CHAPTER XVIII

Insanity and the Law 350

Index 377

INTRODUCTION

By Prof. John H. Wigmore, Dean of the Law School of Northwestern

University.

Mr. Train's book, "The Prisoner at the Bar," as an entertaining and

vivid picture of the criminal procedure of to-day, and a repertory of

practical experience and serious discussion of present-day problems

in the administration of justice, is, in my opinion, both unique and

invaluable. I know of no other book which so satisfyingly fills an

important but empty place in a modern field. At one extreme stand

the scientific psycho-criminologists, usefully investigating and

reflecting, but commonly severed from the practical treatment of any

branch of the subject until the prison doors are reached. At another

extreme are the professional lawyers, skilled in the technique of

present procedure, but too much tied by precedent to take anything

but a narrow, backward-looking view. Off in a third corner are the

economists, sociologists, physicians, and serious citizens in general,

who notice that some things are going wrong, but have no accurate

conception of what is actually seen and done every day in courts of

justice; these good people run the risk of favoring impracticable fads

or impossible theories.

Now comes Mr. Train's book, casting in the centre of the field an

illumination useful to all parties. It enlightens the serious citizen

as to the actual experiences of our criminal justice, and shows him the

inexorable facts that must be reckoned with in any new proposals. The

professional lawyer is stimulated to think over the large tendencies

involved in his daily work, to realize that all is _not_ necessarily

for the best, and to join and help with his skill. The scientific

criminologist is warned against trusting too much to the cobwebs of

his ideal theories, or adhering too implicitly to the Lombrosan school

or other foreign propaganda, and is forced to keep in mind a living

picture of the practical needs of American justice.

I do not hesitate to say that every thoughtful American citizen ought

to know all the things that are told in this book; and if he did, and

as soon as he did, we might then begin to work with encouragement to

accomplish in a fashion truly practical as well as scientific the

needed improvements in our criminal justice. Such effort is likely to

be hopeless until people come to realize _what the facts are_. Judging

by my own case, I feel that most people will never really know and

appreciate the facts unless they read Mr. Train's book.

THE PRISONER AT THE BAR

The Prisoner at the Bar

CHAPTER I

WHAT IS CRIME?

A crime is any act or omission to act punishable as such by law. It is

difficult, if not impossible, to devise any closer definition. Speaking

broadly, crimes are certain acts, usually wrongful, which are regarded

as sufficiently dangerous or harmful to society to be forbidden under

pain of punishment. The general relation of crimes to wrongs as a whole

is sometimes illustrated by a circle having two much smaller circles

within it. The outer circle represents wrongful acts in the aggregate;

the second, wrongful acts held by law to be _torts_, that is to say,

infractions of private rights for which redress may be sought in the

civil courts, and the smallest or inner circle, acts held to be so

injurious to the public as to be punishable as crimes.

This does well enough for the purpose of illustrating the relative

proportion of crimes to torts or wrongful acts in general, and, if a

tiny dot be placed in the centre of the bull's-eye to represent those

crimes which are actually punished, one gets an excellent idea of how

infinitely small a number of these serve to keep the whole social

fabric in order and sustain the majesty of the law. But the inference

might naturally be drawn that whatever was a crime must also be a tort

or at least a wrong, which, while true in the majority of instances, is

not necessarily the case in all. In a certain sense crimes are always

wrongs or, at least, wrong, but only in the sense of being infractions

of law are they _always_ wrongs or wrong.

[Illustration]

The word wrong being the antithesis of the word right, and carrying

with it generally some ethical or moral significance, will vary in

its meaning according to the ideas of the individual who makes use of

it. Indeed, it is conceivable that the only really right thing to do

under certain circumstances would be to commit an act designated by

law as a crime. So, conversely, while a wrong viewed as an infraction

of the laws of God is a sin, that which is universally held sinful

is by no means always a crime. Speaking less broadly, a wrong is an

infraction of a right belonging to another, which he derives from the

law governing the society of which he is a member. Many wrongs are

such that he may sue and obtain redress therefor in the courts. But

it by no means follows that every crime involves the infraction of a

private right or the commission of a tort. Thus "perjury" and most

crimes against the State are not torts at all. It will thus be seen

that no accurate definition of a crime can be given save that it is an

act or omission which the State punishes as such, and that technically

the word carries with it no imputation or implication of sin, vice,

iniquity, or in a broad sense even of wrong. The act may or may not

be repugnant to our ideas of right. Numerically considered, only a

minority of crimes have any ethical significance whatever, the majority

being designated by the law itself as _mala prohibita_, rather than

_mala in se_.

It is the duty of a prosecutor to see that infractions of the criminal

law are punished and to represent the public in all proceedings had

for that purpose, but, in view of what has just been said, it will

be observed that his duties do not necessarily involve familiarity

with vice, violence or even sin. The crimes he is called upon to

prosecute may be disgusting, depraved and wicked, or they may be, and

frequently are, interesting, ingenious, amusing or, possibly (though

not probably), commendable. For example, a man who chastises the foul

slanderer of a young woman's character may have technically committed

an assault of high degree, yet if he does so in the proper spirit, in a

suitable place, and makes the offender smart sufficiently, he deserves

the thanks and congratulations of all decent men and honest women. Yet,

indubitably, he has committed a crime, although, thanks to our still

lingering spirit of chivalry, he would never be stamped by any jury as

a criminal.

A prosecutor is frequently asked if he does not find that his

experience has a "hardening" effect.

"Why should it?" he might fairly reply. "I have to do with criminals,

it is true, but the criminals as a rule are little or no worse than

the classes of people outside from which they have been drawn. Their

arrest and conviction are largely due to accidental causes, such as

weak heads, warm hearts, quick temper, ignorance, foolishness or

drunkenness. We see all of these characteristics in our immediate

associates. A great many convicted persons have done acts which are

not wrong at all, but are merely forbidden. Even where their acts

are really wrong it is generally the stupid, the unfortunate, or the

less skilful who are caught. For every rogue in jail there are at

least ten thousand at large. The ones who escape are wiser and very

likely meaner. Last, but not least, a very great number of the most

despicable, wicked, and harmful deeds that can be committed are not

crimes at all. The fact that a man is a criminal argues nothing at all

against his general decency, and when I meet a convict I assume, and

generally assume correctly, that to most intents and purposes he is a

gentleman. The code which puts one man in stripes and allows another

to ride in an automobile is purely artificial, and strictly speaking

proves not a whit which is the better man."

Now while such an answer might seem frivolous enough to the lay reader,

it would nevertheless be substantially true. Your criminal, that is

to say, strictly, the law-breaker who is brought to book for his

offence, is very likely a pretty good sort of fellow as fellows go. If

he has been guilty merely of an act which is prohibited, not because

of its inherent wrong, but simply on grounds of public policy--_malum

prohibitum_--he is probably as good as anybody. His offence may be due

to ignorance or accident. Assuming that his crime be one which would

seem to involve moral turpitude--_malum in se_--there are very likely

mitigating circumstances which render his offence, if not excusable, at

least less reprehensible than would appear at first glance.

Crimes bear no absolute relation to one another. A murderer may or may

not be worse than a thief,--and either may be better than his accuser.

The actual danger of any particular offender to the community lies not

so much in the kind or degree of crime which he may have committed as

in the state of his mind. Even the criminals who are really criminal,

in the sense that they have a systematic intention of defying the law

and preying upon society, are generally not criminal in all directions,

but usually only in one, so that taken upon their unprofessional

side they present the same characteristics as ordinary and, roughly

speaking, law-abiding citizens. The bank robber usually is a bank

robber and nothing more. He specializes in that one pursuit. It is his

vocation and his joy. He prides himself on the artistic manner in which

he does his work. He would scorn to steal your watch and is a man of

honor outside of bank-breaking hours,--"Honor among thieves." Often

enough he is a model husband and father. So, too, may be your forger,

gambler, swindler, burglar, highwayman, or thief,--any in fact except

the real moral pervert; and of course murder is entirely compatible

on occasion with a noble, dignified and generous character. "There

is nothing essentially incongruous between crime and culture." The

prosecutor who begins by loathing and despising the man sitting at the

bar may end by having a sincere admiration for his intellect, character

or capabilities. This by way of defence to crime in general.

Our forefathers contented themselves with a rough distinction

between crimes as _mala prohibita_ and _mala in se_. When they

sought to classify criminal acts under this arrangement they divided

them accordingly as the offence carried or did not carry with it a

suggestion of moral turpitude. Broadly speaking, all felonies were and

are regarded as _mala in se_. Murder, arson, burglary, theft, etc.,

in general indubitably imply a depraved mind, while infractions of

Sunday observance laws or of statutes governing the trade in liquor

do not. Yet it must be perfectly clear that any such distinction is

inconclusive.

There can be no general rule based merely on the name or kind of crime

committed which is going to tell us which offender is really the

worst. A misdemeanor may be very much more heinous than a felony. The

adulterator of drugs or the employer of illegal child labor may well

be regarded as vastly more reprehensible than the tramp who steals

part of the family wash. So far as that goes there are an alarming

multitude of acts and omissions not forbidden by statute or classed

as crimes which are to all intents and purposes fully as criminal as

those designated as such by law. This is the inevitable result of the

fact that crimes are not crimes merely because they are wrong, but

because the State has enjoined them. For example, to push a blind man

over the edge of a cliff so that he is killed upon the rocks below is

murder, but to permit him to walk over it, although by stretching out

your hand you might prevent him, is no crime at all. It is a crime to

defame a woman's character if you write your accusation upon a slip of

paper and pass it to another, but it is no crime in New York State to

arise in a crowded lecture hall and ruin her forever by word of mouth.

It is a crime to steal a banana off a fruit-stand, but it is no crime

to borrow ten thousand dollars from a man whose entire fortune it is,

although you have no expectation of returning it. You can be a swindler

all your life--the meanest sort of a mean swindler, but there is no

crime of being a swindler or of being a mean man. It is a crime to ruin

a girl of seventeen years and eleven months, but not to ruin a girl of

eighteen. The "age of consent" varies in the different States. It is a

crime to obtain a dollar by means of a false statement as to a past or

existing fact, but it is no crime to obtain as much money as you can by

any other sort of a lie. Lying is not a crime, but lying under oath is

a crime,--provided it be done in a legal proceeding and relates to a

_material_ matter. The most learned jurists habitually disagree as to

what is material and what is not.

Even when the acts to be contrasted are all crimes there is no way of

actually discriminating between them except by carefully scrutinizing

the circumstances of each. The so-called "degrees" mean little or

nothing. If you steal four hundred and ninety-nine dollars out of a

man's safe in the daytime it is grand larceny in the second degree. If

you pick the same man's pocket of a subway ticket after sunset it is

grand larceny in the first degree. You may get five years in the first

instance and ten in the second. If you steal twenty-five dollars out of

a bureau drawer you commit petty larceny and may be sent to prison for

only one year.

If the degree of any particular crime of which a defendant is found

guilty is no index to his real criminality or of his danger to society,

still less is the name of the crime he has committed an index to his

moral character, save in the case of certain offences which it is not

necessary to enumerate. Most men charged with homicide are indicted for

murder in the first degree. This may be a wise course for the grand

jury to pursue in view of the additional evidence which often comes

to light during a trial. But it frequently is discovered before the

case goes to the jury that in point of fact the killing was in hot

blood and under circumstances which evince no great moral turpitude

in the slayer. For example, two drunken men become involved in an

altercation and one strikes the other, who loses his equilibrium and

falls, hitting his head against a curbstone and fracturing his skull.

