The possibilities for blackmail and the arbitrary and unequal way in

which the law is enforced in different parts of the city (one section

being allowed to be "wide open" while an adjacent district is "dry")

render the judges loath to convict even in "straight" cases. When

Liquor Tax cases are transferred, by order of the judge presiding in

Part I, for trial in the General Sessions, the juries before which they

are prosecuted will not convict at all.[23]

In the same way the court looks with grave suspicion on most cases

where a defendant is arraigned charged with "assault" on an officer.

They expect to see arraigned at the bar (and are usually not

disappointed) a small man covered with bandages, while a burly officer

without a scratch upon his rosy countenance takes the stand and swears

that the defendant assaulted him. The policeman always has plenty of

corroboration--the defendant none at all. The chances are that the

relative sizes of the two men are such that if the officer coughed

the defendant would drop dead. The proper charge in such a case would

be, not attempted assault on an officer, but _attempted suicide_. The

truth of the matter probably is that the small man, having done or said

something to irritate the officer, has been pounded to a pulp and then

ignominiously haled away to the station house, while his terrified

companions, knowing full well that if they interfered theirs would be

a similar fate, have retired to their homes privately to execrate a

state of civilization where humble citizens can be subjected to such

persecution.

Practically the Special Sessions is the final court of disposition for

most misdemeanors. Except in automobile, theatrical, health, copyright,

and trade-mark cases and a few others, a majority of the defendants do

not have enough money even to hire a lawyer, to say nothing of taking

an appeal. They are disposed of then and there just as in certain cases

they are disposed of in the magistrates' courts. For them a sentence

once imposed is final.

Occasionally the Special Sessions is the scene of a great trial,

as celebrated as those fought out in the "Parts" upstairs or in

the criminal trial term of the Supreme Court across the hall. A

prominent druggist may have been accused of refilling bottles with

spurious or diluted contents. He is being prosecuted by the owners

of the trade-mark or label. They retain distinguished counsel to

prepare the case for the prosecution. The accused engages equally

able lawyers to defend him. The crime is highly technical and the

evidence almost entirely a matter of chemical analysis and expert

opinion. The battle goes on for weeks or even months. A jury would

have become hopelessly confused and the issue successfully obscured,

but the three judges are expert jurymen, and in due course, if he be

guilty, the defendant is inevitably convicted. Such a trial may cost

the parties tens of thousands of dollars for expert testimony alone,

while the sentence of the defendant will very likely be not more than

a two-hundred-and-fifty-dollar fine. Even so, the integrity of the

trade-mark has been sustained and the swindler stamped as a criminal.

Fifty per cent or more of the work of the Special Sessions is

practically amplified police-court business, but it is accomplished

with an exactitude and efficiency that makes much of that done in the

magistrates' courts appear crude indeed. The lesson of this particular

court is that police business can be done speedily, effectively, and

justly, provided the right men are selected to do it.

Fully seventy-five per cent of the criminals begin with petty

infractions of the law. A driver for an iceman may "swipe" his

comrade's horse blanket. If he be convicted and sent to the

penitentiary he may learn to commit crimes of which he had never

dreamed in his driver days, when his highest ambition was to get a

ticket to a "chowder" or to a "grand ball." His next appearance may

be in the General Sessions charged with burglary, and his last in the

Supreme Court under indictment for murder. If, on the other hand,

having been found guilty, he be merely reprimanded and paroled under a

suspended sentence, he will in all likelihood never appear in court as

a defendant again. Hence an opportunity, greater even than that of the

police justice, for the exercise of a wise and humane discretion.

The multitude of prisoners who are unable to employ counsel have

created a bevy of lawyers, abundantly able to look out for the

interests of petty offenders, who stand or sit near the bar and are

assigned by the court to the various defendants. A whispered fifteen

seconds' conversation with their unfortunate client and they are

enabled to take charge of the case. Long experience has made them

almost as expert in estimating human nature as the judges themselves,

and they are familiar with every trick of the trade which may raise

a "reasonable doubt." The leaders among them have skilful "runners"

who haunt the police courts and the corridors of the building,

heralding the virtues and successes of their masters, handing cards to

prospective clients, and currying business in every conceivable manner.

Observing a forlorn person, who timidly responds when his case is

called, the runner instantly offers him the services of the "biggest"

lawyer in the court for a five-, three-, or two-dollar retainer. If the

client escapes conviction he is supposed to pay twenty-five dollars

more and is dunned until he does. This may seem petty business and

small pickings, but when one considers that thirteen thousand odd cases

are disposed of each year, one sees that at even the modest fee of ten

dollars per case there is over a hundred thousand dollars a year in the

Special Sessions waiting for somebody.

The best of these lawyers earn as much as five thousand dollars

per year, including their outside and police-court business. The

runner usually gets nearly as much. Sometimes there will be a

one-hundred-dollar, a two-hundred-and-fifty-dollar, or even a

five-hundred-dollar fee. In reality there is more money to be made

in the police court than in the Special Sessions, for it is when the

offender has just been caught and is in his first spasm of terror that

he is most ready to "give up." Police-court fees are sometimes very

high.

The most notable figure of this bar was Tom Cherry, otherwise known as

"The Attorney-General of the Special Sessions." When sober he was a

most capable, rough-and-ready, catch-as-catch-can, police-court lawyer.

His fame extended to every magistrate's court, and his business was

so constant that he never sat down, but stood at the bar from the

opening of court to its adjournment, defending almost every prisoner

who had money to pay a fee, and being assigned to practically all those

who had not. His success was his undoing. Without any knowledge of

law, although he presumably had passed the Bar examinations (Heaven

knows how!), his judgment of character, his ready wit, and his quick

tongue made him no unworthy antagonist for a well-trained youngster.

But Cherry never took an unfair advantage, and his statement as to

his client's past, and sometimes as to his innocence, was received

without question by the court. It was a boon to a new assistant to gain

Cherry's confidence; and it was a reproach to many that they did not do

so.

Cherry finally succumbed to his closest friend and worst enemy--drink.

His periodic absences became more and more frequent, and finally the

word was sadly whispered through the building that Cherry had "passed."

His memory is still green and his smiling face will never be forgotten

by those who knew him. A rival attorney almost immediately succeeded to

his practice and his particular place beside the bar, but the Court of

Special Sessions is not the same.

The practices of the shysters are the curse of the lower courts, and

their enormities are such that a special cycle in Hades should be

reserved for their particular retribution. Preying upon ignorance and

vice, they become hardened to every appeal of human sympathy and often

deserve punishment a thousand times more heavy than the miserable

wretches whom they make a pretence of defending. They pervert justice

and prostitute a sacred calling, extorting from their clients the

uttermost farthing by fear and false pretence. To show that this charge

is not ill-founded, the reader may take as an example the practice of

the shyster in dealing with those unfortunate women who are the common

prey of the corrupt plain-clothes man and his conscienceless ally--the

police-court lawyer.

Let us suppose that a certain section of the town is, as the saying

goes, "wide open," and the police are regularly collecting protection

money according to the approved method of "the system." The houses

which pay up are left undisturbed--and all do pay up. So does the

little street walker who plies her trade in the open. Some citizen or

newspaper makes a complaint that the police are not doing their duty.

There is a bare chance that political capital will be made of it and

word is sent to the captain of the precinct to "get busy." He sends for

the plain-clothes man, and tells him "there are not arrests enough."

The officer answers that "everything is quiet." "Get busy," says the

captain. A scapegoat is necessary and so the officer goes out and,

leaving the bawdy-houses untroubled, tracks some miserable creature to

her lonely room and there arrests her under the pretence that she is

violating the "Tenement House Law." Now the worst that would happen

to such an unfortunate would be, having "waived examination" before

the magistrate, and pleaded guilty in Special Sessions, to be fined

twenty-five or fifty dollars. The girl usually does not know this. When

she is brought in under arrest the keeper "tips off" the runner for

some lawyer, who first frightens her into believing that a long term

of imprisonment confronts her, and then introduces his master. The

latter in turn offers to get her out on bail, meantime determining by

an expert cross-examination, at which he is a past master, exactly how

much money she has in the world. He then proceeds to acquire this by

every means at his command. An actual case will illustrate what follows.

A young girl who had fallen from virtue, but who had never been

arrested before, was brought into the Jefferson Market prison. She had

saved five hundred dollars with which she intended the following week

to return to her native town in New Hampshire and start life anew.

The keeper led her to believe that she would be imprisoned in the

penitentiary for nearly a year unless she could "beat the case." One

of these buzzards learned of her distress and offered to procure bail

for her for the sum of fifty dollars. A straw bondsman was produced,

and she paid him the money and was liberated. Meanwhile the lawyer had

learned of the existence of her five hundred dollars. By terrifying

her with all sorts of stories as to what would possibly happen to her,

he succeeded in inducing her to pay him three hundred as a retainer

to appear for her at the hearing in the magistrate's court. He had

guaranteed to get her off then and there, but when her case was called

he happened to be engaged in reading a newspaper and, looking up from

where he was sitting, merely remarked, "Waives examination, your

honor." The girl had only one hundred and fifty dollars left, and as

yet had had no defence, but the shyster now demanded and received one

hundred dollars more for representing her in the Special Sessions. She

now had but fifty dollars. Immediately after the hearing in the police

court the bondsman "surrendered" her and she was locked up in the Tombs

pending her trial, for she had not money enough to secure another bail

bond. Here she languished three or four days. When at last her case

appeared upon the calendar the shyster did not even take the trouble

to come to court himself, but telephoned to another buzzard that she

still had fifty dollars, telling him to "take her on." Abandoned by her

counsel, alone and in prison, she gave up the last cent she had, hoping

thus still to escape the dreadful fate predicted for her. When she was

called to the bar the second lawyer informed her she had no defence and

the best thing she could do was to plead guilty. This she did and was

fined twenty-five dollars, but, having now no money, was compelled to

serve out her time, a day for each dollar, in the City Prison, at the

end of which time she was cast penniless upon the streets.

Many an originally honest young fellow who, in a sincere attempt to

build up a small practice, has haunted the magistrate's court and

secured petty police business has been gradually drawn into the vortex

of crime until he is even more tainted than those whom he defends. The

Legal Aid Society, which, so far as the writer is aware, is the only

bona fide charitable organization existing in New York for the purpose

of assisting impoverished persons to secure legal counsel, does not

undertake any criminal business. No greater service could be rendered

to the community than by some society organized to protect helpless

defendants who have fallen victims to the vultures who prey upon the

prison pens. At the present time the official prosecutor himself is

the only person to whom one charged with a criminal offence can turn

with any hope of relief from his own lawyer, and if the number of cases

were known where the prosecutor has befriended the prosecuted the eyes

of jurors and of the public would be opened to the real spirit which

animates a fair-minded district attorney.

A favorite trick of shysters if they have an imprisoned client who

still refuses to "give up," is to plead "not guilty and not ready" and

thus have the case adjourned until they squeeze their victim dry. A

defendant who has any money is never permitted to go to trial or even

to plead guilty before his money is entirely exhausted.

This is not romance, it is practice. The men who do these things can

be seen any day in every police court in New York--heartless, cynical,

merciless. Lying and deceit are their stock in trade, corruption their

daily food. Within three months one of these gentry not only compelled

an eighteen-year-old girl to give him a fine Etruscan ring which she

had inherited, and which he pawned for five dollars, but stripped her

of a new silk petticoat which he carried away in a newspaper as a fee.

