AS WITNESSES
Women appear in the criminal courts constantly as witnesses, although
less frequently as complainants and defendants. As complainants are
always witnesses, and as defendants may, and in point of fact generally
do become so, whatever generalizations are possible regarding women in
courts of law can most easily be drawn from their characteristics as
givers of testimony. Roughly speaking, women exhibit about the same
idiosyncrasies and limitations in the witness-chair as the opposite sex,
and at first thought one would be apt to say that it would be fruitless
and absurd to attempt to predicate any general principles in regard to
their testimony, but a careful study of female witnesses as a whole will
result in the inevitable conclusion that their evidence has virtues and
limitations peculiar to itself.
The ancient theory that woman was man's inferior showed itself in the
tendency to reject, or at least to regard with suspicion, her evidence
in legal matters.
"The following law," says W. M. Best, "is attributed to Moses by
Josephus: 'Let the testimony of women not be received on account of the
levity and audacity of their sex'; a law which looks apocryphal, but
which, even if genuine, could not have been of universal application....
The law of ancient Rome, though admitting their testimony in general,
refused it in certain cases. The civil canon laws of mediaeval Europe
seem to have carried the exclusion much further. Mascardus says:
'Feminis plerumque omnino non creditur, et id dumtaxat, quod sunt
feminae qua ut plurimum solent esse fraudulentre fallaces, et dolosae'
[Generally speaking, no credence at all is given to women, and for this
reason, because they are women, who are usually deceitful, untruthful,
and treacherous in the very highest degree.] And Lancelottus, in his
'Institutiones Juris Canonici,' lays it down in the most distinct
terms, that women cannot in general be witnesses, citing the language of
Virgil: 'Varium et mutabile semper femina'....
"Bruneau, although a contemporary of Madame de Sevigne, did not scruple
to write, in 1686, that the deposition of three women was only equal to
that of two men. At Berne, so late as 1821, in the Canton of Vaud, so
late as 1824, the testimony of two women was required to counterbalance
that of one man.... A virgin was entitled to greater credit than a
widow.... In the 'Canonical Institutions of Devotus,' published at
Paris in 1852, it is distinctly stated that, except in a few peculiar
instances, women are not competent witnesses in criminal cases. In
Scotland also, until the beginning of the eighteenth century, sex was
a cause of exclusion from the witness-box in the great majority of
instances."
Cockburn in his Memoirs tells of an incident during the trial of
Glengarry, in Scotland, for murder in a duel, which is, perhaps,
explicable by this extraordinary attitude: A lady of great beauty
was called as a witness and came into court heavily veiled. Before
administering the oath, Lord Eskgrove, the judge (to whom this function
belongs in Scotland), gave her this exposition of her duty:
"Young woman, you will now consider yourself as in the presence of
Almighty God and of this High Court. Lift up your veil, throw off all
your modesty, and look me in the face."
Whatever difference does exist in character between the testimony of
men and women has its root in the generally recognized diversity in the
mental processes of the two sexes. Men, it is commonly declared, rely
upon their powers of reason; women upon their intuition. Not that the
former is frequently any more accurate than the latter. But our courts
of law (at least those in English-speaking countries) are devised and
organized, perhaps unfortunately, on the principle that testimony not
apparently deduced by the syllogistic method from the observation of
relevant fact is valueless, and hence woman at the very outset is
placed at a disadvantage and her usefulness as a probative force sadly
crippled.
The good old lady who takes the witness-chair and swears that she knows
the prisoner took her purse has perhaps quite as good a basis for her
opinion and her testimony (even though she cannot give a single reason
for her belief and becomes hopelessly confused on cross-examination) as
the man who reaches the same conclusion ostensibly by virtue of having
seen the defendant near by, observed his hand reaching for the purse,
and then perceived him take to his heels. She has never been taught to
reason and has really never found it necessary, having wandered through
life by inference or, more frankly, by guesswork, until she is no
longer able to point out the simplest stages of her most ordinary mental
processes.
As the reader is already aware, the value of all honestly given
testimony depends first upon the witness's original capacity to observe
the facts; second upon his ability to remember what he has seen and not
to confuse knowledge with imagination, belief or custom, and lastly,
upon his power to express what he has, in fact, seen and remembers.