The striker is indicted and tried for murder. Now he is doubtless

guilty of manslaughter, but he is less dangerous to the community

than a professional thief who preys upon the public by impersonating

a gasman or telephone repairer and by thus gaining access to private

dwellings steals the owner's property. One is an accidental, the other

an intentional criminal. One is hostile to society as a whole and the

other is probably not really hostile to anybody. Yet the less guilty

is denominated a murderer, and the other is rarely held guilty of

more than petty larceny. A fellow who bumps into you on the street,

if he be accompanied by another, and grabs your cane, is guilty of

robbery in the first degree,--"highway" robbery,--and may get twenty

years for it, but the same man may publish a malicious libel about

you, and by accusing you of the foulest practices rob you of your good

name and be only guilty of a misdemeanor. Yet the reader should not

infer that definitions and grades of crime capable of corresponding

punishments are not proper, desirable, and necessary. Of course they

are. The practical use of such statutes is to fix a maximum sentence

of punishment. As a rule the minimum is anything the judge sees fit.

Hence you may deduce a general principle to the effect that the charge

against the prisoner, even assuming his guilt, indicates nothing

definite as to his moral turpitude, danger to the community, or general

undesirability.

But we may honestly go much further. Not only are the names and degrees

of the crimes which a defendant may have committed of very little

assistance in determining his real criminality, but the fact that

he has committed them by no means signifies that he is morally any

worse than some man who has committed no so-called crime at all. Many

criminals, even those guilty of homicide, are as white as snow compared

with others who have never transgressed the literal wording of a penal

statute.

"We used to have So and So for our lawyer," remarked the president

of a large street railway corporation. "He was always telling us what

we _couldn't_ do. Now we have Blank, and pay him one hundred thousand

dollars a year to tell us how we _can_ do the same things." The thief

who can have the advice of able counsel "how to do it" need never go to

jail.

Many of the things most abhorrent to our sense of right do not come

within the scope of the criminal law. _Omissions_, no matter how

reprehensible, are usually not regarded as criminal, because in most

cases there is no technical legal duty to perform the act omitted.

Thus, not to remove your neighbor's baby from the railroad track in

front of an on-rushing train, although it would cause you very little

trouble to do so, is no crime, even if the child's life be lost as a

result of your neglect. You can let your mother-in-law choke to death

without sending for a doctor, or permit a ruffian half your size to

kill an old and helpless man, or allow your neighbor's house to burn

down, he and his family peacefully sleeping inside it, while you play

on the pianola and refuse to ring up the fire department, and never

have to suffer for it--in this world.

Passing from felonies--_mala in se_--to misdemeanors--generally only

_mala prohibita_--almost anything becomes a crime, depending upon the

arbitrary act of the legislature.

It is a crime in New York State to run a horse race within a mile of

where a court is sitting; to advertise as a divorce lawyer; to go

fishing or "play" on the first day of the week; to set off fire-works

or make a "disbursing noise"[1] at a military funeral in a city on

Sunday; to arrest or attach a corpse for payment of debt; to keep a

"slot machine"; to do business under any name not actually your own

full name without filing a certificate with the county clerk (as, for

example, if, being a tailor, you call your shop "The P.D.Q. Tailoring

Establishment"); to ride in a long-distance bicycle race more than

twelve hours out of twenty-four; to shoe horses without complying

with certain articles of the Labor Law; to fail to supply seats for

female employés in a mercantile establishment; to steal a ride in a

freight car, or to board such a car or train while in motion; to set

fire negligently to one's own woods, by means of which the property of

another is endangered; to run a ferry without authority, or, having

contracted to run one, to fail to do so; to neglect to post ferry

rates (under certain conditions) in English; to induce the employé

of a railroad company to leave its service because it requires him

to wear a uniform; to wear a railroad uniform without authority;

to fish with a net in any part of the Hudson River (except where

permitted by statute); to secretly loiter about a building with intent

to overhear discourse therein, and to repeat the same to vex others

(eavesdropping); to sell skimmed milk without a label; to plant oysters

(if you are a non-resident) inside the State without the consent of the

owner of the water; to maintain an insane asylum without a license; to

enter an agricultural fair without paying the entrance fee; to assemble

with two or more other persons "disguised by having their faces

painted, discolored, colored or concealed," save at a fancy-dress ball

for which permission has been duly obtained from the police; or to wear

the badge of the "Patrons of Husbandry," or of certain other orders

without authority. These illustrations are selected at random from the

New York Penal Code.

Where every business, profession, and sport is hedged around by such

_chevaux-de-frise_ of criminal statutes, he must be an extraordinarily

careful as well as an exceptionally well-informed citizen who avoids

sooner or later crossing the dead-line. It is to be deprecated that our

law-makers can devise no other way of regulating our existences save by

threatening us with the shaved head and striped shirt.

The actual effect of such a multitude of statutes making anything and

everything crimes, punishable by imprisonment, instead of increasing

our respect for law, decreases it, unless they are intended to be and

actually are enforced. Acts _mala in se_ are lost in the shuffle among

the acts _mala prohibita_, and we have to become students to avoid

becoming criminals.

Year by year the legislature goes calmly on _creating_ all sorts of new

crimes, while failing to amplify or give effect to the various statutes

governing existing offences which to a far greater degree are a menace

to the community. For example, it is not a crime in New York State to

procure money by false pretences provided the person defrauded parts

with his money for an illegal purpose.[2]

In the McCord[3] case, in which the Court of Appeals established this

extraordinary doctrine, the defendant had falsely pretended to the

complainant, a man named Miller, that he was a police officer and held

a warrant for his arrest. By these means he had induced Miller to give

him a gold watch and a diamond ring as the price of his liberty. The

conviction in this case was reversed on the ground that Miller parted

with his property for an unlawful purpose; but there was a very strong

dissenting opinion from Mr. Justice Peckham, now a member of the bench

of the Supreme Court of the United States.

In a second case, that of Livingston,[4] the complainant had been

defrauded out of five hundred dollars by means of the "green-goods"

game; but this conviction was reversed by the Appellate Division of the

Second Department on the authority of the McCord case. The opinion was

written by Mr. Justice Cullen, now Chief Judge of the New York Court of

Appeals, who says in conclusion:

"We very much regret being compelled to reverse this conviction. Even

if the prosecutor intended to deal in counterfeit money, it is no

reason why the appellant should go unwhipped of justice. _We venture

to suggest that it might be well for the legislature to alter the rule

laid down in McCord vs. People._"

Well might the judges regret being compelled to set a rogue at liberty

simply because he had been ingenious enough to invent a fraud which

involved the additional turpitude of seducing another into a criminal

conspiracy. Livingston was turned loose upon the community, in spite

of the fact that he had swindled a man out of five hundred dollars,

because he had incidentally led the latter to believe that in return

he was to receive counterfeit money or "green goods" which might be

put into circulation. Yet, because, some years before, the judges

of the Court of Appeals had, in the McCord matter, adopted the rule

followed in civil cases, to wit, that as the complaining witness was

himself in fault and did not come into court with clean hands he could

have no standing before them, the Appellate Division in the next case

felt obliged to follow them and to rule tantamount to saying that two

wrongs could make a right and two knaves one honest man. It may seem

a trifle unfair to put it in just this way, but when one realizes

the iniquity of such a rule as applied to criminal cases, it is hard

to speak softly. Thus the broad and general doctrine seemed to be

established that so long as a thief could induce his victim to believe

that it was to his advantage to enter into a dishonest transaction, he

might defraud him to any extent in his power. Immediately there sprang

into being hordes of swindlers, who, aided by adroit shyster lawyers,

invented all sorts of schemes which involved some sort of dishonesty

upon the part of the person to be defrauded. The "wire-tappers,"

of whom "Larry" Summerfield was the Napoleon, the "gold-brick" and

"green-goods" men, and the "sick engineers" flocked to New York, which,

under the unwitting protection of the Court of Appeals, became a

veritable Mecca for persons of their ilk.

The "wire-tapping" game consisted in inducing the victim to put up

money for the purpose of betting upon a "sure thing," knowledge of

which the thief pretended to have secured by "tapping" a Western

Union wire of advance news of the races. He usually had a "lay out"

which included telegraph instruments connected with a dry battery in

an adjoining closet, and would merrily steal the supposed news off

an imaginary wire and then send his dupe to play his money upon the

"winner" in a pretended pool-room which in reality was nothing but a

den of thieves, who instantly absconded with the money.

In this way one John Felix was defrauded out of fifty thousand dollars

on a single occasion.[5] Now the simplest legislation could instantly

remedy this evil and put all the "wire-tappers" and similar swindlers

out of business, yet a bill framed and introduced in accordance with

the suggestion of the highest court in the State was defeated. Instead

the legislature passes scores of entirely innocuous and respectable

acts like the following, which became a law in 1890:

An Act for the Prevention of Blindness

Section 1. Should ... _nurse having charge of an infant ... notice_

that one or both eyes of such infant are inflamed or reddened at

any time within two weeks after its birth it shall be the duty of

such nurse ... to report the fact in writing within six hours to the

health officer or some legally qualified practitioner of medicine ...

Section 2. Any failure to comply with the provisions of this act

shall be punished by a fine not to exceed one hundred dollars, _or

imprisonment not to exceed six months_, _or both_.

The criminal law which had its origin when violence was rife is

admirably adapted to the prevention, prosecuting and punishment of

crude crimes, such as arson, rape, robbery, burglary, mayhem, assault,

homicide, and "common-law" larceny,--theft accompanied by a trespass.

In old times everything was against the man charged with crime--at

least that was the attitude of the court and jury. "Aha!" exclaims the

judge as the evidence goes in. "You thought you were stealing only

a horse! But you stole a _halter as well_!" And the spectators are

convulsed with merriment.

We take honest pride in the protection which our law affords to the

indicted prisoner. It is the natural expression of our disapproval

of a system which at the time of our severance from England ignored

the rights of the individual for those of the community. We touched

the lips of the defendant and gave him the right to speak in his own

behalf. We gave him an unlimited right of appeal on any imaginable

technicality.[6] But while we have been making it harder and harder to

convict our common criminals, we have to a very great extent failed

to recognize the fact that all sorts of new and ingenious crimes

have come into existence with which the law in its present state is

utterly unable to cope. The evolution of the modern corporation

has made possible larcenies to the punishment of which the law is

entirely inadequate. "Acts for the prevention of blindness" are perhaps

desirable, but how about a few statutes to prevent the officers of

insurance companies from arbitrarily diverting the funds of that vague

host commonly alluded to as "widows and orphans"? The careless nurse

is a criminal and may be confined in a penitentiary; while perhaps a

man who may be guilty of a great iniquity and known to be so drives

nonchalantly off in his coach and four.

What is crime? We may well ask the question, only eventually to be

confronted by that illuminating definition with which begins the Penal

Code--"A crime is an act or omission forbidden by law and punishable

upon conviction by ... penal discipline." Let us put on our glasses

and find out what these acts or omissions are. When we have done that

we may begin to look around for the criminals. But it will be of

comparatively little assistance in finding the _sinners_.

So-called criminologists delight in measuring the width of the skulls

between the eyes, the height of the foreheads, the length of the ears,

and the angle of the noses of persons convicted of certain kinds of

crimes, and prepare for the edification of the simple-minded public

tables demonstrating that the burglar has this kind of a head, the

pickpocket that sort of an ear, and the swindler such and such a

variety of visage. Exhaustive treatises upon crime and criminals lay

down general principles supposed to assist in determining the kind of

crime for which any particular unfortunate may have a predilection. One

variety of criminal looks this way and another looks that way. One has

blue eyes, the other brown eyes.[7] Some look up, others look down. My

friend, if you examine into the question, you will probably discover

that the clerk who sells you your glass of soda water at the corner

drug store will qualify for some one of these classes, so will your

host at dinner this evening, so, very likely, will the family doctor or

the pastor of your church.

