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.