </p> + <p> + Let us not be too hard upon our brethren of the criminal branch. Truly, + their business is to "get their clients off." It is unquestionably a + generally accepted principle that it is better that ninety-nine guilty men + should escape than that one innocent man should be convicted. However much + persons of argumentative or philosophic disposition may care to quarrel + with this doctrine, they must at least admit that it would doubtless + appear to them of vital truth were they defending some trembling client + concerning whose guilt or innocence they were themselves somewhat in + doubt. "Charity believeth all things," and the prisoner is entitled to + every reasonable doubt, even from his own lawyer. It is the lawyer's + business to create such a doubt if he can, and we must not be too + censorious if, in his eagerness to raise this in the minds of the jury, he + sometimes oversteps the bounds of propriety, appeals to popular prejudices + and emotions, makes illogical deductions from the evidence, and impugns + the motives of the prosecution. The district attorney should be able to + take care of himself, handle the evidence in logical fashion, and tear + away the flimsy curtain of sentimentality hoisted by the defence. These + are hardly "tricks" at all, but sometimes under the name of advocacy a + trick is "turned" which deserves a much harsher name. + </p> + <p> + Not long ago a celebrated case of murder was moved for trial after the + defendant's lawyer had urged him in vain to offer a plea of murder in the + second degree. A jury was summoned and, as is the usual custom in such + cases, examined separately on the "voir dire" as to their fitness to + serve. The defendant was a German, and the prosecutor succeeded in keeping + all Germans off the jury until the eleventh seat was to be filled, when he + found his peremptory challenges exhausted. Then the lawyer for the + prisoner managed to slip in a stout old Teuton, who replied, in answer to + a question as to his place of nativity, "Schleswig-Holstein." The lawyer + made a note of it, and, the box filled, the trial proceeded with unwonted + expedition. + </p> + <p> + The defendant was charged with having murdered a woman with whom he had + been intimate, and his guilt of murder in the first degree was + demonstrated upon the evidence beyond peradventure. At the conclusion of + the case, the defendant not having dared to take the stand, the lawyer + arose to address the jury in behalf of what appeared a hopeless cause. + Even the old German in the back row seemed plunged in soporific + inattention. After a few introductory remarks the lawyer raised his voice + and in heart-rending tones began: + </p> + <p> + "In the beautiful county of Schleswig-Holstein sits a woman old and gray, + waiting the message of your verdict from beyond the seas." (Number 11 + opened his eyes and looked at the lawyer as if not quite sure of what he + had heard.) "There she sits" (continued the attorney), "in + Schleswig-Holstein, by her cottage window, waiting, waiting to learn + whether her boy is to be returned to her outstretched arms." (Number 11 + sat up and rubbed his forehead.) "Had the woman, who so unhappily met her + death at the hands of my unfortunate client, been like those women of + Schleswig-Holstein—noble, sweet, pure, lovely women of + Schleswig-Holstein—I should have naught to say to you in his + behalf." (Number 11 leaned forward and gazed searchingly into the lawyer's + face.) "But alas, no! Schleswig-Holstein produces a virtue, a loveliness, + a nobility of its own." (Number 11 sat up and proudly expanded his chest.) + </p> + <p> + When, after about an hour or more of Schleswig-Holstein the defendant's + counsel surrendered the floor to the district attorney, the latter found + it quite impossible to secure the slightest attention from the eleventh + juror, who seemed to be spending his time in casting compassionate glances + in the direction of the prisoner. In due course the jury retired, but had + no sooner reached their room and closed the door than the old Teuton + cried, "Dot man iss not guilty!" The other eleven wrestled with him in + vain. He remained impervious to argument for seventeen hours, declining to + discuss the evidence, and muttering at intervals, "Dot man iss not + guilty!" The other eleven stood unanimously for murder in the first + degree, which was the only logical verdict that could possibly have been + returned upon the evidence. + </p> + <p> + At last, worn out with their efforts, they finally induced the old Teuton + to compromise with them on a verdict of manslaughter. Wearily they + straggled in, the old native of Schleswig-Holstein bringing up the rear, + bursting with exultation and with victory in his eye. + </p> + <p> + "Gentlemen of the jury, have you agreed upon a verdict?" inquired the + clerk. + </p> + <p> + "We have," replied the foreman. + </p> + <p> + "How say you, do you find the defendant guilty or not guilty?" + </p> + <p> + "Guilty—of manslaughter," returned the foreman feebly. + </p> + <p> + The district attorney was aghast at such a miscarriage of justice, and the + judge showed plainly by his demeanor his opinion of such a verdict. But + the old inhabitant of Schleswig-Holstein cared for this not a whit. The + old mother in Schleswig-Holstein might still clasp her son in her arms + before she died! The defendant was arraigned at the bar. Then for the + first time, and to the surprise and disgust of No. 11, he admitted in + answer to the questions of the clerk that his parents were both dead and + that he was born in Hamburg, a town for whose inhabitants the old juryman + had, like others of his compatriots, a constitutional antipathy. + </p> + <p> + The "tricks" of the trade as practised by the astute and unscrupulous + criminal lawyer vary with the stage of the case and the character of the + crime charged. They are also adapted with careful attention to the + disposition, experience and capacity of the particular district attorney + who happens to be trying the case against the defendant. An illustration + of one of these occurred during the prosecution of a bartender for selling + "spirituous liquors" without a proper license. He was defended by an old + war-horse of the criminal bar famous for his astuteness and ability to + laugh a case out of court. The assistant district attorney who appeared + against him was a young man recently appointed to office, and who was + almost overcome at the idea of trying a case against so well known a + practitioner. He had personally conducted but very few cases, had an + excessive conception of his own dignity, and dreaded nothing so much as to + appear ridiculous. Everything, except the evidence, favored the defendant, + who, however, was, beyond every doubt, guilty of the offence charged. + </p> + <p> + The young assistant put in his case, calling his witnesses one by one, and + examining them with the most feverish anxiety lest he should forget + something. The lawyer for the defence made no cross-examination and + contented himself with smiling blandly as each witness left the stand. The + youthful prosecutor became more and more nervous. He was sure that + something was wrong, but he couldn't just make out what. At the conclusion + of the People's case the lawyer inquired, with a broad grin, "if that was + all." + </p> + <p> + The young assistant replied that it was, and that, in his opinion, it was + "quite enough." + </p> + <p> + "Let that be noted by the stenographer," remarked the lawyer. "Now, if + your Honors please," he continued, addressing the three judges of the + Special Sessions, "you all know how interested I am to see these young + lawyers growing up. I like to help 'em along—give 'em a chance—teach + 'em a thing or two. I trust it may not be out of place for me to say that + I like my young friend here and think he tried his case very well. But he + has a great deal to learn. I'm always glad, as I said, to give the boys a + chance—to give 'em a little experience. I shall not put my client + upon the stand. It is not necessary. The fact is," turning suddenly to the + unfortunate assistant district attorney—"my client has a license." + He drew from his pocket a folded paper and handed it to the paralyzed + young attorney with the harsh demand: "What do you say to that?" + </p> + <p> + The assistant took the paper in trembling fingers and perused it as well + as he could in his unnerved condition. + </p> + <p> + "Mr. District Attorney," remarked the presiding justice dryly (which did + not lessen the confusion of the young lawyer), "is this a fact? Has the + defendant a license?" + </p> + <p> + "Yes, your Honors," replied the assistant; "this paper seems to be a + license." + </p> + <p> + "Defendant discharged!" remarked the court briefly. + </p> + <p> + The prisoner stepped from the bar and rapidly disappeared though the door + of the court-room. After enough time had elapsed to give him a good start + and while another case was being called, the old lawyer leaned over to the + assistant and remarked with a chuckle + </p> + <p> + "I am always glad to give the boys a chance—help 'em along—teach + 'em a little. That license was a beer license!" + </p> + <p> + BEFORE TRIAL + </p> + <p> + To begin at the beginning, whenever a person has been arrested, charged + with crime, and has secured a criminal lawyer to defend him, the first + move of the latter is naturally to try and nip the case in the bud by + inducing the complaining witness to abandon the prosecution. In a vast + number of cases he is successful. He appeals to the charity of the injured + party, quotes a little of the Scriptures and the "Golden Rule," pictures + the destitute condition of the defendant's family should he be cast into + prison, and the dragging of an honored name in the gutter if he should be + convicted. Few complainants have ever before appeared in a police court, + and are filled with repugnance at the rough treatment of prisoners and the + suffering which they observe upon every side. After they have seen the + prisoner emerge from the cells, pale, hollow-eyed, bedraggled, and have + beheld the tears of his wife and children as they crowd around the husband + and father, they begin to realize the horrible consequences of a criminal + prosecution and to regret that they ever took the steps which have brought + the wrong-doer where he is. The district attorney had not yet taken up the + case; the prosecution up to this point is of a private character; there + are loud promises of "restitution" and future good behavior from the + defendant, and the occasion is ripe for the lawyer to urge the complainant + to "temper justice with mercy" and withdraw "before it be too late and the + poor man be ruined forever." + </p> + <p> + If the complainant is, however, bent on bringing the defendant to justice + and remains adamantine to the arguments of the lawyer and the tears of the + defendant's family connections, it remains for the prisoner's attorney to + endeavor to get the case adjourned "until matters can be adjusted"—to + wit, restitution made if money has been stolen, or doctors' bills paid if + a head has been cracked, with perhaps another chance of "pulling off" the + complainant and his witnesses. Failing in an attempt to secure an + adjournment, two courses remain open: first, to persuade the court that + the matter is a trivial one arising out of petty spite, is all a mistake, + or that at best it is a case of "disorderly conduct" (and thus induce the + judge to "turn the case out" or inflict some trifling punishment in the + shape of a fine); or, second, if it be clear that a real crime has been + committed, to clamor for an immediate hearing in order, if it be secured, + to subject the prosecution's witnesses to a most exhaustive + cross-examination, and thus get a clear idea of just what evidence there + is against the accused. + </p> + <p> + At the conclusion of the complainant's case, if it appear reasonably + certain that the magistrate will "hold" the prisoner for the action of a + superior court, the lawyer will then "waive further examination," or, in + other words, put in no defence, preferring the certainty of having to face + a jury trial to affording in prosecution an opportunity to discover + exactly what defence will be put in and to secure evidence in advance of + the trial to rebut it. Thus it rarely happens in criminal cases of + importance that the district attorney knows what the defence is to be + until the defendant himself takes the stand, and, by "waiving further + examination" in the police court, the astute criminal attorney may select + at his leisure the defence best suited to fit in with and render nugatory + the prosecution's evidence. + </p> + <p> + The writer has frequently been told by the attorney for a defendant on + trial for crime that "the defence has not yet been decided upon." In fact, + such statements are exceedingly common. In many courts the attitude of all + parties concerned seems to be that the defendant will put up a perjured + defence (so far as his own testimony is concerned, at any rate) as a + matter of course, and that this is hardly to be taken against him. + </p> + <p> + On the other hand, if a guilty defendant has been so badly advised as to + give his own version of the case before the magistrate in the first + instance, it requires but slight assiduity on the part of the district + attorney to secure, in the interval between the hearing and the jury + trial, ample evidence to rebut it. + </p> + <p> + As illustrating merely the fertility and resourcefulness of some + defendants (or perhaps their counsel), the writer recalls a case which he + tried in the year 1902 where the defendant, a druggist, was charged with + manslaughter in having caused the death of an infant by filling a doctor's + prescription for calomel with morphine. It so happened that two jars + containing standard pills had been standing side by side upon an adjacent + shelf, and, a prescription for morphine having come in at the same time as + that for the calomel, the druggist had carelessly filled the morphine + prescription with calomel, and the calomel prescription with morphine. The + adult for whom the morphine had been prescribed recovered immediately + under the beneficent influence of the calomel, but the baby for whom the + calomel had been ordered died from the effects of the first morphine pill + administered. All this had occurred in 1897—five years before. The + remainder of the pills had disappeared. + </p> + <p> + Upon the trial (no inconsistent contention having been entered in the + police court) the prisoner's counsel introduced six separate defences, to + wit: That the prescription had been properly filled with calomel and that + the child had died from natural causes, the following being suggested. + </p> + <p> + 1. Acute gastritis. + </p> + <p> + 2. Acute nephritis. + </p> + <p> + 3. Cerebro-spinal meningitis. + </p> + <p> + 4. Fulminating meningitis. + </p> + <p> + 5. That the child had died of apomorphine, a totally distinct poison. + </p> + <p> + 6. That it had received and taken calomel, but that, having eaten a small + piece of pickle shortly before, the conjunction of the vegetable acid with + the calomel had formed, in the child's stomach, a precipitate of corrosive + sublimate, from which it had died. + </p> + <p> + These were all argued with great learning. During the trial the box + containing the balance of the pills, which the defence contended were + calomel, unexpectedly turned up. It has always been one of the greatest + regrets of the writer's life that he did not then and there challenge the + defendant to eat one of the pills and thus prove the good faith of his + defence. + </p> + <p> + This was one of the very rare cases where a chemical analysis has been + conducted in open court. The chemist first tested a standard trade + morphine pill with sulphuric acid, so that the jury could personally + observe the various color reactions for themselves. He then took one of + the contested pills and subjected it to the same test. The first pill had + at once turned to a brilliant rose, but the contested pill, being + antiquated, "hung fire," as it were, for some seconds. As nothing + occurred, dismay made itself evident on the face of the prosecutor, and + for a moment he felt that all was lost. Then the five-year-old pill slowly + turned to a faint brown, changed to a yellowish red, and finally broke + into an ardent rose. The jury settled back into their seats with an + audible "Ah!" and the defendant was convicted. + </p> + <p> + Let us return, however, to that point in the proceedings where the + defendant has been "held for trial" by the magistrate. The prisoner's + counsel now endeavors to convince the district attorney that "there is + nothing in the case," and continues unremittingly to work upon the + feelings of the complainant. If he finds that his labors are likely to be + fruitless in both directions, he may now seek an opportunity to secure + permission for his client to appear before the grand jury and explain + away, if possible, the charge against him. + </p> + <p> + We will assume, however, that, in spite of the assiduity of his lawyer, + the prisoner has at last been indicted and is awaiting trial. What can be + done about it? Of course, if the case could be indefinitely adjourned, the + complainant or his chief witness might die or move away to some other + jurisdiction, and if the indictment could be "pigeon-holed" the case might + die a natural death of itself. Indictments, however, in New York County, + whatever may be the case elsewhere, are no longer "pigeon-holed," and they + cannot be adequately "lost," since certified copies are made of each. The + next step, therefore, is to secure as long a time as possible before + trial. + </p> + <p> + Usually a prisoner has nothing to lose and everything to gain by delay, + and the excuses offered for adjournment are often ingenious in the + extreme. The writer knows one criminal attorney who, if driven to the wall + in the matter of excuses, will always serenely announce the death of a + near relative and the obligation devolving upon him to attend the funeral. + Another, as a last resort, regularly is attacked in open court by severe + cramps in the stomach. If the court insists on the trial proceeding, he + invariably recovers. Of course, there are many legitimate reasons for + adjourning cases which the prosecution is powerless to combat. + </p> + <p> + The most effective method invoked to secure delay, and one which it is + practically useless for the district attorney to oppose, is an application + "to take testimony" upon commission in some distant place. Here again it + must be borne in mind that such applications are often legitimate and + proper and should be granted in simple justice to the defendant. Although + this right to take the testimony of absent witnesses is confined in New + York State to the defendant and does not extend to the prosecution, and is + undoubtedly often the subject of much abuse, it not infrequently is the + cause of saving an innocent man. + </p> + <p> + An example of this was the case of William H. Ellis, recently brought into + the public eye through his connection with the treaty between the United + States Government and King Menelik of Abyssinia. Ellis was accused in 1901 + by a young woman of apparently excellent antecedents and character of a + serious crime. Prior to his indictment a colored man employed in his + office (the alleged scene of the crime) disappeared. When the case was + moved for trial, Ellis, through his attorneys, moved for a commission to + take the testimony of this absent, but clearly material, witness in one of + the remote States of Mexico—a proceeding which would require a + journey of some two weeks on muleback, beyond the railway terminus. The + district attorney, in view of the peculiarly opportune disappearance of + this person from the jurisdiction, strenuously opposed the application and + hinted at collusion between Ellis and the witness. The application, + however, was granted, and a delay of over a month ensued. During that time + evidence was procured by the counsel of the prisoner showing conclusively + that the complaining witness was mentally unsound and had made similar and + groundless charges against others. The indictment was at once dismissed. + </p> + <p> + But such delays are not always so righteously employed. There is a story + told of a case where a notorious character was charged with the unusual + crime of "mayhem"—biting off another man's finger. The defendant's + counsel secured adjournment after adjournment—no one knew why. At + last the case was moved for trial and the prosecution put in its evidence, + clearly showing the guilt of the prisoner. At the conclusion of the + People's testimony, the lawyer for the defendant arose and harshly + stigmatized the story of the complainant as a "pack of lies." + </p> + <p> + "I will prove to you in a moment, gentlemen," exclaimed he to the jury, + "how absurd is this charge against my innocent client. Take the stand!" + </p> + <p> + The prisoner arose and walked to the witnesschair. + </p> + <p> + "Open your mouth!" shouted the lawyer. + </p> + <p> + The defendant did so. He had not a tooth in his head. The delay had been + advantageously employed. + </p> + <p> + The importance of mere delay to a guilty defendant cannot well be + overestimated. "You never can tell what may happen to knock a case on the + head." For this reason a sufficiently paid and properly equipped counsel + will run the whole gamut of criminal procedure, and: + </p> + <p> + 1. Demur to the indictment. + </p> + <p> + 2. Move for an inspection of the minutes of the proceedings before the + grand jury. + </p> + <p> + 3. Move to dismiss the indictment for lack of sufficient evidence before + that body. + </p> + <p> + 4. Move for a commission to take testimony. + </p> + <p> + 5. Move for a change of venue. + </p> + <p> + 6. Secure, where possible, a writ of habeas corpus and a stay of + proceedings from some federal judge on the ground that his client is + confined without due process of law. + </p> + <p> + All these steps he will take seriatim, and some cases have