'twenty years in State's Prison" 
 
 THROUGH A JUDICIAL BLUNDER 
 
 . , . THE CASE OF . . . 
 ALFRED SCHWITOFSKY 
 
 TICK 
 ') A PLEA FOR JUSTICE 
 
 'By 
 REV. JACOB GOLDSTEIN 
 
 PRICE 75c.
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 GIFT OF 
 
 Estate of 
 Klara Sandrich
 
 'twenty Vears in State's Prison" 
 
 THROUGH A JUDICIAL BLUNDER 
 
 . . . THE CASE OF ... 
 ALFRED SCHWITOFSKY 
 
 THE STORY OF AN INJUSTICE 
 AND A PLEA FOR JUSTICE 
 
 REV. JACOB GOLDSTEIN
 
 Copyright secured and duly entered according to act of Congress 
 
 by 
 
 JACOB GOLDSTEIN. 
 November, 1913. 
 
 All rights reserved. 
 
 Published by REV. JACOB GOLDSTEIN
 
 HV 
 
 me demanderez peut-etre pourquoi je m'in- 
 teresse si fort a ce Galas qu'on a roue c'est que je suis 
 
 homme." j 
 
 ( Voltaire's Correspondence. ) 
 
 wr\ IDW /D^in wn in HOKHB; " 
 
 (76n Masud quoted 6y Arnold B. Ehrlich.) 
 
 "He who hath the Truth on his side is the Majority 
 even though he stand alone." 
 
 'All that one owes to the Dead is the Truth." 
 
 (Voltaire.) 
 
 890286
 
 TABLE OF CONTNETS. 
 
 Foreword 7 
 
 The Story of a Judicial Blunder: 
 
 The Crime 13 
 
 Dale in Another Case 17 
 
 What Did Actually Occur? 18 
 
 The Arrest 21 
 
 Awaiting Trial 24 
 
 The Indictment 26 
 
 The Trial 27 
 
 The Sentence 30 
 
 The Appeal 31 
 
 The Appeal Denied 34 
 
 The Identification 36 
 
 Appellate Court 43 
 
 The Newly-Discovered Evidence 44 
 
 The Scars on the Hand Their Significance 46 
 
 The Jury's Finding 49 
 
 Dale in a Third Case 52 
 
 The District Attorney Interviewed 55 
 
 What Remains To Be Done 57 
 
 The Case of Brand 58 
 
 Weaknesses of Our System : 
 
 1. "Assigned Counsel" 60 
 
 2. "Second Offenses" 64 
 
 3. Appeal Time Limit 69 
 
 The Chaplain's Story 72 
 
 The Journalist's Story : 
 
 An Open Letter to the Judge 89 
 
 The Prisoner 92 
 
 Police Persecution 
 
 Probable Innocence 95
 
 vi TABLE OF CONTENTS. 
 
 PAGE 
 
 The Judge Interviewed 96 
 
 A Cry from "The Tombs" 97 
 
 A "Frame-Up"? 100 
 
 Deputy Police Commissioner Dougherty "Helps" . . 101 
 
 Kuhne in Charge 105 
 
 "The Journalist" Takes Charge 107 
 
 Gelsky's Story 109 
 
 A Veteran's Opinion 112 
 
 The Arrest in 1908 113 
 
 Letters Mysteriously Mislaid 118 
 
 The 1908 Identification 121 
 
 The Curran Investigating Committee. 124 
 
 The People's Story (The Evidence at the Trial) : 
 
 Nettie Palma 126 
 
 Cross-Examination 127 
 
 Re-Cross Examination 128 
 
 Theodore B. Dale 128 
 
 Cross-Examination 131 
 
 Anna Hart 132 
 
 Cross-Examination 132 
 
 Nora Murphy 133 
 
 William W. Duggan 134 
 
 Edwin Denahm 135 
 
 William Brown 135 
 
 Cross-Examination 136 
 
 Recalled 137 
 
 Alfred Schwitofsky 137 
 
 Cross-Examination , . 140 
 
 Re-Direct Examination 142 
 
 Re-Cross Examination 144 
 
 The Prisoner's Story 147 
 
 The Story of Various Witnesses : 
 
 Alfred Schwitofsk/s Affidavit 161 
 
 Leo Gelsky's Affidavit 163 
 
 Frank Harold's Affidavit 165 
 
 Edward J. Cousin's Affidavit 167 
 
 Dr. Ransom's Affidavits 168-9 
 
 The Judge's Story 170
 
 JForeworb. 
 
 When the recognised machinery for the administration 
 of justice suffers a temporary break-down and fails to 
 perform its functions properly there remains but one 
 resource to the unfortunate victim of that failure to 
 appeal to the High Court of Public Opinion. 
 
 By the fact of your American citizenship and by the 
 chance that this book is in your hands you, who read this, 
 are constituted one of the Judges of that Court of Final 
 Appeal. 
 
 An unhappy wretch, weak, friendless, poverty stricken, 
 has suffered a grievous injustice and, from his prison cell 
 cries to you for aid. Shall lie cry in vain? 
 
 // you are of the same faith as the writer you are re- 
 minded of God's direction: "Thou shalt pursue only 
 justice * * * thou shalt judge the people ivith right- 
 eous judgment. Thou shalt not wrest justice." 
 
 If you are not of his faith you are reminded of the 
 beautiful parable in your own Testament. When, here- 
 after, there shall be the separation of the sheep from 
 the goats, if you can plead: * * "and when we 
 saw thee sick, or in prison, and came unto theeP" then 
 shall the King reply: "Inasmuch as ye did it unto one 
 of these, my brethren * * * ye did it unto Me." 
 
 Shall this cry, from the "least of these," be unheeded? 
 
 Read this book. Read it to the end, carefully and con- 
 scientiously. Here is no romance but a sad, true, hideous 
 story of human frailty and human injustice. Every effort 
 has been made to present a clear, succinct statement of 
 facts, and to present it as soberly and dispassionately as 
 may be. If I have not been always successful you will 
 remember that a strong sense of abominable wrong done
 
 8 FOREWORD 
 
 has struggled for expression and may not always have 
 been wholly repressed. 
 
 There will be found repetition of facts. This repeti- 
 tion is deliberate and has its special purpose. The state- 
 ment is made up by contributions from different people 
 each with his own view-point' and his individual expres- 
 sion. Each repetition really shows a different facet of 
 the central fact. 
 
 You are entreated to read to the very last word. 
 
 WE CHARGE: 
 
 That a well-to-do sexual pervert, of infamous char- 
 acter, and following his loathsome practices for years, 
 had, for years, remained undisturbed by the police though 
 he was notorious for evil-doing; 
 
 That when, at length, a sordid squabble with a young 
 blackguard who ministered to his vices threatened him 
 with exposure, under conditions which made it impossible 
 for the police to remain blind any longer, the victim and 
 companion of his vicious practices was seized and jailed 
 on a charge technically correct from the legal point of 
 view but repugnant to common-sense and the common 
 instinct for even-handed justice which finally led to his 
 being sentenced to a reformatory, not for the offence 
 against public morals, but for demanding payment of 
 what, from his point of view, was due to him; his partner 
 in wrong-doing, the complainant, going scot-free; 
 
 That a companion of this youth, concerned in an at- 
 tempt- to bring the bilker to terms, after having created 
 a great commotion and caused a public scandal by his 
 attempt, escaped from the city ; and 
 
 That the police arrested an unfortunate wretch, EN- 
 TIRELY INNOCENT of all offence in this matter, and 
 fastened the crime on him; 
 
 That the accusations against their victim slowly grew 
 in gravity until at length he stood threatened with a term
 
 FOREWORD 9 
 
 of imprisonment which would in all probability be short- 
 ened only by his death; 
 
 That this unhappy victim claims that the charge was 
 deliberately fastened on him because he had incurred 
 the enmity of certain police officials who knew that he was 
 cognisant of certain irregularities on their part; for he 
 had threatened to complain to their superiors of the 
 irregularities; * 
 
 That deliberate perjury was committed by the com- 
 plaining witness which perjury, aided by the mistaken 
 identification by two bewildered and dismayed young wo- 
 men, and the total absence of any evidence in support of 
 the statement of the accused, led to the judicial error of 
 his conviction of crimes he did not commit; 
 
 That important facts, which would have positively con- 
 vinced the jury of his innocence, must have been wilfully 
 and knowingly suppressed by certain police-officers who 
 could not have failed to be cognisant of these facts favor- 
 able to the accused; 
 
 That there can be shotvn reasons for viewing the state- 
 ment of the victim in this affair, that certain police officers 
 held a grudge against him, in a more receptive spirit than 
 would be wise in other cases; 
 
 That the persistent, shrewd and thorough investiga- 
 tion made by MR. FRANK MARSHALL WHITE, a very able 
 American newspaper man, well-known in three great cen- 
 tres of civilisation on two continents, whose impartiality 
 and disinterestedness in the matter are beyond doubting 
 tends to show that not alone are there reasons for 
 believing the victim's charges of police persecution in 
 this instance but that he was most probably innocent in 
 a former trial where the police secured conviction and 
 sentence of this man for an offence committed by another. 
 
 WE FURTHER CHARGE: 
 
 That this victim of malice, perjury and mistaken and
 
 10 FOKEWORD 
 
 suppressed testimony was also the victim of impersonal 
 folly and stupidity due to the defects of our legal system; 
 
 That he was tried before a judge whom it was unwise 
 to entrust with the conduct' of such cases; 
 
 That he ivas prosecuted by officers who refused to listen 
 to any proffer of testimony favorable to accused; 
 
 That he was defended by indifferent and heedless 'as- 
 signed' counsel who seem to have been convinced that 
 the accused was insane or an imbecile, mainly because of 
 the apparently incredible nature of statements which 
 were, nevertheless, true. 
 
 WE FURTHER CHARGE: 
 
 That this deplorable judicial blunder and the baffling 
 opposition of our legal machinery to all attempts, so far 
 made, to rectify the error prove that a condition of things 
 exists which demands rectification; 
 
 That, for the public safety and in the interests of jus- 
 tice and civilisation, certain amending legislative enact- 
 ments seem to be necessary; 
 
 That certain existing practices must-, at all costs, be 
 amended and reformed. 
 
 AND WE CLAIM: 
 
 That since we seem to have exhausted every recognised 
 means, but one, to secure justice for the victim and so 
 far have failed: 
 
 That the one remaining means must now be tried. 
 
 IT IS, TO PETITION THE GOVERNOR OF THIS 
 STATE TO APPOINT A JUDICIAL COMMISSION 
 EMPOWERED TO RE-TRY THIS CASE AND 
 EVERYBODY CONNECTED WITH IT AND WITH 
 POWER TO FREE THE INNOCENT AND PUNISH 
 THE GUILTY. 
 
 And you are entreated to help this movement.
 
 FOEEWOKD 11 
 
 One last word. The plan of publishing this book and 
 its issuing are the result of my own determination. I 
 have not sought advice in the matter from anybody and 
 where it has been spontaneously tendered almost in- 
 variably taking the shape of discouraging the idea it 
 has been disregarded. I, alone, am responsible for the 
 publication of this book. Nobody belonging to any organ- 
 isation or establishment by which I am employed or with 
 which I am connected can justly be charged with having 
 had any hand in the issuing of this book. Without ex- 
 ception, those who may be deemed my "official superiors" 
 knew nothing of my plan and will know nothing of it 
 until this book is published. 
 
 JACOB GOLDSTEIN, 
 
 Rabbi, Temple Beth Sholom, Bensonhurst, and Jewish Chaplain 
 Sing Sing & 'Tombs' Prisons. 
 
 175 Bay 29th St., Brooklyn. 
 25th September, 1913.
 
 TWENTY YEAES IN STATE'S PRISON 13 
 
 Storv of a Deplorable Judicial Blunder, 
 
 BRIEF ON APPEAL TO THE HIGH COURT OF PUBLIC OPINION. 
 THE CRIME. 
 
 On the morning of Thursday, the 19th day of January, 
 1911, Miss Nettie Palma, employee of Theodore B. Dale, 
 a ladies' tailor who conducted his business at 71 West 
 45th Street, heard the street door bell ring. She opened 
 the door and saw a man who announced himself as "the 
 telephone man." She admitted him and went upstairs 
 to the second floor, where the dress-making work was 
 done. A little while later she was called downstairs by 
 her employer, and there was the man, whom she had ad- 
 mitted, at bay. He was trying to leave the place, but 
 Dale would not permit it. Dale called the colored maid, 
 Anna Hart, and told her to stand at the door and prevent 
 the man from leaving. The man drew a revolver, and 
 pointing it at Dale, threatened to shoot. He turned and 
 threatened Anna Hart also, who then let him open the 
 door and go. As soon as he reached the street he ran, 
 with Dale and Anna Hart pursuing him and calling for 
 help. 
 
 Theodore B. Dale was a successful ladies ' tailor who had 
 amassed considerable money through his business, and 
 who was well known in certain circles in New York City. 
 It is well that, in order to understand all that follows, 
 the reader should at once be apprised of the fact that 
 Dale who appears to have been a shrewd man of busi- 
 ness and is said to have been otherwise quite mentally 
 active, for he is reported to have read widely was an 
 unfortunate degenerate and moral lunatic. It has been
 
 14 
 
 amply proved that for years he belonged to the unhappy 
 class of creatures dealt with by Krafft-Ebbing in his 
 "Psychopathia Sexualis." It has been established that 
 he was a practitioner of unnatural sexual practices for 
 fully twenty years. The writer has spoken to detectives 
 and 'men about town,' who, while insisting on the sup- 
 pression of their names and demanding a promise that 
 they be not called upon to give evidence in the case, have 
 assured him that Dale was one of the recognized leaders 
 of an infamous coterie of evil-doers who have for years 
 infested New York, and whose practices have given this 
 city a reputation for moral vileness of which respec- 
 table New Yorkers will be ashamed to learn. 
 
 That Dale's practices must have been known to the 
 detectives and plain-clothes men of our Police Force it is 
 impossible to doubt. All this is emphasized at this point 
 to account for the statement that what happened on the 
 morning of January 19th in Dale 's house cannot be defin- 
 itely told, for Dale was alone with the pretended tele- 
 phone, man for a period of at least ten minutes, and we 
 have only Dale's story as to what occurred. As will be 
 seen shortly, Dale had very strong reasons for giving an 
 untruthful account of what happened between him and 
 the visitor. No reliance may be placed on his uncor- 
 roborated statement. 
 
 From the evidence of Miss Nora Murphy, another em- 
 ployee of Dale, whose duty is was to attend to telephone 
 calls, it appears that someone had called up Dale's house 
 over the telephone on the day before and stated that a 
 telephone was to be put into the house next door, and that 
 the company would have to cut off Mr. Dale 's service for 
 an hour in the morning. When the visitor appeared on 
 the morning of the 19th she was upstairs, but after the 
 lapse of time indicated previously she was called down- 
 stairs by Dale, who told her to inquire of the Telephone 
 Company if they had really sent a man to fix the tele-
 
 TWENTY YEAES IX STATE'S PRISON 15 
 
 phone. An answer in the negative was given. She was 
 sure that the man who was there was the man who had 
 'phoned, because she recognized the sound of his voice 
 and because her interlocutor had spoken in broken Eng- 
 lish. The reader would do well, at this point, to turn to 
 that part of "The People's Story" which contains the 
 evidence of this young girl, where it will be clearly seen 
 that, according to her own statement, she had not heard 
 the man who was there on the morning of the 19th utter a 
 word on that day. 
 
 A third witness was Anna Hart, a colored woman, maid 
 or housekeeper in Dale's employ. She asserted that she 
 saw the visitor as she was leaving the parlor when she 
 was clearing away the breakfast things, and that he had 
 a revolver in his hand with which he threatened her, and 
 that in consequence she moved away from the door, which 
 she had held shut at the direction of Dale, in fear. When 
 the visitor ran away from the house she and Dale fol- 
 lowed him. 
 
 Midway between Dale 's place and Fifth Avenue a taxi- 
 cab starter for the Hotel Webster named Frank Harold, 
 caught the fugitive who was flourishing a pistol in his 
 hand, grappled with him and wrested the weapon from 
 his hand, holding the man thereafter until the pursuers 
 came up. What happened in the crowd that soon col- 
 lected can be gathered from the affidavit of Frank Harold 
 and from the evidence given in "The People's Story." 
 
 Harold let the fugitive go and then "broke" the re- 
 volver he had wrested from him. He found, according 
 to his affidavit, that the pistol only contained two blank 
 cartridges. Harold later on handed over the unloaded 
 pistol, exactly as he had taken it from the fugitive, to De- 
 tective Edward J. Cousin of the Thirty-fifth Precinct 
 whose affidavit that he took the unloaded pistol with the 
 two blank cartridges, from Harold, will also be found 
 on a later page.
 
 16 TWENTY YEARS IN STATE'S PRISON 
 
 After Harold had freed the fugitive he felt a sense of 
 discomfort at his finger tips. Taking out a pocket-knife 
 he scraped from under his finger nails minute pieces of 
 skin from the fugitive's wrist. As he states in his affi- 
 davit: "In the struggle between the said unknown man 
 and myself I got hold of the wrist of the said unknown 
 man, and my fingers scratched the left wrist and tore the 
 skin thereon slightly. I am sure that the person whom I 
 got hold of at the said time and place bore marks of the 
 struggle, particularly the said back or outside portion of 
 the wrist was injured and the skin broken. ' ' 
 
 Here then are two points of great significance in the 
 case, depending on the evidence of two absolutely dis- 
 interested witnesses, Frank Harold the chauffeur, and 
 Detective-Sergeant Edward J. Cousin. To these two 
 points the attention of the reader is directed, and the 
 reader is entreated not to let the following two facts 
 of capital importance in the case escape his memory at 
 any time. 
 
 One. That the man who called on Dale had a pistol 
 which only contained two blank cartridges, the balance 
 of the chambers being unloaded. 
 
 Two. That the man who fled on that morning from 
 Dale's door had the back of his hand plowed by the finger 
 nails of Harold. 
 
 It is true that Harold speaks of tearing the skin lightly, 
 but the abrasion must have been much more serious, as 
 the skin came away under Harold's finger nails. When 
 Harold was personally interviewed he dwelt by no means 
 so lightly upon the scratching of the skin. He observed 
 that it would be easy to identify the man who was there, 
 because he would bear the traces of his (Harold's) finger- 
 nails for some time to come. "I have often wondered 
 why I was not called as a witness at Schwitof sky's trial," 
 Harold also remarked. In truth, it is a matter for amaze- 
 ment that these two facts of the unloaded pistol and the
 
 TWENTY YEARS IN STATE'S PRISON 17 
 
 special marks ivhich should have made identification so 
 easy, should not have been brought out by the Deputy 
 Assistant District Attorney, who must have had Harold's 
 statement together with that of Cousin and the record at 
 the Property Clerk's Office at Police Headquarters 
 brought under his notice. 
 
 DALE IN ANOTHER CASE. 
 
 On the 30th of January, 1911, a young man named Leo 
 Gelsky was arrested on a charge of attempted blackmail 
 preferred by Theodore B. Dale, who was also complaining 
 witness in the 'Schwitofsky case,' with which this book 
 treats. The attempted blackmail was constituted by a 
 statement, in a letter presented to Dale by a messenger 
 from Gelsky on the date given, that Dale had committed 
 (and the crime was described in the plainest of old Saxon 
 English) a filthy variation of an unnatural offense on 
 the writer (Gelsky) and in doing so had injured him. 
 As a douceur, or payment for damage done, Gelsky claims 
 that Dale gave him a promissory note for $100. 
 
 Gelsky, in the letter to Dale, claimed the payment of 
 the $100 and threatened that in default of such payment 
 he would lay the whole case before the District Attorney. 
 The letter was forwarded through an Italian boy whom 
 Gelsky met on the street, and to whom he gave a quarter 
 to deliver the message. When arrested Gelsky admitted 
 that he was the writer of ;the letter, and stated that the 
 claim was a just one, and that if it had been for $1000 
 he would have been entitled to claim that sum. Gelsky, 
 as the reader will see from his affidavit, states that on the 
 MORNING OF THE 19TH OF JANUARY, he sent a 
 companion with the promissory note for $100 to collect 
 the amount therein named. He had previously attempted 
 to see Dale himself in the matter, but found that Dale's 
 servants had been instructed to refuse him admission.
 
 18 
 
 He refuses to disclose the name of the man who was his 
 messenger. Dale, he says, retained possession of the 
 promissory note, drove the "collector" from the door and 
 followed him, crying "Stop thief." Gelsky then recounts 
 the story of the crowd, the holding up by the chauffeur, 
 the Rabelaisian incriminations between Dale and the fugi- 
 tive, and the freeing of the fugitive. Gelsky was sen- 
 tenced to Elmira, to the last maintaining that he had not 
 attempted blackmail, but that he had demanded a debt 
 justly due to him. He was only half-hearted in his feel- 
 ing of shame at the filthy nature of the relations between 
 himself and Dale, but there never could have been a man 
 who more stoutly maintained the moral justice of a de- 
 mand for money than did Gelsky. 
 
 WHAT DID ACTUALLY OCCUE? 
 
 The reader will perceive that he has now reached a 
 point when he will be asked to judge between the contra- 
 dictory statements of Dale and Gelsky as to what actually 
 occurred during the ten minutes when Dale and the fugi- 
 tive, on the morning of the 19th of January, were alone 
 together. The reader, on consulting "The People's 
 Story" as told in the 'Court, will find that this is what 
 occurred, according to Dale's statement. 
 
 On the 18th of January he saw Schwitofsky standing 
 outside of his house in the company of another man. 
 This other man had been to his house to apply for alms. 
 When he first saw the defendant in the hall on 19th 'of 
 January Dale had just left the dining room and had come 
 out to go to the hall to get his overcoat. He saw the man 
 standing on the sill of the hall-door where the 'phone was, 
 with a piece of wire in his hand. His cook came and 
 asked what the man was doing there, and Dale said he 
 thought he was there to fix the telephone. He then put 
 on his overcoat and walked to the stoop. From the door
 
 TWENTY YEARS IN STATE'S PRISON 19 
 
 he saw in the street the man who had been at his house on 
 the previous day to ask for alms. He recognized him 
 and then recognized, by association of memory, the man 
 in the telephone booth. He went back and asked de- 
 fendant what he was doing there. Defendant answered 
 that he was there from the New York Telephone Com- 
 pany. Dale demanded a sight of his badge, and defend- 
 ant answered, "Here is my book of instructions," to 
 which Dale replied, "That won't do. I want to see a 
 badge." Defendant said he had forgotten his badge. 
 Witness then called Nora Murphy, instructed her to in- 
 quire of the Telephone Company whether they had sent 
 the man, and when the answer "No" came back, he told 
 the cook to guard the door while he went for a policeman. 
 What followed has been told from the statements of the 
 other witnesses. 
 
 In answer to questions by the Court itself, he said 
 that he was only about three feet away from the defend- 
 ant when he flourished the revolver, and that he saw 
 cartridges in it at the time the revolver was pointed at 
 him. 
 
 Was Dale telling the truth, or did the man who came 
 there see Dale alone in the ten minutes to which Nettie 
 Palmer testified as having intervened between her admis- 
 sion of the man and her being called downstairs again by 
 her employer? This is really the crux of the story, and 
 the reader's attention is strongly directed to this point 
 also. 
 
 Dale, as shown by the events of December, 1912, and 
 March, 1913, which are fully recounted later on, had his 
 own reasons for coloring the truth. The writer has had 
 made to him certain statements which go to prove quite 
 conclusively that Dale lied in his account of what took 
 place. The persons making the statements were, it so 
 happens, so peculiarly in official relations with Dale, that, 
 unless under oath in a Court of Law, they do not feel
 
 20 TWENTY YEARS IN STATE'S PEISON 
 
 free to repeat these statements publicly. The truth and 
 the value of their evidence are beyond cavil. But in or- 
 der to help justice and to clear up this disputed point they, 
 with much reluctance and only after consultation with 
 their superior officers as to the propriety of their making 
 the statements, went so far as to assure the writer that 
 it was within their knowledge that Dale committed sui- 
 cide in March, 1913, because he was afraid that he would 
 be interrogated on the old story of his evidence against 
 Schwitofsky, and that he would be forced to admit that 
 he had committed perjury on that occasion. 
 
 So far, then, as can be judged from the transcript of 
 the evidence, the jury assumed that the intention of 
 Schwitofsky (and, of course, they appear to have been 
 satisfied that he really was the man who went to Dale's 
 house on the morning of the 19th of January) was to com- 
 mit a crime, and that in order to place himself in a posi- 
 tion to commit the crime he gained admission under a 
 false pretense that he was a telephone repair man. This 
 gaining of admission under a false pretense by a man 
 who intended to commit a crime after gaining entrance 
 constituted the legal crime of ' Burglary in the Second De- 
 gree.' The jury also seem to have been satisfied that 
 the pistol with which Dale and the colored maid are said 
 to have been threatened was loaded. This constituted 
 the legal crime of 'Felonious Assault in the First Degree.' 
 Now, if it can be shown (and the writer is firmly con- 
 vinced that this is the truth) that the man who gained en- 
 trance on ~L9th January did so to collect a debt then no- 
 body committed the Burglary in the Second Degree; and 
 if it can be shown, as the writer is firmly convinced is the 
 truth, that the pistol, which is said to have been flourished 
 in the face of Dale and the colored housekeeper, was un~ 
 loaded, then nobody committed the crime of Felonious 
 Assault in the First Degree; and if it can be shown that 
 Alfred Schwitof sky's wrist bears no signs of the scars
 
 TWENTY YEARS IN STATE'S PRISON 21 
 
 caused by the digging of Frank Harold's nails into the 
 back of the left hand of the fugitive when the pistol was 
 wrested from him, then, whoever it was who entered 
 Dale's house on the morning of the 19th of January, IT 
 
 WAS NOT ALFRED SCHWITOFSKY. 
 
 THE ARREST. 
 
 On the night of the first of February, 1911, Officer 
 William Brown of the Detective Bureau went to Mills 
 Hotel No. 2 in Bivington Street and arrested Alfred 
 Schwitofsky on suspicion of having committed burglary 
 in the house of Dale on the 19th of January. Prisoner 
 said, according to Brown's statement, " That's a mistake. 
 I will accompany you to the complainant, and if the com- 
 plainant identifies me, all right. I '11 sue him." The de- 
 tective then took his prisoner to Dale's house, where 
 Dale identified him. Next morning he was charged be- 
 fore Magistrate 'Connor in the Police Court, and there 
 identified positively by Dale and the three women in his 
 employ. The prisoner sat among the audience, and each 
 witness went over and placed a hand on Schwitof sky's 
 shoulder and said, ''That's the man." 
 
 This account follows the story elicited in the witness- 
 chair from Brown who testified that the arrest was in 
 consequence of information Dale had given him. Noth- 
 ing in the testimony of Brown gave any indication of the 
 nature of the information he received, or how it pointed 
 to Schwitofsky, but we may take it for granted that 
 Brown was on the lookout for a man, probably answering 
 to the general description of Schwitofsky, who spoke with 
 a foreign accent, who might be able to pass himself off as 
 an electrician, and who had scars on his hand. Brown 
 was recalled by Counsel for the Defense immediately 
 after The People rested their case. It transpired that 
 at the time of the arrest Brown had taken Schwitofsky
 
 22 TWENTY YEAES IN STATE'S PKISON 
 
 to Harold, the chauffeur, for the latter 's identification. 
 Brown was being cross-examined, as to Avhy Harold ex- 
 amined the prisoner's wrists, when the Court intervened 
 and stopped the cross-examination as being improper. 
 We learn, however, that the police were looking for a 
 man who had the scars of Harold's finger nail scratches 
 on the back of his left wrist, but this point was not 
 brought out clearly by either the Defense or the Prosecu- 
 tion before the jury. 
 
 Now as the reader will learn from "The Prisoner's 
 Story" in 1908 while in the Tombs and mourning for 
 the loss of his little boy, Schwitofsky, in his despair, had 
 made a well-nigh successful attempt at suicide. He had 
 taken a leaden spoon (such as are handed to prisoners in 
 the Tombs with their food) had managed to turn the 
 handle into a sharp-edged weapon, had tried to cut his 
 jugular vein, and had opened the artery on the inside of 
 his left wrist. The scars will probably be discernible on 
 the inner surface of Schwitof sky's wrist and on his neck> 
 to the end of his life, but what the police were, or should 
 have been, looking for was a man who had finger nail 
 scratches on the back of his left wrist, and not a man who 
 had the scars of knife-cuts on the under surface of that 
 wrist. The back of Schwitof sky's wrist at no time 
 showed any scars of the scratches visible to the naked 
 eye. The affidavit of Dr. Julius B. Ransom, Physician 
 to Clinton Prison (to which Schwitofsky was transferred 
 from Sing Sing) made in October, 1911, or nine months 
 after the occurrences in Dale's house, declares that the 
 Doctor has carefully examined under the microscope the 
 left wrist, outer aspect with the palms upward, and also 
 the back of the wrist, and finds that the outer aspect of 
 the left wrist with palm upwards, shows some fine, radi- 
 ating linear scars which were evidently made by a thin, 
 sharp instrument and were of long standing, and that 
 these scars, in his judgment, were not made within a
 
 TWENTY YEAES IN STATE'S PRISON 23 
 
 year previous to the examination. He finds absolutely 
 no indication of any scars on the back of either ivrist or 
 arm of Schwitofsky. He also declares that in his judg- 
 ment, as a physician of long standing, if the skin on the 
 back of the wrist of Alfred Schwitofsky had been lacer- 
 ated or broken, or in any wise injured, there would be 
 signs noticeable under microscopic examination, and that 
 such scars would remain for at least five years. Ten 
 months after the occurrences, Dr. Ransom positively 
 swears that there were no signs of any finger nail 
 scratches on the back of the left wrist of Alfred Schwitof- 
 sky! 
 
 When first arrested Alfred Schwitofsky was held by 
 Magistrate O'Connor, for Special Sessions, on a charge 
 of "unlawful entry." He was afterwards transferred 
 to General Sessions on a double charge of burglary in the 
 second degree and felonious assault in the first. Brown, 
 when under examination at the trial, was cross-exam- 
 ined as to why the Magistrate had not held the accused 
 on the more serious charges, to which he somewhat trucu- 
 lently replied that he had arrested defendant on the 
 charge of burglary and not of unlawful entry, that he 
 did not tell prisoner that the charge was unlawful entry. 
 It is true that the complaint was drawn up as 'unlawful 
 entry,' but he, Brown, was not responsible for the mis- 
 takes of the Court. In spite of Brown's contempt for 
 the processes in the police courts of this city it is impossi- 
 ble to believe that the evidence given before the magis- 
 trate (of which the writer has not been able to secure 
 a transcript) was of such a nature as to point to the 
 commission of serious offenses. The writer feels justi- 
 fied in concluding that, when Brown first arrested Schwit- 
 ofsky, he had no idea of the statements afterwards made 
 in the higher court. There is quite ample reason for 
 not peremptorily rejecting Schwitof sky's story that the 
 complaints against him were increased in magnitude as
 
 24 TWENTY YEARS IN STATE'S PRISON 
 
 time went on, without his having any idea of the reasons 
 for this cumulation of gravity. 
 
 AWAITING TRIAL. 
 
 Schwitofsky was transferred from Special Sessions 
 to General Sessions on February 9, 1911, and the new in- 
 dictment charged him with the commission of the crimes 
 charged, as a second offense. As will be seen from ' ' The 
 Chaplain's Story," the prisoner had counsel assigned to 
 him by the Court in the person of Mr. William D. Bosler. 
 Schwitofsky states that he told his story fully to the 
 Counsellor, and asked him to secure the necessary wit- 
 nesses to prove his alibi on the 19th of January, but he 
 Bays Bosler replied, "What, do you think I am going 
 to spend my time and money on your case when there 
 is nothing in it for me! I shall defend you as an officer 
 of the Court whenever you are going to be tried." Mr. 
 Bosler, who was a former Deputy Assistant District At- 
 torney, is a young gentleman of experience and ability, 
 and while it may possibly be true that he did not speak 
 in the brusque manner indicated by Schwitof sky's quo- 
 tation, it is quite within the bounds of probability that 
 he did say that he had no means of procuring the required 
 evidence, and that it would be impossible for him to 
 spend any considerable amount of money or time on the 
 defense, for the conduct of which he was not receiving 
 anything; that he was only acting as an assigned officer 
 of the Court, and without pay. 
 
 It is a peculiar thing, and well worthy of remark at this 
 point, that the average prisoner in the Tombs is firmly 
 convinced that all assigned lawyers are well paid for the 
 defense. They think that these appointments are made 
 by the State and generally refer to an assigned counsel 
 as a * ' State Lawyer. ' ' The truth is that counsel assigned 
 for the defense are in no position, unless they have the 
 benevolent attitude and the means to spare, to spend any
 
 TWENTY YEAES IN STATE'S PRISON 25 
 
 money in securing evidence for the clients referred to 
 them in this manner by the courts. Doubtless, also, 
 Schwitof sky's manner was as nervous and excitable when 
 speaking to his attorney as it was when speaking to the 
 chaplain and the journalist whose stories follow on a later 
 page. 
 
 The fact that one of the first striking points in his 
 story was that he had quite recently been released from 
 Mateawan was an additional reason for paying no great 
 heed to his protestations. 
 
 Counsellor Bosler reported to Judge Warren W. Fos- 
 ter that, in his opinion, Schwitofsky was not sane and 
 applied for a Commission in Lunacy. A report was called 
 for by Judge Foster from the prison physician and Mr. 
 Dan E. Kimball of the Prison Association, and these 
 gentlemen reported that they saw no grounds for the ap- 
 pointment of the commission. Judge Foster, therefore, 
 denied Bosler 's request. Later on the case of Schwitof- 
 sky was referred to the court presided over by Judge 
 Thomas C. 'Sullivan, and Mr. Walter H. Carpenter 
 was assigned by Judge 'Sullivan to defend the prisoner, 
 as Mr. Bosler was prevented by illness from attending 
 to the case. Counsellor Carpenter promptly renewed the 
 application for the appointment of a Commission in 
 Lunacy. This time the application was granted by the 
 late Judge 'Sullivan. The Commission held its inquiry 
 and reported Schwitofsky to be sane. 
 
 The case finally came up for trial on June 1, 1911, or 
 exactly four months from the date of the arrest of Schwit- 
 ofsky. Counsellor Carpenter was assisted by Counsellor 
 William Gr. Kier for the defense. Schwitofsky had been 
 very much dissatisfied with Carpenter's attitude, and 
 had applied to the Judge for the appointment of other 
 counsel. He complained that it was not till a few days 
 before the trial that the counsellor called on him, and on 
 Schwitof sky's objecting to what he claims was the indif-
 
 26 TWENTY YEAES IN STATE'S PRISON 
 
 ference displayed by Carpenter, Counsellor Kier entered 
 in the case. He says that Kier paid him one brief quar- 
 ter-hour visit on the first occasion, and then made an 
 appointment to see him on the day before the trial. Kier, 
 however, did not keep this appointment and went to trial 
 without any further consultation with his client. The 
 truth seems to be that everybody in the Court by this 
 time appears to have been convinced that while Schwitof- 
 sky was not legally insane, he was nevertheless so un- 
 reliable that no attention need be paid to his protesta- 
 tions, and counsel seem to have decided to content them- 
 selves with fighting the case as presented by the People. 
 
 THE INDICTMENT. 
 
 On the 9th of February, 1911, the Grand Jury of the 
 County of New York indicted Alfred v. Schwitofsky, 
 otherwise called Alfred Gerber, for the crime of Burglary 
 in the Second Degree as a Second Offense, reciting : 
 
 "That on the llth of July, 1910, the said Alfred Schwit- 
 ofsky was convicted before Judge Edward Swann of the 
 Court of General Sessions, in the County of New (York, 
 of the Felony of Burglary in the Third Degree, said Bur- 
 glary being constituted by his entering with force and 
 arms the dwelling-house of Elma J. Ellsworth on the 
 19th of February, 1908, and did burglariously steal, take 
 and carry away chattels and personal property of the said 
 Elma J. Ellsworth ; that upon the conviction of the afore- 
 said, the sentence was suspended; 
 
 "And that the said Alfred V. Schwitofsky did on the 
 19th of January, 1911, obtain an entrance to the dwelling- 
 house of Theodore B. Dale by fraudulently pretending 
 and representing that he was a servant and agent of the 
 New York Telephone Company, and by this fraudulent 
 pretence did feloniously and burglariously enter the 
 dwelling-house of Theodore B. Dale, there being human
 
 TWENTY YEAKS IN STATE'S PRISON 27 
 
 beings within the same, and with intent to commit the 
 crime of feloniously and burglariously stealing, taking 
 and carrying away the goods, chattels and personal prop- 
 erty of the said Theodore B. Dale. ' ' 
 
 And the Grand Jury aforesaid did also further indict 
 the said accused of the crime of Assault in the First De- 
 gree, as a Second Offense, reciting: 
 
 * ' That the accused having been formerly guilty of the 
 felony of Burglary in the Third Degree first mentioned, 
 did on the 19th of January, 1911, enter the dwelling- 
 house of Theodore B. Dale situated in the Borough and 
 County aforesaid, by means of the artifice used for that 
 purpose as described in the first count, with the object 
 of burglariously stealing and carrying away. 
 
