-----------------------------+-----+----_The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice

| | Aggregate | Average Term

| | Term of | Each Person

Offence | No. | Sentences |

| +-------+--------+-------+--------

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

Abduction | 4 | 32 | .. | 8 | ..

Abandonment | 2 | 4 | .. | 2 | ..

Assault, 1st degree | 4 | 27 | 1 | 6 | 9

" 2d degree | 48 | 161 | 7 | 3 | 4

Bigamy | 6 | 20 | 10 | 3 | 6

Bribery | 1 | 3 | 6 | 3 | 6

Burglary, 1st degree | 5 | 94 | 7 | 18 | 11

" 2d degree | 30 | 187 | 5 | 6 | 3

" 3d degree | 120 | 385 | 2 | 3 | 2

Blackmail | 4 | 17 | 6 | 4 | 4

Carrying burglar's tools | 6 | 23 | 4 | 3 | 11

Carrying concealed weapons | 9 | 34 | .. | 3 | 9

Election law | 8 | 26 | 1 | 3 | 3

Extortion | 6 | 14 | 6 | 2 | 5

Felony (N.C.) | 2 | 12 | .. | 6 | ..

Forgery, 1st degree | 2 | 10 | 6 | 5 | 3

" 2d degree | 13 | 63 | 2 | 4 | 10

" 3d degree | 3 | 10 | 3 | 3 | 5

Grand larceny, 1st degree | 38 | 209 | 8 | 5 | 6

" " 2d degree | 146 | 478 | .. | 3 | 3

Kidnapping | 3 | 44 | 1 | 14 | 8

Maiming | 1 | 2 | .. | 2 | ..

Manslaughter, 1st degree | 11 | 165 | 1 | 15 | ..

" 2d degree | 3 | 30 | 9 | 10 | 3

Murder, 1st degree | 3 |Sentenced to be executed

" 2d degree | 13 | 260 |See note| 20 | ..

Attempted murder, 1st degree | 1 | 24 | 6 | 24 | 6

Perjury | 2 | 19 | 5 | 9 | 8

Rape, 1st degree | 1 | 18 | .. | 18 | ..

" 2d degree | 10 | 80 | 6 | 8 | ..

Receiving stolen goods | 11 | 42 | .. | 3 | 10

Robbery, 1st degree | 23 | 245 | 7 | 10 | 8

" 2d degree | 6 | 59 | 2 | 9 | 10

" 3d degree | 1 | 5 | 6 | 5 | 6

Seduction | 1 | 4 | 9 | 4 | 9

Sodomy | 3 | 29 | 1 | 9 | 8

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

Total | 550 | 2,845 | 7 | 5 | 2

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

Note.--In preparing the above table, the maximum terms of all

indeterminate sentences are computed, except in convictions of murder

in the second degree, in which the minimum terms of twenty years are

used. (Section 187. Penal Code.)

STATE PRISON--FEMALES

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

Offence | No. | Term of | Average Term

| | Sentence | of Sentence

| +-------+--------+-------+-------

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

Assault, 2d degree | 5 | 13 | 10 | 2 | 9

Grand larceny, 1st degree | 7 | 40 | 3 | 5 | 9

" " 2d degree | 7 | 23 | 8 | 3 | 4

Manslaughter, 1st degree | 1 | 7 | 5 | 7 | 5

" 2d degree | 1 | 13 | 6 | 13 | 6

Receiving stolen goods | 1 | 5 | .. | 5 | ..

Robbery, 1st degree | 1 | 3 | 6 | 3 | 6

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

Total | 23 | 107 | 2 | 4 | 8

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

This divergency of mental attitude accounts in part for the great curse

of the inequality of sentences. Two cases suggest themselves vividly as

examples.

A conductor on a surface car took the place of the motorman and

carelessly ran into a wagon, throwing out the driver, who died in

consequence. He was convicted of manslaughter in the _second_ degree

and sentenced to ten years in State's prison.

Another defendant who had killed a woman by cutting her throat and

hacking her up with a razor was convicted of the _first_ degree of the

same crime and sentenced to _the Elmira Reformatory_. Both defendants

were of approximately the same age. In each case the particular

sentence seemed just and fair to the judge who presided at the trial.

It was conscientiously imposed. Yet the thing speaks for itself.

It has sometimes been suggested that all sentences should be imposed

by all the judges sitting _en banc_. While this would entail great

labor and expense it would undoubtedly, if it were practicable, do

much to obviate the present unfortunate condition. Assuming that four

judges composed this sentencing board, the vote of the justice who had

presided at the trial might, by virtue of his greater familiarity with

the facts, be given a weight equal to that of the other three combined.