Women do not differ from men in their original capacity to observe,
which is a quality developed by the training and environment of the
individual. It is in the second class of the witness's limitations that
women as a whole are more likely to trip than men, for they are prone to
swear to circumstances as facts, of their own knowledge, simply because
they confuse what they have really observed with what they believe
did occur or should have occurred, or with what they are convinced did
happen simply because it was accustomed to happen in the past.
Perhaps the best illustration of the female habit of swearing that facts
occurred because they usually occurred, was exhibited in the
Twitchell murder trial in Philadelphia, cited in Wellman's "Art of
Cross-Examination." The defendant had killed his wife with a blackjack,
and having dragged her body into the back yard, carefully unbolted the
gate leading to the adjacent alley and, retiring to the house, went to
bed. His purpose was to create the impression that she had been murdered
by some one from outside the premises. To carry out the suggestion, he
bent a poker and left it lying near the body smeared with blood. In the
morning the servant girl found her mistress and ran shrieking into the
street.
At the trial she swore positively that she was first obliged to unbolt
the door in order to get out. Nothing could shake her testimony, and she
thus unconsciously negatived the entire value of the defendant's adroit
precautions. He was justly convicted, although upon absolutely erroneous
testimony.
The old English lawyers occasionally rejected the evidence of women
on the ground that they are "frail." But the exclusion of women as
witnesses in the old days was not for psychological reasons, nor did
it originate from a critical study of the probative value of their
testimony.
Though the conclusions to which women frequently jump may usually be
shown by careful interrogation to be founded upon observation of actual
fact, their habit of stating inferences often leads them to claim
knowledge of the impossible--"wiser in [their] own conceit than seven
men that can render a reason."
In a very recent case where a clever thief had been convicted of looting
various apartments in New York City of over eighty thousand dollars'
worth of jewelry, the female owners were summoned to identify their
property. The writer believes that in every instance these ladies were
absolutely ingenuous and intended to tell the absolute truth. Each and
every one positively identified various of the loose stones found in the
possession of the prisoner as her own. This was the case even when the
diamonds, emeralds and pearls had no distinguishing marks at all. It
was a human impossibility actually to identify any such objects, and yet
these eminently respectable and intelligent gentlewomen swore positively
that they could recognize their jewels. They drew the inference merely
that as the prisoner had stolen similar jewels from them these must be
the actual ones which they had lost, an inference very likely correct,
but valueless in a tribunal of justice.
Where their inferences are questioned, women, as a rule, are much
more ready to "swear their testimony through" than men. They are so
accustomed to act upon inference that, finding themselves unable to
substantiate their assertion by any sufficient reason, they become
irritated, "show fight," and seek refuge in prevarication. Had they not,
during their entire lives, been accustomed to mental short-cuts, they
would be spared the humiliation of seeing their evidence "stricken from
the record."
One of the ladies referred to testified as follows:
"Can you identify that diamond?"
"I am quite sure that it is mine:"
"How do you know?"
"It looks exactly like it."
"But may it not be a similar one and not your own?"
"No; it is mine."
"But how? It has no marks."
"I don't care. I know it is mine. I SWEAR IT IS!"
The good lady supposed that, unless she swore to the fact, she might
lose her jewel, which was, of course, not the case at all, as the sworn
testimony founded upon nothing but inference left her in no better
position than she was in before.
The writer regrets to say that observation would lead him to believe
that women as a rule have somewhat less regard for the spirit of their
oaths than men, and that they are more ready, if it be necessary, to
commit perjury. This may arise from the fact that women are fully aware
that their sex protects them from the same severity of cross-examination
to which men would be subjected under similar circumstances. It is today
fatal to a lawyer's case if he be not invariably gentle and courteous
with a female witness, and this is true even if she be a veritable
Sapphira.
In spite of these limitations, which, of course, affect the testimony
of almost every person, irrespective of sex, women, with the possible
exception of children, make the most remarkable witnesses to be found
in the courts. They are almost invariably quick and positive in their
answers, keenly alive to the dramatic possibilities of the situation,
and with an unerring instinct for a trap or compromising admission.
A woman will inevitably couple with a categorical answer to a question,
if in truth she can be induced to give one at all, a statement of
damaging character to her opponent. For example:
"Do you know the defendant?"
"Yes, to my cost!"
Or
"How old are you?"
"Twenty-three,--old enough to have known better than to trust him."