 "And having so entered said building with force and 
 arms, feloniously did make an assault to, at and against 
 one Anna Hart, by holding in his right hand a certain 
 pistol loaded and charged with gun-powder and one lead- 
 en bullet, which he did then and there point, aim and 
 present with the intent to wilfully and feloniously kill the 
 said Anna Hart. 
 
 * ' To all of which A. H. Eppstein, Foreman, did certify 
 that a "true bill had been found." 
 
 THE TKIAL. 
 
 The reader will find in a later portion of this booklet 
 all the evidence presented by the People edited in narra- 
 tive form, the writer considering that the average reader 
 will find it easier to peruse in this form than to follow the 
 tedious method of question and answer with which the 
 evidence is, according to the custom of our courts, 
 recorded. The reader will observe at certain places, 
 asterisks marking the evidence. Whenever such aster- 
 isks occur they record the taking of an objection by coun- 
 sel for the defense.
 
 28 TWENTY YEARS IN STATE'S PRISON 
 
 The witnesses for The People were Nettie Palma, Nora 
 Murphy and Anna Hart, all in the employ of Theodore B. 
 Dale, and the complaining witness, Theodore B. Dale him- 
 self ; together with Officer William W. Duggan, who was 
 called to testify to a previous conviction and suspension 
 of sentence before Judge Swann; Edward Denahm, who 
 was called to testify that the accused had never been in 
 the employ of the Telephone Company; and Detective 
 William Brown, who testified as to the arrest of Schwit- 
 ofsky. For the defense the accused himself was the sole 
 witness. 
 
 The reader is asked to read Schwitof sky's evidence 
 with the utmost care. He will find it extremely confused. 
 According to his statement already repeated, neither of 
 the counsel for the defense had taken the slightest notice 
 of his own story. An ill-educated foreigner, fully con- 
 scious of the gravity of the charge against him, unable 
 to secure credence from anybody officially connected with 
 the case to his loud and almost hysterical declarations of 
 his innocence ; feeling himself entrapped within the dan- 
 gerous machinery of the law; in no position to know ex- 
 actly what was to be charged against him and what evi- 
 dence was to be presented, there is little reason for 
 wondering that many of his statements were incoherent, 
 irrelevant and confused. The Court itself appears not to 
 have been well disposed towards the prisoner, for Judge 
 'Sullivan had been harassed by the receipt of many 
 long-winded letters from the accused, had been annoyed 
 by the accused's constant, and, probably to his mind, 
 unreasonable objections to the counsel assigned, and had 
 undergone the experience of receiving communications 
 from benevolent workers which might have the tendency 
 to set up in his mind an undue prejudice in the case in 
 favor of the prisoner. 
 
 One other point with respect to the late Judge 'Sulli- 
 van must be noted for the benefit of those who did not
 
 TWENTY YEAKS IN STATE'S PKISON 29 
 
 have a personal acquaintance with the Judge. The writer 
 refers to this point with the greatest possible reluctance, 
 and is only induced to do it by a feeling of necessity, 
 and the obligation to omit nothing which can give the 
 reader a clear view of the whole conditions of the trial. 
 The writer as Chaplain had often met Judge 'Sullivan 
 and conversed with him with respect to a number of other 
 cases of Jewish defendants. Judge 'Sullivan always 
 displayed himself as a fair-minded and kindly man, pre- 
 pared to take unusual pains to reconcile husbands and 
 wives in cases of abandonment, and to investigate thor- 
 oughly any doubtful points in cases where the accused 
 had pleaded guilty, and where a more intimate knowl- 
 edge of the facts than that displayed in the indictments 
 might lead the judge to lenient action. But it must 
 needs be said that the late Judge 'Sullivan had physical 
 and temperamental weaknesses which very probably 
 helped in the miscarriage of justice to which public atten- 
 tion is now called. Judge 'Sullivan was very hard of 
 hearing; it is alleged that he was quite deaf in one ear. 
 The Judge is believed to have been quite blind of one 
 eye. In early youth an arm had been torn out of the 
 shoulder socket. These physical disabilities (which would 
 have prevented Judge 'Sullivan from serving on a 
 jury) were minimized by the judge 's known determination 
 to let no action or statement pass in his court without his 
 fullest cognizance., Nevertheless, many a thing must 
 have been said and done in the court of which His Honor, 
 with all his watchfulness and care, could not have been 
 cognizant. It is known that when Judge 'Sullivan first 
 took his seat on the bench objection was made by officers 
 practising before him because of his tendency to extreme 
 irascibility. 
 
 If the reader will now picture to himself the position 
 of Alfred Schwitofsky and remember how much in this 
 case, above all other cases, depended on the alertness,
 
 30 TWENTY YEAES IN STATE'S PRISON 
 
 mental and physical, of the judge, he will realize how the 
 unhappy accused appears to have had the very ' ' stars in 
 their courses" fighting against him. The examination 
 and cross-examination by his own counsel and by the 
 Deputy District Attorney were conducted in an extremely 
 patronizing and significant manner. The methods of ad- 
 dressing him by his own counsel must necessarily have 
 conveyed to the jury the impression that the examiner had 
 no faith in the sanity, and consequently in the truthful- 
 ness, of the accused. To put it briefly, owing to the many 
 peculiar conditions here described, any one who had the 
 slightest personal interest in Schwitofsky or any faith in 
 the possibility of his innocence must have felt a sense 
 of extreme dissatisfaction with the conduct of the trial. 
 
 THE SENTENCE. 
 
 The jury returned a verdict of ' * Guilty, ' ' and Schwitof- 
 sky was sentenced on the 5th of June, 1911, four days 
 after the trial, to twenty years imprisonment. When sen- 
 tencing the accused Judge 'Sullivan stated in unmis- 
 takable terms his opinion that the accused belonged to 
 the class of men who should be kept in jail for life. 
 
 About twelve days elapsed before the Judge signed the 
 commitment papers which would authorize the transfer of 
 the accused from the Tombs to Sing Sing Prison. Dur- 
 ing this period the prisoner communicated with the writer 
 of an article in the New York Herald which described con- 
 ditions in the Tombs. In response to Schwitof sky's writ- 
 ten request, ME. FRANK MARSHALL WHITE, a very promi- 
 nent journalist of New York, visited him. Mr. White, 
 struck by the story told by Schwitofsky, entered upon an 
 independent examination of the whole affair. He called 
 after the lapse of some time on Judge 'Sullivan. Here is 
 Mr. White's account of his visit to the judge, as given 
 in an article on the case published on January 13, 1912:
 
 TWENTY YEARS IN STATE'S PRISON 31 
 
 "All things considered, I felt justified in laying before 
 Judge 'Sullivan, the information I had gathered with re- 
 gard to Schwitofsky. I found that the Judge was cogni- 
 zant of all the circumstances, if not of their bearing on 
 each other. 'Schwitofsky was found guilty after a fair 
 and impartial trial, ' 'Sullivan told me, ' and a sentence 
 of twenty years is the lightest I could impose on him.' 
 
 It is almost inconceivable how such a statement could 
 have been made by the Judge, and had the writer any less 
 reliable authority than that of Mr. White he would feel 
 disposed to take the liberty of questioning the truth of the 
 quotation. But the writer knows Mr. White so well that 
 any doubt of his honesty or carefulness of statement be- 
 comes an absurdity. When the late Judge 'Sullivan 
 made that statement to Mr. White he stated what was 
 only true in a tricky sense, but what, in fact, was untrue. 
 The sentence of twenty years on Schwitofsky was not the 
 lowest sentence the Judge could have imposed, but was 
 the maximum sentence, that is, double the lowest sentence 
 imposable in the case. It is not an uncommon thing for 
 juries to convict accused on two or three counts in an in- 
 dictment, all the counts rising out of the one crime. It is 
 an uncommon thing for a judge to sentence on each. The 
 usual and humane practice, when the counts in an indict- 
 ment all arise out of the same offense, is to sentence the 
 accused on the more serious count and ignore, for the mo- 
 ment, the other counts, or, if the other counts are revived 
 later on, to suspend sentence on them. The lowest sen- 
 tence, according to the law, which the Judge could have 
 imposed on Schwitofsky was ten years, and not twenty. 
 
 THE APPEAL. 
 
 Those who had doubts of Schwitof sky's guilt were 
 startled, in some instances horrified, at the severity of 
 the sentence, and although they had to oppose the whole
 
 32 TWENTY YEAKS IN STATE'S PRISON 
 
 stately and powerful machinery of the law in this Coun- 
 ty, and were men without any influence except that which 
 is given by the desire to perform a duty, they set them- 
 selves resolutely and quietly to fight the case. It was at 
 this point that Mr. White, whose story is published here- 
 after, did such splendid yeoman service in the cause of 
 justice. He set himself the task of hunting down and in- 
 terviewing every man who could throw any light or give 
 any information with respect to the crime charged by 
 Dale. Not content with that, he investigated the facts 
 connected with every other charge made in this county 
 and state against Schwitofsky. Mr. White did not con- 
 tent himself with merely interviewing people it was he 
 who secured the affidavits published on another page from 
 the prisoner, from Leo Gelsky, Frank Harold, Edward J. 
 Cousin and Dr. Julius B. Ransom. 
 
 When the case for Schwitofsky was considered as com- 
 plete as the limited means at the command of Schwitof- 
 sky 's friends permitted, Mr. White called with all these 
 proofs on Deputy Assistant District Attorney Eobert C. 
 McCormick who tried the case, and placed before him the 
 results of his investigation, showing him the affidavits he 
 had secured. Mr. McCormick, Mr. White reports, very 
 nobly and generously said that, in view of this evidence, 
 the District Attorney's Office would not oppose the pro- 
 posed application for a new trial, on the grounds of newly 
 discovered evidence. "It is the duty," he said, magnani- 
 mously, "of this Office to Help to Save the Innocent, as 
 much as it is to Prosecute and Punish the Guilty." Mr. 
 White was greatly encouraged by this noble attitude on 
 the part of the representative of the District Attorney, 
 and when Counsellor K. Henry Rosenberg very kindly 
 undertook to prepare, without charge, all the necessary 
 papers and argue the appeal before Judge 'Sullivan, he 
 went into court cheered by the feeling that his task would 
 be light, as his application would receive the support of
 
 TWENTY YEAKS IX STATE'S PKISON 33 
 
 the District Attorney. Imagine then, the amazement and 
 consternation of the friends of Schwitofsky when Mr. 
 McCormick arose and argued vehemently against the 
 granting of the appeal. So intent was Mr. McCormick 
 on preventing the court from acceding to the application 
 made on behalf of Schwitofsky, that he allowed his 
 enthusiasm to lead him into very considerably over- 
 stating the number of convictions recorded against 
 Schwitofsky. 
 
 The Appeal having been argued by counsel for the pris- 
 oner and opposed by the District Attorney's office, the 
 Court accepted the affidavits and announced that it would 
 take time for consideration of the application. Some 
 seven weeks intervened between the application and the 
 decision which denied the Appeal. During these seven 
 weeks the writer had an interesting conversation with Mr. 
 McCormick, who told him that the judge had referred all 
 the affidavits in the case to the District Attorney's office 
 for investigation and report. When the writer asked Mr. 
 McCormick how, in the face of the conclusive nature of 
 these affidavits, he could oppose the application, his reply 
 was an invitation to the writer to come to his office and 
 see all the evidence the District Attorney had secured. 
 The writer's reply was that he had long before pro- 
 cured a transcript of all the evidence and was intimately 
 acquainted with every word uttered at the trial. "Our 
 identification," said Mr. McCormick, "is so perfect, that 
 nothing can shake our case. We ground our attitude on 
 the unassailable completeness of the identification. ' ' The 
 writer replied, "Well, let us grant, for the moment, that 
 Schwitofsky was the man who entered Dale's house on 
 the morning of the 19th of January, 1911, and that the 
 conviction on the count of burglariously entering can be 
 upheld. But how do you account for the fact that the 
 conviction for felonious assault in the first degree cannot 
 stand for a moment as it has been shown that the pistol,
 
 34 TWENTY YEARS IN STATE'S PRISON 
 
 which the man who entered Dale's house flourished, was 
 unloaded!" Mr. McCormick looked surprised at this 
 statement and said, "Is that so?" 
 
 It is possible that Mr. McCormick will have no recol- 
 lection of this fact, and will deny that the conversation 
 just described took place, or that it took the form indi- 
 cated, because, when on a later occasion, again discussing 
 the case, the writer asked Mr. McCormick how he 
 accounted for the fact that when Mr. White first called 
 on him he promised that the District Attorney would not 
 oppose the application for a new trial, and how he could 
 reconcile that promise with the fact that the District At- 
 torney did most strenuously oppose the application, Mr. 
 McCormick replied, "Why, White lied to me. I did not 
 read the affidavits, but I took his statement of what they 
 contained for granted." It was intimated to Mr. Mc- 
 Cormick that Mr. White does not lie, and since the memor- 
 able occasion on which Mr. McCormick thus defended 
 himself, all personal intercourse with that high-minded 
 gentleman has been avoided by the writer. Mr. White 
 declares that if Mr. McCormick did not read the affidavits 
 he made an admirable pretense at doing so, for he took 
 each affidavit into his own hands, appeared to read each 
 page carefully, with all the manner of a man who was 
 absorbing the contents, and it was only after he returned 
 the affidavits to Mr. White that he made the noble and 
 virtuous declaration which so encouraged the defenders 
 of Schwitofsky. 
 
 THE APPEAL DEFIED. 
 
 In denying the Appeal, Judge 'Sullivan's 'Opinion' 
 recounts the story of the occurrences at Dale's house on 
 the morning of January 19, 1911, and the testimony of 
 various witnesses which showed that the defendant "tak- 
 ing a loaded revolver from his pocket said, 'You won't 
 let me out; you won't! I'll shoot you if you don't let me
 
 TWENTY YEARS IN STATE'S PRISON 35 
 
 out, ' ' ' and that he threatened several persons in this way. 
 The story of the flight of the man and his being held by 
 the chauffeur, etc., is repeated. The learned Judge goes 
 on to say : "The Defendant's motion is based on alleged 
 newly-discovered evidence as to identity, on the theory 
 that certain scars on his wrist were relied upon to a ma- 
 terial extent to prove his identity as the actual offender." 
 The Judge then dwells on the fact that there were four 
 witnesses, Dale himself and three of his employees, who 
 swore to the identity of the Defendant. All four declared 
 that they recognized the defendant and were positive in 
 their testimony as to the identity of the defendant. The 
 Judge then repeats Schwitof sky's statements as to his 
 arrest, and goes on to say: 
 
 * ' On re-cross-examination the Attorney for the prosecu- 
 tion asked the defendant, 'Now, the reason the chauffeur 
 wanted to look at your wrist was that at the time he 
 stopped you your wrist was cut by his nail, wasn't it?' 
 To which the Defendant answered, 'No.' Thereupon, the 
 District Attorney asked, 'Well, what did he want to look 
 at your wrist for?', and the Defendant answered, 'He 
 wanted to look at my wrist and examined my wrist, and 
 then he shook his head. ' ' ' 
 
 The Judge referred to the fact that the foreman of the 
 jury questioned the defendant about the scar on his wrist 
 and asked him how he came by it and that defendant 
 answered that he inflicted the injury upon himself in the 
 year 1908. "After the closing arguments had been 
 made, ' ' said the Judge, ' ' and while the Court was charg- 
 ing the Jury, he was interrupted by the Defendant's 
 Counsel, who stated that the Defendant desired to make 
 a statement to the Jury regarding the mark upon his 
 arm." This request was denied. The Judge continues, 
 "Three of the affiants, whose affidavits are part of the 
 moving papers, were accessible at the time of the trial and 
 their testimony could have been procured." "I do not
 
 36 TWENTY YEARS IN STATE'S PRISON 
 
 believe," continued the Judge, "that any additional testi- 
 mony by them would have changed the verdict of the 
 Jury, nor would testimony of the microscopic examina- 
 tion of the scars three years after they were made have 
 that effect." The Court found nothing to justify the 
 granting of the motion for a new trial, and therefore 
 denied it on the 23rd of February, 1912. 
 
 The learned Judge, the reader sees, like Deputy Assist- 
 ant District Attorney McCormick, based his opinion of 
 the justice of the sentence on the identification of Schwit- 
 of sky at the trial. 
 
 THE IDENTIFICATION. 
 
 The identification of accused persons generally is one 
 of the most perplexing of the questions which practi- 
 tioners of law in the Criminal Courts have to encounter. 
 Many scores of cases throughout the world are recorded, 
 in which there has been the most positive identification 
 of accused by numbers of witnesses, all honest and well- 
 meaning, and in which later developments have shown 
 that the identification was mistaken. Now, it would be 
 well to analyze the identification in this case. 
 
 Nettie Palma states that she opened the front door of 
 the house in answer to a ring of the bell ; that she saw a 
 man who said he was the telephone man; that she ad- 
 mitted this man and then went upstairs ; that ABOUT TEN 
 MINUTES LATER she was called downstairs again and there 
 saw the man threatening to shoot first Mr. Dale and 
 afterwards Anna Hart. She further swore that she saw 
 the man run down the length of five houses towards Fifth 
 Avenue on the opposite side of the street, and that then 
 he ran back towards Sixth Avenue ; that Anna Hart and 
 Mr. Dale were only a few feet behind him ; that Mr. Dale 
 was shouting for help ; that nobody stopped the fugitive, 
 who turned to cross the street again and, in doing so,,
 
 37 
 
 dropped the revolver and then ran towards Sixth Avenue 
 and jumped on a car. There was another man with him. 
 The next time she saw the defendant was up at 57th 
 Street in the Court. Under cross-examination she per- 
 sisted that she saw defendant drop the revolver, and that 
 a detective picked it up. She said that she had not prob- 
 ably talked to him more than a second or two when she 
 admitted him. Asked whether she had any doubt as to 
 whether defendant was the man she saw at the house, she 
 said, "No," that she was sure that that was the man. 
 She only saw the man for a few seconds in the first in- 
 stance, and then saw him again under conditions which, 
 to a young girl like her, were so exciting and bewildering 
 that she had no clear recollection of what actually 
 occurred, for as the reader knows, the fugitive did not 
 drop the revolver, nor was he allowed to make his escape, 
 to the car on Sixth Avenue, unimpeded. 
 
 This witness unquestionably intended to tell the truth, 
 but what she actually saw (if she really was in a condi- 
 tion to observe anything at all, and was not in such a 
 state of fright and consternation that she was unable to 
 remember clearly what took place) was the man being 
 stopped by the chauffeurs, the struggle between the fugi- 
 tive and Harold, the gathering of a big crowd and the re- 
 lease of the man after the occurrence of quite an exciting 
 scene, all of which seems to have left no impression what- 
 ever on her memory. The next time she saw the man was 
 fifteen days later in the Police Court. 
 
 The identification by Dale may be at once dismissed 
 from the reader's attention in the light of the develop- 
 ments two years later, which, of course, were unknown 
 to the Court at the time that the Appeal was denied. 
 Nevertheless, the Court had before it, not in this case 
 truly, but in another case (and its attention had been 
 directed to that important point by the Jewish Chap- 
 lain) clear and unmistakable evidence that Dale had been
 
 38 TWENTY YEAES IN STATE'S PRISON 
 
 charged with the practice of a hideous offense against 
 morality, and that there was a strong probability that the 
 two cases were intimately connected. The writer is not 
 prepared to say how far the Judge would have been justi- 
 fied by the practice of the Courts in insisting on the con- 
 nection of the two cases. This might have been legally 
 improper although there may be room to doubt that. 
 But surely humanity, justice and common-sense dictated 
 that the point should at least have been investigated dur- 
 ing this trial ! Had that point been brought out, does any 
 thinking reader imagine that the Jury would have at- 
 tached any great weight to Dale's testimony? Dale's 
 evidence should then unquestionably be dismissed as un- 
 worthy of credence. 
 
 The judge had dealt with the charge against- Leo Gel- 
 sky. He must have been aware of the circumstance of 
 the alleged connection of Gelsky's case with that of 
 Schwitofsky. Why was this point not investigated? 
 
 The next witness was Anna Hart, the colored maid, 
 housekeeper or cook. Her evidence was simply that she 
 went from the breakfast room where she was clearing 
 away the table into the middle parlor, and there she was 
 asked to hold the front door and prevent a man from 
 going out. She declared that he pulled a revolver out 
 of his pocket, "drew it in her face twice," and threat- 
 ened to shoot her. The period elapsing for this occur- 
 rence she places at two minutes. She declares that he 
 pointed the revolver at her twice and then at Dale. It 
 is not of much importance but the other evidence is that 
 the revolver was pointed first at Dale and then at her. 
 Quetsioned as to the identification, she said that the man 
 she saw had no particular marks which she noticed, but 
 that he did not have at that time the mustache which 
 Schwitofsky wore at the trial. She said positively, "I 
 knows him, anyhow. I knows that's the man that pointed 
 the gun in my face ; I knows that. ' '
 
 TWENTY YEAES IX STATE'S PRISON 39 
 
 The writer would be very sorry to do any injustice to 
 Anna Hart, but if she had been any length of time in 
 Dale's employ she must have had some suspicion, or 
 knowledge, as to his habits ; and, with due respect to the 
 lady, the fact that after such knowledge or suspicion she 
 could remain in his employ might tend to weaken the 
 value of her testimony, in the minds of, perhaps over- 
 nice, people. 
 
 The last witness who positively identified the man was 
 Nora Murphy. She is a young girl who was employed in 
 Dale's dress-making establishment, and there is no de- 
 sire to impeach in the slightest degree, her character or 
 truthfulness. What she said she saw and believed was 
 really what she thought she saw and really did believe. 
 But she was upstairs when the pretended telephone man 
 came in, and was called downstairs by Dale, who directed 
 her to go to the telephone booth and see if they had sent 
 a man to fix the 'phone. She 'stepped into the booth,' 
 'phoned, and got her reply to the effect that they had 
 not sent a man. After she left the telephone booth she 
 did not see anything more. Everybody had left the house 
 except Nettie Palma, and she was standing in the hall. 
 That was all she knew about it. "But," she went on to 
 say, " he, " the defendant, ' ' 'phoned the day before. ' ' To 
 the question as to how she knew he was the same man she 
 said she recognized the voice. The man over the 'phone 
 asked if that were Mr. Dale's house, and said they were 
 going to put a telephone in the house next door, etc. 
 
 Now follows the most extraordinary bit of cross-exam- 
 ination by defendant's counsel, which adorns the records 
 of our criminal courts. The reader will note that there is 
 never the slightest hint that she heard the accused utter 
 a sound on the morning of the 19th. According to her 
 own story she had not heard him say a word. Mr. Kier 
 asked, "And this conversation over the 'phone the day 
 before was with somebody you believed was the defendant
 
 40 TWENTY YEARS IN STATE'S PRISON 
 
 because it sounded like his voice." Her answer was, 
 "Yes, he spoke broken English." The next question 
 was, "And then you believe it was this defendant because 
 he spoke broken English. Do you?" Her answer was, 
 "Yes sir." 
 
 Here the reader will see that the Defendant 's own coun- 
 sel is so heedless as to create, in the minds of the Jury, 
 an impression that she heard the man speak in Dale's 
 house, which her own previous testimony shows not to 
 have been the case. Then this clever cross-examiner 
 moved to have the testimony stricken out. Upon which 
 the Court asked the witness, "In addition to the broken 
 English, you say that you recognized the sound of his 
 voice. ' ' Her reply was, ' * Yes sir. ' ' Seeing that the wit- 
 ness had never referred to the quality or sound of the 
 prisoner's voice, this may be described as a very 'leading 
 question. ' The Court denied Mr. Kier 's motion to strike 
 out the testimony. 
 
 There was sharp discussion between Counsel on both 
 sides and the Court, in the course of which Mr. Kier 
 moved for a mistrial. This was denied, but the Court 
 directed that the conversation over the telephone be 
 stricken out, and that the jury disregard it entirely. It 
 will be seen, however, that the absolutely false impres- 
 sion that Miss Murphy recognized Schwitofsky because 
 she had heard him speak on the morning of the 19th and 
 recognized his voice as that of the man who spoke on the 
 afternoon of the 18th, was left undisturbed on the minds 
 of the jury. 
 
 The truth of the matter may be that these two young 
 ladies positively swore to Schwitofsky as being the man 
 whom they saw on the morning of the 19th, whereas in 
 reality they quite unconscious of the distinction between 
 the facts recognized him as the man they saw in the po- 
 lice court fifteen days after the occurrences in Dale's 
 house.
 
 TWENTY YEARS IN STATE'S PRISON 41 
 
 Brown, the arresting officer, swore that on the morning 
 of the trial in the police court before Magistrate O'Con- 
 nor, the prisoner was placed on one of the benches in the 
 court-room and the three female witnesses each went 
 across to where he sat in the audience, placed a hand on 
 his shoulder and said, " That's the man." He also 
 swore that the accused was brought direct from the 
 prison and placed in the audience. At that time the wit- 
 nesses were in an inner room called the "Complaint 
 Boom." They could not see him from that room. 
 
 On the other hand, Alfred Schwitofsky swore to the 
 following effect: 
 
 "I was taken to the 57th Street Court and placed in the 
 pen. In a short while a young fellow came downstairs 
 and was brought down by the same two officers, and one 
 of them shoved him on the side with his hand like that (il- 
 lustrating), and he said, "Go ahead say it," to the other 
 fellow, and the other fellow started in to cry and said, 
 'Yes'." It would seem that the 'young fellow' referred 
 to, was Gelsky. Schwitofsky continued, "And from there 
 I was taken into the back room and charged before the 
 clerk of the Court in the back room on a charge of unlaw- 
 ful entry. ' ' Being asked whether he saw the three women 
 witnesses at the side of the room at the entrance, the 
 reply was, "I never knowed them, who they were, or 
 anything else." To the question, "Are they the three 
 women that appeared here", the answer was, "Yes sir, 
 those are the three, two white women and a colored 
 woman. They were seated right there. When the clerk 
 in the back room asked me if I plead guilty or not guilty, 
 I pleaded not guilty, and I had to sign my name there, 
 and I was taken to the corridor to wait to be arraigned 
 before Magistrate O'Connor." 
 
 His counsel said, "Now, tell about the identification 
 by these three women. Where were they when they came 
 in and pointed you out?" Schwitofsky answered, "They
 
 42 TWENTY YEARS IX STATE'S PRISON 
 
 did not point me out at all. They never came over to me. ' ' 
 1 'Now," said the lawyer, "you heard the officer, Alfred, 
 testify that you were placed in the audience." Schwitof- 
 sky interrupted, * * No sir, that 's a lie. " " Wait a minute, ' ' 
 said the lawyer, "that you were placed out in the audi- 
 ence, that these three women were called in and went up 
 near you in the audience and pointed you out ; is that so or 
 not ? " "No sir, it isn 't so. Nothing like that happened. ' ' 
 Counsel asked, "Were you placed in the audience, wait 
 a minute, I want to get the question were you at any 
 time up there placed in the audience at all ? " Schwitof- 
 sky answered, "No sir. Never was placed in the au- 
 dience ; never was pointed out ; never saw a hand put on 
 me by any of the women." Under cross-examination 
 by the District Attorney's representative he again denied 
 Officer Brown's statement as to the identification. 
 
 The present writer, knowing something of the methods 
 of the police, is strongly disposed to believe Schwitof- 
 sky's story of identification rather than that of Brown. 
 The reader will do well to study "The Journalist's Story" 
 at this point. It is a common thing for police officers to 
 manage to suggest or indicate the person, whom they 
 wish identified, to the witnesses, who, after the lapse of 
 time that usually occurs between the commission of an 
 offense and the arrest of the accused, have no really 
 clear recollection of the person who committed the offense, 
 and who, quite unconscious of the fact that their identifi- 
 cation is from the suggestion of that moment and not the 
 clear recollection of the features and appearance of the 
 person who committed the crime, stoutly swear to the 
 identification of the accused, and persist in their faith 
 that their identification is righteous to the end. 
 
 In view of all the circumstances then, it may be said 
 that this positive identification on which the District At- 
 torney's Office and the Court placed so much stress, is in 
 this case quite unreliable. Dale's evidence must be dis-
 
 TWENTY YEAES IN STATE'S PEISOX 43 
 
 missed from consideration, for there is no doubt that he 
 committed willful perjury in this case. The identification 
 by Anna Hart, the colored cook, may, under all the cir- 
 cumstances, also be held to be inconclusive. As has been 
 shown, both the other young girls, who are unquestion- 
 ably honest witnesses, and who had the fullest intention 
 only to testify to the truth, were so confused and dis- 
 turbed by the extraordinary occurrences in Dale's house 
 on the morning of the 19th of January, that their testi- 
 mony is unreliable. 
 
 APPELLATE COUET. 
 
 Surprised and disconcerted but not dismayed nor 
 daunted by the unexpected result of the appeal to Judge 
 'Sullivan, the defenders of Schwitofsky resumed their 
 work of proving his innocence. MB. FRANCIS D. GALLATIN, 
 a high-minded and able lawyer, was induced to appear 
 as Schwitofsky 's Counsel, and drew up an admirable and 
 clear brief on Appeal, and ME. SAMUEL UNTEEMYEB, the 
 famous New York lawyer and one of the leading lawyers 
 in this country, very kindly undertook to argue the case. 
 On Wednesday, March 19, 1913, the appeal, both from 
 Judge 'Sullivan's decision to deny the new trial and 
 from the verdict at the trial, was argued in the Supreme 
 Court, and on the 4th of April following, the decision was 
 handed down denying the Appeal. There was one dis- 
 sentient, but as no opinion was given either by the Court 
 itself or by the dissenting Justice, the public has no 
 means of arriving at any knowledge of the grounds on 
 which the Appeal was denied, or the grounds on which 
 the dissentient disagreed with his brothers. It must, 
 however, be observed that since much that has come to 
 the knowledge of Schwitof sky's supporters had come to 
 light only after the lapse of the twelve months in which 
 the law recognizes newly discovered evidence, much that
 
 44 TWENTY YEARS IN STATE'S PEISON 
 
 is quite convincing could not be brought before the Appel- 
 late Division. 
 
 THE NEWLY DISCOVERED EVIDENCE. 
 
 When denying the first appeal, Judge 'Sullivan 
 briefly dealt with the newly discovered evidence, and 
 pointed out that most of his 'newly discovered' evi- 
 dence was accessible at the time of the trial and could 
 have been procured. The learned Judge, however, did 
 not point out ~by whom it could have been procured. The 
 unfortunate Schwitofsky had sent him letter after letter, 
 certainly ill-spelt and somewhat hysterical in tone, but 
 nevertheless clearly stated, in which he complained that 
 the counsel assigned by the Court positively refused to 
 pay any regard to this evidence. The poor fellow was 
 entrapped in a 'vicious circle' of unyielding legalities 
 which deprived him of any chance of receiving justice. 
 Miserably poor, he had no means to engage counsel, and 
 had to accept counsel assigned by the Court. Two of the 
 three so assigned immediately concluded that the man 
 was mad, and the third treated him, even in court at the 
 trial, in a manner which suggested his belief that the man 
 was irresponsible and semi-imbecile. Mr. Bosler, if 
 Schwitofsky is to be believed, and there is no particular 
 reason for doubting his statement, told him that he was 
 in no position to spend time and money in hunting up 
 these witnesses, so that the poor fellow was not merely 
 ill-defended, but the failure of the counsel, assigned by 
 the Court, to do him justice was held by that Court to be 
 a reason for denying him any further hearing. When 
 Schwitofsky indignantly remonstrated at the attitude of 
 the assigned counsel and demanded the substitution of 
 other counsel, he appears to have angered the Court. 
 The Court said, "In my opinion, the defendant was 
 fairly tried. Two reliable and experienced attorneys were
 
 TWENTY YEARS IN STATE'S PRISON 45 
 
 assigned to the defendant by the Court. They had ample 
 time to acquaint themselves with every phase of the case, 
 and I believe were familiar with all the facts and cir- 
 cumstances, and could have adduced the testimony upon 
 which it is now sought to obtain a new trial. ' ' 
 
 It is to be remarked that the Court did not impugn the 
 value and importance of the new testimony, but regarded 
 the fact that ' ' the two reliable and experienced attorneys ' * 
 did not adduce it, as sufficient reason for denying it any 
 attention. It may, of course, have happened that if the 
 affiants, whose affidavits formed the ground-work for the 
 motion for a new trial, were put under cross-examination, 
 that operation might have resulted in weakening the force 
 of their testimony. But here is a witness who swears 
 that he was beaten by the police into identifying Schwit- 
 of sky as the man he sent to Dale 's house on the morning 
 of the 19th of January, whereas Schwitofsky was not 
 the man he sent. Here is Frank Harold, an absolutely 
 disinterested witness, who swears that the fugitive whom 
 he stopped on the morning of the 19th must have on the 
 back of his left wrist, the scars of scratches made by his, 
 Harold's, finger nails, and who also swears that the pistol 
 he took from the fugitive was unloaded. Here is Detec- 
 tive-Sergeant Edward J. Cousin, who swears that he 
 received the said pistol from Harold on the morning of 
 the occurrences, and that it was then unloaded. Here is 
 Dr. Eansom, who swears that he has made a microscopi- 
 cal examination of the back of Schwitof sky's hands, and 
 finds no marks of any finger-nail scratches. None of this 
 evidence was brought forward by the l reliable and exper- 
 ienced' attorneys at the trial, though, if they had done 
 their plain duty not merely as lawyers but as conscien- 
 tious human beings, they should have brought it forth. 
 How vicious must be that legal system which leads to the 
 suppression of important evidence in favor of an unhappy 
 wretch, accused of a crime of which he is innocent, while
 
 46 TWENTY YEAES IN STATE'S PEISON 
 
 a wealthy city provides tremendously effective machinery 
 for prosecution, with unlimited powers, funds and assis- 
 tants, which, in such a case, becomes a terrific instrument 
 of oppression and injustice! And when a few disinter- 
 ested workers take up the cudgels for the victim, and at 
 their own expense of time and money provide the missing 
 proof of innocence, the Court will pay no attention 
 because : 
 
 1. A certain time has elapsed, and therefore the 
 Court cannot listen ; 
 
 2. Because officers assigned by the Court heartlessly 
 neglect to take the least trouble to procure the evidence 
 in proper time. 
 
 THE SCABS ON THE HAND THEIR SIGNIFICANCE. 
 
 In his 'Opinion' denying the motion for appeal 
 Judge 'Sullivan said: "The defendant's motion is based 
 on alleged newly-discovered evidence as to his identity, 
 on the theory that certain scars on his wrist were relied 
 upon to a material extent to prove his identity as the 
 actual offender. ' ' 
 
 This passage displays a singular and almost inexplic- 
 able misconception on the part of Judge 'Sullivan as to 
 what importance was really attached by the appellant, 
 both to the scars that were on the under-surface of his 
 own wrist, and to scars on the upper surface or back of 
 the wrist, which should have been apparent had he really 
 been the man sought for. 
 
 At one point in the cross-examination of the arresting 
 officer, William Brown, counsel for the defense asked 
 witness what Dale said about examining the defendant's 
 wrist, to which Brown replied, ' * Mr. Dale never examined 
 his wrist." Kier asked, "Well who did?" Brown ans- 
 wered, "Mr. Harold, the chauffeur. He was the second 
 man that identified him." Kier went on, "Well, what
 
 TWENTY YEAES IN STATE'S PKISON 47 
 
 did he say about his wrist?" Brown was beginning his 
 answer, when the Court intervened with, "Now, this is 
 not proper cross-examination," and stopped the line of 
 questioning. 
 
 Every lawyer or person familiar with the rules of 
 testimony will see at once that the Court meant that if 
 there were any desire to elicit Harold's reason for exam- 
 ining the defendant's wrists, Harold was the proper 
 person to give the evidence. But, "why was not Harold 
 called?" is the question that was asked by Harold him- 
 self, as we have seen, and surely should be asked by every 
 reasonable man. The District Attorney's Office knew that 
 Harold had seized the fugitive who ran from Dale's 
 house; that Harold had wrested the revolver from him 
 and that Harold had scratched the wrist of the man who 
 was in Dale's house. Why was lie not called in evidence? 
 On re-cross-examination of the defendant, McCormick 
 asked him, "Now, the reason the chauffeur wanted to 
 look at your wrist was that at the time he stopped you 
 your wrist was cut by his nail, wasn't it?" This shows 
 that the District Attorney knew that what was being 
 looked for by the chauffeur were nail marks on the back 
 of defendant's wrist. The defendant's answer was, "No. 
 He wanted to look at my wrist and examined my wrist, 
 and then he shook his head. ' ' Now, if Schwitof sky had 
 been really guilty he could not have failed to know that 
 his wrist had been scratched. If he were the man whom 
 Harold stopped and if the scars had been wholly obliter- 
 ated by healing (an event medically impossible) he would 
 at least have made capital out of the fact and would have 
 dwelt on the examination by Harold of the back of his 
 ivrist. 
 
 But if (as is the contention) Schwitof sky was inno- 
 cent then the only answer he could give was that quoted 
 above. Nothing had been brought out in evidence about 
 Harold's reason for examining his wrist and the fact
 
 48 TWENTY YEAES IX STATE'S PRISON 
 
 that Harold had scratched his wrist did not transpire to 
 the knowledge of Schwitof sky 's friends until months 
 later. 
 