The writer is informed that there has recently been produced an

elaborate work on political criminals in which an attempt is made to

set forth the telltale characteristics of such. It is explained that

the tendency to commit such crimes may be inherited. You are about as

likely to inherit an inclination to commit a political crime as you are

to derive from a maiden aunt a tendency to violate a speed ordinance or

make a "disbursing" noise.

Let some one codify all the sins and meannesses of mankind, let the

legislatures make them crimes and affix appropriate penalties, then

those of us who still remain outside the bars may with more propriety

indulge ourselves in reflections at the expense of those who are not.

FOOTNOTES:

[Footnote 1: New York Penal Code, Section 276.]

[Footnote 2: No longer the law of New York. After this book was

published the Court of Appeals reversed the conviction of Tracy for

his $50,000 fraud upon Felix by means of the "wire-tapping" game and

affirmed as law the doctrine of People _vs._ McCord. The author takes

satisfaction in recording that the Legislature thereupon awoke to its

duties and amended the penal code in such a fashion as to render such

offences criminal.]

[Footnote 3: 46 New York 470.]

[Footnote 4: 47 App. Div. 283.]

[Footnote 5: The operations of these swindlers recently became so

notorious that the District Attorney of New York County determined to

prosecute the perpetrators of the Felix swindle, in spite of the fact

that the offence appeared to come within the language of the Court of

Appeals in the McCord and Livingston cases. Accordingly Christopher

Tracy, alias Charles Tompkins, alias Topping, etc., etc., was indicted

(on the theory of "trick and device") for the "common-law" larceny of

Felix's fifty thousand dollars.

The trial came on before Judge Warren W. Foster in Part III of the

General Sessions on February 27, 1906. A special panel quickly supplied

a jury, which, after hearing the evidence, returned a verdict of guilty

in short order.

It now remains for the judges of the Court of Appeals to decide whether

they will extend the doctrine of the McCord and Livingston cases to a

fraud of this character, whether they will limit the doctrine strictly

to cases of precisely similar facts, or whether they will frankly

refuse to be bound by any such absurd and iniquitous theory and consign

the McCord case to the dust-heap of discarded and mistaken doctrines,

where it rightfully belongs. Their action will determine whether the

perpetrators of the most ingenious, elaborate and successful bunco game

in the history of New York County shall be punished for their offence

or instead be turned loose to prey at will upon the community at large.

(See "The Last of the Wire-Tappers" in the _American Magazine_ for

June, 1906; also incorporated in the author's "True Stories of Crime,"

pp. 103-121, published by Charles Scribner's Sons, 1908.)]

[Footnote 6: Cf. in general, references given _infra_, p. 339.]

[Footnote 7: The following appeared in the New York _Globe_ for April

25, 1905: "Criminal eyes--It is well known," says Dr. Beddoe, F.R.S.,

"that brown eyes and dark hair are particularly common among the

criminal classes. An American observer calls the brown the criminal

eye, etc., etc."]

CHAPTER II

WHO ARE THE REAL CRIMINALS?

Some reader of the preceding chapter may perhaps remark, "This is

all very well so far as it goes. It doubtless is entirely true from

a purely technical point of view. But that is only one side of the

matter. How about the _real_ criminals?" This is neither an unexpected

nor an uninvited criticism. Who _are_ the "_real_" criminals? Charles

Dudley Warner says: "Speaking technically, we put in that [the

criminal] class those whose sole occupation is crime, who live upon it

as a profession and who have no other permanent industry. They prey

upon society. They are by their acts at war upon it and are outlaws."

Now the class of professional criminals to which Mr. Warner refers as

contrasted with the great mass of criminal defendants as a whole is,

in point of fact, relatively so small, and so easily recognized and

handled, that it plays but an inconspicuous part in the administration

of criminal justice.

The criminals who conform accurately to childhood's tradition are

comparatively few in number. The masked highwayman, the safe-cracker

and even the armed house burglar have, with a few exceptions, long

since withdrawn from the actual pursuit of their romantic professions

and exist practically only in the eagerly devoured pages of Sherlock

Holmes and the "memoirs of great detectives." New and almost more

picturesque figures have taken their places,--the polite and elegant

swindler, the out-at-the-elbows but confidence-inspiring promoter

of assetless corporations, the dealer in worthless securities, and

the forger who drives in his own carriage to the bank he intends to

defraud. In some cases the individuals are the same, the safe-cracker

merely having doffed his mask in favor of the silk hat of Nassau

Street. Of yore he stole valuable securities which he was compelled to

dispose of at a tremendous discount; now he sells you worthless stocks

and bonds at a slight premium. Mr. J. Holt Schorling, writing in _The

Contemporary Review_ for June, 1902, points out that while all crimes

other than fraud decreased materially in England from 1885 to 1899, the

crime of fraud itself materially increased during the same period.[8]

The subject is a tempting one, but it is not essential to our thesis.

The devil is not dead; he has merely changed his clothes. Criminal

activity has not subsided; it has instead sought new ways to meet

modern conditions, and so favorable are these that while polite crime

may be said still to be in its infancy, it is nevertheless thriving

lustily.

While the degenerate criminal class is the subject of much elaborate

and minute analysis by our continental neighbors, its extent is

constantly exaggerated and its relation to the other criminal classes

not fully appreciated. To read some supposedly scientific works one

would imagine that every court of criminal justice was or should be

nothing but a sort of clinic. To these learned authors, civilization,

it is true, owes a debt for their demonstration that some crime is due

to insanity and should be prevented, and, where possible, cured in much

the same manner. But they have created an impression that practically

all crime is the result of abnormality.

Every great truth brings in its train a few falsehoods,--every great

reform a few abuses. The first penological movement was in the

direction of prison reform. While perhaps the psychological problem

was not entirely overlooked, it was completely subordinated to the

physical. It is a noble thing that the convict should have a warm cell

in winter and a cool one in summer, with electric light and running

water, wholesome and nutritious food, books, bathrooms, hospitals,

chapels, concerts, ball games and chaplains. "But it must be noted that

along with this movement has grown up a sickly sentimentality about

criminals which has gone altogether too far, and which, under the guise

of humanity and philanthropy, confounds all moral distinctions." To a

large number of well-meaning people every convict is a person to whom

the State has done an injury.

Then came the study of degeneracy, with the cranium of every criminal

as a subject of investigation. In 1881 or thereabouts Professor

Benedickt published his conclusion that "the brains of criminals

exhibit a deviation from the anthropological variety of their species,

at least among the cultured races." It was a commendable thing to point

out the relation of insanity to crime. It is an undeniable truth that

there are insane people who are predisposed to crime just as there are

those who are predisposed to dance.

The vicious criminal class contains many who are actually or

incipiently insane, and it numbers a great many more who are

physically and mentally normal, who yet by reason of their education

and environment are not much to be blamed for doing wrong. But it is

far from true that a majority of the "real" criminals are mentally

defective. Crime and insanity are no more closely related than sin

and insanity. Certain criminals are also perverts. But they would be

criminals even if they were not perverts. The fact that a man who

takes drugs is also a criminal does not prove that he is a criminal

because he takes drugs. We know many drug-takers who are otherwise

highly respectable. Go to the General Sessions and watch the various

defendants who are brought into court and you will discover little

more degeneracy or abnormality than you would find on the corner of

Twenty-third Street and Fifth Avenue among the same number of unaccused

citizens.

The point which the writer desires to make is that, leaving out the

accidental and experimental criminals, there is a much closer relation

between all law-breakers than the public and our legislators seem to

suppose. The man who adulterates his milk to make a little extra money

is in the same class with the financial swindler. One waters his milk,

the other his stock. The same underhanded desire to better one's self

at the expense of one's neighbor is the moving cause in each case. The

forger belongs to the class whose heads the criminologists delight to

measure, but they would not measure your milkman's. The man who steals

your purse is a felon and a subject of scientific investigation and

discussion; the man who forges a trade-mark commits only a misdemeanor

and excites no psychological interest. But they are criminals of

exactly the same type.

The "crime-is-a-disease" theory has been worked entirely too hard. It

is a penologic generality which does not need any truckling to popular

sentimentality to demonstrate its truth. But there are as many sorts of

this "disease" as there are kinds of crime, and some varieties would

be better described by other and less euphemistic names. Crime is no

more a disease than sin, and the sinners deserve a good share of the

sympathy that is at present wasted on the criminals. The poor fellow

who has merely done wrong gets but scant courtesy, but once jerk him

behind the bars and the women send him flowers. If crime is a disease,

sin is also a disease, and we have all got a case of it. It is strange

that there is not more "straight talk" on this subject. Every one of us

has criminal propensities,--that is to say, in every one of us lurks

the elemental and unlawful passions of sex and of acquirement. It is

but a play on words to say that the man who yields to his inclinations

to the extent of transgressing the criminal statutes is "diseased." Up

to a certain point it is his own business, beyond it becomes ours, and

he transgresses at his peril.

The ordinary criminal usually is such because he "wants the money";

he either does not like to work or wants more money than he can earn

honestly. He has no "irresistible impulse" to steal,--he steals because

he thinks he can "get away with it."

The so-called professional thief is usually one who has succeeded in so

doing or who, having been convicted of larceny, finds he cannot live

agreeably other than by thieving; but the man is no less a professional

thief who systematically puts money in his pocket by dishonest and

illegal methods in business. The fact that it is not, in the ordinary

sense, his "sole occupation" does not affect the question at all.

Indeed, it would be difficult for one whose business life was permeated

by graft to refute the general allegation that his "sole occupation"

was criminal. Granting this, your dishonest business man fulfils every

requirement of Mr. Warner's definition, for he "preys upon society and

is [secretly] at war upon it." He may not be an "outlaw," but he should

be one under any enlightened code of criminal laws.[9]

There is no practical distinction between a man who gets all of a

poor living dishonestly and one who gets part of an exceedingly good

living dishonestly. The thieving of the latter may be many times

more profitable than that of the former. So long as both keep at it

systematically there is little to choose between the thief who earns

his livelihood by picking pockets and the grocer or the financier who

swindles those who rely upon his representations. The man who steals

a trade-mark, counterfeits a label, or adulterates food or drugs, who

makes a fraudulent assignment of his property, who as a director of a

corporation declares an unearned dividend for the purpose of selling

the stock of himself and his associates at an inflated value, who

publishes false statements and reports, makes illegal loans, or who is

guilty of any of the thousand and one dishonest practices which are

being uncovered every day in the management of life insurance, banking,

trust, and railroad companies, is precisely as "real" a criminal as one

who lurks in an alley and steals from a passing wagon. _Each is guilty

of a deliberate violation of law implying conscious wrong_, and each

commits it for essentially the same reason.

Yet at the present time the law itself recognizes a fictitious

distinction between these crimes and those of a more elementary sort.

The adulteration of foods, the theft of trade-marks, stock-jobbing,

corporation frauds, and fraudulent assignments are as a rule only

misdemeanors. The trouble is that we have not yet adjusted ourselves to

the idea that the criminal who wears a clean collar is as dangerous as

one who does not. Of course, in point of fact he is a great deal worse,

for he has not the excuse of having a gnawing at his vitals.

If a rascally merchant makes a fraudulent conveyance of his property

and then "fails," although he may have secreted goods worth fifty

thousand dollars, the punishment of himself and his confederate is

limited to a year in the penitentiary and a thousand dollars fine,

while if a bank cashier should steal an equivalent amount and turn it

over to an accomplice for safe keeping he could receive ten years in

State's prison. Even in this last case the receiver's punishment could

not exceed _five_ years. Thus Robert A. Ammon, who was the sole person

to profit by the notorious "Franklyn Syndicate,"[10] when convicted

of receiving the proceeds of the fraud, could be sentenced to only

five years in Sing Sing, while his dupe, Miller, who sat at the desk

and received the money, although he acted throughout by the other's

advice and counsel, in fact did receive a sentence of ten years for

practically the same offence. However inequitable this may seem, what

inducements are offered in the field of fraudulent commercial activity

when a similar kind of theft is punishable by only a year in the

penitentiary?