Forced to make an admission which would seem to hurt her position, the
explanation, instead of being left for the re-direct examination of her
own counsel, is instantly added to her answer then and there.
"Do you admit that you were on Forty-second Street at midnight?"
"Yes. But it was in response to a message sent by the defendant through
his cousin."
What is commonly known as "silent cross-examination" is generally the
most effective. The jury realize the difficulties of the situation for
the lawyer, and are not unlikely to sympathize with him, unless he makes
bold to attack the witness, when they quickly chance their attitude.
One question, and that as to the witness's means of livelihood, is often
sufficient.
"How do you support yourself?"
"I am a lady of leisure!" replies the witness (arrayed in flamboyant
colors) snappishly.
"That will do, thank you," remarks the lawyer with a smile. "You may
step down."
The writer remembers being nicely hoisted by his own petard on a similar
occasion:
"What do you do for a living?" he asked.
The witness, a rather deceptively arrayed woman, turned upon him with a
glance of contempt:
"I am a respectable married woman, with seven children," she retorted.
"I do nothing for a living except cook, wash, scrub, make beds, clean
windows, mend my children's clothes, mind the baby, teach the four
oldest their lessons, take care of my husband, and try to get enough
sleep to be up by five in the morning. I guess if some lawyers worked
as hard as I do they would have sense enough not to ask impertinent
questions."
An amusing incident is recorded of how a feminine witness turned the
laugh upon Mr. Francis L. Wellman, the noted cross-examiner. In his
book he takes the opportunity to advise his lawyer readers to "avoid the
mistake, so common among the inexperienced, of making much of trifling
discrepancies. It has been aptly said," he continues, "that 'juries
have no respect for small triumphs over a witness's self-possession or
memory!' Allow the loquacious witness to talk on; he will be sure
to involve himself in difficulties from which he can never extricate
himself. Some witnesses prove altogether too much; encourage them and
lead them by degrees into exaggerations that will conflict with the
common-sense of the jury."
Mr. Wellman is famous for following this precept himself and, with one
eye significantly cast upon the jury, is likely to lead his witness
a merry dance until the latter is finally "bogged" in a quagmire of
absurdities. Not long ago, shortly after the publication of his book,
the lawyer had occasion to cross-examine a modest-looking young woman as
to the speed of an electric car. The witness seemed conscious that she
was about to undergo a severe ordeal, and Mr. Wellman, feeling himself
complete master of the situation, began in his most winsome and
deprecating manner:
"And how fast, Miss, would you say the car was going?"
"I really could not tell exactly, Mr. Wellman."
"Would you say that it was going at ten miles an hour?"
"Oh, fully that!"
"Twenty miles an hour?"
"Yes, I should say it was going twenty miles an hour."
"Will you say it was going thirty miles an hour?" inquired Wellman with
a glance at the jury.
"Why, yes, I will say that it was."
"Will you say it was going forty?"
"Yes."
"Fifty?"
"Yes, I will say so."
"Seventy?"
"Yes."
"Eighty?"
"Yes," responded the young lady with a countenance absolutely devoid of
expression.
"A hundred?" inquired the lawyer with a thrill of eager triumph in his
voice.
There was a significant hush in the court-room Then the witness, with
a patient smile and a slight lifting of her pretty eyebrows, remarked
quietly:
"Mr. Wellman, don't you think we have carried our little joke far
enough?"
There is no witness in the world more difficult to cope with than a
shrewd old woman who apes stupidity, only to reiterate the gist of her
testimony in such incisive fashion as to leave it indelibly imprinted
on the minds of the jury. The lawyer is bound by every law of decency,
policy and manners to treat the aged dame with the utmost consideration.
He must allow her to ramble on discursively in defiance of every rule
of law and evidence in answer to the simplest question; must receive
imperturbably the opinions and speculations upon every subject of both
herself and (through her) of her neighbors; only to find when he thinks
she must be exhausted by her own volubility, that she is ready, at the
slightest opportunity, to break away again into a tangle of guesswork
and hearsay, interwoven with conclusions and ejaculation. Woe be unto
him if he has not sense enough to waive her off the stand! He might
as well try to harness a Valkyrie as to restrain a pugnacious old
Irishwoman who is intent on getting the whole business before the jury
in her own way.