 Later on the foreman of the jury asked permission to 
 see defendant's wrist and then the rest of the jury exam- 
 ined it. They saw that there were well-defined scars of 
 old cuts on the inner surface of the wrist. No one had 
 informed them that there should also at least be the 
 scars of new finger-nail scratches on the outer surface or 
 back of the wrist. When the prisoner finally grasped the 
 significance possibly attached by the jury to the scars 
 and wished to explain how he came by those scars, the 
 Court refused to hear him, as it was then too late. Who 
 shall doubt (nay, the writer has had practically an ad- 
 mission from one of the jurors to that effect) that the 
 jury were convinced that Harold identified him by the 
 old scars of the attempted suicidal deed of 1908, and that 
 his reason for examining the wrists was to see whether 
 the arrested man had these old scars. 
 
 As we know, Harold examined the man's wrist to look 
 for the scars of his own finger nails on the back of his 
 hand; that the old scars which are on Schwitofsky's wrist 
 were not what he looked for, but and this is a very im- 
 portant point the Jury believed that they were the marks 
 by which Harold identified him. As Harold was not there 
 to disabuse their minds, as the prisoner was not per- 
 mitted, when he realized the importance of the point, to 
 explain in self-defense and as his counsel were too negli- 
 gent, or ignorant of the facts, to explain the matter, the 
 identification by the witnesses for the prosecution was 
 strengthened in the minds of the jury by the feeling 
 that the scars on Schwitofsky's wrist were the scars for 
 which Harold looked. Thus Judge 'Sullivan's state- 
 ment that certain scars on his wrist were relied upon to 
 a material extent to prove the identity of the offender 
 was not the fact. What appellant was trying to prove
 
 TWENTY YEARS IX STATE'S PEISOX 49 
 
 with respect to the scars was that the absence of finger- 
 nail scratches on his hand absolutely proved that he could 
 not be the offender. 
 
 THE JURY S FINDING. 
 
 The Jury found Schwitofsky guilty as indicted, of 
 burglary in the second degree and felonious assault in 
 the first degree. Section 403 of the Penal Law of New 
 York State thus defines * ' burglary in the second degree ' ' : 
 
 "A person who, with intent to commit some crime 
 therein, breaks and enters the dwelling house of another, 
 in which there is a human being, under circumstances 
 not amounting to burglary in the first degree, is guilty of 
 burglary in the second degree." 
 
 The essential quality of the act of burglary in the 
 second degree is, we see, the intent to commit a crime. 
 In this case the indictment charges Schwitofsky with the 
 intention of " burglariously and feloniously stealing the 
 goods, chattels and personal property of the said Theo- 
 dore B. Dale." Throughout the trial the prosecution 
 made not the slightest attempt to prove intent. It was 
 not alleged that the defendant was in any position, or 
 made any attempt, to steal, or that there was anything 
 stolen. The jury apparently was allowed to infer from 
 the fact that the man was in the house, and from the 
 fact that when the occupants tried to detain him he flour- 
 ished a revolver, that there was intent to commit a crime. 
 But since the crime which the prosecution alleges he in- 
 tended to commit was that of theft and not of assault, 
 there is surely at this point a strong reason for describing 
 the prosecution as having absolutely failed to prove 
 burglary in the second degree. The man who went into 
 Dale's house that morning went in, not to steal, but to 
 collect a debt. Whether the demand for the $100 alleged 
 to be due to Gelsky was blackmail or simply debt-collec-
 
 50 TWENTY YEARS IN STATE'S PRISON 
 
 ting would depend upon the view taken by the jury of 
 the value of Gelsky's evidence had he been placed in the 
 witness chair. That the District Attorney was aware of 
 the connection between the two cases it would be an insult 
 to his intelligence to doubt ; that the judge was, or should 
 have been, aware of it, is proven by the fact of his re- 
 ceiving a warning letter from the Jewish Chaplain which 
 letter was not retained by him as a private communica- 
 tion but was, at his direction, attached to the papers in 
 the case. The writer is no lawyer, but the essential 
 element of intent was in his opinion neither entered 
 upon, nor proven. What does the average reader think? 
 But if the jury were, from a legal point of view, justified 
 in considering that the fact of entering implied the intent 
 (and there are cases which might be quoted to show that 
 the law does not permit this) what will be said with 
 respect to the second count in the indictment of which 
 the accused was found guilty? 
 
 Assault in the first degree is thus defined in Section 
 240 of the Penal Law : 
 
 "A person who, with intent to kill a human being, or 
 to commit a felony upon the person or property of the 
 one assaulted, or of another, 
 
 1. Assaults another with a loaded fire arm or any 
 other deadly weapon, or by any other means or force 
 likely to produce death; or 
 
 2. Administers to, or causes to be administered to or 
 taken by another, poison or any other destructive or nox- 
 ious thing so as to endanger the life of such other, 
 
 Is guilty of assault in the first degree. ' ' 
 
 This definition is perfectly clear. An attempt was 
 made to show that the revolver which the pretended tele- 
 phone repair-man flourished was loaded, and in the fol- 
 lowing manner. While Dale, the complaining witness, 
 was giving the evidence, during the course of the direct
 
 TWENTY YEARS IN STATE'S PRISON 51 
 
 examination, the Court asked, "Did you see the revol- 
 ver ? " To which the witness answered, * ' Yes sir. ' ' The 
 next question was, "How near were you to him at the 
 time?" and the answer was, "The width of the door, 
 about three feet." To the question, "Do you know 
 whether or not it was loaded at the time?" witness ans- 
 wered, "I saw cartridges in it," and to the next question, 
 "When," the answer was, "At the time he pointed it at 
 me." The fact that Dale swore that there were cartridges 
 in the revolver when it was pointed at him was the sole 
 evidence which the prosecution relied upon to prove 
 the necessary element for felonious assault in the first 
 degree, that is, that it was "a loaded fire arm." It did 
 not occur to the Court to ascertain whether the cartridges 
 had not been fired off, or whether they were not blank 
 cartridges. 
 
 Now, there is entirely convincing and irrefragable 
 proof, as shown in the affidavits of the chauffeur, Harold, 
 and the detective, Cousin, that the revolver that was on 
 that day wrested from the fugitive had two blank car- 
 tridges, while the rest of the chambers were empty. Will 
 it be maintained that a weapon so void of offensive power 
 can be described as 'a loaded firearm or other deadly 
 weapon?' It is the usual practice in the courts, when 
 ever a weapon has been flourished or used in a case of 
 assault, to produce that weapon and make it one of the 
 'People's Exhibits.' As far as can be ascertained, 
 the revolver taken from the fugitive on January 19, 1911, 
 has never left the custody of the property clerk at police 
 headquarters from that day to this. If there be grounds 
 for difference of opinion on the question of whether the 
 jury was, or was not, justified in finding the accused guilty 
 of burglary in the second degree, there are no conceivable 
 grounds which would justify the jury in denying the con- 
 tention that since the pistol was ?mloaded and was not 
 a lethal weapon, therefore the intent to kill a human being
 
 52 TWENTY YEAES IN STATE'S PBISON 
 
 (which is the first essential to assault in the first degree) 
 or the intent to commit a felony upon the person or 
 property of the one assaulted, was ENTIRELY ABSENT. No 
 one holding an empty revolver across a room at a person 
 can be accused, certainly cannot be convicted, of an at- 
 tempt to kill that person, and since, according to all the 
 evidence, the object of flourishing the empty revolver 
 was to enable the offender to secure egress, there was no 
 attempt to commit a felony upon person or property. 
 
 DALE IN A THIRD CASE. 
 
 On the 16th of December, 1912, Theodore B. Dale met 
 Jack Young, a young fellow aged seventeen, who describes 
 himself as an actor, in a subway car near the 110th Street 
 Station. Dale accosted him, and eliciting that Young was 
 out of employment, invited him to accompany him to his 
 home, promising to secure employment for him. Young 
 accepted the invitation, and when they reached Dale's 
 home in West 116th Street Dale attempted to commit an 
 act on him of a similar nature to that described by Gelsky 
 as having taken place in January, 1911. Young resisted 
 stoutly, and there ensued a struggle in which a colored 
 housekeeper of Dale's took part. The noise attracted 
 the attention of Officer William J. Koop who, hearing 
 Young's story, arrested Dale. On the 17th Magistrate 
 Murphy held Dale in $500 bail on a charge of ' * soliciting. ' ' 
 The charge was apparently a compromise between the 
 magistrate's desire to have Dale held for trial by Special 
 Sessions and the fact that, under the circumstances, it 
 was difficult to find a section of the Penal Code under 
 which Dale could be charged with anything more than 
 'disorderly conduct,' or some such comparatively trivial 
 offense. On January 24th Dale, who was out on bail, was 
 presented at Special Sessions and pleaded not guilty, and 
 the case was remanded for one week. On the 31st of Jan-
 
 53 
 
 nary, when the case was called, Dale did not put in an 
 appearance. Affidavits were submitted showing that he 
 had absconded from this city. His bail was forfeited. 
 
 After a few weeks' absence Dale returned to the city. 
 It is alleged that he first came back to Chicago, there told 
 his story to a firm of lawyers, and was by them counselled 
 to return and plead. He surrendered himself before the 
 Court of Special Sessions on February 28, 1913, pleaded 
 guilty to the charge, and was remanded for a week. It 
 was during the currency of this week that he came under 
 the notice of the Jewish chaplain of the Tombs, and was 
 recognized as the complaining witness in the Schwitofsky 
 case. On March llth new counsel appeared for him, 
 and an affidavit was submitted that Dale's previous plea 
 of guilty had been entered while Dale was in an extremely 
 nervous and excited condition, and, other reasons being 
 shown for that course, his plea of guilty was, by permis- 
 sion of Court, withdrawn. He pleaded not guilty, and 
 was held in $1,000 bail for trial, the date being fixed, ac- 
 cording to the usual practice of Special Sessions, for that 
 day week. On the 18th of March when his case was called, 
 he was again absent. His bond was again forfeited, and 
 next day he was found dead in his home at 126th Street, 
 having committed suicide by inhaling gas. 
 
 During this period in March a great deal of informa- 
 tion about Dale, of a very striking and important nature, 
 reached the ears of the writer. The information, coming 
 from official sources but being given unofficially, could not 
 be made the subject of affidavits. One unfortunate result 
 of Dale 's suicide is that the report of the Probation Officer 
 of Special Sessions Court, the result of his investiga- 
 tions in the beginning of March before the withdrawal of 
 Dale's plea of guilty was not presented to the Court and 
 therefore not available to the general public. But there 
 is very sufficient reason for believing that when the time 
 comes, and when, with proper authority, this report is
 
 54 TWENTY YEARS IN STATE'S PRISON 
 
 published, it will cast strong light upon the character of 
 Dale, and especially on his attitude in the Schwitofsky 
 case. It may be asked: Why did Dale abscond in Jan- 
 uary, 1913? Why did he return in February? Why did 
 he first plead guilty, and then withdraw his plea? And 
 finally, why did he commit suicide? The answers to all 
 these questions will be very instructive, but can only be 
 put, at this stage, in a conjectural form. Dale fled in the 
 first instance because his past, he knew, would not bear 
 investigation, and because he had been caught this time 
 under such conditions that there seemed to be very little 
 chance of his escaping punishment, or at least, exposure. 
 It is said that he had important business interests in 
 New York, which accounts for his return. It is rumored 
 that he spent money lavishly for legal advice, and it is 
 alleged that thousands of dollars went into the hands of 
 various firms of lawyers before he surrendered himself 
 in February. When he did so he pleaded guilty, probably 
 not knowing of the Court's practice of investigation when 
 such pleas are entered. An authoritative statement has 
 been made that when the investigating officer interrogated 
 him about his past, he tendered the sum of $1,000 in notes 
 through the bars of his cell, to secure the promise of a 
 favorable report and the suppression of unfavorable 
 facts. The bribe being refused, and learning from the 
 lawyers that the charge of 'soliciting' could not legally 
 be maintained against him, he, on the advice of counsel, 
 withdrew his plea and substituted one of not guilty. Dur- 
 ing the week which intervened between the new plea 
 and the trial, he is described as having been in a 
 state of excitement and hysteria almost amounting ta 
 mania. He alternated between expressions of abject 
 dread as to the results of cross-examination if he 
 stood trial, and of defiance of those whom he considered 
 his enemies (chief among them being, in his opinion, the 
 writer) and demanding that he be confronted with his-
 
 TWENTY YEARS IN STATE'S PRISON 55 
 
 persecutors. The end came by suicide, really through 
 dread of exposure of his perjury in the Schwitofsky case, 
 if certain statements quoted as having been made by him 
 are reliable and they come from a source which seems 
 beyond suspicion. 
 
 It will be seen that while Dale might be very close 
 and keen in business matters, for he seems to have borne 
 the reputation of being a sharp business man, wherever 
 his weakness of moral character and infamous practices 
 were touched he was quite prepared to spend money 
 lavishly. It must be asked if this characteristic did not 
 probably display itself throughout his career, and 
 whether it may not have some bearing upon the ex- 
 traordinary and suspicious points surrounding the arrest 
 and trial of Schwitofsky? 
 
 THE DISTBICT ATTOBNEY INTEBVIEWED. 
 
 When the writer first discovered Dale in the cell in 
 the Tombs early in March, 1913, the appeal in Schwitof- 
 sky 's case to the Appellate Division was on the point of 
 being made. The fact of Dale 's having been arrested and 
 having confessed his guilt in the charge made by Young 
 had a very important bearing on the Schwitofsky case, 
 as tending to show the extreme probability of the truth of 
 Gel sky's charge two years before. The information was 
 at once placed before Messrs Untermyer and Gallatin, 
 the eminent counsel who were acting for Schwitofsky. 
 Those gentlemen said that the lapse of time made it im- 
 possible to bring this important fact within the purview 
 of the Appellate Court. In vain the writer repeated the 
 plea of poor Bassanio : 
 
 " I beseech you, 
 
 Wrest once the law to your authority : 
 To do a great right do a little wrong."
 
 56 TWENTY YEARS IN STATE'S PRISON 
 
 The honorable counsel replied, as did Portia, 
 
 "It may not be, 
 There is no power in Venice, ' ' 
 
 or words to the same effect. 
 
 Accompanied by Mr. Frank Marshall White, the jour- 
 nalist whose work in the Schwitof sky case was of such su- 
 preme importance, and Mr. Eddy of the New York World, 
 the writer called upon the Honorable Charles F. Whitman, 
 the District Attorney of New York County, at his office, 
 informed him of the latest developments in the case, and 
 begged him to take advantage of the presence of Dale in 
 the Tombs to re-investigate the case of Schwitofsky. Mr. 
 Whitman was very courteous in manner and expressed 
 his desire to all in his power but when entreated to 
 take charge of the case himself he expressed his regret 
 that he was too much occupied. He tendered the services 
 of his chief assistant, who whenever he is absent is Acting 
 District Attorney, Mr. Wasservogel. 
 
 Mr. Wasservogel was visited the next day, and when 
 the writer said, "I must ask you now to let me tell you 
 briefly the salient facts in the case of Alfred Schwitof- 
 sky," he was interrupted by Mr. Wasservogel with the 
 statement, ' ' Oh, I know all about that case ; indeed, there 
 is not a man in the District Attorney's office who doesn't 
 know the whole case." Unless Mr. Wasservogel con- 
 sidered Mr. Whitman more, or less, than a man, it seems 
 permissible to conclude from this statement that Mr. 
 Whitman personally knew all about the Schwitofsky Case. 
 Thus the blame for the extraordinary miscarriage of 
 justice in the case of Schwitofsky must rest on Mr. Whit- 
 man's shoulders. McCormick's responsibility must now 
 be passed on to him.
 
 TWENTY YEAES IN STATE'S PRISON 57 
 
 WHAT REMAINS TO BE DONE. 
 
 When discussing this case with various citizens of 
 greater or lesser eminence, for the writer has striven to 
 secure support in every possible direction, more than 
 once the suggestion has been made that the facts be placed 
 before the Governor and an appeal be made for Executive 
 Clemency, to which the writer has always replied: "If 
 the man is guilty, as charged, and if the conviction was 
 just, then there is no reason why the Governor should in- 
 tervene. If the conviction was mistaken and the man is 
 innocent, then a pardon does not meet the necessities of 
 the case." Said one eminent lawyer, "Are you not, in 
 the final analysis, really playing with the poor fellow's 
 liberty?" To which the writer, a clergyman, made the 
 reply, "Now, God do so unto me and more also, if I rest, 
 or cease agitating, while there is a chance of getting jus- 
 tice, and not mercy, for the poor wretch." 
 
 Obviously, the easiest way out of the difficulty would 
 be to ask for a pardon, and very possibly there would not 
 be much trouble in securing one. But Schwitof sky's fate 
 has now become of minor importance in the problem in- 
 volved. If Schwitofsky be innocent we have the case of 
 an unfortunate sentenced by a Court of this County to 
 twenty years imprisonment, under conditions which are an 
 arraignment of our whole legal system. The following 
 questions, always assuming the absolute innocence of 
 Schwitofsky, must be asked : 
 
 Why was this man arrested? 
 
 What led to his selection as the culprit? 
 
 Why did the Police suppress the fact that an unloaded 
 pistol might be made an exhibit in the case? 
 
 Why were the charges against this innocent man made 
 to grow in gravity as time passed?
 
 58 TWENTY YEAES IX STATE'S PBISON 
 
 Why was the case tried in so slovenly a manner? 
 Why was it defended in so unsatisfactory a manner? 
 
 Why did not the District Attorney's Office produce the 
 pistol in the Court? 
 
 Why was not Harold called to testify as to what it was 
 he was looking for when he examined the wrists of 
 Schwitofsky? 
 
 Why was not Cousin called to testify to the condition 
 of the supposed lethal weapon when it was passed to his 
 care? 
 
 There are a half score similar questions which will 
 suggest themselves to the intelligent reader, all of which 
 must be satisfactorily answered before the people of the 
 City of New York can be assured that a recurrence of con- 
 viction of innocent people has, so far as is humanly pos- 
 sible, been provided against in our Courts. 
 
 No, it is quite clear that we should not be doing our 
 duty if we contented ourselves with a pardon. There 
 must be some legal method of re-trying the whole case, 
 which will permit these points to be thoroughly investi 
 gated. There still remains recourse to the Court of Ap- 
 peals in Albany, but it would seem that such action would 
 not permit investigation of all the dubious, suspicious 
 and alarming features of the case. The Court of Appeals 
 would probably reverse the decision so far as the convic- 
 tion on the second count is concerned it is absolutely 
 inconceivable that there should be any difficulty on that 
 point. But lawyers are of the opinion that, under the 
 present circumstances, nothing would be done by the 
 Court of Appeals to touch the conviction on the first 
 count in the indictment. 
 
 THE CASE OF BRAND. 
 
 The famous case of Foulke Brand has, singularly 
 enough, a remarkable bearing on the present one. The
 
 TWENTY YEAES IN STATE'S PKISON 59 
 
 facts in the Schwitofsky case have been submitted to every 
 prominent newspaper and magazine published in this 
 city, and the contribution has been uniformly declined, 
 sometimes without any reason being given ; sometimes the 
 reason being stated. Prominent conductors of newspapers 
 have told the present writer that they could not touch 
 the case in view of the blunder that had been made in the 
 Brand Case. Now the investigation in the Schwitofsky 
 matter was being carried on long before the re-opening 
 of the Brand case was mooted. The publicity and ex- 
 citement connected with the Brand case made it inexpe- 
 dient, in the opinion of Schwitof sky's supporters, to move 
 in his case until that excitement had died away. The 
 District Attorney who played so prominent and so disas- 
 trous a part in the Brand case, may possibly have con- 
 sidered himself excused from taking a prominent part in 
 the Schwitofsky case, on the principle involved in the old 
 adage that "the burnt child dreads the fire." Thus the 
 sin of omission, in the failure to put the whole evidence 
 before the jury in the Schwitofsky case was committed by 
 the District Attorney, and the sin of commission in the 
 mortifying blunder committed in the Brand case was 
 committed by the same person. 
 
 But the Brand case has given us a clue to the means 
 by which the desired investigation can be made. What 
 Schwitof sky's supporters now hope for is that the Gov- 
 ernor of this State may be induced to appoint, a Legal 
 Commission, with full power to re-investigate and exam- 
 ine everybody involved in the Schwitofsky case, similar 
 to that which Governor Dix appointed in the Brand case* 
 No other means will be effective to give the New York 
 public a sense of security and a well-founded faith that 
 there is extreme unlikelihood of any innocent man being 
 again sentenced to twenty years imprisonment through 
 blundering, malice, or perjury all three factors having 
 unquestionably been in operation in Schwitof sky's case.
 
 60 TWENTY YEARS IN STATE'S PRISON 
 
 A JUDICIAL, COMMISSION that is what is asked for, and 
 assuredly is what should be granted in the interests of 
 Justice; and for the punishment of the evil-doers (if 
 there be any) in this case; and as a safeguard to the 
 public against any repetition of this deplorable legal 
 blunder. 
 
 WEAKNESSES OF OUR SYSTEM. 
 
 i. "ASSIGNED" COUNSEL. 
 
 That the Schwitofsky Case, moreover, displays dan- 
 gerous weakness in our methods of dealing with accused 
 persons cannot be denied. The particular weaknesses 
 now to be referred to are such as can only be remedied by 
 legislative action. Why should a poverty-stricken wretch 
 not be in a position to have a just and equitable trial and 
 a proper defense ? Mr. Samuel Untermyer, who did such 
 fine work in trying to secure justice for Schwitofsky be- 
 fore the courts, had three years before he heard of the 
 Schwitofsky case directed public attention to a great evil 
 in our administration of criminal law. In an address 
 before the American Academy of Political and Social 
 Science at Philadelphia, on April 9, 1910, Mr. Untermyer 
 had this to say: 
 
 "This brings me to the next suggestion I have to offer which is that 
 there should be an office established as part of the machinery of the 
 criminal law to be known as that of the Public Defender. 
 
 "Unjust convictions among the poor and helpless and especially 
 among our ignorant foreign population are far more frequent than 
 we fortunates care to admit. This is especially true in the great cities 
 where the courts are crowded with business, the pressure is great and 
 justice is necessarily hurriedly administered in obscure cases. 
 
 "The most prolific abuses occur in what are known as 'assigned' 
 causes in which the defendants and their families and friends are too 
 poor to furnish bail or employ counsel. In those cases the Court as- 
 signs counsel who serve without pay except that in some states a mod- 
 erate fee is allowed in capital cases only. The counsel assigned in 
 these cases are with rare exceptions almost necessarily young and inex- 
 perienced men or lawyers without standing or ability.
 
 TWENTY YEARS IN STATE'S PRISON 61 
 
 "Yet these are the cases above all others in which the defendants 
 are already at the greatest disadvantage being incarcerated, unable 
 to go about to look up witnesses and too poor to employ anyone to do 
 so for them. If they are first offenders of previous good reputation, as 
 they generally are (for experience has shown that professional crimi- 
 nals are generally able to secure counsel), their prison experience has 
 taken the courage out of them by the time they are placed on trial. 
 
 "They come to the bar of justice crushed in spirit, and if inno- 
 cent, in mortal terror of the law and resigned to any fate. Their 
 assigned counsel whose retained clients are his chief concern easily 
 convinces himself that he has done his duty to his pauper client if 
 che prosecutor will accept a plea of guilty to a lesser form of crime 
 or be content to recommend a moderate sentence. And so before the 
 poor fellow knows what has happened to him he has consented on less 
 notice and in less time than it requires to tell the story, to take the 
 advice hurriedly given him as he stands quivering at the bar and so he 
 finds himself on the way to prison. There is hardly a day in the 
 year when this scene is not enacted in the Courts of our great cities. 
 That such a system results in innocent men being branded and pun- 
 ished as criminals admits of no doubt. That the number of such crimes 
 against justice and humanity is very much underestimated is beyond 
 question to anyone who has observed the system in operation. The 
 judges do what they can to minimize the evil but from the nature of 
 the case they must rely on counsel. 
 
 "What then is the remedy? 
 
 "The State has its Public Prosecutor. Why not its Public De- 
 fender to care for those who are unable to defend themselves? It is 
 quite as much to the interest of the State to rescue the innocent as 
 to punish the guilty. There is no danger of the privilege being abused. 
 Every man who can afford to defend himself will exhaust every re- 
 source to select a champion of his own choice. The most helpless 
 and unfortunate of all our citizens should not to be forced to go virtually 
 undefended. 
 
 "Nowhere in our social fabric is the discrimination between the 
 rich and poor so emphasized to the average citizen as at the bar of 
 justice. Nowhere should it be less. In an ideal state of government 
 the lines would be made to disappear here of all places. Money secures 
 the ablest and most adroit Counsel whose characters and reputations 
 are powerful factors in their client's cause. Evidence can be gathered 
 from every source and all the legitimate expedients of the law availed 
 of. The poor must be content to forego all these advantages but surely 
 the State should not take an unfair advantage of his helplessness" 
 
 It would be idle for me to add one word to the forcible 
 and just statement of this eminent man, except to say that 
 where Mr. Untermyer speaks of innocent men being
 
 62 
 
 branded and punished as criminals, he is stating not mere- 
 ly a presumption, but a fact. The present writer can recall 
 a number of such cases as having come under his notice. 
 Out of this number, some stand out in his memory very 
 clearly. In one case the victim had actually been sen- 
 tenced to five years in Sing Sing, when the present writer 
 intervened and made strong representations to the Judge, 
 who being a humane, good-hearted and reasonable man 
 besides being a judge, consented to grant the necessary 
 'stay of commitment' to jail after the sentence, and 
 thus enabled the writer to produce as the result of a 
 cable inquiry made in Europe satisfactory evidence of 
 a miscarriage of justice. Acting on Ms own initiative, as 
 soon as this evidence was placed before him, the judge 
 spoken of directed a new trial on the ground of newly 
 discovered evidence, and within half an hour of the open- 
 ing of court the fortunate victim of the error was free. 
 
 In another case a man, a foreigner with but slight 
 knowledge of English, who had committed no crime known 
 to our Code, had been recorded as having pleaded guilty 
 to a felony, and stood in danger of a sentence of two 
 years' imprisonment in the State prison. The writer 
 represented to the Judge in this case that the accused de- 
 clared he had not intended to plead guilty and had not 
 pleaded guilty, that the record of a plea of guilty was an 
 error caused either by his misunderstanding what was 
 asked him, or by the court officers having misunderstood 
 what he had replied. Moreover, a hurried investigation 
 had shown that no crime had been committed. In this 
 case the Judge, one of the most humane and upright men 
 on the bench, at once ordered that the plea of guilty be 
 withdrawn, and that the man be placed for trial within a 
 few days. The trial took about an hour and a half; the 
 jury retired for ten minutes and brought in a verdict of 
 acquittal. These two, among a number of cases of which 
 the writer has knowledge, are quoted for the reason that
 
 TWENTY YEAES IN STATE'S PKISON 63 
 
 rectification of the first error occurred under the regime 
 of District Attorney Jerome, and had no unpleasant 
 result on the relations between the writer and the District 
 Attorney's Office at that time. The course taken in the 
 second case, occurring under Mr. Whitman's reign, en- 
 countered violent opposition from the District Attorney's 
 Office, and formal charge is said to have been made by 
 Whitman himself that the writer had been bribed to inter- 
 vene and had interfered unjustifiably with the due course 
 of justice ! 
 
 Whether the remedy suggested by Mr. Untermyer is 
 practicable is a question that is debatable. The writer 
 has always favored the course of engaging well-qualified 
 counsel by an annual retaining fee paid by the various 
 organizations, Jewish, Protestant, Catholic and Colored, 
 which maintain agents to work among prisoners of their 
 special religions or races. The obvious objection to 
 the proposal of a State Defender that a great deal of 
 waste of the State's or City's time and money might be 
 brought about by applications from defendants who are 
 unquestionably guilty could be overcome in the alterna- 
 tive proposal by the fact that counsel engaged by private 
 benevolence would only intervene in cases where previous 
 investigation by benevolent workers had shown that there 
 were grounds which justified, that intervention. But 
 whatever may be the differences of opinion on this point, 
 no worker in the prisons or courts can have failed to be 
 haunted by a sense of injustice unwittingly done in num- 
 bers of cases and not merely in cases where there is 
 absence of guilt, but in cases where the degree of guilt 
 does not justify the severity of the sentence imposed.
 
 64 TWENTY YEARS IN STATE'S PRISON 
 
 WEAKNESSES OF OUR SYSTEM. 
 IT. "SECOND OFFENSES." 
 
 Another instance where legislative enactment is neces- 
 sary to correct a grievous wrong done with the approval 
 of the Statute Book is in our present positively infamous 
 practice in cases of "second offense." Section 1940 of 
 our Penal Law provides that a person who has been pre- 
 viously convicted within this State of a misdemeanor, and 
 who is afterwards convicted of a felony, must be sen- 
 tenced to imprisonment for the longest term prescribed 
 upon conviction for the felony. The following section 
 provides that a person, who after having been convicted 
 within this State of a felony, commits any crime within 
 this State, is punishable upon conviction of the second 
 offense, by a term not less than the longest term, nor 
 more than twice the longest term prescribed upon a first 
 conviction. 
 
 This is not the place to enter into an exposition of the 
 absolutely preposterous and brutal nature of these pro- 
 visions. Fortunately, the very unreasonableness of their 
 severity acts as a deterrent against their application, for 
 if they were applied uniformly and impartially our 
 prisons would be filled with men committed for not less 
 than ten years and often for the period of their whole 
 lives. Aside from the question of the capricious nature 
 of the application of these Sections, there is the grave ob- 
 jection that the practice has arisen, when a person is 
 indicted for the commission of a second offense, of re- 
 citing in the indictment all particulars of previous of- 
 fenses and, at the trial, before the prosecution closes its 
 case, of adducing evidence to the effect that the person 
 has previously been convicted. This, in spite of all the 
 warnings of counsel for the defense, or of the Court, in- 
 evitably sets up a presumption of guilt in the minds of
 
 TWENTY YEARS IN STATE'S PRISON 65 
 
 the jury, which must have a most deplorable effect on 
 their verdict. Who, possessing any knowledge of human 
 nature, will, on reading the 'People's Story' in the 
 Schwitofsky Case, fail to perceive that before the jury 
 had heard the defense a presumption of the guilt of 
 Schwitofsky had already been set up, which presumption 
 had a most prejudicial result on the jury's mental attitude, 
 towards his loud protestations of his innocence? Where 
 the man was in reality most truthful and should have 
 been most convincing, he was regarded, in all probability, 
 as being most crafty and most unreliable. 
 
 During the last session of our State Legislature a 
 bill partially, but only partially, remedying this was in- 
 troduced and was passed by the Assembly, but it was 
 among the many "slaughtered innocents" foully done 
 to death by the Senate during the last days of its session, 
 when the important question of the whitewashing of 
 former Senator Stillwell was occupying the attention of 
 that august body to the exclusion of all other subjects of 
 deliberation. 
 
 That the average citizen is indisposed to grant justice 
 to a man who has previously been proven to have done 
 wrong is a matter of common experience. Time after 
 time when the writer has stated the facts in Schwitofsky 's 
 case to decent citizens of fully average intelligence and 
 humanity, he has met with the reply, "Oh well, the 
 fellow's an old convict; I suppose no great harm has been 
 done!" This feeling is wide-spread, and perhaps is the 
 natural first impulse in the mind of an honest man. But 
 let it be stated here that the very foundation of our social 
 system, and our freedom as self-governing persons are 
 more seriously jeopardized by this attitude on the part of 
 the general public than ever they were by the action of 
 foreign tyrants. The late Mayor Gaynor on one occasion 
 made one of his shrewd and illuminating hits by pointing 
 out this danger.
 
 66 TWENTY YEARS IN STATE'S PRISON 
 
 We have, let us say, some two hundred plain-clothes 
 men in our police department, to whom is entrusted the 
 important duty of hunting down and arresting offenders 
 against person and property who have escaped the hands 
 or notice of the uniformed police force. Eecent revela- 
 tions must have convinced us that in New York, as in 
 London, Paris, Berlin and elsewhere, there is an ever- 
 present danger of a combination for evil between detec- 
 tives and criminals between the wolves and the watch- 
 dogs. 
 
 There are perhaps twenty-thousand discharged or par- 
 oled convicts at this moment in New York. If it be made 
 an easy matter for a rogue in uniform to convict a pre- 
 vious offender of the commission of further crimes (of 
 which he is in reality innocent) because public sentiment 
 and legislative enactment do not demand the convincing 
 evidence, nor insist upon the just safeguards that are re- 
 quired in the case of a first offender then the result will 
 be threateningly dangerous to the community. 
 
 A few plain-clothes men could hold in terror an army 
 of twenty thousand slaves and force obedience to their 
 every behest under pain of imprisonment, on an easily 
 trumped-up charge, for twenty years or for life. Pov- 
 erty-stricken and friendless, with no defense worthy of 
 the name, no consideration on the part of district at- 
 torney, judge or jury, the hapless wretch would have as 
 much chance of escaping the toils as had Schwitofsky. 
 
 There has recently occurred a well-known case in 
 which it was shown to the satisfaction of a jury, that a 
 highly-placed police officer simply directed that certain 
 former convicts remove an obnoxious person from his 
 path. He had it in his power, if these, or any others des- 
 ignated, refused to obey, to punish them with a severity 
 which not even the old Lettres de Cachet of the times 
 preceding the French Eevolution could surpass. 
 
 Very little reflection is needed to convince the thought-
 
 TWENTY YEARS IN STATE'S PRISON 67 
 
 ful citizen that not only it is proper that the man who has 
 committed a crime and has been punished for it should 
 receive every protection and encouragement to avoid do- 
 ing ill and continue doing well, on the grounds of religion 
 and humanity, but that any opposite attitude on the part 
 of the general public menaces the very existence of our 
 social organization. 
 
 Instances of mistaken identity leading to condemna- 
 tion to death are not unknown. The well-known case of 
 Adolph Beck, of London, where the man was with diffi- 
 culty saved from the gallows and where it was shown 
 that the identification was utterly mistaken, must still 
 be within the reader's recollection. Last year Sir Arthur 
 Conan Doyle, the famous writer, published "The Case of 
 Oscar Slater" who in May, 1909, was sentenced to death 
 in the High Court at Edinburgh, and who, as Doyle 
 shows, is the victim in a case of mistaken identity. He 
 is still in jail in Scotland, four years having elapsed since 
 the Secretary of State for Scotland commuted the capital 
 sentence to that of imprisonment for life. 
 
 In the course of his statement in defense of Oscar 
 Slater Sir Arthur Conan Doyle tells us that Slater was a 
 gambler, a "follower of the races" by profession; and 
 that he had been living in Glasgow with a woman who 
 was not his wife. For these two reasons Doyle very 
 justly contends that "Oscar Slater was a blackguard " 
 a characterization severe, but not to be refuted. Then 
 Sir Arthur makes the following curious observation : 
 
 "One cannot feel the same burning sense of injustice 
 over the matter. And yet I trust for the sake of our 
 character, not only for justice, but for intelligence, that 
 the judgment may in some way be reconsidered, and the 
 man's present punishment allowed to atone for those 
 irregularities of life which helped to make his convic- 
 tion possible." 
 
 The writer is a great admirer of Conan Doyle and re-
 
 68 TWENTY YEAES IN STATE'S PEISON 
 
 gards him as one of the leading English litterateurs of 
 our day, but with all due respect to that eminent gentle- 
 man, it may be fairly said that no more mischievous doc- 
 trine was ever uttered. Slater is innocent of the crime of 
 which he was convicted, was put in jeopardy of his life, 
 and has been suffering for four years imprisonment for 
 a crime which he did not commit. His life previously 
 was irregular, but the fact that he was a book-maker and 
 gambler does not constitute him a criminal under the 
 English law, nor does the fact that he was living in mere- 
 tricious relations with a woman not his wife constitute 
 a felony under the English law. If these two irregular- 
 ities were proven against him in an English court of law, 
 no imprisonment could be inflicted by way of punishment. 
 Sir Arthur, not apparently realizing the prevalence and 
 unwisdom of the dangerous and threatening public senti- 
 ment that a man whose character is not good may be 
 punished for a crime of which he is innocent and may not 
 be entitled to pity, makes the plea, that his five years' 
 imprisonment may be regarded as atonement. Atone- 
 ment! For what? For the blunder of the Scotch court 
 of law? If the man be innocent, as Sir Arthur maintains 
 he is, and as seems probable, the irregularities of his 
 former life have no right to be considered. The injustice 
 done to him is just as great as if he previously led a 
 regular life, the danger to the community is much greater, 
 and the punishment to the victim much more severe. 
 
 A man of previously decent life condemned through a 
 judicial error to imprisonment is buoyed up by the knowl- 
 edge of his own worth and by the certitude of public sym- 
 pathy in amplest measure when his innocence is estab- 
 lished. But one whose life has not been spotless is 
 robbed by such an attitude as Sir A. Conan Doyle assumes 
 of even that remote consolation. 
 
 It behooves society to be just as careful of the liberty 
 and rights of an old offender as of those of one never
 
 TWENTY YEARS IN STATE'S PRISON 69 
 
 previously accused. That is the Moral Law. It be- 
 hooves Society, in self-protection, to see that the in- 
 justice of the unjust and the iniquity of the evil-doer be 
 not emulated by the defenders of society. That is very 
 good Social Law. 
 
 The sooner our present infamous method of dealing 
 with second offenders be abolished, the better for jus- 
 tice and righteousness, for the reformation of the wrong- 
 doer and for the protection of our whole fabric of civili- 
 sation. 
 