This woman served ten days because she could not pay her fine. Another

woman who had _stolen an umbrella_ gave a shyster her watch. He pawned

it and then abandoned her, when she came up for trial. Each of these

men has a special line of clients which he serves, either because he

is supposed to be particularly expert in such cases or because he is

regularly retained by the "trust" which they compose. Thus the East

Side pickpockets have one attorney, the "green-goods" men another, the

opium sellers a third, the abortionists a fourth, while every "short

changing," "thimble rigging," or "flim-flam" case sees the same lawyer

for the defence.

It is a fact of considerable significance that most retailers charged

with selling adulterated milk are defended by the same lawyers. The

large milk companies apparently invite the trade of the small dealer

by offering him cheap milk, and a guarantee that if he is caught

selling their product they will not only defend him but, if he be found

guilty, will pay his fine. Who does the adulterating? The company or

the retailer? It is almost impossible to say. Nevertheless, if lack of

evidence prevents proceedings against the companies themselves, the

next best thing is to punish the dealers who act as their agents, under

the guise of doing an independent business. If prison sentences were

invariably inflicted in such cases the dealers would soon find their

miserable business as unhealthy as do the consumers who buy from them.

Some very disreputable, but, nevertheless, highly amusing tricks

are invoked by wily practitioners in the Special Sessions to secure

the release of their clients. One of the most adroit is to secure

adjournments from day to day on various pretexts until the patience of

the complaining witness is nearly exhausted. When the case is at last

about to be called for trial the lawyer tells his runner to go into the

corridor outside the court-room and send in word that some one desires

to see the complainant. The complainant goes out to see what is wanted.

In the meantime the case is moved for trial, and when his name is

called he naturally fails to respond. The shyster, in a most aggrieved

tone, then informs the court that the defendant "is a hard-working

man who has already been dragged down to court four or five times,"

on each occasion being compelled to lose an entire day's pay; that he

is the only support of an invalid wife, an aged mother, six children,

and an imbecile brother; that the defence is and always has been ready

to proceed with the case; that simply in the interests of justice he

requests that the defendant be discharged on his own recognizance or

acquitted. In many cases this motion is granted and the complainant

hurries back into the court-room just in time to meet the defendant

making a triumphal exit.

The tears and laughter of the police courts are the tears and laughter

of the Sessions. The _Miserables_ of Hugo are the miserables of to-day.

Jean Valjean, Fantine, and Cosette haunt the corridors of our courts.

As well try to paint the sufferings and experiences of mankind in a

single picture as the ten thousand yearly tragedies of the Special

Sessions in a single chapter.

FOOTNOTES:

[Footnote 22: Misdemeanors Disposed of During the Year 1907.

Convicted 1,853

Acquitted 1,045

Plead Guilty 6,107

Discharged 502

Demurrers allowed 1

Forfeited 457

Actions dismissed 3,175

------

Total 13,140

]

[Footnote 23: See note, infra, p. 210.]

CHAPTER VI

THE GRAND JURY

The constitutions and laws of most of the States of the Union provide

that no person shall be tried for a felony unless he shall first

have been indicted for his offence by a grand jury. The defendant

may have been caught in the very act, have freely acknowledged his

guilt to the officer who arrested him, have admitted it before the

magistrate, and have signed a full and complete confession of his

crime in every detail, yet he cannot be placed on trial or his plea

of guilty received until a body of twenty-three intelligent, but

exceedingly busy, gentlemen, sitting together in a secluded chamber,

have solemnly deliberated upon the case. If they agree with the

prisoner in his contention that he is guilty they thereupon file a

diffuse and perplexing document to that effect, which they have not

read, and probably would not understand if they had. The proceeding

has cost the county some additional expense and the defendant a day or

two longer in jail, and he has still to be tried before a petit jury,

where the evidence must be presented again at the greatest length,

and where the grand jury's action cannot be considered in any way as

affecting the issue. If, on the other hand, the prisoner contends that

he is innocent, and yet the magistrate who has heard the case thinks

otherwise, the same twenty-three gentlemen, hearing, as a general rule,

only the evidence in his _dis_favor, will almost inevitably return

a true bill against him, and he will be put to his trial. Of all the

features of modern criminal procedure, bar only the office of coroner,

the grand jury, or "The Grand Inquest," as it is called, is the most

archaic. While without any doubt in thinly populated districts it may

still be of value, in crowded cities like New York, where the volume of

criminal business is overwhelming, it has in large measure ceased to be

either effective or desirable so far as the ordinary run of criminal

cases is concerned.

Some States manage to dispense entirely with the services of the

grand jury. The prosecutor receives the complaint against the accused

directly from the committing magistrate, files an information and puts

the prisoner on trial. Truly this would seem both cheap and expeditious.

Among the dusty archives of the Court of General Sessions lie a pile of

parchment-bound volumes which contain the earliest minutes of criminal

proceedings in the county. The first page of the most ancient of these

presents an account of the empanelling of the first grand jury of which

any record now remains in New York. It reads as follows:

PROVINCE OF NEW YORK. Att the General Quarter Sessions of our Lord

the King held att the Citty Hall in the Citty of New-York for Our

Sayd Lord the King, and the body of the sayd Citty and County of

New-York, that is to say on Tuesday the 8th day of February, in the

Six and thirtieth year of the Reigne of our Sovereigne Lord Charles

the Second of England, Scottland, France and Ireland, King, Defender

of the faith, & before Cornelis Steenyck, Esqr, Mayr of the sayd

Citty, and James Graham, Recorder, Nicholas Bayard, John Inians, Wm

Pinho ... Guyl. Ver Plank, Jno Robinson and William Cox, Esqrs,

Aldermen and Justices of the Peace of the sayd Citty and County,

Commisionated by Authority undr his Royal Highness James Duke of

York and Albany Lord Proprietr of the Province aforesd.

* * * * *

The Grand Jury "which consisted of Nineteen [?],[24] was Called

and Sworne According to An Oath Agreed On by the Court, and was as

followeth, viz.:

"You Shall diligently Enquire and true Presentmt make of all Such

things and mattrs as shall be giuen you in Charge Or shall Come to

your knowledge this Present Servise. The Kings, His Royal Highness

Lord Proprietr and this City Councell Yor fallows and your owne

you shall well and Truely keep Secreet. You shall present nothing for

Malace or Euill will that you Bare to Any Person, Neither shall you

Leaue anything unpresented for Loue, favour, affection Reward Or Any

hopes thereof, but in all things that shall Concerne this Present

Servise you Shall Present the truth the whole truth and nothing but

the truth, According to yor best skill and knowledge--Soe help you

God."

Mr. Francis Rumbout was Apoynted foreman.

* * * * *

The Recorder ... read to them ther Charge whch was Deliuered in

Writeing.

Then follows the quaint record of the first presentment or bill of

indictment:

John Robinson, } For Our Lord the Kings sworne to

Wm Cox, } declare to the grand jury wt they

Richard Elliott, } know about the Burgulary Henry

Darby Bryan. } Thomassen is Charged with.

The Bill Against him was Committed to the Grand Jury wth the

Examncon of the witnesses, and the Court adjourned till four in

the afternoone.

In the Afternoone the Court being opened the Indictmt agst Henry

Thomassen was returned by the Grand Jury Billa vera.

Henry Thomassen being Called for the Sherriff returnes that he has

Broak Prison and made his Escape, and Desires tyme till the next

Sessions to Persue him.

Ordered That the Sherriff doe make Persuits after the prisonr to

haue him att the next session to abide his Tryall. The Grand Jury

was dismissed from further Attendance till ye next sessions and ye

court dissolved.

It is interesting to observe that on the 13th day of the November

following, in the first year of "the Reigne of our Sovereignee Lord

James the Second of England, Scotland, France, and Ireland," etc.,

the "sherriff" having apparently made good "persuits" of Thomassen

and effected his capture, the latter was brought to the bar and duly

charged:

"For that he not haveing the feare of God before his eyes, but

being Lead by the instigation of the divell ... by force and armes

the Cellar belonging to and being parte of the dwelling house of

William Cox of the Citty of New-Yorke merchant in the night Season,

To Witt, between or about the houres of tenn or Eleven of the Clock

... feloniously and burgularly did breake and into the same did Enter

with an intent to steale and spoile the goods and Chattles of the

said William Cox contrary to the peace of our said sovereigne Lord

the King his Crowne and dignity."

Having pleaded not guilty and put himself upon the county a jury was

empanelled who swore:

"That the said Henry Thomassen is guilty of the feleony and

burgularly aforesaid in the said inditement above specifyed in

manner and forme as above against him is supposed, Therefore it

is considered by the Court, that the aforesaid Henry Thomassen be

branded on the forehead with the Letter B, and be whipped on the bare

back eleven Stripes on the fourteenth day of November instant in the

morning by Eleven of the Clock, before the City Hall and pay all

costs and charges of prosecution."

The oath of the grand jurors, their general procedure, and the form of

indictment are practically the same up to the present day.

To appreciate fully just what part the grand jury plays in the

administration of criminal justice the reader should remember that

almost all defendants in criminal cases are brought immediately after

their arrest before a police magistrate and given, if they so desire,

an exhaustive hearing. If the magistrate thinks there is sufficient

cause to believe the prisoner has committed the crime charged against

him he is held (if the crime be a felony or a libel) for the action of

the grand jury, or if it be a misdemeanor, for whatever court tries

such offences,--in New York County the Court of Special Sessions. Of

course it is the privilege of the defendant to be admitted to bail,

save where the charge is one of murder, until the proceedings against

him result either in his final discharge or his indictment, and, as has

been said before, once he is _held_ for the grand jury he cannot, even

if he be a self-confessed criminal, be tried or punished until that

body has deliberated upon his case.

The following table shows the number of arrests for felony in New York

County each year since 1900, the number of persons so arrested who were

"held" by magistrates for the action of the grand jury, and the number

of indictments "found" by that body:

------+-------------+----------------+-------------+--------------

Year | Number of | Number of | Number of | Population of

| Arrests for | Persons "Held" | Indictments | New York

| Felony | for Action of | Found | County

| | Grand Jury | |

------+-------------+----------------+-------------+--------------

1900 | 8,588 | 4,473 | 3,674 | 2,050,600

1901 | 8,435 | 4,395 | 4,210 | 2,095,116

1902 | 9,465 | 5,020 | 3,890 | 2,139,632

1903 | 9,939 | 4,372 | 3,898 | 2,186,017

1904 | 9,238 | 3,452 | 3,950 | 2,235,060

1905 | 11,688 | 4,751 | 4,199 | 2,468,046

1906 | 11,553 | 4,169 | 4,116 | 2,553,100

1907 | 13,913 | 5,879 | 5,295 | 2,687,800

------+-------------+----------------+-------------+--------------

Total | 119,206 | 57,241 | 52,027 | .......

------+-------------+----------------+-------------+--------------

It may be of some interest to note how this inquisitorial body is

brought into being. Every year a Board of Commissioners, consisting of

the Mayor, the Recorder, the Presiding Justice of the Supreme Court,

and others, meet and make up a list of a thousand names from which

the grand jurors for the year are to be drawn. These names are placed

in a wheel and each month fifty of them are drawn out at random by

the County Clerk in the presence of one of the judges of the General

Sessions. From these fifty names the grand jury of the succeeding month

are chosen by lot. Of course the selection of jurors must perforce be

made with ostensible impartiality, for a grand jury which was amenable

to political influence would render the administration of justice worse

than a farce. Such a condition has not been unknown.

