It is not at all times proper to dismiss a complaint when caused

by malice. One day a man came before us, who swore that another

man had swindled a large establishment out of considerable money;

he did not make the complaint on behalf of the parties defrauded,

but in the interests of justice. His malice was evident; he made

no attempt at concealing it; but he sustained his testimony with

documentary evidence and the sworn statements of other witnesses. The

jury doubted about the propriety of ordering an indictment under

the circumstances; some of them argued, that had no quarrel occurred

between the parties, the case would have slumbered, and therefore the

complaint should be dismissed. There was such a divergence of opinion

that the district attorney was called to tell us what to do. We

explained, through our foreman, the nature of the case. The district

attorney, who is at all times the legal adviser and instructor of the

grand jury, listened, and then said, substantially,—

[Sidenote: A SYMPATHETIC COMPLAINANT.]

“Where you find that a complainant is acting through malicious

motives, and there are no other witnesses, or, if any, that they do

not substantiate the complaint, you had better dismiss it. But where

the complaint, however maliciously made, is shown by other evidence

than that of the complainant to be true, you must order an indictment.”

And consequently we ordered an indictment against the alleged swindler.

Not many days after we were convened, a case that touched the heart

of every man in the room was brought before us. A young girl had been

accused of theft; a few dollars in money had been stolen; it was

found in her possession, and she had made partial confession. The

complainant was a woman, and the accused had been in her employ. When

the case was called, the woman entered the jury-room, and was sworn by

the foreman. She took the chair assigned to witnesses, and the foreman

questioned her.

“Did you lose some money?”

“Yes, sir.”

“When did you lose it?”

“On the first day of December?”

“Who took it?”

“The girl named in the complaint.”

“How do you know she took it?”

“I found it in her possession, and she confessed taking it.”

“That will do; you can go.”

But the woman kept her seat, and moved her hands uneasily. “You can

go,” said the foreman again; but she did not start. A juror sitting

near the door rose to show her out, and as he did so the woman said,—

[Sidenote: A PLEA FOR MERCY.]

“I do not wish to press the complaint. I want to withdraw it, and have

the girl released.”

“Why so?” asked the foreman.

“Because,”—and her voice began to choke,—“because the girl is young,

and I do not wish to ruin her. Somebody else urged her to steal

the money, and I think she will do better in future. If I send her

to prison she may become a professional thief, but if I give her a

chance she will be a good girl. She is an orphan and has no friends,

and I want to be her friend. I know she is guilty, but I want to be

merciful, and I beg you to be merciful, gentlemen.”

Half her utterance was drowned with tears, which flowed rapidly down

her face. The foreman told her to step outside and he would call her

again in a few moments, and inform her of the result of her eloquent

appeal. “Be merciful, gentlemen,” were her last words as she closed

the door.

It was voted to dismiss the complaint; and when the foreman called her

to the room, told her of the result of the vote, and commended her for

her kindness of heart, her tears flowed afresh, and she thanked us

through broken sobs. I know that in that room more eyes than hers were

wet—eyes not accustomed to tears.

But soon a discussion arose as to the propriety of our action. When

the grand jury was impanelled, the following oath was administered to

the foreman:—

“You —— ——, as foreman of this grand inquest, shall diligently

inquire, and true presentment make, of all such matters and things

as shall be given you in charge; the counsel for the people of this

state, your fellows, and your own, you shall keep secret; you shall

present no one from envy, hatred, or malice; nor shall you leave any

one unpresented through fear, favor, affection, or hope of reward; but

you shall present all things truly as they come to your knowledge,

according to your understanding. So help you God!”

[Sidenote: NATURE OF A JURYMAN’S OATH.]

And to the other members the following oath was administered:—

“The same oath which your foreman has taken on his part, you, and each

of you, shall well and truly observe and keep on your part. So help

you God!”

Some of the jurors thought we had no right, under our oath, to show

favor, no matter how strong might be the appeal to our sympathies.

Every man in the room wished to be lenient, but at the same time,

above all other things, wished to do his duty. The discussion resulted

in our sending for the district attorney and asking his advice.

[Sidenote: REFORMING YOUNG OFFENDERS.]