One can hardly blame such picturesque swindlers as "Larry" Summerfield,

who saw gigantic financial and commercial frauds being perpetrated

on every side, while the thieves who had enriched themselves at the

expense of a gullible public went scot-free, for wanting to participate

in the feast. Almost every day sees some new corporation brought into

being, the only object of which is to enable its organizers to foist

its worthless stock among poorly paid clerks, stenographers, trained

nurses, elevator men and hard-working mechanics. The stock is disposed

of and the "corporation" (usually a copper or gold mining enterprise)

is never heard of again. Apparently if you do the thing correctly there

can be no "come back." Accordingly Summerfield and his gang of "sick

engineers" hawked through the town nearly eighty thousand dollars'

worth of the securities of the Horse Shoe Copper Mining Company, which

owned a hole in the ground in Arizona. It was all done under legal

advice and was undoubtedly believed to be within the letter of the

law. But there were a few unnecessary falsehoods, a few slips in the

schedule, a few complainants who would not be placated, and "Larry"

found himself in the toils. He was convicted of grand larceny in the

first degree, secured a certificate of reasonable doubt and gave bail

in a very large amount. Within a short time he was re-arrested for

working the same game upon an unsuspecting southerner. This time his

bail was increased to thirty thousand dollars. It was not long after

the investigations into the Ship-Building Trust scandal and New York

had been edified by seeing the inside workings of some very high

finance. After his temporary release Summerfield strolled over to

Pontin's restaurant for lunch, where he sat down at a table adjoining

one occupied by the assistant district attorney who had prosecuted and

convicted him.

"How are you, Mr. ----?" inquired "Larry" with his usual urbanity. "How

are things?"

"So so," replied the prosecutor, amused at the nonchalance of a man who

might reasonably expect to be in Sing Sing within three months. "How's

business?"

"Oh, pretty good," returned Larry. "You know there is a sucker born

every minute."

"I should think after your conviction you would have had sense enough

to keep out of swindling for a while," continued the assistant.

"Swindling!" exclaimed Summerfield. "Swindling nothin'! My lawyer says

I didn't commit any crime. Didn't the Supreme Court say there was a

reasonable doubt in my case? Well, I'm just giving myself the benefit

of it,--that's all. I'm entitled to it. How about those Ship-Building

fellers?"

The "Ship-Building fellers" have never been convicted of any

wrong-doing. Perhaps they committed no crime. Summerfield has three

years more to serve in Sing Sing.[11]

In this connection the reader will recall the attitude of the

inhabitants of Lilliput as chronicled by Gulliver.--"They look upon

fraud as a greater crime than theft, and therefore seldom fail to

punish it with death; for they allege that care and vigilance, with

a very common understanding, may preserve a man's goods from theft,

but honesty has no _defence_ against superior cunning; ... the honest

dealer is always undone, and the knave gets the advantage. I remember

when I was once interceding with the king for a criminal who had

wronged his master for a great sum of money, which he had received by

order, and ran away with; and happening to tell his Majesty by way of

extenuation that it was only a breach of trust, the Emperor thought it

monstrous in me to offer as a defence the greatest aggravation of the

crime; and truly I had little to say in return, further than the common

answer, that different nations had different customs; for, I confess, I

was heartily ashamed."

Any definition of the criminal class which limits it to those who "make

their living" by crime is inadequate and begs the question entirely.

There is no choice between the grafter and the "professional" thief,

the boodler and the bank robber. They are all "real" criminals. One is

as "diseased" and "degenerate" as the other. Every reversed conviction

of a "grafter" lowers a peg the popular respect for law. The clerk

in the corner grocery in Dakota feels the wireless influence of the

boodler in St. Louis, and the "successful" failure in New York sets

some fellow thinking in San Francisco.

The so-called degenerate and professional criminals constitute a very

small fraction of the law-breakers and it is not from either class

that we have most to fear. Our real danger lies in those classes of

the population who have no regard for law, if not an actual contempt

for it, and who may become criminals, or at least criminal, whenever

any satisfactory reason, coupled with adequate opportunity, presents

itself. From this class spring the experimental criminals of every

sort, who in time become "professionals," and from it the embezzler,

the stock jobber, the forger and business thief. From it as well are

largely recruited those who commit the crimes of violence which,

however undeservedly, give the United States such an unenviable place

upon the tables of the statisticians. From it spring the "fellow who

does not care" or who "will take a chance," the dynamiter, the man who

is willing to "turn a trick" at a price, and all those who need the

strong arm of the law to restrain them from yielding to their entirely

normal evil inclinations.

The man who deliberately violates the law by doing that which he knows

to be wrong is a real criminal, whether he be a house-breaker, an

adulterator of drugs, the receiver of a fraudulent assignment or a

trade-mark thief, an insurance "grafter," a bribe giver, or a butcher

who charges the cook's commission against next Sunday's delivery. The

writer fails to see the slightest valid distinction between them and

believes it should be made possible to punish them all with equal

severity. There is no reason why one should be a felon, another guilty

of only a misdemeanor, while still another is guilty of nothing at

all. The cause of crime is our general and widespread lack of respect

for law, and this in turn is largely due to the unpunished, and often

unpunishable, dishonesty which seems to permeate many phases of

commercial activity. Diogenes's job is still vacant.

FOOTNOTES:

[Footnote 8: Including under the general term "fraud," obtaining

money by false pretences, thefts by solicitors, bankers, agents,

directors, trustees, etc. ("generally recorded under the euphony

'misappropriation'"), falsifying accounts, etc., Mr. Schorling found

that taking the number of these two divisions of crime between

1885-1889 as 100% there had been the following relative decrease and

increase between them:

_All Crimes Except Fraud_ _Frauds_

1885-1889 100 % | 1885-1889 100 %

1890-1894 96.2% | 1890-1894 110.1%

1895-1899 90.4% | 1895-1899 138.3%

A similar table constructed for the United States during the last

fifteen years would be instructive but perhaps unduly depressing.

Recent financial and other disclosures would probably send up the

mercury of the "fraud" thermometer until it burst.]

[Footnote 9: Cf. "Unpunished Commercial Crime" in "Moral Overstrain,"

by G.W. Alger. Houghton, Mifflin & Co., 1906.]

[Footnote 10: See "True Stories of Crime," referred to _supra_, p. 15.]

[Footnote 11: Since the publication of this book Summerfield has been

discharged from prison, having earned his parole by exemplary conduct.

He has gone West to lead a new and better life, and there is reason to

believe that he will succeed in doing so.]

CHAPTER III

THE ARREST

To most of us modest folk a police officer looks not an inch less than

eight feet in height,--and his blue coat and brass buttons typify the

majesty and inflexibility of the law. At his most trivial gesture the

coachmen rein in their curvetting steeds upon the crowded thoroughfare,

and at his lightest word the gaping pedestrian obediently "moves on."

When necessity compels we address him deprecatingly and, as it were,

with hat in hand, and if he deign to listen to us, and still more if

he condescend to reply, we thrill with pride. We experience a certain

surprise that he has seen fit to give heed to us at all and has not,

instead, ordered us roughly about our business with threatening mien

and uplifted club. That he has rendered us assistance fills us with

humble gratitude. One feels like Dr. Holmes,

"How kind it was of him

To mind a slender man like me!

He of the mighty limb!"

It rarely occurs to us that these stomachic Titans are in fact our

servants and that they have no authority save that which they have

received from ourselves,--that, horrible thought! they wear our livery

as assuredly as does Jeames or Wilkins. Why do these big men patrol

the streets and order us about? Simply because in these busy days the

ordinary citizen has neither time nor inclination to attend to his own

criminal business, and because it is better upon the whole for the

State to attend to it for him.

Eight hundred years ago the punishment of crime was a matter of private

vengeance gradually evolving itself into the criminal procedure of

modern English law. The injured citizen took his appeal "to the county"

and fought it out with his wrong-doer either personally or by proxy.

The idea was, originally, that the man who had been injured ought to

have his revenge, and criminal justice in England even to-day savors

for this reason somewhat of private litigation. Of course, nowadays,

crime is punished on the theory that the public has been injured;

and that not only does the safety of the community require that a

repetition of the same crime by the same offender should be prevented,

but also that an example should be made of the evil-doer as a lesson to

others. Be this as it may, vengeance and not public spirit is still the

moving cause of ninety per cent of all prosecutions for crime.

Just as the right to apprehend a wrong-door was an inherent right at

the common law of every free-born English subject, it is our inherent

right to-day, modified or extended by the statute law of the several

States, and, save where a court of justice has issued its warrant and

commands its agents to apprehend the party named therein, one person

has substantially the same right as another to arrest a criminal, even

if that other be an officer of the law.

The policeman has no greater rights in the matter of preventing crime

or arresting evil-doers than the citizen. He is merely hired by the

citizen to do it for him. The only difference is that it is the _duty_

of the officer by virtue of his position to make arrests, just as it is

that of the fireman to extinguish fires. Yet it is undoubtedly the fact

that nine-tenths of us really believe that the policeman's blue coat,

helmet, and club invest him with some sacred and peculiar authority of

his own. If every citizen recognized the fallacy of this idea, and if

some elementary instruction in such matters were given in the public

schools, even at the sacrifice of clay modelling and decorative art,

it might add much to the spirit of independence and to the practical

efficiency of the coming generation. We are slaves to the magic of the

word "police." We imagine that without a representative of the law we

can do nothing.

Of course we know in general that we may defend the persons and protect

the property of ourselves and others by the exercise of reasonable

force. Beyond this rather vague principle we are not prepared to go.

Where the situation offers no particular inconvenience we are ready

to do our part, but if anything disagreeable is going on we prefer

to be excused. We are out of the habit of doing the simplest police

duty. Most of us would have enough public spirit to summon an officer

if a felony were being committed before our very eyes, provided we

could do so without making ourselves ridiculous, but few of us,

the writer fancies, would join the hue and cry after a pickpocket

unless ours happened to be the pocket he had picked. We leave that

to those whose natural bellicosity is greater and who do not object

to being undignified. It is nevertheless true, however unpleasant

the thought may be, that at any moment we may find ourselves in the

centre of a whirlpool of events where individual action on our part

will be necessary unless we are willing to allow some vicious and

cruel violation of the law to go unpunished. Such exigencies may run

all the way from the malicious beating of an overloaded horse to the

garrotting of a feeble old man. Our efficiency on such occasions might

be represented by a fraction, of which our physical capacity would be

the numerator and our disinclination the denominator, but obviously, to

make the formula complete, this would have to be multiplied by another

representing our knowledge of our rights.

Suppose for example that Mr. Ordinary Citizen on a nocturnal ramble

should, at about three o'clock in the morning, observe some ill-favored

person with a heavy bag in his hand, furtively making his exit from

the area door of a stylish mansion in the residential district. What

should he do? What would _you_ do? Without discussing this embarrassing

question, does the reader know what he would have a right to do? The

chances are largely in favor of his being obliged to answer this

question in the negative. Indeed, our indifference to the unexpected

is so great that we are generally mute and helpless in the face of any

unusual situation where anybody's rights are concerned. We hesitate to

act without the advice of counsel, and in the meantime the burglar has

made his escape!

In the State of New York and generally in this country, any person,

whether he be an officer of the law or not, may make an arrest,

without a warrant, for any crime, of any grade, actually committed in

his presence. It makes no difference whether the offence be that of

spitting in a street-car or murder in the first degree, the offender

may be haled before a magistrate by any one who has seen him commit it.

