Passion and affection occasion in our own minds and in those of
witnesses considerable confusion of observations, influence, or even
effect the guilt of the defendant and serve to explain many things at
the moment of examination. The essence of passion or affection, its
definition and influence, its physical and physiological explanation, is
discussed in any psychology. The use of this discussion for the lawyer’s
purposes has been little spoken of, and possibly can not have more said
about it. Things that are done with passion show themselves as such, and
require no particular examination in that respect. What we have to do is
to discover what might have happened without passion, and especially to
protect ourselves from being in person overcome by passion or affection.
It is indubitable that the most “temperamental” of the criminalists are
the best, for phlegm and melancholy do not carry one through an
examination. The lively and the passionate judges are the most
effective, but they also have the defects of their virtues. No one will
deny that it is difficult to maintain a calm demeanor with an impudent
denying criminal, or in the face of some very cruel, unhuman, or
terrible crime. But it is essential to surmount this difficulty.
Everyone of us must recall shameful memories of having, perhaps justly,
given way to passion. Of course the very temperamental Count Gideon
Raday freed his county in a short time from numberless robberies by
immediately hanging the mayor of the town in which the robberies
occurred, but nowadays so much temperament is not permissible. It is
well to recall the painful position of an excellent presiding justice at
a murder trial, who attacked the defendant passionately, and had to
submit to the latter’s really justified reprimand.
The only means of avoiding such difficulties is not to begin
quarrelling. Just as soon as a single word is uttered which is in any
way improper in polite society, everything is lost. The word is the
rolling snow-ball, and how much momentum it may gather depends upon the
nature and the training of the judge. Lonely insults are not frequent,
and a single improper word breaks down the boundaries. The criminal
knows this and often makes use of his knowledge. A man who has “cussed
out” the other fellow is no longer dangerous, he becomes calm and kind,
and feels instinctively the need of repairing the damage he has
committed by “going too far.” He then exhibits an exaggerated geniality
and care upon which many criminals count, and hence intentionally
provoke the examiner until he does things and says things he is sorry
for.
The emotions of witnesses, especially of those who have been harmed by
the crime and of those who have seen something terrible and disgusting,
and who still tend to get excited over it, constitute a great many
difficulties. Against the unconditional reliability of such persons’
testimony experienced judges take measures of defence. The participant
of this class is never calm; passion, anxiety, anger, personal interest,
etc., either anticipate or exaggerate trouble. Of course, we are not
speaking of cases in which a wound is considerably exaggerated, or even
invented for the sake of money, but of those in which people under
emotional stress often say unthinkable things about their enemy, just to
get him punished. This, however, is comparatively rare where the damage
has been very great. A man who has lost his eye, the father of a raped
daughter, the victim impoverished by arson, often behaves very calmly
toward the criminal. He makes no especial accusation, does not
exaggerate, and does not insult. A person, however, whose orchard has
suffered damage, may behave much worse.
It frequently happens that the sufferer and the defendant really hate
each other. Not necessarily because one had broken the other’s head, or
robbed him; frequently the ostensible reason for coming to trial is the
result of a long and far-reaching hatred. That this emotion can go to
any length is well known and it is therefore necessary, though not
always easy, to seek it out. Hatred is possible among peers, or people
who are peers in one connection or another. As a rule, the king will not
be able to hate his musketeer, but he will when they are both
passionately in love with the same girl, for they are peers in love.
Similarly, the high-bred lady will hardly hate her maid, but if she
observes the maid’s magnificent hair and believes that it is better than
her own, she will hate the maid, for there is no difference in rank with
regard to the love of hair.
Real hate has only three sources: pain, jealousy, or love. Either the
object of hatred has caused his enemy a great irremediable pain or
jealousy, or hatred is, was, or will become love. Some authorities
believe that there is another source of hatred which becomes apparent
when we have done harm to somebody. That this might show itself as
hatred or passion similar to hatred is possible, but in most cases it
will probably be a feeling of deep shame and regret, which has certain
particular characteristics in common with hatred. If it is really
hatred, it is hatred through pain. Hatred is difficult to hide, and even
criminalists of small experience will overlook it only in exceptional
cases. The discovery of envy, which is less forgiving than hatred, less
explosive, much profounder and much more extensive, is incomparably more
difficult. Real hatred, like exquisite passion, requires temperament,
and under circumstances may evoke sympathy, but friendless envy, any
scamp is capable of. Possibly no other passion endangers and destroys so
many lives, chokes off so much service, makes impossible so many
significant things, and finally, judges so falsely an endless number of
persons. When you remember, moreover, its exaggerated extent, and the
poor-spirited, easy trick of hiding it, its dangerous nature can not be
overestimated. We lawyers are even more imperilled by it because we do
not easily allow people to be praised before us; we require witnesses,
etc., to speak incriminatingly most of the time, and we cannot easily
see whether they are envious.
