:y: 
 
 n 
 
 p 
 
 To 
 ETHEL KISSAM TRAIN 
 
PREFACE 
 
 THE prisoner at the bar is a figure little known to 
 most of us. The newspapers keep us steadily in- 
 formed as to the doings of all sorts of criminals 
 up to the time of their capture, and prison litera- 
 ture is abundant, but just how the criminal becomes 
 a convict is not a matter of common knowledge. 
 This, however, does not prevent the ordinary citi- 
 zen from expressing pronounced and, frequently, 
 vociferous opinions upon our methods of adminis- 
 tering criminal justice, in the same way that he 
 stands ready at any time to criticise the Darwinian 
 theory, free trade or foreign missions. Full knowl- 
 edge of any subject is inevitably an impediment to 
 forcible asseveration. Generalities are easy to for- 
 mulate and difficult to disprove. The man who 
 sits with his feet up and his chair tilted back in 
 the "drummer's" hotel will inform you that there 
 is no such thing as criminal justice and that the 
 whole judiciary, state and federal, is "owned" or 
 can be bought; you yourself doubtless believe that 
 the jury system is a failure and successfully evade 
 service upon it; while your neighbor is firmly con- 
 vinced that prosecutors secure their positions by 
 
 vii 
 
viii PREFACE 
 
 reason of their similarity to bloodhounds and re- 
 tain them by virtue of the same token. 
 
 The only information available to most people 
 on this exceedingly important subject is that offered 
 by the press, and the press (save in the case of 
 sensational murder trials) usually confines itself to 
 dramatic accounts of the arrest of the more pic- 
 turesque sort of criminals, with lurid descriptions 
 of their offences. The report or " story" concludes 
 with the statement that "Detective-Sergeant Smith 
 immediately arraigned his prisoner (Eobinson) be- 
 fore Magistrate Jones, who committed the latter 
 to jail and adjourned the hearing until the follow- 
 ing Tuesday." This ends the matter, 'and the 
 grewsome or ingenious details of the crime having 
 been served up to satisfy the public appetite, and 
 the offender having been locked up, there is noth- 
 ing, from the reporters' point of view, any longer 
 in the story. We never hear of Eobinson again 
 unless he happens to be the president of a bank or 
 a degenerate millionaire. He is "disposed of," 
 as they say in the criminal reports, without excit- 
 ing anybody's interest, and his conviction or acquit- 
 tal is not attended by newspaper comment. 
 
 If on the other hand the case be one of sensational 
 interest we are treated daily to long histories of 
 the defendant and his family, illustrated by gro- 
 tesque reproductions from the ancestral photograph 
 album. We become familiar with what he eats and 
 
PREFACE ix 
 
 drinks, the number of cigars he smokes and his 
 favorite actor and author. The case consumes 
 months in preparation and its trial occupies weeks. 
 A battalion of "special" talesmen marches to the 
 court house, "the standing army of the gibbet," 
 as one of my professional brethren (on the other 
 side of the bar) calls them. As each of the twelve 
 is chosen his physiognomy appears on the front 
 page of an evening edition, a tear dropping from 
 his eye or his jaws locked in grim determination, 
 in accordance with the sentiments of the editor or 
 the policy of the owner. Then follows a pictorial 
 procession of witnesses. The prosecutor makes a 
 full-page address to the public in the centre of which 
 appears his portrait, heroic size, arm sawing the 
 air. 
 
 "I am innocent!" cries a purple defendant, in 
 green letters. 
 
 "Murderer!" hisses a magenta prosecutor, in 
 characters of vermilion. 
 
 Finally the whole performance comes to an end 
 without anybody having much of an idea of what 
 has actually taken place, and leaving on the public 
 mind an entirely false and distorted conception of 
 what a criminal trial is like. 
 
 The object of this book is to correct the very gen- 
 eral erroneous impression as to certain phases of 
 criminal justice, and to give a concrete idea of its 
 actual administration in large cities in ordinary 
 
x PREFACE 
 
 cases, cases quite as important to the defendants 
 and to the public as those which attract widespread 
 attention. 
 
 The millionaire embezzler and the pickpocket are 
 tried before the same judge and the same jury, 
 and the same system suffices to determine the guilt 
 or innocence of the boy who has broken into a cigar 
 store and the actress who has murdered her lover. 
 It is in crowded cities, like New York, containing 
 an excessive foreign-born population, that the sys- 
 tem meets with its severest test, and if tried and not 
 found wanting under these conditions it can fairly 
 be said to have demonstrated its practical efficiency 
 and stability. Has the jury system broken down! 
 Are prosecutors habitually vindictive and over- 
 zealous I It is the hope of the writer that the chap- 
 ters which follow may afford some data to assist 
 the reader in formulating an intelligent opinion 
 upon these and kindred subjects. It is needless to 
 say that no attempt is made to discuss police cor- 
 ruption, the increase or decrease of crime, or penol- 
 ogy in general, and the writer has confined himself 
 strictly to that period of the criminals' history de- 
 scribed in the title as " AT THE BAK. ' ' 
 
 To my official chief, William Travers Jerome, and 
 to my associates, Charles Cooper Nott, Charles 
 Albert Perkins, and Nathan A. Smyth, I desire to 
 acknowledge my gratitude for their advice and 
 assistance ; to my friend, Leonard E. Opdycke, who 
 
PREFACE xi 
 
 suggested the collection and correlating of these 
 chapters, I wish to express my thanks for his con- 
 stant interest and encouragement; but my debt to 
 these is naught compared to that which I owe to her 
 to whom this book is dedicated, who, with unsparing 
 pains, has read, re-read and revised these chapters 
 in manuscript, galley and page and who has united 
 the functions of critic, censor and collaborator with 
 a patience, good humor, and discretion which make 
 writing a joy and proof-reading a vacation. 
 
 ARTHUR TRAIN. 
 
 Bar Harbor, Me., 
 Sept. 1, 1906. 
 
CONTENTS 
 
 PAGE 
 
 CHAPTER I 
 WHAT Is CRIME? 1 
 
 CHAPTER II 
 WHO ARE THE REAL CRIMINALS . . . .19 
 
 CHAPTER III 
 THE ARREST . 31 
 
 CHAPTER IV 
 THE POLICE COURT. 42 
 
 CHAPTER V 
 THE TRIAL OF MISDEMEANORS . . . . .62 
 
 CHAPTER VI 
 THE GRAND JURY 81 
 
 CHAPTER VII 
 THE LAW'S DELAYS 102 
 
 CHAPTER VIII 
 
 * RED TAPE 129 
 
 xiii 
 
xiv CONTENTS 
 
 PAGE 
 
 CHAPTER IX 
 THE TRIAL OF FELONIES 148 
 
 CHAPTER X 
 THE JUDGE 178 
 
 CHAPTER XI 
 THE JUEY ^205 
 
 CHAPTER XII 
 
 THE WITNESS . . . . . . 224 
 
 CHAPTER XIII 
 
 THE VERDICT . . . . . . . 241 
 
 CHAPTER XIV 
 THE SENTENCE 261 
 
 CHAPTER XV 
 WOMEN IN THE COURTS 279 
 
 CHAPTER XVI 
 
 TRICKS OF THE TRADE . . . 303 
 
 / CHAPTER XVII 
 
 r 
 
 I WHAT FOSTERS CRIME 334 
 
THE PRISONER AT THE BAR 
 
The Prisoner at the Bar 
 
 CHAPTER I 
 WHAT IS CRIME? 
 
 A CRIME is any act or omission to act punishable 
 as such by law. It is difficult, if not impossible, to 
 devise any closer definition. Speaking broadly, 
 crimes are certain acts usually wrongful, which are 
 regarded as sufficiently dangerous or harmful to 
 society to be forbidden under pain of punishment. 
 The general relation of crimes to wrongs as a whole 
 is sometimes illustrated by a circle having two much 
 smaller circles within it. The outer circle repre- 
 sents wrongful acts in the aggregate; the second, 
 wrongful acts held by law to be torts, that is to say, 
 infractions of private rights for which redress may 
 be sought in the civil courts, and the smallest or 
 inner circle, acts held to be so injurious to the public 
 as to be punishable as crimes. 
 
 This does well enough for the purpose of illus^ 
 trating the relative proportion of crimes to torts 
 or wrongful acts in general, and, if a tiny dot be 
 placed in the centre of the bull's-eye to represent 
 those crimes which are actually punished, one gets 
 an excellent idea of how infinitely small a number 
 of these serve to keep the whole social fabric in 
 order and sustain the majesty of the law. But the 
 inference might naturally be drawn that whatever 
 
 i 
 
2 
 
 THE PKISONER AT THE BAR 
 
 was a crime must also be a tort or at least a wrong, 
 which, while true in the majority of instances, is 
 not necessarily the case in all. In a certain sense 
 crimes are always wrongs or, at least, wrong, but 
 
 only in the sense of being infractions of law are 
 they always wrongs or wrong. 
 
 The word wrong being the antithesis of the word 
 right, and carrying with it generally some ethical 
 or moral significance, will vary in its meaning ac- 
 cording to the ideas of the individual who makes use 
 of it. Indeed, it is conceivable that the only really 
 right thing to do under certain circumstances would 
 be to commit an act designated by law as a crime. 
 So, conversely, while a wrong viewed as an infrac- 
 tion of the laws of God is a sin, that which is uni- 
 
WHAT IS CEIME! 3 
 
 versally held sinful is by no means always a crime. 
 Speaking less broadly, a wrong is an infraction of a 
 right belonging to another, which he derives from 
 the law governing the society of which he is a mem- 
 ber. Many wrongs are such that he may sue and 
 obtain redress therefor in the courts. But it by 
 no means follows that every crime involves the in- 
 fraction of a private right or the commission of a 
 tort. Thus " per jury " and most crimes against the 
 State are not torts at all. It will thus be seen that 
 no accurate definition of a crime can be given save 
 that it is an act or omission which the State pun- 
 ishes as such, and that technically the word carries 
 with it no imputation or implication of sin, vice, 
 iniquity, or in a broad sense even of wrong. The act 
 may or may not be repugnant to our ideas of right. 
 Numerically considered, only a minority of crimes 
 have any ethical significance whatever, the majority 
 being designated by the law itself as mala prohibita, 
 rather than mala in se. 
 
 It is the duty of a prosecutor to see that infrac- 
 tions of the criminal law are punished and to repre- 
 sent the public in all proceedings had for that pur- 
 pose, but, in view of what has just been said, it will 
 be observed that his duties do not necessarily in- 
 volve familiarity with vice, violence or even sin. 
 The crimes he is called upon to prosecute may be 
 disgusting, depraved and wicked, or they may be, 
 and frequently are, interesting, ingenious, amusing 
 or, possibly (though not probably), commendable. 
 For example, a man who chastises the foul slanderer 
 of a young woman's character may have technically 
 committed an assault of high degree, yet if he does 
 so in the proper spirit, in a suitable place, and 
 
4 THE PEISONEE AT THE BAR 
 
 makes the offender smart sufficiently, he deserves 
 the thanks and congratulations of all decent men 
 and honest women. Yet, indubitably, he has com- 
 mitted a crime, although, thanks to our still linger- 
 ing spirit of chivalry, he would never be stamped 
 by any jury as a criminal. 
 
 A prosecutor is frequently asked if he does not 
 find that his experience has a ' ' hardening ' ' effect. 
 
 < < Why should it T ' he might fairly reply. i ' I have 
 to do with criminals, it is true, but the criminals as 
 a rule are little or no worse than the classes of 
 people outside from which they have been drawn. 
 Their arrest and conviction are largely due to acci- 
 dental causes, such as weak heads, warm hearts, 
 quick temper, ignorance, foolishness or drunken- 
 ness. We see all of these characteristics in our im- 
 mediate associates. A great many convicted per- 
 sons have done acts which are not wrong at all, but 
 are merely forbidden. Even where their acts are 
 really wrong it is generally the stupid, the unfor- 
 tunate, or the less skilful who are caught. For 
 every rogue in jail there are at least ten thousand at 
 large. The ones who escape are wiser and very 
 likely meaner. Last, but not least, a very great 
 number of the most despicable, wicked, and harm- 
 ful deeds that can be committed are not crimes at 
 i all. The fact that a man is a criminal argues noth- 
 ing at all against his general decency, and when I 
 meet a convict I assume, and generally assume cor- 
 rectly, that to most intents and purposes he is a 
 gentleman. The code which puts one man in stripes 
 and allows another to ride in an automobile is 
 purely artificial, and strictly speaking proves not 
 a whit which is the better man. ' ' 
 
WHAT IS CRIME! 5 
 
 Now while such an answer might seem frivolous 
 enough to the lay reader, it would nevertheless be 
 substantially true. Your criminal, that is to say, 
 strictly, the law-breaker who is brought to book 
 for his offence, is very likely a pretty good sort of 
 fellow as fellows go. If he has been guilty merely 
 of an act which is prohibited, not because of its 
 inherent wrong, but simply on grounds of public 
 policy malum prohibitum he is probably as good 
 as anybody. His offence may be due to ignorance 
 or accident. Assuming that his crime be one 
 which would seem to involve moral turpitude 
 malum in se there are very likely mitigating cir- 
 cumstances which render his offence, if not excusa- 
 ble, at least less reprehensible than would appear 
 at first glance. 
 
 Crimes bear no absolute relation to one another. 
 A murderer may or may not be worse than a thief, 
 and either may be better than his accuser. The 
 actual danger of any particular offender to the com- 
 munity lies not so much in the kind or degree of 
 crime which he may have committed as in the state 
 of his mind. Even the criminals who are really 
 criminal, in the sense that they have a systematic 
 intention of defying the law and preying upon soci- 
 ety, are generally not criminal in all directions, but 
 usually only in one, so that taken upon their unpro- 
 fessional side they present the same characteristics 
 as ordinary and, roughly speaking, law-abiding citi- 
 zens. The bank robber usually is a bank robber and 
 nothing more. He specializes in that one pursuit. 
 It is his vocation and his joy. He prides himself 
 on the artistic manner in which he does his work. 
 He would scorn to steal your watch and is a man of 
 
6 THE PRISONER AT THE BAR 
 
 honor outside of bank-breaking hours, " Honor 
 among thieves.'' Often enough he is a model hus- 
 band and father. So, too, may be your forger, gam- 
 bler, swindler, burglar, highwayman, or thief, any 
 in fact except the real moral pervert ; and of course 
 murder is entirely compatible on occasion with a 
 noble, dignified and generous character. " There 
 is nothing essentially incongruous between crime 
 and culture. " The prosecutor who begins by loath- 
 ing and despising the man sitting at the bar may 
 end by having a sincere admiration for his intellect, 
 character or capabilities. This by way of defence to 
 crime in general. 
 
 Our forefathers contented themselves with a 
 rough distinction between crimes as mala prohibita 
 and mala in se. When they sought to classify crim- 
 inal acts under this arrangement they divided them 
 accordingly as the offence carried or did not carry 
 with it a suggestion of moral turpitude. Broadly 
 speaking, all felonies were and are regarded as mala 
 in se. Murder, arson, burglary, theft, etc., in gen- 
 eral indubitably imply a depraved mind, while in- 
 fractions of Sunday observance laws or of statutes 
 governing the trade in liquor do not. Yet it must 
 be perfectly clear that any such distinction is in- 
 conclusive. 
 
 There can be no general rule based merely on the 
 name or kind of crime committed which is going to 
 tell us which offender is really the worst. A misde- 
 meanor may be very much more heinous than a 
 felony. The adulterator of drugs or the employer 
 of illegal child labor may well be regarded as vastly 
 more reprehensible than the tramp who steals part 
 of the family wash. So far as that goes there are an 
 
WHAT IS CRIME! 7 
 
 alarming multitude of acts and omissions not for- 
 bidden by statute or classed as crimes which are 
 to all intents and purposes fully as criminal as those 
 designated as such by law. This is the inevitable 
 result of the fact that crimes are not crimes merely 
 because they are wrong, but because the State has 
 enjoined them. For example, to push a blind man 
 over the edge of a cliff so that he is killed upon the 
 rocks below is murder, but to permit him to walk 
 over it, although by stretching out your hand you 
 might prevent him, is no crime at all. It is a crime 
 to defame a woman's character if you write your 
 accusation upon a slip of paper and pass it to an- 
 other, but it is no crime in New York State to arise 
 in a crowded lecture hall and ruin her forever by 
 word of mouth. It is a crime to steal a banana off a 
 fruit-stand, but it is no crime to borrow ten thousand 
 dollars from a man whose entire fortune it is, al- 
 though you have no expectation of returning it. You 
 can be a swindler all your life the meanest sort of a 
 mean swindler, but there is no crime of being a 
 swindler or of being a mean man. It is a crime 
 to ruin a girl of seventeen years and eleven months, 
 but not to ruin a girl of eighteen. The "age of 
 consent" varies in the different States. It is a 
 crime to obtain a dollar by means of a false state- 
 ment as to a past or existing fact, but it is no crime 
 to obtain as much money as you can by any other 
 sort of a lie. Lying is not a crime, but lying under 
 oath is a crime, provided it be done in a legal pro- 
 ceeding and relates to a material matter. The most 
 learned jurists habitually disagree as to what is 
 material and what is not. 
 Even when the acts to be contrasted are all crimes 
 
8 THE PEISONEE AT THE BAR 
 
 there is no way of actually discriminating between 
 them except by carefully scrutinizing the circum- 
 stances of each. The so-called " degrees" mean 
 little or nothing. If you steal four hundred and 
 ninety-nine dollars out of a man's safe in the day- 
 time it is grand larceny in the second degree. If 
 you pick the same man's pocket of a subway ticket 
 after sunset it is grand larceny in the first degree. 
 You may get five years in the first instance and ten 
 in the second. If you steal twenty-five dollars out 
 of a bureau drawer you commit petty larceny and 
 may be sent to prison for only one year. 
 
 If the degree of any particular crime of which a 
 defendant is found guilty is no index to his real 
 criminality or of his danger to society, still less is 
 the name of the crime he has committed an index to 
 his moral character, save in the case of certain 
 offences which it is not necessary to enumerate. 
 Most men charged with homicide are indicted for 
 murder in the first degree. This may be a wise 
 course for the grand jury to pursue in view of the 
 additional evidence which often comes to light dur- 
 ing a trial. But it frequently is discovered before the 
 case goes to the jury that in point of fact the killing 
 was in hot blood and under circumstances which 
 evince no great moral turpitude in the slayer. For 
 example, two drunken men become involved in an 
 altercation and one strikes the other, who loses his 
 equilibrium and falls, hitting his head against a 
 curbstone and fracturing his skull. The striker is 
 indicted and tried for murder. Now he is doubtless 
 guilty of manslaughter, but he is less dangerous to 
 the community than a professional thief who preys 
 upon the public by impersonating a gasman or tele- 
 phone repairer and by thus gaining access to private 
 
WHAT IS CRIME! 9 
 
 dwellings steals the owner's property. One is an 
 accidental, the other an intentional criminal. One is 
 hostile to society as a whole and the other is proba- 
 bly not really hostile to anybody. Yet the less guilty 
 is denominated a murderer, and the other is rarely 
 held guilty of more than petty larceny. A fellow 
 who bumps into you on the street, if he be accom- 
 panied by another, and grabs your cane, is guilty of 
 robbery in the first degree, "highway" robbery, 
 and may get twenty years for it, but the same man 
 may publish a malicious libel about you, and by ac- 
 cusing you of the foulest practices rob you of your 
 good name and be only guilty of a misdemeanor. 
 Yet the reader should not infer that definitions and 
 grades of crime capable of corresponding punish- 
 ments are not proper, desirable, and necessary. Of 
 course they are. The practical use of such statutes 
 is to fix a maximum sentence of punishment. As 
 a rule the minimum is anything the judge sees fit. 
 Hence you may deduce a general principle to the 
 effect that the charge against the prisoner, even 
 assuming his guilt, indicates nothing definite as to 
 his moral turpitude, danger to the community, or 
 general lindesirability. 
 
 But we may honestly go much further. Not only 
 are the names and degrees of the crimes which a 
 defendant may have committed of very little assist- 
 ance in determining his real criminality, but the fact 
 that he has committed them by no means signifies 
 that he is morally any worse than some man who has 
 committed no so-called crime at all. Many criminals, 
 even those guilty of homicide, are as white as snow 
 compared with others who have never transgressed 
 the literal wording of a penal statute. 
 
 "We used to have So and So for our lawyer," 
 
10 THE PRISONER AT THE BAR 
 
 remarked the president of a large street railway 
 corporation. "He was always telling us what we 
 couldn't do. Now we have Blank, and pay him 
 one hundred thousand dollars a year to tell us how 
 we can do the same things. " The thief who can 
 have the advice of able counsel ' ' how to do it ' ' need 
 never go to jail. 
 
 Many of the things most abhorrent to our sense 
 of right do not come within the scope of the criminal 
 law. Omissions, no matter how reprehensible, are 
 usually not regarded as criminal, because in most 
 cases there is no technical legal duty to perform the 
 act omitted. Thus, not to remove your neighbor's 
 baby from the railroad track in front of an on- 
 rushing train, although it would cause you very lit- 
 tle trouble to do so, is no crime, even if the child's 
 life be lost as a result of your neglect. You can let 
 your mother-in-law choke to death without sending 
 for a doctor, or permit a ruffian half your size to 
 kill an old and helpless man, or allow your neigh- 
 bor's house to burn down, he and his family peace- 
 fully sleeping inside it, while you play on the 
 pianola and refuse to ring up the fire department, 
 and never have to suffer for it, in this world. 
 
 Passing from felonies mala in se to misde- 
 meanors generally only mala prohibita almost 
 anything becomes a crime, depending upon the arbi- 
 trary act of the legislature. 
 
 It is a crime in New York State to run a horse 
 race within a mile of where a court is sitting; to 
 advertise as a divorce lawyer; to go fishing or 
 "play" on the first day of the week; to set off fire- 
 works or make a "disbursing noise"* at a military 
 funeral in a city on Sunday; to arrest or attach a 
 
 * New York Penal Code, Section 276. 
 
WHAT IS CEIME! 11 
 
 corpse for payment of debt; to keep a "slot ma- 
 chine"; to do business under any name not actu- 
 ally your own full name without filing a certificate 
 with the county clerk (as, for example, if, being a 
 tailor, you call your shop "The P. D. Q. Tailoring 
 Establishment") ; to ride in a long-distance bicycle 
 race more than twelve hours out of twenty-four; to 
 shoe horses without complying with certain articles 
 of the Labor Law ; to fail to supply seats for female 
 employes in a mercantile establishment; to steal a 
 ride in a freight car, or to board such a car or train 
 while in motion ; to set fire negligently to one 's own 
 woods, by means of which the property of another is 
 endangered; to run a ferry without authority; or, 
 having contracted to run one, to fail to do so; to 
 neglect to post ferry rates (under certain condi- 
 tions) in English; to induce the employe of a rail- 
 road company to leave its service because it re- 
 quires him to wear a uniform; to wear a railroad 
 uniform without authority; to fish with a net in 
 any part of the Hudson River (except where per- 
 mitted by statute) ; to secretly loiter about a build- 
 ing with intent to overhear discourse therein, and 
 to repeat the same to vex others (eavesdropping) ; 
 to sell skimmed milk without a label; to plant oys- 
 ters (if you are a non-resident) inside the State 
 without the consent of the owner of the water; to 
 maintain an insane asylum without a license; to 
 enter an agricultural fair without paying the en- 
 trance fee ; to assemble with two or more other per- 
 sons "disguised by having their faces painted, dis- 
 colored, colored or concealed, ' ' save at a fancy-dress 
 ball for which permission has been duly obtained 
 from the police; or to wear the badge of the "Pa- 
 
12 THE PRISONER AT THE BAR 
 
 trons of Husbandry, ' ' or of certain other orders 
 without authority. These illustrations are selected 
 at random from the New York Penal Code. 
 
 Where every business, profession, and sport is 
 hedged around by such chevaux-de-frise of criminal 
 statutes, he must be an extraordinarily careful as 
 well as an exceptionally well-informed citizen who 
 avoids sooner or later crossing the dead-line. It is 
 to be deprecated that our law-makers can devise no 
 other way of regulating our existences save by 
 threatening us with the shaved head and striped 
 shirto 
 
 The actual effect of such a multitude of statutes 
 making anything and everything crimes, punishable 
 by imprisonment, instead of increasing our respect 
 for law, decreases it unless they are intended to be 
 and actually are enforced. Acts mala in se are lost 
 in the shuffle among the acts mala prohibita, and 
 we have to become students to avoid becoming 
 criminals. 
 
 Year by year the legislature goes calmly on creat- 
 ing all sorts of new crimes, while failing to amplify 
 or give effect to the various statutes governing ex- 
 isting offences which to a far greater degree are a 
 menace to the community. For example, it is not a 
 crime in New York State to procure money by false 
 pretences provided the person defrauded parts with 
 his money for an illegal purpose. 
 
 In the McCord* case, in which the Court of Ap- 
 peals established this extraordinary doctrine, the 
 defendant had falsely pretended to the complainant, 
 a man named Miller, that he was a police officer and 
 held a warrant for his arrest. By these means he 
 
 * 46 New York 470. 
 
WHAT IS CEIME? 13 
 
 had induced Miller to give him a gold watch and a 
 diamond ring as the price of his liberty. The con- 
 viction in this case was reversed on the ground that 
 Miller parted with his property for an unlawful 
 purpose; but there was a very strong dissenting 
 opinion from Mr. Justice Peckham, now a member 
 of the bench of the Supreme Court of the United 
 States. 
 
 In a second case, that of Livingston,* the com- 
 plainant had been defrauded out of five hundred 
 dollars by means of the "green-goods" game; but 
 this conviction was reversed by the Appellate Divi- 
 sion of the Second Department on the authority of 
 the McCord case. The opinion was written by Mr. 
 Justice Cullen, now Chief Judge of the New York 
 Court of Appeals, who says in conclusion : 
 
 "We very much regret being compelled to reverse 
 this conviction. Even if the prosecutor intended to 
 deal in counterfeit money, it is no reason why the 
 appellant should go un whipped of justice. We ven- 
 ture to suggest that it might be well for the legis- 
 lature to alter the rule laid down in McCord vs. 
 People." 
 
 Well might the judges regret being compelled to 
 set a rogue at liberty simply because he had been 
 ingenious enough to invent a fraud which involved 
 the additional turpitude of seducing another into 
 a criminal conspiracy. Livingston was turned loose 
 upon the community, in spite of the fact that he had 
 swindled a man out of five hundred dollars, because 
 he had incidentally led the latter to believe that 
 in return he was to receive counterfeit money or 
 "green goods" which might be put into circulation. 
 
 * 47 App. Div. 283. 
 
14 THE PRISONER AT THE BAR 
 
 Yet, because, some years before, the judges of the 
 Court of Appeals had, in the McCord matter, 
 adopted the rule followed in civil cases, to wit, that 
 as the complaining witness was himself in fault and 
 did not come into court with clean hands he could 
 have no standing before them, the Appellate Divi- 
 sion in the next case felt obliged to follow them and 
 to rule tantamount to saying that two wrongs could 
 make a right and two knaves one honest man. It 
 may seem a trifle unfair to put it in just this way, 
 but when one realizes the iniquity of such a rule as 
 applied to criminal cases, it is hard to speak softly. 
 Thus the broad and general doctrine seemed to be 
 established that so long as a thief could induce his 
 victim to believe that it was to his advantage to enter 
 into a dishonest transaction, he might defraud him to 
 any extent in his power. Immediately there sprang 
 into being hordes of swindlers, who, aided by adroit 
 shyster lawyers, invented all sorts of schemes which 
 involved some sort of dishonesty upon the part of 
 the person to be defrauded. The " wire-tappers,'' 
 of whom " Larry" Summerfield was the Napoleon, 
 the " gold-brick" and "green-goods" men, and the 
 ' l sick engineers ' ' flocked to New York, which, under 
 the unwitting protection of the Court of Appeals, 
 became a veritable Mecca for persons of their ilk. 
 The "wire-tapping" game consisted in inducing 
 the victim to put up money for the purpose of bet- 
 ting upon a "sure thing," knowledge of which the 
 thief pretended to have secured by "tapping" a 
 Western Union wire of advance news of the races. 
 He usually had a "lay out" which included tele- 
 graph instruments connected with a dry battery in 
 an adjoining closet, and would merrily steal the sup- 
 
WHAT IS CRIME! 15 
 
 posed news off an imaginary wire and then send 
 his dupe to play his money upon the "winner" in 
 a pretended pool-room which in reality was nothing 
 but a den of thieves, who instantly absconded with 
 the money. 
 
 In this way one John Felix was defrauded out of 
 fifty thousand dollars on a single occasion.* Now 
 the simplest legislation could instantly remedy this 
 evil and run all the "wire-tappers" and similar 
 swindlers out of business, yet a bill framed and 
 introduced in accordance with the suggestion of the 
 highest court in the State was defeated. Instead 
 the legislature passes scores of entirely innocuous 
 and respectable acts like the following, which be- 
 came a law in 1890 : 
 
 AN ACT FOR THE PREVENTION OF BLINDNESS. 
 
 Section 1. Should any . . . nurse having charge of an 
 infant . . . notice that one or both eyes of such 
 
 * The operations of these swindlers recently became so notorious 
 that the District Attorney of New York County determined to prose- 
 cute the perpetrators of the Felix swindle, in spite of the fact that the 
 offence appeared to come within the language of the Court of Appeals 
 in the McCord and Livingston cases. Accordingly Christopher Tracy, 
 alias Charles Tompkins, alias Topping, etc., etc., was indicted (on the 
 theory of "trick and device") for the "common-law" larceny of 
 Felix s fifty thousand dollars. 
 
 The trial came on before Judge Warren W. Foster in Part III of the 
 General Sessions on February 27, 1906. A special panel quickly 
 supplied a jury, which, after hearing the evidence, returned a verdict 
 of guilty in short order. 
 
 It now remains for the judges of the Court of Appeals to decide 
 whether they will extend the doctrine of the McCord and Livingston 
 cases to a fraud of this character, whether they will limit the doctrine 
 strictly to cases of precisely similar facts, or whether they will frankly 
 refuse to be bound by any such absurd and iniquitous theory and 
 consign the McCord case to the dust-heap of discarded and mistaken 
 doctrines, where it rightfully belongs. Their action will determine 
 whether the perpetrators of the most ingenious, elaborate and successful 
 bunco game in the history of New York County shall be punished for 
 their offence or instead be turned loose to prey at will upon the com- 
 munity at large. (See "The ^ast of the Wire-Tappers " in the American 
 Magazine for June, 1906.) 
 
16 THE PEISONEE AT THE BAR 
 
 infant are inflamed or reddened at any time within two 
 weeks after its birth it shall be the duty of such nurse 
 . . . to report the fact in writing within six hours 
 to the health officer or some legally qualified practi- 
 tioner of medicine . . . 
 
 Section 2. Any failure to comply with the provisions of 
 this act shall be punished by a fine not to exceed one 
 hundred dollars, or imprisonment not to exceed six 
 months, or both. 
 
 The criminal law which had its origin when vio- 
 lence was rife is admirably adapted to the preven- 
 tion, prosecuting and punishment of crude crimes, 
 such as arson, rape, robbery, burglary, mayhem, as- 
 sault, homicide, and " common-law " larceny, theft 
 accompanied by a trespass. In old times everything 
 was against the man charged with crime at least 
 that was the attitude of the court and jury. * ' Aha ! ' ' 
 exclaims the judge as the evidence gos in. "You 
 thought you were stealing only a horse! But you 
 stole a halter as well!" And the spectators are 
 convulsed with merriment. 
 
 We take honest pride in the protection which 
 our law affords to the indicted prisoner. It is the 
 natural expression of our disapproval of a system 
 which at the time of our severance from England 
 ignored the rights of the individual for those of the 
 community. We touched the lips of the defendant 
 and gave him the right to speak in his own behalf. 
 We gave him an unlimited right of appeal on any 
 imaginable technicality. But while we have been 
 making it harder and harder to convict our common 
 criminals, we have to a very great extent failed 
 to recognize the fact that all sorts of new and 
 ingenious crimes have come into existence with 
 which the law in its present state is utterly unable 
 to cope. The evolution of the modern corporation 
 
WHAT IS CRIME? 17 
 
 has made possible larcenies to the punishment of 
 which the law is entirely inadequate. "Acts for 
 the prevention of blindness ' ' are perhaps desirable, 
 but how about a few statutes to prevent the officers 
 of insurance companies from arbitrarily diverting 
 the funds of that vague host commonly alluded to 
 as "widows and orphans"? The careless nurse is 
 a criminal and may be confined in a penitentiary; 
 while perhaps a man who may be guilty of a great 
 iniquity and known to be so drives nonchalantly off 
 in his coach and four. 
 
 What is crime! We may well ask the question, 
 only eventually to be confronted by that illuminat- 
 ing definition with which begins the Penal Code 
 "A crime is an act or omission forbidden by law 
 and punishable upon conviction by ... penal 
 discipline." Let us put on our glasses and find out 
 what these acts or omissions are. When we have 
 done that we may begin to look around for the 
 criminals. But it will be of comparatively little 
 assistance in finding the sinners. 
 
 So-called criminologists delight in measuring the 
 width of the skulls between the eyes, the height of 
 the foreheads, the length of the ears, and the angle 
 of the noses of persons convicted of certain kinds 
 of crimes, and prepare for the edification of the sim- 
 ple-minded public tables demonstrating that the bur- 
 glar has this kind of a head, the pickpocket that sort 
 of an ear, and the swindler such and such a variety 
 of visage. Exhaustive treatises upon crime and 
 criminals lay down general principles supposed to 
 assist in determining the kind of crime for which 
 any particular unfortunate may have a predilec- 
 tion. One variety of criminal looks this way 
 
18 THE PEISONEE AT THE BAR 
 
 and another looks that way. One has blue eyes, 
 the other brown eyes.* Some look up, others look 
 down. My friend, if you examine into the question, 
 you will probably discover that the clerk who sells 
 you your glass of soda water at the corner drug 
 store will qualify for some one of these classes, so 
 will your host at dinner this evening, so, very likely, 
 will the family doctor or the pastor of your church. 
 
 The writer is informed that there has recently 
 been produced an elaborate work on political crim- 
 inals in which an attempt is made to set forth the 
 telltale characteristics of such. It is explained that 
 the tendency to commit such crimes may be inher- 
 ited. You are about as likely to inherit an inclina- 
 tion to commit a political crime as you are to derive 
 from a maiden aunt a tendency to violate a speed 
 ordinance or make a "disbursing" noise. 
 
 Let some one codify all the sins and meannesses 
 of mankind, let the legislatures make them crimes 
 and affix appropriate penalties, then those of us 
 who still remain outside the bars may with more 
 propriety indulge ourselves in reflections at the ex- 
 pense of those who are not. 
 
 *The following appeared in the New York Globe for April 25, 1905: 
 " Criminal eyes. It is well known," says Dr. Beddoe, F.R.S., " that 
 brown eyes and dark hair are particularly common among the crimi- 
 nal classes. An American observer calls the brown the criminal eye, 
 etc., etc." 
 
CHAPTEE II 
 WHO ARE THE REAL CRIMINALS? 
 
 SOME reader of the preceding chapter may per- 
 haps remark, ' ' This is all very well so far as it goes. 
 It doubtless is entirely true from a purely technical 
 point of view. But that is only one side of the mat- 
 ter. How about the real criminals ? ' ' This is neither 
 an unexpected nor an uninvited criticism. Who are 
 the "real" criminals? Charles Dudley Warner 
 says: "Speaking technically, we put in that [the 
 criminal] class those whose sole occupation is crime, 
 who live upon it as a profession and who have no 
 other permanent industry. They prey upon society. 
 They are by their acts at war upon it and are out- 
 laws." Now the class of professional criminals to 
 which Mr. Warner refers as contrasted with the 
 great mass of criminal defendants as a whole is, in 
 point of fact, relatively so small, and so easily 
 recognized and handled, that it plays but an in- 
 conspicuous part in the administration of criminal 
 justice. 
 
 The criminals who conform accurately to child- 
 hood's tradition are comparatively few in number. 
 The masked highwayman, the safe-cracker and even 
 the armed house burglar have, with a few exceptions, 
 long since withdrawn from the actual pursuit of 
 their romantic professions and exist practically only 
 in the eagerly devoured pages of Sherlock Holmes 
 and the memoirs of "great detectives." New and 
 
 19 
 
20 
 
 THE PRISONER AT THE BAR 
 
 almost more picturesque figures have taken their 
 places, the polite and elegant swindler, the out-at- 
 the-elbows but confidence-inspiring promoter of as- 
 setless corporations, the dealer in worthless securi- 
 ties, and the forger who drives in his own carriage 
 to the bank he intends to defraud. In some cases 
 the individuals are the same, the safe-cracker merely 
 having doffed his mask in favor of the silk hat of 
 Nassau Street. Of yore he stole valuable securities 
 which he was compelled to dispose of at a tremen- 
 dous discount ; now he sells you worthless stocks and 
 bonds at a slight premium. Mr. J. Holt Schorling, 
 writing in The Contemporary Review for June, 1902, 
 points out that while all crimes other than fraud 
 decreased materially in England from 1885 to 1899, 
 the crime of fraud itself materially increased during 
 the same period.* 
 
 The subject is a tempting one, but it is not essen- 
 tial to our thesis. The devil is not dead; he has 
 merely changed his clothes. Criminal activity has 
 not subsided ; it has instead sought new ways to meet 
 modern conditions, and so favorable are these that 
 
 * Including under the general term "fraud," obtaining money by 
 false pretences, thefts by solicitors, bankers, agents, directors, trus- 
 tees, etc. ("generally recorded under the euphony 'mis-appropria- 
 tion'"), falsifying accounts, etc., Mr. Schorling found that taking the 
 number of these two divisions of crime between 1885-1889 as 100% 
 there had been the following relative decrease and increase between 
 them: 
 
 All Crimes Except Fraud 
 1885-1889 100 % 
 
 1890-1894 
 1895-1899 
 
 96.2% 
 90.4% 
 
 Frauds 
 
 1885-1889 i 
 1890-18941 
 1895-1899 
 
 100 % 
 110.1% 
 138.3% 
 
 A similar table constructed for the United States during the last fif- 
 teen years would be instructive but perhaps unduly depressing. Recent 
 financial and other disclosures would probably send up the mercury 
 of the "fraud" thermometer until it burst. 
 
WHO ARE THE REAL CRIMINALS! 21 
 
 while polite crime may be said still to be in its 
 infancy, it is nevertheless thriving lustily. 
 
 While the degenerate criminal class is the subject 
 of much elaborate and minute analysis by our con- 
 tinental neighbors, its extent is constantly exagger- 
 ated and its relation to the other criminal classes not 
 fully appreciated. To read some supposedly scien- 
 tific works one would imagine that every court of 
 criminal justice was or should be nothing but a sort 
 of clinic. To these learned authors, civilization, it is 
 true, owes a debt for their demonstration that some 
 crime is due to insanity and should be prevented, 
 and, where possible, cured in much the same manner. 
 But they have created an impression that practically 
 all crime is the result of abnormality. 
 
 Every great truth brings in its train a few false- 
 hoods, every great reform a few abuses. The first 
 penological movement was in the direction of prison 
 reform. While perhaps the psychological problem 
 was not entirely overlooked, it was completely subor- 
 dinated to the physical. It is a noble thing that the 
 convict should have a warm cell in winter and a cool 
 one in summer, with electric light and running water, 
 wholesome and nutritious food, books, bathrooms, 
 hospitals, chapels, concerts, ball games and chap- 
 lains. "But it must be noted that along with this 
 movement has grown up a sickly sentimentality 
 about criminals which has gone altogether too far, 
 and which, under the guise of humanity and philan- 
 thropy, confounds all moral distinctions." To a 
 large number of well-meaning people every convict 
 is a person to whom the State has done an injury. 
 
 Then came the study of degeneracy, with the cra- 
 nium of every criminal as a specimen for analysis. 
 
22 THE PRISONER AT THE BAR 
 
 In 1881 or thereabouts Professor Benedickt pub- 
 lished his conclusion that "the brains of criminals 
 exhibit a deviation from the anthropological variety 
 of their species, at least among the cultured races." 
 It was a commendable thing to point out the rela- 
 tion of insanity to crime. It is an undeniable truth j 
 that there are insane people who are predisposed 
 to crime just as there are those who are predisposed 
 to dance. 
 
 The vicious criminal class contains many who are 
 actually or incipiently insane, and it numbers a great 
 many more who are physically and mentally normal, 
 who yet by reason of their education and environ- 
 ment are not much to be blamed for doing wrong. 
 But it is far from true that a majority of the "real" 
 criminals are mentally defective. Crime and insan- 
 ity are no more closely related than sin and insanity. 
 Certain criminals are also perverts. But they would 
 be criminals even if they were not perverts. The 
 fact that a man who takes drugs is also a criminal 
 does not prove that he is a criminal because he takes 
 drugs. We know many drug-takers who are other- 
 wise highly respectable. Go to the General Sessions 
 and watch the various defendants who are brought 
 into court and you will discover little more degen- 
 eracy or abnormality than you would find on the cor- 
 ner of Twenty-third Street and Fifth Avenue among 
 the same number of unaccused citizens. 
 
 The point which the writer desires to make is that, 
 leaving out the accidental and experimental crimi- 
 nals, there is a much closer relation between all law- 
 breakers than the public and our legislators seem 
 to suppose. The man who adulterates his milk to 
 make a little extra money is in the same class with 
 
WHO ABE THE REAL CRIMINALS! 23 
 
 the financial swindler. One waters his milk, the 
 other his stock. The same underhanded desire to ; 
 better one's self at the expense of one's neighbor is 
 the moving cause in each case. The forger belongs 
 to the class whose heads the criminologists delight to 
 measure, but they would not measure your milk- 
 man 's. The man who steals your name is a felon and 
 a subject of scientific investigation and discussion; 
 the man who forges a trade-mark commits only a 
 misdemeanor and excites no psychological interest. 
 But they are criminals of exactly the same type. 
 
 The ' t crime-is-a-disease ' ' theory has been worked 
 entirely too hard. It is a penologic generality which 
 does not need any truckling to popular sentimen- 
 tality to demonstrate its truth. But there are as 
 many sorts of this disease as there are kinds of 
 crime, and some varieties would be better described 
 by other and less euphemistic names. Crime is no 
 more a disease than sin, and the sinners deserve a 
 good share of the sympathy that is at present wasted 
 on the criminals. The poor fellow who has merely 
 done wrong gets but scant courtesy, but once jerk 
 him behind the bars and the women send him flowers. 
 If crime is a disease, sin is also a disease, and we 
 have all got a case of it. It is strange that there is 
 not more ' i straight talk" on this subject. Every one 
 of us has criminal propensities, that is to say, in 
 every one of us lurks the elemental and unlawful pas- 
 sions of sex and of acquirement. It is but a play on 
 words to say that the man who yields to his inclina- 
 tions to the extent of transgressing the criminal 
 statutes is "diseased." Up to a certain point it is 
 his own business, beyond it becomes ours, and he 
 transgresses at his peril. 
 
24 THE PRISONER AT THE BAR 
 
 The ordinary criminal usually is such because he 
 " wants the money "; he either does not like to work 
 or wants more money than he can earn honestly. He 
 has no "irresistible impulse" to steal, he steals 
 because he thinks he can "get away with it." 
 
 The so-called professional thief is usually one who 
 has succeeded in so doing or who, having been con- 
 victed of larceny, finds he cannot live agreeably other 
 than by thieving; but the man is no less a profes- 
 sional thief who systematically puts money in his 
 pocket by dishonest and illegal methods in business. 
 The fact that it is not, in the ordinary sense, his 
 "sole occupation, " does not affect the question at all. 
 Indeed, it would be difficult for one whose business 
 life was permeated by graft to refute the general 
 allegation that his "sole occupation" was criminal. 
 Granting this, your dishonest business man fulfils 
 every requirement of Mr. Warner's definition, for 
 he "preys upon society and is [secretly] at war 
 upon it." He may not be an "outlaw," but he 
 should be one under any enlightened code of crim- 
 inal laws. 
 
 There is no practical distinction between a man 
 who gets all of a poor living dishonestly and one 
 who gets part of an exceedingly good living dishon- 
 estly. The thieving of the latter may be many times 
 more profitable than that of the former. So long as 
 both keep at it systematically there is little to choose 
 between the thief who earns his livelihood by picking 
 pockets and the grocer or the financier who swindles 
 those who rely upon his representations. The man 
 who steals a trade-mark, counterfeits a label, or adul- 
 terates food or drugs, who makes a fraudulent as- 
 signment of his property, who as a director of a cor- 
 
WHO ABE THE EEAL CRIMINALS? 25 
 
 poration declares an unearned dividend for the pur- 
 pose of selling the stock of himself and his associates 
 at an inflated value, who publishes false statements 
 and reports, makes illegal loans, or who is guilty of 
 any of the thousand and one dishonest practices 
 which are being uncovered every day in the manage- 
 ment of life insurance, banking, trust, and railroad 
 companies, is precisely as "real" a criminal as one 
 who lurks in an alley and steals from a passing 
 wagon. Each is guilty of a deliberate violation of 
 law implying conscious wrong, and each commits it 
 for essentially the same reason. 
 
 Yet at the present time the law itself recognizes a 
 fictitious distinction between these crimes and those 
 of a more elementary sort. The adulteration of 
 foods, the theft of trade-marks, stock- jobbing, cor- 
 poration frauds, and fraudulent assignments are as 
 a rule only misdemeanors. The trouble is that we 
 have not yet adjusted ourselves to the idea that the 
 criminal who wears a clean collar is as dangerous 
 as one who does not. Of course, in point of fact 
 he is a great deal worse, for he has not the excuse of 
 having a gnawing at his vitals. 
 
 If a rascally merchant makes a fraudulent convey- 
 ance of his property and then "fails," although he 
 may have secreted goods worth fifty thousand dol- 
 lars, the punishment of himself and his confederate 
 is limited to a year in the penitentiary and a thou- 
 sand dollars fine, while if a bank cashier should steal 
 an equivalent amount and turn it over to an ac- 
 complice for safe keeping he could receive ten years 
 in State's prison. Even in this last case the re- 
 ceiver's punishment could not exceed five years. 
 Thus Eobert A. Ammon, who was the sole person 
 
26 THE PRISONER AT THE BAR 
 
 to profit by the notorious "Franklyn Syndicate," 
 when convicted of receiving the proceeds of the 
 fraud, could be sentenced to only five years in Sing 
 Sing, while his dupe, Miller, who sat at the desk and 
 received the money, although he acted throughout by 
 the other's advice and counsel, in fact did receive 
 a sentence of ten years for practically the same 
 offence. However inequitable this may seem, what 
 inducements are offered in the field of fraudulent 
 commercial activity when a similar kind of theft is 
 punishable by only a year in the penitentiary? 
 
 One can hardly blame such picturesque swindlers 
 as ' i Larry " Summerfield, who saw gigantic financial 
 and commercial frauds being perpetrated on every 
 side, while the thieves who had enriched themselves 
 at the expense of a gullible public went scot-free, for 
 wanting to participate in the feast. Almost every 
 day sees some new corporation brought into being, 
 the only object of which is to enable its organizers 
 to foist its worthless stock among poorly paid clerks, 
 stenographers, trained nurses, elevator men and 
 hard-working mechanics. The stock is disposed of 
 and the "corporation" (usually a copper or gold 
 
 \ mining enterprise) is never heard of again. Appar- 
 ently if you do the thing correctly there can be no 
 
 I "come back." Accordingly Summerfield and his 
 gang of "sick engineers" hawked through the town 
 nearly eighty thousand dollars ' worth of the securi- 
 ties of the Horse Shoe Copper Mining Company, 
 which owned a hole in the ground in Arizona. It was 
 all done under legal advice and was undoubtedly be- 
 lieved to be within the letter of the law. But there 
 were a few unnecessary falsehoods, a few slips in 
 the schedule, a few complainants who would not be 
 
WHO AEE THE EEAL CRIMINALS? 27 
 
 placated, and " Larry" found himself in the toils. 
 He was convicted of grand larceny in the first degree, 
 secured a certificate of reasonable doubt and gave 
 bail in a very large amount. Within a short time 
 he was re-arrested for working the same game 
 upon an unsuspecting Southerner. This time his 
 bail was increased to thirty thousand dollars. It was 
 not long after the investigations into the Ship- 
 Building Trust scandal and New York had been 
 edified by seeing the inside workings of some very 
 high finance. After his temporary release Summer- 
 field strolled over to Pontin's restaurant for lunch, 
 where he sat down at a table adjoining one occupied 
 by the assistant district attorney who had prosecuted 
 and convicted him. 
 
 "How are you, Mr. !" inquired "Larry" 
 
 with his usual urbanity. "How are things 1" 
 
 "So so," replied the prosecutor, amused at the 
 nonchalance of a man who might reasonably expect 
 to be in Sing Sing within three months. "How's 
 business!" 
 
 "Oh, pretty good," returned Larry. "You know 
 there is a sucker born every minute." 
 
 "I should think after your conviction you would 
 have had sense enough to keep out of swindling for 
 a while," continued the assistant. 
 
 "Swindling!" exclaimed Summerfield. "Swin- 
 dling nothin' ! My lawyer says I didn't commit any 
 crime. Didn't the Supreme Court say there was a 
 reasonable doubt in my case ? Well, I 'm just giving 
 myself the benefit of it, that's all. I'm entitled to 
 it. How about those Ship-Building fellers?" 
 
 The "Ship-Building fellers" have never been con- 
 victed of any wrong-doing. Perhaps they committed 
 
28 THE PRISONER AT THE BAR 
 
 no crime. Summerfield has three years more to 
 serve in Sing Sing. 
 
 In this connection the reader will recall the atti- 
 tude of the inhabitants of Lilliput as chronicled by 
 Gulliver. "They look upon fraud as a greater 
 crime than theft, and therefore seldom fail to pun- 
 ish it with death ; for they allege that care and vigil- 
 ance, with a very common understanding, may pre- 
 serve a man's goods from theft, but honesty has no 
 defence against superior cunning; . . . the hon- 
 est dealer is always undone, and the knave gets the 
 advantage. I remember when I was once interced- 
 ing with the king for a criminal who had wronged 
 his master for a great sum of money, which he had 
 received by order, and ran away with ; and happen- 
 ing to tell his Majesty by way of extenuation that 
 it was only a breach of trust, the Emperor thought 
 it monstrous in me to offer as a defence the greatest 
 aggravation of the crime; and truly I had little to 
 say in return, further than the common answer, that 
 different nations had different customs; for, I con- 
 fess, I was heartily ashamed. ' ' 
 
 Any definition of the criminal class which limits 
 it to those who "make their living" by crime is in- 
 adequate and begs the question entirely. There is 
 no choice between the grafter and the "profes- 
 sional" thief, the boodler and the bank robber. 
 They are all "real" criminals. One is as "dis- 
 eased" and "degenerate" as the other. Every 
 reversed conviction of a "grafter" lowers a peg the 
 popular respect for law. The clerk in the corner 
 grocery in Dakota feels the wireless influence of the 
 boodler in St. Louis, and the "successful" failure 
 
WHO ABE THE REAL CRIMINALS? 29 
 
 in New York sets some fellow thinking in San 
 Francisco. 
 
 The so-called degenerate and professional crim- 
 inals constitute a very small fraction of the law- 
 breakers and it is not from either class that we have 
 most to fear. Our real danger lies in those classes 
 of the population who have no regard for law, if not 
 an actual contempt for it, and who may become 
 criminals, or at least criminal, whenever any satis- 
 factory reason, coupled with adequate opportunity, 
 presents itself. From this class spring the experi- 
 mental criminals of every sort, who in time become 
 "professionals," and from it the embezzler, the 
 stock jobber, the forger and business thief. From 
 it as well are largely recruited those who commit 
 the crimes of violence which, however undeservedly, 
 give the United States such an unenviable place upon 
 the tables of the statisticians. From it spring the 
 "fellow who does not care" or who "will take a 
 chance," the dynamiter, the man who is willing to 
 "turn a trick" at a price, and all those who need the 
 strong arm of the law to restrain them from yielding 
 to their entirely normal evil inclinations. 
 
 The man who deliberately violates the law by 
 doing that which he knows to be wrong is a real 
 criminal, whether he be a house-breaker, an adulter- 
 ator of drugs, the receiver of a fraudulent assign- 
 ment or a trade-mark thief, an insurance "grafter," 
 a bribe giver, or a butcher who charges the cook's 
 commission against next Sunday's delivery. The 
 writer fails to see the slightest valid distinction be- 
 tween them and believes it should be made possible 
 to punish them all with equal severity. There is 
 
30 THE PEISONEE AT THE BAR 
 
 no reason why one should be a felon, another guilty 
 of only a misdemeanor, while still another is guilty 
 of nothing at all. The cause of crime is our general 
 and widespread lack of respect for law, and this in 
 turn is largely due to the unpunished, and often un- 
 punishable, dishonesty which seems to permeate 
 many phases of commercial activity. Diogenes 's 
 job is still vacant. 
 
CHAPTER III 
 
 THE ARREST 
 
 To most of us modest folk a police officer looks 
 not an inch less than eight feet in height, and 
 his blue coat and brass buttons typify the majesty 
 and inflexibility of the law. At his most trivial ges- 
 ture the coachmen rein in their curvetting steeds 
 upon the crowded thoroughfare, and at his lightest 
 word the gaping pedestrian obediently "moves on." 
 When necessity compels we address him deprecat- 
 ingly and, as it were, with hat in hand, and if he 
 deign to listen to us, and still more if he condescend 
 to reply, we thrill with pride. We experience a cer- 
 tain surprise that he has seen fit to give heed to us 
 at all and has not, instead, ordered us roughly about 
 our business with threatening mien and uplifted 
 club. That he has rendered us assistance fills us 
 with humble gratitude. One feels like Dr. Holmes, 
 
 " How kind it was of him 
 Tp mind a slender man like me! 
 He of the mighty limb! " 
 
 It rarely occurs to us that these stomachic Titans 
 are in fact our servants and that they have no au- 
 thority save that which they have received from our- 
 selves, that, horrible thought! they wear our liv- 
 ery as assuredly as does Jeames or Wilkins. Why 
 do these big men patrol the streets and order us 
 
 31 
 
32 THE PEISONEE AT THE BAE 
 
 about ? Simply because in these busy days the ordi- 
 nary citizen has neither time nor inclination to at- 
 tend to his own criminal business, and because it is 
 better upon the whole for the State to attend to it 
 for him. 
 
 Eight hundred years ago the punishment of crime 
 was a matter of private vengeance gradually evolv- 
 ing itself into the criminal procedure of modern 
 English law. The injured citizen took his appeal 
 "to the county " and fought it out with his wrong- 
 doer either personally or by proxy. The idea was, 
 originally, that the man who had been injured ought 
 to have his revenge, and criminal justice in Eng- 
 land even to-day savors for this reason somewhat 
 of private litigation. Of course, nowadays, crime is 
 punished on the theory that the public has been 
 injured; and that not only does the safety of the 
 community require that a repetition of the same 
 crime by the same offender should be prevented, 
 but also that an example should be made of the 
 evil-doer as a lesson to others. Be this as it may, 
 vengeance and not public spirit is still the moving 
 cause of ninety per cent of all prosecutions for 
 crime. 
 
 Just as the right to apprehend a wrong-doer was 
 an inherent right at the common law of every free- 
 born English subject, it is our inherent right to-day, 
 modified or extended by the statute law of the sev- 
 eral States, and, save where a court of justice has 
 issued its warrant and commands its agents to ap- 
 prehend the party named therein, one person has 
 substantially the same right as another to arrest a 
 criminal, even if that other be an officer of the law. 
 
 The policeman has no greater rights in the mat- 
 
THE AEEEST 33 
 
 ter of preventing crime or arresting evil-doers than 
 the citizen. He is merely hired by the citizen to do 
 it for him. The only difference is that it is the 
 duty of the officer by virtue of his position to make 
 arrests, just as it is that of the fireman to extinguish 
 fires. Yet it is undoubtedly the fact that nine-tenths 
 of us really believe that the policeman's blue coat, 
 helmet, and club invest him with some sacred and 
 peculiar authority of his own. If every citizen 
 recognized the fallacy of this idea, and if some 
 elementary instruction in such matters were given 
 in the public schools, even at the sacrifice of clay 
 modelling and decorative art, it might add much to 
 the spirit of independence and to the practical effi- 
 ciency of the coming generation. We are slaves to 
 the magic of the word "police." We imagine that 
 without a representative of the law we can do 
 nothing. 
 
 Of course we know in general that we may defend 
 the persons and protect the property of ourselves 
 and others by the exercise of reasonable force. 
 Beyond this rather vague principle we are not pre- 
 pared to go. Where the situation offers no par- 
 ticular inconvenience we are ready to do our part, 
 but if anything disagreeable is going on we prefer 
 to be excused. We are out of the habit of doing the 
 simplest police duty. . Most of us would have enough 
 public spirit to summon an officer if a felony were 
 being committed before our very eyes, provided we 
 could do so without making ourselves ridiculous, 
 but few of us, the writer fancies, would join the hue 
 and cry after a pickpocket unless ours happened to 
 be the pocket he had picked. We leave that to those 
 whose natural bellicosity is greater and who do not 
 
34 THE PRISONER AT THE BAR 
 
 object to being undignified. It is nevertheless true, 
 however unpleasant the thought may be, that at any 
 moment we may find ourselves in the centre of a 
 whirlpool of events where individual action on our 
 part will be necessary unless we are willing to allow 
 some vicious and cruel violation of the law to go 
 unpunished. Such exigencies may run all the way 
 from the malicious beating of an overloaded horse 
 to the garrotting of a feeble old man. Our efficiency 
 on such occasions might be represented by a fraction, 
 of which our physical capacity would be the numer- 
 ator and our disinclination the denominator, but 
 obviously, to make the formula complete, this would 
 have to be multiplied by our knowledge of our 
 rights. 
 
 Suppose for example that Mr. Ordinary Citizen on 
 a nocturnal ramble should, at about three o 'clock in 
 the morning, observe some ill-favored person with a 
 heavy bag in his hand, furtively making his exit from 
 the area door of a stylish mansion in the residential 
 district. What should he do! What would you do? 
 Without discussing this embarrassing question, does 
 the reader know what he would have a right to do? 
 The chances are largely in favor of his being obliged 
 to answer this question in the negative. Indeed, our 
 indifference to the unexpected is so great that we 
 are generally mute and helpless in the face of any 
 unusual situation where anybody's rights are con- 
 cerned. We hesitate to act without the advice of 
 counsel, and in the meantime the burglar has made 
 his escape! 
 
 In the State of New York and generally in this 
 country, any person, whether he be an officer of the 
 law or not, may make an arrest, without a warrant, 
 
THE AEEEST 35 
 
 for any crime, of any grade, actually committed in 
 his presence. It makes no difference whether the 
 offence be that of spitting in a street-car or murder 
 in the first degree, the offender may be haled before 
 a magistrate by any one who has seen him com- 
 mit it. 
 
 But the statutes governing the right of arrest, 
 while extensive enough to safeguard the public in- 
 terest, are carefully limited to prevent arbitrary 
 interference with the liberty of innocent persons. 
 The law, therefore, makes it a positive condition 
 that before any one, whether he be citizen or officer, 
 may arrest another for a felony not committed in 
 his presence the felony must in fact have been com- 
 mitted. Thus the right to apprehend a suspected 
 wrong-doer is invoked at the peril of him who seeks 
 to exercise it. If no felony has been committed the 
 arrest is illegal. 
 
 In one respect only does the law recognize any 
 difference between the private citizen and the public 
 officer paid to keep the peace, if a felony has in 
 fact been committed, the officer may arrest any one 
 who he has reasonable ground to believe is the 
 guilty party, while a citizen may arrest only the 
 person who is in fact guilty. Thus the citizen must 
 guarantee not only the commission of the crime but 
 the identity of the criminal, while the officer, so long 
 as the law has actually been violated, may take a 
 chance as to the identity of the perpetrator of the 
 offence. 
 
 Now, the police invariably interpret the law to 
 mean that they may arrest anybody who they have 
 reasonable cause for believing has committed a 
 felony, but of course the statute gives them no such 
 
36 THE PEISONEE AT THE BAR 
 
 power.* The felony must have been committed; 
 the "reasonable cause " refers only to the identity 
 of the criminal. This, however, does not worry the 
 average policeman at all. 
 