 WEAKNESSES OF OUE SYSTEM. 
 III. APPEAL TIME LIMIT. 
 
 Where is the justice or common-sense in denying a man 
 the opportunity of proving his innocence in a higher 
 court, and of appealing from the errors or lapses of the 
 trial court in cases where lack of means, neglect of coun- 
 sel, or absence of witnesses prevent him from being ready 
 to present his case within twelve months from the date 
 of sentence? Where is the equity or common human 
 justice in refusing to consider newly discovered evi- 
 dence if accident dictates that that evidence can only 
 be procurable in the thirteenth month after the date of 
 the sentence? 
 
 Even the most heedless observer will at once realise 
 that there exists a necessity for placing some term to the 
 period in which a case already adjudged may again trou- 
 ble the courts. That important element being fully rec- 
 ognized, it is arguable that twelve months is altogether 
 too short a period, and that the time limit in certain 
 classes of cases should remain unfixed. The right to 
 appeal in cases where the appeal depends on argument 
 of faulty legal methods or on considerations of differing 
 opinion as to the intent and force of an enactment may
 
 70 TWENTY YEAES IN STATE'S PEISON 
 
 justly be limited to twelve months. But so compara- 
 tively brief a term in cases where new and striking facts 
 which either by the neglect of counsel or through the 
 want of knowledge and necessary opportunity for secur- 
 ing evidence for the defense were not produced at the 
 trial, is a grievous injustice to the accused, especially 
 where the failure to produce the favorable evidence is 
 due to poverty. 
 
 The hardship inflicted by the rigid time limit is 
 specially oppressive in cases where perjury may be 
 proven as was the case with Schwitofsky. The later 
 facts with respect to Dale 's career only transpired about 
 eighteen months after the trial. Had it been possible to 
 place before the Trial Judge or the Appellate Division 
 the facts with respect to the charge of Jack Young against 
 Dale, the forfeiture of bail, the varying pleas and the 
 suicide of Dale, would it not have placed the appeal of 
 Schwitofsky on a different and stronger footing! It 
 may be suggested that the time-limit for appeal, which is 
 expedient and useful in certain classes of cases, should 
 not be applicable in that minority of cases in which the 
 grounds urged do not depend on legal points, but that 
 the Courts should be in a position to take cognizance of 
 newly discovered evidence without respect to any time 
 limit. 
 
 It has been pointed out to the writer that the pardoning 
 power is vested in the Governor's hands, for the very 
 purpose of meeting such cases. But where a man 's inno- 
 cence can be shown, a pardon does not meet the require- 
 ments of the case. A pardon does not rehabilitate a 
 man and it is a matter of current comment that it is 
 ludicrous to pardon a man for a crime that he never com- 
 mitted. It is quite conceivable, also, that there may arise 
 cases in which the new facts, which conclusively prove 
 the innocence of the accused, only see the light after the 
 sentence has been wholly served. Should not a citizen
 
 TWENTY YEAES IX STATE'S PRISON 71 
 
 so wronged have the right to such reparation as is 
 humanly possible at the hands of those who, with the best 
 intentions, of course, did him the wrong? In other 
 words, in such instances, only the Courts can set right the 
 wrong which the Courts committed.
 
 72 TWENTY YEARS IN STATE'S PRISON 
 
 Cbaplatn'0 Ston>. 
 
 He certainly was not an attractive-looking person as I 
 peered into his cell in the Annex of the Tombs Prison 
 (where people charged with misdemeanors are placed) 
 on that afternoon, in February, 1911. At first view I did 
 not take him for a Hebrew, but judged him to be a Slav, 
 and was passing on, when he accosted me. He asked if I 
 were the new Rabbi at the Tombs and expressed his pro- 
 found regret that my predecessor, who was a friend of his 
 and had formerly taken a great interest in him, was now 
 deceased. He said that his name was ALFKED SCHWITOF- 
 SKY, and that he was entirely innocent of any crime. The 
 charge against him was "Unlawful Entry," and all he 
 knew was that he had been taken out of bed at midnight a 
 few days before by a plain-clothes officer who told him 
 that he was accused of having unlawfully entered some 
 building. He had told the officer that he was unconscious 
 of any wrong-doing and that he was perfectly willing to 
 go with him at once and have the matter over, because he 
 was working and had to be on his job early the next morn- 
 ing. He was taken to a place in 45th Street by two plain- 
 clothes officers, one of whom remained on the floor below 
 with him while the second went upstairs. The second 
 man, returning, took him upstairs with him, leaving the 
 other officer below. He was shown into a room where sat a 
 man whom he had never seen before, and who, turning 
 up the gas jet looked at him and said, "No, I don't think 
 he is the man." The officer with him nodded meaningly 
 to the stranger, and the latter then said, "Well, let me 
 see his hands." The stranger examined his wrists and
 
 TWENTY YEARS IN STATE'S PRISON 73 
 
 said, ''Well, perhaps he is the man. I guess you had 
 better hold him." That was all he, Schwitofsky, know 
 of the matter. He had no friends and no means to em- 
 ploy counsel. 
 
 Asked why he thought he had been arrested, he replied 
 that he had been in the Penitentiary, and that since his 
 release he had been working steadily. He had recently 
 met a former inmate of the Penitentiary who had been 
 in the same workroom with him, and this man had asked 
 him what he was now doing. He had replied that he was 
 earning money in an honest way, and his former prison- 
 friend had pooh-poohed his honesty and pointed out how 
 easy it was to make as much in a night as he was earning 
 in a month. This man had spoken to him several times 
 and tried to induce him to go on a 'job' with him. He, 
 Schwitofsky, had complained about it to the plain-clothes 
 men, and they had suggested to him that he make a special 
 appointment with his prison acquaintance and let them 
 overhear the conversation. He had made appointments, 
 twice, but the other man was apparently suspicious and 
 had failed to keep either appointment. He now suspected 
 that his prison-acquaintance was a 'stool-pigeon' and that 
 the police, having failed to entrap him, were determined 
 to arrest him on a charge anyhow. 
 
 Schwitofsky 's story was one of a type that I frequently 
 listen to, and I paid very little attention to him or his 
 narrative. 
 
 When, however, I had completed my round for the 
 afternoon, I met Mr. John Hanley, the deputy warden of 
 the Tombs than whom I know no more efficient, kind- 
 ly or conscientious employe of the Department of Cor- 
 rection. Hanley said to me, "Doctor, did you see Ger- 
 ber?" I replied, "No, I haven't seen any man of that 
 name." He said, "He's in the Annex," and described 
 his personal appearance. I said, "I spoke with a man 
 of that description who said his name was Schwitofsky."
 
 74 TWENTY YEAES IX STATE'S PEISOX 
 
 "Well,' said Hanley, 'I believe he is known by that name 
 too." Hanley continued, "Now, Doctor, I never knew a 
 man in my life who tried so hard 'to make good' as this 
 one did. He attempted suicide in his cell about two or 
 three years ago, and was so nearly succeeding that it was 
 only by a miracle that his life was saved. He was sent 
 to Matteawan, and on being discharged from there, was 
 released on a suspended sentence. He used to come to 
 see me very frequently, just because he was grateful 
 and friendly to me. He would even come to me to show 
 me a new suit of clothes that he had purchased, and to 
 tell me with a look of joy on his face, that he was engaged 
 to be married. I should be very glad if you could do any- 
 thing to help him." 
 
 Now, I have the greatest regard for the opinion of 
 Mr. Hanley, and as a result of his statement I went into 
 the office of the chief clerk of Special Sessions, and there, 
 in the presence of one of the judges, whose name I now 
 forget, repeated the story Schwitofsky told me. I apolo- 
 gized for speaking about it before one of the judges who 
 might sit in trial on the man, but his Honor laughingly 
 said, "Well, consider me deaf or absent. Go ahead." 
 When I had briefly outlined the man's story I made the 
 request that good counsel should be assigned to him. A 
 memorandum was made of the name, and a promise was 
 made to me that his case would certainly receive careful 
 attention. 
 
 Next day I went into the Court to ascertain what had 
 happened in the case, and was informed that, at the re- 
 quest of the District Attorney's Office, Schwitofsky was 
 transferred to the Court of General Sessions. The next 
 time I saw Schwitofsky he was in the main building of the 
 Tombs, and he said that he was now charged with bur- 
 glary in the second degree, but he still maintained his 
 entire innocence of the transaction which led to the 
 charge.
 
 TWENTY YEARS IN STATE'S PEISON 75 
 
 On the same tier in the Tombs with him was a young 
 fellow named LEO GELSKY. Gelsky had told me a story 
 to which I had not listened with any great interest, as it 
 involved degenerate sexual practices. Later on I re- 
 ceived the following letter and confession from Gelsky, 
 which was practically the story he had told me orally, 
 in greater detail. 
 
 "Rev. Dr. Goldstein : Your sermon of February llth has made such 
 an impression on me that my conscience will not leave me in peace. 
 There has been a great wrong done an innocent man, and I'm the only 
 person who can explain. I was made a party to a 'Frame-up.' I will 
 tell you. Dr. Goldstein, as my spiritual adviser, the true case. 
 
 "The beginning of January, 1911, while I was in a 'penny arcade' on 
 Fourteenth Street, a man accosted me, and after finding out about 
 my circumstances, he gave me carfare and asked me to meet him at 
 8 P. M. at the corner of Forty-fifth Street and Sixth Avenue. He told 
 me he could get me a good job. At the appointed time I met this man, 
 and he invited me to his house. (Here follow details of an inde- 
 scribable assault upon the visitor by the owner of the house.) 
 
 "He said he would pay all doctor's expenses and fix me up. He 
 went out and came back with a man whom he addressed as Gates, and 
 who addressed him as Grace. Mr. Grace then asked Mr. Gates to band- 
 age me up, which he did. When Mr. Gates was through Mr. Grace 
 begged me to put my coat on, and after pressing a five dollar bill in 
 my hand told me that if I came to-morrow he would give me $100, 
 which he thought would cover the doctor's expenses. I didn't like the 
 arrangement, and I told Mr. Grace so, and asked him to give it to 
 me now, and he said that he did not have that much money in the place, 
 but he would give me a note to be collected to-morrow. I accepted the 
 note. He also informed a blonde girl whom he called from upstairs and 
 told her to show me out. 
 
 "The next morning I called at Mr. Grace's house, and he put me 
 off until the following day. This Mr. Grace, who afterward became 
 known to me as Mr. Dale, kept this up for about two weeks. I finally 
 decided to change my tactics. I went to see a fellow whom I have told 
 of this ; wrote a letter and gave it to him with the note which Mr. 
 Dale gave me, and asked him to go to his house and collect the money. 
 I went with him as far as the house and waited outside. 
 
 "About five minutes afterward I saw my friend coming out of the 
 house and calling Mr. Dale, who was following him, all kinds of names. 
 Then Mr. Dale started to holler 'Stop thief,' and a great crowd gath- 
 ered. Mr. Dale also said to the people that my friend had a revolver, 
 but several of the people after searching him said that he did not have 
 any. Mr. Dale accosted me and said : 'How could you expose me that
 
 76 TWENTY YEAES IN STATE'S PEISON 
 
 way in my own neighborhood !' My friend was relating to the crowd 
 the whole story and demanding Mr. Dale's arrest, but Mr. Dale per- 
 suaded the crowd to let my friend go. We then took a car and left 
 the neighborhood. On the car he told me that Mr. Dale took both the 
 letter and the note, and refused to pay. 
 
 "The following Saturday I met Mr. Dale on Fourteenth Street 
 again and he said that his name must be cleared regardless of cost, 
 as he could not stand the exposure he received in his neighborhood. 
 He also told me that the letter he received he gave to a detective, and 
 he said if I wrote any more he would have me arrested. I wrote another 
 letter, sent it by a boy whom I promised a quarter of a dollar, and was 
 immediately arrested. I was taken to his house and then to Police 
 Headquarters. From there I was taken to Fifty-seventh Street and 
 arraigned before Magistrate O'Connor. Then I was taken to a side room 
 by a detective by the name of Dungate, who told me that they've got 
 a fellow whom they could connect with the crime, and showed me a 
 picture which he told me Mr. Dale identified in the Rogue's Gallery. 
 As I could not identify the picture, he told me to say so anyhow, and 
 if I would state in court something he will tell me he will see that I am 
 discharged; otherwise I would get fifteen years. I was frightened and 
 said 'yes' to everything they asked me. Tuesday when I returned from 
 court, the officer beat me on the way to the lockup, as I said I could 
 not identify anyone else but the right man. Fearing any more beating I 
 did what they asked me to. 
 
 "This is the true and exact story how everything happened. 
 
 "Rev. Dr. Goldstein, I am keeping to my cell, as I've not the cour- 
 age to tell this unfortunate how he got into trouble. Kindly submit to 
 him the real story of the case, as I know he does not know anything 
 about it. His name must be Alfred Sickofsky, or something like that." 
 
 I looked up the records of both cases in the General 
 Sessions Court office and found that in both the complain- 
 ant was the same person Theodore B. Dale of 71 West 
 45th Street. This fact was in itself enough to attract 
 my attention, and I made further inquiry from both 
 accused, into the facts of the case as they told them. I 
 noted that both of them were on the same tier in the 
 Tombs, in cells not far from each other. This, of course, 
 was a suspicious fact and suggested that there might be 
 collusion between them in their stories. I went to Gel- 
 sky's cell and I said, "Do you know the man in Cell No. 
 
 ." He said, "No, I don't know him." I said, 
 "Have you never seen him in your life before?" Gelsky
 
 TWENTY YEARS IX STATE'S PRISOX 77 
 
 replied, "Not to my knowledge." "Have you ever seen 
 his portrait?", I asked. Gelsky said, " I don't know the 
 man." I went to Schwitofsky and said, "Do you know 
 Leo Gelsky?" He replied, "No." I said, "Now, 
 Schwitofsky, you want me to help you, and you have been 
 telling me lies. You are perfectly welcome to do with- 
 out my help, but if you want my help you cannot expect 
 it if I find you trying to deceive me. ' ' He said, 1 1 1 have 
 not told you lies, Doctor." "Well,' I said, 'if you don't 
 
 know Gelsky, who is that boy in Cell No. !" He 
 
 said, "That's Hoffman." 
 
 I went back to Gelsky 's cell and said, "Gelsky, do you 
 know a man named Hoffman!" Gelsky said, "No." I 
 said, "Gelsky, you are asking me to help you, and you 
 are telling me lies. It is no earthly use trying to deceive 
 me, because I shall drop your case at once when I am cer- 
 tain that you are lying to me. Now, do you know a man 
 named Hoffman?" He said, "No." "Well," I then 
 said, "Why does Schwitofsky, about whom you wrote to 
 me as the man who is innocent, and who is charged 
 with being your accomplice, call you Hoffman?" "Oh," 
 he said with a smile, "I remember now. I have been 
 called 'Hoffman,' having been mistaken for a man of 
 that name, but I had forgotten that fact when you asked 
 me." 
 
 It was quite clear that there was something very sus- 
 picious about the pretext of both men that they were 
 unacquainted with each other, and I determined to move 
 in the case with great caution. 
 
 I may remark, however, that the fact that there were 
 discrepancies in their narratives and that they were 
 obviously telling me falsehoods in minor particulars was 
 not in itself conclusive. Men of their type cannot tell 
 the truth even when they wish to, and had there really 
 been collusion and agreement between them there would 
 have been no discrepancies in their statements.
 
 78 
 
 I took the course of speaking to each man separately 
 on a number of occasions and making them repeat their 
 stories frequently, pretending that in the press of busi- 
 ness my mind was not clear as to the particulars. They 
 minimized the obvious mistake they had made in pre- 
 tending not to know each other and being in doubt about 
 the names, but the main features of their stories remained 
 unshaken. Gelsky asseverated with the utmost solemnity, 
 over and over again, that Schwitofsky was not the man 
 who had gone to Dale to demand payment of the bill for 
 $100 ; that he had made a pretence of identifying the por- 
 trait under physical duress; that he was beaten by a 
 police officer for having positively denied that Schwitof- 
 sky was the man, and that he was in fear of further as- 
 sault when he made the pretended identification. The 
 real accomplice had left the very afternoon of the affair 
 in Dale's house (that is, the 19th of January, 1911) for 
 Chicago, saying that New York was now 'too hot' for 
 him. Schwitofsky, on the other hand, could only account 
 for his arrest by saying that he, having worked for a 
 private detective agency during the Cloak Makers ' Strike 
 in 1910, and having entered all the vouchers for pay- 
 ments, had ascertained that two plain clothes men were 
 on the payroll of Silverman's Private Detective Agency, 
 receiving from that organization a certain sum of money 
 daily while they were in the employ of the City, and 
 that the fear that he might divulge this impropriety had 
 led these plain-clothes men to determine that he be put 
 away under conditions which would prevent him from re- 
 vealing their wrong-doing. 
 
 In the meantime, Schwitofsky had been arraigned be- 
 fore Judge Warren W. Foster of the Court of General 
 Sessions, and had pleaded "Not Guilty." In aswer to 
 the usual formal question he had stated his lack of means 
 and his consequent inability to employ counsel, and the 
 Judge had assigned Counsellor William D. Bosler, a
 
 TWENTY YEARS IN STATE'S PRISON 79 
 
 former Deputy District Attorney, to his defense. It is 
 characteristic of Schwitof sky that he told me that he had 
 no counsel, although it is quite possible that in the be- 
 wilderment attending his arraignment he had not noticed 
 that counsel was assigned to him. I took Schwitof sky's 
 word that he was without counsel and asked my friend, 
 Mr. Mark Eisner, now the prominent Assemblyman, and 
 at this moment actually counsel for Schwitofsky on the 
 appeal which may yet be taken, to defend him. I told 
 Mr. Eisner of the circumstances of the case which made 
 me desire to have it treated with particular care, the 
 main reasons being that Dale was the complainant in 
 both instances; that the charge against Gelsky, while 
 nominally that of "attempted extortion," really involved 
 a suspicion of the worst kind of moral turpitude on the 
 part of Dale; that Gelsky insisted that his "enforced" 
 identification of Schwitofsky was what led to Schwitof- 
 sky 's arrest, and that there was a possibility that Schwit- 
 of sky's story of his innocence might, in consequence, be 
 quite true. 
 
 When, however, Mr. Eisner sought to enter appearance 
 for Schwitofsky he found that there was already a "coun- 
 sel of record," Mr. Bosler. Schwitofsky, however, said 
 that he did not desire to have Mr. Bosler act for him, 
 because in an interview with Mr. Bosler that gentleman 
 had told him that he was in no position to investigate 
 the story, and had immediately concluded that he must 
 be insane because of a previous incarceration in Mattea- 
 wan, the State Institution for the 'Criminally Insane. 
 However, he said I need not exert myself to procure coun- 
 sel for him, because Mr. Kimball, the agent for the New 
 York Prison Association, had undertaken to provide a 
 substitute counsel. When I spoke to Mr. Kimball he 
 verified this statement but told me that the Austrian 
 Consul (Schwitofsky being supposedly an Austrian citi- 
 zen) had undertaken to provide counsel, and therefore
 
 80 TWENTY YEARS IX STATE'S PKISOX 
 
 there was no necessity for the one he had proposed to 
 furnish. 
 
 As time went on I noticed that Schwitofsky showed 
 signs of increasing and extreme nervousness, his hands 
 constantly shaking when talking of his wrongs and his 
 voice stammering. I had more than once to check him 
 and ask him why he shook so ; to tell him that there was 
 no reason to fear, and that he would be properly looked 
 after and justice would be done to him. The attempted 
 reassurance did not seem to have any very mollifying 
 effect on his condition. 
 
 Mr. Kimball, like Mr. Hanley, seemed to feel that 
 Schwitofsky was probably innocent. Schwitofsky, if I 
 remember rightly, had been paroled to his care and had 
 to report to him. He, like Mr. Hanley, declared that he 
 had never met a man who seemed so anxious to keep 
 straight and earn an honest living. This opinion of Mr. 
 Kimball, who is a man of great experience and the Dean 
 of Parole and Probation Officers in New York City, was 
 not without its effect in inducing me to regard Schwit- 
 ofsky as probably innocent. 
 
 I learned that Mr. Bosler, the counsel of record, had 
 made up his mind that Schwitofsky was insane, and had 
 applied to Judge Foster for a Lunacy Commission to 
 investigate Schwitof sky's mental condition. En passant 
 I may remark that Judge Foster is noted for his re- 
 luctance to appoint such commissions, in which particular 
 he differs from some of his brother Judges. These com- 
 missions are expensive and seem frequently to be re- 
 garded only as a means of exercising patronage by the 
 judges. Some of them, however, when they believe that 
 there may be insanity, prefer the alternative course pro- 
 vided by the law and hold a Jury trial as to the mental 
 condition of the accused. Judge Foster, before he de- 
 cided to deal with the application of Mr. Bosler, instructed 
 Dr. McGuire, the prison physician, and Mr. Kimball to
 
 TWENTY YEARS IN STATE'S PKISON 81 
 
 report in the matter. Both considered Schwitofsky sane. 
 Judge Foster therefore, on the 8th of March, 1911, denied 
 Mr. Bosler's motion. 
 
 In April Schwitofsky was again arraigned before Judge 
 'Sullivan, who assigned Mr. William H. Carpenter as 
 counsel in the case, and on April 27th, counsel, on behalf 
 of the defendant, pleaded "Not Guilty," accused being 
 insane. On the same day a Commission in Lunacy was 
 appointed by the Judge. 
 
 On May 19th the Commission reported the defendant 
 to be sane, and the trial took place on June 1, 1911, when 
 Schwitofsky was convicted of Burglary in the Second 
 Degree and Assault in the First Degree, as 'Second 
 Offenses.' 
 
 When I learned that Schwitof sky's case was to come up 
 for trial on June 1st I made an attempt to speak to 
 Judge 'Sullivan about the case, but was not successful 
 in being able to meet him at a moment when he was 
 disengaged. I therefore made an appointment with the 
 Judge to meet him on the Monday morning of the week 
 of the trial and talk over the case with him. It so hap- 
 pened that that was the week of the Jewish Feast of 
 Pentecost, and I found myself unexpectedly prevented 
 from keeping the appointment by business arising out 
 of the arrangements in connection with the Pentecost 
 services at my Temple. I therefore wrote the following 
 letter : 
 
 31st May, 1911. 
 My dear Judge O'Sullivan : 
 
 The approaching Jewish Feast of Weeks (Pentecost) makes this a 
 very busy season for a Rabbi. A mass of details in connection with the 
 services detained me so late last Monday morning that I was unable 
 to keep the appointment made with your Honor last week. 
 
 As I fear that I may not find time for a personal interview I have 
 decided to address this communication to you. I do so with consider- 
 able misgiving, being fully aware of the extreme impropriety of at- 
 tempting, or appearing, to discuss a case with a Judge before trial. Yet 
 there may arise so peculiar a concurrence of facts that the best interests
 
 82 TWENTY YEARS IN STATE'S PRISON 
 
 of justice seem to demand that the Judge be informed of all the cir- 
 cumstances from the first. 
 
 On your calendar for today is the case of Alfred Schwitofsky, alias 
 Gerber, etc., charged with Burglary (?). 
 
 In my experience as chaplain of prisons it is an everyday occur- 
 rence to hear prisoners stoutly maintain that the charge against them 
 is a "frame-up" the outcome of malice or blundering on the part of the 
 police. Of course, it is my rule to pay no heed to such statements. 
 
 But in the case of Schwitofsky there are certain unusual aspects: 
 
 1. Schwitofsky, or Gerber, was nearly successful some years ago in 
 an attempted suicide, brought about it would seem by despair at a 
 sentence for a felony; and was in Matteawan for some time. 
 
 2. According to the statement of a credible witness he made an 
 earnest attempt to earn an honest livelihood after his discharge. He 
 was doing well as an electrician when the roguery of a contractor 
 ruined him. Thereafter, he tried to earn a living as an employe of a 
 private detective association. 
 
 3. According to the newspaper accounts he was arrested in the 
 present instance in the streets on sight because of his record and the 
 general distrust the police entertained about him ; and the present 
 charge was made after his arrest and his transference from Special 
 Sessions to General Sessions at the application of the District At- 
 torney. 
 
 4. I am told that the complainant in the present indictment was 
 also the complainant Theodore B. Dale, of 71 West 45th Street in 
 indictment No. 81381 found against Leo Gelsky, alias Hoffman, whom 
 you sent to Elmira for attempted blackmail on llth April last. 
 
 5. Gelsky never attempted to deny that he wrote the blackmailing 
 letter which formed the ground of the charge against him, but con- 
 stantly maintained that he was justified in sending that letter as the 
 statement in it was true, and he was entitled to the money demanded : 
 
 6. Gelsky confided to me that after his arrest the officers brought 
 pressure to bear on him to identify Schwitofsky as an accomplice. 
 When he declined to do so, he states, he was beaten until he yielded. 
 He appeared to be unaware that Schwitofsky was charged with a differ- 
 ent offense. 
 
 7. It is rumored that the officers who arrested Schwitofsky did 
 not retain the confidence of their chiefs. 
 
 8. Schwitofsky maintains that certain members of the detective 
 force are bitter against him because he can prove from his own knowl- 
 edge that while they are in the employ of the city they accept payment 
 for their services from a private detective organization. 
 
 It is but right to say that both Schwitofsky and Gelsky are old 
 offenders. Schwitofsky, while not insane in the legal sense, is cer-
 
 TWENTY YEAES IN STATE'S PEISON 83 
 
 tainly not normal. I should judge him to be crafty in an unusual de- 
 gree. Gelsky made what I believe to be a lying pretense that he had 
 not previously been acquainted with Schwitofsky. 
 
 I beg you to read over the evidence before the Commission in in- 
 sanity which you appointed on this man. 
 
 Yours very Faithfully, 
 JACOB GOLDSTEIN, Jewish Chaplain, "Tombs." 
 
 On June 5, 1911, Schwitofsky was presented for 
 sentence before Judge 'Sullivan, who in sentencing 
 Schwitofsky, said: 
 
 "The Court is in no position this morning with regard 
 to this man's sentence to give him any consideration ex- 
 cept that which goes above the lowest sentence which can 
 be imposed. As you will understand the law provides 
 that in a case like his, where a man has been convicted 
 of an offense as a second offense, such person must be 
 sentenced for a term not less than the longest term pre- 
 scribed by a first conviction. This man for a number of 
 years past has been living in prison both in this State 
 and in other States. 
 
 "Somebody has said that the inmates of a prison are 
 divided into two classes, one class which should never 
 be in prison and the other class which should never leave. 
 I think he belongs to the second class. There is no use 
 losing your time or mine. He should be working out his 
 sentence now " 
 
 His Honor, of course, was within his rights in making 
 these or any similar remarks that expressed his honest 
 conviction and his personal view of the case, but it must 
 be remarked that there was unconsciously some misrep- 
 resentation in the characterization of the accused. It 
 may have been literally true that for a number of years 
 past Schwitofsky had been "living in prison," but it was 
 most unfair to charge against the man his detention in 
 an institution for the insane. As a matter of fact, with 
 the exception of the very first sentence in the Eastern
 
 84 TWENTY YEARS IN STATE'S PEISON 
 
 Penitentiary of Pennsylvania on a charge of Grand Lar- 
 ceny, the commission of which crime Schwitofsky always 
 admitted, those who have investigated his story are by 
 no means sure that Schwitof sky really was guilty of any 
 other crime. 
 
 It may be noted as a legal fact that the previous com- 
 mission of a crime in another State does not make the 
 accused a " second offender" in this State. 
 
 The question of Schwitof sky's guilt or innocence in 
 connection with the other charges in this State I will nof 
 here discuss, but it would seem that the only serious 
 charge against Schwitofsky, previous to the present one, 
 in this State, was that he had committed burglary on the 
 premises of Elmer J. Ellsworth of 9 E. 98th Street. Out 
 of this burglary arose his arrest on the 7th of March, 
 1908, and the alleged finding on his person of a loaded 
 pistol and certain burglar's tools. Schwitofsky states 
 that the " burglar's tools" were implements he needed in 
 his calling of electrician, and while he admits that he had 
 a pistol on him at the time of his arrest, it was unloaded 
 and newly purchased, and was wrapped up in a paper 
 parcel. He had purchased this pistol for his own protec- 
 tion as a householder. It must be remembered that the 
 date of this charge was antecedent to the passing of the 
 Sullivan Law, which makes the possession of a pistol, 
 loaded or unloaded, without a special permit, a felony. 
 
 Without entering, however, into this question, the dis- 
 cussion of which I will leave to Mr. White, there is no 
 other charge in this State against Schwitofsky. That 
 there was a strong feeling in the mind of Judge 'Sul- 
 livan against Schwitofsky is quite clear from the remarks 
 above quoted. The late Judge 'Sullivan was a man of 
 high principle, a devoutly religious-minded man. I have 
 never dreamed of questioning the sincerity of his con- 
 viction of Schwitof sky 's guilt, and any remarks that may 
 be made by me about his conduct of the case must always
 
 TWENTY YEARS IN STATE'S PRISON 85 
 
 be understood to admit his honesty of purpose and con- 
 scientious belief that he was right in what he did. 
 
 The sentence of Schwitofsky was ten years for each 
 charge, the second period of ten years to begin at the 
 expiration of the first period. In other words, Schwitof- 
 sky was sentenced to twenty years ' imprisonment. 
 
 The commitment papers transferring Schwitofsky from 
 the Tombs to State's Prison were not signed till the 17th 
 of June following, that is to say, twelve days elapsed 
 between the sentence and the transference of the con- 
 victed to Sing Sing. In the meantime I heard that a 
 certain Mr. FEANK MAKSHALL WHITE, a newspaper man^ 
 whose attention had been drawn to the case, had been 
 told that I had been actively interested in Schwitofsky, 
 and that I should be in a position to give him helpful 
 information in the matter. Mr. White left a message for 
 me that he would like to speak to me about the case. It 
 may be news to Mr. White that before I replied to his 
 message I made private inquiry as to his standing in the 
 newspaper world. I was assured on good authority that 
 he was a man of the best standing in the world of the 
 higher class of newspaper writers ; that he had occupied 
 positions of the greatest prominence, and that his char- 
 acter was altogether beyond suspicion. I wrote to Mr. 
 White and we met, and there began an acquaintance be- 
 tween us which has ripened into intimacy, and I am 
 pleased now to count Mr. White among my closest and 
 dearest friends. I leave him to take up the story of our 
 Odyssey to aid Schwitofsky. He did remarkable work 
 at a great sacrifice of his time and personal means, and 
 the strong case now built up to prove Schwitof sky's inno- 
 cence is in the greatest part the result of his indefatigable 
 and successful endeavors. 
 
 Mr. White and I early became convinced that there had 
 been a miscarriage of justice, and resolved to prosecute 
 the matter until we had freed Schwitofsky. It must be
 
 86 TWENTY YEAES IN STATE'S PRISON 
 
 obvious to the reader that the really important point in 
 our case revolved about the character of the complainant, 
 Theodore B. Dale. This man, now deceased, was at the 
 time a successful ladies' tailor, who had carried on a 
 business at 71 West 45th Street. He was said to be a 
 man of considerable means. I soon learned that his 
 reputation was most unsavory, but could find nobody 
 who was prepared to make any definite public statement 
 about it. 
 
 When Mr. White, after the lapse of some months, 
 showed me the result of his investigation, it seemed pretty 
 certain : 
 
 A That Schwitofsky was not the man involved in the 
 dirty business that led to the charges at all. 
 
 B That the burglary "in the second" was not com- 
 mitted at all except in a very technical, legal sense, and 
 it is quite arguable that it was not committed by anybody. 
 
 C That felonious assault in the first degree was posi- 
 tively not committed at all by anybody. 
 
 Mr. K. Henry Rosenberg, the well-known and very 
 capable criminal lawyer, very kindly undertook to prose- 
 cute the Appeal in Schwitof sky's behalf. The first appeal 
 was to the judge himself to grant a new trial on the 
 ground of newly discovered evidence. This appeal was 
 heard in April, 1912, and Judge 'Sullivan denied the 
 motion for a new trial. 
 
 We were considerably staggered by this action of the 
 Court, but were not contented, and on the 19th of March, 
 1913, an Appeal was taken to the Appellate Division of 
 the Supreme Court of the State, both against the whole 
 sentence and against the Judge's denial of the new trial. 
 Through the good offices of Mr. Orlando Lewis, of the 
 Prison Association of New York, Mr. Francis D. Gallatin 
 prepared the brief as Counsel for Schwitofsky, and Mr. 
 White was successful in securing the services of Mr. 
 Samuel Untermeyer, one of the most eminent lawyers in
 
 TWENTY YEARS IN STATE'S PRISON 87 
 
 the country, who argued the case before the Supreme 
 Court. Both the lawyers, convinced of Schwitof sky's in- 
 nocence, very generously did their part free of cost to 
 the accused. Mr. Untermeyer, indeed, not only gave his 
 valuable time and talents to the case, but also sent a sub- 
 scription toward the necessary expenses. 
 
 On the 4th of April, 1913, the Appellate Division denied 
 the Appeal without stating any opinion, there being one 
 dissentient, who also failed to give his reasons. 
 
 Just when the Appeal to the Appellate Division was on 
 the point of being argued, I had the astonishing ex- 
 perience of finding Theodore B. Dale in the Tombs Prison 
 (as I verily believe, in the identical cell in which I first 
 found Schwitof sky) on a charge of "Soliciting." It 
 appears that on the 16th of December, 1912, a lad of 
 seventeen, named Jack Young, who described himself as 
 an actor, was accosted by Dale in the Subway near 110th 
 Street ; that Dale, under pretext of providing him with 
 employment, took him to the house where he was then 
 resident, 23 West 126th Street, and that there took place 
 an attempt at a crime almost identical with that ex- 
 perienced by Leo Gelsky in 1911. Dale was held in $500 
 bail to answer the charge before the Court of Special 
 Sessions. On January 24, 1913, he pleaded ' ' Not Guilty, ' ' 
 and when the case was called on the 31st of January, 
 1913, it was shown that he had absconded from the city 
 and his bail of $500 was forfeited. He returned from 
 San Francisco, whither he had fled, and presented himself 
 before the Court of Special Sessions February 28, 1913, 
 and pleaded ' ' Guilty" to the charge. It was while he was 
 awaiting sentence on this charge that I saw him in the 
 Tombs, and in the course of conversation he admitted 
 that he was the same Theodore Dale who had prosecuted 
 Schwitof sky. On March llth his plea of "Guilty" was, 
 by permission, withdrawn. He pleaded "Not Guilty" 
 and was held in $1,000 bail for trial. On the 18th of
 
 88 TWENTY YEARS IN STATE'S PRISON 
 
 March, when his case came up, he was again absent, and 
 it was shown next day that he had committed suicide 
 rather than face the trial. 
 
 No one with the slightest humanity in his composition 
 can deny that Dale 's death was in a measure an expiation 
 for his offenses, but while the innocent victim of his 
 wrong-doing remains incarcerated it is impossible to re- 
 frain from stating in plain terms without rancor or spite 
 that the poor, half -insane wretch, Dale, was a well-to- 
 do degenerate who was a centre of mischief, immorality 
 and perjury while he yet lived on earth and whose evil 
 deeds survive him. 
 
 It will be seen that the character of Dale was of so 
 black a description that all doubt as to the possible truth 
 of Gelsky's story as told in his confession to me, prev- 
 iously embodied in this statement, can be dismissed, and 
 that in consequence the presumption of Schwitof sky's 
 innocence becomes almost a certainty. 
 
 JACOB GOLDSTEIN.
 
 TWENTY YEARS IX STATE'S PRISON 89 
 
 Journaliet's 
 
 AN OPEN LETTER TO THE JUDGE. 
 
 A resume of the results of my investigation in the case 
 of Alfred Schwitofsky, up to the time of its publication, 
 may be found in an open letter to Judge 'Sullivan that 
 appeared in Fair Play on Saturday, July 27, 1912. Since 
 that time Dale has committed suicide, after confessing 
 that it was on perjured testimony that he sent Schwitof- 
 sky to 20 years in prison, and Judge 'Sullivan has died. 
 The publication of my letter to the judge (as set forth 
 in that document) rendered me liable to punishment for 
 contempt of court or for criminal libel, had I in the 
 slightest degree overstated the case against him, but he 
 permitted my censure of his conduct to pass unchallenged. 
 The letter in part ran thus : 
 
 "I appeal to you, Thomas C. O'Sullivan, as a man alive to his in- 
 dividual responsibility to his fellow men, as a tribune of the people 
 under oath to administer justice, as a communicant of the Roman Catho- 
 ic Church that teaches that every human creature must one day render 
 an account of himself before God, to undo a grievous wrong resulting 
 from a miscarriage of justice in your part of the Court of General 
 Sessions. As a result of this miscarriage of justice a man innocent of 
 the crimes of which he was convicted before you is behind the walls of 
 Clinton Prison under a twenty-year sentence ; his wife, a frail woman, 
 forced to support herself and child, has only recently left the hospital 
 where she was compelled to go after a physical breakdown, and is 
 again toiling for a livelihood on the verge of nervous prostration from 
 worry and suspense, her child, at an age when children most need a 
 mother's care, an object of charity. 
 
 "You have once before had the opportunity to right this wrong, and 
 whether or not the course you pursued on that occasion was a deliberate 
 denial of justice I shall leave it to the readers of this communication 
 to determine.
 