But the statutes governing the right of arrest, while extensive enough

to safeguard the public interest, are carefully limited to prevent

arbitrary interference with the liberty of innocent persons. The

law, therefore, makes it a positive condition that before any one,

whether he be citizen or officer, may arrest another for a felony

_not_ committed in his presence the felony must _in fact have been

committed_. Thus the right to apprehend a suspected wrong-doer is

invoked at the peril of him who seeks to exercise it. If no felony has

been committed the arrest is illegal.

In one respect only does the law recognize any difference between the

private citizen and the public officer paid to keep the peace,--if a

felony has in fact been committed, the officer may arrest any one who

he has _reasonable ground to believe_ is the guilty party, while a

citizen may arrest only the person who is actually guilty. Thus the

citizen must guarantee not only the commission of the crime but the

identity of the criminal, while the officer, so long as the law has

actually been violated, may take a chance as to the identity of the

perpetrator of the offence.

Now, the police invariably interpret the law to mean that they may

arrest anybody who they _have reasonable cause for believing has

committed a felony_,--but of course the statute gives them no such

power.[12] The _felony must have been committed_; the "reasonable

cause" refers only to the _identity_ of the criminal. This, however,

does not worry the average policeman at all.

He sees "Mr. O.C.'s" burglar coming out of the area with his bag,

promptly pounces upon him and hales him off to the precinct house in

spite of the burglar's protests and expletives. If the burglar prove

refractory he is clubbed into submission, or if he attempt to run he

may be shot in the leg. Now suppose that on reaching the police station

the burglar turns out not to be a burglar at all but the family doctor?

Or a late caller upon the cook? Or a gentleman who has mistaken some

one's else area for his own? Of course no felony has been committed.

The policeman had no right to make the arrest. Assuming that the house

_had_ been burglarized, the officer beyond a doubt had reasonable cause

for a hastily formed opinion that the man in the area was the guilty

party and had a right to make the arrest, but in law he makes this

assumption at his peril. If he is wrong the victim has a good cause

of action against the policeman for false arrest. But the execution

following his civil judgment against the latter will probably be

returned _nulla bona_ by the sheriff, and he will have to pay for his

own medical treatment and legal advice.

Now let us see in what position is O.C., who is not a peace officer,

when he discovers the suspicious figure in the area. He may lawfully

make an arrest, although he has not seen the crime committed, "when

the person arrested has committed a felony." In other words, if it

turns out that no crime has occurred, or that if one has in fact been

perpetrated he has got hold of the wrong man, he will have to patch up

the matter and very likely his own head as best he can.

We will assume O.C. to be a public-spirited citizen and that he

forthwith lays hands on his burglar and reduces him to subjection.

Having done so he rings the front door bell and rouses the owner of the

house, who in turn discovers that the mansion _has_ been burglarized.

They then investigate the prisoner and find that he is a commercial

traveller in an advanced state of intoxication who has rambled into

that particular area by accident. O.C. has been guilty of an illegal

arrest. Even should it prove that the intruder was in fact a burglar,

but not the _right_ burglar, the arrest would still have been without

authority.[13]

To carry the illustration a little further let us assume that in each

case a burglary has been committed and that the prisoner is the guilty

party. What can the officer do, and what can "O.C." do, if his quarry

attempt to escape?

Roughly speaking, a person lawfully engaged in arresting another for a

felony or in preventing the escape of such an one lawfully arrested,

may use all the force necessary for the purpose, even to taking the

life of the prisoner.[14]

It is by virtue of this salutary provision of law that the unscrupulous

policeman gets "square" with his enemies of the under world. When the

officer clubs the "drunk" on the corner, it is on the pretext that

the latter is "resisting" arrest. It is practically an impossibility

to prove that it was not justifiable unless there be eye-witnesses to

what has occurred, and an officer may safely be guilty of a good deal

of physical brutality so long as he brings his victim to the station

house under actual arrest for some alleged offence. It is only when

the victim of such an assault is not arrested that the officer finds

himself in an awkward situation. He must then explain why he clubbed

the citizen unless the latter had committed some offence and was trying

to resist arrest, and, if so, why he did not then conduct him to the

station house.

There is a story told of an old veteran upon the force who was heard to

remark to a companion as they left court together after the acquittal

of an ex-convict on the charge of assaulting the officer:

"Begorra, Tom, 'twon't be long before I'll be afther arrestin' the cuss

agin, and whin I do, _pray God that he resists arrest_!"

It is said that in some of the southwestern states the personal right

to make an arrest at times resulted, practically, in the privilege of

shooting cattle thieves upon sight. The foreman would send out Jack to

"look for" cattle thieves. Jack would lie all day in a gully and when

Sonora Slim hove in sight, perhaps on an entirely lawful errand, would

"let him have it." Then he would ride leisurely over, abstract Sonora's

"gun," discharge it a couple of times and throw it carelessly upon the

ground. Half an hour later he would appear at the ranch.

"Sorry, Bill," he would report, "but I caught Sonora Slim driving off

three of our two-year-olds. I headed him off and says,

"'Look here, Sonora, you've got some of our heifers there.'

"'Go to----!' says Sonora and pulls his gun.

"'That's all right,' says I. 'You're under arrest!'

"We swapped a few shots and I had to drop him to prevent his escape."

"All right, Jack," the foreman would reply, "we'll ride over and tell

the sheriff about it."

"See here, sheriff," he would announce on their arrival, "Jack here

arrested Sonora Slim stealin' our cattle, and the feller resisted

arrest and Jack had to shoot him. Jack's here if you want him."

"Yes, sheriff, here I am," Jack would say.

The sheriff would rub his forehead and reply:

"No, I don't want you. Sorry you had to kill him, but I'll have to have

some evidence that what you say ain't true."

It may be well to suggest that, while a thorough knowledge of our

rights is always desirable, it by no means follows that it is wise to

invoke them upon every occasion when we observe a technical violation

of the law. Regrettable as it may seem, no police force, however large,

could arrest all the violators of every law, and no system of courts

could dispose of the multitude of offenders. We do the best we can and

make an example of a few, hoping thus to persuade the others to be

good. If every citizen undertook to exercise his right of arresting

every individual whom he saw committing petty crime, the business of

the community would come to a standstill and the magistrates' courts

would be hopelessly congested with great hordes of prisoners, irate

witnesses, and gratuitous policemen. The prisons would overflow and the

magistrates would resign. Moreover, the enforcement of such a disused

and unexpected technical right would lead to immense disorder and

violence. The ignorant infractor of an obscure section of the Penal

Code would rise in his wrath and in resisting arrest become guilty

of assault in the second degree or of manslaughter. It is probably

very much better that trivial offences should go unpunished than that

public conveyances and thoroughfares should be made the scenes of

violent altercations and obstructive volunteer police work. Having

hired a certain class of persons to attend to this business for us, it

is better to leave it to them when possible. We need the best police

force that we can get, and this naturally depends upon the efficiency

of the higher police officials who hold their offices by appointment.

An active interest on the part of our citizens in the betterment of

municipal conditions through the purification of politics is probably

more to be desired than any general attempt to participate in the

ordinary duties of "the man on the beat."

FOOTNOTES:

[Footnote 12: An attempt has apparently been made by the legislature

of New York State to enlarge the powers of the police during the

night-time by giving them authority to arrest "on reasonable suspicion

of felony." The statute (Penal Code) reads as follows: "Section 179.

_May arrest at night, on reasonable suspicion of felony._

"He may also, at night, without a warrant, arrest any person whom he

has reasonable cause for believing to have committed a felony, and is

justified in making the arrest, _though it afterwards appear that a

felony had been committed_, but that the person arrested did not commit

it."

This statute clearly stultifies itself. The writer is not aware of any

judicial interpretation of its meaning up to the present time.]

[Footnote 13: In People v. Hochstim (36 Misc., 562, 571) it is said

that "in the matter of arresting without a warrant, whether for a

misdemeanor or for a felony, a private citizen and a peace officer

have the very same right and power under the law, namely: (1) Either

may without a warrant arrest a person who commits any crime, whether

misdemeanor or felony, in his view, and (2) either may without

a warrant arrest any person who has in fact committed a felony

although not in his view, but (3) neither may arrest any one without

a warrant in the case of a felony unless the alleged felony has in

fact been committed. If no felony has in fact been committed, then

the arrest without a warrant is in every case unlawful and may be

lawfully resisted. The law does not justify either an officer or a

private citizen in arresting for a felony without a warrant on mere

suspicion or information that a felony has been committed. If either

act without a warrant on groundless suspicion or information on the

question of whether a felony has in fact been committed, he acts at

his peril. Nothing but the absolute fact that the felony has actually

been committed will suffice to justify and protect the person making

such an arrest, whether an officer or a private citizen. But if a

felony has in fact been committed, the law does justify an officer,

but not a private citizen, in arresting a person therefor without a

warrant 'on reasonable cause for believing' (to quote the words of the

statute) that such person is the one who committed it. In a word, an

officer, the same as a private citizen, is not permitted to act on mere

grounds of belief on the question of whether a felony has in fact been

committed; nothing but the absolute fact that it has been committed

will suffice; but an officer is permitted to act on reasonable cause

for belief on the question of whether the person arrested is the person

who committed it. All of this is plain statute law (Code of Criminal

Procedure, secs. 177, 183)."]

[Footnote 14: A distinction exists in this respect between misdemeanors

and felonies. In the case of the former it is not lawful to kill a

prisoner even if his escape cannot otherwise be prevented, and although

there be a warrant for his apprehension. In the case of a felony the

offender's life may be taken provided there is _absolute necessity_ for

so doing to prevent his escape. Conraddy v. People, 5 Park 234.]

CHAPTER IV

THE POLICE COURT

The procedure by which a law-breaker is convicted for his offence

begins with his arrest and ends with the formal pronouncement of

sentence against him after he has been declared guilty. Prior to

his arrest he has been merely a criminal; after sentence (or, to

be strictly technical, after the verdict against him) he becomes a

convict; during the proceedings he is a "prisoner at the bar."

Whatever has been the manner of his arrest he is in most instances

taken at once before the nearest magistrate in order that the latter

may inquire into the charge against him and determine whether upon

the evidence there is reasonable cause to believe him guilty.[15] If

the arrest takes place after four o'clock in the afternoon, or no

magistrate happens to be holding court, the prisoner is locked up

until the following morning.[16] If he be charged with a felony he

must remain in confinement until the magistrate admits him to bail,

for no police official can fix or receive bail in such cases: if,

however, he has been arrested for the commission of a misdemeanor only,

the sergeant on duty at "the desk" must fix the bail and give him a

reasonable opportunity to procure it.

If arrested while a police court is in session he is entitled to

an immediate hearing, and to the services of counsel, for whom the

magistrate must send, free of charge, through an officer. After

the arrival of counsel or after waiting a reasonable time for his

appearance, the magistrate may then proceed to examine into the case,

and can only adjourn the hearing for forty-eight hours at a time for

"good cause," unless at the request of the defendant himself.

The subjects of the rights of apprehended persons is too extensive to

be adequately treated in a few pages. The power which the magistrate

may arbitrarily exercise of holding persons merely "suspected" of crime

for further examination is very great. Where a prisoner is brought in

under arrest as a fugitive from another State he is frequently "held"

(without any formal charge being made against him) for several days

at the mere telegraphic request of some police official in a distant

city. The writ of habeas corpus may secure his release, but persons

unjustly arrested on "suspicion" have little redress in ordinary cases,

whether they are discharged immediately or held for long periods.

While no technical authority exists for such detentions (the right of

arrest being strictly limited as set forth in the last chapter) they

are practically necessary to prevent the escape of dangerous criminals.