 He sees Mr. 0. C.'s burglar coming out of the area 
 with his bag, promptly pounces upon him and hales 
 him off to the precinct house in spite of the burglar's 
 protests and expletives. If the burglar prove re- 
 fractory he is clubbed into submission, or if he at- 
 tempt to run he may be shot in the leg. Now sup- 
 pose that on reaching the police station the burglar 
 turns out not to be a burglar at all but the family 
 doctor? Or a late caller upon the cook! Or a gen- 
 tleman who has mistaken some one's else area for 
 his own! Of course no felony has been committed. 
 The policeman had no right to make the arrest. 
 Assuming that the house had been burglarized, the 
 officer beyond a doubt had reasonable cause for a 
 hastily formed opinion that the man in the area 
 was the guilty party and had a right to make the 
 arrest, but in law he makes this assumption at his 
 peril. If he is wrong the victim has a good cause 
 of action against the policeman for false arrest. 
 But the execution following his civil judgment 
 against the latter will probably be returned nulla 
 
 *An attempt has apparently been made by the legislature of 
 New York State to enlarge the powers of the police during the night- 
 time by giving them authority to arrest "on reasonable suspicion of 
 felony. 5 ' The statute (Penal Code) reads as follows: "Section 179. 
 May arrest at night, on reasonable suspicion of felony. 
 
 "He may also, at night, without a warrant, arrest any person whom 
 he has reasonable cause for believing to have committed a felony, and 
 is justified in making the arrest, though it afterwards appear that 
 a felony had been committed, but that the person arrested did not 
 commit it." 
 
 This statute clearly stultifies itself. The writer is not aware of 
 any definite judicial interpretation of its meaning up to the present 
 time. 
 
THE AEEEST 37 
 
 bona by the sheriff, and he will have to pay for his 
 own medical treatment and legal advice. 
 
 Now let us see in what position is 0. C., who is not 
 a peace officer, when he discovers the suspicious fig- 
 ure in the area. He may lawfully make an arrest, 
 although he has not seen the crime committed, ' ' when 
 the person arrested has committed a felony." In 
 other words, if it turns out that no crime has oc- 
 curred, or that if one has in fact been perpetrated 
 he has got hold of the wrong man, he will have to 
 patch up the matter and very likely his own head as 
 best he can. 
 
 We will assume O. C. to be a public-spirited citi- 
 zen and that he forthwith lays hands on his burglar 
 and reduces him to subjection. Having done so he 
 rings the front door bell and rouses the owner of 
 the house, who in turn discovers that the mansion 
 has been burglarized. They then investigate the 
 prisoner and find that he is a commercial traveller 
 in an advanced state of intoxication who has ram- 
 bled into that particular area by accident. O. C. 
 has been guilty of an illegal arrest. Even should 
 it prove that the intruder was in fact a burglar, 
 but not the right burglar, the arrest would still have 
 been without authority.* 
 
 *In People y. Hochstim (36 Misc., 562,571) it is said that "in matter 
 of arresting without a warrant, whether for a misdemeanor or for a 
 felony, a private citizen and a peace officer have the very same right 
 and power under the law, namely: (1) Either may without a warrant 
 arrest a person who commits any crime, whether misdemeanor or 
 felony, in his view, and (2) either may without a warrant arrest any 
 person who has in fact committed a felony although not in his view, 
 but (3) neither may arrest any one without a warrant in the case of a 
 felony unless the alleged felony has in fact been committed. If no 
 felony has in fact been committed, then the arrest without a warrant 
 is in every case unlawful and may be lawfully resisted. The law does 
 not justify either an officer or a private citizen in arresting for a felony 
 without a warrant on mere suspicion or information that a felony has 
 been committed. If either act without a warrant on groundless sus- 
 
38 THE PRISONER AT THE BAR 
 
 To carry the illustration a little further let us 
 assume that in each case a burglary has been com- 
 mitted and that the prisoner is the guilty party. 
 What can the officer do, and what can 0. C. do, if 
 his quarry attempt to escape? 
 
 Roughly speaking, a person lawfully engaged in 
 arresting another for a felony or in preventing the 
 escape of such an one lawfully arrested, may use all 
 the force necessary for the purpose, even to taking 
 the life of the prisoner.* 
 
 It is by virtue of this salutary provision of law 
 that the unscrupulous policeman gets " square ' 
 with his enemies of the under world. When the 
 officer clubs the " drunk " on the corner, it is on the 
 pretext that the latter is " resisting " arrest. It is 
 practically an impossibility to prove that it was not 
 justifiable unless there be eye-witnesses to what has 
 occurred, and an officer may safely be guilty of a 
 good deal of physical brutality so long as he brings 
 his victim to the station house under actual arrest 
 for some alleged offence. It is only when the victim 
 
 picion or information on the question of whether a felony has in fact 
 been committed, he acts at his peril. Nothing but the absolute act 
 that the felony has actually been committed will suffice to justify and 
 protect the person making such an arrest, whether an officer or a 
 private citizen. But if a felony has in fact been committed, the law 
 does justify an officer, but not a private citizen, in arresting a person 
 therefor without a warrant 'on reasonable cause for believing' (to 
 quote the words of the statute) that such person is the one who com- 
 mitted it. In a word, an officer, the same as a private citizen, is not 
 permitted to act on mere grounds of belief on the question of whether 
 a felony has in fact been committed; nothing but the absolute fact that 
 it has been committed will suffice; but an officer is permitted to act 
 on reasonable cause for belief on the question of whether the person 
 arrested is the person who committed it. All of this is plain statute 
 law (Code of Criminal Procedure, sees. 177, 183)." 
 
 * A distinction exists in this respect between misdemeanors and fel- 
 onies. In the case of the former it is not lawful to kill a prisoner even 
 if his escape cannot otherwise be prevented, and although there be a 
 warrant for his apprehension. In the case of a felony the offender's 
 life may be taken provided there is absolute necessity for so doing to 
 prevent his escape. Conraddy v. People, 5 Park 234. 
 
THE ARREST 39 
 
 of such an assault is not arrested that the officer finds 
 himself in an awkward situation. He must then 
 explain why he clubbed the citizen unless the latter 
 had committed some offence and was trying to resist 
 arrest, and, if so, why he did not then conduct him 
 to the station house. 
 
 There is a story told of an old veteran upon 
 the force who was heard to remark to a com- 
 panion as they left court together after the acquittal 
 of an ex-convict on the charge of assaulting the 
 officer : 
 
 "Begorra, Tom, 'twon't be long before I'll be 
 afther arrestin' the devil agin, and whin I do, pray 
 God that he resists arrest!" 
 
 It is said that in some of the Southwestern States 
 the personal right to make an arrest at times re- 
 sulted, practically, in the privilege of shooting cattle 
 thieves upon sight. The foreman would send out 
 Jack to "look for" cattle thieves. Jack would lie 
 all day in a gully and when Sonora Slim hove in 
 sight, perhaps on an entirely lawful errand, would 
 "let him have it." Then he would ride leisurely 
 over, abstract Sonora 's "gun," discharge it a 
 couple of times and throw it carelessly upon the 
 ground. Half an hour later he would appear at the 
 ranch. 
 
 "Sorry, Bill," he would report, "but I caught 
 Sonora Slim driving off three of our two-year-olds. 
 I headed him off and says, 
 
 " 'Look here, Sonora, youVe got some of our 
 heifers there.' 
 
 " 'Go to r says Sonora and pulls his gun. 
 
 " 'That's all right,' says I. 'You're under 
 arrest ! ' 
 
40 THE PRISONER AT THE BAR 
 
 "We swapped a few shots and I had to drop him 
 to prevent his escape." 
 
 "All right, Jack," the foreman would reply, 
 "we'll ride over and tell the sheriff about it." 
 
 "See here, sheriff," he would announce on their 
 arrival, "Jack here arrested Sonora Slim stealin' 
 our cattle, and the feller resisted arrest and Jack 
 had to shoot him. Jack's here if you want him. ' ' 
 
 "Yes, sheriff, here I am," Jack would say. 
 
 The sheriff would rub his forehead and reply: 
 
 "No, I don't want you. Sorry you had to kill 
 him, but I'll have to have some evidence that what 
 you say ain't true." 
 
 It may be well to suggest that, while a thorough 
 knowledge of our rights is always desirable, it by 
 no means follows that it is wise to invoke them 
 upon every occasion when we observe a technical 
 violation of the law. Regrettable as it may seem, 
 no police force, however large, could arrest all the 
 violators of every law, and no system of courts 
 could dispose of the multitude of offenders. We 
 do the best we can and make an example of a few, 
 hoping thus to persuade the others to be good. If 
 every citizen undertook to exercise his right of 
 arresting every individual whom he saw committing 
 petty crime, the business of the community would 
 come to a standstill and the magistrates' courts 
 would be hopelessly congested with great hordes of 
 prisoners, irate witnesses, and volunteer policemen. 
 The prisons would overflow and the magistrates 
 would resign. Moreover, the enforcement of such 
 a disused and unexpected technical right would lead 
 to immense disorder and violence. The ignorant 
 infractor of an obscure section of the Penal Code 
 
THE ARREST 41 
 
 would rise in his wrath and in resisting arrest 
 become guilty of assault in the second degree or of 
 manslaughter. It is probably very much better 
 that trivial offences should go unpunished than that 
 public conveyances and thoroughfares should be 
 made the scenes of violent altercations and obstruc- 
 tive volunteer police work. Having hired a certain 
 class of persons to attend to this business for us, it 
 is better to leave it to them when possible. We 
 need the best police force that we can get, and this 
 naturally depends upon the efficiency of the higher 
 police officials who hold their offices by appointment. 
 An active interest on the part of our citizens in the 
 betterment of municipal conditions through the puri- 
 fication of politics is probably more to be desired 
 than any general attempt to participate in the ordi- 
 nary duties of "the man on the beat." 
 
CHAPTER IV 
 THE POLICE COURT 
 
 THE procedure by which a law-breaker is convicted 
 for his offence begins with his arrest and ends with 
 the formal pronouncement of sentence against him 
 after he has been declared guilty. Prior to his 
 arrest he has been merely a criminal ; after sentence 
 (or, to be strictly technical, after the verdict against 
 him) he becomes a convict; during the proceedings 
 he is a "prisoner at the bar." 
 
 Whatever has been the manner of his arrest he 
 is in most instances taken at once before the nearest 
 magistrate in order that the latter may inquire into 
 the charge against him and determine whether upon 
 the evidence there is reasonable cause to believe him 
 guilty.* If the arrest takes place after four o'clock 
 in the afternoon, or no magistrate happens to be 
 holding court, the prisoner is locked up until the 
 following morning. If he be charged with a felony 
 he must remain in confinement until the magistrate 
 admits him to bail, for no police official can fix or 
 receive bail in such cases : if, however, he has been 
 arrested for the commission of a misdemeanor only, 
 the sergeant on duty at "the desk" must fix the 
 bail and give him a reasonable opportunity to pro- 
 cure it. 
 
 * Of course if he has been indicted by the grand jury in the first 
 instance, he is arrested on a " bench warrant " issued by a judge of the 
 General Sessions and placed in confinement without any preliminary 
 examination. 
 
 42 
 
THE POLICE COUET 43 
 
 If arrested while the police court is in session he 
 is entitled to an immediate hearing, and to the ser- 
 vices of counsel, for whom the magistrate must send, 
 free of charge, through an officer. After the arrival 
 of counsel or after waiting a reasonable time for 
 his appearance, the magistrate may then proceed 
 to examine into the case, and can only adjourn the 
 hearing for forty-eight hours at a time for "good 
 cause/' unless at the request of the defendant 
 himself. 
 
 The subject of the rights of apprehended persons 
 is too extensive to be adequately treated in a few 
 pages. The power which the magistrate may arbi- 
 trarily exercise of holding persons merely " sus- 
 pected " of crime for further examination is very 
 great. Where a prisoner is brought in under arrest 
 as a fugitive from another State he is frequently 
 "held" (without any formal charge being made 
 against him) for several days at the mere telegraphic 
 request of some police official in a distant city. The 
 writ of habeas corpus may secure his release, but 
 persons unjustly arrested on "suspicion" have little 
 redress in ordinary cases, whether they are dis- 
 charged immediately or held for long periods. 
 While no technical authority exists for such deten- 
 tions (the right of arrest being strictly limited as 
 set forth in the last chapter) they are practically 
 necessary to prevent the escape of dangerous crimi- 
 nals. "Arrest on suspicion" is a euphemistic de- 
 scription of a technically illegal proceeding, which 
 is universally recognized as necessary for the pro- 
 tection of society.* 
 
 * " Many persons are arrested under suspicious circumstances, such as 
 well-known criminals mysteriously loitering about the streets at night, 
 
44 
 
 THE PRISONER AT THE BAR 
 
 The police court is the great clearing house of 
 crime. Inasmuch as all persons arrested, whether 
 innocent or guilty, are brought there together, they 
 should naturally, so far as possible, be accorded the 
 benefit of the doubt as to their guilt in the treatment 
 which they receive. They are presumed to be inno- 
 cent, and indeed many of them are, until a jury has 
 declared to the contrary. However, the attitude 
 generally taken towards a prisoner in a police court 
 is that he is guilty and that it is useless for him to 
 deny it, and he feels the discomfort and ignominy of 
 his position far more at this state of the proceedings 
 than he does later, when he is accorded more indi- 
 vidual importance^ As a rule he is brought into a 
 "crowded, -sltrfy--eourt where a vociferous pair of 
 shyster lawyers are shouting at each other's wit- 
 nesses and the magistrate is with difficulty trying to 
 preserve order. A great throng of complainants, 
 defendants, witnesses, policemen, lawyers and idlers 
 fill the room, and the prisoner instantly becomes the 
 centre of vision for all eyes as the officer leads him 
 
 or frequenting crowded places, or persons having property in their pos- 
 session for which they can give no good account, nor of themselves. 
 Frequently such an arrest is the first step in the detection of some crime 
 in which (after investigation) , if the proper complainant is found , a formal 
 complaint is taken and the prisoner is held for trial. In many instances 
 such an arrest prevents the commission of crime." 
 
 Comparison with Previous Years. 
 
 NUMBER ARRAIGNED AND DISCHARGED. 
 
 
 Males. 
 
 Females. 
 
 Total. 
 
 1896 .. 
 
 2335 
 
 120 
 
 2,455 
 
 1897 
 
 1 756 
 
 129 
 
 1 885 
 
 1898 
 
 1,628 
 
 154 
 
 1,782 
 
 1899 
 
 2033 
 
 301 
 
 2334 
 
 1900 .. 
 
 2023 
 
 293 
 
 2,316 
 
 1901 
 
 2066 
 
 197 
 
 2263 
 
 1902 . . 
 
 2337 
 
 200 
 
 2,537 
 
 1903 
 
 2634 
 
 115 
 
 2,749 
 
 1904 
 
 3 734 
 
 224 
 
 3 958 
 
 1 905 
 
 3 551 
 
 231 
 
 3,782 
 
 
 
 
 
THE POLICE COURT 45 
 
 up to the clerk 's desk and makes his formal accusa- 
 tion. The altercation in front of the magistrate is 
 suspended long enough for the latter to "commit" 
 the defendant, who instantly finds himself locked 
 in a narrow cell where he must remain until some 
 friend or relation has had an opportunity to reach 
 a lawyer, secure a bondsman, and compass his 
 release. 
 
 What he must naturally feel most is his own in- 
 significance. He is merely one of a huge multitude 
 of miserable people who are all in the same box. 
 The hours until his lawyer arrives are very dark 
 indeed, particularly as he probably has no idea 
 of what is going to happen to him in the meantime. 
 If he be a poor man accused of drunkenness or dis- 
 orderly conduct he may be, and frequently is, sent 
 to the island before he has any adequate oppor- 
 tunity to notify his family, who may suffer an agony 
 of anxiety before they discover what has become of 
 him. The punishment of the minor offender for 
 trifling breaches of the peace is not only swift, but is 
 characterized by a certainty unknown to that which 
 the law attaches to crimes of a higher order. 
 X The police court has sometimes been termed 
 "The Poor Man's Court of Appeals." So far as 
 this implies that five out of every seven defendants 
 arraigned there are summarily disposed of and 
 accept the judgment or sentence of the presiding 
 officer as final, and that the same number of ag- 
 grieved persons who seek justice there do the same, 
 it is a correct description. No court has a more 
 direct influence for good or evil, or for the creation 
 of a respect or a disregard for law. For an over- 
 whelming majority of our citizens, particularly those 
 
46 THE PBISONER AT THE BAR 
 
 of foreign birth or extraction, it is the only court of 
 justice in existence.* 
 
 There may be higher courts or higher laws but they 
 know them not. To them the magistrate is an auto- 
 crat. They are avenged or punished by virtue of 
 his will alone, and as he is just or unjust, honest or 
 corrupt, so do they come to regard American insti- 
 tutions as a whole. The officers of the precinct are 
 his minions, only a little lower in majesty, and even 
 more terrible and implacable. 
 
 When it is considered that the magistrates in the 
 first division of the City of New York (namely, the 
 Boroughs of Manhattan and the Bronx) alone dis- 
 posed of 138,477 cases in the year 1905, and that in 
 102,157 of these they exercised a summary jurisdic- 
 tion over the liberty of the prisoner, with power in 
 many instances to inflict severe punishment, it will 
 be seen that the importance of these courts cannot 
 be easily overrated. Including the defendants ar- 
 raigned in the "Children's Court " and before cer- 
 tain judges of the Special Sessions sitting as magis- 
 trates, there were 147,334 persons arrested during 
 1905 in New York County alone. 
 
 The summary jurisdiction of the police judge em- 
 braces all offences classed as "disorderly conduct, " 
 violations of so-called "corporation ordinances " 
 
 * The nativity of the persons held for trial in 1905 or summarily tried 
 and convicted in magistrates' courts was: 
 
 United States 26,612 
 
 Ireland 9,317 
 
 Germany 3,607 
 
 England 1,127 
 
 Scotland 437 
 
 France 980 
 
 Italy 6,728 
 
 Russia 7,564 
 
 Greece 3,608 
 
 Other countries 3,830 
 
 Total . . 63,810 
 
THE POLICE COURT 47 
 
 (such as peddling without a license, etc.), infrac- 
 tions of the "Sabbath law," the disposition of per- 
 sons alleged to be insane, vagrancy, and the offence 
 (not recognized by any statute) of being a "suspi- 
 cious person/ 7 Any person whom the magistrate 
 finds guilty of any of these charges (except the last) 
 he may fine or imprison. It is quite true that the 
 defendant may, if convicted, take an appeal to the 
 Court of General Sessions or test the jurisdiction of 
 the magistrate by a writ of habeas corpus, but the 
 grounds of appeal are few, and the victim rarely is 
 aware or advised of his rights in this respect. 
 Even were he fully informed, his purse would not 
 usually permit of further proceedings, unless taken 
 for him from charity by some outside party or or- 
 ganization. The fact that there were, out of this 
 multitude of cases, but sixty-seven appeals taken (of 
 which only thirty-eight were successful) speaks for 
 itself. 
 
 Besides those charged with the offences over 
 which the magistrate has final jurisdiction, before 
 him. come all persons arrested for crimes which are 
 triable in higher courts.* These persons he must 
 "hold for trial " (either for the court which tries 
 misdemeanors or for the grand jury) or discharge. 
 Should he have reasonable ground to believe that 
 the accused has committed the crime alleged he is 
 obliged by law to "hold*' him, but if the judge sees 
 fit to discharge the prisoner, the aggrieved person 
 has no appeal and his only alternative is to try to 
 persuade the district attorney in spite of the action 
 of the magistrate to take personal action either by 
 
 * In 1905 the number of persons so held in New York County by the 
 magistrates of the first division, was 36,340. 
 
48 THE PEISONEE AT THE BAE 
 
 laying the matter before the grand jury, or in cases 
 of misdemeanors by filing an information in the 
 Court of Special Session. He is usually unaware of 
 this possibility and at all events it is a difficult pro- 
 ceeding, so that even in the case of crimes in which 
 the magistrate has not a final jurisdiction, his action, 
 so far as setting free the prisoner is concerned, is 
 generally a conclusion of the matter. When a police 
 judge unwarrantably discharges a prisoner accused 
 of a felony the complainant rarely takes any further 
 steps to get justice. 
 
 The enormous power wielded by what people are 
 accustomed to call "mere police judges " is obvious 
 when we realize that one of them may send a woman 
 to a reformatory for three years, and boys to similar 
 institutions for the same period. Their jurisdiction 
 is, however, strictly confined to certain classes of 
 offences; and if, for example, the crime charged be 
 "larceny" in any form they are compelled to hold 
 the defendant for the action of a higher court even 
 if he admit his guilt. Thus a vagrant who is caught 
 begging can be sent away for six months, but if the 
 same man steal an old rug from a door-step or a 
 gunny-sack from a wagon he must willy nilly be sent 
 to the Tombs to await a trial in Special Sessions. 
 Now, in any case where he is going to plead guilty 
 he would probably vastly prefer to have his case 
 disposed of by the magistrate and have .done 
 with it. 
 
 There would seem to be good reason for believing 
 that coincident with other reforms in the magis- 
 trates' courts their original jurisdiction might well 
 be extended to cases of petit larceny where the de- 
 fendant admits the commission of the offence. A 
 
THE POLICE COURT 49 
 
 deal of time, money, and inconvenience to the pris- 
 oner might be saved. The present situation results 
 in a tendency on the part of the judge to construe 
 as many cases as he can of " petit larceny " into 
 "disorderly conduct." Very often a trivial theft 
 is accompanied by acts which make it perfectly 
 proper for the magistrate to overlook the larceny 
 for the disorder. Certainly it is better for the 
 offender, where gossible, to be classed as a "dis- 
 orderly" rather than as a thief. In the latter case 
 he may, with the stigma thus fastened upon him, go 
 forth to a life of crime ; in the first he would never 
 be regarded as a criminal. This jurisdiction to pun- 
 ish any act or omission tending to create a breach 
 of the peace offers a boundless opportunity for an 
 arbitrary judge to arrogate to himself powers which 
 an ignorant or helpless offender can hardly be ex- 
 pected successfully to defy. If illegally "commit- 
 ted" his only redress is a writ of habeas corpus, 
 which probably is a phrase entirely unintelligible to 
 him and which will cost more money to procure than 
 he has ever had at any one time in his existence. 
 
 The magistrates might also be given jurisdiction 
 to impose punishment in all cases of "simple as- 
 sault," and in certain cases even of assaults with 
 weapons. There is no particular reason why, if the 
 magistrate can send an old woman away for beg- 
 ging, or for being drunk of a Saturday night, he can- 
 not be trusted to punish her properly for hitting her 
 husband over the head with a hot-water kettle. 
 Moreover, the magistrate before whom the damaged 
 party hales the offender, is able to see with his 
 own eyes the actual extent of the injuries which 
 have been inflicted, whereas, by the time the case 
 
50 THE PRISONER AT THE BAR 
 
 is tried before the judge of the Sessions, Dame 
 Nature has usually restored the victim's battered 
 physiognomy to its pristine condition of refined 
 elegance. 
 
 No one could fail to profit by a day spent upon the 
 police-court bench watching the judge exercise his 
 many diverse yet not inconsistent duties, which 
 variously include those of magistrate, lawyer, 
 clergyman, almoner, arbitrator of domestic difficul- 
 ties, and general adviser. He will begin his day's 
 work, which, before it be concluded, will have re- 
 quired him to pass upon anywhere from fifty to 
 eighty cases, by disposing of a long line of drunks 
 jand disorderlies of both sexes. Justice is plenti- 
 fully tempered with mercy, however, and the un- 
 pleasant business is soon over. Next comes the 
 disposition of unfinished business, which includes 
 the continuance of trials not concluded on the 
 preceding court day. These, of course, embrace 
 every possible offence known to the law. The ex- 
 traordinary number of petty burglaries is sure to 
 attract the attention of the spectator.* Boy after 
 boy is brought to the bar charged with breaking into 
 a tobacco shop, or a small grocery, or a room used 
 for the storage of merchandise, push-carts or fruit. 
 At the very outside the value of the plunder cannot 
 exceed a few dollars. 
 
 One defendant, his head heavily bandaged, is half 
 carried to the bar by a husky officer and charged 
 with attempting to burglarize the shed adjoining 
 Isadore Aselovitch's junk store. He is clearly much 
 the worse for a severe clubbing. "Izzy," the com- 
 
 * During 1905 there were arrested 1,357 persons on charges of 
 burglary, of whom 813 were held for trial. 
 
THE POLICE COUKT 51 
 
 \ 
 
 plainant, exhibiting an iron bar several feet in length 
 and weighing upwards of thirty pounds, proudly 
 claims to have effected the arrest of the defendant 
 by merely giving him * i a little poke mit it. ' ' In re- 
 sponse to the interrogatories of the magistrate, 
 Izzy explains that he and another kept their junk 
 in a certain rear room and from time to time noticed 
 that various odd pieces of iron seemed to be miss- 
 ing. They thereupon concealed themselves behind a 
 pile of old push-cart wheels and waited for the 
 thief. After several hours of inactivity they finally 
 heard a rattling among the iron and discovered 
 the defendant apparently in the very act of steal- 
 ing -a crowbar. Being upon his hands and knees he 
 was unable to offer any effectual resistance to their 
 combined onslaught and barely succeeded in escap- 
 ing with his life. His cries had brought an officer 
 who had arrested him, upon Izzy's complaint, for 
 attempted burglary. The defendant in turn had 
 charged the two with felonious assault, alleging that 
 he had a right to be in the store-room, inasmuch 
 as he was accustomed to leave junk there himself. 
 He further tearfully asserts that he is a rival of 
 Izzy's in the push-cart business, which accounts for 
 the extreme animosity of the latter. 
 
 "It vas a lie, your honor, ehuge," urges Izzy. 
 ' i Dot man vas a purglar. He ain 't got no push-cart. 
 Gif him ten years, chuge!" 
 
 The judge, who is wise in his generation, fines 
 "the burglar' 7 three dollars for disorderly conduct, 
 to the intense disgust of Izzy. 
 
 ' ' Tree dollars ! " he cries with fine scorn. ' ' Tree 
 dollars for a purglar ! I vould be a purglar myself 
 for tree dollars." 
 
52 THE PEISONEE AT THE BAE 
 
 Very likely the next case will be that of a small 
 merchant charged with obstructing the sidewalk 
 with his boxes. He is let off with a warning or, if 
 it be a second offence, with a small fine. Then a 
 couple of boys will be brought in charged with 
 "shooting craps," and on their heels a half -drunken 
 driver who is accused by a little girl (having on an 
 S. P. C. A. badge) of driving an overloaded horse. 
 The crap boys are let go, but as the "cop" agrees 
 with the little girl that the driver was abusing his 
 horse the latter is "held" for Special Sessions. 
 
 While these matters are being attended to a great 
 uproar is heard and a large crowd forces its way 
 into the court-room. Above the clamor the wails 
 of a young Jewess make themselves distinctly audi- 
 ble. The judge has just ordered the drunken driver 
 locked up and is all ready to take up the new case. 
 The defendant, a slick, pale-faced young Hebrew, 
 loudly proclaims his innocence and demands an im- 
 mediate hearing. No time is lost, for the parents of 
 the girl have procured a lawyer who at once causes 
 a charge of robbery to be entered. The girl, hysteri- 
 cally weeping, tells her story. Up to a certain point 
 it is lucid enough. She had been walking along the 
 street when a nice-looking young "feller" had ac- 
 costed her and inquired the way to the nearest pawn- 
 broker 's. While they were conversing pleasantly 
 upon this subject a second young gentleman had 
 joined them and asked the first to purchase a pair 
 of beautiful diamond earrings which he exhibited. 
 This the other regretfully had explained he could 
 not do, since he had no money (being even then on 
 the way to the pawnbroker's). The diamonds had 
 glistened and sparkled in the sunlight. The girl had 
 
THE POLICE COURT 53 
 
 asked to look at them and while she was doing so 
 the owner had suggested that perhaps she might 
 like to purchase them herself, giving as part of the 
 consideration her own modest little baubles. This 
 tempting offer she says she refused, on the ground 
 that she did not know the young gentleman. She 
 then rapidly states that the two set upon her, struck 
 her, and that she "knew no more," until on recover- 
 ing her senses she found that her own earrings had 
 disappeared and that those of the stranger were in 
 her ears. 
 
 "Hm!" says the magistrate; "and do you say 
 that the defendant struck you?" 
 
 ' ' Shure, your honor, ' ' replies the young lady. 
 
 61 And that you fainted?" 
 
 * ' Shure, your honor. ' ' 
 
 "Did you fall?" inquires the judge sharply. 
 
 "N n no," admits the complainant. 
 
 "Defendant discharged," announces the magis- 
 trate. 
 
 ' l Get out of here, all of you, ' ' orders the officer at 
 the bridge. "Get along, now!" 
 
 The explanation, as the reader already guesses, 
 is simply that by a time-honored trick the girl has 
 been persuaded by an oily-tongued trickster to 
 exchange her own earrings for his worthless ones. 
 This she has done quite voluntarily. She has then 
 hurried home only to find that her newly acquired 
 gems are paste. The family goes into a paroxysm of 
 anger and lamentation. The nearest lawyer is con- 
 sulted, who, of course, agrees to secure the return of 
 the earrings. They pay him a five-dollar fee, the de- 
 fendant is sought for and arrested, and in her eager- 
 ness to see him punished and to obtain her property 
 
54 THE PRISONER AT THE BAR 
 
 the victim swears away her own case. Probably 
 had she told the truth the defendant could have been 
 "held" for grand larceny by false pretences. 
 
 These proceedings may no sooner be concluded 
 than perchance a giant negro is brought in charged 
 with assault. A dozen officers bring him manacled 
 to the bar, while a crowd of reporters follow and 
 gather on each side, notebook in hand. It appears 
 that the prisoner suddenly ran out of a saloon, drew 
 a revolver and began an indiscriminate shooting. 
 The ' ' reserves ' ' were called out and three policemen 
 now lie dangerously wounded in the hospital. He 
 is held for examination, pending a possible inquest 
 by the coroner. 
 
 Meantime a lank youth from New Jersey listens 
 vacantly while an officer accuses him of abandoning 
 a horse which has suddenly expired while har- 
 nessed to the defendant's truck wagon. He pays 
 a fine and vanishes. Two young Irish- Americans, 
 mutually damaged, are arraigned for " disorderly 
 conduct." They, too, are fined, being already sub- 
 stantially punished by each other. A man ac- 
 cused of " Sunday selling" follows a woman who 
 tells a pitiful tale of how her husband has aban- 
 doned her and her five little ones. Later in the 
 day the husband is found and ordered to pay her 
 ten dollars per week. Two retail milk dealers 
 charged with adulteration or "keeping a cow in an 
 unhealthy place," a band of pickpockets who have 
 been caught "working" a horse-car, a woman ac- 
 cused of "soliciting," and a bartender who has 
 allowed a "slot machine" to be left upon the prem- 
 ises, give place to a vociferous store-keeper who has 
 caused the arrest of a very stout man for the lar- 
 
THE POLICE COURT 55 
 
 ceny of four pairs of trousers. He explains loudly 
 that the defendant (who weighs at least 325 pounds) 
 came into the store, asked to see some "pants," and 
 while the clerk was not looking stuffed four pairs 
 of these articles inside his waistband and made his 
 escape. The complainant not only identifies the de- 
 fendant with absolute certainty but goes so far as to 
 state with equal positiveness that the accused now 
 has on the very trousers into which he stuffed the 
 stolen property. Four pairs identical in size and 
 material with those alleged to have been purloined 
 are produced and marked in evidence. The fat man 
 indignantly denies having been in the store at all. 
 The reporters are interested. 
 
 "Gentlemen," says the judge, "I appoint you a 
 committee to conduct the defendant to my private 
 room for the purpose of determining whether or not 
 you can stuff these articles of apparel inside his 
 waistband. ' ' 
 
 The reporters, followed more slowly by the per- 
 spiring defendant, make their way to a back room, 
 from which they presently emerge to announce 
 through their spokesman that it would be impos- 
 sible to thrust any object, much less four pairs 
 of trousers, inside the band of the defendant's 
 trousers. 
 
 In the interim the judge has been settling matri- 
 monial difficulties, giving all sorts of gratuitous legal 
 advice, acting as arbitrator over the question of the 
 mutual use of the "landings" on the stairs in tene- 
 ment houses, issuing warrants, and endeavoring to 
 find an opportunity to continue the hearing in a com- 
 plicated "false label" case. In this last several 
 rather well-known attorneys are retained, who stand 
 
56 THE PRISONER AT THE BAR 
 
 about disgustedly while the more immediate business 
 of the court is being attended to. In most cases, 
 however, the lawyers are hardly likely to add to the 
 general reputation of the profession for ability. 
 
 The inordinate number of cases which the magis- 
 trates have to dispose of results oftentimes in an 
 nconclusive method of hearing charges of misde- 
 eanors or of felonies, which, if the defendant be 
 held at all, must of necessity be tried in a higher 
 court or, as the magistrates say, "go downtown." 
 If the defendant be a man of some influence, with 
 enough money to retain a boisterous and bully-rag- 
 ging lawyer, the line of least resistance may lead the 
 judge almost unconsciously to regard the case as 
 having "nothing in it." If, on the other hand, the 
 complainant be a man of independence and insist- 
 ence, with perhaps a bit of a pull, it is much easier 
 to "hold" a defendant than to assume the responsi- 
 bility of ' ' turning him out. ' ' In point of fact some 
 magistrates are prone to shift the responsibility off 
 their own shoulders and to "hold" anyway. Thus 
 there can be "no kick coming" so far as they are 
 concerned. There are also cases where, rather than 
 take the time for a careful examination of the case, 
 the magistrate will "hold," when, if he had really 
 examined into it with the necessary care, he would 
 find that there was no reasonable ground for his 
 action. Now the grand jury is apt to find an indict- 
 ment almost as a matter of course, and the defend- 
 ant must then be placed on trial before a petit jury. 
 In large measure this is the reason why the calendars 
 of the criminal courts are crowded with cases which 
 should never have gone beyond the police court, and 
 why prisoners charged with homicide often lie for 
 months in the Tombs before the petty business of 
 
THE POLICE COURT 57 
 
 the General Sessions can be cleaned up sufficiently 
 to allow time for their trial. In this way much of 
 the work which should be done by the police judge is 
 cast upon the already over-burdened petit jury. 
 The evil, however, does not stop there. When a 
 petit jury finds that a majority of the cases brought 
 before it have little or no merit it frequently gets 
 the idea that all criminal business is of tho same 
 character and that it is empanelled for the pur- 
 pose of a general jail delivery. After a jury has 
 "turned out" twenty men in succession it can hardly 
 be blamed for thinking that the twenty-first, who 
 may be a real sinner, ought likewise to be sent home 
 with the others to join his family. Eespect for law 
 cannot be maintained unless each part of the ma- 
 chine of justice does its full duty and assumes its 
 own burdens and responsibilities. 
 
 It goes without saying that no official comes into 
 closer contact with the police than the magistrate. 
 He gets to know them collectively and individually 
 as no other person can. In determining what should 
 be done in any given case he takes largely into con- 
 sideration the personal equation of the officer mak- 
 ing the arrest. He is able to detect exaggerated or 
 manufactured evidence, which might easily pass as 
 truth and perhaps convince a jury in a higher court. 
 Hence one of the arguments for giving him a wider 
 original jurisdiction. Petit juries are ordinarily 
 disinclined to convict and send a man to State's 
 prison in what seems to them trivial cases. If the 
 magistrate had a wider scope in the disposal of such 
 cases one of the principal reasons for our lack of 
 respect for law (the sentimental and arbitrary ac- 
 tion of juries) would be largely done away with. 
 
 The magistrate, if he be the right kind of a man, 
 
58 THE PRISONER AT THE BAR 
 
 can do more real good, right more real wrongs, and 
 exert a more wholesome and salutary influence upon 
 the working people of large cities than any benevo- 
 lent or charitable association. He can do much to 
 break up the alliance of the police with crime and to 
 prevent arbitrary acts of violence and lawlessness 
 upon their part committed either to compel the pay- 
 ment of blackmail or cover derelictions of duty. 
 
 The police judge also soon learns the character 
 of the practitioners who appear so constantly be- 
 fore him. Many a case which on its face seems 
 founded on justice may be shown by a little question- 
 ing on the part of the magistrate to be nothing but 
 an attempt to "hold up" or injure the defendant. 
 The quasi-criminal classes know well the power of 
 the criminal law and frequently invite it to secure 
 private vengeance. When two rogues fall out there 
 is often a race to see who can get to the police court 
 first. In other cases the dense ignorance of com- 
 plainant or defendant renders justice almost impos- 
 sible. The shyster plays upon this to his profit. 
 There is a story told of a practitioner with a large 
 Italian following who was accustomed to display 
 prominently upon a table in his office a small Testa- 
 ment and a huge Webster's Dictionary. After his 
 clients had stated their case he would turn to them 
 and ask : 
 
 "Do you wish the law from the big book or the 
 little book!" 
 
 The clients would inquire the relative cost. 
 
 "The law from the little book is ten dollars the 
 law from the big book is twenty-five dollars." 
 
 The clients would consult together and on the 
 assumption that the bigger the book the better the 
 
THE POLICE COURT 59 
 
 law, would almost invariably pay their twenty-five 
 dollars and procure the best advice which Noah Web- 
 ster could give. 
 
 The fact that most police magistrates are ap- 
 pointed for purely political reasons is much to be 
 deprecated. The days of bribery are over, but occa- 
 sionally the public has some excuse for believing 
 that the desire to do "a favor " for a political friend 
 may have influenced the action of one of them. This 
 would have less color were they usually appointed 
 for some other and better reason than mere party 
 fealty. Ordinarily the appointment goes to some 
 faithful worker, who has won distinction in ward 
 politics. Like enough he may make an excellent 
 judge. At any rate he has a direct personal knowl- 
 edge of the people with whom he is called to deal. 
 He has equally first-hand information of local con- 
 ditions and the personnel of the police attached to 
 the neighboring precincts. His judgment is apt to 
 have a practical wisdom that a mere student of law 
 could never achieve. He knows a crooked officer, a 
 crooked lawyer, and a crooked complainant when he 
 sees one. Whatever the verbal testimony happens 
 to be he may very well "know different." He is, as 
 the slang phrase accurately puts it, "wise to his 
 job. ' ' And when all is said and done the ' ' influence ' ' 
 exerted upon him will probably be only a request to 
 ' ' Do the best you can for So and So, he 's a friend 
 of mine, ' ' which will not affect his action in the least. 
 A college-bred lawyer with no actual knowledge of 
 existing conditions might have the wool pulled over 
 his eyes at every turn, and, while theoretically en- 
 forcing the law as it is printed on the statute books, 
 fail utterly to achieve the rough-and-ready justice 
 
60 THE PRISONER AT THE BAR 
 
 which the situation demands and which his less edu- 
 cated brethren can dispense by virtue of instinct ac- 
 quired from long experience. It must be admitted, 
 however, that the system of political appointments 
 is just as bad, if not worse, when applied to police 
 magistracies as when exercised in higher places. 
 The appointees may or may not turn out success- 
 fully, and in New York we have had some extraor- 
 dinary surprises in both directions. 
 
 Did space permit a judicious selection of the his- 
 toric rulings of traditional magistrates would make 
 entertaining reading. One of the most famous was 
 that of a. certain learned member of this bench who 
 is said to have discharged a defendant accused of 
 killing a robin in Central Park in the following 
 words : 
 
 ' ' You are charged with breaking a park ordinance 
 forbidding the public to kill the robins. Of course 
 you ought not to kill the robins for they are harm- 
 less birds, but I have looked this thing up a little, 
 and I find that from time immemorial it has been 
 held that there can be no right of property in wild 
 beasts. Now, a robin is clearly ferrce natures a 
 wild beast and so the city has no property in it. 
 The law is therefore unconstitutional, and I am con- 
 strained to discharge you. You may go." 
 
 Nowhere than on the magistrate's bench is better 
 illustrated the proverb that a little learning is a 
 dangerous thing, but only a little learning, even 
 such as classifies an innocent park robin as a wild 
 beast, is preferable to an openly expressed inten- 
 tion of enforcing only those laws which appeal to the 
 judge's individual sense of propriety. The writer 
 recalls endeavoring some six years ago to induce 
 
THE POLICE COURT 61 
 
 a certain magistrate to hold a defendant for the 
 grand jury for a certain statutory offence. The 
 learned magistrate positively refused to do so on 
 the ground that there was "no sense in the law." 
 
 "But it is the law!" returned the writer. 
 
 "Well, I don't care if it is," replied the judge 
 tartly. ' ' I didn 't make it. It 's no law of mine, and 
 I don't propose to follow it. Go and get the grand 
 jury to indict if you can, but I won't hold this man 
 for doing what I might want to do myself some 
 day."* 
 
 Taken as a body our magistrates, with a few 
 obvious exceptions, are men of wide experience and 
 practical common sense, who handle the enormous 
 stream of business which comes before them with 
 efficiency and dispatch. A forbidding exterior and, 
 occasionally, a diction which might startle a Friday 
 evening prayer meeting may co-exist with a fair 
 mind, a kind heart, and an honest determination to 
 see that justice is done. While the rights of the de- 
 fendant are fully protected it is probable that actual 
 justice is more nearly accomplished in these than in 
 higher courts, where i ' reasonable ' ' doubt, presump- 
 tion of innocence, and kindred privileges, as inter- 
 preted by a sympathetic jury, intervene between the 
 rights of the community and those of the prisoner at 
 the bar. 
 
 * See latter half of Subdivision 5, Section 278 New York Penal Code. 
 
CHAPTER V 
 
 THE TRIAL OF MISDEMEANORS 
 
 ONE of the most efficient, effective, and important 
 criminal courts in the civilized world is that estab- 
 lished for the trial of misdemeanors in New York 
 County. Three judges, each having an equal voice, 
 act as arbiters of both law and fact. Originally this 
 bench was filled by three regular police magistrates 
 sitting in rotation, and in many cases the same judge 
 before whom the prisoner had been arraigned in the 
 first instance assisted in determining the final ques- 
 tion of his guilt or innocence. But the old Court of 
 Special Sessions acquired a very unsavory reputa- 
 tion for many reasons, the chief among them being 
 its alleged susceptibility to political influence and 
 the looseness with which its funds were handled, 
 and it was finally legislated out of existence in 1895. 
 Then a new court was created composed of three 
 justices who, while they had the powers of police 
 magistrates, did not sit in magistrates' courts, but 
 devoted their entire time to the trial of misdemean- 
 ors. In the last six years this court disposed of 
 41,008 cases, in which 26,567 persons were convicted 
 of crime, either by trial or by plea of guilty. During 
 the year 1905 alone 10,081 cases were disposed of, 
 in which there were 5,666 convictions. The judges 
 in this huge mill of justice rarely make mistakes, 
 and few appeals are ever taken from their decisions. 
 
 62 
 
THE TRIAL OF MISDEMEANORS 63 
 
 They have become, by virtue of long experience, ex- 
 perts in fact, and the training thus received has 
 qualified several of them for higher office.* 
 
 As the reader is already aware, a defendant 
 charged in a magistrate 's court with the commission 
 of a misdemeanor, say that of petit larceny, is given 
 an immediate hearing, and, if there be reasonable 
 ground to believe him guilty, is held for trial in the 
 Special Sessions. The information or affidavit, to 
 which the complaining witness has sworn and which 
 contains a more or less succinct account of the facts 
 alleged against the prisoner, is thereupon forwarded 
 to the clerk of the court and in due course the de- 
 fendant appears, if he be on bail, or is brought from 
 prison, if he be in confinement, to "plead." This 
 information, which is the basis of the proceedings 
 against him and which is practically the only record 
 in the case, is commonly called the "complaint" 
 and corresponds with the indictment found by the 
 grand jury where the defendant is charged with the 
 commission of a felony. 
 
 After the prisoner has entered his plea, if he be 
 in prison, he is given a trial almost immediately; 
 if not, his case will probably come up within a week 
 or two. The offences over which these three judges 
 have jurisdiction are as many and as diversified as 
 human ingenuity and the demands of modern civi- 
 
 * MISDEMEANORS DISPOSED OF DURING THE YEAR 1905. 
 
 Convicted 1,869 
 
 Acquitted 1,110 
 
 Plead Guilty 3,797 
 
 Discharged 580 
 
 Demurrers allowed 
 
 Forfeited 279 
 
 Actions dismissed 2,446 
 
 Total 10,081 
 
64 THE PRISONER AT THE BAR 
 
 lized life, qualified by ineffective legislation, have 
 combined to make them. 
 
 As might be expected, petty larcenies and assaults 
 furnish together more than thirty-five per cent of the 
 cases tried. The following table will show the more 
 numerous and important offences for which defend- 
 ants were held in 1905 for the Special Sessions and 
 their relative proportions: 
 
 Petit larceny 2,459 
 
 Assault, third degree 1,559 
 
 Maintaining a disorderly house 948 
 
 Carry concealed pistol 436 
 
 Cruelty to animals 376 
 
 Failure to provide for minor 152 
 
 Possessing obscene prints 56 
 
 Indecent exposure 54 
 
 Malicious mischief 50 
 
 Unlawful entry 38 
 
 Illegal sale of transfer tickets (619a P. C.) 24 
 
 Possessing burglars' implements 18 
 
 Offences against trade-marks (364 P. C.) 9 
 
 Violation Liquor Tax Law 2,345 
 
 Violation Motor Vehicle Law 562 
 
 Violation Sanitary Code 844 
 
 Violation Labor Law 165 
 
 Violation Medical Law 61 
 
 Violation Dental Law 29 
 
 Violation Barber Law 26 
 
 Violation Election Law 18 
 
 Miscellaneous 806 
 
 Total 11,035 
 
 A spectator may in the course of a morning hear 
 thirty or forty cases actually tried in which the 
 charges cover almost every conceivable kind of sin, 
 wrong, or prohibition. One prisoner is being prose- 
 cuted for assaulting a non-union workman, another 
 for maintaining a public nuisance, another for a 
 
THE TRIAL OF MISDEMEANORS 65 
 
 violation of the Liquor Tax Law, another for prac- 
 tising medicine without a license ; a dozen cases will 
 be rapidly disposed of wherein the defendants are 
 charged with shoplifting or "illegal entry " (a 
 charge frequently lodged against a suspected bur- 
 glar who has made an entry without a "break" 
 and has been caught before he has accomplished his 
 purpose) ; others still will be tried for carrying 
 concealed weapons, publishing or possessing inde- 
 cent literature, violating trade-mark laws, breaking 
 speed ordinances, or "malicious mischief "; while, 
 if the student of institutions be patient, he may be 
 rewarded by the exciting spectacle of one who is 
 defending himself against the charge of selling 
 skimmed milk, holding a mock auction, driving a 
 spavined horse, writing a threatening letter, making 
 a fraudulent assignment, pawning borrowed prop- 
 erty, using a false weight, opening another's letter, 
 keeping a cow in an unhealthy place, running a 
 cock-fight, misrepresenting the circulation of a 
 newspaper, divulging the contents of a telegram, 
 impersonating a policeman, adulterating food; or, 
 provided he be exceptionally fortunate, may hear 
 the trial of a celebrated actress for her impersona- 
 tion of " Sappho, " or of Mr. Arnold Daly for pro- 
 ducing "Mrs. Warren's Profession." 
 
 He will see every conceivable type of man, woman, 
 and child, either as defendant or witness, and he 
 may also study every variety of human failing or 
 weakness. No mock defence or prepared lie can de- 
 ceive these argus-eyed judges; short shrift is made 
 of the guilty, while the "reasonable doubt" is recog- 
 nized the instant it puts in the most furtive appear- 
 ance. In fact defendants are often found guilty 
 
66 THE PRISONER AT THE BAR 
 
 or acquitted almost before they are aware they are 
 on trial, and this with no detriment to them or to 
 their cause. 
 
 The advocates of the abandonment of the jury 
 system point to this court as their strongest argu- 
 ment. No time is lost in the selection of a jury, 
 a matter often of hours in the General Sessions in 
 cases of no greater importance. There is no opening 
 address on the part of the district attorney or coun- 
 sel for the defendant, the written statement or 
 information sworn to by the complainant being en- 
 tirely sufficient for the court. Cross-examination 
 is cut down to its essentials and tests of "credibil- 
 ity" are almost unnecessary. At the conclusion of 
 the case there are no harangues from either side, 
 and the judges almost immediately announce their 
 decision and generally impose sentence on the 
 spot. 
 
 Of course in nine cases out of ten the evidence 
 is conclusive and the merest glance at the com- 
 plainant and his or her witnesses is enough to sat- 
 isfy the onlooker that their claim is honest and the 
 charge substantial. In such cases the trials proceed 
 with lightning-like celerity. The owner of the stolen 
 property is sworn while the defendant and his law- 
 yer are pushing their way through the crowd to 
 the bar. 
 
 "Mr. Blickendecker, are you a grocer, fifty-five 
 years of age, residing at 1000-A-rear, First Avenue, 
 and having a store at 666y 2 Catharine Street?" 
 rapidly articulates the deputy assistant district at- 
 torney. 
 
 "Ya; I vas," answers Blickendecker heavily, try- 
 ing helplessly to catch up. 
 
THE TEIAL OF MISDEMEANORS 67 
 
 "Did you, about 4:49 P.M., on Tuesday, the 17th 
 of April, observe the defendant near your place of 
 business ? ' ' 
 
 "Ya; I vas I mean, ya, I did." 
 
 "What did you see him do?" 
 
 Blickendecker wipes his forehead and turns to- 
 wards the court : 
 
 "Your honors, gentlemens, I see dot feller 
 dere- " 
 
 "The defendant?" interrupts the presiding judge, 
 patiently. 
 
 ' ' Ya the defender, I see dot defender mit a leetle 
 vagon on two wheels, py mein store mit anoder fel- 
 ler, unt dey catch up ein crate of eggs unt put him 
 in de vagon unt skip mit him, unt I hollers 'Tief I' 
 unt runs, unt de officer " 
 
 "That's enough. Any cross-examination? No? 
 Call the officer." 
 
 The officer is sworn. 
 
 "Are you a member of the Municipal Police force 
 of the city and county of New York, attached to 
 
 the Precinct, and were you so attached on the 
 
 17th of April last, and did you see the defendant 
 on that day near the premises 666^2 Catharine 
 Street?" 
 
 "Shure I seen him. Him and another feller. 
 They were makin' off wid old * Delicatessen's' eggs. 
 I catched this young feller " 
 
 "That's enough. Any cross-examination? No? 
 Leave the stand." 
 
 "The People rest," announces the assistant. 
 
 "Take the stand," directs the lawyer, and his 
 client shambles into the chair. 
 
 "Did you steal Mr. Blickendecker 's eggs?" 
 
68 THE PRISONER AT THE BAR 
 
 "No, your honor; Cully Fagan asked me to go 
 round and help him deliver some eggs. He said 
 he 'd gimme a drink. So I went along wid him. All 
 of a sudden out comes this old guy and yells 'thief.' 
 I gets scared and runs. I didn't mean no harm." 
 
 "That is our case," says the lawyer. 
 
 "No cross-examination," says the assistant. 
 
 The judges consult for a moment. 
 
 "We find the defendant guilty," announces the 
 presiding judge, dipping his pen into the ink. 
 
 "Now, young man, have you ever been con- 
 victed!" 
 
 "No, your honor." 
 
 "I advise you not to steal any more eggs. One 
 month in the penitentiary. Next case ! ' ' 
 
 Now here is a defendant given a perfectly fair, 
 if not a very full, trial in less than three minutes, 
 Of course it is in such a case practically a mere 
 formality. Two witnesses who have had no pre- 
 vious acquaintance with the prisoner, whose eye- 
 sight is perfect, and who have no motive to swear 
 falsely, identify him as caught in flag r ante delicto. 
 The defendant has merely put in his defence "on 
 the chance. ' ' His sentence would be about the same 
 in either case. The only disadvantage of so active 
 a court is the fact that the multitude of the defend- 
 ants render it almost impossible to make any very 
 exhaustive study of the majority of them before 
 sentence. However, as the sentences are all light, 
 the defendant always gets the benefit of the doubt, 
 and the court resolves all doubts in his favor. 
 
 Sometimes in such a case a criminal conspiracy 
 between the complainant and the officer is disclosed 
 to "do" a. mischievous, but not criminal, youth who 
 
THE TRIAL OF MISDEMEANORS 69 
 
 has fallen into their disfavor. Then the witnesses 
 are subjected to such a fire of questions that they 
 wilt and wither in the blast, the defendant is ac- 
 quitted and the prosecution's witnesses sometimes 
 held for the action of the grand jury on a charge 
 of perjury. Many a cause celebre has originated 
 in the Special Sessions through the perspicacity 
 of some member of that bench during a petty trial, 
 and defendants there convicted often divulge in 
 their confessions evidence which for a time sets the 
 newspaper world by the ears. This is especially 
 true of cases where some civil officer is accused of 
 taking a bribe to influence his action or to make an 
 appointment. He may be convicted, confess, and 
 for a day or two the papers are full of the unearth- 
 ing of a far-reaching conspiracy to debauch the city 
 government, barter offices at wholesale, and deliver 
 the city to a coterie of criminals. The next step in 
 the proceeding is the unfortunate discovery that the 
 defendant's confession, since it cannot be corrobo- 
 rated, is entirely worthless. Yet, as he has appar- 
 ently done all he could to atone for his offence, he 
 receives a mitigated sentence, while the uproar oc- 
 casioned by his sensational disclosures subsides as 
 suddenly as it began. 
 
 The bane of the Court of Special Sessions in New 
 York County and very likely the bane of all similar 
 courts, are the so-called "Liquor Tax cases. " As 
 one of the officers of this court recently said: "In 
 this class of cases the court knows that it is being 
 1 flim-flammed/ and, in addition, that it is helpless. 
 We convict in about sixty per cent of the cases, but 
 the judges know perfectly well that a considerable 
 number of those convicted are men who, while not 
 
70 THE PRISONER AT THE BAR 
 
 honest enough not to violate the law, are too honest 
 to pay corruption money. " 
 
 The possibilities for blackmail and the arbitrary 
 and unequal way in which the law is enforced in 
 different parts of the city (one section being allowed 
 to be "wide open" while an adjacent district is 
 "dry") render the judges loath to convict even 
 in "straight" cases. When Liquor Tax cases are 
 transferred, by order of the judge presiding in Part 
 I, for trial in the General Sessions, the juries before 
 which they are prosecuted will not convict at all.* 
 
 In the same way the court looks with grave sus- 
 picion on most cases where a defendant is arraigned 
 charged with "assault" on an officer. They expect 
 to see arraigned at the bar (and are usually not 
 disappointed) a small man covered with bandages, 
 while a burly officer without a scratch upon his rosy 
 countenance takes the stand and swears that the 
 defendant assaulted him. The policeman always 
 has plenty of corroboration the defendant none at 
 all. The chances are that the relative sizes of the 
 two men are such that if the officer coughed the de- 
 fendant would drop dead. The proper charge in 
 such a case would be, not attempted assault on an 
 officer, but attempted suicide. The truth of the 
 matter probably is that the small man, having done 
 or said something to irritate the officer, has been 
 pounded to a pulp and then ignominiously haled 
 away to the station house, while his terrified com- 
 panions, knowing full well that if they interfered 
 theirs would be a similar fate, have retired to their 
 homes privately to execrate a state of civilization 
 where humble citizens can be subjected to such per- 
 secution. 
 
 * See note, infra, p. 210. 
 
THE TRIAL OF MISDEMEANORS 71 
 
 Practically the Special Sessions is the final court 
 of disposition for most misdemeanors. Except in 
 automobile, theatrical, health, copyright, and trade- 
 mark cases and a few others, a majority of the de- 
 fendants do not have enough money even to hire a 
 lawyer, to say nothing of taking an appeal. They 
 are disposed of then and there just as in certain 
 cases they are disposed of in the magistrates ' courts. 
 For them a sentence once imposed is final. 
 
 Occasionally the Special Sessions is the scene of 
 a great trial, as celebrated as those fought out in 
 the i ' Parts " upstairs or in the criminal trial term 
 of the Supreme Court across the hall. A prominent 
 druggist may have been accused of refilling bottles 
 with spurious or diluted contents. He is being pros- 
 ecuted by the owners of the trade-mark or label. 
 They retain distinguished counsel to prepare the 
 case for the prosecution. The accused engages 
 equally able lawyers to defend him. The crime is 
 highly technical and the evidence almost entirely 
 a matter of chemical analysis and expert opinion. 
 The battle goes on for weeks or even months. A 
 jury would have become hopelessly confused and 
 the issue successfully obscured, but the three judges 
 are expert jurymen, and in due course, if he be 
 guilty, the defendant is inevitably convicted. Such 
 a trial may cost the parties tens of thousands of 
 dollars for expert testimony alone, while the sen- 
 tence of the defendant will very likely be not more 
 than a two-hundred-and-fifty-dollar fine. Even so, 
 the integrity of the trade-mark has been sustained 
 and the swindler stamped as a criminal. 
 
 Fifty per cent or more of the work of the Special 
 Sessions is practically amplified police-court busi- 
 
72 THE PRISONER AT THE BAR 
 
 ness, but it is accomplished with an exactitude 
 and efficiency that makes much of that done in the 
 magistrates' courts appear crude indeed. The 
 lesson of this particular court is that police business 
 can be done speedily, effectively, and justly, pro- 
 vided the right men are selected to do it. 
 
 Fully seventy-five per cent of the criminals begin 
 with petty infractions of the law. A driver for an 
 iceman may "swipe" his comrade's horse blanket. 
 If he be convicted and sent to the penitentiary he 
 may learn to commit crimes of which he had never 
 dreamed in his driver days, when his highest ambi- 
 tion was to get a ticket to a "chowder" or to a 
 * ' grand ball. ' ' His next appearance may be in the 
 General Sessions charged with burglary, and his last 
 in the Supreme Court under indictment for murder. 
 If, on the other hand, having been found guilty, he be 
 merely reprimanded and paroled under a suspended 
 sentence, he will in all likelihood never appear in 
 court as a defendant again. Hence an opportunity, 
 greater even than that of the police justice, for the 
 exercise of a wise and humane discretion. 
 
 The multitude of prisoners who are unable to 
 employ counsel have created a bevy of lawyers, 
 abundantly able to look out for the interests of petty 
 offenders, who stand or sit near the bar and are 
 assigned by the court to the various defendants. A 
 whispered fifteen seconds' conversation with their 
 unfortunate client and they are enabled to take 
 charge of the case. Long experience has made them 
 almost as expert in estimating human nature as the 
 judges themselves, and they are familiar with every 
 trick of the trade which may raise a "reasonable 
 doubt." The leaders among them have skilful 
 
THE TEIAL OF MISDEMEANOBS 73 
 
 " runners " who haunt the police courts and the cor- 
 ridors of the building, heralding the virtues and 
 successes of their masters, handing cards to pros- 
 pective clients, and currying business in every con- 
 ceivable manner. Observing a forlorn person, who 
 timidly responds when his case is called, the runner 
 instantly offers him the services of the " biggest " 
 lawyer in the court for a five-, three-, or two-dollar 
 retainer. If the client escapes conviction he is sup- 
 posed to pay twenty-five dollars more and is dunned 
 until he does. This may seem petty business and 
 small pickings, but when one considers that ten 
 thousand odd cases are disposed of each year, one 
 sees that at even the modest fee of ten dollars per 
 case there is a hundred thousand dollars a year in 
 the Special Sessions waiting for somebody. 
 
 The best of these lawyers earn as much as five 
 thousand dollars per year, including their outside 
 and police-court business. The runner usually gets 
 nearly as much. Sometimes there will be a one- 
 hundred-dollar, a two-hundred-and-fifty-dollar, or 
 even a five-hundred-dollar fee. In reality there is 
 more money to be made in the police court than in 
 the Special Sessions, for it is when the offender has 
 just been caught and is in his first spasm of terror 
 that he is most ready to "give up." Police-court 
 fees are sometimes very high. 
 
