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diff --git a/5268.txt b/5268.txt new file mode 100644 index 0000000..606668e --- /dev/null +++ b/5268.txt @@ -0,0 +1,7364 @@ +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, 2004 [EBook #5268] +Posting Date: March 26, 2009 + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK COURTS AND CRIMINALS *** + + + + +Produced by An Anonymous Volunteer + + + + + +COURTS AND CRIMINALS + + +By Arthur Train + + + +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. + + + + +CHAPTER I. The Pleasant Fiction of the Presumption of Innocence + + +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. + +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. + +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. + +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. + +Said the mayor in his written opinion: + + +"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." + +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. + +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. + +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! + +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? + +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? + +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. + +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." + +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. + +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? + +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!" + +"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. + +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. + +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. + +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. + +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. + +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. + +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. + +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? + +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. + +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. + +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. + +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. + +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. + +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. + +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. + + + + +CHAPTER II. Preparing a Criminal Case for Trial + + +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. + +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. + +"Are you acquainted with the accused or his family?" mildly inquires the +assistant prosecutor. "No--not at all," the talesman may blandly reply. + +The answer, perhaps, is literally true, and yet the prosecutor may be +pardoned for murmuring + +"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. + +"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. + +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. + +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. + + + + * In the State of New York. + + +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." + +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. + +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. + +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. + +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. + +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. + +"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." + +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." + +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. + +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. + +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. + +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. + +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. + +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. + +These investigations are naturally conducted at the very outset of the +preparation of the case. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +"Did you hear your chief witness say he was a carpenter?" inquired the +foreman. + +"Why, certainly," answered the district attorney, + +"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?" + +The prosecutor recalled the incident and nodded. + +"Well, he said ten dollars--and I knew he was a liar. A door like that +don't cost but four-fifty!" + +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. + +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. + +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. + +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. + +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. + +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. + +"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. + +"Oh, quit that!" shouts the district attorney. "Tell me what you saw in +your own words." + +The "cop" blushes and stammers: + +"Aw, well, on the morning of the twenty-second of July, about 3.30 A.M." + +"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." + +By this time the "cop" is "mad clear through." + +"I'm no liar!" he retorts. "I saw the ------ pull his gun and shoot!" + +"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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + + + + +CHAPTER III. Sensationalism and Jury Trials + + +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. + +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. + +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. + +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." + +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? + + + * 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 + + +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. + +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. + +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. + +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. + +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. + +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. + +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: + + 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 + + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +Last, as previously suggested, murder cases are apt to be inherently +weaker than others, and more often depend upon circumstantial evidence. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + + + +CHAPTER IV. Why Do Men Kill? + + +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. + +"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--" + +"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. + +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? + +I glanced along the red-labeled backs. + +"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. + +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. + +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. + +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. + +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. + +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. + +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. + +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." + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +Nor are the conclusions changed by the figures of the years between 1904 +and 1909. + +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. + +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. + +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." + +The table on the opposite page gives the figures collected by the +'Chicago Tribune' for the years from 1881 to 1910. + +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. + + + 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 + + +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. + +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. + +"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. + + + + +CHAPTER V. Detectives and Others + + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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! + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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? + +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. + +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. + +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. + +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. + + + + +CHAPTER VI. Detectives Who Detect + + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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: + +"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." + +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. + +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. + +"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?" + +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. + +"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." + +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." + +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. + +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. + +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: + +"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." + +Another: + +"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." + +Again: + +"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." + +"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." + +Last: + +"The detective must, in every instance, report everything which is +favorable to the suspected party, as well as everything which may be +against him." + +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. + +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. + +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." + +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: + +"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." + +"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?" + +The "head" smiled. + +"The case hasn't arisen yet," said he. "When it does I guess we'll get +the real thing." + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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: + +"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. + +"Is that dead on the level?" he inquired. + +"Gospel!" answered the other. + +"I'll come up myself!" said the boss. + +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. + +"Anybody have good hosses in this town?" asked the detective. + +"Sure!" answered the smith. "Mr. ------ up on the hill has the best in +the county!" + +"What sort of a feller is he?" + +The smith chewed in silence for a moment. + +"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!" + +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. + +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. + +"By the way," said the friend, "do you ever hear of any 'touches' up the +river or along the Sound?" + +"Sometimes," answered the boss, pricking up his ears. "Why do you ask?" + +"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." + +"When was it?" + +"Two weeks ago," said the friend. + +"Thanks," returned the boss. "You must excuse me now; I've got an +important engagement." + +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. + +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. + +"A great artist!" said the president. + +"The most skilful forger in the world!" opined another. + +"We must run down all the celebrated criminals!" announced a third. + +"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!" + +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! + +"Good-day, gents!" said the boss, putting the check in his wallet. "I've +got to get busy with the rubber stamp makers!" + +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. + +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. + +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." + +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. + +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. + +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. + +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. + +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. + + + + +CHAPTER VII. Women in the Courts + + +AS WITNESSES + +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. + +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. + +"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'.... + +"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." + +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: + +"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." + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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." + +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. + +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." + +One of the ladies referred to testified as follows: + +"Can you identify that diamond?" + +"I am quite sure that it is mine:" + +"How do you know?" + +"It looks exactly like it." + +"But may it not be a similar one and not your own?" + +"No; it is mine." + +"But how? It has no marks." + +"I don't care. I know it is mine. I SWEAR IT IS!" + +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. + +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. + +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. + +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: + +"Do you know the defendant?" + +"Yes, to my cost!" + +Or + +"How old are you?" + +"Twenty-three,--old enough to have known better than to trust him." + +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. + +"Do you admit that you were on Forty-second Street at midnight?" + +"Yes. But it was in response to a message sent by the defendant through +his cousin." + +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. + +One question, and that as to the witness's means of livelihood, is often +sufficient. + +"How do you support yourself?" + +"I am a lady of leisure!" replies the witness (arrayed in flamboyant +colors) snappishly. + +"That will do, thank you," remarks the lawyer with a smile. "You may +step down." + +The writer remembers being nicely hoisted by his own petard on a similar +occasion: + +"What do you do for a living?" he asked. + +The witness, a rather deceptively arrayed woman, turned upon him with a +glance of contempt: + +"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." + +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." + +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: + +"And how fast, Miss, would you say the car was going?" + +"I really could not tell exactly, Mr. Wellman." + +"Would you say that it was going at ten miles an hour?" + +"Oh, fully that!" + +"Twenty miles an hour?" + +"Yes, I should say it was going twenty miles an hour." + +"Will you say it was going thirty miles an hour?" inquired Wellman with +a glance at the jury. + +"Why, yes, I will say that it was." + +"Will you say it was going forty?" + +"Yes." + +"Fifty?" + +"Yes, I will say so." + +"Seventy?" + +"Yes." + +"Eighty?" + +"Yes," responded the young lady with a countenance absolutely devoid of +expression. + +"A hundred?" inquired the lawyer with a thrill of eager triumph in his +voice. + +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: + +"Mr. Wellman, don't you think we have carried our little joke far +enough?" + +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. + +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. + +"Do you say, Mrs.--" the lawyer would inquire deferentially, "that you +heard the sound of three blows?" + +"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!" + +"Stop! stop!" exclaimed the lawyer. + +"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!'" + +"I object to all this!" shouts the lawyer. + +"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!" + +The lawyer ignominiously abandoned the attack. + +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: + +"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." + +"Be sure and remember that, mother," the daughter had admonished her. + +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. + +"Madam," he began courteously, "you say you gave the defendant money?" + +"I told him to put it into real estate, and he said he would!" replied +Mrs. firmly. + +"I did not ask you that, Mrs. ------," politely interjected Mr. Chanler. +"How much did you give him?" + +"I told him to put it into real estate, and he said he would!" repeated +the old lady wearily. + +"But, madam, you do not answer my question!" exclaimed Chanler. "How +much did you give him?" + +"I told him to put it into real--" began the old lady again. + +"Yes, yes!" cried the lawyer; "we know that! Answer the question." + +"estate, and he said he would!" finished the old woman innocently. + +"If your Honor please, I will excuse the witness. And I move that her +answers be stricken out!" cried Chanler savagely. + +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: + +"I told him to put it into real estate, and he said he would!" + +Almost needless to say, Hackett was convicted and sentenced to seven +years in State's prison. + +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. + +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!" + + +AS COMPLAINANTS AND DEFENDANTS + +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. + +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. + +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. + +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. + +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." + +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." + +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. + +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. + +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. + +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. + +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: + +"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!" + +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. + +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. + +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. + +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. + +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. + +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. + +"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!" + +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. + +"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!" + +The abashed jury slunk downstairs in silence and the secret of their +deliberations remains as yet untold. + +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: + + 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 + + +The percentage of convictions to acquittals is as follows: + + Convictions Acquittals Convictions Acquittals + Per Cent Per Cent + 1887-1907......23........7..........77..........23 + + +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: + + 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 + +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. + +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. + +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. + +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: + +"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." + +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.* + + + + * Cf. Thayer, as cited, supra. + + +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. + + + + +CHAPTER VIII. Tricks of the Trade + + +"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. + +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. + +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. + +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. + +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: + +"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.) + +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. + +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. + +"Gentlemen of the jury, have you agreed upon a verdict?" inquired the +clerk. + +"We have," replied the foreman. + +"How say you, do you find the defendant guilty or not guilty?" + +"Guilty--of manslaughter," returned the foreman feebly. + +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. + +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. + +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." + +The young assistant replied that it was, and that, in his opinion, it +was "quite enough." + +"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?" + +The assistant took the paper in trembling fingers and perused it as well +as he could in his unnerved condition. + +"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?" + +"Yes, your Honors," replied the assistant; "this paper seems to be a +license." + +"Defendant discharged!" remarked the court briefly. + +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 + +"I am always glad to give the boys a chance--help 'em along--teach 'em a +little. That license was a beer license!" + + +BEFORE TRIAL + +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." + +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. + +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. + +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. + +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. + +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. + +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. + +1. Acute gastritis. + +2. Acute nephritis. + +3. Cerebro-spinal meningitis. + +4. Fulminating meningitis. + +5. That the child had died of apomorphine, a totally distinct poison. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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." + +"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!" + +The prisoner arose and walked to the witnesschair. + +"Open your mouth!" shouted the lawyer. + +The defendant did so. He had not a tooth in his head. The delay had been +advantageously employed. + +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: + +1. Demur to the indictment. + +2. Move for an inspection of the minutes of the proceedings before the +grand jury. + +3. Move to dismiss the indictment for lack of sufficient evidence before +that body. + +4. Move for a commission to take testimony. + +5. Move for a change of venue. + +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. + +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. + +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. + +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. + +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. + +AT THE TRIAL + +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. + +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. + +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: + +"Ha! So you plead guilty, do you? Well, I sentence you to the +penitentiary for one year, you miserable scoundrel!" + +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: + +"Well, how's your client-Mr. Dough?" + +"Safe on the Island, I suppose," replied the lawyer, + +"Not a bit of it," returned the district attorney. "He never went +there." + +"What do you mean?" inquired the lawyer. "I heard him sentenced to a +year myself!" + +"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.'" + +"You don't say!" cried the lawyer. + +"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!" + +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. + +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. + +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. + +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. + +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. + +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. + +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: + +"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?" + +The talesman, of course, inevitably replied in the negative. + +"Thank you, sir," Purdy would continue: "In that event you are entirely +acceptable!" + +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. + +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. + +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. + +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: + +"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!" + +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. + +"Be fair, Mr.--!" is the continual cry. "Try to be fair!" + +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. + +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. + +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. + +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. + +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. + +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. + + + * 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. + +CITY & COUNTY OF NEW YORK: ss: + +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. + +PRESENT. William Morrott \ Esquires + James Graham / quorum + + Jacobus Cortlandt \ Esquires + Grandt Schuylor } Justices + Leonard Lowie / of the Peace + +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. + + +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. + +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. + +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. + +"To prove to you how easily this can be done," said he, "I will +volunteer to write a better Kauser signature than Parker did." + +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? + +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. + +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. + + + + +CHAPTER IX. What Fosters Crime + + +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. + +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: + +"Oh, Nan Patterson did it and got off." + +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. + +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. + +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." + +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. + +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. + +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. + +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. + +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. + +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". + + + + *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. + + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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? + +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." + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + + + + * "Limitation of the Right of Appeal in Criminal Cases," by Nathan A. +Smythe, 17 Harvard Law Rev. 317 (1905). + + +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.