After hearing the case, he said there was a difference of opinion as

to the power of a grand jury. “You can undoubtedly,” he continued,

“exercise your discretion in certain cases, and act as you think is

for the best interests of society. It is both right and proper that

the grand jury, and also the district attorney, should be clothed with

a discretionary power, as it frequently happens that they can do more

good by exercising it than by following the strict letter of the law.

I will give you an illustration: Some years ago, the case of a young

man charged with embezzlement was placed in my hands to prosecute. His

employer was determined to push the case; he was rather ugly about

it, and there seemed no other course than to prosecute. The young

man was out on bail, and came to me to beg to be let off. He said he

was guilty, and should so plead; that he had an invalid sister, and

with the utmost economy on his small salary he was unable to support

himself. He knew that this was no excuse for his theft, but he took

the money under great temptation, and did not realize the enormity of

his offence until after he had committed it. ‘You can send me to the

penitentiary,’ he said, ‘and nobody can blame you; but you will ruin

me for life, and bring disgrace upon my parents and sister, who do not

know that I am charged with crime. If I can be released and the matter

hushed up, I will faithfully promise to do better in future, and I

think this will be a life-long lesson to me.’ He pleaded so earnestly

that I promised to do what I could for him. I sent for his accuser,

and urged him to withdraw the charge. At first he refused, but I laid

the case before him in such a light that he at last consented. And I

then urged him to take the young man back and give him a new trial,

and after much talk I succeeded. The complaint was withdrawn, the

young man was restored to his position; in a little time his salary

was increased; by and by the firm dissolved in consequence of the

death of one of its members; the young man went to another house,

proved himself worthy of confidence, and to-day he is a member of that

house, and as honorable and upright as any business man in New York.

He has never forgotten, and never will forget, that lesson. If he had

gone to the penitentiary, his worst fears would have been realized.

When an offender is young, the offence is a first one, and the

offender appears penitent, it is entirely proper for you to exercise

leniency by dismissing the complaint; and in the case now before you,

gentlemen, you have been entirely right in your action.”

As the district attorney ended his remarks, there was a round of

applause, in which I am very certain every member of the jury

participated. Those who had been most doubtful of the propriety of our

action were heartily glad that their doubts were not well founded.

During our session there were several cases in which the accusers

wished to withdraw the complaints. Where the reason for the withdrawal

was the youth and penitence of the accused, the request was generally

granted. In one case a family quarrel had gone before a magistrate

while the temper of all parties concerned was at fever-heat; passion

had subsided in the time required to bring the case to the grand

jury, and the complainant was anxious to make terms of peace with

his antagonist. There was another pleasant little affair, in which a

nose had been bitten off in a discussion that evidently had whiskey

in it. The biter was the cousin of the bitten, and on account of

the relationship the latter wished to be mild. His cousin was not a

professional biter, and should he go to prison it would not restore

the central ornament of the complainant’s face. The offender had

promised not to do so again; and besides, he had not bitten off

much of the nose, any way. The appeal was heard, and the complaint

against the mordacious relative was dismissed. As he had been a month

in prison, it is to be hoped that he took solemn warning, and will

hereafter confine his dental exercise to the ordinary articles of diet.

[Sidenote: WITHDRAWING COMPLAINTS.]

In some instances the complainant wished to withdraw the charge, for

the reason that he had already lost time in making the prosecution,

and did not wish to lose more. Sometimes, in cases of robbery, the

friends of the accused had offered to restore the stolen property on

condition that there should be no prosecution, and very naturally the

complainant was willing to make such a compromise. But it was out

of his power to do so after having once made his complaint before

the magistrate, and his appeal to the grand jury was generally of no

avail. The well-being of society, in cases of professional thieves and

the like, was held to be paramount to the desires of complainants, and

if the testimony was clear there was no delay in ordering indictments.

