Produced by An Anonymous Volunteer





COURTS AND CRIMINALS


By Arthur Train



These essays, which were written between the years 1905-1910 are
reprinted without revision, although in a few minor instances the laws
may have been changed.




CHAPTER I. The Pleasant Fiction of the Presumption of Innocence


There was a great to-do some years ago in the city of New York over an
ill-omened young person, Duffy by name, who, falling into the bad
graces of the police, was most incontinently dragged to headquarters
and "mugged" without so much as "By your leave, sir," on the part of the
authorities. Having been photographed and measured (in most humiliating
fashion) he was turned loose with a gratuitous warning to behave himself
in the future and see to it that he did nothing which might gain him
even more invidious treatment.

Now, although many thousands of equally harmless persons had been
similarly treated, this particular outrage was made the occasion of a
vehement protest to the mayor of the city by a certain member of the
judiciary, who pointed out that such things in a civilized community
were shocking beyond measure, and called upon the mayor to remove the
commissioner of police and all his staff of deputy commissioners for
openly violating the law which they were sworn to uphold. But, the
commissioner of police, who had sometimes enforced the penal statutes in
a way to make him unpopular with machine politicians, saw nothing wrong
in what he had done, and, what was more, said so most outspokenly.
The judge said, "You did," and the commissioner said, "I didn't."
Specifically, the judge was complaining of what had been done to
Duffy, but more generally he was charging the police with despotism and
oppression and with systematically disregarding the sacred liberties of
the citizens which it was their duty to protect.

Accordingly the mayor decided to look into the matter for himself, and
after a lengthy investigation came to the alleged conclusion that the
"mugging" of Duffy was a most reprehensible thing and that all those who
were guilty of having any part therein should be instantly removed
from office. He, therefore, issued a pronunciamento to the commissioner
demanding the official heads of several of his subordinates, which order
the commissioner politely declined to obey. The mayor thereupon removed
him and appointed a successor, ostensibly for the purpose of having in
the office a man who should conduct the police business of the city with
more regard for the liberties of the inhabitants thereof. The judge
who had started the rumpus expressed himself as very much pleased and
declared that now at last a new era had dawned wherein the government
was to be administered with a due regard for law.

Now, curiously enough, although the judge had demanded the removal of
the commissioner on the ground that he had violated the law and been
guilty of tyrannous and despotic conduct, the mayor had ousted him
not for pursuing an illegal course in arresting and "mugging" a
presumptively innocent man (for illegal it most undoubtedly was), but
for inefficiency and maladministration in his department.

Said the mayor in his written opinion:


"After thinking over this matter with the greatest care, I am led to the
conclusion that as mayor of the city of New York I should not order
the police to stop taking photographs of people arrested and accused of
crime or who have been indicted by grand juries. That grave injustice
may occur the Duffy case has demonstrated, but I feel that it is not the
taking of the photograph that has given cause to the injustice, but the
inefficiency and maladministration of the police department, etc."

In other words, the mayor set the seal of his official approval upon
the very practice which caused the injustice to Duffy. "Mugging" was all
right, so long as you "mugged" the right persons.

The situation thus outlined was one of more than passing interest. A
sensitive point in our governmental nervous system had been touched and
a condition uncovered that sooner or later must be diagnosed and cured.

For the police have no right to arrest and photograph a citizen
unconvicted of crime, since it is contrary to law. And it is ridiculous
to assert that the very guardians of the law may violate it so long as
they do so judiciously and do not molest the Duffys. The trouble goes
deeper than that. The truth is that we are up against that most delicate
of situations, the concrete adjustment of a theoretical individual right
to a practical necessity. The same difficulty has always existed and
will always continue to exist whenever emergencies requiring prompt
and decisive action arise or conditions obtain that must be handled
effectively without too much discussion. It is easy while sitting on the
piazza with your cigar to recognize the rights of your fellow-men, you
may assert most vigorously the right of the citizen to immunity from
arrest without legal cause, but if you saw a seedy character sneaking
down a side street at three o'clock in the morning, his pockets bulging
with jewelry and silver! Would you have the policeman on post insist
on the fact that a burglary had been committed being established beyond
peradventure before arresting the suspect, who in the meantime would
undoubtedly escape? Of course, the worthy officer sometimes does this,
but his conduct in that case becomes the subject of an investigation
on the part of his superiors. In fact, the rules of the New York police
department require him to arrest all persons carrying bags in the small
hours who cannot give a satisfactory account of themselves. Yet there
is no such thing under the laws of the State as a right "to arrest on
suspicion." No citizen may be arrested under the statutes unless a crime
has actually been committed. Thus, the police regulations deliberately
compel every officer either to violate the law or to be made the subject
of charges for dereliction of duty. A confusing state of things, truly,
to a man who wants to do his duty by himself and by his fellow-citizens!

The present author once wrote a book dealing with the practical
administration of criminal justice, in which the unlawfulness of arrest
on mere "suspicion" was discussed at length and given a prominent place.
But when the time came for publication that portion of it was omitted
at the earnest solicitation of certain of the authorities on the ground
that as such arrests were absolutely necessary for the enforcement
of the criminal law a public exposition of their illegality would do
infinite harm. Now, as it seems, the time has come when the facts, for
one reason or another, should be faced. The difficulty does not end,
however, with "arrest on suspicion," "the third degree," "mugging," or
their allied abuses. It really goes to the root of our whole theory of
the administration of the criminal law. Is it possible that on final
analysis we may find that our enthusiastic insistence upon certain of
the supposedly fundamental liberties of the individual has led us into
a condition of legal hypocrisy vastly less desirable than the frank
attitude of our continental neighbors toward such subjects?

The Massachusetts Constitution of 1785 concludes with the now famous
words: "To the end that this may be a government of laws and not of
men." That is the essence of the spirit of American government. Our
forefathers had arisen and thrown off the yoke of England and her
intolerable system of penal government, in which an accused had no
right to testify in his own behalf and under which he could be hung
for stealing a sheep. "Liberty!" "Liberty or death!" That was the note
ringing in the minds and mouths of the signers of the Declaration and
framers of the Constitution. That is the popular note to-day of the
Fourth of July orator and of the Memorial Day address. This liberty was
to be guaranteed by laws in such a way that it was never to be curtailed
or violated. No mere man was to be given an opportunity to tamper
with it. The individual was to be protected at all costs. No king, or
sheriff, or judge, or officer was to lay his finger on a free man
save at his peril. If he did, the free man might immediately have his
"law"--"have the law on him," as the good old expression was--for no
king or sheriff was above the law. In fact, we were so energetic in
providing safeguards for the individual, even when a wrong-doer, that we
paid very little attention to the effectiveness of kings or sheriffs or
what we had substituted for them. And so it is to-day. What candidate
for office, what silver-tongued orator or senator, what demagogue or
preacher could hold his audience or capture a vote if, when it came to a
question of liberty, he should lift up his voice in behalf of the rights
of the majority as against the individual?

Accordingly in devising our laws We have provided in every possible way
for the freedom of the citizen from all interference on the part of the
authorities. No one may be stopped, interrogated, examined, or arrested
unless a crime has been committed. Every one is presumed to be innocent
until shown to be guilty by the verdict of a jury. No one's premises
may be entered or searched without a warrant which the law renders it
difficult to obtain. Every accused has the right to testify in his own
behalf, like any other witness. The fact that he has been held for a
crime by a magistrate and indicted by a grand jury places him at not the
slightest disadvantage so far as defending himself against the charge
is concerned, for he must be proven guilty beyond any reasonable
doubt. These illustrations of the jealousy of the law for the rights of
citizens might be multiplied to no inconsiderable extent. Further,
our law allows a defendant convicted of crime to appeal to the highest
courts, whereas if he be acquitted the people or State of New York have
no right of appeal at all.

Without dwelling further on the matter it is enough to say that in
general the State constitutions, their general laws, or penal statutes
provide that a person who is accused or suspected of crime must be
presumed innocent and treated accordingly until his guilt has been
affirmatively established in a jury trial; that meantime he must not be
confined or detained unless a crime has in fact been committed and there
is at least reasonable cause to believe that he has committed it; and,
further, that if arrested he must be given an immediate opportunity
to secure bail, to have the advice of counsel, and must in no way be
compelled to give any evidence against himself. So much for the law. It
is as plain as a pikestaff. It is printed in the books in words of
one syllable. So far as the law is concerned we have done our best
to perpetuate the theories of those who, fearing that they might be
arrested without a hearing, transported for trial, and convicted in a
king's court before a king's judge for a crime they knew nothing of,
insisted on "liberty or death." They had had enough of kings and their
ways. Hereafter they were to have "a government of laws and not of men."

But the unfortunate fact remains that all laws, however perfect, must in
the end be administered by imperfect men. There is, alas! no such thing
as a government of laws and not of men. You may have a government
more of laws and less of men, or vice versa, but you cannot have an
auto-administration of the Golden Rule. Sooner or later you come to a
man--in the White House, or on a wool sack, or at a desk in an office,
or in a blue coat and brass buttons--and then, to a very considerable
extent, the question of how far ours is to be a government of laws or of
men depends upon him. Generally, so far as he is concerned, it is going
to be of man, for every official finds that the letter of the law works
an injustice many times out of a hundred. If he is worth his salary he
will try to temper justice with mercy. If he is human he will endeavor
to accomplish justice as he sees it so long as the law can be stretched
to accommodate the case. Thus, inevitably there is a conflict
between the law and its application. It is the human element in the
administration of the law that enables lawyers to get a living. It is
usually not difficult to tell what the law is; the puzzle is how it
is going to be applied in any individual case. How it is going to be
applied depends very largely upon the practical side of the matter and
the exigencies of existing conditions.

It is pretty hard to apply inflexibly laws over a hundred years old. It
is equally hard to police a city of a million or so polyglot inhabitants
with a due regard to their theoretic constitutional rights. But suppose
in addition that these theoretic rights are entirely theoretic and fly
in the face of the laws of nature, experience, and common sense? What
then? What is a police commissioner to do who has either got to make an
illegal arrest or let a crook get away, who must violate the rights of
men illegally detained by outrageously "mugging" them or egregiously
fail to have a record of the professional criminals in his bailiwick?
He does just what all of us do under similar conditions--he "takes a
chance." But in the case of the police the thing is so necessary that
there ceases practically to be any "chance" about it. They have got to
prevent crime and arrest criminals. If they fail they are out of a
job, and others more capable or less scrupulous take their places. The
fundamental law qualifying all systems is that of necessity. You can't
let professional crooks carry off a voter's silverware simply because
the voter, being asleep, is unable instantly to demonstrate beyond
a reasonable doubt that his silver has been stolen. You can't permit
burglars to drag sacks of loot through the streets of the city at 4 A.M.
simply because they are presumed to be innocent until proven guilty. And
if "arrest on suspicion" were not permitted, demanded by the public,
and required by the police ordinances, away would go the crooks and off
would go the silverware, the town would be full of "leather snatchers"
and "strong-arm men," respectable citizens would be afraid to go out o'
nights, and liberty would degenerate into license. That is the point. We
Americans, or at least some of the newer ones of us, have an idea that
"liberty" means the right to steal apples from our neighbor's orchard
without interference. Now, somewhere or other, there has got to be a
switch and a strong arm to keep us in order, and the switch and arm must
not wait until the apples are stolen and eaten before getting busy. If
we come climbing over the fence sweating apples at every pore, is Farmer
Jones to go and count his apples before grabbing us?

The most presumptuous of all presumptions is this "presumption of
innocence." It really doesn't exist, save in the mouths of judges and in
the pages of the law books. Yet as much to-do is made about it as if
it were a living legal principle. Every judge in a criminal case is
required to charge the jury in form or substance somewhat as follows:
"The defendant is presumed to be innocent until that presumption is
removed by competent evidence"... "This presumption is his property,
remaining with him throughout the trial and until rebutted by the
verdict of the jury."... "The jury has no right to consider the fact
that the defendant stands at the bar accused of a crime by an indictment
found by the grand jury." Shades of Sir Henry Hawkins! Does the judge
expect that they are actually to swallow that? Here is a jury sworn "to
a true verdict find" in the case of an ugly looking customer at the bar
who is charged with knocking down an old man and stealing his watch. The
old man--an apostolic looking octogenarian--is sitting right over there
where the jury can see him. One look at the plaintiff and one at the
accused and the jury may be heard to mutter, "He's guilty,--all right!"

"Presumed to be innocent?" Why, may I ask? Do not the jury and everybody
else know that this good old man would never, save by mistake, accuse
anybody falsely of crime? Innocence! Why, the natural and inevitable
presumption is that the defendant is guilty! The human mind works
intuitively by comparison and experience. We assume or presume with
considerable confidence that parents love their children, that all
college presidents are great and good men, and that wild bulls are
dangerous animals. We may be wrong. But it is up to the other fellow to
show us the contrary.

Now, if out of a clear sky Jones accuses Robinson of being a thief we
know by experience that the chances are largely in favor of Jones's
accusation being well founded. People as a rule don't go rushing around
charging each other with being crooks unless they have some reason
for it. Thus, at the very beginning the law flies in the face of
probabilities when it tells us that a man accused of crime must be
presumed to be innocent. In point of fact, whatever presumption there is
(and this varies with the circumstances) is all the other way, greater
or less depending upon the particular attitude of mind and experience of
the individual.

This natural presumption of guilt from the mere fact of the charge is
rendered all the more likely by reason of the uncharitable readiness
with which we believe evil of our fellows. How unctuously we repeat some
hearsay bit of scandal. "I suppose you have heard the report that
Deacon Smith has stolen the church funds?" we say to our friends with a
sententious sigh--the outward sign of an invisible satisfaction. Deacon
Smith after the money-bag? Ha! ha! Of course, he's guilty! These deacons
are always guilty! And in a few minutes Deacon Smith is ruined forever,
although the fact of the matter may well have been that he was but
counting the money in the collection-plate. This willingness to believe
the worst of others is a matter of common knowledge and of historical
and literary record. "The evil that men do lives after them--" It might
well have been put, "The evil men are said to have done lives forever."
However unfair, this is a psychologic condition which plays an important
part in rendering the presumption of innocence a gross absurdity.

But let us press the history of Jones and Robinson a step further. The
next event in the latter's criminal history is his appearance in
court before a magistrate. Jones produces his evidence and calls his
witnesses. Robinson, through his learned counsel, cross-examines
them and then summons his own witnesses to prove his innocence. The
proceeding may take several days or perhaps weeks. Briefs are submitted.
The magistrate considers the testimony and finally decides that he
believes Robinson guilty and must hold him for the action of the
grand jury. You might now, it would perhaps seem, have some reason for
suspecting that Robinson was not all that he should be. But no! He is
still presumed in the eyes of the law, and theoretically in the eyes of
his fellows, to be as innocent as a babe unborn. And now the grand jury
take up and sift the evidence that has already been gone over by the
police judge. They, too, call witnesses and take additional testimony.
They likewise are convinced of Robinson's guilt and straightway hand
down an indictment accusing him of the crime. A bench warrant issues.
The defendant is run to earth and ignominiously haled to court. But he
is still presumed to be innocent! Does not the law say so? And is not
this a "government of laws"? Finally, the district attorney, who is not
looking for any more work than is absolutely necessary, investigates the
case, decides that it must be tried and begins to prepare it for trial.
As the facts develop themselves Robinson's guilt becomes more and more
clear. The unfortunate defendant is given any opportunity he may desire
to explain away the charge, but to no purpose.

The district attorney knows Robinson is guilty, and so does everybody
else, including Robinson. At last this presumably innocent man is
brought to the bar for trial. The jury scan his hang-dog countenance
upon which guilt is plainly written. They contrast his appearance with
that of the honest Jones. They know he has been accused, held by a
magistrate, indicted by a grand jury, and that his case, after careful
scrutiny, has been pressed for trial by the public prosecutor. Do they
really presume him innocent? Of course not. They presume him guilty. "So
soon as I see him come through dot leetle door in the back of the room,
then I know he's guilty!" as the foreman said in the old story. What
good does the presumption of innocence, so called, do for the miserable
Robinson? None whatever--save perhaps to console him in the long days
pending his trial. But such a legal hypocrisy could never have deceived
anybody. How much better it would be to cast aside all such cant and
frankly admit that the attitude of the continental law toward the man
under arrest is founded upon common sense and the experience of mankind.
If he is the wrong man it should not be difficult for him to demonstrate
the fact. At any rate circumstances are against him, and he should be
anxious to explain them away if he can.

The fact of the matter is, that in dealing with practical conditions,
police methods differ very little in different countries. The
authorities may perhaps keep considerably more detailed "tabs" on people
in Europe than in the United States, but if they are once caught in a
compromising position they experience about the same treatment wherever
they happen to be. In France (and how the apostles of liberty condemn
the iniquity of the administration of criminal justice in that country!)
the suspect or undesirable receives a polite official call or note, in
which he is invited to leave the locality as soon as convenient. In
New York he is arrested by a plainclothes man, yanked down to Mulberry
Street for the night, and next afternoon is thrust down the gangplank
of a just departing Fall River liner. Many an inspector has earned
unstinted praise (even from the New York Evening Post) by "clearing New
York of crooks" or having a sort of "round-up" of suspicious characters
whom, after proper identification, he has ejected from the city by the
shortest and quickest possible route. Yet in the case of every person
thus arrested and driven out of the town he has undoubtedly violated
constitutional rights and taken the law into his own hands.

What redress can a penniless tramp secure against a stout inspector of
police able and willing to spend a considerable sum of money in his own
defence, and with the entire force ready and eager to get at the tramp
and put him out of business? He swallows his pride, if he has any, and
ruefully slinks out of town for a period of enforced abstinence from the
joys of metropolitan existence. Yet who shall say that, in spite of the
fact that it is a theoretic outrage upon liberty, this cleaning out of
the city is not highly desirable? One or two comparatively innocent men
may be caught in the ruck, but they generally manage to intimate to the
police that the latter have "got them wrong" and duly make their
escape. The others resume their tramp from city to city, clothed in the
presumption of their innocence.

Since the days of the Doges or of the Spanish Inquisition there has
never been anything like the morning inspection or "line up" of arrested
suspects at the New York police head-quarters.* (*Now abolished.) One by
one the unfortunate persons arrested during the previous night (although
not charged with any crime) are pointed out to the assembled detective
force, who scan them from beneath black velvet masks in order that they
themselves may not be recognized when they meet again on Broadway or
the darker side streets of the city. Each prisoner is described and his
character and past performances are rehearsed by the inspector or head
of the bureau. He is then measured, "mugged," and, if lucky, turned
loose. What does his liberty amount to or his much-vaunted legal rights
if the city is to be made safe? Yet why does not some apostle of liberty
raise his voice and cry aloud concerning the wrong that has been done?
Are not the rights of a beggar as sacred as those of a bishop?

One of the most sacred rights guaranteed under the law is that of not
being compelled to give evidence against ourselves or to testify to
anything which might degrade or incriminate us. Now, this is all very
fine for the chap who has his lawyer at his elbow or has had some
similar previous experience. He may wisely shut up like a clam and set
at defiance the tortures of the third degree. But how about the poor
fellow arrested on suspicion of having committed a murder, who has never
heard of the legal provision in question, or, if he has, is cajoled or
threatened into "answering one or two questions"? Few police officers
take the trouble to warn those whom they arrest that what they say may
be used against them. What is the use? Of course, when they testify
later at the trial they inevitably begin their testimony with the
stereotyped phrase, "I first warned the defendant that anything which
he said might be used against him." If they did warn him they probably
whispered it or mumbled it so that he didn't hear what they said, or,
in any event, whether they said it or not, half a dozen of them probably
took him into a back room and, having set him with his back against the
wall, threatened and swore at him until he told them what he knew, or
thought he knew, and perhaps confessed his crime. When the case comes to
trial the police give the impression that the accused quietly summoned
them to his cell to make a voluntary statement. The defendant denies
this, of course, but the evidence goes in and the harm has been done. No
doubt the methods of the inquisition are in vogue the world over under
similar conditions. Everybody knows that a statement by the accused
immediately upon his arrest is usually the most important evidence that
can be secured in any case. It is a police officer's duty to secure one
if he can do so by legitimate means. It is his custom to secure one
by any means in his power. As his oath, that such a statement was
voluntary, makes it ipso facto admissible as evidence, the statutes
providing that a defendant cannot be compelled to give evidence against
himself are practically nullified.

In the more important cases the accused is usually put through some sort
of an inquisitorial process by the captain at the station-house. If
he is not very successful at getting anything out of the prisoner the
latter is turned over to the sergeant and a couple of officers who can
use methods of a more urgent character. If the prisoner is arrested
by headquarters detectives, various efficient devices to compel him to
"give up what he knows" may be used--such as depriving him of food and
sleep, placing him in a cell with a "stool pigeon" who will try to worm
a confession out of him, and the usual moral suasion of a heart-to-heart
talk in the back room with the inspector.

This is the darker side of the picture of practical government. It
is needless to say that the police do not always suggest the various
safeguards and privileges which the law accords to defendants thus
arrested, but the writer is free to confess that, save in exceptional
cases, he believes the rigors of the so-called third degree to be
greatly exaggerated. Frequently in dealing with rough men rough methods
are used, but considering the multitude of offenders, and the thousands
of police officers, none of whom have been trained in a school of
gentleness, it is surprising that severer treatment is not generally
met with on the part of those who run afoul of the criminal law. The
ordinary "cop" tries to do his duty as effectively as he can. With the
average citizen gruffness and roughness go a long way in the assertion
of authority. In the task of policing a big city, the rights of the
individual must indubitably suffer to a certain extent if the rights
of the multitude are to be properly protected. We can make too much of
small injustices and petty incivilities. Police business is not gentle
business. The officers are trying to prevent you and me from being
knocked on the head some dark night or from being chloroformed in our
beds. Ten thousand men are trying to do a thirty-thousand-man job. The
struggle to keep the peace and put down crime is a hard one anywhere.
It requires a strong arm that cannot show too punctilious a regard for
theoretical rights when prompt decisions have to be made and equally
prompt action taken. The thieves and gun men have got to be driven
out. Suspicious characters have got to be locked up. Somehow or other a
record must be kept of professional criminals and persons likely to
be active in law-breaking. These are necessities in every civilized
country. They are necessities here. Society employs the same methods of
self-protection the world over. No one presumes a person charged with
crime to be innocent, either in Delhi, Pekin, Moscow, or New York. Under
proper circumstances we believe him guilty. When he comes to be tried
the jury consider the evidence, and if they are reasonably sure he is
guilty they convict him. The doctrine of reasonable doubt is almost as
much of a fiction as that of the presumption of innocence. From the
time a man is arrested until arraignment he is quizzed with a view to
inducing him to admit his offence or give some evidence that may help
convict him. Logically, why should not a person charged with a crime
be obliged to give what explanation he can of the affair? Why should he
have the privilege of silence? Doesn't he owe a duty to the public the
same as any other witness? If he is innocent he has nothing to fear; if
he is guilty--away with him! The French have no false ideas about such
things and at the same time they have a high regard for liberty. We
merely cheat ourselves into thinking that our liberty is something
different from French liberty because we have a lot of laws upon our
statute books that are there only to be disregarded and would have to be
repealed instantly if enforced.

Take, for instance, the celebrated provision of the penal laws that the
failure of an accused to testify in his own behalf shall not be taken
against him. Such a doctrine flies in the face of human nature. If a
man sits silent when witnesses under oath accuse him of a crime it is an
inevitable inference that he has nothing to say--that no explanation of
his would explain. The records show that the vast majority of accused
persons who do not avail themselves of the opportunity to testify are
convicted. Thus, the law which permits a defendant to testify in reality
compels him to testify, and a much-invoked safeguard of liberty turns
out to be a privilege in name only. In France or America alike a man
accused of crime sooner or later has to tell what he knows--or take
his medicine. It makes little difference whether he does so under the
legalized interrogation of a "juge d'instruction" in Paris or under the
quasi-voluntary examination of an assistant district attorney or police
inspector in New York. It is six of one and half a dozen of the other if
at his trial in France he remains mute under examination or in America
refrains from availing himself of the privilege of testifying in his own
behalf.

Thus, we are reluctantly forced to the conclusion that all human
institutions have their limitations, and that, however theoretically
perfect a government of laws may be, it must be administered by men
whose chief regard will not be the idealization of a theory of liberty
so much as an immediate solution of some concrete problem.

Not that the matter, after all, is particularly important to most of us,
but laws which exist only to be broken create a disrespect and disregard
for law which may ultimately be dangerous. It would be perfectly simple
for the legislature to say that a citizen might be arrested under
circumstances tending to create a reasonable suspicion, even if he had
not committed a crime, and it would be quite easy to pass a statute
providing that the commissioner of police might "mug" and measure all
criminals immediately after conviction. As it is, the prison authorities
won't let him, so he has to do it while he has the opportunity.

It must be admitted that this is rather hard on the innocent, but they
now have to suffer with the guilty for the sins of an indolent and
uninterested legislature. Moreover, if such a right of arrest were
proposed, some wiseacre or politician would probably rise up and
denounce the suggestion as the first step in the direction of a military
dictatorship. Thus, we shall undoubtedly fare happily on in the
blissful belief that our personal liberties are the subject of the most
solicitous and zealous care on the part of the authorities, guaranteed
to us under a government which is not of men but of laws, until one
of us happens to be arrested (by mistake, of course) and learns by sad
experience the practical methods of the police in dealing with criminals
and the agreeable but deceptive character of the pleasant fiction of the
presumption of innocence.




CHAPTER II. Preparing a Criminal Case for Trial


When the prosecuting attorney in a great criminal trial arises to open
the case to the impanelled jury, very few, if any, of them have the
slightest conception of the enormous expenditure of time, thought and
labor which has gone into the preparation of the case and made possible
his brief and easily delivered speech. For in this opening address of
his there must be no flaw, since a single misstated or overstated fact
may prejudice the jury against him and result in his defeat. Upon
it also depends the jury's first impression of the case and of the
prosecutor himself--no inconsiderable factor in the result. In a trial
of importance its careful construction with due regard to what facts
shall be omitted (in order to enhance their dramatic effect when
ultimately proven) may well occupy the district attorney every evening
for a week. But if the speech itself has involved study and travail, it
is as nothing compared with the amount required by that most important
feature of every criminal case--the selection of the jury.

For a month before the trial, or whenever it may be that the jury has
been drawn, every member upon the panel has been subjected to an unseen
scrutiny. The prosecutor, through his own or through hired sleuths, has
examined into the family history, the business standing and methods, the
financial responsibility, the political and social affiliations, and the
personal habits and "past performances" of each and every talesman. When
at the beginning of the trial they, one by one, take the witness-chair
(on what is called the voir dire) to subject themselves to an
examination by both sides as to their fitness to serve as jurors in
the case, the district attorney probably has close fit hand a rather
detailed account of each, and perchance has great difficulty in
restraining a smile. When some prospective juror, in his eagerness
either to serve or to escape, deliberately equivocates in answer to an
important question as to his personal history.

"Are you acquainted with the accused or his family?" mildly inquires the
assistant prosecutor. "No--not at all," the talesman may blandly reply.

The answer, perhaps, is literally true, and yet the prosecutor may be
pardoned for murmuring

"Liar!" to himself as he sees that his memorandum concerning the juror's
qualifications states that he belongs to the same "lodge" with the
prisoner's uncle by marriage and carries an open account on his books
with the defendant's father.

"I think we will excuse Mr. Ananias," politely remarks the prosecutor;
then in an undertone he turns to his chief and mutters: "The old rascal!
He would have knifed us if we'd given him the chance!" And all this time
the disgruntled Mr. Ananias is wondering why, if he didn't "know the
defendant or his family," he was not accepted as a juror.

Of course, every district attorney has, or should have, information as
to each talesman's actual capabilities as a juror and something of
a record as to how he has acted under fire. If he is a member of the
"special" panel, it is easy to find out whether he has ever acquitted
or convicted in any cause celebre, and if he has acquitted any plainly
guilty defendant in the past it is not likely that his services will
be required. If, however, he has convicted in such a case the district
attorney may try to lure the other side into accepting him by making
it appear that he himself is doubtful as to the juror's desirability.
Sometimes persons accused of crime themselves, and actually under
indictment, find their way onto the panels, and more than one ex-convict
has appeared there in some inexplicable fashion. But to find them out
may well require a double shift of men working day and night for a month
before the case is called, and what may appear to be the most trivial
fact thus discovered may in the end prove the decisive argument for or
against accepting the juror.

Panel after panel may be exhausted before a jury in a great murder
trial has been selected, for each side in addition to its challenges
for "cause" or "bias" has thirty* peremptory ones which it may exercise
arbitrarily. If the writer's recollection is not at fault, the large
original panel drawn in the first Molineux trial was used up and
several others had to be drawn until eight hundred talesmen had been
interrogated before the jury was finally selected. It is usual to
examine at least fifty in the ordinary murder case before a jury is
secured.



     * In the State of New York.


It may seem to the reader that this scrutiny of talesmen is not strictly
preparation for the trial, but, in fact, it is fully as important
as getting ready the facts themselves; for a poor jury, either from
ignorance or prejudice, will acquit on the same facts which will lead
a sound jury to convict. A famous prosecutor used to say, "Get your
jury--the case will take care of itself."

But as the examination of the panel and the opening address come last
in point of chronology it will be well to begin at the beginning and
see what the labors of the prosecutor are in the initial stages of
preparation. Let us take, for example, some notorious case, where an
unfortunate victim has died from the effects of a poisoned pill or
draught of medicine, or has been found dead in his room with a revolver
bullet in his heart. Some time before the matter has come into the hands
of the prosecutor, the press and the police have generally been doing
more or less (usually less) effective work upon the case. The yellow
journals have evolved some theory of who is the culprit and have loosed
their respective reporters and "special criminologists" upon him. Each
has its own idea and its own methods--often unscrupulous. And each has
its own particular victim upon whom it intends to fasten the blame.
Heaven save his reputation! Many an innocent man has been ruined for
life through the efforts of a newspaper "to make a case," and, of
course, the same thing, though happily in a lesser degree, is true of
the police and of some prosecutors as well.

In every great criminal case there are always four different and
frequently antagonistic elements engaged in the work of detection and
prosecution--first, the police; second, the district attorney; third,
the press; and, lastly, the personal friends and family of the deceased
or injured party. Each for its own ends--be it professional pride,
personal glorification, hard cash, or revenge--is equally anxious to
find the evidence and establish a case. Of course, the police are the
first ones notified of the commission of a crime, but as it is now
almost universally their duty to inform at once the coroner and also
the district attorney thereof, a tripartite race for glory frequently
results which adds nothing to the dignity of the administration of
criminal justice.

The coroner is at best no more than an appendix to the legal anatomy,
and frequently he is a disease. The spectacle of a medical man of
small learning and less English trying to preside over a court of first
instance is enough to make the accused himself chuckle for joy.

Not long ago the coroners of New York discovered that, owing to the
fact that the district attorney or his representatives generally
arrived first at the scene of any crime, there was nothing left for the
"medicos" to do, for the district attorney would thereupon submit the
matter at once to the grand jury instead of going through the formality
of a hearing in the coroner's court. The legal medicine men felt
aggrieved, and determined to be such early birds that no worm should
escape them. Accordingly, the next time one of them was notified of a
homicide he raced his horse down Madison Avenue at such speed that he
collided with a trolley car and broke his leg.

Another complained to the district attorney that the assistants of the
latter, who had arrived at the scene of an asphyxiation before him, had
bungled everything.

"Ach, dose young men!" he exclaimed, wringing his hands--"Dose young
men, dey come here and dey opened der vindow and let out der gas and all
mine evidence esgaped."

It is said that this interesting personage once instructed his jury
to find that "the diseased came to his death from an ulster on the
stomach."

These anecdotes are, perhaps, what judges would call obiter dicta, yet
the coroner's court has more than once been utilized as a field in the
actual preparation of a criminal case. When Roland B. Molineux was first
suspected of having caused the death of Mrs. Adams by sending the famous
poisoned package of patent medicine to Harry Cornish through the
mails, the assistant district attorney summoned him as a witness to the
coroner's court and attempted to get from him in this way a statement
which Molineux would otherwise have refused to make.

When all the first hullabaloo is over and the accused is under arrest
and safely locked up, it is usually found that the police have merely
run down the obvious witnesses and made a prima facie case. All the
finer work remains to be done either by the district attorney himself
or by the detective bureau working under his immediate direction or
in harmony with him. Little order has been observed in the securing of
evidence. Every one is a fish who runs into the net of the police, and
all is grist that comes to their mill. The district attorney sends
for the officers who have worked upon the case and for the captain
or inspector who has directed their efforts, takes all the papers and
tabulates all their information. His practiced eye shows him at once
that a large part is valueless, much is contradictory, and all needs
careful elaboration. A winnowing process occurs then and there; and
the officers probably receive a "special detail" from headquarters and
thereafter take their orders from the prosecutor himself. The detective
bureau is called in and arrangements made for the running down of
particular clues. Then he will take off his coat, clear his desk, and
get down to work.

Of course, his first step is to get all the information he can as to the
actual facts surrounding the crime itself. He immediately subpoenas all
the witnesses, whether previously interrogated by the police or not,
who know anything about the matter, and subjects them to a rigorous
cross-examination. Then he sends for the police themselves and
cross-examines them. If it appears that any witnesses have disappeared
he instructs his detectives how and where to look for them. Often this
becomes in the end the most important element in the preparation for
the trial. Thus in the Nan Patterson case the search for and ultimate
discovery of Mr. and Mrs. Morgan Smith (the sister and brother-in-law of
the accused) was one of its most dramatic features. After they had been
found it was necessary to indict and then to extradite them in order
to secure their presence within the jurisdiction, and when all this had
been accomplished it proved practically valueless.

It frequently happens that an entire case will rest upon the testimony
of a single witness whose absence from the jurisdiction would prevent
the trial. An instance of such a case was that of Albert T. Patrick, for
without the testimony of his alleged accomplice--the valet, Jones--he
could not have been convicted of murder. The preservation of such a
witness and his testimony thus becomes of paramount importance, and
rascally witnesses sometimes enjoy considerable ease, if not luxury, at
the expense of the public while waiting to testify. Often, too, a case
of great interest will arise where the question of the guilt of the
accused turns upon the evidence of some one person who, either from
mercenary motives or because of "blood and affection," is unwilling
to come to the fore and tell the truth. A striking case of this sort
occurred some ten years ago. The "black sheep" of a prominent New York
family forged the name of his sister to a draft for thirty thousand
dollars. This sister, who was an elderly woman of the highest character
and refinement, did not care to pocket the loss herself and declined to
have the draft debited to her account at the bank. A lawsuit followed,
in which the sister swore that the name signed to the draft was not in
her handwriting. She won her case, but some officious person laid the
matter before the district attorney. The forger was arrested and
his sister was summoned before the grand jury. Here was a pleasant
predicament. If she testified for the State her brother would
undoubtedly go to prison for many years, to say nothing of the notoriety
for the entire family which so sensational a case would occasion. She,
therefore, slipped out of the city and sailed for Europe the night
before she was to appear before the grand jury. Her brother was in due
course indicted and held for trial in large bail, but there was and
is no prospect of convicting him for his crime so long as his sister
remains in the voluntary exile to which she has subjected herself. She
can never return to New York to live unless something happens either to
the indictment or her brother, neither of which events seems likely in
the immediate future.

Perhaps, if the case is one of shooting, the weapon has vanished. Its
discovery may lead to the finding of the murderer. In one instance where
a body was found in the woods with a bullet through the heart, there was
nothing to indicate who had committed the crime. The only scintilla of
evidence was an exploded cartridge--a small thing on which to build
a case. But the district attorney had the hammer marks upon the cap
magnified several hundred times and then set out to find the rifle which
bore the hammer which had made them. Thousands of rifles all over the
State were examined. At last in a remote lumber camp was found the
weapon which had fired the fatal bullet. The owner was arrested, accused
of the murder, and confessed his crime. In like manner, if it becomes
necessary to determine where a typewritten document was prepared the
letters may be magnified, and by examining the ribbons of suspected
machines the desired fact may be ascertained. The magnifying glass still
plays an important part in detecting crime, although usually in ways
little suspected by the general public.

On the other hand, where the weapon has not been spirited away the
detectives may spend weeks in discovering when and where it was
purchased. Every pawnshop, every store where a pistol could be bought,
is investigated, and under proper circumstances the requisite evidence
to show deliberation and premeditation may be secured.

These investigations are naturally conducted at the very outset of the
preparation of the case.

The weapon, in seven trials out of ten, is the most important thing in
it. By its means it can generally be demonstrated whether the shooting
was accidental or intentional--and whether or not the killing was in
self-defence.

Where this last plea is interposed it is usually made at once upon the
arrest, the accused explaining to the police that he fired only to
save his own life. In such a situation, where the killing is admitted,
practically the entire preparation will centre upon the most minute
tests to determine whether or not the shot was fired as the accused
claims that it was. The writer can recall at least a dozen cases in his
own experience where the story of the defendant, that the revolver was
discharged in a hand-to-hand struggle, was conclusively disproved by
experimenting with the weapon before the trial. There was one homicide
in which a bullet perforated a felt cap and penetrated the forehead of
the deceased. The defendant asserted that he was within three feet of
his victim when he fired, and that the other was about to strike him
with a bludgeon. A quantity of felt, of weight similar to that of
the cap, was procured and the revolver discharged at it from varying
distances. A microscopic examination showed that certain discolorations
around the bullet-hole (claimed by the defence to be burns made by the
powder) were, in fact, grease marks, and that the shot must have been
fired from a distance of about fifteen feet. The defendant was convicted
on his own story, supplemented by the evidence of the witness who made
the tests.

The most obvious and first requirement is, as has been said, to find
the direct witnesses to the facts surrounding the crime, commit their
statements under oath to writing, so that they cannot later be denied
or evaded, and make sure that these witnesses will not only hold no
intercourse with the other side, but will be on hand when wanted. This
last is not always an easy task, and various expedients often have to
be resorted to, such as placing hostile witnesses under police
surveillance, or in some cases in "houses of detention," and hiding
others in out-of-the-way places, or supplying them with a bodyguard if
violence is to be anticipated. When the proper time comes the favorable
witnesses must be duly drilled or coached, which does not imply anything
improper, but means merely that they must be instructed how to deliver
their testimony, what answers are expected to certain questions, and
what facts it is intended to elicit from them. Witnesses are often
offended and run amuck because they are not given a chance upon the
stand to tell the story of their lives. This must be guarded against and
steps taken to have their statements given in such a way that they are
audible and intelligible. A few lessons in elementary elocution are
generally vitally necessary. The man with the bassoon voice must be
tamed, and the birdlike old lady made to chirp more loudly. But all this
is the self-evident preparation which must take place in every case, and
while highly important is of far less interest than the development
of the circumstantial evidence which is the next consideration of the
district attorney.