** + + + + *Cf. "Sensational Journalism and the Law," in "Moral Overstrain," by +G.W. Alger. + + + + **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. + +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. + + + + *"The Citizen and the Jury," in "Moral Overstrain," by G.W. Alger. + + +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. + + + + +CHAPTER X. Insanity and the Law + + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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.* + + + * The questions propounded to the judges and their answers are here +given: + + +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? + +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. + +Question 4:--"If a person under an insane delusion as to existing facts +commits an offence in consequence thereof, is he thereby excused? + +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. + +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? + +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? + +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.) + +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: + +"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."* + + + + * Dew vs. Clark. + + +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. + +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. + +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. + +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. + +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. + +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. + +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? + +What does the reader mean by know? What does the ordinary juryman mean +by it? + +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. + + + + *"General View of the Criminal Law," p. 80. + + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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." + +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. + +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." + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +To recapitulate from the writer's experience: + +(1) The ordinary juror tends to be sceptical as to the good faith of the +defence of insanity. + +(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. + +(3) He applies the strict legal test only in cases of extreme brutality. + +(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. + +The following deductions may also fairly be made from observation: + +(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. + +(2) That expert medical testimony in such cases is largely discounted by +the layman. + +(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. + +(4) That a new definition of criminal responsibility is necessary, based +upon present knowledge of mental disease and its causes. + +(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. + +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. + +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: + +"This branch of the doctrine should be cautiously received; for delusion +of any kind is strongly indicative of a generally diseased mind." + +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. + + + + *See State vs. Richards, 1873, Conn. + + +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): + + +"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? + +"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. + +"3. If he did have such knowledge, he may nevertheless not be legally +responsible if the two following conditions concur: + +"(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. + +"(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." + + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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: + +"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." + +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.* + + + + * 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. + + +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. + + + + +CHAPTER XI. The Mala Vita in America + + +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. + +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. + +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. + +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!" + +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. + +"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!" + +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. + +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. + +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. + +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. + +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. + +"Did you ever remove this terrible poison from the bolster?" demanded +the defendant's counsel in a sneering tone. + +"No," answered the woman. + +"Have you ever changed the bolster?" he persisted. + +"No." + +"Then it's there yet?" + +"I-I think so," falteringly. + +"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." + +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. + +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. + +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. + +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. + +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: + +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!" + +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. + +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. + + + + * Much more likely in Italy than in the United States. + + +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. + +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. + +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. + +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. + +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. + +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. + + + *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. + + +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." + +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. + +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. + +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. + +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. + +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? + +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. + +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. + +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. + +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. + +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! + +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. + +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?" + +"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." + +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. + +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. + +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. + +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. + +"You shall be paid," said the Camorrist. + +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: + +"This man owes you three thousand dollars, I believe." + +The importer nodded. + +"Pay what you justly owe," ordered the Camorrist. + +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. + +"Go on!" directed the latter. + +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. + +The Camorrist nodded, picked up the money, recounted it, and removed +three hundred dollars, handing the rest to the importer. + +"I have deducted the camorra," said he. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +"I saw Rizzi out in the hall," she answered. "It was funny-he put out +the light!" + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + +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. + + + + + +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.txt or 5268.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 + +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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