"Is this Mr. Felix?--Yes? Well, be very careful now. I am going to give
you the result of the third race which has already been run. I will hold
back the news three minutes. This is merely to see if everything is
working right. Don't make any bet. If I give you the winners correctly,
you can put your money on the fourth race. The horse that won the last
is Col. Starbottle--Don Juan is second. Now just step back and see if I
am right."
Felix rushed back to the pool room. As he entered the man at the tape
was calling out that "they" were off. In due course "they" reached the
quarter and then the half. A terrific struggle was in progress between
Col. Starbottle and Don Juan. First one was ahead and then the other.
Finally they came thundering down to the stretch, Col. Starbottle
winning by a neck. "Gates" won $90,000, and several others pocketed wads
running anywhere from $20,000 to $60,000.
Felix hurried back to the telephone. "Mac" was at the other end.
"Now write this down," admonished McPherson; "we can't afford to have
any mistake. Old Stone has just won the fourth race, with Calvert
second. Play Old Stone to win at 5 to 1. We shall make $250,000--and Old
Stone is safe in the stable all the time and his jockey is smoking a
cigarette on the club house veranda. Good luck, old man."
Felix had some difficulty in getting near the "trusted cashier" so many
financiers were betting on Calvert. Felix smiled to himself. He'd show
them a thing or two.
Finally he managed to push his envelope containing the five
ten-thousand-dollar bills into the "trusted cashier's" hand. The latter
marked it "Old Stone, 5 to 1 to win!" and thrust it into his pocket.
Then "Whitney" or somebody bet $70,000 on Calvert.
"They're off!" shouted the man at the tape.
How he lived while they tore around the course Felix never knew. Neck
and neck Old Stone and Calvert passed the quarter, the half, and the
three-quarter post, and with the crowd yelling like demons came hurtling
down the stretch.
"Old Stone wins!" cried the "booster" at the tape in a voice husky with
excitement. "Calvert a close second!" Felix nearly fainted. His head
swam. He had won a quarter of a million. Then the voice of the "booster"
made itself audible above the confusion.
"What! A mistake? Not possible!--Yes. Owing to some confusion at the
finish, both jockies wearing the same colors, the official returns now
read Calvert first; Old Stone second."
Among the zitherns Felix sat and wondered if he had been schvindled. He
had not returned to Wassermann Brothers. Had he done so he would have
found it empty five minutes after he had lost his money. The
millionaires were already streaming hilariously into Sharkey's. "Gates"
pledged "Belmont" and "Keene" pledged "Whitney." Each had earned five
dollars by the sweat of his brow. The glorious army of wire-tappers had
won another victory and their generals had consummated a campaign of
months. Expenses (roughly), $600. Receipts, $50,000. Net profits,
$48,400. Share of each, $16,133.
A day or two later Felix wandered down to Police Headquarters, and in
the Rogue's Gallery identified the photograph of Nelson, whom he then
discovered to be none other than William Crane, alias John Lawson, alias
John Larsen, a well-known "wire-tapper," arrested some dozen times
within a year or two for similar offences. McPherson turned out to be
Christopher Tracy, alias Charles J. Tracy, alias Charles Tompkins, alias
Topping, alias Toppin, etc., etc., arrested some eight or ten times for
"wire-tapping." The "trusted cashier" materialized in the form of one
Wyatt, alias, Fred Williams, etc., a "wire-tapper" and pal of "Chappie"
Moran and "Larry" Summerfield. Detective Sergeants Fogarty and Mundy
were at once detailed upon the case and arrested within a short time
both Nelson and McPherson. The "trusted cashier" who had pocketed
Felix's $50,000 has never been caught. It is said that he is running a
first-class hostelry in a Western city. But that is another story.
When acting Inspector O'Brien ordered McPherson brought into his private
room, the latter unhesitatingly admitted that the three of them had
"trimmed" Felix of his $50,000, exactly as the latter had alleged. He
stated that Wyatt (alias Williams) was the one who had taken in the
money, that it was still in his possession, and still intact in its
original form. He denied, however, any knowledge of Wyatt's whereabouts.
