The fear that most people have of the criminal law has its origin
in their ignorance of it. They are, luckily, most of them unfamiliar
with bailiffs and constables, except at a distance. The gruff
voice of authority has echoed but dimly for them. They have heard
of the "third degree," "the cooler," "the sweat-box," and "the
bracelets," yet they have never seen the inside of a station-house;
and their knowledge of jails, if they have any at all, is derived
from reading in their childhood of the miraculous escapes of Baron
Trenck or the Fall of the Bastille. They picture officers of the
law as human bulldogs, with undershot, foam-dripping jaws and
bloodshot eyes. The bourne--from which so many travellers never
return--bounded by the criminal statutes, is a _terra incognita_
to the average citizen. A bailiff with a warrant for his arrest
would cause his instant collapse and a message that "all was
discovered" would--exactly as in the popular saw--lead him to flee
at once.
Upon this dread of the unknown the criminal attorney plays whenever
possible. It is his strongest asset, his stock in trade. The
civil lawyer, vaguely believing that there must be a criminal law
to cover every obvious wrong, retains him to put the screws on the
evil-doer and bring him to terms. The man who has done a dirty
business trick--in reality a hundred miles from being a crime--
engages the shyster to keep him out of jail. The practical weapon
of the criminal lawyer is the warrant of arrest. Just as at civil
law any one can bring a groundless suit and subject his enemy to
much annoyance and expense, so almost anybody can get almost anybody
else arrested. Of course if there is no justification for it a
suit for malicious prosecution and false arrest may arise; but most
persons who resort to such tactics are "judgment proof" and the
civil law has no terrors for them at all. At least fifty persons
out of every hundred would gladly pay an unrighteous claim rather
than be subjected to the humiliation of arrest, even if their
confinement were of the most temporary character.
In New York the right of having the defendant arrested in certain
classes of civil cases is a matter of statute. It is a preliminary
remedy not half as much availed of as it might be. The young lady
who brings a breach-of-promise suit against her faithless follower
has the right to put him under arrest and make him give bail; and
the young gentleman who would laugh ordinarily at the mere service
of papers may well settle her claim if a sheriff whispers in his
ear that he has a warrant for his person.
In the early days, before Gottlieb and I practised at the criminal
bar, a judgment creditor could arrest and lock up his delinquent
debtor. This was a most ancient and honorable form of redress;
and the reader has undoubtedly read dozens of novels in which some
of the scenes are laid in "Fleet Street." This locking up of people
who owed other people money but could not meet their just obligations
was sanctified by tradition and deeply rooted in our jurisprudence;
but the law governing the procedure in such cases was highly
technical and the wind of destiny was somewhat tempered to the
shorn lamb of the creditor. Thus, a warrant for the arrest of a
debtor could not be executed on the Sabbath, and, of course, had
no value outside of the State. Accordingly the neighboring cities
of New Jersey harbored thousands of bankrupt New Yorkers who could
not pay their bills and suffered a voluntary exile until they should
be in funds again. Indeed, there were certain hostelries entirely
given over to their accommodation. The man who had defied his
creditors simply converted his available property into ready cash
and slipped across the river to Jersey City or Hoboken, where he
remained six days in every week and returned to the bosom of his
adoring family on the seventh.
Later on civil orders of arrest were limited by statute to certain
classes of cases, such as, for instance, the conversion of money.
Among our clients there was a certain exceedingly attractive young
lady of French extraction, named Mademoiselle Valerie Carrell, who
was a popular favorite upon the light-opera stage when light opera
was in swaddling-clothes. Our fair client, like many another
histrionic genius, had more charm than business ability and was
persuaded by an unscrupulous manager to intrust to him a large sum
of money for investment in his various enterprises. Time went on,
and, although he seemed to be successful in his ventures, he insisted
that he had no money and was absolutely unable to repay her. In
utter desperation she came to Gottlieb and myself for assistance
and we speedily secured judgment for the full amount--fifteen
thousand dollars--after a hotly contested trial, in which the
defendant perjured himself very unlike a gentleman. The only result
was that Mr. Brown, the manager, gayly offered to settle for fifteen
hundred, and, on receiving a curt refusal, transferred his residence
to Hoboken, from which place he managed his business and paid
furtive visits to the metropolis in the night-time. On Sundays,
however, he always appeared in full regalia on Broadway and could
invariably be seen entertaining his friends lavishly in the
restaurants.