 The most notable figure of this bar was Tom 
 Cherry, otherwise known as * i The Attorney-General 
 of the Special Sessions." When sober he was a 
 most capable, rough-and-ready, catch-as-catch-can, 
 police-court lawyer. His fame extended to every 
 magistrate 's court, and his business was so constant 
 that he never sat down, but stood at the bar from 
 
74 THE PRISONER AT THE BAR 
 
 the opening of court to its adjournment, defending 
 almost every prisoner who had money to pay a fee, 
 and being assigned to practically all those who had 
 not. His success was his undoing. Without any 
 knowledge of law, although he presumably had 
 passed the Bar examinations (Heaven knows how!), 
 his judgment of character, his ready wit, and his 
 quick tongue made him no unworthy antagonist for 
 a well-trained youngster. But Cherry never took 
 an unfair advantage, and his statement as to his 
 client's past, and sometimes as to his innocence, was 
 received without question by the court. It was a 
 boon to a new assistant to gain Cherry's confidence; 
 and it was a reproach to many that they did not 
 do so. 
 
 Cherry finally succumbed to his closest friend and 
 worst enemy drink. His periodic absences became 
 more and more frequent, and finally the word was 
 sadly whispered through the building that Cherry 
 had " passed. " His memory is still green and his 
 smiling face will never be forgotten by those who 
 knew him. A rival attorney almost immediately 
 succeeded to his practice and his particular place 
 beside the bar, but the Court of Special Sessions is 
 not the same. 
 
 The practices of the shysters are the curse of the 
 lower courts, and their enormities are such that a 
 special cycle in Hades should be reserved for their 
 particular retribution. Preying upon ignorance and 
 vice, they become hardened to every appeal of 
 human sympathy and often deserve punishment a 
 thousand times more heavy than the miserable 
 wretches whom they make a pretence of defending. 
 They pervert justice and prostitute a sacred calling, 
 
THE TRIAL OF MISDEMEANOKS 75 
 
 extorting from their clients the uttermost farthing 
 by fear and false pretence. To show that this 
 charge is not ill-founded, the reader may take as an 
 example the practice of the shyster in dealing with 
 those unfortunate women who are the common prey 
 of the corrupt plain-clothes man and his conscience- 
 less ally the police-court lawyer. 
 
 Let us suppose that a certain section of the town 
 is, as the saying goes, "wide open," and the police 
 are regularly collecting protection money according 
 to the approved method of "the system. " The 
 houses which pay up are left undisturbed and all 
 do pay up. So does the little street walker who 
 plies her trade in the open. Some citizen or news- 
 paper makes a complaint that the police are not 
 doing their duty. There is a bare chance that po- 
 litical capital will be made of it and word is sent 
 to the captain of the precinct to "get busy." He 
 sends for the plain-clothes man, and tells him ' ' there 
 are not arrests enough." The officer answers that 
 "everything is quiet." "Get busy," says the cap- 
 tain. A scapegoat is necessary and so the officer 
 goes out and, leaving the bawdy-houses untroubled, 
 tracks some miserable creature to her lonely room 
 and there arrests her under the pretence that she 
 is violating the "Tenement House Law." Now the 
 worst that would happen to such an unfortunate 
 would be, having "waived examination" before the 
 magistrate, and pleaded guilty in Special Sessions, 
 to be fined twenty-five or fifty dollars. The girl 
 usually does not know this. When she is brought 
 in under arrest the keeper "tips off" the runner 
 for some lawyer, who first frightens her into be- 
 lieving that a long term of imprisonment confronts 
 
76 THE PEISONEE AT THE BAE 
 
 her, and then introduces his master. The latter in 
 turn offers to get her out on bail, meantime deter- 
 mining by an expert cross-examination, at which 
 he is a past master, exactly how much money she 
 has in the world. He then proceeds to acquire this 
 by every means at his command. An actual case 
 will illustrate what follows. 
 
 A young girl who had fallen into evil ways, but 
 who had never been arrested before, was brought 
 into the Jefferson Market prison. She had saved 
 five hundred dollars with which she intended the 
 following week to return to her native town in New 
 Hampshire and start life anew. The keeper led 
 her to believe that she would be imprisoned in the 
 penitentiary for nearly a year unless she could 
 4 'beat the case." One of these buzzards learned of 
 her distress and offered to procure bail for her for 
 the sum of fifty dollars. A straw bondsman was 
 produced, and she paid him the money and was lib- 
 erated. Meanwhile the lawyer had learned of the 
 existence of her five hundred dollars. By terrify- 
 ing her with all sorts of stories as to what would 
 possibly happen to her, he succeeded in inducing 
 her to pay him three hundred as a retainer to 
 appear for her at the hearing in the magistrate's 
 court. He had guaranteed to get her off then and 
 there, but when her case was called he happened to 
 be engaged in reading a newspaper and, looking 
 up from where he was sitting, merely remarked, 
 "Waives examination, your honor." The girl had 
 only one hundred and fifty dollars left, and as yet 
 had had no defence, but the shyster now demanded 
 and received one hundred dollars more for repre- 
 senting her in the Special Sessions. She now had 
 
THE TEIAL OF MISDEMEANOES 77 
 
 but fifty dollars. Immediately after the hearing in 
 the police court the bondsman l ' surrendered " her 
 and she was locked up in the Tombs pending her 
 trial, for she had not money enough to secure an- 
 other bail bond. Here she languished three or four 
 days. When at last her case appeared upon the 
 calendar the shyster did not even take the trouble 
 to come to court himself, but telephoned to another 
 harpie that she still had fifty dollars, telling him 
 to ' ' take her on. ' ' Abandoned by her counsel, alone 
 and in prison, she gave up the last cent she had, hop- 
 ing thus still to escape the dreadful fate predicted 
 for her. When she was called to the bar the second 
 lawyer informed her she had no defence and the best 
 thing she could do was to plead guilty. This she 
 did and was fined twenty-five dollars, but, having 
 now no money, was compelled to serve out her time, 
 a day for each dollar, in the City Prison, at the 
 end of which time she was cast penniless upon the 
 streets. 
 
 Many an originally honest young fellow who, in 
 a sincere attempt to build up a small practice, has 
 haunted the magistrate's court and secured petty 
 police business has been gradually drawn into the 
 vortex of crime until he is even more tainted than 
 those whom he defends. The Legal Aid Society, 
 which, so far as the writer is aware, is the only 
 bona fide charitable organization existing in New 
 York for the purpose of assisting impoverished per- 
 sons to secure legal counsel, does not undertake any 
 criminal business. No greater service could be ren- 
 dered to the community than by some society or- 
 ganized to protect helpless defendants who have 
 fallen victims to the vultures who prey upon the 
 
78 THE PRISONER AT THE BAR 
 
 prison pens. At the present time the official prose- 
 cutor himself is the only person to whom one charged 
 with a criminal offence can turn with any hope of 
 relief from his own lawyer, and if the number of 
 cases were known where the prosecutor has be- 
 friended the prosecuted the eyes of jurors and of 
 the public would be opened to the real spirit which 
 animates a fair-minded district attorney. 
 
 A favorite trick of shysters if they have an im- 
 prisoned client who still refuses to "give up," is to 
 plead "not guilty and not ready " and thus have 
 the case adjourned until they squeeze their victim 
 dry. A defendant who has any money is never per- 
 mitted to go to trial or even to plead guilty before 
 his money is entirely exhausted. 
 
 This is not romance, it is practice. The men who 
 do these things can be seen any day in every police 
 court in New York heartless, cynical, merciless. 
 Lying and deceit are their stock in trade, corruption 
 their daily food. Within three months one of these 
 gentry not only compelled an eighteen-year-old girl 
 to give him a fine Etruscan ring which she had in- 
 herited, and which he pawned for five dollars, but 
 stripped her of a new silk petticoat which he car- 
 ried away in a newspaper as a fee. This woman 
 served ten days because she could not pay her fine. 
 Another woman who had stolen an umbrella gave 
 a shyster her watch. He pawned it and then aban- 
 doned her, when she came up for trial. Each of 
 these men has a special line of clients which he 
 serves, either because he is supposed to be particu- 
 larly expert in such cases or because he is regularly 
 retained by the " trust " which they compose. Thus 
 the East Side pickpockets have one attorney, the 
 
THE TEIAL OF MISDEMEANOES 79 
 
 " green-goods " men another, the opium sellers a 
 third, the abortionists a fourth, while every " short 
 changing, " "thimble rigging," or "flim-flam" case 
 sees the same lawyer for the defence. 
 
 It is a fact of considerable significance that most 
 retailers charged with selling adulterated milk are 
 defended by the same lawyers. The large milk com- 
 panies apparently invite the trade of the small 
 dealer by offering him cheap milk, and a guarantee 
 that if he is caught selling their product they will 
 not only defend him but, if he be found guilty, will 
 pay his fine. Who does the adulterating? The 
 company or the retailer! It is almost impossible 
 to say. Nevertheless, if lack of evidence prevents 
 proceedings against the companies themselves, the 
 next best thing is to punish the dealers who act as 
 their agents, under the guise of doing an independ- 
 ent business. If prison sentences were invariably 
 inflicted in such cases the dealers would soon find 
 their miserable business as unhealthy as do the con- 
 sumers who buy from them. 
 
 Some very disreputable, but, nevertheless, highly 
 amusing tricks are invoked by wily practitioners in 
 the Special Sessions to secure the release of their 
 clients. One of the most adroit is to secure adjourn- 
 ments from day to day on various pretexts until 
 the patience of the complaining witness is nearly 
 exhausted. When the case is at last about to be 
 called for trial the lawyer tells his runner to go into 
 the corridor outside the court-room and send in 
 word that some one desires to see the complainant. 
 The complainant goes out to see what is wanted. In 
 the meantime the case is moved for trial, and when 
 his name is called he naturally fails to respond. The 
 
80 THE PRISONER AT THE BAR 
 
 shyster, in a most aggrieved tone, then informs the 
 court that the defendant "is a hard-working m^i 
 who has already been dragged down to court four 
 or five times, " on each occasion being compelled to 
 lose an entire day's pay; that he is the only support 
 of an invalid wife, an aged mother, six children, and 
 an imbecile brother; that the defence is and always 
 has been ready to proceed with the case ; that simply 
 in the interests of justice he requests that the de- 
 fendant be discharged on his own recognizance or 
 acquitted. In many cases this motion is granted 
 and the complainant hurries back into the court- 
 room just in time to meet the defendant making a 
 triumphal exit. 
 
 The tears and laughter of the police courts are the 
 tears and laughter of the Sessions. The Miserables 
 of Hugo are the miserables of to-day. Jean Val- 
 jean, Fantine, and Cosette haunt the corridors of 
 our courts. As well try to paint the sufferings and 
 experiences of mankind in a single picture as the 
 ten thousand yearly tragedies of the Special Ses- 
 sions in a single chapter. 
 
CHAPTEE VI 
 THE GRAND JURY 
 
 THE constitutions and laws of most of the States 
 of the Union provide that no person shall be 
 tried for a felony unless he shall first have been 
 'indicted for his offence by a grand jury. The de- 
 fendant may have been caught in the very act, have 
 freely acknowledged his guilt to the officer who ar- 
 rested him, have admitted it before the magistrate, 
 and have signed a full and complete confession of 
 his crime in every detail, yet he cannot be placed 
 on trial or his plea of guilty received until a body of 
 twenty-three intelligent, but exceedingly busy, gen- 
 tlemen, sitting together in a secluded chamber, have 
 solemnly deliberated upon the case. If they agree 
 with the prisoner in his contention that he is guilty 
 they thereupon file a diffuse and perplexing docu- 
 ment to that effect, which they have not read, and 
 probably would not understand if they had. The 
 proceeding has cost the county some additional ex- 
 pense and the defendant a day or two longer in jail, 
 and he has still to be tried before a petit jury, where 
 the evidence must be presented again at the greatest 
 length, and where the grand jury's action cannot 
 be considered in any way as affecting the issue. If, 
 on the other hand, the prisoner contends that he is 
 innocent, and yet the magistrate who has heard the 
 case thinks otherwise, the same twenty-three gentle- 
 men, hearing, as a general rule, only the evidence 
 
 81 
 
82 THE PEISONEE AT THE BAB 
 
 in his disfavor, will almost inevitably return a true 
 bill against him, and he will be put to his trial. Of 
 all the features of modern criminal procedure, bar 
 only the office of coroner, the grand jury, or "The 
 Grand Inquest/' as it is called, is the most archaic. 
 While without any doubt in thinly populated dis- 
 tricts it may still be adequate, in crowded cities 
 like New York, where the volume of criminal busi- 
 ness is overwhelming, it has in large measure ceased 
 to be either effective or desirable so far as the ordi- 
 nary run of criminal cases is concerned. 
 
 Some States manage to dispense entirely with the 
 services of the grand jury. The prosecutor receives 
 the complaint against the accused directly from the 
 committing magistrate, files an information and 
 puts the prisoner on trial. Truly this would seem 
 both cheap and expeditious. 
 
 Among the dusty archives of the Court of General 
 Sessions lie a pile of parchment-bound volumes 
 which contain the earliest minutes of criminal pro- 
 ceedings in the county. The first page of the most 
 ancient of these presents an account of the empanel- 
 ling of the first grand jury of which any record now 
 remains in New York. It reads as follows : 
 
 PROVINCE OF NEW YORK. Att the General Quarter 
 Sessions of our Lord the King held att the Citty Hall 
 in the Citty of New- York for Our Sayd Lord the King, 
 and the body of the sayd Citty and County of New- 
 York, that is to say on Tuesday the 8th day of 
 February, in the Six and thirtieth year of the Reigne 
 of our Sovereigne Lord Charles the Second of England, 
 Scottland, France and Ireland, King, Defender of the 
 faith, & before Cornelis Steenyck, Esq r , May r of the sayd 
 Citty, and James Graham, Recorder, Nicholas Bayard, 
 John Inians, W m Pinho . . . Guyl. Ver Plank, 
 Jn Robinson and William Cox, Esq re , Aldermen and 
 
THE GRAND JUEY 83 
 
 Justices of the Peace of the sayd Citty and County, 
 Commisionated by Authority und r his Royal Highness 
 James Duke of York and Albany Lord Propriet' of 
 the Province afores d . 
 
 . 
 
 The Grand Jury " which consisted of Nineteen [?],* was 
 Called and Sworne According to An Oath Agreed On by 
 the Court, and was as followe th , viz".: 
 
 "You Shall diligently Enquire and true Presentm* make 
 of all Such things and matt" as shall be giuen you in 
 Charge Or shall Come to your knowledge this Present 
 Servise. The Kings, His Royal Highness Lord Propriet' 
 and this City Councell YoWallows and you r owne you 
 shall well and Truely keep "Secreet. You shall present 
 nothing for Malace or Euill will that you Bare to Any 
 Person, Neither shall you Leaue anything unpresented 
 for Loue, favour, affection Reward Or Any hopes thereof, 
 but in all things that shall Concerne this Present Servise 
 you Shall Present the truth the whole truth and nothing 
 but the truth, According to $o r best skill and knowledge 
 Soe help you God. 
 
 M r . Francis Rumbout was Apoynted foreman. 
 
 The Recorder . . . read to them the' Charge wh ch 
 was Deliuered in Writeing. 
 
 Then follows the quaint record of the first pre- 
 sentment or bill of indictment: 
 
 John Robinson, 1 For Our Lord the Kings sworne to 
 W m Cox, ! declare to the grand jury w* they 
 
 Richard Elliott, F know about the Burgulary Henry 
 Darby Bryan. j Thomassen is Charged with. 
 
 The Bill Against him was Committed to the Grand 
 Jury w* the Exam ncon of the witnesses, and the Court 
 adjourned till four in the afternoone. 
 
 In the Afternoone the Court being opened the In- 
 dictm* ag st Henry Thomassen was returned by the Grand 
 Jury Billa vera. 
 
 Henry Thomassen being Called for the Sherriff re- 
 turnes that he has Broak Prison and made his Escape, 
 and Desires tyme till the next Sessions to Persue him. 
 
 * Record illegible. 
 
84 THE PRISONER AT THE BAR 
 
 Ordered That the Sherriff doe make Persuits after the 
 prison 1 to haue him att the next session to abide his 
 Tryall. The Grand Jury was dismissed from further 
 Attendance till y e next sessions and y e court dissolved. 
 
 It is interesting to observe that on the 13th day of 
 the November following, in the first year of "the 
 Reigne of our Sovereignee Lord James the Second 
 of England, Scotland, France, and Ireland/' etc., 
 the "sherriff" having apparently made good "per- 
 suits" of Thomassen and effected his capture, the 
 latter was brought to the bar and duly charged : 
 
 "For that he not haveing the feare of God before his 
 eyes, but being Lead by the instigation of the divell 
 . . . by force and armes the Cellar belonging to and 
 being parte of the dwelling house of William Cox of the 
 Citty of New-Yorke merchant in the night Season, To 
 witt, between or about the houres of tenn or Eleven of the 
 Clock . . . feloniously and burgularly did breake and 
 into the same did Enter with an intent to steale and spoile 
 the goods and Chatties of the said William Cox contrary 
 to the peace of our said sovereigne Lord the King his 
 Crowne and dignity." 
 
 Having pleaded not guilty and put himself upon 
 the county a jury was empanelled who swore : 
 
 " That the said Henry Thomassen is guilty of the feleony 
 and burgularly aforesaid in the said inditement above 
 specifyed in manner and forme as above against him is 
 supposed, Therefore it is considered by the Court, that the 
 aforesaid Henry Thomassen be branded on the forehead 
 with the Letter B, and be whipped on the bare back 
 eleven Stripes on the fourteenth day of November instant 
 in the morning by Eleven of the Clock, before the City 
 Hall and pay all costs and charges of prosecution.' 7 
 
 The oath of the grand jurors, their general pro- 
 cedure, and the form of indictment are practically 
 the same up to the present day. 
 
 To appreciate fully just what part the grand jury 
 plays in the administration of criminal justice the 
 
THE GRAND JURY 
 
 85 
 
 reader should remember that almost all defendants 
 in criminal cases are brought immediately after 
 their arrest before a police magistrate and given, if 
 they so desire, an exhaustive hearing. If the magis- 
 trate thinks there is sufficient cause to believe the 
 prisoner has committed the crime charged against 
 him he is held (if the crime be a felony or a libel) 
 for the action of the grand jury, or if it be a misde- 
 meanor, for whatever court tries such offences, in 
 New York County the Court of Special Sessions. Of 
 course it is the privilege of the defendant to be ad- 
 mitted to bail, sttve where the charge is one of mur- 
 der, until the proceedings against him result either 
 in his final discharge or his indictment, and, as has 
 been said before, once he is held for the grand jury 
 he cannot, even if he be a self-confessed criminal, 
 be tried or punished until that body has deliberated 
 upon his case. 
 
 The following table shows the number of arrests 
 for felony in New York County each year since 
 1900, the number of persons so arrested who were 
 1 ' held" by magistrates for the action of the grand 
 jury, and the number of indictments "found" by 
 that bodv : 
 
 Year 
 
 Number of 
 Arrests for 
 Felony 
 
 Number of 
 Persons "Held" 
 for Action of 
 Grand Jury 
 
 Number of 
 Indictments 
 Found 
 
 Population of 
 New York 
 County 
 
 1900 
 
 8 588 
 
 4 473 
 
 3,674 
 
 2,050,600 
 
 1901 
 1902 
 1903 
 
 8,435 
 9,465 
 9,939 
 
 4,395 
 5,020 
 4,372 
 
 4,210 
 3,890 
 3,898 
 
 2,095,116 
 2,139,632 
 2,186,017 
 
 1904 
 
 9238 
 
 3,452 
 
 3,950 
 
 2,235,060 
 
 1905 
 
 11,688 
 
 4,751 
 
 4,199 
 
 2,468,046 
 
 Total 
 
 93 740 
 
 47 193 
 
 42616 
 
 
 
 
 
 
 
 It may be of some interest to note how this in- 
 
86 THE PEISONEE AT THE BAR 
 
 quisitorial body is brought into being. Every year 
 a Board of Commissioners, consisting of the Mayor, 
 the Eecorder, the Presiding Justice of the Supreme 
 Court, and others, meet and make up a list of a 
 thousand names from which the grand jurors for the 
 year are to be drawn. These names are placed in a 
 wheel and each month fifty of them are drawn out 
 at random by the County Clerk in the presence of 
 one of the judges of the General Sessions. From 
 these fifty names the grand jury of the succeeding 
 month are chosen by lot. Of course the selection of 
 jurors must perforce be made with ostensible impar- 
 tiality, for a grand jury which was amenable to 
 political influence would render the administration 
 of justice worse than a farce. Such a condition has 
 not been unknown. 
 
 Not so very long ago Eecorder Goff observed that 
 certain representative gentlemen who had served 
 on the grand jury for years were no longer drawn. 
 In view of the significance of the political situation 
 at that time the fact seemed peculiar and he de- 
 termined to make a personal investigation. Accord- 
 ingly at the next monthly drawing the Eecorder 
 inserted his own hand in the wheel and found that 
 some of the slips were heavier and of a different 
 texture from the others, and could easily be sepa- 
 rated by the sense of touch. The inference was 
 obvious. Undoubtedly the opportunity thus to elect 
 between the sheep and the goats had been made 
 good use of. No excuse for this astounding situ- 
 ation was offered, and all the slips at once were de- 
 stroyed by order of the court. Later on it was ex- 
 plained that the manufacturer "had not been able 
 to furnish all the slips of the same material/' 
 
THE GRAND JURY 87 
 
 As but twenty-three grand jurymen are selected 
 each month, only two hundred and seventy-six out 
 of the total number chosen ever actually serve. The 
 judge appoints a foreman, usually a man of some 
 previous experience, and the jury are sworn. The 
 court then delivers a charge and reads or calls to 
 their attention certain sections from the Code of 
 Criminal Procedure. If there is any matter of pub- 
 lic notoriety which comes within their purvue, such 
 as crimes against the elective franchise, or insur- 
 ance, banking, or other frauds, he is likely to dwell 
 upon the necessity of paying particular attention to 
 this variety of offence. The jury then retire to the 
 rooms prepared for them and begin their secret de- 
 libei^tions. 
 
 They are now prepared to hear the evidence 
 against all persons charged with felonies or libel, 
 who have been held for their action by the police 
 magistrates. The original papers in all these cases 
 have already been copied under the direction of the 
 district attorney and the witnesses subpoanaed to 
 attend and give their testimony. These subpoenas 
 are served by attaches of the prosecutor 's office, 
 commonly known as "county detectives, " or, more 
 popularly, "sleuths." It should be observed that 
 the district attorney in fact decides what cases shall 
 be submitted, and prepares the daily calendar of the 
 grand jury, which as a rule does not know in ad- 
 vance what business it is to consider. In addition 
 to this, the district attorney draws, usually in ad- 
 vance, all the indictments. 
 
 The indictment may be said to be the most im- 
 portant individual paper in criminal procedure, for 
 upon its sufficiency depends the question of whether 
 
88 THE PRISONER AT THE BAB 
 
 or not a defendant may be tried, or if tried and con- 
 victed, sentenced to prison. The general form of 
 these instruments has varied little during many cen- 
 turies. They are as archaic as the grand jury itself. 
 Originally the draughter of documents was paid by 
 the word, and the more prolix he could be the better 
 it was for him. This fact naturally influenced the 
 form of all legal papers. His sins are still indi- 
 rectly visited upon us. Moreover, not the best 
 forms, but the worst are our inheritance, for usually 
 only the sufficiency of the worst is questioned and 
 tested by appeal. If an indictment is not absolutely 
 defective, it is sustained by the higher courts, and 
 having been passed upon and not found want- 
 ing, immediately becomes a model for all future 
 draughtsmen. It may fairly be said that the more 
 faulty an indictment is (so long as it be not actually 
 void), the better its chance of immortality. 
 
 Probably the simplest indictment which the grand 
 jury can find is one for larceny. Let us suppose 
 that a servant, Maria Holohan, has stolen the teapot 
 of her master, the Hon. Silas Appleboy. The grand 
 jury present an indictment against her in the follow- 
 ing terms: 
 
 Court of General Sessions of the Peace in and for the 
 County of New York. The People of the State of New 
 York against Maria Holohan. 
 
 The People of the State of New York, by this indictment, 
 accuse Maria Holohan of the crime of grand larceny in 
 the second degree committed as follows: The said Maria 
 Holohan, late of the Borough of Manhattan of the City of 
 New York, in the County of New York, aforesaid, on the 
 1st day of April, in the year of our Lord, One thousand, 
 nine hundred and seven, at the Borough and County afore- 
 said, one teapot of the value of $50, of the goods, chattels 
 and personal property of one Silas Appleboy, then and there 
 
THE GRAND JURY 89 
 
 being found, then and there feloniously did steal, take 
 and carry away, against the form of the statute in such 
 case made and provided and against the peace of the People 
 of the State of New York and their dignity. 
 
 A. BIRD, 
 District Attorney. 
 
 This is merely saying that ' t the grand jury charge 
 Maria Holohan with stealing the silver teapot of 
 Silas Appleboy on April 1, 1907." It is the shortest 
 indictment possible. A complicated indictment may 
 fill hundreds of pages. 
 
 Many interesting old indictments are on file 
 among the records of the General Sessions; and if 
 one can judge by the frequency with which the names 
 of divers ungodly and reckless Philadelphians are 
 inscribed upon their pages, "the general reputa- 
 tion " of the City of Brotherly Love for "peace and 
 quiet " must have considerably improved during the 
 past two hundred years. 
 
 As a usual thing we find among the papers filed 
 with the indictment the original "information" 
 sworn to by the aggrieved party. Give heed to the 
 "unmerciful conduct" of Mr. William Miller: 
 
 CITY OF NEW ) 
 YORK ss: [ 
 
 Mat hew O'Brien of the City of New York Mariner maketh 
 Oath and Saith that on Sunday night the first Day of 
 November instant he this Deponent being at the Tavern 
 kept by Francis King on the Dock between the Hours 
 of Ten and Eleven of the Clock and having a dispute 
 with the Landlord relative to a French Crown dropped 
 by this Deponent one William Miller who this Deponent 
 heard and believes is Marker to a Billiard Table in Phila- 
 delphia immediately challenged this Dep*. to fight him 
 and stopped this Deponent from going out either at the 
 Door or window altho. he made frequent attempts for that 
 purpose and thereupon knocked this Deponent down, and 
 
90 THE PEISONEE AT THE BAK 
 
 beat kicked and wounded him in a desperate and unmerci- 
 ful manner. This Dep 1 . Saith he also lost out of his pocket 
 the whole of his Money then about him consisting of five 
 Guineas in Gold two Crown pieces and a Note of hand for 
 ten guineas. And further saith not. 
 
 Mathew O'Brien. 
 Sworn the 1 Day of 
 Nov r . 1704 before me 
 Jn Broome, Jus* Peace. 
 
 The grand jury of to-day is the same old grand 
 jury that indicted William Miller ; and the cases are 
 piling up, piling up, at the rate of three, four, five, 
 or even six hundred a month. 
 
 What would Mr. Francis Eumbout, who was 
 "apoynted" foreman of that earliest grand jury, 
 have said if he had been obliged to pass upon six 
 hundred cases in a month! The time which could 
 actually be given to the consideration of any par- 
 ticular charge under such circumstances would aver- 
 age about six minutes! 
 
 For example, Giuseppe Candido, having been 
 summoned to appear suddenly, finds himself stand- 
 ing in the centre of a large room around which are 
 arranged a semi-circle of inquisitors. 
 
 He states where he lives, what his business is, 
 that he knows Michael Angelo Spaghetti, and that 
 the latter cut him in the shoulder in a quarrel over 
 a glass of beer. He is then excused. The grand 
 jury take a vote and Spaghetti is indicted for "wil- 
 fully and feloniously committing an assault with 
 intent to kill." Generally only one side of the case 
 is heard. There is very little attempt made to hold 
 the witnesses down to the strict rules of evidence. 
 It is all ex parte. "L' evidence at jurie est que 
 cunque chose que serve le partie a prover I'issue 
 
THE GRAND JURY 91 
 
 pur luy," as Henry Finch put it at the beginning 
 of the seventeenth century. 
 
 Once in a great while, if there is something a lit- 
 tle peculiar in the charge or in the manner in which 
 the witnesses give their testimony, the jurors may 
 become suspicious and send out for other witnesses 
 or possibly for the defendant himself. Of course he 
 cannot be compelled to testify, but usually he is glad 
 of a chance to explain away the accusation if he can. 
 Perchance the inquisitors refuse to indict. But what 
 a waste of time for twenty-three busy men ! And as 
 a rule what trivial matters are brought to their at- 
 tention ! 
 
 Most of the cases dismissed are so inherently 
 weak that the district attorney would himself have 
 discharged the defendants of his own motion, but 
 the action of the grand jury saves him the trouble 
 and the odium, if any, and diffuses it among an irre- 
 sponsible body. The same thing is true of indict- 
 ments found against influential persons, the re- 
 sponsibility is with twenty-three, not merely one. 
 
 But if the grand jury is to exist at all, it must be 
 constituted, and required to act, in accordance with 
 the law. The indictment is invalid if there be on the 
 grand jury one who has not the proper qualification 
 to sit, or if an unauthorized person be present, or 
 if the evidence is not legally sufficient. Even if the 
 defendant be as guilty as the Father of Sin, he may 
 make a motion to dismiss the indictment on any of 
 these grounds, and, whether the point be well taken 
 or no, the case may in consequence be delayed for 
 weeks. Where the defendant has the means to em- 
 ploy astute and learned counsel, he may retard his 
 trial for weeks, or even months, by questioning the 
 
92 THE PKISONER AT THE BAR 
 
 proceedings of the grand jury which found the in- 
 dictment against him. 
 
 For example, when Fire Commissioner John J. 
 Scannel was indicted for conspiracy to defraud the 
 city of New York, his lawyers ferreted out the fact 
 that one of the grand jurors who had found the in- 
 dictment lived a large portion of the year in the 
 town of New Eochelle. When the defendant was 
 called upon to plead to his indictment the lawyers 
 offered "a plea in abatement," although the law 
 expressly provides that no pleas save of "guilty" 
 or "not guilty" or of "autrefois acquit" may now 
 be entered. They insisted, however, on their right 
 to such a plea and the matter was delayed for a 
 long time. Their plea having been refused they 
 then moved to dismiss the indictment because of the 
 alleged irregularity in having this juror present who 
 spent his summers at the seashore. The determina- 
 tion of this motion took months. How like the situ- 
 ation to that which existed in 1433, when a statute 
 was enacted in order to remedy, if possible, some- 
 what similar abuses. 
 
 ". . . When the Grand Jury appears and is ready to 
 pass, a tenant or defendant or one of the petit jury pleads 
 false pleas not tryable by the Grand Jury, and so delays 
 proceedings until this be tried. When this is settled for 
 the plaintiff, another pleads a like false plea since the last 
 continuance; and so each of the defendants, tenants, or 
 jurors, one after another, may plead and delay the Grand 
 Jury; and although all be false and feigned, the Common 
 Law has no penalty. This has caused great vexation and 
 travail to the grand juries, and plaintiffs have been so im- 
 poverished that they could not pursue their cases, and jurors 
 are more emboldened to swear falsely." * 
 
 *The historical development of the grand jury is highly interesting. 
 Originally the assize at which the knights assembled was not unlike 
 a sort of county parliament and all manner of matters were submitted 
 
THE GRAND JUEY 93 
 
 A substantial proportion of the delays in criminal 
 procedure are due to the interminable motions based 
 upon alleged irregularities in the constitution and 
 action of the grand jury, and the insufficiency of 
 indictments. Such delays would vanish with the 
 abolition of that body. 
 
 But beyond its general power to investigate spe- 
 cific charges of crime laid before it, the grand jury 
 constitutes the only general inquisitorial body that 
 we have, and its value and services in this respect 
 must not be overlooked. It is highly important that 
 the power should reside in some responsible body 
 to summon witnesses and compel testimony anent 
 suspected offences, conspiracies, and official miscon- 
 duct. This is precisely what the grand jury did as 
 
 to them. Gradually as the jury developed out of this unorderly 
 gathering together, the sheriffs got into the habit of summoning only 
 enough men to form the grand jury and as many petty juries (when 
 those came into existence) as might be needed. 
 
 In the beginning private vengeance was the moving cause of all 
 criminal procedure. The aggrieved party made a direct appeal to 
 the county and the issue was fought out, the complainant and defend- 
 ant appearing in person or by champions. This was exceedingly 
 unsatisfactory for many reasons, among others that not seldom a 
 rich man would hire all the champions within reaching distance and 
 the poor man be left without any, which suggests the somewhat similar 
 practice of many wealthy litigants at the present day. But this mode 
 of individual redress colored all English procedure and is the direct 
 cause which makes English criminal trials in so many ways resemble 
 private litigation. Private vengeance was at the bottom of it. 
 
 When the "county" or the public were the accusers, a mere ac- 
 cusation was practically equivalent to a conviction subject to the 
 chance of the defendant's escaping by a favorable termination of 
 "the ordeal of water." But "the ordeal" in time died out, just as 
 did wager of battle, and something had to take its place. This was 
 the jury. 
 
 From very early times we find "grand" or "accusing" juries pre- 
 senting charges for the trial jury to dispose of, although the accusing 
 jury frequently acted as trial jury as well. By 1212 it had become 
 customary to submit a charge found by a presenting jury to a larger 
 combination jury which included the original body which had pre- 
 sented the charge. This enlarged jury, usually composed of a jury 
 from another "hundred" and "the four vills," "delivered a unanimous 
 verdict. By 1300 it had begun to be the privilege of an accused to 
 
94 THE PRISONER AT THE BAR 
 
 far back as 1300, when it acted as a " suspecting " 
 jury. Only through some such power can a rumor 
 of crime, unsubstantial and intangible in itself, be 
 traced to its source and the knowledge of those who 
 can testify as to the perpetration of it secured at 
 first hand. 
 
 Acting within its legal powers as an investigat- 
 ing body, the grand jury has a vast power and can 
 be immensely useful to the community, but when it 
 attempts to do more, its action has no more validity 
 and is entitled to no more respect than that of any 
 
 "challenge" those who had presented the charge against him, but 
 it was the approved practice to try an accused by some at least of those 
 who had presented him. 
 
 " The four knights were called, who came to the bar girt with 
 swords (above their garments) and were charged to choose twelve 
 knights girt with swords for themselves and the others and the 
 justices ordered the parties to go with the knights into a chamber 
 to choose or to declare their challenges of the others chosen by the 
 four, for after the return of the panel so made by the four knights 
 the parties shall have no challenge to panel or polls before the jus- 
 tices." (1406) Y. B. 7 H. IV, 20, 28. 
 
 The idea seemed to be that unless there were a few on the jury 
 who had already formed a provisional opinion as to his guilt the prose- 
 cution would not have a fair chance. In Willoughby's case in 1340, 
 Parning, J. naively remarked, "In such case the inquest should be 
 taken by the indictors (the accusers) and others. Certainly if the 
 indictors be not there it is not well for the King." In 1351 by St. 
 25 Edw. Ill, c. 3, it was enacted that "no indictor be put on an in- 
 quest upon the deliverance of one indicted for trespass or felony, if 
 he be challenged for this cause by the party indicted." Persons 
 "presented" or accused could "put themselves" upon different coun- 
 ties, that is to say, could submit their case to juries drawn from such 
 counties, with certain limitations, as they might elect. Thus we find 
 a case where one having been "presented" by an accusing jury "puts 
 himself on the County of Surrey and on all men in England who 
 know him." At Easter came riding twenty-four knights from Surrey 
 at the king's summons who promptly found him to be a robber, 
 and, says the record, "Since he put himself upon these, let him be 
 hanged." 
 
 There is a criminal case in Y. B. 30 & 31 Edw. I, 528, which throws 
 a good light on the procedure of the time. W. was the stabler of J.'s 
 horse and had been kicked, while trying to mount, so that he died. 
 The horse thereupon became forfeit to the king as a deodand. The 
 jury accused J. of keeping the horse in spite of this and also charged 
 him with having buried W. without calling in the coroner. This he 
 denied and "put himself on the county." The judge, addressing the 
 
THE GBAND JUEY 95 
 
 other self-constituted inquisitorial body of intelli- 
 gent citizens. 
 
 A belief is quite prevalent, however, among grand 
 jurymen that it is their duty not only to ascertain 
 what crimes have been committed and to find indict- 
 ments for them, but to act as the censors of the pub- 
 lic morals, as watchdogs of the public treasury, as 
 the promoters of legislation, and generally as the 
 conservators of the public interests. This impres- 
 sion is entirely erroneous, and yet it is surprising 
 to what an extent grand jurors imagine that because 
 
 jury, which was probably the same that had made the accusation, 
 charged as follows: 
 
 ''If W. died from the kick of the horse, the horse would be deo- 
 dand. If not it would be John's. If the king should lose through 
 you what rightly belongs to him, you would be perjured. If 
 you should take away from John what is his, you would commit 
 a mortal sin. Therefore, by the oath you have made, disclose 
 and tell us the truth, whether the said W. died of the horse's 
 kick or not. If you find that he did, tell us in whose hands is 
 the deodand horse and what he is worth; and whether the said 
 W. was buried without a view of the coroner." 
 All things considered a pretty good charge. 
 
 Gradually, and in large measure because the "ordeal" had disap- 
 peared and the grand jury as a distinct body had been fully estab- 
 lished, no method of ascertaining the truth of an accusation was left, 
 and a mere presentment in fact amounted to a conviction, so that 
 the need of some other jury to pass upon the issue was apparent. 
 Out of this need the modern petty jury developed. 
 
 In course of time the accusing jury became as it is now, a distinct 
 and separate body, deliberating secretly, its members being no longer 
 permitted to sit as trial jurors. They acted on common report, their 
 own personal information, and upon the application of injured parties, 
 and initiated most criminal proceedings. It was necessary for some 
 one to ferret out crime and hold the perpetrators for trial, and the 
 jury did practically the whole business. As the years went on the 
 jury became more and more a purely ex parte accusing body with 
 practically no judicial supervision and receiving about what it saw 
 fit as evidence. From time to time the powers and the character of 
 the grand jury has been fiercely assailed. Two centuries ago it came 
 near receiving a knock-out blow, but it had become too firmly estab- 
 lished. In Shaftsbury's case, 8 How. St. Tr. 759 (1681), they were in 
 fact compelled to receive their evidence publicly in court, but their 
 vigorous protests and the failure of the attempt left the body all 
 the more securely entrenched in English procedure. Condensation from 
 Prof. J. B. Thayer's masterly chapter on " Trial by Jury and Its Devel- 
 opment" in his "Preliminary Treatise on the Law of Evidence." 
 
96 THE PRISONER AT THE BAR 
 
 of their office some particular sanctity attaches to 
 their enunciation of opinions in matters that do not 
 concern them. 
 
 A grand juror walking in the morning from his 
 house to the corner to take a street-car, accidentally 
 stumbles over a coal-hole cover ; he reports it to his 
 associates; many of them know persons who have 
 stumbled over coal-hole covers ; they talk the matter 
 over and decide that there should be no coal-holes, 
 since with the abolition of the coal-hole the coal-hole 
 cover also would disappear. They call upon the 
 commissioner of public works to appear before 
 them and testify; upon the street-cleaning commis- 
 sioner; upon the commissioner of buildings; they 
 learn how many coal-holes there are in the city; 
 what their covers are made of; how they are fast- 
 ened or are not fastened in place; and some day 
 when the grand jury comes down into court, the 
 foreman arises and states that he has a present- 
 ment. The judge on the bench requests him to hand 
 it up; he delivers it to the clerk, who passes it to 
 the judge, who returns it to the clerk and directs 
 him to read it. The clerk stands; the grand jurors 
 stand; the clerk reads: 
 
 "To the Honorable John Smith, Presiding Justice 
 of the Court of General Sessions: The Grand Jury 
 of the County of New York respectfully present: 
 Our attention has been called to the large number 
 of unprotected and unguarded coal-holes existing 
 in the County of New York; we have called before 
 us a large number of witnesses and given much time 
 to the taking of testimony relative thereto ; we find 
 that in the past year ten thousand persons have lost 
 their lives through falling into improperly guarded 
 
THE GRAND JUEY 97 
 
 coal-holes, and that the records of the hospitals 
 show lists of over one hundred thousand others who 
 have been severely injured by similar catastrophies ; 
 while it is beyond the capacity of the mind of man 
 to comprehend the infinite number of those who have 
 been wounded, bruised, lacerated and contused by 
 similar accidents, to an extent not sufficient to ren- 
 der hospital aid necessary, etc." And such a pre- 
 sentment goes on with its statistics and figures and 
 ends with the recommendation that the legislature 
 pass a certain law, that the aldermen pass a certain 
 ordinance, that certain laws or certain ordinances 
 be repealed, or that other legislative interference 
 be had, or legislative action should be taken, or that 
 some city official or city officials do this or do that, 
 or that some department make such and such an 
 investigation and act thereon in such and such a 
 way, and concludes with the signature of the fore- 
 man and secretary of the grand jury. The court 
 then arises, bows to the grand jurors, says: "Gen- 
 tlemen, we have heard your presentment; I now 
 direct that it be placed on file in this court and that 
 copies thereof be forwarded forthwith by the clerks 
 to the heads of the appropriate departments. ' ' And 
 the grand jurors retire, imagining that in some way 
 they have contributed directly to the public weal. 
 
 An examination of the long list of presentments 
 on file in the office of the clerk of the Court of 
 General Sessions will show the diversified interests 
 to which the grand jury, acting as we have shown 
 as a merely self -constituted censor morum, has de- 
 voted its attention and in which it has consumed 
 many of its working hours in the past. So far as 
 we know, no action whatever has ever been taken 
 
98 THE PEISONEE AT THE BAB 
 
 upon any of these presentments. That at times they 
 may have done some good through calling to the 
 attention of the public press matters which other- 
 wise would not be under scrutiny, may be admitted ; 
 but the discussion of them in the press has usually 
 been as ephemeral as the existence of the grand 
 jury by which they were filed ; and in general it^may 
 be said that the only effect of a grand jury's med- 
 dling with these things is to detract from the dig- 
 nity of its office and the importance of the work 
 which it and it alone can lawfully do. 
 
 The lay reader will naturally be led to inquire 
 why this archaic institution which it costs so much 
 time and money to perpetuate, which causes so much 
 unnecessary inconvenience to witnesses and offers 
 so many technical opportunities for delay, which 
 frequently is ineffective and officious, and for the 
 most part concerns itself with the most trivial mat- 
 ters only, should not be abolished, and why pris- 
 oners charged with crime whose cases have been 
 properly examined by committing magistrates 
 should not be immediately placed upon their trial. 
 
 It is doubtful if any very convincing arguments 
 in favor of retaining the grand jury for the pur- 
 pose of indicting ordinary offenders can be ad- 
 vanced. That it should be continued for the 
 purposes of investigation, with power of indict- 
 ment, to be summoned when the need thereof 
 arises, is indisputable. But the original necessity 
 for the grand jury has disappeared with the on- 
 ward march of the centuries. In early days, when 
 the influence of the crown threatened the liberties 
 of the English freeman, and when judges and 
 magistrates owed their positions to royal favor, it 
 
THE GRAND JURY 99 
 
 was often difficult if not impossible to secure the 
 punishment of a criminal if he happened to be a 
 retainer or under the protection of those in power. 
 So, too, the defenceless subject might be accused 
 of crime by an influential person and haled to the 
 bar upon a baseless and malicious charge. Some 
 barrier was needed between the powerful and the 
 weak, and some tribunal before which the weak 
 could accuse the powerful of their wrongs. This 
 was supplied by the grand jury, which, ever chang- 
 ing its members and deliberating in secret, seemed 
 well calculated to safeguard the people's liberties. 
 But at present we need no such protection against 
 a government of and by the people, and indeed such 
 a body, deliberating secretly and hearing the evi- 
 dence against an accused person without giving him 
 the opportunity to be heard, seems strangely out of 
 harmony with the spirit of our institutions. 
 
 To-day, the grand jury, initiating a proceeding 
 against a citizen who may be ignorant that he is 
 even under suspicion, may be led to accuse him of 
 some foul crime upon the mere ex parte statement 
 of malicious witnesses, without giving him an oppor- 
 tunity to explain or contradict the evidence. The 
 mere charge of crime is often enough to ruin a 
 man forever. The argument that a suspected 
 person may escape before arrest unless the charge 
 is considered secretly, has in these days of tele- 
 graphs, railroads and extradition treaties little of 
 the force which it may have carried with it in 
 cruder times. Moreover, the possibility of indict- 
 ing public officials or others upon insufficient evi- 
 dence for political purposes, or for "moral effect," 
 would be done away with, and only those against 
 
100 THE PBISONER AT THE BAE 
 
 whom legal testimony made the charge reasonably 
 clear would be threatened with prosecution, and 
 then only when their defence had been heard by a 
 magistrate and held insufficient. 
 
 Prosecutors now prefer to take as few cases be- 
 fore their grand juries in the first instance as possi- 
 ble, and to send the man with a grievance, who 
 thinks he has some political pull and " wants to get 
 the fellow indicted anyway, " into the magistrate's 
 court to make good his charge. 
 
 Almost twenty-five per cent of the States in the 
 Union have modified their procedure in this regard 
 so as to conform to modern requirements. The 
 State constitutions of Indiana, Illinois, Iowa, Ne- 
 braska, Oregon and Colorado give the legislatures 
 the power to make laws dispensing with grand juries 
 in any case, and in California, Connecticut, Kansas, 
 Louisiana, Montana, South Dakota, Utah, Vermont, 
 Wisconsin and Wyoming constitutional provisions 
 exist permitting all criminal proceedings to be made 
 by information, or dispensing with grand juries in 
 certain cases. This is also true of the Federal Gov- 
 ernment. Experience has demonstrated that ample 
 protection is afforded the accused where the State 
 is permitted to prosecute those held to bail by an 
 examining magistrate upon proof of probable cause. 
 He is better protected than by a grand jury which 
 hears in secret only the evidence against him and 
 gives him no opportunity of explanation. 
 
 A system which would allow of the prosecution 
 of all felonies by information would do away with 
 the great and practically useless labor of our grand 
 jurors in the ordinary run of cases, would save 
 endless time and money to all concerned, and 
 
THE GRAND JUKY /< : ! iflj: 
 
 might still retain the grand jury for such purposes 
 as necessity requires. Justice would be more 
 speedy and just as effective if the prosecution of all 
 crimes were instituted before an examining magis- 
 trate, and the grand jury would then, at the sum- 
 mons of the court, meet to perform only those im- 
 portant and peculiar functions of investigation that 
 are consonant with its dignity and necessary to the 
 public weal. 
 
CHAPTEE VII 
 THE LAW'S DELAYS 
 
 "IF THE COOK SHOULD STEAL THE TEAPOT" 
 
 "I WOULD have her locked up and punished !" the 
 reader undoubtedly exclaims as he notes our title. 
 It is hardly likely, however, that he realizes the pos- 
 sible significance of such an undertaking. For the 
 edification, therefore, of those who have cooks and 
 teapots, and in order to be forewarned, if not fore- 
 armed, let us suppose that the worthy Mr. Apple- 
 boy has not only the domestic necessary for our case, 
 but also a family heirloom which is worth more than 
 twenty-five dollars, the requisite value to make its 
 abstraction, with felonious intent, grand larceny in 
 the second degree. 
 
 Mr. Appleboy, after a moderately hard day's 
 work, has been for an hour at the club, and is now 
 ascending his front steps. As he is about to place 
 the key in the door, he observes his cook, Maria, 
 making her exit from the area with some large ob- 
 ject concealed beneath her shawl. A flash from the 
 dying sun, setting over the elevated railroad tracks 
 of Sixth Avenue, betrays a telltale protruding 
 spout. Maria does not perceive her master, but the 
 latter, being of an inquiring disposition, descends 
 the steps and follows her down the street. She 
 hurries along upon her journey until, reaching 
 
 102 
 
THE LAW'S DELAYS 103 
 
 Eighth Avenue, she turns the corner and enters a 
 pawnshop. Mr. Appleboy, puffing, follows hard, and 
 opens the door just as Maria is in the act of receiv- 
 ing from the pawnbroker the sum of ten dollars. 
 She has the money in one hand, the teapot in the 
 other; she is caught in flagrante delicto, or, in the 
 modern equivalent, "with the goods on." 
 
 Maria shrieks and calls upon the saints. Apple- 
 boy, purple from his exertions, pounds the floor with 
 his gold-headed cane and fiercely inquires what she 
 means by going off with his silver teapot. In reply 
 Maria falls on her knees, breaks into tears, and con- 
 fesses her crime, offering no excuse, and suggesting 
 no palliating circumstance. She implores his for- 
 giveness, but Appleboy, righteously indignant, is ob- 
 durate. She could have stolen anything but his 
 grandmother's teapot, and he would have over- 
 looked it. The pawnbroker, who takes but a mild 
 interest in the proceedings, merely seizes the oppor- 
 tunity to remove from the cook's unresisting fingers 
 the roll of bills. 
 
 Appleboy resolves to do his duty. He will set 
 an example of good citizenship he will have her 
 arrested, locked up, and sent to prison. 
 
 "Summon a policeman!" he cries to the indiffer- 
 ent pawnbroker. 
 
 "Get one yourself!" replies the other. 
 
 Appleboy starts for the door, keeping one eye on 
 the prostrate Maria. Two blocks distant he sees 
 a stalwart officer in the act of conversing affably 
 with a street cleaner. At this moment an urchin 
 notices Maria couchant upon the floor. An expan- 
 sive grin takes possession of his features, and, plac- 
 ing his fingers to his mouth, he emits a shrill whistle. 
 
104 THE PRISONER AT THE BAE 
 
 Instantly, like a flight of vultures, a small army of 
 boys descend upon Appleboy, who now decides that 
 the only way to procure the policeman is to shout 
 for him. In his embarrassment he yells: "Stop 
 thief ! Stop thief ! Police ! ' ' but the officer pays no 
 attention. He is discussing Tommy Sullivan's chow- 
 der party of the night before. 
 
 "Say, mister, I'll get the copper for ye," shouts 
 some little fellow, and starts on a run up the avenue. 
 A few follow him and quickly corral the officer, who, 
 protesting, dawdles slowly in the direction of Mr. 
 Appleboy, swinging his club, and apparently tak- 
 ing little interest in their remarks. Meantime, the 
 pawnbroker has shut and locked the door. Maria, 
 within, is still in a state of coma. The much-annoyed 
 old gentleman is fast being surrounded by a dense 
 throng of loafers, tradesmen, ladies of the neighbor- 
 hood and pedestrians, while the street is blocked 
 with vagrant cabs and grocery carts. He wishes he 
 were at home in his comfortable library, but realizes 
 that he is in for it now, and must stick it out. 
 
 "Well, what do you want!" demands the officer, 
 pushing his way through the crowd until he 
 confronts the innocent cause of the disturbance. 
 "What are yer makin* all this row about, and 
 blockin' up the street fer?" 
 
 "Maria, my cook, stole my silver teapot," an- 
 swers Mr. Appleboy. "I caught her trying to sell 
 it in there. I ask that you place her under arrest." 
 
 "What's yer name?" asks the policeman. "Who 
 are yer anyway!" The crowd cheers delightedly, 
 for while the copper is not popular in the neighbor- 
 hood, an old swell like this is "nuts" for everybody. 
 
 "I am a citizen and a taxpayer," replies Mr. 
 
THE LAW'S DELAYS 105 
 
 Appleboy stiffly, "and I insist upon your doing your 
 duty and arresting this woman/' 
 
 "Aw, come on now and give us yer name," con- 
 tinues the officer. "You can't expec' me t 'arrest 
 a person unless I know who I'm doin' it fer. How 
 do / know yer ain't thro win' some game into 
 me!" 
 
 At this moment one of the boys shies a banana 
 peel at Mr. Appleboy 's tall hat. The latter, seeing 
 his disadvantage, responds : 
 
 "My name is Silas Appleboy, and I am a tax- 
 payer and a freeholder. I demand that you arrest 
 this woman." The policeman, somewhat impressed 
 by the other's vehemence and the statement that he 
 is a freeholder (the meaning of which the official 
 naturally does not understand), inquires a little 
 more genially where the lady is. 
 
 "In that shop," replies her master. The crowd, 
 with a whoop, rushes at the door, but the pawn- 
 broker is standing inside in an attitude of defence. 
 The policeman, closely followed by Appleboy, 
 pushes his way through the mob, and raps loudly. 
 
 "Stand back there, now," shouts the officer, wav- 
 ing his club. The small boys shrink back, leaving 
 Appleboy in the centre of the ring. The pawn- 
 broker opens the door. Maria is upon her knees, 
 calling vaguely upon Heaven to defend her. The 
 silver teapot reposes upon the counter. The officer 
 grasps Maria roughly by the shoulder and yanks 
 her to her feet. 
 
 "Get up there and pull yerself together!" he 
 exclaims. "What's yer name?" 
 
 "Me name is Maria Holohan," she replies hys- 
 terically. 
 
106 THE PRISONER AT THE BAR 
 
 "Do yer know that man?" continues the officer, 
 pointing at Appleboy. 
 
 "Shure, I know him," is the answer. "Haven't 
 I worked for him for fourteen years?" 
 
 "Did you steal his teapot?" asked the officer. 
 
 * ' Oh, Holy Mother ! Holy Mother ! ' ' wails Maria. 
 "I took a dhrop too much, an' shure I didn't know 
 what I was doin' at all, at all." 
 
 "Well, the first thing you'll do," remarks the 
 officer, " '11 be to walk to the house. Come on, 
 now!" And forthwith he drags Maria to the door, 
 and, holding her firmly by the wrist, marches her 
 upon the sidewalk. Mr. Appleboy, the teapot 
 clasped to his bosom, follows immediately behind. 
 Their appearance is greeted with vociferous ap- 
 proval by the waiting crowd, who fall in and escort 
 the group towards the police station. But Maria's 
 strength fails her, and, presently, with a groan she 
 collapses. Perhaps the drop too much has taken 
 effect in her legs. At all events, despite the efforts 
 of the officer, she refuses to move, and remains limp. 
 The crowd has now become so dense as entirely to 
 obstruct all traffic in the street, long lines of electric 
 cars leading in each direction up the avenue, motor- 
 men and conductors forming a strong adjunct to 
 those giving gratuitous advice. Two grocery wag- 
 ons get their wheels locked in the throng. Some one 
 telephones to the station house. At last the distant 
 clanging of the patrol is heard. The crowd scat- 
 ters, the carts and cabs extricate themselves, and 
 the "hurry-up wagon" backs to the sidewalk with 
 a flourish, two more coppers swinging on behind. 
 They bundle Maria unceremoniously inside, escort 
 her erstwhile employer with hardly more courtesy 
 
THE LAW'S DELAYS 107 
 
 into the same vehicle, and toss in the teapot: the 
 gong rings : and Mr. Appleboy starts upon his task 
 of bringing an evil-doer to justice, and proving him- 
 self worthy of the proud title of citizen. 
 
 The drive to the station seems hours long, and the 
 fumes of whiskey are very evident upon Maria. The 
 officers are taciturn. The nose has been knocked 
 off the teapot. Mr. Appleboy, holding himself tense 
 in his seat, endeavors not to be jostled against the 
 lady who has, previously, cooked his meals. Now 
 and again she addresses him in no complimentary 
 terms. She has by this time reached the belligerent 
 stage, although she has no thought of denying her 
 guilt. 
 
 The wagon draws up with a jerk in front of the 
 precinct station house. Into a second crowd of 
 gamins and loafers, Appleboy, still clutching the 
 noseless teapot, emerges. He is followed by two 
 policemen, half carrying, half supporting Maria. 
 The doorman allows the party to enter, while re- 
 pelling the inquisitive throng who would like to ac- 
 company them. 
 
 Once inside, Maria and her master, little distinc- 
 tion being made between them, are brought before 
 the sergeant, who reclines behind a desk upon an 
 elevated platform. This official interrogates Mr. 
 Appleboy somewhat brusquely as to his name, ad- 
 dress and the charge which he makes against the 
 defendant, laboriously copying the answers in the 
 "blotter." Maria, petrified with terror, absolutely 
 refuses to answer any questions, and mutters inco- 
 herently to herself. The sergeant, satisfied of Mr. 
 Appleboy 's respectability by reason of his highly 
 polished hat and gold-headed cane, commits the 
 
108 THE PRISONER AT THE BAR 
 
 prisoner to a cell to await the hearing before the 
 magistrate on the following morning. As the charge 
 is one of felony, and as none of her friends as yet 
 know of her detention or arrest, the question of her 
 release upon bail does not arise, and after the ser- 
 geant has directed Mr. Appleboy to attend at the 
 nearest police court the next morning at half-past 
 eight punctually, that gentleman escapes down the 
 steps of the precinct house, feeling that he has lived 
 through untold ages of misery. The crowd cheers 
 him as he descends, and he hastens homeward, the 
 joy of release tempered only by the prospective 
 agony of the morrow. The noseless teapot remains 
 in the custody of the sergeant at the station house. 
 We can imagine Appleboy telling the story to 
 his wife and children. How heroically he figures in 
 his own account of the proceedings! How pictur- 
 esquely penitent is Maria ! How dramatic her cap- 
 ture in the very act of disposing of the stolen prop- 
 erty! How the policemen cower at the majestic 
 Appleboy 's approach! By the time the old fellow 
 has taken his coffee and lighted his perfecto he is 
 almost restored to his former condition of pompous 
 dignity. His intention to vindicate his position as 
 a freeholder and to see that the law shall take its 
 course is revived, and he dreams of Maria hurt- 
 ling through the abyss with dozens of silver teapots 
 tied about her ample neck. 
 
 DELAY THE FIKST 
 
 The next morning Appleboy orders his carriage 
 and drives in state to the police court. His tall hat 
 secures him easy access to a long room with a 
 
THE LAW'S DELAYS > 109 
 
 low ceiling, in which the air is full of strange 
 odors. 
 
 Across the end of the court, two-thirds of the way 
 towards the front, stretches an iron grating through 
 which a gate admits police officers, local politicians, 
 lawyers and the witnesses in any examination actu- 
 ally in progress. He enters the room exactly at 
 eight-thirty. Already it is crowded, and, having no 
 business inside the gate, he is forced to sit upon a 
 bench in company with various friends of the divers 
 defendants who have been committed during the 
 night. 
 
 It is early as yet, and a substantial breakfast has 
 put Mr. Appleboy in an optimistic frame of mind. 
 Once the judge arrives how quickly the case will 
 be disposed of and our hero receive the thanks of 
 the magistrate for acting as he has done ! But alas ! 
 Already a long file of officers is forming at the left 
 of the desk behind the grating. Each officer has 
 located at a safe distance one or more "drunks" 
 or " disorderlies " whom he has gathered in during 
 the preceding evening, and who have spent the night 
 in the station house. The officers have recently 
 come off post and now are waiting sleepily for the 
 arrival of the magistrate to dispose of "The 
 Watch." 
 
 By a quarter to nine the line has reached im- 
 mense proportions. Twenty officers stand in single 
 file and the procession of prisoners reaches to the 
 doorway of the cells. In the meantime the jam in 
 the room itself has become greater, and the heat 
 and odors more oppressive. Mr. Appleboy wipes 
 his brow with his silk handkerchief. He wishes he 
 had brought his wife's smelling salts. 
 
110 THE PRISONER AT THE BAR 
 
 Presently he discerns amid the crowd inside the 
 railing the now familiar features of Pat, the officer, 
 who beckons him to come within. 
 
 Our friend rises to his feet to obey, but instantly 
 another officer bawls: "Sit down there, you!" and 
 Appleboy collapses. 
 
 "Hi, there, Rounds, let that old guy in, will ye?" 
 asks Pat good-naturedly. 
 
 The roundsman condescendingly nods to the griz- 
 zled guardian of the gate, who holds it open just wide 
 enough to allow our hero to squeeze through. 
 
 "Mornin'," remarks Pat, chewing vigorously. 
 
 "Good-morning, officer," replies Appleboy. 
 "Where is the prisoner?" 
 
 "She came in the wagon half an hour ago," says 
 Pat. "Step up while he makes out the complaint. 
 After that we'll arrange her." 
 
 So Pat and his complainant join the mob which 
 is besieging the clerk's desk, and finally secure 
 enough of that functionary's scattered attention to 
 induce him to draw up a brief statement of the facts 
 in the case. Pat disappears into the cells to emerge 
 in a few minutes, escorting the bewildered Maria. 
 She is then "arranged," which in police parlance 
 is to say she is arraigned. She has no counsel, and 
 evidently supposes her interrogator to be the 
 judge, for she insists on addressing him as "Yer 
 onner." The clerk briefly warns her of her rights 
 and puts the few necessary questions, which Maria 
 answers in a quavering voice. It is obvious that she 
 expects to be at once deported to Sing Sing or the 
 "Island." 
 "Name!" 
 