In the recent case of Gustav Dinser, convicted of murder, a vigorous old
lady took the stand and testified forcibly against the accused. She
was as "smart as paint," as the saying goes, and resolutely refused to
answer any questions put to her by counsel for the defence. Instead,
she would raise her voice and make a savage onslaught upon the prisoner,
rehearsing his brutal treatment of the deceased on previous occasions,
and getting in the most damaging testimony.
"Do you say, Mrs.--" the lawyer would inquire deferentially, "that you
heard the sound of three blows?"
"Oh, thim blows!" the old lady would cry--"thim turrible blows! I could
hear the villain as he laid thim on! I could hear the poor, pitiful
groans av her, and she so sufferin'! 'Twas awful! Howly Saints,'twould
make yer blood run cowld!"
"Stop! stop!" exclaimed the lawyer.
"Ah, stop is it? Ye can't stop me till Oi've had me say to tell the
whole truth. I says to me daughter Ellen, says I: 'Th' horrid baste
is afther murtherin' the poor thing,' says I; 'run out an' git an
officer!'"
"I object to all this!" shouts the lawyer.
"Ah, ye objec', do ye?" retorts the old lady. "Shure an' ye'd have been
after objectin' if ye'd heard thim turrible blows that kilt her--the
poor, sufferin', swate crayter! I hope he gits all that's comin' to
him--bad cess to him for a blood-thirsty divil!"
The lawyer ignominiously abandoned the attack.
The writer recalls a somewhat similar instance, but one even better
exhibiting the cleverness of an old woman, which occurred in the year
1901. A man named Orlando J. Hackett, of prepossessing appearance and
manners, was on trial, charged with converting to his own use
money which had been intrusted to him for investment in realty. The
complainant was a shrewd old lady, who together with her daughter, had
had a long series of transactions with Hackett which would have entirely
confused the issue could the defence have brought them before the jury.
The whole contention of the prosecution was that Hackett had received
the money for one purpose and used it for another. During preparation
for the trial the writer had had both ladies in his office and remembers
making the remark:
"Now, Mrs. ------, don't forget that the charge here is that you
gave Mr. Hackett the money to put into real estate. Nothing else is
comparatively of much importance."
"Be sure and remember that, mother," the daughter had admonished her.
In the course of a month the case came on for trial before Recorder
Goff, in Part II of the General Sessions. Mrs. ------ gave her
testimony with great positiveness. Mr. Lewis Stuyvesant Chanler, now
Lieutenant-Governor of the State, arose to cross-examine her.
"Madam," he began courteously, "you say you gave the defendant money?"
"I told him to put it into real estate, and he said he would!" replied
Mrs. firmly.
"I did not ask you that, Mrs. ------," politely interjected Mr. Chanler.
"How much did you give him?"
"I told him to put it into real estate, and he said he would!" repeated
the old lady wearily.
"But, madam, you do not answer my question!" exclaimed Chanler. "How
much did you give him?"
"I told him to put it into real--" began the old lady again.
"Yes, yes!" cried the lawyer; "we know that! Answer the question."
"estate, and he said he would!" finished the old woman innocently.
"If your Honor please, I will excuse the witness. And I move that her
answers be stricken out!" cried Chanler savagely.
The old lady was assisted from the stand, but as she made her way
with difficulty towards the door of the court-room she could be heard
repeating stubbornly:
"I told him to put it into real estate, and he said he would!"
Almost needless to say, Hackett was convicted and sentenced to seven
years in State's prison.
To recapitulate, the quickness and positiveness of women make them
ordinarily better witnesses than men; they are vastly more difficult to
cross-examine; their sex protects them from many of the most effective
weapons of the lawyer, with the result that they are the more ready to
yield to prevarication; and, even where the possibility of complete
and unrestricted cross-examination is afforded, their tendency to
inaccurately inferential reasoning, and their elusiveness in dodging
from one conclusion to another, render the opportunity of little value.
In general, however, women's testimony differs little in quality
from that of men, all testimony being subject to the same three great
limitations irrespective of the sex of the witness, and the conclusions
set forth above are merely the result of an effort on the part of the
writer to comment somewhat upon those small differences which, under
close scrutiny, may fairly be said to exist. These differences are quite
as noticeable at the breakfast-table as in the court-room; and are
no more patent to the advocate than to the ordinary male animal whose
forehead habitually reddens when he hears the unanswerable reason which,
in default of all others, explains and glorifies the mental action of
his wife, sister or mother: "Just because!"