The reason for this indifference became apparent when the two prisoners
were arraigned in the magistrate's court, and their counsel demanded
their instant discharge on the ground that they had committed no crime
for which they could be prosecuted. He cited an old New York case,
McCord _vs._ The People,[2] which seemed in a general way to sustain his
contention, and which had been followed by another and much more recent
decision. The People _vs._ Livingston.[3] The first of these cases had
gone to the Court of Appeals, and the general doctrine had been
annunciated that where a person parts with his money for an unlawful or
dishonest purpose, even though he is tricked into so doing by false
pretences, a prosecution for the crime of larceny cannot be maintained.
[Footnote 2: 46 New York 470.]
[Footnote 3: 47 App. Div. 283.]
In the McCord case, the defendant had falsely pretended to the
complainant, a man named Miller, that he was a police officer and held a
warrant for his arrest. By these means he had induced Miller to give him
a gold watch and a diamond ring as the price of his liberty. The
conviction in this case was reversed on the ground that Miller parted
with his property for an unlawful purpose; but there was a very strong
dissenting opinion from Mr. Justice Peckham, now a member of the bench
of the Supreme Court of the United States.
In the second case, that of Livingston, the complainant had been
defrauded out of $500 by means of the "green goods" game; but this
conviction was reversed by the Appellate Division of the Second
Department on the authority of the McCord case. The opinion in this case
was written by Mr. Justice Cullen, now Chief Judge of the New York Court
of Appeals, who says in conclusion:
"We very much regret being compelled to reverse this conviction. Even if
the prosecutor intended to deal in counterfeit money, that is no reason
why the appellant should go unwhipped of justice. We venture to suggest
that it might be well for the Legislature to alter the rule laid down in
McCord _vs._ People."
Well might the judges regret being compelled to set a rogue at liberty
simply because he had been ingenious enough to invent a fraud (very
likely with the assistance of a shyster lawyer) which involved the
additional turpitude of seducing another into a criminal conspiracy.
Livingston was turned loose upon the community in spite of the fact that
he had swindled a man out of $500 because he had incidentally led the
latter to believe that in return he was to receive counterfeit money or
"green goods," which might be put into circulation. Yet, because some
years before, the Judges of the Court of Appeals had, in the McCord
matter, adopted the rule followed in civil cases, to wit that as the
complaining witness was himself in fault and did not come into court
with clean hands he could have no standing before them, the Appellate
Division in the next case felt obliged to follow them and to rule
tantamount to saying that two wrongs could make a right and two knaves
one honest man. It may seem a trifle unfair to put it in just this way,
but when one realizes the iniquity of such a doctrine as applied to
criminal cases, it is hard to speak softly. Thus the broad and general
doctrine seemed to be established that so long as a thief could induce
his victim to believe that it was to his advantage to enter into a
dishonest transaction, he might defraud him to any extent in his power.
Immediately there sprang into being hordes of swindlers, who, aided by
adroit shyster lawyers, invented all sorts of schemes which involved
some sort of dishonesty upon the part of the person to be defrauded. The
"wire-tappers," of whom "Larry" Summerfield was the Napoleon, the
"gold-brick" and "green-goods" men, and the "sick engineers" flocked to
New York, which, under the unwitting protection of the Court of Appeals,
became a veritable Mecca for persons of their ilk.
To readers unfamiliar with the cast of mind of professional criminals it
will be almost impossible to appreciate with what bold insouciance these
vultures now hovered over the metropolitan barnyard. Had not the Court
of Appeals itself recognized their profession? They had nothing to fear.
The law was on their side. They walked the streets flaunting their
immunity in the very face of the police. "Wire-tapping" became an
industry, a legalized industry with which the authorities might
interfere at their peril. Indeed, there is one instance in which a
"wire-tapper" successfully prosecuted his victim (after he had trimmed
him) upon a charge of grand larceny arising out of the same transaction.
One crook bred another every time he made a victim, and the disease of
crime, the most infectious of all distempers, ate its way unchecked into
the body politic. Broadway was thronged by a prosperous gentry, the
aristocracy and elite of knavery, who dressed resplendently, flourished
like the green bay-tree, and spent their (or rather their victims')
money with the lavish hand of one of Dumas's gentlemen.
But the evil did not stop there. Seeing that their brothers prospered in
New York, and neither being learned in the law nor gifted with the power
of nice discrimination between rogueries, all the other knaves in the
country took it for granted that they had at last found the Elysian
fields and came trooping here by hundreds to ply their various trades.