Not so very long ago Recorder Goff observed that certain representative

gentlemen who had served on the grand jury for years were no longer

drawn. In view of the significance of the political situation at that

time the fact seemed peculiar and he determined to make a personal

investigation. Accordingly at the next monthly drawing the Recorder

inserted his own hand in the wheel and found that some of the slips

were heavier and of a different texture from the others, and could

easily be separated by the sense of touch. The inference was obvious.

Undoubtedly the opportunity thus to elect between the sheep and

the goats had been made good use of. No excuse for this astounding

situation was offered, and all the slips at once were destroyed by

order of the court. Later on it was explained that the manufacturer

"_had not been able to furnish all the slips of the same material_."

As but twenty-three grand jurymen are selected each month, only two

hundred and seventy-six out of the total number chosen ever actually

serve. The judge appoints a foreman, usually a man of some previous

experience, and the jury are sworn. The court then delivers a charge

and reads or calls to their attention certain sections from the Code

of Criminal Procedure. If there is any matter of public notoriety

which comes within their purvue, such as crimes against the elective

franchise, or insurance, banking, or other frauds, he is likely to

dwell upon the necessity of paying particular attention to this variety

of offence. The jury then retire to the rooms prepared for them and

begin their secret deliberations.

They are now prepared to hear the evidence against all persons charged

with felonies or libel, who have been held for their action by the

police magistrates. The original papers in all these cases have

already been copied under the direction of the district attorney and

the witnesses subpoenaed to attend and give their testimony. These

subpoenas are served by attachés of the prosecutor's office, commonly

known as "county detectives," or, more popularly, "sleuths." It should

be observed that the district attorney in fact decides what cases shall

be submitted, and prepares the daily calendar of the grand jury, which

as a rule does not know in advance what business it is to consider. In

addition to this, the district attorney draws, usually in advance, all

the indictments.

The indictment may be said to be the most important individual paper in

criminal procedure, for upon its sufficiency depends the question of

whether or not a defendant may be tried, or if tried and convicted,

sentenced to prison. The general form of these instruments has varied

little during many centuries. They are as archaic as the grand jury

itself. Originally the draughter of documents was paid by the word,

and the more prolix he could be the better it was for him. This fact

naturally influenced the form of all legal papers. His sins are still

directly visited upon us. Moreover, not the best forms, but the worst

are our inheritance, for usually only the sufficiency of the worst is

questioned and tested by appeal. If an indictment is not absolutely

defective, it is sustained by the higher courts, and having been passed

upon and not found wanting, immediately becomes a model for all future

draughtsmen. It may fairly be said that the more faulty an indictment

is (so long as it be not actually void) the better its chance of

immortality.

Probably the simplest indictment which the grand jury can find is one

for larceny. Let us suppose that a servant, Maria Holohan, has stolen

the teapot of her master, the Hon. Silas Appleboy. The grand jury

present an indictment against her in the following terms:

Court of General Sessions of the Peace in and for the County of New

York. The People of the State of New York against Maria Holohan.

The People of the State of New York, by this indictment, accuse Maria

Holohan of the crime of grand larceny in the second degree committed

as follows: The said Maria Holohan, late of the Borough of Manhattan

of the City of New York, in the County of New York, aforesaid, on

the 1st day of April, in the year of our Lord, One thousand, nine

hundred and seven, at the Borough and County aforesaid, one teapot

of the value of $50, of the goods, chattels and personal property

of one Silas Appleboy, then and there being found, then and there

feloniously did steal, take and carry away, against the form of the

statute in such case made and provided and against the peace of the

People of the State of New York and their dignity.

A. BIRD,

District Attorney.

This is merely saying that "the grand jury charge Maria Holohan with

stealing the silver teapot of Silas Appleboy on April 1, 1907." It is

the shortest indictment possible. A complicated indictment may fill

hundreds of pages.

Many interesting old indictments are on file among the records of the

General Sessions; and if one can judge by the frequency with which the

names of divers ungodly and reckless Philadelphians are inscribed upon

their pages, "the general reputation" of the City of Brotherly Love for

"peace and quiet" must have considerably improved during the past two

hundred years.

As a usual thing we find among the papers filed with the indictment the

original "information" sworn to by the aggrieved party. Give heed to

the "unmerciful conduct" of Mr. William Miller:

CITY OF NEW }

YORK ss: }

Mathew O'Brien of the City of New York Mariner maketh Oath and Saith

that on Sunday night the first Day of November instant he this

Deponent being at the Tavern kept by Francis King on the Dock between

the Hours of Ten and Eleven of the Clock and having a dispute with

the Landlord relative to a French Crown dropped by this Deponent one

William Miller who this Deponent heard and believes _is Marker to a

Billiard Table in Philadelphia_ immediately challenged this Dept.

to fight him and stopped this Deponent from going out either at the

Door or window altho. he made frequent attempts for that purpose and

thereupon knocked this Deponent down, and beat kicked and wounded

him in a desperate and unmerciful manner. This Dept. Saith he

also lost out of his pocket the whole of his Money then about him

consisting of five Guineas in Gold two Crown pieces and a Note of

hand for ten guineas. And further saith not.

Mathew O'Brien.

Sworn the 1 Day of

Novr. 1704 before me

Jno Broome, Just Peace.

The grand jury of to-day is the same old grand jury that indicted

William Miller; and the cases are piling up,--piling up, at the rate of

three, four, five, or even six hundred a month.

What would Mr. Francis Rumbout, who was "apoynted" foreman of that

earliest grand jury, have said if he had been obliged to pass upon six

hundred cases in a month? The time which could actually be given to the

consideration of any particular charge under such circumstances would

average about _six minutes_!

For example, Giuseppe Candido, having been summoned to appear suddenly,

finds himself standing in the centre of a large room around which are

arranged a semi-circle of inquisitors.

He states where he lives, what his business is, that he knows Michael

Angelo Spaghetti, and that the latter cut him in the shoulder in a

quarrel over a glass of beer. He is then excused. The grand jury take a

vote and Spaghetti is indicted for "wilfully and feloniously committing

an assault with intent to kill." Generally only one side of the case

is heard. There is very little attempt made to hold the witnesses down

to the strict rules of evidence. It is all _ex parte_. "_L'évidence

at jurie est que cunque chose que serve le partie a prover l'issue

pur luy_," as Henry Finch put it at the beginning of the seventeenth

century.

Once in a great while, if there is something a little peculiar in the

charge or in the manner in which the witnesses give their testimony,

the jurors may become suspicious and send out for other witnesses or

possibly for the defendant himself. Of course he cannot be compelled

to testify, but usually he is glad of a chance to explain away the

accusation if he can. Perchance the inquisitors refuse to indict. But

what a waste of time for twenty-three busy men! And as a rule what

trivial matters are brought to their attention!

Most of the cases dismissed are so inherently weak that the district

attorney would himself have discharged the defendants of his own

motion, but the action of the grand jury saves him the trouble and the

odium, if any, and diffuses it among an irresponsible body. The same

thing is true of indictments found against influential persons,--the

responsibility is with twenty-three, not merely one.

But if the grand jury is to exist at all, it must be constituted, and

required to act, in accordance with the law. The indictment is invalid

if there be on the grand jury one who has not the proper qualification

to sit, or if an unauthorized person be present, or if the evidence

is not legally sufficient. Even if the defendant be as guilty as the

Father of Sin, he may make a motion to dismiss the indictment on any

of these grounds, and, whether the point be well taken or no, the case

may in consequence be delayed for weeks. Where the defendant has the

means to employ astute and learned counsel, he may retard his trial for

weeks, or even months, by questioning the proceedings of the grand

jury which found the indictment against him.

For example, when Fire Commissioner John J. Scannel was indicted for

conspiracy to defraud the city of New York, his lawyers ferreted out

the fact that one of the grand jurors who had found the indictment

lived a large portion of the year in the town of New Rochelle. When

the defendant was called upon to plead to his indictment the lawyers

offered "_a plea in abatement_," although the law expressly provides

that no pleas save of "guilty" or "not guilty" or of "_autrefois

acquit_" may now be entered. They insisted, however, on their right

to such a plea and the matter was delayed for a long time. Their plea

having been refused they then moved to dismiss the indictment because

of the alleged irregularity in having this juror present who spent his

summers at the seashore. The determination of this motion took months.

How like the situation to that which existed in 1433, when a statute

was enacted in order to remedy, if possible, somewhat similar abuses.

" ... When the Grand Jury appears and is ready to pass, a tenant or

defendant or one of the petit jury pleads false pleas not tryable by

the Grand Jury, and so delays proceedings until this be tried. When

this is settled for the plaintiff, another pleads a like false plea

since the last continuance; and so each of the defendants, tenants,

or jurors, one after another, may plead and delay the Grand Jury; and

although all be false and feigned, the Common Law has no penalty.

This has caused great vexation and travail to the grand juries, and

plaintiffs have been so impoverished that they could not pursue their

cases, and jurors are more emboldened to swear falsely."[25]

A substantial proportion of the delays in criminal procedure are due

to the interminable motions based upon alleged irregularities in the

constitution and action of the grand jury, and the insufficiency of

indictments. Such delays would vanish with the abolition of that body.

But beyond its general power to investigate specific charges of

crime laid before it, the grand jury constitutes the only general

inquisitorial body that we have, and its value and services in this

respect must not be overlooked. It is highly important that the

power should reside in some responsible body to summon witnesses and

compel testimony anent suspected offences, conspiracies, and official

misconduct. This is precisely what the grand jury did as far back as

1300, when it acted as a "suspecting" jury. Only through some such

power can a rumor of crime, unsubstantial and intangible in itself, be

traced to its source and the knowledge of those who can testify as to

the perpetration of it secured at first hand.

Acting within its legal powers as an investigating body, the grand jury

has a vast power and can be immensely useful to the community, but

when it attempts to do more, its action has no more validity and is

entitled to no more respect than that of any other self-constituted

inquisitorial body of intelligent citizens.

A belief is quite prevalent, however, among grand jurymen that it is

their duty not only to ascertain what crimes have been committed and

to find indictments for them, but to act as the censors of the public

morals, as watchdogs of the public treasury, as the promoters of

legislation, and generally as the conservators of the public interests.

This impression is entirely erroneous, and yet it is surprising to

what an extent grand jurors imagine that because of their office

some particular sanctity attaches to their enunciation of opinions in

matters that do not concern them.