been delayed + for as much as two years by merely invoking "legitimate" legal processes. + In point of fact it is quite possible for any defendant absolutely to + prevent an immediate trial provided he has the services of vigilant + counsel, for these are not the only proceedings of which he can avail + himself. + </p> + <p> + A totally distinct method is for the defendant to secure bail, and, after + securing as many adjournments as possible, simply flee the jurisdiction. + He will then remain away until the case is hopelessly stale, or he no + longer fears prosecution. + </p> + <p> + In default of all else he may go "insane" just before the case is moved + for trial. This habit of the criminal rich when brought to book for their + misdeeds is too well known to require comment. All that is necessary is + for a sufficient number of "expert" alienists to declare it to be their + opinion that the defendant is mentally incapable of understanding the + proceedings against him or of preparing his defence, and he is shifted off + to a "sanitarium" until some new sensation occupies the public mind and + his offences are partially forgotten. + </p> + <p> + In this way justice is often thwarted and the law cheated of its victim, + but unless fortune favors him, sooner or later the indicted man must + return for trial and submit the charge against him to a jury. But if this + happens, even if he be guilty, all hope need not be lost. There are still + "tricks of the trade" which may save him from the clutches of the law. + </p> + <p> + AT THE TRIAL + </p> + <p> + What can be done when at last the prisoner who has fought presistently for + adjournment has been forced to face the witnesses against him and submit + the evidence to a jury of peers? Let us assume further that he has been + "out on bail," with plenty of opportunity to prepare his defence and lay + his plans for escape. + </p> + <p> + When the case is finally called and the defendant takes his seat at the + bar after a lapse of anywhere from six months to a year or more after his + arrest, the first question for the district attorney to investigate is + whether or no the person presenting himself for trial be in point of fact + the individual mentioned in the indictment. This is often a difficult + matter to determine. "Ringers"—particularly in the magistrates' + courts—are by no means unknown. Sometimes they appear even in the + higher courts. If the defendant be an ex-convict or a well-known crook, + his photograph and measurements will speedily remove all doubt upon the + subject, but if he be a foreigner (particularly a Pole, Italian or a + Chinaman), or even merely one of the homogeneous inhabitants of the + densely-populated East Side of New York, it is sometimes a puzzling + problem. "Mock Duck," the celebrated Highbinder of Chinatown, who was set + free after two lengthy trials for murder, was charged not long ago with a + second assassination. He was pointed out to the police by various + Chinamen, arrested and brought into the Criminal Courts building for + identification, but for a long time it was a matter of uncertainty whether + friends of his (masquerading as enemies) had not surrendered a substitute. + Luckily the assistant district attorney who had prosecuted this wily and + dangerous Celestial in the first instance was able to identify him. + </p> + <p> + Many years ago, during the days of Fernando Wood, a connection of his was + reputed to be the power behind the "policy" business in New York City—the + predecessor of the notorious Al Adams. A "runner" belonging to the system + having been arrested and policy slips having been found in his possession, + the reigning Policy King retained a lawyer of eminent respectability to + see what could be done about it. The defendant was a particularly valuable + man in the business and one for whom his employer desired to do everything + in his power. The lawyer advised the defendant to plead guilty, provided + the judge could be induced to let him off with a fine, which the policy + King agreed to pay. Accordingly, the lawyer visited the judge in his + chambers and the latter practically promised to inflict only a fine in + case the defendant, whom we will call, out of consideration for his + memory, "Johnny Dough," should plead guilty. Unfortunately for this very + satisfactory arrangement, the judge, now long since deceased, was + afflicted with a serious mental trouble which occasionally manifested + itself in peculiar losses of memory. When "Johnny Dough," the Policy + King's favorite, was arraigned at the bar and, in answer to the clerk's + interrogation, stated that he withdrew his plea of "not guilty" and now + stood ready to plead "guilty," the judge, to the surprise and + consternation of the lawyer, the defendant, and the latter's assembled + friends, turned upon him and exclaimed: + </p> + <p> + "Ha! So you plead guilty, do you? Well, I sentence you to the penitentiary + for one year, you miserable scoundrel!" + </p> + <p> + Utterly overwhelmed, "Johnny Dough!" was led away, while his lawyer and + relatives retired to the corridor to express their opinion of the court. + About three months later the lawyer, who had heard nothing further + concerning the case, happened to be in the office of the district + attorney, when the latter looked up with a smile and inquired: + </p> + <p> + "Well, how's your client-Mr. Dough?" + </p> + <p> + "Safe on the Island, I suppose," replied the lawyer, + </p> + <p> + "Not a bit of it," returned the district attorney. "He never went there." + </p> + <p> + "What do you mean?" inquired the lawyer. "I heard him sentenced to a year + myself!" + </p> + <p> + "I can't help that," said the district attorney. "The other day a + workingman went down to the Island to see his old friend 'Johnny Dough.' + There was only one 'Johnny Dough' on the lists, but when he was produced + the visitor exclaimed: 'That Johnny Dough! That ain't him at all, at all!' + The visitor departed in disgust. We instituted an investigation and found + that the man at the Island was a 'ringer.'" + </p> + <p> + "You don't say!" cried the lawyer. + </p> + <p> + "Yes," continued the district attorney. "But that is not the best part of + it. You see, the 'ringer' says he was to get two hundred dollars per month + for each month of Dough's sentence which he served. The prison authorities + have refused to keep him any longer, and now he is suing them for damages, + and is trying to get a writ of mandamus to compel them to take him back + and let him serve out the rest of the sentence!" + </p> + <p> + Probably the most successful instance on record of making use of a dummy + occurred in the early stages of the now famous Morse-Dodge divorce tangle. + Dodge had been the first husband of Mrs. Morse, and from him she had + secured a divorce. A proceeding to effect the annulment of her second + marriage had been begun on the ground that Dodge had never been legally + served with the papers in the original divorce case—in other words, + to establish the fact that she was still, in spite of her marriage to + Morse, the wife of Dodge. Dodge appeared in New York and swore that he had + never been served with any papers. A well-known and reputable lawyer, on + the other hand, Mr. Sweetser, was prepared to swear that he had served + them personally upon Dodge himself. The matter was sent by the court to a + referee. At the hour set for the hearing in the referee's office, Messrs. + Hummel and Steinhardt arrived early, in company with a third person, and + took their seats with their backs to a window on one side of the table, at + the head of which sat the referee, and opposite ex-Judge Fursman, attorney + for Mrs. Morse. Mr. Sweetser was late. Presently he appeared, entered the + office hurriedly, bowed to the referee, apologized for being tardy, + greeted Messrs. Steinhardt and Hummel, and then, turning to their + companion, exclaimed: "How do you do, Mr. Dodge?" It was not Dodge at all, + but an acquaintance of one of Howe & Hummel's office force who had + been asked to accommodate them. Nothing had been said, no representations + had been made, and Sweetser had voluntarily walked into a trap. + </p> + <p> + The attempt to induce witnesses to identify "dummies" is frequently made + by both sides in criminal cases, and under certain circumstances is + generally regarded as professional. Of course, in such instances no false + suggestions are made, the witness himself being relied upon to "drop the + fall." In case he does identify the wrong person, he has, of course, + invalidated his entire testimony. + </p> + <p> + Not in one case out of five hundred, however, is any attempt made to + substitute a "dummy" for the real defendant, the reason being, presumably, + the prejudice innocent people have against going to prison even for a + large reward. The question resolves itself, therefore, into how to get the + client off when he is actually on trial. First, how can the sympathies of + the jury be enlisted at the very start? Weeping wives and wailing infants + are a drug on the market. It is a friendless man indeed, even if he be a + bachelor, who cannot procure for the purposes of his trial the services of + a temporary wife and miscellaneous collection of children. Not that he + need swear that they are his! They are merely lined up along a bench well + to the front of the court-room—the imagination of the juryman does + the rest. + </p> + <p> + A defendant's counsel always endeavors to impress the jury with the idea + that all he wants is a fair, open trial—and that he has nothing in + the world to conceal. This usually takes the form of a loud announcement + that he is willing "to take the first twelve men who enter the box." + Inasmuch as the defence needs only to secure the vote of one juryman to + procure a disagreement, this offer is a comparatively safe one for the + defendant to make, since the prosecutor, who must secure unanimity on the + part of the jury (at least in New York State), can afford to take no + chances of letting an incompetent or otherwise unfit talesman slip into + the box. Caution requires him to examine the jury in every important case, + and frequently this ruse on the part of the defendant makes it appear as + if the State had less confidence in its case than the defence. This trick + was invariably used by the late William F. Howe in all homicide cases + where he appeared for the defence. + </p> + <p> + The next step is to slip some juryman into the box who is likely for any + one of a thousand reasons to lean toward the defence—as, for + example, one who is of the same religion, nationality or even name as the + defendant. The writer once tried a case where the defendant was a Hebrew + named Bauman, charged with perjury. Mr. Abraham Levy was the counsel for + the defendant. Having left an associate to select the jury the writer + returned to the courtroom to find that his friend had chosen for foreman a + Hebrew named Abraham Levy. Needless to say, a disagreement of the jury was + the almost inevitable result. The same lawyer not many years ago defended + a client named Abraham Levy. In like manner he managed to get an Abraham + Levy on the jury, and on that occasion succeeded in getting his client off + scot-free. + </p> + <p> + No method is too far-fetched to be made use of on the chance of "catching" + some stray talesman. In a case defended by Ambrose Hal. Purdy, where the + deceased had been wantonly stabbed to death by a blood-thirsty Italian + shortly after the assassination of President McKinley, the defence was + interposed that a quarrel had arisen between the two men owing to the fact + that the deceased had loudly proclaimed anarchistic doctrines and openly + gloried in the death of the President, that the defendant had expostulated + with him, whereupon the deceased had violently attacked the prisoner, who + had killed him in self-defence. + </p> + <p> + The whole thing was so thin as to deceive nobody, but Mr. Purdy, as each + talesman took the witness-chair to be examined on the voir dire, solemnly + asked each one: + </p> + <p> + "Pardon me for asking such a question at this time—it is only my + duty to my unfortunate client that impels me to it—but have you any + sympathy with anarchy or with assassination?" + </p> + <p> + The talesman, of course, inevitably replied in the negative. + </p> + <p> + "Thank you, sir," Purdy would continue: "In that event you are entirely + acceptable!" + </p> + <p> + Not long ago two shrewd Irish attorneys were engaged in defending a client + charged with an atrocious murder. The defendant had the most Hebraic cast + of countenance imaginable, and a beard that reached to his waist. + Practically the only question which these lawyers put to the different + talesmen during the selection of the jury was, "Have you any prejudice + against the defendant on account of his race?" In due course they + succeeded in getting several Hebrews upon the jury who managed in the + jury-room to argue the verdict down from murder to manslaughter in the + second degree. As the defendant was being taken across the bridge to the + Tombs he fell on his knees and offered up a heartfelt prayer such as could + only have emanated from the lips of a devout Roman Catholic. + </p> + <p> + Lawyers frequently secure the good-will of jurors (which may last + throughout the trial and show itself in the verdict) by some happy remark + during the early stages of the case. During the Clancy murder trial each + side exhausted its thirty peremptory challenges and also the entire panel + of jurors in filling the box. At this stage of the case the foreman became + ill and had to be excused. No jurors were left except one who had been + excused by mutual consent for some trifling reason, and who out of + curiosity had remained in court. He rejoiced in the name of Stone. Both + sides then agreed to accept him as foreman provided he was still willing + to serve, and this proving to be the case he triumphantly made his way + towards the box. As he did so, the defendant's counsel remarked: "The + Stone which the builders refused is become the head Stone of the corner." + The good-will generated by this meagre jest stood him later in excellent + stead. + </p> + <p> + In default of any other defence, some criminal attorneys have been known + to seek to excite sympathy for their helpless clients by appearing in + court so intoxicated as to be manifestly unable to take care of the + defendant's interests, and prisoners have frequently been acquitted simply + by virtue of their lawyer's obvious incapacity. The attitude of the jury + in such cases seems to be that the defendant has not had a "fair show" and + so should be acquitted anyway. Of course, this appeals to the juryman's + sympathies and he overlooks the fact that by his action the prosecution is + given no "show" at all. + </p> + <p> + Generally speaking, the advice credited to Mr. Lincoln, as being given by + him to a young attorney who was about to defend a presumably guilty + client, is religiously followed by all criminal practitioners: + </p> + <p> + "Well, my boy, if you've got a good case, stick to the evidence; if you've + got a weak one, go for the People's witnesses; but—if you've got no + case at all, hammer the district attorney!" + </p> + <p> + As a rule, however, criminal lawyers are not in a position to "hammer" the + prosecuting officer, but endeavor instead to suggest by innuendo or even + open declaration his bias and unfairness. + </p> + <p> + "Be fair, Mr.—!" is the continual cry. "Try to be fair!" + </p> + <p> + The defendant, whether he be an ex-convict or thirty-year-old professional + thief, is always "this poor boy," and, as he is not compelled by law to + testify, and as his failure to do so must not be weighed against him by + the jury, he frequently walks out of court a free man, because the jury + believe from the lawyer's remarks that he is in fact a mere youthful + offender of hitherto good reputation and deserves another chance. + </p> + <p> + By all odds the greatest abuse in criminal trials lies in the open + disregard of professional ethics on the part of lawyers who deliberately + supply of themselves, in their opening and closing addresses to the jury, + what incompetent bits of evidence, true or false, they have not been able + to establish by their witnesses. There is no complete cure for this, for + even if the judge rebukes the lawyer and directs the jury to disregard + what he has said as "not being in the evidence," the damage has been done, + the statement still lingering in the jury's mind without any opportunity + on the part of the prosecutor to disprove it. There is no antidote for + such jury-poison. A shyster lawyer need but to keep his client off the + stand and he can saturate the jury's mind with any facts concerning the + defendant's respectability and history which his imagination is powerful + enough to supply. On such occasions an ex-convict with no relatives may + become a "noble fellow, who, rather than have his family name tainted by + being connected with a criminal trial, is willing to risk even conviction"—"a + veteran of the glorious war which knocked the shackles from the slave"—"the + father of nine children"—"a man hounded by the police." The district + attorney may shout himself hoarse, the judge may pound his gavel in + righteous indignation, the lawyer may apologize because in the zeal with + which he feels inspired for his client's cause he perhaps (which only + makes matters worse) has overstepped the mark—but some juryman may + suppose that, after all, the prisoner is a hero or nine times a father. + </p> + <p> + There is one notorious attorney who poses as a philanthropist and who + invariably promises the jury that if they acquit his client he will + personally give him employment. If he has kept half of his promises he + must by this time have several hundred clerks, gardeners, coachmen, + choremen and valets. + </p> + <p> + In like manner attorneys of this feather will deliberately state to the + jury that if the defendant had taken the stand he would have testified + thus and so; or that if certain witnesses who have not appeared (and who + perhaps in reality do not exist at all) had testified they would have + established various facts. Such lawyers should be locked up or disbarred; + courts are powerless to negative entirely their dishonesty in individual + cases. + </p> + <p> + Clever counsel, of course, habitually make use of all sorts of appeals to + sympathy and prejudice. In one case in New York in which James W. Osborne + appeared as prosecutor the defendant wore a G.A.R. button. His lawyer + managed to get a veteran on the jury. Mr. Osborne is a native of North + Carolina. The defendant's counsel, to use his own words, "worked the war + for all it was worth," and the defendant lived, bled and died for his + country and over and over again. In summing up the case, the attorney + addressed himself particularly to the veteran on the back row, and, after + referring to numerous imaginary engagements, exclaimed: "Why, gentlemen, + my client was pouring out his life blood upon the field of battle when the + ancestors of Mr. Osborne were raising their hands against the flag!" For + once Mr. Osborne had no adequate words to reply. + </p> + <p> + By far the most effective and dangerous "trick" employed by guilty + defendants is the deliberate shouldering of the entire blame by one of two + persons who are indicted together for a single offence. A common example + of this is where two men are caught at the same time bearing away between + them the spoil of their crime and are jointly indicted for "criminally + receiving stolen property." Both, probably, are "side partners," equally + guilty, and have burglarized some house or store in each other's company. + They maybe old pals and often have served time together. They agree to + demand separate trials, and that whoever is convicted first shall assume + the entire responsibility. Accordingly, A. is tried and, in spite of his + asseveration that he is innocent and that the "stuff" was given him by a + strange man, who paid him a dollar to transport it to a certain place, is + properly convicted.