The discovery and proper proof of minute facts which tend to demonstrate
the guilt of an accused are the joy of the natural prosecutor, and he
may in his enthusiasm spend many thousands of dollars on what seems, and
often is, an immaterial matter. Youthful officials intrusted with the
preparation of important cases often become unduly excited and forget
that the taxpayers are paying the bills. The writer remembers sitting
beside one of these enthusiasts during a celebrated trial. A certain
woman witness had incidentally testified to a remote meeting with
the deceased at which a certain other woman was alleged to have been
present. The matter did not seem of much interest or importance, but
the youth in question seized a yellow pad and excitedly wrote in blue
pencil, "Find Birdie" (the other lady) "at any cost!" This he handed
to a detective, who hastened importantly away. It is to be hoped that
"Birdie" was found speedily and in an inexpensive manner.

When the case against Albert T. Patrick, later convicted of the murder
of the aged William M. Rice, was in course of preparation, it was found
desirable to show that Patrick had called up his accomplice on the
telephone upon the night of the murder. Accordingly, the telephone
company was compelled to examine several hundred thousand telephone
slips to determine whether or not this had actually occurred. While the
fact was established in the affirmative, the company now destroys its
slips in order not to have to repeat the performance a second time.

Likewise, in the preparation of the Molineux case it became important
to demonstrate that the accused had sent a letter under an assumed name
ordering certain remedies. As a result, one of the employees of the
patent-medicine company spent several months going over their old mail
orders and comparing them with a certain sample, until at last the
letter was unearthed. Of course, the district attorney had to pay for
it, and it was probably worth what it cost to the prosecution, although
Molineux's conviction was reversed by the Court of Appeals and he was
acquitted upon his second trial.

The danger is, however, that a prosecutor who has an unlimited amount
of money at his disposal may be led into expenditures which are hardly
justified simply because he thinks they may help to secure a conviction.
Nothing is easier than to waste money in this fashion, and public
officials sometimes spend the county's money with considerably more
freedom than they would their own under similar circumstances.

The legitimate expenses connected with the preparation of every
important case are naturally large. For example, diagrams must be
prepared, photographs taken of the place of the crime, witnesses
compensated for their time and their expenses paid, and, most important
of all, competent experts must be engaged. This leads us to an
interesting aspect of the modern jury trial.

When no other defence to homicide is possible the claim of insanity is
frequently interposed. Nothing is more confusing to the ordinary juryman
than trying to determine the probative value of evidence touching
unsoundness of mind, and the application thereto of the legal test
of criminal responsibility. In point of fact, juries are hardly to be
blamed for this, since the law itself is antiquated and the subject one
abounding in difficulty. Unfortunately the opportunity for vague yet
damaging testimony on the part of experts, the ease with which
any desired opinion can be defended by a slight alteration in the
hypothetical facts, and the practical impossibility of exposure,
have been seized upon with avidity by a score or more of unscrupulous
alienists who are prepared to sell their services to the highest bidder.
These men are all the more dangerous because, clever students of mental
disease and thorough masters of their subject as they are, they are able
by adroit qualifications and skilful evasions to make half-truths seem
as convincing as whole ones. They ask and receive large sums for their
services, and their dishonest testimony must be met and refuted by the
evidence of honest physicians, who, by virtue of their attainments, have
a right to demand substantial fees. Even so, newspaper reports of the
expense to the State of notorious trials are grossly exaggerated.
The entire cost of the first Thaw trial to the County of New York was
considerably less than twenty thousand dollars, and the second trial
not more than half that amount. To the defence, however, it was a costly
matter, as the recent schedules in bankruptcy of the defendant show.
Therein it appears that one of his half-dozen counsel still claims
as owing to him for his services on the first trial the modest sum of
thirty-five thousand dollars. The cost of the whole defence was probably
ten times that sum. Most of the money goes to the lawyers, and the
experts take the remainder.

It goes without saying that both prosecutor and attorney for the defence
must be masters of the subject involved. A trial for poisoning means
an exhaustive study not only of analytic chemistry, but of practical
medicine on the part of all the lawyers in the case, while a plea of
insanity requires that, for the time being, the district attorney shall
become an alienist, familiar with every aspect of paranoia, dementia
praecox, and all other forms of mania. He must also reduce his knowledge
to concrete, workable form, and be able to defeat opposing experts
on their own ground. But such knowledge comes only by prayer and
fasting--or, perhaps, rather by months of hard and remorseless grind.

The writer once prosecuted a druggist who had, by mistake, filled
a prescription for a one-fourth-grain pill of calomel with a
one-fourth-grain pill of morphine. The baby for whom the pill was
intended died in consequence. The defence was that the prescription
had been properly filled, but that the child was the victim of various
diseases, from acute gastritis to cerebro-spinal meningitis. In
preparation the writer was compelled to spend four hours every evening
for a week with three specialists, and became temporarily a minor expert
on children's diseases. To-day he is forced to admit that he would not
know a case of acute gastritis from one of mumps. But the druggist was
convicted.

Yet it is not enough to prepare for the defence you believe the accused
is going to interpose. A conscientious preparation means getting ready
for any defence he may endeavor to put in. Just as the prudent general
has an eye to every possible turn of the battle and has, if he can,
re-enforcements on the march, so the prosecutor must be ready for
anything, and readiest of all for the unexpected. He must not rest upon
the belief that the other side will concede any fact, however clear
it may seem. Some cases are lost simply because it never occurs to the
district attorney that the accused will deny something which the State
has twenty witnesses to prove. The twenty witnesses are, therefore, not
summoned on the day of trial, the defendant does deny it, and as it is a
case of word against word the accused gets the benefit of the doubt and,
perhaps, is acquitted.

No case is properly prepared unless there is in the court-room every
witness who knows anything about any aspect of the case. No one can
foretell when the unimportant will become the vital. Most cases turn
on an unconsidered point. A prosecutor once lost what seemed to him the
clearest sort of a case. When it was all over, and the defendant had
passed out of the courtroom rejoicing, he turned to the foreman and
asked the reason for the verdict.

"Did you hear your chief witness say he was a carpenter?" inquired the
foreman.

"Why, certainly," answered the district attorney,

"Did you hear me ask him what he paid for that ready-made pine door he
claimed to be working on when he saw the assault?"

The prosecutor recalled the incident and nodded.

"Well, he said ten dollars--and I knew he was a liar. A door like that
don't cost but four-fifty!"

It is, perhaps, too much to require a knowledge of carpentry on the part
of a lawyer trying an assault case. Yet the juror was undoubtedly right
in his deduction.

In a case where insanity is the defence, the State must dig up and have
at hand every person it can find who knew the accused at any period of
his career. He will probably claim that in his youth he was kicked in
a game of foot-ball and fractured his skull, that later he fell into an
elevator shaft and had concussion of the brain, or that he was hit on
the head by a burglar. It is usually difficult, if not impossible, to
disprove such assertions, but the prosecutor must be ready, if he can,
to show that foot-ball was not invented until after the defendant had
attained maturity, that it was some other man who fell down the elevator
shaft, and to produce the burglar to deny that the assault occurred.
Naturally, complete preparation for an important trial demands the
presence of many witnesses who ultimately are not needed and who are
never called. Probably in most such cases about half the witnesses
do not testify at all. Most of what has been said relates to the
preparation for trial of cases where the accused is already under arrest
when the district attorney is called into the case. If this stage has
not been reached the prosecutor may well be called upon to exercise some
of the functions of a detective in the first instance.

A few years ago it was brought to the attention of the New York
authorities that many blackmailing letters were being received bearing
the name of "Lewis Jarvis." These were of a character to render the
apprehension of the writer of them a matter of much importance. The
letters directed that the replies be sent to a certain box in the New
York post-office, but as the boxes are numerous and close together it
seemed doubtful if "Lewis Jarvis" could be detected when he called
for his mail. The district attorney, the police, and the post-office
officials finally evolved the scheme of plugging the lock of "Lewis
Jarvis's" box with a match. The scheme worked, for "Jarvis," finding
that he could not use his key, went to the delivery window and asked for
his mail. The very instant the letters reached his hand the gyves were
upon the wrists of one of the best-known attorneys in the city.

When the district attorney has been apprised that a crime has been
committed, and that a certain person is the guilty party, he not
infrequently allows the suspect to go his way under the careful watch
of detectives, and thus often secures much new evidence against him. In
this way it is sometimes established that the accused has endeavored
to bribe the witnesses and to induce them to leave the State, while
the whereabouts of stolen loot is often discovered. In most instances,
however, the district attorney begins where the police leave off, and
he merely supplements their labors and prepares for the actual trial
itself. But the press he has always with him, and from the first moment
after the crime up to the execution of the sentence or the liberation of
the accused, the reporters dog his footsteps, sit on his doorstep, and
deluge him with advice and information.

Now a curious feature about the evidence "worked up" by reporters for
their papers is that little of it materializes when the prosecutor
wishes to make use of it. Of course, some reporters do excellent
detective work, and there are one or two veterans attached to the
criminal courts in New York City who, in addition to their literary
capacities, are natural-born sleuths, and combine with a knowledge of
criminal law, almost as extensive as that of a regular prosecutor, a
resourcefulness and nerve that often win the case for whichever side
they espouse. I have frequently found that these men knew more about the
cases which I was prosecuting than I did myself, and a tip from them has
more than once turned defeat into victory. But newspaper men, for one
reason or another, are loath to testify, and usually make but poor
witnesses. They feel that their motives will be questioned, and are
naturally unwilling to put themselves in an equivocal position.
The writer well remembers that in the Mabel Parker case, where the
defendant, a young and pretty woman, had boasted of her forgeries before
a roomful of reporters, it was impossible, when her trial was called, to
find more than one of them who would testify--and he had practically to
be dragged to the witness chair. In point of fact, if reporters made a
practice of being witnesses it would probably hurt their business. But,
however much "faked" news may be published, a prosecutor who did not
listen to all the hints the press boys had to give would make a great
mistake; and as allies and advisers they are often invaluable, for they
can tell him where and how to get evidence of which otherwise he would
never hear.

The week before a great case is called is a busy one for the prosecutor
in charge. He is at his office early to interview his main witnesses and
go over their testimony with them so that their regular daily work
may not be interrupted more than shall be actually necessary. Some he
cautions against being overenthusiastic and others he encourages to
greater emphasis. The bashful "cop" is badgered until at last he ceases
to begin his testimony in the cut-and-dried police fashion.

"On the morning of the twenty-second of July, about 3.30 A.M., while on
post at the corner of Desbrosses Street--," he starts.

"Oh, quit that!" shouts the district attorney. "Tell me what you saw in
your own words."

The "cop" blushes and stammers:

"Aw, well, on the morning of the twenty-second of July, about 3.30 A.M."

"Look here!" yells the prosecutor, jumping to his feet and shaking his
fist at him, "do you want to be taken for a d--n liar? 'Morning of
the twenty-second of July, about 3.30 A.M., while on post I' You never
talked like that in your life."

By this time the "cop" is "mad clear through."

"I'm no liar!" he retorts. "I saw the ------ pull his gun and shoot!"

"Well, why didn't you say so?" laughs the prosecutor, and the officer
mollified with a cigar, dimly perceives the objectionable feature of his
testimony.

About this time one of the sleuths comes in to report that certain
much-desired witnesses have been "located" and are in custody
downstairs. The assistant makes immediate preparation for taking their
statements. Then one of the experts comes in for a chat about a new
phase of the case occasioned by the discovery that the defendant
actually did have spasms when an infant. The assistant wisely makes an
appointment for the evening. A telegram arrives saying that a witness
for the defence has just started for New York from Philadelphia and
should be duly watched on arrival. The district attorney sends for the
assistant to inquire if he has looked up the law on similar cases in
Texas and Alabama--which he probably has not done; and a friend on the
telephone informs him that Tomkins, who has been drawn on the jury, is
a boon companion of the prisoner and was accustomed to play bridge with
him every Sunday night before the murder.

Coincidently, some private detectives enter with a long report on the
various members of the panel, including the aforesaid Tomkins, whom they
pronounce to be "all right," and as never having, to their knowledge,
laid eyes on the accused. Finally, in despair, the prosecutor locks
himself in his library with a copy of the Bible, "Bartlett's Familiar
Quotations," and a volume of celebrated speeches, to prepare his summing
up, for no careful trial lawyer opens a case without first having
prepared, to some extent, at least, his closing address to the jury. He
has thought about this for weeks and perhaps for months. In his dreams
he has formulated syllogisms and delivered them to imaginary yet
obstinate talesman. He has glanced through many volumes for similes and
quotations of pertinency. He has tried various arguments on his friends
until he knows just how, if he succeeds in proving certain facts and
the defence expected is interposed, he is going to convince the twelve
jurors that the defendant is guilty and, perhaps, win an everlasting
reputation as an orator himself.

This superficial sketch of how an important criminal case is got
ready for trial would be incomplete without some further reference to
something which has been briefly hinted at before--preparation upon its
purely legal aspect. This may well demand almost as much labor as
that required in amassing the evidence. Yet a careful and painstaking
investigation of the law governing every aspect of the case is
indispensable to success. The prosecutor with a perfectly clear case may
see the defendant walk out of court a free man, simply because he has
neglected to acquaint himself with the various points of law which may
arise in the course of the trial, and the lawyer for an accused may
find his client convicted upon a charge to which he has a perfectly good
legal defence, for the same reason.

Looking at it from the point of view of the prisoner's counsel, it is
obvious that it is quite as efficacious to free your client on a point
of law, without having the case go to the jury at all, as to secure an
acquittal at their hands.

At the conclusion of the evidence introduced in behalf of the State
there is always a motion made to dismiss the case on the ground of
alleged insufficiency in the proof. This has usually been made the
subject of the most exhaustive study by the lawyers for the defence,
and requires equal preparation on the part of the prosecutor. The writer
recalls trying a bankrupt, charged with fraud, where the lawyer for
the defendant had written a brief of some three hundred pages upon the
points of law which he proposed to argue to the court upon his motion to
acquit. But, unfortunately, his client pleaded guilty and the volume was
never brought into play.

But a mastery of the law, a thorough knowledge and control of the
evidence, a careful preparation for the opening and closing addresses,
and an intimate acquaintance with the panel from which the jury is to be
drawn are by no means the only elements in the preparation for a
great legal battle. One thing still remains, quite as important as the
rest--the selection of the best time and the best court for the trial.
"A good beginning" in a criminal case means a beginning before the right
judge, the proper jury, and at a time when that vague but important
influence known as public opinion augurs success. A clever criminal
lawyer, be he prosecutor or lawyer for the defendant, knows that all the
preparation in the world is of no account provided his case is to come
before a stupid or biased judge, or a prejudiced or obstinate jury.
Therefore, each side, in a legal battle of importance, studies, as well
as it can, the character, connections, and cast of mind of the different
judges who may be called upon to hear the case, and, like a jockey
at the flag, tries to hurry or delay, as the case may be, until the
judicial auspices appear most favorable. A lawyer who has a weak defence
seeks to bring the case before a weak judge, or, if public clamor is
loud against his client, makes use of every technical artifice to secure
delay, by claiming that there are flaws in the indictment, or by moving
for commissions to take testimony in distant points of the country.
The opportunities for legal procrastination are so numerous that in a
complicated case the defence may often delay matters for over a year.
This may be an important factor in the final result.

Yet even this is not enough, for, ultimately, it is the judge's charge
to the jury which is going to guide their deliberations and, in
large measure, determine their verdict. The lawyers for the defence,
therefore, prepare long statements of what they either believe or
pretend to believe to be the law. These statements embrace all the legal
propositions, good or bad, favorable to their side of the case. If
they can induce the judge to follow these so much the better for their
client, for even if they are not law it makes no difference, since the
State has no appeal from an acquittal in a criminal case, no matter how
much the judge has erred. In the same way, but not in quite the same
fashion, the district attorney prepares "requests to charge," but his
desire for favorable instructions should be, and generally is, curbed by
the consideration that if the judge makes any mistake in the law and the
defendant is convicted he can appeal and upset the case. Of course, some
prosecutors are so anxious to convict that they will wheedle or deceive
a judge into giving charges which are not only most inimical to the
prisoner, but so utterly unsound that a reversal is sure to follow; but
when one of these professional bloodhounds is baying upon the trail all
he thinks of is a conviction--that is all he wants, all the public
will remember; to him will be the glory; and when the case is finally
reversed he will probably be out of office. These "requests" cover
pages, and touch upon every phase of law applicable or inapplicable to
the case. Frequently they number as many as fifty, sometimes many more.
It is "up to" the judge to decide "off the bat" which are right and
which are wrong. If he guesses that the right one is wrong or the wrong
one right the defendant gets a new trial.




CHAPTER III. Sensationalism and Jury Trials


For the past twenty-five years we have heard the cry upon all sides
that the jury system is a failure, and to this general indictment is
frequently added the specification that the trials in our higher
courts of criminal justice are the scenes of grotesque buffoonery and
merriment, where cynical juries recklessly disregard their oaths and
where morbid crowds flock to satisfy the cravings of their imaginations
for details of blood and sexuality.

It is unnecessary to question the honesty of those who thus picture the
administration of criminal justice in America. Indeed, thus it probably
appears to them. But before such an arraignment of present conditions
in a highly civilized and progressive nation is accepted as final, it is
well to examine into its inherent probabilities and test it by what we
know of the actual facts.

In the first place, it should be remembered that the jury was instituted
and designed to protect the English freeman from tyranny upon the part
of the crown. Judges were, and sometimes still are, the creatures of a
ruler or unduly subject to his influence. And that ruler neither was,
nor is, always the head of the nation; but just as in the days of the
Normans he might have been a powerful earl whose influence could make or
unmake a judge, so to-day he may be none the less a ruler if he exists
in the person of a political boss who has created the judge before whom
his political enemy is to be tried. The writer has seen more than one
judge openly striving to influence a jury to convict or to acquit a
prisoner at the dictation of such a boss, who, not content to issue his
commands from behind the arras, came to the courtroom and ascended
the bench to see that they were obeyed. Usually the jury indignantly
resented such interference and administered a well-merited rebuke by
acting directly contrary to the clearly indicated wishes of the judge.

But while admitting its theoretic value as a bulwark of liberty,
the modern assailant of the jury brushes the consideration aside by
asserting that the system has "broken down" and "degenerated into a
farce."

Let us now see how much of a farce it is. If four times out of five
a judge rendered decisions that met with general approval, he would
probably be accounted a highly satisfactory judge. Now, out of every
one hundred indicted prisoners brought to the bar for trial, probably
fifteen ought to be acquitted if prosecuted impartially and in
accordance with the strict rules of evidence. In the year 1910 the
juries of New York County convicted in sixty-six per cent of the cases
before them. If we are to test fairly the efficiency of the system,
we must deduct from the thirty-four acquittals remaining the fifteen
acquittals which were justifiable. By so doing we shall find that in
the year 1910 the New York County juries did the correct thing in about
eighty-one cases out of every hundred. This is a high percentage of
efficiency.* Is it likely that any judge would have done much better?


     * The following table gives the yearly percentages of
     convictions and acquittals by verdict in New York County since
     1901:

                NUMBER        NUMBER
     YEAR     CONVICTIONS   ACQUITTALS  CONVICTIONS   ACQUITTALS
               BY VERDICT   BY VERDICT   PER CENT      PER CENT

     1901........551...........344..........62............38
     1902........419...........349..........55............45
     1903........485...........307..........61............39
     1904........495...........357..........58............42
     1905........489...........299..........62............38
     1906........464...........246..........65............35
     1907........582...........264..........68............32
     1908........649...........301..........62............38
     1909........463...........235..........66............34
     1910........649...........325..........66............34


After a rather long experience as a prosecutor, in which he conducted
many hundreds of criminal cases, the writer believes that the ordinary
New York City jury finds a correct general verdict four times out of
five. As to talesmen in other localities he has no knowledge or reliable
information. It seems hardly possible, however, that juries in
other parts of the United States could be more heterogeneous or less
intelligent than those before which he formed his conclusions. Of
course, jury judgments are sometimes flagrantly wrong. But there are
many verdicts popularly regarded as examples of lawlessness which, if
examined calmly and solely from the point of view of the evidence, would
be found to be the reasonable acts of honest and intelligent juries.

For example, the acquittal of Thaw upon the ground of insanity is
usually spoken of as an illustration of sentimentality on the part of
jurymen, and of their willingness to be swayed by their emotions where
a woman is involved. But few clearer cases of insanity have been
established in a court of justice. The district attorney's own experts
had pronounced the defendant a hopeless paranoiac; the prosecutor had,
at a previous trial, openly declared the same to be his own opinion; and
the evidence was convincing. At the time it was rendered, the verdict
was accepted as a foregone conclusion. To-day the case is commonly
cited as proof of the gullibility of juries and of the impossibility of
convicting a rich man of a crime.

There will always be some persons who think that every defendant should
be convicted and feel aggrieved if he is turned out by the jury. Yet
they entirely forget, in their displeasure at the acquittal of a man
whom they instinctively "know" to be guilty, that the jury probably
had exactly the same impression, but were obliged under their oaths to
acquit because of an insufficiency of evidence.

An excellent illustration of such a case is that of Nan Patterson. She
is commonly supposed to have attended, upon the night of her acquittal,
a banquet at which one of her lawyers toasted her as "the guilty girl
who beat the case." Whether she was guilty or not, there is a general
impression that she murdered Caesar Young. Yet the writer, who was
present throughout the trial, felt at the conclusion of the case that
there was a fairly reasonable doubt of her guilt. Even so, the jury
disagreed, although the case is usually referred to as an acquittal and
a monument to the sentimentality of juries.

The acquittal of Roland B. Molineux is also recalled as a case where a
man, previously proved guilty, managed to escape. The writer, who
was then an assistant district attorney, made a careful study of the
evidence at the time, and feels confident that the great majority of the
legal profession would agree with him in the opinion that the Court of
Appeals had no choice but to reverse the defendant's first conviction on
account of the most prejudicial error committed at the trial, and that
the jury who acquitted him upon the second occasion had equally no
choice when the case was presented with a proper regard to the rules of
evidence and procedure. Indeed, on the second trial the evidence pointed
almost as convincingly toward another person as toward the defendant.

I have mentioned the Patterson, Thaw, and Molineux trials because they
are cases commonly referred to in support of the general contention
that the jury system is a failure. But I am inclined to believe that
any single judge, bench of judges, or board of commissioners would have
reached the same result as the juries did in these instances.

It is quite true that juries, for rather obvious reasons, are more apt
to acquit in murder cases than in others. In the first place, save where
the defendant obviously belongs to the vicious criminal class, a jury
finds it somewhat difficult to believe, unless overwhelming motive be
shown, that he could have deliberately taken another's life. Thus, with
sound reason, they give great weight to the plea of self-defence which
the accused urges upon them. He is generally the only witness. His story
has to be disproved by circumstantial evidence, if indeed there be any.
Frequently it stands alone as the only account of the homicide. Thus
murder cases are almost always weaker than others, since the chief
witness has been removed by death; while at the same time the nature of
the punishment leads the jury unconsciously to require a higher degree
of proof than in cases where the consequences are less abhorrent. All
this is quite natural and inevitable. Moreover, homicide cases as a rule
are better defended than others, a fact which undoubtedly affects the
result. These considerations apply to all trials for homicide, notorious
or otherwise, the results of which in New York County for ten years are
set forth in the following table:

     YEAR     CONVICTIONS   ACQUITTALS  CONVICTIONS   ACQUITTALS
                                         PER CENT      PER CENT
     1901.........25............17..........60............40
     1902.........31............11..........74............26
     1903.........42.............8..........84............16
     1904.........37............14..........72............28
     1905.........32............13..........71............29
     1906.........53............22..........70............30
     1907.........39............10..........78............22
     1908.........35............17..........67............33
     1909.........43............11..........80............20
     1910.........45............15..........75............25
     TOTAL.......382...........138......Av. 74........Av. 27


A popular impression exists at the present time that a man convicted of
murder has but to appeal his case on some technical ground in order to
secure a reversal, and thus escape the consequences of his crime. How
wide of the mark such a belief may be, at least so far as one locality
is concerned, is shown by the fact that in New York State, from 1887 to
1907, there were 169 decisions by the Court of Appeals on appeals from
convictions of murder in the first degree, out of which there were only
twenty-nine reversals. Seven of these defendants were again immediately
tried and convicted, and a second time appealed, upon which occasion
only two were successful, while five had their convictions promptly
affirmed. Thus, so far as the ultimate triumph of justice is concerned,
out of 169 cases in that period the appellants finally succeeded in
twenty-two only.

Since 1902 there have been twenty-seven decisions rendered in
first-degree murder cases by the Court of Appeals, with only three
reversals.* (* Written in 1909.) The more important convictions
throughout the State are affirmed with great regularity.

As to the conduct of such cases, the writer's own experience is that
a murder trial is the most solemn proceeding known to the law. He has
prosecuted at least fifty men for murder, and convicted more than he
cares to remember. Such trials are invariably dignified and deliberate
so far as the conduct of the legal side of the case is concerned.
No judge, however unqualified for the bench; no prosecutor, however
light-minded; no lawyer however callous, fails to feel the serious
nature of the transaction or to be affected strongly by the fact that
he is dealing with life, and death. A prosecutor who openly laughed
or sneered at a prisoner charged with murder would severely injure his
cause. The jury, naturally, are overwhelmed with the gravity of the
occasion and the responsibility resting upon them.

In the Patterson, Thaw, and Molineux cases the evidence, unfortunately,
dealt with unpleasant subjects and at times was revolting, but there was
a quiet propriety in the way in which the witnesses were examined
that rendered it as inoffensive as it could possibly be. Outside the
court-room the vulgar crowd may have spat and sworn; and inside no doubt
there were degenerate men and women who eagerly strained their ears to
catch every item of depravity. But the throngs that filled the courtroom
were quiet and well ordered, and the justified interested outnumbered
the morbid.

The writer deprecates the impulse which leads judges, from a feeling
that justice should be publicly administered, to throw wide the doors
of every courtroom, irrespective of the subject-matter of the trial. We
need have no fear of Star Chamber proceedings in America, and no harm
would be done by excluding from the courtroom all persons who have no
business there.

It is, of course, not unnatural that in the course of a trial occupying
weeks or months the tension should occasionally be relieved by a gleam
of humor. After one has been busy trying a case for a couple of weeks
one goes to court and sets to work in much the same frame of mind in
which one would attack any other business. But the fact that a small
boy sometimes sees something funny at a funeral, or a bevy of giggling
shop-girls may be sitting in the gallery at a fashionable wedding,
argues little in respect to the solemnity or beauty of the service
itself.

What are the celebrated cases--the trials that attract the attention
and interest of the public? In the first place, they are the very cases
which contain those elements most likely to arouse the sympathy and
prejudices of a jury--where a girl has taken the life of her supposed
seducer, or a husband has avenged his wife's alleged dishonor. Such
cases arouse the public imagination for the very reason that every
man realizes that there are two sides to every genuine tragedy of
this character--the legal and the natural. Thus, aside from any other
consideration, they are the obvious instances where justice is most
likely to go astray.

In the next place, the defence is usually in the hands of counsel of
adroitness and ability; for even if the prisoner has no money to pay his
lawyer, the latter is willing to take the case for the advertising he
will get out of it.

Third, a trial which lasts for a long time naturally results in creating
in the jury's mind an exaggerated idea of the prisoner's rights, namely,
the presumption of innocence and the benefit of the reasonable doubt.
For every time that the jury will hear these phrases once in a petty
larceny or forgery case, they will hear them in a lengthy murder trial
a hundred times. They see the defendant day after day, and the relation
becomes more personal. Their responsibility seems greater toward him
than toward the defendant in petty cases.

Last, as previously suggested, murder cases are apt to be inherently
weaker than others, and more often depend upon circumstantial evidence.

The results of such cases are therefore an inadequate test of the
efficiency of a jury system. They are, in fact, the precise cases where,
if at all, the jury might be expected to go wrong.

But juries would go astray far less frequently even in such trials were
it not for that most vicious factor in the administration of criminal
justice--the "yellow" journal. For the impression that public trials
are the scenes of buffoonery and brutality is due to the manner in which
these trials are exploited by the sensational papers.

The instant that a sensational homicide occurs, the aim of the editors
of these papers is--not to see that a swift and sure retribution is
visited upon the guilty, or that a prompt and unqualified vindication is
accorded to the innocent, but, on the contrary, so to handle the matter
that as many highly colored "stories" as possible can be run about it.

Thus, where the case is perfectly clear against the prisoner, the
"yellow" press seeks to bolster up the defence and really to justify
the killing by a thinly disguised appeal to the readers' passions. Not
infrequently, while the editorial page is mourning the prevalence of
homicide, the front columns are bristling with sensational accounts of
the home-coming of the injured husband, the heartbreaking confession of
the weak and erring wife, and the sneering nonchalance of the seducer,
until a public sentiment is created which, if it outwardly deprecates
the invocation of the unwritten law, secretly avows that it would have
done the same thing in the prisoner's place.

This antecedent public sentiment is fostered from day to day until it
has unconsciously permeated every corner of the community. The juryman
will swear that he is unaffected by what he has read, but unknown to
himself there are already tiny furrows in his brain along which the
appeal of the defence will run.

In view of this deliberate perversion of truth and morals, the
euphemisms of a hard-put defendant's counsel when he pictures a chorus
girl as an angel and a coarse bounder as a St. George seem innocent
indeed. It is not within the rail of the courtroom but within the pages
of these sensational journals that justice is made a farce. The phrase
"contempt of court" has ceased practically to have any significance
whatever. The front pages teem with caricatures of the judge upon the
bench, of the individual jurors with exaggerated heads upon impossible
bodies, of the lawyers ranting and bellowing, juxtaposed with sketches
of the defendant praying beside his prison cot or firing the fatal shot
in obedience to a message borne by an angel from on high.

How long would the "unwritten law" play any part in the administration
of criminal justice if every paper in the land united in demanding, not
only in its editorials, but upon its front pages, that private vengeance
must cease? Let the "yellow" newspapers confine themselves simply to
an accurate report of the evidence at the trial, with a reiterated
insistence that the law must take its course. Let them stop pandering
to those morbid tastes which they have themselves created. Let the
"Sympathy Sisters," the photographer, and the special artist be excluded
from the court-room. When these things are done, we shall have the same
high standard of efficiency upon the part of the jury in great murder
trials that we have in other cases.



CHAPTER IV. Why Do Men Kill?


When a shrewd but genial editor called me up on the telephone and asked
me how I should like to write an article on the above lurid title, I
laughed in his--I mean the telephone's face.

"My dear fellow!" I said (I should only have the nerve to call him that
over a wire). "It would ruin me! How could I keep my self-respect and
write that kind of sensational stuff--Why do men kill? Why do men eat?
Why do men drink? Why do men love? Why do men--"

"Look here!" he interrupted. "I want to know why one man kills another
man. If we knew why, maybe we could stop it, couldn't we? We could try
to, anyhow. And you know something about it. You've prosecuted nearly
a hundred men for murder. Get the facts--that's what I want. Cut
the adjectives and morality, and get down to the reasons. Anything
particularly undignified about that?" And he rang off.

I arose and walked over to the bookcase on which reposed several
shelves of "minutes" of criminal trials. They were dusty and depressing.
Practically every one of them was a memento of some poor devil gone to
prison or to the chair. Where were they now--and why did they kill--yes,
why DID they?

I glanced along the red-labeled backs.

"People versus Candido." Now why did HE kill? I remembered the Italian
perfectly. He killed his friend because the latter had been too
attentive to his wife. "People versus Higgins." Why did he? That was
a drunken row on a New Year's Eve within the sound of Trinity chimes.
"People versus Sterling Greene." Yes, he was a colored man--I recalled
the evidence--drink and a "yellow gal." "People versus Mock Duck"-a
Chinese feud between the On Leong Tong and the Hip Sing Tong--a
vendetta, first one Chink shot and then another, turn and turn about,
running back through Mott Street, New York, Boston, San Francisco, until
the origin of the quarrel was lost in the dim Celestial mists across
the sea. Out of the first four cases the following motives: Jealousy--1.
Drink--1. Drink and jealousy--1. Scattering (how can you term a "Tong"
row?)--1.

I began to get interested. Supposing I dug out all the homicide cases I
had ever tried, what would the result show as to motive for the killing?
Would drink and women account for seventy-five per cent? Mentally I ran
my eye back over nearly ten years. What OTHER motives had the defendants
at the bar had? There was Laudiero--an Italian "Camorrista"--he had
killed simply for the distinction it gave him among his countrymen
and the satisfaction he felt at being known as a "bad" man--a "capo
maestra." There was Joseph Ferrone--pure jealousy again. Hendry--animal
hate intensified by drink. Yoscow--a deliberate murder, planned in
advance by several of a gang, to get rid of a young bully who had made
himself generally unpleasant. There was Childs, who had killed, as he
claimed, in self-defence because he was set upon and assaulted by rival
runners from another seaman's boarding house. Really it began to look as
if men killed for a lot of reasons.

One consideration at once suggested itself. How about the killings where
the murderer is never caught? The prisoners tried for murder are only a
mere fraction of those who commit murder. True, and the more deliberate
the murder, the greater, unfortunately, the chance of the villain
getting away. Still, in cases merely of suspected murder, or in cases
where no evidence is taken, it would be manifestly unfair arbitrarily to
assign motives for the deed, if deed it was. No, one must start with the
assumption, sufficiently accurate under all the circumstances, that
the killings in which the killer is caught are fairly representative of
killings as a whole.

All crimes naturally tend to divide themselves into two classes--crimes
against property and crimes against the person, each class having an
entirely different assortment of reasons for their commission.

There can be practically but one motive for theft, burglary, or robbery.
It is, of course, conceivable that such crimes might be perpetrated for
revenge--to deprive the victim of some highly prized possession. But in
the main there is only one object--unlawful gain. So, too, blackmail,
extortion, and kidnapping are all the products of the desire for
"easy money." But, unquestionably, this is the reason for murder in
comparatively few cases.

The usual motive for crimes against the person--assault, manslaughter,
mayhem, murder, etc.--is the desire to punish, or be avenged upon
another by inflicting personal pain upon him or by depriving him of his
most valuable asset--life. And this desire for retaliation or revenge
generally grows out of a recent humiliation received at the hands of
the other person, a real or fancied wrong to oneself, a member of
one's family, or one's property. But this was too easy an answer to my
friend's question. He wanted and deserved more than that, and I set out
to give it to him.

My first inquiry was in the direction of original sources. I sought out
the man in the district attorney's office who had had the widest general
experience and put the question to him. This was Mr. Charles C. Nott,
Jr., (now judge of the General Sessions) who had been trying murder
cases for nearly ten years. It so happened that he had kept a complete
record of all of them and this he courteously placed at my disposal. The
list contains sixty-two cases, and the defendants were of divers races.
These homicides included seventeen committed in cold blood (about
twenty-five per cent, an extraordinary percentage) from varying motives,
as follows: One defendant (white) murdered his colored mistress simply
to get rid of her; another killed out of revenge because the deceased
had "licked" him several times before; another, having quarrelled
with his friend over a glass of soda water, later on returned and
precipitated a quarrel by striking him, in the course of which he killed
him; another because the deceased had induced his wife to desert him;
another lay in wait for his victim and killed him without the motive
ever being ascertained; one man killed his brother to get a sum of
money, and another because his brother would not give him money; another
because he believed the deceased had betrayed the Armenian cause to the
Turks; another because he wished to get the deceased out of the way in
order to marry his wife; and another because deceased had knocked him
down the day before. One man had killed a girl who had ridiculed him;
and one a girl who had refused to marry him; another had killed his
daughter because she could no longer live in the house with him; one, an
informer, had been the victim of a Black Hand vendetta; and the last
had poisoned his wife for the insurance money in order to go off with
another woman. There were two cases of infanticide, one in which a woman
threw her baby into the lake in Central Park, and another in which she
gave her baby poison. Besides these murders, five homicides had been
committed in the course of perpetrating other crimes, including burglary
and robbery.

Passing over three cases of culpable negligence resulting in death, we
come to thirty-seven homicides during quarrels, some of which might have
been technically classified as murders, but which being committed
"in the heat of passion," in practically every instance resulted in a
verdict of manslaughter. The quarrels often arose over the most trifling
matters. One was a dispute over a broom, another over a horse blanket,
another over food, another over a twenty-five cent bet in a pool game,
another over a loan of fifty cents, another over ten cents in a crap
game, and still another over one dollar and thirty cents in a crap game.
Five men were killed in drunken rows which had no immediate cause except
the desire to "start something." One man killed another because he had
not prevented the theft of some lumber, one (a policeman) because the
deceased would not "move on" when ordered, one because a bartender
refused to serve him with any more drinks, and one (a bartender) because
the deceased insisted that he should serve more drinks. One man was
killed in a quarrel over politics, one in a fuss over some beer, one in
a card game, one trying to rob a fruit-stand, one in a dispute with a
ship's officer, one in a dance hall row. One man killed another whom
he found with his wife, and one wife killed her husband for a similar
cause; another wife killed her husband simply because she "could not
stand him," and one because he was fighting with their son. One man
was killed by another who was trying to collect from him a debt of six
hundred dollars. One quarrel resulting in homicide arose because the
defendant had pointed out deceased to the police, another because
the participants called each other names, and another arose out of an
alleged seduction. Three homicides grew out of street rows originating
in various ways. One man killed another who was fighting with a friend
of the first, a janitor was killed in a "continuous row" which had been
going on for a long time, and one homicide was committed for "nothing in
particular."

This astonishing olla podrida of reasons for depriving men of their
lives leaves one stunned and confused. Is it possible to deduce any
order out of such homicidal chaos? Still, an attempt to classify such
diverse causes enables one to reach certain general conclusions. Out of
the sixty-two homicides there were seventeen cold-blooded murders,
with deliberation and premeditation (in such cases the reasons for
the killing are by comparison unimportant); three homicides due to
negligence, five committed while perpetrating a felony; thirty-seven
manslaughters, due in sixteen cases to quarrels (simply), thirteen
to drink, four to disputes over money, three to women, one to race
antagonism.

Reclassifying the seventeen murders according to causes, we have:
Six due to women, four to quarrels, five to other causes, and two
infanticides. Added to the manslaughters previously classified, we have
a total of sixty-two killings, due in twenty cases to quarrels, thirteen
to drink, nine to women, four to disputes over money, one to
race antagonism, five to general causes, three to negligence, two
infanticides, five during the commission of other crimes.

The significant features of this analysis are that about seventy-five
per cent of the killings were due to quarrels over small sums or
other matters, drink and women; over fifty per cent to drink and petty
quarrels; and about thirty per cent to quarrels simply. The trifling
character of the causes of the quarrels themselves is shown by the fact
that in three of these particular cases, tried in a single week, the
total amount involved in the disputes was only eighty-five cents. That
is about twenty-eight and one-half cents a life. Many a murder in a
barroom grows out of an argument over whether a glass of beer has, or
has not, been paid for, or whose turn it is to treat; and more than one
man has been killed in New York City because he was too clumsy to avoid
stepping on somebody's feet or bumping into another man on the sidewalk.