Had the two sentences just named been imposed by such a board it is far

from probable that they would have been inflicted in the same terms.

An effort has been made in the preceding pages to set forth some of

the failings of criminal justice on the part of the court which seem

open to honest criticism. The members of the bench themselves would

be the last to minimize the injustice of the inequality of sentences

which under our present system seems inevitable, and are continually

endeavoring to remedy it so far as possible. They also recognize

the fact that it is often difficult, if not out of the question, to

preserve in the face of overwhelming evidence an imperturbable serenity

of demeanor when the fact of the defendant's guilt is clear and the

details of his crime are revolting to every moral sense, and they are

equally ready to acknowledge that on occasion they may inadvertently

disclose their impression that while they may "let a case go to the

jury," the defendant should be acquitted. Judges are, after all,

but men, and to err is human. But there is hardly a judge upon the

bench who does not conscientiously strive to perform his duties in

such a way that justice may be secured in the manner provided by the

Constitution,--by leaving the jury untrammelled in their function of

determining upon the sworn evidence in the case the guilt or innocence

of the defendant. Finally it should be said that it is not the weak

but the strong judge that is most apt to transgress in this direction,

and that it is the strong judge who is most likely to serve the best

interests of the community. For the weak judge there is no place in the

administration of criminal justice. His presence upon the bench is an

incentive to crime and a reproach to his fellows.

FOOTNOTES:

[Footnote 35: Cf. "Light Sentences and Pardons," by Frederick Bausman,

39 American Law Rev. 727.]

CHAPTER XI

THE JURY

Is trial by jury successful in criminal cases? Certainly it is

popularly so regarded. Even lawyers and prosecutors will usually

agree that it "works substantial justice," but this does not answer

the question. In about three cases out of five "Judge Lynch" himself

works "substantial justice." The function of the jury is not to "work

justice" at all, but to decide a limited question of fact. They are

there for the purpose of determining the issue without prejudice on

the one hand or sympathy upon the other, and having no regard for the

consequences of their verdict; they must accept unquestioningly the law

from the judge upon every point and base their conclusions solely upon

the sworn evidence in the case. This they swear that they will do. Yet

they do not. Why? Is it want of intelligence, lack of regard for law,

or vital misconception of their function?

Certainly it is not from want of intelligence. There can be no question

as to the capability of the ordinary juryman to perform his duties.

The independent American is singularly adapted to just this form of

investigation. If the English be "a nation of shopkeepers," we are a

nation of natural cross-examiners. You will find fully as good verbal

fencing in a New England corner grocery store about mail time as you

will in most courts of justice. But the very innate capacity of the

native American to perceive the truth and get to the bottom of things,

leads him to believe that he knows equally well, if not better than

the judge, what ought to be done about it and what punishment, if any,

should be inflicted upon the defendant under the circumstances. It is

not that our jurors are incapable or uninterested, but, paradoxical as

it may seem, that they are too capable and too interested. They want to

be not only jurors, but district attorney, counsel for the defendant,

expert witness, and judge into the bargain.

Your shopkeeper in England makes a less intelligent, but a far more

satisfactory juror. There they will empanel a jury in a few moments in

a capital case, and so deeply implanted in the bosom of each juryman

is a respect for the law as such and an inherited reverence for the

judiciary, which its uniformly high character has done so much to

foster, that, provided the facts are sufficiently established, the sex

of the defendant, the condition of his or her family, the character of

the motive for the act, will not be the subject of discussion or even

of consideration in determining the verdict. It is enough that they are

sworn to decide the facts and the facts alone. They are told by the

judge what evidence they may consider, and what facts they _may not_

consider, and did they not obey his instructions they would receive the

severe censure of the public and the press.

There is an historical reason for this. In 1666, when a jury found a

verdict of manslaughter after having been instructed that the evidence

showed that it was murder, Kelyng, C.J., promptly fined them five

pounds apiece. On petition, he reduced it to forty shillings, "which

they all paid." In 1667 he fined eleven of the grand jury twenty pounds

apiece for refusing to indict for murder. The judges of the King's

Bench said he was quite right, adding, "and where a petty juror,

contrary to directions of the court, will find a murder manslaughter,

... yet the court will fine them" (King _vs._ Windham, 2 Keble,

180). For centuries it was the common practice to punish severely by

imprisonment, fine, and attainder juries who refused to convict on what

appeared to the court to be sufficient evidence. Perhaps Throckmorton's

case in 1554, when the jury acquitted the defendant of treason, is

the most famous illustration of this. The court committed the jury

to prison, eight being confined from April 17 to December 12, and on

their discharge fined them, some sixty and some two hundred and twenty

pounds apiece. The reasoning under the circumstances was obvious.