A grand juror walking in the morning from his house to the corner

to take a street-car, accidentally stumbles over a coal-hole cover;

he reports it to his associates; many of them know persons who have

stumbled over coal-hole covers; they talk the matter over and decide

that there should be no coal-holes, since with the abolition of the

coal-hole the coal-hole cover also would disappear. They call upon the

commissioner of public works to appear before them and testify; upon

the street-cleaning commissioner; upon the commissioner of buildings;

they learn how many coal-holes there are in the city; what their covers

are made of; how they are fastened or are not fastened in place; and

some day when the grand jury comes down into court, the foreman arises

and states that he has a presentment. The judge on the bench requests

him to hand it up; he delivers it to the clerk, who passes it to the

judge, who returns it to the clerk and directs him to read it. The

clerk stands; the grand jurors stand; the clerk reads:

"To the Honorable John Smith, Presiding Justice of the Court of General

Sessions: The Grand Jury of the County of New York respectfully

present: Our attention has been called to the large number of

unprotected and unguarded coal-holes existing in the County of New

York; we have called before us a large number of witnesses and given

much time to the taking of testimony relative thereto; we find that

in the past year ten thousand persons have lost their lives through

falling into improperly guarded coal-holes, and that the records of

the hospitals show lists of over one hundred thousand others who have

been severely injured by similar catastrophies; while it is beyond

the capacity of the mind of man to comprehend the infinite number

of those who have been wounded, bruised, lacerated and contused by

similar accidents, to an extent not sufficient to render hospital aid

necessary, etc." And such a presentment goes on with its statistics and

figures and ends with the recommendation that the legislature pass a

certain law, that the aldermen pass a certain ordinance, that certain

laws or certain ordinances be repealed, or that other legislative

interference be had, or legislative action should be taken, or that

some city official or city officials do this or do that, or that some

department make such and such an investigation and act thereon in

such and such a way, and concludes with the signature of the foreman

and secretary of the grand jury. The court then arises, bows to the

grand jurors, says: "Gentlemen, we have heard your presentment; I now

direct that it be placed on file in this court and that copies thereof

be forwarded forthwith by the clerks to the heads of the appropriate

departments." And the grand jurors retire, imagining that in some way

they have contributed directly to the public weal.

An examination of the long list of presentments on file in the office

of the clerk of the Court of General Sessions will show the diversified

interests to which the grand jury, acting as we have shown as a merely

self-constituted _censor morum_, has devoted its attention and in

which it has consumed many of its working hours in the past. So far

as we know, no action whatever has ever been taken upon any of these

presentments. That at times they may have done some good through

calling to the attention of the public press matters which otherwise

would not be under scrutiny, may be admitted; but the discussion of

them in the press has usually been as ephemeral as the existence of

the grand jury by which they were filed; and in general it may be said

that the only effect of a grand jury's meddling with these things is to

detract from the dignity of its office and the importance of the work

which it and it alone can lawfully do.

The lay reader will naturally be led to inquire why this archaic

institution which it costs so much time and money to perpetuate,

which causes so much unnecessary inconvenience to witnesses and

offers so many technical opportunities for delay, which frequently

is ineffective and officious, and for the most part concerns itself

with the most trivial matters only, should not be abolished, and why

prisoners charged with crime whose cases have been properly examined

by committing magistrates should not be immediately placed upon their

trial.

It is doubtful if any very convincing arguments in favor of retaining

the grand jury for the purpose of indicting ordinary offenders

can be advanced. That it should be continued for the purposes of

investigation, with power of indictment, to be summoned when the need

thereof arises, is indisputable. But the original necessity for the

grand jury has disappeared with the onward march of the centuries.[26]

In early days, when the influence of the crown threatened the liberties

of the English freeman, and when judges and magistrates owed their

positions to royal favor, it was often difficult if not impossible to

secure the punishment of a criminal if he happened to be a retainer

or under the protection of those in power. So, too, the defenceless

subject might be accused of crime by an influential person and haled to

the bar upon a baseless and malicious charge. Some barrier was needed

between the powerful and the weak, and some tribunal before which the

weak could accuse the powerful of their wrongs. This was supplied by

the grand jury, which, ever changing its members and deliberating in

secret, seemed well calculated to safeguard the people's liberties.

But at present we need no such protection against a government of

and by the people, and indeed such a body, deliberating secretly and

hearing the evidence against an accused person without giving him the

opportunity to be heard, seems strangely out of harmony with the spirit

of our institutions.

To-day, the grand jury, initiating a proceeding against a citizen

who may be ignorant that he is even under suspicion, may be led to

accuse him of some foul crime upon the mere _ex parte_ statement of

malicious witnesses, without giving him an opportunity to explain or

contradict the evidence. The mere charge of crime is often enough to

ruin a man forever. The argument that a suspected person may escape

before arrest unless the charge is considered secretly, has in these

days of telegraphs, railroads and extradition treaties little of the

force which it may have carried with it in cruder times. Moreover, the

possibility of indicting public officials or others upon insufficient

evidence for political purposes, or for "moral effect," would be done

away with, and only those against whom legal testimony made the charge

reasonably clear would be threatened with prosecution, and then only

when their defence had been heard by a magistrate and held insufficient.

Prosecutors now prefer to take as few cases before their grand

juries in the first instance as possible, and to send the man with a

grievance, who thinks he has some political pull and "wants to get the

fellow indicted anyway," into the magistrate's court to make good his

charge.

Almost twenty-five per cent of the States in the Union have modified

their procedure in this regard so as to conform to modern requirements.

The State constitutions of Indiana, Illinois, Iowa, Nebraska, Oregon

and Colorado give the legislatures the power to make laws dispensing

with grand juries in any case, and in California, Connecticut, Kansas,

Louisiana, Montana, South Dakota, Utah, Vermont, Wisconsin and Wyoming

constitutional provisions exist permitting all criminal proceedings

to be made by information, or dispensing with grand juries in certain

cases. This is also true of the Federal Government. Experience has

demonstrated that ample protection is afforded the accused where the

State is permitted to prosecute those held to bail by an examining

magistrate upon proof of probable cause. He is better protected than by

a grand jury which hears in secret only the evidence against him and

gives him no opportunity of explanation.

A system which would allow of the prosecution of all felonies by

information would do away with the great and practically useless labor

of our grand jurors in the ordinary run of cases, would save endless

time and money to all concerned, and might still retain the grand jury

for such purposes as necessity requires. Justice would be more speedy

and just as effective if the prosecution of all crimes were instituted

before an examining magistrate, and the grand jury would then, at the

summons of the court, meet to perform only those important and peculiar

functions of investigation that are consonant with its dignity and

necessary to the public weal.

FOOTNOTES:

[Footnote 24: Record illegible.]

[Footnote 25: The historical development of the grand jury is highly

interesting. Originally the assize at which the knights assembled

was not unlike a sort of county parliament and all manner of matters

were submitted to them. Gradually as the jury developed out of this

unorderly gathering together, the sheriffs got into the habit of

summoning only enough men to form the grand jury and as many petty

juries (when those came into existence) as might be needed.

In the beginning private vengeance was the moving cause of all criminal

procedure. The aggrieved party made a direct appeal to the county and

the issue was fought out, the complainant and defendant appearing in

person or by champions. This was exceedingly unsatisfactory for many

reasons, among others that not seldom a rich man would hire all the

champions within reaching distance and the poor man be left without

any, which suggests the somewhat similar practice of many wealthy

litigants at the present day. But this mode of individual redress

colored all English procedure and is the direct cause which makes

English criminal trials in so many ways resemble private litigation.

Private vengeance was at the bottom of it.

When the "county" or the public were the accusers, a mere accusation

was practically equivalent to a conviction subject to the chance of

the defendant's escaping by a favorable termination of "the ordeal of

water." But "the ordeal" in time died out, just as did wager of battle,

and something had to take its place. This was the jury.

From very early times we find "grand" or "accusing" juries presenting

charges for the trial jury to dispose of, although the accusing jury

frequently acted as trial jury as well. By 1212 it had become customary

to submit a charge found by a presenting jury to a larger combination

jury which included the original body which had presented the charge.

This enlarged jury, usually composed of a jury from another "hundred"

and "the four vills," delivered a unanimous verdict. By 1300 it had

begun to be the privilege of an accused to "challenge" those who had

presented the charge against him, but it was the approved practice to

try an accused by some at least of those who had presented him.

"The four knights were called, who came to the bar girt with swords

(above their garments) and were charged--to choose twelve knights girt

with swords for themselves and the others--and the justices ordered the

parties to go with the knights into a chamber to choose or to declare

their challenges of the others chosen by the four, for after the return

of the panel so made by the four knights the parties shall have no

challenge to panel or polls before the justices." (1406) Y.B. 7 H. IV,

20, 28.

The idea seemed to be that unless there were a few on the jury who had

already formed a provisional opinion as to his guilt the prosecution

would not have a fair chance. In Willoughby's case in 1340, Parning,

J. naively remarked, "In such case the inquest should be taken by the

indictors (the accusors) and others. Certainly if the indictors be

not there _it is not well for the King_." In 1351 by St. 25 Edw. III,

c. 3, it was enacted that "no indictor be put on an inquest upon the

deliverance of one indicted for trespass or felony, if he be challenged

for this cause by the party indicted." Persons "presented" or accused

could "put themselves" upon different counties, that is to say, could

submit their case to juries drawn from such counties, with certain

limitations, as they might elect. Thus we find a case where one having

been "presented" by an accusing jury "puts himself on the County of

Surrey and on all men in England who know him." At Easter came riding

twenty-four knights from Surrey at the king's summons who promptly

found him to be a robber, and, says the record, "Since he put himself

upon these, _let him be hanged_."

There is a criminal case in Y.B. 30 & 31 Edw. I, 528, which throws a

good light on the procedure of the time. W. was the stabler of J.'s

horse and had been kicked, while trying to mount, so that he died. The

horse thereupon became forfeit to the king as a _deodand_. The jury

accused J. of keeping the horse in spite of this and also charged him

with having buried W. without calling in the coroner. This he denied

and "put himself on the county." The judge, addressing the jury, which

was probably the same that had made the accusation, charged as follows:

"If W. died from the kick of the horse, the horse would be _deodand_.

If not it would be John's. If the king should lose through you what

rightly belongs to him, you would be perjured. If you should take

away from John what is his, you would commit a mortal sin. Therefore,

by the oath you have made, disclose and tell us the truth, whether

the said W. died of the horse's kick or not. If you find that he did,

tell us in whose hands is the _deodand_ horse and what he is worth;

and whether the said W. was buried without a view of the coroner."

All things considered--a pretty good charge.

Gradually, and in large measure because the "ordeal" had disappeared

and the grand jury as a distinct body had been fully established, no

method of ascertaining the truth of an accusation was left, and a mere

presentment in fact amounted to a conviction, so that the need of some

other jury to pass upon the issue was apparent. Out of this need the

modern petty jury developed.

In course of time the accusing jury became as it is now, a distinct

and separate body, deliberating secretly, its members being no longer

permitted to sit as trial jurors. They acted on common report, their

own personal information, and upon the application of injured parties,

and initiated most criminal proceedings. It was necessary for some

one to ferret out crime and hold the perpetrators for trial, and the

jury did practically the whole business. As the years went on the

jury became more and more a purely _ex parte_ accusing body with

practically no judicial supervision and receiving about what it saw

fit as evidence. From time to time the powers and the character of the

grand jury has been fiercely assailed. Two centuries ago it came near

receiving a knock-out blow, but it had become too firmly established.

In Shaftsbury's case, 8 How. St. Tr. 759 (1681), they were in fact

compelled to receive their evidence publicly in court, but their

vigorous protests and the failure of the attempt left the body all

the more securely entrenched in English procedure.--_Condensation

from Prof. J.B. Thayer's masterly chapter on "Trial by Jury and Its

Development" in his "Preliminary Treatise on the Law of Evidence."_]

[Footnote 26: Cf. "Reform in Criminal Procedure," H.W. Chapin, 7

Harvard Law Review 189.]