 90 TWENTY YEARS IX STATE'S PRISON 
 
 "You, Judge O' Sullivan, are aware, as I am, that if in this letter 
 I overstate the case against you one iota it is within your power 
 to inflict condign punishment upon me. My sole motive in bringing this 
 matter again before the public is to see justice done to a fellow crea- 
 ture. I have been told that my assiduity in this direction has been 
 sneered at in certain quarters as due to an effort to make circulation 
 for this magazine through an attack upon a judge. That idea is refuted 
 by the fact that the investigation, whereby I have proved the victim in 
 this case to be innocent of the crimes of which he was convicted, was 
 concluded and the application for a new trial made for him, before the 
 magazine came into existence. 
 
 "Does not the fact that I knoiv an innocent man to be undergoing 
 a twenty-year prison sentence constitute a sufficient motive for me to 
 demand justice for him? 
 
 "Shall I, after many weeks of uncongenial labor to prove that this 
 man is not guilty of the crimes for which he is being punished, remain 
 mute after you, Judge O' Sullivan, have contemptuously ignored the 
 proofs of his innocence I have been the means of bringing before you. 
 
 * * * * 
 
 "It seems to me, Judge O'Sullivan, that the circumstance that such 
 a man as Dale was behind the arrest in the instances of both Gelsky and 
 Schwitofsky was a sufficient reason in itself to cause you to exercise 
 extraordinary care at the trial of the latter. I can easily understand, 
 nevertheless, that believing Schwitofsky to be of the same perverted 
 breed as Gelsky and Dale, you might consider that it did not matter 
 much what happened to him. In fact, I rather suspect that that may 
 have had something to do with your conduct of this case. 
 
 * * * * 
 
 "In obtaining the evidence disproving Schwitofsky's guilt in the 
 Dale matter I found reason to believe that his charge that he was a 
 victim of police persecution was true. Consequently it became neces- 
 sary to take up the matter of his arrest in Harlem in March, 1908, 
 as the result of which he had served a sentence of six months on con- 
 viction for carrying concealed weapons, spent more than two years in 
 the Manhattan Asylum for the Criminal Insane, and then had pleaded 
 guilty to a charge of having had burglars' tools in his possession on a 
 promise of suspended sentence. 
 
 "In the pursuit of this inquiry I have examined and cross-examined 
 with the consent and approval of Commissioner Waldo every police- 
 man and detective, who is on record as having had anything to do with 
 Schwitofsky since he came to New York after finishing his term in 
 the Eastern Penitentiary in Philadelphia, including Lieuts. William H. 
 Kinsler and William W. Duggan, whom he accuses of being at the bottom 
 of all his recent misfortunes. I have examined all police records of 
 the various arrests of Schwitofsky with startling results. I have in- 
 terviewed the victims of his alleged crimes. I have cross-examined
 
 TWENTY YEAES IN STATE'S PRISON 91 
 
 Gelsky in the Elmira Reformatory, and I have traced back Sehwitof- 
 sky's career as he outlined it to me in prison from the time of his last 
 arrest to his arrival in New York in the fall of 1907, visiting the places 
 at which he had lived and his former places of business and looking up 
 and talking with his old acquaintances. 
 
 "As the result of this investigation (of which I have previously 
 furnished you, Judge O'Sullivan, with full details) I am convinced that 
 Alfred Schwitofsky has endeavored to lead an honest life since he fin- 
 ished his term for the one crime he admits having committed, and I 
 believe that his present unhappy plight is due to police persecution, as 
 he has maintained all along. The facts upon which I base these conclu- 
 sions have already been set forth in this magazine, and not one fact or 
 one deduction from facts has yet been disputed. 
 
 "The circumstance that Schwitofsky bore on the inside of his left 
 wrist incised scars made three years before with a sharp instrument, 
 when he had attempted suicide in the Tombs prison by reason of his 
 earlier misfortunes, and that Deputy Assistant District Attorney Mc- 
 Cormick was permitted by you to lead the jury to believe that those 
 scars were the ones that had been made by Harold on the occasion of 
 the alleged burglary at Dale's house, brought about the miscarriage of 
 Justice in your court in June, 1911. 
 
 "Why, Judge O'Sullivan, did you refuse to allow Schwitofsky to 
 explain to the jury how he came by those scars? 
 
 "You had the opportunity to right the wrong done Alfred Schwitof- 
 sky, when the application was made before you last January for a new 
 trial. There were only five short affidavits to be considered one made 
 by Frank Harold, to the effect that he had stopped the alleged Dale 
 burglar and dug the skin from the back of his right wrist and that the 
 revolver he had taken from him contained only two blank cartridges ; 
 one from Detective Edward J. Cousin, who took the revolver from 
 Harold to the police property clerk, and who corroborated Harold's 
 testimony that the cartridges it contained were blank ; two from Dr. 
 Julius B. Ransom, a medical practitioner of 30 years' standing, who 
 examined Schwitofsky's wrists on two separate occasions and made 
 oath that the skin had not been broken within five years, and one 
 from Gelsky, who swore that Schwitofsky was not the man who had 
 accompanied him to Dale's house on the morning of the alleged burglary, 
 and that he (Gelsky) had under coercion assisted the police to "frame 
 up" the evidence against their victim. 
 
 "In spite of the fact that the affairs of a potentially innocent man 
 in prison ought under the most primitive rules of justice to be ex- 
 pedited, you, Judge O'Sullivan, took seven weeks to consider these affi- 
 davits, and then in denying Schwitofsky a new trial practically ignored 
 them. You did not even claim as a hard and fast proposition that 
 Schwitofsky was guilty of the crimes for which he is being punished.
 
 92 
 
 You merely said that in your opinion the prisoner was fairly tried and 
 that you regarded the verdict of the jury a just one ; that the lawyers 
 assigned to defend him "had ample time to acquaint themselves with 
 every phase of the case," and that you believed that they "were familiar 
 with all the facts and circumstances and could have adduced the testi- 
 mony upon which it is now sought to obtain a new trial." 
 
 "In other words, because Lawyers Keir and Carpenter, whom you 
 had appointed to defend Schwitofsky, had refused to look up his wit- 
 nesses or to prepare his defense, you are willing that an innocent man 
 should spend 20 years of his life in prison. Is that the law of the 
 Court of General Sessions, Judge O'Sullivan? If it is, any judge of that 
 court has it in his power to railroad a penniless citizen to prison for 
 as many years as he likes. All that the Judge with such a purpose will 
 need to do is to secure the indictment of his victims on a trumped-up 
 charge and assign any of the shysters about the criminal courts to de- 
 fend him, with private instructions not to produce his witnesses. Then 
 when the victim is convicted and sentenced, the judge may deny an 
 appeal for a new trial on the ground that his lawyers were familiar with 
 all the facts and circumstances and could have adduced at the first 
 trial the testimony upon which it was sought to obtain a new trial. 
 
 "And now, Judge O'Sullivan, what do you propose to do in this 
 matter? Will you allow Alfred Schwitofsky, who has already been im- 
 prisoned more than a year and a half for crimes which he did not com- 
 mit, to suffer for additional months until his case can be passed on by 
 the Supreme Court, during which period his wife may become insane or 
 even die (I do not exaggerate her mental and physical condition in the 
 least), or will you reconsider now a new trial for him?" 
 
 "Your conduct of the Schwitofsky case is not going to add to your 
 reputation in any event, Judge O'Sullivan, but the longer you allow 
 an innocent man to lie in a prison cell while his family suffers, the 
 greater will be your sin in the eyes of God and of the community in 
 which you dwell." 
 
 THE PBISONER. 
 
 On the occasion of my first visit to Schwitofsky, I 
 found him in a pitiably neurotic condition, as he was in- 
 deed on the occasions of my subsequent visits. His 
 emotion was such that his words ran over one another 
 alternately with periods of stammering, while his hands 
 trembled with increasing violence as he told the story, 
 that was frequently interrupted by tears, of his alleged 
 wrongs and their culmination. As he had spent the best 
 part of the last 8 years in prisons and hospitals, and
 
 TWENTY YEAES IN STATE'S PRISON 93 
 
 was contemplating 20 more years like them, his weakness 
 may scarcely be considered unaccountable. Schwitofsky 
 is a very small man only five feet and half an inch in 
 height. He is of pronounced Slavonic type and speaks 
 English with a foreign accent, for tho he was born in 
 the United States he was taken to Austria, the home 
 of his parents, when only two years of age. He is an 
 electrician by profession and a man of intelligence and 
 education, who speaks several modern languages and is 
 capable of a Latin quotation on occasion. While he 
 admits the commission of a crime in 1903, and that owing 
 to circumstances that he was not always able to control 
 his associations in New York have not been of the best, 
 he claims that he has kept within the law since he served 
 his term of punishment. My investigations convince me 
 that he is a victim of police persecution. I believe that 
 he was put in prison by a police "frame-up." 
 
 POLICE PERSECUTION. 
 
 Sentence was suspended in Schwitof sky's "framed-up" 
 Harlem burglary case in August, 1910. Leaving the 
 Tombs penniless, he was befriended by a barber who 
 had been his neighbor in 117th Street, until he found 
 work with Louis Berlion, an electrician doing business 
 in 2nd Avenue. During his first week with Berlion he 
 was accosted in the street by two detectives who had 
 seen him in the "line up" at police headquarters, on the 
 way with his bag of tools to do a job for his employer. 
 Under the impression that he was beyond the power of 
 the police as a paroled prisoner earning an honest living, 
 Schwitofsky was rash enough to defy the detectives and 
 to enjoin them to take word to his persecutors, Kinsler 
 and Duggan, that he was going to "get even" with 
 them. At the end of the week Berlion discharged him, 
 giving as his reason that he did not "want any trouble 
 with the police. ' '
 
 94 TWENTY YEAES IN STATE'S PRISON 
 
 Schwitofsky next got work in a garage, and by Octo- 
 ber had saved money enough to open an electrician's 
 shop of his own at 19 and 21 Second Avenue. Here he 
 prospered until he took a contract to put up a big electric 
 light sign at 6 and 8 Doyers Street, in Chinatown, on 
 which he did two weeks' work with several workmen, 
 only to be swindled out of payment. He was ruined 
 pecuniarily and compelled to close his shop. He says 
 that while he was at work in Doyers Street, Kinsler, 
 Duggan and another detective, William Brown (who 
 afterwards arrested him in the Dale case) one day came 
 upon him and denounced him as an ex-convict in the 
 presence of his workmen. On this occasion he went 
 to Judge Swann's chambers in the Criminal Courts 
 building and reported the occurrence. 
 
 Out of work again and unable to find employment at his 
 trade, Schwitofsky secured a position with Isaac Sil- 
 verman, head of the Fidelity Secret Service Bureau, 
 where he says that he discovered that his old enemies, 
 Kinsler and Duggan, were taking pay from Silverman for 
 work they were surreptitiously doing in connection with 
 the cloak makers' strike that was then in progress, when 
 they should have been on duty for the city. It was his 
 threat to expose these conditions, Schwitofsky believes, 
 that brought about his present predicament. It should 
 be understood that he was contumacious and aggravating 
 in his treatment of the two detectives, not manifesting 
 the deference that a man who has been in prison is sup- 
 posed by agents of the law to show them. It was unwise 
 for him to threaten to report Kinsler and Duggan to 
 Police Commissioner Bingham for taking money from 
 Silverman. The day after he made this threat, he says 
 that he was accosted in the street by Detective John F. 
 Talt, also of the Central Detective Bureau, who said to 
 him: 
 
 ''You've gone the limit. Now you take my advice and
 
 TWENTY YEARS IX STATE'S PEISOX 95 
 
 get out of the city within 24 hours, or we'll send you up 
 for good!" 
 
 It is Talt who is accused by Gelsky of coercing him 
 into falsely identifying Schwitofsky as the Dale burglar. 
 
 PROBABLE INNOCENCE. 
 
 The circumstance that Schwitof sky's wrist did not 
 bear the marks of the finger-nails of the chauffeur at the 
 Hotel Webster was conclusive proof to my mind without 
 the additional evidence I secured later that he was not 
 the man who had invaded the tailor's shop on the morn- 
 ing of January 19th. On making inquiries I found that 
 there were at least four men in a position to form ac- 
 curate opinions, who had grave doubts as to Schwitof sky's 
 guilt Babbi Goldstein, the Jewish chaplain of the 
 Tombs; Mr. Kimball, of the Prison Association; Mr. 
 Strisik, of counsel for the Austrian Consulate, and John 
 Hanley, then deputy warden of the Tombs. Eabbi Gold- 
 stein had put his views in the matter on record in the 
 letter to Judge 'Sullivan, that was on file with the rest 
 of the Schwitofsky dossier in the office of the clerk of 
 General Sessions. Mr. Strisik 's investigation in the case 
 during the brief period that he had it in hand had led 
 him to believe that there was strong probability of the 
 prisoner's innocence. 
 
 Mr. Kimball and Mr. Hanley did not believe that 
 Schwitofsky was the Dale burglar, because they knew of 
 his efforts to make an honest living during the period 
 between the suspension of his sentence by Judge Swann 
 in August, 1910, and his arrest in February, 1911. The 
 little electrician had made a point of calling, sometimes 
 as often as twice a week, on the agent of the Prison 
 Association in the Criminal Courts Building and on the 
 deputy warden of the Tombs, to let them know how he 
 was getting on.
 
 96 TWENTY YEARS IN STATE'S PRISON 
 
 "I never knew such a change in a man as appeared in 
 Schwitofsky from the time he was half crazy with anxiety 
 and suspense in the Tombs and afterward, when he be- 
 came a free man and began for a time to prosper," says 
 Mr. Kimball. "He would fairly beam with pleasure when 
 he came into my office to tell me of a contract he had 
 secured, or of the purchase of new tools. If he was lead- 
 ing a 'double life,' and working ten or twelve hours a 
 days as a cover for burglary at night, he is the first crook 
 to do so in my experience." 
 
 Mr. Hanley had definite information that made him 
 believe that Schwitofsky could not be sure of a square 
 deal from the police, that went back to his arrest in 
 Harlem. Three days after he had been taken into cus- 
 tody in Lenox Avenue Schwitofsky had been ' ' lined up ' ' 
 with a dozen other inmates in the Tombs, and Kinsler 
 and Duggan had brought in several householders, men 
 and women, from whom property had recently been 
 stolen, to ascertain if they recognized any of the prison- 
 ers as persons they had seen in the vicinity of houses 
 that had been robbed. On this occasion Hanley had de- 
 tected Duggan surreptitiously pointing out Schwitofsky 
 to a woman as the person he wished her to identify, after 
 she had previously indicated an Italian as the man she 
 had seen in her apartment. The deputy warden had made 
 a memorandum of this circumstance in the identification 
 book at the Tombs, and is prepared to produce the book 
 in court and give his evidence whenever they are called 
 for. 
 
 THE JUDGE INTERVIEWED. 
 
 All things considered, I felt justified in laying before 
 Judge 'Sullivan the information I had gathered with 
 regard to Schwitofsky. I found that the judge was cog- 
 nizant of all the circumstances. 
 
 "Schwitofsky was ably defended," he told me. "Mr.
 
 TWENTY YEARS IX STATE'S PEISOX 97 
 
 Carpenter, the first lawyer I assigned to the case, has 
 the respect of the judges of General Sessions, and Mr. 
 Keir, whom I asked to assist him, is a brilliant advocate. 
 The prisoner was found guilty after a fair and impartial 
 trial, and the sentence of 20 years is the lightest I could 
 impose on him as a second offender." 
 
 Judge 'Sullivan thought that Schwitofsky had not 
 treated his lawyers with sufficient consideration, and said 
 that they had found him a difficult person to deal with. 
 As an abstract proposition the prisoner ought, of course, 
 to have maintained a bland and cheerful front when the 
 legal gentlemen declined to look up his witnesses and his 
 chances for regaining freedom fled before him. Schwitof- 
 sky 's recent experiences may, however, scarcely be said 
 to have been favorable for the cultivation of optimistic 
 serenity. 
 
 Inspection of the papers in the Schwitofsky case in the 
 clerk's office of the Court of General Sessions showed 
 that the prisoner himself had brought certain conditions 
 to the attention of the judge. I found two of his letters 
 on file, one written the day after he had been found 
 guilty, and the other several days later when sentence 
 had been pronounced. The latter was as follows : 
 
 A CRY FROM 
 
 New York, June the 8th, 1911. 
 
 Hon. Judge 'Sullivan: 
 
 If your Honor pleases, I beg to state that on the date 
 sentence was imposed on me Attorney Mr. W. G. Keir 
 had pleaded contrary to my wishes. I did not ask for 
 the clemency of the court, but I did ask for a fair and 
 impartial trial, which I did not receive. Your Honor did 
 not give me the least opportunity to tell my story of 
 police persecution, which goes back as far as 1907. This
 
 98 TWENTY YEARS IN STATE'S PRISON 
 
 I am able to prove if investigated. Your Honor also 
 denied the motion wishing to explain how I got those 
 scars on the front of my left wrist after the District 
 Attorney had used them against me towards the jury, 
 stating that those are the cuts from a chauffeur's finger 
 nails. I could have proven by reliable witnesses and 
 records that I have had them since 1908. 
 
 I again repeat, having no one to investigate my case 
 and no means to obtain competent attorneys in the begin- 
 ning is the cause of my going to prison an innocent man. 
 From a bench of Justice your Honor announced that your 
 Honor had provided me a competent attorney, and that I 
 had had sufficient time to prepare for trial. The first 
 I rejected, the second I rejected; then your Honor has 
 assigned the attorney to conduct my case. 
 
 My first attorney, Mr. Bosler, assigned to me by Hon. 
 Judge Foster, declared me insane as soon as he found 
 that I had no means and had been confined in Matteawan. 
 Hon. Judge Foster appointed Dr. McGuire and Mr. Kim- 
 ball to inquire into my sanity. I asked Mr. Bosler to 
 investigate several matters concerning my case. To this 
 he replied: "What! Do you think I am going to spend 
 my time and money on your case, when there is nothing 
 in it for me ? I will defend you as an officer of the court 
 whenever you are going to be tried." 
 
 I leave it to your Honor's judgment if I rejected Mr. 
 Bosler wrongfully. Mr. Carpenter, the second attorney 
 assigned to me by your Honor, called on me five minutes 
 previous to my arraignment before your Honor. Mr. 
 Carpenter declared me insane. Speaking to him about 
 two minutes, he withdrew the plea and entered a plea 
 of insanity. At no other meeting of the Commission but 
 the first was Mr. Carpenter present, and I did not see 
 him until May 24. At that date I explained my case 
 to Mr. Carpenter. The 28th May I was to be placed on 
 trial, and I asked Mr. Carpenter if he knew my case.
 
 TWENTY YEARS IX STATE'S PRISON 99 
 
 To this he replied: "From A to Z." I then requested 
 him to tell me on what charge I was arrested and held 
 by Judge O'Connor in the Police Court. He said that I 
 was arrested on a charge of grand larceny. It was then 
 I told Mr. Carpenter : ' ' How are you going to defend me, 
 if you don't know the beginning of my case!" He in- 
 formed me that he is going to get out of my case, and I 
 should ask for another attorney. To this I consented. 
 Your Honor denied Mr. Carpenter's motion, and assigned 
 Mr. W. G. Keir. I had but 15 minutes or so to prepare 
 for trial. Mr. W. G. Keir, the less informed counsel, 
 tried the case, while Mr. Carpenter drawed all sorts of 
 pictures. At the end Mr. Carpenter summed up and 
 pleaded for me, being unfortunate, he pleaded for mercy, 
 clemency, everything but facts. How could he? A 
 prisoner could not do two things at once. This I also 
 leave to your Honor's judgment. 
 
 I do believe that if Mr. W. G. Keir had had time to 
 investigate my case I would have been defended properly. 
 Since my conviction I received a letter which, if investi- 
 gated, will reveal the truth. Having no one to do so, I 
 ask in the name of justice that you assign Mr. Kimball 
 to investigate this letter. Your Honor it is impossible 
 for me to think that by a court of justice an innocent 
 man could be sent to prison, but I trust in God that he will 
 not allow me to suffer very long. There could be only 
 one true story to a case, but the minutes of my trial will 
 show that every witness had committed perjury, excopt 
 the one from the Telephone Company. May God forgive 
 those who have put this sorrow upon me. I cannot. 
 
 Hoping and trusting that your Honor will grant my 
 request and assign Mr. Kimball to investigate my case 
 thoroughly, I remain 
 
 Obediently yours, 
 
 ALFRED SCHWITOFSKY.
 
 100 TWENTY YEARS IN STATE'S PRISON 
 
 A "FRAME-UP"? 
 
 Sentence had been pronounced on Schwitofsky on June 
 5th, but he had not yet been taken to Sing Sing on the 
 14th, the day I called on Judge 'Sullivan. This would 
 mean in ordinary circumstances that some detail of his 
 case was still under consideration by the judge. When, 
 therefore, Schwitofsky was ordered to Sing Sing by 
 'Sullivan the day after my visit to him, and I was in- 
 formed by Dr. Goldstein and Mr. Kimball that very prob- 
 ably it was my interference that had brought about the 
 immediate execution of the sentence and perhaps pre- 
 vented further official inquiry as to the prisoner's inno- 
 cence, I considered myself in duty bound to continue my 
 investigation. 
 
 This was the situation: If Schwitofsky was the in- 
 nocent victim of a police "frame-up," which had its 
 inception with Kinsler and Duggan, and Gelsky's story 
 of coercion by the detectives who made the arrest in the 
 Dale case was true, it was necessary to assume that 
 Brown, Talt, Dungate and Donnelly, the detectives who 
 brought about Schwitof sky's arrest on Gelsky's identifi- 
 cation of his photograph, or one or more of the four, had 
 taken advantage of the escape of the real criminal to 
 "job" the little electrician as a favor to their two 
 brothers-in-arms unless, indeed, one or more of the 
 quartette harbored a grudge against him. If Schwitof- 
 sky 's arrest had been brought about by his two alleged 
 enemies without the connivance of Brown, Talt, Dungate 
 or Donnelly, or any of them, the only other hypothesis 
 was that Dale had been influenced by Kinsler and Duggan 
 to identify Schwitofsky falsely as the burglar of Jan- 
 uary 19th.
 
 TWENTY YEARS IN STATE'S PRISON 101 
 
 DEPUTY POLICE COMMISSIONER DOUGHERTY " HELPS/' 
 
 My impression that there was at least a possibility 
 that Schwitofsky was the victim of a "frame-up" being 
 strengthened by the views of Dr. Goldstein, Messrs. Kim- 
 ball and Strisik and Deputy Warden Hanley, I laid the 
 matter before Police Commissioner Ehinelander Waldo. 
 Mr. Waldo at once sent for Second Deputy George S. 
 Dougherty, who had only recently come into the depart- 
 ment from the celebrated Pinkerton agency and was then 
 in charge of the detective bureau at police headquarters, 
 and directed him to make a thoro investigation into all 
 the circumstances surrounding Schwitof sky's arrest. In 
 Mr. Dougherty's office I gave him the information in my 
 possession with regard to the case, of which he made 
 notes on both sides of several sheets of paper, professing 
 a lively interest in it. 
 
 "I'll get some good men out right away," he said. 
 "Let's see this is Monday. Come in on Wednesday 
 morning, and I'll report progress." 
 
 The Schwitofsky problem seemed to me as I left police 
 headquarters that morning likely to have a quick solu- 
 tion. What with the famed Pinkerton finesse backed by 
 the entire police power of New York, I looked forward to 
 Wednesday with a view to the disclosure of some master- 
 ful detective work. It was a particularly propitious cir- 
 cumstance, I thought, that neither Waldo nor Dougherty 
 had come into the department until after the occurrences 
 to be investigated, since under existing conditions the 
 latter might hew to the line regardless of the direction 
 taken by his chips. 
 
 I was at Deputy Commissioner Dougherty's office 
 promptly at the hour he had specified on Wednesday 
 morning, but there was no adroit unraveling of a mystery 
 to admire. The long arm of coincidence and the fat head 
 of prejudication had become factors in the situation. It 
 so chanced that Dougherty had been one of the detectives
 
 102 
 
 to arrest Schwitofsky for the crime lie admitted commit- 
 ting in Pennsylvania in 1903, tho he had not at first recog- 
 nized the name. 
 
 "I remember that fellow well," Dougherty now de- 
 clared. "He's a criminal type the kind Lombroso tells 
 about. He can never be anything else but a criminal. ' ' 
 
 I reminded the deputy commissioner that modern 
 science discredited Lombroso in so far as recognition of 
 the existence of a criminal type was concerned, but he 
 was not to be convinced that he could be mistaken in his 
 estimate of Schwitofsky formed eight years before, tho 
 he had not seen or heard of him since until the present 
 occasion. 
 
 I found that Dougherty had construed Waldo 's instruc- 
 tions to investigate the circumstances surrounding the 
 arrest of Schwitofsky to mean that Schwitof sky's guilt 
 was to be proved to me. He had sublet part of the con- 
 tract to Lieutenant Dominick Eiley, who has since become 
 a captain. Riley had ordered the attendance at the deputy 
 commissioner's office that morning of Lieutenant Duggan 
 Kinsler being absent from the city on vacation of 
 Detective Brown, and of Scherer, the policeman who had 
 appeared against Schwitofsky on the occasion of his 
 arrest in East 12th Street. Inspector Weinthal of the* 
 Hoboken police department was also in attendance, by 
 request. 
 
 Before the inquiry began Lieut. Riley did me the honor 
 to take me into his confidence. He was the kind of a 
 detective, he gave me to understand, who would not hes- 
 itate were it part of the day's work to fix a crime upon 
 his own brother. He could not bring himself to believe 
 that Bill Brown, whom he regarded as a brother, could 
 possibly be guilty in the matter of a frame-up, he said, 
 but nevertheless should duty call he would not shrink 
 from expediting Brown 's or any other policeman 's course 
 in the direction of prison or the electric chair. It seemed
 
 TWENTY YEARS IX STATE'S PRISON 103 
 
 altogether improbable to Riley, admitting that Kinsler 
 and Duggan had annoyed Schwitofsky while he was at 
 work in Doyers Street, that Brown should have been in 
 their company, for (strictly between ourselves) he under- 
 stood that Brown was not on speaking terms with either 
 Kinsler or Duggan. As I had seen Brown and Duggan 
 in amicable converse in the anteroom only a few minutes 
 before, I was able to admire the subtlety of Lieut. Riley 's 
 method without being unduly influenced in its application. 
 
 When the Schwitofsky case was called before Deputy 
 Commissioner Dougherty, one after the other of the wit- 
 nesses told what they knew in the electrician's disfavor. 
 I was allowed the privilege of cross-examination, but the 
 only additional information I got was from Lieut. Brown. 
 Brown said that after Schwitof sky's arrest he and Don- 
 nelly had taken their prisoner to the taxicab starter's box 
 on the sidewalk before the Hotel Webster at 40 West 
 Forty-fifth Street. It seemed that the chauffeur who 
 acted as starter at the hotel had stopped the bogus tele- 
 phone repairer when he ran from Dale's house further 
 down the block on the morning of January 19th; had 
 taken his pistol from him, and in doing so had torn the 
 skin from the back of the man's right wrist, insomuch 
 that he had afterward found particles of the other's 
 cuticle under his finger nails. He had let the fellow go, 
 however, and Brown's and Donnelly's purpose in now 
 taking Schwitofsky before the chauffeur was that the 
 latter might identify him as the man with whom he had 
 had the struggle in the street. 
 
 "// this is the man/' said the chauffeur, according to 
 Brown, "he'll have the marks of my finger nails on his 
 wrist all right. It was only ten days ago that I made 
 'em, but I'll bet that they'll last a year." 
 
 1 1 Did he find the marks ? " I asked Brown. 
 
 "I don't think he did," replied the detective. 
 
 "Well, how can Schwitofsky be the man the chauffeur
 
 104 TWENTY YEARS IN STATE'S PRISON 
 
 took the revolver from, if lie hasn't got those marks?" I 
 inquired. 
 
 "Perhaps he did have them; I'm not sure," said 
 Brown. 
 
 On being further questioned, Brown finally said : " Well, 
 I'll give the prisoner the benefit of the doubt; we didn't 
 find any marks." 
 
 Reflecting before visiting his office that morning upon 
 the brilliant detective work Deputy Commissioner Dough- 
 erty would probably perform in solving the Schwitofsky 
 mystery, I had been particularly interested in the con- 
 jecture as to how he would go about ascertaining whether 
 or not relations existed between the proprietor of the 
 tailor's shop and Kinsler and Duggan or either of them. 
 I. was enlightened during the examination of Duggan. 
 
 "Do you know Theodore B. Dale of 71 West Forty- 
 fifth Street?" demanded Dougherty in the course of his 
 questioning. 
 
 ' ' No, sir, ' ' responded Duggan. 
 
 When the policemen and detectives had gone Dougherty 
 said to me: "Now you see, not one of these men knew 
 what he came here for until I began to ask him questions, 
 and each one answered every question asked him without 
 hesitation. ' ' 
 
 I could only reply that if they were able to remember 
 all the cases they had been involved in during the prev- 
 ious three years, including circumstances, dates, street 
 numbers and hours and minutes, as well as they did that 
 of Schwitofsky, each one was qualified to rival Macaulay 
 in mnemonics. There is not the slightest doubt in my 
 mind that each man had been informed what he was sum- 
 moned to headquarters for, and that he had prepared 
 himself for the ordeal if it may be called that. 
 
 Left alone with the deputy commissioner and Lieuten- 
 ant Riley, they seemed surprised and even a trifle hurt 
 that I should still consider that there was any possibility
 
 TWENTY YEARS IN STATE'S PRISON 105 
 
 that Schwitof sky was not the Dale burglar, but they never- 
 theless inquired whether I could suggest further research. 
 I thought that the character of the establishment at 71 
 West Forty-fifth Street might be ascertained with a view 
 to more light on the subject under investigation, and that 
 the chauffeur (of whose identity I was then unaware, and 
 which I afterward established myself) who had stopped 
 the escaping criminal and scraped the skin from his 
 wrists, ought to be found. Dougherty and Eiley agreed 
 that that might be worth while, and I was instructed to 
 come to headquarters again at noon on Saturday. 
 
 When Saturday noon and I arrived at police head- 
 quarters, Eiley made his report. He had gone up to 71 
 West Forty-fifth Street the day before, announced him- 
 self as from the Police Department, and had asked Dale 
 whether his house was reputable, afterward sending him 
 out of the room and asking the same question of three 
 of his employes. Dale and the others had one and all 
 replied in the affirmative, and Eiley had departed, having 
 put the tailor on his guard as to a possible investigation 
 of his premises, and thru him whoever might have been 
 aiding and abetting him in offenses against the law. 
 Eiley had not been able to find the chauffeur, but prom- 
 ised to concentrate his intelligence upon the task at once. 
 
 KUHNE IN CHAEGE. 
 
 Informing 'Commissioner Waldo of the manner in which 
 Dougherty was conducting the Schwitofsky investigation, 
 the matter was promptly taken out of his hands and 
 put into those of Acting-'Captain August Kuhne, the 
 head of the Brooklyn detective bureau. In assigning 
 this duty to him, Waldo told the acting captain in my 
 presence that he was going to promote him to a full 
 captaincy very soon, and in his delight Kuhne bubbled 
 over with enthusiasm about the Schwitofsky case. The 
 same evening, so he reported to me the next morning,
 
 106 TWENTY YEARS IN STATE'S PRISON 
 
 he and Detective Henry C. Dukeshire, also of the Brook- 
 lyn bureau, went up to Forty-fifth Street and, without 
 discovering anything untoward, watched No. 71 from 
 9 o'clock until after midnight altho I had informed him 
 of Eiley's diplomatic visit. That day Kuhne and Duke- 
 shire obtained ingress to the house as building inspec- 
 tors, and saw nothing wrong. They also looked up the 
 parents of the seventeen-year-old seamstress who had 
 testified at Schwitof sky's trial, and found them to be 
 respectable, and that the girl had left her situation be- 
 cause of the notoriety attaching to the place after the 
 burglar's visit. 
 
 A visit to the detective bureau at police headquarters 
 had the effect of talcing the edge from Kuhne 's zeal 
 in the Schwitof sky inquiry. ''Bill Brown," said Kuhne 
 to me the next time I saw him, "is one of the squarest 
 men in the police department, and I am sure that he is in- 
 capable of taking part in a frame-up. I made him give 
 me his honest opinion in the matter, and he said: 'If 
 there ever was a man justly convicted of a crime, it is 
 this Schwitof sky. ' Brown says that Gelsky gave him 
 the clue whereby he found Schwitofsky without the 
 slightest suggestion on his part, and he simply followed 
 it up and landed him. Donnelly and Dungate, who were 
 on the case with Brown, were scarcely more than boys; 
 they had just come into the detective bureau at that time 
 and that was almost their first case." 
 
 Altho "scarcely more than boys," Dungate and Don- 
 nelly were first grade detectives, each something like 
 thirty years of age, who might have learned some guile 
 during the experiences that qualified them for the de- 
 tective bureau. Everyone who knew Detective Brown 
 seemed to have the same high opinion of him. I had 
 first heard it expressed by Daniel E. Kimball of the 
 Prison Association, who told me that in all the years 
 that he had known that officer he had never heard a
 
 TWENTY YEARS IN STATE'S PRISON 107 
 
 complaint of unfairness against him from a prisoner. 
 Brown himself said to me: "In the twenty-six years 
 I have been on the police force, this is the first arrest I 
 have ever made that has been questioned." 
 
 I was unable to induce Dougherty, Kuhne, Eiley or 
 Brown to take any interest in my theory that if the 
 so-called burglar who threatened Dale and his servants 
 with a revolver had had the skin torn from his right 
 wrist by the chauffeur who took the weapon away from 
 him, Schwitofsky must bear marks of the operation if 
 he were the criminal. 
 
 And there the investigation ended so far as the de- 
 tectives were concerned. 
 
 Dougherty, Kuhne and the others had dared to burke 
 this investigation, in the face of specific orders from 
 Commissioner Waldo himself, whom they knew to be 
 anxious to learn the truth. The only alternative to the 
 proposition is that they are dolts and bunglers and that 
 is not their reputation. They simply would not pursue 
 an inquiry that promised to implicate in a crime any 
 of their fellows in the police department, and they did 
 what was in their power to give warning to all con- 
 cerned that an investigation was on as has been shown. 
 
 'THE JOURNALIST' TAKES CHABGE. 
 
 I now suggested to Commissioner Waldo that he turn 
 the Schwitofsky investigation over to me, giving me 
 power to examine those members of the force who had 
 been concerned in the electrician's numerous arrests. 
 Waldo at once instructed his secretary, Winfield R. Shee- 
 han, to summon to police headquarters such members 
 of the department as I might wish to interrogate, and to 
 order them to answer any questions I might ask. 
 
 Up to this time I had not heard the name of Detective 
 Talt mentioned in connection with the Schwitofsky case. 
 I had been kept in ignorance of the participation in the 
 arrest of Gelsky of that one of the four detectives en-
 
 108 TWENTY YEAES IN STATE'S PRISON 
 
 gaged in his pursuit who Schwitofsky asserts threatened 
 him in the street, and whom Gelsky charges with having 
 coerced him into the false identification of Schwitofsky 
 as the Dale burglar ! Talt was the last one of the quar- 
 tette whom I questioned in the matter of the coercion of 
 Gelsky, and I did not see him until two weeks after Com- 
 missioner Waldo had first set the investigation in motion. 
 Before I had asked him a question, Talt volunteered 
 the information: "I never heard that there was any 
 trouble about the Schwitofsky case until a day or two 
 ago, when Lieutenant Brown told me that you would 
 probably ask me about Gelsky 's arrest. He said that 
 he hadn't mentioned the matter before because there was 
 no use in my worrying as well as himself." 
 
 Why either of the detectives should have worried about 
 an investigation in the Schwitofsky matter unless some 
 phase of it was discreditable to them, is for them to 
 explain. 
 
 Talt told me that his only commerce with Gelsky was 
 to buy him cigarettes and to promise him help in his 
 own difficulties with the law, provided he would assist 
 the detectives in getting the Dale burglar. In his letter 
 to Dr. Goldstein, Gelsky had said that Dungate was the 
 man who had shown him Schwitof sky's photograph and 
 declared that it had been recognized by Dale; but, as 
 Dungate told me that he had not seen Gelsky since his 
 arrest, I concluded after my talk with Talt that Gelsky 
 provided that he was attempting to tell the truth had 
 confused the two men, as both might answer the same 
 general description. To straighten this and other mat- 
 ters out I visited Gelsky at the Elmira Eef ormatory, and 
 had a half an hour talk with him in the presence of the 
 head keeper of the institute, John D. Driscoll. 
 
 While a thoroly depraved young reprobate, Gelsky is 
 an intelligent youth. When I suggested that he had mis- 
 taken Dungate for Talt, he said :
 
 109 
 
 i i It was Dungate that showed me the photograph. He 
 and Talt are about the same size, but otherwise they 
 are not much alike. Talt is older than Dungate, and is 
 stuck on himself, while Dungate is a good natured, free 
 and easy young fellow," which is a fairly good differen- 
 tiation between the two. 
 
 GKLSKY S STORY. 
 