Gottlieb suffered this course of conduct to become a habit and then
informed me that he proposed to collect the full amount of Mademoiselle
Carrell's judgment upon the following Monday. I expressed some
incredulity at the idea, but later events proved that my partner
was well justified in his prophecy. We had long before procured
a warrant for Brown's arrest and the only difficulty lay in executing
it upon a week-day. Sunday came and as usual Brother Brown, with
his customary bravado, made his appearance in the city. That
evening Gottlieb invited me to dine with him at the resort ordinarily
frequented by our quarry. True to his invariable custom, Brown
turned up there with a party of his cronies and spent the evening
in merry feasting, presumably upon the money of our client. It
was a clear, moonlight night and when the glowworm showed the matin
to be near--or, more correctly, when it neared twelve o'clock--
Brown beckoned to the waiter, paid his bill out of a fat roll of
greenbacks, winked good-naturedly at us, and bade his friends good-
night. A moment or two later Gottlieb whispered to me to follow
him and we stepped forth upon the street. Brown was strolling
quietly down Broadway toward Twenty-third Street. A short distance
behind followed a thick-set man with a square-cut jaw whom I had
frequently noticed in Gottlieb's office.
On the corner of the cross-town thoroughfare Brown paused, looked
first at the moon and then at his watch, and proceeded on his
constitutional toward the ferry. The street, save for a distant
and presumably somnolent policeman, was deserted. The thick-set
man crossed to the other side of the way, quickened his steps,
overtook and passed Brown, recrossed and sauntered toward him. A
moment later there was a collision between them, voices were raised
in angry altercation and presently Brown was rolling undignifiedly
on the pavement, his calls for the police rending the stillness of
the night. The officer hastily approached, whistling wildly for
aid. Gottlieb and I took refuge in an adjacent doorway. Abruptly,
however, Brown's outcries ceased. It is probably that a sudden
vision of the consequences of an appeal to police protection came
to him as he lay like an overturned June-bug upon the sidewalk.
But the law had been invoked. The car of Juggernaut had started
upon its course.
"What's the trouble here?" cried the policeman, as he arrived
panting upon the scene.
"This fellow here assaulted me!" instantly answered the man with
the bulldog jaw.
"It's a lie!" bellowed Brown, climbing to his feet.
"Well, what have you got to say?" inquired the officer.
Brown hesitated. If he made a counter charge he realized that he
would have to go to the police station to make the complaint. This
would keep him in the city until after midnight.
"Well?" continued the policeman.
Still Brown paused, rapidly taking account of stock. If he did
not deny the charge in terms he would be locked up, which was just
as bad. But the bull-jawed chap spoke first.
"I want this man arrested!" he insisted. "He deliberately attacked
me!"
"I did no such thing!" shouted Brown. "He came at me without
provocation and knocked me down."
"It took you long enough to say so," commented the officer. "I'll
have to take you along to the house. Come on, both of you."
Grasping Brown by the arm, he marched him down the street. Suddenly
the unfortunate manager began to pour forth a long explanation,
quite incoherent so far as the policeman was concerned. He was
the victim of a frame-up--it was a job to get him arrested. The
officer remarked unsympathetically that he had heard that sort of
thing many times before. Gottlieb and I skulked in the rear. When
the police station was at last reached the thick-set man made a
charge of assault against the manager and Brown was compelled
perforce to make a similar charge against his adversary. Then both
were locked up to await a hearing the next morning in the magistrate's
court, when, after a prolonged examination, Brown was discharged
with an admonition against a too free indulgence in alcoholic
liquors.