 "Maria Holohan, yer onner." 
 
THE LAW'S DELAYS 111 
 
 " Address I" 
 
 "Two East Seventy-first Strate, yer onner, wid 
 this man here." (Indicating Appleboy.) 
 
 "Occupation!" 
 
 "Shure, 'tis his cook, Oi am." ("Housework" 
 puts down the clerk.) 
 
 "How long have you lived at this last address?" 
 
 " Fourteen year, yer onner, come St. Michael's 
 Day." 
 
 "What have you to say, if anything, relative to 
 the charge against you!" 
 
 (Maria mutters incoherently) "Shure Oi took the 
 taypot, all right, all right." 
 
 "Guilty? "asks the clerk. 
 
 "Guilty," whispers Maria. 
 
 "That's all," says the other. "Stand back there 
 and give some one else a chance." 
 
 Pat, holding the papers in his hands, escorts Maria 
 to the end of the line, and Appleboy returns to his 
 seat. In his deposition he has stated that his occu- 
 pation is that of "Bank President" and he has in- 
 stantly observed a change of attitude in those about 
 him. "Bounds" even expels two unsavory charac- 
 ters for the purpose of making room for him in the 
 front row. 
 
 In a moment more the judge enters hurriedly, 
 takes his seat at the desk, and begins rapidly to dis- 
 pose of the file of prisoners before him. One after 
 another the officers press forward, make a brief 
 statement of the circumstances of the arrest, and the 
 prisoner is led away with a fine, a lecture, or a sen- 
 tence of a few days in the workhouse. There is 
 no opportunity for other cases until all the "dis- 
 orderlies" and street-walkers have been dealt with. 
 
112 THE PRISONER AT THE BAR 
 
 Half -past nine comes, quarter of ten and ten o'clock, 
 the hour at which Mr. Appleboy usually makes a 
 leisurely descent to his office, but still there is no res- 
 pite. The monotonous business continues. But 
 Mr. Appleboy 's time is valuable, and he begins to 
 fume and fidget. He thinks of the dollars he is 
 losing by performing his duty as a citizen. 
 
 Pat has gradually neared the desk. At length 
 there is but one more case to be heard, and the 
 ' ' Bounds" summons our hero once more inside. Ma- 
 ria is thrust in front of the platform and stands with 
 her hands on the rail. It has seemed an easy thing 
 to Mr. Appleboy for a complainant to tell his story, 
 and he has smiled scornfully to himself at the wan- 
 dering and unconvincing statements he has heard 
 during the morning, but as he is pushed upon the 
 platform under the sharp eye of the magistrate, his 
 courage begins to ooze out of him. He wishes again 
 for the hundredth time he had let Maria go off with 
 the old teapot. The very thought of tea sickens 
 him. 
 
 " Next," calls the "Bounds," as a dowdy young 
 woman is led away, weeping hysterically. 
 
 Pat hands up the papers. 
 
 "Maria Holohan," mutters the judge, running his 
 eye over the "information." "Stole a teapot, 
 um um Is this the defendant?" 
 
 "He indentifies her," answers Pat, 
 
 The judge turns to Appleboy. 
 
 "Are you the complainant!" he asks briskly. 
 
 "Y-e-e-s," answers our hero, "I am. This is my 
 cook." r 
 
 "That will do," says the magistrate. "Answer 
 only the questions that are put to you. Do you 
 
THE LAW'S DELAYS 113 
 
 swear that the statements contained in this com- 
 plaint are the truth, the whole truth, and nothing but 
 the truth, so help you, God?" 
 
 "I do," replies Appleboy with vigor. 
 
 Luckily for Appleboy, no lawyer appears for the 
 delinquent Maria. Unfamiliar with all the vagaries 
 and devices of the criminal law, this lady, realizing 
 that she has been caught red-handed, foolishly sup- 
 poses that there is nothing for her to do but to cry 
 for forgiveness and beg for mercy. 
 
 "Do you desire counsel?" asks the judge. 
 
 Maria stares vaguely. 
 
 "Have ye got a lawyer!" interprets the nearest 
 copper. 
 
 "Don't want no lawyer!" snaps Maria. 
 
 "I see you plead guilty," says the judge. 
 
 "Shure," she answers. 
 
 "Well," says the magistrate, "as she pleads 
 guilty, I will not detain you further. Your cook, 
 eh? Well, well, it's too bad ! Why will they do such 
 things ? I am glad you did not lose the teapot. That 
 is all." 
 
 Maria is led away, while Mr. Appleboy descends 
 from the platform, to be followed by some other 
 righteously indignant complainant. 
 
 The whole transaction has occupied less than a 
 minute and a half. In order to accomplish it, Mr. 
 Appleboy has remained in court from half-past 
 eight in the morning until a quarter to twelve. 
 
 "Thank goodness," he says to himself, "it is all 
 over now. The rest will be plain sailing. ' ' Ah, how 
 little do the Appleboys Know of the administration 
 of criminal justice! Pat accompanies him to his 
 carriage, expressing regret that the matter could not 
 
114 THE PEISONEE AT THE BAB 
 
 have been disposed of more speedily. Appleboy is 
 not ungenerous. He always tips the colored porter 
 in the sleeping-car most liberally, but although it 
 is obvious, possibly, that Pat would like a drink and 
 some cigars, Appleboy, believing that by accommo- 
 dating him he would be committing a felony or, at 
 least, a misdemeanor, coldly bids him good-after- 
 noon, and Patrick, crestfallen, returns to the pre- 
 cinct house. 
 
 Meanwhile the magistrate fixes bail for Maria at 
 five hundred dollars, and the teapot is tagged and re- 
 turned to the custody of the sergeant at the station. 
 Tired out, but feeling that ' ' a duty well performed is 
 a rainbow to the heart," Mr. Appleboy seeks the 
 bosom of his family. 
 
 DELAY THE SECOND 
 
 Cookless, the Appleboys struggle through the fol- 
 lowing week. It is in the height of the season and 
 cooks are scarce; they are also ill-tempered; and in 
 five days Mrs. Appleboy has tried and dismissed 
 three. The family, dinnerless, nightly seek a neigh- 
 boring restaurant, and endeavor to console them- 
 selves with the theatre. But after the fourth night 
 this bores them. They begin to long for Maria's 
 omelets and Irish stew. After fourteen years one 
 gets used to a particular kind of pudding. 
 
 "I almost wish," said Appleboy to his wife when 
 they are alone, "that I had not done anything about 
 Maria, but just let her come back and cook for us. 
 I don't think she would have tried to steal the tea- 
 pot a second time." 
 
 "But how do you know, Silas!" replies his wife. 
 'Think of the orgies that may have been going on in 
 the kitchen in the last fourteen years!" 
 
THE LAW'S DELAYS 115 
 
 "True, true," answers Appleboy, and again re- 
 news his determination to see the thing through to 
 the bitter end. Then Mr. Appleboy receives at 
 his office a green slip calling for his attendance 
 on the morrow before the grand jury of the County 
 of New York, promptly at ten o'clock. He has 
 never been to the Criminal Courts building in his 
 life. He only supposes vaguely that it is situated 
 somewhere near the "wholesale district " and not 
 far from the Italian quarter. He associates it 
 with trips to Chinatown, the East Side and the 
 Bowery. 
 
 After being thoroughly shaken up by a long 
 journey over the cobblestones in his carriage, Mr. 
 Appleboy finds himself on Franklin Street, between 
 the Tombs, on the one hand, and the Criminal 
 Courts building upon the other. Over his head runs 
 "The Bridge of Sighs." A congregation of loafers, 
 lawyers, runners, policemen and reporters linger 
 upon the sidewalk. Unfamiliar with the means of 
 entrance and exit, Appleboy turns the corner and 
 climbs two long flights of stone steps upon the out- 
 side of the building instead of utilizing the side en- 
 trance upon the ground floor and taking the ele- 
 vator. He enters an enormous hall around which, 
 on all four sides, corridors reach to the top of the 
 building. A motley collection of people are hurry- 
 ing hither and thither. After some difficulty, Apple- 
 boy discovers a lift packed with odoriferous Italians, 
 men with bandaged eyes and faces, small, half-clad 
 children, and divers persons smoking enormous, 
 evil-smelling cigars, whom he later discovers to be 
 members of the legal profession. The car stops at 
 the third floor. 
 
116 THE PRISONER AT THE BAR 
 
 "District attorney and grand jury," calls the 
 elevator man. "Grand jury to the right." 
 
 Appleboy gets off with the rest of the mob, and 
 wanders down a narrow corridor past rows of offices, 
 until he comes to a policeman standing by the door 
 of a small room crowded with people. There is 
 hardly space to breathe, much less to sit down. 
 From time to time a bell jingles in the distance, a 
 door into another room opens, somebody comes out, 
 and an officer calls out a name. Its owner hastily 
 responds, is shot through the door into the other 
 room, and the door closes again. This process goes 
 on interminably. In a corner, clerks separated 
 by a railing are busily engaged in making out 
 subpoenas and filling in certificates of attendance. 
 Police officers are everywhere. Appleboy takes his 
 stand by the door. It is half-past ten o'clock. He 
 has no means of knowing when he will be summoned 
 before the august body who are deliberating in the 
 next room. He has a craving to smoke, although 
 he makes it a rule never to do so before six o'clock 
 in the afternoon. He has left his newspaper at 
 home, and has yielded up his subpoena to the officer 
 at the door. There is nothing to occupy his atten- 
 tion except the sour visages of those about him. 
 They belong to a class of people who instinctively 
 fill him with disgust, being representatives of what 
 Appleboy and his wife are accustomed to term the 
 "masses." 
 
 Person after person is summoned into the other 
 room, but no one seems to want the banker. Pat is 
 there, to be sure, but he is at his usual pastime, en- 
 joying the delights of mastication. He no longer 
 has any "use" for Appleboy. At about a quarter- 
 
THE LAW'S DELAYS 117 
 
 past eleven, the officer beside the outer door calls 
 the name of Silas Appleboy. Our hero, believing 
 that at last his turn has arrived, starts from his 
 seat, only to be directed to "Come here!" by the 
 officer. He discovers that he has been summoned to 
 confer with a representative of the district attor- 
 ney, who invites him into a neighboring office. 
 
 * * Mr. Appleboy, ' ' says this young gentleman when 
 the two are comfortably seated, "I see by the 
 papers in the case that a Maria Holohan stole a tea- 
 pot from you. Under what circumstances was the 
 theft committed !" 
 
 Mr. Appleboy, who supposes that the merits of 
 his case have been long since known personally to 
 the district attorney, commences at the beginning 
 and rehearses all his woes and difficulties. The as- 
 sistant listens courteously, and then, without com- 
 ment, bows Appleboy out, who returns once more to 
 the ante-chamber of the grand jury. His seat has, 
 meanwhile, been usurped by a corpulent lady in 
 deep mourning, and its former occupant is forced 
 to stand in the corridor for an hour longer. Dur- 
 ing this period he perchance has the annoyance of 
 hearing Pat remark to a fellow officer in no uncer- 
 tain tones that "the old guy is no good a 'dead 
 one' I didn't even get a smoke off him." 
 
 The ante-chamber gradually has been thinning 
 out. Finally Appleboy gets a seat. The bell keeps 
 on ringing until only he and a man with a broken 
 nose are left. At last a policeman hurries out of the 
 open door, the bell rings again, and the clerk at 
 the desk shouts "Appleboy! Appleboy!" Appleboy 
 arises. 
 
 "Bight in through that door," directs the clerk, 
 
118 THE PEISONER AT THE BAR 
 
 and Mr. Appleboy, shrinking, enters timidly the 
 chamber of horrors and finds himself in the centre 
 of a semi-circle of gentlemen of varying ages and 
 appearance. To Appleboy a thousand eyes seem 
 peering at him from every side. The silence is ap- 
 palling. He stands, silk hat in hand, feeling like a 
 very small boy who has been called before the head 
 master to be punished for some offence. A man in 
 the middle of the semi-circle and directly in front 
 of him, is scratching busily with his pen. The grand 
 jurors whisper among themselves. Presently the 
 foreman looks up, observes Appleboy standing, and 
 remarks: "Sit down, sir." Mr. Appleboy sinks 
 into a chair beside the stenographer. The foreman 
 glances at the indictment already prepared, and 
 then says sharply: "Stand up, sir, and be 
 sworn ! ' ' 
 
 A Bible is forced into his unenthusiastic hand. 
 
 "You do solemnly swear the evidence you shall 
 give to the Grand Inquest upon the complaint 
 against Maria Holohan shall be the truth, the whole 
 truth, and nothing but the truth: So help you, 
 God!" 
 
 Mr. Appleboy replies faintly: "I do," and makes 
 an ineffectual attempt to kiss the Bible. 
 
 "Sit down!" directs his interlocutor. "Ahem! 
 You had a teapot worth over fifty dollars, and your 
 cook stole it? Did you see her?" 
 
 "Yes," answers Appleboy, and in a few words 
 describes the occurrence. The foreman sweeps the 
 grand jury with his eye. 
 
 "Any questions?" he asks. There is no response 
 from the others. 
 
 "That is all, sir," says the foreman. "I see that 
 
THE LAW'S DELAYS 119 
 
 the woman pleaded guilty in the police court. Good- 
 morning. ' ' 
 
 Appleboy takes his hat and retires. Two hours' 
 wait for an examination occupying thirty seconds! 
 He has heard of the "law's delays," now he knows 
 what they are. The bell rings again as he is making 
 his way out into the corridor, and the man with the 
 broken nose stumbles in through the door by which 
 our friend has made his exit. 
 
 -<y ; 
 
 DELAY THE THIRD 
 
 Mr. Appleboy now believes that his troubles are 
 over, for he has consulted his family lawyer in or- 
 der to make sure that everything is all right, and 
 has learned that since Maria has pleaded guilty in 
 the police court, she will, after her indictment, un- 
 doubtedly do likewise in the General Sessions. 
 
 Two days later Appleboy receives a subpoena to 
 attend in "Part I of the Court of General Sessions 
 of the Peace" as complainant in the case of "The 
 People of the State of New York against Maria 
 Holohan. ' ' Down he goes and sits for a full hour in 
 an ice-cold court-room which is thronged with police- 
 men, irate complainants, and sympathizing friends 
 of the defendants, until, among the line of bedrag- 
 gled prisoners, who are brought in batches of from 
 four to six from the Tombs through a little door in 
 the back of the room, he recognizes the erstwhile 
 queen of his kitchen Maria, the unapproachable. 
 She looks much the worse for wear. The feathers 
 of her hat hang disconsolate. In addition she is 
 minus her collar and goes clumping around the 
 room after the policeman as if she had never broiled 
 a lobster or tossed a flapjack. As she turns the cor- 
 
120 THE PEISONEE AT THE BAB 
 
 ner by the jury box she spies her lawyer, and im- 
 mediately brightens. They hold an animated con- 
 versation in whispers as he takes his place beside 
 her at the bar. 
 
 " Maria Holohan," says the clerk severely, "you 
 have been indicted by the grand jury for grand lar- 
 ceny in the first degree. Do you plead guilty or not 
 guilty f" 
 
 Appleboy starts from his seat almost ready to call 
 out in explanation: "She pleads guilty, your hon- 
 or," but before he has an opportunity to do so, or to 
 suffer any of the uncomfortable consequences of 
 such an act, the weazened-faced little attorney rep- 
 resenting Maria responds sharply: "Not guilty. " 
 
 Appleboy is stunned. Why, the woman has al- 
 ready confessed her guilt, after having been caught 
 in the act ! What absurdity ! What nonsense ! But 
 the plea is taken ; the lawyer asks that a date be set 
 for trial not nearer than a week on the ground that 
 he may conclude upon investigation to advise his 
 client to change her plea, and because he has a wit- 
 ness living outside the State; and the court grants 
 this application. 
 
 Not guilty! As Maria tramps out in company 
 with other defendants, Appleboy makes up his mind 
 that he will see what all this means, and steps for- 
 ward through the gate to speak in person to the 
 representative of the district attorney. A hand is 
 laid upon his shoulder, and he is hauled back uncere- 
 moniously. 
 
 "Here! Where are you going f" 
 
 "I want to speak to the district attorney/' he 
 replies meekly. 
 
 "Sit down," replies the officer. "He can't speak 
 
THE LAW'S DELAYS 121 
 
 to you now. Look him up in his office after court 
 adjourns. ' ' 
 
 Mr. Appleboy, chastened by experience, makes no 
 protest and retires from the room. He has lost too 
 much money already by absence from his office to 
 make it worth his while to wait until the adjourn- 
 ment of the court, so he goes down town to attend 
 to his business, and at the first opportunity calls up 
 his attorney to inquire what it all means. The law- 
 yer responds briefly that the mere fact that the de- 
 fendant has pleaded guilty in the police court does 
 not preclude her from changing her mind and deny- 
 ing her guilt later when called upon to plead to an 
 indictment. He regrets the inconvenience to which 
 his client has been put, and suggests by implication 
 that it would have been well if Mr. Appleboy had 
 consulted him before taking any action in the mat- 
 ter. Appleboy has already come to this conclusion 
 himself. 
 
 DELAY THE FOURTH 
 
 A week later Appleboy receives another subpoena 
 which commands him under penalty to call at the 
 district attorney's office at half after ten o'clock 
 and "Ask to see" Mr. John Smith, whom he finds, 
 after some difficulty, in a little office in the same 
 building and corridor through which he passed when 
 he appeared before the grand jury. 
 
 "Is this Mr. Smith?" he inquires. 
 
 "Yes," answers the young man. "What do you 
 want!" 
 
 "I have a subpoena," replies the other, "to see 
 you this morning." 
 
 "Oh, yes, I remember," remarks the assistant. 
 
122 THE PEISONEE AT THE BAR 
 
 "You're in the Holohan case, aren't you? Woman 
 stole your teapot, didn't she?" 
 
 "Yes," mutters Mr. Appleboy, "she did, some 
 time ago. What can I do for you I" 
 
 "Well, I want you to tell me about the case," 
 mildly explains the assistant. "Who's Maria Holo- 
 han, anyway?" 
 
 So Appleboy begins at the beginning and tells the 
 whole story through, while, from time to time, the 
 assistant laughs softly to himself. When the history 
 is concluded, the young man leans back in his chair, 
 blows a ring of smoke towards the ceiling and ex- 
 claims: "That's always the way! Some miserable 
 little shyster gets hold of 'em in the Tombs and 
 swears that he can get 'em off , no matter how plain 
 the facts are, or even if they have pleaded guilty in 
 the police court. Well, I'll make a note of the case, 
 and when it comes up for trial you'll get a subpoena. 
 Sorry to have had to bother you. Good-morning!" 
 
 DELAY THE FIFTH 
 
 Appleboy departs. Three days later he gets an- 
 other subpoena to appear before the Court of Gen- 
 eral Sessions. When the case is called, however, 
 Maria 's lawyer gets up and moves for an inspection 
 of the grand jury minutes upon the ground that 
 there was not sufficient evidence before that body to 
 warrant the finding of an indictment. The judge 
 denies this motion peremptorily, since there has 
 already been a hearing in the police court. Upon 
 this the attorney states that he is actually engaged 
 in a trial of another action elsewhere. The case 
 therefore "goes over," of necessity. Nearly three 
 weeks have now elapsed since the theft. Presently 
 
THE LAW'S DELAYS 123 
 
 Appleboy gets another subpoena. He trots down to 
 court half an hour before the opening. The case is 
 marked "Beady." He is told to remain in court, 
 but some other case is already on trial, having 
 lasted over from the day before, and at noon it is 
 still in full swing. The court adjourns for an hour, 
 from one to two. Appleboy returns obediently at 
 that time, but the case which was on trial in the 
 morning continues throughout the entire afternoon. 
 He departs at four o'clock, furious. 
 
 Next morning he is dragged down again. This 
 time, however, the case against Holohan is ad- 
 journed without date, owing to the fact that Maria's 
 counsel has applied to the court for a commission 
 to take testimony in Boston. They intimate that 
 they may interpose the defence of insanity, or at 
 least dipsomania, and evince an unaccountable eager- 
 ness to examine Maria's great aunt, who is act- 
 ing as general housework girl for a minister's fam- 
 ily in Eoxbury, Mass. The district attorney stren- 
 uously opposes this motion. The judge, however, 
 "takes the papers," as he is obliged to assume that 
 the request is made in good faith. 
 
 DELAY THE SIXTH 
 
 Appleboy hears nothing of the case for another 
 week. At the end of that time he gets a subpoena 
 of a different color, and again journeys down to 
 court. But this time he first seeks out Smith in his 
 office and asks if there is any likelihood of the case 
 being tried that day. Mr. Smith, whose room is 
 thronged with witnesses, tells Mr. Appleboy that he 
 is no longer assigned to that part of the General 
 Sessions on whose calendar the case appears, and 
 
124 THE PRISONER AT THE BAR 
 
 that another assistant, Mr. Jones, will have to try 
 the case. He therefore conducts Mr. Appleboy to 
 an adjoining office and presents him to Jones. 
 
 The latter receives Appleboy courteously and as- 
 sures him that he will try the Holohan case the very 
 first of all. They talk the matter over and unite in 
 their objurgations against defendants' lawyers in 
 general. Jones, however, is confident that this time 
 they will succeed in disposing of the matter. They 
 adjourn together to the court-room. But on the call 
 of the calendar Maria's lawyer claims that one of 
 his most material witnesses is absent, and that with- 
 out him his client's interests would be jeopardized. 
 The judge, who by this time has correctly gauged 
 the situation, nevertheless directs him to go on with 
 the case. The lawyer then states that he has 
 had a bad night and feels very unwell. The judge 
 continues unsympathetic. The assistant is openly 
 skeptical. The attorney thereupon is suddenly 
 taken with great pain and retires for air to the cor- 
 ridor outside the court-room. Nothing can be done. 
 Perhaps the lawyer really has a pain. 
 
 The assistant shrugs his shoulders and announces 
 that he will move the case of Michael Angelo Spa- 
 ghetti, indicted for assault; the defendant is or- 
 dered to the bar, and the court directs the clerk to 
 announce that "no other case will be tried " that 
 day. 
 
 Appleboy drags himself with the rest of the 
 throng through the door into the corridor. This is 
 the third time he has practically given up an entire 
 morning to appearing as complainant in a case 
 which seems fated never to be tried. He goes down- 
 stairs swearing vengeance against Maria and her 
 
THE LAW'S DELAYS 125 
 
 lawyer. This performance is repeated possibly 
 some four or five times more with variations. But 
 he never gets nearer than having the case marked 
 i ' ready, " and something always intervenes, Maria's 
 lawyer exhibiting an almost supernatural cleverness 
 in the invention of excuses. 
 
 On all these occasions, while awaiting the call of 
 the calendar, Appleboy is likely to sit in close prox- 
 imity to the defendant, who has been released on 
 bail pending her trial, and who casts withering 
 glances in his direction. Her brother Terence also 
 seizes the opportunity presented by the various ad- 
 journments to tell Appleboy what he thinks of him 
 and what he intends to do to him after the case has 
 been disposed of. 
 
 The district attorney has done everything in his 
 power to force the defence to trial, but his every at- 
 tempt has been unavailing. Nevertheless, Apple- 
 boy blames him personally for every idiosyncrasy 
 of the law and for every delay procured by the 
 defence. 
 
 DELAY THE SEVENTH 
 
 It was now the end of June. Mr. Appleboy has 
 planned to take his family abroad, but, although 
 the annual adjournment of court for vacation is at 
 hand, through the dilatory tactics of Maria's petti- 
 fogging counsel, the case is still untried. 
 
 Appleboy had been in attendance at court eleven 
 separate times, but the only satisfaction which he 
 receives is the assurance that he will be paid fifty 
 cents for each one of his subpoenas. He is by this 
 time so disgusted with the whole business and has 
 taken such a fierce dislike to all judges, district at- 
 
126 THE PRISONER AT THE BAR 
 
 torneys, policemen and lawyers, that he would long 
 ago have thrown up the case had it not been for the 
 fact that he has a vague idea that in so doing he 
 might be compounding a felony. His desire to set 
 an example as a model citizen has long since evap- 
 orated. Countless members of the Holohan family 
 beset him at home and at the office, beseeching him 
 for clemency. 
 
 It is possible that without consulting the district 
 attorney, and under the assumption that he must 
 remain at hand as a witness, he gives up Europe and 
 takes a house on the mosquito coast instead. His 
 wife is very unpleasant about it. She hints that 
 Appleboy need not have been so vindictive in the 
 first place. After he has cancelled his passage, and 
 the whole family are safely ensconced for the sum- 
 mer, Appleboy discovers that cases in which the de- 
 fendants have been released upon bail are not tried 
 during July, August, and September. Appleboy 's 
 feeling-'can be easily imagined. It is needless to 
 say that he does not impart the information to 
 his lady. 
 
 The summer proves generally unsatisfactory. 
 The visits of Maria 's family and their efforts to per- 
 suade him not to prosecute are redoubled. Most 
 of them are domestics on their evenings "out," 
 plentiful of tears and reproaches. It is impossible 
 to escape them. He also receives numerous letters 
 from the lady's attorney suggesting that he call at 
 the latter 's office. These he has systematically 
 ignored. 
 
 DELAY THE EIGHTH 
 
 October comes. The family return. Once more 
 the familiar subposna is served upon our hero at his 
 office. At the sight of it he scowls fiercely as he 
 
THE LAW'S DELAYS 127 
 
 watches the white smoke sailing up the air shaft into 
 the azure of the sky. It is a beautiful autumn day. 
 He recalls the police court, and the grand jury, the 
 Criminal Courts building, the General Sessions, and 
 Maria and Terence, and his miserable summer! 
 Vestryman Appleboy mutters something very much 
 resembling profanity. He thinks: "If I had not 
 tried to punish that cook for stealing the teapot, 
 why! I might be spending to-day in Rome or 
 Paris!" The next morning, however, finds him 
 once more on his dreary way to court. 
 
 He consults Jones again upstairs, who promises 
 by all that is holy that nothing shall prevent a trial. 
 The case is marked " Ready," without opposition, 
 and the assistant district attorney moves the indict- 
 ment. 
 
 i i Maria Holohan to the bar!" calls the clerk, as 
 a jury is rapidly empanelled. 
 
 Appleboy is exultant. He is to reap the reward 
 of virtue and fidelity to principle. At last th % crim- 
 inal is to be made to pay the penalty. He looks 
 eagerly for Maria. 
 
 "Holohan! Maria Holohan!" reiterates the 
 clerk. 
 
 But Maria comes not. 
 
 "Call her in the corridor," directs the judge to 
 the officer at the door. 
 
 There is a sudden silence in the court-room. No 
 response is heard outside. 
 
 The assistant district attorney says something to 
 the judge, who nods to the clerk. 
 
 "Maria Holohan, come forth and answer pursu- 
 ant to the terms of your recognizance or your re- 
 cognizance will be forfeited," shouts that official. 
 
 There is no reply. 
 
128 THE PEISONEE AT THE BAR 
 
 "Terence Holohan, bring forth Maria Holohan, 
 for whom you are bound pursuant to the terms of 
 your recognizance, or your recognizance will be for- 
 feited," solemnly intones the clerk. 
 
 Terence arises and comes slowly forward from 
 where he has been sitting. 
 
 "Are you the bondsman in this easel" asks the 
 clerk. 
 
 "Oi am!" replies Terence. 
 
 "Where is the defendant?" 
 
 Terence looked sheepish. 
 
 "Where is the defendant?" repeats the clerk 
 sharply. 
 
 "In Ireland! Bad cess to her!" answers Ter- 
 ence. "And divil a bit can Oi bring her forth," he 
 murmurs, "whin she's in the ould country!" 
 
 "Forfeit the bail!" orders the judge. 
 
 Appleboy grasps the arm of the assistant. 
 
 ' ' What 's the trouble 1 " he asks anxiously. 
 
 "She's skipped!" answers the other with a grim 
 laugh. "That's all." 
 
 < < H 1 ! I mean, thank God ! ' ' exclaims Vestry- 
 man Appleboy. 
 
 This, gentle reader, is what might happen to you 
 if your cook should steal the teapot. 
 
CHAPTEE 
 RED TAPE 
 
 ME. APPLEBOY makes his way from the court-room 
 to the corridor of the Criminal Courts building a 
 sadder, wiser and more chastened member of so- 
 ciety. He now has personal knowledge of the way 
 in which our criminal laws are enforced and 
 some idea of the administration of criminal justice 
 in general in New York City. He has been dragged 
 down to the Criminal Courts building, to the dis- 
 trict attorney's office, the grand jury room, and the 
 General Sessions not less than a dozen times, and 
 he now takes a solemn vow that never, if he can pos- 
 sibly avoid it, will he be prevailed upon to go there 
 again. 
 
 Our defeated hero on reaching home finds Mrs. 
 Appleboy waiting luncheon for him. 
 
 4 * Well, Silas, " she inquires, "has that woman 
 been convicted at last?" 
 
 Her husband laughs somewhat shamefacedly. 
 
 ' ' No ; I 'm afraid she has gotten the best of us, ' ' he 
 replies, unfolding his napkin and beaming pleas- 
 antly upon his better half. "The fact is that she 
 has skipped her bail gone back to Ireland." 
 
 "What!" returns Mrs. Appleboy. "Do you 
 mean to say that that woman has been allowed to 
 get away after you have been doing nothing, ap- 
 parently, for the last six months but spend your time 
 in those miserable court-rooms down there? It's 
 outrageous." 
 
 129 
 
130 THE PRISONER AT THE BAR 
 
 "Oh, you can't help that," he replies, "so long as 
 prisoners are admitted to bail they have the sacred 
 privilege, guaranteed under our Constitution, of 
 running away. ' ' 
 
 6 ' Rubbish ! ' ' exclaims the lady. 
 
 "And do you know," continues Appleboy, "it 
 really is a tremendous relief to feel that I shall not 
 have to take the witness stand and be cross-exam- 
 ined as to my past career by some miserable little 
 shyster lawyer from the Tombs." 
 
 "Why, Silas," interrupts his wife sharply, "what 
 have you been doing that you are ashamed to tell 
 of?" 
 
 "Oh, I didn't mean that," he adds hastily, "but 
 they ask such embarrassing questions; I might 
 have to tell how much property I own, and then the 
 tax collector would get after us." 
 
 "Speaking of property," continues Mrs. Apple- 
 boy, " where's the teapot!" 
 
 Appleboy gazes at her blankly. In the excite- 
 ment attendant upon Maria's non-appearance in the 
 court-room, the family heirloom had completely es- 
 caped his mind. 
 
 "I forgot all about it," confesses Appleboy. 
 
 "Silas!" cries his wife. "I should think that 
 after all your experiences you would have had sense 
 enough not to leave the Criminal Courts building 
 without bringing that teapot with you. How do you 
 know Maria hasn't taken it with her to Ireland!" 
 
 "Oh, I'm sure she hasn't," answers her husband; 
 "it's down at the police station; they tagged it, 
 you know, and left it in the custody of the ser- 
 geant." 
 
 "Well, hurry through your dinner," commands 
 
BED TAPE 131 
 
 his wife, "and go right down and get it. I am sur- 
 prised at you." 
 
 Appleboy skips his usual demi-tasse and fra- 
 grant perfecto, the result of which omission is to 
 leave him but half satisfied and with a feeling of 
 incipient indigestion, and betakes himself as fast 
 as possible to the police station, where he has last 
 seen the teapot. Now the police station, as is a 
 way with police stations, is located without any ref- 
 erence whatever to the conveniences of transporta- 
 tion, hence Vestryman Appleboy is obliged to walk 
 some ten or twelve blocks towards the river after 
 a heavy meal, and reaches his destination very much 
 out of breath and in a distinctly ill humor. To his 
 surprise the doorkeeper at once recalls him. 
 
 "How are you, Mr. Appleboy! Come right in," 
 says that functionary in greeting. 
 
 "How do you do?" responds Appleboy. "I have 
 come to get my teapot. ' ' 
 
 "Ask the sergeant about it," directs the door- 
 man. 
 
 So Appleboy makes his way to the desk, where he 
 is again recognized, this time by the sergeant on 
 duty. 
 
 "Well, Mr. Appleboy," remarks the sergeant, 
 "what became of that cook of yours? She was a 
 bad one! I hope they convicted her." 
 
 "They did not," replies Mr. Appleboy; "they 
 didn't even get a chance at her. She got away." 
 
 "Jumped!" inquires the sergeant with a grin. 
 
 "That's what she did," acknowledges Appleboy, 
 "after she had kept me chasing up and down for 
 nearly six months." 
 
 "Oh, she was a sly one," answers the sergeant 
 
132 THE PRISONER AT THE BAR 
 
 sympathetically. "A little vacation up the river 
 would have done her good. ' ' 
 
 "I suppose there's no objection to my having the 
 teapot back, is there!" 
 
 1 * Sure not," answers the sergeant. "It's yours, 
 ain't it! Of course you can have it back." 
 
 "Do you mind letting me have it then!" asks 
 Appleboy. 
 
 "Oh, we haven't got your teapot!" exclaims the 
 sergeant. "That was handed over to the property 
 clerk at Police Headquarters. I suppose when the 
 case was set for trial the pot was sent down to the 
 district attorney's office; he's probably got it locked 
 up in his safe, I mean whatever assistant was going 
 to try the case." 
 
 "Well, well," says Mr. Appleboy; "of course, I 
 assumed it was right here, where I saw it last. 
 What would you advise me to do!" 
 
 "Better go right down and see the assistant dis- 
 trict attorney," says the sergeant. "Skipped her 
 bail, did she! Well, that's a pretty good one, too!" 
 
 Although it is now three o'clock, Mr. Appleboy 
 goes to the nearest elevated station and takes the 
 train down town. This occupies about half an 
 hour. He gets off at the corner of Franklin Street 
 and walks to the Criminal Courts building. He is 
 now thoroughly familiar with this lugubrious lo- 
 cality and finds the elevator without difficulty, as- 
 cending amid the usual odoriferous company to 
 the floor upon which Mr. Smith, the assistant dis- 
 trict attorney, has his office. Mr. Smith's door, how- 
 ever, is locked, and inquiry from a deaf attendant 
 in a neighboring corridor elicits the fact that the 
 assistant is engaged in trying a murder case in Part 
 
BED TAPE 133 
 
 IV of the General Sessions. Appleboy now bethinks 
 him of Jones and forthwith descends to the next 
 tier of offices, but there finds to his chagrin that the 
 latter also is trying a case. 
 
 Determined not to be thwarted by any such trifling 
 matter, our hero takes the elevator to the second 
 floor of the building, upon which the court-rooms are 
 located. He first applies at Part I. The superan- 
 nuated attendant at the door eyes him sharply, asks 
 him for a subpoena, and upon his failure to produce 
 it denies him admittance. Appleboy, naturally in- 
 dignant, inquires the reason. The watchdog at the 
 door brusquely replies that persons having no busi- 
 ness in the court-room are not permitted to enter. 
 
 1 'But I want to speak to Mr. Jones." 
 
 "Well, he can't see you now, anyhow," replies 
 the doorkeeper. "It won't do you a particle of 
 good to go in; he's right in the middle of summing 
 up the case to the jury." 
 
 This seems a sufficient excuse, even to our much- 
 annoyed old gentleman, and he thereupon makes his 
 way to the court-room in which he has been in- 
 formed that Smith is disporting himself. Here he 
 makes a second attempt to secure admission. On 
 this occasion there is not even the question of a sub- 
 poena. No one can be admitted, because the judge 
 is "charging the jury." The answer is definite and 
 final. 
 
 The doorkeeper, however, is a good-natured, ge- 
 nial, warm-hearted Irishman, and notes with some 
 sympathy the disappointment and chagrin of the 
 weary little old man. Appleboy observes the benig- 
 nity of the other's expression and tenders a cigar, 
 not what is commonly known about the building 
 
134 THE PEISONEE AT THE BAB 
 
 as a "cigar" (six for a quarter) or even a "good 
 cigar " (a ten-center), but a bang-up, A-l, twenty- 
 five-cent Havana, with a gorgeous coat of many 
 colors. Being very tired he lights another for him- 
 self. The two converse amicably. 
 
 It now develops that the doorkeeper not only re- 
 members Appleboy, but the case and the teapot, and 
 finally, having become conversant with the entire 
 situation, he pronounces judgment, namely, that Mr. 
 Appleboy will find the teapot at the property clerk's 
 office at Police Headquarters ; that while it is possi- 
 ble that it might remain in the custody of one of the 
 assistants, or in charge of the property clerk, at- 
 tached to the district attorney's office, it is very un- 
 likely that such is the case, since the defendant was 
 never placed on trial. He therefore advises Ap- 
 pleboy to return with all haste to 300 Mulberry 
 Street and secure the return of his property from 
 the person there having it in charge. Appleboy is 
 very much pleased ; he begins to regard himself as 
 quite a "mixer," while for a brief moment visions 
 of running for mayor or perhaps for alderman 
 hover in his mind; and after presenting the door- 
 keeper with a couple more Havanas he makes his 
 way out of the building upon the Center Street side. 
 
 Appleboy supposes, as is not unnatural, that 
 Police Headquarters must be somewhere in the im- 
 mediate neighborhood of the Criminal Courts build- 
 ing. A laborer, in response to his question, waves 
 his hand in a northerly direction, and Appleboy sets 
 out, traversing what seems to him to be an intermi- 
 nable distance. Every one whom he addresses states 
 that Headquarters is just a block or two farther on. 
 Soon he finds himself on Mulberry Street ; swarms of 
 
BED TAPE 135 
 
 little children congregate upon the sidewalk and 
 pass comments upon his appearance ; Italian ladies 
 in faded negligee look down upon him from upper 
 windows; bunches of macaroni in a half-solidified 
 condition stream from frame-works erected in 
 the areas, and Appleboy shudders as he thinks of the 
 germs wafted down the side streets and from the 
 open windows of the tenements which must, as he 
 believes, collect and form a thick crust upon the sur- 
 face of this unattractive variety of nutriment. From 
 time to time he crosses the street for the purpose of 
 avoiding a fight between small boys or a group of 
 children dancing around an organ; occasionally he 
 is obliged to walk in the middle of the street itself. 
 After twenty minutes he comes in sight of an inhos- 
 pitable-looking structure, which, he is informed by 
 the peanut seller upon the corner, is that for which 
 he seeks. 
 
 "Polica Headquarta!" chatters the Italian and 
 grins; he knows well enough what it is, and "many 
 there be that go in thereat. " 
 
 Appleboy crosses the street and ascends the steps, 
 meeting as he does so a squad of policemen who 
 bang open the door and come marching down in 
 pairs. He shrinks to one side, and then timidly 
 makes his entry. An officer in the hall inquires his 
 business. 
 
 "I desire to see the property clerk," says Mr. Ap- 
 pleboy, "and to secure the return of a teapot which 
 was stolen from me." 
 
 "The property clerk's office closes at four 
 o'clock," says the officer; "you'll have to come to- 
 morrow morning, at nine." 
 
 Appleboy is disgusted ; he has spent what is prac- 
 
136 THE PEISONEE AT THE BAR 
 
 tically an entire afternoon in the pursuit of his tea- 
 pot and has accomplished nothing. 
 
 "It's outrageous/' he cries; "the idea of a pub- 
 lic office closing at four o'clock in the afternoon! 
 What do these fellows do, I would like to know, to 
 earn their salary? Nine to four, pooh! Why, it 
 isn't half a day's work." 
 
 The officer has turned on his heel and walks slowly 
 away, leaving Mr. Appleboy fuming by the door. 
 The corridor is musty and dark, its stone flagging 
 worn by the tread of millions of heavily booted feet. 
 Poor old Mr. Appleboy is very tired ; the dingy win- 
 dows, the gloomy corridor, the unsympathetic police- 
 man, the noise and smells of the Italian quarter, the 
 weary trip to the district attorney 's office and to the 
 station house have brought him almost to the verge 
 of tears. He is ashamed to go home and tell his 
 wife that he has accomplished nothing, he has not 
 even seen the teapot. Feeling very small indeed 
 Appleboy pushes open the door and passes out upon 
 Mulberry Street. No one notices him ; in this official 
 world a bank president is but a unit among the 
 countless multitudes of the public. He stumbles into 
 a subway train, seeks sanctuary in his club and 
 takes a Turkish bath. 
 
 Let us pass over the painful scene upon the return 
 of Appleboy teapotless. His lady is hardly to be 
 blamed for showing irritation over her husband's 
 failure to recover that interesting relic and valuable 
 domestic adjunct. She knows she could have done 
 much better herself. At any rate she would not now 
 calmly return home from the court with the humili- 
 ating admission that the prisoner had escaped and 
 that the teapot had disappeared. Things are very 
 
RED TAPE 137 
 
 unpleasant that evening, and no suggestion on the 
 part of Appleboy that they go to the theatre or the 
 opera will bring a smile over the features of his 
 irate spouse. 
 
 The next morning Mr. Appleboy is up betimes. 
 He does not wait for his wife to come down to break- 
 fast, but pours himself a cup of coffee and snatches 
 a roll at the sideboard. A quarter to nine finds him 
 at Police Headquarters. In the clear morning sun- 
 shine the building does not look so repellent, and he 
 trots up the steps, pushes open the door, and, avoid- 
 ing his adversary of the afternoon before, saunters 
 nonchalantly down the corridor until he sees a small 
 door at the top of a couple of steps bearing the 
 legend, "Property Clerk's Office." 
 
 The property clerk, whoever he is, is already 
 there. Appleboy finds himself in a small room di- 
 vided by a wire grating; this has a small opening 
 through which he is obliged to converse with the 
 official in charge. 
 
 "I have come to get a teapot which was stolen 
 from me," explains Appleboy. 
 
 "What is the state of the case?" inquires the 
 property clerk. 
 
 "The thief has forfeited his, I mean her, bail," 
 replies our hero. 
 
 "What was her name?" 
 
 "Maria Holohan." 
 
 "When did she steal the teapot?" 
 
 "Last June." 
 
 "Where did you last see the teapot?" asks the 
 clerk. 
 
 "At the station house, with a tag on it," Apple- 
 boy replies. 
 
138 THE PRISONER AT THE BAR 
 
 "Well, what makes you think we have it?" asks 
 the clerk. 
 
 "Why, the policeman down at the court-room 
 told me that you kept all the property which was re- 
 tained as evidence," answers Appleboy. 
 
 The clerk rapidly turns over the leaves in a large 
 book. Evidently he finds what he is looking for and, 
 nodding, answers: "Well, here's the record of the 
 case. One silver teapot, value fifty. Officer mak- 
 ing arrest, Patrick McGinnis. Prisoner's name, 
 Maria Holohan. Claimant's name, Silas Appleboy. 
 That's you, is it? Stolen property, teapot. Held 
 for evidence, yes. There you are, and you say now 
 she skipped her bail?" 
 
 "Certainly," answers Appleboy. 
 
 "And you want the teapot?" 
 
 "Of course I do," answers Appleboy. 
 
 "Well, first you have to get an order from the 
 court to that effect," says the clerk. 
 
 Appleboy almost loses his temper. Has he got to 
 make another trip down to that miserable Criminal 
 Courts building? 
 
 "Look here," he exclaims rather angrily, "what 
 is the sense of all this red tape ? The case is over, I 
 own the teapot, why don 't you give it to me and be 
 done with it?" 
 
 The clerk smiles, a trifle condescendingly, thinks 
 Appleboy. 
 
 "My dear sir," he says, "are you aware that I 
 have no means of knowing that you are the Silas 
 Appleboy who owns this teapot, except your own 
 say so?" 
 
 "Isn't that enough?" shouts Appleboy. 
 
 "It ought to be," responds the clerk, "but some- 
 
RED TAPE 139 
 
 times it isn't. I don't even know that the woman 
 has skipped her bail. ' ' 
 
 Appleboy begins to see the force of the clerk's 
 argument. 
 
 "I never imagined that a gentleman would be 
 tossed about from pillar to post, as I have been since 
 I lost that teapot. What is it you say I must do; 
 get an order from the mayor?" 
 
 "No, no, the judge," answers the clerk. 
 
 "How shall I get it?" inquires Appleboy rather 
 huffily. 
 
 "Oh, ask the assistant district attorney; he will 
 probably get it for you." 
 
 "Thank you," says Appleboy stiffly, and marches 
 out. This time he takes the subway to Canal Street, 
 reaching the Criminal Courts building a few mo- 
 ments after nine. Much to his surprise Mr. Smith is 
 already down at his office hard at work. 
 
 "Ah, Mr. Appleboy, good-morning to you," he 
 exclaims. 
 
 "How are you, Mr. Smith?" responds Appleboy. 
 "I have come after that confounded teapot" 
 
 "Oh, the one your cook stole. I remember it well. 
 Where is it?" 
 
 "At Police Headquarters," responds Appleboy, 
 "and they want me to get an order from some 
 judge or something before they will give it up to 
 me." 
 
 "That's easily managed," responds the assistant, 
 "but you have to get a waiver from this office of 
 any claim that we may have upon the teapot as evi- 
 dence. There is a regular printed blank. I think, 
 inasmuch as Jones was actually going to try the 
 case when Maria skipped her bail, that he had better 
 
140 THE PEISONEE AT THE BAR 
 
 fill it out. After you get it, come back here and I'll 
 make the application for you." 
 
 Appleboy begins to feel better. Here is some one 
 that knows his business. He lights a cigar and de- 
 scends to the next floor, where he finds his old friend 
 Jones. Jones is quite ready to give the desired 
 waiver, and selects one from a pigeon-hole in his 
 desk. He fills it out to read as follows : 
 
 New York, October 7, 1907. 
 
 District Attorney's Office, 
 County of New York. 
 
 The People of the State of 
 New York on the com- 
 plaint of 
 
 Silas Appleboy 
 
 against 
 Maria Holohan. 
 
 For Grand Larceny 
 in the Second Degree 
 
 This office has no further use for the property taken from 
 the defendant in this case, and now in the possession of the 
 property clerk of the police department. No objection is 
 therefore made by me to its delivery to any person who 
 proves to your satisfaction his right to the possession of 
 the same, one silver teapot. 
 
 A. BIRD, 
 District Attorney. 
 Per William Jones, D. A. D. A. 
 
 To the Property Clerk of the Police Department, Borough 
 of Manhattan, City of New York. 
 
 "Now we'll go down and see if the judge will give 
 us an order," says Jones. 
 
 "Why, is there any doubt about it!" inquires 
 
BED TAPE 141 
 
 Appleboy, fearful that perhaps after all he is going 
 to lose his teapot. 
 
 "It all depends on circumstances," answers 
 Jones. ' ' Some of the judges are perfectly willing to 
 give orders while others are not. You see, the trou- 
 ble in your case is that the woman has never been 
 tried, so that the question of whether or not she 
 stole your teapot has really not been decided at all. ' ' 
 
 "The wicked flee !" murmurs Appleboy in his 
 most approved Friday evening manner. 
 
 They take the elevator down to the second floor, 
 and make their way to that part of the Sessions 
 upon whose calendar Maria's case appeared at the 
 time she forfeited her bail. A trial is going on, and 
 a pompous little lawyer is cross-examining a stout 
 lady who weeps and laughs hysterically by turns. 
 As the lawyer pauses for breath Mr. Jones arises 
 and addresses the court. 
 
 "May it please your Honor, in the case of the 
 People against Maria Holohan, charged with grand 
 larceny, the bail in which was forfeited before your 
 Honor about a week ago, I desire to apply for an 
 order directing the property clerk at Police Head- 
 quarters to turn over the property, namely a silver 
 teapot, to the complainant, who is here in court." 
 
 "But the case has never been tried, you say, Mr. 
 Jones," objects his Honor. 
 
 "That is all very true," returns the assistant, 
 "but the woman has run away, her bail has been for- 
 feited, and judgment entered and satisfied." 
 
 "Supposing, however, she were captured and 
 brought back and tried, how do I know but that the 
 jury might acquit her? And they might acquit her 
 on the specific ground that the teapot belonged to 
 
142 THE PRISONER AT THE BAB 
 
 her, and not to the defendant. I should then be in a 
 position of having directed its return to a person to 
 whom it did not belong. ' ' 
 
 ' ' Of course what your Honor says is entirely cor- 
 rect, " answers Jones, "but it is unlikely that we 
 shall ever hear of the case again. " 
 
 "I don't know about that/' answers the judge. 
 "Your office might become suddenly extremely en- 
 ergetic and try to extradite her. ' ' 
 
 "Well, it seems rather hard on Mr. Appleboy," 
 responds Jones. 
 
 "0? course it's hard; he has my entire sympa- 
 thy," replies the judge; "but I cannot take the re- 
 sponsibility of deciding who owns property in a 
 case which has not been tried. I am not here for 
 that purpose. Let him take the proper legal steps 
 to secure the return of his property in the civil 
 courts. ' ' 
 
 Appleboy, who has understood very little of this 
 colloquy, but who supposes that, for some entirely 
 insufficient reason apparently, the judge is trying 
 to block his efforts to secure the return of his 
 property, suddenly jumps to his feet and shouts : 
 
 "Look here, your Honor, I would like to have a 
 word about this, if I may ! That teapot of mine was 
 stolen last June ; I caught my cook in the very act of 
 selling it to a pawnbroker; I had her arrested on 
 the spot ; she admitted her crime, and acknowledged 
 her guilt in the police court. My teapot is tagged 
 and locked up in a room at Police Headquarters, 
 and they won't give it to me unless your Honor will 
 grant an order directing them to do so. Kindly 
 tell me what I am to do. ' ' 
 
 The crowd in the court-room titters and the court 
 
RED TAPE 143 
 
 attendant raps loudly with a paper-weight on the 
 oaken railing for silence. The judge regards Mr. 
 Appleboy good-naturedly. 
 
 "I am very sorry you have had so much trouble. 
 My position in the matter simply is that I cannot 
 personally take the responsibility of deciding to 
 whom this property belongs, particularly when no 
 jury has ever passed upon the guilt or innocence of 
 the defendant. I shall be very glad, however, to 
 approve any certificate which the district attorney 
 may choose to give you stating that he has no further 
 need or use for the property." 
 
 Appleboy brightens. 
 
 "Your Honor, " says he, "Mr. Jones has already 
 given me such a certificate, and I shall be much 
 obliged to you if you will approve it." 
 
 Jones hands it to the judge, who writes the word 
 "Approved" upon it, then returns it to the assistant. 
 
 "You will observe," says his Honor, "that all I 
 do in the matter is to approve the statement of the 
 district attorney that he makes no objection to the 
 delivery of the property to any person who proves 
 to the satisfaction of the property clerk his right to 
 the possession of the same. My approval really does 
 not amount to anything at all. I cannot grant you a 
 court order. I am aware that several of my asso- 
 ciates might do so under exactly similar circum- 
 stances, but I personally do not care to assume any 
 such responsibility. Proceed with the case on trial. ' ' 
 
 Out in the corridor Appleboy inquires anxiously 
 of Jones how on earth he is going to prove to the sat- 
 isfaction of the property clerk his right to the pos- 
 session of the teapot. 
 
 "Oh, you won't have any difficulty at all," says 
 
144 THE PRISONER AT THE BAR 
 
 Jones; "this certificate from us, with the judge's 
 'O. K.' on it, is equivalent to a court order, even if 
 it is not one technically. ' ' 
 
 "I don't know," answers Appleboy doubtfully; 
 "this paper seems to leave it up to me to persuade 
 the intelligence of the property clerk. " 
 
 "You won't have any trouble," laughs the assist- 
 ant. "Good-by." 
 
 Mr. Appleboy leaves the building once more, and 
 again takes the subway to Police Headquarters. 
 
 "Back again!" inquires the property clerk 
 pleasantly. 
 
 "I have a certificate from the district attorney, 
 approved by the judge giving you permission to 
 return the teapot to me," says Appleboy, shoving 
 the paper through the wicket. 
 
 The clerk takes it. 
 
 1 1 This isn 't a court order, ' ' says he. ' ' Still, if the 
 woman has skipped her bail and the judgment has 
 been satisfied, I guess we can take a chance and let 
 you have your teapot, provided of course you are 
 properly identified. You see, so far as we know, you 
 may have picked this certificate up on the street. 
 The thing for you to do is to get hold of the officer 
 who made the arrest, and who knows all about the 
 case, and have him identify you." 
 
 "How shall I do that?" asks Appleboy, very much 
 irritated. "I don't know where he is; I can't go 
 chasing all over the City of New York after police 
 officers; I'm sick of this whole business; you know 
 perfectly well I am Silas Appleboy, else I shouldn't 
 have this paper, and I shouldn't be around here 
 trying to get that teapot." 
 
 "Don't be too sure about that," replies the prop- 
 
EED TAPE 145 
 
 erty clerk. "We have had three women here at the 
 same time claiming the same pair of diamond ear- 
 rings, and each woman looked absolutely respecta- 
 ble. One of them came in a carriage with a footman. 
 We found out afterwards that the earrings didn't 
 belong to any one of them, but to an entirely dif- 
 ferent person. " 
 
 Appleboy loses all patience. Just as he is about 
 to place his hands upon the teapot, presto, it van- 
 ishes. Two Italians and a Chinaman, escorted by 
 an officer, now elbow past Appleboy, who disconso- 
 lately gives them place, He is "up against it" 
 again ; there is no help for it ; rules are rules and the 
 law is the law. How now to find Patrick, the officer ! 
 He begins to wish he had been nicer to Patrick; 
 if he had been a little more liberal in the way of 
 cigars at the time the teapot was stolen, things might 
 have been very much easier for him now. He utters 
 an imprecation under his breath against all police- 
 men and police red tape. Grinding his teeth, he goes 
 to the nearest telephone booth and asks to be con- 
 nected with the precinct to which Patrick is attached. 
 The operator refers him to 3100 Spring, namely, 
 Headquarters, but there he is informed that pri- 
 vate citizens may not be connected with police sta- 
 tions. He hangs up the receiver with something 
 almost like an oath, Poor Vestryman Appleboy! 
 Let us not be too hard upon him. 
 
 It is now half -past eleven o'clock. He takes the 
 car uptown and returns to the station house, but 
 the sergeant informs him that Patrick is down in the 
 Criminal Courts building as a witness in a burglary 
 case. This is the last straw. Frenzied, he rushes 
 from the station house, takes another car and sits 
 tensely until once more he is at the Criminal Courts 
 
146 THE PEISONEE AT THE BAE 
 
 building. Fortunately he has had the forethought 
 to inquire of the sergeant to which of the four parts 
 of the General Sessions Patrick has been subpoenaed, 
 and he now finds that it is the same court-room at 
 the door of which presides his friend of the day 
 before. The doorkeeper greets him genially, and 
 in response to Appleboy 's inquiries replies, shure, 
 that he knows Pat McGinnis; that Pat has been 
 there all the morning, but has just shtepped out over 
 to Tom Foley's saloon. Although Appleboy has not 
 been inside the portals of such a place since he was 
 nineteen years old, he frantically inquires its direc- 
 tion, and, fearful lest he lose the object of his search, 
 dashes across the street to the corner bar-room. 
 
 The little old gentleman with the shining silk hat 
 sticks his head timidly through the door and observes 
 Patrick at the end of the bar crooking his elbow in 
 the customary manner. He draws an inspiration 
 from the sight ; with a bland smile he steps up to the 
 bar himself, slaps the officer familiarly on the back 
 and, pulling off his gloves, remarks, "Well, Pat, old 
 boy, how do you feel! Have another on me!" 
 
 Patrick gazes at him open-mouthed. Can this be 
 the stiff, little old bank president he knew six months 
 ago*? But there can be no question as to Appleboy's 
 intention when he hears the latter order "two rye 
 high -balls and another- for-y our self" of the aston- 
 ished barkeeper. Appleboy toasts Patrick, Patrick 
 toasts Appleboy. Patrick produces cigars; Apple- 
 boy replaces them with others, larger and thicker 
 than any seen at Foley's. 
 
 "By the way," says Appleboy, "step up to Police 
 Headquarters with me, will you, Pat? Now that I 
 happen to be down this way, I might as well take that 
 teapot home with me, don't you know." 
 
BED TAPE 147 
 
 "Shure," says Pat; "court's adjourned by this 
 time, and I can get back by two o 'clock all right. ' ' 
 
 The best of friends, they go up in the subway 
 together to Police Headquarters. With a bold front 
 and fearless eye Appleboy enters the office of the 
 property clerk, produces his certificate from the 
 district attorney, and demands his teapot. 
 
 * ' This officer will identify me, ' ' says he. 
 
 "Shure I indentify him," announces Pat. 
 
 The clerk takes the certificate, opens the record 
 book and, with a rubber stamp, enters up on the 
 back of the original report the words : 
 
 "Identified by officer 
 
 *: 
 
 as owner of the property." 
 
 i ' Write your name there, ' ' says he to Patrick, and 
 McGinnis laboriously scrawls his name between the 
 lines. 
 
 The clerk now disappears into an adjoining room, 
 presently returning with an object about the size of 
 a football, wrapped in coarse paper, tied with a mul- 
 titude of strings and bearing a tag. 
 
 "Here you are, sir," says he, opening the door in 
 the wire grating and passing the football to Apple- 
 boy, whose heart beats wildly. 
 
 The clerk then stamps the words "Delivered on 
 identification of officer" upon his record book, closes 
 the same with a slam and turns aside to other more 
 important business. How simple it all is when yon 
 once know how to do it ! 
 
 "Easy, ain't it!" remarks Pat. 
 
 "Easy as rolling off a log," answers Appleboy 
 with a grim smile. 
 
CHAPTER IX 
 THE TRIAL OF FELONIES 
 
 IT is a fact, which may at first appear para- 
 doxical, that the jury in the ordinary run of criminal 
 cases passes upon the guilt or innocence of very few 
 professional criminals. A moment's consideration 
 will reveal the reason. The professional criminal 
 usually has a 1 1 record ' ' and he knows full well that 
 in view of his past history, if there be any sort of a 
 case against him, his own defence, however eloquent 
 or ingenious, will go for nothing. An affirmative 
 answer to the simple question, i i Have you ever been 
 convicted V ' is, in three cases out of five, equivalent to 
 a plea of guilty. Now it is an understood thing that 
 any prisoner, who is willing to admit his guilt and 
 save the county the expense and trouble of a trial, 
 shall receive some consideration in return there- 
 for when it comes time to impose his sentence, and 
 usually he expects to receive in addition a guarantee 
 of good faith from the assistant district attorney in 
 the shape of the latter 's acceptance of his plea to a 
 lower degree of the same crime. The real "gun" 
 is apt to have his life pretty well mapped out. He 
 anticipates serving about so much time "in stir" 
 and figures on beating about every other case before 
 it reaches an actual trial. If worst comes to worst, 
 and he finds he must face a jury of his peers, he 
 dickers for the lowest plea he can get. Whole court 
 terms often go by without a single professional crook 
 
 148 
 
THE TRIAL OF FELONIES 149 
 
 being actually tried. If one of them is ' i caught with 
 the goods " he generally throws up his hands and 
 stolidly takes his medicine. 
 
 The ordinary citizen quite naturally gains his im- 
 pressions of the administration of criminal justice 
 by reading accounts of sensational trials. He imag- 
 ines that the daily life of the prosecutor consists in 
 demanding the conviction of hardened felons with 
 sordid, crime-tracked features, varied by occasional 
 spectacular "star cases'* where counsel for the de- 
 fendant and the prosecutor vie with one another in 
 stupendous outbursts of oratory in which the bird 
 of liberty screams unrestrained and Justice franti- 
 cally waves her scales. He supposes, if he gives 
 the matter any consideration at all, that defendants 
 languish away their lives in the Tombs waiting for 
 trials which never come, and that influential crim- 
 inals walk the streets while the indictments against 
 them lie accumulating an overcoat of dust in some 
 forgotten pigeon-hole. He frankly assumes that 
 the jury system is pretty nearly a failure, and knows 
 of his own knowledge, or thinks he does, that any 
 one with enough money can either avoid being tried 
 for crime at all or, if by any mischance he be con- 
 victed, can easily escape punishment or at least 
 delay it indefinitely by technicalities of procedure 
 and appeals. In his customary dialect he "has no 
 use ' ' for the criminal or the criminal courts, and his 
 only dread is that he may some time be drawn as a 
 juror and be compelled to serve in a region of the 
 city where he will be unable to find a satisfactory 
 place to get his lunch and in the society of those 
 whose companionship he fancies he is not likely to 
 enjoy. 
 