 Gelsky's account of the coercion incident is that he 
 was alone in a room in the 57th Street courthouse, with 
 Dale, the complainant against him, and the four detec- 
 tives, Brown, Talt, Dungate and Donnelly. Here Dun- 
 gate showed him the photograph, and told him that Dale 
 had recognized it as that of his unwelcome visitor of 
 January 19th, but did not pursue the subject further. 
 Afterward Talt, who had been very attentive to him, 
 and had purchased him cigarettes and promised to see 
 that he was discharged on the blackmail complaint if he 
 helped apprehend the Dale burglar, took him down to 
 the cells. On the way his hitherto benevolent guardian 
 suddenly made a violent assault upon him and threatened 
 him with future chastisement, dire and awful, Gelsky 
 asserts, unless he should promise to identify the Schwit- 
 ofsky photograph as that of the bogus telephone re- 
 pairer. Being badly frightened, Gelsky says, and having 
 heard of prisoners being mercilessly punished in their 
 cells by New York policemen, he made the required 
 promise ; and, when Brown came to his cell afterward he 
 gave him the information that led to the capture of 
 Schwitofsky at the Mills Hotel in Rivington Street. 
 
 Gelsky told me that he had previously seen Schwitofsky 
 at the Mills Hotel, where he was known as "the checker 
 fiend," by reason of his fondness for the game. He 
 thought that he might have once played a game of 
 checkers with him, but that would have been the extent
 
 110 TWENTY YEARS IN STATE'S PRISON 
 
 of their acquaintance. Gelsky 's story of the alleged Dale 
 burglary is that the tailor had given him a demand note 
 for $100 on account of the injuries he had sustained on 
 the occasion of their first meeting. He had tried several 
 times to get Dale to pay the $100, without success, and 
 on the morning of January 19th had given the note with 
 a letter demanding its payment to a partner of his, and 
 sent him to collect it. As Dale had become suspicious of 
 strangers, the partner pretended to be a telephone re- 
 pairer in order to obtain access to the house. His part- 
 ner, Gelsky says, was about the size and build of Sehwit- 
 ofsky, but only 24 years of age. "He works with his 
 brains," the youth said proudly, elevating him above 
 Schwitofsky, who, as an electrician, works with his hands. 
 Gelsky declared that he saw the gentleman who works 
 with his brains off for Chicago on the morning of the 
 day he (Gelsky) was arrested. "I wanted him to tackle 
 Dale the second time," he said, "but he knew more than 
 I did. He knew when to stop, and I didn 't. ' ' 
 
 Gelsky told me that, knowing his partner to be beyond 
 reach of the New York police, he described him accurately 
 to the detectives before he was shown Schwitof sky's 
 photograph. "I even told them about some weals on his 
 arms," he said. 
 
 When Gelsky had been taken back to his cell, I asked 
 Driscoll what he thought of the boy's story. 
 
 "He's a tough citizen, all right," replied the head 
 keeper, "but he was telling the truth that time." 
 
 It was not until I was back in New York that the 
 significance of the "weals" on the arms of Gelsky 's 
 partner, whom he claims to be the real Dale burglar, 
 occurred to me. I at once wrote to Mr. Driscoll, asking 
 him to inquire of Gelsky if he knew how his friend came 
 by those weals. Driscoll replied as follows : 
 
 "Gelsky makes the following statement: 'That his 
 partner after leaving the Dale home was stopped by two
 
 TWENTY YEARS IX STATE'S PRISON 111 
 
 auto drivers, and that he had a revolver up his sleeve 
 which he dropped in an apartment telephone booth. This 
 gun caused the 'welt' or 'weal' on his partner's wrist, 
 he thinks." 
 
 By the " apartment telephone booth" Gelsky means 
 the taxicab starter's little office on the sidewalk in front 
 of the Hotel Webster. The ''weal" or "welt" was 
 caused by the chauffeur's finger nails. Gelsky 's partner 
 had preferred to tell him that he dropped the revolver 
 rather than it was taken away from him, it seems. 
 
 Gelsky had told me in the Keformatory that he had 
 informed Neilsen Olcott (2nd), whom Judge 'Sullivan 
 had assigned as counsel for him, that he had given false 
 evidence against Schwitofsky, and that Olcott had sent 
 the information to the other's lawyer. On mentioning 
 this circumstance to Mr. Olcott, on whom I called at his 
 office, he recalled the case immediately. 1 l The first thing 
 Gelsky said to me when I went to see him in the Tombs 
 after being assigned to defend him," Olcott told me, 
 "was that he had got an innocent man into grave trouble, 
 and that he wanted to repair that injury more than to 
 clear himself. He was so insistent in the matter that I 
 wrote to the injured man's lawyer, William D. Bosler 
 about it. I got an acknowledgment of the letter, but 
 never heard from him in the matter again. 
 
 "The boy, Gelsky," Olcott continued," was a rascal, 
 but his anxiety to clear this man, Schwitofsky, was so 
 strong that I almost took a liking to him. His remorse 
 in that instance seemed to me his one redeeming trait. 
 He never saw me that he did not ask me if I couldn't 
 do something more than I had done to prove Schwitof- 
 sky 's innocence, and tho he lied and contradicted himself 
 about almost every other point that came up in his case, 
 he always told the same story about having given up 
 the wrong man to the police. ' ' 
 
 The story Gelsky told to Olcott about his being coerced
 
 112 TWENTY YEARS IN STATE'S PRISON 
 
 into the identification of Schwitof sky's photograph by 
 Talt is the same that he told me. Olcott's letter to 
 Bosler, which was dated April llth, was as follows : 
 
 "Dear Sir : I am the attorney for Leo Gelsky, who has just been 
 sentenced to Elmira under an indictment for blackmail, on which he 
 pleaded guilty. I understand that you are the attorney for a man in the 
 Tombs, whose name I do not know, but who, my client tells me, has 
 been implicated thru some statement of his. He informs me that the 
 statement is untrue, and that he would be very glad to do anything 
 in his power to right the matter, and is entirely willing to testify in 
 your client's favor, should you so desire. 
 
 "You can see from the ambiguous tone of my letter that I am un- 
 familiar with the case of which you are in charge, but I have no doubt 
 that this letter will be more intelligible to you than it is to me." 
 
 Mr. Bosler remembered the incident of the letter from 
 Olcott, when I saw him the same day. The letter had 
 been received while he was away from his office, ill in a 
 hospital, and had been acknowledged by his secretary. 
 He told me that he had not considered it worth while 
 to send the information that Gelsky was prepared to 
 testify at the Schwitofsky trial to Mr. Carpenter, when 
 that lawyer succeeded him as counsel in the case, how- 
 ever. Bosler frankly confirmed Schwitof sky 's statement 
 in one of his letters to Judge 'Sullivan, that he had 
 told his client that he would not spend time and money 
 in looking up his witnesses. "He had an awful record, 
 and I believe that he was more than half crazy," ob- 
 served the lawyer. "I was glad when some one else was 
 assigned to defend him while I was ill." 
 
 A VETERAN'S OPINION. 
 
 I cited Schwitof sky's case to a veteran journalist, 
 who has the reputation of knowing more about the New 
 York police force than most of the men connected with 
 the department. "Kinsler and Duggan," he told me, 
 "would consider themselves as acting quite within the 
 sphere of duty in arresting your man whenever they came
 
 TWENTY YEAHS IX STATE'S PRISON 113 
 
 across him. He was an ex-convict, and in their minds a 
 professional criminal, doubtless. Detectives often make 1 
 arrests of men who they know cannot 'get back' at them, 
 even if they are not criminals, merely for the sake of 
 adding to the number of arrests to their credit. Some- 
 times a plainclothes man, who may have spent the night 
 playing poker, or even at home in bed, will arrest an 
 inoffensive crook on his way to headquarters and trump 
 up a charge against him, pretending that he has spent 
 hours on the trail in order to account for his time. 
 
 "As to the arrest in Harlem being a i frame-up,' that is 
 quite possible. Kinsler and Duggan were out for a 
 record, and if they could put a professional criminal 
 behind the bars, and at the same time gain repute for 
 themselves, they would probably consider that they were 
 doing a public service in laying the criminal by the heels, 
 regardless of the method of doing it. The same proposi- 
 tion goes with the Dale burglary, but under different 
 conditions: Four detectives in this instance devote ten 
 days to the apprehension of Gelsky and his partner. 
 They get Gelsky, and he tells them that the other offendei* 
 is beyond their reach. It is not to their credit that he 
 has escaped them, and one of them at least knows of an 
 ex-convict, whom we will say he believes to be a dan- 
 gerous man, at large in the community, who has threat- 
 ened to disgrace two brother detectives. Why not put 
 up a job on the ex-convict, thus not only obtaining credit 
 for the arrest of the Dale burglar, but getting a danger- 
 ous criminal out of the way, and likewise preventing his 
 informing on their brethren ? ' ' 
 
 THE ABREST IN 1908. 
 
 In considering pros and cons as to whether Schwitof- 
 sky's arrest was the result of a police "frame-up," we are 
 justified in assuming that Duggan at least was willing to
 
 114 TWENTY YEARS IN STATE'S PRISON 
 
 send him to prison on manufactured evidence, since that 
 is a matter of record in the identification book at the 
 Tombs. Further, Schwitofsky says that he saw Kinsler 
 point him out, through the space between an open door 
 and its frame in the Centre Street police court, and that 
 the man to whom he was thus pointed out afterward 
 identified him as a person he had seen in the hall of an 
 apartment house that had been robbed. 
 
 If there was a ' ' frame-up ' ' in this instance, there were, 
 besides Kinsler and Duggan, the four other central office 
 detectives comprising with them the Harlem burglary 
 squad, concerned in it L'Heureux, Geary, Mott and 
 Quick. If Schwitof sky's story is correct, he was arrested 
 on Lenox Avenue between One Hundred and Sixteenth 
 and One Hundred and Seventeenth Streets about mid- 
 night, while in the company of a "stool pigeon" (em- 
 ployed by Kinsler and Duggan) who had accompanied 
 him to the Bowery earlier in the evening, and had been 
 with him when he purchased the pistol, the putty knife 
 and the pliers for use in his store, which appeared in 
 the charges against him as concealed weapons and bur- 
 glars' tools. The stolen property in his possession upon 
 which he was indicted consisted of two inexpensive stick- 
 pins, tho a hand mirror with a white metal back, and 
 fourteen copper coins, were found upon Mm that were 
 also claimed by the owner of the other articles. The pins, 
 the mirror and the coins, according to Schwitofsky, had 
 been given to him by his partner, who had purchased 
 them a few days before from a pedlar in their store in 
 the presence of several customers. The detectives record 
 the arrest variously as occurring at two, two-thirty, two- 
 thirty-five, and three o'clock in the morning. 
 
 Schwitofsky maintains that the "stool pigeon" had 
 communicated with Kinsler and Duggan after leaving 
 him in the Bowery, and had afterward waited for him 
 at the Spring Street entrance to the subway to accom-
 
 TWENTY YEAES IN STATE'S PRISON 115 
 
 pany him uptown and deliver him into the hands of his 
 enemies, with the pistol, the putty knife and the pliers in 
 his possession; that a mask that he was said to have 
 secreted under his hat had been produced either by his 
 companion or the detectives at the moment of his arrest, 
 and that the pistol, putty knife and pliers were un- 
 wrapped from the original package afterward. If Schwit- 
 of sky's story is correct, the detectives must have had 
 him in seclusion somewhere for a couple of hours, for, 
 according to the police blotter, he did not reach the East 
 One Hundred and Twenty-sixth Street station (where he 
 says he arrived in an unconscious condition as the result 
 of the blow from a blackjack) until after 2.35 in the 
 morning. 
 
 I heard Duggan 's version of the capture of Schwitof- 
 sky as he related it to Deputy Commissioner Dougherty 
 in the latter 's office, and I subsequently examined separ- 
 ately at police headquarers the five other detectives who 
 share with him the honors of the arrest on the records 
 of the department. Kinsler and Duggan agreed in the 
 statements that they were alone when they arrested 
 Schwitof sky, and that he had no companion at the time ; 
 that Duggan took the pistol from the outside right hand 
 overcoat pocket of the prisoner, and that neither it, the 
 pliers nor the putty knife were done up in a parcel ; that 
 neither of them struck the prisoner with a blackjack or 
 anything else, and that the other detectives did not arrive 
 on the scene until summoned by Kinsler 's whistle. 
 
 The six detectives agree on the three main points, es- 
 sential to prove that Schwitofsky was intent on a burg- 
 larious errand that night that the arrest was at an 
 hour when no honest man would be in the streets without 
 some special reason; that he had a mask on his person, 
 and carried a loaded pistol and burglars' tools that is 
 the putty knife and the pliers; that he was beyond One 
 Hundred and Eighteenth Street, the thoroughfare in
 
 116 TWENTY YEARS IN STATE'S PRISON 
 
 which they assigned him a domicile. They also agree 
 that he was alone. 
 
 Schwitofsky contends that it was about midnight that 
 he was arrested; that he was on his way from the sub- 
 way station at One Hundred and Sixteenth Street to his 
 home over the delicatessen store in One Hundred and 
 Seventeenth Street near Second Avenue; that the pistol, 
 and the so-called burglars' tools were respectively for 
 protection and use in his store, and that they were in his 
 overcoat pocket in the package in which they had been 
 done up on being purchased that evening; that he was 
 accompanied by the ' ' stool pigeon, ' ' who he believed had 
 notified the detectives that he would come up in the sub- 
 way with their prospective victim. 
 
 If we accept the story of the detectives, we must pic- 
 ture Schwitofsky starting out on that March morning on 
 burglary bent, wearing a part of the proceeds of another 
 burglary he had committeed in the same neighborhood 
 a few days before in the shape of the stickpins in his tie 
 and muffler, also with a hand mirror and fourteen copper 
 coins stolen on the same occasion in his pocket, and carry- 
 ing a mask on his head in such fashion that the accidental 
 displacement of his hat, that might have been effected 
 in any one of a score of different ways, would proclaim 
 him to any chance spectator as bound on a criminal er- 
 rand. If the stickpins and the hand mirrors were loot 
 from a burglary he had committed a fortnight before 
 within a few blocks of the place where he was arrested, 
 is it probable that Schwitofsky would go forth between 
 two and three o'clock in the morning to commit other 
 burglaries with these articles on his person, so that in 
 the event of capture the previous crime might be fastened 
 upon him? 
 
 The circumstance that Schwitofsky was wearing jew- 
 elry that had only recently been stolen from an apartment 
 in the immediate vicinity, proves that he came by if
 
 TWENTY YEARS IN STATE'S PRISON 117 
 
 honestly. Men familiar with the habits of burglars in- 
 form me that these predal craftsmen do not make a prac- 
 tice of wearing their loot conspicuously on their outer 
 garments in the localities looted, at least not until the 
 hue and cry attendant upon the looting is over. Had 
 Schwitofsky been a professional criminal and had he 
 stolen the scarfpins, he would have known that their des- 
 cription was in the hands of the police and would have 
 disposed of them as soon after they came into his pos- 
 session as possible. 
 
 To my mind Schwitof sky's entire story of the events 
 of the night of March 6th, 1908, carries evidence of 
 truth in the very primitivenss of its construction. As : 
 suming him to have been manufacturing a defense, his 
 story would have been less involved, and therefore less 
 in need of collateral confirmation if he had claimed thaf 
 Kinsler and Duggan imposed the pistol, the pliers, the 
 putty knife and the scarfpins, as well as the mask, upon 
 him at the moment of arrest, rather than only the mask. 
 It is as conceivable that the detectives " planted" all 
 these articles upon him as that it was the mask alone. 
 
 Schwitofsky says that he was struck with a blackjack 
 when he was arrested, and one of the detectives admitted 
 it to me. Further, the records of the penitentiary show 
 that he was transferred to the hospital department soon 
 after being admitted to the institution, suffering from 
 injuries to the head, probably caused by a blow. He 
 says that he was struck because he attempted to assult 
 his companion, the "stool pigeon." The detectives de- 
 clare that there was no "stool pigeon" nor anyone else 
 in his company when he was arrested, and that he sub- 
 mitted without a struggle. Had the detectives allowed 
 the presence of the "stool pigeon" there would have 
 been an excuse for striking the prisoner, since he admits 
 having assaulted him. However, there would have been 
 a compensating disadvantage in that it would have been
 
 118 TWENTY YEARS IN STATE'S PBISON 
 
 necessary to use the aforementioned bird's evidence in 
 the event of trial, and he would probably not have been 
 able to undergo cross-examination in court on the events 
 of the previous evening. On the whole the case was a 
 better one from the detectives' point of view with the 
 "stool pigeon" eliminated. 
 
 LETTEBS MYSTERIOUSLY MISLAID. 
 
 So much for the stories of both parties to the contro- 
 versy Schwitofsky on the one side and the detectives on 
 the other. It is the discrepancies in the police records 
 of the case, and the conduct of Kinsler and Duggan after 
 the arrest that give rise to the belief that there was a 
 crooked scheme on foot. For instance, on the 23rd of 
 November following the arrest the then District At- 
 torney, William Travers Jerome, wrote to the then Police 
 Commissioner, General Theodore Bingham, asking his 
 attention to facts reflecting upon the police management 
 of the case, which was in the hands of Kinsler, Duggan 
 and Geary, as follows: 
 
 "Agreeably to your conversation with Mr. Ely of my staff, I send 
 you the following information with respect to the case of The People 
 vs. Alfred Gerber, indicted for burglary in the 3rd degree, in which 
 Mrs. Elma J. Ellsworth is the complaining witness. The defendant was 
 sentenced to the Penitentiary at Blackwell's Island for six months in the 
 Court of Special Sessions on the 7th of April, 1908, and he was trans- 
 ferred to the State Hospital for the Insane at Matteawan on the 15th 
 of May, 1908. A bench warrant was sent to the Superintendent of such 
 hospital with him to insure his return here should his condition war- 
 rant it. He was indicted for having burglarized the apartment on 
 premises 113 West 115th street, occupied by the complaining witness, on 
 or about the 19th day of February, 1908. The amount of property 
 stolen was estimated at $1800, representing jewelry, clothing, under- 
 wear, etc. 
 
 "None of the property was ever recovered except two stickpins, a 
 small silver mirror and some coins. These were found upon the per- 
 son of defendant when he was arrested. The officers in the case were 
 Kinsler, Duggan and Geary. The facts are as follows: 
 
 "On or about 13th of February 1908 the complaining witness left
 
 TWENTY YEAES IN STATE'S PRISON 119 
 
 her apartment and went out of town. She was gone until the 20th ; 
 between the 13th and the 20th days of February her premises were 
 broken and entered and the property above referred to was taken. Im- 
 mediately after her return she interviewed the janitor, who told three 
 different stories as regards the time when the burglary occurred. He 
 stated in her presence and in the presence of Mr. Reise, 1st, that the 
 premises had been entered on Wednesday, and he told John Mendel, a 
 brother-in-law of the complaining witness, that the premises had been 
 broken open on Tuesday night, and he told a certain other person, a 
 vegetable vendor, whose name the complaining witness does not remem- 
 ber, but who can be produced, that the premises were broken open on 
 Monday night. According to the complaining witness the janitor, whose 
 name is Sharley or Charley, was employed during her absence from her 
 apartment. The complaining witness told the officers above referred to, 
 namely Kinsler, Duggan and Geary, about the conflicting statements 
 made by the janitor on the evening of February 20th, 1908, upon her 
 return, and said that she thought the janitor ought to be interrogated 
 because of them. The complaining witness also told me that Kinsler 
 informed her that he knew this janitor and that his picture was in the 
 Rogues' Gallery. As a matter of fact, however, so far as the complain- 
 ing witness knows, or so far as any one in this office can ascertain, the 
 officers never did anything toward apprehending, examining or produc- 
 ing the said janitor, as a tcitness, either before the City Magistrate 
 when Gerber icas held, or at any other time; nor did they ever produce 
 any witness at the District Attorney's office except two persons who 
 knew nothing about the burglary and only located the defendant as 
 lurking about the complaining witness's premises. 
 
 "It seems to me that this matter sJiould be investigated because of 
 the amount of the property involved; because of the failure to report, 
 and became of tJic failure to look up and apprehend the janitor of the 
 premises." 
 
 Kinsler and Duggan, who were both able and am- 
 bitious men, working hard for promotion, had been sent 
 to Harlem at the head of the squad comprising the four 
 other detectives for the purpose of suppressing a burg- 
 lary epidemic there. Why should they have been so 
 lax in following the clue relating to the janitor of the 
 apartment where the burglary in question had occurred, 
 particularly as Kinsler knew that the fellow's photo- 
 graph was in the rogues' gallery? The only complete 
 answer to that question is that they had put into opera- 
 tion a scheme to ' 'frame up" Schwitofsky as the crim-
 
 120 TWENTY YEAES IN STATE'S PRISON 
 
 inal, which would be thrown into confusion by the arrest 
 of another suspect. 
 
 The letter from Jerome's office was acknowledged by 
 Gen. Bingham, with the promise that "the matter will 
 be carefully and promptly investigated." In ordinary 
 circumstances the District Attorney's communication 
 above would have been referred to Deputy Commissioner 
 Arthur Woods, who was then at the head of the De- 
 tective Bureau, or to Deputy Commissioner Bert Han- 
 son, who had charge of the police trials. Neither Gen. 
 Bingham nor his private secretary at that time, Daniel 
 E. Slattery, to both of whom I showed the letter, remem- 
 bered anything about it as is quite natural after an 
 interval of five years. Both Mr. Woods and Mr. Hanson 
 were positive that it had never been referred to either 
 of them. Former Assistant District Attorney James E. 
 Ely, who had charge of the prosecution in the Ellsworth 
 burglary case, recalled the letter to Gen. Bingham and 
 the fact that no investigation of Kinsler, Duggan and 
 Geary's connection with the matter was ever reported 
 to him. (He also recalled the fact that he had a sus- 
 picion at the time that the failure of the detectives to 
 arrest the janitor mentioned in the letter indicated 
 something irregular in the police conduct of the case.) 
 The fact is that no investigation was ever made, altho 
 on November 27th Duggan turned in a routine report 
 of the Ellsworth burglary addressed to Mr. Woods which 
 that gentleman does not remember ever to have seen. 
 
 A possibility is that the letter from the District 
 Attorney, Gen. Bingham 's acknowledgment of it, and 
 Duggan 's report were abstracted from the files at police 
 headquarters and not returned until after Gen. Bing- 
 ham was out of office. The effect of the removal of 
 these documents from their places would be that, not 
 being reminded of his proposed investigation of the con- 
 duct of Kinsler, Duggan and Geary by the return to his
 
 TWENTY YEARS IN STATE'S PRISON 121 
 
 desk of the District Attorney's letter with Duggan 's 
 report, Gen. Bingham never thought of the matter again, 
 since, with so many more important matters on his mind, 
 he would not have automatically recalled the Ellsworth 
 case. Mr. Ely informed me that the abstraction of papers 
 from the files at police headquarters was a common oc- 
 currence during his connection with the District Attor- 
 ney's office; also that he had more than once been able 
 to prevent police ' 'frame-ups" of prisoners in trials 
 where he was prosecutor. 
 
 THE 1908 IDENTIFICATION. 
 
 Two days after Schwitof sky's arrest in Harlem he was 
 "lined up" in the corridor of the Tombs prison with half 
 a dozen other prisoners, and Kinsler and Duggan brought 
 in five persons, two of whom were householders whose 
 premises had recently been robbed, to ascertain if any of 
 them had ever seen him before. A daughter of one of 
 these householders, a young woman, had seen the pre- 
 sumed burglar in the hallway of her father's house, and 
 thought she would be able to identify him if she saw him 
 again. On going along the line of prisoners this young 
 woman picked out an Italian named Jovine as the man 
 she had seen in the hallway. After a talk with Duggan, 
 however, she declared that she had made a mistake and 
 that Schwitofsky was the man. Deputy Warden Hanley 
 had seen Duggan indicate Schwitofsky to her, however, 
 and he refused to let the identification stand, although 
 the lieutenant begged him to do so. These facts are a 
 matter of record in the Tombs identification book. A 
 man whom Kinsler and Duggan brought to the Tombs 
 on the same occasion and who identified Schwitofsky as 
 having been loitering about the apartment from which 
 the stickpins and the hand mirror had been stolen on 
 the day of the burglary, gave a false address. At least
 
 122 TWENTY YEARS IN STATE'S PRISON 
 
 when I looked him up there in the summer of 1911, the 
 janitress was positive that no such person had lived there 
 during her term of office, which covered ten years. This 
 was the man to whom Schwitofsky says he saw Kinsler 
 point him out through a crack in the door in the Center 
 Street police court the day of the line up in the Tombs. 
 
 Schwitofsky asserts that when his "pedigree" was 
 taken at the One Hundred and Twenty-sixth Street police 
 station, his name being given as Gerber and his address 
 as 343 East One Hundred and Eighteenth Street, he was 
 only partially conscious as a result of the blow from 
 the blackjack, and did not know what was written in the 
 blotter. He declares that he never lived in One Hundred 
 and Eighteenth Street, but at the time of his arrest he 
 had a room over his store in East One Hundred and 
 Seventeenth Street. Kinsler assured me in 1911 that 
 Schwitofsky did live in One Hundred and Eighteenth 
 Street, because he (Kinsler) visited it the day after the 
 arrest and found some of the prisoner's clothing there. 
 No. 343 East One Hundred and Eighteenth Street is an 
 Italian tenement house, the janitor of which not only does 
 not remember Schwitofsky, but is positive that no Jew 
 ever lived there Schwitofsky being a Jew. 
 
 In the story they gave out to the newspaper reporters 
 on the day of Schwitof sky's arrest, Kinsler and Duggan 
 did their utmost to blacken his character. According to 
 the afternoon newspapers that day, the prisoner had been 
 recognized by Kinsler as just out of Trenton prison for 
 a $60,000 jewel robbery in Orange, New Jersey, and as 
 having served two terms in Sing Sing for burglary. Two 
 memorandum books were said to have been found on 
 him, containing the addresses of more than 200 promi- 
 nent New Yorkers, opposite each address being a note 
 which gave the time of going to bed and other habits 
 of all the members of the household. "Nearly a hundred 
 of the addresses were marked off, and a glance showed
 
 TWENTY YEARS IN STATE'S PRISON 123 
 
 them to be houses on the west side that had been robbed 
 recently," one newspaper said. The newspaper head- 
 lines were sensational. "Police Capture Alleged Head 
 of Robber Gang Alfred Gerber Declared to be Leader 
 of Thieves in Terror Zone Had List of Houses, Many of 
 Them Among Those Eecently Looted," was one of them 1 . 
 "Nabbed Masked Thief at Pistol Point Detectives Get 
 Man Said to Have Been Terrorizing Harlem Is $20,000 
 Jewel Robber," was another; "Had List of Places He 
 Planned to Loot Pistol at His Head Made Armed and 
 Masked Burglar Surrender, ' ' was a third, and there were 
 others of like tenor. 
 
 One newspaper and the reporters all got their infor- 
 mation from Kinsler and Duggan said that letters were 
 found on the prisoner that led the police to believe that 
 much loot recently stolen from west side homes had been 
 hidden in Jersey City, and that he had a big bunch of 
 pawn tickets representing stolen property in his posses- 
 sion. 
 
 The Trenton and Sing Sing prison sentences, the memo- 
 randum books with the names of householders, the letters 
 and the pawn tickets were all pure inventions with the 
 exception that there were three pawn tickets for small 
 amounts loaned on the prisoner's own property. 
 
 I have already shown that the list of articles alleged 
 to have been found in Schwitof sky's possession varies on 
 every police record, altho such lists are supposed to b 
 made with the utmost accuracy, since otherwise there 
 would be every opportunity for the loss of valuable 
 property. There is an hour's difference in the recorded 
 time of the arrest of Schwitof sky in official reports made 
 by Kinsler and Duggan. In a report made to Fourth* 
 Deputy Commissioner Wood on November 27, 1908, the 
 hour of the arrest is given as 3 A. M. In a report made 
 by Kinsler to Commissioner Waldo on August 30, 1911, 
 the hour of arrest is given as "about 2 A. M." Now
 
 124 TWENTY YEARS IN STATE'S PRISON 
 
 every detective and policeman carries what is known as 
 an "arrest book," and is instructed always to record 
 every detail of an arrest, and particularly the time for 
 obvious reasons. 
 
 Why should the time of Schwitof sky's arrest have been 
 falsified certainly in either Kinsler 's or Duggan's arrest 
 book, if they were giving the prisoner a square deal? 
 
 Why the discrepancies in the various official records of 
 the list of articles found on the prisoner? 
 
 Why the lies about the memorandum books, the letters 
 and the pawn tickets ? 
 
 Why the manufactured stories that Schwitofsky had 
 served terms in Trenton and Sing Sing prisons? 
 
 Why the effort to have Schwitofsky falsely identified in 
 the Tombs? 
 
 Why the neglect to apprehend the suspected janitor 
 (whose photograph was in the rogues' gallery) of the 
 looted apartment house ? 
 
 THE CUKEAN INVESTIGATING COMMITTEE. 
 
 Kinsler and Duggan were called before the Curran 
 Investigating Committee last November to answer ques- 
 tions about the robbery of Ullian 's jewelry store in Bos- 
 ton, for which crime Duggan had arrested Jacob Gold- 
 berg, afterward sending a lawyer to him who collected 
 $500 and told his client that he would have to share the 
 money with Duggan. Ullian, a reputable business man, 
 testified before the committee that Duggan had offered 
 for a consideration to recover some of the stolen jewelry 
 that was believed to have been pawned in New York. 
 Duggan was given every opportunity to deny this state- 
 ment, but as he refused to waive immunity he was not 
 allowed to go on the stand. Kinsler also refused to 
 waive immunity, and was not permitted to testify. Ullian 
 was told by Duggan that he was a business man as well
 
 125 
 
 as a policeman, and that he had $90,000 in bank. Kinsler 
 is reputed to be wealthy. Mrs. Ellsworth told me that 
 one of the three detectives who investigated the burglary 
 of her flat, either Kinsler, Duggan or Geary, suggested 
 to her that money might secure the return of her stolen 
 property. 
 
 Kinsler and Duggan have both been made police cap- 
 tains since Schwitofsky went to prison. While in the 
 Detective Bureau they did a great deal of work with 
 ' ' stool pigeons. ' ' They were remembered perfectly well 
 when I mentioned their names to Gen. Bingham, Mr. 
 Slattery, Mr. Woods, Mr. Hanson, and Mr. Ely, but not 
 one of these gentlemen had a kind word to say about 
 them. Neither has Dan E. Kimball, of the Prison Asso- 
 ciation, who is the dean of the benevolent workers in the 
 criminal courts, and who has been familiar with their 
 police work ever since they have been in the Detective 
 Bureau. 
 
 FBANK MABSHALL WHITE.
 
 126 TWENTY YEAES IN STATE'S PRISON 
 
 people'0 
 
 EVIDENCE AT THE TRIAL. 
 
 (Told in narrative form. Asterisks mark 'exceptions' 
 
 'by counsel.) 
 
 NETTIE PALMA, of 304 E. llth St., testified: 
 
 That on 19th January of this year (1911) she was liv- 
 ing at 71 W. 45th St., owned by Mr. Dale and conducted 
 as a dress-making place. It was a private house and 
 Mr. Dale occupied three rooms on the second floor (that 
 is, you go up a few steps from the street to the first floor 
 and then you go up another flight) for the dress-making. 
 There were two others employed by Mr. Dale. At about 
 8.30 in the morning of 19th January (it was a bright 
 day) she saw the defendant (whom she indicates). There 
 were then three people in Mr. Dale's place ANNA HART, 
 NORA MURPHY and herself. The bell rang, witness opened 
 the door, defendant said, ' * The telephone man. ' ' Witness 
 showed him where the telephone was and went upstairs. 
 Mr. Dale occupied the whole building, using the second 
 floor for the dressmaking. The telephone was on the 
 parlor floor, in the middle of the three rooms there. Wit- 
 ness took the defendant into the second room where the 
 telephone was, going through the hall into the room, and 
 left him there, she going upstairs to her work. 
 
 The next time she saw defendant was about ten min- 
 utes after when Mr. Dale called to them and she went 
 down. Mr. Dale wouldn't let defendant out.* (Objec- 
 tion to last statement sustained.) Mr. Dale called the
 
 TWENTY YEAKS IK" STATE'S PEISON 127 
 
 maid, Anna Hart, and told her to stand by the door and 
 not let defendant out. And when he saw that Mr. Dale 
 wouldn't let him out he took out a revolver and said to 
 Mr. Dale, "Are you going to let me out!" And he said, 
 "No." He said, "I'll shoot you if you don't." And 
 then he turned to Anna Hart, and said to her, "Are you 
 going to let me out," and she said, "No," and then he 
 said, "I'll shoot you" to her. And then she opened the 
 door and let him out. And Anna Hart and Mr. Dale ran 
 after him, but couldn't catch him. 
 
 She saw them running after him towards Fifth Avenue, 
 and then run back to Sixth Ave. She saw him doing that. 
 He ran about five houses towards Fifth Ave. on the 
 opposite side of the street. Mr. Dale and the girl were 
 about four feet behind him. Mr. Dale ivas hollering 
 and nobody would catch him, so he turned to cross and he 
 dropped his revolver and he ran towards Sixth Ave. and 
 jumped on a car. And there was another fellow with 
 him. 
 
 The next time she saw the defendant was in 57th St. in 
 the Court. 
 
 Cross-Examination. 
 
 Defendant dropped the revolver. Mr. Dale did not 
 pick it up. The detective picked it up. The detective has 
 it. She saw defendant drop the revolver. (Witness re- 
 peated her testimony before given as to opening the 
 door at 8:30 A. M. to defendant.) She didn't probably 
 talk to him more than a second or two and then he went 
 with her to the telephone booth. It wasn't a dark entry 
 not dark there at all. It's very light. 
 
 A cross-examination ensued as to the darkness of the 
 hall (witness insisting on its being light) and also as to 
 her having testified before the magistrate that the offense 
 occurred on the 20th of January and not on the 19th. 
 
 Defendant did not point the revolver at her. He
 
 128 TWENTY YEARS IN STATE'S PRISON 
 
 pointed it at Dale who didn't bother about the revolver 
 being pointed at him and didn't let defendant out. It 
 was only when he pointed the revolver at Anna Hart 
 that she let him out. 
 
 In the course of cross-examination as to how she identi- 
 fied defendant the Court asked : 
 
 "Have you any doubt in your own mind at all that 
 this is the man " 
 
 Witness answered: "Yes, sir, that's the man." 
 
 "Have you any doubt about it?" 
 
 "No." 
 
 "You have no uncertainty about it?" 
 
 "I am sure that's the man." 
 
 In answer to counsel for The People, witness testified 
 that she identified the defendant now, and did not do so 
 because Mr. Dale says it is the man. 
 
 Re-Cross-Examination. 
 
 Witness has been talking with Mr. Dale and the po- 
 licemen and has been coming to this court and the police 
 court and has been talking frequently about defendant. 
 "But you must remember," she said, "that this man 
 was caught two weeks after! No, it was not hard to 
 identify a man caught two weeks afterwards." 
 
 THEODOKE B. DALE, of 71 W. 45th St., testified : That 
 he is a dressmaker whose place of business is at 71 W. 
 45th St. He was in that business in that place on 19th 
 January, 1911. He occupies the entire house. At about 
 8.30 or 8.40 on 19th January he saw defendant there. 
 Defendant was not employed by him. He had not seen 
 him before. ("One moment-, Mr. McCormick, I did see 
 him before, outside of the house, on the day previous, 
 but not in the house, in company of another man. He
 
 TWENTY YEARS IN STATE'S PRISON 129 
 
 -icas speaking to a man who had been at the house to 
 apply for alms."} On the 19tli witness first saw de- 
 fendant in the hall leading to the telephone closet. Wit- 
 ness had been in the dining-room an extension back of 
 the telephone closet and came out to go to the hall to 
 get his coat. He saw the door of the closet which con- 
 tains the 'phone open, and the man on the sill of the 
 hall-door leading to this room that had the 'phone there, 
 with a piece of wire in his hand. He did not see defend- 
 ant in the booth, but when defendant saw witness defend- 
 ant went into the booth. He had a piece of wire in his 
 hand and a pair of pliers. The cook came up and asked 
 what the man was doing there and witness said he pre- 
 sumed he was there to fix the telephone. Witness walked 
 out to get his overcoat, put it on and walked to the stoop. 
 In the meantime he had seen the man's bag upon the 
 piano and did not like the looks of it on his piano-cover 
 and removed it and put it on the piano stool and answered 
 the cook's question and walked out and put on his coat 
 and saw the man that had been there on the previous, 
 day asking for alms, recognized him, connected the two 
 men at onee and went back, rang the bell for NETTIE 
 PALMA and asked her what the man was doing there. He 
 did so in defendant's hearing. He asked her because she 
 answers the front door bell. Had let himself in with 
 his own key. She said defendant was the telephone man. 
 In presence of his two girls and the cook asked defend- 
 ant what he was doing there. With a decidedly foreign 
 accent he said he was from the N. Y. Telephone Co. 
 Witness asked for his badge and defendant said, "Here's 
 my book of instructions," and witness said, "That won't 
 do. I want to see a badge. ' ' There was no badge forth- 
 coming. He said he had forgotten it. Witness asked 
 NOEA MURPHY to telephone to the general manager's 
 office and ask him if anybody had been instructed to fix 
 the telephone, and the answer came "No," over the wire.
 