The writer sincerely regrets that his own lack of initiative prevented
his keeping a diary during his seven years's service as a prosecutor. It
is now impossible for him to refresh his memory as to the causes of all
the various homicides which he prosecuted, but where he can do so the
evidence points to a conclusion similar to that deduced from Mr. Nott's
record. The proximate causes were trifling--the underlying cause was
the lack of civilization of the defendant--his brutality and absence of
self-control.

With a view to ascertaining conditions in general throughout the United
States, I asked a clipping agency to send me the first one hundred
notices of actual homicides which should come under its scissors. The
immediate result of this experiment was that I received forty-five
notices supposedly relating to murders and homicides, which on closer
examination proved to be anything but what I wanted for the purpose in
view. With only one or two exceptions they related not to deaths from
violence reported as having occurred on any particular day, but to
notices of convictions, acquittals, indictments, pleas of guilty and
not guilty, rewards offered, sentences, executions, "suspicions" of the
police, "mysteries revived," and even editorials on capital punishment.

A letter of protest brought in due course, but much more slowly, one
hundred and seven clippings, which yielded the following reasons why
men killed: There were four suicides, three lynchings, one infanticide,
three murders while resisting arrest, three criminals killed while
resisting arrest, two men killed in riots, eight murders in the
course of committing burglaries and robberies, seven persons killed in
vendettas, three grace murders, and twenty-four killed in quarrels over
petty causes; there were twelve murders from jealousy, followed in
four instances by suicide on the part of the murderer; six killings
justifiable on the "higher law" theory only, but involving great
provocation, and thirty deliberate slaughters. The last clipping
recounted how an irate husband pounded a "masher" so hard that he died.
Leaving out the suicides and those killed while resisting arrest, there
remain one hundred persons murdered, not only by persons insane or
wild from the effects of liquor, but by robbers and burglars, brutes,
bullies, and thugs, husbands, wives, and lovers, and by a vast number of
people who not only destroyed their enemies in the fury of anger, but in
many instances openly went out gunning for them, lay in wait for them in
the dark, or hacked off their heads with hatchets while they slept.

It is, indeed, a sanguinary record, from which little consolation is to
be derived, and the only comfort is the probability that the accounts
of the first one hundred murders anywhere in Europe would undoubtedly be
just as blood-curdling. I had simply asked the clipping bureau to
send me one hundred horrors and I had got them. They did not indicate
anything at all so far as the ratio of homicide to population was
concerned or as to the bloodthirstiness of Americans in general. They
merely showed what despicable things murders were.

As to the reasons for the killings, they were as diverse as those
which Mr. Nott had prosecuted, save that there were more of an ultra
blood-thirsty character, due probably to the fact that the young lady
who did the clipping wanted (after one rebuff) to make sure that I was
satisfied with the goods she sent me. And this suggests a reason for
the large percentage of cold-blooded killings prosecuted by my
friend--namely, that Mr. Nott being the most astute prosecutor
available, the district attorney, whenever the latter had a particularly
atrocious case, sent it to him in order that the defendant might surely
get his full deserts.

The reasons for these homicides were of every sort; police officers and
citizens were shot and killed by criminals trying to make "get-aways,"
and by negroes and others "running amuck"; despondent young men shot
their unresponsive sweethearts and then either blew out their own brains
of pretended to try to do so; two stable-men had a duel with revolvers,
and each killed the other; several men were shot for being too attentive
to young women residing in the same hotels; an Italian, whose wife had
left him and gone to her mother, went to the house and killed her,
her sister, her sister's husband, his mother-in-law, two children, and
finally himself; the "Gopher Gang" started a riot at a "benefit" dance
given to a widow and killed a man, after which they fled to the woods
and fired from cover upon the police until eighteen were overpowered and
arrested; a young girl and her fiance, sitting in the parlor, planning
their honeymoon, were unexpectedly interrupted by a rejected suitor of
the girl's, who shot and killed both of them; an Italian who peeked into
a bedroom, just for fun, afterward rushed in and cut off two persons'
heads with an ax--one of them was his wife; a gang of white ruffians
shot and then burned a negro family of three peacefully working in the
fields; a man who went to the front door to see who had tapped on
his window was shot through the heart; a striker was killed by a
twenty-five-pound piece of flagging thrown from a roof; there was a gun
fight of colored men at Madison, Wisconsin, at which three were shot; a
gang of negro ruffians killed and mutilated a white woman (with a baby
in her arms) and her husband; masked robbers called a man to his barn at
Winston-Salem, North Carolina, and cut his throat; an Italian was
found with his head split in two by a butcher's cleaver; a negress in
Lafayette, Louisiana, killed a family of six with a hatchet; a negro
farmer and his two daughters were lynched and their bodies burned by
four white men (who will probably also be lynched if caught); a girl
of eleven shot her girl friend of about the same age and killed her;
several persons were found stabbed to death; a plumber killed his
brother (also a plumber) for saying that he stole two dollars; a
murderer was shot by a posse of militia in a cornfield; a card game at
Bayonne, New Jersey, resulted in a revolver fight on the street in which
one of the players was killed; bank robbers killed a cashier at twelve
o'clock noon; a jealous lover in Butte, Montana, shot and killed his
sweetheart, her father, and mother; a deputy sheriff was murdered;
burglars killed several persons in the course of their business;
Kokolosski, a Pole, kicked his child to death; and a couple of dozen
people were incidentally shot, stabbed, or otherwise disposed of in the
course of quarrels over the most trivial matters. In almost no case was
there what an intelligent, civilized man would regard as an adequate
reason for the homicide. They killed because they felt like killing, and
yielded to the impulse, whatever its immediate origin.

This conclusion is abundantly supported by the figures of the 'Chicago
Tribune' for the seven years ending in 1900, when carefully analyzed.
During this period 62,812 homicides were recorded. Of these there were
17,120 of which the causes were unknown and 3,204 committed while making
a justifiable arrest, in self-defence, or by the insane, so that there
were in fact only 42,488 felonious homicides the causes of which can
be definitely alleged. The ratio of the "quarrels" to this net total is
about seventy-five per cent. There were, in addition, 2,848 homicides
due to liquor--that is, without cause. Thus eighty per cent of all the
murders and manslaughters in the United States for a period of seven
years were for no reason at all or from mere anger or habit, arising out
of causes often of the most trifling character.

Nor are the conclusions changed by the figures of the years between 1904
and 1909.

During this period 61,786 homicides were recorded. Of these there were
9,302 of which the causes were not known, and 2,480 committed while
making a justifiable arrest, in self-defence, or by the insane, leaving
50,004 cases of felonious homicides of known causes. Of these homicides,
33,476 were due to quarrels and 4,799 to liquor, a total of 38,275 out
of the 50,004 cases of known causes being traceable in this, another
seven years, to motives the most casual.

It would be stupid to allege that the reason men killed was because they
had been stepped on or had been deprived of a glass of beer. The cause
lies deeper than that. It rests in the willingness or desire of the
murderer to kill at all. Among barbaric or savage peoples this is
natural; but among civilized nations it is hardly to be anticipated. If
the negro who shoots his fellow because he believes himself to have been
cheated out of ten cents were really civilized, he would either not
have the impulse to kill or, having the impulse to kill, would have
sufficient power of self-control to refrain from doing so. This power
of self-control may be natural or acquired, and it may or may not be
possessed by the man who feels a desire to commit a homicide. The fact
to be observed--the interesting and, broadly speaking, the astonishing
fact--is that among a people like ourselves anybody should have a desire
to kill. It is even more astonishing than that the impulse should be
yielded to so often if it comes.

This, then, is the real reason why men kill--because it is inherent
in their state of mind, it is part of their mental and physical
make-up--they are ready to kill, they want to kill, they are the kind
of men who do kill. This is the result of their heredity, environment,
educational and religious training, or the absence of it. How many
readers of this paper have ever experienced an actual desire to kill
another human being? Probably not one hundredth of one per cent. They
belong to the class of people who either never have such an impulse, or
at any rate have been taught to keep such impulses under control. Hence
it is futile to try to explain that some men kill for a trifling sum of
money, some because they feel insulted, others because of political or
labor disputes, or because they do not like their food. Any one of these
may be the match that sets off the gunpowder, but the real cause of the
killing is the fact that the gunpowder is there, lying around loose,
and ready to be touched off. What engenders this gunpowder state of
mind would make a valuable sociological study, but it may well be that a
seemingly inconsequential fact may so embitter a boy or man toward life
or the human race in general that in time he "sees red" and goes through
the world looking for trouble. Any cause that makes for crime and
depravity makes for murder as well. The little boy who is driven out of
the tenement onto the street, and in turn off the street by a policeman,
until, finding no wholesome place to play, he joins a "gang" and begins
an incipient career of crime, may end in the "death house."

The table on the opposite page gives the figures collected by the
'Chicago Tribune' for the years from 1881 to 1910.

In view of the foregoing it may seem paradoxical for the writer to state
that he questions the alleged unusual tendency to commit murder on the
part of citizens of the United States. Yet of one fact he is absolutely
convinced--namely, that homicide has substantially decreased in the last
fifteen years. Even according to the figures collected by the 'Chicago
Tribune', there were but 8,975 homicides in 1910 as compared with 10,500
in 1895, and 10,652 in 1896. Meantime the population of our country has
been leaping onward.


     NUMBER OF MURDERS AND HOMICIDES IN THE UNITED STATES EACH
     YEAR SINCE 1891, COMPARED WITH THE POPULATION

              NUMBER OF                          NUMBER OF
              MURDERS AND     ESTIMATED          MURDERS AND
     YEAR     HOMICIDES IN    POPULATION         HOMICIDES
              THE UNITED      OF THE             FOR EACH
              STATES          UNITED STATES      MILLION OF
                                                 PEOPLE

     1881......1,266..........51,316,000..........24.7

     1882......1.467..........----------..........27.9

     1883......1,697..........----------..........31.6

     1884......1,465..........----------..........26.7

     1885......1,808..........56,148,000..........32.2

     1886......1,499..........----------..........26.1

     1887......2,335..........----------..........39.8

     1888......2,184..........---------...........36.4

     1889......3,567..........---------...........58.0

     1890......4,290.........62,622,250...........68.5

     1891......5,906..........---------...........92.4

     1892......6,791..........---------..........104.2

     1893......6,615..........---------..........99.5

     1894......9,800..........---------.........144.7

     1895.....10,500.........69,043,000.........152.2

     1896.....10,652..........---------.........151.3

     1897......9,520..........---------.........132.8

     1898......7,840..........---------.........107.2

     1899......6,225..........---------..........83.6

     1900......8,275.........75,994,575.........108.7

     1901......7,852.........77,754,000.........100.9

     1902......8,834.........79,117,000.........111.7

     1903......8,976..........---------.........112.0

     1904......8,482..........---------...............

     1905......9,212..........---------...............

     1906......9,350.........---------................

     1907......8,712..........---------...............

     1908......8,952..........---------...............

     1909......8,103..........---------...............

     1910......8,975.........91,972,266...........97.5

     Total......191,150


We are blood-thirsty enough, God knows, without making things out any
worse than they are. Our murder rate per 100,000 unquestionably exceeds
that of most of the countries of western Europe, but, as the saying is,
"there's a reason." If our homicide statistics related only to the white
population of even the second generation born in this country we should
find, I am convinced, that we are no more homicidal than France and
Belgium, and less so than Italy. It is to be expected that with our
Chinese, "greaser," and half-breed population in the West, our Black
Belt in the South, and our Sicilian and South Italian immigration in the
North and East, our murder rate should exceed those of the continental
nations, which are nothing if not well policed.

But of one thing we can be abundantly certain without any figures at
all, and that is that our present method of administering justice
(less the actions of juries than of judges)--the system taken as a
whole--offers no deterrent to the embryonic or professional criminal.
The administration of justice to-day is not the swift judgment of honest
men upon a criminal act, but a clever game between judge and lawyer, in
which the action of the jury is discounted entirely and the moves are
made with a view to checkmating justice, not in the trial courtroom, but
before the appellate tribunal two or three years later.

"My young feller," said a grizzled veteran of the criminal bar to me
long years ago, after our jury had gone out, "there's lots of things in
this game you ain't got on to yet. Do you think I care what this jury
does? Not one mite. I got a nice little error into the case the very
first day--and I've set back ever since. S'pose we are convicted? I'll
get Jim here [the prisoner] out on a certificate and it'll be two years
before the Court of Appeals will get around to the case. Meantime
Jim'll be out makin' money to pay me my fee--won't you, Jim? Then your
witnesses, will be gone, and nobody'll remember what on earth it's all
about. You'll be down in Wall Street practicing real law yourself, and
the indictment will kick around the office for a year or so, all covered
with dust, and then some day I'll get a friend of mine to come in
quietly and move to dismiss. And it'll be dismissed. Don't you worry!
Why, a thousand other murders will have been committed in this county by
the time that happens. Bless your soul! You can't go on tryin' the same
man forever! Give the other fellers a chance. You shake your head? Well,
it's a fact. I've been doin' it for forty years. You'll see." And I
did. That may not be why men kill, but perhaps indirectly it may have
something to do with it.




CHAPTER V. Detectives and Others


A Detective, according to the dictionaries, is one "whose occupation it
is to discover matters as to which information is desired, particularly
wrong-doers, and to obtain evidence to be used against them." A private
detective, by the same authority, is one "engaged unofficially in
obtaining secret information for or guarding the private interests of
those who employ him." The definition emphasizes the official character
of detectives in general as contrasted with those whose services may be
enlisted for hire by the individual citizen, but the distinction is of
little importance, since it is based arbitrarily upon the character of
the employer (whether the State or a private client) instead of upon the
nature of the employment itself, which is the only thing which is likely
to interest us about detectives at all.

The sanctified tradition that a detective was an agile person with a
variety of side-whiskers no longer obtains even in light literature, and
the most imaginative of us is frankly aware of the fact that a detective
is just a common man earning (or pretending to earn) a common living by
common and obvious means. Yet in spite of ourselves we are accustomed
to attribute superhuman acuteness and a lightning-like rapidity of
intellect to this vague and romantic class of fellow-citizens. The
ordinary work of a detective, however, requires neither of these
qualities. Honesty and obedience are his chief requirements, and if he
have intelligence as well, so much the better, provided it be of the
variety known as "horse" sense. A genuine candidate for the job of
Sherlock Holmes would find little competition. In the first place, the
usual work of a detective does not demand any extraordinary powers of
deduction at all.

Leaving out of consideration those who are merely private policemen
(often in uniform), and principally engaged in patrolling residential
streets, preserving order at fairs, race-tracks, and political meetings,
or in breaking strikes and preventing riots, the largest part of the
work for which detectives are employed is not in the detection of
crime and criminals, but in simply watching people, following them, and
reporting as accurately as possible their movements. These functions are
known in the vernacular as spotting, locating, and trailing. It
requires patience, some powers of observation, and occasionally a little
ingenuity. The real detective under such circumstances is the man to
whom they hand in their reports. Yet much of the most dramatic and
valuable work that is done involves no acuteness at all, but simply a
willingness to act as a spy and to brave the dangers of being found out.

There is nothing more thrilling in the pages of modern history than the
story of the man (James McPartland) who uncovered the conspiracies of
the Molly McGuires. But the work of this man was that of a spy pure and
simple.

Another highly specialized class of detectives is that engaged in police
and banking work, who by experience (or even origin) have a wide and
intimate acquaintance with criminals of various sorts, and by their
familiarity with the latters' whereabouts, associates, work, and methods
are able to recognize and run down the perpetrators of particular
crimes.

Thus, for example, there are men in the detective bureau of New York
City who know by name, and perhaps have a speaking acquaintance with,
a large number of the pick-pockets and burglars of the East Side. They
know their haunts and their ties of friendship or marriage. When any
particular job is pulled off they have a pretty shrewd idea of who is
responsible for it and lay their plans accordingly. If necessary,
they run in the whole gang and put each of them through a course of
interrogation, accusation, and browbeating until some one breaks down
or makes a slip that involves him in a tangle. These men are special
policemen whose knowledge makes them detectives by courtesy. But
their work does not involve any particular superiority or quickness of
intellect--the quality which we are wont to associate with the detection
of crime.

Now, if the ordinary householder finds that his wife's necklace has
mysteriously disappeared, his first impulse is to send for a detective
of some sort or other. In general, he might just as well send for his
mother-in-law. Of course, the police can and will watch the pawnshops
for the missing baubles, but no crook who is not a fool is going to
pawn a whole necklace on the Bowery the very next day after it has been
"lifted." Or he can enlist a private detective who will question the
servants and perhaps go through their trunks, if they will let him.
Either sort will probably line up the inmates of the house for general
scrutiny and try to bully them separately into a confession. This may
save the master a disagreeable experience, but it is the simplest sort
of police work and is done vicariously for the taxpayer, just as the
public garbage man relieves you from the burden of taking out the
ashes yourself, because he is paid for it, not on account of your own
incapacity or his superiority.

The real detective is the one who, taking up the solution of a crime or
other mystery, brings to bear upon it unusual powers of observation
and deduction and an exceptional resourcefulness in acting upon his
conclusions. Frankly, I have known very few such, although for some ten
years I have made use of a large number of so-called detectives in both
public and private matters. As I recall the long line of cases where
these men have rendered service of great value, almost every one
resolves itself into a successful piece of mere spying or trailing.
Little ingenuity or powers of reason were required. Of course, there
are a thousand tricks that an experienced man acquires as a matter of
course, but which at first sight seem almost like inspiration. I shall
not forget my delight when Jesse Blocher, who had been trailing Charles
Foster Dodge through the South (when the latter was wanted as the chief
witness against Abe Hummel on the charge of subornation of perjury of
which he was finally convicted), told me how he instantly located his
man, without disclosing his own identity, by unostentatiously leaving a
note addressed to Dodge in a bright-red envelope upon the office counter
of the Hotel St. Charles in New Orleans, where he knew his quarry to be
staying. A few moments later the clerk saw it, picked it up, and, as
a matter of course, thrust it promptly into box No. 420, thus
involuntarily hanging, as it were, a red lantern on Dodge's door.

There is no more reason to look for superiority of intelligence or
mental alertness among detectives of the ordinary class than there is to
expect it from clerks, stationary engineers, plumbers, or firemen. While
comparisons are invidious, I should be inclined to say that the ordinary
chauffeur was probably a brighter man than the average detective. This
is not to be taken in derogation of the latter, but as a compliment to
the former. There are a great many detectives of ambiguous training. I
remember in one case discovering that of the more important detectives
employed by a well-known private Anti-Criminal Society in New York, one
had been a street vender of frankfurters (otherwise yclept "hot dogs"),
and another the keeper of a bird store, which last perhaps qualified him
for the pursuit and capture of human game. There is a popular fiction
that lawyers are shrewd and capable, similar to the prevailing one
that detectives are astute and cunning. But, as the head of one of
the biggest agencies in the country remarked to me the other day, when
discussing the desirability of retaining local counsel in a distant
city: "You know how hard it is to find a lawyer that isn't a dead one."
I feel confident that he did not mean this in the sense that there was
no good lawyer except a dead lawyer. What my detective friend probably
had in mind was that it was difficult to find a lawyer who brought to
bear on a new problem any originality of thought or action. It is even
harder to find a detective who is not in this sense a dead one. I have
the feeling, being a lawyer myself, that it is harder to find a live
detective than a live lawyer. There are a few of both, however, if you
know where to look for them. But it is easy to fall into the hands of
the Philistines.

The fundamental reason why it is so hard to form any just opinion of
detectives in general is that (except by their fruits) there is little
opportunity to discriminate between the able and the incapable. Now, the
more difficult and complicated his task the less likely is the sleuth
(honest or otherwise) to succeed. The chances are a good deal more than
even that he will never solve the mystery for which he is engaged.
Thus at the end of three months you will have only his reports and his
bill--which are poor comfort, to say the least. And yet he may have
really worked eighteen hours a day in your service. But a dishonest
detective has only to disappear (and take his ease for the same period)
and send you his reports and his bill--and you will have only his word
for how much work he has done and how much money he has spent. You are
absolutely in his power--unless you hire another detective to watch
HIM. Consequently there is no class in the world where the temptation to
dishonesty is greater than among detectives. This, too, is, I fancy,
the reason that the evidence of the police detective is received with so
much suspicion by jurymen--they know that the only way for him to retain
his position is by making a record and getting convictions, and hence
they are always looking for jobs and frame-ups. If a police detective
doesn't make arrests and send a man to jail every once in a while there
is no conclusive way for his superiors to be sure he isn't loafing.

There are a very large number of persons who go into the detective
business for the same reason that others enter the ministry--they can't
make a living at anything else, Provided he has squint eyes and a dark
complexion, almost anybody feels that he is qualified to unravel the
tangled threads of crime. The first resource of the superannuated or
discharged police detective is to start an agency. Of course, he may be
first class in spite of these disqualifications, but the presumption in
the first instance is that he is no longer alert or effective, and
in the second that in one way or another he is not honest. Agencies
recruited from deposed and other ex-policemen usually have all the
faults of the police without any of their virtues. There are many small
agencies which do reliable work, and there are a number of private
detectives in all the big cities who work single-handed and achieve
excellent results. However, if he expects to accomplish anything by
hiring detectives, the layman or lawyer must first make sure of his
agency or his man.

One other feature of the detective business should not be overlooked. In
addition to charging for services not actually rendered and expenses not
actually incurred, there is in many cases a strong temptation to betray
the interests of the employer. A private detective may, and usually
does, become possessed of information even more valuable to the person
who is being watched than to the person to whom he owes his allegiance.
Unreliable rascals constantly sell out to the other side and play
both ends against the middle. In this they resemble some of the famous
diplomatic agents of history. And police detectives employed to run down
criminals and protect society have been known instead to act as stalls
for bank burglars and (for a consideration) to assist them to dispose of
their booty and protect them from arrest and capture. It has repeatedly
happened that reliable private detectives have discovered that the
police employed upon the same case have in reality been tipping off
the criminals as to what was being done and coaching them as to their
conduct. Of course the natural jealousy existing between official and
unofficial agents of the law leads to many unfounded accusations of
this character, but, on the other hand, the fact that much of the most
effective police work is done by employing professional criminals to
secure information and act as stool-pigeons often results in a definite
understanding that the latter shall be themselves protected in the quiet
enjoyment of their labors. The relations of the regular police to crime,
however, and the general subject of police graft have little place in a
chapter of this character.

The first question that usually arises is whether a detective shall or
shall not be employed at all in any particular case. Usually the most
important thing is to find out what the real character, past, and
associations of some particular individual may be. Well-established
detective agencies with offices throughout the country are naturally in
a better position to acquire such information quickly than the private
individual or lawyer, since they are on the spot and have an organized
staff containing the right sort of men for the work. If the information
lies in your own city you can probably hire some one to get it or ferret
it out yourself quite as well, and much more cheaply, than by employing
their services. The leads are few and generally simple. The subject's
past employers and business associates, his landlords and landladies,
his friends and enemies, and his milkman must be run down and
interrogated. Perhaps his personal movements must be watched. Any
intelligent fellow who is out of a job will do this for you for about $5
a day and expenses. The agencies usually charge from $6 to $8 (and up),
and prefer two men to one, as a matter of convenience and to make sure
that the subject is fully covered. If the suspect is on the move and
trains or steamships must be met, you have practically no choice but to
employ a national agency. It alone has the proper plant and equipment
for the work. In an emergency, organization counts more than anything
else. Where time is of the essence, the individual has no opportunity to
hire his own men or start an organization of his own. But if the matter
is one where there is plenty of leisure to act, you can usually do your
own detective work better and cheaper than any one else.

Regarding the work of the detective as a spy (which probably constitutes
seventy-five per cent of his employment to-day), few persons realize
how widely such services are being utilized. The insignificant old
Irishwoman who stumbles against you in the department store is
possibly watching with her cloudy but eagle eye for shoplifters. The
tired-looking man on the street-car may, in fact, be a professional
"spotter." The stout youth with the pince nez who is examining the
wedding presents is perhaps a central-office man. All this you know or
may suspect. But you are not so likely to be aware that the floor-walker
himself is the agent of a rival concern placed in the department store
to keep track, not only of prices but of whether or not the wholesalers
are living up to their agreements in regard to the furnishing of
particular kinds of goods only to one house; or that the conductor on
the car is a paid detective of the company, whose principal duty is not
to collect fares, but to report the doings of the unions; or that the
gentleman who is accidentally introduced to you at the wedding breakfast
is employed by a board of directors to get a line on your host's
business associates and social companions.

In the great struggle between capital and labor, each side has
expended large sums of money in employing confederates to secure secret
information as to the plans and doings of the enemy. Almost every labor
union has its Judas, and less often a secretary to a capitalist is
in the secret employment of a labor union. The railroads must be kept
informed of what is going on, and, if necessary, they import a man from
another part of the country to join the local organization. Often such
men, on account of their force and intelligence, are elected to high
office in the brotherhoods whose secrets they are hired to betray.
Practically every big manufacturing plant in the United States has
on its payrolls men acting as engineers, foremen, or laborers who are
drawing from $80 to $100 per month as detectives either (1) to keep
their employers informed as to the workings of the labor unions, (2)
to report to the directors the actual conduct of the business by its
salaried officers, superintendents, and overseers, or (3) to ascertain
and report to outside competing concerns the methods and processes made
use of, the materials utilized, and the exact cost of production.

There are detectives among the chambermaids and bellboys in the hotels,
and also among the guests; there are detectives on the passenger lists
and in the cardrooms of the Atlantic liners; the colored porter on
the private car, the butler at your friend's house, the chorus girl on
Broadway, the clerk in the law office, the employee in the commercial
agency, may all be drawing pay in the interest of some one else, who may
be either a transportation company, a stock-broker, a rival financier,
a yellow newspaper, an injured or even an erring wife, a grievance
committee, or a competing concern; and the duties of these persons
may and will range from the theft of mailing lists, books, papers,
and private letters, up to genuine detective work requiring some real
ability.

Detective work of the sort which involves the betrayal of confidences
and friendships naturally excites our aversion--yet in many cases the
end undoubtedly justifies the means employed, and often there is no
other way to avert disaster and prevent fiendish crimes. Sometimes, on
the other hand, the information sought is purely for mercenary or even
less worthy reasons, and those engaged in these undertakings range from
rascals of the lowest type to men who are ready to risk death for the
cause which they represent and who are really heroes of a high order.
One of the latter with whom I happened to be thrown professionally was a
young fellow of about twenty named Guthrie.

It was during a great strike, and outrages were being committed all over
the city of New York by dynamiters supposed to be in the employ of
the unions. Young Guthrie, who was a reckless daredevil, offered his
services to the employers, and agreed to join one of the local unions
and try to find out who were the men blowing up office buildings in
process of construction and otherwise terrorizing the inhabitants of the
city. Accordingly he applied for membership in the organization, and by
giving evidence of his courage and fiber managed to secure a place as a
volunteer in the dynamiting squad. So cleverly did he pass himself off
as a bitter enemy of capital that he was entrusted with secrets of
the utmost value and took part in making the plans and procuring the
dynamite to execute them. The quality of his nerve (as well as his
foolhardiness) is shown by the fact that he once carried a dress-suit
case full of the explosive around the city, jumping on and off street
cars, and dodging vehicles. When the proper moment came and the dynamite
had been placed in an uncompleted building on Twenty-second Street,
Guthrie gave the signal and the police arrested the dynamiters--all of
them, including Guthrie, who was placed with the rest in a cell in
the Tombs and continued to report to the district attorney all the
information which he thus secured from his unsuspecting associates.
Indeed, it was hard to convince the authorities that Guthrie was a spy
and not a mere accomplice who had turned State's evidence, a distinction
of far-reaching legal significance so far as his evidence was concerned.

The final episode in the drama was the unearthing by the police of
Hoboken of the secret cache of the dynamiters, containing a large
quantity of the explosive. Guthrie's instructions as to how they should
find it read like a page from Poe's "Gold Bug." You had to go at night
to a place where a lonely road crossed the Erie Railroad tracks in the
Hackensack meadows, and mark the spot where the shadow of a telegraph
pole (cast by an arc light) fell on a stone wall. This you must climb
and walk so many paces north, turn and go so many feet west, and then
north again. You then came to a white stone, from which you laid your
course through more latitude and longitude until you were right over the
spot. The police of Hoboken did as directed, and after tacking round and
round the field, found the dynamite. Of course, the union said the whole
thing was a plant, and that Guthrie had put the dynamite in the field
himself at the instigation of his employers, but before the case came to
trial both dynamiters pleaded guilty and went to Sing Sing. One of them
turned out to be an ex-convict, a burglar. I often wonder where Guthrie
is now. He certainly cared little for his life. Perhaps he is down in
Venezuela or Mexico. He could never be aught than a soldier of fortune.
But for a long time the employers thought that Guthrie was a detective
sent by the unions to compromise THEM in the very dynamiting they were
trying to stop!

I once had a particularly dangerous and unfortunate case where a private
client was being blackmailed by a half-crazy ruffian who had never seen
him, but had selected him arbitrarily as a person likely to give
up money. The blackmailer was a German Socialist, who was out of
employment--a man of desperate character. He had made up his mind that
the world owed him a living, and he had decided that the easiest way
to get it was to make some more prosperous person give him a thousand
dollars under threat of being exposed as an enemy of society.

The charge was so absurd as to be almost ludicrous, but had my client
caused the blackmailer's arrest the matter would have been the subject
of endless newspaper notoriety and comment. It was therefore thought
wise to make use of other means, and I procured the assistance of
a young German-American of my acquaintance, who, in the guise of
a vaudeville artist seeking a job, went to the blackmailer's
boarding-house and pretended to be looking for an actor friend with a
name not unlike that of the criminal.

After two or three visits he managed to scrape an acquaintance with the
blackmailer and thereafter spent much time with him. Both were out of
work, both were German, and both liked beer. My friend had just enough
money to satisfy this latter craving. In a month or so they were
intimate friends and used to go fishing together down the bay. At last,
after many months, the criminal disclosed to the detective his plan of
blackmailing my client, and suggested that as two heads were better than
one they had better make it a joint venture. The detective pretended to
balk at the idea at first, but was finally persuaded, and at the other's
request undertook the delivery of the blackmailing letters to my client!
Inside of three weeks he had in his possession enough evidence in the
criminal's own handwriting to send him to a prison for the rest of his
life. When at last the detective disclosed his identity the blackmailer
at first refused to believe him, and then literally rolled on the floor
in his agony and fear at discovering how he had been hoodwinked. The
next day he disappeared and has not been heard of since, but his letters
are in my vault, ready to be used if he again puts in an appearance.

The records of the police and of the private agencies contain many
instances where murderers have confessed their guilt long after the
crime to supposed friends, who were in reality decoys placed there for
that very purpose. It is a peculiarity of criminals that they cannot
keep their secrets locked in their own breasts. The impulse to
confession is universal, particularly in women. Egotism has some part in
this, but the chief element is the desire for companionship. Criminals
have a horror of dying under an alias. The dignity of identity appeals
even to the tramp. This impulse leads oftentimes to the most unnecessary
and suicidal disclosures. The murderer who has planned and executed a
diabolical homicide and who has retired to obscurity and safety will
very likely in course of time make a clean breast of it to some one whom
he believes to be his friend. He wants to "get it off his chest," to
talk it over, to discuss its fine points, to boast of how clever he was,
to ask for unnecessary advice about his conduct in the future, to
have at least one other person in the world who has seen his soul's
nakedness.

The interesting feature of such confessions from a legal point of view
is that, no matter how circumstantial they may be, they are not usually
of themselves sufficient under our law to warrant a conviction. The
admission or confession of a defendant needs legal corroboration. This
corroboration is often very difficult to find, and frequently cannot be
secured at all. This provision of the statutes is doubtless a wise one
to prevent hysterical, suicidal, egotistical, and semi-insane persons
from meeting death in the electric chair or on the gallows, but it often
results in the guilty going unpunished. Personally, I have never known a
criminal to confess a crime of which he was innocent. The nearest thing
to it in my experience is when one criminal, jointly guilty with another
and sure of conviction, has drawn lots with his pal, lost, confessed,
and in the confession exculpated his companion.

In the police organization of almost every large city there are a few
men who are genuinely gifted for the work of detection. Such an one was
Guiseppe Petrosino, a great detective, and an honest, unselfish,
and heroic man, who united indefatigable patience and industry with
reasoning powers of a high order. The most thrilling evening of my life
was when I listened before a crackling fire in my library to Joe's
story of the Van Cortlandt Park murder, the night before I was going to
prosecute the case. Sitting stiffly in an arm-chair, his ugly moon-face
expressionless save for an occasional flash from his black eyes,
Petrosino recounted slowly and accurately how, by means of a single
slip of paper bearing the penciled name "Sabbatto Gizzi, P.O. Box 239,
Lambertville, N.J.," he had run down the unknown murderer of an unknown
Italian stabbed to death in the park's shrubbery.

Petrosino's physical characteristics were so pronounced that he was
probably as widely, if not more widely, known than any other Italian
in New York. He was short and heavy, with enormous shoulders and a bull
neck, on which was placed a great round head like a summer squash. His
face was pock-marked, and he talked with a deliberation that was due to
his desire for accuracy, but which at times might have been suspected
to arise from some other cause. He rarely smiled and went methodically
about his business, which was to drive the Italian criminals out of the
city and country. Of course, being a marked man in more senses than one,
it was practically impossible to disguise himself, and, accordingly,
he had to rely upon his own investigations and detective powers,
supplemented by the efforts of the trained men in the Italian branch,
many of whom are detectives of a high order of ability. If the life of
Petrosino were to be written, it would be a book unique in the history
of criminology and crime, for this man was probably the only great
detective of the world to find his career in a foreign country amid
criminals of his own race.

I have instanced Petrosino as an example of a police detective of a very
unusual type, but I have known several other men on the New York Police
Force of real genius in their own particular lines of work. One of these
is an Irishman who makes a specialty of get-rich-quick men, oil and
mining stock operators, wire-tappers and their kin, and who knows the
antecedents and history of most of them better than any other man in the
country. He is ready to take the part of either a "sucker" or a fellow
crook, as the exigencies of the case may demand.

There are detectives--real ones--on the police force of all the great
cities of the world to-day, most of them specialists, a few of them
geniuses capable of undertaking the ferreting out of any sort of
mystery, but the last are rare. The police detective usually lacks the
training, education, and social experience to make him effective in
dealing with the class of elite criminals who make high society their
field. Yet, of course, it is this class of crooks who most excite our
interest and who fill the pages of popular detective fiction.

The headquarters man has no time nor inclination to follow the sporting
duchess and the fictitious earl who accompanies her in their picturesque
wanderings around the world. He is busy inside the confines of his own
country. Parents or children may disappear, but the mere seeking of
oblivion on their part is no crime and does not concern him except by
special dispensation on the part of his superiors. Divorced couples may
steal their own children back and forth, royalties may inadvertently
involve themselves with undesirables, governmental information exude
from State portals in a peculiar manner, business secrets pass into
the hands of rivals, racehorses develop strange and untimely diseases,
husbands take long and mysterious trips from home--a thousand exciting
and worrying things may happen to the astonishment, distress, or
intense interest of nations, governments, political parties, or private
individuals, which from their very nature are outside the purview of the
regular police. Here, then, is the field of the secret agent or private
detective, and here, forsooth, is where the detective of genuine
deductive powers and the polished address of the so-called "man of the
world" is required.

There are two classes of cases where a private detective must needs be
used, if indeed any professional assistance is to be called in: first,
where the person whose identity is sought to be discovered or whose
activities are sought to be terminated is not a criminal or has
committed no crime, and second, where, though a crime has been
committed, the injured parties cannot afford to undertake a public
prosecution.

For example, if you are receiving anonymous letters, the writer of which
accuses you of all sorts of unpleasant things, you would, of course,
much prefer to find out who it is and stop him quietly than to turn over
the correspondence to the police and let the writer's attorneys publicly
cross-examine you at his trial as to your past career. Even if a diamond
necklace is stolen from a family living on Fifth Avenue, there is more
than an even chance that the owner will prefer to conceal her loss
rather than to have her picture in the morning paper. Yet she will wish
to find the necklace if she can.

When the matter has no criminal side at all, the police cannot be
availed of, although we sometimes read that the officers of the local
precinct have spent many hours in trying to locate Mrs. So-and-So's lost
Pomeranian, or in performing other functions of an essentially private
nature--most generously. But if, for example, your daughter is made the
recipient, almost daily, of anonymous gifts of jewelry which arrive
by mail, express, or messenger, and you are anxious to discover the
identity of her admirer and return them, you will probably wish to
engage outside assistance.

Where will you seek it? You can do one of two things: go to a big agency
and secure the services of the right man, or engage such a man outside
who may or may not be a professional detective. I have frequently
utilized with success in peculiar and difficult cases the services of
men whom I knew to be common-sense persons, with a natural taste for
ferreting out mysteries, but who were not detectives at all. Your head
bookkeeper may have real talents in this direction--if he is not above
using them. Naturally, the first essential is brains--and if you can
give the time to the matter, your own head will probably be the best
one for your purposes. If, then, you are willing to undertake the job
yourself, all you need is some person or persons to carry out your
instructions, and such are by no means difficult to find. I have had
many a case run down by my own office force--clerks, lawyers, and
stenographers, all taking a turn at it. Why not? Is the professional
sleuth working on a fixed salary for a regular agency and doing a dozen
different jobs each month as likely to bring to bear upon your own
private problem as much intelligence as you yourself?

There is no mystery about such work, except what the detective himself
sees fit to enshroud it with. Most of us do detective work all the time
without being conscious of it. Simply because the matter concerns the
theft of a pearl, or the betraying of a business or professional secret,
or the disappearance of a friend, the opinion of a stranger becomes no
more valuable. And the chances are equal that the stranger will make a
bungle of it.

Many of the best available detectives are men who work by themselves
without any permanent staff, and who have their own regular clients,
generally law firms and corporations. Almost any attorney knows several
such, and the chief advantage of employing one of them lies in the fact
that you can learn just what their abilities are by personal experience.
They usually command a high rate of remuneration, but deductive ability
and resourcefulness are so rare that they are at a premium and can only
be secured by paying it. These men are able, if necessary, to assume
the character of a doctor, traveller, man-about-town, or business agent
without wearing in their lapels a sign that they are detectives, and
they will reason ahead of the other fellow and can sometimes calculate
pretty closely what he will do. Twenty-five dollars a day will generally
hire the best of them, and they are well worth it.

The detective business swarms with men of doubtful honesty and morals,
who are under a constant temptation to charge for services not rendered
and expenses not incurred, who are accustomed to exaggeration if not
to perjury, and who have neither the inclination nor the ability to do
competent work.

Once they get their clutches on a wealthy client, they resemble the
shyster lawyer in their efforts to bleed him by stimulating his fears of
publicity and by holding out false hopes of success, and thus prolonging
their period of service. An unscrupulous detective will, almost as a
matter of course, work on two jobs at once and charge all his time to
each client. He will constantly report progress when nothing has been
accomplished, and his expenses will fill pages of his notebook. Meantime
his daily reports will fall like a shower of autumn leaves. In no
profession is it more essential to know the man who is working for you.
If you need a detective, get the best you can find, put a limit on the
expense, and give him your absolute confidence.