"Arrest on suspicion" is a euphemistic description of a technically

illegal proceeding, which is universally recognized as necessary for

the protection of society.[17]

The police court is the great clearing house of crime. Inasmuch as

all persons arrested, whether innocent or guilty, are brought there

together, they should naturally, so far as possible, be accorded the

benefit of the doubt as to their guilt in the treatment which they

receive. They are presumed to be innocent, and indeed many of them

are, until a jury has declared to the contrary. However, the attitude

generally taken towards a prisoner in a police court is that he is

guilty and that it is useless for him to deny it, and he feels the

discomfort and ignominy of his position far more at this state of the

proceedings than he does later, when he is accorded more individual

importance. As a rule he is brought into a crowded, stuffy court

where a vociferous pair of shyster lawyers are shouting at each

other's witnesses and the magistrate is with difficulty trying to

preserve order. A great throng of complainants, defendants, witnesses,

policemen, lawyers and idlers fill the room, and the prisoner instantly

becomes the centre of vision for all eyes as the officer leads him up

to the clerk's desk and makes his formal accusation. The altercation

in front of the magistrate is suspended long enough for the latter

to "commit" the defendant, who instantly finds himself locked in a

narrow cell where he must remain until some friend or relation has had

an opportunity to reach a lawyer, secure a bondsman, and compass his

release.

What he must naturally feel most is his own insignificance. He is

merely one of a huge multitude of miserable people who are all in

the same box. The hours until his lawyer arrives are very dark

indeed,--particularly as he probably has no idea of what is going

to happen to him in the meantime. If he be a poor man accused of

drunkenness or disorderly conduct he may be, and frequently is, sent to

the island before he has any adequate opportunity to notify his family,

who may suffer an agony of anxiety before they discover what has become

of him. The punishment of the minor offender for trifling breaches

of the peace is not only swift, but is characterized by a certainty

unknown to that which the law attaches to crimes of a higher order.

The police court has sometimes been termed "The Poor Man's Court

of Appeals." So far as this implies that five out of every seven

defendants arraigned there are summarily disposed of and accept the

decision or sentence of the presiding judge as final, and that the same

number of aggrieved persons who seek justice there do the same, it is a

correct description. No court has a more direct influence for good or

evil, or for the creation of a respect or a disregard for law. For an

overwhelming majority of our citizens, particularly those of foreign

birth or extraction, it is the only court of justice in existence.[18]

There may be higher courts or higher laws but they know them not.

To them the magistrate is an autocrat. They are avenged or punished

by virtue of his will alone, and as he is just or unjust, honest or

corrupt, so do they come to regard American institutions as a whole.

The officers of the precinct are his minions, only a little lower in

majesty, and even more terrible and implacable.

When it is considered that the magistrates in the first division of

the City of New York (namely, the Boroughs of Manhattan and the Bronx)

alone disposed of 138,047 cases in the year 1907, and that in 104,622

of these they exercised a summary jurisdiction over the liberty of the

prisoner, with power in many instances to inflict severe punishment,

it will be seen that the importance of these courts cannot be easily

overrated. Including the defendants arraigned in the "Children's

Court" and before certain judges of the Special Sessions sitting as

magistrates, there were 149,494 persons arrested during 1907 in New

York County alone.

The summary jurisdiction of the police judge embraces all offences

classed as "disorderly conduct," violations of so-called "corporation

ordinances" (such as peddling without a license, etc.), infractions

of the "Sabbath law," the disposition of persons alleged to be insane,

vagrancy, and the offence (not recognized by any statute) of being a

"suspicious person." Any person whom the magistrate finds guilty of

any of these charges (except the last) he may fine or imprison. It is

quite true that the defendant may, if convicted, take an appeal to the

Court of General Sessions or test the jurisdiction of the magistrate

by a writ of habeas corpus, but the grounds of appeal are few, and the

victim rarely is aware or advised of his rights in this respect. Even

were he fully informed, his purse would not usually permit of further

proceedings, unless taken for him from charity by some outside party

or organization. The fact that there were, out of this multitude of

cases, but one hundred and fifty-nine appeals taken (of which only

seventy-seven were successful) speaks for itself.

Besides those charged with the offences over which the magistrate has

final jurisdiction, before him come all persons arrested for crimes

which are triable in higher courts.[19] These persons he must "hold

for trial" (either for the court which tries misdemeanors or for the

grand jury) or discharge. Should he have reasonable ground to believe

that the accused has committed the crime alleged he is obliged by law

to "hold" him, but if the judge sees fit to discharge the prisoner,

the aggrieved person has no appeal and his only alternative is to

try to persuade the district attorney in spite of the decision of

the magistrate to take personal action either by laying the matter

before the grand jury, or in cases of misdemeanors by filing an

information in the Court of Special Sessions. He is usually unaware

of this possibility and at all events it is a difficult proceeding,

so that even in the case of crimes in which the magistrate has not a

final jurisdiction, his action, so far as setting free the prisoner is

concerned, is generally a conclusion of the matter. When a police judge

unwarrantably discharges a prisoner accused of a felony the complainant

rarely takes any further steps to get justice.

The enormous power wielded by what people are accustomed to call

"mere police judges" is obvious when we realize that one of them may

send a woman to a reformatory for _three years_, and boys to similar

institutions for the same period. Their jurisdiction is, however,

strictly confined to certain classes of offences; and if, for example,

the crime charged be "larceny" in any form they are compelled to hold

the defendant for the action of a higher court even if he admit his

guilt. Thus a vagrant who is caught begging can be sent away for six

months, but if the same man steal an old rug from a door-step or a

gunny-sack from a wagon he must willy nilly be sent to the Tombs to

await a trial in Special Sessions. Now, in any case where he is going

to plead guilty he would probably vastly prefer to have his case

disposed of by the magistrate and have done with it.

There would seem to be good reason for believing that coincident with

other reforms in the magistrates' courts their original jurisdiction

might well be extended to cases of petit larceny where the defendant

admits the commission of the offence. A deal of time, money, and

inconvenience to the prisoner might be saved. The present situation

results in a tendency on the part of the judge to construe as many

cases as he can of "petit larceny" into "disorderly conduct." Very

often a trivial theft is accompanied by acts which make it perfectly

proper for the magistrate to overlook the larceny for the disorder.

Certainly it is better for the offender, where possible, to be classed

as a "disorderly" rather than as a thief. In the latter case he may,

with the stigma thus fastened upon him, go forth to a life of crime; in

the first he would never be regarded as a criminal. This jurisdiction

to punish any act or omission tending to create a breach of the peace

offers a boundless opportunity for an arbitrary judge to arrogate

to himself powers which an ignorant or helpless offender can hardly

be expected successfully to defy. If illegally "committed" his only

redress is a writ of habeas corpus, which probably is a phrase entirely

unintelligible to him and which will cost more money to procure than he

has ever had at any one time in his existence.

The magistrates might also be given jurisdiction to impose punishment

in all cases of "simple assault," and in certain cases even of assaults

with weapons. There is no particular reason why, if the magistrate can

send an old woman away for begging, or for being drunk of a Saturday

night, he cannot be trusted to punish her properly for hitting her

husband over the head with a hot-water kettle. Moreover, the magistrate

before whom the damaged party hales the offender is able to see

with his own eyes the actual extent of the injuries which have been

inflicted, whereas, by the time the case is tried before the judge of

the Sessions, Dame Nature has usually restored the victim's battered

physiognomy to its pristine condition of refined elegance.

No one could fail to profit by a day spent upon the police-court bench

watching the judge exercise his many diverse yet not inconsistent

duties, which variously include those of magistrate, lawyer, clergyman,

almoner, arbitrator of domestic difficulties, and general adviser. He

will begin his day's work, which, before it be concluded, will have

required him to pass upon anywhere from fifty to eighty cases, by

disposing of a long line of drunks and disorderlies of both sexes.

Justice is plentifully tempered with mercy, however, and the unpleasant

business is soon over. Next comes the disposition of unfinished

business, which includes the continuance of trials not concluded on the

preceding court day. These, of course, embrace every possible offence

known to the law. The extraordinary number of petty burglaries is sure

to attract the attention of the spectator.[20] Boy after boy is brought

to the bar charged with breaking into a tobacco shop, or a small

grocery, or a room used for the storage of merchandise, push-carts or

fruit. At the very outside the value of the plunder cannot exceed a few

dollars.

One defendant, his head heavily bandaged, is half carried to the bar

by a husky officer and charged with attempting to burglarize the shed

adjoining Isadore Aselovitch's junk store. He is clearly much the

worse for a severe clubbing. "Izzy," the complainant, exhibiting an

iron bar several feet in length and weighing upwards of twenty pounds,

proudly claims to have effected the arrest of the defendant by merely

giving him "a little poke mit it." In response to the interrogatories

of the magistrate, Izzy explains that he and another kept their junk

in a certain rear room and from time to time noticed that various

odd pieces of iron seemed to be missing. They thereupon concealed

themselves behind a pile of old push-cart wheels and waited for the

thief. After several hours of inactivity they finally heard a rattling

among the iron and discovered the defendant apparently in the very act

of stealing a crowbar. Being upon his hands and knees he was unable to

offer any effectual resistance to their combined onslaught and barely

succeeded in escaping with his life. His cries had brought an officer

who had arrested him, upon Izzy's complaint, for attempted burglary.

The defendant in turn had charged the two with felonious assault,

alleging that he had a right to be in the store-room, inasmuch as

he was accustomed to leave junk there himself. He further tearfully

asserts that he is a rival of Izzy's in the push-cart business, which

accounts for the extreme animosity of the latter.

"It vas a lie, your honor, chuge," urges Izzy. "Dot man vas a purglar.

He ain't got no push-cart. Gif him ten years, chuge!"

The judge, who is wise in his generation, fines "the burglar" three

dollars for disorderly conduct, to the intense disgust of Izzy.

"Tree dollars!" he cries with fine scorn. "Tree dollars for a purglar!

_I_ vould be a purglar _myself_ for _tree dollars_!"

Very likely the next case will be that of a small merchant charged with

obstructing the sidewalk with his boxes. He is let off with a warning

or, if it be a second offence, with a small fine. Then a couple of boys

will be brought in charged with "shooting craps," and on their heels

a half-drunken driver who is accused by a little girl (having on an

S.P.C.A. badge) of driving an overloaded horse. The crap boys are let

go, but as the "cop" agrees with the little girl that the driver was

abusing his horse the latter is "held" for Special Sessions.

While these matters are being attended to a great uproar is heard and

a large crowd forces its way into the court-room. Above the clamor the

wails of a young Jewess make themselves distinctly audible. The judge

has just ordered the drunken driver locked up and is all ready to take

up the new case. The defendant, a slick, pale-faced young Hebrew,

loudly proclaims his innocence and demands an immediate hearing. No

time is lost, for the parents of the girl have procured a lawyer who at

once causes a charge of robbery to be entered. The girl, hysterically

weeping, tells her story. Up to a certain point it is lucid enough. She

had been walking along the street when a nice-looking young "feller"

had accosted her and inquired the way to the nearest pawnbroker's.

While they were conversing pleasantly upon this subject a second

young gentleman had joined them and asked the first to purchase a

pair of beautiful diamond earrings which he exhibited. This the other

regretfully had explained he could not do, since he had no money (being

even then on the way to the pawnbroker's). The diamonds had glistened

and sparkled in the sunlight. The girl had asked to look at them and

while she was doing so the owner had suggested that perhaps she might

like to purchase them herself, giving as part of the consideration her

own modest little baubles. This tempting offer she says she refused, on

the ground that she did not know the young gentleman. She then rapidly

states that the two set upon her, struck her, and that she "knew no

more," until on recovering her senses she found that her own earrings

had disappeared and that those of the stranger were in her ears.