The McCord case stood out like a cabalistic sign upon a gate-post
telling all the rascals who passed that way that the city was full of
honest folk waiting to be turned into rogues and "trimmed."
"And presently we did pass a narrow lane, and at the mouth espied a
written stone, telling beggars by a word like a wee pitchfork to go
that way."
The tip went abroad that the city was "good graft" for everybody, and in
the train of the "wire-tappers" thronged the "flimflammer," "confidence
man," "booster," "capper" and every sort of affiliated crook, recalling
Charles Reade's account in "The Cloister and the Hearth" of Gerard in
Lorraine among their kin of another period:
With them and all they had, 'twas lightly come and lightly go; and
when we left them my master said to me, "This is thy first lesson,
but to-night we shall be at Hansburgh. Come with me to the 'rotboss'
there, and I'll show thee all our folk and their lays, and
especially 'the lossners,' 'the dutzers,' 'the schleppers,' 'the
gickisses,' 'the schwanfelders,' whom in England we call 'shivering
Jemmies,' 'the süntregers,' 'the schwiegers,' 'the joners,' 'the
sessel-degers,' 'the gennscherers,' in France 'marcandiers a
rifodés,' 'the veranerins,' 'the stabulers,' with a few foreigners
like ourselves, such as 'pietres,' 'francmitoux,' 'polissons,'
'malingreux,' 'traters,' 'rufflers,' 'whipjacks,' 'dommerars,'
'glymmerars,' 'jarkmen,' 'patricos,' 'swadders,' 'autem morts,'
'walking morts,'--" "Enow!" cried I, stopping him, "art as gleesome
as the evil one a counting of his imps. I'll jot down in my tablet
all these caitiffs and their accursed names: for knowledge is
knowledge. But go among them alive or dead, that will I not with my
good will."
And a large part of it was due simply to the fact that seven learned men
upon seven comfortable chairs in the city of Albany had said, many years
ago, that "neither the law or public policy designs the protection of
rogues in their dealings with each other, or to insure fair dealing and
truthfulness as between each other, in their dishonest practices."
The reason that the "wire-tapping" game was supposed to come within the
scope of the McCord case was this: it deluded the victim into the
belief that he was going to cheat the pool room by placing a bet upon a
"sure thing." Secondarily it involved, as the dupe supposed, the theft
or disclosure of messages which were being transmitted over the lines of
a telegraph company--a misdemeanor. Hence, it was argued, the victim was
as much a thief as the proposer of the scheme, had parted with his money
for a dishonest purpose, did not come into court with "clean hands," and
no prosecution could be sustained, no matter whether he had been led to
give up his money by means of false pretences or not.
While "wire-tapping" differed technically from the precise frauds
committed by McCord and Livingston, it nevertheless closely resembled
those swindlers in general character and came clearly within the
doctrine that the law was not designed to protect "rogues in their
dealings with each other."
No genuine attempt had ever been made to prosecute one of these gentry
until the catastrophe which deprived Felix of his $50,000. The
"wire-tappers" rolled in money. Indeed, the fraternity were so liberal
with their "rolls" that they became friendly with certain police
officials and intimately affiliated with various politicians of
influence, a friend of one of whom went on Summerfield's bond, when the
latter was being prosecuted for the "sick-engineer" frauds to the extent
of $30,000. They regularly went to Europe in the summer season and could
be seen at all the race-courses and gambling resorts of the Continent.
It is amusing to chronicle in this connection that just prior to
McPherson's arrest--that is to say during the summer vacation of
1904--he crossed the Atlantic on the same steamer with an assistant
district attorney of New York county, who failed to recognize his ship
companion and found him an entertaining and agreeable comrade.
The trial came on before Judge Warren W. Foster in Part 3 of the General
Sessions on February 27th, 1906. A special panel quickly supplied a
jury, which, after hearing the evidence, returned in short order a
verdict of guilty. As Judge Foster believed the McCord case to be still
the law of the State, he, of his own motion, and with commendable
independence, immediately arrested judgment. The People thereupon
appealed, the Court of Appeals sustained Judge Foster, and the defendant
was discharged. It is, however, satisfactory to record that the
Legislature at its next session amended the penal code in such a way as
to entirely deprive the wire-tappers and their kind of the erstwhile
protection which they had enjoyed under the law.
V