CHAPTER VI. Detectives Who Detect


In the preceding chapter the writer discussed at some length the real,
as distinguished from the fancied, attributes of detectives in general,
and the weaknesses as well as the virtues of the so-called detective
"agency." There are in the city of New York at the present time about
one hundred and fifty licensed detectives. Under the detective license
laws each of these has been required to file with the State comptroller
written evidences of his competency, and integrity, approved by five
reputable freeholders of his county, and to give bond in the sum of
two thousand dollars. He also has to pay a license fee of one hundred
dollars per annum, but this enables him to employ as many "operators"
as he chooses. In other words, the head of the agency may be of good
character and his agents wholly undesirable citizens. How often this is
the case is known to none better than the heads themselves. The strength
and efficiency of a detective agency does not lie in the name at the
top of its letter-paper, but in the unknown personnel of the men who are
doing or shirking the work. I believe that most of the principals of
the many agencies throughout the United States are animated by a serious
desire to give their clients a full return for their money and loyal and
honest service. But the best intentions in the world cannot make up
for the lack of untiring vigilance in supervising the men who are being
employed in the client's service.

It is the right here that the "national" has an immense advantage
over the small agency which cannot afford to keep a large staff of men
constantly on hand, but is forced to engage them temporarily as they may
be needed. The "national" agency can shift its employees from place
to place as their services are required, and the advantages of
centralization are felt as much in this sort of work as in any other
industry. The licensed detective who sends out a hurry call for
assistants is apt to be able to get only men whom he would otherwise not
employ. In this chapter, the word "national," as applied to a detective
agency, refers not to the title under which such an agency may do its
business, but to the fact that it is organized and equipped to render
services all over the country.

In this connection it is worth noticing that the best detective agencies
train their own operators, selecting them from picked material. The
candidate must as rule be between twenty and thirty-five years of age,
sound of body, and reasonably intelligent. He gets pretty good wages
from the start. From the comparatively easy work of watching or
"locating," he is advanced through the more difficult varieties of
"shadowing" and "trailing," until eventually he may develop into a
first-class man who will be set to unravel a murder mystery or to "rope"
a professional criminal. But with years of training the best material
makes few real detectives, and the real detective remains in fact the
man who sits at the mahogany desk in the central office and presses the
row of mother of pearl buttons in front of him.

If you know the heads or superintendents of the large agencies you will
find that the "star" cases, of which they like to talk, are, for the
most part, the pursuit and capture of forgers and murderers. The
former, as a rule, are "spotted" and "trailed" to their haunts, and when
sufficient evidence has been obtained the police are notified, and a
raid takes place, or the arrest is made, by the State authorities.
In the case of a murderer, in a majority of cases, his capture is the
result of skilful "roping" by an astute detective who manages to get
into his confidence. For example, a murder is committed by an
Italian miner. Let us suppose he has killed his "boss," or even the
superintendent or owner. He disappears. As the reader known, the
Italians are so secretive that it is next to impossible to secure any
information--even from the relatives of the murdered man.

The first thing is to locate the assassin. An Italian detective is sent
into the mine as a laborer. Months may elapse before he gets on familiar
or intimate terms with his fellows. All the time he is listening and
watching. Presently he hears something that indicates that the murderer
is communicating with one of his old friends either directly or through
third parties. It is then generally only a question of time before his
whereabouts are ascertained. Once he is "located" the same method is
followed in securing additional evidence or material in the nature of
a confession or admission tending to establish guilt. Having previously
"roped" the murderer's friends, the detective now proceeds to the more
difficult task of "roping" the murderer himself. Of course, the life
of a detective in a Pennsylvania coal mine would be valueless if his
identity were discovered, and yet the most daring pieces of detective
work are constantly being performed under these and similar conditions.
Where the criminal is not known, the task becomes far more difficult and
at times exceedingly dangerous.

One of my own friends, an Italian gentleman, spent several months in the
different mines of this country, where Italians are largely employed,
investigating conditions and ascertaining for the benefit of his
government the extent to which anarchy was prevalent. It was necessary
for him to secure work as a miner at the lowest wages and to disguise
himself in such a way that it would be impossible for anybody to detect
his true character. Fortunately, the great diversity of Italian dialects
facilitated his efforts and enabled him to pass himself off as
from another part of the country than his comrades. Having made his
preparations he came to New York as an immigrant and joined a party of
newly arrived Italians on their way to the coal mines of West Virginia.
Without following him further, it is enough to say that during his
service in the mines he overheard much that was calculated to interest
exceedingly the authorities at Rome. Had his disguise been penetrated
the quick thrust of a five-inch blade would have ended his career.
He would never have returned to New York. There would only have been
another dead "Dago" miner. The local coroner would have driven up in
his buggy, looked at the body, examined the clean, deep wound in the
abdomen, shrugged his shoulders, and empanelled a hetrogeneous jury who
would have returned a verdict to the effect that "deceased came to
his death through a stab wound inflicted by some person to the jury
unknown." My friend was not a professional detective, but the recital of
his experiences was enough to fill me with new respect for those engaged
in the "man hunt" business among the half civilized miners of the coal
regions.

But the work of even the "national" agencies is not of the kind which
the novel-reading public generally associates with detectives--that is
to say, it rarely deals with the unravelling of "mysteries," except the
identity of passers of fraudulent paper and occasional murderers. The
protection of the banks is naturally the most important work that such
an agency can perform.

The National Bankers' Association has eleven thousand members.
"Pinkerton's Bank and Bankers' Protection" also has a large organization
of subscribers. These devote themselves to identifying and running down
all criminals whose activities are dangerous to them. Here the agency
and the police work hand in hand, exchanging photographs of crooks and
suspects and keeping closely informed as to each other's doings. Yet
there is no official connection between any detective agency and the
police of any city. It is an almost universal rule that a private
detective shall not make an arrest. The reasons for this are manifold.
In the first place, the private detective has neither the general
authority nor the facilities for the manual detention of a criminal. A
blue coat and brass buttons, to say nothing of a night stick, are often
invaluable stage properties in the last act of the melodrama. And as the
criminal authorities are eventually to deal with the defendant anyway,
it is just as well if they come into the case as soon as may be. It goes
without saying, of course, that a detective per se has no more right to
make an arrest than any private citizen--nor has a policeman, for that
matter, save in exceptional cases. The officer is valuable for his
dignity, avoirdupois, "bracelets," and other accessories. The police
thus get the credit of many arrests in difficult cases where all the
work has been done by private detectives, and it is good business for
the latter to let them know it.

One of the chief assets of the big agency is its accumulated information
concerning all sorts of professional criminals. Its galleries are quite
as complete as those of the local police headquarters, for a constant
exchange of art objects is going on with the police throughout the
world. And as the agency is protecting banks all over the United States
it has greater interest in all bank burglars as a class than the police
of any particular city who are only concerned with the burglars who
(as one might say) burgle in their particular burg. Thus, you are more
likely to find a detective from a national agency than a sleuth from
300 Mulberry Street, New York, following a forger to Australasia or
Polynesia.

The best agencies absolutely decline to touch divorce and matrimonial
cases of any sort. It does not do a detective agency any good to have
its men constantly upon the witness stand subject to attack, with
a consequent possible reflection upon their probity of character or
truthfulness. Moreover, a good detective is too valuable a person to
be wasting his time in the court-room. In the ordinary divorce case the
detective, having procured evidence, is obliged to remain on tap and
subject to call as a witness for at least three or four months, during
which time he cannot be sent away on distant work. Neither can the
customer be charged ordinarily for waiting time, and apart from its
malodorous character the business is not desirable from a financial
point of view.

The national agencies prefer clean criminal work, murder cases,
and general investigating. They no longer undertake any policing,
strike-breaking, or guarding. The most ridiculous misinformation in
regard to their participation in this sort of work has been spread
broadcast largely by jealous enemies and by the labor unions.

By way of illustration, one Thomas Beet, describing himself as an
English detective, contributed an article to the 'New York Tribune' of
September 16, 1906, in which he said:

"In one of the greatest of our strikes, that involving the steel
industry, over two thousand armed detectives were employed supposedly to
protect property, while several hundred men were scattered in the ranks
of strikers as workmen. Many of the latter became officers in the labor
bodies, helped to make laws for the organizations, made incendiary
speeches, cast their votes for the most radical movements made by the
strikers, participated in and led bodies of the members in the acts of
lawlessness that eventually caused the sending of State troops and the
declaration of martial law. While doing this, these spies within
the ranks were making daily reports of the plans and purposes of the
strikers. To my knowledge, when lawlessness was at its height and murder
ran riot, these men wore little patches of white on the lapels of their
coats so that their fellow detectives of the two thousand would not
shoot them down by mistake."

He, of course, referred to the great strike at Homestead, Pennsylvania,
in 1892. In point of fact, there were only six private detectives
engaged on the side of the employers at that time, and these were there
to assist the local authorities in taking charge of six hundred and
fifty watchmen, and to help place the latter upon the property of the
steel company. These watchmen were under the direction of the sheriff
and sworn in as peace officers of the county. Mr. Beet seems to
have confused his history and mixed up the white handkerchief of the
Huguenots of Nantes with the strike-breakers of Pennsylvania. It is
needless to repeat (as Mr. Robert A. Pinkerton stated at the time),
that the white label story is ridiculously' untrue, and that it was the
strikers who attacked the watchmen, and not the watchmen the strikers.
One striker and one watchman were killed.

But this attack of Mr. Beet upon his own profession, under the guise
of being an English detective (it developed that he was an ex-divorce
detective from New York City), was not confined to his remarks about
inciting wanton murder. On the contrary, he alleged (as one having
authority and not merely as a scribe) that American detective agencies
were practically nothing but blackmailing concerns, which used the
information secured in a professional capacity to extort money from
their own clients.

"Think of the so-called detective," says Mr. Beet, "whose agency pays
him two dollars or two dollars and fifty cents a day, being engaged upon
confidential work and in the possession of secrets that he knows
are worth money! Is it any wonder that so many cases are sold out by
employees, even when the agencies are honest?"

We are constrained to answer that it is no more wonderful than that any
person earning the same sum should remain honest when he might so easily
turn thief. As the writer has himself pointed out in these pages, there
are hundreds of so-called detective agencies which are but traps for the
guileless citizen who calls upon them for aid. But there are many which
are as honestly conducted as any other variety of legitimate business. I
do not know Mr. Beet's personal experience, but it appears to have been
unfortunate. At any rate, his diatribe is unfounded and false, and the
worst feature of it is his assertion that detective agencies make a
business of manufacturing cases when there happen to be none on hand.

"Soon," says he, "there were not enough cases to go around, and then
with the aid of spies and informers the unscrupulous detectives began to
make cases. Agencies began to work up evidence against persons and then
resorted to blackmail, or else approached those to whom the information
might be valuable, and by careful manoeuvring had themselves retained
to unravel the case. This brought into existence hordes of professional
informers who secured the opening wedges for the fake agencies. Men and
women, many of them of some social standing, made it a practice to pry
around for secrets which might be valuable able; spies kept up their
work in large business establishments and began to haunt the cafes and
resorts of doubtful reputation, on the watch for persons of wealth
and prominence who might be foolish enough to place themselves in
compromising circumstances. Even the servants in wealthy families soon
learned that certain secrets of the master and mistress could be
turned to profitable account. We shudder when we hear of the system
of espionage maintained in Russia, while in the large American cities,
unnoticed, are organizations of spies and informers on every hand who
spend their lives digging pitfalls for the unwary who can afford to
pay."

One would think that we were living in the days of the Borgias! "Ninety
per cent," says Mr. Beet, "of private detective agencies are rotten to
the core and simply exist and thrive upon a foundation of dishonesty,
deceit, conspiracy, and treachery to the public in general and their own
patrons in particular. There are detectives at the heads of prominent
agencies in this country whose pictures adorn the Rogues' Gallery; men
who have served time in various prisons for almost every crime on the
calendar."

This harrowing picture has the modicum of truth that makes it
insidiously dangerous. But this last extravagance betrays the
denunciator. One would be interested to have this past-master of
overstatement mention the names of these distinguished crooks that head
the prominent agencies. Their exposure, if true, would not be libellous,
and it would seem that he had performed but half his duty to the public
in refraining from giving this important, if not vital, information.

I know several of these gentlemen whose pictures I feel confident do not
appear in the Rogues' Gallery, and who have not been, as yet, convicted
of crime. A client is as safe in the hands of a good detective agency as
he is in the hands of a good attorney; he should know his agency, that
is all--just as he should know his lawyer. The men at the head of the
big agencies generally take the same pride in their work as the members
of any other profession. They know that a first-class reputation for
honesty is essential to their financial success and that good will is
their stock in trade. Take this away and they would have nothing.

In 1878 the founder of one of the most famous of our national agencies
promulgated in printed form for the benefit of his employees what he
called his general principles. One of these was the following:

"This agency only offers its services at a stated per diem for each
detective employed on an operation, giving no guarantee of success,
except in the reputation for reliability and efficiency; and any person
in its service who shall, under any circumstances, permit himself or
herself to receive a gift, reward, or bribe shall be instantly dismissed
from the service."

Another:

"The profession of the detective is a high and honorable calling. Few
professions excel it. He is an officer of justice, and must himself be
pure and above reproach."

Again:

"It is an evidence of the unfitness of the detective for his profession
when he is compelled to resort to the use of intoxicating liquors; and,
indeed, the strongest kind of evidence, if he continually resorts to
this evil practice. The detective must not do anything to farther sink
the criminal in vice or debauchery, but, on the contrary, must seek to
win his confidence by endeavoring to elevate him, etc."

"Kindness and justice should go hand in hand, whenever it is possible,
in the dealings of the detective with the criminal. There is no human
being so degraded but there is some little bright spark of conscience
and of right still existing in him."

Last:

"The detective must, in every instance, report everything which is
favorable to the suspected party, as well as everything which may be
against him."

The man who penned these principles had had the safety of Abraham
Lincoln in his keeping; and these simple statements are the best
refutation of the baseless assertions above referred to.

It may be that in those days the detection of crime was a bit more
elementary than at the present time. One can hardly picture a modern
sleuth delaying long in an attempt to evangelize his quarry, but these
general principles are the right stuff and shine like good deeds in a
naughty world.

As one peruses this little pink pamphlet he is constantly struck by the
repeated references to the detective as an actor. That was undoubtedly
the ancient concept of a sleuth. "He must possess, also, the player's
faculty of assuming any character that his case may require, and of
acting it out to the life with an ease and naturalness which shall not
be questioned." This somewhat large order is, to our relief, qualified a
little later on. "It is not to be expected, however," the author admits,
"that every detective shall possess these rare qualifications, although
the more talented and versatile he is, the higher will be the sphere of
operation which he will command."

The modern detective agency is conducted on business principles and does
not look for histrionic talent or general versatility. As one of the
heads of a prominent agency said to me the other day:

"When we want a detective to take the part of a plumber we get a
plumber, and when we need one to act as a boiler-maker we go out and get
a real one--if we haven't one on our pay rolls."

"But," I replied, "when you need a man to go into a private family and
pretend to be an English clergyman, or a French viscount, or a brilliant
man of the world--who do you send?"

The "head" smiled.

"The case hasn't arisen yet," said he. "When it does I guess we'll get
the real thing."

The national detective agency, with its thousands of employees who have,
most of them, grown up and received their training in its service, is a
powerful organization, highly centralized, and having an immense sinking
fund of special knowledge and past experience. This is the product of
decades of patient labor and minute record. The agency which offers
you the services of a Sherlock Holmes is a fraud, but you can accept as
genuine a proposition to run down any man whose picture you may be able
to identify in the gallery. The day of the impersonator is over. The
detective of this generation is a hard-headed business man with a stout
pair of legs.

This accumulated fund of information is the heritage of an honest and
long established industry. It is seventy-five per cent of its capital.
It is entirely beyond the reach of the mushroom agency, which in
consequence has to accept less desirable retainers involving no such
requirements, or go to the wall. The collection of photographs is almost
priceless and the clippings, letters, and memoranda in the filing cases
only secondarily so. Very few of the "operators" pretend to anything but
common-sense, with perhaps some special knowledge of the men they
are after. They are not clairvoyants or mystery men, but they will
tirelessly follow a crook until they get him. They are the regular
troops who take their orders without question. The real "detective" is
the "boss" who directs them.

The reader can easily see that in all cases where a crime, such as
forgery, is concerned, once the identity of the criminal is ascertained,
half the work (or more than half) is done. The agencies know the face
and record of practically every man who ever flew a bit of bad paper in
the United States, in England, or on the Continent. If an old hand gets
out of prison his movements are watched until it is obvious that he does
not intend to resort to his old tricks. After the criminal is known or
"located," the "trailing" begins and his "connections" are carefully
studied. This may or may not require what might be called real detective
work; that is to say, work requiring superior power of deducing
conclusions from first-hand information, coupled with unusual skill
in acting upon them. Mere trailing is often simple, yet sometimes
very difficult. A great deal depends on the operator's own peculiar
information as to his man's habits, haunts, and associates. It is very
hard to say in most cases just where mere knowledge ends and detective
work proper begins. As for disguises, they are almost unknown, except
such as are necessary to enable an operator to join a gang where his
quarry may be working and "rope" him into a confession.

Detective agencies of the first-class are engaged principally in
clean-cut criminal work, such as guarding banks from forgers and
"yeggmen"--an original and dangerous variety of burglar peculiar to the
United States and Canada. In other words, they have large associations
of clients who need more protection than the regular police can give
them, and whose interest it is that the criminal shall not only be
driven out of town, but run down (wherever he may be), captured, and put
out of the way for as long a time as possible.

The work done for private individuals is no less important and
effective, but it is secondary to the other. The great value of the
"agency" to the victim of a theft is the speed with which it can
disseminate its information--something quite impossible so far as the
individual citizen is concerned. Let me give an illustration or two.

Between 10.30 P.M. Saturday, February 25, 1911, and 9.30 A.M. Sunday,
February 26, 1911, one hundred and thirty thousand dollars worth of
pearls belonging to Mrs. Maldwin Drummond were stolen from a stateroom
on the steamship 'Amerika' of the Hamburg-American line. The London
underwriters cabled five thousand dollars reward and retained to
investigate the case a well-known American agency, which before
the 'Amerika' had reached Plymouth on her return trip had their
notifications in the hands of all the jewelers and police officials of
Europe and the United States, and had covered every avenue of disposal
in North and South America. In addition, this agency investigated every
human being on the Amerika from first cabin to forecastle.

Within a year or so an aged stock-broker, named Bancroft, was robbed
on the street of one hundred thousand dollars in securities. Inside of
fifty-five minutes after he had reported his loss a detective agency had
notified all banks, brokers, and the police in fifty-six cities of the
United States and Canada.

In the story books your detective scans with eagle eye the surface of
the floor for microscopic evidences of crime. His mind leaps from a
cigar ash to a piece of banana peel and thence to what the family had
for dinner. His brain is working all the time. It is, of course, all
quite wonderful and most excellent reading, and the old-style sleuth
really thought he could do it! Nowadays, while the fake detective
is snooping around the back piazza with a telescope, the real one is
getting the "dope" from the village blacksmith or barber or the waitress
at the station. He may not be highly intelligent, but he knows the
country, and, what is more important, he knows the people. All the
brains in the world cannot make up for the lack of an elementary
knowledge of the place and the characters themselves. It stands to
reason that no strange detective could form as good an opinion as to
which of the members of your household would be most likely to steal a
piece of jewelry as you could yourself. Yet the old-fashioned Sherlock
knew and knows it all.

One of the best illustrations of the practical necessity of some
first-hand knowledge is that afforded by the recovery of a diamond
necklace belonging to the wife of a gentleman in a Connecticut town.
The facts that are given here are absolutely accurate. The gentleman in
question was a retired business man of some means who lived not far from
the town and who made frequent visits to New York City. He had made his
wife a present of a fifteen thousand-dollar diamond necklace, which she
kept in a box in a locked trunk in her bedroom. While she had owned
the necklace for over a year she had never worn it. One evening having
guests for dinner on the occasion of her wedding anniversary she decided
to put it on and wear it for the first time. That night she replaced it
in its box and enclosed this in another box, which she locked and placed
in her bureau drawer. This she also locked. The following night she
decided to replace the necklace in the trunk. She accordingly unlocked
the bureau drawer, and also the larger box, which apparently was in
exactly the same condition as when she had put it away. But the inner
box was empty and the necklace had absolutely disappeared. Now, no
one had seen the necklace for a year, and then only her husband, their
servants, and two or three old friends. No outsider could have known of
its existence. There was no evidence of the house or bureau having been
disturbed.

A New York detective agency was at once retained, which sent one of its
best men to the scene of the crime. He examined the servants, heard the
story, and reported that it must have been an inside job--that there was
no possibility of anything else. But there was nothing to implicate any
one of the servants, and there seemed no hope of getting the necklace
back. Two or three days later the husband turned up at the agency's
office in New York, and after beating about the bush for a while,
remarked:

"I want to tell you something. You have got this job wrong. There's one
fact your man didn't understand. The truth is that I'm a pretty easy
going sort, and every six months or so I take all the men and girls
employed around my house down to Coney Island and give 'em a rip-roaring
time. I make 'em my friends, and I dance with the girls and I jolly
up the men, and we are all good pals together. Sort of unconventional,
maybe, but it pays. I know--see?--that there isn't a single one of those
people who would do me a mean trick. Not one of 'em but would lend me
all the money he had. I don't care what your operator says, the person
who took that necklace came from outside. You take that from me. The
superintendent, who is wise in his generation, scratched his chin.

"Is that dead on the level?" he inquired.

"Gospel!" answered the other.

"I'll come up myself!" said the boss.

Next day the boss behind a broken-winded horse, in a dilapidated buggy,
drove from another town to the place where his client lived. At the
smithy on the crossroads he stopped and borrowed a match.

"Anybody have good hosses in this town?" asked the detective.

"Sure!" answered the smith. "Mr. ------ up on the hill has the best in
the county!"

"What sort of a feller is he?"

The smith chewed in silence for a moment.

"Don't know him myself, but I tell you what, his help says he's the best
employer they ever had--and they stay there forever!"

The boss drove on to the house, which he observed was situated at about
an equal distance from three different railway stations and surrounded
by a piazza with pillars. He walked around it, examining the vines until
his eye caught a torn creeper and a white scratch on the paint. It had
been an outside job after all, and two weeks had already been lost.
Deduction was responsible for a mistake which would not have occurred
had a little knowledge been acquired first. That is the lesson of this
story.

The denouement, which has no lesson at all, is interesting. The
superintendent saw no prospect of getting back the necklace, but before
so informing the client, decided to cogitate on the matter for a day or
two. During that time he met by accident a friend who made a hobby
of studying yeggmen and criminals and occasionally doing a bit of the
amateur tramp act himself.

"By the way," said the friend, "do you ever hear of any 'touches' up the
river or along the Sound?"

"Sometimes," answered the boss, pricking up his ears. "Why do you ask?"

"Why, the other night," replied the friend, "I happened to be meeting my
wife up at the Grand Central about six o'clock and I saw two yeggs that
I knew taking a train out. I thought it was sort of funny. Pittsburgh
Ike and Denver Red."

"When was it?"

"Two weeks ago," said the friend.

"Thanks," returned the boss. "You must excuse me now; I've got an
important engagement."

Three hours later Pittsburgh Ike and Denver Red were in a cell at
headquarters. At six o'clock that evening the necklace had been
returned. This was a coincidence that might not occur in a hundred
years, but had the deductive detective determined the question he would
still be pondering on the comparative probability of whether the cook,
the chore man, or the hired girl was the guilty party.

A clean bit of detection on the part of an agency, and quite in the
day's work, was the comparatively recent capture of a thief who secured
three hundred and sixty thousand dollars worth of securities from a
famous banking institution in New York City by means of a very simple
device. A firm of stock brokers had borrowed from this bank about two
hundred and fifty thousand dollars for a day or two and put up the
securities as collateral. In the ordinary course of business, when the
borrower has no further use for the money, he sends up a certified check
for the amount of the loan with interest, and the bank turns over the
securities to the messenger. In this particular case a messenger arrived
with a certified check, shoved it into the cage, and took away what was
pushed out to him in return--three hundred and sixty thousand dollars in
bonds. The certification turned out to be a forgery and the securities
vanished. I do not know whether the police were consulted or not.
Sometimes in such cases the banks prefer to resort to more private
methods and, perhaps, save the necessity of making a public admission of
their stupidity. When my friend, the superintendent, was called in, the
officers of the bank were making the wildest sort of guesses as to the
identity of the master mind and hand which had deceived the cashier. He
must, they felt sure, have made the forgery with a camel's hair brush of
unrivalled fineness.

"A great artist!" said the president.

"The most skilful forger in the world!" opined another.

"We must run down all the celebrated criminals!" announced a third.

"Great artist-nothing!" remarked the boss, rubbing his thumb over the
certification which blurred at the touch. "He's no painter! Why, that's
a rubber stamp!"

What a shock for those dignified gentlemen! To think that their cashier
had been deceived by a mere, plebeian, common or garden thing of rubber!

"Good-day, gents!" said the boss, putting the check in his wallet. "I've
got to get busy with the rubber stamp makers!"

He returned to his office and detailed a dozen men to work on the East
Side and a dozen on the West Side, with orders to search out every
man in New York who manufactured rubber stamps. Before the end of the
afternoon the maker was found on the Bowery, near Houston Street. This
was his story: A couple of weeks before, a young man had come in and
ordered a certification stamp, drawing at the time a rough design
of what he wanted. The stamp, when first manufactured, had not been
satisfactory to him; and on his second visit, the customer had left a
piece of a check, carefully torn out in circular form, which showed
the certification which he desired copied. This fragment the maker
had retained, as well as a slip of paper, upon which the customer had
written the address of the place to which he wished the stamp sent--The
Young Men's Christian Association! The face of the fragment showed a
part of the maker's signature. The superintendent ran his eye over
a list of brokers and picked out the name of the firm most like the
hieroglyphics on the check. Then he telephoned over and asked to be
permitted to see their pay roll. Carefully comparing the signature
appearing thereon with the Y.M.C.A. slip, he picked his man in less than
ten minutes.

The latter was carefully trailed to his home, and thence to the Young
Men's Christian Association, after which he called on his fiancee at
her father's house. He spent the night at his own boarding place. Next
morning (Sunday) he was arrested on his way to church, and all the
securities (except some that he later returned) were discovered in his
room. More quick work! The amateur's method had been very simple. He
knew that the loan had been made and the bonds sent to the bank. So he
forged a check, certified it himself, and collected the securities. Of
course, he was a bungler and took a hundred rash chances.

A good example of the value of the accumulated information--documentary,
pictorial, and otherwise--in the possession of an agency was the capture
of Charles Wells, more generally known as Charles Fisher, alias Henry
Conrad, an old-time forger, who suddenly resumed his activities after
being released from a six-year term in England. A New York City bank had
paid on a bogus two hundred and fifty dollar check and had reported its
loss to the agency in question. The superintendent examined the check
(although Fisher had been in confinement for six years on the other
side) spotted it as his work. The next step was to find the forger. Of
course, no man who does the actual "scratching" attempts to "lay down"
the paper. That task is up to the "presenter." The cashier of the
bank identified in the agency's gallery the picture of the man who had
brought in the two hundred and fifty dollar check, and he in turn proved
to be another ex-convict well known in the business, whose whereabouts
in New York were not difficult to ascertain. He was "located" and
"trailed" and all his associates noted and followed. In due course he
"connected up" (as they say) with Fisher. Now, it is one thing to follow
a man who has no idea that he is being followed and another to trail a
man who is as suspicious and elusive as a fox. A professional criminal's
daily business is to observe whether or not he is being followed, and he
rarely if ever, makes a direct move. If he wants a drink at the saloon
across the street, he will, by preference, go out the back door, walk
around the block and dodge in the side entrance under the tail of an
ice wagon. In this case the detectives followed the presenter for days
before they reached Fisher, and when they did they had still to locate
his "plant."

The arrest in this case illustrates forcibly the chief characteristic of
successful criminals--egotism. The essential quality of daring required
in their pursuits gives them an extraordinary degree of self-confidence,
boldness, and vanity. And to vanity most of them can trace their fall.
It seems incredible that Fisher should have returned to the United
States after his discharge from prison and immediately resumed his
operations without carefully concealing his impedimenta. Yet when he was
run down in a twenty-six family apartment house, the detectives found in
his valise several thousand blank and model checks, hundreds of letters
and private papers, a work on "Modern Bank Methods," and his "ticket of
leave" from England! This man was a successful forger and because he
was successful, his pride in himself was so great that he attributed his
conviction in England to accident and really felt that he was immune on
his release.

The arrest of such a man often presents great legal difficulties which
the detectives overcome by various practical methods. Of course, no
officer without a search warrant has a right to enter a house or an
apartment. A man's house is his castle. Mayor Gaynor, when a judge, in
a famous opinion (more familiarly known in the lower world even than
the Decalogue) laid down the law unequivocally and emphatically in this
regard. Thus, in the Fisher case, the defendant having been arrested on
the street, the detectives desired to search the apartment of the family
with which he lived. They did this by first inducing the tenant to open
the door and, after satisfying themselves that they were in the right
place, ordering the occupants to get in line and "march" from one room
to another while they rummaged for evidence. "Of course, we had no right
to do it, but they didn't know we hadn't!" said the boss.

But frequently the defendant knows his rights just as well as the
police. On one occasion the same detective who arrested Fisher wanted to
take another man out of an apartment where he had been run to earth. His
mother (aged eighty-two years) put the chain on the door and politely
declined to open it. All the evidence against the forger was inside the
apartment and he was actively engaged in burning it up in the kitchen
stove. In half an hour to arrest him would have been useless! The
detectives stormed and threatened, but the old crone merely grinned at
them. She hated a "bull" as much as did her son. Fearing to take the
law into their own hands, they summoned a detective sergeant from
head-quarters, but, although he sympathized with them, he had read Mayor
Gaynor's decision and declined to take any chances. They then "appealed"
to the cop on the beat, who proved more reasonable, but although he used
all his force, he was unable to break down the door which had in the
meantime been reinforced from the inside. After about an hour, the old
lady unchained the door and invited the detectives to come in. The crook
was sitting by the window smoking a cigar and reading St. Nicholas,
while all evidence of his crime had vanished in smoke.

One more anecdote, at the expense of the deductive detective. A watchman
was murdered, the safe of a brewery blown open and the contents stolen.
Local detectives worked on the case and satisfied themselves that the
night engineer at the brewery had committed the crime. He was a quiet
and, apparently, a God-fearing man, but circumstances were conclusive
against him. In fact, he had been traced within ten minutes of the
murder on the way to the scene of the homicide. But some little link was
lacking and the brewery officials called in the agency. The first thing
the superintendent did was to look over the engineer. At first sight
he recognized him as a famous crook who had served five years for a
homicidal assault! One would think that that would have settled the
matter. But it didn't! The detective said nothing to his associates or
employers, but called on the engineer that evening and had a quiet
talk with him in which he satisfied himself that the man was entirely
innocent. The man had served his time, turned over a new leaf, and was
leading an honest, decent life. Two months later the superintendent
caused the arrest of four yeggmen, all of whom were convicted and are
now serving fifteen years each for the crime.

Thus, the reader will observe that there are just a few more
real detectives still left in the business-if you can find them.
Incidentally, they, one and all, take off their hats to Scotland Yard.
They will tell you that the Englishman may be slow (fancy an American
inspector of police wearing gray suede gloves and brewing himself a dish
of tea in his office at four o'clock), but that once he goes after a
crook he is bound to get him--it is merely a question of time. I may add
that in the opinion of the heads of the big agencies the percentage of
ability in the New York Detective Bureau is high--one of them going
so far as to claim that fifty per cent of the men have real detective
ability--that is to say "brains." That is rather a higher average than
one finds among clergymen and lawyers, yet it may be so.




CHAPTER VII. Women in the Courts


AS WITNESSES

Women appear in the criminal courts constantly as witnesses, although
less frequently as complainants and defendants. As complainants are
always witnesses, and as defendants may, and in point of fact generally
do become so, whatever generalizations are possible regarding women in
courts of law can most easily be drawn from their characteristics as
givers of testimony. Roughly speaking, women exhibit about the same
idiosyncrasies and limitations in the witness-chair as the opposite sex,
and at first thought one would be apt to say that it would be fruitless
and absurd to attempt to predicate any general principles in regard to
their testimony, but a careful study of female witnesses as a whole will
result in the inevitable conclusion that their evidence has virtues and
limitations peculiar to itself.

The ancient theory that woman was man's inferior showed itself in the
tendency to reject, or at least to regard with suspicion, her evidence
in legal matters.

"The following law," says W. M. Best, "is attributed to Moses by
Josephus: 'Let the testimony of women not be received on account of the
levity and audacity of their sex'; a law which looks apocryphal, but
which, even if genuine, could not have been of universal application....
The law of ancient Rome, though admitting their testimony in general,
refused it in certain cases. The civil canon laws of mediaeval Europe
seem to have carried the exclusion much further. Mascardus says:
'Feminis plerumque omnino non creditur, et id dumtaxat, quod sunt
feminae qua ut plurimum solent esse fraudulentre fallaces, et dolosae'
[Generally speaking, no credence at all is given to women, and for this
reason, because they are women, who are usually deceitful, untruthful,
and treacherous in the very highest degree.] And Lancelottus, in his
'Institutiones Juris Canonici,' lays it down in the most distinct
terms, that women cannot in general be witnesses, citing the language of
Virgil: 'Varium et mutabile semper femina'....

"Bruneau, although a contemporary of Madame de Sevigne, did not scruple
to write, in 1686, that the deposition of three women was only equal to
that of two men. At Berne, so late as 1821, in the Canton of Vaud, so
late as 1824, the testimony of two women was required to counterbalance
that of one man.... A virgin was entitled to greater credit than a
widow.... In the 'Canonical Institutions of Devotus,' published at
Paris in 1852, it is distinctly stated that, except in a few peculiar
instances, women are not competent witnesses in criminal cases. In
Scotland also, until the beginning of the eighteenth century, sex was
a cause of exclusion from the witness-box in the great majority of
instances."

Cockburn in his Memoirs tells of an incident during the trial of
Glengarry, in Scotland, for murder in a duel, which is, perhaps,
explicable by this extraordinary attitude: A lady of great beauty
was called as a witness and came into court heavily veiled. Before
administering the oath, Lord Eskgrove, the judge (to whom this function
belongs in Scotland), gave her this exposition of her duty:

"Young woman, you will now consider yourself as in the presence of
Almighty God and of this High Court. Lift up your veil, throw off all
your modesty, and look me in the face."

Whatever difference does exist in character between the testimony of
men and women has its root in the generally recognized diversity in the
mental processes of the two sexes. Men, it is commonly declared, rely
upon their powers of reason; women upon their intuition. Not that the
former is frequently any more accurate than the latter. But our courts
of law (at least those in English-speaking countries) are devised and
organized, perhaps unfortunately, on the principle that testimony not
apparently deduced by the syllogistic method from the observation of
relevant fact is valueless, and hence woman at the very outset is
placed at a disadvantage and her usefulness as a probative force sadly
crippled.

The good old lady who takes the witness-chair and swears that she knows
the prisoner took her purse has perhaps quite as good a basis for her
opinion and her testimony (even though she cannot give a single reason
for her belief and becomes hopelessly confused on cross-examination) as
the man who reaches the same conclusion ostensibly by virtue of having
seen the defendant near by, observed his hand reaching for the purse,
and then perceived him take to his heels. She has never been taught to
reason and has really never found it necessary, having wandered through
life by inference or, more frankly, by guesswork, until she is no
longer able to point out the simplest stages of her most ordinary mental
processes.

As the reader is already aware, the value of all honestly given
testimony depends first upon the witness's original capacity to observe
the facts; second upon his ability to remember what he has seen and not
to confuse knowledge with imagination, belief or custom, and lastly,
upon his power to express what he has, in fact, seen and remembers.

Women do not differ from men in their original capacity to observe,
which is a quality developed by the training and environment of the
individual. It is in the second class of the witness's limitations that
women as a whole are more likely to trip than men, for they are prone to
swear to circumstances as facts, of their own knowledge, simply because
they confuse what they have really observed with what they believe
did occur or should have occurred, or with what they are convinced did
happen simply because it was accustomed to happen in the past.

Perhaps the best illustration of the female habit of swearing that facts
occurred because they usually occurred, was exhibited in the
Twitchell murder trial in Philadelphia, cited in Wellman's "Art of
Cross-Examination." The defendant had killed his wife with a blackjack,
and having dragged her body into the back yard, carefully unbolted the
gate leading to the adjacent alley and, retiring to the house, went to
bed. His purpose was to create the impression that she had been murdered
by some one from outside the premises. To carry out the suggestion, he
bent a poker and left it lying near the body smeared with blood. In the
morning the servant girl found her mistress and ran shrieking into the
street.

At the trial she swore positively that she was first obliged to unbolt
the door in order to get out. Nothing could shake her testimony, and she
thus unconsciously negatived the entire value of the defendant's adroit
precautions. He was justly convicted, although upon absolutely erroneous
testimony.

The old English lawyers occasionally rejected the evidence of women
on the ground that they are "frail." But the exclusion of women as
witnesses in the old days was not for psychological reasons, nor did
it originate from a critical study of the probative value of their
testimony.

Though the conclusions to which women frequently jump may usually be
shown by careful interrogation to be founded upon observation of actual
fact, their habit of stating inferences often leads them to claim
knowledge of the impossible--"wiser in [their] own conceit than seven
men that can render a reason."

In a very recent case where a clever thief had been convicted of looting
various apartments in New York City of over eighty thousand dollars'
worth of jewelry, the female owners were summoned to identify their
property. The writer believes that in every instance these ladies were
absolutely ingenuous and intended to tell the absolute truth. Each and
every one positively identified various of the loose stones found in the
possession of the prisoner as her own. This was the case even when the
diamonds, emeralds and pearls had no distinguishing marks at all. It
was a human impossibility actually to identify any such objects, and yet
these eminently respectable and intelligent gentlewomen swore positively
that they could recognize their jewels. They drew the inference merely
that as the prisoner had stolen similar jewels from them these must be
the actual ones which they had lost, an inference very likely correct,
but valueless in a tribunal of justice.

Where their inferences are questioned, women, as a rule, are much
more ready to "swear their testimony through" than men. They are so
accustomed to act upon inference that, finding themselves unable to
substantiate their assertion by any sufficient reason, they become
irritated, "show fight," and seek refuge in prevarication. Had they not,
during their entire lives, been accustomed to mental short-cuts, they
would be spared the humiliation of seeing their evidence "stricken from
the record."

One of the ladies referred to testified as follows:

"Can you identify that diamond?"

"I am quite sure that it is mine:"

"How do you know?"

"It looks exactly like it."

"But may it not be a similar one and not your own?"

"No; it is mine."

"But how? It has no marks."

