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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