If a jury found a man guilty improperly, he could be pardoned, but

"if, having pregnant evidence, nevertheless, the twelve do acquit the

malefactor, which they will do sometime ... the prisoner escapeth...."

It is refreshing to observe that even English juries "will do [this]

sometime." All this naturally created, as it was designed to create, a

tremendous regard for the judge and his instructions.

There is at the present time little of this wholesome regard for law

in America. The jury realize that the judge's elevation to the bench

is often a matter of politics alone, and sometimes have comparatively

little respect for his character, learning, or ability. They frequently

feel by no means confident that the punishment will fit the crime, and

are anxious, so far as they can, to dispose of the case for themselves.

For example, in one case where three defendants were found guilty of

stealing in company a single article of value, the jury rendered a

verdict of grand larceny in the first degree against one, grand larceny

in the second degree against another, and petty larceny against the

third. They did this because of the varying ages of the defendants, but

in so doing obviously violated their oaths and usurped the functions of

the judge. Very likely "substantial justice" was accomplished.

There are hundreds of jurors who, having in all honesty taken the oath

to "a true verdict find," will, once in the jury-room, frankly turn to

their fellows and exclaim: "Oh, let him go! He's only a kid. Give him

another chance!" "Substantial justice," again at the expense of our

regard for law.

As an example of what may occur, the case of Rosa di Pietro, tried

for murder before the Recorder, in December, 1904, is illuminating.

The defendant was a young Italian woman of good repute charged with

shooting and killing her brother-in-law, who, the evidence clearly

showed, had endeavored to persuade her to yield to his desires. She

claimed to have shot him in self-defence. Her story was so obviously

a fabrication that no jury could have believed her, and must have

found (if they had considered the matter at all) that she pursued her

would-be seducer down the stairs and shot him in a dark hallway, as he

was leaving the building. A "special" jury of perfectly intelligent men

promptly acquitted her. The writer presumes that after this all the

Italian residents will get their wives to do their killing for them.

In a well-known case the jury found the defendant guilty of

manslaughter, instead of murder, because one of their number had read

that the prisoner had been a "Rough Rider" in the Cuban campaign.

After they had returned their verdict they learned that he had been

nothing of the kind.

The action of the New York County jury in a criminal case is right as

to the defendant's guilt or innocence about four times out of five,

but less frequently as to the appropriate _degree_ of crime.[36]

The percentage of proper verdicts differs, of course, in different

varieties of crime. In cases of common felony, such as larceny,

burglary, rape, robbery, arson, forgery, etc., it is usually high;

in homicides and gambling much lower; and in commercial frauds and

liquor-tax cases smaller still, the number of convictions being

inconsiderable. Making due allowance for the unconscious prejudices,

sympathies, and idiosyncrasies of mankind, we have still, as citizens,

a right to demand a far higher degree of accuracy in the verdicts of

our juries--to expect the murderer to be found guilty of murder and the

thief to be stigmatized as a thief. What is the explanation for this?

The fundamental reason for the arbitrary character of the verdicts of

our juries lies not in our lack of intelligence as a nation, but in our

small regard for human life, our low standard of commercial honesty,

our hypocrisy in legislation, our consequent lack of respect for law,

and the general misapprehension that the function of the jury is to

render "substantial justice"--a misapprehension fostered by public

sentiment, the press, and even in some cases by the bench itself, to

the complete abandonment of the literal interpretation of the juror's

oath of office.

The writer has heard judges from the bench congratulate juries upon

having rendered a "merciful verdict"! They are popularly expected "to

temper justice with mercy," "exercise a wise discretion," and "to

be moved to magnanimity." But the jurors who satisfy their emotions

at the expense of their honesty, and the judge who countenances the

performance, are worse law-breakers than the defendant himself.

We carry upon our statute books laws which we have no intention

of enforcing, and which, in our present state of development, are

actually unenforceable. Even law-abiding, law-loving, and (ordinarily)

conscientious jurors will become lawless when compelled to sit in a

case of this character. Thus while the three judges of Special Sessions

find guilty some sixty per cent of those brought before them for

violations of various phases of the liquor-tax law, a conviction by a

jury in the General Sessions is practically unheard of. The grand jury

have now reached the point where they practically refuse to indict

at all in liquor-tax cases.[37] Just as long as we have hypocrisy

in religion, in business, and in legislation, so long shall we have

hypocrisy in our courts of justice.