150 THE PRISONER AT THE BAR 
 
 Let us assume that Mr. Ordinary Citizen has been 
 so unfortunate as to receive one of those pink slips 
 which call upon him to "all business or other matters 
 lay aside 7 ' and to attend at Part I of the General 
 Sessions of the Peace at ten o 'clock on the first Mon- 
 day of the month. He finds himself in a large and 
 well-lighted court-room, at one end of which, on 
 a dais, sits a judge more or less surrounded by 
 various persons who continually approach and 
 engage him in conversation. At a desk in front, 
 a clerk and his assistant are busy with piles of 
 documents, which 0. C. learns later to be indict- 
 ments, and with big ledgers which are in fact the 
 "Minutes of the Sessions." The room is crowded, 
 all the benches being filled with a varied, but, on the 
 whole, a respectable-appearing assortment of hu- 
 manity. In front of the judge and clerk, wander- 
 ing around inside an enclosure, at one side of which 
 stands the temporarily empty jury-box, are several 
 young men who are earnestly engaged in talking to 
 the lawyers, complainants and policemen who throng 
 at the bar. 
 
 Suddenly the clerk raises his voice and shouts, 
 "Harken to the call of the calendar!" An officer 
 pounds on a railing with a paper-weight, another bel- 
 lows, ' ' Find seats there ! An ' quit talkin ' ! " and the 
 judge, gazing at a long sheet of foolscap in his hand, 
 remarks inquiringly: 
 
 "People against Murphy?" 
 
 The young assistant district attorney at once 
 answers : 
 
 "People are ready." 
 
 "If your Honor please," nervously exclaims a 
 stout man pushing his way to the front, "this case 
 
THE TRIAL OF FELONIES 151 
 
 has never been on the calendar before. I was only 
 retained last night and I did not receive any notice 
 that it was to be tried until this morning. I ask 
 that it go over until next week." 
 
 "What do you say, Mr. District Attorney! " asks 
 the judge. 
 
 "Oh, it's a very simple case," answers the assist- 
 ant. "There's no reason why it should not be tried 
 to-day." 
 
 "Well, I'll give you until to-morrow," says the 
 judge. "You must be ready then." 
 
 "People against Smith!" he continues. 
 
 Both sides happen to be ready in this case. 
 
 "People against McCord!" 
 
 "Defendant's going to plead," says the assistant. 
 
 "People against Vermicelli!" 
 
 "We expect to make a recommendation in that 
 case, your Honor," announces the assistant, and 
 so it goes until fifteen or twenty cases have been 
 marked "Ready" or "Passed for the day" or ad- 
 journed to let the defendant get his witnesses or, in 
 point of fact, for the lawyer to extract his fee. 
 
 The clerk then calls the roll of the jury, and after 
 the rush which ensues to present excuses to the effect 
 that the talesman's health or business is in a pre- 
 carious condition, the court settles gradually down 
 to its routine work. 
 
 A jury is empanelled and a lank, seedy-looking 
 youth takes his seat at the bar between a spruce, 
 bald-headed little man and a court officer. He is 
 charged with having "policy-slips in his posses- 
 sion." 
 
 So far 0. C., our juror, has been impressed with 
 the business-like and cheerful manner in which the 
 
152 THE PRISONER AT THE BAR 
 
 proceedings have been conducted. Most of the law, 
 yers, instead of clamoring for a trial for their lan- 
 guishing clients, have exerted all their efforts to 
 secure delays. Then he learns to his surprise that 
 the average length of time which elapses between a 
 defendant's arrest for felony and his trial, unless 
 the prisoner be out on bail, is less than one week.* 
 
 "Jury satisfactory to both sides !" inquires the 
 clerk. 
 
 "Entirely so," reply the little bald-headed man 
 and the prosecutor together. 
 
 Suddenly the lank youth leans over and whispers 
 to the lawyer, who after a moment's conversation 
 beckons to the prosecutor. There is a brief consul- 
 tation and the assistant tosses the indictment to the 
 clerk with the announcement : 
 
 "He pleads guilty." 
 
 The defendant gets up and shuffles to the bar, 
 
 * This is a vast improvement over the conditions which existed in 
 this regard six or seven years ago, when defendants in prison could 
 count themselves fortunate if tried within three weeks, or, if on bail, 
 within a year. It was by no means unusual to have cases appear upon 
 the calendars from three to five years old, the backs of the indictments 
 being covered with the names of assistants long since departed from 
 official life. The writer once tried a case that had appeared on the 
 calendar TWENTY-EIGHT times, and cases which had appeared there 
 from ten to twenty times were the rule, not the exception. In the 
 days when the present district attorney was a deputy, indictments 
 were so carelessly found and treated that in order to clear the calendars 
 bushel baskets of them would be brought into court and dismissed " on 
 the recommendation " of the district attorney. A house-cleaning proc- 
 ess of this sort would ordinarily occur just before it became necessary 
 to make an official report on the number of cases " disposed of." To- 
 day there are very few indictments not tried within the year, and 
 almost any defendant who wants one can get a speedy trial, such 
 delays as arise being generally caused by the defendant himself. Of 
 course during the summer months when but two courts are open, and 
 the judges sit from only ten-thirty to one o'clock, action is somewhat 
 less speedy, and as homicide cases usually require more time for trial 
 than others, and are tried seriatim in order of age, the defendants 
 may have to wait a little longer than in cases of less gravity. Even in 
 such cases defendants generally have to be " forced to trial " against 
 their will. 
 
THE TRIAL OF FELONIES 153 
 
 where his pedigree is taken and a day set for his sen- 
 tence, which, in the event of his never having been 
 convicted before, will probably be a fine of twenty- 
 five dollars or a month in the penitentiary. 
 
 "Call the next case/ 7 says the judge. 
 
 "People against Thompson, " shouts the clerk. 
 "Bring up Thompson. " 
 
 The door in the back of the room opens and 
 " Thompson " is "brought up." He is a good-look- 
 ing young negro, defended by a member of his own 
 race. The jury say they have no prejudice against 
 negroes and are sworn without leaving the box. The 
 charge is one of assault in the first degree that is to 
 say, with intent to kill. The complainant is a flash- 
 ily dressed young mulatto woman, who asserts that 
 the defendant "done crack her head wif an ice- 
 pitcher," and produces the fragments of pitcher, 
 done up in a newspaper. She admits that at the time 
 of the unfortunate occurrence she was living with 
 the defendant as his wife. There are no other wit- 
 nesses for the People, and the defendant is sworn 
 without more ado. He explains that the complain- 
 ant accused him of being too attentive to a "yaller 
 gal" on the next street and when he attempted to 
 go out of the house she attacked him with a pen- 
 knife. In confirmation of this he exhibits a small 
 cicatrix on his wrist. After hearing the evidence 
 the assistant announces to the judge that the case 
 ought in his opinion to have been disposed of in 
 the police court and that the interests of justice 
 will be subserved if his Honor will discharge the 
 defendant on his own recognizance. This the judge 
 does with an admonitory lecture, and the defendant 
 and the complainant go away together. 0. C., the 
 
154 THE PBISONER AT THE BAR 
 
 juror, begins to conclude that the assistant is a 
 pretty fair sort of a chap. 
 
 Trial follows trial with great rapidity. Gradu- 
 ally the crowd in the court-room thins out. By one 
 o 'clock only a dozen or fifteen witnesses and specta- 
 tors remain, and by half -past three the benches are 
 practically empty. 0. C. has heard a dozen different 
 complaining witnesses tell the story of how as many 
 defendants have wronged them. The Bowery mer- 
 chant whose packing-cases have been broken into 
 has followed as complainant the man who has been 
 robbed in a saloon ; the "clothes-line fight" has given 
 place to the story of the actual abduction of a 
 young girl by a "cadet"; the landlady who has 
 received a bad cheque from a lodger can hardly wait 
 to recount the history of her misfortunes, for the 
 man who has lost a horse and wagon through a 
 drunken driver, whom he charges with grand 
 larceny. 
 
 Generally the "People's case" consists of the 
 complainant's version of what has occurred, some- 
 what corroborated by another witness or two, and 
 the officer who made the arrest. Then the lawyer 
 for the defendant takes his client by the shoulder 
 and with a gruff "Go 'round there, young man," 
 or, if he be playing for sympathy, a gentle l i Please 
 take the stand, William," starts him upon that most 
 dangerous of all adventures, a journey to the wit- 
 ness-chair in his own behalf. In two cases out of 
 three the defendant's own testimony, if he is guilty, 
 is what convicts him. Both sides ' ' sum " up in short, 
 disconnected speeches, and the judge delivers a brief 
 charge. The jury file out and another is imme- 
 diately sworn. As the next trial begins very likely 
 
THE TRIAL OF FELONIES 155 
 
 the door from the "pen" will open and the proceed- 
 ings be interrupted long enough to allow another 
 prisoner to tramp around the court-room, take his 
 stand at the bar, and plead guilty. 
 
 "John Keenan, alias Foxy Keenan, alias Gum- 
 Shoe Jack, do you now desire to withdraw the plea 
 of 'Not guilty' heretofore entered by you, and to 
 now plead guilty to grand larceny in the second 
 degree ? ' ' 
 
 The defendant acknowledges with no very amiable 
 expression that this is his inclination, and his pedi- 
 gree, which is taken by the clerk forthwith, discloses 
 that he has served five times in State's prison and 
 twice in the penitentiary. 0. C. looks at his fellow 
 jurors and whistles under his breath. That was the 
 real thing and no mistake. Very likely the jury upon 
 which he is now serving will convict, it having thus 
 been brought to their attention by a concrete illus- 
 tration that all the defendants are not innocent per- 
 sons unjustly accused of crime. 1 1 Remanded, ' ' says 
 the clerk, and Gum-Shoe Jack tramps back to the 
 little door and the interrupted trial goes on. The 
 stream of complainants, witnesses and defendants 
 is as varied as that in Balzac's ' ' Comedie Humaine. ' ' 
 0. G. begins to take a keen interest and now and then 
 to put a question himself. He has taken the op- 
 portunity to make the acquaintance of the assistant 
 district attorney at the noon hour and now feels that 
 he is really a part of the machinery of justice.* 
 
 * The writer's colleague, Mr. Charles Cooper Nott, Jr., has recorded, 
 as follows, the actual proceedings of an ordinary court day: 
 
 " Maria Dzialozindky takes the stand and swears that after a brief 
 acquaintance she married (as she supposed) the defendant before a 
 rabbi of his choosing j a man in charge of an officer is identified bv 
 her as the rabbi; he is brought over from the penitentiary on Black- 
 well's Island where he is serving a sentence for larceny, being a thief 
 
156 THE PRISONER AT THE BAR 
 
 Ordinarily in a full court day there will occur 
 from two to four complete trials, while an equal 
 number of pleas may be taken. Sometimes a hun- 
 dred and fifty cases will be got rid of by trial or 
 plea in a single term in one part of the General Ses- 
 sions alone. On the other hand, if the calendar is 
 made up of * * old-bail cases, ' ' indictments for receiv- 
 ing stolen goods, misappropriation, and Italian or 
 Chinese homicides, the office accounts itself lucky in 
 getting rid of half a dozen cases in the month. 
 Occasionally, when a brisk, business-like judge is 
 sitting, a "homicide calendar " will be disposed of 
 at the rate of one a day, but this is rare and can 
 occur only when most of the cases are for man- 
 slaughter or criminal negligence. 
 
 When trials are rapid their speed always redounds 
 to the benefit, not of the People, but of the defendant. 
 
 and not a rabbi; Maria then goes on to relate how the defendant 
 then procured from her one hundred and forty-nine dollars, and dis- 
 appeared, leaving her alone in the Suffolk Street tenement which 
 was to have been their connubial bower of bliss; it further appears 
 that the defendant had a wife living at the time that he went through 
 the ceremony of a mock marriage with Maria. Defendant takes the 
 stand, modestly admits that he is possessed of such unusual attrac- 
 tions that Maria persecuted him into this marriage; that she forced 
 the one hundred and forty-nine dollars upon him, and that he unfor- 
 tunately slumbered in a saloon and it was stolen from his person. 
 The jury fail to give credence to his tale, and promptly convict him. 
 The next defendant is smooth and well dressed, a hanger-on in the 
 region known as the Tenderloin. Testimony is given that he and 
 another did take and carry away and sell certain typewriting machines 
 from an office in Thirty-fourth Street. Defendant with an engaging 
 smile tells how his companion had just been discharged from the 
 office in question, and had enlisted his (defendant's) aid to remove the 
 machines, which he informed defendant were his own, and how shocked 
 he was later to learn that this wicked companion had no right or title 
 to them. His smile is so engaging, and his looks so respectable, that 
 the jury acquit him, and are somewhat chagrined when the judge, 
 in discharging him, states that in the court's opinion he is a smooth 
 and plausible thief and guilty beyond a doubt which is the fact, as 
 previous to the trial he had offered to plead guilty to a lower degree 
 of the crime charged. Next comes a stalwart Irishman who describes 
 with much feeling how the defendant (unfortunately a much smaller 
 
THE TRIAL OF FELONIES 157 
 
 Such a performance in a court of justice as the fol- 
 lowing, recounted by Lord Brampton, could not take 
 place to-day. It is worth reproduction as marking 
 the progress of criminal procedure : 
 
 The first thing that struck me in the after-dinner trials 
 was the extreme rapidity with which the proceedings were 
 conducted. As judges and counsel were exhilarated, the 
 business was proportionately accelerated. But of all the men 
 I had the pleasure of meeting on these occasions, the one 
 who gave me the best idea of rapidity in an after-dinner case 
 was Muirhouse. 
 
 Let me illustrate it by a trial which I heard: Jones was 
 the name of the prisoner. His offence was that of picking 
 pockets, entailing of course a punishment corresponding 
 in severity with the barbarity of the times. It was not a 
 plea of "Guilty," when perhaps a little more inquiry might 
 have been necessary; it was a case in which the prisoner 
 solemnly declared he was "Not guilty," and therefore had 
 a right to be tried. 
 
 The accused having "held up his hand," and the jury 
 
 man), without any provocation whatever, viciously assaulted him in 
 the hallway of the West Side tenement -house where they both lived, 
 and cut him in various vital parts with a pocket knife. Defendant 
 (bandaged to no less a degree than complainant) describes how he had 
 "an argument" (a term embracing any affray ending in anything 
 short of murder in the first degree) with complainant and his brother 
 over a game of cards, whereupon they followed him to the hallway, 
 threw him down and kicked him, and then struck at them with a 
 large key. His talk sounding reasonable and being corroborated by 
 several neighbors, defendant is acquitted. Lastly, an unsuspecting 
 passenger and an alert trolley-car conductor tell how defendant, a 
 shifty-looking young gentleman, while sitting next to the unsuspect- 
 ing passenger, kept with one hand a newspaper shoved under the 
 latter's chin, while with the other he abstracted a fine diamond scarf 
 pin adorning his cravat. When their tale is completed, the defendant 
 and his counsel put their respective heads together, and counsel then 
 announces that his client, the sole support of a widowed mother, did, 
 in a moment of temptation induced by filial anxiety, endeavor to 
 acquire this pin, and he therefore desires to throw himself upon the 
 mercy of the court and plead guilty, which he does. It appears, 
 however (of course to counsel's astonishment), that his portrait has 
 for several years ornamented the Rogues' Gallery, and that his record 
 as a son is not all that it might be, whereupon he is sentenced upon 
 the spot, and court adjourns. This is the summary of the actual 
 record of a court day presenting no unusual features" "In the District 
 Attorney's Office," Atlantic Monthly for April, 1905. 
 
158 THE PEISONEE AT THE BAR 
 
 having solemnly sworn "to hearken to the evidence," etc., 
 the witness for the prosecution climbs into the box, which was 
 like a pulpit, and before he has time to look around and see 
 where the voice comes from, he is examined by the prosecut- 
 ing counsel. 
 
 " I think you were walking up Ludgate Hill on Thursday 
 25th about half-past two in the afternoon and suddenly felt 
 a tug at your pocket and missed your handkerchief, which 
 the constable now produces. Is that it?" 
 
 " Yes, sir." 
 
 "I suppose you have nothing to ask him?" says the 
 judge. " Next witness." 
 
 Constable stands up. 
 
 "Were you following the prosecutor on the occasion when 
 he was robbed on Ludgate Hill, and did you see the prisoner 
 put his hand into the prosecutor's pocket and take the 
 handkerchief out of it?" 
 
 "Yes, sir." 
 
 Judge to the prisoner: "Nothing to say, I suppose?" 
 
 Then to the jury: "Gentlemen, I suppose you have no 
 doubt? I have none." 
 
 Jury: "Guilty, my lord," as though to oblige his lordship. 
 
 Judge to prisoner: "Jones, we have met before we shall 
 not meet again for some time seven years' transportation. 
 Next case." 
 
 Time: two minutes and fifty- three seconds. 
 
 But to return to our juror. What strikes O. C., 
 who has now become entirely disabused of his pre- 
 vious ideas of what criminal trials are like, is the 
 fairness with which those trials are conducted in 
 the General Sessions and the fact that the inter- 
 ests of the accused are safeguarded in every pos- 
 sible way. Plenty of time is taken to try out 
 even a pickpocket case or a street-corner brawl. 
 The judge always covers the law fully and accen- 
 tuates the necessity of giving every reasonable 
 doubt to the defendant. In his heart O. C. be- 
 gins to have a slight feeling that the devil is 
 getting a little more than his due. He has ac- 
 
THE TRIAL OF FELONIES 159 
 
 quitted so many of the persons who have been tried 
 that when he now sees a head he is not at all 
 unwilling to hit it. He is fast reaching that state 
 of mind which the prosecutor has anticipated when 
 he has told his chief that in a few days he will have 
 the jury "knocked into shape/ ' in other words, he 
 no longer believes every hard-luck story that he 
 hears, he knows that certain criminal attorneys are 
 capable of almost any kind of misrepresentation, he 
 realizes that practically every defendant has already 
 had a pretty exhaustive trial in the police court 
 before indictment, he is quite as anxious to see the 
 guilty convicted as he is to see the innocent ac- 
 quitted, and he has been properly disgusted with 
 the attitude and actions of certain of his colleagues 
 in the jury-room whom he regards quite properly 
 as anarchists or idiots. The district attorney at the 
 end of a week has found out who some of these are. 
 They have been " excused " for the remainder of the 
 term, and he can rely pretty safely on the others 
 rendering a fair verdict in any important case which 
 he now desires to move before them. 
 
 What naturally interests 0. C. and his fellow 
 jurors most of all is the defendant's own story of 
 how he came to be involved in the transaction out 
 of which the charge against him arises. For the 
 first few days he very probably gives such explana- 
 tions rather more credit than they deserve, for he 
 is sympathetically inclined to believe that the pris- 
 oner is more likely to be the victim of circumstances 
 than guilty of an act of moral turpitude. The 
 eager attitude of some of the complainants likewise 
 gives him an excuse for believing them to be actu- 
 ated by more than a mere desire to see justice done 
 
160 THE PEISONEE AT THE BAB 
 
 and to have the truth prevail. He is inclined to look 
 for hidden motives for every prosecution. This 
 gradually wears off and his attention becomes cen- 
 tred on the defendant himself. Will he put in a 
 defence? Will he testify in his own behalf! What 
 will he say? Little by little 0. C. gets to inventing 
 defences to fit the facts established against the pris- 
 oner by the people's case. Meantime he is learning 
 a little law. That "the people must prove the de- 
 fendant 's guilt beyond every reasonable doubt, ' * and 
 "that no unfavorable inference must be drawn as 
 against the defendant from his failure to testify in 
 his own behalf. ' ' 0. C. has some difficulty with the 
 "reasonable doubt. " Perhaps he says to himself, 
 "I am a reasonable man, hence any doubt I have 
 must be reasonable." However, the judge's reiter- 
 ation that not every doubt is a reasonable one and 
 that the words do not mean "a mere guess or conjec- 
 ture that the defendant may, after all, be innocent, 
 but a substantial doubt arising out of the evidence 
 in the case, for which a reason can be given, ' ' and of 
 such a character as would influence him in the im- 
 portant affairs of his daily life, eventually clears 
 his mind on this somewhat abstruse psychological 
 problem, and he translates "beyond any reasonable 
 doubt " into the more lucid and comprehensive 
 "moral certain ty" of ordinary existence. But that 
 he shall not permit himself to be prejudiced against 
 a defendant by the latter 's refusal to testify is a 
 much more difficult matter. He knows it to be the 
 law, and he tries hard to obey it, but in a majority of 
 cases he cannot escape the subconscious deduction 
 that if the defendant were innocent he would not 
 hesitate to offer an explanation. As time goes on 
 
THE TRIAL OF FELONIES 161 
 
 and he gains in experience it becomes even harder 
 to follow the instructions of the judge in this respect. 
 He discovers that the district attorney cannot prove 
 the prison record or bad character of the defendant 
 unless the latter subjects himself to cross-examina- 
 tion by taking the witness-stand, and hence is likely 
 to suspect that any defendant who does not testify 
 is an ex-convict. Three jurors out of five will con- 
 vict any man who is unwilling to offer an explana- 
 tion of the charge against him. How they reconcile 
 this with their oath it would be hard to understand, 
 if they were accustomed to obey it literally in other 
 respects. The writer has heard more than one 
 talesman say, in discussing a verdict, "Of course 
 we couldn't take it against him, but we knew he was 
 guilty because he was afraid to testify." 
 
 As the reader is doubtless aware, under the com- 
 mon law no defendant in either a civil suit or crim- 
 inal prosecution could testify in his own behalf. He 
 was regarded as a party in interest whose bias 
 must necessarily render his evidence of question- 
 able, if of any, value. This doctrine, along with 
 many others, our fathers adopted on their severance 
 from England, and it continued to be the law in 
 New York for a long time, in civil cases until 1849, 
 and in criminal until 1869. Then, ostensibly for the 
 sake of the defendant and for the protection of the 
 innocent, the rule was abolished. That the change 
 from the common law was not generally approved 
 either by the bench or bar of New York is clear 
 from the opinion of the Court of Appeals in one 
 of the earliest cases which arose under the new 
 practice.* The court expressed the opinion that 
 
 * Ruloff vs. The People, 45 N. Y. 221, 
 
162 THE PBISONER AT THE BAB 
 
 the change would redound to the benefit of the 
 glib, quick-witted and hardened criminal who could 
 invent a plausible defence, and result in the 
 confusion of the innocent man unjustly accused 
 of crime who might from stupidity or timidity 
 involve himself in apparent contradiction; to say 
 nothing of the fact that if the defendant did not 
 take the stand the jury, however much they were in- 
 structed to the contrary, would inevitably draw an 
 unfavorable conclusion from his failure to deny his 
 guilt. 
 
 Now to any fair-minded American it must seem 
 almost rudimentary justice that the accused should 
 have a chance to tell his own story. That in itself 
 is a sufficient reason for the rule. Just why, theo- 
 retically, if a defendant does not see fit to give an 
 explanation and subject himself to cross-examina- 
 tion, the jury should not be permitted to draw an 
 unfavorable inference is not so clear. 
 
 Experience has demonstrated that an innocent 
 man need have no fear about taking the stand. 
 Jurors sympathize with a defendant who is sub- 
 jected to a withering fire of questions, and do not 
 expect him to be able to give a lucid account of 
 himself since the day of his birth, or to explain 
 without the minutest contradiction every detail in 
 the evidence against him. But they do want him to 
 deny his guilt and to have an opportunity to "size 
 him up." On the other hand, the slightest word of 
 explanation may suffice to change the whole com- 
 plexion of a case.* In the old days the guiltiest of 
 
 *Mr. Nott cites the following case: 
 
 "The complainant, A, a well-dressed bartender, testified that he 
 had known the defendant, B, for some time; that on the night in ques- 
 tion B came to A's rooms, and shortly after B's departure, A found that 
 
THE TRIAL OF FELONIES 163 
 
 criminals could, almost with impunity, shield him- 
 self behind his lawyer's eloquent assertion that his 
 client had a " perfect defence, " but that the law 
 "had sealed his lips." To-day in the vast majority 
 of cases the prisoner who does not take the stand 
 is doomed. Out of three hundred defendants tried 
 by the writer's associate, Mr. C. C. Nott, twenty- 
 three failed to take the stand in cases submitted to 
 the jury. Of these twenty-one were convicted, one 
 was acquitted, and as to one the jury disagreed. 
 Had these men been prevented by law from testify- 
 ing in their own behalf, the ratio would have been 
 very different. 
 
 Thus a rule originally intended to benefit the in- 
 nocent defendant by permitting him to offer his 
 explanation of the charge against him has practi- 
 cally resulted in compelling all defendants, guilty or 
 innocent alike, to testify. It goes without saying 
 that this has resulted in a considerable benefit to 
 the community. Its only disadvantage, and this is 
 
 his watch was missing; the watch had been in the pocket of A's vest, 
 which A had left hanging on a chair, and A had stepped out of the room 
 for ten minutes, leaving B alone there. B afterwards admitted to A 
 that he had "hocked" the watch. Of course this testimony, if be- 
 lieved, made a case against B, and it is difficult now to realize how any 
 one could ever have believed that the chance of explaining or contra- 
 dicting it could be more dangerous to B than the certainty of having 
 A's testimony go to the jury uncontradicted. B took the stand and 
 testified that he was getting a good salary as manager of an "intelli- 
 gence office"; had never been even arrested before; that A had ob- 
 tained a loan of fifteen dollars from him and had left the watch with 
 him on the understanding that B was to pawn it for fifteen dollars and 
 give A the ticket ; B did pawn it in his own name and was shortly 
 thereafter arrested. This case is a fair illustration of a puzzling class. 
 On the one hand, no motive or reason was shown why A should cause 
 the arrest of his friend on a false charge (unless that of getting the 
 watch back from the pawnbroker without payment of the fifteen dollars, 
 on the ground that it had been stolen, is an adequate one). Upon the 
 other hand,B's character and position in life seemed to make it unlikely 
 that he would commit such a theft, and his act in pawning the watch 
 tinder his true name gave color to his story. The jury acquitted, and 
 who can say that there was not at least a reasonable doubt?" 
 
164 THE PRISONER AT THE BAR 
 
 probably more theoretical than practical, is that ex- 
 convicts on trial can no longer successfully conceal 
 their pasts. If they do not testify they will probably 
 pay the usual penalty, and if they do testify they 
 are more than likely to be convicted "on their rec- 
 ords." Clever criminals often seek to avoid this 
 dilemma by declining the services of counsel and 
 conducting their own cases, thus rendering it impos- 
 sible for themselves to take the stand, for in such 
 an event there would be no lawyer to examine them. 
 This ruse is well calculated to deceive the ordinary 
 juryman. 
 
 The jury are also far less inclined to draw an 
 unfavorable inference from a defendant's failure to 
 testify if, on the conclusion of the evidence of the 
 prosecution, he merely "rests on the people's case" 
 and puts in no defence at all, than if he puts in only 
 a partial defence. They readily appreciate that his 
 counsel may honestly believe that as matter of law 
 no case has been made out against him, and they 
 bend their energies to the determination of the sim- 
 ple and unobstructed issue of whether the uncontra- 
 dicted evidence of the prosecution has of itself estab- 
 lished the guilt of the prisoner beyond a reasonable 
 doubt. If he puts in a defence and calls witnesses 
 to contradict those of the people, the jury are apt to 
 concentrate their attention upon the question of the 
 relative truthfulness of the witnesses on either side. 
 Juries, quite naturally, are quick to infer guilt from 
 any attempt at deception on the part of the defence, 
 and habitually visit the sins of his witness upon the 
 prisoner. Every criminal lawyer has had the un- 
 pleasant experience of seeing his client convicted 
 merely because the jury have caught one of the wit- 
 
THE TRIAL OF FELONIES 165 
 
 nesses for the defence lying on an immaterial point. 
 Whether the jury hear one or both sides of a 
 case, they inevitably labor under the disadvantage 
 of never being able to pierce the screen which the 
 law has hung between them and the truth in every 
 case. Many a jury is struggling manfully with the 
 question of the defendant's guilt or innocence, 
 while the latter sits in the pen chewing the cud of 
 narcotic contentment and wondering whether the 
 yarn he "framed" for them will be believed. He 
 has figured out what he is likely to get, knowing that 
 even if he were found guilty the judge would proba- 
 bly not "give" him "more than Elmira," and has 
 resolved to "take a chance." As the Elmira sentence 
 is indeterminate, the defendant has nothing to gain 
 by pleading. Once there, he will be released in four- 
 teen months if his conduct appears to warrant it. 
 The only real "chance" that he takes, is, that the 
 judge may send him to State's prison, but he usually 
 has made a study of the judge's character and past 
 performances. Similarly he may have offered to 
 plead to a lower degree of the same offence and his 
 offer may have been refused, yet the matter is confi- 
 dential and the case has to be tried by the district 
 attorney as though he had no knowledge of the de- 
 fendant's guilt: So the jury retire and frequently 
 end their deliberations by acquitting the defendant, 
 who leaves the court-room triumphantly to the 
 great chagrin of the prosecutor. The jury, on the 
 other hand, are filled with complacent satisfaction 
 at having restored to liberty a man unjustly accused 
 of crime. But these trifling considerations are as 
 nothing when compared with the limitations which 
 the laws of evidence and procedure place upon the 
 
166 THE PRISONER AT THE BAR 
 presentation of what is ofttimes a perfectly plain 
 
 case.* 
 
 The prosecutor who has thoroughly investigated 
 a case has a knowledge of its real merits which can 
 never be brought to the minds of the jury. There 
 is much evidence, not technically admissible, which 
 properly should be considered by him in determin- 
 ing his official action, and there is usually an equal 
 amount of evidence, the competency of which will 
 depend on the course of the trial. He occupies a 
 delicate and frequently a very difficult position, 
 since he must prosecute the case without reference 
 to facts which might conclusively prove the defend- 
 ant guilty, could they be introduced in evidence. 
 The real character of the accused can almost never 
 be demonstrated, for unless he takes the stand in 
 his own behalf his " record " is inadmissible, and 
 even when he does take the stand, he can deny with 
 
 *Mr. Nott gives the following illustration from an actual trial: 
 "Take, for example, a certain case tried in the Criminal Branch of 
 the Supreme Court in the January term of 1902. The jury saw the 
 defendant, a stalwart, open-faced laboring man of nearly sixty years, 
 on trial for murder in the first degree; they heard a bartender and 
 a smooth -shaven, bullet-headed witness describe how the defendant 
 in the saloon became involved in a dispute with the deceased, caused 
 by the defendant's bad taste in reminding him that he had done time 
 for killing his own father; and they heard him of the bullet-head 
 admit on cross-examination that a scar adorning his neck had been 
 inflicted by the deceased some two years before; they heard the two 
 witnesses describe how the deceased left, breathing threatenings and 
 slaughter, and how a few minutes later the defendant, in the room 
 back of the saloon, was approaching the rear door, cutting a plug 
 of tobacco with his knife, which he had providentially drawn for that 
 purpose, when the deceased leaped upon him from the door and tried 
 to stab him, whereupon a fight ensued, in which the defendant was 
 cut, and after which the deceased left, followed a few minutes later by 
 the defendant and the bullet-headed, who saw naught further of him. 
 To mar the symmetry of this tale of self-defence (proved by the prose- 
 cution's own case), but two jarring facts appeared first, the saloon 
 proper (not the rear room) was found soaked in blood, and, second, 
 the deceased was found shortly after the defendant's departure ^at 
 three A.M. lying on the sidewalk in plain sight of the rear door, with 
 his throat cut from ear to ear. No evidence was put in for the defence, 
 
THE TRIAL OF FELONIES 167 
 
 impunity any allegation as to his past offences and 
 conduct, since the law does not permit the prosecutor 
 to disprove such denials unless they relate to actual 
 convictions for crime. Similarly the excellent char- 
 acter of the complainant and his witnesses may 
 not be shown, unless the defendant himself directly 
 attacks it, so that it is probable that throughout the 
 case the injured party and the wrong-doer appear 
 to the jury to be of equal credibility. The district 
 attorney is a " quasi- judicial' ' officer, who must be 
 at one and the same time the friend and right arm of 
 the court and the advocate of the public right. His 
 official position gives him an influence with the jury 
 which honor forbids him to abuse, and demands an 
 impartial consideration of the evidence and a dig- 
 nified method of conducting the case, irrespective 
 
 the defendant modestly refrained from taking the stand, and of course 
 an acquittal was inevitable. 
 
 "From behind the scenes, however, the facts assumed a different 
 aspect. The frank-faced defendant was one 'Red/ who had served 
 time for robbery and other offences; the bullet-head surmounted 
 shoulders upon which rested a heavy load of crime and violence, their 
 owner having served the State several times and been implicated in 
 numerous crimes, including murder; the bartender would have con- 
 sidered it quite as safe, and far more comfortable, to put a bullet 
 through his head than to testify against this choice pair; while it was 
 true that the deceased had killed his own father, the act was per- 
 formed while parent and son were in a drunken fight, by striking the 
 old man on the head with a water pitcher, and had occasioned great 
 mortification to the son when he became sober; and it was true that 
 defendant and the bullet-headed were both bitter enemies of the 
 deceased. On this statement of facts, there is little doubt that the 
 deceased was murdered in the saloon where the blood was found, 
 and his body thrown out on to the sidewalk, and the story arranged, 
 the defendant shouldering the quarrel because he had received a cut 
 in the course of the fight. As the defendant did not take the stand, 
 his record and character could not be shown; as the State was com- 
 pelled to call the bartender and the other witness (they being the 
 sole witnesses to the occurrence), it could not impeach their veracity 
 nor attack their character. To the prosecuting officer, therefore, 
 was presented the choice of recommending the 'turning out' of a 
 desperate criminal without a trial, or of putting in what facts the 
 law permitted to be shown, and leaving the jury to acquit, while mar- 
 velling that such a weak case should be presented to them." 
 
168 THE PEISONEE AT THE BAE 
 
 of the tactics of the defence. He represents not only 
 the public, but the defendant, who is one of the pub- 
 lic. He should be glad to welcome at any stage of 
 the proceedings credible evidence tending to estab- 
 lish the innocence of the accused, and if it convinces 
 him that the defendant is not guilty, he should, even 
 in the midst of a trial, arise and move that the jury 
 be discharged and the prisoner set free. But this is 
 by no means inconsistent with a vigorous insistence 
 upon the people 's rights, nor does it require that the 
 prosecutor should refrain from using the advocate's 
 customary weapons of attack and defence. While 
 he is cross-examining the witnesses for the defence 
 and arguing to the jury, he is for the time being the 
 lawyer for the people, and the appellate courts have 
 said that it would be manifestly unfair not to extend 
 to him in summing up the case an equal latitude of 
 expression and scope of argument with counsel for 
 the defendant. 
 
 It is the consciousness that he is indeed sore let 
 and hindered in really laying the truth before the 
 jury that makes the accusation of "unfairness" so 
 bitter to a prosecutor, and it is the cause of what- 
 ever i i overzealousness " it is now popular to ascribe 
 to the district attorney's office. One would think, 
 to read the communications in the evening papers 
 during a recent trial, that the community had no 
 privileges at all. A prosecutor frequently reaches 
 that conclusion from experience. The writer is not 
 aware that the constitutional guarantees which pro- 
 tect the liberty of the individual were intended to 
 deprive the public of an advocate. In the nature of 
 things, if justice is to be done, the People should be 
 entitled to the same rights as the individual. If we 
 
THE TRIAL OF FELONIES 169 
 
 are to have respect for law, the law must be deserv- 
 ing of respect, and law which makes rather for the 
 acquittal than for the conviction of the guilty is not 
 of that sort. 
 
 But with a trained panel of jurors, at the end of 
 the second week of the term, the chaff having been 
 separated from the wheat, the prosecution may rea- 
 sonably expect to see the mill of justice grinding 
 smoothly and reasonably fine, the jury at home in 
 the court-room, familiar with their duties, and ap- 
 preciative of the fact that all the assistant is trying 
 to accomplish is the disposal of as many cases as 
 possible consistent with fair trials and just verdicts. 
 By the middle of the term he must be a very indiffer- 
 ent sort of fellow if he has not made friends of the 
 jury; and assuming that he has done his work dis- 
 interestedly and in a business-like fashion, he will 
 find that he has now the good- will and respect of the 
 entire panel, a regard which may well stand him in 
 good stead later on in his career. This is the pros- 
 ecutor's reward, to try cases before a body of men 
 who know that he is anxious to do the right thing, 
 ready to welcome any evidence that really tends to 
 establish the innocence of the accused, but insistent 
 that no guilty man shall go free unless his act is first 
 stamped as wrong by a conscientious verdict on the 
 part of the jury. 
 
 Yet, as the writer has already stated, when the 
 jury disband at the conclusion of the term with the 
 thanks of the court, they have seen few professional 
 crimnals, save for a fleeting glance as one or two 
 are led to the bar to admit their guilt. Qne exception 
 readily suggests itself, namely, the prosperous 
 swindler who, by means of the " wire-tapping," 
 
170 THE PRISONER AT THE BAR 
 
 "sick engineer" or other similar device, has parted 
 some gullible person from his savings. Yet these 
 gentry always save plenty of money with which to 
 engage able counsel and are only forced to trial 
 after they have exhausted every means of delay 
 known to the law. They never plead guilty, but 
 fight until the last gun is fired, believing that as they 
 have escaped punishment in the past, so they will in 
 the future. Their records rarely make it possible 
 for them to take the stand in their own behalf, and 
 if the case goes to the jury at all they are immedi- 
 ately convicted. Almost every panel has the oppor- 
 tunity to hear at least one " sucker " tell his story 
 and to render a speedy verdict in his favor. It 
 needs little explanation from a prosecutor to con- 
 vince the twelve hard-working tradesmen before 
 him that the defendants in this class of cases are the 
 "real" criminals, systematic enemies of society. 
 
 The great bulk of cases, that is to say, nearly 
 seventy-five per cent, are disposed of by plea, 
 by direction of the court, or " recommendation, " that 
 is to say, on the written application of the district 
 attorney that the defendant's bail be discharged. 
 Hundreds of cases are thus "turned out" every 
 year, and for the most part represent those in- 
 stances where the magistrate and grand jury have 
 not had either the time or the inclination to assume 
 the responsibility of discharging the defendants, 
 preferring to put the question "up" to the district 
 attorney or a petit jury. These recommendations 
 are made on numberless grounds, the principal be- 
 ing (1) that it is clearly apparent that a reasonable 
 doubt exists on the evidence ; in other words, that as 
 a matter of law the case should not be submitted to 
 
THE TEIAL OF FELONIES 
 
 171 
 
 a jury; (2) that the People's witnesses have disap- 
 peared or left the jurisdiction; (3) that the case 
 has once been tried with the jury standing almost 
 unanimously for acquittal; (4) that owing to the 
 peculiar circumstances in the case it is quite unrea- 
 sonable to suppose that any jury would convict, 
 such as where an entirely respectable young woman 
 being out of work has, in a fit of despair, attempted 
 her own life.* Two or three cases are disposed of in 
 this manner in each part of the Sessions almost every 
 calendar day in the year. 
 
 The defendants who plead guilty are professional 
 criminals, ex-convicts, and prisoners whose guilt is 
 so overwhelmingly clear that they have no hope of 
 getting even a disagreement. 
 
 Thus most of the cases tried are neither "dead 
 open and shut," as the saying is, nor exception- 
 ally weak. They usually present some question of 
 doubt, usually only a conjectural one, however, or 
 at least admit of a more or less logical argument 
 for an acquittal on the part of the defence, 
 
 In trivial cases the jury are inclined to take the 
 
 * The number of these cases is one of the saddest commentaries upon 
 the conditions of life in a great city. Upon this charge during the year 
 1905, 268 males and 114 females, a total of 382, were arrested. Thirteen 
 males and no females were held for trial and the others were discharged. 
 
 Comparison with Previous Years 
 
 YEAR 
 
 NUMBER ARRAIGNED 
 
 NUMBER HELD FOR TRIAL 
 
 Males 
 
 Females 
 
 Total 
 
 Males 
 
 Females 
 
 Total 
 
 1896 
 
 147 
 228 
 202 
 257 
 251 
 244 
 244 
 374 
 234 
 268 
 
 72 
 130 
 159 
 140 
 173 
 143 
 158 
 156 
 123 
 114 
 
 219 
 358 
 361 
 397 
 424 
 387 
 402 
 530 
 357 
 382 
 
 30 
 42 
 26 
 40 
 40 
 24 
 23 
 15 
 15 
 13 
 
 6 
 12 
 15 
 13 
 12 
 3 
 6 
 4 
 
 36 
 54 
 41 
 53 
 52 
 27 
 29 
 19 
 15 
 13 
 
 1897... 
 
 1898 
 
 1899.. 
 
 1900 . o . 
 
 1901 
 
 1902 
 
 1903 . . 
 
 1904 
 
 1905 
 
 
172 THE PEISONEB AT THE BAB 
 
 law into their own hands. Boys charged with at- 
 tempting to pick pockets or burglarize small stores, 
 -with assaulting police officers, carrying concealed 
 weapons such as knives and brass knuckles, having 
 policy-slips in their possession, rioting, malicious 
 mischief, etc., are usually acquitted. This is because 
 the jury think that they have been already punished 
 enough for the character of offence which they have 
 committed, not because they believe them innocent. 
 Cases where the charge is a serious one and which 
 are tried before trained panels on a substantial 
 amount of evidence usually result in conviction. In 
 so-called " important " or "star" cases, defendants 
 are rarely acquitted. If the reader will recall the 
 sensational first trials of the last five years he will 
 find that there is hardly a single acquittal among 
 them.* It is the petty law-breaker who profits by the 
 lawlessness of the modern jury. 
 
 The fact that the prosecutor appears every day 
 before the general panel of jurors in the Part to 
 which he is assigned throughout the term and soon 
 gains among them the reputation of being fair, and 
 that he on his side knows their peculiarities and 
 idiosyncrasies is what makes the jury system in 
 criminal cases work more accurately and accom- 
 plish better results than in civil trials, where the 
 jury usually has never seen either counsel before 
 and probably distrusts both of them. A prose- 
 cutor who knows his petit jury, its faults, vir- 
 tues and foibles, can move an important case before 
 
 *Peo. vs. Molineux, Peo. vs. Bissert, Peo. vs. Glennon, Peo. vs. 
 Mills, Peo. vs. Patrick, Peo. vs. Ammon, Peo. vs. "Al." Adams, Peo. 
 vs. Hummel, Peo. vs. Wickes, Peo. vs. Wooten, Peo. vs. Rothschild, 
 Peo. vs. Kanter, Peo. vs. Summerfield, Peo. vs. Sam Parks, Peo. vs. 
 Weinseimer. 
 
THE TRIAL OF FELONIES 173 
 
 it, even though it be composed of retail cigar and 
 newspaper dealers and small tailors from the 
 East Side, more safely and with a better expecta- 
 tion of a just verdict than before a " special " panel 
 of bankers and architects with whom he is unfa- 
 miliar. The ordinary panel at its daily task during 
 the last two weeks of every term illustrates the jury 
 system at its best. Cases moved at the beginning 
 of the term usually result in acquittals. Occasion- 
 ally a jury will open a term with a rather unexpected 
 conviction, but it takes three or four days before 
 they realize that a reasonable doubt is not meant to 
 include "a mere guess or conjecture that the defend- 
 ant may, after all, be innocent. ' ' Wily criminal prac- 
 titioners seek if possible to have their cases put on 
 the calendars at the opening of a term, and to secure 
 adjournments at the end of the term in order that 
 they may go over to the beginning of the next. 
 
 Court officers often win fame in accordance with 
 their ability as "plea getters." They are anxious 
 that the particular Part to which they are assigned 
 shall make as good a showing as possible in the num- 
 ber of cases disposed of. Accordingly each morning 
 some of them visit the pens on the floor below the 
 court-room and negotiate with the prisoners for 
 pleas. The writer suspects that the assistant in 
 charge of the Part is usually depicted as a fierce and 
 relentless prosecutor and the jury as a hardened, 
 heartless crew who would convict their own mothers 
 on the slightest pretext. The joys of Elmira as 
 contrasted with other places of confinement are 
 alluringly described and a somewhat paradoxical 
 readiness to accept any sort of plea, in view of his 
 bull-dog character, is attributed to the assistant. 
 
174 THE PEISONEB AT THE BAR 
 
 The writer has known of the entire population of 
 a prison pen pleading guilty one after another under 
 the persuasion of an eloquent bluecoat assisted by 
 an opportune conviction. Of course the prisoners 
 expect to be treated with a considerable degree of 
 leniency, and if one of their comrades goes up to 
 plead and returns with the story that the judge is 
 "easy" and the assistant "all right, " and a sen- 
 tence to Elmira, the others are apt very quickly to 
 follow suit. If, however, the first of the batch called 
 for trial does not come back at all (having been 
 acquitted), the remainder will not "plead" under 
 any circumstances. The same thing is true if the 
 first prisoner who pleads gets a severe sentence. 
 Prosecutors anxious to dispose of business hope for 
 light sentences at the beginning of the term. 
 
 Most of the homicide cases are tried in the Crim- 
 inal Term of the Supreme Court, and a great many 
 pleas to "manslaughter" are accepted by the judge 
 where the technical charge is murder in the first 
 degree. The grand jury indict for murder in almost 
 every homicide case on the theory that some evi- 
 dence may possibly be given at the trial which will 
 warrant such a verdict. A very large proportion of 
 these defendants plead guilty to manslaughter, and 
 are encouraged in all legitimate ways to do so. 
 About two years ago, in the Supreme Court, the first 
 defendant called to the bar concluded that discretion 
 was the better part of valor and pleaded guilty. The 
 judge, who had never sat in Criminal Term before, 
 promptly gave him eighteen years, only two less 
 than the maximum, although the shooting had oc- 
 curred during a quarrel over a game of "craps." 
 Not a single other prisoner offered a plea to any 
 
THE TRIAL OF FELONIES 
 
 175 
 
 degree of crime during the remainder of the 
 term, 
 
 A great deal of interest is felt everywhere in the 
 practical results of the jury system, and particularly 
 in the proportion of convictions to acquittals. Fig- 
 ures purporting to show such ratios should be scru- 
 tinized with great care, as they usually include 
 among "verdicts of conviction " pleas of guilty vol- 
 untarily offered by the defendant, and similarly in- 
 clude among "acquittals" all cases where defend- 
 ants are discharged without trial on the motion of 
 the prosecutor. The only figures which have any 
 particular bearing on the question of how far the 
 jury system is efficacious are those drawn from the 
 results of actual trials in which verdicts have been 
 rendered. 
 
 The following table shows the comparative num- 
 ber of convictions, pleas, acquittals, etc., in New 
 York County during the last six years : 
 
 
 
 
 ft 
 
 8 
 
 1 
 
 
 
 1 
 
 fl ~ 
 
 . 
 
 b 
 
 
 
 
 
 1 
 
 
 
 !? 
 
 
 c $ 
 
 00 
 
 w 
 
 ^sfi 
 
 "i 
 
 -a "5 
 
 "p-S 
 
 "gx-s 
 
 
 Year 
 
 Convicti( 
 
 1 
 
 III 
 
 <J 
 
 So 8 
 
 2 ort 
 Q 
 
 s 
 
 13 
 
 PQ 
 
 jl 
 
 1 
 
 1 
 
 S 
 1 
 
 OJ 
 
 Q 
 
 jii 
 
 1 
 
 || 
 
 |o 
 
 "o a 
 -2 
 
 I 
 
 1 
 
 1900. 
 
 424 
 
 1,672 
 
 733 
 
 366 
 
 185 
 
 76 
 
 74 
 
 13 
 
 60 
 
 19 
 
 1,093 
 
 4 
 
 141 
 
 4,860 
 
 1901.. 
 
 551 
 
 1,838 
 
 688 
 
 434 
 
 192 
 
 165 
 
 113 
 
 8 
 
 77 
 
 36 
 
 1 ,045 
 
 4 
 
 116 
 
 5,267 
 
 1902.. 
 
 419 
 
 2,009 
 
 698 
 
 351 
 
 457 
 
 257 
 
 97 
 
 5 
 
 67 
 
 62 
 
 863 
 
 2 
 
 73 
 
 5,360 
 
 1903- 
 
 485 
 
 1,918 
 
 615 
 
 321 
 
 299 
 
 92 
 
 62 
 
 12 
 
 65 
 
 40 
 
 807 
 
 7 
 
 86 
 
 4,809 
 
 1904.. 
 
 495 
 
 1,971 
 
 700 
 
 363 
 
 272 
 
 50 
 
 63 
 
 8 
 
 63 
 
 37 
 
 898 
 
 20 
 
 99 
 
 5,039 
 
 1905. 
 
 489 
 
 2,001 
 
 602 
 
 352 
 
 207 
 
 57 
 
 51 
 
 8 
 
 82 
 
 38 
 
 1,035 
 
 5 
 
 93 
 
 5,020 
 
 Total 
 
 2,863 
 
 11,409 
 
 4,036 
 
 2,187 
 
 1,612 
 
 697 
 
 460 
 
 54 
 
 414 
 
 232 
 
 5,741 
 
 42 
 
 608 
 
 30,355 
 
 During 1905 in New York County out of 3,887 
 indictments .64 per cent (including pleas of guilty) 
 resulted in convictions. The following table shows 
 
176 
 
 THE PEISONEE AT THE BAR 
 
 a gradually increasing percentage of convictions as 
 a whole for the past six years : 
 
 Year 
 
 Number of Indict- 
 ments Disposed of 
 
 Total Convictions 
 
 Ratio 
 
 1900 
 
 3620 
 
 2096 
 
 5790 
 
 1901 
 
 4096 
 
 2 389 
 
 5839 
 
 1902 
 
 4 410 
 
 2 428 
 
 5506 
 
 1903 
 
 3 909 
 
 2 403 
 
 6144 
 
 1904 ... o 
 
 4,022 
 
 2,466 
 
 .6131 
 
 1905 
 
 3887 
 
 2 490 
 
 6405 
 
 
 
 
 
 During this six-year period 23,944 indictments 
 were finally disposed of either by trial, plea, direc- 
 tion of the court or on the recommendation of the 
 district attorney. These dispositions bear the fol- 
 lowing ratios to each other : 
 
 Year 
 
 Convic- 
 tions by 
 Verdict 
 
 Pleas of 
 Guilty 
 
 Acquittals 
 by Verdict 
 
 Acquittals 
 Directed 
 
 Discharges 
 
 Minor Dis- 
 positions 
 
 1900 
 1901 
 1902 
 1903 
 1904 
 1905 
 
 .1171 
 .1345 
 .0950 
 .1239 
 .1231 
 .1258 
 
 .4619 
 .4487 
 .4556 
 .4905 
 .4901 
 .5148 
 
 .1013 
 .0840 
 .0792 
 .0786 
 .0887 
 .0769 
 
 .1012 
 .0840 
 .0791 
 .0785 
 .0853 
 .0779 
 
 ,1707 
 .1831 
 .2324 
 .1770 
 .1685 
 .1585 
 
 .0478 
 .0657 
 -0587 
 .0515 
 .0443 
 .0461 
 
 What the reader is naturally most curious to dis- 
 cover is in what proportion of cases (where they 
 had any say in the matter at all) the jury let the 
 defendant go. Roughly speaking, the proportion of 
 convictions to acquittals ~by actual verdict is some- 
 what less than two to one. 
 
 Year 
 
 Number 
 Convictions 
 by Verdict 
 
 Number 
 Acquittals 
 by Verdict 
 
 Convictions 
 Per Cent 
 
 Acquittals 
 Per Cent 
 
 1900 . . 
 
 424 
 
 367 
 
 54 
 
 46 
 
 1901 
 
 551 
 
 344 
 
 62 
 
 38 
 
 1902 
 
 419 
 
 040 
 
 KB 
 
 45 
 
 1903 
 
 485 
 
 307 
 
 61 
 
 39 
 
 1904 , .... 
 1905 
 
 495 
 489 
 
 357 
 oqq 
 
 58 
 62 
 
 42 
 38 
 
 
 
 
 
 
THE TRIAL OF FELONIES 177 
 
 The writer desires very particularly not to be 
 understood as suggesting that because the district 
 attorney in all these cases thought the defendant 
 guilty or even knew him to be guilty, the action 
 of the jury was necessarily improper. So far 
 as his opinion may be worth anything he be- 
 lieves thoroughly in the jury system in criminal 
 cases, with some trifling modifications. In a vast 
 proportion of the cases in which acquittals re- 
 sulted there was undoubtedly room for an honest 
 difference of opinion as between reasonable men, 
 men in the long run better qualified to judge of the 
 defendant's guilt on the evidence than the prosecu- 
 tor himself, who is always at the disadvantage of 
 knowing the " inside " or * ' unprovable " elements of 
 the People 's case, a fact which is apt to lead him to 
 believe that the record establishes his own contention 
 more than it appears to do so to the jury. The 
 propriety of any jury's action must be determined 
 only upon the basis of the evidence presented to 
 them, and upon which they are permitted to act. The 
 writer is inclined to believe that nearer eighty than 
 sixty per cent of the defendants tried should be 
 convicted. In the heat of conflict he might even 
 claim ninety per cent and maintain that if a major- 
 ity of eleven on each jury could render a verdict, 
 nine out of every ten defendants, after a hearing in 
 the magistrate's court, an examination by the grand 
 jury, and a careful investigation by the prosecutor's 
 office, should be convicted. Whatever legislation 
 may be enacted, however, the conduct of juries will 
 in all likelihood remain as enigmatical as ever. 
 
CHAPTER X 
 THE JUDGE 
 
 THE two principal functions of the judge of a 
 criminal court are, first, to preside at the trial, de- 
 claring the law and seeing to it that the rules of 
 procedure and of evidence are properly observed 
 and, second, to impose sentence in case of a con- 
 viction J In the first case he is a judge of the law ; in 
 
 the last he becomes a judge of the facts. It would 
 be impossible to say which of these duties is the more 
 important, but the latter is certainly vastly the more 
 difficult. An unjust sentence is as bad, if not worse, 
 than an unfair trial, for the defendant does not have 
 a chance of escape and, since punishment is a matter 
 of discretion upon the part of the judge, it cannot be 
 considered or reversed on appeal. It must be of 
 precious little satisfaction to a convicted prisoner 
 to know that he has had a perfectly impartial trial, 
 if at the same time he receives a sentence four times 
 longer than he deserves, and equally little consola- 
 tion to a prosecutor when, after a fair contest, he has 
 convicted a political rascal of influence if the judge 
 "suspend sentence" and the defendant is permitted 
 to walk the streets in spite of his offences. 
 
 The amount of learning requisite to preside with 
 efficiency at an ordinary criminal trial is compara- 
 tively small, and provided the judge be honest, im- 
 partial, possessed of common-sense and what is 
 known as "backbone," neither prosecutor nor de- 
 ns 
 
THE JUDGE 179 
 
 fendant's counsel need, as a rule, complain, but the 
 trouble, time, courage and discrimination necessary 
 adequately to determine what punishment should be 
 meted out to a particular offender for a given offence 
 cannot well be overestimated. It is not a difficult 
 matter to preside with dignity at a trial, preserve 
 order, exclude hearsay testimony, apply the other 
 simple rules of evidence that are ordinarily involved 
 in a case of assault, larceny, burglary or homicide, 
 and instruct a jury as to * ' reasonable doubt, ' ' ' * good 
 reputation" and the "presumption of innocence" 
 in words of one syllable. We may fairly assume that 
 it is no harder for the ordinary judge to try a man 
 for picking a pocket than it is to dress himself in the 
 morning. It must in time become automatic if not 
 almost sub-conscious. He could probably do it in 
 his sleep. Most petty criminal cases "try them- 
 selves. ' ' The trouble begins when the same judge is 
 compelled to decide whether the convict shall be 
 sent to the Elmira Reformatory (where he may 
 reasonably expect to be discharged in fourteen 
 months) or to State's prison for twenty years. 
 
 Let us consider first the conduct of the judge dur- 
 ing the trial itself. Theoretically it is his duty, at 
 least in most States of the Union, simply to declare 
 the law governing the case and to rule impartially 
 upon the questions of evidence presented. He is 
 supposed to give no hint of his own opinion as to 
 whether or not the defendant should be convicted 
 and to refrain from any marshalling of the facts 
 claimed to have been proven by either side in such 
 a way as to influence the verdict of the jury. In 
 England he may and generally does "sum up" the 
 case; in America such a course would usually be a 
 
180 THE PEISONEE AT THE BAB 
 
 ground for reversal, his function being limited to 
 an abstract discussion of the law involved, with 
 little reference to the facts save in so far as it may be 
 necessary for purposes of illustrating the way in 
 which the jury shall apply it. He is supposed to sit 
 upon his dais serenely, indifferent as to whether 
 a murderer be convicted or acquitted, whether 
 an inexperienced assistant district attorney be 
 "trounced" by an astute criminal lawyer with a 
 couple of generations of trial experience, or, on the 
 other hand, a bulldozing prosecutor bedevil a miser- 
 able prisoner, defended by an ignorant and untutored 
 counsel, into State's prison, provided either be 
 done within the strict rules of evidence and proper 
 court behavior. 
 
 This may be all very well in theory, but it is very 
 far from what is either followed in practice or, to 
 speak frankly, desirable. What the people want in 
 our criminal courts is, of course, a ' ' fair trial, ' ' but 
 they want a i i fair trial ' ' that results in the acquittal 
 of the innocent and the conviction of the guilty, 
 so long as he is convicted by what they deem 
 fair means. The people do not expect a judge 
 to be more than human. Did he appear as in- 
 different to results as theory might seem to re- 
 quire the jury would quickly infer that the case 
 was of slight importance and their action a matter 
 of utter indifference to the court. Juries need to be 
 kept in order and made to behave themselves, and, 
 if judges did not from time to time exert a discipli- 
 nary influence, would easily run wild and become 
 hopelessly demoralized. It is almost impossible to 
 overestimate the awe with which the ordinary jury- 
 man regards the judge presiding at a criminal trial. 
 
THE JUDGE 181 
 
 He may have a supreme contempt for his personality 
 or private conduct, but once let the judicial ermine 
 enshroud the individual and he sees only the judge, 
 the personification of the law, the autocrat of the 
 court-room, the "boss" of the particular "job" 
 upon which he is temporarily employed. He knows 
 nothing of the abstract theory of the situation. He 
 wants to do well as a juryman and believes, quite 
 naturally, that an improper verdict will be visited 
 by the judicial wrath and a just one be acknowledged 
 by a look of benignant commendation. If he thought 
 the judge did not care he would take little interest in 
 the business himself, and the apprehension of the 
 court's approval or disapproval is an ever-present 
 factor in keeping him doing conscientious work, 
 quite as important in its results as his own lightly 
 murmured oath as a juror. 
 
 The judge, in addition to his theoretic duties, is 
 in effect the individual who must keep the gang at 
 work and see that every one of them earns his two 
 dollars a day. If he appeared to them to be star- 
 gazing or studying Epictetus they would soon rest 
 on their shovels. Many juries take their cue from 
 the court, laughing when he laughs, and frowning 
 when he frowns, and instinctively, however much he 
 may admonish them to the contrary, trying to deter- 
 mine from his manner and charge what his own 
 impression of the case may be. 
 