CHAPTER VII

THE LAW'S DELAYS

"IF THE COOK SHOULD STEAL THE TEAPOT"

"I would have her locked up and punished!" the reader undoubtedly

exclaims as he notes our title. It is hardly likely, however, that

he realizes the possible significance of such an undertaking. For

the edification, therefore, of those who have cooks and teapots, and

in order to be forewarned, if not fore-armed, let us suppose that

the worthy Mr. Appleboy has not only the domestic necessary for our

case, but also a family heirloom which is worth more than twenty-five

dollars, the requisite value to make its abstraction, with felonious

intent, grand larceny in the second degree.

Mr. Appleboy, after a moderately hard day's work, has been for an hour

at the club, and is now ascending his front steps. As he is about to

place the key in the door, he observes his cook, Maria, making her

exit from the area with some large object concealed beneath her shawl.

A flash from the dying sun, setting over the elevated railroad tracks

of Sixth Avenue, betrays a telltale protruding spout. Maria does not

perceive her master, but the latter, being of an inquiring disposition,

descends the steps and follows her down the street. She hurries along

upon her journey until, reaching Eighth Avenue, she turns the corner

and enters a pawnshop. Mr. Appleboy, puffing, follows hard, and opens

the door just as Maria is in the act of receiving from the pawnbroker

the sum of ten dollars. She has the money in one hand, the teapot in

the other; she is caught _in flagrante delicto_, or, in the modern

equivalent, "with the goods on."

Maria shrieks and calls upon the saints. Appleboy, purple from his

exertions, pounds the floor with his gold-headed cane and fiercely

inquires what she means by going off with his silver teapot. In reply

Maria falls on her knees, breaks into tears, and confesses her crime,

offering no excuse, and suggesting no palliating circumstance. She

implores his forgiveness, but Appleboy, righteously indignant, is

obdurate. She could have stolen anything but his grandmother's teapot,

and he would have overlooked it. The pawnbroker, who takes but a mild

interest in the proceedings, merely seizes the opportunity to remove

from the cook's unresisting fingers the roll of bills.

Appleboy resolves to do his duty. He will set an example of good

citizenship--he will have her arrested, locked up, and sent to prison.

"Summon a policeman!" he cries to the indifferent pawnbroker.

"Get one yourself!" replies the other.

Appleboy starts for the door, keeping one eye on the prostrate Maria.

Two blocks distant he sees a stalwart officer in the act of conversing

affably with a street cleaner. At this moment an urchin notices Maria

couchant upon the floor. An expansive grin takes possession of his

features, and, placing his fingers to his mouth, he emits a shrill

whistle. Instantly, like a flight of vultures, a small army of boys

descend upon Appleboy, who now decides that the only way to procure the

policeman is to shout for him. In his embarrassment he yells: "Stop

thief! Stop thief! Police!" but the officer pays no attention. He is

discussing Tommy Sullivan's chowder party of the night before.

"Say, mister, I'll get the copper for ye," shouts some little fellow,

and starts on a run up the avenue. A few follow him and quickly corral

the officer, who, protesting, dawdles slowly in the direction of Mr.

Appleboy, swinging his club, and apparently taking little interest

in their remarks. Meantime, the pawnbroker has shut and locked the

door. Maria, within, is still in a state of coma. The much-annoyed

old gentleman is fast being surrounded by a dense throng of loafers,

tradesmen, ladies of the neighborhood and pedestrians, while the street

is blocked with vagrant cabs and grocery carts. He wishes he were at

home in his comfortable library, but realizes that he is in for it now,

and must stick it out.

"Well, what do you want?" demands the officer, pushing his way through

the crowd until he confronts the innocent cause of the disturbance.

"What are yer makin' all this row about, and blockin' up the street

fer?"

"Maria, my cook, stole my silver teapot," answers Mr. Appleboy. "I

caught her trying to sell it in _there_. I ask that you place her under

arrest."

"What's yer name?" asks the policeman. "Who are yer anyway?" The

crowd cheers delightedly, for while the copper is not popular in the

neighborhood, an old swell like this is "nuts" for everybody.

"I am a citizen and a taxpayer," replies Mr. Appleboy stiffly, "and I

insist upon your doing your duty and arresting this woman."

"Aw, come on now and give us yer name," continues the officer. "You

can't expec' me t'arrest a person unless I know who I'm doin' it fer.

How do _I_ know yer ain't throwin' some game into me?"

At this moment one of the boys shies a banana peel at Mr. Appleboy's

tall hat. The latter, seeing his disadvantage, responds:

"My name is Silas Appleboy, and I am a taxpayer and a freeholder. I

demand that you arrest this woman." The policeman, somewhat impressed

by the other's vehemence and the statement that he is a freeholder (the

meaning of which the official naturally does not understand), inquires

a little more genially where the lady is.

"In that shop," replies her master. The crowd, with a whoop, rushes

at the door, but the pawnbroker is standing inside in an attitude of

defence. The policeman, closely followed by Appleboy, pushes his way

through the mob, and raps loudly.

"Stand back there, now," shouts the officer, waving his club. The small

boys shrink back, leaving Appleboy in the centre of the ring. The

pawnbroker opens the door. Maria is upon her knees, calling vaguely

upon Heaven to defend her. The silver teapot reposes upon the counter.

The officer grasps Maria roughly by the shoulder and yanks her to her

feet.

"Get up there and pull yerself together!" he exclaims. "What's yer

name?"

"Me name is Maria Holohan," she replies hysterically.

"Do yer know that man?" continues the officer, pointing at Appleboy.

"Shure, I know him," is the answer. "Haven't I worked for him for

fourteen years?"

"Did you steal his teapot?" asked the officer.

"Oh, Holy Mother! Holy Mother!" wails Maria. "I took a dhrop too much,

an' shure I didn't know what I was doin' at all, at all."

"Well, the first thing you'll do," remarks the officer, "'ll be to walk

to the house. Come on, now!" And forthwith he drags Maria to the door,

and, holding her firmly by the wrist, marches her upon the sidewalk.

Mr. Appleboy, the teapot clasped to his bosom, follows immediately

behind. Their appearance is greeted with vociferous approval by the

waiting crowd, who fall in and escort the group towards the police

station. But Maria's strength fails her, and, presently, with a groan

she collapses. Perhaps the drop too much has taken effect in her legs.

At all events, despite the efforts of the officer, she refuses to move,

and remains limp. The crowd has now become so dense as entirely to

obstruct all traffic in the street, long lines of electric cars leading

in each direction up the avenue, motor-men and conductors forming a

strong adjunct to those giving gratuitous advice. Two grocery wagons

get their wheels locked in the throng. Some one telephones to the

station house. At last the distant clanging of the patrol is heard.

The crowd scatters, the carts and cabs extricate themselves, and the

"hurry-up wagon" backs to the sidewalk with a flourish, two more

coppers swinging on behind. They bundle Maria unceremoniously inside,

escort her erstwhile employer with hardly more courtesy into the same

vehicle, and toss in the teapot: the gong rings: and Mr. Appleboy

starts upon his task of bringing an evil-doer to justice, and proving

himself worthy of the proud title of citizen.

The drive to the station seems hours long, and the fumes of whiskey

are very evident upon Maria. The officers are taciturn. The nose has

been knocked off the teapot. Mr. Appleboy, holding himself tense in his

seat, endeavors not to be jostled against the lady who has, previously,

cooked his meals. Now and again she addresses him in no complimentary

terms. She has by this time reached the belligerent stage, although she

has no thought of denying her guilt.

The wagon draws up with a jerk in front of the precinct station house.

Into a second crowd of gamins and loafers, Appleboy, still clutching

the noseless teapot, emerges. He is followed by two policemen, half

carrying, half supporting Maria. The doorman allows the party to enter,

while repelling the inquisitive throng who would like to accompany them.

Once inside, Maria and her master, little distinction being made

between them, are brought before the sergeant, who reclines behind a

desk upon an elevated platform. This official interrogates Mr. Appleboy

somewhat brusquely as to his name, address and the charge which he

makes against the defendant, laboriously copying the answers in the

"blotter." Maria, petrified with terror, absolutely refuses to answer

any questions, and mutters incoherently to herself. The sergeant,

satisfied of Mr. Appleboy's respectability by reason of his highly

polished hat and gold-headed cane, commits the prisoner to a cell to

await the hearing before the magistrate on the following morning. As

the charge is one of felony, and as none of her friends as yet know

of her detention or arrest, the question of her release upon bail

does not arise, and after the sergeant has directed Mr. Appleboy to

attend at the nearest police court the next morning at half-past eight

punctually, that gentleman escapes down the steps of the precinct

house, feeling that he has lived through untold ages of misery. The

crowd cheers him as he descends, and he hastens homeward, the joy of

release tempered only by the prospective agony of the morrow. The

noseless teapot remains in the custody of the sergeant at the station

house.

We can imagine Appleboy telling the story to his wife and children.

How heroically he figures in his own account of the proceedings! How

picturesquely penitent is Maria! How dramatic her capture in the very

act of disposing of the stolen property! How the policemen cower at the

majestic Appleboy's approach! By the time the old fellow has taken his

coffee and lighted his perfecto he is almost restored to his former

condition of pompous dignity. His intention to vindicate his position

as a freeholder and to see that the law shall take its course is

revived, and he dreams of Maria hurtling through the abyss with dozens

of silver teapots tied about her ample neck.

DELAY THE FIRST

The next morning Appleboy orders his carriage and drives in state to

the police court. His tall hat secures him easy access to a long room

with a low ceiling, in which the air is full of strange odors.

Across the end of the court, two-thirds of the way towards the front,

stretches an iron grating through which a gate admits police officers,

local politicians, lawyers and the witnesses in any examination

actually in progress. He enters the room exactly at eight-thirty.

Already it is crowded, and, having no business inside the gate, he

is forced to sit upon a bench in company with various friends of the

divers defendants who have been committed during the night.

It is early as yet, and a substantial breakfast has put Mr. Appleboy

in an optimistic frame of mind. Once the judge arrives how quickly

the case will be disposed of and our hero receive the thanks of the

magistrate for acting as he has done! But alas! Already a long file

of officers is forming at the left of the desk behind the grating.

Each officer has located at a safe distance one or more "drunks" or

"disorderlies" whom he has gathered in during the preceding evening,

and who have spent the night in the station house. The officers have

recently come off post and now are waiting sleepily for the arrival of

the magistrate to dispose of "The Watch."

By a quarter to nine the line has reached immense proportions. Twenty

officers stand in single file and the procession of prisoners reaches

to the doorway of the cells. In the meantime the jam in the room

itself has become greater, and the heat and odors more oppressive. Mr.

Appleboy wipes his brow with his silk handkerchief. He wishes he had

brought his wife's smelling salts.

Presently he discerns amid the crowd inside the railing the now

familiar features of Pat, the officer, who beckons him to come within.

Our friend rises to his feet to obey, but instantly another officer

bawls: "Sit down there, you!" and Appleboy collapses.

"Hi, there, Rounds, let that old guy in, will ye?" asks Pat

good-naturedly.

The roundsman condescendingly nods to the grizzled guardian of the

gate, who holds it open just wide enough to allow our hero to squeeze

through.

"Mornin'," remarks Pat, chewing vigorously.

"Good-morning, officer," replies Appleboy. "Where is the prisoner?"

"She came in the wagon half an hour ago," says Pat. "Step up while he

makes out the complaint. After that we'll arrange her."