 130 TWENTY YEARS IN STATE'S PRISON 
 
 Witness asked the cook to guard the door while he went 
 for a policeman. Before he could get out and put his 
 coat on again the man came to the door and said the 
 telephone didn't need fixing anyway and he started to 
 leave and the cook told him that he couldn't go; that she 
 had been instructed not to let him out. This was in 
 witness' presence. The colored woman was Anna Hart 
 and she said defendant couldn't leave, and he said, "You 
 won't let me out, you won't," and he drew a revolver, 
 and said, "I'll shoot you if you don't let me out." Then 
 she threw up both hands, and he opened the door. Before 
 he opened it he held the door and witness stood in the 
 corner of the door. Defendant held the door with one 
 hand and levelled it at witness and said, "You won't let 
 me out; you won't? "Well, I'll shoot you." 
 
 Then defendant threw the door open and ran out with 
 the book in his hand. Witness, hatless, followed him, and 
 he evaded a chauffeur in the street who tried to stop him 
 and ran on the south side of the street and, in front of 
 the Hotel Webster two chauffeurs caught defendant. Wit- 
 ness told them defendant had a revolver and they dis- 
 armed him. The pistol remained in the possession of 
 one FRANK HAROLD, the starter. (Witness couldn't say 
 whether Harold was in court ; believed he had been sub- 
 poenaed.) Witness asked the chauffeur to hold defendant 
 while he got an officer and defendant said, "Hold that 
 man, hold that man, he was trying to kill me." Some 
 citizen laid his hand on witness' shoulder, saying, "You 
 had better remain here, too." Witness said, "I am per- 
 fectly willing." Then defendant said, "Hold him, hold 
 
 him, he's a . He was trying to take me to his 
 
 room to me. ' ' And then they said to defendant, 
 
 "You had better run along, kid. We can't get a police- 
 man. ' ' 
 
 Witness followed defendant to Sixth Avenue where 
 he went on a north bound car. One of witness' neigh-
 
 131 
 
 bors, in fact, tried to stop defendant. Defendant was 
 then joined by the other man the one who had been out- 
 side at the front door and went on northward on the 
 car. Witness saw both of the men later when they were 
 under arrest in the police court. One had since been con- 
 victed, not in this same case, but in a case of blackmail.* 
 That is all witness knew about this case. 
 By the Court: 
 
 "Did you see the revolver?" 
 
 "Yes, sir." 
 
 "How near were you to him at the time?" 
 
 ' ' The width of the door, about three feet. ' ' 
 
 "Do you know whether or not it was loaded at the 
 time?" 
 
 "I saw cartridges in it." 
 
 "When?" 
 
 "At the time he pointed it at me." 
 
 Cross-Examination. 
 
 One chauffeur held defendant and the other took the 
 pistol from him. He did not throw it away. It was 
 taken from him. Witness was positively sure of that. 
 
 On the night of January 31st about midnight or there- 
 abouts two officers brought defendant to him. One re- 
 mained outside. Witness did not say to the officers: 
 1 ' I want to see the top of this man 's wrist. ' ' Said noth- 
 ing at any time about defendant's wrist and did not 
 examine it. It was unnecessary. Defendant was dressed 
 in the same manner as on the 19th. He had, however, 
 begun raising a small mustache. Witness got out of 
 bed and admitted the officers. The gas was lit in the 
 parlor and the officer brought defendant in. Witness 
 immediately saw it was the man. Witness had not no- 
 ticed any marks. Defendant's accent his language
 
 132 TWENTY YEARS IN STATE'S PRISON 
 
 was enough. Defendant had the sort of face one couldn 't 
 forget. Witness asked him to remove his hat. 
 
 (Cross-examined closely like previous witness as to his 
 having stated in the magistrate's court that the offense 
 occurred on 20th Jan., and not on 19th, witness could not 
 be positive as to which date he stated there but was now 
 sure that the date was the 19th.) 
 
 The revolver was taken out of the man's pocket by 
 one chauffeur while the other held him. Witness had 
 already said why they didn't hold (i. e., detain) him. 
 There wasn't an officer in sight. Witness had told them 
 of the crime. The chauffeurs could be sent for. They 
 were honest, decent-looking citizens and, though being 
 told of the crime, they had let defendant go. Witness 
 protested. He asked others to hold defendant, and tried 
 to hold him himself. Defendant struggled and got away. 
 The chauffeurs let him go and they didn't hold (detain) 
 witness. 
 
 ANNA HABT, of 227 W. 62nd St., testified: 
 
 That on 19th January she was working for Mr. Dale, 
 doing general housework. About half-past eight in the 
 morning saw the defendant, the man right there (in- 
 dicating defendant) at the telephone closet in the middle 
 parlor when she went from serving breakfast. He had 
 the revolver in his hand when he came to the front door. 
 He pulled it out of his pocket and drew it in her face 
 twice and said with a very loud voice it seemed he was 
 very angry that he would shoot her if she didn't move 
 away from the door. As she moved away from the door 
 he ran out of the door. 
 
 Cross-Examination. 
 
 It was more than two minutes she saw him in the 
 front hall at the front door. He was standing in the mid-
 
 TWENTY YEARS IN STATE'S PRISON 133 
 
 die parlor at the telephone closet in the back of the hall, 
 like, as you come into the house. No, it wasn't very dark 
 there and witness looked right into his face because she 
 asked who was he. He was about three foot away from 
 her. He didn't say anything else at the door because 
 she didn't give him a chance when he had pointed the 
 revolver in her face, twice. She was not the only one he 
 pointed it at. He pointed it at Mr. Dale, too. That was 
 after he pointed it at her. Then he ran out of the door 
 and down the street. Mr. Dale followed him and she fol- 
 lowed after Mr. Dale as he was calling for the police. 
 She didn't see the chauffeurs right then. She saw them 
 in the big crowd standing round this fellow. She wasn't 
 close to him then but he was in the midst of that crowd. 
 She wasn't right up with the crowd, but he was in the 
 midst of that crowd, arguing. When she saw the man 
 that was in the house she noticed no particular marks on 
 him only that he didn't have the moustache which he's 
 got on now. "I knows him anyhow; I knows that's the 
 man that pointed the gun in my face. I knows that!" 
 she said. 
 
 NOEA MURPHY, of 262 W. 123rd St., testified: 
 
 That she was employed by Mr. Dale's dressmaking 
 establishment on the 19th of January and saw that man 
 right here (indicating defendant). He was in the tele- 
 phone booth when she was called down stairs, but she did 
 not know what he was doing. He was standing just 
 there. Mr. Dale had called her down and asked her to 
 telephone to the Telephone Co. and see if they had sent 
 a man to fix the 'phone. That was in the presence of the 
 defendant. She stepped in and 'phoned to the Telephone 
 Co. and asked if they had sent a man, and they said no, 
 they hadn't.* After she left the telephone booth she 
 didn't see anything more. Everybody had left the house,
 
 134 TWENTY YEAES IN STATE'S PEISON 
 
 except Nettie Palma, and she was standing in the hall.' 
 That was all she knew about it. But he (defendant) 
 had 'phoned the day before and asked if this was Mr. 
 Dale's house and said they were going to put a telephone 
 in the house next door and they would have to cut off 
 Mr. Dale's service for an hour in the morning and she 
 told that to Mr. Dale who said, "All right, but not to 
 cut off too long because it was his busy time." That 
 was all she knew about it. She believed it was the de- 
 fendant because he spoke in broken English. 
 
 ('Counsel for defendant had persistently objected to 
 all this and moved that it be struck out.) 
 By the Court: 
 
 "And in addition to the broken English you say that 
 you recognized the sound of his voice?" 
 
 "Yes, sir." 
 
 Motion denied. 
 (Counsel) "Exception." 
 
 She recognized him now as the man who was there that 
 day on the 19th. There was no doubt at all in her mind. 
 
 (An attempt by counsel for The People to examine 
 further as to the voice she had heard over the telephone, 
 met with vigorous objection by counsel for defendant. 
 The Court: "Yes, you may have an exception. However, 
 you may strike out the testimony as to the conversation 
 on the telephone and the jury are instructed to disregard 
 it." Counsel for defendant then moved that a mistrial 
 be declared, contending that the testimony could not be 
 stricken from the memory of the jury. Denied, appar- 
 ently, as the trial proceeded.) 
 
 WILLIAM W. DUGAN, of the 164th Precinct, testified: 
 
 That, on llth July, 1910, he was present in Court be- 
 fore Judge Swann when the defendant was arraigned
 
 TWENTY YEARS IN STATE'S PRISON 135 
 
 and remanded to the Tombs for possibly two weeks. 
 About the 10th or 12th of August sentence was suspended 
 on him. He was present and heard the Judge suspend 
 sentence. There had been no trial for defendant had 
 pleaded guilty to burglary in the third degree. 
 
 (There was strenuous opposition by Counsel for de- 
 fendant who, at one time when Counsel for the People 
 asked witness, "Well officer, why did you arrest this 
 man?" and received for reply: "I arrested this man 
 because I knew him to be a professional burglar," moved 
 that a juror be withdrawn and a mistrial declared. The 
 Court struck out the answer and instructed the jury to 
 disregard it, but denied the motion.) 
 
 EDWIN DENAHM, of 66 Fenimore St., Brooklyn, testified : 
 
 That he was a clerk in the N. Y. Telephone Co., who had 
 charge of the employees' records and pay-rolls. His 
 territory covered all New York County, Long Island, 
 and part of New Jersey and it covered every employee 
 in N. Y. County. The name Alfred Schwitofsky did not 
 appear on the roll. He had gone back as far as 1880. 
 
 WILLIAM BROWN, of the Detective Bureau, testified : 
 
 That he arrested defendant in the Mills Hotel No. 2, 
 in Eivington St., on 1st Feb. Before that he had visited 
 the premises 71 W. 45th St. and had seen Mr. Dale. 
 That was on the 19th. He received some information 
 from Mr. Dale in reference to a man named GELSKY. In 
 consequence of that information he went to the Mills 
 Hotel No. 3 and made inquiry there. Afterwards he 
 sent for defendant and asked him if he had witnessed an 
 accident at the corner of 17th St. and Union Square. 
 He said yes. Witness then asked him if he had saw a 
 man named Mr. Schultz in reference to the accident and 
 he said yes. Witness then told defendant that he was 
 going to arrest him on suspicion of having burglarized
 
 136 TWENTY YEARS IN STATE'S PEISON 
 
 the house of Mr. Dale on the 19th of January. He said, 
 "That's a mistake. I'll accompany you to the com- 
 plainant and if the complainant identifies me, all right. 
 I'll sue him." Witness said, "Are you willing to go with 
 me to the complainant?" And defendant said, "Yes," 
 he says, "I just went to work to-day." Witness then 
 took him to the house of Mr. Dale and sent one of the men 
 up and he rang the bell. Mr. Dale came to the front 
 stoop and witness asked him to look at the man to see 
 whether he was the man who had been in his house on the 
 19th of January. Mr. Dale asked him to bring defendant 
 into the parlor so that he could get a good look at him. 
 Witness brought him up the front stoop into the hall- 
 way and brought him into the parlor. Mr. Dale turned 
 on the light and he positively identified the man then. 
 He said in the presence of the defendant "That's the 
 man." The next morning in the Police Court, before 
 Magistrate 'Connor, he was placed on one of the benches 
 and the three female witnesses, who preceded witness 
 here, positively identified him. Well, he was sat in the 
 audience and the witnesses went over there and placed 
 their hand on his shoulder, and they said: "That's the 
 man. ' ' 
 
 Cross-Examination. 
 
 Defendant was placed in the audience where the public 
 sit, about fifteen feet from the railing of the Magistrate 's 
 Court. He was brought from the prison and placed in 
 the audience. The witnesses who afterwards identified 
 him were at that time in the inner room, the complaint 
 room. He had to pass the door of that room about fifty 
 feet away, hid by a wall and another door. They couldn't 
 see over there, you can't see anybody in the audience 
 when the door in that partition is closed. Each of the 
 witnesses went up the aisle in the audience, and looked 
 over the audience, and picked him out.
 
 TWENTY YEARS IN STATE'S PRISON 137 
 
 The People Rest. 
 
 WILLIAM BROWN, recalled by Counsel for defense, testi- 
 fied: 
 
 That he arrested defendant on the charge of burglary 
 not unlawful entry. Did not tell him it was unlawful 
 entry. The complaint was drawn up as unlawful entry, 
 but witness is not responsible for the mistake of the 
 Court. He had it changed to burglary in the second 
 degree. 
 
 (Further cross-examination as to the manner of Dale's 
 identification of Schwitofsky at the time of the arrest 
 concluded thus : 
 
 "Do you recollect about him examining his wrist?" 
 
 "Yes." 
 
 "Now tell what Mr. Dale did about his examining his 
 wrist." 
 
 "Mr. Dale never examined his wrist." 
 
 "Well, who did?" 
 
 "Mr. Harold, the chauffeur. He was the second man 
 that identified him." 
 
 "Well, what did he say about his wrist?" 
 
 "Why, I brought him up the street " 
 
 The Court: "Now, this is not proper cross-examina- 
 tion." 
 
 Counsel: "No, sir. I appreciate that, your Honor. 
 That is all.") 
 
 The People Rest. 
 
 THE DEFENSE. 
 
 ALFRED SCHWITOFSKY, the defendant, testified: 
 
 My name is Alfred Schwitofsky. I was born in Allen- 
 town, Pa., on 4th of July, 1879. I have lived here in 
 N. Y. since I came here in the latter part of 1900. I 
 have lived here since 10th of August last. I have been
 
 138 TWENTY YEABS IX STATE'S PBISOX 
 
 away since 1903, from N. Y. I have been way for 3 
 years and eight months. I live now at the Mills Hotel 
 No. 2. I have heard Mr. Dale, the complaining witness 
 in this case, testify that on the 19th of January this 
 year, I entered his house at 71 W. 45th St. ; that I went to 
 the telephone booth; and afterwards threatened to shoot 
 him if he wouldn't let me out; and threatened to shoot 
 a young girl in there if she wouldn't let me out; that I 
 ran away down the street and had a revolver and event- 
 ually escaped that is not so. I was never in Mr. Dale's 
 house before my arrest. I never knew Mr. Dale before 
 my arrest. I did not know where his house was before 
 my arrest. I was not in his house at all on January 19th, 
 1911, or on any other day. I did not fix a telephone for 
 anybody, anywhere, on that day. I never was an em- 
 ployee of that company. The first I knew about this 
 was on the night from the first to the second of Feb- 
 ruary when I was in the Mills Hotel, out of bed and 
 taken downstairs by an officer by the name of Dungate 
 I believe that is his name not the officer who was on 
 the stand just now. I was taken downstairs and into an 
 office like in the hotel, where the officer which was on the 
 stand, Mr. Brown, was sitting in a chair, and he asked 
 me questions as to being a witness in 17th St., which I 
 told him I was. 
 
 Then he asked me to come along, and I says, "What 
 do you mean? I have to go to work at six o'clock; what 
 do you want to do with me?" and he says, "Well, come 
 along. ' ' 
 
 So he says, "Wasn't you in a party named Dale's 
 house? Come on, we have got a couple of chauffeurs* 
 We have telephoned to two chauffeurs ahead of time, and 
 the chauffeurs come down here." And he said, "Come 
 along," and I said, "Well, I'll come, because if I don't 
 go with you, you '11 take me anyway. ' ' 
 
 And we took the subway station at Spring or Bleecker
 
 TWENTY YEARS IX STATE'S PRISON 139 
 
 St., I don 't remember which, and got off at Times Square, 
 and turned round the corner at 45th St. And they took 
 me to a booth like and there was two chauffeurs there 
 outside of the booth. And Brown said, " There is the 
 man I was telephoning to you about." They looked me 
 over, made me take off my hat. One chauffeur says, 
 "Show me your left wrist," which I did show it to him. 
 
 And he looked at the officer, and he said, "Well, I 
 guess that's the man." And the other fellow looked 
 closer yet, and he said, "I ain't sure, I ain't quite sure." 
 
 And from there they took me across the street. Of- 
 ficer Brown held me downstairs while the other officer, 
 Dungate, went upstairs, and about five or six minutes 
 after, he came out of the door and he hollered, "All 
 right." And so Brown says, "Come on upstairs," and 
 I says, "What does that all mean? Come upstairs? 
 What do you take me into a house for?" He said, 
 ' ' Never mind, come on up, ' ' and he grabbed me and took 
 me upstairs, and there I was confronted with a small 
 man, who I later found out was Dale. 
 
 He looked me over and also wanted me to show him 
 my left wrist, and I showed it to him. And he looks at 
 the officers and Brown nodded, and he says, "That's the 
 man" afterwards, after Brown nodded to him. 
 
 And from there I was taken to Police Headquarters, 
 and first charged with unlawful entry, and the clerk at 
 the desk, the lieutenant at the desk, said, "You have to 
 take him to the Night Court," and he said, "No, put him 
 down as a suspicious person." I don't know which I was 
 blottered through the two of them. And the next morn- 
 ing I was lined up before all the Central Office men and 
 from there taken to 57th St. Court before Magistrate 
 'Connor. 
 
 I was taken to 57th St. Court and placed in the pen. 
 In a short while, a young fellow came down stairs, and 
 was brought down by the same two officers, and one of
 
 140 TWENTY YEAES IN STATE'S PEISON 
 
 them shoved at him at the side with his hand like that, 
 and he said, "Go ahead. Say it" to the other fellow, 
 and the other fellow started in to cry, and said, "Yes." 
 
 And from there I was taken upstairs into the back 
 room and charged before the clerk, the clerk of the court, 
 in the back room, on a charge of unlawful entry. Those 
 three women two white women and a colored woman 
 were sitting right there and the clerk in the back room 
 asked me if I pleaded guilty or not guilty, and I pleaded 
 not guilty. And I had to sign my name there, and I was 
 taken into the corridor to wait to be arraigned before 
 Magistrate O'Connor. 
 
 I was then arraigned before Magistrate 'Connor and 
 an attorney was to be appointed for me by a friend to 
 appear for me in the Magistrate's Court, but he wasn't 
 there. So, therefore, I asked for 24 hours' stay for the 
 attorney to be there. I heard the officer testify that I 
 was placed in the audience. That's a lie. I heard him 
 testify that I was placed out in the audience and the three 
 women were called in and went up near me in the audi- 
 ence and pointed me out. That isn't so. Nothing like 
 that happened. I was never placed in the audience, was 
 never pointed out, never saw a hand put on me by any 
 of the women. 
 
 Cross-Examination. 
 
 I am an electrician. I studied electricity over in the 
 old country in Vienna. I have held jobs as an electrician. 
 My last job was for the Interborough Eailway Co. I 
 worked for about 4 days until I was arrested 3 days in, 
 98th St., and one day in 129th St. Before that I worked 
 for myself. I had a shop in 19 and 21 Second Ave. I 
 had that shop for about 2 months from the beginning 
 of October till the latter part of September November. 
 It was a basement. Occasionally I employed men. One 
 time I had two men employed at general electrical work.
 
 TWENTY YEARS IN STATE'S PRISON 141 
 
 (Under questioning defendant gave particulars of the 
 jobs he undertook in this shop.) 
 
 Before that I worked for Mr. Ike Silverman of the 
 Fidelity Secret Service, at 123 Liberty St. I worked 
 for him in the latter part of August and all of September. 
 My work was inside work in the office writing and re- 
 porting matters that come in reports that were brought 
 in by the men. No, not detectives, by the men that acted 
 as guards in the cloak and suit strike. 
 
 Before that I worked for a general contract Mr. 
 Louis Berlion. Before June, 1910, I was in Matteawan 
 State Hospital. 
 
 I was not really convicted in 1910 of a burglary com- 
 mitted in 1908. I pleaded guilty under the circumstances 
 of being away two years and a half in Matteawan State 
 Hospital. I wasn't tried in 1908. I was charged at the 
 same time with carrying burglars' instruments. If you 
 take it that way I was carrying that the day after I got 
 out even from Matteawan. I don't think I had burglars' 
 instruments with me. Yes, I did plead. I plead guilty 
 under the circumstances. I pleaded guilty in the Court 
 of Special Sessions in March, 1908, to a charge oj carry- 
 ing concealed weapons. I was guilty of that. It was a 
 revolver. I was two weeks on Blackwell's Island and 
 then was transferred to Matteawan, where I remained 
 2 years and 4 months. I came back to the Tombs where 
 I was from the 6th of June to the middle of August. I 
 got a job the day after I came out. I was arrested on 
 the night between the 1st and 2nd of February. So that 
 I was out of jail from August until February. I served 
 a term for grand larceny in Pennsylvania, for stealing 
 something like $25,000. That was at Morristown. I 
 pleaded guilty, was sentenced to 5 years three years 
 and $1,000 fine. That was on the 8th December, 1903. 
 Yes, I have been in jail most of the time for the last ten 
 years.
 
 142 TWENTY YEARS IN STATE'S PKISON 
 
 As far as I can recollect I was at 123 Liberty St. on 
 the morning of the 19th of January. 
 
 I was once fined $5 in Hoboken, N. J., on May 14th, 
 1903, on a charge of grand larceny before Judge Blair. 
 I went to trial and was fined $5. 
 
 I have not committed any crime since I got out of 
 jail. I have not committed a burglary since. I have 
 never carried a gun since I was out. All these three or 
 four or five people who say they saw me with a gun and 
 saw me point it must be mistaken. 
 
 At 8.30 in the morning of the 19th I was downstairs 
 at 123 Liberty St. waiting for Mr. Silverman and then I 
 went to the Lion Brewery where I was a witness. 
 
 Re-direct Examination. 
 
 (Counsel and defendant both pleaded for permission 
 to enter into a detailed statement of former crimes so 
 that, in the words of defendant, "I have a chance to 
 show that perhaps I was not guilty, because I plead 
 guilty, but I wasn't given justice by that Court." Ob- 
 jected to and, after argument, objection sustained.) 
 
 I was in Matteawan an insane Asylum for 2 years 
 and 4 months. I got out of there on June 6th, 1910. 
 
 I should like to show his Honor and the jury that I 
 am really framed up on this charge I would like to show 
 this to the jury. No, sir, I have not been framed up on 
 all my sentences. I admitted them. I plead guilty. I 
 was not in the employ of the Telephone Co. on the date 
 named in this indictment. I don't think I was carrying 
 electrician 's tools and wires on that day not that day 
 because I wasn't working that day. 
 
 (In answer to the question, by the Court, "Well, what 
 were you doing on that day?" Witness did not answer.) 
 
 Yes, I often carry electrician's tools around, whenever 
 I work. I was up until December carrying them around. 
 
 I ask his Honor to let me explain my matters; how
 
 TWENTY YEAES IN STATE'S PRISON 143 
 
 people have framed me up in 1908 the former con- 
 viction is put against me, and I should have a chance to 
 explain those former convictions. I were convicted, but 
 I were not convicted right. I plead guilty to a charge 
 which I wasn't guilty of, but on the grounds of being 
 away two and one-half years and I didn't have any wit- 
 nesses at that time; I couldn't get my witnesses after 
 2!/2 years, but at the same time I was indicted in March, 
 and ivent up to plead, and pleaded not guilty, and I was 
 tried and I was sentenced on the misdemeanor and sent 
 to Blackwell's Island. 
 
 And while I am in the Tombs, I have perhaps com- 
 mitted a foolish deed on that account that I was framed 
 up, and they changed the records and the identification 
 book of the Tombs will show it also, that Officer Dugan 
 came there on one identification (Defendant not allowed 
 to proceed). 
 
 I pleaded guilty of burglary in the third degree a 
 felony on the ground I had no witnesses and I was 
 promised a suspended sentence by the District Attorney 
 -Yes, I plead guilty. Why no, I wasn't imprisoned for 
 that. I was kept there in Matteawan. Yes, sir, I was 
 sent from prison to Matteawan, an asylum for the insane. 
 
 (Defendant being instructed not to go into any detail 
 of former convictions or the reasons therefore, but being 
 permitted to make any explanation about the present case 
 that his counsel considered advisable, proceeded.) 
 
 "Where should I start in t At police headquarters I was 
 charged with unlawful entry (stopped by the Court). 
 When I was taken before the chauffeurs for identification, 
 they wanted to see my left wrist and they saw my left 
 wrist, and then they looked at the officer and one of them 
 said, "I guess that's the man." And the other one hesi- 
 tated and the officer nodded to him, and he said, "Well, 
 yes, that 's the man. ' ' They didn 't examine my face and 
 I have marks on my face and neck. And these were the
 
 144 TWENTY YEARS IN STATE'S PRISON 
 
 chauffeurs that were supposed to have held the man that 
 did run away. 
 
 I wasn't identified in the 57th St. Court. I was taken 
 inside of the rooms in the back, and the charge was put 
 against me, the clerk wrote the charge down and asked 
 me if I pleaded guilty or not guilty, and I pleaded not 
 guilty, and I signed my name to the paper there. 
 
 Re-Cross Examination. 
 
 No, sir, I did not have the stuff a large number of 
 articles of personal property on me that the police of- 
 ficers swore that they found on me, in that prior con : 
 viction when I was charged with having burglarized the> 
 house of Alma J. Ellsworth. 
 
 I plead guilty because it was two years and six months 
 maybe after this was committed. The complainant could 
 be gotten any time, but my witnesses couldn't be gotten, 
 as the State wouldn't get my witnesses on my expense. 
 And I didn't had the expenses to get the witnesses and 
 I was told if I pleaded guilty I will be sentence will be 
 suspended. That's why I pleaded guilty. I was laying' 
 two months and a half in the Tombs already then. 
 
 These two police officers did find 2 pins on me. When 
 I said a few minutes ago that they didn't they said a 
 * * large amount of stuff. ' ' Them two pins didn 't belong to 
 me. They were bought in a store. This woman, when 
 she identified her property was mistaken. She didn't 
 identify me. And that's the reason I should like to get 
 the identification Book from the Tombs. 
 
 And these two young women and Mr. Dale who have 
 identified me here are also mistaken. 
 
 I pleaded guilty in August after two months and a half 
 nearly, and that was after serving a term in Matteawan. 
 No, the reason why the chauffeur wanted to look at my 
 
 HAND WAS NOT THAT, AT THE TIME HE STOPPED ME THAT MY
 
 TWENTY YEARS IN STATE'S PRISON 145 
 
 WEIST WAS CUT BY HIS NAIL. He wanted to look at my 
 wrist and examined my wrist, then he shook his head. 
 
 I wish to state a few more points in this case: When 
 I came out from Matteawan, I was working for Mr. 
 Berlion and I was stopped several times by police of- 
 ficers, and later on, I was working there a week and a 
 half, and I was told by my boss, Mr. Berlion, that I am 
 discharged, and I asked him, "On what grounds?" and 
 he said, "I can't afford it to bother with the police*" 
 
 And so this is the reason I started to work for Mr. Sil- 
 verman. After I quit Mr. Silverman, when the work was 
 over, I started in for myself, and I took contracts which 
 I could show from records of the Board of Fire Under- 
 writers and the City Building Department, where I put 
 up electric signs for the Chatham Club, at 6 and 8 Doyer 
 St., and this I lost by the way. I came out from Mattea- 
 wan without a cent, and I didn't have a cent or a pair of 
 shoes on my feet, and I worked myself up and tried to 
 do right, and I was interfered with by the police from the 
 time I was out of there. 
 
 (Stopped, on objection.) 
 
 (The Foreman of the Jury having received permission 
 from the Court inspects defendant's wrists. In answer 
 to his question, defendant states) 
 
 "That scar on my wrist I done myself in 1908." 
 
 (Following dialogue then took place between Eleventh 
 Juror and defendant) : 
 
 "Do you know the chauffeur?" 
 
 "No, I don't." 
 
 "Well, how does he come to ask you what you have on 
 your left wrist?" 
 
 "I don't know what he asks me for." 
 
 "Well, then, he must have caught you at the time you 
 were there?" 
 
 "I don't know."
 
 146 TWENTY YEARS IN STATE'S PRISON 
 
 "Otherwise he wouldn't know you have a wrist like 
 that?" 
 
 "I don't know. He asked me to show my left wrist." 
 "Well, why?" 
 "I couldn't tell you." 
 
 (At the request of Counsel for the People all the Jurors 
 were shown defendant's wrist.)
 
 TWENTY YEARS IN STATE'S PRISON 147 
 
 prisoner's Stor\>. 
 
 Told in a letter to Mr. Dun E. Kimba.lt, Probation Officer. 
 
 On the anniversary of the birth of civil liberty in 
 America, I, who have suffered through unjust deprivation 
 of it perhaps more than but few other men, was boren in 
 Allentown, Pa, July 4th 1877. My parents had emi- 
 grated from Austria and when I was two years old they 
 returned to Europe, there I was given a good education 
 and became an electrician and a candidate for license as 
 an electrical engineer. At the age of twenty two I be- 
 gan a set of educational journeys, traversing Europe, 
 sailing from Antwerp for Eio de Janeiro, thence by the 
 steamer Stutgarth for Yokohama thence to Sidney, Aus- 
 tralia and via San Francisco to New York, living here 
 on an allowance of 125 Gulden, about $50, pro month 
 from home. In 1899 I returned to my home in Schmigrot, 
 Galicia to recive an inheritance of 64000 Gulden from 
 my Grandfather. Eeturning in April 1900 I banked 
 $25400 in the Federal State Bank later investing in 100 
 Shares of Creston Copper Co. Stock at $20 a Share on 
 the advice of the president Mr. D. Rothschild and find- 
 ing the investment profitable, still another 150 Shares. 
 By November I had less than $3000 in the bank having 
 been informed by my broker H. A. Schlossal that if I 
 cant send more margin 1.11 be wiped out. 
 thinking to recoop in business I formed a partnership 
 in 1901 with S. Cohn and we went into the Eestaurant 
 business at 312 Broome Street. By Juli of that year 
 I had lost everything and was compelled to send home
 
 148 TWENTY YEARS IN STATE'S PRISON 
 
 for money recieving $600 from this I used part of it to 
 take my jewelry out of Pawn. I had in the meantime 
 secured a good position in the spliceing department with 
 the New York Edison Co. the work was out of doors and 
 as soon as bad weather started I fell sick. When con- 
 valescent my doctor advised me to go too a warm climate 
 so I secured work as an electrician on the Steamship 
 Curetiba running to Cuba and eventualy regained my 
 health, going to Hobochen after several voyages I had 
 my first experience of American police methods I was 
 sitting in Jack's Cafe with a young lady when a man 
 began to offer some nice articals of ladies linen for sale 
 he was persistent seeing that the young women with me 
 fancied the articals so I bought them for $8. Later we 
 went to Gransberg's Concert Hall where we were when 
 two detectives entered and place me under arrest for the 
 theft of the articles. I was charged with larceny, put 
 up cash bail, was compelled to wait trial and lose my 
 position or lose my bail and when tried, though I had 
 teen witnesses to prove my purchase of the articles I was 
 fined $5, not an important thing save that it placed me 
 on the records as a criminal offender when I was abso- 
 lutely innocent. 
 
 Going to Cuba again I completed a contract equipping 
 the home of Sr. don Almando of Newvitas with an elec- 
 tric plant and returned to New York to find that the 
 boyhood sweetheart I had left in Tarnow, Galicia wished 
 to join me and become my wife and that my family had 
 send me $3000 for this purpose. She was the sweetest 
 of girls and looked so pretty and innocrent as she leaned 
 over the rail of the Barbarossa among Feb. 9th, 1903, that 
 as the picture rises befor me and I think of the quick 
 tragedy that fell upon us, it seems more than I can bear. 
 We were married, took a wedding journey to San Fran- 
 cisco and returning prepared a home. I bought a cigar 
 store in Second Avenue and try as I would I could not
 
 TWENTY YEARS IN STATE'S PRISON 149 
 
 succeed and in desperation tried to play the races and 
 recoop. Soon the furniture of my home was mortgaged 
 and the cigar Store sold for much less than its value to 
 pay my debts. Among those to whom I was in debt was a 
 group of men of whose pursuits I was by no means cer- 
 tain, two of them called one day at my home in my 
 absence and told my wife to have me come to see the third 
 a man named D. at 75 Second Ave. the two were Eddy 
 N. and Paul H. 
 
 I went to D. place and met the three D. took me to one 
 side and told me he was going to offer me a chance to 
 pay up my debts and get on my feet. 
 The plan was that I was to take a position which N. 
 could not fill and there would be a large quantity 
 of jewelry in my care or at least where I could get it. 
 When the proper opportunity came I was to give this 
 to N. or H. stay on in my position or return with them 
 to New York as I chose. If I did not go in with them 
 they would close down on me at once. I was in desperate 
 straits and my wife was soon to become a mother, at 
 least I could take the position and then temporize so I 
 pretended to accept, they provided me with all sorts of 
 references with an asumed name and by way of a Phil- 
 adelphia Employment agency I was soon in the Employ- 
 ment of a wealthy Mr. Harrison of Glenside, Pa., near 
 Philadelphia. 
 
 During this period N. and H. dogged the House com- 
 ing disguised as peddlers, umbrella menders anything 
 that would give them a chance to get near the house or 
 get in touch with me. Worry, distress, separation from 
 my little wife were telling on me. I was taken sick and 
 was treated in the house by a doctor Kaiser of German- 
 town, shortly befor thanksgiving day I was up and 
 around again and N. reappeared. I did not know what 
 to do. to tell Mr. Harrison would mean my dicharge. 
 Thanksgiven day I was given to understand that on the
 
 150 TWENTY YEAES IN STATE'S PKISON 
 
 ground not beeing quite well I was no longer wanted. 
 I was told by Mrs. Harrison to pay the bills incurred 
 by my sicknes out of my own pocket. I went to my room 
 looking out of tbe window I seen N. hanging about 
 and I made up my mind to yield to temptation. At once 
 I committed my first and only crime this I say despite 
 all that I have suffered. I took jewelry worth $25000 and 
 joined N. and further down the road H. All three re- 
 turned to New York and the package was placed in a 
 safe at 32 Second Avenue, my poor wife was overjoyed 
 to have me back but guessed there was something wrong, 
 then I told her and crying "Oh, Alfred, what have you 
 done. ' ' 
 
 She fainted. 
 
 She planned then and there for me to secure the jew- 
 elry and that she would take it back to Mrs. Harrison. 
 She went alone to secure the package but the holder would 
 not give it up so I went and receipted for it. we were 
 afraid to go home dreading the revenge of N., H. D. so 
 we went to the home of a supposedly good friend up 
 town and told him the whole story, he asked us to stay 
 there till everything was settled, two years before I 
 had been his benefactor in many way's and went security 
 for the verry house that now sheltered him. 
 Nevertheless to secure the reward of $500 he hastened 
 to betray us befor my little wife could arange to bring the 
 jewelry back. I was arrested in his home taken to police 
 headquarters on what I had told him N. and H. allso were 
 arrested and brought to police headquarters. While there 
 at a late houer N.'s girl came to see me and told me that 
 since I was in for it, if I would keep quiet they would 
 get me out of trouble. When arraigned in Tombs Police 
 court preparatory to extradition to Pennsylvania N. 
 and H. had able councel and in some way their discharge 
 was continued and they disappeared. I apealed to those 
 I had aided when I had plenty but none responded, there
 
 TWENTY YEAES IN STATE'S PRISON 151 
 
 was but one faithful being my sick, half frantic, penny- 
 less little wife. She came to me dayly helping all she 
 could while waiting to be extradicted. 
 When taken to Norristown Pa jail, I borrowed from 
 an officer the stamp to send her the following letter know- 
 ing that she had no funds to come to Norristown and that 
 I was doomed and was only a load about her young neck. 
 
 Dec. the second 1903. 
 Dear Sophie 
 
 By the time you receive this I will be behind bars in 
 the Norristown jail. It will be no use for you to try to 
 speak to Mrs. or Mr. Harrison. In the first place they 
 will not admit you and in the second they are heartless 
 people. Now Sophie dear, it will be a long time befor 
 I can be with you again so forget me but forgive me for 
 the disgrace I have brought upon you I am not worthy to 
 be called your husband any longer, you are young and 
 do not let me stand in the way of your life's happiness. 
 Should our chield be born and live you may have to put 
 it in an institution but for your own sake dear drop me. 
 Let me know where you put the chield. I will agree to 
 anything that you undertake for your future. 
 
 Your unfortunate 
 
 Alfred, 
 
 On the 8th of Dec. I was taken into court and gave a 
 plea of guilty. I was pennyless, undefended, unadvised 
 and I was sentenced immediately, two charges were made 
 out of the one and my criminal record from Hobochen 
 told of by the constabler who made the transfear from 
 New York to the Norristown jail. I was given the max- 
 imum on both a totel of five year's and $1000 fined. 
 The same day I was hurried to the Eastern Penitentiary 
 and two days later this letter came to me :
 
 152 TWENTY YEARS IN STATE'S PRISON 
 
 December the 7th, 1903. 
 Dear and loving Alfred 
 
 I received your letter and I must tell you that I have 
 no intention of doing as you wish me to do. Do you 
 remember the day under the chipper (used in a hebrew 
 marriage Cerremony) where we promised each other that 
 nothing but death should part us. I shall keep that 
 promise. Mr. Moskowitz was here and took the piano and 
 furniture for the money he lent you on them. When he 
 asked for you I had to tell him of your trouble he felt 
 verry sorry for you. and gave me $50 to get a lawyer. 
 So, dear, cheer up. Trust in the one above as I do. I 
 will sell what there is left, and put the trunks in storage. 
 Let me know when your are going to be tried so that I 
 could get there and have a lawyer to defend you. the 
 three responsible for your troble have left the city. Dear, 
 don't write me any more letters like the one you did. I 
 will see you Tuesday. 
 