* The bargain holds. B.'s case is moved for trial and + he claims never to have seen A. in his life before the night in question, + and that he volunteered to help the latter carry a bundle which seemed to + be too heavy for him. He calls A., who testifies that this is so—that + B., whom he did not know from Adam, tendered his services and that he + availed himself of the offer. The jury are usually prone to acquit, as the + weight of evidence is clearly with the defendant. + </p> +<pre xml:space="preserve"> + * The defence that the accused innocently received the stolen property +into his possession was a familiar one even in 1697, as appears by the +following record taken from the Minutes of the Sessions. It would seem +that it was even then received with some incredulity. +</pre> + <p> + CITY & COUNTY OF NEW YORK: ss: + </p> + <p> + At a Meeting of the Justices of the Peace for the said City & County + at the City Hall of the said City on Thursday the 10th day of June Anno + Dom 1697. + </p> +<pre xml:space="preserve"> +PRESENT. William Morrott \ Esquires + James Graham / quorum + + Jacobus Cortlandt \ Esquires + Grandt Schuylor } Justices + Leonard Lowie / of the Peace +</pre> + <p> + Jacobus Cortlandt, Esq., one of his Majestys justices of the peace for ye + said City and County Informed the Kings justices that a peace of Linnen + Ticking was taken out of his Shop this Morning. That he was informed a + Negro Slave Named Joe was seen to take the same whereupon the said Jacobus + Van Cortlandt Pursued the said, Joe and apprehended him and found the said + peice of ticking in his custody and had the said Negro Joe penned in the + cage, upon which the said Negro man being brought before the said Justices + said he did not take the said ticking out of the Shop window but that a + Boy gave itt to him, but upon Examination of Sundry other Evidence itt + Manifestly Appeareth to the said Justices that the said Negro man Named + Joe, did steal the said piece of linnen ticking out of the Shop Window of + the said Jacobus Van Cortlandt and thereupon doe order the punishment of + the said Negro as follows vigt. That the said Negro man Slave Named Joe + shall be forthwith by the Common whipper of the City or some of the + Sheriffs officers art the Cage be stripped Naked from the Middle upwards + and then and there shall be tyed to the tayle of a Cart and being soe + stripped and tyed shah be Drove Round the City and Receive upon his naked + body art the Corner of each Street nine lashes until he return to the + place from whence he sett out and that he afterwards Stand Committed to + the Sheriffs custody till he pay his fees. + </p> + <p> + Many changes are rung upon this device. There is said to have been a case + in which the defendant was convicted of murder in the first degree and + sentenced to be executed. It was one of circumstantial evidence and the + verdict was the result of hours of deliberation on the part of the jury. + The prisoner had stoutly denied knowing anything of the homicide. Shortly + before the date set for the execution, another man turned up who admitted + that he had committed the crime and made the fullest sort of a confession. + A new trial was thereupon granted by the Appellate Court, and the convict, + on the application of the prosecuting attorney, was discharged and quickly + made himself scarce. It then developed that apart from the prisoner's own + confession there was practically nothing to connect him with the crime. + Under a statute making such evidence obligatory in order to render a + confession sufficient for a conviction, the prisoner had to be discharged. + </p> + <p> + In the case of Mabel Parker, a young woman of twenty, charged with the + forgery of a large number of checks, many of them for substantial amounts, + her husband made an almost successful attempt to procure her acquittal by + means of a new variation of the old game. Mrs. Parker, after her husband + had been arrested for passing one of the bogus checks, had been duped by a + detective into believing that the latter was a fellow criminal who was + interested in securing Parker's release. In due course she took this + supposed friend into her confidence, made a complete confession, and + illustrated her skill by impromptu copies of her forgeries from memory + upon a sheet of pad paper. This the detective secured and then arrested + her. She was indicted for forging the name Alice Kauser to a check upon + the Lincoln National Bank. On her trial she denied having done so, and + claimed that the detective had found the sheet containing her supposed + handwriting in her husband's desk, and that she had written none of the + alleged copies upon it. The door of the courtroom then opened, and James + Parker was led to the bar and pleaded guilty to the forgery of the check + in question. (For the benefit of the layman it should be explained that as + a rule indictments for forgery also contain a count for "uttering.") He + then took the stand, admitted that he had not only uttered but had also + written the check, and swore that it was his handwriting which, appeared + on the pad. + </p> + <p> + The prosecutor was nonplussed. If he should ask the witness to prove his + capacity to forge such a check from memory on the witness-stand, the + latter, as he had ample time to practise the signature while in prison, + would probably succeed in doing so. If, on the other hand, he should not + ask him to write the name, the defendant's counsel would argue to the jury + that he was afraid to do so. The district attorney therefore took the bull + by the horns and challenged Parker to make from memory a copy of the + signature, and, much as he had suspected, the witness produced a very good + one. An acquittal seemed certain, and the prosecutor was at his wit's end + to devise a means to meet this practical demonstration that the husband + was in fact the forger. At last it was suggested to him that it would be + comparatively easy to memorize such a signature, and acting on this hint + he found that after half an hour's practice he was able to make almost as + good a forgery as Parker. When therefore it came time for him to address + the jury he pointed out the fact that Parker's performance on the + witness-stand really established nothing at all—that any one could + forge such a signature from memory after but a few minutes' practice. + </p> + <p> + "To prove to you how easily this can be done," said he, "I will volunteer + to write a better Kauser signature than Parker did." + </p> + <p> + He thereupon seized a pen and began to demonstrate his ability to do so. + Mrs. Parker, seeing the force of this ocular demonstration, grasped her + counsel's arm and cried out: "For God's sake, don't let him do it!" The + lawyer objected, the objection was sustained, but the case was saved. Why, + the jury argued, should the lawyer object unless the making of such a + forgery were in fact an easy matter? + </p> + <p> + In desperate cases, desperate men will take desperate chances. The + traditional instance where the lawyer, defending a client charged with + causing the death of another by administering poisoned cake, met the + evidence of the prosecution's experts with the remark: "This is my answer + to their testimony!" and calmly ate the balance of the cake, is too + familiar to warrant detailed repetition. The jury retired to the jury-room + and the lawyer to his office, where a stomach pump quickly put him out of + danger. The jury is supposed to have acquitted. + </p> + <p> + Such are some of the tricks of the legal trade as practised in its + criminal branch. Most of them are unsuccessful and serve only to relieve + the gray monotony of the courts. When they achieve their object they add + to the interest of the profession and teach the prosecutor a lesson by + which, perhaps, he may profit in the future. + </p> + <p> + <a name="link2HCH0009" id="link2HCH0009"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + CHAPTER IX. What Fosters Crime + </h2> + <p> + To lack of regard for law is mainly due the existence of crime, for a + perfect respect for law would involve entire obedience to it. Yet crime + continues and from time to time breaks forth to such an extent as to give + ground for a popular impression that it is increasing out of proportion to + our growth as a nation. Now, while it may be fairly questioned whether + there is any actual increase of crime in the United States, and while, on + the contrary, observation would seem to show an actual decrease, not only + in crimes of violence, but in all major crimes, there nevertheless exists + to-day a widespread contempt for the criminal law which, if it has not + already stimulated a general increase of criminal activity, is likely to + do so in the future. This contempt for the law is founded not only upon + actual conditions, but also upon belief in conditions erroneously supposed + to exist, which is fostered by current literature and by the sensational + press. + </p> + <p> + Thus, as has already been pointed out, while it is popularly believed that + women are almost never convicted of crime, and particularly of homicide, + the fact is, at least in New York County, that a much greater proportion + of women charged with murder are convicted than of men charged with the + same offence. To read the newspapers one would suppose that the mere fact + that the defendant was a female instantly paralyzed the minds of the jury + and reduced them to a state of imbecility. The inevitable result of this + must be to encourage lawlessness among the lower orders of women and to + lead them to look upon arrest as a mere formality without ultimate + significance. The writer recalls trying for murder a negress who had shot + her lover not long after the discharge of a notorious female defendant in + a recent spectacular trial in New York. When asked why she had killed him + she replied: + </p> + <p> + "Oh, Nan Patterson did it and got off." + </p> + <p> + This is not offered as a reflection upon the failure of the jury to reach + a verdict in the Patterson case, but as an illuminating illustration of + the concrete and immediate effect of all actual or supposed failures of + justice. + </p> + <p> + A belief that the course of criminal justice is slow and uncertain, that + the chances are all in favor of the defendant, and that he has but to + resort to technicalities to secure not only indefinite delay but generally + ultimate freedom, breeds an indifference amounting almost to arrogance + among law-breakers, powerful and otherwise, and a painful yet hopeless + conviction among honest men that nothing can prevent the wicked from + flourishing. Honesty seems no longer even a good policy, and the young + business man resorts to sharp practices to get ahead of his unscrupulous + competitor. In some localities the uncertainty and delay attendant upon + the execution of the law is the alleged and maybe the actual, cause of the + community crime of lynching. Even where the administration of justice is + seen at its best many people who have been wronged believe that there is + so little likelihood that the offender will after all be punished that the + cheapest and easiest course is to let the matter drop. All this gives aid + and comfort to the powers of darkness. + </p> + <p> + The widespread impression as to the uncertainty of the law is not entirely + a misapprehension. "We have long since passed the period when it is + possible to punish an innocent man. We are now struggling with the problem + whether it is any longer possible to punish the guilty." It is a + melancholy fact that at the present time "penal statutes and procedure + tend more to defeat and retard the ends of justice than to protect the + rights of the accused." + </p> + <p> + The subject of criminal-law reform is too extensive to be discussed here + even superficially, but historically the explanation of existing + conditions is simple enough. The present overgrown state of the criminal + law is the direct result of our exaggerated regard for personal liberty, + coupled with a wholesale adoption of the technicalities of English law + invented when only such technicalities could stand between the minor + offender and the barbarous punishments of a bygone age. We forget that the + community is composed of individuals, and we tend to disregard its + interests for those of any particular individual who happens to be a + prisoner at the bar. We revolted from England and incidentally from her + system of administering the criminal law, by which the defendant could + have no voice at his own trial, where practically every crime was + punishable with death, and where only the Crown could produce and examine + witnesses. Every one will have to agree that the English system was very + harsh and very unfair indeed. To-day it is better than ours, simply + because its errors have been systematically and wisely corrected, without + diminution in the national respect for law. When we devised our own system + we adopted those humane expedients for evading the law which were only + justified by the existing penalties attached to convictions for crime,—and + then discarded the penalties. We were through with tyrants once and for + all. The Crown had always been opposed to the defendant and the Crown was + a tyrant. We naturally turned with sympathy towards the prisoner. + </p> + <p> + We gave him the right of appeal on all matters of law through all the + courts of our States, and even into the courts of the United States, while + we allowed the People no right of appeal at all. If the prisoner was + convicted he could go on and test the case all along the line,—if he + was acquitted the People had to rest satisfied. We stopped the mouth of + the judge and made it illegal for him to "sum up" the case or discuss the + facts to any extent. We clipped the wings of the prosecutor and allowed + him less latitude of expression than an English judge. Then we gazed on + the work of our intellects and said it was good. If an ignorant jury + acquitted a murderer under the eyes of a gagged and helpless judge, we + said that it was all right and that it was better that ninety-nine guilty + men should escape than that one innocent man should be convicted. Yes, + better for whom? If another murderer, about whose guilt the highest court + in one of the States said there was no possible doubt, secured three new + trials and was finally acquitted on the fourth, it merely demonstrated how + perfectly we safeguarded the rights of the individual. + </p> + <p> + The result is that we have unnecessarily fettered ourselves, have + furnished a multitude of technical avenues of escape to wrong-doers, and + have created a popular contempt for courts of justice, which shows itself + in the sentimental and careless verdicts of juries, in a lack of public + spirit, and in an indisposition to prosecute wrong-doers. In addition, the + impression sought to be conveyed by the yellow press that our judiciary is + corrupt and that money can buy anything—even justice—leads the + jury in many cases to feel that their presence is merely a formal + concession to an archaic procedure and that their oaths have no real + significance. + </p> + <p> + The community, the "People," have a sufficiently hard task to secure + justice at any criminal trial. On the one hand is the abstract proposition + that the law has been violated, on the other sits a human being, ofttimes + contrite, always an object of pity. He is presumed innocent, he is to be + given the benefit of every reasonable doubt. He has the right to make his + own powerful appeal to the jury and to have the services of the best + lawyer he can secure to sway their emotions and their sympathies. If the + prosecutor resorts to eloquence he is stigmatized as "over-zealous" and as + a "persecutor." If a plainly guilty defendant be acquitted, not the + trampled ideal of justice, but the vision of a liberated prisoner + rejoicing in his freedom hovers in the talesman's dreams. + </p> + <p> + So far so good; we can afford to stand by a system which in the long run + has served us fairly well. But an occasional evil, an evil which when it + occurs is productive of great harm and serves to give color to the popular + opinion of criminal law, begins only when the lawyers have had their + opportunity for elocution. At the conclusion of the charge the defendant's + attorney proceeds to put the judge through what is familiarly known as "a + course of sprouts." He makes twenty or thirty "requests to charge the + jury" on the most abstract propositions of law which his fertile mind can + devise,—relevant or irrelevant, applicable or inapplicable to the + facts,—and the judge is compelled to decide from the bench, without + opportunity for reflection, questions which the attorney has labored upon, + perchance, for weeks. If he guesses wrong, the lawyer "excepts" and the + case may be reversed on appeal. This is not a test of the defendant's + guilt or innocence, but a test of the abstract learning and quickness of + the presiding judge. + </p> + <p> + It is generally believed that appellate courts are prone to reverse + criminal cases on purely technical grounds. Whether this belief be well + founded or ill, its wide acceptance as fact is fertile in bringing the law + into disrepute.* Justice to be effective must be not only sure but swift. + An "iron hand" cannot always compensate for a "leaden heel". + </p> +<pre xml:space="preserve"> + *Cf. "Criminal Law Reform," G.W. Alger, "The Outlook," June, 1907. Also +article having same title in "Moral Overstrain," by same author. +See also, by Hon. C.F. Amidon, "The Quest for Error and the doing of +Justice," 40 American Law Rev. 681, and article on same subject in "The +Outlook" for June, 1906. +</pre> + <p> + It is probably true that in some of the States such a tendency exists and + may result in making the administration of justice a laughing stock, but + it is far from being so in States of the character of New York and + Massachusetts. The Appellate Division, First Department, and Court of + Appeals in New York are distinctly opposed to reversing criminal cases on + technical grounds and are prone to disregard trivial error where the guilt + of the defendant is clear. The writer can recall no recent criminal case + where the district attorney's office has felt aggrieved at the action of + the higher courts, and on the contrary believes that their action is + generally based on broad principles of public policy and common-sense. + </p> + <p> + During the year 1905 the district attorney of New York County defended + forty-seven appeals from convictions in criminal cases in the Appellate + Division. Of these convictions only three were reversed. He defended + eighteen in the Court of Appeals, of which only two were reversed. One of + the writer's associates computed that he had secured, during a four years' + term of office, twenty-nine convictions in which appeals had been taken. + Of these but two were reversed, one of them immediately resulting in the + defendant's re-conviction for the same crime. The other is still pending + and the defendant awaiting his trial. Certainly there is little in the + actual figures to give color to the impression that the criminal profits + by mere technicalities on appeal,—at least in New York State. + </p> + <p> + In nine cases out of ten the reversal of a conviction in a criminal case + is due to the carelessness or inefficiency of the prosecuting officer or + trial judge and not to any inadequacy in our methods of procedure. Yet the + tenth case, the case where the criminal does beat the law by a + technicality, does more harm than can easily be estimated. That is the one + case everybody knows about, the one the papers descant upon, the one that + cheers the heart of the grafter and every criminal who can afford to pay a + lawyer. + </p> + <p> + Yet the evil influence of the reversal of a conviction on appeal, however + much it is to be deprecated, is as nothing compared with a deliberate + acquittal of a guilty defendant by a reckless, sentimental, or lawless + jury. Few can appreciate as does a prosecutor the actual, practical and + immediate effect of such a spectacle upon those who witness it. + </p> + <p> + Two men were seen to enter an empty dwelling-house in the dead of night. + The alarm was given by a watchman near by, and a young police officer, who + had been but seven months on the force, bravely entered the black and + deserted building, searched it from roof to cellar, and found the + marauders locked in one of the rooms. He called upon them to open, + received no reply, yet without hesitation and without knowing what the + consequences to himself might be, smashed in the door and apprehended the + two men. One was found with a large bundle of skeleton keys in his pocket + and several candles, while a partially consumed candle lay upon the floor. + In the police court they pleaded guilty to a charge of burglary, and were + promptly indicted by the grand jury. + </p> + <p> + At the trial they claimed to have gone into the house to sleep, said they + had found the bunch of keys on the stairs, denied having the candles at + all or that they were in a room on the top story, and asserted that they + were in the entrance hall when arrested. + </p> + <p> + The story told by the defendants was so utterly ridiculous that one of the + two could not control a grin while giving his version of it on the witness + stand. The writer, who prosecuted the case, regarded the trial as a mere + formality and hardly felt that it was necessary to sum up the evidence at + all. + </p> + <p> + Imagine his surprise when an intelligent-looking jury acquitted both the + defendants after practically no deliberation. Both had offered to plead + guilty to a slightly lower degree of crime before the case was moved for + trial. + </p> + <p> + These two defendants, who were neither insane nor degenerates, consorted + with others in Bowery hotels and saloons,—incubators of crime. What + effect could such a performance have upon them and their friends save to + inculcate a belief that they were licensed to commit as many burglaries as + they chose? They had a practical demonstration that the law was "no good" + and the system a failure. If they could beat a case in which they had + already pleaded guilty, what could they not do where the evidence was less + obvious? They were henceforth immune. Who shall say how many embryonic + law-breakers took courage at the story and started upon an experimental + attempt at crime? + </p> + <p> + The news of such an acquittal must instantly have been carried to the + Tombs, where every other guilty prisoner took heart and prepared anew his + defence. Those about to plead guilty and throw themselves upon the mercy + of the court abandoned their honest purpose and devised some perjury + instead. Criminals almost persuaded that honesty was the best policy + changed their minds. The barometer of crime swung its needle from "stormy" + to "fair." + </p> + <p> + But apart from the law-breakers consider the effect of such a miscarriage + of justice upon a young, honest and zealous officer. First, all his good + work, his bravery, his conscientious effort at safeguarding the sleeping + public had been disregarded, tossed aside with a sneer, and had gone for + naught. The jury had stamped his story as a lie and stigmatized him, by + their action, as a perjurer. They had chosen two professional criminals as + better men. His whole conduct of the case instead of being commended as + meritorious had resulted in a solemn public declaration that he was not + worthy of credence and that he had attempted wilfully to railroad to + State's prison two innocent men. In other words, that he ought to be there + himself. What was the use of trying to do good work any longer? He might + just as well loiter in an area on a barrel and smoke a furtive cigar when + he ought to be "on post." Perhaps he might better "stand in" with those + who would inevitably be preferred to him by a jury of their peers. + </p> + <p> + What must have been the effect on the court officers, the witnesses, the + defendants out on bail, the complainants, the spectators? That the whole + business was nonsense and rot! That the jury system was ridiculous. That + the jurymen were either crooks or fools. That the only people who were not + insulted and sneered at were the lawbreakers themselves. That if two such + rogues were to be set free all the other jailbirds might as well be let + go. That an honest man could whistle for his justice and might better + straightway put on his hat and go home. That the only way to punish a + criminal was to punish him yourself—kill him if you got the chance + or get the crowd to lynch him. That if a thief stole from you the + shrewdest thing to do was to induce him as a set-off to give you the + proceeds of his next thieving. That it was humiliating to live in a town + where a self-confessed rascal could snap his fingers at the law and go + unwhipped of justice. + </p> + <p> + The jury's action must have been due either to a wilful disregard of their + oath or an entire misconception of it. Assuming that the jury deliberately + declined to obey the law, the whole twelve elected to become, and thereby + did become, lawbreakers. They disqualified themselves forever as talesmen. + No prosecutor in his senses would move a case before a jury which numbered + any one of them. They had arraigned themselves upon the side, and under + the standard, of crime. They became accessories after the fact. If on the + other hand they misconceived the purpose for which they were there the + performance was a shocking example of what is possible under present + conditions. + </p> + <p> + Just as there are three general classes of wrongs, so there are three + general and varyingly effective forms of restraint against their + perpetration. First there is the moral control exerted by what is + ordinarily called conscience, secondly there is the restraint which arises + out of the apprehension that the commission of a tort will be followed by + a judgment for damages in a civil court, and lastly there is the restraint + imposed by the criminal law. All these play their part, separately or in + conjunction. For some men conscience is a sufficient barrier to crime or + to those acts which, while equally reprehensible, are not technically + criminal; for others the possibility of pecuniary loss is enough to keep + them in the straight and narrow way; but for a large proportion of the + community the fear of criminal prosecution, with implied disgrace and + ignominy, forfeiture of citizenship, and confinement in a common jail is + about the only conclusive reason for doing unto others as they would the + others should do unto them. Were the criminal law done away with in our + present state of civilization, religion, ethics and civil procedure would + be absolutely inefficacious to prevent anarchy. It is as imperative to the + ordinary citizen to know that if he steals he will be locked up as it is + for the child to know that if he puts his hand into the fire it will be + burned. The acquittal of every thief breeds another, and the unpunished + murder is an incentive for a dozen similar homicides. + </p> + <p> + Crimes are either deliberate or the result of accident or impulse. The + last class may rise to a high degree of enormity, such as manslaughter, + but these crimes are rarely possible of restraint. The perpetrator does + not stop to consider, even if he be sober enough to think at all, whether + his act be moral, whether it will entail any civil liability, or what will + be its consequences, if it be a crime. So far as such acts are concerned + those who commit them are hardly criminals in the ordinary sense, and no + influence in the world is able to prevent them. + </p> + <p> + The question is how far these different kinds of restraint operate upon + the community as a whole in the prevention of deliberate crime. Clearly + the fear of pecuniary loss through actions brought to judgment in the + civil courts is practically nil. Most persons who set out to commit crime + have no bank account, the absence of one being generally what leads them + into a criminal career. + </p> + <p> + The writer has no intention of attempting to discuss or estimate the + efficacy of religion or ethics as restraining influences. A certain + limited proportion of the community would not commit crime under any + circumstances. It is enough for them that the act is forbidden by the + State even if it be not really wrong from their own personal point of + view. Side by side with these very good people are a very large number who + wear just as fashionable clothing, have the same friends, attend the same + churches, but who would commit almost any crime so long as they were sure + of not being caught. If we had no criminal law we should soon discover who + were the hypocrites. + </p> + <p> + But for an overwhelming majority of the community something more practical + than either religion, ethics, or philosophy is necessary to keep them in + order. They must be convinced that the transgressor will surely be + punished,—not some time, not next year or the year after, but now. + Not, moreover, that his way will be merely hard; but that he will be put + in stripes and made to break stones. + </p> + <p> + Hence the necessity for a vigorous and adequate criminal law and procedure + which shall command the respect and loyalty of the community, administered + by a fearless judiciary who will hold jurors to a rigid and conscientious + obedience to their oath. + </p> + <p> + There is nothing sacred about an archaic criminal procedure which in some + respects is less devised for the protection of the community than for the + exculpation of the guilty. The portals of liberty would not fall down or + the framers of the constitution turn in their graves if the peremptory + challenges allowed to both sides in the selection of a jury were reduced + to a reasonable number, or if persons found guilty of crime after due + process of law were compelled to stay in jail until their appeals were + decided, instead of walking the streets free as air under a certificate of + "reasonable doubt" issued by some judge who personally knew nothing of the + actual trial of the case. As things stand to-day, a thief caught in the + very act of picking a pocket in the night-time may challenge arbitrarily + the twenty most intelligent talesmen called to sit as jurors in his case. + Does such a practice make for justice? It is even possible that the sacred + bird of liberty would not scream if eleven jurors, instead of twelve, were + permitted to convict a defendant or set him free, while the question of + how far the right of appeal in criminal cases might properly be limited + or, in default of such limitation, how far under certain conditions it + might be correspondingly extended to the community, is by no means purely + academic.* It is also conceivable that some means might be found to do + away with the interminable technicalities which can now be interposed on + behalf of the accused to prevent trials or the infliction of sentence + after conviction. + </p> +<pre xml:space="preserve"> + * "Limitation of the Right of Appeal in Criminal Cases," by Nathan A. +Smythe, 17 Harvard Law Rev. 317 (1905). +</pre> + <p> + Yet these considerations are of slight moment in contrast to that most + crying of all present abuses,—the domination of the court-room by + the press.* It is no fiction to say that in many cases the actual trial is + conducted in the columns of yellow journals and the defendant acquitted or + convicted purely in accordance with an "editorial policy." Judges, jurors, + and attorneys are caricatured and flouted. There is no evidence, how ever + incompetent, improper, or prejudicial to either side, excluded by the + judge in a court of criminal justice, that is not deliberately thrust + under the noses of the jury in flaring letters of red or purple the moment + they leave the court-room. The judge may charge one way in accordance with + the law of the land, while the editor charges the same jury in + double-leaded paragraphs with what "unwritten" law may best suit the owner + of his conscience and his pen. "Contempt of court" in its original + significance is something known today only to the reader of text books.** + </p> +<pre xml:space="preserve"> + *Cf. "Sensational Journalism and the Law," in "Moral Overstrain," by +G.W. Alger. +</pre> +<pre xml:space="preserve"> + **By the New York Penal Code section 143, an editor is only guilty of +contempt of court (a misdemeanor) if he publishes "a false or grossly +inaccurate report" of its proceedings. The most insidious, dangerous, +offensive and prejudicial matter spread broadcast by the daily press +does not relate to actual trials at all, but to matters entirely +outside the record, such as what certain witnesses of either side could +establish were they available, the "real" past and character of the +defendant, etc. The New York Courts, under the present statute, are +powerless to prevent this abuse. In Massachusetts half a dozen of our +principal editors and "special writers" would have been locked up long +ago to the betterment of the community and to the increase of respect +for our courts of justice. +</pre> + <p> + Each State has its own particular problem to face, but ultimately the + question is a national one. Lack of respect for law is characteristic of + the American people as a whole. Until we acquire a vastly increased sense + of civic duty we should not complain that crime is increasing or the law + ineffective. It would be a most excellent thing for an association of our + leading citizens to interest itself in criminal-law reform and demand and + secure the passage of new and effective legislation, but it would + accomplish little if its individual members continued to evade jury + service and left their most important duty to those least qualified by + education or experience to perform.* It would serve some of this class of + reformers right, if one day, when after a life-time of evasion, they + perchance came to be tried by a jury of their peers, they should find that + among their twelve judges there was not one who could read or write the + English language with accuracy and that all were ready to convict anybody + because he lived in a brown-stone front. + </p> +<pre xml:space="preserve"> + *"The Citizen and the Jury," in "Moral Overstrain," by G.W. Alger. +</pre> + <p> + Merchants, who in return for a larger possible restitution habitually + compound felonies by tacitly agreeing not to prosecute those who have + defrauded them, have no right to complain because juries acquit the + offenders whom they finally decide it to be worth their while to pursue. + The voter who has not the courage to insist that hypocritical laws should + be wiped from the statute books should express no surprise when juries + refuse to convict those who violate them. The man who perjures himself to + escape his taxes has no right to expect that his fellow citizens are going + to place a higher value upon an oath than he. + </p> + <p> + <a name="link2HCH0010" id="link2HCH0010"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + CHAPTER X. Insanity and the Law + </h2> + <p> + Harry Kendall Thaw shot and killed Stanford White on the 25th day of June, + 1905. Although most of the Coroner's jury which first sat upon the case + considered him irrational, he was committed to the Tombs and, having been + indicted for murder, remained there over six months pending his trial. + During that time it was a matter of common knowledge that his defence was + to be that he was insane at the time of the shooting, but as under the New + York law it is not necessary specifically to enter a plea of insanity to + the indictment in order to take advantage of that defence (which may be + proven under the general plea of "not guilty"), there was nothing + officially on record to indicate this purpose. Neither was it possible for + the District Attorney to secure any evidence of Thaw's mental condition, + since he positively refused either to talk to the prosecutor's medical + representatives or to allow himself to be examined by them. Mr. Jerome + therefore was compelled to enter upon an elaborate and expensive + preparation of the case, not only upon its merits, but upon the possible + question of the criminal irresponsibility of the defendant. + </p> + <p> + The case was moved in January, 1906, and the defence thereupon proceeded + to introduce a limited amount of testimony tending to show that Thaw was + insane when he did the shooting. While much of this evidence commended + itself but little to either the prosecutor or the jury, it was sufficient + to raise grave doubt as to whether the accused was a fit subject for + trial. The District Attorney's experts united in the opinion that, while + he knew that he was doing wrong when he shot White, he was, nevertheless, + the victim of a hopeless progressive form of insanity called dementia + praecox. In the midst of the trial, therefore, Mr. Jerome moved for a + commission to examine into the question of how far Thaw was capable of + understanding the nature of the proceedings against him and consulting + with counsel, and frankly expressed his personal opinion in open court + that Thaw was no more a proper subject for trial than a baby. A commission + was appointed which reported the prisoner was sane enough to be tried, and + the case then proceeded at great length with the surprising result that, + in spite of the District Attorney's earlier declaration that he believed + Thaw to be insane, the jury disagreed as to his criminal responsibility, a + substantial number voting for conviction. Of course, logically, they would + have been obliged either to acquit entirely on the ground of insanity or + convict of murder in the first degree, but several voted for murder in the + second degree. + </p> + <p> + A year now elapsed, during which equally elaborate preparations were made + for a second trial. The State had already spent some $25,000, and yet its + experts had never had the slightest opportunity to examine or interrogate + the defendant, for the latter had not taken the stand at the first trial. + The District Attorney still remained on record as having declared Thaw to + be insane, and his own experts were committed to the same proposition, yet + his official duty compelled him to prosecute the defendant a second time. + The first prosecution had occupied months and delayed the trial of + hundreds of other prisoners, and the next bid fair to the do same. But at + this second trial the defence introduced enough testimony within two days + to satisfy the public at large of the unbalanced mental condition of the + defendant from boyhood. + </p> + <p> + After a comparatively short period of deliberation the jury acquitted the + prisoner "on the ground of insanity," which may have meant either one of + two things: (a) that they had a reasonable doubt in their own minds that + Thew knew that he was doing wrong when he committed the murder—something + hard for the layman to believe, or (b) that, realizing that he was + undoubtedly the victim of mental disease, they refused to follow the + strict legal test. + </p> + <p> + Nearly two years had elapsed since the homicide; over a hundred thousand + dollars had been spent upon the case; every corner of the community had + been deluged with detailed accounts of unspeakable filth and depravity; + the moral tone of society had been depressed; and the only element which + had profited by this whole lamentable and unnecessary proceeding had been + the sensational press. Yet the sole reason for it all was that the law of + the land in respect to insane persons accused of crime was hopelessly out + of date. + </p> + <p> + The question of how far persons who are victims of diseased mind shall be + held criminally responsible for their acts has vexed judges, jurors, + doctors, and lawyers for the last hundred years. During that time, in + spite of the fact that the law has lagged far behind science in the march + of progress, we have blundered along expecting our juries to reach + substantial justice by dealing with each individual accused as most + appeals to their enlightened common sense. + </p> + <p> + And the fact that they have obeyed their common sense rather than the law + is the only reason why our present antiquated and unsatisfactory test of + who shall be and who shall not be held "responsible" in the eyes of the + law remains untouched upon the statute-books. Because its inadequacy is so + apparent, and because no experienced person seriously expects juries to + apply it consistently, it fairly deserves first place in any discussion of + present problems. + </p> + <p> + Thanks to human sympathy, the law governing insanity has had comparatively + few victims, but the fact remains that more than one irresponsible insane + man has swung miserably from the scaffold. But "hard cases" do more than + "make bad law," they make lawlessness. A statute systematically violated + is worse than no statute at all, and exactly in so far as we secure a sort + of justice by evading the law as it stands, we make a laughing-stock of + our procedure. + </p> + <p> + The law is, simply, that any person is to be held criminally responsible + for a deed unless he was at the time laboring under such a defect of + reason as not to know the nature and quality of his act and that it was + wrong. + </p> + <p> + This doctrine first took concrete form in 1843, when, after a person named + McNaughten, who had shot and killed a certain Mr. Drummond under an insane + delusion that the latter was Sir Robert Peel, had been acquitted, there + was such popular uneasiness over the question of what constituted criminal + responsibility that the House of Lords submitted four questions to the + fifteen judges of England asking for an opinion on the law governing + responsibility for offences committed by persons afflicted with certain + forms of insanity. It is unnecessary to set forth at length these + questions, but it is enough to say that the judges formulated the + foregoing rule as containing the issue which should be submitted to the + jury in such cases.* + </p> +<pre xml:space="preserve"> + * The questions propounded to the judges and their answers are here +given: +</pre> + <p> + Question 1.—"What is the law respecting alleged crimes committed by + persons afflicted with insane delusion in respect of one or more + particular subjects or persons, as, for instance, where, at the time of + the commission of the alleged crime, the accused knew he was acting + contrary to law, but did the act complained of with a view, under the + influence of insane delusion, of redressing or revenging some supposed + grievance or injury, or of producing some supposed public benefit? + </p> + <p> + Answer 1.-"Assuming that your lordships' inquiries are confined to those + persons who labor under such partial delusions only, and are not in other + respects insane, we are of opinion that, notwithstanding the accused did + the act complained of with a view, under the influence of insane delusion, + of redressing or revenging some supposed grievance or injury, or of + producing some public benefit, he is, nevertheless, punishable, according + to the nature of the crime committed, if he knew at the time of committing + such crime that he was acting contrary to law, by which expression we + understand your lordships to mean the law of the land. + </p> + <p> + Question 4:—"If a person under an insane delusion as to existing + facts commits an offence in consequence thereof, is he thereby excused? + </p> + <p> + Answer 4.—"The answer must of course depend on the nature of the + delusion; but, making the same assumption as we did before, namely, that + he labors under such partial delusion only, and is not in other respects + insane, we think he must be considered in the same situation as to + responsibility as if the facts with respect to which the delusions exist + were real. For example, if under the influence of his delusion he supposes + another man to be in the act of attempting to take away his life, and + kills the man, as he supposes in self-defence, he would be exempt from + punishment. If his delusion was that the deceased had inflicted a serious + injury to his character and fortune, and he killed him in revenge for such + supposed injury, he would be liable to punishment. + </p> + <p> + Question 2.—"What are the proper questions to be submitted to the + jury when a person, afflicted with insane delusions respecting one or more + particular subjects or persons, is charged with the commission of a crime + (murder, for instance), and insanity is set up as a defence? + </p> + <p> + Question 3.—"In what terms ought the question to be left to the jury + as to the prisoner's state of mind when the act was committed? + </p> + <p> + Answers 2 and 3.—"As these two questions appear to us to be more + conveniently answered together, we submit our opinion to be that the + jurors ought to be told, in all cases, that every man is presumed to be + sane, and to possess a sufficient degree of reason to be responsible for + his crimes, until the contrary be proved to their satisfaction; and that, + to establish a defence on the ground of insanity it must be clearly proved + that at the time of committing the act the accused was laboring under such + a defect of reason, from disease of the mind, as not to know the nature + and quality of the act he was doing, or, if he did know it, that he did + not know he was doing what was wrong." (The remainder of the answer goes + on to discuss the usual way the question is put to the jury.) + </p> + <p> + Now, with that commendable reverence for judicial utterance which is so + characteristic of the English nation, and is so conspicuously absent in + our own country, it was assumed until recently that this solemn + pronunciamento was the last word on the question of criminal + responsibility and settled the matter once and forever. Barristers and + legislators did not trouble themselves particularly over the fact that in + 1843 the study of mental disease was in its infancy, and judges, including + those of England, probably knew even less about the subject than they do + now. In 1843 it was supposed that insanity, save of the sort that was + obviously maniacal, necessitated "delusions," and unless a man had these + delusions no one regarded him as insane. In the words of a certain + well-known judge: + </p> + <p> + "The true criterion, the true test of the absence or presence of insanity, + I take to be the absence or presence of what, used in a certain sense of + it, is comprisable in a single term, namely, delusion.... In short, I look + on delusion .... and insanity to be almost, if not altogether, convertible + terms."