Of course, as we live in an age when violence is found inconvenient

and annoying, your jury naturally condemns by its verdict crimes of

a violent character, and will make but short work of highwayman and

thug. Burglars are unpopular both with the public and with the juror;

and it needs no burst of rhetoric to induce a jury to find a verdict

against a "firebug" or a "cadet." But once step into that class of

cases, the subject of which is commercial fraud, and the jury look

upon the prosecution with averted eye. Just so long as dishonesty of

one kind or another is openly countenanced in business, just so long

it will be practically impossible, except under unusual conditions, to

convict the fraudulent bankrupt or the retailer who has secured goods

and credit upon false representations. Mayhap there is upon the jury

some tradesman who has "padded" his own credit statement; some one who

has placed a fictitious valuation on his stock, or has told alluring

but unsubstantial stories as to his "orders on hand," "cash in bank,"

and "bills receivable." What chance under those circumstances of a

conviction?

"The jury, passing on the prisoner's life,

May have in the sworn twelve a thief or two

Guiltier than him they try."

"Why," says a juror, "here they are trying to convict this fellow

Einstein of what everybody does every day in the year. Rubbish! Am _I_

a thief! _I_ don't have any _criminal intent_. He was just tryin' to

boost his assets a little. He's no criminal." And out he goes to the

jury-room and persuades the other eleven that the defendant is no worse

than everybody. Of course, everybody isn't a thief. The syllogism is

irrefutable.

"I suppose you didn't believe that Mr. Einstein made those false

statements?" says the writer, approaching him as he steps into the

corridor. The juror pauses in lighting his cigar.

"_Sure_, he made 'em!" he remarks. "Of _course_ he _made_ 'em! But,

_H--l, he's no criminal_!" This is an actual experience.

Our distaste for physical violence has had a rather paradoxical result

so far as the jury is concerned, for it appears to be coupled with

a small (and what seems to be a decreasing) regard for human life.

Verdicts of murder in the first degree are exceedingly rare, and it

requires a crime of a peculiarly atrocious character to induce the jury

to send the defendant to the electric chair. This is due in part to

cowardice and in part to the misconception of their function already

dwelt upon, since in almost all murder cases the jury regard themselves

as fixing the penalty. Inasmuch as most persons who meet death from

violence are themselves of violent character, the jury frequently

seems to believe that the defendant is entitled to a certain amount of

consideration for ridding the community of his victim, and this often

finds joyful expression in a verdict of manslaughter.

Totally distinct, however, from this trifling with justice, whether

it be wilful or voluntary, is the unconscious bias of each member of

the human family due to race, religion, education, and character.

Hence jurors are examined with an elaborate care and minuteness of

investigation which in practice is often shown to be ridiculous. In

fact certain maxims having almost the force of legal doctrines have

grown up about the selection of a jury. A defendant's counsel will

invariably challenge an Irishman if his client be a negro, and vice

versa. This is likewise apt to be the case if the client be an Italian.

Talesmen with wives and children are generally supposed to be more

susceptible to arguments directed to their sympathies. Hebrews are

presumed to make particularly undesirable jurors for the defence where

the crime charged is one of violence or arson, and are likewise usually

challenged when the defence is self-defence. Old men are popularly

supposed to make indulgent jurors, although the writer's own experience

is to the contrary, and he has noticed that persons with long, drooping

mustaches are invariably excused. Neither side as a rule cares for

missionaries or persons engaged in philanthropic enterprises, since the

prosecutor feels instinctively that their eleemosynary tendencies will

extend to the prisoner, while the defence has a presentiment that they

will lead him to favor the damaged complainant. Writers, editors, and

publishers are generally excused by the defence as _too intelligent_,

_i.e._, too prone to theoretic arguments as distinguished from a "broad

view," which from the prisoner's standpoint means one including every

sympathetic reason that can be suggested. Artists are distrusted by

prosecutors as romantic and imaginative. Butchers, coffin-makers,

sextons, grave-diggers, undertakers, and dealers in electrical supplies

are invariably excused for obvious reasons by the defendant in homicide

cases. Liquor dealers are believed to be prone to take a lenient view

of the shortcomings of humanity in general, while persons of brisk,

incisive manners naturally suggest heartlessness to the cowering

defendant. The writer knows an assistant who will not try a case if

there is a man with a pompadour on the jury, and neither prosecution

nor defence cares for long-haired jurors of the "yarb doctor" variety,

while the dapper little man with the "dickey" and red necktie is

invariably excused by the defence unless the defendant be a woman.