"I don't care. I know it is mine. I SWEAR IT IS!"

The good lady supposed that, unless she swore to the fact, she might
lose her jewel, which was, of course, not the case at all, as the sworn
testimony founded upon nothing but inference left her in no better
position than she was in before.

The writer regrets to say that observation would lead him to believe
that women as a rule have somewhat less regard for the spirit of their
oaths than men, and that they are more ready, if it be necessary, to
commit perjury. This may arise from the fact that women are fully aware
that their sex protects them from the same severity of cross-examination
to which men would be subjected under similar circumstances. It is today
fatal to a lawyer's case if he be not invariably gentle and courteous
with a female witness, and this is true even if she be a veritable
Sapphira.

In spite of these limitations, which, of course, affect the testimony
of almost every person, irrespective of sex, women, with the possible
exception of children, make the most remarkable witnesses to be found
in the courts. They are almost invariably quick and positive in their
answers, keenly alive to the dramatic possibilities of the situation,
and with an unerring instinct for a trap or compromising admission.

A woman will inevitably couple with a categorical answer to a question,
if in truth she can be induced to give one at all, a statement of
damaging character to her opponent. For example:

"Do you know the defendant?"

"Yes, to my cost!"

Or

"How old are you?"

"Twenty-three,--old enough to have known better than to trust him."

Forced to make an admission which would seem to hurt her position, the
explanation, instead of being left for the re-direct examination of her
own counsel, is instantly added to her answer then and there.

"Do you admit that you were on Forty-second Street at midnight?"

"Yes. But it was in response to a message sent by the defendant through
his cousin."

What is commonly known as "silent cross-examination" is generally the
most effective. The jury realize the difficulties of the situation for
the lawyer, and are not unlikely to sympathize with him, unless he makes
bold to attack the witness, when they quickly chance their attitude.

One question, and that as to the witness's means of livelihood, is often
sufficient.

"How do you support yourself?"

"I am a lady of leisure!" replies the witness (arrayed in flamboyant
colors) snappishly.

"That will do, thank you," remarks the lawyer with a smile. "You may
step down."

The writer remembers being nicely hoisted by his own petard on a similar
occasion:

"What do you do for a living?" he asked.

The witness, a rather deceptively arrayed woman, turned upon him with a
glance of contempt:

"I am a respectable married woman, with seven children," she retorted.
"I do nothing for a living except cook, wash, scrub, make beds, clean
windows, mend my children's clothes, mind the baby, teach the four
oldest their lessons, take care of my husband, and try to get enough
sleep to be up by five in the morning. I guess if some lawyers worked
as hard as I do they would have sense enough not to ask impertinent
questions."

An amusing incident is recorded of how a feminine witness turned the
laugh upon Mr. Francis L. Wellman, the noted cross-examiner. In his
book he takes the opportunity to advise his lawyer readers to "avoid the
mistake, so common among the inexperienced, of making much of trifling
discrepancies. It has been aptly said," he continues, "that 'juries
have no respect for small triumphs over a witness's self-possession or
memory!' Allow the loquacious witness to talk on; he will be sure
to involve himself in difficulties from which he can never extricate
himself. Some witnesses prove altogether too much; encourage them and
lead them by degrees into exaggerations that will conflict with the
common-sense of the jury."

Mr. Wellman is famous for following this precept himself and, with one
eye significantly cast upon the jury, is likely to lead his witness
a merry dance until the latter is finally "bogged" in a quagmire of
absurdities. Not long ago, shortly after the publication of his book,
the lawyer had occasion to cross-examine a modest-looking young woman as
to the speed of an electric car. The witness seemed conscious that she
was about to undergo a severe ordeal, and Mr. Wellman, feeling himself
complete master of the situation, began in his most winsome and
deprecating manner:

"And how fast, Miss, would you say the car was going?"

"I really could not tell exactly, Mr. Wellman."

"Would you say that it was going at ten miles an hour?"

"Oh, fully that!"

"Twenty miles an hour?"

"Yes, I should say it was going twenty miles an hour."

"Will you say it was going thirty miles an hour?" inquired Wellman with
a glance at the jury.

"Why, yes, I will say that it was."

"Will you say it was going forty?"

"Yes."

"Fifty?"

"Yes, I will say so."

"Seventy?"

"Yes."

"Eighty?"

"Yes," responded the young lady with a countenance absolutely devoid of
expression.

"A hundred?" inquired the lawyer with a thrill of eager triumph in his
voice.

There was a significant hush in the court-room Then the witness, with
a patient smile and a slight lifting of her pretty eyebrows, remarked
quietly:

"Mr. Wellman, don't you think we have carried our little joke far
enough?"

There is no witness in the world more difficult to cope with than a
shrewd old woman who apes stupidity, only to reiterate the gist of her
testimony in such incisive fashion as to leave it indelibly imprinted
on the minds of the jury. The lawyer is bound by every law of decency,
policy and manners to treat the aged dame with the utmost consideration.
He must allow her to ramble on discursively in defiance of every rule
of law and evidence in answer to the simplest question; must receive
imperturbably the opinions and speculations upon every subject of both
herself and (through her) of her neighbors; only to find when he thinks
she must be exhausted by her own volubility, that she is ready, at the
slightest opportunity, to break away again into a tangle of guesswork
and hearsay, interwoven with conclusions and ejaculation. Woe be unto
him if he has not sense enough to waive her off the stand! He might
as well try to harness a Valkyrie as to restrain a pugnacious old
Irishwoman who is intent on getting the whole business before the jury
in her own way.

In the recent case of Gustav Dinser, convicted of murder, a vigorous old
lady took the stand and testified forcibly against the accused. She
was as "smart as paint," as the saying goes, and resolutely refused to
answer any questions put to her by counsel for the defence. Instead,
she would raise her voice and make a savage onslaught upon the prisoner,
rehearsing his brutal treatment of the deceased on previous occasions,
and getting in the most damaging testimony.

"Do you say, Mrs.--" the lawyer would inquire deferentially, "that you
heard the sound of three blows?"

"Oh, thim blows!" the old lady would cry--"thim turrible blows! I could
hear the villain as he laid thim on! I could hear the poor, pitiful
groans av her, and she so sufferin'! 'Twas awful! Howly Saints,'twould
make yer blood run cowld!"

"Stop! stop!" exclaimed the lawyer.

"Ah, stop is it? Ye can't stop me till Oi've had me say to tell the
whole truth. I says to me daughter Ellen, says I: 'Th' horrid baste
is afther murtherin' the poor thing,' says I; 'run out an' git an
officer!'"

"I object to all this!" shouts the lawyer.

"Ah, ye objec', do ye?" retorts the old lady. "Shure an' ye'd have been
after objectin' if ye'd heard thim turrible blows that kilt her--the
poor, sufferin', swate crayter! I hope he gits all that's comin' to
him--bad cess to him for a blood-thirsty divil!"

The lawyer ignominiously abandoned the attack.

The writer recalls a somewhat similar instance, but one even better
exhibiting the cleverness of an old woman, which occurred in the year
1901. A man named Orlando J. Hackett, of prepossessing appearance and
manners, was on trial, charged with converting to his own use
money which had been intrusted to him for investment in realty. The
complainant was a shrewd old lady, who together with her daughter, had
had a long series of transactions with Hackett which would have entirely
confused the issue could the defence have brought them before the jury.
The whole contention of the prosecution was that Hackett had received
the money for one purpose and used it for another. During preparation
for the trial the writer had had both ladies in his office and remembers
making the remark:

"Now, Mrs. ------, don't forget that the charge here is that you
gave Mr. Hackett the money to put into real estate. Nothing else is
comparatively of much importance."

"Be sure and remember that, mother," the daughter had admonished her.

In the course of a month the case came on for trial before Recorder
Goff, in Part II of the General Sessions. Mrs. ------ gave her
testimony with great positiveness. Mr. Lewis Stuyvesant Chanler, now
Lieutenant-Governor of the State, arose to cross-examine her.

"Madam," he began courteously, "you say you gave the defendant money?"

"I told him to put it into real estate, and he said he would!" replied
Mrs. firmly.

"I did not ask you that, Mrs. ------," politely interjected Mr. Chanler.
"How much did you give him?"

"I told him to put it into real estate, and he said he would!" repeated
the old lady wearily.

"But, madam, you do not answer my question!" exclaimed Chanler. "How
much did you give him?"

"I told him to put it into real--" began the old lady again.

"Yes, yes!" cried the lawyer; "we know that! Answer the question."

"estate, and he said he would!" finished the old woman innocently.

"If your Honor please, I will excuse the witness. And I move that her
answers be stricken out!" cried Chanler savagely.

The old lady was assisted from the stand, but as she made her way
with difficulty towards the door of the court-room she could be heard
repeating stubbornly:

"I told him to put it into real estate, and he said he would!"

Almost needless to say, Hackett was convicted and sentenced to seven
years in State's prison.

To recapitulate, the quickness and positiveness of women make them
ordinarily better witnesses than men; they are vastly more difficult to
cross-examine; their sex protects them from many of the most effective
weapons of the lawyer, with the result that they are the more ready to
yield to prevarication; and, even where the possibility of complete
and unrestricted cross-examination is afforded, their tendency to
inaccurately inferential reasoning, and their elusiveness in dodging
from one conclusion to another, render the opportunity of little value.

In general, however, women's testimony differs little in quality
from that of men, all testimony being subject to the same three great
limitations irrespective of the sex of the witness, and the conclusions
set forth above are merely the result of an effort on the part of the
writer to comment somewhat upon those small differences which, under
close scrutiny, may fairly be said to exist. These differences are quite
as noticeable at the breakfast-table as in the court-room; and are
no more patent to the advocate than to the ordinary male animal whose
forehead habitually reddens when he hears the unanswerable reason which,
in default of all others, explains and glorifies the mental action of
his wife, sister or mother: "Just because!"


AS COMPLAINANTS AND DEFENDANTS

The ratio of women to men indicted and tried for crime is, roughly,
about one to ten. Could adequate statistics be procured, the proportion
of female to male complainants in criminal cases would very likely prove
to be about the same: In a very substantial proportion, therefore, of
all prosecutions for crime a woman is one of the chief actors. The law
of the land compels the female prisoner to submit the question of
her guilt or innocence to twelve individuals of the opposite sex; and
permits the female complainant to rehearse the story of her wrongs
before the same collection of colossal intellects and adamantine hearts.

The first thing the ordinary woman hastens to do if she be summoned to
appear in a court of justice is not, as might be expected, to think over
her testimony or try to recall facts obliterated or confused by time,
but to buy a new hat; and precisely the same thing is true of the female
defendant called to the bar of justice, whether it be for stealing a
pair of gloves or poisoning her lover.

Yet how far does the element of sex defeat the ends of justice? To
answer this question it is necessary to determine how far juries are
liable to favor the testimony of a woman plaintiff merely because she
is a woman, and how far sympathy for a woman arraigned as a prisoner is
likely to warp their judgment.

As to the first, it is fairly safe to say that a woman is much more
likely to win a verdict in a civil court or to persuade the jury
that the prisoner is guilty in a criminal case than a man would be in
precisely similar circumstances. In most criminal prosecutions for the
ordinary run of felonies little injustice is likely to result from this.
There is one exception, however, where juries should reach conclusions
with extreme caution, namely, where certain charges are brought by women
against members of the opposite sex.

Here the jury is apt to leap to a conclusion, rendered easy by the
attractiveness of the witness and the feeling that the defendant is a
"cur anyway," and ought to be "sent up."

The difficulty of determining, even in one's office, the true character
of a plausible woman is enhanced tenfold in the court-room, where the
lawyer is generally compelled to proceed upon the assumption that the
witness is a person of irreproachable life and antecedents. Almost any
young woman may create a favorable impression, provided her taste in
dress be not too crude, and, even when it is so, the jury are not apt to
distinguish carefully between that which cries to Heaven and that which
is merely "elegant."

When the complaining witness is a woman who has merely lost money
through the acts of the defendant, the jury are not so readily moved
to accept her story in toto as when the crime charged is of a different
character. They realize that the complainant, feeling that she has been
injured, may be inclined to color her testimony, perhaps unconsciously,
until the wrong becomes a crime.

An ordinary example of this variety of prosecution is where the witness
is a young woman from the East Side, usually a Polish or Russian Jewess,
who charges the defendant, a youth of about her own age, with stealing
her money by means of false pretences. They have been engaged to be
married, and she has turned over her small savings to him to purchase
the diamond ring and perhaps set him up in a modest business of his
own. He has then fallen in love with some other girl, has broken the
engagement, and the ring now adorns the fourth finger of her rival. Her
money is gone. She is without a dot. She hurries with her parents
and loudly vociferating friends to the Essex Market Police Court, and
secures a warrant for the defendant on the theory that he defrauded
her by "trick and device" or "false representations." Usually the only
"representation" has been a promise to marry her. Her real motive is
revenge upon her faithless fiance. In nine cases out of ten the fellow
is a cad, who has deliberately deserted her after getting her money, but
it is doubtful whether any real crime is involved.

If the judge lets the case go to the jury it is a pure gamble as to
what the result will be, and it may largely turn on the girl's physical
attractiveness. If she be pretty and demure a mixture of emotions
is aroused in the jury. "He probably did love her," say the twelve,
"because any one would be likely to do so. If he did love her, of course
he didn't falsely pretend to do so; but if he deserted a woman like that
he ought to be in jail anyway." Thus the argument that ought to acquit
in fact may convict the defendant. If the rival also is pretty, hopeless
confusion results; while if the complainant be a homely girl the jury
feels that he must have intended to swindle her anyway, as he could
never have honestly intended to marry her. Thus in any case the Lothario
is apt to pay a severe penalty for his faithlessness.

The man prosecuted by a woman, provided she cannot be persuaded to
withdraw the charge against him, is likely to get but cold consideration
for his side of the story and short shrift in the jury-room. Turn about,
if he can get a young and attractive woman to swear to his alibi or good
reputation the honest masculine citizen whom he has defrauded may very
likely have to whistle for his revenge. Many a scamp has gone free by
producing some sweetly demure maiden who faithfully swears that she
knows him to be an honest man. A blush at the psychological moment and
a wink from the lawyer is quite enough to lead the jury to believe that,
if they acquit the defendant, they will "make the young lady happy,"
whereas if he is convicted she will remain for aye a heart-broken
spinster. Like enough she may be only the merest acquaintance.

The writer is not likely to forget a distinguished lawyer's instructions
to his client who happened also to be a childhood acquaintance--as she
was about to go into court as the plaintiff in a suit for damages:

"I would fold my hands in my lap, Gwendolyn--yes, like that--and be
calm, very calm. And, Gwendolyn, above all things, be demure, Gwendolyn!
Be demure!"

Gwendolyn was the demurest of the demure, letting her eyes fall beneath
their pendant black lashes at the conclusion of each answer, and won her
case without the slightest difficulty.

The unconscious or conscious influence of women upon the intellects
of jurymen has given rise to a very prevalent impression that it is
difficult if not impossible successfully to prosecute a woman for crime.
This feeling expresses itself in general statements to the effect
that as things stand to-day a woman may commit murder with impunity.
Experience, supplemented by the official records, demonstrates, however,
that, curious as it must seem, the same sentiment aroused by a woman
supposed to have been wronged is not inspired in a jury by a woman
accused of crime. It is, indeed, true that juries are apt to be more
lenient with women than with men, but this leniency shows itself not in
acquitting them of the crimes charged against them, but of finding them
guilty in lower degrees.

Of course flagrant miscarriages of justice frequently occur, which, by
reason of their widespread publicity in the press, would seem to justify
the almost universal opinion that women are immune from the penalities
for homicide. It is also true that such miscarriages of justice are more
likely when the defendant is a woman than if he be a man.

One of these hysterical acquittals which give color to popular
impression, but which the writer believes to be an exception, was the
case of a young mother tried and acquitted for murder in the first
degree, December 22, 1904. This young woman, whose history was pathetic
in the extreme, was shown clearly by the evidence to have deliberately
taken the life of her child by giving it carbolic acid. The story was
a shocking one, yet the jury apparently never considered at all the
possibility of convicting her, but on retiring to the jury-room spent
their time in discussing how much money they should present her on her
acquittal.

No better actor ever played a part upon the court-room stage than old
"Bill" Howe. His every move and gesture was considered with reference
to its effect upon the jury, and the climax of his summing-up was always
accompanied by some dramatic exhibition calculated to arouse sympathy
for his client. Himself an adept at shedding tears at will, he seemed
able to induce them when needed in the lachrymal glands of the most
hardened culprit whom he happened to be defending.

Mr. Wellman tells the story of how he was once prosecuting a woman for
the murder of her lover, whom she had shot rather than allow him to
desert her. She was a parson's daughter who had gone wrong and there
seemed little to be said in her behalf. She sat at the bar the picture
of injured innocence, with a look of spirituality which she must have
conjured up from the storehouse of her memories of her father. Howe was
rather an exquisite so far as his personal habits were concerned, and
allowed his finger-nails to grow to an extraordinary length. He had
arranged that at the climax of his address to the jury he would turn
and, tearing away the slender hands of his client from her tear-stained
face, challenge the jury to find guilt written there. Wellman was
totally unprepared for this and a shiver ran down his spine when he saw
Howe, his face apparently surcharged with emotion, turn suddenly towards
his client and roughly thrust away her hands. As he did so he embedded
his finger-nails in her cheeks, and the girl uttered an involuntary
scream of nervous terror and pain that made the jury turn cold.

"Look, gentlemen! Look in this poor creature's face! Does she look
like a guilty woman? No! A thousand times no! Those are the tears of
innocence and shame! Send her back to her aged father to comfort his old
age! Let him clasp her in his arms and press his trembling lips to her
hollow eyes! Let him wipe away her tears and bid her sin no more!"

The jury acquitted, and Wellman, aghast, followed them downstairs to
inquire how such a thing were possible. The jurors said that they had
agreed to disclose nothing of their deliberations.

"But," explained Wellman, "you see, in a way I am your attorney, and I
want to know how to do better next time. She had offered to plead guilty
if she could get off with twenty years!"

The abashed jury slunk downstairs in silence and the secret of their
deliberations remains as yet untold.

In spite of such cases, where guilty women have been acquitted through
maudlin sentiment or in response to popular clamor, nothing could be
more erroneous than the idea that few women who are brought to the bar
of justice are made to suffer for their offences. Thus, although no
woman has suffered the death penalty in New York County in twenty years,
the average number of convictions for crime is practically the same
for women as for men in proportion to the number indicted. The last
unreversed conviction of a woman for murder in the first degree was that
of Chiara Cignarale, in May, 1887. Her sentence was commuted to life
imprisonment. Since then thirty women have been actually tried before
juries for homicide with the following results:

    Convicted of murder in first degree...........0
    Acquitted "...................................7
       "      " murder in second degree...........3
       "      " manslaughter in first degree.....10
       "      " manslaughter in seconds degree...10

     Total.......................................30


The percentage of convictions to acquittals is as follows:

            Convictions Acquittals Convictions Acquittals
                                    Per Cent    Per Cent
  1887-1907......23........7..........77..........23


It is distinctly interesting to compare this with the table showing the
results of all the homicide trials for the past eight years irrespective
of the sex of the defendants:

               Convictions Acquittals Convictions Acquittals
                                       Per Cent    Per Cent

     1900.............5.......12...........29.........71
     1901............17.......17...........50.........50
     1902............15.......11...........58.........42
     1903............24........8...........75.........25
     1904............19.......14...........58.........42
     1905............18.......13...........58.........42
     1906............21.......22...........49.........51
     1907............16.......10...........62.........38

     Total..........135......107.....Aver. 55...Aver. 45

The reader will observe that the percentage of convictions to acquittals
of women defendants averages twenty-two per cent greater than the
percentage for both sexes. A more elaborate table would show that where
the defendants are men there are a greater proportionate number
of acquittals, but more verdicts in higher degrees. A verdict of
manslaughter in the second degree in the case of a man charged with
murder is infrequent, but convictions of murder in the second degree are
exceedingly common.

The reason for the higher percentage of convictions of women is that
fewer women who commit crime are prosecuted than men, and that they are
rarely indicted unless they are clearly guilty of the degree of crime
charged against them; while practically every man who is charged with
homicide and who, it seems, may be found guilty is indicted for murder
in the first degree.

The trial of women for crime invariably arouses keen public interest,
and the dethronement of a Czar, or the assassination of an Emperor,
pales to insignificance before the prosecution of a woman for murder.
Some of this interest is fictitious and stimulated merely by the yellow
press, but a great deal of it is genuine. The writer remembers attending
a dinner of gray-headed judges and counsellors during the trial of Anna
Eliza, alias "Nan," Patterson, where one would have supposed that the
lightest subject of conversation would be not less weighty than the
constitutionality of an income tax, and finding to his astonishment that
the only topic for which they showed any zest was whether "Nan" would be
found guilty.

One of the earliest, if not the earliest, record of a woman being held
for murder is that of Agnes Archer, indicted by twelve men on April 4,
1435, sworn before the mayor and coroner to inquire as to the death
of Alice Colynbourgh. The quaint old report begins in Latin, but "the
pleadings" are set forth in the language of the day, as follows:

"Agnes Archer, is that thy name? which answered, yes.... Thou art
endyted that thou.... feloney moderiste her with a knyff fyve tymes in
the throte stekyng, throwe the wheche stekyng the saide Alys is deed....
I am not guilty of thoo dedys, ne noon of hem, God help me so.... How
wylte thou acquite the?... By God and by my neighbours of this town."

The subsequent history of Agnes is lost in obscurity, but since she had
to procure but thirty-six compurgators who were prepared to swear that
they believed her innocent, and as she was at liberty to choose these
herself from her native village of Winchelsea, it is probable that she
escaped.*



     * Cf. Thayer, as cited, supra.


Fortunately the sight of a woman, save of the very lowest class, at
the bar of justice is rare. The number of cases where women of good
environment appear as defendants in the criminal courts in the course of
a year may be numbered upon the fingers of a single hand, and, although
the number of female defendants may equal ten per cent of the total
number of males, not one-tenth of the women brought to the bar
of justice have had the benefit of an honest bringing up and good
surroundings.




CHAPTER VIII. Tricks of the Trade


"Tricks and treachery," said Benjamin Franklin, "are the practice of
fools that have not wit enough to be honest." Had the kindly philosopher
been familiar with all the exigencies of the criminal law he might have
added a qualification to this somewhat general, if indisputably moral,
maxim. Though it doubtless remains true as a guiding principle of
life that "Honesty is the best policy," it would be an unwarrantable
aspersion upon the intellectual qualities of the members of the criminal
bar to say that the tricks by virtue of which they often get their
clients off are "the practice of fools." On the contrary, observation
would seem to indicate that in many instances the wiser, or at least
the more successful, the practitioner of criminal law becomes, the more
numerous and ingenious become the "tricks" which are his stock in
trade. This must not be taken to mean that there are not high-minded and
conscientious practitioners of criminal law, many of them financially
successful, some filled with a noble humanitarian purpose, and some
drawn to their calling by a sincere enthusiasm for the vocation of the
advocate which, in these days of "business" law and commercial methods,
reaches perhaps its highest form in the criminal courts.

There are no more "tricks" practised in these tribunals than in the
civil, but they are more ingenious in conception, more lawless in
character, bolder in execution and less shamefaced in detection.

Let us not be too hard upon our brethren of the criminal branch. Truly,
their business is to "get their clients off." It is unquestionably a
generally accepted principle that it is better that ninety-nine guilty
men should escape than that one innocent man should be convicted.
However much persons of argumentative or philosophic disposition may
care to quarrel with this doctrine, they must at least admit that it
would doubtless appear to them of vital truth were they defending
some trembling client concerning whose guilt or innocence they were
themselves somewhat in doubt. "Charity believeth all things," and
the prisoner is entitled to every reasonable doubt, even from his own
lawyer. It is the lawyer's business to create such a doubt if he can,
and we must not be too censorious if, in his eagerness to raise this in
the minds of the jury, he sometimes oversteps the bounds of propriety,
appeals to popular prejudices and emotions, makes illogical deductions
from the evidence, and impugns the motives of the prosecution. The
district attorney should be able to take care of himself, handle
the evidence in logical fashion, and tear away the flimsy curtain of
sentimentality hoisted by the defence. These are hardly "tricks" at
all, but sometimes under the name of advocacy a trick is "turned" which
deserves a much harsher name.

Not long ago a celebrated case of murder was moved for trial after the
defendant's lawyer had urged him in vain to offer a plea of murder in
the second degree. A jury was summoned and, as is the usual custom in
such cases, examined separately on the "voir dire" as to their fitness
to serve. The defendant was a German, and the prosecutor succeeded
in keeping all Germans off the jury until the eleventh seat was to be
filled, when he found his peremptory challenges exhausted. Then the
lawyer for the prisoner managed to slip in a stout old Teuton,
who replied, in answer to a question as to his place of nativity,
"Schleswig-Holstein." The lawyer made a note of it, and, the box filled,
the trial proceeded with unwonted expedition.

The defendant was charged with having murdered a woman with whom he
had been intimate, and his guilt of murder in the first degree was
demonstrated upon the evidence beyond peradventure. At the conclusion of
the case, the defendant not having dared to take the stand, the lawyer
arose to address the jury in behalf of what appeared a hopeless
cause. Even the old German in the back row seemed plunged in soporific
inattention. After a few introductory remarks the lawyer raised his
voice and in heart-rending tones began:

"In the beautiful county of Schleswig-Holstein sits a woman old and
gray, waiting the message of your verdict from beyond the seas." (Number
11 opened his eyes and looked at the lawyer as if not quite sure of
what he had heard.) "There she sits" (continued the attorney), "in
Schleswig-Holstein, by her cottage window, waiting, waiting to learn
whether her boy is to be returned to her outstretched arms." (Number 11
sat up and rubbed his forehead.) "Had the woman, who so unhappily met
her death at the hands of my unfortunate client, been like those
women of Schleswig-Holstein--noble, sweet, pure, lovely women of
Schleswig-Holstein--I should have naught to say to you in his behalf."
(Number 11 leaned forward and gazed searchingly into the lawyer's face.)
"But alas, no! Schleswig-Holstein produces a virtue, a loveliness, a
nobility of its own." (Number 11 sat up and proudly expanded his chest.)

When, after about an hour or more of Schleswig-Holstein the defendant's
counsel surrendered the floor to the district attorney, the latter found
it quite impossible to secure the slightest attention from the eleventh
juror, who seemed to be spending his time in casting compassionate
glances in the direction of the prisoner. In due course the jury
retired, but had no sooner reached their room and closed the door
than the old Teuton cried, "Dot man iss not guilty!" The other eleven
wrestled with him in vain. He remained impervious to argument for
seventeen hours, declining to discuss the evidence, and muttering at
intervals, "Dot man iss not guilty!" The other eleven stood unanimously
for murder in the first degree, which was the only logical verdict that
could possibly have been returned upon the evidence.

At last, worn out with their efforts, they finally induced the old
Teuton to compromise with them on a verdict of manslaughter. Wearily
they straggled in, the old native of Schleswig-Holstein bringing up the
rear, bursting with exultation and with victory in his eye.

"Gentlemen of the jury, have you agreed upon a verdict?" inquired the
clerk.

"We have," replied the foreman.

"How say you, do you find the defendant guilty or not guilty?"

"Guilty--of manslaughter," returned the foreman feebly.

The district attorney was aghast at such a miscarriage of justice, and
the judge showed plainly by his demeanor his opinion of such a verdict.
But the old inhabitant of Schleswig-Holstein cared for this not a whit.
The old mother in Schleswig-Holstein might still clasp her son in her
arms before she died! The defendant was arraigned at the bar. Then for
the first time, and to the surprise and disgust of No. 11, he admitted
in answer to the questions of the clerk that his parents were both dead
and that he was born in Hamburg, a town for whose inhabitants the old
juryman had, like others of his compatriots, a constitutional antipathy.

The "tricks" of the trade as practised by the astute and unscrupulous
criminal lawyer vary with the stage of the case and the character of
the crime charged. They are also adapted with careful attention to the
disposition, experience and capacity of the particular district attorney
who happens to be trying the case against the defendant. An illustration
of one of these occurred during the prosecution of a bartender for
selling "spirituous liquors" without a proper license. He was defended
by an old war-horse of the criminal bar famous for his astuteness and
ability to laugh a case out of court. The assistant district attorney
who appeared against him was a young man recently appointed to office,
and who was almost overcome at the idea of trying a case against so well
known a practitioner. He had personally conducted but very few cases,
had an excessive conception of his own dignity, and dreaded nothing so
much as to appear ridiculous. Everything, except the evidence, favored
the defendant, who, however, was, beyond every doubt, guilty of the
offence charged.

The young assistant put in his case, calling his witnesses one by one,
and examining them with the most feverish anxiety lest he should forget
something. The lawyer for the defence made no cross-examination and
contented himself with smiling blandly as each witness left the stand.
The youthful prosecutor became more and more nervous. He was sure
that something was wrong, but he couldn't just make out what. At the
conclusion of the People's case the lawyer inquired, with a broad grin,
"if that was all."

The young assistant replied that it was, and that, in his opinion, it
was "quite enough."

"Let that be noted by the stenographer," remarked the lawyer. "Now, if
your Honors please," he continued, addressing the three judges of the
Special Sessions, "you all know how interested I am to see these young
lawyers growing up. I like to help 'em along--give 'em a chance--teach
'em a thing or two. I trust it may not be out of place for me to say
that I like my young friend here and think he tried his case very well.
But he has a great deal to learn. I'm always glad, as I said, to give
the boys a chance--to give 'em a little experience. I shall not put
my client upon the stand. It is not necessary. The fact is," turning
suddenly to the unfortunate assistant district attorney--"my client has
a license." He drew from his pocket a folded paper and handed it to
the paralyzed young attorney with the harsh demand: "What do you say to
that?"

The assistant took the paper in trembling fingers and perused it as well
as he could in his unnerved condition.

"Mr. District Attorney," remarked the presiding justice dryly (which did
not lessen the confusion of the young lawyer), "is this a fact? Has the
defendant a license?"

"Yes, your Honors," replied the assistant; "this paper seems to be a
license."

"Defendant discharged!" remarked the court briefly.

The prisoner stepped from the bar and rapidly disappeared though the
door of the court-room. After enough time had elapsed to give him a good
start and while another case was being called, the old lawyer leaned
over to the assistant and remarked with a chuckle

"I am always glad to give the boys a chance--help 'em along--teach 'em a
little. That license was a beer license!"


BEFORE TRIAL

To begin at the beginning, whenever a person has been arrested, charged
with crime, and has secured a criminal lawyer to defend him, the first
move of the latter is naturally to try and nip the case in the bud by
inducing the complaining witness to abandon the prosecution. In a vast
number of cases he is successful. He appeals to the charity of the
injured party, quotes a little of the Scriptures and the "Golden Rule,"
pictures the destitute condition of the defendant's family should he be
cast into prison, and the dragging of an honored name in the gutter if
he should be convicted. Few complainants have ever before appeared in a
police court, and are filled with repugnance at the rough treatment of
prisoners and the suffering which they observe upon every side. After
they have seen the prisoner emerge from the cells, pale, hollow-eyed,
bedraggled, and have beheld the tears of his wife and children as they
crowd around the husband and father, they begin to realize the horrible
consequences of a criminal prosecution and to regret that they ever took
the steps which have brought the wrong-doer where he is. The district
attorney had not yet taken up the case; the prosecution up to this point
is of a private character; there are loud promises of "restitution" and
future good behavior from the defendant, and the occasion is ripe for
the lawyer to urge the complainant to "temper justice with mercy" and
withdraw "before it be too late and the poor man be ruined forever."

If the complainant is, however, bent on bringing the defendant to
justice and remains adamantine to the arguments of the lawyer and
the tears of the defendant's family connections, it remains for the
prisoner's attorney to endeavor to get the case adjourned "until matters
can be adjusted"--to wit, restitution made if money has been stolen,
or doctors' bills paid if a head has been cracked, with perhaps another
chance of "pulling off" the complainant and his witnesses. Failing in
an attempt to secure an adjournment, two courses remain open: first, to
persuade the court that the matter is a trivial one arising out of petty
spite, is all a mistake, or that at best it is a case of "disorderly
conduct" (and thus induce the judge to "turn the case out" or inflict
some trifling punishment in the shape of a fine); or, second, if it be
clear that a real crime has been committed, to clamor for an immediate
hearing in order, if it be secured, to subject the prosecution's
witnesses to a most exhaustive cross-examination, and thus get a clear
idea of just what evidence there is against the accused.

At the conclusion of the complainant's case, if it appear reasonably
certain that the magistrate will "hold" the prisoner for the action of a
superior court, the lawyer will then "waive further examination," or,
in other words, put in no defence, preferring the certainty of having to
face a jury trial to affording in prosecution an opportunity to discover
exactly what defence will be put in and to secure evidence in advance
of the trial to rebut it. Thus it rarely happens in criminal cases of
importance that the district attorney knows what the defence is to be
until the defendant himself takes the stand, and, by "waiving further
examination" in the police court, the astute criminal attorney may
select at his leisure the defence best suited to fit in with and render
nugatory the prosecution's evidence.

The writer has frequently been told by the attorney for a defendant on
trial for crime that "the defence has not yet been decided upon."
In fact, such statements are exceedingly common. In many courts the
attitude of all parties concerned seems to be that the defendant will
put up a perjured defence (so far as his own testimony is concerned,
at any rate) as a matter of course, and that this is hardly to be taken
against him.

On the other hand, if a guilty defendant has been so badly advised as
to give his own version of the case before the magistrate in the first
instance, it requires but slight assiduity on the part of the district
attorney to secure, in the interval between the hearing and the jury
trial, ample evidence to rebut it.

As illustrating merely the fertility and resourcefulness of some
defendants (or perhaps their counsel), the writer recalls a case which
he tried in the year 1902 where the defendant, a druggist, was charged
with manslaughter in having caused the death of an infant by filling a
doctor's prescription for calomel with morphine. It so happened that two
jars containing standard pills had been standing side by side upon an
adjacent shelf, and, a prescription for morphine having come in at the
same time as that for the calomel, the druggist had carelessly filled
the morphine prescription with calomel, and the calomel prescription
with morphine. The adult for whom the morphine had been prescribed
recovered immediately under the beneficent influence of the calomel, but
the baby for whom the calomel had been ordered died from the effects
of the first morphine pill administered. All this had occurred in
1897--five years before. The remainder of the pills had disappeared.

Upon the trial (no inconsistent contention having been entered in the
police court) the prisoner's counsel introduced six separate defences,
to wit: That the prescription had been properly filled with calomel
and that the child had died from natural causes, the following being
suggested.

1. Acute gastritis.

2. Acute nephritis.

3. Cerebro-spinal meningitis.

4. Fulminating meningitis.

5. That the child had died of apomorphine, a totally distinct poison.

6. That it had received and taken calomel, but that, having eaten a
small piece of pickle shortly before, the conjunction of the vegetable
acid with the calomel had formed, in the child's stomach, a precipitate
of corrosive sublimate, from which it had died.

These were all argued with great learning. During the trial the box
containing the balance of the pills, which the defence contended were
calomel, unexpectedly turned up. It has always been one of the greatest
regrets of the writer's life that he did not then and there challenge
the defendant to eat one of the pills and thus prove the good faith of
his defence.

This was one of the very rare cases where a chemical analysis has been
conducted in open court. The chemist first tested a standard trade
morphine pill with sulphuric acid, so that the jury could personally
observe the various color reactions for themselves. He then took one of
the contested pills and subjected it to the same test. The first pill
had at once turned to a brilliant rose, but the contested pill, being
antiquated, "hung fire," as it were, for some seconds. As nothing
occurred, dismay made itself evident on the face of the prosecutor,
and for a moment he felt that all was lost. Then the five-year-old pill
slowly turned to a faint brown, changed to a yellowish red, and finally
broke into an ardent rose. The jury settled back into their seats with
an audible "Ah!" and the defendant was convicted.

Let us return, however, to that point in the proceedings where the
defendant has been "held for trial" by the magistrate. The prisoner's
counsel now endeavors to convince the district attorney that "there
is nothing in the case," and continues unremittingly to work upon the
feelings of the complainant. If he finds that his labors are likely
to be fruitless in both directions, he may now seek an opportunity to
secure permission for his client to appear before the grand jury and
explain away, if possible, the charge against him.

We will assume, however, that, in spite of the assiduity of his lawyer,
the prisoner has at last been indicted and is awaiting trial. What
can be done about it? Of course, if the case could be indefinitely
adjourned, the complainant or his chief witness might die or move
away to some other jurisdiction, and if the indictment could
be "pigeon-holed" the case might die a natural death of itself.
Indictments, however, in New York County, whatever may be the case
elsewhere, are no longer "pigeon-holed," and they cannot be adequately
"lost," since certified copies are made of each. The next step,
therefore, is to secure as long a time as possible before trial.

Usually a prisoner has nothing to lose and everything to gain by delay,
and the excuses offered for adjournment are often ingenious in the
extreme. The writer knows one criminal attorney who, if driven to the
wall in the matter of excuses, will always serenely announce the death
of a near relative and the obligation devolving upon him to attend the
funeral. Another, as a last resort, regularly is attacked in open court
by severe cramps in the stomach. If the court insists on the trial
proceeding, he invariably recovers. Of course, there are many legitimate
reasons for adjourning cases which the prosecution is powerless to
combat.

The most effective method invoked to secure delay, and one which it
is practically useless for the district attorney to oppose, is an
application "to take testimony" upon commission in some distant place.
Here again it must be borne in mind that such applications are often
legitimate and proper and should be granted in simple justice to the
defendant. Although this right to take the testimony of absent witnesses
is confined in New York State to the defendant and does not extend to
the prosecution, and is undoubtedly often the subject of much abuse, it
not infrequently is the cause of saving an innocent man.

An example of this was the case of William H. Ellis, recently brought
into the public eye through his connection with the treaty between
the United States Government and King Menelik of Abyssinia. Ellis was
accused in 1901 by a young woman of apparently excellent antecedents
and character of a serious crime. Prior to his indictment a colored man
employed in his office (the alleged scene of the crime) disappeared.
When the case was moved for trial, Ellis, through his attorneys, moved
for a commission to take the testimony of this absent, but clearly
material, witness in one of the remote States of Mexico--a proceeding
which would require a journey of some two weeks on muleback, beyond
the railway terminus. The district attorney, in view of the peculiarly
opportune disappearance of this person from the jurisdiction,
strenuously opposed the application and hinted at collusion between
Ellis and the witness. The application, however, was granted, and a
delay of over a month ensued. During that time evidence was procured by
the counsel of the prisoner showing conclusively that the complaining
witness was mentally unsound and had made similar and groundless charges
against others. The indictment was at once dismissed.

But such delays are not always so righteously employed. There is a story
told of a case where a notorious character was charged with the unusual
crime of "mayhem"--biting off another man's finger. The defendant's
counsel secured adjournment after adjournment--no one knew why. At last
the case was moved for trial and the prosecution put in its evidence,
clearly showing the guilt of the prisoner. At the conclusion of the
People's testimony, the lawyer for the defendant arose and harshly
stigmatized the story of the complainant as a "pack of lies."