 From your loving wife 
 
 Sophie 
 
 My reply told her of the way in which I had been rail- 
 roaded. She left New York immediately, went to Mr. 
 Harrison's office and was refused admission, a compe- 
 tent attorney was retained, called on me and got the 
 fact's. He said I was entitled to an appeal from my 
 sentence as there was but one charge of larceny instead 
 of two. It would cost $500 to effect it however. 
 It was bitter winter weather nearing Christmas, my 
 little wife went here and there trying to raise the money 
 but she took sick from exposure and was compelled to 
 accept the invitation of a cousin in Cincinnati to come 
 there as the period of her confinement was drawing near. 
 I shall never forget that parting one January day. In 
 a few days she gave birth to a boy but one day the Chap-
 
 TWENTY YEARS IN STATE'S PRISON 153 
 
 lain came to my cell it was after week's of silence, agony, 
 suspense my Sophie had died the day after the child was 
 born, unable to raise the amount for an apeal in my case 
 I gave up hope to gain liberty befor my sentence expired 
 It was the 8th of June 1907 when I walked forth in the 
 light of day once more. In a few day's I was able to 
 make my way to Cincinnati and for the first time saw my 
 own child's face in my cousin's home. After a short stay 
 I returned to New York with the boy and gave him in 
 board with a Mrs. Sneider a friend of my deceased wife 
 from the old country. I obtained a position as Electrician 
 in Gloversville which lasted three months, but I saved my 
 wages and made conciderable in overtime, returning 
 to New York I sold all the rest of inlaid work which I 
 made while in the E. S. P. It was only a few day's that I 
 had been in New York when I was arrested in an Eighth 
 Street restaurant by Detective's Kinsly and Dugan and 
 charged with vagrancy! Vagrancy, when I had eighty 
 dollars in my pocket and a bank book showing $257 on de- 
 posit in the Gloversville Bank. I was taken to police 
 Headquarters locked up over night, the next morning 
 ]ined up before the detectives and orders were given to 
 arrest me whenever they saw me ! 
 
 Of course when arraigned in Jefferson Market Police 
 Court I was discharged but it had added new disgrace to 
 me and cost me $50 for a lawyer and expenses. In Octo- 
 ber 1907 I went into the restaurant business with E. 
 Poppich at 155 Allen Street. As the place was a day and 
 night Restaurant we changed hour's weekly, releaved 
 from night work one day I went to collect a bill owed us in 
 Av. A. near Sixth Street and returning was not a half 
 block from the home of the man who had paid the bill 
 befor I was arrested taken to headquarters, from there 
 to court, charged with unlawful entry. Magistrate Butts 
 on their false testimony and on my previous record held 
 me for special Session's. In default of Bail I was com-
 
 154 TWEXTY YEARS IX STATE'S PRISOX 
 
 mitted to the Tombs prison. "When tried I was dis- 
 charged on the testimony of the man who had paid the 
 bill at the verry time the supposed crime was beeing com- 
 mitted acording to the detectives, regaining my liberty I 
 found my partner had sold the Eestaurant, without my 
 knowledge and left the City, again I lost $125 of hard 
 earned money through this unwaranted arrest. While 
 Boarding with Mr. &. Mrs Sneider (the same Family that 
 took care of my boy) I made the acquaintance of a verry 
 worthy woman a widow with two children who was verry 
 good to my now sick little Boy. She and I decided to 
 marry and establish a home. I bought out a Delicatessen 
 and Lunch Eoom at 142 East 117 Str. and established a 
 home in the same house, progressing verry nicely we in- 
 tended to get married in February 1908 but on account 
 of my Boy's sudden illness postponed ouer plan, the end 
 of Febrary I received a threatening letter demanding 
 $200 this I took to the police Station there was informed 
 to go to police Headquarters, to me this ment self 
 protection, never would I apeal to people who have 
 tryed to ruin me who were the cause of me loosing over 
 $150 and sufferings behind bars on two arrests without 
 provocation. 
 
 the afternoon privious to my arrest in March 1908 I 
 had decided to buy a revolver in a down town second 
 hand Store, this remark I had made in presence of a 
 frequent Patron of the place who said that he allso is 
 going down town and would come along. I bought a 
 revolver in a second hand store down town and seeing 
 some other thing's I needed I bought a pair of pliers, a 
 putty knife. It was lucky I did not buy some more tools 
 though the friend with me called my attention to them 
 as bargains. We then parted. After concluding every- 
 thing down town and spending an houer or so with my 
 sick boy at Mrs. Sneider 's I set out for Home. In the 
 subway Station at spring Str. while paying for my fare
 
 TWENTY YEAES IX STATE'S PEISOX 155 
 
 I again seen this party entering and with the remark 
 well, well, just in time I paid his fare, together we left 
 the Station at 116 Street & Lenox Avenue and aproach- 
 ing 117th Str. Kinsly and Dugan stepped out of a hall- 
 way and grabbed me leaving the other party unmolested 
 took the things I had bought wrapped up from my pocket 
 and while doing this a piece- of black cloth was picked 
 from the ground along side of me. this they said was in 
 my pocket. I now recalled certain suspicious action's 
 of my friend or rather acquaintance and I realized that 
 he was a police "stool pigeon" and "framer." I was 
 so incensed that I reached for him. He had deliberately 
 entrapped me in an innocent proceeding that looked 
 verry black, the next instant one of the detectives had 
 laid me out with a black jack. I regained consciousnes 
 in a Cell in 126th Str. Police Station and when I wanted 
 to call a messenger to inform my friends of what had 
 happened I found orders had been left to allow me com- 
 municate with no one. It was the old round again. 
 Headquarters, Police Court and Tombs. I was charged 
 with carrying concealed weapon and carrying Burglar's 
 tools. Later a charge of Burglary was added, this was 
 based on two allmost valueless stick pins taken from 
 my muffler and necktye at the arrest. 
 At the hearring on the charge of Burglary I was lined 
 up in Tombs Police court with six prisoners for identi- 
 fication. Among them I was the only one wearring a 
 black Tie, the only one with a black overcoat and the 
 shortest of all. I protested asking that the identification 
 be held in Tombs prison, but in vain, the first (a women) 
 came in and identified an Italian prisoner, 
 while this was going on detective Kinsly left the court 
 room the doors were wide open and I seen a face look- 
 ing through the opening between the door and door frame, 
 the second a man came in and put his hand on me with- 
 out looking at any one else. I could have proven my
 
 156 TWENTY YEAES IN STATE'S PRISON 
 
 innocent but fearing the arrest of the women I was en- 
 gaged to I waived examination. 
 
 two days later Kin sly and Dugan came with a nother 
 women and the verry man to whom Kinsly had pointed 
 me out in police court, to the Tombs prison for Identi- 
 fication. I again was lined up and the women allso identi- 
 fied an Italian prisoner, walking to my cell Dugan pointed 
 me out to the women and she in return said that I was 
 the man. detective Dugan then tryed to besway Mr. 
 Hanly Depputy Warden of Tomb prison to let the second 
 identification stand beeing tried in Special sessions on 
 the charge of carreing concealed weapon I was remanded 
 for sentence, and within that same week allso arraigned 
 in General session to plead to two indictments. 
 At the date sentence was pronounced in Special ses- 
 sions the detective testified that the revolver taken from 
 me was charged and produceing my previous record I 
 received a six months sentence. 
 
 My little boy had grown worse and on the verry day 
 I was brought into court he died asking for me the last 
 words he said. 
 
 those who knew the circumstances secured a bondsman, 
 a Mr. Zimmerman to go on my $1500 bond that I might 
 attend his funeral but the District Attorney had my 
 bond raised to $5000 more than Zimmerman could give. 
 Pains behind my ear became unbearable from the blow 
 I had received from the black jack, grief over the loss 
 of my child, beeing even deprived to have the last look 
 at him. sentenced on a misdominor and to serve it. six 
 month's later to be tried on two fellony charges, the 
 whole thing became more than I could bear and making 
 a rasor ege knife from a spoon handle I cut my throat 
 and wrist but in Bellvue Hospital they landded me back 
 to life despite myself. Befor I was realy well I was 
 taken back to the Tombs, yet in an unfit Physical con- 
 dition I was sent to the penitentiary on the carrying
 
 157 
 
 concealed weapon charge, there I was operated upon the 
 Mastoid and without given a chance to escape trans- 
 ferred to Matteawan State hospital. 
 
 (Here follow a number of pages containing the Prisoner's observa- 
 tions and his experiences in Matteawan, They are omitted as not being 
 germane to our present purpose.) 
 
 I was arrested at the door's of the Institution on the 
 two indictments remaining in the district attorney's 
 office and brought back to New York to be tried, there 
 was another line up in headquarters befor the detectives 
 and again they were told to arrest me whenever they saw 
 me. the paprs required my return to the tombs and the 
 taking of me to police headquarters was outside of the 
 police authority. 
 
 When I was once more in the Tombs I found that my 
 long stay in Matteawan had resulted in the complete 
 dispersal of my defence against the two indictments. 
 Rev. Dr. Radin the Rabbi who had taken an interest in 
 my case and been at my bedside in Bellvue Hospital 
 making an investigation was dead more than a year be- 
 for. the women to whom I have referred as buying those 
 pins had sold my place over two year's ago, moved and 
 was not to be found. She had placed in Dr. Radin 's 
 hand 's the proof that the pins were bought, both of them 
 for $3.75 trough witnesses, that were in the Store at the 
 time of her purchase. Though my defence was gone 
 and my witnesses not to be found, the pins, the mask, a 
 fals but mute witnes the Revolver and at last the man 
 who was induced by the detectives to identifi me in 
 police court, all this was in the hand's of the district 
 Attorney. But fortunately I had a chance to speak to 
 the new assistant district Attorney who felt that the case 
 against me was just what I have shown it to be and I 
 was told that if I pled guilty I would be properly treated, 
 this promise was kept and I was set free by Honable
 
 158 TWENTY YEAES IN STATE'S PEISON 
 
 Judge Swan and was told to go back to Europe within 
 one month. My condition was pitiable funds, clothing, 
 tools, money gone discharged pennyless from Mattea- 
 wan, I went to the Volunteers of America in fourteenth 
 Street to their bureau for just such as I. I found I must 
 work for a month or six weeks for them befor I would 
 be given tools and that in other ways the new start was 
 made so difficult that I had more chance with my me- 
 chanical skill trying it alone so I thanked the official 
 of the bureau and left. Walking all the way up to 117th 
 Street I visited the block in which I had had my place of 
 business when the two officers and the stool pigeon con- 
 trived the false charges against. 
 
 My place was in the hands of strangers and as I stood 
 looking at it my eyes filled with tears, 
 the barber a few doors away recognized me and called 
 me. he told me the whole story of how my little property 
 had been disposed of during my imprisonment and when 
 he heard all that had befallen me he was most sympa- 
 thetic. I stayed all night and the next morning set out 
 to look for work and got it but having no tools was com- 
 pelled to work for less wages, less than a week later two 
 men stopped me on 19th Street. I did not know them 
 but they were central Office men and knew me. Having 
 my employers tools and material in my hand they did not 
 dare arrest me but in some way my employer found out 
 my predicament and I lost my place. I went to the 
 crimminal court Building to apeal to Honable. Judge 
 Swan but was informed that his Honor was on vacation. 
 I quickly got a nother position through a letter to the 
 Cloak and Suit Manufacturer protective association 
 beeing taken by Mr. Ike Silverman into the work of the 
 Fidelity Secret service buerau at $3 per day and ex- 
 penses I had told him of my predicament but have prom- 
 ised to be honest, upright and faitful. 
 I worked without complaint against me or my work till
 
 TWENTY YEAKS IN STATE'S PRISON 159 
 
 a change ocurred in the buerau which resulted in the 
 release of nearly all its Staff, at the same time I have 
 taken a side contract to repair during the evening two 
 Automobiles, so that I may raise and make sufficient 
 money to start for myself. 
 
 the beginning of October 1910 I was able to set up my 
 own little business having saved my wages and bought 
 tools and material I had many smal contracts. I did 
 verry well and was accuated by two strong motives, first 
 to show Dr. Lamb of Matteawan that he is not the Law, 
 second to prove to Honbl. Judge Swan that I am worthy 
 of the confidence his honor had placed in me by paroling 
 me. I was compelled to hire help in my work it so in- 
 creased but the detectives kept at thir hounding and one 
 day I was humiliated by two of them befor my own men, 
 I was compelled to go to Judge Swan and apeal to him. 
 his Attendant brought me word that I should keep on 
 doing what I am doing now and his honnor will take a 
 hand in my behalf, on a nother ocasion I was met by 
 Ditective Thalt who said "you will squeal" the next 
 time you get to Matteawan you go there for good." I 
 took a contract at 6-8 Doyer Str. where I lost so heavily 
 trough irresponsible ownership that it nearly floored me. 
 Work fell off owing to the winter season and in Decem- 
 ber I had to give up my place, just befor Christmas I 
 went to Cincinnati to the home of my cousin to get him 
 to back a contract offered to equip a large apartment 
 House. But he could not do so in reddy cash and I re- 
 turned to New York in January, the 15th of the same 
 month I wrote a letter to a party asking to assist me to 
 get with some Railroad Company, the 18th of January 
 the party called at Mills Hotel where I was stopping 
 and promised to place me. from that day till the day I 
 reieved employment at my trade with the InterborougE 
 Eailway Co. I have seen the paty dayly eccept Sunday 
 the first of February I came from work to meet the party
 
 160 TWENTY YEARS IN STATE'S PRISON 
 
 trough whom I received my position at Mills Hotel and 
 during the evening played a few games of Chess and at 
 last joined a get up game of Checkers. I retired about 
 9.30 p. m. about 12 p m two detective 's came to my rooms 
 and arrested me took me with them to 45th Street befor 
 two Chaffeurs. 
 
 "there is your man" said one of them they looked me 
 over then I was taken to the front door of a house farther 
 on One of the detectives went in leaving me with the 
 other for about five minutes. He came out and said 
 all right then both took me into the house and confronted 
 me with a stranger who said 
 
 "thats the man" 
 
 Now I was hauled to police headquarters and charged 
 with beeing a suspicious person, "arrested in 45th 
 Street" In the morning I was araigned befor Magistate 
 Oconor in 57th Street Court, there I was charged with 
 "unlawful entry" and I was committed to the Tombs. 
 the verry day I was to be tried in Special Session, I 
 was taken to General Sessions Part I where I found I had 
 been indicted for "Burglary in the second degree second 
 offense" 
 
 Should it be possibl for me to obtain a feare trial by 
 Judge and jury I will prove that I have absolutely no 
 knowledge of the crime I am charged with." 
 
 ALFRED V. SCHITOFSKY.
 
 TWENTY YEARS IX STATE'S PRISON 161 
 
 Stories of IDartoue TKHttnesees. 
 
 TOLD IN AFFIDAVITS. 
 
 Alfred V. Schwitofsky, being duly sworn, deposes and 
 says : I am the defendant in the above entitled action. I 
 was charged in and by the indictment preferred against 
 me with the crime of burglary in the second degree and 
 assault in the first degree as a second offence, and was 
 brought on for trial before Hon. Thomas C. O 'Sullivan, 
 a Judge of this Court on or about the 1st day of June, 
 1911, and after such trial before the said judge and a 
 jury, I was convicted, and thereafter I was sentenced to 
 a term of imprisonment at States Prison for twenty 
 years, which sentence I am now undergoing in the Clinton 
 Prison at Dannemora, having been transferred to the said 
 prison from the States Prison at Ossining. 
 
 Upon my trial it appeared that there was a scar upon 
 my left wrist which was claimed to have been inflicted 
 as a result of a struggle between one Frank Harold and 
 myself on the 19th day of January, 1911, when it was 
 claimed the said Frank Harold forcibly took hold of me 
 and took from me a revolver, and in doing so it was 
 claimed the said Frank Harold got hold of my left wrist 
 and embedded his finger nails into my left wrist and 
 scratched the same and tore the skin thereof. 
 
 Upon my trial there was exhibited to the jury scars 
 upon my left wrist, and it was claimed and argued that 
 those scars were the result of the struggle with Mr. Frank 
 Harold, and as corroborative proof of my guilt. 
 
 I desire to state that the said scars on my left wrist 
 were caused and brought about solely and exclusively by 
 reason of the fact that I inflicted wounds upon my left
 
 162 TWENTY YEAES IN STATE'S PRISON 
 
 wrist about three years ago while confined in the City 
 Prison awaiting trial," at which time I cut the inside por- 
 tion of my left wrist with a sharpened spoon with a 
 suicidal intent and severed the arteries of my left wrist 
 and I was taken to the Bellevue Hospital where I received 
 treatment for the same. 
 
 There are no scars on the outside portion of my left 
 wrist and I have had the said wrist carefully examined 
 under a microscope by Dr. Julius B. Ransom, the Prison 
 Physician of Clinton Prison, who has stated to me as well 
 as made an affidavit that there are no scars or evidences 
 of any scars on the outer side of my left wrist. Upon my 
 trial I was defended by Mr. William G. Kier and Walter 
 H. Carpenter, Esq., both of whom were assigned to me 
 by the Court; and no effort was made by my said counsel 
 to establish the fact that the scars on the outside of my 
 left wrist was the result of my own act, committed while 
 intending to commit suicide some years ago, and no effort 
 was made to establish that the person whom Frank Har- 
 old caught hold of, had cuts on the outside of the left 
 wrist. I can only account for that, that in the hurry of 
 my said trial, my said counsel omitted to prove those 
 facts and I am now advised that the said facts were es- 
 sential and if properly explained would probably have 
 resulted differently. 
 
 In view of the foregoing facts, I ask that the Court 
 take evidence in support of my motion for a new trial and 
 with that end in view, I ask, under Subdivision 7 of Sec- 
 tion 465 of the Code of Criminal Procedure, that my per- 
 sonal attendance be enforced, in order that I may give 
 evidence on the subject. 
 
 ALFRED V. SCHWITOFSKY. 
 Sworn to before me this 
 
 21st day of December, 1911. 
 
 LANCE M. PARSONS, 
 (Seal) Notary Public.
 
 TWENTY YEAES IN STATE'S PEISON 163 
 
 AFFIDAVIT OF LEO GELSKY. 
 
 Leo Gelsky, being duly sworn, deposes and says : I am 
 an inmate of the State Keformatory at Elmira, New 
 York, my consecutive number being 20524. 
 
 I recall about 19th day of January, 1911, and the going 
 to the residence of Theodore B. Dale at No. 71 West 
 45th Street, New York City, at about 9 o'clock that morn- 
 ing, with a companion whose name I decline to disclose. 
 My said companion was admitted to Mr. Dale 's house and 
 he had in his possession a promissory note for $100, 
 payable to me and signed by the said Dale, and a letter 
 from me to Mr. Dale requesting him to pay the amount 
 of the note to my companion. My reason for giving tlit 
 note with the letter to my companion was that Mr. Dale 
 had instructed his servants not to admit me to his house. 
 
 About five minutes after my companion had been ad- 
 mitted to Mr. Dale's house, he ran out of the front door 
 by which he had entered, followed by Mr. Dale who cried 
 ' ' Stop thief, ' ' and caused a crowd to gather. In front of 
 the hotel, and on the opposite side of the street from Mr. 
 Dale's house and about 200 feet eastward, my companion 
 was stopped by a chauffeur, who came from the taxicab 
 starter's office on the sidewalk in front of the said hotel. 
 The chauffeur held my companion until Mr. Dale came 
 up, when my companion in Mr. Dale's presence accused 
 
 him (Mr. Dale) of having attempted to commit 
 
 upon him, whereupon the chauffeur allowed my com- 
 panion to go, and we went to 6th Avenue and left the 
 neighborhood in a street car. 
 
 My companion left New York for the West in January, 
 and I have not seen him since. 
 
 On or about the 24th day of January, 1911, I sent an- 
 other messenger to Mr. Dale's house, demanding the $100 
 that was due me, and was arrested by Detective Talt, be- 
 ing arraigned before Magistrate O'Connor in the East
 
 164 TWENTY YEABS IN STATE'S PKISON 
 
 57th Street Police Court. From the Police Court I was 
 taken to another room in the same building by a detective 
 named Dungate, where I found Mr. Dale together with 
 Detectives Talt, Browne and one other whose name I did 
 not know. 
 
 In this room I was shown a photograph by Detective 
 Dungate, which I was told had been identified by Mr. 
 Dale as that of my companion who had entered Mr. 
 Dale's house on the morning of about January 19th. I 
 did not recognize the photograph, which was not that 
 of my former companion, and I told Detective Dungate 
 so. Afterward a Detective took me down to the police 
 court prison, and on the way beat and kicked me, and 
 told me that if I did not identify the photograph as that 
 of the man they told me to, I would be more severely 
 beaten, and he the Detective would see that I got fifteen 
 years for attempting to blackmail Mr. Dale. I was 
 frightened, and afterward answered "yes" to all ques- 
 tions put by Detective Browne and Talt after which 
 Schwitofsky was arrested. 
 
 As a matter of fact I had never spoken to Schwitofsky 
 but once in my life, on which occasion I played a game 
 of checkers with him at the Mills Hotel in Eivington 
 Street. He was not with me on the morning of about 
 January 19th, when I went to West 45th Street with my 
 aforementioned companion, who was admitted to Mr. 
 Dale's house, and I had never seen him outside of the 
 Mills Hotel until after he was arrested and charged with 
 the alleged burglary at Mr. Dale's house. 
 
 In February, 1911, while in the Tombs prison, I made 
 a full confession in writing to the Rev. Dr. Jacob Gold- 
 stein, the Jewish Chaplain of the Tombs, of the part I 
 had played in bringing about the arrest of Schwitofsky 
 and offered to do anything in my power to further the 
 ends of justice in his case, aside from giving the name 
 of my companion on the morning of about January 19th.
 
 TWENTY YEARS IN STATE'S PRISON 165 
 
 I also told my attorney, Neil Olcott, 2nd, of the wrong I 
 had done Schwitofsky, and at my request Mr. Olcott 
 wrote to Schwitof sky's attorney, informing him that I 
 was anxious to give evidence in his client's favor. I was 
 not called as a witness at Schwitof sky's trial, however. 
 I first met Mr. Dale one evening early in January, 
 1911, in a "penny arcade" on 14th Street, where he ac- 
 costed me and offered to get me a job, asking me to 
 meet him at 6th Avenue and 45th Street at 8 o'clock. 
 I met him there and he invited me to his house, where he 
 injured me severely in an attempt to commit a crime 
 against nature upon me while I was asleep. It was as 
 compensation for these injuries that he gave me the 
 promissory note of $100, he having given me the sum of 
 $5 in cash that same evening. 
 
 LEO GKLSKY. 
 
 Sworn to before me this 28th 
 day of October, 1911. 
 ERNEST D. PRITCHARD, 
 Notary Public, 
 Chemung Co., 
 New York State. 
 
 AFFIDAVIT OF FRANK HAROLD. 
 
 Frank Harold being duly sworn deposes and says: 
 I am a chauffeur by occupation and am employed at No. 
 19 West 62nd Street, Borough of Manhattan, City of 
 New York. 
 
 I recall the 19th day of January, 1911, and the seeing 
 of a person whom I afterwards learned to be Theodore 
 Dale of No. 71 West 45th Street, pursuing an unknown 
 man through and along West 45th Street, which un- 
 known man was carrying a revolver or pistol, which 
 afterwards turned out to be loaded with two blank cart- 
 ridges. The said unknown man and Mr. Dale were ap- 
 proaching the little booth occupied by me in the course
 
 166 TWENTY YEARS IN STATE'S PRISON 
 
 of my business as taxi-starter for the Hotel Webster, and 
 I took hold of the unknown man, I wrenched the revolver 
 from his hand and took possession of the same. That 
 after what I heard from the unknown man, whom I caught 
 as aforesaid, concerning Mr. Dale, I left the said man go. 
 
 The unknown man accused Mr. Dale of attempting to 
 
 practice upon him and this accusation was made 
 
 in the presence and hearing of Mr. Dale, and the said 
 Mr. Dale did not deny the accusation, and I thereupon 
 let the said unknown man go. 
 
 In the struggle between the said unknown man and 
 myself, I got hold of the wrist of the left hand of the 
 said unknown man and my fingers scratched the left wrist, 
 and tore the skin thereon slightly. 
 
 I am sure that the person whom I got hold of at the 
 said time and place, bore marks of the struggle, par- 
 ticularly the said back or outside portion of the wrist 
 were injured and the skin broken. 
 
 I took possession of, and retained the said revolver 
 and blank cartridges, and took out the said blank cart- 
 ridges and examined the same, and later in the morning 
 of the said day, Detective Cousins, then attached to the 
 88th Street police station, arrived and questioned me 
 about the case and I turned over to him the said revolver 
 and blank cartridges separately. 
 
 I am sure that the man whom I caught and who was 
 pursued by Mr. Dale, had marks on the back or outside 
 of the wrist of his left hand. 
 
 I make this affidavit voluntarily. 
 
 FRANK HAROLD. 
 Sworn to before me this 9th 
 
 day of October, 1911. 
 B. A. CHISHOLM, No. 221, 
 Notary Public, 
 New York County. 
 (Seal.)
 
 TWENTY YEARS IX STATE'S PRISON 167 
 
 AFFIDAVIT OF EDWARD J. COUSIN. 
 
 Edward J. Cousin, being duly sworn, deposes and says : 
 I am Acting Detective Sergeant, 1st Grade, of the Police 
 Department of the City of New York, and am at present 
 attached to the 35th Precinct, in the Borough of Manhat- 
 tan, City of New York, as detective. 
 
 I recall the 19th day of January, 1911, and my being 
 called to the house of one Theodore B. Dale, at 71 West 
 45th Street, Manhattan, between nine and ten o'clock in 
 the morning of said 19th day of January, 1911, he having 
 telephoned to the police station that an unknown man 
 had gained access to his (Dale's) premises a short time 
 before, on the pretext that he was a telephone repairer, 
 and on being asked for his credentials had threatened 
 him (Mr. Dale) and his servants with a pistol and had 
 then run out of the house and escaped. 
 
 On arriving at Mr. Dale's house, I was informed by 
 him that the unknown man had run eastwardly in the 
 direction of Fifth Avenue and had been stopped in front 
 of the Hotel Webster on the opposite side of 45th Street 
 by a chauffeur who was a taxicab starter for the said 
 hotel, and who had taken the pistol away from the said 
 unknown man and then allowed him to escape. 
 
 I accordingly went to the taxicab starter's booth on 
 the sidewalk in front of the Hotel Webster, and saw the 
 chauffeur, whose name I afterward learned was Frank 
 Harold, who had stopped the unknown man and taken 
 his pistol away. Harold told me that he had allowed the 
 unknown man to escape because he had informed him that 
 this man, meaning Dale, wanted to . 
 
 Mr. Harold gave me the pistol he had taken from the 
 unknown man and two blank cartridges that he said he 
 had taken from the chambers of the pistol, which he told 
 me had been otherwise unloaded.
 
 168 TWENTY YEAES IN STATE'S PRISON 
 
 I handed in the pistol, and the two blank cartridges 
 separately, as Mr. Harold gave them to me, at the Prop- 
 erty Clerk's office at Police Headquarters shortly after- 
 ward. 
 
 EDWARD J. COUSIN. 
 
 Sworn to before me this 
 16th day of October, 1911. 
 EGBERT A. GAY, 
 Notary Public, 
 (Seal) N. Y. Co. 416. 
 
 AFFIDAVIT OF J. B. RANSOM. 
 
 In the matter of the examination of Alfred B. Schwitof- 
 sky, No. 9693, a convict now confined in Clinton Prison, 
 in the County of Clinton, State of New York, personally 
 came before me, a Notary in and for the aforesaid county 
 and state, Dr. B. Ransom, physician to Clinton Prison, 
 and who, being duly sworn, declares that he has examined 
 the above-named convict with a view to determining the 
 presence of scars on the wrists of the aforesaid convict : 
 
 That he has carefully examined said convict and finds 
 on the outer aspect of the left wrist, with palm upwards, 
 some fine radiating, linear scars, to wit: one irregular 
 scar one and three-eighth inches in length, one radiating 
 one-half inch, and one horizontal scar one-half inch. That 
 these scars were evidently made by a thin, sharp instru- 
 ment, and are of long standing. Further, that there are 
 no scars that, in his judgment, were made within one 
 year, and that there are no scars on the back of the wrists 
 or arms of the aforesaid convict. 
 
 He further declares that he has practiced medicine for 
 the past thirty-one years, has been physician to Clinton
 
 TWENTY YEARS IN STATE'S PRISON 169 
 
 Prison since May 15, 1889, and that he has no interest 
 directly or indirectly in the case of convict Schwitofsky. 
 
 J. B. RANSOM, 
 Affiant's Signature. 
 
 Sworn to and subscribed before me this 27 day of Oct., 
 1911, and I hereby certify that the affiant is a practicing 
 physician in good professional standing ; that the contents 
 of the above declaration were fully made known to him 
 before swearing, and I have no interest, direct or indirect 
 in this matter. 
 
 J. H. SIGNOR, 
 (Seal) Notary Public. 
 
 AFFIDAVIT OF JULIUS B. RANSOM. 
 
 Julius B. Ransom being duly sworn, deposes and says : 
 I am a physician and surgeon duly licensed to practice in 
 the State of New York and have been a physician for the 
 past 31 years. 
 
 I am the prison Physician for the Clinton Prison and 
 have examined Alfred V. Schwitofsky, a convict now con- 
 fined therein and is known as No. 9693. 
 
 That on the 16th day of November, 1911, I made an 
 examination of both wrists of the said Alfred V. Schwit- 
 ofsky by the aid of a microscope and from such examina- 
 tion I am able to state that the back of the wrists of the 
 said Alfred V. Schwitofsky show no evidence of marks 
 or scars thereon, and it is my opinion as such physician 
 and surgeon, that if the skin upon the back of the wrist or 
 wrists of the said Alfred V. Schwitofsky had been broken 
 or lacerated, or in anywise injured, the same would be 
 noticeable upon a microscopic examination, and the skin 
 on the back of the wrist show evidence of the same. 
 
 I am further of the opinion that marks or scars as a
 
 170 
 
 result of the breaking or laceration of the skin upon the 
 wrists of a person would remain and be noticeable under 
 a microscope for at least five years after the injury. 
 
 The said Alfred V. Schwitofsky has no injuries upon 
 his wrists other than those mentioned in my former affida- 
 vit sworn to before me on October 27th, 1911. 
 
 JULIUS B. RANSOM. 
 
 Sworn to before me this 
 16 day of November, 1911. 
 
 J. H. SIGNOB, 
 (Seal) Notary Public.
 
 TWENTY YEAKS IN STATE'S PKISON 171 
 
 OPINION. 
 
 COUKT OF GENERAL SESSIONS OF THE PEACE, CITY AND COUNTY 
 
 OF NEW YORK. 
 
 ''This is a motion for a new trial under sub-division 
 7, of Section 465, of the Code of Criminal Procedure. 
 
 "The defendant was indicted for burglary in the sec- 
 ond degree and assault in the first degree, as second 
 offenses. The indictment was filed February 9, 1911, and 
 the defendant came to trial thereunder on June 1st, 1911. 
 
 "In support of the charge, the prosecution produced 
 witnesses who testified substantially that on the morning 
 of January 19th, 1911, the defendant rang the door-bell 
 of the premises of 71 West 45th Street and demanded 
 admission to the house, stating that he was in the em- 
 ployment of the Telephone Company and that he came 
 to repair the telephone in the house. Having gained ad- 
 mission, he proceeded to the telephone booth with a coil of 
 electric wire in his hand. Shortly thereafter, the pro- 
 prietor of the establishment enquired of the defendant 
 what he was doing there, to which he replied that he 
 was from the New York Telephone Company ; whereupon 
 the proprietor requested the defendant to show his badge 
 of employment, to which he replied, 'Here's my book of 
 instruction.' The proprietor repeated his request for 
 the badge and on the failure of the defendant to produce 
 it, the proprietor, in the presence and hearing of several 
 employees of the establishment and in the presence and 
 hearing of the defendant, directed the telephone operator
 
 172 
 
 to enquire of the Telephone Company whether anyone 
 had been directed to repair the telephone ; whereupon the 
 defendant started to leave the establishment. The pro- 
 prietor and several employees attempted to prevent his 
 leaving by placing themselves between the defendant and 
 the closed door. The testimony for the prosecution shows 
 that the defendant, then taking a loaded revolver from 
 his pocket, said, 'You won't let me out; you won't; I'll 
 shoot you if you don't let me out,' and that as the de- 
 fendant went toward the door, he levelled his revolver 
 toward persons present and repeated his threat, 'You 
 won't let me out; you won't? Well, I'll shoot you.' 
 He then escaped and in the presence of the employees was 
 chased by the proprietor through the street. The testi- 
 mony shows that, at a short distance from the establish- 
 ment, the defendant was held by a chauffeur until the 
 complainant arrived. Thereupon the defendant charged 
 that the complainant had attempted to kill him (defend- 
 ant) and made other criminal charges against complain- 
 ant. The chauffeur then released the defendant, who was 
 followed by the complainant to a car on which the defend- 
 ant escaped. About a fortnight thereafter, the defend- 
 ant was placed under arrest by an officer of the Police 
 Department, and was subsequently held for trial in this 
 Court. 
 
 "The defendant's motion is based on alleged newly 
 discovered evidence as to his identity, on the theory that 
 certain scars on his wrist were relied upon to a material 
 extent to prove his identity as the actual offender. 
 
 "On the People's case, four witnesses, three of them 
 employees of the Dale establishment, and Dale, the pro- 
 prietor, swore to the identity of the defendant. Accord- 
 ing to the testimony of Dale, the defendant was seen in 
 the neighborhood of his establishment the day before. 
 The three employees testified to their presence in the 
 room on the occasion when it is alleged that the defendant
 
 TWENTY YEAES IN STATE'S PKISON 173 
 
 entered the house, went to the telephone and afterwards 
 drew a loaded revolver upon them with a threat to shoot. 
 All four witnesses declare that they recognized the de- 
 fendant and were positive in their testimony as to his 
 identity. On that branch of the case no other witnesses 
 were called by the prosecution. On the cross-examina- 
 tion of Officer Brown, who made the arrest, he stated that 
 having arrested defendant, he brought him to the chauf- 
 feur, who stopped and held a man who was running from 
 the direction of the Dale establishment on the date of 
 the alleged burglary. 
 
 "On the part of the defense, the defendant, on his di- 
 rect-examination, declared that after his arrest he was 
 taken by the police officer to the chauffeur, and that the 
 officer said to the chauffeur, 'This is the man I was tele- 
 phoning you about. ' The defendant testified as follows : 
 'They looked me over, made me take off my hat; one 
 chauffeur said, "Show me your left wrist," and then re- 
 marked, "Well, I guess that's the man." 
 
 "On re-cross-examination, the attorney for the prose- 
 cution asked the defendant: 'Q. Now the reason the 
 chauffeur wanted to look at your wrist was that, at the 
 time he stopped you, your wrist was cut by his nail, 
 wasn't it?' to which the defendant answered 'No.' 
 Thereupon the District Attorney asked *Q. Well, what 
 did he want to look at your wrist fort' and the defendant; 
 answered: 'A. He wanted to look at my wrist and ex- 
 amined my wrist, and then shook his head.' 
 
 "Again, on redirect-examination, the attorney for the 
 defendant asked him to repeat the statement made by the 
 chauffeur, which was done. 
 
 "The Court instructed the defendant that he might 
 make any explanation that he desired to make concern- 
 ing the charge against him. The foreman of the jury 
 questioned defendant about the scar on his wrist and 
 asked him how he came by it. The defendant answered
 
 174 TWENTY YEARS IX STATE'S PRISON 
 
 that he inflicted the injury upon himself in the year 1908. 
 
 "After the closing arguments had been made and while 
 the Court was charging the jury, he was interrupted by 
 the defendant's counsel, who stated that defendant 
 desired to make a statement to the jury regard- 
 ing the mark on his arm; whereupon the Court asked 
 if he desired to reopen the case, to which counsel ans- 
 wered that he did not, but that defendant desired to make 
 a statement with regard to the mark on his wrist. The 
 Court stated to counsel for defendant that the matter 
 had already been gone into, and denied the request. 
 
 "Three of the affiants whose affidavits are a part 
 of the moving papers were accessible at the time of the 
 trial and their testimony could have been procured. I 
 do not believe that any additional testimony by them 
 would have changed the verdict of the jury; nor would 
 testimony of the microscopic examination of the scars, 
 three years after they were made, have that effect, par- 
 ticularly in view of the fact that the defendant testified 
 that they were made by himself in 1908, which testimony 
 was uncontradicted. 
 
 "In my opinion, the defendant was fairly tried. Two 
 reliable and experienced attorneys were assigned to the 
 defendant by the Court. They had ample time to acquaint 
 themselves with every phase of the case, and I believe 
 were familiar with all the facts and circumstances and 
 could have adduced the testimony upon which it is now 
 sought to obtain on a new trial. I regard the verdict as a 
 just one. After a careful consideration of the moving 
 papers and the minutes of the trial, I can find nothing to 
 justify the granting of the motion, and, therefore, it is 
 denied. 
 
 "Dated, New York City, February 23rd, 1912. 
 
 "THOMAS C. 'SULLIVAN, 
 
 "J. C. G. S."
 
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