 Now, a judge who has sat for ten or fifteen years 
 on the criminal bench is usually keener to detect a 
 liar or see through a "faked" defence than any 
 twelve men drawn indiscriminately from different 
 walks of business activity. A timely question from 
 him may demolish a perjured explanation which, but 
 
182 THE PKISONER AT THE BAE 
 
 for his interference, would have acquitted a guilty 
 criminal. Theoretically it is none of his business. 
 Practically it is. An inexperienced prosecutor may 
 be so inadequate to the task of coping with some 
 old war-horse of a lawyer that save for the assist- 
 ance of the court a rascal would be turned loose 
 upon the community ; or, turn about, a stupid lawyer 
 may convict his own client if not prevented by a con- 
 siderate presiding justice. Theoretically the judge 
 must let the parties fight it out by themselves. In 
 point of fact it is his business to even things up. 
 The old country judge was not so far wrong when 
 on being assigned to the criminal term of the Su- 
 preme Court in New York City he said to the prose- 
 cutor: 
 
 "Mr. District Attorney, I reckon that, between us, 
 we shall let no innocent man be convicted, and no 
 guilty man escape. " 
 
 Practically this expresses in a nutshell the popu- 
 lar idea of what a criminal judge is for, and it is 
 certainly the idea which pervades the minds of the 
 jury. Nothing can eradicate it. It is a fact, an 
 existing condition, which the court must inevitably 
 take into consideration in determining his course of 
 conduct upon the bench. By this it is not meant that 
 a judge should be either counsel for the defendant 
 or district attorney, nor that he should force his 
 ideas upon the jury, but simply that to be effective 
 he must be more than a nonentity, a mere law book, 
 or an ornament, must guide the course of the trial, 
 and, in default of its being done by the counsel on 
 either side, test by his questions the truth or falsity 
 of the testimony. More than this, he should in his 
 charge indicate the tests which the jury should apply 
 
THE JUDGE 183 
 
 to the various phases of the evidence and, while not 
 influencing them upon the questions of fact which 
 they are to determine, should nevertheless so eluci- 
 date their task that they may be guided in their 
 deliberations and not go astray among the tangled 
 underbrush of an adroit counsellor's " requests to 
 charge. ' ' 
 
 The writer has endeavored in the preceding para- 
 graphs to set forth briefly the theoretical function 
 of the judge as opposed to his proper practical func- 
 tion if he is to be of any value in the actual adminis- 
 tration of criminal justice. One more step is neces- 
 sary, namely, to comment on the actual conduct of 
 some judges who from natural disposition or a con- 
 scientious purpose to "do justice " are inclined to 
 usurp the function of the jury and practically to 
 direct either an acquittal or a conviction. 
 
 Under our prevailing doctrines the court has no 
 right to influence the jury on the facts in the slight- 
 est degree, and indeed most judges expressly direct 
 the jury to disregard absolutely any idea they may 
 have obtained of what the court's opinion may be. 
 This, in the face of the balance of the charge, must 
 often seem paradoxical to the talesman, for few 
 judges entirely succeed in concealing their own 
 views of the case, however hard they may honestly 
 try to do so. 
 
 It is quite as foreign to the spirit of our institu- 
 tions for a judge to interfere with the jury on ques- 
 tions of fact as for a jury to arrogate to itself the 
 decision of points of law. The system is designed 
 to do " justice " by means of its several parts work- 
 ing harmoniously together, but neither part "work- 
 ing justice" by itself. If the judge arrogate the 
 
184 THE PRISONER AT THE BAR 
 
 jury's functiou, the jury becomes superfluous. This 
 is not the intent of the Constitution. There is no 
 real trial by jury when the judge decides the whole 
 matter, and it would be far more dangerous for a 
 single man to act as arbiter of the defendant's fate 
 than for twelve. Yet more or less consciously there 
 is often a tendency upon the part of the criminal 
 bench to lend itself to the success of one party or 
 the other, however positively it may declare and 
 direct to the contrary. The actual amount of sug- 
 gestion needed to give the jury an effective hint is 
 infinitesimal. The almost imperceptible accentua- 
 tion of a word, the slightest lifting of an eyebrow, 
 and a verdict has been determined by the judge. 
 
 Now a printed record on appeal fails utterly to 
 disclose the tone of the voice or the stage effects of 
 a judge's charge. A distinguished member of the 
 bench, now long since deceased, was accustomed to 
 deliver charges so drastic that a defendant charged 
 with a serious offence rarely, if ever, escaped. Upon 
 appeal absolutely no exception could be taken to his 
 remarks, yet nothing more unfair could be conceived 
 of. The record would show that the judge had 
 charged : 
 
 ' ' If you believe the defendant 's testimony you will 
 of course acquit him. He is presumed to be inno- 
 cent until the contrary is proved. If you have any 
 reasonable doubt as to his guilt you must give him 
 the benefit of it. On the other hand, if you accept 
 the testimony offered by the People you may and 
 will convict him. ' ' 
 
 Now, nothing on its face would seem to be fairer. 
 What the jury actually heard was : 
 
 "If [scornfully] you believe the defendant's testi- 
 
THE JUDGE 185 
 
 mony you will of course acquit him. He is presumed 
 [with a shrug of the shoulders] to be innocent until 
 the contrary is proved. If you have [another shrug] 
 any reasonable doubt as to his guilt you must give 
 him the benefit of it. On the other hand, if you ac- 
 cept the testimony offered in behalf of the People 
 you may and will convict him!" [The last few 
 words in tones of thunder.] 
 
 Sometimes a judge becomes known as a " convict- 
 ing " judge, although, perhaps, at the same time as 
 a learned one. This usually occurs where a man of 
 pronounced opinions with the advocate's tempera- 
 ment is elevated to the bench. Very likely by in- 
 clination he is a "prosecutor," with strong preju- 
 dices against law-breakers and bitterly intolerant 
 of technicalities. The powers that prey may cower 
 inert in their dens of darkness knowing full well 
 that if one of them be haled before this Jeffries he 
 will pay the uttermost penalty. Yet the spectacle 
 of such a judge does not increase the public respect 
 for law, and juries sometimes revolt and acquit out 
 of sheer resentment at such dictation. But happily 
 these men are of the past, and the more enlightened 
 sentiment of to-day would frown as much upon a 
 "hanging" judge as upon a jelly-backed wearer of 
 the gown who was afraid of the displeasure of some 
 politician if a "heeler" were convicted and who 
 ruled systematically against the people because they 
 had no appeal and could take no exceptions to his 
 conduct. 
 
 Nothing strikes so sharply at our conception of 
 liberty as the failure of criminal justice, and the 
 conviction of a defendant not legally proven guilty 
 or the acquittal of an influential criminal has a more 
 
186 THE PEISONEE AT THE BAE 
 
 disastrous effect upon the body politic than ten thou- 
 sand bales of anarchistic propaganda. The partisan 
 judge, who makes up his mind to convict or acquit if 
 he can, may be right nine times out of ten, but the 
 other time he commits an outrage. The judicial 
 temperament is a jewel above all price. The writer 
 recalls a certain case of a variety subject at the time 
 to great public condemnation, where the judge before 
 the indictment was moved for trial, inquired casually 
 of the clerk what the defendant was charged with. 
 When he learned the nature of the accusation he 
 exclaimed audibly: 
 
 6 ' Ha ! He 's one of those s, is he ? Well, I 'LL 
 
 try this case ! ' ' And he did. Unfortunately judges 
 often "try" cases, either for the defendant or 
 against him. 
 
 Nothing is more unfortunate for the judicial equi- 
 librium than the fact that the prosecution has no 
 right of appeal in the event of a verdict of acquit- 
 tal. The judge may persistently prevent the dis- 
 trict attorney from putting questions which are 
 both competent and proper and rule flatly against 
 him on the most obvious points of law without any 
 redress on the part of the people. A weak judge will 
 take no chances on being reversed and will pursue 
 this course, while at the same time he is allowing 
 every latitude to defendant's counsel and is ruling 
 in his favor in defiance of the established doctrines 
 of law. 
 
 A criminal lawyer of great adroitness, learning 
 and probity, after he had concluded an argument of 
 the most utter absurdity to which the presiding judge 
 had listened with much attention and apparent con- 
 sideration, frankly stated to the writer : 
 
THE JUDGE 187 
 
 "You think my argument was nonsense? Well, 
 you are quite right, it was. But no proposition of 
 law is too far-fetched or ridiculous to be advanced 
 in behalf of a defendant without some prospect of 
 success in our criminal courts. " The lawyer in 
 question will undoubtedly recognize his dictum in 
 these pages. 
 
 The attitude and disposition of the various judges 
 becomes speedily known among the members of what 
 is popularly known as the "criminal bar/' and 
 heroic efforts (often successful) are made to bring 
 certain cases before the "right" judge. 
 
 "Do you think I'd try the Smith case before 
 1 ' ' one will say. ' ' Not on your life ! ' ' 
 
 In similar fashion lawyers retained by complain- 
 ants will seek to have their cases put on the calendar 
 of such and such a judge. 
 
 "Put it before ," they will say. "He's hell 
 
 on larceny!" 
 
 Some judges are supposed to be more lenient in 
 the matter of sentences than their brothers of the 
 bench, but the writer, after six years of observation, 
 believes this to be a fiction. They are all lenient, 
 entirely too much so. 
 
 Much of the impression among criminal lawyers 
 that they will fare worse at the hands of one mem- 
 ber of the judiciary than another is due to the 
 obvious fact that some judges are by reason of their 
 training better suited to sit in certain classes of cases 
 than others. One may have had an exhaustive ex- 
 perience in commercial matters and thus be bet- 
 ter qualified to pass upon the questions of law 
 involved therein. Another may have heard many 
 complicated cases involving expert testimony, etc., 
 
188 THE PRISONER AT THE BAR 
 
 etc. Of course as a rule the less well equipped a 
 judge is to hear a certain kind of case the more apt 
 he will be to listen to ill-founded argument on the 
 law or the facts. No insurance swindler would want 
 to be tried before an expert on insurance law. He 
 would very naturally prefer a judge whose expe- 
 riences had converged upon assault and battery. It 
 must be admitted that occasionally a judge is to be 
 found who seems to feel that every complainant who 
 has lost money in a commercial transaction has no 
 standing in the criminal courts but must be relegated 
 to civil tribunals. This is but another way of say- 
 ing that such a judge does not believe that the crim- 
 inal law is meant to cover cases where there has been 
 fraud in commercial transactions. This is hardly 
 to be wondered at considering the present ineffect- 
 iveness of our statutes governing such classes of 
 crime. 
 
 The writer recalls prosecuting such a case before 
 a certain judge who, after hearing some rather com- 
 plicated evidence in regard to certain written instru- 
 ments, called abruptly for the defendant. The latter 
 took the stand, and the judge inquired with a smile : 
 
 "You didn't intend to cheat this man, did you?" 
 
 " Certainly not!" cried the defendant. 
 
 "Gentlemen of the jury!" said the judge. "This 
 is not the kind of case that should be brought before 
 a jury at all. This court is not the place to collect 
 civil debts. I instruct you to acquit." 
 
 Learning wisdom by experience, the writer moved 
 the case of the co-defendant for trial before another 
 judge and convicted him, although he was, if any- 
 thing, less guilty than the first. He was sentenced 
 to a substantial term in State's prison. 
 
THE JUDGE 189 
 
 As a rule, however, little fault can be found with 
 the conduct of our judges at criminal jury trials. In 
 some instances it may seem to one side or the other 
 that a j-udge shows bias, but these cases are compar- 
 atively few and seldom result in any actual miscar- 
 riage of justice. If some judges are inclined to rule 
 against the People upon doubtful questions of law, 
 this in the long run has at least the beneficial effect 
 of reducing the number of cases reversed upon ap- 
 peal. The judges are almost invariably courteous, 
 long-suffering, and given to allowing the greatest 
 latitude to each side in getting its evidence before 
 the jury. In addition they are practical men of com- 
 mon-sense, most of them of long and profitable expe- 
 rience, and experts in the rapid disposition of 
 business. 
 
 Let us now turn to the other and no less important 
 function of the judge, the imposition of sentence. 
 It is a platitude that the chief failing of modern 
 criminal justice is the inequality of punishment. 
 It may well be and often is the case that in one 
 branch of the General Sessions a prisoner is being 
 released upon " parole" under a "suspended" sen- 
 tence at the precise moment that some other and no 
 more guilty defendant in another branch of the same 
 court is being sentenced to prison for three, five or 
 even ten years at hard labor. 
 
 That most able and practical of English criminal 
 judges, Sir Henry Hawkins, has this to say in his 
 reminiscences in the matter of sentences of con- 
 victed persons : 
 
 "The want of even an approach to uniformity in 
 criminal sentences is no doubt a very serious matter, 
 and is due, not to any defect in the criminal law 
 
190 THE PRISONER AT THE BAR 
 
 (much as I think that might be improved in many 
 respects), but is owing to the great diversity of 
 opinion, and therefore of action, which not unnatu- 
 rally exists among criminal judges. . . . 
 
 "The result of this state of things is extremely 
 unsatisfactory, and the most glaring irregularities, 
 diversity and variety of sentences are daily brought 
 to our notice, the same offence committed under 
 similar circumstances being visited by one judge 
 with a long term of penal servitude, by another with 
 simple imprisonment, with nothing appreciable to 
 account for the difference. 
 
 "In one or the other of these sentences discretion 
 must have been erroneously exercised. . . . Ex- 
 perience, however, has told us that the profoundest 
 lawyers are not always the best administrators of 
 the criminal law. . . . " 
 
 Sir Henry likewise speaks of the great intellectual 
 difficulty of a conscientious English judge in try- 
 ing to determine for himself the amount of pun- 
 ishment he should inflict in any given case. The 
 English bench occupies an altitude practically 
 unknown in this country. Access to it is far 
 less easy than with us, and the personal, famil- 
 iar, and off-hand method of communication be- 
 tween the judge and the bar, not to mention inter- 
 ested outside parties, witnesses, and relatives of the 
 defendant, in vogue in our trial courts would hardly 
 be viewed there with favor. It is the wholesale 
 attempted interference with the action of the judges 
 in our criminal courts that imparts a flavor of inde- 
 cision and arbitrariness to so many scenes upon a 
 sentence day. It is not unheard of to see a prisoner 
 actually at the bar awaiting sentence while the judge 
 
THE JUDGE 191 
 
 upon the bench holds a sort of open levee, free to all 
 comers, in which the prisoner's lawyer, his wife, the 
 officer who made the arrest, the complainant, and 
 the district attorney (and sometimes others who 
 have far less claim to be heard) endeavor to bring 
 the judge to their own particular way of thinking, 
 and harangue him and each other in tones by 
 no means always either deferential or amicable. 
 Meanwhile the judge who will permit any such per- 
 formance sits with an expression of exasperated in- 
 decision, and usually finally ends the matter by 
 11 remanding " the prisoner for further investiga- 
 tion. Such scenes are calculated to bring the admin- 
 istration of justice into contempt.. Snap-shot judg- 
 ments formed in the midst of an altercation may be 
 unfair to the defendant and frequently are so to the 
 People. A judge who tries to please everybody ends 
 by pleasing nobody and makes a farce of justice. 
 The administration of the criminal law is not a pleas- 
 ing matter nor is it conducted for the purpose of 
 pleasing the various parties. The judge is there to 
 attend to his own business and make his own deci- 
 sions. The writer once heard a judge inflict sentence 
 in the following manner : 
 
 "Your counsel says sentence ought to be sus- 
 pended upon you. The district attorney says you 
 ought to get five years in State's prison. Well, I'll 
 split the difference and send you to the Elmira 
 Reformatory. ' ' 
 
 The sentence may have been the result of a con- 
 scientious and careful attempt upon the part of the 
 judge to decide the question, but the phraseology in 
 which it was couched will hardly commend itself as 
 a standard. 
 
192 THE PKISONEK AT THE BAE 
 
 A thousand indefinite factors enter into the deter- 
 mination of the exact amount of punishment to be 
 meted out to an offender, and relatively trivial cir- 
 cumstances may eventually decide whether the stroke 
 of the judge's pen in his sentence book shall swerve 
 from a "three" into a "five." Assuming that the 
 judge have the rectitude of a granite monolith and 
 be impervious to influence of every sort, he is never- 
 theless compelled when inflicting sentence to depend 
 in large measure upon "hearsay" testimony and evi- 
 dence that could not possibly be admitted upon actual 
 trial. He seeks to find out if he can what the past 
 record and reputation of the defendant have been, 
 and in so doing often is forced to rely almost en- 
 tirely upon the word of the officer who originally 
 made the arrest. If the latter be vindictive he can 
 easily convey the impression that the defendant is 
 a man of the worst possible character who has 
 hitherto had the luck to escape being caught. In 
 most cases the prisoner has little opportunity to 
 traverse these vague and generally unheard allega- 
 tions. Again it often happens that he has been pre- 
 viously arrested. This fact is of course excluded 
 upon the trial for his present crime upon the com- 
 mon-sense doctrine that the fact of his former arrest 
 of itself proves nothing whatever as to his guilt or 
 innocence of the charge upon which he was thus 
 arrested. When, however, he comes up for sentence 
 it is frequently considered by the court, no matter 
 what the subsequent disposition of the case against 
 him may have been, on the general assumption that 
 "where there is so much smoke there is generally a 
 little fire. " If he has actually been convicted before, 
 the fact weighs heavily against him. 
 
THE JUDGE 193 
 
 Almost anything may be presented for the consid- 
 eration of th'e judge, however remote its connection 
 with the crime of which the defendant has been 
 convicted, and either as militating for or against the 
 prisoner. Affidavits, letters, newspaper clippings 
 and memoranda are submitted tending to show that 
 he is of either good or bad character, has had a repu- 
 table or a disreputable past, has or has not committed 
 or attempted to commit other crimes, or is or is not 
 likely to "reform." Often these may have a good 
 deal of weight, but the persons who present them are 
 almost never sworn or placed upon the witness-stand 
 or the defendant or prosecutor given a chance to 
 cross-examine them as to their accuracy. 
 
 The mere attitude of complainants, obviously an 
 entirely immaterial matter, is also often a consider- 
 able factor in determining how the prisoner shall be 
 disposed of. If they are vindictive and anxious to 
 "make an example " of the offender it may happen 
 that they will persuade the judge honestly to believe 
 that a heavy sentence should be inflicted, whereas if 
 they are sorry for the prisoner and his family and 
 are willing to "give him another chance," and inter- 
 cede strongly for him, the judge may * ' suspend sen- 
 tence ' ' upon the same man. Now the attitude of the 
 parties wronged is largely determined by the char- 
 acter and disposition of the parties themselves, and 
 of course in many cases has no relation whatever to 
 the real rights of the case. For example, a half- 
 drunken laborer lacking the money to buy liquor 
 may wander into an area and cut away a strip of 
 copper water-spout belonging to some old lady. He 
 sells it for a few cents and then is arrested and is 
 convicted of petty larceny. No one has any par- 
 
194 THE PRISONER AT THE BAR 
 
 ticular interest in the case and the old lady comes 
 into court and begs for the defendant's " parole. " 
 He has hitherto led a decent life and the judge lets 
 him go. Now, if the same man, instead of stealing 
 a piece of pipe out of an area, finds himself in the 
 vicinity of a freight yard and cabbages a piece of 
 iron belonging to a railroad company, he is no 
 sooner convicted than the attorneys for the com- 
 pany swarm about the judge demanding that "this 
 wholesale pillage of corporation property " be put 
 an end to, that an example be made of such thieves, 
 and insisting that it is an important case where a 
 severe sentence should be inflicted. The judge can- 
 not be blamed if his mind is, to a certain extent, 
 affected by the representations of these gentlemen 
 and he may easily give the defendant six months 
 or a year in the penitentiary. The moral guilt of the 
 prisoner is precisely the same and so will be the 
 significance of his punishment so far as its serving 
 as a deterrent to himself or to others is concerned. 
 
 Another instance is where a young clerk in a bank- 
 ing, express, or insurance office is caught pilfering. 
 He has, to be sure, violated the trust reposed in him, 
 but if the officers of the company are disposed to 
 intercede in his behalf and express the belief that he 
 "has learned his lesson " it is probable that they 
 can persuade the judge to give the boy another 
 chance, whereas if their attitude were otherwise he 
 would, and perhaps very properly, be sent to Elmira 
 or to State's prison. It thus, in many cases, lies 
 within the power of the lawyer for a defendant, if he 
 be assiduous, persuasive, or have influence which 
 can be exerted upon the complainant in the case, to 
 lessen materially the sentence of his client, who with- 
 
THE JUDGE 195 
 
 out his services would perhaps receive the maximum 
 of punishment. The poor or friendless prisoner, 
 who cannot pay for able or indefatigable counsel, 
 inevitably suffers in consequence, for his defence to 
 punishment after trial cannot be adequately pre- 
 sented. His guilt is the same. 
 
 Another matter, frequently entirely fortuitous, 
 which yet may affect the question of punishment, is 
 the fact of restitution. Where a prisoner has been 
 guilty of embezzlement or theft and afterwards re- 
 turns the money it is almost inevitably taken into 
 consideration when sentence is imposed. Naturally 
 it is apt to affect the attitude of the complainant in 
 the highest degree. Now, if the offender be merely 
 foolish, he very probably has spent the money he 
 has stolen in gambling or feasting, while if he be 
 shrewd and cunning he has laid it by until he can 
 accumulate enough to go to South America. In the 
 latter case he can be made to disgorge ; in the former 
 he cannot, and is often far worse off when he comes 
 to be sentenced than if he had been more criminally 
 minded. 
 
 From what has been said the reader should not 
 infer that the majority of sentences are excessive. 
 In point of fact the leniency of most of our judges 
 is surprising, and when they err it is invariably upon 
 the side of mercy. The sentences actually inflicted 
 are often so short that they must seem to the average 
 layman almost trivial, and the number of cases in 
 which sentence is " suspended " and the offender 
 paroled in the custody of the Prison Association is 
 almost eighty per cent of the total number of first 
 convictions. 
 
 The reasons for this leniency are varied. Pri- 
 
196 THE PRISONER AT THE BAR 
 
 marily it is because the judge realizes that it is not 
 so much the length of imprisonment as the fact that 
 the defendant is imprisoned at all that, in the major- 
 ity of cases, acts as a deterrent upon that particular 
 offender and upon those to whom his conviction is 
 calculated to serve as an example ; secondarily, it is 
 due to the sentimental attitude of society towards 
 criminals of all varieties ; and, lastly, to an apprecia- 
 tion of the unfortunate inequality of punishment, 
 and the difficulty in adequately and justly determin- 
 ing what weight should be given to hearsay evidence 
 as to the convict's past history. In some instances 
 leniency may arise from other and less creditable 
 sources, such as sheer cowardice in defying in- 
 fluence, political or otherwise, the desire to curry 
 popular favor in the hope of subsequent preferment 
 in office, or possibly from the hope that if a light 
 sentence is inflicted the case will not be appealed 
 and the conviction reversed. This dread of reversal 
 in the case of some judges amounts almost to 
 hysteria, and there are well-known instances in 
 which judges in the criminal courts have stood 
 heroically by the district attorney and the People 
 with the result that some scoundrel of great politi- 
 cal influence has been convicted, and have then com- 
 pletely nullified the effect of their good conduct by 
 weakly suspending sentence or by inflicting one so 
 slight as to arouse the amusement and contempt of 
 even the defendant himself. 
 
 The ultimate object of the proper administration 
 of criminal justice is to sustain and increase the 
 general respect for law. If it result in a lessened 
 regard for law by engendering a belief that its offi- 
 cers are weak, cowardly, venal, or ineffective, it is a 
 
THE JUDGE 197 
 
 failure. The adjuration therefore to avoid even the 
 appearance of evil applies strongly to all members 
 of the bench. Nothing conduces more to lawlessness 
 than a popular impression that criminal judges are 
 incapable, "easy," or are subject to influence. A 
 judge who, it is supposed, can be "reached," is 
 an incentive to crime. Now it is highly improbable 
 that any judge is ever "reached." Our judges are 
 honorable men. But once let an impression to the 
 contrary get abroad among criminals and the 
 same result follows as if the judge were actually 
 "crooked." If a judge is supposed to be amenable 
 to influence, the criminal will assume that his own 
 particular pull will be effective. 
 
 As an illustration, let us suppose that one of a 
 band or "gang" of young toughs has been appre- 
 hended in making a vicious assault which might well 
 have resulted in murder. Perhaps he has been paid 
 fifty or a hundred dollars to "knock out" (kill) his 
 victim. He receives a fair trial and is convicted. He 
 deserves all he can get ten years. Instead he is 
 sent to the Elmira Eeformatory. The rest of the 
 gang, with their hangers-on, amounting in number 
 very likely to forty or fifty youths and men, are 
 immediately convinced either that they have been 
 able to influence the judge through their political 
 friends or that he and his, associates are "easy." 
 "Going to Elmira" is nothing in their eyes; and the 
 conviction of their comrade results in no deterrent 
 effect upon them whatever. He becomes a clever 
 hero. Any one of them is ready to undertake the 
 same job at the same price. If his conviction be 
 reversed and he be set at liberty they conclude that 
 in addition the authorities are incapable and that 
 
198 THE PRISONER AT THE BAR 
 
 they can "beat the case" any time they happen to 
 be caught. The effect of an important conviction 
 reversed in its effect upon lawless sentiment cannot 
 be overestimated. 
 
 A sense of judicial propriety is one of the most to 
 be desired qualities in a judge. The slightest suspi- 
 cion that he is giving ear to voices from behind the 
 dais nullifies his effectiveness and destroys popular 
 respect for the law which he may perhaps in fact 
 enforce with ability and justice. The sight of a poli- 
 tician emerging from a judge's chambers may base- 
 lessly destroy the latter ? s influence for good. Actual 
 infractions of judicial propriety should be visited 
 with the utmost severity. Prescott speaks of the 
 jealousy of the Aztecs of the integrity of their bench : 
 
 "To receive presents or a bribe, to be guilty of 
 collusion in any way with a suitor, was punished in 
 a judge with death. Who or what tribunal decided 
 as to his guilt does not appear. In Tezcuco this was 
 done by the rest of the court. But the king presided 
 over that body. The Tezcucan prince, Nezahua 
 Epilli, who rarely tempered justice with mercy, put 
 one judge to death for taking a bribe, and another 
 for determining suits in his own house, a capital 
 offence, also, by law." Perhaps this was going too 
 far. 
 
 "The judges of the higher tribunals," he contin- 
 ues, "were maintained from the produce of a part 
 of the crown lands, reserved for the purpose. They, 
 as well as the supreme judge, held their offices for 
 life. The proceedings in the courts were conducted 
 with decency and order. The judges wore an appro- 
 priate dress, and attended to business both parts of 
 the day, dining always, for the sake of despatch, in 
 
THE JUDGE 199 
 
 an apartment of the same building where they held 
 their session; a method of proceeding much com- 
 mended by the Spanish chroniclers, to whom de- 
 spatch was not very familiar in their own tribunals. ' ' 
 
 We can appreciate to a considerable extent the 
 emotions of the Spanish chroniclers. Judges often 
 dine together, but not always for the sake of de- 
 spatch. The writer has no hesitation in affirming 
 that disregard of the comfort and time of jurors 
 and witnesses is the most obvious fault of certain 
 of them. Some judges occasionally adjourn court 
 from one until two and make their own appearance 
 any time before three. It is small consolation to a 
 juror nervously distracted by waiting to find that 
 the judge expects conscientiously to make up the 
 time thus lost by keeping the jury at work until 
 five. In most instances, however, the judges are 
 more punctual and business-like than the jurors and 
 counsel who appear before them. 
 
 Some judges occasionally seem to feel that the 
 benefit of the "reasonable doubt " to which a pris- 
 oner is entitled before the jury remains with and 
 should be given to him even after conviction. This 
 sometimes manifests itself in the extraordinary phe- 
 nomenon of a defendant who has stood trial and 
 perjured himself in his own behalf receiving a less 
 severe sentence than his co-defendant who has 
 pleaded guilty and saved the county the expense and 
 labor of a trial. There was once a case where this 
 occurred in which two of the perpetrators of a brutal 
 robbery pleaded guilty and received seven years 
 apiece, while their "side-partner," after being con- 
 victed before a jury, was given five years by another 
 judge. It was not in this case, but an earlier one, 
 
200 THE PEISONEE AT THE BAB 
 
 in which a judge, obviously on the theory of rea- 
 sonable doubt, addressed the prisoner substantially 
 as follows: 
 
 " Young man, you have been convicted by a jury 
 of your peers after a fair trial. Your offence is a 
 heinous one. You took the stand and perjured your- 
 self, asserting your innocence. I might inflict a 
 severe punishment. Still, under all the circum- 
 stances, and in view of your claim that you are not 
 guilty, I will suspend sentence." 
 
 The reader should not and will not assume that 
 these instances of unequal punishment and erratic 
 clemency are set forth for the purpose of illustrating 
 the usual course of justice. They are the exception, 
 not the rule. That they sometimes occur cannot be 
 denied. They should never occur. They are proba- 
 bly due frequently to utter weariness on the part of 
 the judge, coupled with the realization that it is 
 sometimes practically a human impossibility to get 
 at the true inwardness of a case or know what to do. 
 Seemingly arbitrary sentences on close observation 
 are sometimes found to be erratic only in the lan- 
 guage in which they are phrased, not in the amount 
 of the punishment. The table on the opposite page 
 shows, the writer believes, that the average sentences 
 imposed in the various classes of crime bear a re- 
 markably sound relation to one another. 
 
 Could, however, the separate sentences be ex- 
 amined, an astonishing and lamentable inequality 
 would be discovered, an inequality which is an 
 actual injustice, but an injustice which cannot be 
 prevented under our present system. Unless all 
 offences should be tried before a single judge of 
 unvarying disposition and physical condition abso- 
 
THE JUDGE 
 
 201 
 
 lute equality could not be secured. Where they 
 are tried before four or five different judges there 
 will be four or five different and constantly varying 
 factors which must be multiplied into the constants 
 
 Classified list of the number of persons convicted, and the average term 
 imposed for each particular crime during the year 1905 in 
 New York County. 
 
 MALES 
 
 OFFENCE 
 
 No. 
 
 AGGREGATE 
 TERM OF 
 
 SENTENCES 
 
 AVERAGE TERM 
 EACH PERSON 
 
 Years 
 
 Months 
 
 Years 
 
 Months 
 
 "l 
 1 
 
 10 
 
 '4 
 
 10 
 *9 
 
 '4 
 6 
 10 
 10 
 
 *6 
 3 
 1 
 
 i 
 
 3 
 
 *7 
 
 '4 
 
 6 
 3 
 
 Abduction . . ....... 
 
 7 
 1 
 7 
 31 
 7 
 4 
 3 
 103 
 2 
 7 
 1 
 1 
 1 
 14 
 2 
 26 
 129 
 1 
 1 
 11 
 4 
 2 
 8 
 5 
 3 
 20 
 12 
 21 
 8 
 7 
 2 
 14 
 1 
 
 41 
 15 
 46 
 126 
 27 
 92 
 13 
 292 
 8 
 21 
 1 
 4 
 18 
 75 
 7 
 126 
 374 
 14 
 6 
 168 
 32 
 
 *25 
 42 
 144 
 36 
 222 
 55 
 30 
 9 
 115 
 7 
 
 10 
 
 io 
 i 
 
 *9 
 
 4 
 9 
 
 *3 
 
 6 
 3 
 
 *6 
 
 '4 
 
 "i 
 
 5 
 9 
 5 
 6 
 10 
 3 
 
 *4 
 
 6 
 15 
 6 
 4 
 3 
 23 
 4 
 2 
 4 
 3 
 1 
 4 
 18 
 5 
 3 
 4 
 2 
 14 
 6 
 15 
 8 
 
 *5 
 14 
 
 7 
 3 
 10 
 
 7 
 4 
 4 
 8 
 7 
 
 Arson, 2d degree 
 
 Assault, 1st degree 
 
 " 2d degree 
 
 Bigamy 
 
 Burglary, 1st degree . ........ 
 
 " 2d degree . . . . ..... . . 
 
 " 3d degree 
 
 Carrying burglar's tools 
 
 Election law. . . . <, 
 
 Extortion 
 
 Felony (N. C.). .0... 
 
 Forgery, 1st degree . . 
 
 2d degree.:! 
 
 " 3d degree 
 
 Grand larceny, 1st degree 
 
 
 Kidnapping . 
 
 xxiuuarpjjxug 
 
 Maiming 
 
 Manslaughter, 1st degree 
 
 " 2d degree. ....... 
 
 *Murder, 1st degree 
 
 t " 2d degree 
 
 Perjury 
 
 Rape, 1st degree. 
 
 " 2d degree 
 
 Receiving stolen goods 
 
 Robbery, 1st degree 
 
 2d degree. ., 
 
 " 3d degree 
 
 Seduction 
 
 Sodomy . 
 
 Sub. perjury 
 
 
 Total . . 
 
 466 
 
 2,200 
 
 
 
 4 
 
 9 
 
 
 * Sentenced to be executed. 
 
 t Sentenced for natural life. 
 
202 THE PRISONER AT THE BAR 
 
 STATE PRISON FEMALES 
 
 OFFENCE 
 
 No. 
 
 TERM OF 
 
 SENTENCE 
 
 AVERAGE TERM 
 OF SENTENCE 
 
 Years 
 
 Months 
 
 Years 
 
 Months 
 
 
 2 
 2 
 1 
 1 
 2 
 4 
 1 
 1 
 
 15 
 
 7 
 2 
 3 
 8 
 7 
 10 
 6 
 
 6 
 *4 
 
 '6 
 10 
 6 
 
 7 
 3 
 2 
 3 
 4 
 1 
 10 
 6 
 
 9 
 6 
 4 
 
 *3 
 11 
 6 
 
 Assault, 2d degree .............. 
 
 Burglary, 3d degree , 
 
 Forgery 2d degree 
 
 Grand larceny, 1st degree, 
 
 " 2d degree 
 
 Manslaughter, 1st degree. ....... 
 
 Perjury 
 
 
 Total 
 
 14 
 
 60 
 
 8 
 
 4 
 
 4 
 
 
 shown by the record. Some judges regard certain 
 crimes as more detestable than others do, and some 
 judges see greater possibilities of reformation in 
 any given criminal than others. Some are more 
 affected by the immorality, as distinguished from 
 the illegality, of a given crime than others, and cer- 
 tain judges will take into consideration features of 
 the case that would be entirely disregarded by their 
 associates. 
 
 This divergency of mental attitude accounts in 
 part for the great curse of the inequality of sen- 
 tences. Two cases suggest themselves vividly as 
 examples. 
 
 A conductor on a surface car took the place of the 
 motorman and carelessly ran into a wagon, throw- 
 ing out the driver, who died in consequence. He was 
 convicted of manslaughter in the second degree and 
 sentenced to ten years in State's prison. 
 
 Another defendant who had killed a woman by 
 cutting her throat and hacking her up with a razor 
 was convicted of the first degree of the same crime 
 and sentenced to the Elmira Reformatory. Both 
 defendants were of approximately the same age. In 
 
THE JUDGE 203 
 
 each case the particular sentence seemed just and 
 fair to the judge who presided at the trial. It was 
 conscientiously imposed. Yet the thing speaks for 
 itself. 
 
 It has sometimes been suggested that all sentences 
 should be imposed by all the judges sitting en bane. 
 While this would entail great labor and expense it 
 would undoubtedly, if it were practicable, do much 
 to obviate the present unfortunate condition. As- 
 suming that four judges composed this sentencing 
 board, the vote of the justice who had presided at 
 the trial might, by virtue of his greater familiarity 
 with the facts, be given a weight equal to that of the 
 other three combined. Had the two sentences just 
 named been imposed by such a board it is far from 
 probable that they would have been inflicted in the 
 same terms. 
 
 An effort has been made in the preceding pages to 
 set forth some of the failings of criminal justice on 
 the part of the court which seem open to honest 
 criticism. The members of the bench themselves 
 would be the last to minimize the injustice of the 
 inequality of sentences which under our present sys- 
 tem seems inevitable, and are continually endeavor- 
 ing to remedy it so far as possible. They also recog- 
 nize the fact that it is often difficult, if not out of the 
 question, to preserve in the face of overwhelming 
 evidence an imperturbable serenity of demeanor 
 when the fact of the defendant's guilt is clear and the 
 details of his crime are revolting to every moral 
 sense, and they are equally ready to acknowledge 
 that on occasion they may inadvertently disclose 
 their impression that while they may "let a case go 
 to the jury," the defendant should be acquitted. 
 
204 THE PRISONER AT THE BAR 
 
 Judges are, after all, but men, and to err is human. 
 But there is hardly a judge upon the bench who does 
 not conscientiously strive to perform his duties in 
 such a way that justice may be secured in the man- 
 ner provided by the Constitution, by leaving the 
 jury untrammelled in their function of determining 
 upon the sworn evidence in the case the guilt or inno- 
 cence of the defendant. Finally it should be said 
 that it is not the weak but the strong judge that is 
 most apt to transgress in this direction, and that it 
 is the strong judge who is most likely to serve the 
 best interests of the community. For the weak 
 judge there is no place in the administration of 
 criminal justice. His presence upon the bench is an 
 incentive to crime and a reproach to his fellows. 
 
CHAPTEE XI 
 THE JURY 
 
 Is trial by jury successful in criminal cases! Cer- 
 tainly it is popularly so regarded. Even lawyers 
 and prosecutors will usually agree that it " works 
 substantial justice." But this does not answer the 
 question. In about three cases out of five " Judge 
 Lynch" himself works "substantial justice." The 
 function of the jury is not to "work justice" at all, 
 but to decide a limited question of fact. They are 
 there for the purpose of determining the issue with- 
 out prejudice on the one hand or sympathy upon the 
 other, and having no regard for the consequences of 
 their verdict; they must accept unquestioningly the 
 law from the judge upon every point and base their 
 conclusions solely upon the sworn evidence in the 
 case. This they swear that they will do. Yet they 
 do not. Why? Is it want of intelligence, lack of 
 regard for law, or vital misconception of their 
 function? 
 
 Certainly it is not from want of intelligence. 
 There can be no question as to the capability of the 
 ordinary juryman to perform his duties. The inde- 
 pendent American is singularly adapted to just this 
 form of investigation. If the English be "a nation 
 of shopkeepers," we are a nation of natural cross- 
 examiners. You will find fully as good verbal fenc- 
 ing in a New England corner grocery store about 
 mail time as you will in most courts of justice. But 
 
 205 
 
206 THE PEISONEE AT THE BAE 
 
 the very innata capacity of the native American to 
 perceive the truth and get to the bottom of things, 
 leads him to believe that he knows equally well, if 
 not better than the judge, what ought to be done 
 about it and what punishment, if any, should be 
 inflicted upon the defendant under the circumstances. 
 It is not that our jurors are incapable or uninter- 
 ested, but, paradoxical as it may seem, that they are 
 too capable and too interested. They want to be not 
 only jurors, but district attorney, counsel for the 
 defendant, expert witness, and judge into the 
 bargain. 
 
 Your shopkeeper in England makes a less intelli- 
 gent, but a far more satisfactory juror. There they 
 will empanel a jury in a few moments in a capital 
 case, and so deeply implanted in the bosom of each 
 juryman is a respect for the law as such and an 
 inherited reverence for the judiciary, which its uni- 
 formly high character has done much to foster, that, 
 provided the facts are sufficiently established, the sex 
 of the defendant, the condition of his or her family, 
 the character of the motive for the act, will not be 
 the subject of discussion or even of consideration 
 in determining the verdict. It is enough that they 
 are sworn to decide the facts and the facts alone. 
 They are told by the judge what evidence they may 
 consider, and what facts they may not consider, and 
 did they not obey his instructions they would receive 
 the severe censure of the public and the press. 
 
 There is a historical reason for this. In 1666, when 
 a jury found a verdict of manslaughter after having 
 been instructed that the evidence showed that it was 
 murder, Kelyng, C.J., promptly fined them five 
 pounds apiece. On petition, he reduced it to forty 
 
THE JURY 207 
 
 shillings, " which they all paid." In 1667 he fined 
 eleven of the grand jury twenty pounds apiece for 
 refusing to indict for murder. The judges of the 
 King's Bench said he was quite right, adding, "and 
 where a petty juror, contrary to directions of the 
 court, will find a murder manslaughter, . . . 
 yet the court will fine them" (King vs. Windham, 
 2 Keble, 180). For centuries it was the common 
 practice to punish severely by imprisonment, fine, 
 and attainder juries who refused to convict on what 
 appeared to the court to be sufficient evidence. Per- 
 haps Throckmorton's case in 1554, when the jury 
 acquitted the defendant of treason, is the most fa- 
 mous illustration of this. The court committed the 
 jury to prison, eight being confined from April 17 
 to December 12, and on their discharge fined them, 
 some sixty and some two hundred and twenty 
 pounds apiece. The reasoning under the circum- 
 stances was obvious. If a jury found a man guilty 
 improperly, he could be pardoned, but "if, having 
 pregnant evidence, nevertheless, the twelve do 
 acquit the malefactor, which they will do some- 
 time . . . the prisoner escapeth. . . ." It 
 is refreshing to observe that even English juries 
 "will do [this] sometime." All this naturally cre- 
 ated, as it was designed to create, a tremendous 
 regard for the judge and his instructions. 
 
 There is at the present time little of this whole- 
 some regard for law in America. The jury realize 
 that the judge's elevation to the bench is often a 
 matter of politics alone, and sometimes have com- 
 paratively little respect for his character, learning, 
 or ability. They frequently feel by no means confi- 
 dent that the punishment will fit the crime, and are 
 
208 THE PRISONER AT THE BAR 
 
 anxious, so far as they can, to dispose of the case for 
 themselves. For example, in one case where three 
 defendants were found guilty of stealing in company 
 a single article of value, the jury rendered a verdict 
 of grand larceny in the first degree against one, 
 grand larceny in the second degree against another, 
 and petty larceny against the third. They did this 
 because of the varying ages of the defendants, but 
 in so doing obviously violated their oaths and 
 usurped the functions of the judge. "Substantial 
 justice " was accomplished. 
 
 There are hundreds of jurors who, having in all 
 honesty taken the oath to " a true verdict find, ' ' will, 
 once in the jury-room, frankly turn to their fellows 
 and exclaim: "Oh, let him go! He's only a kid. 
 Give him another chance ! " " Substantial justice, ' ' 
 again at the expense of our regard for law. 
 
 As an example of what may occur, the case 
 of Rosa di Pietro, tried for murder before the Re- 
 corder, in December, 1904, is illuminating. The 
 defendant was a young Italian woman of good 
 repute charged with shooting and killing her brother- 
 in-law, who, the evidence clearly showed, had en- 
 deavored to persuade her to yield to his desires. 
 She claimed to have shot him in self-defence. Her 
 story was so obviously a fabrication that no jury 
 could have believed her, and must have found (if 
 they had considered the matter at all) that she pur- 
 sued her would-be seducer down the stairs and shot 
 him in a dark hallway, as he was leaving the building. 
 A "special" jury of perfectly intelligent men 
 promptly acquitted her. The writer presumes that 
 after this all the Italian residents will get their 
 wives to do their killing for them. 
 
THE JURY 209 
 
 In a well-known case the jury found the defendant 
 guilty of manslaughter, instead of murder, because 
 one of their number had read that the prisoner had 
 been a "Bough Eider " in the Cuban campaign. 
 After they had returned their verdict they learned 
 that he had been nothing of the kind. 
 
 The action of the ordinary jury in a criminal case 
 is right as to the defendant's guilt or innocence 
 about three times out of four, but less frequently 
 so as to the appropriate degree of crime. The 
 proportion of proper verdicts differs, of course, 
 in different varieties of crime. In cases of common 
 felony, such as larceny, burglary, rape, robbery, 
 arson, etc., it is very much greater; in homicides 
 and gambling very much less; and in commercial 
 frauds and liquor-tax cases still smaller, the num- 
 ber of convictions being inconsiderable. Making 
 due allowance for the unconscious prejudices, sym- 
 pathies, and idiosyncrasies of mankind, we have 
 still, as citizens, a right to demand a far higher de- 
 gree of accuracy in the verdicts of our juries to 
 expect the murderer to be found guilty of murder 
 and the thief to be stigmatized as a thief. What is 
 the explanation for this? 
 
 The fundamental reason for the arbitrary char- 
 acter of the verdicts of our juries lies not in our lack 
 of intelligence as a nation, but in our small regard 
 for human life, our low standard of commercial hon- 
 esty, our hypocrisy in legislation, our consequent 
 lack of respect for law, and the general misapprehen- 
 sion that the function of the jury is to render l ' sub- 
 stantial justice" a misapprehension fostered by 
 public sentiment, the press, and even in some cases 
 by the bench itself, to the complete abandonment of 
 
210 THE PRISONER AT THE BAR 
 
 the literal interpretation of the juror's oath of 
 office. 
 
 The writer has heard judges from the bench con- 
 gratulate juries upon having rendered a "merciful 
 verdict "! They are popularly expected "to temper 
 justice with mercy/' "exercise a wise discretion," 
 and " to be moved to magnanimity. ' ' But the jurors 
 who satisfy their emotions at the expense of their 
 honesty, and the judge who countenances the per- 
 formance, are worse law-breakers than the defend- 
 ant himself. 
 
 We carry upon our statute books laws which 
 we have no intention of enforcing, and which 
 in our present state of development, are actually 
 unenforceable. Even law-abiding, law-loving, and 
 (ordinarily) conscientious jurors will become lawless 
 when compelled to sit in a case of this character. 
 Thus while the three judges of Special Sessions find 
 guilty some sixty per cent of those brought before 
 them for violations of various phases of the liquor- 
 tax law, a conviction by a jury in the General Ses- 
 sions is practically unheard of. The grand jury 
 have now reached the point where they practically 
 refuse to indict at all in liquor-tax cases.* Just as 
 
 *The following figures may be of interest to those readers who are 
 interested in the question of amending the laws governing the sale 
 of liquor: 
 
 In the year 1905, out of a total of 965 cases which came before 
 the Court of Special Sessions, there were 450 convictions, 68 pleas of 
 guilty, 308 acquittals, 43 discharges and 91 transfers to the General 
 Sessions. During the last six years, out of a total of 5,588 cases, there 
 were 2,333 convictions, 206 pleas of guilty, 1,537 acquittals, 222 dis- 
 charges, 361 demurrers allowed and 929 cases transferred, on the 
 defendants' motion, to General Sessions, to be tried under indict- 
 ment. During this period, more than half the cases have resulted 
 in convictions. 
 
 These cases were tried, as the reader is aware, by a bench of three 
 judges, who decide both law and fact. Compare this record with the 
 result of the 91 transfers, heretofore alluded to, from the Special to 
 
THE JUEY 211 
 
 long as we have hypocrisy in religion, in business, 
 and in legislation, so long shall we have hypocrisy 
 in our courts of justice. 
 
 Of course, as we live in an age when violence is 
 foucd inconvenient and annoying, your jury natu- 
 rally condemns by its verdict crimes of a violent 
 character, and will make but short work of high- 
 wayman and thug. Burglars are unpopular both with 
 the public and with the juror ; and it needs no burst 
 of rhetoric to induce a jury to find a verdict against 
 a " firebug" or a "cadet." But once step into that 
 class of cases the subject of which is commercial 
 fraud, and the jury look upon the prosecution with 
 
 the General Sessions last year. Of course, each case had to be taken 
 first before the grand jury. Eighty-four of these cases were sum- 
 marily dismissed by that body. In the remaining seven instances, 
 indictments were secured. Four of these seven defendants pleaded 
 guilty, two were acquitted by the jury, one was discharged on his 
 own recognizance and none were convicted. In other words, out 
 of the whole bunch of transfers, less than four per cent of the defend- 
 ants were convicted, as against 54 per cent of convictions in the 
 Special Sessions, in all liquor-tax cases in the last six years. In the 
 same period, out of a total of 1,058 cases presented to the grand 
 jury, 810 were dismissed by that body. Of the balance, viz., 248, 
 in which indictments were secured, 25 pleaded guilty, 35 were dis- 
 charged on their own recognizances, in 12 cases the bail was forfeited, 
 and of the 176 cases which actually were tried before juries, 160 de- 
 fendants were acquitted and 16 were convicted. 
 
 The significance of these figures becomes evident when it is realized 
 that the defendants whose cases are thus transferred are those who are 
 the actual holders of licenses. They can afford to pay for the 
 services of counsel, and their conviction is of vastly more importance 
 to the community than that of their hirelings who actually sell the 
 liquor over the bar. The barkeeper who violates the law and is caught, 
 comes to trial in the Special Sessions, either pleads guilty or is con- 
 victed, and receives a fine which his employer promptly pays. The 
 owner of the saloon thereupon discharges the defendant from his ser- 
 vice and secures another barkeeper. This process can be continued 
 indefinitely. But when the owner himself is caught and convicted, 
 he is either driven out of business or has got to operate under another 
 name. These are the men who apply for and are apparently able 
 to secure transfers of their cases to the General Sessions, although 
 any judge granting such motions is, or, at least, should be, aware of 
 what the practical result of his action will be. The transfer of a 
 liquor-tax case upon the order of the judge sitting in Part I of the Gen- 
 eral Sessions is practically tantamount to a dismissal of it. 
 
212 * THE PRISONER AT THE BAR 
 
 averted eye. Just so long as dishonesty of one kind 
 or another is openly countenanced in business, just so 
 long it will be practically impossible, except under 
 unusual conditions, to convict the fraudulent bank- 
 rupt or the retailer who has secured goods and credit 
 upon false representations. Mayhap there is upon 
 the jury some tradesman who has ' ' padded ' ' his own 
 credit statement; some one who has placed a ficti- 
 tious valuation on his stock, or has told alluring but 
 unsubstantial stories as to his "orders on hand," 
 "cash in bank/' and "bills receivable." What 
 chance under those circumstances of a conviction! 
 
 " The jury, passing on the prisoner's life, 
 May have in the sworn twelve a thief or two 
 Guiltier than him they try." 
 
 "Why," says a juror, "here they are trying to 
 convict this fellow Einstein of what everybody does 
 every day in the year. Rubbish ! Am / a thief ! 7 
 don't have any criminal intent. He was just tryin' 
 to boost his assets a little. He's no criminal." And 
 out he goes to the jury-room and persuades the other 
 eleven that the defendant is no worse than every- 
 body. Of course, everybody isn't a thief. The syllo- 
 gism is irrefutable. 
 
 "I suppose you didn't believe that Mr. Einstein 
 made those false statements!" says the writer, ap- 
 proaching him as he steps into the corridor. The 
 juror pauses in lighting his cigar. 
 
 "Sure, he made 'em!" he remarks. "Of course 
 he made 'em! But, H I, he's no criminal!" This 
 is an actual experience. 
 
 Our distaste for physical violence has had a rather 
 paradoxical result so far as the jury is concerned, 
 
THE JURY 213 
 
 for it appears to be coupled with a small (and what 
 seems to be a decreasing) regard for human life. 
 Verdicts of murder in the first degree are exceed- 
 ingly rare, and it requires a crime of a peculiarly 
 atrocious character to induce the jury to send the 
 defendant to the electric chair. This is due in part 
 to cowardice and in part to the misconception of 
 their function already dwelt upon, since in almost all 
 murder cases the jury regard themselves as fixing 
 the penalty. Inasmuch as most persons who meet 
 death from violence are themselves of violent char- 
 acter, the jury frequently seems to believe that the 
 defendant is entitled to a certain amount of consider- 
 ation for ridding the community of his victim, and 
 this often finds joyful expression in a verdict of 
 manslaughter. 
 
 Totally distinct, however, from this trifling with 
 justice, whether it be wilful or voluntary, is the 
 unconscious bias of each member of the human fam- 
 ily due to race, religion, education, and character. 
 Hence jurors are examined with an elaborate care 
 and minuteness of investigation which in practice is 
 often shown to be ridiculous. In fact certain max- 
 ims having almost the force of legal doctrines have 
 grown up about the selection of a jury. A defend- 
 ant's counsel will invariably challenge an Irishman 
 if his client be a negro, and vice versa. This is like- 
 wise apt to be the case if the client be an Italian. 
 Talesmen with wives and children are generally sup- 
 posed to be more susceptible to arguments directed 
 to their sympathies. Hebrews are presumed to make 
 particularly undesirable jurors for the defence 
 where the crime charged is one of violence or arson, 
 and are likewise usually challenged when the defence 
 
214 THE PRISONER AT THE BAR 
 
 is self-defence. Old men are popularly supposed 
 to make indulgent jurors, although the writer's own 
 experience is to the contrary, and he has noticed that 
 persons with long, drooping mustaches are invaria- 
 bly excused. Neither side as a rule cares for mis- 
 sionaries or persons engaged in philanthropic enter- 1 
 prises, since the prosecutor feels instinctively that 
 their eleemosynary tendencies will extend to the 
 prisoner, while the defence has a presentiment that 
 they will lead him to favor the damaged complainant. 
 Writers, editors, and publishers are generally ex- 
 cused by the defence as too intelligent, i.e., too prone 
 to theoretic arguments as distinguished from a 
 "broad view," which from the prisoner's standpoint 
 means one including every sympathetic reason that 
 can be suggested. Artists are distrusted by prose- 
 cutors as romantic and imaginative. Butchers, 
 coffin-makers, sextons, grave-diggers, undertakers, 
 and dealers in electrical supplies are invariably ex- 
 cused for obvious reasons by the defendant in homi- 
 cide cases. Liquor dealers are believed to be prone to 
 take a lenient view of the shortcomings of humanity 
 in general, while persons of brisk, incisive manners 
 naturally suggest heartlessness to the cowering de- 
 fendant. The writer knows an assistant who will 
 not try a case if there is a man with a pompadour on 
 the jury, and neither prosecution nor defence cares 
 for long-haired jurors of the ' * yarb doctor ' ' variety, 
 while the dapper little man with the il dickey" and 
 red necktie is invariably excused by consent unless 
 the defendant be a woman. 
 
 The frivolous character of these rules needs no 
 comment. Almost every lawyer and every prosecu- 
 tor believes himself to be a past master in the study 
 
THE JURY 215 
 
 of character from external evidence, and upon the 
 most trivial and unnatural of pretexts will challenge 
 a talesman so unfortunate as not to suit his fancy. 
 Yet when all is done and when, after the most ex- 
 haustive examination and cross-examination of sev- 
 eral hundred special talesmen, wrenched from their 
 places of business or the bosoms of their families, 
 twelve men have been finally selected and sworn, it 
 is probable that they are in no respect superior to 
 the first twelve who might have been chosen. 
 
 In murder cases each side may challenge peremp- 
 torily thirty talesmen, and numerous are the legal 
 "jumps" over which they must successfully ride 
 before they can qualify for service. Thus it is 
 unusual in a homicide case to select a jury in less 
 than two days, and in some instances it has taken 
 two weeks. On the other hand, equally satisfactory 
 juries have occasionally been selected in such cases 
 in less than an hour. 
 
 The general futility of trying to secure a jury of 
 particular capacity or intelligence, or one which will 
 contain no juror of pronounced idiosyncrasies, is 
 rather well illustrated by the following incident: 
 The defendant's counsel, a man of considerable re- 
 pute at the criminal bar, had spent over two days 
 in the elaborate selection of a jury. It had taken him 
 two hours to get a foreman to his fancy, but at last 
 he had accepted a solid-looking old German grocer. 
 After a trial lasting several days the jury convicted 
 the defendant in short order, greatly to the disgust 
 of the eminent lawyer, who vented his indignation 
 rather loudly in the presence of the foreman as he 
 was leaving the box. The old German leaned over 
 good-naturedly and remarked, pointing to the door 
 
216 THE PRISONER AT THE BAR 
 
 in the back of the court-room leading to the prison 
 
 pen: "Veil, Mr. , if you vant to know vat I 
 
 tinks, I tells you. Ven I see him come in through 
 dot leetle door back dere, den I knows he 's guilty ! ' ' 
 
 This lawyer now selects a jury in thirty minutes. 
 
 Of course, some examination into the general qual- 
 ifications of jurors and their possible bias in the 
 case is imperative, and frequently the interposition 
 of a peremptory challenge is not only justifiable, but 
 absolutely necessary. A talesman will sometimes 
 betray by an inflection of his voice a sentiment or 
 prejudice which his words deny, or suggest to the 
 vigilant counsel for the defendant the juror's sus- 
 ceptibility to the insidious flattery of the prosecutor 
 in making him a part of the "organization of the 
 court. ' ' 
 
 During the selection of a jury to try Moran, the 
 dynamiter, in March, 1906, before Judge Foster, in 
 the General Sessions, a little old man took the stand 
 who qualified satisfactorily as a juror so far as the 
 prosecution was concerned. Daniel F. Cohalan, at- 
 torney for the defendant, then took him in hand 
 somewhat as follows : 
 
 "Have you any prejudice against a man accused 
 of crime?" 
 
 "I have not," replied the little old man. 
 
 "Or against this defendant?" 
 
 "I have not." 
 
 ' l Do you think you would make an absolutely fair 
 and impartial juror?" 
 
 "I do." 
 
 "Do you know of any reason to the contrary?" 
 
 "I do not." 
 
 Cohalan turned to another line of examination. 
 
THE JURY 217 
 
 "Do you read the papers 1" 
 
 "Yes. Yes." 
 
 "What paper do you read?" 
 
 "What paper!" 
 
 6 ' Yes. What paper do you read in the morning ! ' ' 
 
 The little old man settled himself in his chair and, 
 eyeing Cohalan suspiciously, replied : 
 
 "I read the Herald, Times, World, Journal, Sun, 
 Tribune, Press, Staats Zeitung, Telegraph " 
 
 "Stop!" cried Cohalan feebly; "that's quite 
 enough. Don't you do anything but read the 
 papers!" 
 
 The little old man regarded the lawyer scornfully. 
 
 ' ' I spend six hours a day keeping myself informed 
 of what is going on. I flatter myself that there is 
 nothing in the whole world with which I am not 
 fully acquainted. Knowledge is power!" 
 
 Cohalan collapsed into his seat. 
 
 "That is all. You are excused. You know too 
 much for us!" 
 
 As the little old man shuffled off he whispered to 
 the prosecutor: 
 
 "I'd have given the twenty years!" 
 
 On the other hand, the hyper-sensitiveness of 
 counsel renders it easy for talesmen to escape who 
 do not wish to serve. The writer knows an estimable 
 man who is regularly drawn about four times a year 
 upon the special jury. He has never served. His 
 method is as follows: Having taken his seat upon 
 the witness-stand he wrinkles his forehead and looks 
 fiercely at the defendant. When asked if he has any 
 objection to capital punishment he thrusts out his 
 under jaw and exclaims : "I should say not! I think 
 hangin's too good for 'em!" In reality he is the 
 
218 THE PRISONER AT THE BAR 
 
 mildest, the niost sympathetic and the "easiest" of 
 human beings. Another observant talesman who ap- 
 pears periodically has learned, the writer believes, his 
 trick from the first. His stock reply to the same ques- 
 tion relative to capital punishment is, "I have not. I 
 believe in the Biblical injunction of 'an eye for an 
 eye,' and 'a tooth for a tooth,' and, * Whoso sheddeth 
 man 's blood by man shall his blood be shed. ' ' ' Need- 
 less to say, he leaves the stand with the same alac- 
 rity as the other. Jurors readily enter into friendly 
 relations with the prosecutor and defendant's coun- 
 sel, but rarely with any effect upon their verdicts. 
 In the first trial of Mock Duck, a Chinaman indicted 
 for murder, where the defence interposed was an 
 alibi, to wit, that the prisoner had been buying a 
 terrapin in Fulton Market at the time of the commis- 
 sion of the crime (whence the prosecutor claimed 
 that it was the case of a Mock Duck with a mock tur- 
 tle defence), a juryman met the defendant's counsel 
 during recess and told him that there was no further 
 need for him to call any more witnesses for the 
 defendant, as the jury " understood the situation 
 perfectly." The lawyer took the hint, and upon the 
 reopening of court closed his case, feeling sure of an 
 acquittal or at least of a disagreement. When the 
 jury had retired the talesman in question made a 
 long speech in favor of murder in the first degree, 
 and refused to vote for any other crime. Such per- 
 formances are rare. Of course, it not infrequently 
 occurs that a juror by his manner of asking ques- 
 tions shows plainly his state of mind. The feelings 
 of a prosecutor can be easily imagined when a juror 
 turns in disgust from one of the People's witnesses, 
 or those of a defendant's counsel when another, 
 
THE JURY 219 
 
 looking towards the prisoner, grinds his teeth as the 
 evidence goes in and ejaculates, "Brute!" 
 
 The jury offers a fertile field for the study of 
 human nature, and lawyers and prosecutors learn to 
 look regularly for certain characters. Of these may 
 be mentioned the too officious juror who asks hun- 
 dreds of incompetent and irrelevant questions to 
 which the lawyers are naturally afraid to object, and 
 whose inquisitiveness has to be curbed by the court 
 itself. Such a juror usually shows much conviction 
 one way or the other in the early stages of the case, 
 and before he has heard the evidence. Unfortu- 
 nately his executive abilities usually fill the balance 
 of the jury with such disgust that to have a juror of 
 this sort on one's side is more of a misfortune than 
 a boon. 
 
 Jurors of this variety frequently at inopportune 
 moments interrupt counsel during their addresses. 
 In one case an aggressive talesman broke in upon a 
 burst of carefully prepared eloquence with the bru- 
 tal interrogation: "How about the knife?" The 
 counsel stopped, bowed to the juror, smiled, and 
 said calmly : i ' Thank you, Mr. Smith, I 'm glad you 
 spoke of that. I am coming to it in a moment. ' ' The 
 juror, satisfied, leaned back contentedly, but the 
 lawyer has not "come" to the knife yet. 
 