AS COMPLAINANTS AND DEFENDANTS
The ratio of women to men indicted and tried for crime is, roughly,
about one to ten. Could adequate statistics be procured, the proportion
of female to male complainants in criminal cases would very likely prove
to be about the same: In a very substantial proportion, therefore, of
all prosecutions for crime a woman is one of the chief actors. The law
of the land compels the female prisoner to submit the question of
her guilt or innocence to twelve individuals of the opposite sex; and
permits the female complainant to rehearse the story of her wrongs
before the same collection of colossal intellects and adamantine hearts.
The first thing the ordinary woman hastens to do if she be summoned to
appear in a court of justice is not, as might be expected, to think over
her testimony or try to recall facts obliterated or confused by time,
but to buy a new hat; and precisely the same thing is true of the female
defendant called to the bar of justice, whether it be for stealing a
pair of gloves or poisoning her lover.
Yet how far does the element of sex defeat the ends of justice? To
answer this question it is necessary to determine how far juries are
liable to favor the testimony of a woman plaintiff merely because she
is a woman, and how far sympathy for a woman arraigned as a prisoner is
likely to warp their judgment.
As to the first, it is fairly safe to say that a woman is much more
likely to win a verdict in a civil court or to persuade the jury
that the prisoner is guilty in a criminal case than a man would be in
precisely similar circumstances. In most criminal prosecutions for the
ordinary run of felonies little injustice is likely to result from this.
There is one exception, however, where juries should reach conclusions
with extreme caution, namely, where certain charges are brought by women
against members of the opposite sex.
Here the jury is apt to leap to a conclusion, rendered easy by the
attractiveness of the witness and the feeling that the defendant is a
"cur anyway," and ought to be "sent up."
The difficulty of determining, even in one's office, the true character
of a plausible woman is enhanced tenfold in the court-room, where the
lawyer is generally compelled to proceed upon the assumption that the
witness is a person of irreproachable life and antecedents. Almost any
young woman may create a favorable impression, provided her taste in
dress be not too crude, and, even when it is so, the jury are not apt to
distinguish carefully between that which cries to Heaven and that which
is merely "elegant."
When the complaining witness is a woman who has merely lost money
through the acts of the defendant, the jury are not so readily moved
to accept her story in toto as when the crime charged is of a different
character. They realize that the complainant, feeling that she has been
injured, may be inclined to color her testimony, perhaps unconsciously,
until the wrong becomes a crime.
An ordinary example of this variety of prosecution is where the witness
is a young woman from the East Side, usually a Polish or Russian Jewess,
who charges the defendant, a youth of about her own age, with stealing
her money by means of false pretences. They have been engaged to be
married, and she has turned over her small savings to him to purchase
the diamond ring and perhaps set him up in a modest business of his
own. He has then fallen in love with some other girl, has broken the
engagement, and the ring now adorns the fourth finger of her rival. Her
money is gone. She is without a dot. She hurries with her parents
and loudly vociferating friends to the Essex Market Police Court, and
secures a warrant for the defendant on the theory that he defrauded
her by "trick and device" or "false representations." Usually the only
"representation" has been a promise to marry her. Her real motive is
revenge upon her faithless fiance. In nine cases out of ten the fellow
is a cad, who has deliberately deserted her after getting her money, but
it is doubtful whether any real crime is involved.
If the judge lets the case go to the jury it is a pure gamble as to
what the result will be, and it may largely turn on the girl's physical
attractiveness. If she be pretty and demure a mixture of emotions
is aroused in the jury. "He probably did love her," say the twelve,
"because any one would be likely to do so. If he did love her, of course
he didn't falsely pretend to do so; but if he deserted a woman like that
he ought to be in jail anyway." Thus the argument that ought to acquit
in fact may convict the defendant. If the rival also is pretty, hopeless
confusion results; while if the complainant be a homely girl the jury
feels that he must have intended to swindle her anyway, as he could
never have honestly intended to marry her. Thus in any case the Lothario
is apt to pay a severe penalty for his faithlessness.