"I will prove to you in a moment, gentlemen," exclaimed he to the jury,
"how absurd is this charge against my innocent client. Take the stand!"

The prisoner arose and walked to the witnesschair.

"Open your mouth!" shouted the lawyer.

The defendant did so. He had not a tooth in his head. The delay had been
advantageously employed.

The importance of mere delay to a guilty defendant cannot well be
overestimated. "You never can tell what may happen to knock a case on
the head." For this reason a sufficiently paid and properly equipped
counsel will run the whole gamut of criminal procedure, and:

1. Demur to the indictment.

2. Move for an inspection of the minutes of the proceedings before the
grand jury.

3. Move to dismiss the indictment for lack of sufficient evidence before
that body.

4. Move for a commission to take testimony.

5. Move for a change of venue.

6. Secure, where possible, a writ of habeas corpus and a stay of
proceedings from some federal judge on the ground that his client is
confined without due process of law.

All these steps he will take seriatim, and some cases have been
delayed for as much as two years by merely invoking "legitimate" legal
processes. In point of fact it is quite possible for any defendant
absolutely to prevent an immediate trial provided he has the services of
vigilant counsel, for these are not the only proceedings of which he can
avail himself.

A totally distinct method is for the defendant to secure bail, and,
after securing as many adjournments as possible, simply flee the
jurisdiction. He will then remain away until the case is hopelessly
stale, or he no longer fears prosecution.

In default of all else he may go "insane" just before the case is moved
for trial. This habit of the criminal rich when brought to book for
their misdeeds is too well known to require comment. All that is
necessary is for a sufficient number of "expert" alienists to declare
it to be their opinion that the defendant is mentally incapable of
understanding the proceedings against him or of preparing his defence,
and he is shifted off to a "sanitarium" until some new sensation
occupies the public mind and his offences are partially forgotten.

In this way justice is often thwarted and the law cheated of its victim,
but unless fortune favors him, sooner or later the indicted man must
return for trial and submit the charge against him to a jury. But if
this happens, even if he be guilty, all hope need not be lost. There are
still "tricks of the trade" which may save him from the clutches of the
law.

AT THE TRIAL

What can be done when at last the prisoner who has fought presistently
for adjournment has been forced to face the witnesses against him and
submit the evidence to a jury of peers? Let us assume further that
he has been "out on bail," with plenty of opportunity to prepare his
defence and lay his plans for escape.

When the case is finally called and the defendant takes his seat at the
bar after a lapse of anywhere from six months to a year or more after
his arrest, the first question for the district attorney to investigate
is whether or no the person presenting himself for trial be in point
of fact the individual mentioned in the indictment. This is often
a difficult matter to determine. "Ringers"--particularly in the
magistrates' courts--are by no means unknown. Sometimes they appear even
in the higher courts. If the defendant be an ex-convict or a well-known
crook, his photograph and measurements will speedily remove all doubt
upon the subject, but if he be a foreigner (particularly a Pole, Italian
or a Chinaman), or even merely one of the homogeneous inhabitants of
the densely-populated East Side of New York, it is sometimes a puzzling
problem. "Mock Duck," the celebrated Highbinder of Chinatown, who was
set free after two lengthy trials for murder, was charged not long ago
with a second assassination. He was pointed out to the police by various
Chinamen, arrested and brought into the Criminal Courts building for
identification, but for a long time it was a matter of uncertainty
whether friends of his (masquerading as enemies) had not surrendered a
substitute. Luckily the assistant district attorney who had prosecuted
this wily and dangerous Celestial in the first instance was able to
identify him.

Many years ago, during the days of Fernando Wood, a connection of his
was reputed to be the power behind the "policy" business in New York
City--the predecessor of the notorious Al Adams. A "runner" belonging
to the system having been arrested and policy slips having been found
in his possession, the reigning Policy King retained a lawyer of eminent
respectability to see what could be done about it. The defendant was a
particularly valuable man in the business and one for whom his employer
desired to do everything in his power. The lawyer advised the defendant
to plead guilty, provided the judge could be induced to let him off with
a fine, which the policy King agreed to pay. Accordingly, the lawyer
visited the judge in his chambers and the latter practically promised
to inflict only a fine in case the defendant, whom we will call, out
of consideration for his memory, "Johnny Dough," should plead guilty.
Unfortunately for this very satisfactory arrangement, the judge, now
long since deceased, was afflicted with a serious mental trouble which
occasionally manifested itself in peculiar losses of memory. When
"Johnny Dough," the Policy King's favorite, was arraigned at the bar
and, in answer to the clerk's interrogation, stated that he withdrew his
plea of "not guilty" and now stood ready to plead "guilty," the judge,
to the surprise and consternation of the lawyer, the defendant, and the
latter's assembled friends, turned upon him and exclaimed:

"Ha! So you plead guilty, do you? Well, I sentence you to the
penitentiary for one year, you miserable scoundrel!"

Utterly overwhelmed, "Johnny Dough!" was led away, while his lawyer and
relatives retired to the corridor to express their opinion of the court.
About three months later the lawyer, who had heard nothing further
concerning the case, happened to be in the office of the district
attorney, when the latter looked up with a smile and inquired:

"Well, how's your client-Mr. Dough?"

"Safe on the Island, I suppose," replied the lawyer,

"Not a bit of it," returned the district attorney. "He never went
there."

"What do you mean?" inquired the lawyer. "I heard him sentenced to a
year myself!"

"I can't help that," said the district attorney. "The other day a
workingman went down to the Island to see his old friend 'Johnny Dough.'
There was only one 'Johnny Dough' on the lists, but when he was produced
the visitor exclaimed: 'That Johnny Dough! That ain't him at all, at
all!' The visitor departed in disgust. We instituted an investigation
and found that the man at the Island was a 'ringer.'"

"You don't say!" cried the lawyer.

"Yes," continued the district attorney. "But that is not the best part
of it. You see, the 'ringer' says he was to get two hundred dollars per
month for each month of Dough's sentence which he served. The prison
authorities have refused to keep him any longer, and now he is suing
them for damages, and is trying to get a writ of mandamus to compel them
to take him back and let him serve out the rest of the sentence!"

Probably the most successful instance on record of making use of a
dummy occurred in the early stages of the now famous Morse-Dodge divorce
tangle. Dodge had been the first husband of Mrs. Morse, and from him
she had secured a divorce. A proceeding to effect the annulment of her
second marriage had been begun on the ground that Dodge had never been
legally served with the papers in the original divorce case--in other
words, to establish the fact that she was still, in spite of her
marriage to Morse, the wife of Dodge. Dodge appeared in New York and
swore that he had never been served with any papers. A well-known and
reputable lawyer, on the other hand, Mr. Sweetser, was prepared to swear
that he had served them personally upon Dodge himself. The matter was
sent by the court to a referee. At the hour set for the hearing in
the referee's office, Messrs. Hummel and Steinhardt arrived early, in
company with a third person, and took their seats with their backs to a
window on one side of the table, at the head of which sat the referee,
and opposite ex-Judge Fursman, attorney for Mrs. Morse. Mr. Sweetser was
late. Presently he appeared, entered the office hurriedly, bowed to
the referee, apologized for being tardy, greeted Messrs. Steinhardt and
Hummel, and then, turning to their companion, exclaimed: "How do you do,
Mr. Dodge?" It was not Dodge at all, but an acquaintance of one of Howe
& Hummel's office force who had been asked to accommodate them. Nothing
had been said, no representations had been made, and Sweetser had
voluntarily walked into a trap.

The attempt to induce witnesses to identify "dummies" is frequently
made by both sides in criminal cases, and under certain circumstances
is generally regarded as professional. Of course, in such instances no
false suggestions are made, the witness himself being relied upon to
"drop the fall." In case he does identify the wrong person, he has, of
course, invalidated his entire testimony.

Not in one case out of five hundred, however, is any attempt made
to substitute a "dummy" for the real defendant, the reason being,
presumably, the prejudice innocent people have against going to prison
even for a large reward. The question resolves itself, therefore, into
how to get the client off when he is actually on trial. First, how can
the sympathies of the jury be enlisted at the very start? Weeping wives
and wailing infants are a drug on the market. It is a friendless man
indeed, even if he be a bachelor, who cannot procure for the purposes of
his trial the services of a temporary wife and miscellaneous collection
of children. Not that he need swear that they are his! They are
merely lined up along a bench well to the front of the court-room--the
imagination of the juryman does the rest.

A defendant's counsel always endeavors to impress the jury with the idea
that all he wants is a fair, open trial--and that he has nothing in the
world to conceal. This usually takes the form of a loud announcement
that he is willing "to take the first twelve men who enter the box."
Inasmuch as the defence needs only to secure the vote of one juryman to
procure a disagreement, this offer is a comparatively safe one for the
defendant to make, since the prosecutor, who must secure unanimity on
the part of the jury (at least in New York State), can afford to take no
chances of letting an incompetent or otherwise unfit talesman slip into
the box. Caution requires him to examine the jury in every important
case, and frequently this ruse on the part of the defendant makes it
appear as if the State had less confidence in its case than the defence.
This trick was invariably used by the late William F. Howe in all
homicide cases where he appeared for the defence.

The next step is to slip some juryman into the box who is likely for any
one of a thousand reasons to lean toward the defence--as, for example,
one who is of the same religion, nationality or even name as the
defendant. The writer once tried a case where the defendant was a Hebrew
named Bauman, charged with perjury. Mr. Abraham Levy was the counsel for
the defendant. Having left an associate to select the jury the writer
returned to the courtroom to find that his friend had chosen for foreman
a Hebrew named Abraham Levy. Needless to say, a disagreement of the jury
was the almost inevitable result. The same lawyer not many years ago
defended a client named Abraham Levy. In like manner he managed to get
an Abraham Levy on the jury, and on that occasion succeeded in getting
his client off scot-free.

No method is too far-fetched to be made use of on the chance of
"catching" some stray talesman. In a case defended by Ambrose Hal.
Purdy, where the deceased had been wantonly stabbed to death by a
blood-thirsty Italian shortly after the assassination of President
McKinley, the defence was interposed that a quarrel had arisen between
the two men owing to the fact that the deceased had loudly proclaimed
anarchistic doctrines and openly gloried in the death of the President,
that the defendant had expostulated with him, whereupon the deceased had
violently attacked the prisoner, who had killed him in self-defence.

The whole thing was so thin as to deceive nobody, but Mr. Purdy, as
each talesman took the witness-chair to be examined on the voir dire,
solemnly asked each one:

"Pardon me for asking such a question at this time--it is only my duty
to my unfortunate client that impels me to it--but have you any sympathy
with anarchy or with assassination?"

The talesman, of course, inevitably replied in the negative.

"Thank you, sir," Purdy would continue: "In that event you are entirely
acceptable!"

Not long ago two shrewd Irish attorneys were engaged in defending a
client charged with an atrocious murder. The defendant had the most
Hebraic cast of countenance imaginable, and a beard that reached to
his waist. Practically the only question which these lawyers put to the
different talesmen during the selection of the jury was, "Have you any
prejudice against the defendant on account of his race?" In due course
they succeeded in getting several Hebrews upon the jury who managed in
the jury-room to argue the verdict down from murder to manslaughter in
the second degree. As the defendant was being taken across the bridge to
the Tombs he fell on his knees and offered up a heartfelt prayer such as
could only have emanated from the lips of a devout Roman Catholic.

Lawyers frequently secure the good-will of jurors (which may last
throughout the trial and show itself in the verdict) by some happy
remark during the early stages of the case. During the Clancy murder
trial each side exhausted its thirty peremptory challenges and also the
entire panel of jurors in filling the box. At this stage of the case the
foreman became ill and had to be excused. No jurors were left except one
who had been excused by mutual consent for some trifling reason, and
who out of curiosity had remained in court. He rejoiced in the name of
Stone. Both sides then agreed to accept him as foreman provided he was
still willing to serve, and this proving to be the case he triumphantly
made his way towards the box. As he did so, the defendant's counsel
remarked: "The Stone which the builders refused is become the head Stone
of the corner." The good-will generated by this meagre jest stood him
later in excellent stead.

In default of any other defence, some criminal attorneys have been known
to seek to excite sympathy for their helpless clients by appearing in
court so intoxicated as to be manifestly unable to take care of the
defendant's interests, and prisoners have frequently been acquitted
simply by virtue of their lawyer's obvious incapacity. The attitude
of the jury in such cases seems to be that the defendant has not had a
"fair show" and so should be acquitted anyway. Of course, this appeals
to the juryman's sympathies and he overlooks the fact that by his action
the prosecution is given no "show" at all.

Generally speaking, the advice credited to Mr. Lincoln, as being given
by him to a young attorney who was about to defend a presumably guilty
client, is religiously followed by all criminal practitioners:

"Well, my boy, if you've got a good case, stick to the evidence; if
you've got a weak one, go for the People's witnesses; but--if you've got
no case at all, hammer the district attorney!"

As a rule, however, criminal lawyers are not in a position to "hammer"
the prosecuting officer, but endeavor instead to suggest by innuendo or
even open declaration his bias and unfairness.

"Be fair, Mr.--!" is the continual cry. "Try to be fair!"

The defendant, whether he be an ex-convict or thirty-year-old
professional thief, is always "this poor boy," and, as he is not
compelled by law to testify, and as his failure to do so must not be
weighed against him by the jury, he frequently walks out of court a free
man, because the jury believe from the lawyer's remarks that he is in
fact a mere youthful offender of hitherto good reputation and deserves
another chance.

By all odds the greatest abuse in criminal trials lies in the open
disregard of professional ethics on the part of lawyers who deliberately
supply of themselves, in their opening and closing addresses to the
jury, what incompetent bits of evidence, true or false, they have not
been able to establish by their witnesses. There is no complete cure for
this, for even if the judge rebukes the lawyer and directs the jury to
disregard what he has said as "not being in the evidence," the damage
has been done, the statement still lingering in the jury's mind without
any opportunity on the part of the prosecutor to disprove it. There is
no antidote for such jury-poison. A shyster lawyer need but to keep his
client off the stand and he can saturate the jury's mind with any
facts concerning the defendant's respectability and history which
his imagination is powerful enough to supply. On such occasions an
ex-convict with no relatives may become a "noble fellow, who, rather
than have his family name tainted by being connected with a criminal
trial, is willing to risk even conviction"--"a veteran of the glorious
war which knocked the shackles from the slave"--"the father of nine
children"--"a man hounded by the police." The district attorney may
shout himself hoarse, the judge may pound his gavel in righteous
indignation, the lawyer may apologize because in the zeal with which
he feels inspired for his client's cause he perhaps (which only makes
matters worse) has overstepped the mark--but some juryman may suppose
that, after all, the prisoner is a hero or nine times a father.

There is one notorious attorney who poses as a philanthropist and who
invariably promises the jury that if they acquit his client he will
personally give him employment. If he has kept half of his promises
he must by this time have several hundred clerks, gardeners, coachmen,
choremen and valets.

In like manner attorneys of this feather will deliberately state to the
jury that if the defendant had taken the stand he would have testified
thus and so; or that if certain witnesses who have not appeared (and who
perhaps in reality do not exist at all) had testified they would
have established various facts. Such lawyers should be locked up or
disbarred; courts are powerless to negative entirely their dishonesty in
individual cases.

Clever counsel, of course, habitually make use of all sorts of appeals
to sympathy and prejudice. In one case in New York in which James W.
Osborne appeared as prosecutor the defendant wore a G.A.R. button. His
lawyer managed to get a veteran on the jury. Mr. Osborne is a native of
North Carolina. The defendant's counsel, to use his own words, "worked
the war for all it was worth," and the defendant lived, bled and died
for his country and over and over again. In summing up the case, the
attorney addressed himself particularly to the veteran on the back row,
and, after referring to numerous imaginary engagements, exclaimed: "Why,
gentlemen, my client was pouring out his life blood upon the field
of battle when the ancestors of Mr. Osborne were raising their hands
against the flag!" For once Mr. Osborne had no adequate words to reply.

By far the most effective and dangerous "trick" employed by guilty
defendants is the deliberate shouldering of the entire blame by one of
two persons who are indicted together for a single offence. A common
example of this is where two men are caught at the same time bearing
away between them the spoil of their crime and are jointly indicted
for "criminally receiving stolen property." Both, probably, are "side
partners," equally guilty, and have burglarized some house or store in
each other's company. They maybe old pals and often have served time
together. They agree to demand separate trials, and that whoever is
convicted first shall assume the entire responsibility. Accordingly, A.
is tried and, in spite of his asseveration that he is innocent and that
the "stuff" was given him by a strange man, who paid him a dollar to
transport it to a certain place, is properly convicted.* The bargain
holds. B.'s case is moved for trial and he claims never to have seen
A. in his life before the night in question, and that he volunteered to
help the latter carry a bundle which seemed to be too heavy for him. He
calls A., who testifies that this is so--that B., whom he did not know
from Adam, tendered his services and that he availed himself of the
offer. The jury are usually prone to acquit, as the weight of evidence
is clearly with the defendant.


     * The defence that the accused innocently received the stolen property
into his possession was a familiar one even in 1697, as appears by the
following record taken from the Minutes of the Sessions. It would seem
that it was even then received with some incredulity.

CITY & COUNTY OF NEW YORK: ss:

At a Meeting of the Justices of the Peace for the said City & County at
the City Hall of the said City on Thursday the 10th day of June Anno Dom
1697.

PRESENT.                William Morrott \   Esquires
                James Graham    /      quorum

               Jacobus Cortlandt \  Esquires
               Grandt Schuylor    }     Justices
               Leonard Lowie     /  of the Peace

Jacobus Cortlandt, Esq., one of his Majestys justices of the peace for
ye said City and County Informed the Kings justices that a peace of
Linnen Ticking was taken out of his Shop this Morning. That he was
informed a Negro Slave Named Joe was seen to take the same whereupon the
said Jacobus Van Cortlandt Pursued the said, Joe and apprehended him and
found the said peice of ticking in his custody and had the said Negro
Joe penned in the cage, upon which the said Negro man being brought
before the said Justices said he did not take the said ticking out of
the Shop window but that a Boy gave itt to him, but upon Examination of
Sundry other Evidence itt Manifestly Appeareth to the said Justices that
the said Negro man Named Joe, did steal the said piece of linnen ticking
out of the Shop Window of the said Jacobus Van Cortlandt and thereupon
doe order the punishment of the said Negro as follows vigt. That the
said Negro man Slave Named Joe shall be forthwith by the Common whipper
of the City or some of the Sheriffs officers art the Cage be stripped
Naked from the Middle upwards and then and there shall be tyed to the
tayle of a Cart and being soe stripped and tyed shah be Drove Round the
City and Receive upon his naked body art the Corner of each Street nine
lashes until he return to the place from whence he sett out and that he
afterwards Stand Committed to the Sheriffs custody till he pay his fees.


Many changes are rung upon this device. There is said to have been a
case in which the defendant was convicted of murder in the first degree
and sentenced to be executed. It was one of circumstantial evidence and
the verdict was the result of hours of deliberation on the part of the
jury. The prisoner had stoutly denied knowing anything of the homicide.
Shortly before the date set for the execution, another man turned up who
admitted that he had committed the crime and made the fullest sort of
a confession. A new trial was thereupon granted by the Appellate Court,
and the convict, on the application of the prosecuting attorney, was
discharged and quickly made himself scarce. It then developed that apart
from the prisoner's own confession there was practically nothing
to connect him with the crime. Under a statute making such evidence
obligatory in order to render a confession sufficient for a conviction,
the prisoner had to be discharged.

In the case of Mabel Parker, a young woman of twenty, charged with
the forgery of a large number of checks, many of them for substantial
amounts, her husband made an almost successful attempt to procure her
acquittal by means of a new variation of the old game. Mrs. Parker,
after her husband had been arrested for passing one of the bogus checks,
had been duped by a detective into believing that the latter was a
fellow criminal who was interested in securing Parker's release. In
due course she took this supposed friend into her confidence, made a
complete confession, and illustrated her skill by impromptu copies of
her forgeries from memory upon a sheet of pad paper. This the detective
secured and then arrested her. She was indicted for forging the name
Alice Kauser to a check upon the Lincoln National Bank. On her trial
she denied having done so, and claimed that the detective had found the
sheet containing her supposed handwriting in her husband's desk, and
that she had written none of the alleged copies upon it. The door of the
courtroom then opened, and James Parker was led to the bar and pleaded
guilty to the forgery of the check in question. (For the benefit of the
layman it should be explained that as a rule indictments for forgery
also contain a count for "uttering.") He then took the stand, admitted
that he had not only uttered but had also written the check, and swore
that it was his handwriting which, appeared on the pad.

The prosecutor was nonplussed. If he should ask the witness to prove
his capacity to forge such a check from memory on the witness-stand, the
latter, as he had ample time to practise the signature while in prison,
would probably succeed in doing so. If, on the other hand, he should not
ask him to write the name, the defendant's counsel would argue to the
jury that he was afraid to do so. The district attorney therefore took
the bull by the horns and challenged Parker to make from memory a copy
of the signature, and, much as he had suspected, the witness produced
a very good one. An acquittal seemed certain, and the prosecutor was
at his wit's end to devise a means to meet this practical demonstration
that the husband was in fact the forger. At last it was suggested to him
that it would be comparatively easy to memorize such a signature, and
acting on this hint he found that after half an hour's practice he was
able to make almost as good a forgery as Parker. When therefore it came
time for him to address the jury he pointed out the fact that Parker's
performance on the witness-stand really established nothing at all--that
any one could forge such a signature from memory after but a few
minutes' practice.

"To prove to you how easily this can be done," said he, "I will
volunteer to write a better Kauser signature than Parker did."

He thereupon seized a pen and began to demonstrate his ability to do so.
Mrs. Parker, seeing the force of this ocular demonstration, grasped her
counsel's arm and cried out: "For God's sake, don't let him do it!" The
lawyer objected, the objection was sustained, but the case was saved.
Why, the jury argued, should the lawyer object unless the making of such
a forgery were in fact an easy matter?

In desperate cases, desperate men will take desperate chances. The
traditional instance where the lawyer, defending a client charged with
causing the death of another by administering poisoned cake, met the
evidence of the prosecution's experts with the remark: "This is my
answer to their testimony!" and calmly ate the balance of the cake, is
too familiar to warrant detailed repetition. The jury retired to the
jury-room and the lawyer to his office, where a stomach pump quickly put
him out of danger. The jury is supposed to have acquitted.

Such are some of the tricks of the legal trade as practised in its
criminal branch. Most of them are unsuccessful and serve only to relieve
the gray monotony of the courts. When they achieve their object they add
to the interest of the profession and teach the prosecutor a lesson by
which, perhaps, he may profit in the future.




CHAPTER IX. What Fosters Crime


To lack of regard for law is mainly due the existence of crime, for a
perfect respect for law would involve entire obedience to it. Yet crime
continues and from time to time breaks forth to such an extent as
to give ground for a popular impression that it is increasing out
of proportion to our growth as a nation. Now, while it may be fairly
questioned whether there is any actual increase of crime in the United
States, and while, on the contrary, observation would seem to show
an actual decrease, not only in crimes of violence, but in all major
crimes, there nevertheless exists to-day a widespread contempt for the
criminal law which, if it has not already stimulated a general increase
of criminal activity, is likely to do so in the future. This contempt
for the law is founded not only upon actual conditions, but also upon
belief in conditions erroneously supposed to exist, which is fostered by
current literature and by the sensational press.

Thus, as has already been pointed out, while it is popularly believed
that women are almost never convicted of crime, and particularly of
homicide, the fact is, at least in New York County, that a much greater
proportion of women charged with murder are convicted than of men
charged with the same offence. To read the newspapers one would suppose
that the mere fact that the defendant was a female instantly paralyzed
the minds of the jury and reduced them to a state of imbecility. The
inevitable result of this must be to encourage lawlessness among the
lower orders of women and to lead them to look upon arrest as a mere
formality without ultimate significance. The writer recalls trying for
murder a negress who had shot her lover not long after the discharge of
a notorious female defendant in a recent spectacular trial in New York.
When asked why she had killed him she replied:

"Oh, Nan Patterson did it and got off."

This is not offered as a reflection upon the failure of the jury
to reach a verdict in the Patterson case, but as an illuminating
illustration of the concrete and immediate effect of all actual or
supposed failures of justice.

A belief that the course of criminal justice is slow and uncertain, that
the chances are all in favor of the defendant, and that he has but
to resort to technicalities to secure not only indefinite delay but
generally ultimate freedom, breeds an indifference amounting almost to
arrogance among law-breakers, powerful and otherwise, and a painful yet
hopeless conviction among honest men that nothing can prevent the wicked
from flourishing. Honesty seems no longer even a good policy, and
the young business man resorts to sharp practices to get ahead of his
unscrupulous competitor. In some localities the uncertainty and delay
attendant upon the execution of the law is the alleged and maybe
the actual, cause of the community crime of lynching. Even where the
administration of justice is seen at its best many people who have been
wronged believe that there is so little likelihood that the offender
will after all be punished that the cheapest and easiest course is to
let the matter drop. All this gives aid and comfort to the powers of
darkness.

The widespread impression as to the uncertainty of the law is not
entirely a misapprehension. "We have long since passed the period when
it is possible to punish an innocent man. We are now struggling with the
problem whether it is any longer possible to punish the guilty." It is
a melancholy fact that at the present time "penal statutes and procedure
tend more to defeat and retard the ends of justice than to protect the
rights of the accused."

The subject of criminal-law reform is too extensive to be discussed
here even superficially, but historically the explanation of existing
conditions is simple enough. The present overgrown state of the criminal
law is the direct result of our exaggerated regard for personal liberty,
coupled with a wholesale adoption of the technicalities of English law
invented when only such technicalities could stand between the minor
offender and the barbarous punishments of a bygone age. We forget that
the community is composed of individuals, and we tend to disregard its
interests for those of any particular individual who happens to be a
prisoner at the bar. We revolted from England and incidentally from her
system of administering the criminal law, by which the defendant could
have no voice at his own trial, where practically every crime was
punishable with death, and where only the Crown could produce and
examine witnesses. Every one will have to agree that the English system
was very harsh and very unfair indeed. To-day it is better than ours,
simply because its errors have been systematically and wisely corrected,
without diminution in the national respect for law. When we devised our
own system we adopted those humane expedients for evading the law which
were only justified by the existing penalties attached to convictions
for crime,--and then discarded the penalties. We were through with
tyrants once and for all. The Crown had always been opposed to the
defendant and the Crown was a tyrant. We naturally turned with sympathy
towards the prisoner.

We gave him the right of appeal on all matters of law through all the
courts of our States, and even into the courts of the United States,
while we allowed the People no right of appeal at all. If the prisoner
was convicted he could go on and test the case all along the line,--if
he was acquitted the People had to rest satisfied. We stopped the mouth
of the judge and made it illegal for him to "sum up" the case or discuss
the facts to any extent. We clipped the wings of the prosecutor and
allowed him less latitude of expression than an English judge. Then we
gazed on the work of our intellects and said it was good. If an ignorant
jury acquitted a murderer under the eyes of a gagged and helpless judge,
we said that it was all right and that it was better that ninety-nine
guilty men should escape than that one innocent man should be convicted.
Yes, better for whom? If another murderer, about whose guilt the highest
court in one of the States said there was no possible doubt, secured
three new trials and was finally acquitted on the fourth, it merely
demonstrated how perfectly we safeguarded the rights of the individual.

The result is that we have unnecessarily fettered ourselves, have
furnished a multitude of technical avenues of escape to wrong-doers,
and have created a popular contempt for courts of justice, which shows
itself in the sentimental and careless verdicts of juries, in a lack
of public spirit, and in an indisposition to prosecute wrong-doers. In
addition, the impression sought to be conveyed by the yellow press
that our judiciary is corrupt and that money can buy anything--even
justice--leads the jury in many cases to feel that their presence is
merely a formal concession to an archaic procedure and that their oaths
have no real significance.

The community, the "People," have a sufficiently hard task to secure
justice at any criminal trial. On the one hand is the abstract
proposition that the law has been violated, on the other sits a human
being, ofttimes contrite, always an object of pity. He is presumed
innocent, he is to be given the benefit of every reasonable doubt. He
has the right to make his own powerful appeal to the jury and to have
the services of the best lawyer he can secure to sway their emotions
and their sympathies. If the prosecutor resorts to eloquence he is
stigmatized as "over-zealous" and as a "persecutor." If a plainly guilty
defendant be acquitted, not the trampled ideal of justice, but the
vision of a liberated prisoner rejoicing in his freedom hovers in the
talesman's dreams.

So far so good; we can afford to stand by a system which in the long run
has served us fairly well. But an occasional evil, an evil which when
it occurs is productive of great harm and serves to give color to the
popular opinion of criminal law, begins only when the lawyers have had
their opportunity for elocution. At the conclusion of the charge
the defendant's attorney proceeds to put the judge through what is
familiarly known as "a course of sprouts." He makes twenty or thirty
"requests to charge the jury" on the most abstract propositions of law
which his fertile mind can devise,--relevant or irrelevant, applicable
or inapplicable to the facts,--and the judge is compelled to decide
from the bench, without opportunity for reflection, questions which the
attorney has labored upon, perchance, for weeks. If he guesses wrong,
the lawyer "excepts" and the case may be reversed on appeal. This is not
a test of the defendant's guilt or innocence, but a test of the abstract
learning and quickness of the presiding judge.

It is generally believed that appellate courts are prone to reverse
criminal cases on purely technical grounds. Whether this belief be well
founded or ill, its wide acceptance as fact is fertile in bringing the
law into disrepute.* Justice to be effective must be not only sure but
swift. An "iron hand" cannot always compensate for a "leaden heel".



     *Cf. "Criminal Law Reform," G.W. Alger, "The Outlook," June, 1907. Also
article having same title in "Moral Overstrain," by same author.
See also, by Hon. C.F. Amidon, "The Quest for Error and the doing of
Justice," 40 American Law Rev. 681, and article on same subject in "The
Outlook" for June, 1906.


It is probably true that in some of the States such a tendency exists
and may result in making the administration of justice a laughing stock,
but it is far from being so in States of the character of New York and
Massachusetts. The Appellate Division, First Department, and Court of
Appeals in New York are distinctly opposed to reversing criminal cases
on technical grounds and are prone to disregard trivial error where
the guilt of the defendant is clear. The writer can recall no recent
criminal case where the district attorney's office has felt aggrieved at
the action of the higher courts, and on the contrary believes that
their action is generally based on broad principles of public policy and
common-sense.

During the year 1905 the district attorney of New York County defended
forty-seven appeals from convictions in criminal cases in the Appellate
Division. Of these convictions only three were reversed. He defended
eighteen in the Court of Appeals, of which only two were reversed. One
of the writer's associates computed that he had secured, during a four
years' term of office, twenty-nine convictions in which appeals had been
taken. Of these but two were reversed, one of them immediately resulting
in the defendant's re-conviction for the same crime. The other is still
pending and the defendant awaiting his trial. Certainly there is little
in the actual figures to give color to the impression that the criminal
profits by mere technicalities on appeal,--at least in New York State.

In nine cases out of ten the reversal of a conviction in a criminal case
is due to the carelessness or inefficiency of the prosecuting officer or
trial judge and not to any inadequacy in our methods of procedure.
Yet the tenth case, the case where the criminal does beat the law by a
technicality, does more harm than can easily be estimated. That is the
one case everybody knows about, the one the papers descant upon, the one
that cheers the heart of the grafter and every criminal who can afford
to pay a lawyer.

Yet the evil influence of the reversal of a conviction on appeal,
however much it is to be deprecated, is as nothing compared with a
deliberate acquittal of a guilty defendant by a reckless, sentimental,
or lawless jury. Few can appreciate as does a prosecutor the actual,
practical and immediate effect of such a spectacle upon those who
witness it.

Two men were seen to enter an empty dwelling-house in the dead of night.
The alarm was given by a watchman near by, and a young police officer,
who had been but seven months on the force, bravely entered the black
and deserted building, searched it from roof to cellar, and found the
marauders locked in one of the rooms. He called upon them to open,
received no reply, yet without hesitation and without knowing what the
consequences to himself might be, smashed in the door and apprehended
the two men. One was found with a large bundle of skeleton keys in his
pocket and several candles, while a partially consumed candle lay
upon the floor. In the police court they pleaded guilty to a charge of
burglary, and were promptly indicted by the grand jury.

At the trial they claimed to have gone into the house to sleep, said
they had found the bunch of keys on the stairs, denied having the
candles at all or that they were in a room on the top story, and
asserted that they were in the entrance hall when arrested.

The story told by the defendants was so utterly ridiculous that one of
the two could not control a grin while giving his version of it on the
witness stand. The writer, who prosecuted the case, regarded the trial
as a mere formality and hardly felt that it was necessary to sum up the
evidence at all.

Imagine his surprise when an intelligent-looking jury acquitted both the
defendants after practically no deliberation. Both had offered to plead
guilty to a slightly lower degree of crime before the case was moved for
trial.

These two defendants, who were neither insane nor degenerates, consorted
with others in Bowery hotels and saloons,--incubators of crime. What
effect could such a performance have upon them and their friends save to
inculcate a belief that they were licensed to commit as many burglaries
as they chose? They had a practical demonstration that the law was "no
good" and the system a failure. If they could beat a case in which they
had already pleaded guilty, what could they not do where the evidence
was less obvious? They were henceforth immune. Who shall say how many
embryonic law-breakers took courage at the story and started upon an
experimental attempt at crime?

The news of such an acquittal must instantly have been carried to the
Tombs, where every other guilty prisoner took heart and prepared anew
his defence. Those about to plead guilty and throw themselves upon
the mercy of the court abandoned their honest purpose and devised some
perjury instead. Criminals almost persuaded that honesty was the best
policy changed their minds. The barometer of crime swung its needle from
"stormy" to "fair."

But apart from the law-breakers consider the effect of such a
miscarriage of justice upon a young, honest and zealous officer. First,
all his good work, his bravery, his conscientious effort at safeguarding
the sleeping public had been disregarded, tossed aside with a sneer,
and had gone for naught. The jury had stamped his story as a lie and
stigmatized him, by their action, as a perjurer. They had chosen two
professional criminals as better men. His whole conduct of the case
instead of being commended as meritorious had resulted in a solemn
public declaration that he was not worthy of credence and that he had
attempted wilfully to railroad to State's prison two innocent men. In
other words, that he ought to be there himself. What was the use of
trying to do good work any longer? He might just as well loiter in
an area on a barrel and smoke a furtive cigar when he ought to be
"on post." Perhaps he might better "stand in" with those who would
inevitably be preferred to him by a jury of their peers.

What must have been the effect on the court officers, the witnesses, the
defendants out on bail, the complainants, the spectators? That the whole
business was nonsense and rot! That the jury system was ridiculous. That
the jurymen were either crooks or fools. That the only people who were
not insulted and sneered at were the lawbreakers themselves. That if two
such rogues were to be set free all the other jailbirds might as well
be let go. That an honest man could whistle for his justice and might
better straightway put on his hat and go home. That the only way to
punish a criminal was to punish him yourself--kill him if you got the
chance or get the crowd to lynch him. That if a thief stole from you
the shrewdest thing to do was to induce him as a set-off to give you the
proceeds of his next thieving. That it was humiliating to live in a town
where a self-confessed rascal could snap his fingers at the law and go
unwhipped of justice.

The jury's action must have been due either to a wilful disregard of
their oath or an entire misconception of it. Assuming that the jury
deliberately declined to obey the law, the whole twelve elected
to become, and thereby did become, lawbreakers. They disqualified
themselves forever as talesmen. No prosecutor in his senses would move
a case before a jury which numbered any one of them. They had arraigned
themselves upon the side, and under the standard, of crime. They became
accessories after the fact. If on the other hand they misconceived the
purpose for which they were there the performance was a shocking example
of what is possible under present conditions.

Just as there are three general classes of wrongs, so there are three
general and varyingly effective forms of restraint against their
perpetration. First there is the moral control exerted by what is
ordinarily called conscience, secondly there is the restraint which
arises out of the apprehension that the commission of a tort will be
followed by a judgment for damages in a civil court, and lastly there
is the restraint imposed by the criminal law. All these play their part,
separately or in conjunction. For some men conscience is a sufficient
barrier to crime or to those acts which, while equally reprehensible,
are not technically criminal; for others the possibility of pecuniary
loss is enough to keep them in the straight and narrow way; but for a
large proportion of the community the fear of criminal prosecution,
with implied disgrace and ignominy, forfeiture of citizenship, and
confinement in a common jail is about the only conclusive reason for
doing unto others as they would the others should do unto them. Were
the criminal law done away with in our present state of civilization,
religion, ethics and civil procedure would be absolutely inefficacious
to prevent anarchy. It is as imperative to the ordinary citizen to know
that if he steals he will be locked up as it is for the child to know
that if he puts his hand into the fire it will be burned. The acquittal
of every thief breeds another, and the unpunished murder is an incentive
for a dozen similar homicides.

Crimes are either deliberate or the result of accident or impulse. The
last class may rise to a high degree of enormity, such as manslaughter,
but these crimes are rarely possible of restraint. The perpetrator
does not stop to consider, even if he be sober enough to think at all,
whether his act be moral, whether it will entail any civil liability, or
what will be its consequences, if it be a crime. So far as such acts
are concerned those who commit them are hardly criminals in the ordinary
sense, and no influence in the world is able to prevent them.

The question is how far these different kinds of restraint operate upon
the community as a whole in the prevention of deliberate crime. Clearly
the fear of pecuniary loss through actions brought to judgment in the
civil courts is practically nil. Most persons who set out to commit
crime have no bank account, the absence of one being generally what
leads them into a criminal career.

The writer has no intention of attempting to discuss or estimate the
efficacy of religion or ethics as restraining influences. A certain
limited proportion of the community would not commit crime under any
circumstances. It is enough for them that the act is forbidden by the
State even if it be not really wrong from their own personal point of
view. Side by side with these very good people are a very large number
who wear just as fashionable clothing, have the same friends, attend
the same churches, but who would commit almost any crime so long as they
were sure of not being caught. If we had no criminal law we should soon
discover who were the hypocrites.

But for an overwhelming majority of the community something more
practical than either religion, ethics, or philosophy is necessary to
keep them in order. They must be convinced that the transgressor will
surely be punished,--not some time, not next year or the year after, but
now. Not, moreover, that his way will be merely hard; but that he will
be put in stripes and made to break stones.

Hence the necessity for a vigorous and adequate criminal law and
procedure which shall command the respect and loyalty of the community,
administered by a fearless judiciary who will hold jurors to a rigid and
conscientious obedience to their oath.