In one instance a man who had been robbed, in a house whose character

was not at all doubtful, asked to withdraw the complaint because he

had already lost too much time in following it. He did not think the

accused was either young or penitent, but he could not afford the time

he was devoting to the case. He had evidently been instructed what to

do, as his testimony before the grand jury was quite different from

that in his complaint sworn to before the magistrate. In his complaint

he said he knew that the prisoner took the money, but when in our

presence he was uncertain on the subject. He didn’t know, couldn’t

tell, didn’t remember, was excited at the time, and so on, until we

found that he was determined to say and know nothing. As there were no

other witnesses, we were forced to dismiss the charge, though morally

convinced of the guilt of the accused. The complainant had determined

to have the case abandoned, and as the prejudices of the nineteenth

century are opposed to the use of the rack and thumb-screws in the

grand jury room, we had no means of compelling the witness to adhere

to his original story. Mind you, he had not varied it so as to make

him liable to the charge of perjury, in one case or the other; he had

only substituted uncertainty for certainty.

Another instance of the withdrawal of a complaint through motives of

kindness, was in the case of a woman who had lost a few articles from

her room while her door was left open. The thieves were some young

boys, whose parents were respectable; and as soon as the theft was

traced to the culprits, the property was at once returned. “I don’t

want to make felons of them,” said the woman; “I think they took the

things out of a spirit of mischief, and that they will be good boys

in future. The mother of one of them has talked to me about it, and

I have promised to withdraw the charge.” Her appeal was earnest, and

before its close it was eloquent. When she left the room it was voted

to dismiss the case. The foreman then sent for her, told her that she

had displayed much kindness of heart; that the jury appreciated her

motives, and had complied with her request. Her thanks, like those

of the woman mentioned heretofore, were given through tears, and she

rushed outside to congratulate the anxious mother of the boy whom she

had released.

[Sidenote: CURIOUS PHASES OF HUMAN NATURE.]

Many phases of human nature can be studied in the grand jury room.

The hatred which the natives of green Erin bear towards our citizens

of African descent is frequently seen where the accused is of negro

blood, and the witness is of the race that boasts the Blarney Stone,

and grows indignant at mention of Boyne water. Given such a case,

and the chances are more than even that the witness will tell a

story in which indictment is the primary, and truth the secondary

consideration. If you have two or more witnesses of the loquacious

nationality, and take the pains to question them closely, you will be

likely to find a conspicuous inharmony in their testimony. They seem

to consider themselves called to “swear agin’ the nagur,” and they

generally do it. And it is possible that, with the case reversed,—an

accused Celt and a testifying Ethiopian,—the evidence might be

equally energetic. But, for some reason, we did not have a fair

opportunity to settle this momentous question, and I must therefore

leave it for the consideration of some grand jury of the future.

[Sidenote: THE DETECTIVE’S STORY.]

The detective officer shines brilliantly before the grand jury.

There was, now and then, a man of this profession who was quiet and

unpretending, but he formed an exception to the rule. The detective

had generally done wonderful things in the discovery of crimes already

committed, or in the prevention of crimes contemplated or progressing.

Some detectives told their stories with admirable directness, while

others were evidently desirous of giving condensed histories of their

professional careers. “Did you arrest John Jones?” asks the foreman

when a detective is called in. “Yes, sir,” is the reply. “Why did you

arrest him?” “Because I heard he had robbed Brown’s store.” “Did you

find anything in his possession?” “Yes, sir.” “What did you find?”

“The articles named in the complaint.” “That will do, officer; you can

go;” and the officer bows, and departs.

This is all that the jury wants to know from the officer in regard

to the performance of John Jones, who is charged, on complaint of

Brown, with burglary in the first degree. But the probabilities are

two to one that when the foreman asks, “Did you arrest John Jones?”

the officer will say, “I was walking along Broadway, and saw Brown,

who looked as if he had been robbed. I went to his store, and saw

the mark of a chisel near the lock, and asked Brown if he had lost

anything. Brown told me he had, but did not know who had robbed him.