"Hm!" says the magistrate; "and do you say that the defendant struck

you?"

"Shure, your honor," replies the young lady.

"And that you fainted?"

"Shure, your honor."

"Did you fall?" inquires the judge sharply.

"N--n--no," admits the complainant.

"Defendant discharged," announces the magistrate.

"Get out of here, all of you," orders the officer at the bridge. "Get

along, now!"

The explanation, as the reader already guesses, is simply that by a

time-honored trick the girl has been persuaded by an oily-tongued

trickster to exchange her own earrings for his worthless ones. This she

has done quite voluntarily. She has then hurried home only to find that

her newly acquired gems are paste. The family goes into a paroxysm of

anger and lamentation. The nearest lawyer is consulted, who, of course,

agrees to secure the return of the earrings. They pay him a five-dollar

fee, the defendant is sought for and arrested, and in her eagerness to

see him punished and to obtain her property the victim swears away her

own case. Probably had she told the truth the defendant could have been

"held" for grand larceny by false pretences.

These proceedings may no sooner be concluded than perchance a giant

negro is brought in charged with assault. A dozen officers bring him

manacled to the bar, while a crowd of reporters follow and gather on

each side, notebook in hand. It appears that the prisoner suddenly ran

out of a saloon, drew a revolver and began an indiscriminate shooting.

The "reserves" were called out and three policemen now lie dangerously

wounded in the hospital. He is held for examination, pending a possible

inquest by the coroner.

Meantime a lank youth from New Jersey listens vacantly while an officer

accuses him of abandoning a horse which has suddenly expired while

harnessed to the defendant's truck wagon. He pays a fine and vanishes.

Two young Irish-Americans, mutually damaged, are arraigned for

"disorderly conduct." They, too, are fined, being already substantially

punished--by each other. A man accused of "Sunday selling" follows a

woman who tells a pitiful tale of how her husband has abandoned her and

her five little ones. Later in the day the husband is found and ordered

to pay her ten dollars per week. Two retail milk dealers charged with

adulteration or "keeping a cow in an unhealthy place," a band of

pickpockets who have been caught "working" a horse-car, a woman accused

of "soliciting," and a bartender who has allowed a "slot machine" to be

left upon the premises, give place to a vociferous store-keeper who has

caused the arrest of a very stout man for the larceny of four pairs of

trousers. He explains loudly that the defendant (who weighs at least

325 pounds) came into the store, asked to see some "pants," and while

the clerk was not looking stuffed four pairs of these articles inside

his waistband and made his escape. The complainant not only identifies

the defendant with absolute certainty but goes so far as to state with

equal positiveness that the accused now has on the very trousers into

which he stuffed the stolen property. Four pairs identical in size and

material with those alleged to have been purloined are produced and

marked in evidence. The fat man indignantly denies having been in the

store at all. The reporters are interested.

"Gentlemen," says the judge, "I appoint you a committee to conduct the

defendant to my private room for the purpose of determining whether or

not you can stuff these articles of apparel inside his waistband."

The reporters, followed more slowly by the perspiring defendant,

make their way to a back room, from which they presently emerge to

announce through their spokesman that it would be impossible to thrust

any object, much less four pairs of trousers, inside the band of the

defendant's trousers.

In the interim the judge has been settling matrimonial difficulties,

giving all sorts of gratuitous legal advice, acting as arbitrator

over the question of the mutual use of the "landings" on the stairs

in tenement houses, issuing warrants, and endeavoring to find an

opportunity to continue the hearing in a complicated "false label"

case. In this last several rather well-known attorneys are retained,

who stand about disgustedly while the more immediate business of the

court is being attended to. In most cases, however, the lawyers are

hardly likely to add to the general reputation of the profession for

ability.

The inordinate number of cases which the magistrates have to dispose

of results oftentimes in an inconclusive method of hearing charges of

misdemeanors or of felonies, which, if the defendant be held at all,

must of necessity be tried in a higher court or, as the magistrates

say, "go downtown." If the defendant be a man of some influence, with

enough money to retain a boisterous and bully-ragging lawyer, the

line of least resistance may lead the judge almost unconsciously to

regard the case as having "nothing in it." If, on the other hand, the

complainant be a man of independence and insistence, with perhaps a bit

of a pull, it is much easier to "hold" a defendant than to assume the

responsibility of "turning him out." In point of fact some magistrates

are prone to shift the responsibility off their own shoulders and to

"hold" anyway. Thus there can be "no kick coming" so far as they are

concerned. There are also cases where, rather than take the time for a

careful examination of the case, the magistrate will "hold," when, if

he had really examined into it with the necessary care, he would find

that there was no _reasonable_ ground for his action. Now the grand

jury is apt to find an indictment almost as a matter of course, and the

defendant must then be placed on trial before a petit jury. In large

measure this is the reason why the calendars of the criminal courts

are crowded with cases which should never have gone beyond the police

court, and why prisoners charged with homicide often lie for months

in the Tombs before the petty business of the General Sessions can

be cleaned up sufficiently to allow time for their trial. In this way

much of the work which should be done by the police judge is cast upon

the already over-burdened petit jury. The evil, however, does not stop

there. When a petit jury finds that a majority of the cases brought

before it have little or no merit it frequently gets the idea that all

criminal business is of the same character and that it is empanelled

for the purpose of a general jail delivery. After a jury has "turned

out" twenty men in succession it can hardly be blamed for thinking

that the twenty-first, who may be a real sinner, ought likewise to be

sent home with the others to join his family. Respect for law cannot

be maintained unless each part of the machine of justice does its full

duty and assumes its own burdens and responsibilities.

It goes without saying that no official comes into closer contact with

the police than the magistrate. He gets to know them collectively

and individually as no other person can. In determining what should

be done in any given case he takes largely into consideration the

personal equation of the officer making the arrest. He is able to

detect exaggerated or manufactured evidence, which might easily pass as

truth and perhaps convince a jury in a higher court. Hence one of the

arguments for giving him a wider original jurisdiction. Petit juries

are ordinarily disinclined to convict and send a man to State's prison

in what seems to them trivial cases. If the magistrate had a wider

scope in the disposal of such cases one of the principal reasons for

our lack of respect for law (the sentimental and arbitrary action of

juries) would be largely done away with.

The magistrate, if he be the right kind of a man, can do more real

good, right more real wrongs, and exert a more wholesome and salutary

influence upon the working people of large cities than any benevolent

or charitable association. He can do much to break up the alliance of

the police with crime and to prevent arbitrary acts of violence and

lawlessness upon their part committed either to compel the payment of

blackmail or cover derelictions of duty.

The police judge also soon learns the character of the practitioners

who appear so constantly before him. Many a case which on its face

seems founded on justice may be shown by a little questioning on the

part of the magistrate to be nothing but an attempt to "hold up"

or injure the defendant. The quasi-criminal classes know well the

power of the criminal law and frequently invite it to secure private

vengeance. When two rogues fall out there is often a race to see who

can get to the police court first. In other cases the dense ignorance

of complainant or defendant renders justice almost impossible. The

shyster plays upon this to his profit. There is a story told of a

practitioner with a large Italian following who was accustomed to

display prominently upon a table in his office a small Testament and a

huge Webster's Dictionary. After his clients had stated their case he

would turn to them and ask:

"Do you wish the law from the big book or the little book?"

The clients would inquire the relative cost.

"The law from the little book is ten dollars--the law from the big book

is twenty-five dollars."

The clients would consult together and on the assumption that the

bigger the book the better the law, would almost invariably pay their

twenty-five dollars and procure the best advice which Noah Webster

could give.

The fact that most police magistrates are appointed for purely

political reasons is much to be deprecated. The days of bribery are

over, but occasionally the public has some excuse for believing that

the desire to do "a favor" for a political friend may have influenced

the action of one of them. This would have less color were they usually

appointed for some other and better reason than mere party fealty.

Ordinarily the appointment goes to some faithful worker, who has won

distinction in ward politics. Like enough he may make an excellent

judge. At any rate he has a direct personal knowledge of the people

with whom he is called to deal. He has equally first-hand information

of local conditions and the _personnel_ of the police attached to the

neighboring precincts. His judgment is apt to have a practical wisdom

that a mere student of law could never achieve. He knows a crooked

officer, a crooked lawyer, and a crooked complainant when he sees one.

Whatever the verbal testimony happens to be he may very well "know

different." He is, as the slang phrase accurately puts it, "wise to

his job." And when all is said and done the "influence" exerted upon

him will probably be only a request to "Do the best you can for So

and So,--he's a friend of mine," which will not affect his action in

the least. A college-bred lawyer with no actual knowledge of existing

conditions might have the wool pulled over his eyes at every turn, and,

while theoretically enforcing the law as it is printed on the statute

books, fail utterly to achieve the rough-and-ready justice which the

situation demands and which his less educated brethren can dispense by

virtue of instinct acquired from long experience. It must be admitted,

however, that the system of political appointments is just as bad, if

not worse, when applied to police magistracies as when exercised in

higher places. The appointees may or may not turn out successfully, and

in New York we have had some extraordinary surprises in both directions.

Did space permit a judicious selection of the historic rulings of

traditional magistrates would make entertaining reading. One of the

most famous was that of a certain learned member of this bench who

is said to have discharged a defendant accused of killing a robin in

Central Park in the following words:

"You are charged with breaking a park ordinance forbidding the public

to kill the robins. Of course you ought _not_ to kill the robins for

they are harmless birds, but I have looked this thing up a little, and

I find that from time immemorial it has been held that there can be

no right of property in wild beasts. Now, a robin is clearly _ferræ

naturæ_--of a wild nature--and so the city has no property in it.

The ordinance is therefore unconstitutional, and I am constrained to

discharge you. You may go."

Nowhere than on the magistrate's bench is better illustrated the

proverb that a little learning is a dangerous thing, but only a little

learning, even such as classifies an innocent park robin as a wild

beast, is preferable to an openly expressed intention of enforcing only

those laws which appeal to the judge's individual sense of propriety.

The writer recalls endeavoring some six years ago to induce a certain

magistrate to hold a defendant for the grand jury for a certain

statutory offence. The learned magistrate positively refused to do so

on the ground that there was "no _sense_ in the law."

"But it _is the law_!" returned the writer.

"Well, I don't care if it is," replied the judge tartly. "I didn't

make it. It's no law of mine, and I don't propose to follow it. Go and

get the grand jury to indict if you can, but I won't hold this man for

doing what I might want to do myself some day."[21]

Taken as a body our magistrates, with a few obvious exceptions, are

men of wide experience and practical common sense, who handle the

enormous stream of business which comes before them with efficiency

and dispatch. A forbidding exterior and, occasionally, a diction which

might startle a Friday evening prayer meeting may co-exist with a fair

mind, a kind heart, and an honest determination to see that justice

is done. While the rights of the defendant are fully protected it is

probable that actual justice is more nearly accomplished in these

than in higher courts, where "reasonable doubt," the presumption of

innocence, and kindred privileges, as interpreted by a sympathetic

jury, intervene between the rights of the community and those of the

prisoner at the bar.

FOOTNOTES:

[Footnote 15: Of course if he has been indicted by the grand jury in

the first instance, he is arrested on a "bench warrant" issued by a

judge of the General Sessions and placed in confinement without any

preliminary examination.]

[Footnote 16: This condition has been much improved in New York City

by the institution of the "Night" Court in which one magistrate is

always on duty. All minor offenders are at once arraigned before him,

no matter what the hour, and thus may be disposed of without undue

confinement.]