So Pat and his complainant join the mob which is besieging the clerk's

desk, and finally secure enough of that functionary's scattered

attention to induce him to draw up a brief statement of the facts in

the case. Pat disappears into the cells to emerge in a few minutes,

escorting the bewildered Maria. She is then "arranged," which in

police parlance is to say she is arraigned. She has no counsel, and

evidently supposes her interrogator to be the judge, for she insists

on addressing him as "Yer onner." The clerk briefly warns her of her

rights and puts the few necessary questions, which Maria answers in a

quavering voice. It is obvious that she expects to be at once deported

to Sing Sing or the "Island."

"Name?"

"Maria Holohan, yer onner."

"Address?"

"Two East Seventy-first Strate, yer onner, wid this man here."

(Indicating Appleboy.)

"Occupation?"

"Shure, 'tis his cook, Oi am." ("Housework" puts down the clerk.)

"How long have you lived at this last address?"

"Fourteen year, yer onner, come St. Michael's Day."

"What have you to say, if anything, relative to the charge against you?"

(Maria mutters incoherently) "Shure Oi took the taypot, all right, all

right."

"Guilty?" asks the clerk.

"Guilty," whispers Maria.

"That's all," says the other. "Stand back there and give some one else

a chance."

Pat, holding the papers in his hands, escorts Maria to the end of the

line, and Appleboy returns to his seat. In his deposition he has stated

that his occupation is that of "Bank President" and he has instantly

observed a change of attitude in those about him. "Rounds" even expels

two unsavory characters for the purpose of making room for him in the

front row.

In a moment more the judge enters hurriedly, takes his seat at the

desk, and begins rapidly to dispose of the file of prisoners before

him. One after another the officers press forward, make a brief

statement of the circumstances of the arrest, and the prisoner is

led away with a fine, a lecture, or a sentence of a few days in the

workhouse. There is no opportunity for other cases until all the

"disorderlies" and street-walkers have been dealt with. Half-past nine

comes, quarter of ten and ten o'clock, the hour at which Mr. Appleboy

usually makes a leisurely descent to his office, but still there is no

respite. The monotonous business continues. But Mr. Appleboy's time is

valuable, and he begins to fume and fidget. He thinks of the dollars he

is losing by performing his duty as a citizen.

Pat has gradually neared the desk. At length there is but one more case

to be heard, and the "Rounds" summons our hero once more inside. Maria

is thrust in front of the platform and stands with her hands on the

rail. It has seemed an easy thing to Mr. Appleboy for a complainant

to tell his story, and he has smiled scornfully to himself at the

wandering and unconvincing statements he has heard during the morning,

but as he is pushed upon the platform under the sharp eye of the

magistrate, his courage begins to ooze out of him. He wishes again for

the hundredth time he had let Maria go off with the old teapot. The

very thought of tea sickens him.

"Next," calls the "Rounds," as a dowdy young woman is led away, weeping

hysterically.

Pat hands up the papers.

"Maria Holohan," mutters the judge, running his eye over the

"information." "Stole a teapot,--um--um--Is this the defendant?"

"He indentifies her," answers Pat.

The judge turns to Appleboy.

"Are you the complainant?" he asks briskly.

"Y-e-e-s," answers our hero, "I am. This is my cook."

"That will do," says the magistrate. "Answer only the questions that

are put to you. Do you swear that the statements contained in this

complaint are the truth, the whole truth, and nothing but the truth, so

help you, God?"

"I do," replies Appleboy with vigor.

Luckily for Appleboy, no lawyer appears for the delinquent Maria.

Unfamiliar with all the vagaries and devices of the criminal law, this

lady, realizing that she has been caught red-handed, foolishly supposes

that there is nothing for her to do but to cry for forgiveness and beg

for mercy.

"Do you desire counsel?" asks the judge.

Maria stares vaguely.

"Have ye got a lawyer?" interprets the nearest copper.

"Don't want no lawyer!" snaps Maria.

"I see you plead guilty," says the judge.

"Shure," she answers.

"Well," says the magistrate, "as she pleads guilty, I will not detain

you further. Your cook, eh? Well, well, it's too bad! Why will they do

such things? I am glad you did not lose the teapot. That is all."

Maria is led away, while Mr. Appleboy descends from the platform, to be

followed by some other righteously indignant complainant.

The whole transaction has occupied less than a minute and a half.

In order to accomplish it, Mr. Appleboy has remained in court from

half-past eight in the morning until a quarter to twelve.

"Thank goodness," he says to himself, "it is all over now. The rest

will be plain sailing." Ah, how little do the Appleboys know of

the administration of criminal justice! Pat accompanies him to his

carriage, expressing regret that the matter could not have been

disposed of more speedily. Appleboy is not ungenerous. He always tips

the colored porter in the sleeping-car most liberally, but although

it is obvious, possibly, that Pat would like a drink and some cigars,

Appleboy, believing that by accommodating him he would be committing a

felony or, at least, a misdemeanor, coldly bids him good-afternoon, and

Patrick, crestfallen, returns to the precinct house.

Meanwhile the magistrate fixes bail for Maria at five hundred dollars,

and the teapot is tagged and returned to the custody of the sergeant at

the station. Tired out, but feeling that "a duty well performed is a

rainbow to the heart," Mr. Appleboy seeks the bosom of his family.

DELAY THE SECOND

Cookless, the Appleboys struggle through the following week. It is

in the height of the season and cooks are scarce; they are also

ill-tempered; and in five days Mrs. Appleboy has tried and dismissed

three. The family, dinnerless, nightly seek a neighboring restaurant,

and endeavor to console themselves with the theatre. But after the

fourth night this bores them. They begin to long for Maria's omelets

and Irish stew. After fourteen years one gets used to a particular kind

of pudding.

"I almost wish," said Appleboy to his wife when they are alone, "that I

had not done anything about Maria, but just let her come back and cook

for us. I don't think she would have tried to steal the teapot a second

time."

"But how do you know, Silas?" replies his wife. "Think of the orgies

that may have been going on in the kitchen in the last fourteen years!"

"True, true," answers Appleboy, and again renews his determination to

see the thing through to the bitter end. Then Mr. Appleboy receives at

his office a green slip calling for his attendance on the morrow before

the grand jury of the County of New York, promptly at ten o'clock. He

has never been to the Criminal Courts building in his life. He only

supposes vaguely that it is situated somewhere near the "wholesale

district" and not far from the Italian quarter. He associates it with

trips to Chinatown, the East Side and the Bowery.

After being thoroughly shaken up by a long journey over the

cobblestones in his carriage, Mr. Appleboy finds himself on Franklin

Street, between the Tombs, on the one hand, and the Criminal Courts

building upon the other. Over his head runs "The Bridge of Sighs." A

congregation of loafers, lawyers, runners, policemen and reporters

linger upon the sidewalk. Unfamiliar with the means of entrance and

exit, Appleboy turns the corner and climbs two long flights of stone

steps upon the outside of the building instead of utilizing the side

entrance upon the ground floor and taking the elevator. He enters an

enormous hall around which, on all four sides, corridors reach to the

top of the building. A motley collection of people are hurrying hither

and thither. After some difficulty, Appleboy discovers a lift packed

with odoriferous Italians, men with bandaged eyes and faces, small,

half-clad children, and divers persons smoking enormous, evil-smelling

cigars, whom he later discovers to be members of the legal profession.

The car stops at the third floor.

"District attorney and grand jury," calls the elevator man. "Grand jury

to the right."

Appleboy gets off with the rest of the mob, and wanders down a narrow

corridor past rows of offices, until he comes to a policeman standing

by the door of a small room crowded with people. There is hardly space

to breathe, much less to sit down. From time to time a bell jingles

in the distance, a door into another room opens, somebody comes out,

and an officer calls out a name. Its owner hastily responds, is shot

through the door into the other room, and the door closes again.

This process goes on interminably. In a corner, clerks separated by

a railing are busily engaged in making out subpoenas and filling in

certificates of attendance. Police officers are everywhere. Appleboy

takes his stand by the door. It is half-past ten o'clock. He has no

means of knowing when he will be summoned before the august body who

are deliberating in the next room. He has a craving to smoke, although

he makes it a rule never to do so before six o'clock in the afternoon.

He has left his newspaper at home, and has yielded up his subpoena

to the officer at the door. There is nothing to occupy his attention

except the sour visages of those about him. They belong to a class of

people who instinctively fill him with disgust, being representatives

of what Appleboy and his wife are accustomed to term the "masses."

Person after person is summoned into the other room, but no one seems

to want the banker. Pat is there, to be sure, but he is at his usual

pastime, enjoying the delights of mastication. He no longer has any

"use" for Appleboy. At about a quarter-past eleven, the officer beside

the outer door calls the name of Silas Appleboy. Our hero, believing

that at last his turn has arrived, starts from his seat, only to be

directed to "Come here!" by the officer. He discovers that he has been

summoned to confer with a representative of the district attorney, who

invites him into a neighboring office.

"Mr. Appleboy," says this young gentleman when the two are comfortably

seated, "I see by the papers in the case that a Maria Holohan stole a

teapot from you. Under what circumstances was the theft committed?"

Mr. Appleboy, who supposes that the merits of his case have been long

since known personally to the district attorney, commences at the

beginning and rehearses all his woes and difficulties. The assistant

listens courteously, and then, without comment, bows Appleboy out, who

returns once more to the ante-chamber of the grand jury. His seat has,

meanwhile, been usurped by a corpulent lady in deep mourning, and its

former occupant is forced to stand in the corridor for an hour longer.

During this period he perchance has the annoyance of hearing Pat remark

to a fellow officer in no uncertain tones that "the old guy is no

good--a 'dead one'--I didn't even get a smoke off him."

The ante-chamber gradually has been thinning out. Finally Appleboy

gets a seat. The bell keeps on ringing until only he and a man with

a broken nose are left. At last a policeman hurries out of the open

door, the bell rings again, and the clerk at the desk shouts "Appleboy!

Appleboy!" Appleboy arises.

"Right in through that door," directs the clerk, and Mr. Appleboy,

shrinking, enters timidly the chamber of horrors and finds himself

in the centre of a semi-circle of gentlemen of varying ages and

appearance. To Appleboy a thousand eyes seem peering at him from every

side. The silence is appalling. He stands, silk hat in hand, feeling

like a very small boy who has been called before the head master to

be punished for some offence. A man in the middle of the semi-circle

and directly in front of him, is scratching busily with his pen. The

grand jurors whisper among themselves. Presently the foreman looks up,

observes Appleboy standing, and remarks: "Sit down, sir." Mr. Appleboy

sinks into a chair beside the stenographer. The foreman glances at

the indictment already prepared, and then says sharply: "Stand up,

sir,--and be sworn!"

A Bible is forced into his unenthusiastic hand.

"You do solemnly swear the evidence you shall give to the Grand Inquest

upon the complaint against Maria Holohan shall be the truth, the whole

truth, and nothing but the truth: So help you, God!"

Mr. Appleboy replies faintly: "I do," and makes an ineffectual attempt

to kiss the Bible.

"Sit down!" directs his interlocutor. "Ahem! You had a teapot worth

over fifty dollars, and your cook stole it? Did you see her?"

"Yes," answers Appleboy, and in a few words describes the occurrence.

The foreman sweeps the grand jury with his eye.

"Any questions?" he asks. There is no response from the others.

"That is all, sir," says the foreman. "I see that the woman pleaded

guilty in the police court. Good-morning."