There is nothing sacred about an archaic criminal procedure which in
some respects is less devised for the protection of the community than
for the exculpation of the guilty. The portals of liberty would not
fall down or the framers of the constitution turn in their graves if the
peremptory challenges allowed to both sides in the selection of a jury
were reduced to a reasonable number, or if persons found guilty of crime
after due process of law were compelled to stay in jail until their
appeals were decided, instead of walking the streets free as air under
a certificate of "reasonable doubt" issued by some judge who personally
knew nothing of the actual trial of the case. As things stand to-day, a
thief caught in the very act of picking a pocket in the night-time may
challenge arbitrarily the twenty most intelligent talesmen called to sit
as jurors in his case. Does such a practice make for justice? It is
even possible that the sacred bird of liberty would not scream if eleven
jurors, instead of twelve, were permitted to convict a defendant or set
him free, while the question of how far the right of appeal in criminal
cases might properly be limited or, in default of such limitation, how
far under certain conditions it might be correspondingly extended to the
community, is by no means purely academic.* It is also conceivable
that some means might be found to do away with the interminable
technicalities which can now be interposed on behalf of the accused to
prevent trials or the infliction of sentence after conviction.



     * "Limitation of the Right of Appeal in Criminal Cases," by Nathan A.
Smythe, 17 Harvard Law Rev. 317 (1905).


Yet these considerations are of slight moment in contrast to that most
crying of all present abuses,--the domination of the court-room by the
press.* It is no fiction to say that in many cases the actual trial is
conducted in the columns of yellow journals and the defendant acquitted
or convicted purely in accordance with an "editorial policy." Judges,
jurors, and attorneys are caricatured and flouted. There is no evidence,
how ever incompetent, improper, or prejudicial to either side, excluded
by the judge in a court of criminal justice, that is not deliberately
thrust under the noses of the jury in flaring letters of red or purple
the moment they leave the court-room. The judge may charge one way in
accordance with the law of the land, while the editor charges the same
jury in double-leaded paragraphs with what "unwritten" law may best
suit the owner of his conscience and his pen. "Contempt of court" in
its original significance is something known today only to the reader of
text books.**



     *Cf. "Sensational Journalism and the Law," in "Moral Overstrain," by
G.W. Alger.



     **By the New York Penal Code section 143, an editor is only guilty of
contempt of court (a misdemeanor) if he publishes "a false or grossly
inaccurate report" of its proceedings. The most insidious, dangerous,
offensive and prejudicial matter spread broadcast by the daily press
does not relate to actual trials at all, but to matters entirely
outside the record, such as what certain witnesses of either side could
establish were they available, the "real" past and character of the
defendant, etc. The New York Courts, under the present statute, are
powerless to prevent this abuse. In Massachusetts half a dozen of our
principal editors and "special writers" would have been locked up long
ago to the betterment of the community and to the increase of respect
for our courts of justice.

Each State has its own particular problem to face, but ultimately the
question is a national one. Lack of respect for law is characteristic
of the American people as a whole. Until we acquire a vastly increased
sense of civic duty we should not complain that crime is increasing
or the law ineffective. It would be a most excellent thing for an
association of our leading citizens to interest itself in criminal-law
reform and demand and secure the passage of new and effective
legislation, but it would accomplish little if its individual members
continued to evade jury service and left their most important duty to
those least qualified by education or experience to perform.* It would
serve some of this class of reformers right, if one day, when after a
life-time of evasion, they perchance came to be tried by a jury of their
peers, they should find that among their twelve judges there was not one
who could read or write the English language with accuracy and that all
were ready to convict anybody because he lived in a brown-stone front.



     *"The Citizen and the Jury," in "Moral Overstrain," by G.W. Alger.


Merchants, who in return for a larger possible restitution habitually
compound felonies by tacitly agreeing not to prosecute those who have
defrauded them, have no right to complain because juries acquit the
offenders whom they finally decide it to be worth their while to pursue.
The voter who has not the courage to insist that hypocritical laws
should be wiped from the statute books should express no surprise when
juries refuse to convict those who violate them. The man who perjures
himself to escape his taxes has no right to expect that his fellow
citizens are going to place a higher value upon an oath than he.




CHAPTER X. Insanity and the Law


Harry Kendall Thaw shot and killed Stanford White on the 25th day of
June, 1905. Although most of the Coroner's jury which first sat upon
the case considered him irrational, he was committed to the Tombs and,
having been indicted for murder, remained there over six months pending
his trial. During that time it was a matter of common knowledge that his
defence was to be that he was insane at the time of the shooting, but as
under the New York law it is not necessary specifically to enter a plea
of insanity to the indictment in order to take advantage of that defence
(which may be proven under the general plea of "not guilty"), there was
nothing officially on record to indicate this purpose. Neither was it
possible for the District Attorney to secure any evidence of Thaw's
mental condition, since he positively refused either to talk to the
prosecutor's medical representatives or to allow himself to be examined
by them. Mr. Jerome therefore was compelled to enter upon an elaborate
and expensive preparation of the case, not only upon its merits, but
upon the possible question of the criminal irresponsibility of the
defendant.

The case was moved in January, 1906, and the defence thereupon proceeded
to introduce a limited amount of testimony tending to show that Thaw was
insane when he did the shooting. While much of this evidence commended
itself but little to either the prosecutor or the jury, it was
sufficient to raise grave doubt as to whether the accused was a fit
subject for trial. The District Attorney's experts united in the opinion
that, while he knew that he was doing wrong when he shot White, he was,
nevertheless, the victim of a hopeless progressive form of insanity
called dementia praecox. In the midst of the trial, therefore, Mr.
Jerome moved for a commission to examine into the question of how far
Thaw was capable of understanding the nature of the proceedings against
him and consulting with counsel, and frankly expressed his personal
opinion in open court that Thaw was no more a proper subject for trial
than a baby. A commission was appointed which reported the prisoner was
sane enough to be tried, and the case then proceeded at great length
with the surprising result that, in spite of the District Attorney's
earlier declaration that he believed Thaw to be insane, the jury
disagreed as to his criminal responsibility, a substantial number voting
for conviction. Of course, logically, they would have been obliged
either to acquit entirely on the ground of insanity or convict of murder
in the first degree, but several voted for murder in the second degree.

A year now elapsed, during which equally elaborate preparations were
made for a second trial. The State had already spent some $25,000, and
yet its experts had never had the slightest opportunity to examine or
interrogate the defendant, for the latter had not taken the stand at the
first trial. The District Attorney still remained on record as having
declared Thaw to be insane, and his own experts were committed to the
same proposition, yet his official duty compelled him to prosecute the
defendant a second time. The first prosecution had occupied months and
delayed the trial of hundreds of other prisoners, and the next bid fair
to the do same. But at this second trial the defence introduced
enough testimony within two days to satisfy the public at large of the
unbalanced mental condition of the defendant from boyhood.

After a comparatively short period of deliberation the jury acquitted
the prisoner "on the ground of insanity," which may have meant either
one of two things: (a) that they had a reasonable doubt in their own
minds that Thew knew that he was doing wrong when he committed the
murder--something hard for the layman to believe, or (b) that, realizing
that he was undoubtedly the victim of mental disease, they refused to
follow the strict legal test.

Nearly two years had elapsed since the homicide; over a hundred thousand
dollars had been spent upon the case; every corner of the community had
been deluged with detailed accounts of unspeakable filth and depravity;
the moral tone of society had been depressed; and the only element which
had profited by this whole lamentable and unnecessary proceeding had
been the sensational press. Yet the sole reason for it all was that
the law of the land in respect to insane persons accused of crime was
hopelessly out of date.

The question of how far persons who are victims of diseased mind shall
be held criminally responsible for their acts has vexed judges, jurors,
doctors, and lawyers for the last hundred years. During that time, in
spite of the fact that the law has lagged far behind science in the
march of progress, we have blundered along expecting our juries to reach
substantial justice by dealing with each individual accused as most
appeals to their enlightened common sense.

And the fact that they have obeyed their common sense rather than the
law is the only reason why our present antiquated and unsatisfactory
test of who shall be and who shall not be held "responsible" in the
eyes of the law remains untouched upon the statute-books. Because its
inadequacy is so apparent, and because no experienced person seriously
expects juries to apply it consistently, it fairly deserves first place
in any discussion of present problems.

Thanks to human sympathy, the law governing insanity has had
comparatively few victims, but the fact remains that more than one
irresponsible insane man has swung miserably from the scaffold. But
"hard cases" do more than "make bad law," they make lawlessness. A
statute systematically violated is worse than no statute at all, and
exactly in so far as we secure a sort of justice by evading the law as
it stands, we make a laughing-stock of our procedure.

The law is, simply, that any person is to be held criminally responsible
for a deed unless he was at the time laboring under such a defect of
reason as not to know the nature and quality of his act and that it was
wrong.

This doctrine first took concrete form in 1843, when, after a person
named McNaughten, who had shot and killed a certain Mr. Drummond
under an insane delusion that the latter was Sir Robert Peel, had been
acquitted, there was such popular uneasiness over the question of what
constituted criminal responsibility that the House of Lords submitted
four questions to the fifteen judges of England asking for an opinion
on the law governing responsibility for offences committed by persons
afflicted with certain forms of insanity. It is unnecessary to set
forth at length these questions, but it is enough to say that the judges
formulated the foregoing rule as containing the issue which should
be submitted to the jury in such cases.*


     * The questions propounded to the judges and their answers are here
given:


Question 1.--"What is the law respecting alleged crimes committed
by persons afflicted with insane delusion in respect of one or more
particular subjects or persons, as, for instance, where, at the time
of the commission of the alleged crime, the accused knew he was acting
contrary to law, but did the act complained of with a view, under the
influence of insane delusion, of redressing or revenging some supposed
grievance or injury, or of producing some supposed public benefit?

Answer 1.-"Assuming that your lordships' inquiries are confined to those
persons who labor under such partial delusions only, and are not in
other respects insane, we are of opinion that, notwithstanding the
accused did the act complained of with a view, under the influence of
insane delusion, of redressing or revenging some supposed grievance
or injury, or of producing some public benefit, he is, nevertheless,
punishable, according to the nature of the crime committed, if he knew
at the time of committing such crime that he was acting contrary to law,
by which expression we understand your lordships to mean the law of the
land.

Question 4:--"If a person under an insane delusion as to existing facts
commits an offence in consequence thereof, is he thereby excused?

Answer 4.--"The answer must of course depend on the nature of the
delusion; but, making the same assumption as we did before, namely, that
he labors under such partial delusion only, and is not in other respects
insane, we think he must be considered in the same situation as to
responsibility as if the facts with respect to which the delusions
exist were real. For example, if under the influence of his delusion
he supposes another man to be in the act of attempting to take away his
life, and kills the man, as he supposes in self-defence, he would
be exempt from punishment. If his delusion was that the deceased had
inflicted a serious injury to his character and fortune, and he
killed him in revenge for such supposed injury, he would be liable to
punishment.

Question 2.--"What are the proper questions to be submitted to the jury
when a person, afflicted with insane delusions respecting one or more
particular subjects or persons, is charged with the commission of a
crime (murder, for instance), and insanity is set up as a defence?

Question 3.--"In what terms ought the question to be left to the jury as
to the prisoner's state of mind when the act was committed?

Answers 2 and 3.--"As these two questions appear to us to be more
conveniently answered together, we submit our opinion to be that the
jurors ought to be told, in all cases, that every man is presumed to be
sane, and to possess a sufficient degree of reason to be responsible
for his crimes, until the contrary be proved to their satisfaction;
and that, to establish a defence on the ground of insanity it must be
clearly proved that at the time of committing the act the accused was
laboring under such a defect of reason, from disease of the mind, as not
to know the nature and quality of the act he was doing, or, if he
did know it, that he did not know he was doing what was wrong." (The
remainder of the answer goes on to discuss the usual way the question
is put to the jury.)

Now, with that commendable reverence for judicial utterance which is so
characteristic of the English nation, and is so conspicuously absent
in our own country, it was assumed until recently that this solemn
pronunciamento was the last word on the question of criminal
responsibility and settled the matter once and forever. Barristers and
legislators did not trouble themselves particularly over the fact that
in 1843 the study of mental disease was in its infancy, and judges,
including those of England, probably knew even less about the subject
than they do now. In 1843 it was supposed that insanity, save of the
sort that was obviously maniacal, necessitated "delusions," and unless a
man had these delusions no one regarded him as insane. In the words of a
certain well-known judge:

"The true criterion, the true test of the absence or presence of
insanity, I take to be the absence or presence of what, used in
a certain sense of it, is comprisable in a single term, namely,
delusion.... In short, I look on delusion .... and insanity to be
almost, if not altogether, convertible terms."*



     * Dew vs. Clark.


This in a certain broad sense, probably not intended by the judge who
made the statement, is nearly true, but, unfortunately, is not entirely
so.

The dense ignorance surrounding mental disease and the barbarous
treatment of the insane within a century are facts familiar to
everybody. Lunatics were supposed to be afflicted with demons or devils
which took possession of them as retribution for their sins, and
in addition to the hopelessly or maniacally insane, medical science
recognized only a so-called "partial" or delusionary insanity. Today it
would be regarded about as comprehensive to relate all mental diseases
to the old-fashioned "delusion" as to regard as insane only those who
frothed at the mouth.

But the particular individual out of whose case in 1843 arose the rule
that is in 1908 applied to all defendants indiscriminately was the
victim of a clearly defined insane delusion, and the four questions
answered by the judges of England relate only to persons who are
"afflicted with insane delusions in respect to one or more particular
subjects or persons." Nothing is said about insane persons without
delusions, or about persons with general delusions, and the judges limit
their answers even further by making them apply "to those persons who
labor under such partial delusion only and are not in other respects
insane"--a medical impossibility.

Modern authorities agree that a man cannot have insane delusions and not
be in other respects insane, for it is mental derangement which is the
cause of the delusion.

In the first place, therefore, a fundamental conception of the judges
in answering the questions was probably fallacious, and in the second,
although the test they offered was distinctly limited to persons
"afflicted with insane delusions," it has ever since been applied to all
insane persons irrespective of their symptoms.

Finally, whether the judges knew anything about insanity or not, and
whether in their answers they weighed their words very carefully or not,
the test as they laid it down is by no means clear from a medical or
even legal point of view.

Was the accused laboring under such a defect of reason as not to know
the nature and quality of the act he was doing, or not to know that it
was wrong? What did these judges mean by know?

What does the reader mean by know? What does the ordinary juryman mean
by it?

We are left in doubt as to whether the word should be given, as justice
Stephens contended it should be, a very broad and liberal interpretation
such as "able to judge calmly and reasonably of the moral or legal
character of a proposed action,"* or a limited and qualified one. There
are all grades and degrees of "knowledge," and it is more than probable
that there is a state of mind which I have heard an astute expert call
upon the witness stand "an insane knowledge," and equally obvious that
there may be "imperfect" nor "incomplete knowledge," where the victim
sees "through a glass darkly." Certainly it seems far from fair to
interpret the test of responsibility to cover a condition where the
accused may have had a hazy or dream-like realization that his act was
technically contrary to the law, and even more dangerous to make it
exclude one who was simply unable to "judge calmly and reasonably" of
his proposed action, a doctrine which could almost be invoked by any one
who committed homicide in a state of anger.



     *"General View of the Criminal Law," p. 80.


Ordinarily the word is not defined at all and the befuddled juryman is
left to his own devices in determining what significance he shall attach
not only to this word but to the test as a whole.

An equally ambiguous term is the word "wrong." The judges made no
attempt to define it in 1843, and it has been variously interpreted ever
since. Now it may mean "contrary to the dictates of conscience" or, as
it is usually construed, "contrary to the law of the land"--and exactly
what it means may make a great difference to the accused on trial. If
the defendant thinks that God has directed him to kill a wicked man, he
may know that such an act will not only be contrary to law, but also in
opposition to the moral sense of the community as a whole, and yet he
may believe that it is his conscientious duty to take life. In the case
of Hadfield, who deliberately fired at George III in order to be hung,
the defendant believed himself to be the Lord Jesus Christ, and that
only by so doing could the world be saved. Applying the legal test and
translating the word "wrong" as contrary to the common morality of the
community wherein he resided or contrary to law, Hadfield ought to have
achieved his object and been given death upon the scaffold instead of
being clapped, as he was, into a lunatic asylum.

On the other hand, if the word "wrong" is judicially interpreted, it
would seem to be given an elasticity which would invite inevitable
confusion as well as abuse.

Moreover, the test in question takes no cognizance of persons who have
no power of control. The law of New York and most of the states does not
recognize "irresistible impulses," but it should admit the medical fact
that there are persons who, through no fault of their own, are born
practically without any inhibitory capacity whatever, and that there are
others whose control has been so weakened, through accident or disease,
as to render them morally irresponsible,--the so-called psychopathic
inferiors.

Most of us are only too familiar with the state of a person just
falling under the influence of an anesthetic, when all the senses seem
supernaturally acute, the reasoning powers are active and unimpaired,
and the patient is convinced that he can do as he wills, whereas, in
reality, he says and does things which later on seem impossible in their
absurdity. Such a condition is equally possible to the victim of mental
disease, where the knowledge of right and wrong has no real relevancy.

The test of irresponsibility as defined by law is hopelessly inadequate,
judged by present medical knowledge. There is no longer any pretence
that a perception of the nature and quality of an act or that it is
wrong or right is conclusive of the actual insanity of a particular
accused. In a recent murder case a distinguished alienist, testifying
for the prosecution, admitted that over seventy per cent. of the
patients under his treatment, all of whom he regarded as insane and
irresponsible, knew what they were doing and could distinguish right
from wrong.

Countless attempts have been made to reconcile this obvious anachronism
with justice and modern knowledge, but always without success, and
courts have wriggled hard in their efforts to make the test adequate
to the particular cases which they have been trying, but only with the
result of hopelessly confounding the decisions.

But, however it is construed, the test as laid down in 1843 is
insufficient in 1908. Medical science has marched on with giant strides,
while the law, so far as this subject is concerned, has never progressed
at all. It is no longer possible to determine mental responsibility by
any such artificial rule as that given by the judges to the Lords in
McNaughten's case, and which juries are supposed to apply in the courts
of today. I say "supposed," for juries do not apply it, and the reason
is simple enough--you cannot expect a juryman of intelligence to follow
a doctrine of law which he instinctively feels to be crude and which he
knows is arbitrarily applied.

No juryman believes himself capable of successfully analyzing a
prisoner's past mental condition, and he is apt to suspect that, however
sincere the experts on either side may appear, their opinions may be
even less definite than the terms in which they are expressed. The
spectacle of an equal number of intellectual-looking gentlemen, all
using good English and all wearing clean linen, reaching diametrically
opposite conclusions on precisely the same facts, is calculated to fill
the well-intentioned juror with distrust. Painful as it is to record the
fact, juries are sometimes almost as sceptical in regard to doctors as
they always are in regard to lawyers.

The usual effect of the expert testimony on one side is to neutralize
that on the other, for there is no practical way for the jury to
distinguish between experts, since the foolish ones generally look as
learned as the wise ones. The result is hopeless confusion on the part
of the juryman, an inclination to "throw it all out," and a resort to
other testimony to help him out of his difficulty. Of course he has no
individual way of telling whether the defendant "knew right from wrong,"
whatever that may mean, and so the ultimate test that he applies is
apt to be whether or not the defendant is really "queer," "nutty" or
"bughouse," or some other equally intelligible equivalent far "medically
insane."

The unfortunate consequence is that there is so general and growing a
scepticism about the plea of insanity, entirely apart from its actual
merits, that it is difficult in ordinary cases, whatever the jurors may
think or say in regard to the matter, to secure twelve men who will give
the defence fair consideration at the outset.

This is manifest in frequent expressions from talesmen such as: "I think
the defence of insanity is played out," or "I believe everybody is a
little insane, anyhow" (very popular and regarded by jurymen as witty),
or "Well, I have an idea that when a fellow can't cook up any other
defence he claims to be insane."

The result is a rather paradoxical situation: The attitude of the
ordinary jury in a homicide case, where the defence of insanity is
interposed, is usually at the outset one of distrust, and their impulse
is to brush the claim aside. This tendency is strengthened by the legal
presumption, which the prosecutor invariably calls to their attention,
that the defendant is sane. Every expert who has testified for the
defence in the ordinary "knock down and drag out" homicide case must
have felt with the prisoner's attorneys, that it was "up to them" not so
much to create a doubt of the defendant's sanity as to prove that he was
insane, if they expected consideration from the jury.

Now let us assume that the defence is meritorious and that the
prisoner's experts have created a favorable impression. Let us go even
further and assume that they have generated a reasonable doubt in the
mind of the jury as to the defendant's responsibility at the time he
committed the offence. What generally occurs? Not, as one would suppose,
an acquittal, but, in nine cases out of ten, a conviction in a lower
degree.

The only usual result of an honest claim of irresponsibility on the
ground of insanity is to lead the jury to reduce the grade of the
offence from murder in the first, entailing the death penalty, to murder
in the second degree. The jury have no intention of "taking the chance"
involved in turning the man loose on the community and their minds are
filled with the predominating fact that a human being has been killed.
They have an idea that it is as easy to get "sworn out" of a lunatic
asylum as they suppose it is to get "sworn into" one, and they know that
if the prisoner is found to be insane when sent to State's prison he
will be transferred elsewhere. They, therefore, as a rule, waste little
time upon the question of how far the defendant was irresponsible within
the legal definition when he committed the deed, but convict him
"on general principles," trusting the prison officials to remedy any
possible injustice. The jury in such cases ignore the law and decline
either to acquit or to convict in accordance with the test. Their action
becomes rather that of a lay commission condemning the prisoner to hard
labor for life on the ground that he is medically insane.

Assuming that the jury take the defence seriously, there is only one
class of cases where, in the writer's opinion, they follow the legal
test as laid down by the court--that is to say, in cases of extreme
brutality. Here they hold the prisoner to the letter of the law, and
the more abhorrent the crime (even where its nature might indicate to
a physician that the accused was the victim of some sort of mania) the
less likely they are to acquit. The writer has prosecuted perhaps a
dozen homicide and other cases where the defence was insanity. In his
own experience he has known of no acquittal. In several instances the
defendants were undoubtedly insane, but, strictly speaking, probably
vaguely knew the nature and quality of their acts and that they were
wrong. In a few of these the juries convicted of murder in the first
degree because the circumstances surrounding the homicides were so
brutal that the harshness of the technical doctrine they were required
to apply was overshadowed in their minds by their horror of the act
itself. In other cases, where either the accused appeared obviously
abnormal as he sat at the bar of justice, or the details of the crime
were less abhorrent, they convicted of murder in the second degree in
accordance with the reasoning set forth in the foregoing paragraph. The
writer seriously advances the suggestion that the more the brutality of
a homicide indicates mental derangement the less chance the defendant
has to secure an acquittal upon the plea of insanity.

And this leads us to that increasingly large body of cases where
the usual scepticism of the jury in regard to such defences is
counterbalanced by some real or imaginary element of sympathy. In cities
like New York, where the jury system is seen at its very best, where the
statistics show seventy per cent. of convictions by verdict for the year
1907, and where the sentiment of the community is against the invocation
of any law supposedly higher than that of the State, our talesmen are
unwilling to condone homicide or to act as self-constituted pardoning
bodies, for they know that an obviously lawless verdict will bring
down upon them the censure of the public and the press. This is perhaps
demonstrated by the fact that in New York County a higher percentage of
women are convicted of homicide than of men.

But the plea of insanity, with its vague test of responsibility, whose
terms the juryman may construe for himself (or which his fellow-jurors
may construe for him) offers an unlimited and fertile field for the
"reasonable" doubt and an easy excuse for the conscientious talesman who
wants to acquit if he can. Juries take the little stock in irresistible
impulses and emotional or temporary insanity save as a cloak to cover an
unrighteous acquittal.

In no other class of cases does "luck" play so large a part in the final
disposition of the prisoner. A jury is quite as likely to send an
insane man to the electric chair as to acquit a defendant who is fully
responsible for his crime.

To recapitulate from the writer's experience:

(1) The ordinary juror tends to be sceptical as to the good faith of the
defence of insanity.

(2) When once this distrust is removed by honest evidence on the part of
the defence, he usually declines to follow the legal test as laid down
by the court on the general theory that any one but an idiot or a maniac
has some knowledge of what he is doing and whether it is right or wrong.

(3) He applies the strict legal test only in cases of extreme brutality.

(4) In all other cases he follows the medical rather than the legal
test, but instead of acquitting the accused on account of his medical
irresponsibility, merely convicts in a lower degree.

The following deductions may also fairly be made from observation:

(1) That the present legal test for criminal responsibility is
admittedly vague and inadequate, affording great opportunity for
divergent expert testimony and a readily availed of excuse for the
arbitrary and sentimental actions of juries, to which is largely due
the distrust prevailing of the claim of insanity when interposed as a
defence to crime.

(2) That expert medical testimony in such cases is largely discounted by
the layman.

(3) That in no class of cases are the verdicts of jurors so apt to be
influenced solely by emotion and prejudice, or to be guided less by the
law as laid down by the court.

(4) That a new definition of criminal responsibility is necessary, based
upon present knowledge of mental disease and its causes.

(5) Lastly, that, as whatever definition may be adopted will inevitably
be difficult of application by an untutored lay jury, our procedure
should be so amended that they may be relieved wherever possible of a
task sufficiently difficult for even the most experienced and expert
alienists.

A classification of the different forms of insanity, based upon its
causes to which the case of any particular accused might be relegated,
such as has recently been urged by a distinguished young neurologist,
would not, with a few exceptions, assist us in determining his
responsibility. It would be easy to say then, as now, that lunatics or
maniacs should not be held responsible for their acts, but we should be
left where we are at present in regard to all those shadowy cases where
the accused had insane, incomplete or imperfect knowledge of what he was
doing. It would be ridiculous, for example, to lay down a general rule
that no person suffering from hysterical insanity should be punished
for his acts. Yet, even so, such a classification would instantly
remedy that anachronism in our present law which refuses to recognize
as irresponsible those born without power to control their emotions--the
psychopathic inferiors of science, and the real victims of dementia
praecox.

Of course, if the insanity under which the defendant labors bears no
relation to or connection with the deed for which he is on trial, there
would logically be no reason why his insanity on other subjects should
be any defence to his crime. For example, there is the well-known case
of the Harvard professor who was apparently sane on all other matters,
yet believed himself to be possessed of glass legs. Had this man in
wanton anger struck and killed another, his "glass leg" delusion could
not logically have availed him. If, however, he had struck and killed
one who he believed was going to shatter his legs it might have been
important. The illustration is clear enough, but its application
probably involves a mistaken premise. If he thought he had glass legs
his mind was undoubtedly deranged--whether enough or not enough to
constitute him irresponsible or beyond the effect of penal discipline
might be a difficult question. The generally accepted doctrine is, that
if a man has a delusion concerning something, which if actually existing
as he believed it to be would be no excuse for his committing the
criminal act, he is responsible and liable to punishment; but, as Bishop
well says:

"This branch of the doctrine should be cautiously received; for delusion
of any kind is strongly indicative of a generally diseased mind."

The new test to determine responsibility will recognize, as does the
law of Germany, that there can be no criminal act where the free
determination of the will is excluded by disease, and that the capacity
to distinguish between right and wrong is inconclusive. It may
perhaps have to take a general form, leaving it to a lay, or a mixed
lay-and-expert jury to say merely whether the accused had a disease
of the mind of a type recognized by science, and whether the alleged
criminal act was of such a character as would naturally flow from that
type of insanity, in which case it would seem obviously just to regard
the defendant as partially irresponsible, and perhaps entirely so.
Possibly the practical needs of the moment might be met by permitting
such a jury to determine whether the defendant had such a knowledge of
the wrongful nature and consequences of his act and such a control over
his will as to be a proper subject of punishment.* This would require
the jury to find that the defendant had some knowledge of right and
wrong and the power to choose between them. In any event, to render
the accused entirely irresponsible, his act should arise out of and
be caused solely by the diseased condition of his mind. The law, while
asserting the responsibility of many insane people, should recognize
"partial" responsibility as well.



     *See State vs. Richards, 1873, Conn.


The reader may feel that little after all would be gained, but he will
observe that at any rate such a test, however imperfect, would permit
juries to do lawfully that which they now do by violating their oaths.
The writer believes that the best concrete test yet formulated and
applied by any court is that laid down in Parsons vs. The State of
Alabama (81 Ala., 577):


"1. Was the defendant at the time of the commission of the alleged
crime, as matter of fact, afflicted with a disease of the mind, so as to
be either idiotic, or otherwise insane?

"2. If such be the case, did he know right from wrong as applied to the
particular act in question? If he did not have such knowledge, he is not
legally responsible.

"3. If he did have such knowledge, he may nevertheless not be legally
responsible if the two following conditions concur:

"(1) If, by reason of the duress of such mental disease, he had so far
lost the power to choose between the right and wrong, and to avoid doing
the act in question, as that his free agency was at the time destroyed.

"(2) And if, at the same time, the alleged crime was so connected with
such mental disease, in the relation of cause and effect, as to have
been the product of it solely."


But whatever modification in the present test of criminal responsibility
is adopted, there must come an equally, if not even more important,
reform in the procedure in insanity cases, which to-day is as cumbersome
and out of date as the law itself. As things stand now in New York and
most other jurisdictions there are no adequate means open to the State
to find out the actual present or past mental condition of the defendant
until the trial itself, and ofttimes not even then.

In New York, in cases like Thaw's, the accused, while fully intending
to interpose the defence of insanity (which he is now permitted to do
simply under the general plea of "not guilty") may not only conceal the
fact until the trial, but may likewise successfully block every effort
of the authorities to examine him and find out his present mental
condition. He may thus keep it out of the power of the District Attorney
to secure the facts upon which to move for a commission to determine
whether or not he ought to be in an insane asylum or is a fit subject
for trial, and at the same time prevent the prosecutor from obtaining
any evidence through direct medical observation by which to meet the
claim, which may be "sprung" suddenly upon him later at the trial, that
the defendant was irresponsible.

In order that this may be clearly understood by the reader he should
fully appreciate the distinction between (1) the claim on the part of an
accused that he is at present insane, and for that reason should not be
either tried or punished for his alleged offence, and (2) the defence
that he was (irrespective of his present mental condition) insane within
the legal definition of irresponsibility at the time he committed it. No
person who is incapable of understanding the nature of the proceedings
against him or of consulting with counsel and preparing his defence can
be placed on trial at all, or, if already on trial, can continue to be
tried, and if a defendant "appears to the court to be insane," the judge
may appoint a commission to examine him and report as to his present
condition. This may be done upon the application either of the State of
the accused through his counsel.

It was such a commission to determine the accused's present mental
condition that District Attorney Jerome, upon the basis of the evidence
introduced by the defence, applied for and secured during the first
trial of Harry K. Thaw. The commission reported that Thaw was sane
enough to be tried and the court then proceeded with the original case
for the purpose of allowing the jury to say whether he knew the nature
and quality of his act and that it was wrong when he shot and killed
White.

This was a totally distinct proceeding from the interposition of the
DEFENCE that the accused was irresponsible when he committed the crime
charged against him and was not inconsistent with it.

Now supposing that the Commission had reported that Thaw was insane at
the time of examination and not a fit subject for trial, but, on
the contrary, ought to be confined in an insane asylum, the District
Attorney would have spent some twenty odd thousand dollars and a year's
time of one or more of his assistants in fruitless preparation. Yet, as
the law stands on the books to-day in New York, there is no adequate
way for the prosecution to find out whether this enormous expenditure of
time or money is necessary or not, for it cannot compel the defendant
to submit either to a physical or mental examination. To do so has been
held to be a violation of his constitutional rights and equivalent to
compelling him to give evidence against himself.

Thus when Thaw came to the bar at his first trial the State had never
had any opportunity, through an examination by its physicians, to learn
what his present condition was or past mental condition had been. The
accused, on the other hand, had had over six months to prepare his
defence and had fully availed himself of the time to submit to the most
exhaustive examinations on the part of his own experts. The defendant's
physicians came to court brimming with facts to which they could
testify; while the State's experts had only the barren opportunity for
determining the defendant's condition afforded by observing him daily in
the court room and hearing what Thaw's own doctors claimed that they
had discovered. There was no chance to rebut anything which the latter
alleged that they had observed, and their testimony, save in so far as
it was inconsistent or contradictory in itself, remained irrefutable.

There is probably no procedure which would be held constitutional
whereby a compulsory examination of the accused could be had upon the
mere application of the prosecuting authorities; but as a commission may
generally be appointed at any time after an accused has been indicted
if he "appears" to the court to be "insane," and as it is usually within
the power of the District Attorney where such is the case to bring
sufficient evidence of it to the attention of the court before the
prisoner is brought to trial, little time is actually lost and justice
is rarely defeated except in those cases (such as Thaw's) where an
attempt is to be made to prove the accused insane at the time of the
alleged crime although sane at the time of trial. Even here it would be
the simplest thing in the world to remedy the difficulty and the proper
legal steps in all jurisdictions should be taken immediately.

The two chief objects of such reforms should be, first, to relieve the
ordinary jury in as many cases as possible from the necessity of passing
upon the delicate issue of a defendant's mental condition at a previous
time, and second, where this may not be avoided, to make their task as
easy as possible by providing (a) a more scientific and definite test of
legal responsibility and (b) an opportunity for adequate examination of
defendants availing themselves of this defence.

This last and most practical reform can be easily secured by a slight
alteration in the New York Code of Criminal Procedure, which already
provides both for the entering of the specific plea of insanity and
for the introduction of the defence and the proof of insanity under the
general plea of "not guilty." At present the defendant has his choice
of openly announcing or of concealing until the trial his intention of
claiming that he was insane and so irresponsible for his crime. This is
an advantage the results of which were probably not fully contemplated
by the Legislature, and one to which an accused has no fair claim.

Fortunately, in the same section of the Code (658), which provides
that the court may appoint a Commission to inquire into the sanity of
a defendant at the time of his trial, there exists another provision,
hitherto little noticed, that:

"When a defendant PLEADS INSANITY, as prescribed in Section 336, the
court in which the indictment is pending, instead of proceeding with the
trial of the indictment, may appoint a commission of not more than three
disinterested persons to examine him and report to the court as to his
insanity at the time of the commission of the crime."

If a defendant intends to prove himself irresponsible for his offence,
why should he not be compelled to enter a specific plea to that effect?
Once he has entered that plea, the law as it stands just quoted will do
the rest. No reason has been brought to the attention of the writer why
the admission of any evidence upon the defendant's trial tending to show
that he was mentally irresponsible at the time of committing the crime
should not be made contingent upon the defence of insanity having been
specifically pleaded either at the time of his arraignment or later by
substitution for or in conjunction with the plea of "not guilty." This
would deprive him of no constitutional right whatever. There is no legal
necessity of permitting an accused to prove insanity under a general
answer of "not guilty." Then upon his own plea that he had been insane
he could instantly be committed to some place of observation where a
permanent medical board of inquiry could be given full opportunity to
examine him and study his case with a view to determining his present
and past mental condition. He would still have in prospect his regular
jury trial, but if this board found him at the present time insane,
the court could immediately commit him to an asylum pending recovery,
precisely as under the present procedure, while if they found him sane
at the present time, but reported that, in their opinion (whatever test,
"medical" or "legal," they might have applied), he was irresponsible
at the time he committed the crime, it is unlikely that any prosecutor
would bring him to trial. If, however, they reported that he was not
only sane, but had been sane at the time of his crime, it is probable
that any proposed defence of insanity would be abandoned, while if it
was still urged by the accused, the opinion of such a board would carry
far greater weight at the ultimate trial of the case than the individual
opinions of experts retained and paid by either side for that particular
occasion only, and having had only a comparatively limited opportunity
for examination. At any rate, if the court called in the services of
such a board of medical judges to assist as amici curie in determining
the defendant's condition, while their opinion would not be conclusive
upon the jury, it would at least do away with the present lamentable
necessity of learned men answering "yes" or "no" to a hypothetical
question fifty thousand words long, when the most superficial personal
examination of the accused would settle the matter definitely in
their minds. Such a procedure is in general use in Germany and other
continental countries, and is likewise substantially followed in
Massachusetts, Maine, Vermont, and New Hampshire.*



     * Another equally efficacious means of dealing with the matter would
be to substitute, upon a defendant's plea of insanity, a full jury of
experts--like any "special" jury--for the ordinary petit jury.


There is good reason to hope that we may soon see in all the states
adequate provision for preliminary examination upon the plea of
insanity, and a new test of criminal responsibility consistent with
humanity and modern medical knowledge. Even then, although murderers
who indulge in popular crime will probably be acquitted on the ground of
insanity, we shall at least be spared the melancholy spectacle of juries
arbitrarily committing feeble-minded persons charged with homicide to
imprisonment at hard labor for life, and in a large measure do away with
the present unedifying exhibition of two groups of hostile experts, each
interpreting an archaic and inadequate test of criminal responsibility
in his own particular way, and each conscientiously able to reach a
diametrically opposite conclusion upon precisely the same facts.




CHAPTER XI. The Mala Vita in America


There are a million and a half of Italians in the United States, of whom
nearly six hundred thousand reside in New York City--more than in Rome
itself. Naples alone of all the cities of Italy has so large an Italian
population; while Boston has one hundred thousand, Philadelphia one
hundred thousand, San Francisco seventy thousand, New Orleans seventy
thousand, Chicago sixty thousand, Denver twenty-five thousand, Pittsburg
twenty-five thousand, Baltimore twenty thousand, and there are extensive
colonies, often numbering as many as ten thousand, in several other
cities.

So vast a foreign-born population is bound to contain elements of both
strength and weakness. The north Italians are molto simpatici to the
American character, and many of their national traits are singularly
like our own, for they are honest, thrifty, industrious, law-abiding and
good-natured. The Italians from the extreme south of the peninsula have
fewer of these qualities, and are apt to be ignorant, lazy, destitute,
and superstitious. A considerable percentage, especially of those from
the cities, are criminal. Even for a long time after landing in America,
the Calabrians and Sicilians often exhibit a lack of enlightenment more
characteristic of the Middle Ages than of the twentieth century.

At home they have lived in a tumble-down stone hut about fifteen feet
square, half open to the sky (its only saving quality); in one corner
the entire family sleeping in a promiscuous pile on a bed of leaves; in
another a domestic zoo consisting of half a dozen hens, a cock, a goat,
and a donkey. They neither read, think, nor exchange ideas. The sight of
a uniform means to them either a tax-gatherer, a compulsory enlistment
in the army, or an arrest, and at its appearance the man will run
and the wife and children turn into stone. They are stubborn and
distrustful. They are the same as they were a thousand or more years
gone by.

When the writer was acting as an assistant prosecutor in New York
County, a young Italian, barely twenty years of age, was brought to
the bar charged with assault with intent to kill. The complainant was a
withered Sicilian woman who claimed to be his wife. Both spoke an almost
unintelligible dialect. The case on its face was simple enough. An
officer testified that on a Sunday morning in Mulberry Bend Park, at
a distance of about fifty feet from where he was standing, he saw the
defendant, who had been walking peaceably with the complaining witness,
suddenly draw a long and deadly looking knife and proceed to slash her
about the head and arms. It had taken the officer but a moment or two to
seize the defendant from behind and disarm him, but in the meantime he
had inflicted some eleven wounds upon her body. No explanation had been
offered for this terrible assault, and the complainant had appeared
involuntarily before the Grand jury and afterward had to be kept in the
House of Detention as a hostile witness. The woman, who appeared to be
about fifty years old, was sworn, and on being questioned stated that
she had been married to the defendant in Sicily three years before.
She declined to admit that he had attacked or harmed her in any way,
constantly mumbling: "He is my husband. Do not punish him!"

