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diff --git a/old/crtcr10.txt b/old/crtcr10.txt new file mode 100644 index 0000000..f282303 --- /dev/null +++ b/old/crtcr10.txt @@ -0,0 +1,8342 @@ +The Project Gutenberg EBook of Courts and Criminals, by Arthur Train + +Copyright laws are changing all over the world. Be sure to check the +copyright laws for your country before downloading or redistributing +this or any other Project Gutenberg eBook. + +This header should be the first thing seen when viewing this Project +Gutenberg file. Please do not remove it. Do not change or edit the +header without written permission. + +Please read the "legal small print," and other information about the +eBook and Project Gutenberg at the bottom of this file. Included is +important information about your specific rights and restrictions in +how the file may be used. You can also find out about how to make a +donation to Project Gutenberg, and how to get involved. + + +**Welcome To The World of Free Plain Vanilla Electronic Texts** + +**eBooks Readable By Both Humans and By Computers, Since 1971** + +*****These eBooks Were Prepared By Thousands of Volunteers!***** + + +Title: Courts and Criminals + +Author: Arthur Train + +Release Date: March, 2004 [EBook #5268] +[Yes, we are more than one year ahead of schedule] +[This file was first posted on June 21, 2002] + +Edition: 10 + +Language: English + +Character set encoding: ASCII + +*** START OF THE PROJECT GUTENBERG EBOOK COURTS AND CRIMINALS *** + + + + + + + + + + + + + +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 autoadministration +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,I48,000..........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,OOO.........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 $8o 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, carefuly 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 j +ury-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 hag 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, be 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 he 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. Finallv 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 compartively 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 THE PROJECT GUTENBERG EBOOK COURTS AND CRIMINALS *** + +This file should be named crtcr10.txt or crtcr10.zip +Corrected EDITIONS of our eBooks get a new NUMBER, crtcr11.txt +VERSIONS based on separate sources get new LETTER, crtcr10a.txt + + + +Project Gutenberg eBooks are often created from several printed +editions, all of which are confirmed as Public Domain in the US +unless a copyright notice is included. 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