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Courts and Criminals
Arthur Train

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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.
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CHAPTER I


The Pleasant Fiction of the Presumption of Innocence


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

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

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

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

Said the mayor in his written opinion:


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




CHAPTER II

Preparing a Criminal Case for Trial


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

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

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

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

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

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

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

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


* In the State of New York.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Why, certainly," answered the district attorney,

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

The prosecutor recalled the incident and nodded.

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

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

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

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

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

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

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

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

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

The "cop" blushes and stammers:

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

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

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

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

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

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

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

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

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

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

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

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




CHAPTER III

Sensationalism and Jury Trials


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



CHAPTER IV

Why Do Men Kill?


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

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

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

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

I glanced along the red-labeled backs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

1885......1,808..........56,I48,000..........32.2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Total......191,150


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

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

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




CHAPTER V

Detectives and Others


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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the great struggle between capital and labor, each side has
expended large sums of money in employing confederates to
secure secret information as to the plans and doings of the
enemy.  Almost every labor union has its Judas, and less often
a secretary to a capitalist is in the secret employment of a
labor union.  The railroads must be kept informed of what is
going on, and, if necessary, they import a man from another
part of the country to join the local organization.  Often
such men, on account of their force and intelligence, are
elected to high office in the brotherhoods whose secrets they
are hired to betray.  Practically every big manufacturing
plant in the United States has on its payrolls men acting as
engineers, foremen, or laborers who are drawing from $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, carefuly torn out in
circular form, which showed the certification which he
desired copied.  This fragment the maker had retained,
as well as a slip of paper, upon which the customer had
written the address of the place to which he wished the stamp
sent--The Young Men's Christian Association!  The face of the
fragment showed a part of the maker's signature.  The
superintendent ran his eye over a list of brokers and picked
out the name of the firm most like the hieroglyphics on the
check.  Then he telephoned over and asked to be permitted to
see their pay roll.  Carefully comparing the signature
appearing thereon with the Y.M.C.A. slip, he picked his man
in less than ten minutes.

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

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

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

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

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

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

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




CHAPTER VII

Women in the Courts


AS WITNESSES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

One of the ladies referred to testified as follows:

"Can you identify that diamond?"

"I am quite sure that it is mine:"

"How do you know?"

"It looks exactly like it."

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

"No; it is mine."

"But how?  It has no marks."

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

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

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

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

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

"Do you know the defendant?"

"Yes, to my cost!"

Or

"How old are you?"

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

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

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

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

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

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

"How do you support yourself?"

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

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

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

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

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

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

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

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

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

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

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

"Oh, fully that!"

"Twenty miles an hour?"

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

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

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

"Will you say it was going forty?"

"Yes."

"Fifty?"

"Yes, I will say so."

"Seventy?"

"Yes."

"Eighty?"

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

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

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

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

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

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

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

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

"Stop! stop!" exclaimed the lawyer.

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

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

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

The lawyer ignominiously abandoned the attack.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


AS COMPLAINANTS AND DEFENDANTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


The percentage of convictions to acquittals is as follows:

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


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

          Convictions Acquittals Convictions Acquittals
                                  Per Cent    Per Cent

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

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

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

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

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

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

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

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


* Cf.  Thayer, as cited, supra.


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




CHAPTER VIII

Tricks of the Trade


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

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

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

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

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

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

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

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

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

"We have," replied the foreman.

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

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

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

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

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

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

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

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

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

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

"Defendant discharged!" remarked the court briefly.

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

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


BEFORE TRIAL

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

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

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

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

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

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

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

1.  Acute gastritis.

2.  Acute nephritis.

3.  Cerebro-spinal meningitis.

4.  Fulminating meningitis.

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

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

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

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

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

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

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

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

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

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

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

The prisoner arose and walked to the witnesschair.

"Open your mouth!" shouted the lawyer.

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

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

1.  Demur to the indictment.,

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

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

4.  Move for a commission to take testimony.

5.  Move for a change of venue.

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

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

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

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

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

AT THE TRIAL

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CITY & COUNTY OF NEW YORK: ss:

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

PRESENT.
                William Morrott \   Esquires
                James Graham    /      quorum

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

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

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

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

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

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

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

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

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




CHAPTER IX

What Fosters Crime


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

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

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

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

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

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

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

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

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

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

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

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


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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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


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


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


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

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


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


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




CHAPTER X

Insanity and the Law


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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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


* Dew vs. Clark.


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

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

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

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

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

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

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

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

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


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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To recapitulate from the writer's experience:

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

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

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

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

The following deductions may also fairly be made from
observation:

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

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

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

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

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

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

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

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

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


*See State vs.  Richards, 1873, Conn.


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


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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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


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


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




CHAPTER XI

The Mala Vita in America


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

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

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

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

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

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

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

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

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

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

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

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

"No," answered the woman.

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

"No."

"Then it's there yet?"

"I-I think so," falteringly.

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

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

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

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

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

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

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

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

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


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


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

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

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

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

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

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


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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"You shall be paid," said the Camorrist.

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

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

The importer nodded.

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

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

"Go on!" directed the latter.

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

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

"I have deducted the camorra," said he.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



THE END




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