"Don't be hard on him, judge," said the bull-jawed man. "I had no
trouble in defending myself. I think he has had lesson enough."
Much the worse for wear, Mr. Brown passed out of the court-room,
only to be confronted on the sidewalk by a marshal with a warrant
for his arrest. It was Monday morning. His period of immunity
was over. His eye caught Gottlieb and myself standing on the
corner.
"Well, boys," he exclaimed ruefully, "I'm caught. How much is it
going to cost?"
"Fifteen thousand dollars," answered Gottlieb, adding, after a
moment's pause--"and disbursements."
I need hardly add that Mr. Brown lost no time in raising the
necessary ransom and within the hour had paid his judgment in full
and secured his discharge. The days are long since over, however,
when judgment defaulters had anything to fear; and now a beneficent
bankruptcy law, merely for the asking, washes all their debts away.
But the power to secure another's arrest is even more easily
available now than in the days of my early practice owing to the
great number of new crimes created by the statutes.
One of the most ingenious devices for extorting money that ever
came to my attention was invented by a client of mine named Levine
--a poor sort of character, to be sure, but cleverer than many a
better man. In detail his method was as follows: He first bought
at wholesale a large quantity of cheap watches covered with gold
plate. To the inexperienced they looked as if they might possibly
be worth forty or fifty dollars apiece. They cost Levine about
two dollars and twenty-five cents each. His next step was to select
some small shop belonging to a plumber, grocer, or electrician
which was ordinarily left in the charge of a clerk while the owner
was out attending to his work or securing orders. Levine would
find some excuse for entering the shop, engage the clerk in
conversation, and having secured his attention would produce one
of his watches and extol its merits at length, explaining what a
great bargain it was and how--only owing to an exceptional
concatenation of circumstances--he was able to offer it for the
ridiculously low figure of thirty dollars.
Now it never made any difference to Levine whether the clerk wanted
the watch or not. His procedure remained the same in all cases.
He would first offer to let the fellow have it by paying one dollar
a week on the installment plan. If this did not appeal to the
clerk Levine would persuade him to keep it for a short time on
approval, paying down a dollar "as security." Almost all of his
victims would agree to this if only to be rid of him. In default
of aught else he would lay the watch on the counter and run away.
Nothing more would occur for a couple of weeks, during which the
clerk would hold the watch pending its owner's return, little
suspecting what was going on meantime. Levine, having "landed"
his watch, immediately swore to a verified complaint in an action
at law for "goods sold and delivered," setting forth on the date
in question he had sold--not to the clerk, but to his _employer_--
a gold watch for the sum of fifty dollars, which the latter had
then and there promised to pay for at once. The complaint further
recited that the money had been duly demanded and payment refused,
and asked judgment for fifty dollars and the costs and disbursements
of the action. Levine would then procure from some irresponsible
person an affidavit that the latter had personally served a copy
of the complaint in question, together with a summons, upon the
defendant, and place the case on the calendar for trial. Of course
no papers were in fact served upon anybody and Levine would in due
course secure judgment by default for sixty-odd dollars. Armed
with a certified copy of the judgment and a writ of attachment,
and accompanied by a burly deputy marshal selected for the ferocity
of his appearance, Levine would wait until some opportune time when
the owner of the shop was again absent and the shop had been left
in charge of the same clerk or a member of the family. Bursting
roughly in, he would demand whether or not it was the intention of
the owner to pay the judgment, while at the same moment the deputy
would levy on the stock in trade.