* + </p> +<pre xml:space="preserve"> + * Dew vs. Clark. +</pre> + <p> + This in a certain broad sense, probably not intended by the judge who made + the statement, is nearly true, but, unfortunately, is not entirely so. + </p> + <p> + The dense ignorance surrounding mental disease and the barbarous treatment + of the insane within a century are facts familiar to everybody. Lunatics + were supposed to be afflicted with demons or devils which took possession + of them as retribution for their sins, and in addition to the hopelessly + or maniacally insane, medical science recognized only a so-called + "partial" or delusionary insanity. Today it would be regarded about as + comprehensive to relate all mental diseases to the old-fashioned + "delusion" as to regard as insane only those who frothed at the mouth. + </p> + <p> + But the particular individual out of whose case in 1843 arose the rule + that is in 1908 applied to all defendants indiscriminately was the victim + of a clearly defined insane delusion, and the four questions answered by + the judges of England relate only to persons who are "afflicted with + insane delusions in respect to one or more particular subjects or + persons." Nothing is said about insane persons without delusions, or about + persons with general delusions, and the judges limit their answers even + further by making them apply "to those persons who labor under such + partial delusion only and are not in other respects insane"—a + medical impossibility. + </p> + <p> + Modern authorities agree that a man cannot have insane delusions and not + be in other respects insane, for it is mental derangement which is the + cause of the delusion. + </p> + <p> + In the first place, therefore, a fundamental conception of the judges in + answering the questions was probably fallacious, and in the second, + although the test they offered was distinctly limited to persons + "afflicted with insane delusions," it has ever since been applied to all + insane persons irrespective of their symptoms. + </p> + <p> + Finally, whether the judges knew anything about insanity or not, and + whether in their answers they weighed their words very carefully or not, + the test as they laid it down is by no means clear from a medical or even + legal point of view. + </p> + <p> + Was the accused laboring under such a defect of reason as not to know the + nature and quality of the act he was doing, or not to know that it was + wrong? What did these judges mean by know? + </p> + <p> + What does the reader mean by know? What does the ordinary juryman mean by + it? + </p> + <p> + We are left in doubt as to whether the word should be given, as justice + Stephens contended it should be, a very broad and liberal interpretation + such as "able to judge calmly and reasonably of the moral or legal + character of a proposed action,"* or a limited and qualified one. There + are all grades and degrees of "knowledge," and it is more than probable + that there is a state of mind which I have heard an astute expert call + upon the witness stand "an insane knowledge," and equally obvious that + there may be "imperfect" nor "incomplete knowledge," where the victim sees + "through a glass darkly." Certainly it seems far from fair to interpret + the test of responsibility to cover a condition where the accused may have + had a hazy or dream-like realization that his act was technically contrary + to the law, and even more dangerous to make it exclude one who was simply + unable to "judge calmly and reasonably" of his proposed action, a doctrine + which could almost be invoked by any one who committed homicide in a state + of anger. + </p> +<pre xml:space="preserve"> + *"General View of the Criminal Law," p. 80. +</pre> + <p> + Ordinarily the word is not defined at all and the befuddled juryman is + left to his own devices in determining what significance he shall attach + not only to this word but to the test as a whole. + </p> + <p> + An equally ambiguous term is the word "wrong." The judges made no attempt + to define it in 1843, and it has been variously interpreted ever since. + Now it may mean "contrary to the dictates of conscience" or, as it is + usually construed, "contrary to the law of the land"—and exactly + what it means may make a great difference to the accused on trial. If the + defendant thinks that God has directed him to kill a wicked man, he may + know that such an act will not only be contrary to law, but also in + opposition to the moral sense of the community as a whole, and yet he may + believe that it is his conscientious duty to take life. In the case of + Hadfield, who deliberately fired at George III in order to be hung, the + defendant believed himself to be the Lord Jesus Christ, and that only by + so doing could the world be saved. Applying the legal test and translating + the word "wrong" as contrary to the common morality of the community + wherein he resided or contrary to law, Hadfield ought to have achieved his + object and been given death upon the scaffold instead of being clapped, as + he was, into a lunatic asylum. + </p> + <p> + On the other hand, if the word "wrong" is judicially interpreted, it would + seem to be given an elasticity which would invite inevitable confusion as + well as abuse. + </p> + <p> + Moreover, the test in question takes no cognizance of persons who have no + power of control. The law of New York and most of the states does not + recognize "irresistible impulses," but it should admit the medical fact + that there are persons who, through no fault of their own, are born + practically without any inhibitory capacity whatever, and that there are + others whose control has been so weakened, through accident or disease, as + to render them morally irresponsible,—the so-called psychopathic + inferiors. + </p> + <p> + Most of us are only too familiar with the state of a person just falling + under the influence of an anesthetic, when all the senses seem + supernaturally acute, the reasoning powers are active and unimpaired, and + the patient is convinced that he can do as he wills, whereas, in reality, + he says and does things which later on seem impossible in their absurdity. + Such a condition is equally possible to the victim of mental disease, + where the knowledge of right and wrong has no real relevancy. + </p> + <p> + The test of irresponsibility as defined by law is hopelessly inadequate, + judged by present medical knowledge. There is no longer any pretence that + a perception of the nature and quality of an act or that it is wrong or + right is conclusive of the actual insanity of a particular accused. In a + recent murder case a distinguished alienist, testifying for the + prosecution, admitted that over seventy per cent. of the patients under + his treatment, all of whom he regarded as insane and irresponsible, knew + what they were doing and could distinguish right from wrong. + </p> + <p> + Countless attempts have been made to reconcile this obvious anachronism + with justice and modern knowledge, but always without success, and courts + have wriggled hard in their efforts to make the test adequate to the + particular cases which they have been trying, but only with the result of + hopelessly confounding the decisions. + </p> + <p> + But, however it is construed, the test as laid down in 1843 is + insufficient in 1908. Medical science has marched on with giant strides, + while the law, so far as this subject is concerned, has never progressed + at all. It is no longer possible to determine mental responsibility by any + such artificial rule as that given by the judges to the Lords in + McNaughten's case, and which juries are supposed to apply in the courts of + today. I say "supposed," for juries do not apply it, and the reason is + simple enough—you cannot expect a juryman of intelligence to follow + a doctrine of law which he instinctively feels to be crude and which he + knows is arbitrarily applied. + </p> + <p> + No juryman believes himself capable of successfully analyzing a prisoner's + past mental condition, and he is apt to suspect that, however sincere the + experts on either side may appear, their opinions may be even less + definite than the terms in which they are expressed. The spectacle of an + equal number of intellectual-looking gentlemen, all using good English and + all wearing clean linen, reaching diametrically opposite conclusions on + precisely the same facts, is calculated to fill the well-intentioned juror + with distrust. Painful as it is to record the fact, juries are sometimes + almost as sceptical in regard to doctors as they always are in regard to + lawyers. + </p> + <p> + The usual effect of the expert testimony on one side is to neutralize that + on the other, for there is no practical way for the jury to distinguish + between experts, since the foolish ones generally look as learned as the + wise ones. The result is hopeless confusion on the part of the juryman, an + inclination to "throw it all out," and a resort to other testimony to help + him out of his difficulty. Of course he has no individual way of telling + whether the defendant "knew right from wrong," whatever that may mean, and + so the ultimate test that he applies is apt to be whether or not the + defendant is really "queer," "nutty" or "bughouse," or some other equally + intelligible equivalent far "medically insane." + </p> + <p> + The unfortunate consequence is that there is so general and growing a + scepticism about the plea of insanity, entirely apart from its actual + merits, that it is difficult in ordinary cases, whatever the jurors may + think or say in regard to the matter, to secure twelve men who will give + the defence fair consideration at the outset. + </p> + <p> + This is manifest in frequent expressions from talesmen such as: "I think + the defence of insanity is played out," or "I believe everybody is a + little insane, anyhow" (very popular and regarded by jurymen as witty), or + "Well, I have an idea that when a fellow can't cook up any other defence + he claims to be insane." + </p> + <p> + The result is a rather paradoxical situation: The attitude of the ordinary + jury in a homicide case, where the defence of insanity is interposed, is + usually at the outset one of distrust, and their impulse is to brush the + claim aside. This tendency is strengthened by the legal presumption, which + the prosecutor invariably calls to their attention, that the defendant is + sane. Every expert who has testified for the defence in the ordinary + "knock down and drag out" homicide case must have felt with the prisoner's + attorneys, that it was "up to them" not so much to create a doubt of the + defendant's sanity as to prove that he was insane, if they expected + consideration from the jury. + </p> + <p> + Now let us assume that the defence is meritorious and that the prisoner's + experts have created a favorable impression. Let us go even further and + assume that they have generated a reasonable doubt in the mind of the jury + as to the defendant's responsibility at the time he committed the offence. + What generally occurs? Not, as one would suppose, an acquittal, but, in + nine cases out of ten, a conviction in a lower degree. + </p> + <p> + The only usual result of an honest claim of irresponsibility on the ground + of insanity is to lead the jury to reduce the grade of the offence from + murder in the first, entailing the death penalty, to murder in the second + degree. The jury have no intention of "taking the chance" involved in + turning the man loose on the community and their minds are filled with the + predominating fact that a human being has been killed. They have an idea + that it is as easy to get "sworn out" of a lunatic asylum as they suppose + it is to get "sworn into" one, and they know that if the prisoner is found + to be insane when sent to State's prison he will be transferred elsewhere. + They, therefore, as a rule, waste little time upon the question of how far + the defendant was irresponsible within the legal definition when he + committed the deed, but convict him "on general principles," trusting the + prison officials to remedy any possible injustice. The jury in such cases + ignore the law and decline either to acquit or to convict in accordance + with the test. Their action becomes rather that of a lay commission + condemning the prisoner to hard labor for life on the ground that he is + medically insane. + </p> + <p> + Assuming that the jury take the defence seriously, there is only one class + of cases where, in the writer's opinion, they follow the legal test as + laid down by the court—that is to say, in cases of extreme + brutality. Here they hold the prisoner to the letter of the law, and the + more abhorrent the crime (even where its nature might indicate to a + physician that the accused was the victim of some sort of mania) the less + likely they are to acquit. The writer has prosecuted perhaps a dozen + homicide and other cases where the defence was insanity. In his own + experience he has known of no acquittal. In several instances the + defendants were undoubtedly insane, but, strictly speaking, probably + vaguely knew the nature and quality of their acts and that they were + wrong. In a few of these the juries convicted of murder in the first + degree because the circumstances surrounding the homicides were so brutal + that the harshness of the technical doctrine they were required to apply + was overshadowed in their minds by their horror of the act itself. In + other cases, where either the accused appeared obviously abnormal as he + sat at the bar of justice, or the details of the crime were less + abhorrent, they convicted of murder in the second degree in accordance + with the reasoning set forth in the foregoing paragraph. The writer + seriously advances the suggestion that the more the brutality of a + homicide indicates mental derangement the less chance the defendant has to + secure an acquittal upon the plea of insanity. + </p> + <p> + And this leads us to that increasingly large body of cases where the usual + scepticism of the jury in regard to such defences is counterbalanced by + some real or imaginary element of sympathy. In cities like New York, where + the jury system is seen at its very best, where the statistics show + seventy per cent. of convictions by verdict for the year 1907, and where + the sentiment of the community is against the invocation of any law + supposedly higher than that of the State, our talesmen are unwilling to + condone homicide or to act as self-constituted pardoning bodies, for they + know that an obviously lawless verdict will bring down upon them the + censure of the public and the press. This is perhaps demonstrated by the + fact that in New York County a higher percentage of women are convicted of + homicide than of men. + </p> + <p> + But the plea of insanity, with its vague test of responsibility, whose + terms the juryman may construe for himself (or which his fellow-jurors may + construe for him) offers an unlimited and fertile field for the + "reasonable" doubt and an easy excuse for the conscientious talesman who + wants to acquit if he can. Juries take the little stock in irresistible + impulses and emotional or temporary insanity save as a cloak to cover an + unrighteous acquittal. + </p> + <p> + In no other class of cases does "luck" play so large a part in the final + disposition of the prisoner. A jury is quite as likely to send an insane + man to the electric chair as to acquit a defendant who is fully + responsible for his crime. + </p> + <p> + To recapitulate from the writer's experience: + </p> + <p> + (1) The ordinary juror tends to be sceptical as to the good faith of the + defence of insanity. + </p> + <p> + (2) When once this distrust is removed by honest evidence on the part of + the defence, he usually declines to follow the legal test as laid down by + the court on the general theory that any one but an idiot or a maniac has + some knowledge of what he is doing and whether it is right or wrong. + </p> + <p> + (3) He applies the strict legal test only in cases of extreme brutality. + </p> + <p> + (4) In all other cases he follows the medical rather than the legal test, + but instead of acquitting the accused on account of his medical + irresponsibility, merely convicts in a lower degree. + </p> + <p> + The following deductions may also fairly be made from observation: + </p> + <p> + (1) That the present legal test for criminal responsibility is admittedly + vague and inadequate, affording great opportunity for divergent expert + testimony and a readily availed of excuse for the arbitrary and + sentimental actions of juries, to which is largely due the distrust + prevailing of the claim of insanity when interposed as a defence to crime. + </p> + <p> + (2) That expert medical testimony in such cases is largely discounted by + the layman. + </p> + <p> + (3) That in no class of cases are the verdicts of jurors so apt to be + influenced solely by emotion and prejudice, or to be guided less by the + law as laid down by the court. + </p> + <p> + (4) That a new definition of criminal responsibility is necessary, based + upon present knowledge of mental disease and its causes. + </p> + <p> + (5) Lastly, that, as whatever definition may be adopted will inevitably be + difficult of application by an untutored lay jury, our procedure should be + so amended that they may be relieved wherever possible of a task + sufficiently difficult for even the most experienced and expert alienists. + </p> + <p> + A classification of the different forms of insanity, based upon its causes + to which the case of any particular accused might be relegated, such as + has recently been urged by a distinguished young neurologist, would not, + with a few exceptions, assist us in determining his responsibility. It + would be easy to say then, as now, that lunatics or maniacs should not be + held responsible for their acts, but we should be left where we are at + present in regard to all those shadowy cases where the accused had insane, + incomplete or imperfect knowledge of what he was doing. It would be + ridiculous, for example, to lay down a general rule that no person + suffering from hysterical insanity should be punished for his acts. Yet, + even so, such a classification would instantly remedy that anachronism in + our present law which refuses to recognize as irresponsible those born + without power to control their emotions—the psychopathic inferiors + of science, and the real victims of dementia praecox. + </p> + <p> + Of course, if the insanity under which the defendant labors bears no + relation to or connection with the deed for which he is on trial, there + would logically be no reason why his insanity on other subjects should be + any defence to his crime. For example, there is the well-known case of the + Harvard professor who was apparently sane on all other matters, yet + believed himself to be possessed of glass legs. Had this man in wanton + anger struck and killed another, his "glass leg" delusion could not + logically have availed him. If, however, he had struck and killed one who + he believed was going to shatter his legs it might have been important. + The illustration is clear enough, but its application probably involves a + mistaken premise. If he thought he had glass legs his mind was undoubtedly + deranged—whether enough or not enough to constitute him + irresponsible or beyond the effect of penal discipline might be a + difficult question. The generally accepted doctrine is, that if a man has + a delusion concerning something, which if actually existing as he believed + it to be would be no excuse for his committing the criminal act, he is + responsible and liable to punishment; but, as Bishop well says: + </p> + <p> + "This branch of the doctrine should be cautiously received; for delusion + of any kind is strongly indicative of a generally diseased mind." + </p> + <p> + The new test to determine responsibility will recognize, as does the law + of Germany, that there can be no criminal act where the free determination + of the will is excluded by disease, and that the capacity to distinguish + between right and wrong is inconclusive. It may perhaps have to take a + general form, leaving it to a lay, or a mixed lay-and-expert jury to say + merely whether the accused had a disease of the mind of a type recognized + by science, and whether the alleged criminal act was of such a character + as would naturally flow from that type of insanity, in which case it would + seem obviously just to regard the defendant as partially irresponsible, + and perhaps entirely so. Possibly the practical needs of the moment might + be met by permitting such a jury to determine whether the defendant had + such a knowledge of the wrongful nature and consequences of his act and + such a control over his will as to be a proper subject of punishment.