I looked at the chisel-mark, and thought it was Jones’s work. Then I

went down Canal Street, and saw Jones standing talking with two men,

one of whom I remembered seeing seven years ago at the California

State Prison, when I took the great stage-robber Smith up there for

robbing the Petaluma mail, and frightening a lady passenger so that

she died next week, and left two girls, three boys, and one husband,

who felt so bad about it that he got married before the month was

out. Jones looked so innocent that I knew he was guilty; and so I

followed him all the afternoon, and arrested him when I saw him go

into a house on the Bowery. I searched the house, and found Brown’s

goods concealed where it was not likely anybody could find them; and

there was a lot of other goods that I recognized as coming from a

store on Broadway, that was robbed six weeks before.” And so he goes

on, in a way calculated to impress his hearers with the belief that

he is a man of genius, and perfectly at home among thieves. He knows

all the movements of the gentry that one does not like to be intimate

with, and when he finishes his narrative, you contemplate him (to use

the language of a certain celebrated orator about another) as the East

Indian contemplates his favorite idol: you know that he is ugly, but

you feel that he is great. The story of a detective will frequently

convey the idea that the movements and actions of professional thieves

can be studied, like those of the robin or the beaver; and I have

sometimes thought that the burglar and pickpocket should occupy places

in natural history along with the birds, beasts, and reptiles that

inhabit the earth and make things lively. One officer, who was a

witness in several cases, was a favorite with the jury, for the reason

that he always gave his testimony in the clearest and most direct

manner. I doubt if he used a dozen superfluous words in any instance,

and I could almost say that he did not use a dozen of them all

together. His statements were short, sharp, and decisive; and it is my

impression that he is far more efficient in the service than some of

his professional brethren who would occupy fifteen minutes in telling

a story that he could give in sixty seconds, and have time to spare.

[Sidenote: PECULIARITIES OF WITNESSES.]

[Sidenote: THE BRICK AND BROOMSTICK.]

It is amusing to note the difference in the manner of witnesses. There

are some who cannot tell a direct story, no matter how strongly they

are urged to do so; and there are others who could not be otherwise

than brief. Some of this difference is due to nationality. German

and Irish were generally more loquacious than American and English.

But it was not all a matter of nationality, as there were instances

of extreme discursiveness on the part of the last-mentioned, while

some of the former were brief almost to taciturnity. And in regard to

sex, I must aver that the more talkative of our witnesses belonged

to the gentler half of humanity. A lady of Baxter Street was one day

testifying about a debate between herself and a neighbor: a brick

and a broomstick had been used in the fray, and the head of the

witness had been slightly scarified by the corner of the brick. It

was a simple affair,—words and blows, and only two or three blows,

at that,—but the unhappy victim could not be induced to tell her

story without narrating the whole history of the bellicose Bridget,

whose hand had hurled the missile. Frequently the foreman stopped her

narrative, and told her to cut it short; she would take breath in

the pause, and then, with a preliminary “I’ll tell all about it, yer

honor,” she would start again with the rapidity of a carrier-pigeon.

We soon found it was of no use to attempt to restrain her, and so we

listened as patiently as possible to the conclusion of her story.

There was a sigh of relief around the jury-room when she retired,

and I could not help thinking that the blow which she averred made

her “sinseless and spacheless” for two hours was, to a great extent,

justifiable.

Another garrulous witness was a German who had suffered robbery. He

persisted in addressing the foreman as “shudge” and the rest of the

assemblage as “gentlemens on the jury.” Twice, when interrupted and

told to be brief, he complied by beginning his statement anew, with

more minuteness of detail; and at last the foreman found his patience

exhausted, and told the witness, “The jury has no time to listen

to your stories.” “O shudge,” said the man, in a tone that evinced

the most deeply wounded honor, “I don’t not come here to tells you

stories; I tells you only the truth.” The polite foreman apologized

for the unintentional affront, and compromised the matter by inducing

the victim to answer a few questions, and leave his story to be told

in court. His evidence was conclusive, and an indictment was promptly

ordered against the party named in the complaint.

[Sidenote: FAMILY JARS IN COURT.]