However freely one man may speak against another, we may assume that he
is telling the truth, or at worst, that he has a false notion of the
matter, or was badly instructed, but we rarely think that his envy
dictates it all. This idea occurs to us when he is to praise the other
man. Then he exhibits a cautious, tentative, narrowing attitude, so that
even a person of little experience infers envy. And here the
much-discussed fact manifests itself, that real envy requires a certain
equality. By way of example the petty shop-keeper is cited as envying
his more fortunate competitor, but not the great merchant whose ships go
round the world. The feeling of the private toward his general, the
peasant toward his landlord, is not really envy, it is desire to be like
him. It is anger that the other is better off, but inasmuch as the
emotion lacks that effective capacity which we require for envy, we can
not call it envy. It becomes envy when something by way of intrigue or
evil communication, etc., has been undertaken against the envied person.
Thus the mere _feeling_ is confessed at once. People say, “How I envy
him this trip, his magnificent health, his gorgeous automobile, etc.”
They do not say: “I have enviously spoken evil of him, or done this or
that against him.” Yet it is in the latter form that the actual passion
of envy expresses itself.
The capacity of the envious for false representation makes them
particularly dangerous in the court-room. If we want to discover
anything about an individual we naturally inquire of his colleagues, his
relatives, etc. But it is just among these that envy rules. If you
inquire of people without influence you learn nothing from them, since
they do not understand the matter; if you ask professional people they
speak enviously or selfishly, and that constitutes our dilemma. Our
attention may be called to envy by the speaker’s hesitation, his
reserved manner of answering. This is the same in all classes, and is
valuable because it may warn us against very bad misunderstandings.
As a rule, nothing can be said about passion as a source of crime. We
may assume that passion passes through three periods. The first is
characterized by the general or partial recurrence of older images; in
the second, the new idea employs its dominating place negatively or
positively with respect to the older one,--the passion culminates; and
in the third, the forcibly-disturbed emotional equilibrium is restored.
Most emotions are accompanied by well-known physical phenomena. Some
have been thoroughly studied, e.g., the juristically important emotion
of fear. In fear, breathing is irregular, inspiration is frequently
broken, a series of short breaths is followed by one or more deep ones,
inspiration is short, expiration is prolonged, one or the other is
sobbing. All these phenomena are only a single consequence of the
increase of respiratory changes. The irregularity of the latter causes
coughing, then a disturbance of speech, which is induced by the
irregular action of the muscles of the jaw, and in part by the
acceleration of the breathing. In the stages of echoing fear, yawning
occurs, and the distention of the pupils may be noticed as the emotion
develops. This is what we often see when a denying defendant finds
himself confounded by evidence, etc.
The most remarkable and in no way explicable fact is, that these
phenomena do not occur in innocent people. One might think that the fear
of being innocently convicted would cause an expression of dread, anger,
etc., but it does not cause an expression of real terror. I have no
other than empirical evidence of the fact, so that many more
observations are required before any fresh inferences are deduced
therefrom anent a man’s guilt or innocence. We must never forget that
under such circumstances passions and emotions often change into their
opposites according to rule. Parsimony becomes extravagance, and
conversely; love becomes hate. Many a man becomes altogether too
foolhardy because of despairing fear. So it may happen that terror may
become petrifying coldness, and then not one of the typical marks of
terror appears. But it betrays itself just as certainly by its icy
indifference as by its own proper traits. Just as passions transmute
into their opposites, so they carry a significant company of subordinate
characteristics. Thus, dread or fear is accompanied by disorderly
impertinence, sensuality by cruelty. The latter connection is of great
importance to us, for it frequently eliminates difficulties in the
explanation of crime. That cruelty and lasciviousness have the same
root has long been known. The very ecstasy of adventurous and passionate
love is frequently connected with a certain cruel tendency. Women are,
as a rule, more ferocious than men.[308] It is asserted that a woman in
love is constantly desiring her man. If this be true, the foregoing
statement is sufficiently explained. In one sense the connection between
sexual passion and cruelty is bound up with that unsatiability which is
characteristic of several passions. It is best to be observed in
passions for property, especially such as involve the sense-perception
of money. It is quite correct to speak of the overwhelming, devilish
power of gold, of the sensual desire to roll in gold, of the
irresistible ring of coins, etc. And it is also correctly held that
money has the same definite influence on man as blood on preying
animals. We all know innumerable examples of quite decent people who
were led to serious crimes by the mere sight of a large sum of money.
Knowledge of this tendency may, on occasion, lead to clues, and even to
the personality of the criminal.