The man prosecuted by a woman, provided she cannot be persuaded to
withdraw the charge against him, is likely to get but cold consideration
for his side of the story and short shrift in the jury-room. Turn about,
if he can get a young and attractive woman to swear to his alibi or good
reputation the honest masculine citizen whom he has defrauded may very
likely have to whistle for his revenge. Many a scamp has gone free by
producing some sweetly demure maiden who faithfully swears that she
knows him to be an honest man. A blush at the psychological moment and
a wink from the lawyer is quite enough to lead the jury to believe that,
if they acquit the defendant, they will "make the young lady happy,"
whereas if he is convicted she will remain for aye a heart-broken
spinster. Like enough she may be only the merest acquaintance.
The writer is not likely to forget a distinguished lawyer's instructions
to his client who happened also to be a childhood acquaintance--as she
was about to go into court as the plaintiff in a suit for damages:
"I would fold my hands in my lap, Gwendolyn--yes, like that--and be
calm, very calm. And, Gwendolyn, above all things, be demure, Gwendolyn!
Be demure!"
Gwendolyn was the demurest of the demure, letting her eyes fall beneath
their pendant black lashes at the conclusion of each answer, and won her
case without the slightest difficulty.
The unconscious or conscious influence of women upon the intellects
of jurymen has given rise to a very prevalent impression that it is
difficult if not impossible successfully to prosecute a woman for crime.
This feeling expresses itself in general statements to the effect
that as things stand to-day a woman may commit murder with impunity.
Experience, supplemented by the official records, demonstrates, however,
that, curious as it must seem, the same sentiment aroused by a woman
supposed to have been wronged is not inspired in a jury by a woman
accused of crime. It is, indeed, true that juries are apt to be more
lenient with women than with men, but this leniency shows itself not in
acquitting them of the crimes charged against them, but of finding them
guilty in lower degrees.
Of course flagrant miscarriages of justice frequently occur, which, by
reason of their widespread publicity in the press, would seem to justify
the almost universal opinion that women are immune from the penalities
for homicide. It is also true that such miscarriages of justice are more
likely when the defendant is a woman than if he be a man.
One of these hysterical acquittals which give color to popular
impression, but which the writer believes to be an exception, was the
case of a young mother tried and acquitted for murder in the first
degree, December 22, 1904. This young woman, whose history was pathetic
in the extreme, was shown clearly by the evidence to have deliberately
taken the life of her child by giving it carbolic acid. The story was
a shocking one, yet the jury apparently never considered at all the
possibility of convicting her, but on retiring to the jury-room spent
their time in discussing how much money they should present her on her
acquittal.
No better actor ever played a part upon the court-room stage than old
"Bill" Howe. His every move and gesture was considered with reference
to its effect upon the jury, and the climax of his summing-up was always
accompanied by some dramatic exhibition calculated to arouse sympathy
for his client. Himself an adept at shedding tears at will, he seemed
able to induce them when needed in the lachrymal glands of the most
hardened culprit whom he happened to be defending.
Mr. Wellman tells the story of how he was once prosecuting a woman for
the murder of her lover, whom she had shot rather than allow him to
desert her. She was a parson's daughter who had gone wrong and there
seemed little to be said in her behalf. She sat at the bar the picture
of injured innocence, with a look of spirituality which she must have
conjured up from the storehouse of her memories of her father. Howe was
rather an exquisite so far as his personal habits were concerned, and
allowed his finger-nails to grow to an extraordinary length. He had
arranged that at the climax of his address to the jury he would turn
and, tearing away the slender hands of his client from her tear-stained
face, challenge the jury to find guilt written there. Wellman was
totally unprepared for this and a shiver ran down his spine when he saw
Howe, his face apparently surcharged with emotion, turn suddenly towards
his client and roughly thrust away her hands. As he did so he embedded
his finger-nails in her cheeks, and the girl uttered an involuntary
scream of nervous terror and pain that made the jury turn cold.
"Look, gentlemen! Look in this poor creature's face! Does she look
like a guilty woman? No! A thousand times no! Those are the tears of
innocence and shame! Send her back to her aged father to comfort his old
age! Let him clasp her in his arms and press his trembling lips to her
hollow eyes! Let him wipe away her tears and bid her sin no more!"
The jury acquitted, and Wellman, aghast, followed them downstairs to
inquire how such a thing were possible. The jurors said that they had
agreed to disclose nothing of their deliberations.