 Practically the thing most desired by prosecutors 
 and lawyers who are both convinced of the justice of 
 their cause is homogeneity of some sort in the jury- 
 box. Naturally antagonistic elements are undesira- 
 ble, and a wise selector of juries will try to get men 
 of approximately the same age, class in society, 
 nationality, religion, and general character. Of 
 course, this is a difficult matter, but without a 
 
220 THE PRISONER AT THE BAR 
 
 friendly and helpful spirit among the jurors cases 
 will result frequently in disagreements. This is 
 naturally less objectionable to the defendant than to 
 the People, for ordinarily it may be said that "two 
 disagreements are equivalent to an acquittal." 
 
 The common idea that juries are prone to leave 
 their decisions to chance, as by flipping a coin, or to 
 act upon impulse, whim, caprice, or from a desire to 
 get away, is grossly exaggerated. 
 
 It was Pope who sang in the "Rape of the Lock" : 
 
 " The hungry judges soon the sentence sign, 
 And wretches hang, that jurymen may dine." 
 
 Unfortunately, if the jury is hungry or exhausted 
 and anxious to dispose of the case, the defendant 
 invariably gets the benefit of it. The "wretches" 
 don't "hang," but instead are turned out with a 
 rush. Instances of verdicts being determined by 
 such considerations are in fact rare. 
 
 Much of the seeming misguidedness of juries in 
 criminal cases is due, just as it is due in civil cases, 
 to the idiosyncrasy, or the avowed purpose to be 
 "agin* the government," of a single talesman. In 
 an ideal community, no matter how many persons 
 constituted the jury, provided the evidence was clear 
 one way or the other, the jury would always agree, 
 since they would all be honest and reasonable men. 
 But just as a certain portion of our population is 
 mentally unbalanced, anarchistic, and criminal, so 
 will be a certain portion of our jurors. In addition 
 to these elements there will almost invariably be 
 found some men upon every panel who are so obsti- 
 nate, conceited, and overbearing as to be totally 
 unfit to serve, either from the point of view of the 
 
THE JUEY 221 
 
 people or the defence. It is enough for one of these 
 recalcitrant gentlemen that eleven other human 
 beings desire something else. That settles it. They 
 shall go his way or not at all. 
 
 The writer believes, therefore, that some allow- 
 ance should be made for the single lunatic or anar- 
 chist that gets himself drawn on about every fifth 
 jury, for if he once be empanelled a disagreement 
 will inevitably follow. This could be accomplished 
 by reducing the number necessary for a verdict to 
 eleven.* Hundreds of juries have been "hung" by 
 just one man. The trouble, as Professor Thayer 
 points out, began a long, long time ago in a case re- 
 ported in the Book of Assizes in 1367. 
 
 "In another assize before the same justices at 
 Northampton, the assize was sworn. They were all 
 agreed except one, who would not agree with the 
 eleven. They were remanded and stayed there all 
 that day and the next, without drink or food. Then 
 the judges asked him if he would agree with his asso- 
 ciates, and he said never, he would die in prison 
 first. Whereupon they took the verdict of the eleven 
 and ordered him to prison, and thereupon a day 
 
 * Whatever the actual origin of the number twelve for this pur- 
 pose there certainly lingered in olden times a feeling that it had a" 
 sacred or foreordained character, and in Duncomb's Trials per pais, 
 the following illuminating explanation is to be found : 
 
 " And first as to their number twelve : and this number is no less 
 esteemed by our law than by Holy Writ. If the twelve apostles on 
 their twelve thrones must try us in our eternal state, good reason has 
 the law to appoint the number of twelve to try our temporal. The 
 tribes of Israel were twelve, the patriarchs were twelve and Solomon's 
 officers were twelve. Therefore not only matters of fact were tried 
 by twelve, but of ancient times twelve judges were to try matters in 
 law, in the Exchequer Chamber, and there are twelve counsellors of 
 state for matters of state; and he that wageth his law must have 
 eleven others with him who believe he says true. And the law is 
 so precise in this number of twelve, that if the trial be by more or less, 
 it is a mis-trial." (Of. Thayer's Preliminary Treatise, as cited, p. 90.) 
 
222 THE PEISONEE AT THE BAE 
 
 was given upon this verdict in the Common Bench. 
 . . . And afterwards by assent of all the jus- 
 tices it was declared that this was no verdict. It 
 was therefore awarded that this panel be quashed 
 and annulled, and that he who was in prison be 
 enlarged, and that the plaintiff sue a new venire 
 facias. . . . Note, that the justices said they 
 ought to have taken the assize with them in a wagon 
 until they were agreed." 
 
 How much happier would not only the eleven, but 
 the twelfth juror, who swore he would "die first/' 
 have been if they could comfortably have agreed to 
 disagree and yet returned to court and rendered a 
 verdict. 
 
 A jury naturally tends to lean towards the defence 
 to let the accused go if they can conscientiously do 
 so; to find somewhere a reasonable doubt as to the 
 prisoner's guilt and it is only because the cases are 
 so well sifted before they come to trial at all, and the 
 wheat separated from the chaff (the defendants in 
 very weak cases being frequently discharged on the 
 recommendation of the district attorney himself), 
 that the percentage of acquittals is not vastly 
 greater. 
 
 This natural feeling of sympathy for the accused 
 makes it all the easier for juries to be affected con- 
 sciously or unconsciously by considerations they 
 have sworn to disregard. Then if the defendant be 
 a woman, or a poor man with a large family, or his 
 crime has injured no one's purse, or restitution has 
 been made, or if the offence charged is merely that 
 of swindling by means of false representations as to 
 credit, or the defendant is very young or very old, 
 or wears a clean collar, or has an attractive person- 
 
THE JURY 223 
 
 ality, or, better, a beautiful wife, he is turned out 
 with a cheer. 
 
 " For twelve honest men have decided the cause, 
 Who are judges alike of the facts and the laws." 
 
 Yes, the jury system in criminal cases is a "prac- 
 tical success " and it "works substantial justice. " 
 It works the exact justice that we want the exact 
 justice that we deserve. As we grow to have a 
 greater respect for human life and a higher regard 
 for law and honesty, the verdicts of our juries will 
 continue to keep pace with our condition. Then we 
 shall want something better, and we shall have it. 
 The day will come when dishonesty in business will 
 lead to the ball and chain as assuredly as arson and 
 rape. But the time is not yet. 
 
 Then juries will decide the issues submitted to 
 them upon the evidence alone, without prejudice or 
 sympathy, in accordance with the laws which they 
 are sworn to uphold, without truckling to popular 
 sentiment or fear of newspaper disapproval; then 
 they will allow the judge to perform the functions 
 vested in him by law without usurpation by their 
 verdicts ; and will i i true deliverance make ' ' between 
 the People on the one hand and the defendant on the 
 other. Then there will probably be no need for juries 
 for there will be no criminals. 
 
CHAPTEE XII 
 THE WITNESS 
 
 THE probative value of all honestly given testi- 
 mony depends, naturally, first upon the witness's 
 original capacity to observe; second, upon the 
 extent to which his memory may have played him 
 false ; and third, upon how far he really means ex- 
 actly what he says. This is just as true of testimony 
 in cases of so-called circumstantial evidence as in 
 cases where the evidence is direct, for the circum- 
 stances themselves must be testified to by witnesses 
 who have observed them, and the authoritativeness 
 of everything these witnesses have to say must lie 
 in their ability to see, remember, and describe accu- 
 rately what they have seen. 
 
 The subject of perjury is so distinct and far-reach- 
 ing that it deserves separate consideration. The 
 crime is easy to commit and difficult to establish by 
 competent proof, for it is a highly technical offence 
 and one which juries seem to find it easy to condone. 
 The brother or friend of the accused has but to take 
 the stand and swear to an alibi and lo! he is free. 
 The chance of detection is small in comparison with 
 the immediate benefit secured, while the temptation 
 to swear falsely must, at least in the case of the 
 immediate family of the prisoner, often be over- 
 whelming. Where convictions for perjury are se- 
 cured heavy sentences are invariably imposed and 
 a wholesome apprehension instilled into the hearts 
 
 224 
 
THE WITNESS 225 
 
 of prospective witnesses, yet the amount of deliber- 
 ate false swearing in our criminal courts would be 
 inadequately described as shocking. To estimate its 
 quantity would be difficult if not impossible, for it 
 varies with the character of the case and the nature 
 of the defence. When the latter is an alibi the entire 
 testimony for the prisoner is frequently manufac- 
 tured out of whole cloth, and it is probably not very 
 wide of the mark to say that anywhere from a 
 quarter to seventy-five per cent of the testimony 
 offered by the defendant 's witnesses upon the direct 
 point in issue in the ordinary run of criminal trials 
 is perjured. 
 
 Yet a careful scrutiny of even the honestly given 
 testimony in such cases gives rise to the belief 
 that the amount of strictly accurate evidence 
 adduced is relatively small, so small as probably to 
 stagger the credulity of the layman and to give the 
 lawyer ground for reflection. It must be borne in 
 mind, however, that this refers to criminal trials 
 only and to testimony of a character closely relevant 
 to the issue. 
 
 The first consideration is how far the witness was/ 
 originally capable of receiving correct impressions 
 through his senses. Naturally this depends almost \ 
 entirely upon his physical equipment and the keen- 
 ness and accuracy of his general observation, both 
 of which are usually evidenced to a considerable 
 degree by his appearance and conduct upon the 
 stand. 
 
 Children are proverbially observant, and make 
 remarkable witnesses, habitually noticing details 
 which inevitably escape the attention of their elders ; 
 while various classes of persons by reason of their 
 
226 THE PEISONER AT THE BAR 
 
 professional requirements are, of course, better 
 qualified than others to observe certain facts or con- 
 ditions, as a gem merchant the shape and cutting of 
 a diamond, or a doctor the physical condition of a 
 patient. 
 
 Witnesses are often honestly mistaken, however, 
 as to their own ability to observe facts, and will 
 unhesitatingly testify that they could hear sounds 
 and discern objects at extraordinary distances. 
 Lawyers frequently attempt to induce aged or infirm 
 witnesses to testify that they could hear plainly 
 what was said by the defendant, in an ordinary tone, 
 at a distance, say, of forty feet. The lawyer speaks 
 in loud and distinct tones during the preliminary 
 examination, and then gradually drops his voice to 
 that usually employed in speaking, in the hope that 
 the witness will ask him to repeat the question. This 
 ruse usually fails by reason of the fact that the 
 lawyer, in his anxiety to show that the witness could 
 not possibly hear the distance claimed, lowers his 
 voice to such an extent that the test is obviously 
 unfair. 
 
 For similar reasons counsel often call upon such 
 witnesses to state the time by the clock which 
 usually hangs upon the rear wall of the court-room. 
 A distinguished but conceited advocate, not long ago, 
 after securing an unqualified statement from an 
 octogenarian, who was bravely enduring cross-ex- 
 amination, that he ' ' saw the whole thing as if it had 
 occurred ten feet away," suddenly challenged him 
 to tell the time by the clock referred to. The lawyer 
 did not look around himself, as he had done so about 
 half an hour before, when he had noticed that it was 
 half after eleven. The old man looked at the clock 
 
THE WITNESS 227 
 
 and replied, after a pause, " Half -past eleven," upon 
 which the lawyer, knowing that it must be nearly 
 twelve, turned to the jury and burst into a derisive 
 laugh, exclaiming sarcastically, "That is all/ 9 and 
 threw himself back in his seat with an air of hav- 
 ing finally annihilated the entire value of the wit- 
 ness's testimony. The distinguished practitioner, 
 however, found himself laughing alone. Presently 
 one of the jury chuckled, and in a trice the whole 
 court-room was in a roar at the lawyer's expense. 
 The clock had stopped at half-past eleven. 
 
 The professional actor upon the stage presents 
 the illusion of nature by exaggerating those details 
 of action which ordinarily would escape the attention 
 of the observer. 
 
 In daily life we are quite as likely as not to be) 
 deceived by what we have seen, and this fact is so / 
 familiar to jurors that they are apt to distrust wit-j ' 
 nesses who profess to have seen much of complicated 
 or rapidly conducted transactions. They want the 
 main facts stated convincingly. The rest can take 
 care of themselves. The extraordinary extent to 
 which the complex development of modern life has 
 dwarfed our powers of observation is noticeable 
 nowhere more markedly than in the court-room. 
 Things run so smoothly, transportation facilities are 
 so perfect, specialization is carried to so high a 
 degree, and our whole existence goes on so much 
 indoors, that it ceases to be a matter of note or even 
 of interest that the breakfast is properly cooked and 
 served, that we are whisked downtown (a little mat- 
 ter say of five miles) in ten or twelve minutes, that 
 we are shot up to our offices through twenty floors 
 in an electric elevator, that there is a blizzard or a 
 
228 THE PRISONER AT THE BAR 
 
 deluge, or that part of Broadway has been blown up 
 or a fifteen-story building fallen down. We pass 
 days without paying the remotest attention to the 
 weather, and forget that we have relations. Instead 
 of walking home to supper, pausing to talk to our 
 friends by the way, we drop into the subway, bury 
 ourselves in newspapers, and are vomited forth al- 
 most without our knowing it at our front doorsteps. 
 The multiplicity of detail deprives us of either the 
 desire or the capacity to observe, and we cultivate a 
 habit of not observing lest our eyes and brains be 
 overwhelmed with fatigue. Observation has ceased 
 to be necessary and has taken its place among the 
 lost arts. 
 
 Compare the old days when a Greek could go to 
 hear the "(Edipus," and on returning home could 
 recount practically the whole of it from beginning 
 to end for the benefit of the wife, who was not al- 
 lowed to go herself. Or even the comparatively re- 
 cent period when the funeral oration over Alexander 
 Hamilton could be reported in the "Evening Post" 
 from memory. 
 
 Much the more difficult problem, however, is to 
 determine how far the witness is the victim of his 
 memory and is unconsciously confusing fact with 
 imagination, or knowledge with belief. It is a mat- 
 ter of common experience that almost all cases are 
 stronger in court than they give the impression of 
 being when the witnesses are first examined in the 
 private office. Time and again, cases which in the 
 beginning have seemed hopeless to prosecute have 
 resulted in verdicts of conviction, and defences origi- 
 nally so fragile as to appear but gossamer have 
 returned many a defendant to his despairing family. 
 
THE WITNESS 229 
 
 The reason is not far to seek. Witnesses to the 
 events leading up to a crime are acquainted with 
 a thousand details which are as vivid, and probably 
 more vivid, to them than the occurrence in regard to 
 which their testimony is actually desired. It may 
 well be that the immaterial facts are the only ones 
 which have interested them at all, while their knowl- 
 edge of the criminal act is relatively slight. For 
 example, they know, of course, that they were in the 
 saloon; are positive that the complainant and de- 
 fendant were playing cards, even remembering some 
 of the hands dealt; are sure that the complainant 
 arose and walked away; have a very vivid recollec- 
 tion that in a few moments the defendant got up 
 and followed him across the room; are pretty clear, 
 although their attention was still upon the game, 
 that the two men had an argument; and have a 
 strong impression that the defendant hit the com- 
 plainant. In point of fact, their evidence is really of 
 far less value, if of any at all, in regard to the actual 
 striking than in regard to the events leading up to it, 
 for at the time of the blow their attention was being 
 given less to the participants in the quarrel than to 
 something else. Their ideas are in truth very hazy 
 as to the latter part of the transaction. However, 
 they become witnesses, pronouncing themselves 
 ready to swear that they saw the blow struck, which 
 is perhaps the fact. Their evidence is practically of 
 no value on the question of justification or self- 
 defence. But finding, on being examined, that their 
 testimony is wanted principally on that aspect of 
 the case, they naturally tell their entire story as if 
 they were as clear in their own minds upon one part 
 of it as another. Being able to give details as to the 
 
230 THE PRISONER AT THE BAR 
 
 earlier aspect of the quarrel, they feel obliged to be 
 equally definite as to all of it. If they have an idea 
 that the striking was without excuse, they gradually 
 imagine details to fit their point of view. This is 
 done quite unconsciously. Before long they are as 
 glib with their description of the assault as they are 
 about the game of cards. They get hazy on what 
 occurred before, and overwhelmingly positive as to 
 what occurred towards and at the last, and on the 
 witness-stand swear convincingly that they saw the 
 defendant strike the complainant, exactly how he did 
 it, the words he said, and that the complainant made 
 no offer of any sort to strike the defendant. From 
 allowing their minds to dwell on their own concep- 
 tion of what must have occurred, they are soon con- 
 vinced that it did occur in that way, and their account 
 flows forth with a circumstantiality that carries with 
 it an irresistible impression of veracity. 
 
 The witness remembers in a large proportion of 
 cases what he wants to remember, or believes oc- 
 curred. The liar with his prepared lie is far less 
 dangerous than the honest, but mistaken witness, or 
 the witness who draws inadvertently upon his imagi- 
 nation. Most juries instinctively know a liar when 
 they see and hear one, but few of them can determine 
 in the case of an honestly intentioned witness how 
 much of his evidence should be discarded as unrelia- 
 ble, and how much accepted as true. 
 
 The greatest difficulty in the trial of jury cases so 
 far as the evidence is concerned lies in the fallibility 
 of the human mind, and not in the inventive genius 
 of the devil. An old man who combines a venerable 
 appearance with a failing memory is the witness 
 most to be feared by either side. 
 
THE WITNESS 231 
 
 In a recent case a patriarch of some eighty-five 
 years positively, convincingly, and ultfa-dramati- 
 cally identified the defendant as a man who had 
 knocked him down and robbed him of a ring. The 
 identification was so perfect that on the evidence of 
 this aged witness alone the jury convicted the de- 
 fendant after but a few moments' deliberation. He 
 was sentenced to ten years in State's prison, al- 
 though he denied vehemently that he had ever seen 
 the complainant. As he was being led from the bar, 
 the real criminal arose among the audience and gave 
 himself up, stating that he could not sit by and see 
 an innocent man receive so great a punishment. The 
 inference was, that had the sentence been lighter his 
 conscience would not have pricked him sufficiently 
 to sanction his act of self-sacrifice. In cross-exami- 
 nation lies the only corrective of this sort of specious 
 testimony, but it would be manifestly inadequate to 
 prevent injustice in such an instance as that just de- 
 scribed. Juries must and do take the evidence of 
 most well-intentioned witnesses with a grain of 
 salt. 
 
 Both men and women habitually testify to facts 
 as actually occurring on a specific occasion because 
 they occurred on most occasions : 
 
 Q. "Did your husband lock the door?" 
 
 A. "Of course he did." 
 
 Q. "How do you know?" 
 
 A. "He always locks the door." 
 
 Witness after witness will take the stand and 
 testify positively that certain events took place, or 
 certain acts were done, when in point of fact all they 
 can really swear to is that they usually took place 
 or usually were done : 
 
232 THE PRISONER AT THE BAR 
 
 Q. "Did he put on his hat?" 
 
 A. "Certainly he did. " 
 
 Q. "Did you see him!" 
 
 A. " No, but he must have put on his hat if he went 
 out." 
 
 And the probability is that the whole question to 
 be determined was whether or not "he" did go out 
 or stay in. 
 
 The layman chancing to listen to a criminal trial 
 finds himself gasping with astonishment at the 
 deluge of minute facts which pour from the wit- 
 nesses' mouths in regard to the happenings of some 
 particular day a year or so before. He knows that 
 it is humanly impossible actually to remember any 
 such facts, even had they occurred the day before 
 yesterday. He may ask himself what he did that 
 very morning and be unable to give any satisfactory 
 reply. And yet the jury believe this testimony, and 
 because the witness swears to it it goes upon the 
 record as evidence of actual knowledge. In ninety- 
 nine cases out of a hundred counsel's only recourse 
 is to argue to the jury that such a memory is impossi- 
 ble. But in the same proportion of cases the jury 
 will take the oath of the witness against the lawyer's 
 reasoning and their own common-sense. This is 
 because of the fictitious value given to the witness's 
 oath by talesmen who attach little significance to 
 their own. "He swears to it," says the juryman, 
 rubbing his forehead. "Well, he must remember it 
 or he wouldn't swear to it !" And the witness prob- 
 ably thinks he does remember it. 
 
 Yet who of us could state with certainty the guests 
 at a particular dinner six months ago ? Or the trans- 
 actions of a morning only a week ago, with any accu- 
 
THE WITNESS 233 
 
 racy as to time? What the witness frequently does 
 is to discuss the matter with his friends who were 
 present on the occasion in question, and, as it were, 
 form a sort of "pool" of their common recollections, 
 impressions, and beliefs. One suggestion corrects 
 or modifies another until a comparatively lucid and 
 logical story is evoked. When this has been accom- 
 plished the witness mentally exclaims : " Of course ! 
 That was just the way it was ! Now I remember it 
 all ! " The time is so distant that whatever the final 
 crystallization of the matter may be, it is far from 
 likely that it will thereafter be shown to be inaccurate 
 by any piece of evidence which will present itself to 
 the witness and his friends. The account thus devel- 
 oped by mutual questions and "refreshing" of each 
 other 's recollection becomes, so far as the parties to 
 it are concerned, the fact. The witness is now posi- 
 tive that he did and said exactly so and so, and noth- 
 ing will swerve him from it, for inherently there is 
 nothing in the story or its make-up that affords any 
 reason for questioning its accuracy. This story re- 
 peated from time to time becomes one of the most 
 vivid things in the witness 's mental experience. He 
 repeats it over and over, is cross-examined by his 
 own attorney upon it, incorporates it in an affidavit 
 to which he swears, and when he takes the stand 
 recounts these ancient happenings with an aggres- 
 siveness and enthusiasm that bring dismay to the 
 other side. 
 
 But what a farce to call this recollection! What 
 is this circumstantial romance when it comes to be 
 analyzed! Jones, a friend of Smith the prospective 
 witness, is anxious to establish an alibi, and asks 
 Smith if he doesn't remember meeting him in the 
 
234 THE PEISONEE AT THE BAE 
 
 club on February 12, two years before. Smith has 
 no recollection of it at all, but Jones says: "Oh, 
 yes, you were going to the theatre with Eobinson." 
 Of course, if Jones is so sure, Smith naturally begins 
 to think it is probably the fact, and he does remember 
 vaguely that he and Eobinson spent an evening to- 
 gether. So he consults his diary and finds it re- 
 corded there that he did attend the theatre on the 
 day in question with Eobinson. He does not remem- 
 ber the play, but Eobinson recalls that it was 
 "The Chinese Honeymoon," and believes that they 
 dined together first at the club. Smith now thinks 
 he remembers this himself. Then Eobinson sug- 
 gests that they probably went to the theatre in a 
 cab. They look in a file of old papers and find that 
 it was rainingo That settles it of course, they went 
 in a cabo The next question is the hour. They have 
 no recollection of being late, so they must have ar- 
 rived on time. Well, the paper says the play com- 
 menced at eight, and it takes a cab about twenty 
 minutes to get from the club to Daly's Theatre, so it 
 is reasonably clear that they must have started a lit- 
 tle before eight. Smith unconsciously is persuaded 
 to believe that if Jones was right about their going 
 to the theatre, he must also have been in the club at 
 the time he says he was there. Both he and Eobin- 
 son recall that Jones was always hanging round the 
 club two years ago, and as neither can remember an 
 evening when he wasn't there, they decide he must 
 have been there that night. Eobinson has a dim 
 recollection that they had a drink together. That is 
 a pretty safe guess and has all the air of verisimili- 
 tude. In an hour or two Smith is ready to swear 
 positively from recollection that he dined with Eob- 
 
THE WITNESS 235 
 
 inson at the club on February 12 two years ago, 
 met Jones, had a drink with him, that this occurred 
 at seven fifty-five, that it was raining, that they took 
 a cab, etc., etc. In its elements this testimony is 
 entirely hearsay upon the only vital point, i.e., 
 Jones's presence in the club at that time, and the 
 immaterial remainder is made up of equal parts of 
 diary, newspaper, play-bill, weather report, usual 
 custom, reliance on Eobinson's alleged recollection, 
 and belief in Jones 's innocence. He has practically 
 no actual memory of the facts at all, and the only 
 thing he really does remember is that a long time ago 
 he did attend some theatre with Eobinson. 
 
 The common doctrine of what is known as "re- 
 freshing the memory " in actual practice is notori- 
 ously absurd. Witnesses who have made memoranda 
 as to certain facts, or even, in certain cases, of con- 
 versations, and who have no independent recollec- 
 tion thereof, are permitted to read them for the 
 purpose of "refreshing" their memories. Having 
 done so, they are then asked if they now have, inde- 
 pendently of the paper, any recollection of them. 
 In ninety-nine cases out of a hundred it would be 
 absolutely impossible for them really to remember 
 anything of the sort. They read the entry, know it is 
 probably accurate, and are morally convinced that 
 the fact is as thereon stated. They answer yes, that 
 their recollection has been refreshed and that they 
 now do remember, and are allowed to testify to the 
 fact as of their own knowledge. In most instances 
 they do not clearly understand the distinction they 
 are called upon to draw between actual independent 
 recollection and a strong belief on their own part 
 that the fact must be as recorded. It is the ex- 
 
236 THE PRISONER AT THE BAR 
 
 ceptional witness indeed who makes any such dis- 
 tinction. 
 
 There are also many cases where a defendant has 
 been put in jeopardy because some one, remembering 
 that he intended to do an act, becomes convinced that 
 he has done so, to the extent of being willing to swear 
 thereto. No better illustration of this kind of error 
 could be given than the disappearance of the famous 
 necklace of a prominent resident of Newport during 
 the summer of 1904. There lives hardly a family 
 which has not frequently had such an experience. 
 Some night the husband can't find his pearl shirt- 
 studs. He knows he had them on the evening before. 
 The hue and cry is raised. Maledictions are called 
 down upon Anna or Delia or Nora. But the 
 studs are not in the shirt. Their owner swears he 
 left them there. Then Delia tremblingly suggests 
 that "master dined in his ordinary clothes last even- 
 ing, ' ' and he realizes that it was so late when he got 
 home that at the last minute he decided not to 
 change. Amid great excitement the studs are located 
 in the bureau drawer where they belonged. 
 
 The final question to be determined by the juror 
 in regard to the testimony of any witness is how far 
 the latter has succeeded in conveying his actual 
 recollections through the medium of speech and ges- 
 ture. This necessarily depends upon a variety of 
 considerations. Among these are his familiarity 
 with the English language ; inadvertent accentuation 
 of wrong words or of the less important features of 
 his testimony; his physical condition, which in nine 
 cases out of ten is one of extreme nervousness and 
 timidity, if not of actual fear ; and a hundred other 
 trifling, but, in the aggregate, material matters. 
 
THE WITNESS 237 
 
 The most effective testimony is that which is given 
 with what the jury regard as the evidences of candor. 
 It is a familiar fact that the surer a person is 
 of anything, particularly among the laboring 
 classes, the more loudly will he assert its truth. 
 This is so well known to the jury as ordinarily con- 
 stituted that unless testimony is given with positive- 
 ness it might as well not be given at all. Much as it 
 is to be deprecated, an assertive lie is of much more 
 weight with a jury than an anemic statement of the 
 truth. The juror imagines himself telling the story, 
 and feels that if he were doing so and his testimony 
 were true, he would be so convincing that the jury 
 could have no doubt about it at all. Ofttimes a wit- 
 ness leads the jury to suspect that he is a liar simply 
 because he has too strong a sense of the proprieties 
 of his position vehemently to resent a suggestion of 
 untruthfulness. The gentleman who mildly replies 
 ' ' That is not so ' ' to a challenge of his veracity, makes 
 far less impression on the jury than the coal-heaver 
 who leans forward and shakes his fist in the shyster's 
 face, exclaiming: "If ye said that outside, ye little 
 spalpeen, I'd knock yer head off." "Ah," say the 
 jury, i ' there 's a man for you. ' ' Just as your puritan 
 is at a disadvantage in an alehouse, and your dandy 
 in a mob, so are the hyper-conscientious and the 
 oversensitive and refined before a jury. The most 
 effective witness is he whom the general run of 
 jurors can understand, who speaks their own lan- 
 guage, feels about the same emotions, and is not so 
 morbidly conscientious about details that in qualify- 
 ing testimony he finds himself entangled and ren- 
 dered helpless in his own refinements. A distin- 
 guished lawyer testifying in a recent case was so 
 
238 THE PEISONEE AT THE BAR 
 
 careful to qualify every statement and refine every 
 bit of his evidence that the jury took the word of a 
 perjured loafer and a street-walker in preference. 
 This kind of thing happens again and again, and the 
 wily witness who thinks himself clever in appearing 
 overdisinterested is " hoist by his own petard." 
 The jury at once distrust him. They feel either 
 that he is making it all up, or is in fact not sure of 
 his evidence, else, they argue, he would be more 
 positive in giving it. 
 
 Most witnesses in the general run of criminal cases 
 have no comprehension of the meaning of words of 
 more than three syllables. It is hopeless to make 
 use of even such modest members of our national 
 vocabulary as " preceding, ' ' "subsequent," "vari- 
 ous, ' ' etc. A negro when asked if certain shots were 
 simultaneous replied: 
 
 "Yas, boss. Dat'sit! 'Zactly simultaneous ! One 
 right after de odder." 
 
 The ordinary witness usually says "minutes" 
 when he means "seconds." He will testify without 
 hesitation that the defendant drew his revolver and 
 immediately shot the complainant, illustrating on 
 the stand the rapidity of the movement. When 
 asked how long it took, he will answer : ' i Oh, about 
 two or three minutes." 
 
 A proper medium in which to converse between 
 the lawyer and witness is sometimes difficult to find, 
 and invariably much tact is required in handling 
 witnesses of limited education. The writer remem- 
 bers one witness who was completely disconcerted 
 by the use of the word i t cravat, ' ' and at the precise 
 moment the attorney was so confused as not to be 
 able to remember any synonym. The Tenderloin 
 
THE WITNESS 239 
 
 and the Bowery have a vocabulary of their own dif- 
 fering somewhat from that of beggars and profes- 
 sional criminals. The language of the ordinary 
 policeman is a polyglot of all three. Popular writers 
 on the "powers that prey," and dabblers in crimi- 
 nology in general, are apt to become the victims of 
 self -alleged "ex-convicts" and "criminals" who are 
 anxious to sell unreliable information for honest 
 liquor. A large part of the lingo in realistic trea- 
 tises on prison life and "life among the burglars," 
 originates in the doped imagination of whatever fan- 
 ciful "reformed" thief happens to be the personal 
 gold mine of that particular author. Thieves, like 
 any distinct class, make use of slang, some of which 
 is peculiar to them alone. But for the most part the 
 "tough" elements in the community make them- 
 selves easily understood either in the office or on 
 the witness-stand. 
 
 Where the witness speaks a foreign language the 
 task of discovering exactly what he knows, or even 
 what he actually says, is herculean. In the first 
 place interpreters, as a rule, give the substance as 
 they understand it of the witness's testimony 
 rather than his exact words. It is also practically 
 impossible to cross-examine through an interpreter, 
 for the whole psychological significance of the an- 
 swer is destroyed, ample opportunity being given for 
 the witness to collect his wits and carefully to frame 
 his reply. One could cross-examine a deaf-mute by 
 means of the finger alphabet about as effectively as 
 an Italian through a court interpreter, who probably 
 speaks (defectively) seventeen languages. 
 
 The reader might perhaps conclude from what has 
 been said that the action of the ordinary jury in most 
 
240 THE PBISONER AT THE BAB 
 
 cases must be founded simply upon shrewd guess- 
 work. To a certain degree this cannot be denied, 
 and it is equally true that all the delicate processes 
 of the human mind, and the shadowy presences there 
 of intent, motive, and recollection, can never be de- 
 monstrated save by inference. Our machinery is 
 crude indeed. Ofttimes it is like trying to dissect 
 a butterfly with a pair of pincers, and the wonder is 
 that the jury are able to get at the truth as fre- 
 quently as they do. Hence the necessity for the 
 advocate to assist the jury and remedy their igno- 
 rance of the psychology of testimony by his own 
 observation, knowledge, and experience. With the 
 jury keenly alive to all the possibilities of error in 
 the testimony of even the most honest of witnesses, 
 it is for the advocate, the psychologist of the law, to 
 test by his cross-examination and demonstrate in 
 his summing up the precise probative value of the 
 evidence, frequently revealing, below an apparently 
 limpid stream of truth, a turbid bed of conjecture, 
 assumption, belief, hearsay, and inaccuracy of ex- 
 pression, with the rank weeds of perjury growing 
 just beneath the surface. 
 
CHAPTER 
 THE VERDICT 
 
 THE judge having delivered his charge, and the 
 jury having gathered up their collection of miscella- 
 neous garments and retired to the jury-room, a 
 court officer claps the prisoner upon the shoulder 
 and leads him away to the prison pen. Once the 
 door of the court-room has closed behind him, he is 
 conducted along a narrow corridor to the head of a 
 flight of iron steps at the foot of which stands a 
 keeper. As he descends the stairs the attendant 
 notifies the keeper that the defendant is on his way 
 down : and once the latter is safely below the keeper 
 shouts "All right !" to the officer above, who returns 
 once more to his duties in the court-room. Since 
 there is little danger of an escape the officers some- 
 times become a trifle lax in the handling of prisoners 
 awaiting sentence. 
 
 An incident recently occurred which shows how 
 much care is necessary in guarding a defendant who 
 confidently expects a verdict of conviction. At the 
 conclusion of a trial for grand larceny the jury went 
 out and the prisoner was conducted to the head of 
 the stairs leading down to the pen. The court officer 
 notified the keeper when the prisoner was about half- 
 way down, and distinctly heard the latter reply 
 ' ' All right ! " He thereupon departed. The keeper, 
 however, had not uttered a syllable and was entirely 
 unaware of the return of the defendant, who, being 
 
 241 
 
242 THE PRISONER AT THE BAR 
 
 something of a ventriloquist, had answered for him, 
 and had then calmly reascended the stairs, passed 
 through the corridor to another court-room where 
 he had mingled with the crowd, and later had had no 
 difficulty in making his escape first into the main cor- 
 ridor and thence into the street. When the jury 
 presently returned and the prisoner was sent for, 
 his flight was discovered. The court waited pa- 
 tiently while the pens, corridors and finally the 
 entire building were searched, but without disclos- 
 ing a trace of the prisoner. Meanwhile the jury, 
 who had found the defendant guilty, wondered why 
 their verdict was not received. According to law, 
 however, all the proceedings incident to a trial for 
 felony up to and including the rendition of the ver- 
 dict must take place in the presence of the prisoner, 
 and in this case his voluntary absence compelled the 
 court to declare a "mistrial." When it became evi- 
 dent that the defendant was unlikely to return, terri- 
 ble was the humiliation of the court officers, who, for 
 a few days, lived in terror of losing their official 
 heads, if not of being imprisoned and fined for 
 contempt. 
 
 The prisoner's wife, however, had been present 
 throughout the trial in the court-room, although, as 
 his escape was entirely extemporaneous, she was 
 as much surprised as anybody else at his departure. 
 After the discharge of the jury several detectives 
 followed her to her home in Hoboken. Late in the 
 evening she left the house in response to a message 
 and met her husband in a deserted part of the city, 
 where he was recaptured. He was immediately 
 brought back to New York and his case placed once 
 more on trial ; but this time he pleaded guilty. From 
 
THE VEBDICT 243 
 
 a dramatic point of view it is to be regretted that 
 the jury at the first trial had not found a verdict 
 of "not guilty." 
 
 As the first talesman who happens to be selected 
 for the jury in any given case becomes ipso facto 
 its foreman, amusing incidents sometimes occur 
 owing to his inexperience. Where an indictment 
 contains but a single count, as, for example, ' ' receiv- 
 ing stolen goods," the foreman's answer to the 
 clerk's interrogation of, "Do you find the prisoner 
 guilty or not guilty," is, of course, simple enough; 
 he answers "guilty" or "not guilty," or "not 
 guilty, with a recommendation to the mercy of the 
 court"; but where the indictment contains either 
 a number of counts set forth separately, or the 
 crime charged is of such a character that the jury 
 may find in a lesser degree, some confusion is apt 
 to result. If, for example, a defendant is being 
 tried for murder in the first degree the court is 
 obliged to submit, under the law, not only murder 
 in its first degree, but the lesser crimes of murder 
 in the second degree, manslaughter in the first de- 
 gree, manslaughter in the second degree and occa- 
 sionally assault in one or more degrees. Sometimes 
 the foreman forgets entirely what he was going to 
 say and stands staring, open-mouthed, until the 
 clerk comes to his assistance. 
 
 In a case where the court charged the jury that 
 they could find the defendant guilty of murder, 
 manslaughter, or assault, or else acquit him on the 
 ground that he was justified in taking the life of 
 the deceased, the jury retired and deliberated for 
 many hours. As the time dragged on the defendant 
 became convinced that he was to be convicted. Late 
 
244 THE PRISONER AT THE BAR 
 
 at night the jury informed the court that they had 
 agreed upon a verdict. They filed back and took 
 their places in the box. The defendant was ar- 
 raigned, pale with apprehension. The clerk arose. 
 
 " Gentlemen of the jury," said he, "have you 
 agreed upon a verdict?" 
 
 "We have," replied the foreman. 
 
 "The jury will rise," continued the clerk. "The' 
 defendant will rise." The jury and prisoner arose. 
 
 ' ' Jurymen, look upon the prisoner. Prisoner, look 
 upon the jury," continued the clerk, and turning 
 to the foreman, "How say you? Do you find the 
 defendant guilty or not guilty?" 
 
 "Guilty," stammered the foreman. 
 
 The defendant uttered a loud groan and collapsed 
 into the arms of the court attendant beside hinL 
 
 "Of justifiable homicide/' hastily added the inex- 
 perienced foreman. In spite of the laughter of the 
 rest of the jurymen and the smiles of the court 
 it took some moments to convince the unnerved 
 prisoner that he was not to be electrocuted. 
 
 In a recent case the jury returned a verdict of 
 "Pretty nearly guilty!" 
 
 A very considerable proportion of jury trials in 
 criminal cases result in disagreements. The ques- 
 tion of reasonable doubt is always a troublesome 
 one, and even where all the jury believe the defend- 
 ant guilty, as likely as not half of them will not think 
 that they are convinced beyond what they regard 
 as a reasonable doubt. On this account many 
 jurors are of the opinion that what is known as a 
 Scotch verdict, or a verdict of "Not proven," 
 should be allowed. The writer has been informed 
 on good authority that in one of the recent trials of 
 
THE VERDICT 245 
 
 Nan Patterson eleven of the twelve jurymen be- 
 lieved her guilty, but that only six of them were of 
 the opinion that they were so convinced beyond a 
 reasonable doubt. Had the Scotch verdict been per- 
 missible it would probably have been rendered in 
 this case. Inasmuch as the ordinary American petit 
 jury are apt to go outside the evidence and to decide 
 the issue, in some degree at least, on evidence which 
 properly they should not consider at all, no further 
 loopholes of escape from rendering a verdict one 
 way or the other should be afforded them. Had 
 we the Scotch verdict, instead of disagreeing and 
 giving the prosecution the opportunity to try the 
 defendant over again, juries would probably make 
 use of it in all cases where they disliked to render 
 a verdict in accordance with the evidence, 
 
 Juries frequently incorporate with the verdict of 
 guilty the words "with a recommendation to 
 mercy. " Of course this is no part of the verdict 
 and has no legal effect whatever. It is merely a 
 formal expression of opinion that in the eyes of the 
 jury it would be well for the court to treat the 
 defendant with leniency. The judge usually com- 
 ments upon this recommendation and intimates that 
 he will give it consideration in imposing sentence. 
 It is not likely, however, that in any case which has 
 appealed to the sympathies of the jury the court 
 will not be equally moved. In point of fact, did 
 juries fix the sentence in cases where they found 
 the defendant guilty it is exceedingly probable that 
 they would be much more severe than the bench. 
 Most jurors, however, are under the impression that 
 ^a recommendation to mercy" is an integral part 
 of their verdict and it frequently does yoeman's 
 
246 THE PRISONER AT THE BAR 
 
 service by inducing a juror or two who have a lin- 
 gering feeling that perhaps the crime has not been 
 as fully proven as it might have been, or that maybe 
 the defendant is not guilty after all or should 
 be given another chance, to agree with the majority 
 of their fellows. The writer had one panel of jurors 
 in the General Sessions which, having returned a 
 verdict of guilty " with a recommendation to mercy" 
 in the first case tried during the month, affixed the 
 same recommendation to each verdict which they 
 rendered thereafter. It is his impression that they 
 convicted every prisoner who came before them, so 
 that the recommendation must in many cases have 
 seemed to the hapless defendant but a hollow mock- 
 ery. There is even a traditional case where a jury 
 in a murder trial found the defendant guilty of mur- 
 der in the first degree, ' ' with a strong recommenda- 
 tion to the mercy of the court. ' ' 
 
 Verdicts of murder in the first degree are com- 
 paratively rare and are, practically, only to be 
 expected when the circumstances surrounding the 
 crime are peculiarly atrocious. It is also a well- 
 known fact that juries rarely find a verdict in a 
 degree of crime higher than the one for which the 
 majority vote upon the first ballot. For example, 
 if on the first ballot the jury stands five for murder 
 in the first degree, six for murder in the second 
 degree and one for manslaughter only a miracle 
 could account for a final verdict of murder in the 
 first degree. In other words, a jury will almost 
 never work up their verdict, argument invariably 
 tending to work them down to a lesser degree. Most 
 cases of what is technically murder in the first degree 
 result in verdicts of murder in the second degree, and 
 
THE VERDICT 247 
 
 most cases of murder in the second degree result in 
 verdicts of manslaughter. 
 
 The jury having rendered a verdict of conviction, 
 say of murder in the first degree, there remains to 
 counsel but one last act which he can perform in 
 his client's behalf, namely, to demand that the jury 
 be polled. This must be done upon the requirement 
 of either the defendant or the People, in which case, 
 "they must be severally asked whether it is their 
 verdict; and if any one answer in the negative, the 
 jury must be sent out for further deliberation. " 
 The writer has never heard of a jury which, on 
 being polled, showed a disagreement. It is not un- 
 usual, however, as the roll is called to see various 
 members of the jury look apprehensively towards 
 one of their number who has evidently put up in the 
 jury-room a hard fight for a lesser degree and may 
 be ' ' of the same opinion still. ' ' A prosecutor always 
 breathes more freely when the ordeal is over, and 
 probably experiences during the process very much 
 the same kind of emotion as that felt by the bride- 
 groom at the altar as he listens apprehensively at 
 the conclusion of the clergyman 's announcement that 
 "if any one has any just cause, etc., let him now 
 speak or forever hold his peace." 
 
 Defendants who are convicted rarely show any 
 emotion when receiving the verdict. This is of 
 course to be expected, as the defendant, if guilty, 
 has probably been anticipating that he will be so 
 found by the jury, and has steeled himself for the 
 occasion, while an innocent man is practically 
 never convicted. Hundreds of defendants, how- 
 ever, who confidently expect to be convicted, are 
 acquitted through the leniency of the jury. Their 
 
248 THE PRISONER AT THE BAR 
 
 exclamations of gratification and joy upon such occa- 
 sions are frequently most amusing. Such a defend- 
 ant not seldom thanks the court and the jury for 
 their kindness, and in some cases his thanks are 
 certainly due to those who have violated the letter 
 and spirit of their oaths in acquitting him. The 
 writer recalls one old colored mammy who, on being 
 acquitted of stealing some wash which had been con- 
 fided to her care, curtsied in all directions and re- 
 marked, "Ah t'anks your honor, an' Ah t'anks 
 your Honors, gentlemen ob de jury, one an' all." 
 An Irishman, who had been but a few weeks in this 
 country, and who had been acquitted on the charge 
 of stealing a truck and horse which had been left in 
 his charge, on learning of his acquittal invited the 
 jury collectively in a loud voice to come across the 
 street and have a drink. 
 
 Before the jury is discharged, however, and the 
 prisoner remanded to the Tombs for sentence, he is 
 required to answer certain questions relative to his 
 age, parentage, education, previous convictions, etc. 
 If the spectator is fortunate enough to be able to 
 forget the solemnity of what has taken place, he may 
 well be entertained, not only at the answers given by 
 the defendant, but at the method of conducting the 
 examination by the court officer. The clerk takes 
 the indictment and, with a large rubber die, stamps 
 upon it the statement that the defendant, on being 
 arraigned, made answer to the questions put to him, 
 as follows: 
 
 Counsel Assigned 
 
 Sex 
 
 Age 
 
 Nativity 
 
 Residence . 
 
THE VERDICT 249 
 
 Occupation , 
 
 Married or Single 
 
 Education 
 
 Religious Instruction 
 
 Parents Living 
 
 Temperate or Intemperate 
 Before Convicted . 
 
 Of course, the court officer who repeats the pris- 
 oner's answers to the clerk is usually so familiar 
 with the order of the questions as to render any 
 vocal action upon the part of the clerk unnecessary. 
 The officer stands by the prisoner and, leaning over, 
 asks in a low tone how old he is, if his parents are 
 living, if he is addicted to the use of liquor, if he has 
 had any religious instruction, or if he has been pre- 
 viously convicted of crime. It is really the officer to 
 whom the defendant makes his replies, the former 
 repeating them in a loud voice to the clerk. In 
 some courts the clerk does not put the questions at 
 all, but the officer merely gives in their order the 
 answers of the defendant. For example, in Part II, 
 upon the rendition of a verdict one will see Mr. 
 Samuel Wolff, the clerk, stamp the indictment, dip 
 his pen in the ink, turn to the officer of the court and 
 say, "All ready!" 
 
 The officer answers, "Yes." 
 
 ; A subdued conversation then takes place between 
 the prisoner and the officer, who raises his voice and 
 answers : 
 
 ' ' Twenty-nine ; U. S. No ; None ; Sin- 
 gle Yes; No. " All of which answers are 
 properly recorded opposite the appropriate ques- 
 tions upon the indictment. 
 
 All this is a little startling to the juror who has 
 rendered his first verdict. He has no idea at all of 
 what is going on. The officer returns, if possible, a 
 
250 THE PRISONER AT THE BAR 
 
 categorical reply to each question, but frequently 
 prisoners make statements which are of course 
 irrelevant in character and are not incorporated in 
 the answer. At times it requires quite a little cross- 
 examining on the part of the officer to determine 
 whether or not the defendant is temperate or intem- 
 perate, or whether he has really ever been convicted 
 of crime theretofore. Any one who could overhear 
 these colloquies would be well repaid for his trou- 
 ble. The writer knows of one officer of a some- 
 what waggish disposition who, when he approaches 
 the interrogation directed towards the prisoner's 
 usual habits, first puts the question in its proper 
 form: 
 
 "Are you temperate or intemperate !" 
 
 The prisoner, who perhaps does not understand 
 these terms, or, at any rate, is a little doubtful him- 
 self as to his usual condition, stammers and hesi- 
 tates. The officer, dropping his voice, remarks, con- 
 fidentially : 
 
 "Say, do you ever take a drink!" 
 
 "Sure," says the defendant, without hesitation. 
 
 "Moderate," shouts the officer to the clerk. 
 
 A certain element of humor enters into the situa- 
 tion when a defendant convicted of bigamy is asked 
 if he is married. The answer "Yes" is generally 
 accompanied by an irrepressible grin. 
 
 There used to be an old court officer in one of the 
 parts of the General Sessions a few years ago who 
 was a loyal son of Old Erin and a devout member of 
 the Roman Church. 
 
 On one occasion, a defendant having been found 
 guilty he was arraigned at the bar for the purpose 
 of having his pedigree taken, old Flaherty officia- 
 
THE VEEDICT 251 
 
 ting. The conversation which ensued may be worth 
 
 preservation. 
 Flaherty to Defendant: "Say, me friend, where 
 
 was ye born 1 " 
 
 Defendant to Flaherty: "Lowell, Mass." 
 Flaherty to Clerk: "Lowell, Mass." 
 Flaherty to Defendant : " Where do yez hang 
 
 out!" 
 
 Defendant: " No where." 
 Flaherty to Clerk: "Ain't got none." 
 Flaherty to Defendant: "Phat do yez do fer a 
 Jivin'?" 
 
 Defendant: "Nothin'." 
 Flaherty to Clerk: "Ain't got none." 
 Flaherty to Defendant: "Are ye married?" 
 Defendant: "No, thank God." 
 Flaherty to Clerk: "He says 'No, thank God!' " 
 Flaherty to Defendant: "Ever receive any pre- 
 vious religious instruction?" 
 Defendant: "How's that?" 
 Flaherty to Defendant: "Phat's yer religion?" 
 Defendant: "Don't believe in nothinV 
 Flaherty to Clerk (loudly): "PROTESTANT!" 
 
 For a convict to give under oath false answers to 
 the questions thus put to him is, of course, perjury. 
 It is frequently of no small importance for a pris- 
 oner to conceal his identity, or at least his record. 
 But if a Bible is thrust into his right hand he is loath 
 to put himself within the statute governing false 
 swearing, for the chances are all in favor of his 
 being found out, in which case his punishment will 
 be severe. The writer recalls a dramatic incident 
 of a man who endeavored to prevent his past 
 
252 THE PRISONER AT THE BAR 
 
 offences coming to the knowledge of the judge. He 
 bore, however, all the ear-marks of an ex-convict, 
 and the court became suspicious that all was not 
 right. He had just been convicted of stealing a 
 purse. The jury had remained out until eleven 
 o'clock at night and the court-room was practically 
 deserted. The prisoner was placed before the bar. 
 We will call him James Graham. The clerk put the 
 usual questions and then inquired : 
 
 "Have you ever been convicted before?" 
 
 "No," answered the prisoner in a low voice. 
 
 There was a long pause, and then the judge, look- 
 ing down intently from the bench, said: 
 
 "Graham, is that the truth*" 
 
 "Yes, sir," replied the prisoner. 
 
 "Are you quite sure?" insisted the court. 
 
 "Yes, sir." 
 
 "Swear him!" ordered the judge. 
 
 The officer started to place the Bible in Graham's 
 hand, but he refused to take it. 
 
 ' ' No, no, I can 't ! " he whispered. " I can 't I I 
 it 's no use ! " he added. 
 
 "When were you convicted?" 
 
 i 1 1 served six months for petty larceny about five 
 years ago." 
 
 "Is that all?" 
 
 "Yes, sir." 
 
 "Are you sure?" 
 
 "Yes, sir." 
 
 "Quite sure? Think again. " 
 
 "Yes, sir." 
 
 "Swear him!" 
 
 Again the book was placed in his hand and again 
 it was declined. 
 
THE VERDICT 253 
 
 "I served three years in Charlestown for larceny, 
 and was discharged two months ago." 
 
 "Is that all?" 
 
 * i God ! Isn 't that enough I ' ' suddenly groaned 
 the prisoner, breaking down completely. "No, sir, 
 it isn't all! It's always been the same old story! 
 Concord, Joliet, Elmira, Springfield, Sing Sing, 
 Charlestown Yes, six times. Twelve years! I'm 
 a jail bird!" 
 
 Before rendering a verdict the members of almost 
 every jury take the opportunity in the jury-room to 
 stretch their legs and satisfy their craving to smoke. 
 Juries rarely return in less time than it takes to 
 burn a cigar. While this may torture the prisoner 
 it would seem a fairly earned perquisite on the part 
 of his judges. Some jurors are instinctively, and a 
 few are actually lawyers. These rarely add much 
 to the general usefulness of the panel. Jurymen 
 not infrequently seize the opportunity to display 
 their oratorical ability, since their audience cannot 
 get away and must perforce hear them out. The 
 writer recalls one instance where in a well-known 
 extortion case an enthusiastic talesman made a 
 digest of the speeches of counsel for the defence 
 and for the prosecution and then prepared a long 
 harangue of his own which he committed to memory. 
 When the jury were safely locked into their council 
 chamber this self-sacrificing gentleman arose and 
 began, "In this case the defence claims, thus and 
 so." After he had repeated practically in toto the 
 argument of the defence he got his second wind and 
 continued, "On the other hand, the People assert, 
 thus and so." At the end of about an hour he had 
 reached his own humble views of the case, which he 
 
254 THE PEISONEE AT THE BAR 
 
 expanded at great length, ending with a peroration 
 in which the great American eagle could be heard 
 screaming all the way into the court-room. The 
 jury, probably out of sheer fatigue, took but a single 
 vote and found the defendant guilty. The orator 
 to this day claims that he "did it." 
 
 While the deliberations of the jury are theoreti- 
 cally secret, the rooms in which they are confined 
 are often so located with reference to corridors, re- 
 tiring rooms, etc., that officers on duty, turnkeys, 
 and other persons are occasionally made involun- 
 tary eavesdroppers. It is said that in other and 
 more barbarous times interested parties would lurk 
 near by in order to get an idea of how the wind was 
 blowing. There is a story for which the writer as- 
 sumes no responsibility that ten or fifteen years ago 
 a noted prosecutor was accustomed to follow the 
 jury out, climb upon a ladder, and listen at the 
 transom to their arguments and comments; and 
 there is also a report, which perhaps is but a fable, 
 that there was a knot-hole in the jury-room of the 
 old "Brownstone" building from which the plug 
 was regularly removed to allow of similar surrepti- 
 tious observations. The rumors which come from 
 the direction of the jury-room are quite as pt to be 
 incorrect as accurate, and neither prosecutor nor 
 prisoner really knows what is the result of the jury's 
 deliberations until the foreman's word ends the 
 suspense. 
 
 Many strange and amusing stories are told of 
 how certain historic verdicts in criminal cases were 
 reached. Perhaps the most famous is that of the 
 trial of the first indictment which followed the 
 robbery of the Manhattan Bank. The case was 
 
THE VERDICT 255 
 
 tried before Judge Cowing in the General Ses- 
 sions, and after a speedy, but conclusive, t4al the 
 jury retired. A vote, which was immediately taken, 
 showed that they stood eleven to one for conviction. 
 The twelfth juror was obstinate and no progress 
 whatever was made by the others. The situation 
 remained unchanged during the night and up to 
 twelve o'clock of the next day, which happened to 
 be a Saturday. At that hour Judge Cowing sent 
 word that he was going downtown and would not 
 return until two o 'clock. In some way the jury got 
 the idea that the judge intended to lock them up 
 until Monday if they did not agree. They accord- 
 ingly asked for five minutes more before the judge 
 left the building. This was granted and at the end 
 of that time they announced that they had agreed. 
 Into court they filed, 
 
 i i Have you agreed upon a verdict? 7 ' asked the 
 clerk. 
 
 "We have," replied the foreman. 
 
 ' ' How say you? Do you find the defendant guilty 
 or not guilty?" 
 
 "Not guilty," answered the foreman defiantly 
 The defendant, who was as guilty a man as ever was 
 brought to the bar of justice, almost collapsed from 
 astonishment, and the judge gave the jury a frank 
 piece of his mind in no uncertain language. Bather 
 than suffer any further inconvenience this high- 
 minded jury had simply faced about and voted to 
 acquit. 
 
 There are some cases, however, where one strong- 
 minded and able juryman has swung the whole body 
 to his way of thinking after a vote of eleven against 
 him, and this is as true of verdicts of conviction as 
 
256 THE PRISONER AT THE BAR 
 
 of acquittal. Few jurors, however, can, as a rule, 
 stand out against the assertions and incriminations 
 of their fellows. Most of them are easy-going and 
 like to be led by a strong hand. A positive stand 
 taken by a fellow talesman will often bring them to 
 his views when they are really inclined to be in 
 doubt. If the flag is raised they will quickly rally 
 to it, but they will never reach the point where they 
 would be willing to elevate it of their own accord. 
 An experienced and highly intelligent juryman once 
 told the writer that the first thing he always did 
 when the jury had retired, whether he was the fore- 
 man or not, was to stand up at the end of the table 
 and say: 
 
 "Gentlemen, this man is guilty [or innocent, as 
 the case might be] ! The sooner we say so the bet- 
 ter, but my mind is made up." 
 
 In this way he invariably secured at the outset 
 the support and co-operation of a majority of the 
 jury. 
 
 In capital cases where the prisoner's life hangs in 
 the balance there will always be found in the first 
 vote a few blank ballots. These are cast, as the 
 expression is, "to provoke discussion.'' Shrewd 
 old jurors, realizing that no man can convince 
 another half so well as that other can convince him- 
 self, will often vote for "not guilty" in order to get 
 their fellows worked up to a white heat of intel- 
 lectual frenzy in the effort to bring them over. There 
 is many a wily Odysseus among the variegated per- 
 sonalities of a jury. 
 
 "My first jury trial," said one of the judges of 
 the General Sessions recently, ' ' occurred when I was 
 a very young man and had just been admitted to the 
 
THE VERDICT 257 
 
 bar. It was my initial appearance in a court of jus- 
 tice. However, I threw out my chest and tried to 
 make the jury think I was an old hand at the bus- 
 iness, by objecting to almost every question and 
 taking exceptions by the score. My client was an 
 old woman who had been illegally ejected, or who 
 claimed to have been illegally ejected, by the agent 
 of a tenement house which belonged to Mr. W. D. 
 Sloane. Of course, I don't suppose Mr. Sloane 
 ever heard of the incident, but I was suing him 
 for damages and put in my case with a great deal of 
 vigor. The lawyer for the defence was a big, good- 
 natured man who did not seem to care very much 
 which way the jury decided the case. The judge 
 charged and the jury retired. They were gone a 
 very long time. At last an officer appeared with a 
 slip of paper. The judge beckoned the lawyer for 
 the other side and myself to the bench and showed 
 us the jury's message. 
 
 " 'We want a bottle of whiskey and a box of 
 cigars,' it read, and was signed, 'William Smith, 
 Foreman. ' 
 
 " 'Let 'em have them!' remarked the good- 
 natured lawyer. 'I don't blame 'em for being 
 thirsty. ' 
 
 '"I don't know,' I replied. 'It does not seem to 
 me that whiskey would help them to decide the facts 
 any more clearly!' 
 
 " 'Of course, if Mr. does not agree to it!' 
 
 exclaimed the lawyer, ' I have nothing to say ! ' Then 
 he turned away and the judge whispered in my ear : 
 
 " 'Young man, I should advise you to let these re- 
 freshments go into the jury-room. You have not 
 had a great deal of experience and probably do not 
 
258 THE PEISONEE AT THE BAB 
 
 appreciate the effect which a denial of their request 
 may have upon the jurors. Take a quiet tip from 
 me and let the whiskey go in. ' 
 
 " 'All right, your Honor,' said I. 'I bow to your 
 Honor's long acquaintance with men and your ex- 
 perience at the bar of justice.' 
 
 4 'Well, the whiskey and cigars went in, and I could 
 see as the officer brought them through the court- 
 room that the whiskey was the very best King Wil- 
 liam and the cigars were Havana perfectos. I won- 
 dered with some misgivings who was paying for 
 them. 
 
 "In about an hour the jury filed in flushed and 
 happy and rendered a verdict in favor of Mr. Sloane. 
 Some time afterwards I happened to be in the court- 
 room and learned from the officer that the jury had 
 stood eleven to one in my favor for over three hours. 
 The foreman, the only one against me, had finally 
 remarked that he was thirsty and had offered to 
 treat the rest of the jury. In less than an hour after 
 the refreshments had arrived the other eleven came 
 over and decided that Mr. Sloane was in the right. ' ' 
 
 Another judge tells of an experience of his when 
 serving upon a jury in Ireland. The case over they 
 retired to the jury-room and found that they stood 
 eleven to one for acquittal, but that one happened 
 to be a very complacent old gentleman in a billy- 
 cock hat who, with his chin resting upon the head of 
 a thick bamboo cane, announced defiantly that he 
 was ready to stay there as long as anybody. The 
 hours dragged slowly by, evening drew on, and still 
 the old gentleman obstinately held out. The jurors 
 disposed their weary bodies as best they could along 
 the floor and the hard benches, and prepared to 
 
THE VEEDICT 259 
 
 make a night of it. From time to time the old gen- 
 tleman would contemplatively suck the head of his 
 bamboo cane. Finally he fell fast asleep and the 
 cane fell heavily to the floor. Then one of the jurors 
 picked it up and found to his surprise that it was 
 hollow and filled with good old Irish whiskey. 
 They passed the cane around, relieved it of its con- 
 tents, and then awoke the owner. Slowly he lifted 
 the cane to his mouth, sucked ineffectually for a 
 moment, looked at his watch and then arose with 
 the announcement : 
 
 "B'ys! I'm afther changin' me moind!" 
 A recent trial, Donohue vs. The New York, New 
 Haven and Hartford Railroad, illustrates the 
 vagaries of individuals which may seriously inter- 
 fere with the course of justice. The judge had been 
 particularly careful to elucidate the point of law 
 which the jury were to apply to the facts as they 
 found them. The jury unanimously agreed that the 
 facts were thus and so, but one of their number re- 
 fused to follow the law as laid down by the court. 
 At first he insisted that the judge had charged dif- 
 ferently, but it soon became obvious that this was 
 not the true cause of his indecision. 
 