* + This would require the jury to find that the defendant had some knowledge + of right and wrong and the power to choose between them. In any event, to + render the accused entirely irresponsible, his act should arise out of and + be caused solely by the diseased condition of his mind. The law, while + asserting the responsibility of many insane people, should recognize + "partial" responsibility as well. + </p> +<pre xml:space="preserve"> + *See State vs. Richards, 1873, Conn. +</pre> + <p> + The reader may feel that little after all would be gained, but he will + observe that at any rate such a test, however imperfect, would permit + juries to do lawfully that which they now do by violating their oaths. The + writer believes that the best concrete test yet formulated and applied by + any court is that laid down in Parsons vs. The State of Alabama (81 Ala., + 577): + </p> + <p> + "1. Was the defendant at the time of the commission of the alleged crime, + as matter of fact, afflicted with a disease of the mind, so as to be + either idiotic, or otherwise insane? + </p> + <p> + "2. If such be the case, did he know right from wrong as applied to the + particular act in question? If he did not have such knowledge, he is not + legally responsible. + </p> + <p> + "3. If he did have such knowledge, he may nevertheless not be legally + responsible if the two following conditions concur: + </p> + <p> + "(1) If, by reason of the duress of such mental disease, he had so far + lost the power to choose between the right and wrong, and to avoid doing + the act in question, as that his free agency was at the time destroyed. + </p> + <p> + "(2) And if, at the same time, the alleged crime was so connected with + such mental disease, in the relation of cause and effect, as to have been + the product of it solely." + </p> + <p> + But whatever modification in the present test of criminal responsibility + is adopted, there must come an equally, if not even more important, reform + in the procedure in insanity cases, which to-day is as cumbersome and out + of date as the law itself. As things stand now in New York and most other + jurisdictions there are no adequate means open to the State to find out + the actual present or past mental condition of the defendant until the + trial itself, and ofttimes not even then. + </p> + <p> + In New York, in cases like Thaw's, the accused, while fully intending to + interpose the defence of insanity (which he is now permitted to do simply + under the general plea of "not guilty") may not only conceal the fact + until the trial, but may likewise successfully block every effort of the + authorities to examine him and find out his present mental condition. He + may thus keep it out of the power of the District Attorney to secure the + facts upon which to move for a commission to determine whether or not he + ought to be in an insane asylum or is a fit subject for trial, and at the + same time prevent the prosecutor from obtaining any evidence through + direct medical observation by which to meet the claim, which may be + "sprung" suddenly upon him later at the trial, that the defendant was + irresponsible. + </p> + <p> + In order that this may be clearly understood by the reader he should fully + appreciate the distinction between (1) the claim on the part of an accused + that he is at present insane, and for that reason should not be either + tried or punished for his alleged offence, and (2) the defence that he was + (irrespective of his present mental condition) insane within the legal + definition of irresponsibility at the time he committed it. No person who + is incapable of understanding the nature of the proceedings against him or + of consulting with counsel and preparing his defence can be placed on + trial at all, or, if already on trial, can continue to be tried, and if a + defendant "appears to the court to be insane," the judge may appoint a + commission to examine him and report as to his present condition. This may + be done upon the application either of the State of the accused through + his counsel. + </p> + <p> + It was such a commission to determine the accused's present mental + condition that District Attorney Jerome, upon the basis of the evidence + introduced by the defence, applied for and secured during the first trial + of Harry K. Thaw. The commission reported that Thaw was sane enough to be + tried and the court then proceeded with the original case for the purpose + of allowing the jury to say whether he knew the nature and quality of his + act and that it was wrong when he shot and killed White. + </p> + <p> + This was a totally distinct proceeding from the interposition of the + DEFENCE that the accused was irresponsible when he committed the crime + charged against him and was not inconsistent with it. + </p> + <p> + Now supposing that the Commission had reported that Thaw was insane at the + time of examination and not a fit subject for trial, but, on the contrary, + ought to be confined in an insane asylum, the District Attorney would have + spent some twenty odd thousand dollars and a year's time of one or more of + his assistants in fruitless preparation. Yet, as the law stands on the + books to-day in New York, there is no adequate way for the prosecution to + find out whether this enormous expenditure of time or money is necessary + or not, for it cannot compel the defendant to submit either to a physical + or mental examination. To do so has been held to be a violation of his + constitutional rights and equivalent to compelling him to give evidence + against himself. + </p> + <p> + Thus when Thaw came to the bar at his first trial the State had never had + any opportunity, through an examination by its physicians, to learn what + his present condition was or past mental condition had been. The accused, + on the other hand, had had over six months to prepare his defence and had + fully availed himself of the time to submit to the most exhaustive + examinations on the part of his own experts. The defendant's physicians + came to court brimming with facts to which they could testify; while the + State's experts had only the barren opportunity for determining the + defendant's condition afforded by observing him daily in the court room + and hearing what Thaw's own doctors claimed that they had discovered. + There was no chance to rebut anything which the latter alleged that they + had observed, and their testimony, save in so far as it was inconsistent + or contradictory in itself, remained irrefutable. + </p> + <p> + There is probably no procedure which would be held constitutional whereby + a compulsory examination of the accused could be had upon the mere + application of the prosecuting authorities; but as a commission may + generally be appointed at any time after an accused has been indicted if + he "appears" to the court to be "insane," and as it is usually within the + power of the District Attorney where such is the case to bring sufficient + evidence of it to the attention of the court before the prisoner is + brought to trial, little time is actually lost and justice is rarely + defeated except in those cases (such as Thaw's) where an attempt is to be + made to prove the accused insane at the time of the alleged crime although + sane at the time of trial. Even here it would be the simplest thing in the + world to remedy the difficulty and the proper legal steps in all + jurisdictions should be taken immediately. + </p> + <p> + The two chief objects of such reforms should be, first, to relieve the + ordinary jury in as many cases as possible from the necessity of passing + upon the delicate issue of a defendant's mental condition at a previous + time, and second, where this may not be avoided, to make their task as + easy as possible by providing (a) a more scientific and definite test of + legal responsibility and (b) an opportunity for adequate examination of + defendants availing themselves of this defence. + </p> + <p> + This last and most practical reform can be easily secured by a slight + alteration in the New York Code of Criminal Procedure, which already + provides both for the entering of the specific plea of insanity and for + the introduction of the defence and the proof of insanity under the + general plea of "not guilty." At present the defendant has his choice of + openly announcing or of concealing until the trial his intention of + claiming that he was insane and so irresponsible for his crime. This is an + advantage the results of which were probably not fully contemplated by the + Legislature, and one to which an accused has no fair claim. + </p> + <p> + Fortunately, in the same section of the Code (658), which provides that + the court may appoint a Commission to inquire into the sanity of a + defendant at the time of his trial, there exists another provision, + hitherto little noticed, that: + </p> + <p> + "When a defendant PLEADS INSANITY, as prescribed in Section 336, the court + in which the indictment is pending, instead of proceeding with the trial + of the indictment, may appoint a commission of not more than three + disinterested persons to examine him and report to the court as to his + insanity at the time of the commission of the crime." + </p> + <p> + If a defendant intends to prove himself irresponsible for his offence, why + should he not be compelled to enter a specific plea to that effect? Once + he has entered that plea, the law as it stands just quoted will do the + rest. No reason has been brought to the attention of the writer why the + admission of any evidence upon the defendant's trial tending to show that + he was mentally irresponsible at the time of committing the crime should + not be made contingent upon the defence of insanity having been + specifically pleaded either at the time of his arraignment or later by + substitution for or in conjunction with the plea of "not guilty." This + would deprive him of no constitutional right whatever. There is no legal + necessity of permitting an accused to prove insanity under a general + answer of "not guilty." Then upon his own plea that he had been insane he + could instantly be committed to some place of observation where a + permanent medical board of inquiry could be given full opportunity to + examine him and study his case with a view to determining his present and + past mental condition. He would still have in prospect his regular jury + trial, but if this board found him at the present time insane, the court + could immediately commit him to an asylum pending recovery, precisely as + under the present procedure, while if they found him sane at the present + time, but reported that, in their opinion (whatever test, "medical" or + "legal," they might have applied), he was irresponsible at the time he + committed the crime, it is unlikely that any prosecutor would bring him to + trial. If, however, they reported that he was not only sane, but had been + sane at the time of his crime, it is probable that any proposed defence of + insanity would be abandoned, while if it was still urged by the accused, + the opinion of such a board would carry far greater weight at the ultimate + trial of the case than the individual opinions of experts retained and + paid by either side for that particular occasion only, and having had only + a comparatively limited opportunity for examination. At any rate, if the + court called in the services of such a board of medical judges to assist + as amici curie in determining the defendant's condition, while their + opinion would not be conclusive upon the jury, it would at least do away + with the present lamentable necessity of learned men answering "yes" or + "no" to a hypothetical question fifty thousand words long, when the most + superficial personal examination of the accused would settle the matter + definitely in their minds. Such a procedure is in general use in Germany + and other continental countries, and is likewise substantially followed in + Massachusetts, Maine, Vermont, and New Hampshire.* + </p> +<pre xml:space="preserve"> + * Another equally efficacious means of dealing with the matter would +be to substitute, upon a defendant's plea of insanity, a full jury of +experts—like any "special" jury—for the ordinary petit jury. +</pre> + <p> + There is good reason to hope that we may soon see in all the states + adequate provision for preliminary examination upon the plea of insanity, + and a new test of criminal responsibility consistent with humanity and + modern medical knowledge. Even then, although murderers who indulge in + popular crime will probably be acquitted on the ground of insanity, we + shall at least be spared the melancholy spectacle of juries arbitrarily + committing feeble-minded persons charged with homicide to imprisonment at + hard labor for life, and in a large measure do away with the present + unedifying exhibition of two groups of hostile experts, each interpreting + an archaic and inadequate test of criminal responsibility in his own + particular way, and each conscientiously able to reach a diametrically + opposite conclusion upon precisely the same facts. + </p> + <p> + <a name="link2HCH0011" id="link2HCH0011"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /><br /><br /><br /> + </div> + <h2> + CHAPTER XI. The Mala Vita in America + </h2> + <p> + There are a million and a half of Italians in the United States, of whom + nearly six hundred thousand reside in New York City—more than in + Rome itself. Naples alone of all the cities of Italy has so large an + Italian population; while Boston has one hundred thousand, Philadelphia + one hundred thousand, San Francisco seventy thousand, New Orleans seventy + thousand, Chicago sixty thousand, Denver twenty-five thousand, Pittsburg + twenty-five thousand, Baltimore twenty thousand, and there are extensive + colonies, often numbering as many as ten thousand, in several other + cities. + </p> + <p> + So vast a foreign-born population is bound to contain elements of both + strength and weakness. The north Italians are molto simpatici to the + American character, and many of their national traits are singularly like + our own, for they are honest, thrifty, industrious, law-abiding and + good-natured. The Italians from the extreme south of the peninsula have + fewer of these qualities, and are apt to be ignorant, lazy, destitute, and + superstitious. A considerable percentage, especially of those from the + cities, are criminal. Even for a long time after landing in America, the + Calabrians and Sicilians often exhibit a lack of enlightenment more + characteristic of the Middle Ages than of the twentieth century. + </p> + <p> + At home they have lived in a tumble-down stone hut about fifteen feet + square, half open to the sky (its only saving quality); in one corner the + entire family sleeping in a promiscuous pile on a bed of leaves; in + another a domestic zoo consisting of half a dozen hens, a cock, a goat, + and a donkey. They neither read, think, nor exchange ideas. The sight of a + uniform means to them either a tax-gatherer, a compulsory enlistment in + the army, or an arrest, and at its appearance the man will run and the + wife and children turn into stone. They are stubborn and distrustful. They + are the same as they were a thousand or more years gone by. + </p> + <p> + When the writer was acting as an assistant prosecutor in New York County, + a young Italian, barely twenty years of age, was brought to the bar + charged with assault with intent to kill. The complainant was a withered + Sicilian woman who claimed to be his wife. Both spoke an almost + unintelligible dialect. The case on its face was simple enough. An officer + testified that on a Sunday morning in Mulberry Bend Park, at a distance of + about fifty feet from where he was standing, he saw the defendant, who had + been walking peaceably with the complaining witness, suddenly draw a long + and deadly looking knife and proceed to slash her about the head and arms. + It had taken the officer but a moment or two to seize the defendant from + behind and disarm him, but in the meantime he had inflicted some eleven + wounds upon her body. No explanation had been offered for this terrible + assault, and the complainant had appeared involuntarily before the Grand + jury and afterward had to be kept in the House of Detention as a hostile + witness. The woman, who appeared to be about fifty years old, was sworn, + and on being questioned stated that she had been married to the defendant + in Sicily three years before. She declined to admit that he had attacked + or harmed her in any way, constantly mumbling: "He is my husband. Do not + punish him!" + </p> + <p> + The defendant, however, seemed eager to get on the stand and to tell his + story; nor did the introduction of the knife in evidence or the exhibition + of the woman's wounds embarrass him in the slightest degree. His manner + was that of a man who had only to explain to be entirely exonerated from + blame. He nodded at the jury and the judge, and scowled at the + complainant, who was speedily conducted to a place where no harm could + possibly come to her. When at last he was sworn, he could hardly restrain + himself into coherency. + </p> + <p> + "Yes—that woman forced me to marry her!" he testified in substance. + "But in the eyes of God I am not her husband, for she bewitched me! Else + would I have married an old crone who could not have borne me children? + When her spells weakened I left her and came to America. Here I met the + woman I love,—Rosina,—and as I had been bewitched into the + other marriage, we lived together as man and wife for two years. Then one + day a friend told me that the old woman had followed me over the sea and + was going to throw her spells upon me again. But I did not inform Rosina + of these things. The next evening she told me that an old woman had been + to the house and asked for me. For days my first wife lurked in the + neighborhood, beseeching me to come back to her. But I told her that in + the eyes of God she was not my wife. Then, in revenge, she cast the evil + eye upon the child—sul bambino—and for six weeks it ailed and + then died. Again the witch asked me to go with her, and again I refused. + This time she cast her evil eye upon my wife—and Rosina grew pale + and sick and took to her bed. There was only one thing to do, you + understand. I resolved to slay her, just as you—giudici—would + have done. I bought a carving-knife and sharpened it, and asked her to + walk with me to the park, and I would have killed her had not the police + prevented me. Wherefore, O giudici! I pray you to recall her and permit me + to kill her or to decree that she be hung!" + </p> + <p> + This case illustrates the depths of ignorance and superstition that are + occasionally to be found among Italian peasant immigrants. Another actual + experience may demonstrate the mediaeval treachery of which the Sicilian + Mafiuso is capable, and how little his manners or ideals have progressed + in the last five hundred years or so. + </p> + <p> + A photographer and his wife, both from Palermo, came to New York and + rented a comfortable home with which was connected a "studio." In the + course of time a young man—a Mafiuso from Palermo—was engaged + as an assistant, and promptly fell in love with the photographer's wife. + She was tired of her husband, and together they plotted the latter's + murder. After various plans had been considered and rejected, they + determined on poison, and the assistant procured enough cyanide of mercury + to kill a hundred photographers, and turned it over to his mistress to + administer to the victim in his "Marsala." But at the last moment her hand + lost its courage and she weakly sewed the poison up for future use inside + the ticking of the feather bolster on the marital bed. + </p> + <p> + This was not at all to the liking of her lover, who thereupon took matters + into his own hands, by hiring another Mafiuso to remove the photographer + with a knife-thrust through the heart. In order that the assassin might + have a favorable opportunity to effect his object, the assistant, who + posed as a devoted friend of his employer, invited the couple to a + Christmas festival at his own apartment. Here they all spent an animated + and friendly evening together, drinking toasts and singing Christmas + carols, and toward midnight the party broke up with mutual protestations + of regard. If the writer remembers accurately, the evidence was that the + two men embraced and kissed each other. After a series of farewells the + photographer started home. It was a clear moonlight night with the streets + covered with a glistening fall of snow. The wife, singing a song, walked + arm in arm with her husband until they came to a corner where a jutting + wall cast a deep shadow across the sidewalk. At this point she stepped a + little ahead of him, and at the same moment the hired assassin slipped up + behind the victim and drove his knife into his back. The wife shrieked. + The husband staggered and fell, and the "bravo" fled. + </p> + <p> + The police arrived, and so did an ambulance, which removed the hysterical + wife and the transfixed victim to a hospital. Luckily the ambulance + surgeon did not remove the knife, and his failure to do so saved the life + of the photographer, who in consequence practically lost no blood and + whose cortex was skilfully hooked up by a dextrous surgeon. In a month he + was out. In another the police had caught the would-be murderer and he was + soon convicted and sentenced to State prison, under a contract with the + assistant to be paid two hundred and fifty dollars for each year he had to + serve. Evidently the lover and his mistress concluded that the + photographer bore a charmed life, for they made no further homicidal + attempts. + </p> + <p> + So much for the story as an illustration of the mediaeval character of + some of our Sicilian immigrants. For the satisfaction of the reader's + taste for the romantic and picturesque it should be added, however, that + the matter did not end here. The convict, having served several years, + found that the photographer's assistant was not keeping his part of the + contract, as a result of which the assassin's wife and children were + suffering for lack of food and clothing. He made repeated but fruitless + attempts to compel the party of the first part to pay up, and finally, in + despair, wrote to the District Attorney of New York County that he could, + if he would, a tale unfold that would harrow up almost anybody's soul. Mr. + Jerome therefore, on the gamble of getting something worth while, sent + Detective Russo to Auburn to interview the prisoner. That is how the whole + story came to be known. The case was put in the writer's hands, and an + indictment for the very unusual crime of attempted murder (there are only + one or two such cases on record in New York State) was speedily found + against the photographer's assistant. At the trial the lover saw his + mistress compelled to turn State's evidence against him to save herself. + She testified to the Christmas carols and the cyanide of mercury. + </p> + <p> + "Did you ever remove this terrible poison from the bolster?" demanded the + defendant's counsel in a sneering tone. + </p> + <p> + "No," answered the woman. + </p> + <p> + "Have you ever changed the bolster?" he persisted. + </p> + <p> + "No." + </p> + <p> + "Then it's there yet?" + </p> + <p> + "I-I think so," falteringly. + </p> + <p> + "I demand that this incredible yarn be investigated!" cried the lawyer. "I + ask that the court send for the bolster and cut it open here in the + presence of the jury." + </p> + <p> + The writer had no choice but to accede to this request, and the bolster + was hunted down and brought into court. With some anxiety both sides + watched while the lining was slit with a penknife. A few feathers + fluttered to the floor as the fingers of the witness felt inside and came + in contact with the poison. The assistant was convicted of attempted + murder on the convict's testimony, and sentenced to Sing Sing for + twenty-five years. That was the end of the second lesson. + </p> + <p> + About a month afterward the defendant's counsel made a motion for a new + trial on the ground that the convict now admitted his testimony to have + been wholly false, and produced an affidavit from the assassin to that + effect. Naturally so startling an allegation demanded investigation. Yes, + insisted the "bravo," it was all made up, a "camorra"—not a word of + truth in it, and he had invented the whole thing in order to get a + vacation from State prison and a free ride to New York. However, the court + denied the motion. The writer procured a new indictment against the + assassin—this time for perjury—and he was sentenced to another + additional term in prison. What induced this sudden and extraordinary + change of mind on his part can only be surmised. + </p> + <p> + These two cases are extreme examples of the mediaevalism that to a + considerable degree prevails in New York City, probably in Chicago and + Boston, and wherever there is an excessive south Italian population. + </p> + <p> + The conditions under which a large number of Italians live in this country + are favorable not only to the continuance of ignorance, but to the + development of disease and crime. Naples is bad enough, no doubt. The + people there are poverty-stricken and homeless. But in New York City they + are worse than homeless. It is better far to sleep under the stars than in + a stuffy room with ten or twelve other persons. Let the reader climb the + stairs of some of the tenements in Elizabeth Street, or go through those + in Union Street, Brooklyn, and he will get firsthand evidence. This is + generally true of the lower class of Italians throughout the United + States, whether in the city or country. They live under worse conditions + than at home. You may go through the railroad camps and see twenty men + sleeping together in a one-room built of lath, tar-paper, and clay. The + writer knows of one Italian laborer in Massachusetts who slept in a + floorless mud hovel about six feet square, with one hole to go in and out + by and another in the roof for ventilation—in order to save $1.75 + per month. All honor to him! Garibaldi was of just such stuff, only he + suffered in a better cause. In Naples the young folks are out all day in + the sun. Here they are indoors all the year round. For the consequences of + this change see Dr. Peccorini's article in the 'Forum' for January, 1911, + on the tuberculosis that soon develops among Italians who abroad were + accustomed to live in the country but here are forced to exist in + tenements. + </p> + <p> + Now, for historic reasons, these south Italians hate and distrust all + governmental control and despise any appeal to the ordinary tribunals of + justice to assert a right or to remedy a wrong. It has been justly said by + a celebrated Italian writer that, in effect, there is some instinct for + civil war in the heart of every Italian. The insufferable tyranny of the + Bourbon dynasty made every outlaw dear to the hearts of the oppressed + people of the Kingdom of the Two Sicilies. Even if he robbed them, they + felt that he was the lesser of two evils, and sheltered him from the + authorities. Out of this feeling grew the "Omerta," which paralyzes the + arm of justice both in Naples and Sicily. The late Marion Crawford thus + summed up the Sicilian code of honor: + </p> + <p> + According to this code, a man who appeals to the law against his fellow + man is not only a fool but a coward, and he who cannot take care of + himself without the protection of the police is both.... It is reckoned as + cowardly to betray an offender to justice, even though the offence be + against one's self, as it would be not to avenge an injury by violence. It + is regarded as dastardly and contemptible in a wounded man to betray the + name of his assailant, because if he recovers he must naturally expect to + take vengeance himself. A rhymed Sicilian proverb sums up this principle, + the supposed speaker being one who has been stabbed. "If I live, I will + kill thee," it says; "if I die, I forgive thee!" + </p> + <p> + Any one who has had anything to do with the administration of criminal + justice in a city with a large Italian population must have found himself + constantly hampered by precisely this same "Omerta." The south Italian + feels obliged to conceal the name of the assassin and very likely his + person, though he himself be but an accidental witness of the crime; and, + while the writer knows of no instance in New York City where an innocent + man has gone to prison himself rather than betray a criminal, Signor + Cutera, formerly chief of police in Palermo, states that there have been + many cases in Sicily where men have suffered long terms of penal servitude + and even have died in prison rather than give information to the police. + </p> + <p> + In point of fact, however, the "Omerta" is not confined to Italians. It is + a common attribute of all who are opposed to authority of any kind, + including small boys and criminals, and with the latter arises no more + from a half chivalrous loyalty to their fellows than it does from hatred + of the police and a uniform desire to block their efforts (even if a + personal adversary should go unpunished in consequence), fear that + complaint made or assistance given to the authorities will result in + vengeance being taken upon the complainant by some comrade or relative of + the accused, distrust of the ability of the police to do anything anyway, + disgust at the delay involved, and lastly, if not chiefly, the realization + that as a witness in a court of justice the informer as a professional + criminal would have little or no standing or credence, and in addition + would, under cross-examination, be compelled to lay bare the secrets of + his unsavory past, perhaps resulting indirectly in a term in prison for + himself.* Thus may be accounted for much of the supposed "romantic, if + misguided, chivalry" of the south Italian. It is common both to him and to + the Bowery tough. The writer knew personally a professional crook who was + twice almost shot to pieces in Chatham Square, New York City, and who + persistently declined, even on his dying bed, to give a hint of the + identity of his assassins, announcing that if he got well he "would attend + to that little matter himself." Much of the romance surrounding crime and + criminals, on examination, "fades into the light of common day"—the + obvious product not of idealism, but of well-calculated self-interest. + </p> +<pre xml:space="preserve"> + * Much more likely in Italy than in the United States. +</pre> + <p> + As illustrating the backwardness of our Italian fellow-citizens in coming + forward when the criminality of one of their countrymen is at stake, the + last three cases of kidnapping in New York City may be mentioned. + </p> + <p> + About a year and a half ago the little boy of Dr. Scimeca, of 2 Prince + Street, New York, was taken from his home. From outside sources the police + heard that the child had been stolen, but, although he was receiving + constant letters and telephonic communications from the kidnappers, Dr. + Scimeca would not give them any information. It is known on pretty good + authority that the sum of $10,000 was at first demanded as a ransom, and + was lowered by degrees to $5,000, $2,500, and finally to $1,700. Dr. + Scimeca at last made terms with the kidnappers, and was told to go one + evening to City Park, where he is said to have handed $1,700 to a + stranger. The child was found wandering aimlessly in the streets next day, + after a detention of nearly three months. + </p> + <p> + The second case was that of Vincenzo Sabello, a grocer of 386 Broome + Street, who lost his little boy on August 26, 1911. After thirty days he + reported the matter to the police, but shortly after tried to throw them + off the track by saying that he had been mistaken, that the boy had not + been kidnapped, and that he wished no assistance. Finally he ordered the + detectives out of his place. About a month later the child was recovered, + but not, according to reliable information, until Mr. Sabello had handed + over $2,500. + </p> + <p> + Pending the recovery of the Sabello boy, a third child was stolen from the + top floor of a house at 119 Elizabeth Street. The father, Leonardo + Quartiano, reported the disappearance, and in answer to questions stated + that he had received no letters or telephone messages. "Why should I?" he + inquired, with uplifted hands and the most guileless demeanor. "I am poor! + I am a humble fishmonger." In point of fact, Quartiano at the time had a + pocketful of blackmail letters, and after four weeks paid a good ransom + and got back his boy. + </p> + <p> + It is impossible to estimate correctly the number of Italian criminals in + America or their influence upon our police statistics; but in several + classes of crime the Italians furnish from fifteen to fifty per cent of + those convicted. In murder, assault with intent to kill, blackmail, and + extortion they head the list, as well as in certain other offences + unnecessary to describe more fully but prevalent in Naples and the South. + </p> + <p> + Joseph Petrosino, the able and fearless officer of New York police who was + murdered in Palermo while in the service of the country of his adoption, + was, while he lived, our greatest guaranty of protection against the + Italian criminal. But Petrosino is gone. The fear of him no longer will + deter Italian ex-convicts from seeking asylum in the United States. He + once told the writer that there were five thousand Italian ex-convicts in + New York City alone, of whom he knew a large proportion by sight and + name.* Signor Ferrero, the noted historian, is reported to have stated, on + his recent visit to America, that there were thirty thousand Italian + criminals in New York City. Whatever their actual number, there are quite + enough at all events. + </p> +<pre xml:space="preserve"> + *Petrosino is a national hero in Italy, where he was known as "Il +Sherlock Holmes d'Italia"—"the Italian Sherlock Holmes." Many novels in +which he figures as the central character have a wide circulation there. +</pre> + <p> + By far the greater portion of these criminals, whether ex-convicts or + novices, are the products or byproducts of the influence of the two great + secret societies of southern Italy. These societies and the unorganized + criminal propensity and atmosphere which they generate, are known as the + "Mala Vita." + </p> + <p> + The Mafia, a purely Sicilian product, exerts a much more obvious influence + in America than the Camorra, since the Mafia is powerful all over Sicily, + while the Camorra is practically confined to the city of Naples and its + environs. The Sicilians in America vastly outnumber the Neapolitans. Thus + in New York City for every one Camorrist you will find seven or eight + Mafiusi. But they are all essentially of a piece, and the artificial + distinction between them in Italy disappears entirely in America. + </p> + <p> + Historically the Mafia burst from a soil fertilized by the blood of + martyred patriots, and represented the revolt of the people against all + forms of the tyrannous government of the Bourbons; but the fact remains + that, whatever its origin, the Mafia to-day is a criminal organization, + having, like the Camorra, for its ultimate object blackmail and extortion. + Its lower ranks are recruited from the scum of Palermo, who, combining + extraordinary physical courage with the lowest type of viciousness, + generally live by the same means that supports the East Side "cadet" in + New York City, and who end either in prison or on the dissecting-table, or + gradually develop into real Mafiusi and perhaps gain some influence. + </p> + <p> + It is, in addition, an ultra-successful criminal political machine, which, + under cover of a pseudoprinciple, deals in petty crime, wholesale + blackmail, political jobbery, and the sale of elections, and may fairly be + compared to the lowest types of politico-criminal clubs or societies in + New York City. In Palmero it is made up of "gangs" of toughs and + criminals, not unlike the Camorrist gangs of Naples, but without their + organization, and is kept together by personal allegiance to some leader. + Such a leader is almost always under the patronage of a "boss" in New York + or a 'padrone' in Italy, who uses his influence to protect the members of + the gang when in legal difficulties and find them jobs when out of work + and in need of funds. Thus the "boss" can rely on the gang's assistance in + elections in return for favors at other times. Such gangs may act in + harmony or be in open hostility or conflict with one another, but all are + united as against the police, and exhibit much the same sort of "Omerta" + in Chatham Square as in Palermo. The difference between the Mafia and + Camorra and the "gangs" of New York City lies in the fact that the latter + are so much less numerous and powerful, and bribery and corruption so much + less prevalent, that they can exert no practical influence in politics + outside the Board of Aldermen, whereas the Italian societies of the Mala + Vita exert an influence everywhere—in the Chamber of Deputies, the + Cabinet, and even closer to the King. In fact, political corruption has + been and still is of a character in Italy luckily unknown in America—not + in the amounts of money paid over (which are large enough), but in the + calm and matter-of-fact attitude adopted toward the subject in Parliament + and elsewhere. + </p> + <p> + The overwhelming majority of Italian criminals in this country come from + Sicily, Calabria, Naples, and its environs. They have lived, most of their + lives, upon the ignorance, fear, and superstitions of their + fellow-countrymen. They know that so long as they confine their criminal + operations to Italians of the lower class they need have little terror of + the law, since, if need be, their victims will harbor them from the police + and perjure themselves in their defence. For the ignorant Italian brings + to this country with him the same attitude toward government and the same + distrust of the law that characterized him and his fellow-townsmen at + home, the same Omerta that makes it so difficult to convict any Italian of + a serious offence. The Italian crook is quick-witted and soon grasps the + legal situation. He finds his fellow countrymen prospering, for they are + generally a hard-working and thrifty lot, and he proceeds to levy tribute + on them just as he did in Naples or Palermo. If they refuse his demands, + stabbing or bomb-throwing show that he has lost none of his ferocity. + Where they are of the most ignorant type he threatens them with the "evil + eye," the "curse of God," or even with sorceries. The number of Italians + who can be thus terrorized is astonishing. Of course, the mere possibility + of such things argues a state of mediaevalism. But mere mediaevalism would + be comparatively unimportant did it not supply the principal element + favorable to the growth of the Mala Vita, apprehended with so much dread + by many of the citizens of the United States. + </p> + <p> + Now, what are the phases of the Mala Vita—the Camorra, the Black + Hand, the Mafia—which are to-day observable in the United States and + which may reasonably be anticipated in the future? + </p> + <p> + In the first place, it may be safely said that of the Camorra in its + historic sense—the Camorra of the ritual, of the "Capo in Testa" and + "Capo in Trino," highly organized with a self-perpetuating body of + officers acting under a supreme head—there is no trace. Indeed, as + has already been explained, this phase of the Camorra, save in the + prisons, is practically over, even in Naples. But of the Mala Vita there + is evidence enough. + </p> + <p> + Every large city, where people exist under unwholesome conditions, has + some such phenomenon. In Palermo we have the traditional Mafia—a + state of mind, if you will, ineradicable and all-pervasive. Naples festers + with the Camorra as with a venereal disease, its whole body politic + infected with it, so that its very breath is foul and its moral eyesight + astigmatized. In Paris we find the Apache, abortive offspring of + prostitution and brutality, the twin brother of the Camorrista. In New + York there are the "gangs," composed of pimps, thugs, cheap thieves, and + hangers-on of criminals, which rise and wane in power according to the + honesty and efficiency of the police, and who, from time to time, hold + much the same relations to police captains and inspectors as the various + gangs of the Neapolitan Camorra do to commissaries and delegati of the + "Public Safety." Corresponding to these, we have the "Black Hand" gangs + among the Italian population of our largest cities. Sometimes the two + coalesce, so that in the second generation we occasionally find an + Italian, like Paul Kelly, leading a gang composed of other Italians, + Irish-Americans, and "tough guys" of all nationalities. But the genuine + Black Hander (the real Camorrist or "Mafiuoso") works alone or with two or + three of his fellow-countrymen. + </p> + <p> + Curiously enough, there is a society of criminal young men in New York + City who are almost the exact counterpart of the Apaches of Paris. They + are known by the euphonious name of "Waps" or "Jacks." These are young + Italian-Americans who allow themselves to be supported by one or two + women, almost never of their own race. These pimps affect a peculiar cut + of hair, and dress with half-turned-up velvet collar, not unlike the + old-time Camorrist, and have manners and customs of their own. They + frequent the lowest order of dance-halls, and are easily known by their + picturesque styles of dancing, of which the most popular is yclept the + "Nigger." They form one variety of the many "gangs" that infest the city, + are as quick to flash a knife as the Apaches, and, as a cult by + themselves, form an interesting sociological study. + </p> + <p> + The majority of the followers of the Mala Vita—the Black Handers—are + not actually of Italian birth, but belong to the second generation. As + children they avoid school, later haunt "pool" parlors and saloons, and + soon become infected with a desire for "easy money," which makes them glad + to follow the lead of some experienced capo maestra. To them he is a sort + of demi-god, and they readily become his clients in crime, taking their + wages in experience or whatever part of the proceeds he doles out to them. + Usually the "boss" tells them nothing of the inner workings of his plots. + They are merely instructed to deliver a letter or to blow up a tenement. + The same name is used by the Black Hander to-day for his "assistant" or + "apprentice" who actually commits a crime as that by which he was known + under the Bourbons in 1820. In those early days the second-grade member of + the Camorra was known as a picciotto. To-day the apprentice or "helper" of + the Black Hander is termed a picciott' in the clipped dialect of the + South. But the picciotto of New York is never raised to the grade of + Camorrista, since the organization of the Camorra has never been + transferred to this country. Instead he becomes in course of time a sort + of bully or bad man on his own hook, a criminal "swell," who does no + manual labor, rarely commits a crime with his own hands, and lives by his + brain. Such a one was Micelli Palliozzi, arrested for the kidnapping of + the Scimeca and Sabello children mentioned above—a dandy who did + nothing but swagger around the Italian quarter. + </p> + <p> + Generally each capo maestra works for himself with his own handful of + followers, who may or may not enjoy his confidence, and each gang has its + own territory, held sacred by the others. The leaders all know each other, + but never trespass upon the others' preserves, and rarely attempt to + blackmail or terrorize any one but Italians. They gather around them + associates from their own part of Italy, or the sons of men whom they have + known at home. Thus for a long time Costabili was leader of the Calabrian + Camorra in New York, and held undisputed sway of the territory south of + Houston Street as far as Canal Street and from Broadway to the East River. + On September 15, last, Costabili was caught with a bomb in his hand, and + he is now doing a three-year bit up the river. Sic transit gloria mundi! + </p> + <p> + The Italian criminal and his American offspring have a sincere contempt + for American criminal law. They are used by experience or tradition to + arbitrary police methods and prosecutions unhampered by Anglo-Saxon rules + of evidence. When the Italian crook is actually brought to the bar of + justice at home, that he will "go" is generally a foregone conclusion. + There need be no complainant in Italy. The government is the whole thing + there. But, in America, if the criminal can "reach" the complaining + witness or "call him off" he has nothing to worry about. This he knows he + can easily do through the terror of the Camorra. And thus he knows that + the chances he takes are comparatively small, including that of conviction + if he is ever tried by a jury of his American peers, who are loath to find + a man guilty whose language and motives they are unable to understand. All + this the young Camorrist is perfectly aware of and gambles on. + </p> + <p> + One of the unique phenomena of the Mala Vita in America is the class of + Italians who are known as "men of honor." These are native Italians who + have been convicted of crime in their own country and have either made + their escape or served their terms. Some of these may have been + counterfeiters at home. They come to America either as stokers, sailors, + stewards, or stowaways, and, while they can not get passports, it is + surprising how lax the authorities are in permitting their escape. The + spirit of the Italian law is willing enough, but its fleshly enforcement + is curiously weak. Those who have money enough manage to reach France or + Holland and come over first or second-class. The main fact is that they + get here—law or no law. Once they arrive in America, they realize + their opportunities and actually start in to turn over a new leaf. They + work hard; they become honest. They may have been Camorrists or Mafiusi at + home, but they are so no longer. They are "on the level," and stay so; + only—they are "men of honor." And what is the meaning of that? + Simply that they keep their mouths, eyes, and ears shut so far as the Mala + Vita is concerned. They are not against it. They might even assist it + passively. Many of these erstwhile criminals pay through the nose for + respectability—the Camorrist after his kind, the Mafius' after his + kind. Sometimes the banker who is paying to a Camorrist is blackmailed by + a Mafius'. He straightway complains to his own bad man, who goes to the + "butter-in" and says in effect: "Here! What are you doing? Don't you know + So-and-So is under my protection?" + </p> + <p> + "Oh!" answers the Mafius'. "Is he? Well, if that is so, I'll leave him + alone—as long as he is paying for protection by somebody." + </p> + <p> + The reader will observe how the silence of "the man of honor" is not + remotely associated with the Omerta. As a rule, however, the "men of + honor" form a privileged and negatively righteous class, and are let + strictly alone by virtue of their evil past. + </p> + <p> + The number of south Italians who now occupy positions of respectability in + New York and who have criminal records on the other side would astound + even their compatriots. Even several well-known business men, bankers, + journalists, and others have been convicted of something or other in + Italy. Occasionally they have been sent to jail; more often they have been + convicted in their absence—condannati in contumacia—and dare + not return to their native land. Sometimes the offences have been serious, + others have been merely technical. At least one popular Italian banker in + New York has been convicted of murder—but the matter was arranged at + home so that he treats it in a humourous vein. Two other bankers are + fugitives from justice, and at least one editor. + </p> + <p> + To-day most of these men are really respectable citizens. Of course some + of them are a bad lot, but they are known and avoided. Yet the fact that + even the better class of Italians in New York are thoroughly familiar with + the phenomena surrounding the Mala Vita is favorable to the spread of a + certain amount of Camorrist activity. There are a number of influential + bosses, or capi maestra, who are ready to undertake almost any kind of a + job for from twenty dollars up, or on a percentage. Here is an + illustration. + </p> + <p> + A well-known Italian importer in New York City was owed the sum of three + thousand dollars by an other Italian, to whom he had loaned the money + without security and who had abused his confidence. Finding that the + debtor intended to cheat him out of the money, although he could easily + have raised the amount of the debt had he so wished, the importer sent for + a Camorrist and told him the story. + </p> + <p> + "You shall be paid," said the Camorrist. + </p> + <p> + Two weeks later the importer was summoned to a cellar on Mott Street. The + Camorrist conducted him down the stairs and opened the door. A candle-end + flaring on a barrel showed the room crowded with rough-looking Italians + and the debtor crouching in a corner. The Camorrist motioned to the + terrified victim to seat himself by the barrel. No word was spoken and + amid deathly silence the man obeyed. At last the Camorrist turned to the + importer and said: + </p> + <p> + "This man owes you three thousand dollars, I believe." + </p> + <p> + The importer nodded. + </p> + <p> + "Pay what you justly owe," ordered the Camorrist. + </p> + <p> + Slowly the reluctant debtor produced a roll of bills and counted them out + upon the barrel-head. At five hundred he stopped and looked at the + Camorrist. + </p> + <p> + "Go on!" directed the latter. + </p> + <p> + So the other, with beads of sweat on his brow, continued until he reached + the two thousand-dollar mark. Here the bills seemed exhausted. The + importer by this time began to feel a certain reticence about his part in + the matter—there might be some widows and orphans somewhere. The bad + man looked inquiringly at him, and the importer mumbled something to the + effect that he "would let it go at that." But the bad man misunderstood + what his client had said and ordered the bankrupt to proceed. So he did + proceed to pull out another thousand dollars from an inside pocket and add + it to the pile on the barrel-head. + </p> + <p> + The Camorrist nodded, picked up the money, recounted it, and removed three + hundred dollars, handing the rest to the importer. + </p> + <p> + "I have deducted the camorra," said he. + </p> + <p> + The bravos formed a line along the cellar to the door, and, as the + importer passed on his way out, each removed his hat and wished him a + buona sera. That importer certainly will never contribute toward a society + for the purpose of eradicating the "Black Hand" from the city of New York. + He says it is the greatest thing he knows. + </p> + <p> + But the genuine Camorrist or Mafius' would be highly indignant at being + called a "Black Hander." His is an ancient and honorable profession; he is + no common criminal, but a "man peculiarly sensitive in matters of honor," + who for a consideration will see that others keep their honorable + agreements. + </p> + <p> + The writer has received authoritative reports of three instances of + extortion which are probably prototypes of many other varieties. The first + is interesting because it shows a Mafius' plying his regular business and + coming here for that precise purpose. There is a large wholesale lemon + trade in New York City, and various growers in Italy compete for it. Not + long past, a well-dressed Italian of good appearance and address rented an + office in the World Building. + </p> + <p> + His name on the door bore the suffix "Agent." He was, indeed, a most + effective one, and he secured practically all the lemon business among the + Italians for his principals, for he was a famous capo ma mafia, and his + customers knew that if they did not buy from the growers under his + "protection" that something might, and very probably would, happen to + their families in or near Palermo. At any rate, few of them took any + chances in the matter, and his trip to America was a financial success. + </p> + <p> + In much the same way a notorious crook named Lupo forced all the retail + Italian grocers to buy from him, although his prices were considerably + higher than those of his competitors. + </p> + <p> + Even Americans have not been slow to avail themselves of Camorrist + methods. There is a sewing machine company which sells its machines to + Italian families on the instalment plan. A regular agent solicits the + orders, places the machines, and collects the initial dollar; but the + moment a subscriber in Mulberry Street falls in arrears his or her name is + placed on a black list, which is turned over by this enterprising business + house to a "collector," who is none other than the leading Camorrist, "bad + man," or Black Hander of the neighborhood. A knock on the door from his + fist, followed by the connotative expression on his face, results almost + uniformly in immediate payment of all that is due. Needless to say, he + gets his camorra—a good one—on the money that otherwise might + never be obtained. + </p> + <p> + It is probable that we should have this kind of thing among the Italians + in America even if the Neapolitan Camorra and the Sicilian Mafia had never + existed, for it is the precise kind of crime that seems to be + spontaneously generated among a suspicious, ignorant, and superstitious + people. The Italian is keenly alive to the dramatic, sensational, and + picturesque; he loves to intrigue, and will imagine plots against him when + none exists. If an Italian is late for a business engagement the man with + whom he has his appointment will be convinced that there is some + conspiracy afoot, even if his friend has merely been delayed by a block on + the subway. Thus, he is a good subject for any wily lago that happens + along. The Italians in America are the most thrifty of all our immigrant + citizens. In five years their deposits in the banks of New York State + amounted to over one hundred million dollars. The local Italian crooks + avail themselves of the universal fear of the vendetta, and let it be + generally known that trouble will visit the banker or importer who does + not "come across" handsomely. In most cases these Black Handers are + ex-convicts with a pretty general reputation as "bad men." It is not + necessary for them to phrase their demands. The tradesman who is honored + with a morning call from one of this gentry does not need to be told the + object of the visit. The mere presence of the fellow is a threat; and if + it is not acceded to, the front of the building will probably be blown out + by a dynamite bomb in the course of the next six weeks—whenever the + gang of which the bad man is the leader can get around to it. And the bad + man may perhaps have a still badder man who is preying upon HIM. Very + often one of these leaders or bosses will run two or three groups, all + operating at the same time. They meet in the back rooms of saloons behind + locked doors, under pretence of wishing to play a game of zecchinetta + unmolested, or in the gloaming in the middle of a city park or undeveloped + property on the outskirts. There the different members of the gang get + their orders and stations, and perhaps a few dollars advance wages. It is + naturally quite impossible to guess the number of successful and + unsuccessful attempts at blackmail among Italians, as the amount of + undiscovered crime throughout the country at large is incomputable. No + word of it comes from the lips of the victims, who are in mortal terror of + the vendetta—of meeting some casual stranger on the street who will + significantly draw the forefinger of his right hand across his throat. + </p> + <p> + There is rather more chance to find and convict a kidnapper than a + bomb-thrower, so that, as a means of extortion, child-snatching is less + popular than the mere demand for the victim's money or his life. On the + other hand it is probably much more effective in accomplishing its result. + But America will not stand for kidnapping, and, although the latter occurs + occasionally, the number of cases is insignificant compared with those in + which dynamite is the chief factor. In 1908, there were forty-four bomb + outrages reported in New York City. There were seventy arrests and nine + convictions. During the present year (1911) there have been about sixty + bomb cases, but there have been none since September 8, since Detective + Carrao captured Rizzi, a picciott', in the act of lighting a bomb in the + hallway of a tenement house. + </p> + <p> + This case of Rizzi is an enlightening one for the student of social + conditions in New York, for Rizzi was no Orsini, not even a Guy Fawks, nor + yet was he an outlaw in his own name. He was simply a picciott' + (pronounced "pish-ot") who did what he was told in order that some other + man who did know why might carry out a threat to blow up somebody who had + refused to be blackmailed. It is practically impossible to get inside the + complicated emotions and motives that lead a man to become an understudy + in dynamiting. Rizzi probably got well paid; at any rate, he was + constantly demonstrating his fitness "to do big things in a big way," and + be received into the small company of the elect—to go forth and + blackmail on his own hook and hire some other picciott' to set off the + bombs. + </p> + <p> + Whoever the capo maestra that Rizzi worked for, he was not only a + deep-dyed villain, but a brainy one. The gang hired a store and pretended + to be engaged in the milk business. They carried the bombs in the steel + trays holding the milk bottles and cans, and, in the costume of peaceful + vendors of the lacteal fluid, they entered the tenements and did their + damage to such as failed to pay them tribute. The manner of his capture + was dramatic. A real milkman for whom Rizzi had worked in the past was + marked out for slaughter. He had been blown up twice already. While he + slept his wife heard some one moving in the hall. Looking out through a + small window, she saw the ex-employee fumble with something and then turn + out the gas on the landing. Her husband, awakened by her exit and return, + asked sleepily what the matter was. + </p> + <p> + "I saw Rizzi out in the hall," she answered. "It was funny-he put out the + light!" + </p> + <p> + In a moment the milkman was out of bed and gazing, with his wife, into the + street. They saw Rizzi come down with his tray and pass out of sight. So + did a couple of Italian detectives from Headquarters who had been + following him and now, at his very heels, watched him enter another + tenement, take a bomb from his tray, and ignite a time fuse. They caught + him with the thing alight in his hand. Meanwhile the other bomb had gone + off and blown up the milkman's tenement. + </p> + <p> + There is some ancient history in regard to these matters which ought to be + retold in the light of modern knowledge; for example, the case of Patti, + the Sicilian banker. He had a prosperous institution in which were + deposited the earnings of many Italians, poor and wealthy. Lupo's gang got + after him and demanded a large sum for "protection." But Patti had a + disinclination to give up, and refused. At the time his refusal was + attributed to high civic ideals, and he was lauded as a hero. Anyhow, he + defied the Mafia, laid in a stock of revolvers and rifles, and rallied his + friends around him. But the news got abroad that Lupo was after Patti, and + there was a run on Patti's bank. It was a big run, and some of the + depositors gesticulated and threatened—for Patti couldn't pay it all + out in a minute. Then there was some kind of a row, and Patti and his + friends (claiming that the Mafia had arrived) opened fire, killing one man + and wounding others. The newspapers praised Patti for a brave and stalwart + citizen. Maybe he was. After the smoke had cleared away, however, he + disappeared with all his depositors' money, and now it has been discovered + that the man he killed was a depositor and not a Black Hander. The police + are still looking for him. + </p> + <p> + This case seems a fairly good illustration of the endless opportunity for + wrong-doing possible in a state of society where extortion is permitted to + exist—where the laws are not enforced—where there is a + "higher" sanction than the code. Whether Patti was a good or a bad man, he + might easily have killed an enemy in revenge and got off scot-free on the + mere claim that the other was blackmailing him; just as an American in + some parts of our country can kill almost anybody and rely on being + acquitted by a jury, provided he is willing to swear that the deceased had + made improper advances to his wife. + </p> + <p> + The prevention of kidnapping, bomb-throwing, and the other allied + manifestations of the Black Hand depends entirely upon the activity of the + police—particularly the Italian detectives, who should form an + inevitable part of the force in every large city. The fact of the matter + is that we never dreamed of a real "Italian peril" (or, more accurately, a + real "Sicilian peril") until about the year 1900. Then we woke up to what + was going on—it had already gone a good way—and started in to + put an end to it. Petrosino did put an end to much of it, and at the + present time it is largely sporadic. Yet there will always be a halo about + the heads of the real Camorrists and Mafiusi—the Alfanos and the + Rapis—in the eyes of their simple-minded countrymen in the United + States. + </p> + <p> + Occasionally one of these big guns arrives at an American port of entry, + coming first-class via Havre or Liverpool, having made his exit from Italy + without a passport. Then the Camorrists of New York and Brooklyn get busy + for a month or so, raising money for the boys at home and knowing that + they will reap their reward if ever they go back. The popular method of + collecting is for the principal capo maestra, or temporary boss of + Mulberry Street, to "give" a banquet at which all "friends" must be + present—at five dollars per head. No one cares to be conspicuous by + reason of his absence, and the hero returns to Italy with a large-sized + draft on Naples or Palermo. + </p> + <p> + Meanwhile the criminal driven out of his own country has but to secure + transportation to New York to find himself in a rich field for his + activities; and once he has landed and observed the demoralization often + existing from political or other reasons in our local forces of police and + our uncertain methods of administering justice (particularly where the + defendant is a foreigner), he rapidly becomes convinced that America is + not only the country of liberty but of license—to commit crime. + </p> + <p> + Most Italian crooks come to the United States not merely some time or + other, but at intervals. Practically all of the Camorrist defendants on + trial at Viterbo have been in the United States, and all will be here soon + again, after their discharge, unless steps are taken to keep them out. + Luckily, it is a fact that so much has been written in American newspapers + and periodicals in the past few years about the danger of the Black Hand + and the criminals from south Italy that the authorities on the other side + have allowed a rumor to be circulated that the climate of South America is + peculiarly adapted to persons whose lungs have become weakened from + confinement in prison. In fact, at the present time more Italian criminals + seek asylum in the Argentine than in the United States. Theoretically, of + course, as no convict can procure a passport, none of them leave Italy at + all—but that is one of the humors of diplomacy. The approved method + among the continental countries of Europe of getting rid of their + criminals is to induce them to "move on." A lot of them keep "moving on" + until they land in America. + </p> + <p> + Of course, the police should be able to cope with the Black Hand problem, + and, with a free use of Italian detectives who speak the dialects and know + their quarry, we may gradually, in the course of fifteen years or so, see + the entire disappearance of this particular criminal phenomenon. But an + ounce of prevention is worth—several tons of cure. Petrosino claimed—not + boastfully—that he could, with proper deportation laws behind him, + exterminate the Black Hand throughout the United States in three months. + </p> + <p> + But, as far as the future is concerned, a solution of the problem exists—a + solution so simple that only a statesman could explain why it has not been + adopted long years ago. The statutes in force at Ellis Island permit the + exclusion of immigrants who have been guilty of crimes involving moral + turpitude in their native land, but do not provide for the compulsory + production of the applicants' "penal certificate" under penalty of + deportation. Every Italian emigrant is obliged to secure a certified + document from the police authorities of his native place, giving his + entire criminal record or showing that he has had none, and without it he + can not obtain a passport. For several years efforts have been made to + insert in our immigration laws a provision that every immigrant from a + country issuing such a certificate must produce it before he can be sure + of admission to the United States. If this proposed law should be passed + by Congress the exclusion of Italian criminals would be almost automatic. + But if it or some similar provisions fails to become law, it is not too + much to say that we may well anticipate a Camorra of some sort in every + locality in our country having a large Italian population. Yet government + moves slowly, and action halts while diplomacy sagely shakes its head over + the official cigarette. + </p> + <p> + A bill amending the present law to this effect has received the + enthusiastic approval of the immigration authorities and of the President. + At first the Italian officials here and abroad expressed themselves as + heartily in sympathy with this proposed addition to the excluded classes; + but, once the bill was drawn and submitted to Congress, some of these same + officials entered violent protests against it, on the ground that such a + provision discriminated unfairly against Italy and the other countries + issuing such certificates. The result of this has been to delay all action + on the bill which is now being held in committee. Meanwhile the Black + Hander is arriving almost daily, and we have no adequate laws to keep him + out. + </p> + <p> + <br /><br /><br /><br /> + </p> +<pre xml:space="preserve"> + + + + + +End of the Project Gutenberg EBook of Courts and Criminals, by Arthur Train + +*** END OF THIS PROJECT GUTENBERG EBOOK COURTS AND CRIMINALS *** + +***** This file should be named 5268-h.htm or 5268-h.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/5/2/6/5268/ + +Produced by An Anonymous Volunteer, and David Widger + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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