"But," explained Wellman, "you see, in a way I am your attorney, and I
want to know how to do better next time. She had offered to plead guilty
if she could get off with twenty years!"
The abashed jury slunk downstairs in silence and the secret of their
deliberations remains as yet untold.
In spite of such cases, where guilty women have been acquitted through
maudlin sentiment or in response to popular clamor, nothing could be
more erroneous than the idea that few women who are brought to the bar
of justice are made to suffer for their offences. Thus, although no
woman has suffered the death penalty in New York County in twenty years,
the average number of convictions for crime is practically the same
for women as for men in proportion to the number indicted. The last
unreversed conviction of a woman for murder in the first degree was that
of Chiara Cignarale, in May, 1887. Her sentence was commuted to life
imprisonment. Since then thirty women have been actually tried before
juries for homicide with the following results:
Convicted of murder in first degree...........0
Acquitted "...................................7
" " murder in second degree...........3
" " manslaughter in first degree.....10
" " manslaughter in seconds degree...10
Total.......................................30
The percentage of convictions to acquittals is as follows:
Convictions Acquittals Convictions Acquittals
Per Cent Per Cent
1887-1907......23........7..........77..........23
It is distinctly interesting to compare this with the table showing the
results of all the homicide trials for the past eight years irrespective
of the sex of the defendants:
Convictions Acquittals Convictions Acquittals
Per Cent Per Cent
1900.............5.......12...........29.........71
1901............17.......17...........50.........50
1902............15.......11...........58.........42
1903............24........8...........75.........25
1904............19.......14...........58.........42
1905............18.......13...........58.........42
1906............21.......22...........49.........51
1907............16.......10...........62.........38
Total..........135......107.....Aver. 55...Aver. 45
The reader will observe that the percentage of convictions to acquittals
of women defendants averages twenty-two per cent greater than the
percentage for both sexes. A more elaborate table would show that where
the defendants are men there are a greater proportionate number
of acquittals, but more verdicts in higher degrees. A verdict of
manslaughter in the second degree in the case of a man charged with
murder is infrequent, but convictions of murder in the second degree are
exceedingly common.
The reason for the higher percentage of convictions of women is that
fewer women who commit crime are prosecuted than men, and that they are
rarely indicted unless they are clearly guilty of the degree of crime
charged against them; while practically every man who is charged with
homicide and who, it seems, may be found guilty is indicted for murder
in the first degree.
The trial of women for crime invariably arouses keen public interest,
and the dethronement of a Czar, or the assassination of an Emperor,
pales to insignificance before the prosecution of a woman for murder.
Some of this interest is fictitious and stimulated merely by the yellow
press, but a great deal of it is genuine. The writer remembers attending
a dinner of gray-headed judges and counsellors during the trial of Anna
Eliza, alias "Nan," Patterson, where one would have supposed that the
lightest subject of conversation would be not less weighty than the
constitutionality of an income tax, and finding to his astonishment that
the only topic for which they showed any zest was whether "Nan" would be
found guilty.
One of the earliest, if not the earliest, record of a woman being held
for murder is that of Agnes Archer, indicted by twelve men on April 4,
1435, sworn before the mayor and coroner to inquire as to the death
of Alice Colynbourgh. The quaint old report begins in Latin, but "the
pleadings" are set forth in the language of the day, as follows:
"Agnes Archer, is that thy name? which answered, yes.... Thou art
endyted that thou.... feloney moderiste her with a knyff fyve tymes in
the throte stekyng, throwe the wheche stekyng the saide Alys is deed....
I am not guilty of thoo dedys, ne noon of hem, God help me so.... How
wylte thou acquite the?... By God and by my neighbours of this town."
The subsequent history of Agnes is lost in obscurity, but since she had
to procure but thirty-six compurgators who were prepared to swear that
they believed her innocent, and as she was at liberty to choose these
herself from her native village of Winchelsea, it is probable that she
escaped.*
* Cf. Thayer, as cited, supra.
Fortunately the sight of a woman, save of the very lowest class, at
the bar of justice is rare. The number of cases where women of good
environment appear as defendants in the criminal courts in the course of
a year may be numbered upon the fingers of a single hand, and, although
the number of female defendants may equal ten per cent of the total
number of males, not one-tenth of the women brought to the bar
of justice have had the benefit of an honest bringing up and good
surroundings.