[Footnote 17: "Many persons are arrested under suspicious

circumstances, such as well-known criminals mysteriously loitering

about the streets at night, or frequenting crowded places, or persons

having property in their possession for which they can give no good

account, nor of themselves. Frequently such an arrest is the first

step in the detection of some crime in which (after investigation), if

the proper complainant is found, a formal complaint is taken, and the

prisoner is held for trial. In many instances such an arrest prevents

the commission of crime."

_Comparison with Previous Years._

----------------+----------------------------------------

|Number Arraigned and Discharged.

Year. |-----------+-----------+----------------

| Males. | Females. | Total.

----------------+-----------+-----------+----------------

189 | 2,335 | 120 | 2,455

1897 | 1,756 | 129 | 1,885

1898 | 1,628 | 154 | 1,782

1899 | 2,033 | 301 | 2,334

1900 | 2,023 | 293 | 2,316

1901 | 2,066 | 197 | 2,263

1902 | 2,337 | 200 | 2,537

1903 | 2,634 | 115 | 2,749

1904 | 3,734 | 224 | 3,958

1905 | 3,551 | 231 | 3,782

1906 | 5,483 | 180 | 5,663

1907 | 2,656 | 118 | 2,774

----------------+-----------+-----------+----------------

]

[Footnote 18: The nativity of the persons held for trial in 1907 or

summarily tried and convicted in magistrates' courts was:

United States 30,261

Ireland 8,061

Germany 4,219

England 1,044

Scotland 473

France 869

Italy 8,243

Russia 9,254

Greece 3,039

Other countries 5,790

------

Total 71,253

]

[Footnote 19: In 1905 the number of persons so held in New York County

by the magistrates of the first division, was 36,340.]

[Footnote 20: During 1907 there were arrested 1,669 persons on charges

of burglary, of whom 1,055 were held for trial.]

[Footnote 21: See latter half of Subdivision 5, Section 278 New York

Penal Code.]

CHAPTER V

THE TRIAL OF MISDEMEANORS

One of the most efficient, effective, and important criminal courts in

the civilized world is that established for the trial of misdemeanors

in New York County. Three judges, each having an equal voice, act as

arbiters of both law and fact. Originally this bench was filled by

three regular police magistrates sitting in rotation, and in many

cases the same judge before whom the prisoner had been arraigned in

the first instance assisted in determining the final question of his

guilt or innocence. But the old Court of Special Sessions acquired a

very unsavory reputation for many reasons, the chief among them being

its alleged susceptibility to political influence and the looseness

with which its funds were handled, and it was finally legislated out

of existence in 1895. Then a new court was created composed of three

justices who, while they had the powers of police magistrates, did

not sit in magistrates' courts, but devoted their entire time to the

trial of misdemeanors. In the last eight years this court disposed of

65,579 cases, in which 40,894 persons were convicted of crime, either

by trial or by plea of guilty. During the year 1907 alone 13,140 cases

were disposed of, in which there were 7,960 convictions. The judges

in this huge mill of justice rarely make mistakes, and few appeals

are ever taken from their decisions. They have become, by virtue of

long experience, experts in fact, and the training thus received has

qualified several of them for higher office.[22]

As the reader is already aware, a defendant charged in a magistrate's

court with the commission of a misdemeanor, say that of petit larceny,

is given an immediate hearing, and, if there be reasonable ground

to believe him guilty, is held for trial in the Special Sessions.

The information or affidavit, to which the complaining witness has

sworn and which contains a more or less succinct account of the facts

alleged against the prisoner, is thereupon forwarded to the clerk of

the court and in due course the defendant appears, if he be on bail,

or is brought from prison, if he be in confinement, to "plead." This

information, which is the basis of the proceedings against him and

which is practically the only record in the case, is commonly called

the "complaint" and corresponds with the indictment found by the grand

jury where the defendant is charged with the commission of a felony.

After the prisoner has entered his plea, if he be in prison, he is

given a trial almost immediately; if not, his case will probably come

up within a week or two. The offences over which these three judges

have jurisdiction are as many and as diversified as human ingenuity

and the demands of modern civilized life, qualified by ineffective

legislation, have combined to make them.

As might be expected, petty larcenies and assaults furnish together

more than thirty per cent of the cases tried. The following table will

show the more numerous and important offences for which defendants were

held in 1907 for the Special Sessions and their relative proportions:

Petit larceny 2,890

Assault, third degree 2,097

Maintaining a disorderly house 674

Carry concealed pistol 988

Cruelty to animals 887

Failure to provide for minor 235

Possessing obscene prints 124

Indecent exposure 84

Malicious mischief 111

Unlawful entry 93

Adultery 11

Adulterated milk 252

Impure food 80

Possessing burglars' implements 35

Offence against trade-marks (364 P.C.) 6

Violation Liquor Tax Law 2,109

Violation Motor Vehicle Law 2,709

Violation Sanitary Code 321

Violation Labor Law 176

Violation Medical Law 48

Violation Dental Law 16

Miscellaneous 1,122

------

Total 15,068

A spectator may in the course of a morning hear thirty or forty cases

actually tried in which the charges cover almost every conceivable

kind of sin, wrong, or prohibition. One prisoner is being prosecuted

for assaulting a non-union workman, another for maintaining a public

nuisance, another for a violation of the Liquor Tax Law, another for

practising medicine without a license; a dozen cases will be rapidly

disposed of wherein the defendants are charged with shoplifting or

"illegal entry" (a charge frequently lodged against a suspected burglar

who has made an entry without a "break" and has been caught before he

has accomplished his purpose); others still will be tried for carrying

concealed weapons, publishing or possessing indecent literature,

violating trade-mark laws, breaking speed ordinances, or "malicious

mischief"; while, if the student of institutions be patient, he may

be rewarded by the exciting spectacle of one who is defending himself

against the charge of selling skimmed milk, holding a mock auction,

driving a spavined horse, writing a threatening letter, making a

fraudulent assignment, pawning borrowed property, using a false weight,

opening another's letter, keeping a cow in an unhealthy place, running

a cock-fight, misrepresenting the circulation of a newspaper, divulging

the contents of a telegram, impersonating a policeman, adulterating

food; or, provided he be exceptionally fortunate, may hear the trial of

a celebrated actress for her impersonation of "Sappho," or of a manager

for producing "Mrs. Warren's Profession."

He will see every conceivable type of man, woman, and child, either

as defendant or witness, and he may also study every variety of human

failing or weakness. No mock defence or prepared lie can deceive

these argus-eyed judges; short shrift is made of the guilty, while

the "reasonable doubt" is recognized the instant it puts in the most

furtive appearance. In fact defendants are often found guilty or

acquitted almost before they are aware they are on trial,--and this

with no detriment to them or to their cause.

The advocates of the abandonment of the jury system point to this

court as their strongest argument. No time is lost in the selection of

a jury,--a matter often of hours in the General Sessions in cases of

no greater importance. There is no opening address on the part of the

district attorney or counsel for the defendant,--the written statement

or information sworn to by the complainant being entirely sufficient

for the court. Cross-examination is cut down to its essentials and

tests of "credibility" are almost unnecessary. At the conclusion of the

case there are no harangues from either side, and the judges almost

immediately announce their decision and generally impose sentence on

the spot.

Of course in nine cases out of ten the evidence is conclusive and the

merest glance at the complainant and his or her witnesses is enough

to satisfy the onlooker that their claim is honest and the charge

substantial. In such cases the trials proceed with lightning-like

celerity. The owner of the stolen property is sworn while the defendant

and his lawyer are pushing their way through the crowd to the bar.

"Mr. Blickendecker, are you a grocer, fifty-five years of age, residing

at 1000-A-rear, First Avenue, and having a store at 666-1/2 Catharine

Street?" rapidly articulates the deputy assistant district attorney.

"Ya; I vas," answers Blickendecker heavily, trying helplessly to catch

up.

"Did you, about 4:49 P.M., onn Tueday, the 17th of April, observe the

defendant near your place of business?"

"Ya; I vas--I mean, ya, I did."

"What did you see him do?"

Blickendecker wipes his forehead and turns towards the court:

"Your honors, gentlemens, I see dot feller dere----"

"The defendant?" interrupts the presiding judge, patiently.

"Ya--the defender, I see dot defender mit a leetle vagon on two wheels,

py mein store mit anoder feller, unt dey catch up ein crate of eggs unt

put him in de vagon unt skip mit him, unt I hollers 'Tief!' unt runs,

unt de officer----"

"That's enough. Any cross-examination? No? Call the officer."

The officer is sworn.

"Are you a member of the Municipal Police force of the city and county

of New York, attached to the ---- Precinct, and were you so attached on

the 17th of April last, and did you see the defendant on that day near

the premises 666-1/2 Catharine Street?"

"Shure I seen him. Him and another feller. They were makin' off wid old

'Delicatessen's' eggs. I catched this young feller----"

"That's enough. Any cross-examination? No? Leave the stand."

"The People rest," announces the assistant.

"Take the stand," directs the lawyer, and his client shambles into the

chair.

"Did you steal Mr. Blickendecker's eggs?"

"No, your honor; Cully Fagan asked me to go round and help him deliver

some eggs. He said he'd gimme a drink. So I went along wid him. All of

a sudden out comes this old guy and yells 'thief.' I gets scared and

runs. I didn't mean no harm."

"That is our case," says the lawyer.

"No cross-examination," says the assistant.

The judges consult for a moment.

"We find the defendant guilty," announces the presiding judge, dipping

his pen into the ink.

"Now, young man, have you ever been convicted?"

"No, your honor."

"I advise you not to steal any more eggs. One month in the

penitentiary. Next case!"

Now here is a defendant given a perfectly fair, if not a very full,

trial in less than three minutes. Of course it is in such a case

practically a mere formality. Two witnesses who have had no previous

acquaintance with the prisoner, whose eyesight is perfect, and who

have no motive to swear falsely, identify him as caught _in flagrante

delicto_. The defendant has merely put in his defence "on the chance."

His sentence would be about the same in either case. The only

disadvantage of so active a court is the fact that the multitude of

the defendants render it almost impossible to make any very exhaustive

study of the majority of them before sentence. However, as the

sentences are all light, the defendant always gets the benefit of the

doubt, and the court resolves all doubts in his favor.

Sometimes in such a case a criminal conspiracy between the complainant

and the officer is disclosed to "do" a mischievous, but not criminal,

youth who has fallen into their disfavor. Then the witnesses are

subjected to such a fire of questions that they wilt and wither in

the blast, the defendant is acquitted and the prosecution's witnesses

sometimes held for the action of the grand jury on a charge of perjury.

Many a _cause célèbre_ has originated in the Special Sessions through

the perspicacity of some member of that bench during a petty trial,

and defendants there convicted often divulge in their confessions

evidence which for a time sets the newspaper world by the ears. This is

especially true of cases where some civil officer is accused of taking

a bribe to influence his action or to make an appointment. He may be

convicted, confess, and for a day or two the papers are full of the

unearthing of a far-reaching conspiracy to debauch the city government,

barter offices at wholesale, and deliver the city to a coterie of

criminals. The next step in the proceeding is the unfortunate discovery

that the defendant's confession, since it cannot be corroborated, is

entirely worthless. Yet, as he has apparently done all he could to

atone for his offence, he receives a mitigated sentence, while the

uproar occasioned by his sensational disclosures subsides as suddenly

as it began.

The bane of the Court of Special Sessions in New York County and very

likely the bane of all similar courts, are the so-called "Liquor Tax

cases." As one of the officers of this court recently said: "In this

class of cases the court knows that it is being 'flim-flammed,' and,

in addition, that it is helpless. We convict in about sixty per cent

of the cases, but the judges know perfectly well that a considerable

number of those convicted are men who, while not honest enough not to

violate the law, are too honest to pay corruption money."