The owner of the shop, having been hastily summoned, would return
to demand angrily what the rumpus was all about. By this time the
clerk would have recovered his wits sufficiently to denounce the
proceeding as an outrage and the suit as baseless. But his master,
who saw judgment against himself for sixty dollars and his goods
actually under attachment, was usually in no mood to listen to,
much less believe, his clerk's explanations. At all events, they
availed naught, when Levine, with an expression of horror at such
deliberate mendacity on the part of the clerk, was wont to say:
"Ask him, pray, whether he has not got the watch in his pocket at
this very moment!"
Usually this was indeed the fact, as the clerk had no idea what
else to do with it until Levine should return.
"So-ho!" his master would shout wrathfully. "What do you mean by
saying that you did not agree to buy the watch? Why, you have kept
it all the time! What's more, you've pretended to buy it in my
name! And now my shop is turned into a bear garden and there is
a judgment against me and my goods are attached! A fine result of
your extravagance!"
"But I never agreed to buy it!" insists the clerk. "This man left
it here on approval!"
"Pish!" answers the employer. "That is all very well; but what
have you to say to the judgment of the court? Now, my fine fellow,
you will either pay up this money that you owe or I'll advance it
myself and take it out of your wages."
In every case, despite the protests of the clerk, the money would
be handed over and the shop released from levy. Unfortunately,
after working the game for several years, Levine came a cropper by
carelessly trying it on one of the same clerks that he had victimized
some time before. The clerk, being of an unusually vindictive
disposition, followed the matter up. Having first arrested the
man who made the false affidavit of service, he induced him to turn
State's evidence against my client and landed the latter in jail.
Being a great reader, however, Levine did not find his incarceration
particularly unpleasant; and, hearing of the Court of Appeals
decision in the McDuff case, he spent his time in devising new
schemes to take the place of his now antiquated specialty. On his
release he immediately became a famous "sick engineer" and for a
long time enjoyed the greatest prosperity, until one of his friends
victimized him at his own game by inducing him to bet ten thousand
dollars on the outcome of a prize-fight that he was simple-minded
enough to believe had already been fought and won.
This was an elaborate variation of the ordinary wire-tapping game,
where the sucker or lamb is introduced to a person alleged to be
an inside official of a large telegraph company, who is ready to
sell advance information of the results of sporting events in return
for a share in the profits. The victim is taken to a supposed
"branch office" of the company and actually hears the results of
the races coming in over the wires and being telephoned to the pool-
rooms. Of course the whole place is merely a plant fitted up for
his benefit. He is then taken to a supposed pool-room and gives
up his money for the purpose of having it placed as a wager on a
horse-race already won. Under the McDuff case, it had been held
by the courts that he had parted with his money for an illegal and
dishonest purpose--to wit, in an attempt to win money from another
who was wagering his own money in good faith--and the rogue who
had seduced his conscience and slit his purse went free. This was
Levine's favorite field of operations.
But his friend went him one better. Knowing that Levine had salted
away a lot of money, he organized a gang of "cappers" and boosters,
who made a great talk about the relative merits of two well-known
pugilists. It was given out that a fight was to be "pulled off"
up the Hudson and a party was made up to attend it. A private car
was taken by the friend in question and Levine was the guest of
honor. Champagne flowed freely. The fight came off in a deserted
barn near a siding above Poughkeepsie; and Levine wagered all of
his money, with other prosperous-looking guests in the car, under
the assumption that a bargain had been made between the "pugs" that
his man should win. But the supposed sports were all "boosters"
in his friend's pay and the other man won after a spirited exhibition,
which, although exciting, hardly consoled Levine for the loss of
his money.
It is a curious fact that those of my clients who made great sums
from time to time in ways similar to these rarely had any money;
most of them died in abject poverty. Sooner or later all ran foul
of the law and had to give up to the lawyers all they had managed
to lay by.
When at last John Holliday, a dealer in automatic musical instruments,
was "trimmed" out of sixty-five thousand dollars by various schemes
of this character, the tardy Legislature finally amended the penal
code in such a way as to do away with the farcical doctrine of the
McDuff case and drove all our erstwhile clients out of business.