Appleboy takes his hat and retires. Two hours' wait for an examination

occupying thirty seconds! He has heard of the "law's delays," now he

knows what they are. The bell rings again as he is making his way out

into the corridor, and the man with the broken nose stumbles in through

the door by which our friend has made his exit.

DELAY THE THIRD

Mr. Appleboy now believes that his troubles are over, for he has

consulted his family lawyer in order to make sure that everything is

all right, and has learned that since Maria has pleaded guilty in the

police court, she will, after her indictment, undoubtedly do likewise

in the General Sessions.

Two days later Appleboy receives a subpoena to attend in "Part I of

the Court of General Sessions of the Peace" as complainant in the case

of "The People of the State of New York against Maria Holohan." Down

he goes and sits for a full hour in an ice-cold court-room which is

thronged with policemen, irate complainants, and sympathizing friends

of the defendants, until, among the line of bedraggled prisoners, who

are brought in batches of from four to six from the Tombs through a

little door in the back of the room, he recognizes the erstwhile queen

of his kitchen--Maria, the unapproachable. She looks much the worse for

wear. The feathers of her hat hang disconsolate. In addition she is

minus her collar and goes clumping around the room after the policeman

as if she had never broiled a lobster or tossed a flapjack. As she

turns the corner by the jury box she spies her lawyer, and immediately

brightens. They hold an animated conversation in whispers as he takes

his place beside her at the bar.

"Maria Holohan," says the clerk severely, "you have been indicted by

the grand jury for grand larceny in the first degree. Do you plead

guilty or not guilty?"

Appleboy starts from his seat almost ready to call out in explanation:

"She pleads guilty, your honor," but before he has an opportunity to do

so, or to suffer any of the uncomfortable consequences of such an act,

the weazened-faced little attorney representing Maria responds sharply:

"Not guilty."

Appleboy is stunned. Why, the woman has already confessed her guilt,

after having been caught in the act! What absurdity! What nonsense!

But the plea is taken; the lawyer asks that a date be set for trial

not nearer than a week on the ground that he may conclude upon

investigation to advise his client to change her plea, and because

he has a witness living outside the State; and the court grants this

application.

Not guilty! As Maria tramps out in company with other defendants,

Appleboy makes up his mind that he will see what all this means, and

steps forward through the gate to speak in person to the representative

of the district attorney. A hand is laid upon his shoulder, and he is

hauled back unceremoniously.

"Here! Where are you going?"

"I want to speak to the district attorney," he replies meekly.

"Sit down," replies the officer. "He can't speak to you now. Look him

up in his office after court adjourns."

Mr. Appleboy, chastened by experience, makes no protest and retires

from the room. He has lost too much money already by absence from his

office to make it worth his while to wait until the adjournment of

the court, so he goes down town to attend to his business, and at the

first opportunity calls up his attorney to inquire what it all means.

The lawyer responds briefly that the mere fact that the defendant has

pleaded guilty in the police court does not preclude her from changing

her mind and denying her guilt later when called upon to plead to an

indictment. He regrets the inconvenience to which his client has been

put, and suggests by implication that it would have been well if Mr.

Appleboy had consulted him before taking any action in the matter.

Appleboy has already come to this conclusion himself.

DELAY THE FOURTH

A week later Appleboy receives another subpoena which commands him

under penalty to call at the district attorney's office at half after

ten o'clock and "Ask to see" Mr. John Smith, whom he finds, after

some difficulty, in a little office in the same building and corridor

through which he passed when he appeared before the grand jury.

"Is this Mr. Smith?" he inquires.

"Yes," answers the young man. "What do you want?"

"I have a subpoena," replies the other, "to see you this morning."

"Oh, yes, I remember," remarks the assistant. "You're in the Holohan

case, aren't you? Woman stole your teapot, didn't she?"

"Yes," mutters Mr. Appleboy, "she did, some time ago. What can I do for

you?"

"Well, I want you to tell me about the case," mildly explains the

assistant. "Who's Maria Holohan, anyway?"

So Appleboy begins at the beginning and tells the whole story through,

while, from time to time, the assistant laughs softly to himself. When

the history is concluded, the young man leans back in his chair, blows

a ring of smoke towards the ceiling and exclaims: "That's always the

way! Some miserable little shyster gets hold of 'em in the Tombs and

swears that he can get 'em off, no matter how plain the facts are, or

even if they have pleaded guilty in the police court. Well, I'll make a

note of the case, and when it comes up for trial you'll get a subpoena.

Sorry to have had to bother you. Good-morning!"

DELAY THE FIFTH

Appleboy departs. Three days later he gets another subpoena to appear

before the Court of General Sessions. When the case is called, however,

Maria's lawyer gets up and moves for an inspection of the grand jury

minutes upon the ground that there was not sufficient evidence before

that body to warrant the finding of an indictment. The judge denies

this motion peremptorily, since there has already been a hearing in the

police court. Upon this the attorney states that he is actually engaged

in a trial of another action elsewhere. The case therefore "goes over,"

of necessity. Nearly three weeks have now elapsed since the theft.

Presently Appleboy gets another subpoena. He trots down to court half

an hour before the opening. The case is marked "Ready." He is told

to remain in court, but some other case is already on trial, having

lasted over from the day before, and at noon it is still in full swing.

The court adjourns for an hour, from one to two. Appleboy returns

obediently at that time, but the case which was on trial in the morning

continues throughout the entire afternoon. He departs at four o'clock,

furious.

Next morning he is dragged down again. This time, however, the case

against Holohan is adjourned without date, owing to the fact that

Maria's counsel has applied to the court for a commission to take

testimony in Boston. They intimate that they may interpose the defence

of insanity, or at least dipsomania, and evince an unaccountable

eagerness to examine Maria's great aunt, who is acting as general

housework girl for a minister's family in Roxbury, Mass. The district

attorney strenuously opposes this motion. The judge, however, "takes

the papers," as he is obliged to assume that the request is made in

good faith.

DELAY THE SIXTH

Appleboy hears nothing of the case for another week. At the end of that

time he gets a subpoena of a different color, and again journeys down

to court. But this time he first seeks out Smith in his office and asks

if there is any likelihood of the case being tried that day. Mr. Smith,

whose room is thronged with witnesses, tells Mr. Appleboy that he is no

longer assigned to that part of the General Sessions on whose calendar

the case appears, and that another assistant, Mr. Jones, will have to

try the case. He therefore conducts Mr. Appleboy to an adjoining office

and presents him to Jones.

The latter receives Appleboy courteously and assures him that he will

try the Holohan case the very first of all. They talk the matter

over and unite in their objurgations against defendants' lawyers in

general. Jones, however, is confident that this time they will succeed

in disposing of the matter. They adjourn together to the court-room.

But on the call of the calendar Maria's lawyer claims that one of his

most material witnesses is absent, and that without him his client's

interests would be jeopardized. The judge, who by this time has

correctly gauged the situation, nevertheless directs him to go on with

the case. The lawyer then states that he has had a bad night and feels

very unwell. The judge continues unsympathetic. The assistant is openly

skeptical. The attorney thereupon is suddenly taken with great pain and

retires for air to the corridor outside the court-room. Nothing can be

done. Perhaps the lawyer really has a pain.

The assistant shrugs his shoulders and announces that he will move the

case of Michael Angelo Spaghetti, indicted for assault; the defendant

is ordered to the bar, and the court directs the clerk to announce that

"no other case will be tried" that day.

Appleboy drags himself with the rest of the throng through the door

into the corridor. This is the third time he has practically given up

an entire morning to appearing as complainant in a case which seems

fated never to be tried. He goes downstairs swearing vengeance against

Maria and her lawyer. This performance is repeated possibly some

four or five times more with variations. But he never gets nearer

than having the case marked "ready," and something always intervenes,

Maria's lawyer exhibiting an almost supernatural cleverness in the

invention of excuses.

On all these occasions, while awaiting the call of the calendar,

Appleboy is likely to sit in close proximity to the defendant, who

has been released on bail pending her trial, and who casts withering

glances in his direction. Her brother Terence also seizes the

opportunity presented by the various adjournments to tell Appleboy what

he thinks of him and what he intends to do to him after the case has

been disposed of.

The district attorney has done everything in his power to force

the defence to trial, but his every attempt has been unavailing.

Nevertheless, Appleboy blames him personally for every idiosyncrasy of

the law and for every delay procured by the defence.

DELAY THE SEVENTH

It was now the end of June. Mr. Appleboy has planned to take his family

abroad, but, although the annual adjournment of court for vacation is

at hand, through the dilatory tactics of Maria's pettifogging counsel,

the case is still untried.

Appleboy had been in attendance at court eleven separate times, but the

only satisfaction which he receives is the assurance that he will be

paid fifty cents for each one of his subpoenas. He is by this time so

disgusted with the whole business and has taken such a fierce dislike

to all judges, district attorneys, policemen and lawyers, that he

would long ago have thrown up the case had it not been for the fact

that he has a vague idea that in so doing he might be compounding a

felony. His desire to set an example as a model citizen has long since

evaporated. Countless members of the Holohan family beset him at home

and at the office, beseeching him for clemency.

It is possible that without consulting the district attorney, and under

the assumption that he must remain at hand as a witness, he gives up

Europe and takes a house on the mosquito coast instead. His wife is

very unpleasant about it. She hints that Appleboy need not have been

so vindictive in the first place. After he has cancelled his passage,

and the whole family are safely ensconced for the summer, Appleboy

discovers that cases in which the defendants have been released upon

bail are not tried during July, August, and September. Appleboy's

feeling can be easily imagined. It is needless to say that he does not

impart the information to his lady.

The summer proves generally unsatisfactory. The visits of Maria's

family and their efforts to persuade him not to prosecute are

redoubled. Most of them are domestics on their evenings "out,"

plentiful of tears and reproaches. It is impossible to escape them. He

also receives numerous letters from the lady's attorney suggesting that

he call at the latter's office. These he has systematically ignored.

DELAY THE EIGHTH

October comes. The family return. Once more the familiar subpoena

is served upon our hero at his office. At the sight of it he scowls

fiercely as he watches the white smoke sailing up the air shaft into

the azure of the sky. It is a beautiful autumn day. He recalls the

police court, and the grand jury, the Criminal Courts building, the

General Sessions, and Maria and Terence, and his miserable summer!

Vestryman Appleboy mutters something very much resembling profanity.

He thinks: "If I had not tried to punish that cook for stealing the

teapot, why!--I might be spending to-day in Rome or Paris!" The next

morning, however, finds him once more on his dreary way to court.

He consults Jones again upstairs, who promises by all that is holy that

nothing shall prevent a trial. The case is marked "Ready," without

opposition, and the assistant district attorney moves the indictment.

"Maria Holohan to the bar!" calls the clerk, as a jury is rapidly

empanelled.

Appleboy is exultant. He is to reap the reward of virtue and fidelity

to principle. At last the criminal is to be made to pay the penalty. He

looks eagerly for Maria.

"Holohan! Maria Holohan!" reiterates the clerk.

But Maria comes not.

"Call her in the corridor," directs the judge to the officer at the

door.

There is a sudden silence in the court-room. No response is heard

outside.

The assistant district attorney says something to the judge, who nods

to the clerk.

"Maria Holohan, come forth and answer pursuant to the terms of your

recognizance or your recognizance will be forfeited," shouts that

official.

There is no reply.

"Terence Holohan, bring forth Maria Holohan, for whom you are bound

pursuant to the terms of your recognizance, or your recognizance will

be forfeited," solemnly intones the clerk.