 "Well," exclaimed the foreman at last, on the 
 verge of distraction, i l should we go back into court 
 and the judge should instruct you that what we say 
 is the law, would you find a verdict then?" 
 
 The juryman hesitated and then announced with 
 deliberation : 
 
 "No; not until I had consulted my attorney." 
 A frankly unscrupulous member of the criminal 
 bar tells the following story at his own expense. 
 His client was indicted for murder and on the evi- 
 
260 THE PEISONEB AT THE BAR 
 
 dence apparently guilty. The lawyer 's only chance, 
 as he thought, lay in trying to "work it down" to 
 manslaughter, which would get his client off with 
 twenty years' imprisonment. Accordingly he told 
 his clerk to become friendly with the jurymen, treat 
 them to drinks, and see what he could do. The clerk 
 reported that he had become very thick with the 
 twelfth juror, an old Irishman, who had promised 
 to "hold out for manslaughter. " The lawyer told 
 his client, and both ceased to worry about the result, 
 as death no longer stared the prisoner in the face. 
 The jury retired and remained out twenty-three 
 hours. At the end of that time, tired, dishevelled, 
 exasperated, they filed into court and returned a 
 verdict of manslaughter. The lawyer warmly con- 
 gratulated his client. As the jury were separating 
 the old Irishman leaned over to the lawyer and 
 exultantly whispered : 
 
 "Bedad, I had th' divil av a time av it! Elivin o' 
 thim were for lettin' him go entirely!' 9 
 
CHAPTER XIV 
 
 THE SENTENCE 
 
 "WHAT have you to say why judgment of the 
 court should not be pronounced against you accord- 
 ing to law!" 
 
 With these words begins the final chapter of the 
 convict's history. He has been arraigned for the 
 last time at the bar of justice, after a jury of his 
 peers has declared him "guilty," and now awaits 
 his sentence. 
 
 The judge who presides at the trial of a criminal 
 case does but begin his labors when he receives the 
 jury's verdict. If he be a man of sensibilities the 
 strain of a trial is as nothing compared with the re- 
 sponsibility of determining whether the defendant 
 shall be let go free under a "suspended" sentence 
 or ordered to prison. No one appreciates the horror 
 of prison life or its effect upon the individual better 
 than the judge himself, and he may pass many a 
 sleepless night before sentencing a man whose cir- 
 cumstances and whose years suggest the possibility 
 of reformation. 
 
 Where the defendant has been found guilty of mur- 
 der in any of its degrees the judge is, of course, 
 relieved of the responsibility of determining the sen- 
 tence, which is fixed by law, and the interrogation of 
 the clerk must seem but a mockery to the prisoner, 
 who knows that, whatever he may say in his own 
 
 261 
 
262 THE PEISONEE AT THE BAR 
 
 behalf, the judgment of the court will be the same. 
 For this reason counsel rarely address the court 
 upon the sentence in such a case, but sometimes the 
 prisoner himself seeks a last public opportunity to 
 assert his innocence or proclaim his repentance. 
 
 On Saturday morning, March 21, 1829, Richard 
 Johnson, convicted of the murder of Ursula New- 
 man, was brought to the bar of the New York Court 
 of Oyer and Terminer, and was asked what he had 
 to say why judgment of death should not be pro- 
 nounced against him according to law. In the faded 
 ink of the records of the General Sessions is in- 
 scribed the following: 
 
 The prisoner replies: 
 
 If your Honor please. I am asked what I have to say 
 why judgment of death should not be pronounced against 
 me? To this I reply To the judgment of the law, nothing. 
 A jury of my country has pronounced me guilty; and there 
 remains no discretion with the court but to pronounce upon 
 me the sentence of the law. But to the judgment of the 
 world I have much to say. I have been convicted of a crime 
 the bare recital of which causes humanity to shudder. 
 And it is a duty which I owe to myself while living, and to 
 my memory when dead that the circumstances of my offence 
 should be fully explained. Before entering into the detail, 
 I must take this public opportunity in the name of that 
 omniscient and all-merciful Being who will hereafter pro- 
 nounce his judgment, alike upon my judges & myself, 
 of disclaiming any knowledge of the transactions of that 
 fatal 20th of November. I do not mean to impugn the 
 decision of the jury; the movements of the mind were 
 beyond their power to penetrate; and hard as is my fate 
 I humbly bow to their verdict. I cannot here enter fully 
 into the details of my intimacy with the unfortunate cause 
 of my present awful situation. Duped and betrayed as I 
 have been into sorrow and bitter despair, and lastly involun- 
 tary crime I am unwilling while living to indulge in unavail- 
 ing reproaches. In life the deceased was the object of my 
 tenderest affection. An affection that her own unkind 
 conduct seemed to inflame, and that, baffled in its honor- 
 
THE SENTENCE 263 
 
 able purpose expelled reason from her throne, and, in its 
 absence, led to the commission of the offence, for which 
 I am now to satisfy the offended community by my own 
 life. Was I conscious of any moral guilt, at this result 
 I should not repine. Accustomed throughout my life to 
 respect the law, I have not now to learn that the blood of the 
 murderer is alike a propitiating sacrifice to the laws of God 
 and man. Convicted of the legal crime I know my fate. 
 For the moral offence I have to answer to my conscience 
 and my God; and that innate monitor tells me, that I stand 
 before this court and this community a legal but not a moral 
 murderer. To my counsel who have so ably though vainly 
 made my defence, I tender my warmest thanks. Of the 
 court I have but one request to make, that the period al- 
 lowed me to prepare for my impending fate may be as long 
 as the law will permit. 
 The sentence of the court was then pronounced. 
 
 Compare this solemn and thrilling declaration 
 with what occurred upon the sentence of Dr. Carlyle 
 W. Harris, convicted of the murder of his girl- wife 
 by the administration of morphine capsules which 
 he compounded and furnished to her. He had mar- 
 ried her secretly under an assumed name and in all 
 probability had never intended to recognize her as 
 his wife. Events finally rendered it impossible for 
 him to conceal the marriage longer, and, realizing 
 this, he procured for her the medicine which caused 
 her death. Harris was a gentleman, or rather he 
 was a very debonair, nonchalant, and brazen imi- 
 tation of one. Throughout his trial he had pre- 
 served an absolutely unruffled exterior, chatting 
 affably with counsel and court attendants, and ^re- 
 ceiving the verdict with undiminished equanimity. 
 On the day set for his sentence he came into court 
 with the easy and gracious manner of a young man 
 paying an afternoon call. He was arraigned at the 
 bar and the Recorder [Smyth] proceeded to re- 
 
264 THE PRISONER AT THE BAR 
 
 hearse the history of his terrible crime and stigma- 
 tize the loathsome character of his act. Harris 
 listened politely, and apparently endeavored to 
 show a considerable interest in his remarks. Then 
 the Recorder made some slight error in giving a 
 date. 
 
 "Pardon me, your Honor, " interrupted the blithe 
 defendant, "it was the eighteenth and not the nine- 
 teenth " and corrected him. 
 
 The Recorder frowned and replied with dignity. 
 
 "That is a matter of slight importance!'' 
 
 "I beg your Honor's pardon," returned Harris 
 flippantly; "you see, I have never been sentenced 
 to death before, and am not as familiar with the pro- 
 cedure as might be." 
 
 Unpleasant as is the duty of the prosecutor who 
 is obliged to move that the sentence of death be pro- 
 nounced, it is less terrible than listening to the few 
 simple but hopeless words that doom a convict to 
 life imprisonment. The murderer must die; but it 
 will soon be over. The ghost of his victim will in a 
 few weeks cease to haunt his dreams. But the 
 "lifer"! Who can picture the horror of a lifetime 
 of repentance or of mocking remorselessness? 
 "Civilly dead," he is doomed to drag out his weary 
 years in an earthly tomb, a silent, forgotten crea- 
 ture, numbered like a human specimen, enduring all 
 the tortures of purgatory until the end seems a 
 far distant haven of oblivion. The court-room 
 echoes, like the empty future of the white-faced 
 prisoner, to the dull fall of the words upon his bar- 
 ren soul "for the rest of your natural life." The 
 listener shudders. "God grant that it be short!" 
 he murmurs, then looks away. 
 
THE SENTENCE 265 
 
 Of course, in the seventeenth century and early in 
 the eighteenth all felonies were punishable, not only 
 in England but in America, by death. When the 
 severity of punishment began to be abated and im- 
 prisonment substituted for the extreme penalty, all 
 sentences were for a fixed and definite term, and the 
 only way that the convict could obtain release or 
 secure the modification of his sentence was by par- 
 don from the supreme executive authority of the 
 country. 
 
 Sometimes a ray of sunshine illumines the dreary 
 pages of these parchment-bound volumes, the stiff 
 phraseology of the crabbed entries failing to obscure 
 it. For example, on Monday morning, March 29, 
 1784, "The Court met pursuant to adjournment" 
 and was "opened by proclamation." The grand 
 jury came into court and presented an indictment 
 against one Sylvia, a negro slave, "for stealing 
 monies from Alex r Johnson." 
 
 1 ' The prisoner being set to the bar and arraigned, 
 did plead guilty, and for trial put herself upon God 
 and the country." Her case was immediately 
 moved. One witness, the Alexander Johnson men- 
 tioned, testified. 
 
 "The jury without going from the Bar say, that 
 they find the prisoner at the bar Guilty of the Felony 
 whereof she stands indicted. . . ." 
 
 Just one week later, Sylvia, now a convict, "was 
 called to the Bar, for judgment, and it being de- 
 manded of her in the usual manner what she could 
 say for herself why judgment of Death should not 
 now pass against her, according to law, she did pro- 
 duce and plead a pardon of the People of the State 
 of New York, under the Great Seal, bearing test the 
 
266 THE PRISONER AT THE BAR 
 
 31st March, 1784, which was read and allowed, and 
 the Prisoner discharged." 
 
 Sylvia was undoubtedly a valuable piece of per- 
 sonal property valuable enough evidently to make 
 it worth her master >s while to urge his claims upon 
 the Governor for clemency. 
 
 White offenders did not always fare as well. But 
 for them in the colonial times still occasionally re- 
 mained that quaint old plea of " benefit of clergy. " 
 This lingered on as late as 1784, when the record 
 shows that one John Cullen, having been convicted 
 of forgery, 
 
 "ON MOTION of Mr. Attorney-General . . . was 
 sent to the Bar for judgment, and it being demanded of him 
 in the usual form what he could say for himself why judg- 
 ment of death should not pass against him according to Law, 
 he prayed the Benefit of Clergy, which was granted by the 
 Court. 
 
 THEREUPON IT WAS ORDERED that the said John 
 Cullen be branded in the brawn of the left Thumb with the 
 letter T in the presence of the court, and that the sheriff 
 execute the order immediately, which was done accord- 
 ingly." 
 
 Benefit of clergy was the historic privilege ac- 
 corded in England to all priests of being tried only in 
 the ecclesiastical courts for their crimes. Coke says 
 that "it took its root from a constitution of the Pope 
 that no man should accuse the priests of Holy Church 
 before a secular judge." As all common-law felo- 
 nies (except petty larceny and mayhem) were pun- 
 ishable by death even as late as 1826, and as these 
 felonies included homicide, rape, burglary, arson, 
 robbery and larceny, and all were clergyable, it must 
 have been a prerogative of considerable value to any 
 member of the cloth of lively disposition. 
 
THE SENTENCE 267 
 
 Originally the privilege could be claimed before 
 trial, and ousted the lay courts of any jurisdiction 
 whatever, the right being strictly limited, however, 
 to those who exhibited all the physical attributes 
 and garb of priesthood, having "habitum et tonsu- 
 ram clericalem," but long before (1350) it was pro- 
 vided that "all manner of clerks, as well secular as 
 religious, shall from henceforth freely have and en- 
 joy the privileges of Holy Church. " As a priest 's 
 trial in the ecclesiastical courts was hardly more 
 than a matter of form, with rarely any result save 
 that of acquittal, he who could plead his " benefit " 
 was practically immune so far as punishment for 
 his crimes was concerned. In course of time the 
 right was accorded only after conviction in the 
 secular courts. 
 
 In 1487 it was provided that every person con- 
 victed of a clergyable felony should be branded in 
 the brawn of his thumb, so that mere inspection 
 would reveal second offenders. The letter M stood 
 for murderer and T for thief or forger, as we have 
 seen in Cullen's case. The statute also provided 
 that no person could plead his clergy a second time 
 unless he were actually in orders. Thus as late as 
 1487 practically any one who could read or write 
 might commit as many crimes, including murder, as 
 he chose, with no fear of punishment save of having 
 to make his purgation, and after that date could, so 
 to speak, have one murder, arson or larceny and 
 escape with branding, while the priest in orders con- 
 tinued free to violate the law to his heart's content. 
 Perhaps this wholesale extension of the privilege 
 was made in the interest of education and as an in- 
 centive to literary accomplishment. It certainly put 
 
268 THE PRISONER AT THE BAR 
 
 a premium on learning which a mere "degree" 
 could not offer. 
 
 From the beginning of the eighteenth century on 
 (the privilege having been extended by statute to 
 all the inhabitants of England, male or female), 
 any one, irrespective of his learning, could plead 
 his clergy once to any crime that remained clergy- 
 able, if he could find one, and priests in orders 
 could do so indefinitely. But the crimes which were 
 clergyable were correspondingly reduced in num- 
 ber. In 1779 branding was practically done away 
 with in England. (19 Geo. 3, c. 74 s. 3.) 
 
 It is interesting to find the custom still in vogue 
 in America as late as 1784, as shown by the case of 
 Cullen.* 
 
 In one or two of the Southern States the plea 
 lingered on for nearly another half century. 
 
 When the defendant could not avail himself of 
 clergy and no pardon was at hand to save him, the 
 law in the early days took its full and awful course. 
 Thus we read in the first almost illegible volume of 
 the records, the phraseology of the sentence, save 
 
 * The whipping post and the pillory were in active use until com- 
 paratively recent times. Under Dutch rule the former occupied a 
 conspicuous place in front of the Stadt Huys on the strand. As 
 a matter of great leniency the floggings were sometimes conducted in 
 a room to which the public was not admitted. But the disgrace of 
 the performance was regarded as an integral part of the punishment. 
 The offenders were at the same time branded and frequently banished. 
 A New York paper, dated 1712, says that one woman at the whipping 
 post "created much amusement by her resistance." The New York 
 Gazette for May 14, 1750, states: 
 
 " Tuesday last one David Smith was convicted in the Mayor's Court 
 of Taking or Stealing Goods off a Shop Window in this City, and was 
 sentenced to be whipped at the Cart's Tail round this Town and after- 
 wards whipped at the Pillory which sentence was accordingly executed 
 on him." The same paper for October 2, 1752, describes the pillorying 
 of a boy for picking pockets and the whipping of an Irishman for steal- 
 ing deerskins. In the olden days many a common scold was ducked 
 into quiescence in the North River. 
 
THE SENTENCE 269 
 
 for its terms, being practically the same to this 
 day: 
 
 Att a Court holden for the tryal of negro 
 and Indian slaves at the Citty Hall of 
 the Citty of New- York, on Tuesday 
 the 15 th day of April, Anno Dom. 
 1712. 
 PRESENT: 
 
 Caleb Heathsope, 1 Esquires, 
 
 William Smith, \- Justices 
 
 Edward Blagge J 
 
 Court opened 
 
 !The defend* Tom being 
 brought to the Barr & having 
 Dothing to say for himself 
 why judgment of death should 
 not pass ag* him according to 
 the verdict &c. It is con- 
 sidered by the Court that he 
 e place from whence he came 
 
 and from thence to the place of execution and thence to be 
 burned with a slow fire that he may continue in torment 
 for eight or ten hours and continue burning hi said fire 
 untill he be dead and consumed to ashes. 
 
 At present, when " benefit of clergy" is but a legal 
 tradition, and pardons are obtained with difficulty, 
 but one legal barrier can be raised to the interposi- 
 tion of sentence upon a convict proof of his in- 
 sanity. If, in the opinion of the court, there is 
 reasonable ground for believing him to be mentally 
 unbalanced, the question must be determined as pro- 
 vided in the Code. If he is found to be sane, judg- 
 ment must then be pronounced, but if found insane 
 he must be committed to the State Lunatic Asylum 
 until he recovers his sanity, and when notice is given 
 of that fact he must be brought before the court for 
 judgment. Of course, he may also allege legal 
 ground why the judgment should be arrested or why 
 
270 THE PEISONEE AT THE BAE 
 
 a new trial should be granted, but at this time a 
 technical discussion of these motions would be un- 
 necessary. 
 
 Defendants are far less likely to feign insanity at 
 the time of their sentence than they are upon the 
 actual trial ; for if a man is clever enough to act the 
 part of a lunatic he is shrewd enough to realize that 
 the best time to do so is before he has been convicted 
 of the crime charged against him. 
 
 There is a reputed case, the memory of which still 
 lingers around the criminal courts, where it is said 
 that a defendant who was charged with murder in its 
 first degree feigned insanity just before his case was 
 moved for trial. This was many years ago, at a 
 time when such a fact did not, of itself, necessarily 
 excite the same suspicion that it does to-day. The 
 issue of the defendant's sanity was tried before a lay 
 jury, who promptly found that he was incapable 
 of understanding the proceedings against him or 
 of making proper preparation for his defence. He 
 was thereupon committed to the State Asylum for 
 the Insane, where he remained incarcerated for 
 many years. It so happened that there was but a 
 single eye-witness to the shooting, and the circum- 
 stances surrounding the affair were such that with- 
 out the testimony of this witness it would be a 
 practical impossibility to determine whether the 
 deceased had been murdered or had committed sui- 
 cide. After twenty years, in the course of which the 
 defendant 's lawyer had died and the entire family of 
 the prisoner had either died or disappeared, an- 
 other lawyer, who had found among some old papers 
 a memorandum of the case, went to Matteawan, 
 located the defendant, and discovered, as he had 
 
THE SENTENCE 271 
 
 anticipated, that he was entirely sane. A writ of 
 habeas corpus was thereupon procured and the de- 
 fendant brought back to New York. 
 
 In that time the entire aspect of the city had 
 changed. Buildings twenty-five stories in height had 
 replaced those of six ; the city had reached far up and 
 entirely covered the island; electric surface cars 
 had taken the place of ramshackle, bobtail horse cars. 
 The defendant, prematurely aged and with clothes 
 long out of date, impressed those in the court-room 
 as a sort of Eip Van Winkle, awakened after a long 
 sleep. There was absolutely no question as to the 
 man's sanity, and he was discharged upon the writ 
 of habeas corpus and remanded to the Tombs to 
 await his trial. The following morning he was 
 brought into court, and the district attorney moved 
 that the indictment against him be dismissed on the 
 ground that there was no longer any evidence upon 
 which the people could proceed to prosecution. 
 Then for the first time the defendant discovered 
 that the only witness against him had died ten days 
 after he had been committed to the asylum. Al- 
 though the writer does not vouch for the authen- 
 ticity of this story, the incident may well have 
 happened. 
 
 In addition to the legal ground of insanity why 
 judgment should not be imposed, a convict or his 
 counsel may properly, on his arraignment, state 
 to the court any general reasons for a mitigation of 
 sentence or for its absolute suspension when such is 
 within the discretion of the court, and few sentences 
 are imposed without a more or less lengthy appeal 
 for clemency from the defendant's lawyer, who 
 usually does not confine himself merely to the con- 
 
272 THE PBISONER AT THE BAE 
 
 trition of the defendant, his past respectability and 
 his pledges to lead a new and better life, but is prone 
 to discourse volubly upon the reputable connections 
 of the defendant, the hardship which a sentence will 
 impose upon his family, and the fact that the com- 
 plainant or those who have been interested in the 
 prosecution now have a profound sympathy for the 
 prisoner. The gist of many of these appeals is to 
 the effect that because the defendant, by reason of 
 his education and opportunities, ought to have known 
 better than to commit crime, he should now, since 
 he has discovered his mistake, be excused from 
 paying the penalty. The judge invariably listens 
 with courtesy to these orations, which are not often 
 made with any idea of actually influencing the 
 court 's decision. They are grateful to the defendant 
 and his family, and impress the latter with the fact 
 that the lawyer is doing everything in his power to 
 get his client off. 
 
 It is now the judge's soul is tried. How far may 
 he temper justice with mercy! How far are the 
 interests of the public and the prisoner irreconcila- 
 ble? Many youthful offenders, who have not hith- 
 erto been convicted, escape with a suspended sen- 
 tence or a commitment to a reformatory even 
 when found guilty of crimes as serious as man- 
 slaughter or robbery. Little mercy is shown to 
 old offenders. In fact, the law now provides that 
 they may be tried under an indictment charging 
 them with having committed a " second offence," 
 under which, if found guilty, they must be sen- 
 tenced to the maximum penalty set for a first offence 
 of the same crime. 
 
 It should be noticed that originally only one sen- 
 
THE SENTENCE 
 
 273 
 
 tence, and that a definite one, could be passed by the 
 judge upon a prisoner for any given offence. At 
 first there were no provisions of law granting to' con- 
 victs as a matter of right any reduction or commuta- 
 tion of sentence because of good behavior. Then laws 
 were passed which provided for the definite commu- 
 tation of the sentences of all convicts confined in 
 State's prison. The question as to whether or not the 
 convict had earned his commutation by good behavior 
 was left to a board composed of the State superin- 
 tendent of prisons and others. A carefully prepared 
 scale or table showed exactly how much commutation 
 it was possible for any prisoner to earn.* 
 
 In 1889 there was introduced into New York State 
 for the first time what is commonly known as the 
 "indeterminate sentence," that is to say, a sentence 
 consisting of a minimum and a maximum term of 
 imprisonment during which the prisoner may be 
 discharged at the option of a board consisting of 
 various persons, but distinct from that which 
 passes upon the question of whether or not he 
 has earned his "commutation." The introduction 
 of this form of sentence is in conformity with the 
 most recent and most enlightened view of the 
 proper attitude of the State towards its criminals. 
 
 * The periods of commutation are shown by the following table: 
 
 SENTENCE 
 
 COMMUTATION 
 
 SENTENCE 
 
 COMMUTATION 
 
 Years 
 
 Years 
 
 Months 
 
 Years 
 
 Years 
 
 Months 
 
 1 .. 
 
 
 2 
 8 
 
 '6 
 10 
 3 
 
 8 
 
 6 
 
 11 
 
 3 
 
 4 
 4 
 5 
 5 
 
 7 
 9 
 
 ii 
 
 11 
 4 
 9 
 2 
 7 
 8 
 9 
 10 
 11 
 
 2 . ... 
 
 
 12 
 
 3 
 
 
 13 
 
 4 
 
 1 
 
 1 
 2 
 2 
 3 
 
 
 5 
 
 15 
 
 6 
 
 20 
 
 7 
 
 25 
 
 g 
 
 30 
 
 9 
 
 35 
 
 10 
 
 
 
274 THE PBISONER AT THE BAE 
 
 Whenever the indeterminate sentence has been 
 introduced into any State it has been invariably at- 
 tacked as being unconstitutional, but the courts have 
 uniformly upheld it. The principal difference to 
 be noted between "commutation" and "indetermi- 
 nateness" of sentence is that the latter is vastly 
 broader in effect, since only the prisoner's good 
 behavior while actually undergoing his sentence in 
 State's prison may be considered by the board which 
 passes upon his commutation, while, in the case of 
 the indeterminate sentence, the parole board may 
 consider all the facts surrounding the commission 
 of the crime, the convict's past life, and whatever 
 other facts they see fit, as well as his good behavior 
 during his period of confinement. 
 
 After conviction the natural optimism of the hu- 
 man race reasserts itself and the defendant begins 
 to believe that the worst is, after all, over, and to 
 rely upon the assurances of his counsel or his politi- 
 cal friends that the judge is going to be easy on him 
 and give him a light sentence. Terrible is the disap- 
 pointment of such a one who finds that he is going 
 to be sentenced to State's prison when he expected 
 the penitentiary or to the penitentiary when he ex- 
 pected to be set free entirely under a suspended 
 sentence. 
 
 The judge usually prefaces the sentence with a 
 few remarks of an admonitory character, comment- 
 ing upon the severity of the crime which the defend- 
 ant has committed, and upon the fact that it is within 
 his power to sentence the latter to a long term of 
 imprisonment. He generally adds that, under all 
 the circumstances and considering the fact that the 
 defendant has never been convicted before and has 
 
THE SENTENCE 275 
 
 hitherto led a reputable life, he will be merciful and 
 give him only so and so many years in State's prison. 
 
 Of course, this occurs only in such cases as deserve 
 leniency. But where the defendant is a hardened 
 criminal, or an ex-convict, or when his crime is one 
 of atrocity, he is apt to learn, in no unmeasured 
 terms, what the judge and the community think of 
 him. The writer has heard a prisoner censured in 
 such language that he blushed for the human race of 
 which the convict could be the offspring. Most 
 defendants receive their sentence with imperturba- 
 bility, for they are able with approximate accuracy 
 to figure out what punishment they will probably 
 receive. The experiences of their acquaintances in 
 the Tombs are of great assistance in this matter, yet 
 more than one convict falls senseless to the floor 
 when sentence is pronounced upon him, and hun- 
 dreds lose their nerve and stagger away bewilderedly 
 at the thought of the interminable years before 
 them. 
 
 Yet a layman happening to be present on a Friday 
 in the Court of General Sessions would be surprised 
 at the apparent lightness of most of the sentences. 
 The judges of our criminal courts are merciful men 
 and rightly believe that a year or two in State's 
 prison has a better effect upon the defendant than a 
 longer term. A short-term man emerges, at least 
 it is so to be hoped, with some aspirations for the 
 future and with health as yet not undermined. To 
 most judges the infliction of sentence upon a fellow 
 human being ever remains a bitter experience. In 
 the old days, however, there were some judges who, 
 not unlike Jeffries, took a certain grim satisfaction 
 in the performance of this duty. There was, many 
 
276 THE PRISONER AT THE BAR 
 
 years ago, one of them who seemed to take a particu- 
 lar delight in so far as possible prolonging the agony 
 of the defendant's uncertainty. When a prisoner 
 had been arraigned for sentence the judge would 
 wait for absolute silence, and would then with the 
 greatest deliberation address a long harangue to 
 the unfortunate man, characterize his crime in the 
 severest manner, excoriate him for having commit- 
 ted it, name the maximum penalty which the law 
 allowed, intimate that he was going to impose it, 
 and then, after a long hiatus, slowly take down his 
 sentence book, ink his pen with annoying delibera- 
 tion, cough two or three times, look around the court- 
 room and begin carefully inscribing each word upon 
 the record before him, "I shall therefore sen- 
 tence you to [cough, another glance around the 
 room] five years in State's prison. " 
 
 Many pathetic and also amusing incidents occur 
 upon these occasions. There is a true story of an 
 incident which, however, did not occur in the Gen- 
 eral Sessions of New York County, where a prisoner 
 who had been convicted was arraigned before the 
 judge for sentence. This judge was an aged man 
 with a great reputation for his bitter wit and sar- 
 casm. The convict, who had been convicted of being 
 a common gambler and who was described by the 
 court officers as a "fly guy," appeared in a loudly 
 checked yellow and black suit with a red necktie and 
 a large paste diamond horseshoe pin. The judge 
 from under his beetling eyebrows looked fiercely 
 down upon him from the bench and remarked with 
 intense scorn: 
 
 "I sentence you to pay a fine of fifty dollars " 
 
 "That's all right, judge," interrupted the "fly 
 
THE SENTENCE 277 
 
 guy" nonchalantly, thrusting his hand into his trou- 
 sers. "Got it in my pants pocket. " 
 
 " And to three years and six months in State's 
 
 prison," continued his Honor, with a slight twinklo 
 in his eye. "Have you got THAT in your pant s 
 pocket?" 
 
 Recorder Smyth is said to have had a habit of en- 
 tering the sentences which he proposed to inflict in a 
 book which he kept for that purpose. He also gener- 
 ally made use of a regular set form of expression 
 when imposing them. A miserable little defendant 
 who was gifted with a greater fund of originality 
 than of common-sense, had conceived the extraordi- 
 nary idea of stealing a ship 's anchor belonging to a 
 company which owned a dock in the North Eiver. 
 For this purpose he procured a dray, drawn by six 
 or eight horses, and a derrick, by means of which he 
 hoisted the anchor in question upon the dray in the 
 dead of night and, as might have been expected, 
 succeeded in getting only about half way down the 
 dock with it before he was apprehended by a watch- 
 man. 
 
 Naturally he had no adequate explanation to offer 
 and promptly pleaded guilty. He was arraigned 
 at the bar in company with several other defendants. 
 Recorder Smyth, his mind still dwelling upon the 
 words with which he had sentenced the latter, thus 
 addressed the trembling miscreant : 
 
 "You have pleaded guilty to the crime of stealing 
 a ship's anchor!" then raising his voice he con- 
 tinued, with perfect solemnity: "The crime of steal- 
 ing a ship's anchor is becoming entirely too preva- 
 lent! I sentence you to three years and a half in 
 State's prison." 
 
278 THE PRISONER AT THE BAR 
 
 In contrast with those cheerful days on Manhat- 
 tan, not much over a century and a half ago, when 
 negroes were burnt to death in chains, and thieves 
 branded in open court and then, tied bareback to the 
 tail of a cart, whipped at every street corner from 
 the City Hall to the Battery and return, the follow- 
 ing incident may serve as a pleasant reminder of our 
 progress in civilization : 
 
 A young Irishman of excellent address, and em- 
 ployed in a responsible position in an express 
 company, appropriated, at the instigation of evil 
 companions, some of the funds intrusted to his 
 keeping. The larceny was detected, he was arrested 
 and admitted his guilt. Meantime, some one had 
 written to his parents in Ireland who lived in a 
 remote parish in the humblest circumstances. The 
 two old people sold their little cottage, as well as 
 their pig and cow, and took steerage passage from 
 Queenstown to New York. They arrived upon the,' 
 day set for their son's sentence, entering the court- 
 room as he was arraigned at the bar. A tearful 
 recognition followed, and the prisoner, overwhelmed 
 at this touching proof of his parents' love, begged 
 the judge to listen to their supplication for mercy. 
 Their simple story deeply affected the court, who 
 discharged the defendant in their keeping, under his 
 solemn promise to return with them to Ireland, there 
 to honor and labor for them so long as they should 
 live. 
 
CHAPTEE XV 
 WOMEN IN THE COURTS 
 
 AS WITNESSES 
 
 WOMEN appear in the criminal courts constantly 
 as witnesses, although less frequently as complain- 
 ants and defendants. As complainants are always 
 witnesses, and as defendants may, and in point of 
 fact generally do become so, whatever generaliza- 
 tions 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 infe- 
 rior 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 at- 
 tributed to Moses by Josephus : 'Let the testimony 
 of women not be received on account of the levity 
 
 279 
 
280 THE PRISONER AT THE BAR 
 
 and audacity of their sex'; a law which looks apoc- 
 ryphal, 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 and 
 canon laws of mediaeval Europe seem to have car- 
 ried the exclusion much further. Mascardus says: 
 'Feminis plerumque omnino non creditur, et id dum- 
 taxat, quod sunt femince, qua ut plurimum solent 
 esse fraudulentce, fallaces, et dolosce' [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 *In- 
 stitutiones Juris Canonici, ' lays it down in the most 
 distinct terms, that women cannot in general be 
 witnesses, citing the language of Virgil: 'Vanum 
 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 Can- 
 ton 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 exclu- 
 sion from the witness-box in the great majority of 
 instances." 
 
 Cockburn in his Memoirs tells of an incident dur- 
 
WOMEN IN THE COUETS 281 
 
 ing the trial of Glengarry, in Scotland, for murder 
 in a duel, which is, perhaps, explicable by this ex- 
 traordinary attitude : A lady of great beauty was 
 called as a witness and came into court heavily 
 veiled. Before administering the oath, Lord Esk- 
 grove, the judge (to whom this function belongs in 
 Scotland), gave her this exposition of her duty: 
 
 ' i 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 mod- 
 esty, and look me in the face." 
 
 Whatever difference does exist in character be- 
 tween 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 fre- 
 quently any more accurate than the latter. But 
 our courts of law (at least those in English-speak- 
 ing countries) are devised and organized, per- 
 haps 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 
 
282 THE PRISONER AT THE BAR 
 
 hand reaching for the purse, and then perceived him 
 take to his heels. She has never been taught to rea- 
 son 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 wit- 
 ness '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 lead- 
 ing to the adjacent alley and, retiring to the house, 
 went to bed. His purpose was to create the impres- 
 
WOMEN IN THE COURTS 283 
 
 sion 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. Noth- 
 ing could shake her testimony, and she thus uncon- 
 sciously negatived the entire value of the defend- 
 ant'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 fre- 
 quently jump may usually be shown by careful in- 
 terrogation to be founded upon observation of act- 
 ual 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 ren- 
 der 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 ingenu- 
 ous 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 
 
284 THE PRISONER AT THE BAR 
 
 as her own. This was the case even when the dia- 
 monds, 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 posi- 
 tively 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 jus- 
 tice. 
 
 Where their inferences are questioned, women, as 
 a rule, are much more ready to ' ' swear their testi- 
 mony through" than men. They are so accustomed 
 to act upon inference that, finding themselves un- 
 able 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 i l 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." 
 
 ' 1 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 
 
WOMEN IN THE COURTS 285 
 
 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 some- 
 what less regard for the spirit of their oaths than 
 men, and that they are more ready, if it be neces- 
 sary, to commit perjury. This may arise from the 
 fact that women are fully aware that their sex pro- 
 tects them from the same severity of cross-examina- 
 tion to which men would be subjected under similar 
 circumstances. It is to-day 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, irre- 
 spective of sex, women, with the possible excep- 
 tion of children, make the most remarkable wit- 
 nesses 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 categori- 
 cal answer to a question, if in truth she can be in- 
 duced 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 bet- 
 ter than to trust him," 
 
286 THE PEISONEE AT THE BAE 
 
 Forced to make an admission which would seem 
 to hurt her position, the explanation, instead of be- 
 ing 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 ' l silent cross-exami- 
 nation" 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 change 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 (ar- 
 rayed 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 hus- 
 band, and try to get enough sleep to be up by five 
 in the morning. I guess if some lawyers worked as 
 
WOMEN IN THE COUBTS 287 
 
 hard as I do they would have sense enough not to 
 ask impertinent questions. " 
 
 An amusing incident is recorded of how a femi- 
 nine 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 dis- 
 crepancies. 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 alto- 
 gether 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 ab- 
 surdities. Not long ago, shortly after the publica- 
 tion 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 con- 
 scious 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!" 
 
288 THE PRISONER AT THE BAR 
 
 "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 counte- 
 nance 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 testi- 
 mony 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 considera- 
 tion. 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 im- 
 
WOMEN IN THE COURTS 289 
 
 perturbably 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 testi- 
 fied 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, rehears- 
 ing his brutal treatment of the deceased on previous 
 occasions, and getting in the most damaging testi- 
 mony 
 
 "Do you say, Mrs. ," the lawyer would in- 
 quire 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 sufferinM '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 OiVe had 
 me say to tell the whole truth. I says to me daughter 
 Ellen, says I: 'Th' horrid baste is afther murther- 
 
290 THE PRISONER AT THE BAR 
 
 in' 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 appear- 
 ance and manners, was on trial, charged with con- 
 verting to his own use money which had been 
 intrusted to him for investment in realty. The com- 
 plainant 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 prepara- 
 tion 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 
 
WOMEN IN THE COUETS 291 
 
 Sessions. Mrs. gave her testimony with great 
 
 positiveness. Then Mr. Lewis Stuyvesant Chanler 
 arose to cross-examine her. 
 
 1 1 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 in- 
 terjected Mr. Chanler. "How much did you give 
 him!" 
 
 "I told Mm 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 1 ' ' 
 
 "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 ; 
 
292 THE PRISONER AT THE BAR 
 
 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 conclu- 
 sion 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 con- 
 clusions set forth above are merely the result of an 
 effort on the part of the writer to comment some- 
 what upon those small differences which, under close 
 scrutiny, may fairly be said to exist. These differ- 
 ences 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 un- 
 answerable 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 ade- 
 quate 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 sub- 
 stantial 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 sub- 
 
WOMEN IN THE COURTS 293 
 
 mit 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 intel- 
 lects 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 testi- 
 mony 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 neces- 
 sary 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 judg- 
 ment. 
 
 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 prosecu- 
 tions 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 any- 
 way, " and ought to be "sent up." 
 
294 THE PEISONEE AT THE BAB 
 
 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 gen- 
 erally 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 de- 
 fendant, 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 complain- 
 ant, feeling that she has been injured, may be in- 
 clined to color her testimony, perhaps unconsciously, 
 until the wrong becomes a crime. 
 
 An ordinary example of this variety of prosecu- 
 tion is where the witness is a young woman from the 
 East Side, usually a Polish or Eussian Jewess, who 
 charges the defendant, a youth of about her own age, 
 with stealing her money by means of false pre- 
 tences. They have been engaged to be married, and 
 she has turned over her small savings to him to pur- 
 chase 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 engage- 
 ment, 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 se- 
 cures a warrant for the defendant on the theory that 
 
WOMEN IN THE COUETS 295 
 
 he defrauded her by " trick and device " or " false 
 representations." Usually the only "representa- 
 tion" 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 deliber- 
 ately 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 girPs 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 argu- 
 ment that ought to acquit in fact may convict the 
 defendant. If the rival also is pretty, hopeless con- 
 fusion 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 Lo- 
 thario is apt to pay a severe penalty for his faith- 
 lessness. 
 
 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 
 
296 THE PRISONER AT THE BAR 
 
 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, Gwen- 
 dolyn, above all things, be demure, Gwendolyn ! Be 
 demure!" 
 
 Gwendolyn was the demurest of the demure, let- 
 ting 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 sup- 
 posed 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 
 
WOMEN IN THE COUETS 297 
 
 acquitting them of the crimes charged against them, 
 but of finding them guilty in lower degrees. 
 
 Of course flagrant miscarriages of justice fre- 
 quently 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 deliber- 
 ately taken the life of her child by giving it carbolic 
 acid. The story was a shocking one, yet the jury 
 apparently never considered at all the possibility of 
 convicting her, but on retiring to the jury-room 
 spent their time in discussing how much money they 
 should present her on her acquittal. 
 
 No better actor ever played a part upon the court- 
 room stage than old "Bill" Howe. His every move 
 and gesture was considered with reference to its 
 effect upon the jury, and the climax of his summing- 
 up was always accompanied by some dramatic exhi- 
 bition 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 hap- 
 pened to be defending. 
 
 Mr. Wellman tells the story of how he was 
 once prosecuting a woman for the murder of her 
 
298 THE PRISONER AT THE BAR 
 
 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 memo- 
 ries of her father. Howe was rather an exquisite so 
 far as his personal habits were concerned, and al- 
 lowed 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 sud- 
 denly 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. 
 
 i i 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, fol- 
 lowed 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 
 
WOMEN IN THE COURTS 299 
 
 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 re- 
 sponse 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 suf- 
 fered 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 unre- 
 versed 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 sixteen women have been actually tried 
 before juries for murder with the following results : 
 
 Convicted of murder in first degree 
 
 " " murder in second degree 
 
 " " manslaughter in first degree 3 
 
 " " manslaughter in second degree 5 
 
 Acquitted J 
 
 Disagreed (case of Nan Patterson) ]_ 
 
 Total 16 
 
 Counting the Patterson case as an acquittal, the 
 percentage of convictions to acquittals is as follows : 
 
 
 Convictions 
 
 Acquittals 
 
 Convictions 
 Per Cent 
 
 Acquittals 
 Per Cent 
 
 1887-1906 
 
 12 
 
 4 
 
 75 
 
 26 
 
 
 
 
 
 
 It is distinctly interesting to compare this with 
 the table showing the results of all the homicide trials 
 
300 
 
 THE PRISONER AT THE BAR 
 
 for the past six years irrespective of the sex of the 
 defendants : 
 
 
 Convictions 
 
 Acquittals 
 
 Convictions 
 Per Cent 
 
 Acquittals 
 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 
 
 
 
 
 
 
 Total. 
 
 98 
 
 75 
 
 Aver. 57 
 
 Aver. 43 
 
 The reader will observe that the percentage of 
 convictions to acquittals of women defendants aver- 
 ages eighteen 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 manslaugh- 
 ter 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 convic- 
 tions of women is that fewer women who commit 
 crime are prosecuted than men, and that they are 
 rarely indicted unless they are actually guilty of the 
 degree of crime charged against them; while prac- 
 tically 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 in- 
 significance before the prosecution of a woman 
 for murder. Some of this interest is fictitious 
 and stimulated merely by the yellow press, but a 
 
WOMEN IN THE COUETS 301 
 
 great deal of it is genuine. The writer remem- 
 bers attending a dinner of gray-headed judges 
 and counsellors during the trial of Ann 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 in- 
 come 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 an- 
 swered, yes. . . . Thou art endyted that thou 
 . . . . feloney moderiste her with a knyff fyve 
 tymes in the throte stekyng, throwe the wheche stek- 
 yng 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 obscu- 
 rity, 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 Win- 
 chelsea, it is probable that she escaped.* 
 
 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 environ- 
 
 *Cf. Thayer, as cited, supra. 
 
302 THE PBISONER AT THE BAB 
 
 ment 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 XVI 
 
 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 qual- 
 ities 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 con- 
 trary, observation would seem to indicate that in 
 many instances the wiser, or at least the more suc- 
 cessful, 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 call- 
 ing 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 
 
 303 
 
304 THE PRISONER AT THE BAR 
 
 tribunals than in the civil, but they are more ingen- 
 ious 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 ar- 
 gumentative 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 concern- 
 ing whose guilt or innocence they were themselves 
 somewhat in doubt. i ' Charity believe th 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 popu- 
 lar prejudices and emotions, makes illogical deduc- 
 tions 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 
 
TEICKS OF THE TEADE 305 
 
 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 suc- 
 ceeded in keeping all Germans off the jury until the 
 eleventh seat was to be filled, when he found his per- 
 emptory 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 pro- 
 ceeded 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 intro- 
 ductory 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 fore- 
 head.) "Had the woman, who so unhappily met her 
 death at the hands of my unfortunate client, been 
 like those women of Schleswig-Holstein noble, 
 
306 THE PEISONER AT THE BAR 
 
 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 ex- 
 panded 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 mutter- 
 ing 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 strag- 
 gled in, the old native of Schleswig-Holstein bring- 
 ing 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?" 
 
TEICKS OF THE TEADE 307 
 
 * ' Guilty of manslaughter, ' ' returned the foreman 
 feebly. 
 
 The district attorney was aghast at such a mis- 
 carriage 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 Hawfiurg, 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 atten- 
 tion to the disposition, experience and capacity of 
 the particular district attorney who happens to be 
 trying the case against the defendant. An illustra- 
 tion of one of these occurred during the prosecution 
 of a bartender for selling "spirituous liquors " with- 
 out 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. 
 
308 THE PKISONER AT THE BAB 
 
 Everything, except the evidence, favored the defend- 
 ant, 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 some- 
 thing. 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," re- 
 marked the lawyer. 1 ' 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/ 9 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 attor- 
 ney with the harsh demand: "What do you say to 
 that?" 
 
TRICKS OF THE TEADE 309 
 
 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 defend- 
 ant 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 through 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 Bule," 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 
 
310 THE PRISONER AT THE BAR 
 
 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 crim- 
 inal prosecution and to regret that they ever took 
 the steps which have brought the wrong-doer where 
 he is. The district attorney has 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 com- 
 plainant to "temper justice with mercy" and with- 
 draw "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 ad- 
 journed "until matters can be adjusted" to wit, 
 restitution made if money has been stolen, or doc- 
 tors ' bills paid if a head has been cracked, with per- 
 haps another chance of "pulling off" the complain- 
 ant 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, 
 
TRICKS OP THE TEADE 311 
 
 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 examina- 
 tion," or, in other words, put in no defence, prefer- 
 ring the certainty of having to face a jury trial to 
 affording the prosecution an opportunity to discover 
 exactly what defence will be put in and to secure evi- 
 dence 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 attor- 
 ney for a defendant on trial for crime that "the de- 
 fence 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 
 
312 THE PEISONEE AT THE BAR 
 
 requires but slight assiduity on the part of the dis- 
 trict attorney to secure, in the interval between the 
 hearing and the jury trial, ample evidence to re- 
 but it. 
 
 As illustrating merely the fertility and resource- 
 fulness of some defendants (or perhaps their coun- 
 sel), 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 prescrip- 
 tion 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 natu- 
 ral causes, the following being suggested : 
 
 1. Acute gastritis. 
 
 2. Acute nephritis. 
 
 3. Cerebro-spinal meningitis. 
 
 4. Fulminating meningitis. 
 
TKICKS OF THE TRADE 313 
 
 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. Dur- 
 ing the trial the box containing the balance of the 
 pills, which the defence contended were calomel, un- 
 expectedly 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 chem- 
 ical analysis has been conducted in open court. 
 The chemist first tested a standard trade mor- 
 phine pill with sulphuric acid, so that the jury 
 could personally observe the various color reac- 
 tions for themselves. He then took one of the con- 
 tested 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 prose- 
 cutor, 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 pro- 
 
314 THE PRISONER AT THE BAR 
 
 ceedings 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 unre- 
 mittingly to work upon the feelings of the complain- 
 ant. 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. Indict- 
 ments, however, in New York County, whatever may 
 be the case elsewhere, are no longer t ' pigeon-holed, ' ' 
 and they cannot be adequately i ' 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 every- 
 thing 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 obliga- 
 tion devolving upon him to attend the funeral. An- 
 other, 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 recov- 
 ers. Of course, there are many legitimate reasons 
 
TEICKS OF THE TEADE 315 
 
 for adjourning cases which the prosecution is pow- 
 erless to combat. 
 
 The most effective method invoked to secure delay, 
 and one which it is practically useless for the dis- 
 trict 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 appli- 
 cations are often legitimate and proper and should 
 be granted in simple justice to the defendant. Al- 
 though this right to take the testimony of absent 
 witnesses is confined in New York State to the de- 
 fendant 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 ap- 
 parently 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 ma- 
 terial, 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 pecu- 
 liarly opportune disappearance of this person from 
 the jurisdiction, strenuously opposed the application 
 and hinted at collusion between Ellis and the wit- 
 ness. The application, however, was granted, and 
 a delay of over a month ensued. During that time 
 
316 THE PRISONER AT THE BAR 
 
 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 adjourn- 
 ment after adjournment no one knew why. At 
 last the case was moved for trial and the prosecu- 
 tion put in its evidence, clearly showing the guilt of 
 the prisoner. At the conclusion of the People's tes- 
 timony, 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 witness- 
 chair. 
 
 "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 defend- 
 ant 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 crim- 
 inal procedure, and 
 
 1. Demur to the indictment. 
 
 2. Move for an inspection of the minutes of the 
 proceedings before the grand jury. 
 
TEICKS OF THE TRADE 317 
 
 3. Move to dismiss the indictment for lack of suf- 
 ficient 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 adjourn- 
 ments 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 mis- 
 Tdeeds is too well known to require comment. All 
 that is necessary is for a sufficient number of "ex- 
 pert" alienists to declare it to be their opinion that 
 the defendant is mentally incapable of understand- 
 ing 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, 
 
318 THE PEISONEE AT THE BAR 
 
 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 TEIAL 
 
 What can be done when at last the prisoner 
 who has fought persistently for adjournment has 
 been forced to face the witnesses against him and 
 submit the evidence to a jury of peers? Let us as- 
 sume 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 in- 
 vestigate 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 diffi- 
 cult matter to determine. " Ringers " particularly 
 in the magistrates' courts are by no means un- 
 known. Sometimes they appear even in the higher 
 courts. If the defendant be an ex-convict or a 
 well-known crook, his photograph and measure- 
 ments 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 
 
TEICKS OF THE TRADE 319 
 
 with a second assassination. He was pointed out to 
 the police by various Chinamen, arrested and 
 brought into the Criminal Courts building for iden- 
 tification, but for a long time it was a matter of 
 uncertainty whether friends of his (masquerading 
 as enemies) had not surrendered a substitute. Luck- 
 ily the assistant district attorney who had prose- 
 cuted 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. Unfortu- 
 nately for this very satisfactory arrangement, the 
 judge, now long since deceased, was afflicted with 
 a serious mental trouble which occasionally mani- 
 fested 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 
 
320 THE PRISONER AT THE BAR 
 
 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 1 Well, I sen- 
 tence you to the penitentiary for one year, you miser- 
 able 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 noth- 
 ing 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 Mohnny 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' 
 
TEICKS OF THE TEADE 321 
 
 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 estab- 
 lish the fact that she was still, in spite of her mar- 
 riage 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 reputa- 
 ble lawyer, on the other hand, Mr. Sweetser, was 
 prepared to swear that he had served them person- 
 ally upon Dodge himself. The matter was sent by 
 the court to a referee. At the hour set for the hear- 
 ing 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 Furs- 
 wan, attorney for Mrs. Morse. Mr. Sweetser was 
 late. Presently he appeared, entered the office hur- 
 riedly, bowed to the referee, apologized for being 
 tardy, greeted Messrs. Steinhardt and Hummel, and 
 then, turning to their companion, exclaimed: "How 
 
322 THE PRISONER AT THE BAR 
 
 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 " dum- 
 mies " is frequently made by both sides in criminal 
 cases, and under certain circumstances is generally 
 regarded as professional. Of course, in such in- 
 stances 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 re- 
 solves itself, therefore, into how to get the client off 
 when he is actually on trial. First, how can the sym- 
 pathies 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 im- 
 press 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 
 
TEICKS OF THE TRADE 323 
 
 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 com- 
 paratively 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 towards 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 court- 
 room 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 inevita- 
 ble 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 
 
324 THE PRISONER AT THE BAR 
 
 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 assassina- 
 tion of President McKinley, the defence was inter- 
 posed that a quarrel had arisen between the two men 
 owing to the fact that the deceased had loudly pro- 
 claimed 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 en- 
 gaged 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 se- 
 lection 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 
 
TKICKS OF THE TEADE 325 
 
 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 Koman 
 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 chal- 
 lenges and also the entire panel of jurors in filling 
 the box. At this stage of the case the foreman be- 
 came 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 ac- 
 
326 THE PRISONER AT THE BAR 
 
 quitted anyway. Of course, this appeals to the jury- 
 man '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. -I" 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 be- 
 lieve from the lawyer's remarks that he is in fact 
 a mere youthful offender of hitherto good reputa- 
 tion 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 them- 
 selves, 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 
 
TKICKS OF THE TBADE 327 
 
 jury to disregard what he has said as "not being in 
 the evidence, " the damage has been done, the state- 
 ment still lingering in the jury's mind without any 
 opportunity on the part of the prosecutor to dis- 
 prove 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 respecta- 
 bility 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 him- 
 self hoarse, the judge may pound his gavel in 
 righteous indignation, the lawyer may apologize be- 
 cause in the zeal with which he feels inspired for his 
 client's cause he perhaps (which only makes mat- 
 ters 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 prom- 
 ises he must by this time have several hundred 
 clerks, gardeners, coachmen, choremen and valets. 
 
 In like manner attorneys of this feather will de- 
 liberately 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 
 
328 THE PRISONER AT THE BAR 
 
 (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 dis- 
 honesty 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 Caro- 
 lina. The defendant 's counsel, to use his own words, 
 "worked the war for all it was worth," and the de- 
 fendant lived, bled and died for his country over 
 and over again. In summing up the case, the attor- 
 ney addressed himself particularly to the veteran 
 on the back row, and, after referring to numerous 
 imaginary engagements, exclaimed : ' ' Why, gentle- 
 men, 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 per- 
 sons 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 may be old pals and often have 
 served time together. They agree to demand sepa- 
 
TRICKS OF THE TEADE 329 
 
 rate 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 bar- 
 gain 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 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: 
 
 Att a Meeting of the Justices of the Peace for the said City & County 
 att the City Hall of the said City on Thursday the 10th day of June 
 Anno Dom 1697. 
 
 PRESENT. 
 
 William Morrott } Esquires 
 
 James Graham f quorum 
 
 Jacobus Cortlandt J 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 punish- 
 ment 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 att the Cage be stripped Naked from the 
 Middle upwards and then and there shall be tyed to the tayle of a bart 
 and being soe stripped and tyed shall be Drove Round the Citv and 
 Receive upon his naked body att the Corner of each Street nine lashes 
 until he return to the place from whence he sett out and that he after- 
 wards Stand Committed to the Sheriffs custody till he pay nis fees. 
 
330 THE PRISONER AT THE BAR 
 
 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 de- 
 fendant. 
 
 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 sen- 
 tenced 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 homi- 
 cide. 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 applica- 
 tion 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 con- 
 viction, 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 pro- 
 cure 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 
 
TEICKS OF THE TRADE 331 
 
 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 im- 
 promptu copies of her forgeries from memory upon 
 a sheet of pad paper. This the detective secured 
 and then arrested her. She was indicted for forg- 
 ing the name Alice Kauser to a check upon the Lin- 
 coln 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 court- 
 room 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 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 attor- 
 ney therefore took the bull by the horns and chal- 
 lenged Parker to make from memory a copy of the 
 signature, and, much as he had suspected, the wit- 
 ness produced a very good one. An acquittal seemed 
 
332 THE PRISONER AT THE BAR 
 
 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 perform- 
 ance 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 demon- 
 strate 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 ob- 
 jection 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 des- 
 perate 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 testi- 
 mony!" 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 
 
TEICKS OF THE TRADE 333 
 
 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 XVH 
 WHAT FOSTERS CRIME 
 
 To lack of regard for law is mainly due the ex- 
 istence 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, observa- 
 tion 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 stim- 
 ulated 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 con- 
 victed 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 sup- 
 pose that the mere fact that the defendant was a 
 
 334 
 
WHAT FOSTERS CEIME 335 
 
 female instantly paralyzed the minds of the jury 
 and reduced them to a state of imbecility. The in- 
 evitable result of this must be to encourage lawless- 
 ness among the lower orders of women and to lead 
 them to look upon arrest as a mere formality with- 
 out ultimate significance. The writer recalls trying 
 for murder a negress who had shot her lover not 
 long after the discharge of a notorious female de- 
 fendant 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 fail- 
 ares 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 tech- 
 nicalities 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 pre- 
 vent 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 un- 
 certainty 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 
 
336 THE PEISONEE AT THE BAR 
 
 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 possi- 
 ble to punish an innocent man. We are now strug- 
 gling 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 exten- 
 sive to be discussed here even superficially, but his- 
 torically 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 whole- 
 sale adoption of the technicalities of English law 
 invented when only such technicalities could stand 
 between the minor offender and the barbarous pun- 
 ishments of a bygone age. We forget that the com- 
 munity 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 pro- 
 duce 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 
 
WHAT FOSTERS CRIME 337 
 
 and wisely corrected, without diminution in the na- 
 tional 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 al- 
 lowed 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 Peo- 
 ple had to rest satisfied. W T e 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 demon- 
 strated how perfectly we safeguarded the rights of 
 the individual. 
 
 The result is that we have unnecessarily fettered 
 
338 THE PRISONER AT THE BAR 
 
 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 indispo- 
 sition 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 bene- 
 fit 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 stigma- 
 tized 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 liber- 
 ated 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 elocu- 
 
WHAT FOSTERS CEIME 339 
 
 tion. At the conclusion of the charge the defend- 
 ant'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 irrel- 
 evant, 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 tech- 
 nical grounds. Whether this belief be well founded 
 or ill, its wide acceptance as fact is fertile in bring- 
 ing 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." 
 
 It is probably true that in some of the States such 
 a tendency exists and may result in making the ad- 
 ministration 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 disre- 
 gard 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 ag- 
 grieved at the action of the higher courts, and on 
 
340 THE PEISONEE AT THE BAR 
 
 the contrary believes that their action is generally 
 based on broad principles of public policy and com- 
 mon-sense. 
 
 During the year 1905 the district attorney of New 
 York County defended forty-seven appeals from 
 convictions in criminal cases in the Appellate Divi- 
 sion. 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 his 
 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 i_s still pending and the defendant await- 
 ing his trial. Certainly there is little in the actual 
 figures to give color to the impression that the crimi- 
 nal profits by mere technicalities on appeal, at 
 least in New York State. 
 
 In nine cases out of ten the reversal of a convic- 
 tion 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 proce- 
 dure. 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 law- 
 less jury. Few can appreciate as does a prosecutor 
 
WHAT FOSTERS CRIME 341 
 
 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, re- 
 garded 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 aft y er practically 
 no deliberation. Both had offered to plead guilty 
 
342 THE PRISONER AT THE BAR 
 
 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. Crimi- 
 nals 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 safeguard- 
 ing 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 
 
WHAT FOSTERS CEIME 343 
 
 conduct of the case instead of being commended as 
 meritorious had resulted in a solemn public declara- 
 tion 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 offi- 
 cers, the witnesses, the defendants out on bail, the 
 complainants, the spectators ? That the whole busi- 
 ness 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 law-breakers them- 
 selves. 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 miscon- 
 ception of it. Assuming that the jury deliberately 
 declined to obey the law, the whole twelve elected 
 
344 THE PRISONER AT THE BAR 
 
 to become, and thereby did become, law-breakers. 
 They disqualified themselves forever as talesmen. 
 No prosecutor in his senses would move a case be- 
 fore 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 miscon- 
 ceived 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 or- 
 dinarily called conscience, secondly there is the re- 
 straint which arises out of the apprehension that 
 the commission of a tort will be followed by a judg- 
 ment 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 repre- 
 hensible, 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 com- 
 mon 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 in- 
 efficacious to prevent anarchy. It is as imperative 
 
WHAT FOSTERS CRIME 345 
 
 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 simi- 
 lar homicides. 
 
 Crimes are either deliberate or the result of acci- 
 dent 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 dis- 
 cuss or estimate the efficacy of religion or ethics as 
 restraining influences. A certain limited propor- 
 tion 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 
 
346 THE PKISONER AT THE BAK 
 
 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 commu- 
 nity 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 commuity, adminis- 
 tered 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 constitu- 
 tion turn in their graves if the peremptory chal- 
 lenges 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 
 
WHAT FOSTEES CRIME 347 
 
 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 cer- 
 tain 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 technicali- 
 ties which can now be interposed on behalf of the 
 accused to prevent trials or the infliction of sentence 
 after conviction. 
 
 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, however incompetent, im- 
 proper, 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 para- 
 graphs with what "unwritten" law may best suit 
 the owner of his conscience and his pen. "Con- 
 tempt of court" in its original significance is some- 
 
348 THE PRISONER AT THE BAR 
 
 thing known to-day only to the reader of text 
 
 books.* 
 
 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 in- 
 creased 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. It would serve some of this class of re- 
 formers 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. 
 
 Merchants, who in return for a larger possible 
 restitution habitually compound felonies by tacitly 
 agreeing not to prosecute those who have defrauded 
 
 * By the New York Penal Code $ 143, an editor is only guilty of con- 
 tempt of court (a misdemeanor) if he publishes " a false or grossly inaccu- 
 rate report " of its proceedings. The most insidious, dangerous, offen- 
 sive 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. 
 
WHAT FOSTERS CRIME 349 
 
 them, have no right to complain because juries ac- 
 quit 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 ex- 
 press 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. 
 
DAY AND TO . 
 OVERDUE. 
 
 
 
 NOV 15 
 FEB 18 1934 
 
 APR 4 1934 
 NOV 22 1934 
 
 8 1S35 
 
 'D 
 
 MAYl 1960 
 
 ceweo 
 
 ClcULATlONDEPT. 
 
 LD 2l- 
 
YC 
 
 
 +**.'. ' */*'l^ 
 
 UNIVERSITY OF CALIFORNIA LIBRARY