Frequently there were cases that attested the worthlessness and

depravity of certain members of the human race, and their despicable

treatment of relatives and friends. It is an unpleasant spectacle to

see wives giving evidence to send their husbands to prison, brothers

testifying against their brothers, and sometimes (though none were

called before us) fathers testifying against their sons. There was

one instance wherein a man testified to a forgery of his signature,

committed by a member of his family. He stated that it was a struggle

between duty and a respect for the family name for him to come before

the jury; “and I only determined to come here,” said he, “when I found

all attempts to reform this man had failed. I have paid his debts

repeatedly, have twice started him in business, and have several times

paid checks on which he forged my signature, rather than expose him. I

have tried to reason with him, and hoped he would do better; he shows

no sign of repentance, and has told others that, out of regard to the

family, I shall not dare to prosecute him. I feel that I should do

wrong if I allowed him to run longer, and painful as it is, I must do

my duty.”

Here was a man of sensibility compelled by the conduct of a near

relative to appear in court as a prosecutor. It is to be hoped that

the culprit will learn a wholesome lesson from his imprisonment; but

if his nature is as depraved as represented, the probabilities are,

that when he comes out from his term of involuntary labor, he will not

be greatly improved.

One day a woman came to testify against her husband for striking her

on the head with a piece of iron, which she produced from her pocket.

The iron—a stove-hook—had been broken by the force of the blow, and

yet the woman was there, with no evidence of having suffered more

than a temporary stunning and bleeding. She began her story in a

tone of firmness and determination, but gradually melted until her

voice was choking and her eyes were tearful. “Do you want to press

this complaint against your husband?” the foreman asked. “Yes, sir, I

must,” she answered, after a pause. “We have been married ten years,

and they have been ten years of quarrels. He beats me often; he

drives me out at night; he starves me, and is all the time cruel. He

takes the money I earn, and spends it, and I cannot live with him any

longer. I have had him before the magistrate several times, and he

promises to do better; but when he is let off, he is as bad as ever.

He will not leave me, nor let me leave him, and we shall have no peace

till he is in prison, or one of us is dead.”

[Sidenote: A SKILFUL FRAUD.]

One of the most artistic frauds that ever came to my knowledge was

developed before the jury. A man had loaned some money, and taken the

mortgage of a tract of land as security on the note. Before loaning

it he submitted the title to his lawyer, who informed him that it was

correct; and consequently the bargain was closed. The note fell due,

and went to protest; the lawyer had, in the mean time, moved from

the city, and the other parties were not to be found. The land which

was mortgaged lay in New Jersey, and the holder of the note took the

necessary steps to foreclose. A professional searcher of titles went

to the township mentioned in the papers, and found that there was no

such land in existence.

The whole document was purely a myth. The boundaries described

could not be found, and had no existence any more than if they had

been located in the middle of the Atlantic Ocean. The grantor named

in the original deed had been dead ten years at the time when the

document was dated, and the whole business was a conspiracy, in which

the lawyer had betrayed his client. One of the conspirators had

turned state’s evidence, and came before us. His position was not

particularly comfortable, and he grew restive under the questions

showered upon him. Little by little the truth was drawn from him, and

he practically confessed to having been the originator of the fraud,

ten years ago. The papers were evidently prepared with care, and had

an appearance of genuineness enough to deceive any man who was not

suspicious of wrong, and had relied upon his lawyer to protect his

rights.

A case that was at the same time amusing and saddening, was that of a

woman, the widow of a laborer, whose horse and cart had been stolen.

She was the complainant and principal witness against the thief,

who was promptly indicted. She stated that she had recovered the

cart, but had not been able to find the horse. The morning after the

indictment had been ordered, we were surprised to see her waiting

outside the grand jury room. A juror asked her what she wanted, and

she replied that she came for her horse.

[Sidenote: “I WANT MY HORSE.”]

She was sent to the court-room, where, I believe, the thief was

speedily tried and convicted. But day after day she came to the grand

jury room, and patiently waited outside for the return of her horse.

Each morning some one would explain to her that we could do nothing,

and she would then go away. But the next morning she would be there as

usual, and for nearly a month she continued her patient but hopeless

watching. Sometimes she would come twice in the same day, and, when

accosted, her answer was always the same, “I want my horse.” At first

her visits were subjects of merriment, but it was very soon discovered

that her mind could not be altogether clear; and our merriment was

changed to pity, and our jests to words of sympathy for her loss.

The Underground World: A mirror of life below the surface · 第 68 / 72 段