Terence arises and comes slowly forward from where he has been sitting.

"Are you the bondsman in this case?" asks the clerk.

"Oi am!" replies Terence.

"Where is the defendant?"

Terence looked sheepish.

"Where is the defendant?" repeats the clerk sharply.

"In Ireland! Bad cess to her!" answers Terence. "And divil a bit can Oi

bring her forth," he murmurs, "whin she's in the ould country!"

"Forfeit the bail!" orders the judge.

Appleboy grasps the arm of the assistant.

"What's the trouble?" he asks anxiously.

"She's skipped!" answers the other with a grim laugh. "That's all."

"H--l!--I mean, thank God!" exclaims Vestryman Appleboy.

This, gentle reader, is what _might_ happen to you if your cook should

steal the teapot.

CHAPTER VIII

RED TAPE

Mr. Appleboy makes his way from the court-room to the corridor of the

Criminal Courts building a sadder, wiser and more chastened member of

society. He now has personal knowledge of the way in which our criminal

laws are enforced and some idea of the administration of criminal

justice in general in New York City. He has been dragged down to the

Criminal Courts building, to the district attorney's office, the grand

jury room, and the General Sessions not less than a dozen times, and he

now takes a solemn vow that never, if he can possibly avoid it, will he

be prevailed upon to go there again.

Our defeated hero on reaching home finds Mrs. Appleboy waiting luncheon

for him.

"Well, Silas," she inquires, "has that woman been convicted at last?"

Her husband laughs somewhat shamefacedly.

"No; I'm afraid she has gotten the best of us," he replies, unfolding

his napkin and beaming pleasantly upon his better half. "The fact is

that she has skipped her bail--gone back to Ireland."

"What!" returns Mrs. Appleboy. "Do you mean to say that that woman has

been allowed to get away after you have been doing nothing, apparently,

for the last six months but spend your time in those miserable

court-rooms down there? It's outrageous."

"Oh, you can't help that," he replies, "so long as prisoners are

admitted to bail--they have the sacred privilege, guaranteed under our

Constitution, of running away."

"Rubbish!" exclaims the lady.

"And do you know," continues Appleboy, "it really is a tremendous

relief to feel that I shall not have to take the witness stand and be

cross-examined as to my past career by some miserable little shyster

lawyer from the Tombs."

"Why, Silas," interrupts his wife sharply, "what have you been doing

that you are ashamed to tell of?"

"Oh, I didn't mean that," he adds hastily, "but they ask such

embarrassing questions; I might have to tell how much property I own,

and then the tax collector would get after us."

"Speaking of property," continues Mrs. Appleboy, "where's the teapot?"

Appleboy gazes at her blankly. In the excitement attendant upon Maria's

non-appearance in the court-room, the family heirloom had completely

escaped his mind.

"I forgot all about it," confesses Appleboy.

"Silas!" cries his wife. "I should think that after all your

experiences you would have had sense enough not to leave the Criminal

Courts building without bringing that teapot with you. How do you know

Maria hasn't taken it with her to Ireland?"

"Oh, I'm sure she hasn't," answers her husband; "it's down at the

police station; they tagged it, you know, and left it in the custody of

the sergeant."

"Well, hurry through your dinner," commands his wife, "and go right

down and get it. I am surprised at you."

Appleboy skips his usual demi-tasse and fragrant perfecto, the result

of which omission is to leave him but half satisfied and with a feeling

of incipient indigestion, and betakes himself as fast as possible

to the police station, where he has last seen the teapot. Now the

police station, as is a way with police stations, is located without

any reference whatever to the conveniences of transportation, hence

Vestryman Appleboy is obliged to walk some ten or twelve blocks towards

the river after a heavy meal, and reaches his destination very much out

of breath and in a distinctly ill humor. To his surprise the doorkeeper

at once recalls him.

"How are you, Mr. Appleboy? Come right in," says that functionary in

greeting.

"How do you do?" responds Appleboy. "I have come to get my teapot."

"Ask the sergeant about it," directs the doorman.

So Appleboy makes his way to the desk, where he is again recognized,

this time by the sergeant on duty.

"Well, Mr. Appleboy," remarks the sergeant, "what became of that cook

of yours? She was a bad one! I hope they convicted her."

"They did not," replies Mr. Appleboy; "they didn't even get a chance at

her. She got away."

"Jumped?" inquires the sergeant with a grin.

"That's what she did," acknowledges Appleboy, "after she had kept me

chasing up and down for nearly six months."

"Oh, she was a sly one," answers the sergeant sympathetically. "A

little vacation up the river would have done her good."

"I suppose there's no objection to my having the teapot back, is there?"

"Sure not," answers the sergeant. "It's yours, ain't it? Of course you

can have it back."

"Do you mind letting me have it then?" asks Appleboy.

"Oh, we haven't got your teapot!" exclaims the sergeant. "That was

handed over to the property clerk at Police Headquarters. I suppose

when the case was set for trial the pot was sent down to the district

attorney's office; he's probably got it locked up in his safe,--I mean

whatever assistant was going to try the case."

"Well, well," says Mr. Appleboy; "of course, I assumed it was right

here, where I saw it last. What would you advise me to do?"

"Better go right down and see the assistant district attorney," says

the sergeant. "Skipped her bail, did she? Well, that's a pretty good

one, too!"

Although it is now three o'clock, Mr. Appleboy goes to the nearest

elevated station and takes the train down town. This occupies about

half an hour. He gets off at the corner of Franklin Street and walks

to the Criminal Courts building. He is now thoroughly familiar with

this lugubrious locality and finds the elevator without difficulty,

ascending amid the usual odoriferous company to the floor upon which

Mr. Smith, the assistant district attorney, has his office. Mr. Smith's

door, however, is locked, and inquiry from a deaf attendant in a

neighboring corridor elicits the fact that the assistant is engaged

in trying a murder case in Part IV of the General Sessions. Appleboy

now bethinks him of Jones and forthwith descends to the next tier of

offices, but there finds to his chagrin that the latter also is trying

a case.

Determined not to be thwarted by any such trifling matter, our hero

takes the elevator to the second floor of the building, upon which the

court-rooms are located. He first applies at Part I. The superannuated

attendant at the door eyes him sharply, asks him for a subpoena,

and upon his failure to produce it denies him admittance. Appleboy,

naturally indignant, inquires the reason. The watchdog at the door

brusquely replies that persons having no business in the court-room are

not permitted to enter.

"But I want to speak to Mr. Jones."

"Well, he can't see you now, anyhow," replies the doorkeeper. "It won't

do you a particle of good to go in; he's right in the middle of summing

up the case to the jury."

This seems a sufficient excuse, even to our much-annoyed old gentleman,

and he thereupon makes his way to the court-room in which he has been

informed that Smith is disporting himself. Here he makes a second

attempt to secure admission. On this occasion there is not even the

question of a subpoena. No one can be admitted, because the judge is

"charging the jury." The answer is definite and final.

The doorkeeper, however, is a good-natured, genial, warm-hearted

Irishman, and notes with some sympathy the disappointment and chagrin

of the weary little old man. Appleboy observes the benignity of the

other's expression and tenders a cigar,--not what is commonly known

about the building as a "cigar" (six for a quarter) or even a "good

cigar" (a ten-center), but a bang-up, A-1, twenty-five-cent Havana,

with a gorgeous coat of many colors. Being very tired he lights another

for himself. The two converse amicably.

It now develops that the doorkeeper not only remembers Appleboy,

but the case and the teapot, and finally, having become conversant

with the entire situation, he pronounces judgment, namely, that Mr.

Appleboy will find the teapot at the property clerk's office at Police

Headquarters; that while it is possible that it might remain in the

custody of one of the assistants, or in charge of the property clerk,

attached to the district attorney's office, it is very unlikely that

such is the case, since the defendant was never placed on trial. He

therefore advises Appleboy to return with all haste to 300 Mulberry

Street and secure the return of his property from the person there

having it in charge. Appleboy is very much pleased; he begins to

regard himself as quite a "mixer," while for a brief moment visions of

running for mayor or perhaps for alderman hover in his mind; and after

presenting the doorkeeper with a couple more Havanas he makes his way

out of the building upon the Center Street side.

Appleboy supposes, as is not unnatural, that Police Headquarters must

be somewhere in the immediate neighborhood of the Criminal Courts

building. A laborer, in response to his question, waves his hand in a

northerly direction, and Appleboy sets out, traversing what seems to

him to be an interminable distance. Every one whom he addresses states

that Headquarters is just a block or two farther on. Soon he finds

himself on Mulberry Street; swarms of little children congregate upon

the sidewalk and pass comments upon his appearance; Italian ladies

in faded négligée look down upon him from upper windows; bunches of

macaroni in a half-solidified condition stream from frame-works erected

in the areas, and Appleboy shudders as he thinks of the germs wafted

down the side streets and from the open windows of the tenements which

must, as he believes, collect and form a thick crust upon the surface

of this unattractive variety of nutriment. From time to time he crosses

the street for the purpose of avoiding a fight between small boys or a

group of children dancing around an organ; occasionally he is obliged

to walk in the middle of the street itself. After twenty minutes he

comes in sight of an inhospitable-looking structure, which, he is

informed by the peanut seller upon the corner, is that for which he

seeks.

"Polica Headquarta!" chatters the Italian and grins; he knows well

enough what it is, and "many there be that go in thereat."

Appleboy crosses the street and ascends the steps, meeting as he does

so a squad of policemen who bang open the door and come marching down

in pairs. He shrinks to one side, and then timidly makes his entry. An

officer in the hall inquires his business.

"I desire to see the property clerk," says Mr. Appleboy, "and to secure

the return of a teapot which was stolen from me."

"The property clerk's office closes at four o'clock," says the officer;

"you'll have to come to-morrow morning, at nine."

Appleboy is disgusted; he has spent what is practically an entire

afternoon in the pursuit of his teapot and has accomplished nothing.

"It's outrageous," he cries; "the idea of a public office closing at

four o'clock in the afternoon! What do these fellows do, I would like

to know, to earn their salary? Nine to four,--pooh! Why, it isn't half

a day's work."

The officer has turned on his heel and walks slowly away, leaving Mr.

Appleboy fuming by the door. The corridor is musty and dark, its stone

flagging worn by the tread of millions of heavily booted feet. Poor old

Mr. Appleboy is very tired; the dingy windows, the gloomy corridor, the

unsympathetic policeman, the noise and smells of the Italian quarter,

the weary trip to the district attorney's office and to the station

house have brought him almost to the verge of tears. He is ashamed to

go home and tell his wife that he has accomplished nothing,--he has not

even _seen_ the teapot. Feeling very small indeed Appleboy pushes open

the door and passes out upon Mulberry Street. No one notices him; in

this official world a bank president is but a unit among the countless

multitudes of the public. He stumbles into a subway train, seeks

sanctuary in his club and takes a Turkish bath.

Let us pass over the painful scene upon the return of Appleboy

teapotless. His lady is hardly to be blamed for showing irritation over

her husband's failure to recover that interesting relic and valuable

domestic adjunct. She knows she could have done much better herself.

At any rate she would not now calmly return home from the court with

the humiliating admission that the prisoner had escaped and that the

teapot had disappeared. Things are very unpleasant that evening, and

no suggestion on the part of Appleboy that they go to the theatre or

the opera will bring a smile over the features of his irate spouse.

The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice · 第 19 / 23 章