The defendant, however, seemed eager to get on the stand and to tell
his story; nor did the introduction of the knife in evidence or the
exhibition of the woman's wounds embarrass him in the slightest degree.
His manner was that of a man who had only to explain to be entirely
exonerated from blame. He nodded at the jury and the judge, and scowled
at the complainant, who was speedily conducted to a place where no harm
could possibly come to her. When at last he was sworn, he could hardly
restrain himself into coherency.

"Yes--that woman forced me to marry her!" he testified in substance.
"But in the eyes of God I am not her husband, for she bewitched me! Else
would I have married an old crone who could not have borne me children?
When her spells weakened I left her and came to America. Here I met
the woman I love,--Rosina,--and as I had been bewitched into the other
marriage, we lived together as man and wife for two years. Then one day
a friend told me that the old woman had followed me over the sea and was
going to throw her spells upon me again. But I did not inform Rosina of
these things. The next evening she told me that an old woman had been
to the house and asked for me. For days my first wife lurked in the
neighborhood, beseeching me to come back to her. But I told her that in
the eyes of God she was not my wife. Then, in revenge, she cast the evil
eye upon the child--sul bambino--and for six weeks it ailed and then
died. Again the witch asked me to go with her, and again I refused. This
time she cast her evil eye upon my wife--and Rosina grew pale and sick
and took to her bed. There was only one thing to do, you understand. I
resolved to slay her, just as you--giudici--would have done. I bought
a carving-knife and sharpened it, and asked her to walk with me to
the park, and I would have killed her had not the police prevented me.
Wherefore, O giudici! I pray you to recall her and permit me to kill her
or to decree that she be hung!"

This case illustrates the depths of ignorance and superstition that
are occasionally to be found among Italian peasant immigrants. Another
actual experience may demonstrate the mediaeval treachery of which the
Sicilian Mafiuso is capable, and how little his manners or ideals have
progressed in the last five hundred years or so.

A photographer and his wife, both from Palermo, came to New York and
rented a comfortable home with which was connected a "studio." In the
course of time a young man--a Mafiuso from Palermo--was engaged as an
assistant, and promptly fell in love with the photographer's wife. She
was tired of her husband, and together they plotted the latter's murder.
After various plans had been considered and rejected, they determined on
poison, and the assistant procured enough cyanide of mercury to kill a
hundred photographers, and turned it over to his mistress to administer
to the victim in his "Marsala." But at the last moment her hand lost
its courage and she weakly sewed the poison up for future use inside the
ticking of the feather bolster on the marital bed.

This was not at all to the liking of her lover, who thereupon took
matters into his own hands, by hiring another Mafiuso to remove the
photographer with a knife-thrust through the heart. In order that the
assassin might have a favorable opportunity to effect his object, the
assistant, who posed as a devoted friend of his employer, invited the
couple to a Christmas festival at his own apartment. Here they all spent
an animated and friendly evening together, drinking toasts and singing
Christmas carols, and toward midnight the party broke up with mutual
protestations of regard. If the writer remembers accurately, the
evidence was that the two men embraced and kissed each other. After
a series of farewells the photographer started home. It was a clear
moonlight night with the streets covered with a glistening fall of snow.
The wife, singing a song, walked arm in arm with her husband until they
came to a corner where a jutting wall cast a deep shadow across the
sidewalk. At this point she stepped a little ahead of him, and at the
same moment the hired assassin slipped up behind the victim and drove
his knife into his back. The wife shrieked. The husband staggered and
fell, and the "bravo" fled.

The police arrived, and so did an ambulance, which removed the
hysterical wife and the transfixed victim to a hospital. Luckily the
ambulance surgeon did not remove the knife, and his failure to do so
saved the life of the photographer, who in consequence practically lost
no blood and whose cortex was skilfully hooked up by a dextrous surgeon.
In a month he was out. In another the police had caught the would-be
murderer and he was soon convicted and sentenced to State prison, under
a contract with the assistant to be paid two hundred and fifty dollars
for each year he had to serve. Evidently the lover and his mistress
concluded that the photographer bore a charmed life, for they made no
further homicidal attempts.

So much for the story as an illustration of the mediaeval character of
some of our Sicilian immigrants. For the satisfaction of the reader's
taste for the romantic and picturesque it should be added, however, that
the matter did not end here. The convict, having served several years,
found that the photographer's assistant was not keeping his part of the
contract, as a result of which the assassin's wife and children were
suffering for lack of food and clothing. He made repeated but fruitless
attempts to compel the party of the first part to pay up, and finally,
in despair, wrote to the District Attorney of New York County that he
could, if he would, a tale unfold that would harrow up almost anybody's
soul. Mr. Jerome therefore, on the gamble of getting something worth
while, sent Detective Russo to Auburn to interview the prisoner. That is
how the whole story came to be known. The case was put in the writer's
hands, and an indictment for the very unusual crime of attempted murder
(there are only one or two such cases on record in New York State) was
speedily found against the photographer's assistant. At the trial the
lover saw his mistress compelled to turn State's evidence against him to
save herself. She testified to the Christmas carols and the cyanide of
mercury.

"Did you ever remove this terrible poison from the bolster?" demanded
the defendant's counsel in a sneering tone.

"No," answered the woman.

"Have you ever changed the bolster?" he persisted.

"No."

"Then it's there yet?"

"I-I think so," falteringly.

"I demand that this incredible yarn be investigated!" cried the lawyer.
"I ask that the court send for the bolster and cut it open here in the
presence of the jury."

The writer had no choice but to accede to this request, and the bolster
was hunted down and brought into court. With some anxiety both sides
watched while the lining was slit with a penknife. A few feathers
fluttered to the floor as the fingers of the witness felt inside
and came in contact with the poison. The assistant was convicted of
attempted murder on the convict's testimony, and sentenced to Sing Sing
for twenty-five years. That was the end of the second lesson.

About a month afterward the defendant's counsel made a motion for a new
trial on the ground that the convict now admitted his testimony to have
been wholly false, and produced an affidavit from the assassin to that
effect. Naturally so startling an allegation demanded investigation.
Yes, insisted the "bravo," it was all made up, a "camorra"--not a word
of truth in it, and he had invented the whole thing in order to get a
vacation from State prison and a free ride to New York. However, the
court denied the motion. The writer procured a new indictment against
the assassin--this time for perjury--and he was sentenced to another
additional term in prison. What induced this sudden and extraordinary
change of mind on his part can only be surmised.

These two cases are extreme examples of the mediaevalism that to a
considerable degree prevails in New York City, probably in Chicago and
Boston, and wherever there is an excessive south Italian population.

The conditions under which a large number of Italians live in this
country are favorable not only to the continuance of ignorance, but to
the development of disease and crime. Naples is bad enough, no doubt.
The people there are poverty-stricken and homeless. But in New York City
they are worse than homeless. It is better far to sleep under the stars
than in a stuffy room with ten or twelve other persons. Let the reader
climb the stairs of some of the tenements in Elizabeth Street, or go
through those in Union Street, Brooklyn, and he will get firsthand
evidence. This is generally true of the lower class of Italians
throughout the United States, whether in the city or country. They live
under worse conditions than at home. You may go through the railroad
camps and see twenty men sleeping together in a one-room built of
lath, tar-paper, and clay. The writer knows of one Italian laborer in
Massachusetts who slept in a floorless mud hovel about six feet
square, with one hole to go in and out by and another in the roof
for ventilation--in order to save $1.75 per month. All honor to him!
Garibaldi was of just such stuff, only he suffered in a better cause. In
Naples the young folks are out all day in the sun. Here they are
indoors all the year round. For the consequences of this change see
Dr. Peccorini's article in the 'Forum' for January, 1911, on the
tuberculosis that soon develops among Italians who abroad were
accustomed to live in the country but here are forced to exist in
tenements.

Now, for historic reasons, these south Italians hate and distrust all
governmental control and despise any appeal to the ordinary tribunals of
justice to assert a right or to remedy a wrong. It has been justly said
by a celebrated Italian writer that, in effect, there is some instinct
for civil war in the heart of every Italian. The insufferable tyranny
of the Bourbon dynasty made every outlaw dear to the hearts of the
oppressed people of the Kingdom of the Two Sicilies. Even if he robbed
them, they felt that he was the lesser of two evils, and sheltered
him from the authorities. Out of this feeling grew the "Omerta," which
paralyzes the arm of justice both in Naples and Sicily. The late Marion
Crawford thus summed up the Sicilian code of honor:

According to this code, a man who appeals to the law against his fellow
man is not only a fool but a coward, and he who cannot take care of
himself without the protection of the police is both.... It is reckoned
as cowardly to betray an offender to justice, even though the offence be
against one's self, as it would be not to avenge an injury by violence.
It is regarded as dastardly and contemptible in a wounded man to betray
the name of his assailant, because if he recovers he must naturally
expect to take vengeance himself. A rhymed Sicilian proverb sums up this
principle, the supposed speaker being one who has been stabbed. "If I
live, I will kill thee," it says; "if I die, I forgive thee!"

Any one who has had anything to do with the administration of criminal
justice in a city with a large Italian population must have found
himself constantly hampered by precisely this same "Omerta." The south
Italian feels obliged to conceal the name of the assassin and very
likely his person, though he himself be but an accidental witness of the
crime; and, while the writer knows of no instance in New York City
where an innocent man has gone to prison himself rather than betray a
criminal, Signor Cutera, formerly chief of police in Palermo, states
that there have been many cases in Sicily where men have suffered long
terms of penal servitude and even have died in prison rather than give
information to the police.

In point of fact, however, the "Omerta" is not confined to Italians. It
is a common attribute of all who are opposed to authority of any kind,
including small boys and criminals, and with the latter arises no more
from a half chivalrous loyalty to their fellows than it does from hatred
of the police and a uniform desire to block their efforts (even if
a personal adversary should go unpunished in consequence), fear that
complaint made or assistance given to the authorities will result in
vengeance being taken upon the complainant by some comrade or relative
of the accused, distrust of the ability of the police to do anything
anyway, disgust at the delay involved, and lastly, if not chiefly, the
realization that as a witness in a court of justice the informer as a
professional criminal would have little or no standing or credence, and
in addition would, under cross-examination, be compelled to lay bare the
secrets of his unsavory past, perhaps resulting indirectly in a term
in prison for himself.* Thus may be accounted for much of the supposed
"romantic, if misguided, chivalry" of the south Italian. It is common
both to him and to the Bowery tough. The writer knew personally a
professional crook who was twice almost shot to pieces in Chatham
Square, New York City, and who persistently declined, even on his dying
bed, to give a hint of the identity of his assassins, announcing that if
he got well he "would attend to that little matter himself." Much of the
romance surrounding crime and criminals, on examination, "fades into
the light of common day"--the obvious product not of idealism, but of
well-calculated self-interest.



     * Much more likely in Italy than in the United States.


As illustrating the backwardness of our Italian fellow-citizens in
coming forward when the criminality of one of their countrymen is
at stake, the last three cases of kidnapping in New York City may be
mentioned.

About a year and a half ago the little boy of Dr. Scimeca, of 2 Prince
Street, New York, was taken from his home. From outside sources the
police heard that the child had been stolen, but, although he was
receiving constant letters and telephonic communications from the
kidnappers, Dr. Scimeca would not give them any information. It is known
on pretty good authority that the sum of $10,000 was at first demanded
as a ransom, and was lowered by degrees to $5,000, $2,500, and finally
to $1,700. Dr. Scimeca at last made terms with the kidnappers, and was
told to go one evening to City Park, where he is said to have handed
$1,700 to a stranger. The child was found wandering aimlessly in the
streets next day, after a detention of nearly three months.

The second case was that of Vincenzo Sabello, a grocer of 386 Broome
Street, who lost his little boy on August 26, 1911. After thirty days he
reported the matter to the police, but shortly after tried to throw them
off the track by saying that he had been mistaken, that the boy had not
been kidnapped, and that he wished no assistance. Finally he ordered
the detectives out of his place. About a month later the child was
recovered, but not, according to reliable information, until Mr. Sabello
had handed over $2,500.

Pending the recovery of the Sabello boy, a third child was stolen from
the top floor of a house at 119 Elizabeth Street. The father, Leonardo
Quartiano, reported the disappearance, and in answer to questions stated
that he had received no letters or telephone messages. "Why should I?"
he inquired, with uplifted hands and the most guileless demeanor. "I am
poor! I am a humble fishmonger." In point of fact, Quartiano at the time
had a pocketful of blackmail letters, and after four weeks paid a good
ransom and got back his boy.

It is impossible to estimate correctly the number of Italian criminals
in America or their influence upon our police statistics; but in several
classes of crime the Italians furnish from fifteen to fifty per cent of
those convicted. In murder, assault with intent to kill, blackmail,
and extortion they head the list, as well as in certain other offences
unnecessary to describe more fully but prevalent in Naples and the
South.

Joseph Petrosino, the able and fearless officer of New York police
who was murdered in Palermo while in the service of the country of
his adoption, was, while he lived, our greatest guaranty of protection
against the Italian criminal. But Petrosino is gone. The fear of him no
longer will deter Italian ex-convicts from seeking asylum in the United
States. He once told the writer that there were five thousand Italian
ex-convicts in New York City alone, of whom he knew a large proportion
by sight and name.* Signor Ferrero, the noted historian, is reported
to have stated, on his recent visit to America, that there were thirty
thousand Italian criminals in New York City. Whatever their actual
number, there are quite enough at all events.


     *Petrosino is a national hero in Italy, where he was known as "Il
Sherlock Holmes d'Italia"--"the Italian Sherlock Holmes." Many novels in
which he figures as the central character have a wide circulation there.


By far the greater portion of these criminals, whether ex-convicts or
novices, are the products or byproducts of the influence of the two
great secret societies of southern Italy. These societies and the
unorganized criminal propensity and atmosphere which they generate, are
known as the "Mala Vita."

The Mafia, a purely Sicilian product, exerts a much more obvious
influence in America than the Camorra, since the Mafia is powerful all
over Sicily, while the Camorra is practically confined to the city of
Naples and its environs. The Sicilians in America vastly outnumber the
Neapolitans. Thus in New York City for every one Camorrist you will find
seven or eight Mafiusi. But they are all essentially of a piece, and
the artificial distinction between them in Italy disappears entirely in
America.

Historically the Mafia burst from a soil fertilized by the blood of
martyred patriots, and represented the revolt of the people against all
forms of the tyrannous government of the Bourbons; but the fact remains
that, whatever its origin, the Mafia to-day is a criminal organization,
having, like the Camorra, for its ultimate object blackmail and
extortion. Its lower ranks are recruited from the scum of Palermo,
who, combining extraordinary physical courage with the lowest type of
viciousness, generally live by the same means that supports the East
Side "cadet" in New York City, and who end either in prison or on the
dissecting-table, or gradually develop into real Mafiusi and perhaps
gain some influence.

It is, in addition, an ultra-successful criminal political machine,
which, under cover of a pseudoprinciple, deals in petty crime, wholesale
blackmail, political jobbery, and the sale of elections, and may fairly
be compared to the lowest types of politico-criminal clubs or societies
in New York City. In Palmero it is made up of "gangs" of toughs and
criminals, not unlike the Camorrist gangs of Naples, but without their
organization, and is kept together by personal allegiance to some
leader. Such a leader is almost always under the patronage of a "boss"
in New York or a 'padrone' in Italy, who uses his influence to protect
the members of the gang when in legal difficulties and find them jobs
when out of work and in need of funds. Thus the "boss" can rely on the
gang's assistance in elections in return for favors at other times. Such
gangs may act in harmony or be in open hostility or conflict with one
another, but all are united as against the police, and exhibit much the
same sort of "Omerta" in Chatham Square as in Palermo. The difference
between the Mafia and Camorra and the "gangs" of New York City lies in
the fact that the latter are so much less numerous and powerful, and
bribery and corruption so much less prevalent, that they can exert no
practical influence in politics outside the Board of Aldermen, whereas
the Italian societies of the Mala Vita exert an influence everywhere--in
the Chamber of Deputies, the Cabinet, and even closer to the King. In
fact, political corruption has been and still is of a character in Italy
luckily unknown in America--not in the amounts of money paid over (which
are large enough), but in the calm and matter-of-fact attitude adopted
toward the subject in Parliament and elsewhere.

The overwhelming majority of Italian criminals in this country come from
Sicily, Calabria, Naples, and its environs. They have lived, most
of their lives, upon the ignorance, fear, and superstitions of their
fellow-countrymen. They know that so long as they confine their criminal
operations to Italians of the lower class they need have little terror
of the law, since, if need be, their victims will harbor them from the
police and perjure themselves in their defence. For the ignorant Italian
brings to this country with him the same attitude toward government
and the same distrust of the law that characterized him and his
fellow-townsmen at home, the same Omerta that makes it so difficult
to convict any Italian of a serious offence. The Italian crook is
quick-witted and soon grasps the legal situation. He finds his fellow
countrymen prospering, for they are generally a hard-working and thrifty
lot, and he proceeds to levy tribute on them just as he did in Naples or
Palermo. If they refuse his demands, stabbing or bomb-throwing show that
he has lost none of his ferocity. Where they are of the most ignorant
type he threatens them with the "evil eye," the "curse of God," or even
with sorceries. The number of Italians who can be thus terrorized is
astonishing. Of course, the mere possibility of such things argues a
state of mediaevalism. But mere mediaevalism would be comparatively
unimportant did it not supply the principal element favorable to the
growth of the Mala Vita, apprehended with so much dread by many of the
citizens of the United States.

Now, what are the phases of the Mala Vita--the Camorra, the Black Hand,
the Mafia--which are to-day observable in the United States and which
may reasonably be anticipated in the future?

In the first place, it may be safely said that of the Camorra in its
historic sense--the Camorra of the ritual, of the "Capo in Testa" and
"Capo in Trino," highly organized with a self-perpetuating body of
officers acting under a supreme head--there is no trace. Indeed, as has
already been explained, this phase of the Camorra, save in the prisons,
is practically over, even in Naples. But of the Mala Vita there is
evidence enough.

Every large city, where people exist under unwholesome conditions, has
some such phenomenon. In Palermo we have the traditional Mafia--a state
of mind, if you will, ineradicable and all-pervasive. Naples festers
with the Camorra as with a venereal disease, its whole body politic
infected with it, so that its very breath is foul and its moral eyesight
astigmatized. In Paris we find the Apache, abortive offspring of
prostitution and brutality, the twin brother of the Camorrista. In New
York there are the "gangs," composed of pimps, thugs, cheap thieves, and
hangers-on of criminals, which rise and wane in power according to the
honesty and efficiency of the police, and who, from time to time, hold
much the same relations to police captains and inspectors as the various
gangs of the Neapolitan Camorra do to commissaries and delegati of the
"Public Safety." Corresponding to these, we have the "Black Hand" gangs
among the Italian population of our largest cities. Sometimes the two
coalesce, so that in the second generation we occasionally find an
Italian, like Paul Kelly, leading a gang composed of other Italians,
Irish-Americans, and "tough guys" of all nationalities. But the genuine
Black Hander (the real Camorrist or "Mafiuoso") works alone or with two
or three of his fellow-countrymen.

Curiously enough, there is a society of criminal young men in New York
City who are almost the exact counterpart of the Apaches of Paris. They
are known by the euphonious name of "Waps" or "Jacks." These are young
Italian-Americans who allow themselves to be supported by one or two
women, almost never of their own race. These pimps affect a peculiar
cut of hair, and dress with half-turned-up velvet collar, not unlike
the old-time Camorrist, and have manners and customs of their own. They
frequent the lowest order of dance-halls, and are easily known by their
picturesque styles of dancing, of which the most popular is yclept the
"Nigger." They form one variety of the many "gangs" that infest the
city, are as quick to flash a knife as the Apaches, and, as a cult by
themselves, form an interesting sociological study.

The majority of the followers of the Mala Vita--the Black Handers--are
not actually of Italian birth, but belong to the second generation. As
children they avoid school, later haunt "pool" parlors and saloons, and
soon become infected with a desire for "easy money," which makes them
glad to follow the lead of some experienced capo maestra. To them he is
a sort of demi-god, and they readily become his clients in crime, taking
their wages in experience or whatever part of the proceeds he doles out
to them. Usually the "boss" tells them nothing of the inner workings of
his plots. They are merely instructed to deliver a letter or to blow
up a tenement. The same name is used by the Black Hander to-day for
his "assistant" or "apprentice" who actually commits a crime as that by
which he was known under the Bourbons in 1820. In those early days the
second-grade member of the Camorra was known as a picciotto. To-day the
apprentice or "helper" of the Black Hander is termed a picciott' in the
clipped dialect of the South. But the picciotto of New York is never
raised to the grade of Camorrista, since the organization of the Camorra
has never been transferred to this country. Instead he becomes in course
of time a sort of bully or bad man on his own hook, a criminal "swell,"
who does no manual labor, rarely commits a crime with his own hands, and
lives by his brain. Such a one was Micelli Palliozzi, arrested for the
kidnapping of the Scimeca and Sabello children mentioned above--a dandy
who did nothing but swagger around the Italian quarter.

Generally each capo maestra works for himself with his own handful of
followers, who may or may not enjoy his confidence, and each gang has
its own territory, held sacred by the others. The leaders all know each
other, but never trespass upon the others' preserves, and rarely attempt
to blackmail or terrorize any one but Italians. They gather around them
associates from their own part of Italy, or the sons of men whom they
have known at home. Thus for a long time Costabili was leader of the
Calabrian Camorra in New York, and held undisputed sway of the territory
south of Houston Street as far as Canal Street and from Broadway to the
East River. On September 15, last, Costabili was caught with a bomb in
his hand, and he is now doing a three-year bit up the river. Sic transit
gloria mundi!

The Italian criminal and his American offspring have a sincere contempt
for American criminal law. They are used by experience or tradition
to arbitrary police methods and prosecutions unhampered by Anglo-Saxon
rules of evidence. When the Italian crook is actually brought to the
bar of justice at home, that he will "go" is generally a foregone
conclusion. There need be no complainant in Italy. The government is
the whole thing there. But, in America, if the criminal can "reach" the
complaining witness or "call him off" he has nothing to worry about.
This he knows he can easily do through the terror of the Camorra.
And thus he knows that the chances he takes are comparatively small,
including that of conviction if he is ever tried by a jury of his
American peers, who are loath to find a man guilty whose language and
motives they are unable to understand. All this the young Camorrist is
perfectly aware of and gambles on.

One of the unique phenomena of the Mala Vita in America is the class of
Italians who are known as "men of honor." These are native Italians who
have been convicted of crime in their own country and have either
made their escape or served their terms. Some of these may have been
counterfeiters at home. They come to America either as stokers, sailors,
stewards, or stowaways, and, while they can not get passports, it is
surprising how lax the authorities are in permitting their escape. The
spirit of the Italian law is willing enough, but its fleshly enforcement
is curiously weak. Those who have money enough manage to reach France or
Holland and come over first or second-class. The main fact is that they
get here--law or no law. Once they arrive in America, they realize their
opportunities and actually start in to turn over a new leaf. They work
hard; they become honest. They may have been Camorrists or Mafiusi at
home, but they are so no longer. They are "on the level," and stay so;
only--they are "men of honor." And what is the meaning of that? Simply
that they keep their mouths, eyes, and ears shut so far as the Mala
Vita is concerned. They are not against it. They might even assist it
passively. Many of these erstwhile criminals pay through the nose for
respectability--the Camorrist after his kind, the Mafius' after his
kind. Sometimes the banker who is paying to a Camorrist is blackmailed
by a Mafius'. He straightway complains to his own bad man, who goes to
the "butter-in" and says in effect: "Here! What are you doing? Don't you
know So-and-So is under my protection?"

"Oh!" answers the Mafius'. "Is he? Well, if that is so, I'll leave him
alone--as long as he is paying for protection by somebody."

The reader will observe how the silence of "the man of honor" is not
remotely associated with the Omerta. As a rule, however, the "men of
honor" form a privileged and negatively righteous class, and are let
strictly alone by virtue of their evil past.

The number of south Italians who now occupy positions of respectability
in New York and who have criminal records on the other side would
astound even their compatriots. Even several well-known business men,
bankers, journalists, and others have been convicted of something or
other in Italy. Occasionally they have been sent to jail; more often
they have been convicted in their absence--condannati in contumacia--and
dare not return to their native land. Sometimes the offences have been
serious, others have been merely technical. At least one popular Italian
banker in New York has been convicted of murder--but the matter was
arranged at home so that he treats it in a humourous vein. Two other
bankers are fugitives from justice, and at least one editor.

To-day most of these men are really respectable citizens. Of course some
of them are a bad lot, but they are known and avoided. Yet the fact that
even the better class of Italians in New York are thoroughly familiar
with the phenomena surrounding the Mala Vita is favorable to the
spread of a certain amount of Camorrist activity. There are a number of
influential bosses, or capi maestra, who are ready to undertake almost
any kind of a job for from twenty dollars up, or on a percentage. Here
is an illustration.

A well-known Italian importer in New York City was owed the sum of three
thousand dollars by an other Italian, to whom he had loaned the money
without security and who had abused his confidence. Finding that the
debtor intended to cheat him out of the money, although he could easily
have raised the amount of the debt had he so wished, the importer sent
for a Camorrist and told him the story.

"You shall be paid," said the Camorrist.

Two weeks later the importer was summoned to a cellar on Mott Street.
The Camorrist conducted him down the stairs and opened the door.
A candle-end flaring on a barrel showed the room crowded with
rough-looking Italians and the debtor crouching in a corner. The
Camorrist motioned to the terrified victim to seat himself by the
barrel. No word was spoken and amid deathly silence the man obeyed. At
last the Camorrist turned to the importer and said:

"This man owes you three thousand dollars, I believe."

The importer nodded.

"Pay what you justly owe," ordered the Camorrist.

Slowly the reluctant debtor produced a roll of bills and counted them
out upon the barrel-head. At five hundred he stopped and looked at the
Camorrist.

"Go on!" directed the latter.

So the other, with beads of sweat on his brow, continued until he
reached the two thousand-dollar mark. Here the bills seemed exhausted.
The importer by this time began to feel a certain reticence about his
part in the matter--there might be some widows and orphans somewhere.
The bad man looked inquiringly at him, and the importer mumbled
something to the effect that he "would let it go at that." But the bad
man misunderstood what his client had said and ordered the bankrupt to
proceed. So he did proceed to pull out another thousand dollars from an
inside pocket and add it to the pile on the barrel-head.

The Camorrist nodded, picked up the money, recounted it, and removed
three hundred dollars, handing the rest to the importer.

"I have deducted the camorra," said he.

The bravos formed a line along the cellar to the door, and, as the
importer passed on his way out, each removed his hat and wished him
a buona sera. That importer certainly will never contribute toward a
society for the purpose of eradicating the "Black Hand" from the city of
New York. He says it is the greatest thing he knows.

But the genuine Camorrist or Mafius' would be highly indignant at being
called a "Black Hander." His is an ancient and honorable profession;
he is no common criminal, but a "man peculiarly sensitive in matters
of honor," who for a consideration will see that others keep their
honorable agreements.

The writer has received authoritative reports of three instances of
extortion which are probably prototypes of many other varieties. The
first is interesting because it shows a Mafius' plying his regular
business and coming here for that precise purpose. There is a large
wholesale lemon trade in New York City, and various growers in Italy
compete for it. Not long past, a well-dressed Italian of good appearance
and address rented an office in the World Building.

His name on the door bore the suffix "Agent." He was, indeed, a most
effective one, and he secured practically all the lemon business among
the Italians for his principals, for he was a famous capo ma mafia, and
his customers knew that if they did not buy from the growers under his
"protection" that something might, and very probably would, happen to
their families in or near Palermo. At any rate, few of them took any
chances in the matter, and his trip to America was a financial success.

In much the same way a notorious crook named Lupo forced all the retail
Italian grocers to buy from him, although his prices were considerably
higher than those of his competitors.

Even Americans have not been slow to avail themselves of Camorrist
methods. There is a sewing machine company which sells its machines to
Italian families on the instalment plan. A regular agent solicits the
orders, places the machines, and collects the initial dollar; but the
moment a subscriber in Mulberry Street falls in arrears his or her name
is placed on a black list, which is turned over by this enterprising
business house to a "collector," who is none other than the leading
Camorrist, "bad man," or Black Hander of the neighborhood. A knock on
the door from his fist, followed by the connotative expression on his
face, results almost uniformly in immediate payment of all that is due.
Needless to say, he gets his camorra--a good one--on the money that
otherwise might never be obtained.

It is probable that we should have this kind of thing among the Italians
in America even if the Neapolitan Camorra and the Sicilian Mafia had
never existed, for it is the precise kind of crime that seems to be
spontaneously generated among a suspicious, ignorant, and superstitious
people. The Italian is keenly alive to the dramatic, sensational, and
picturesque; he loves to intrigue, and will imagine plots against him
when none exists. If an Italian is late for a business engagement the
man with whom he has his appointment will be convinced that there is
some conspiracy afoot, even if his friend has merely been delayed by a
block on the subway. Thus, he is a good subject for any wily lago that
happens along. The Italians in America are the most thrifty of all our
immigrant citizens. In five years their deposits in the banks of New
York State amounted to over one hundred million dollars. The local
Italian crooks avail themselves of the universal fear of the vendetta,
and let it be generally known that trouble will visit the banker or
importer who does not "come across" handsomely. In most cases these
Black Handers are ex-convicts with a pretty general reputation as
"bad men." It is not necessary for them to phrase their demands. The
tradesman who is honored with a morning call from one of this gentry
does not need to be told the object of the visit. The mere presence of
the fellow is a threat; and if it is not acceded to, the front of the
building will probably be blown out by a dynamite bomb in the course of
the next six weeks--whenever the gang of which the bad man is the leader
can get around to it. And the bad man may perhaps have a still badder
man who is preying upon HIM. Very often one of these leaders or bosses
will run two or three groups, all operating at the same time. They meet
in the back rooms of saloons behind locked doors, under pretence of
wishing to play a game of zecchinetta unmolested, or in the gloaming
in the middle of a city park or undeveloped property on the outskirts.
There the different members of the gang get their orders and stations,
and perhaps a few dollars advance wages. It is naturally quite
impossible to guess the number of successful and unsuccessful attempts
at blackmail among Italians, as the amount of undiscovered crime
throughout the country at large is incomputable. No word of it
comes from the lips of the victims, who are in mortal terror of the
vendetta--of meeting some casual stranger on the street who will
significantly draw the forefinger of his right hand across his throat.

There is rather more chance to find and convict a kidnapper than a
bomb-thrower, so that, as a means of extortion, child-snatching is less
popular than the mere demand for the victim's money or his life. On
the other hand it is probably much more effective in accomplishing its
result. But America will not stand for kidnapping, and, although
the latter occurs occasionally, the number of cases is insignificant
compared with those in which dynamite is the chief factor. In 1908,
there were forty-four bomb outrages reported in New York City. There
were seventy arrests and nine convictions. During the present year
(1911) there have been about sixty bomb cases, but there have been none
since September 8, since Detective Carrao captured Rizzi, a picciott',
in the act of lighting a bomb in the hallway of a tenement house.

This case of Rizzi is an enlightening one for the student of social
conditions in New York, for Rizzi was no Orsini, not even a Guy Fawks,
nor yet was he an outlaw in his own name. He was simply a picciott'
(pronounced "pish-ot") who did what he was told in order that some other
man who did know why might carry out a threat to blow up somebody who
had refused to be blackmailed. It is practically impossible to get
inside the complicated emotions and motives that lead a man to become an
understudy in dynamiting. Rizzi probably got well paid; at any rate,
he was constantly demonstrating his fitness "to do big things in a big
way," and be received into the small company of the elect--to go forth
and blackmail on his own hook and hire some other picciott' to set off
the bombs.

Whoever the capo maestra that Rizzi worked for, he was not only
a deep-dyed villain, but a brainy one. The gang hired a store and
pretended to be engaged in the milk business. They carried the bombs in
the steel trays holding the milk bottles and cans, and, in the costume
of peaceful vendors of the lacteal fluid, they entered the tenements and
did their damage to such as failed to pay them tribute. The manner of
his capture was dramatic. A real milkman for whom Rizzi had worked
in the past was marked out for slaughter. He had been blown up twice
already. While he slept his wife heard some one moving in the hall.
Looking out through a small window, she saw the ex-employee fumble
with something and then turn out the gas on the landing. Her husband,
awakened by her exit and return, asked sleepily what the matter was.

"I saw Rizzi out in the hall," she answered. "It was funny-he put out
the light!"

In a moment the milkman was out of bed and gazing, with his wife, into
the street. They saw Rizzi come down with his tray and pass out of
sight. So did a couple of Italian detectives from Headquarters who had
been following him and now, at his very heels, watched him enter another
tenement, take a bomb from his tray, and ignite a time fuse. They caught
him with the thing alight in his hand. Meanwhile the other bomb had gone
off and blown up the milkman's tenement.

There is some ancient history in regard to these matters which ought
to be retold in the light of modern knowledge; for example, the case
of Patti, the Sicilian banker. He had a prosperous institution in which
were deposited the earnings of many Italians, poor and wealthy. Lupo's
gang got after him and demanded a large sum for "protection." But Patti
had a disinclination to give up, and refused. At the time his refusal
was attributed to high civic ideals, and he was lauded as a hero.
Anyhow, he defied the Mafia, laid in a stock of revolvers and rifles,
and rallied his friends around him. But the news got abroad that Lupo
was after Patti, and there was a run on Patti's bank. It was a big
run, and some of the depositors gesticulated and threatened--for Patti
couldn't pay it all out in a minute. Then there was some kind of a row,
and Patti and his friends (claiming that the Mafia had arrived) opened
fire, killing one man and wounding others. The newspapers praised Patti
for a brave and stalwart citizen. Maybe he was. After the smoke had
cleared away, however, he disappeared with all his depositors' money,
and now it has been discovered that the man he killed was a depositor
and not a Black Hander. The police are still looking for him.

This case seems a fairly good illustration of the endless opportunity
for wrong-doing possible in a state of society where extortion is
permitted to exist--where the laws are not enforced--where there is a
"higher" sanction than the code. Whether Patti was a good or a bad man,
he might easily have killed an enemy in revenge and got off scot-free on
the mere claim that the other was blackmailing him; just as an American
in some parts of our country can kill almost anybody and rely on being
acquitted by a jury, provided he is willing to swear that the deceased
had made improper advances to his wife.

The prevention of kidnapping, bomb-throwing, and the other allied
manifestations of the Black Hand depends entirely upon the activity
of the police--particularly the Italian detectives, who should form an
inevitable part of the force in every large city. The fact of the matter
is that we never dreamed of a real "Italian peril" (or, more accurately,
a real "Sicilian peril") until about the year 1900. Then we woke up to
what was going on--it had already gone a good way--and started in to put
an end to it. Petrosino did put an end to much of it, and at the present
time it is largely sporadic. Yet there will always be a halo about the
heads of the real Camorrists and Mafiusi--the Alfanos and the Rapis--in
the eyes of their simple-minded countrymen in the United States.

Occasionally one of these big guns arrives at an American port of entry,
coming first-class via Havre or Liverpool, having made his exit from
Italy without a passport. Then the Camorrists of New York and Brooklyn
get busy for a month or so, raising money for the boys at home and
knowing that they will reap their reward if ever they go back. The
popular method of collecting is for the principal capo maestra, or
temporary boss of Mulberry Street, to "give" a banquet at which all
"friends" must be present--at five dollars per head. No one cares to be
conspicuous by reason of his absence, and the hero returns to Italy with
a large-sized draft on Naples or Palermo.

Meanwhile the criminal driven out of his own country has but to secure
transportation to New York to find himself in a rich field for his
activities; and once he has landed and observed the demoralization often
existing from political or other reasons in our local forces of police
and our uncertain methods of administering justice (particularly where
the defendant is a foreigner), he rapidly becomes convinced that America
is not only the country of liberty but of license--to commit crime.

Most Italian crooks come to the United States not merely some time or
other, but at intervals. Practically all of the Camorrist defendants on
trial at Viterbo have been in the United States, and all will be here
soon again, after their discharge, unless steps are taken to keep them
out. Luckily, it is a fact that so much has been written in American
newspapers and periodicals in the past few years about the danger of the
Black Hand and the criminals from south Italy that the authorities on
the other side have allowed a rumor to be circulated that the climate of
South America is peculiarly adapted to persons whose lungs have become
weakened from confinement in prison. In fact, at the present time
more Italian criminals seek asylum in the Argentine than in the United
States. Theoretically, of course, as no convict can procure a passport,
none of them leave Italy at all--but that is one of the humors of
diplomacy. The approved method among the continental countries of Europe
of getting rid of their criminals is to induce them to "move on." A lot
of them keep "moving on" until they land in America.

Of course, the police should be able to cope with the Black Hand
problem, and, with a free use of Italian detectives who speak the
dialects and know their quarry, we may gradually, in the course of
fifteen years or so, see the entire disappearance of this particular
criminal phenomenon. But an ounce of prevention is worth--several tons
of cure. Petrosino claimed--not boastfully--that he could, with proper
deportation laws behind him, exterminate the Black Hand throughout the
United States in three months.

But, as far as the future is concerned, a solution of the problem
exists--a solution so simple that only a statesman could explain why
it has not been adopted long years ago. The statutes in force at Ellis
Island permit the exclusion of immigrants who have been guilty of crimes
involving moral turpitude in their native land, but do not provide for
the compulsory production of the applicants' "penal certificate" under
penalty of deportation. Every Italian emigrant is obliged to secure
a certified document from the police authorities of his native place,
giving his entire criminal record or showing that he has had none, and
without it he can not obtain a passport. For several years efforts
have been made to insert in our immigration laws a provision that every
immigrant from a country issuing such a certificate must produce
it before he can be sure of admission to the United States. If this
proposed law should be passed by Congress the exclusion of Italian
criminals would be almost automatic. But if it or some similar
provisions fails to become law, it is not too much to say that we may
well anticipate a Camorra of some sort in every locality in our country
having a large Italian population. Yet government moves slowly, and
action halts while diplomacy sagely shakes its head over the official
cigarette.

A bill amending the present law to this effect has received the
enthusiastic approval of the immigration authorities and of the
President. At first the Italian officials here and abroad expressed
themselves as heartily in sympathy with this proposed addition to
the excluded classes; but, once the bill was drawn and submitted to
Congress, some of these same officials entered violent protests against
it, on the ground that such a provision discriminated unfairly against
Italy and the other countries issuing such certificates. The result of
this has been to delay all action on the bill which is now being held in
committee. Meanwhile the Black Hander is arriving almost daily, and we
have no adequate laws to keep him out.