The frivolous character of these rules needs no comment. Almost every

lawyer and every prosecutor believes himself to be a past master in the

study of character from external evidence, and upon the most trivial

and unnatural of pretexts will challenge a talesman so unfortunate as

not to suit his fancy. Yet when all is done and when, after the most

exhaustive examination and cross-examination of several hundred special

talesmen, wrenched from their places of business or the bosoms of

their families, twelve men have been finally selected and sworn, it is

probable that they are in no respect superior to the first twelve who

might have been chosen.

In murder cases each side may challenge peremptorily thirty talesmen,

and numerous are the legal "jumps" over which they must successfully

ride before they can qualify for service. Thus it is unusual in

a homicide case to select a jury in less than two days, and in

some instances it has taken two weeks. On the other hand, equally

satisfactory juries have occasionally been selected in such cases in

less than an hour.

The general futility of trying to secure a jury of particular capacity

or intelligence, or one which will contain no juror of pronounced

idiosyncrasies, is rather well illustrated by the following incident:

The defendant's counsel, a man of considerable repute at the criminal

bar, had spent over two days in the elaborate selection of a jury. It

had taken him two hours to get a foreman to his fancy, but at last he

had accepted a solid-looking old German grocer. After a trial lasting

several days the jury convicted the defendant in short order, greatly

to the disgust of the eminent lawyer, who vented his indignation rather

loudly in the presence of the foreman as he was leaving the box. The

old German leaned over good-naturedly and remarked, pointing to the

door in the back of the court-room leading to the prison pen: "Vell,

Mr. ----, if you vant to know vat I tinks, I tells you. Ven I see him

come in through dot leetle door back dere, den I _knows_ he's guilty!"

This lawyer now selects a jury in thirty minutes.

Of course, some examination into the general qualifications of jurors

and their possible bias in the case is imperative, and frequently

the interposition of a peremptory challenge is not only justifiable,

but absolutely necessary. A talesman will sometimes betray by an

inflection of his voice a sentiment or prejudice which his _words_

deny, or suggest to the vigilant counsel for the defendant the juror's

susceptibility to the insidious flattery of the prosecutor in making

him a part of the "organization of the court."

During the selection of a jury to try Moran, the dynamiter, in March,

1906, before Judge Foster, in the General Sessions, a little old man

took the stand who qualified satisfactorily as a juror so far as

the prosecution was concerned. Daniel F. Cohalan, attorney for the

defendant, then took him in hand somewhat as follows:

"Have you any prejudice against a man accused of crime?"

"I have not," replied the little old man.

"Or against this defendant?"

"I have not."

"Do you think you would make an absolutely fair and impartial juror?"

"I do."

"Do you know of any reason to the contrary?"

"I do not."

Cohalan turned to another line of examination.

"Do you read the papers?"

"Yes. Yes."

"What paper do you read?"

"What paper?"

"Yes. What paper do you read in the morning?"

The little old man settled himself in his chair and, eyeing Cohalan

suspiciously, replied:

"I read the _Herald_, _Times_, _World_, _Journal_, _Sun_, _Tribune_,

_Press_, _Staats Zeitung_, _Telegraph_----"

"Stop!" cried Cohalan feebly; "that's quite enough. Don't you do

anything but read the papers?"

The little old man regarded the lawyer scornfully.

"I spend six hours a day keeping myself informed of what is going on. I

flatter myself that there is nothing in the whole world with which I am

not fully acquainted. Knowledge is power!"

Cohalan collapsed into his seat.

"That is all. You are excused. You know too much for us!"

As the little old man shuffled off he whispered to the prosecutor:

"I'd have given the ---- twenty years!"

On the other hand, the hyper-sensitiveness of counsel renders it easy

for talesmen to escape who do not wish to serve. The writer knows an

estimable man who is regularly drawn about four times a year upon the

special jury. He has never served. His method is as follows: Having

taken his seat upon the witness-stand he wrinkles his forehead and

looks fiercely at the defendant. When asked if he has any objection

to capital punishment he thrusts out his under jaw and exclaims: "I

should _say not_! I think hangin's too good for 'em!" In reality he is

the mildest, the most sympathetic and the "easiest" of human beings.

Another observant talesman who appears periodically has learned, the

writer believes, his trick from the first. His stock reply to the same

question relative to capital punishment is, "I have _not_. I believe

in the Biblical injunction of 'an eye for an eye,' and 'a tooth for

a tooth,' and, 'Whoso sheddeth man's blood by man shall his blood be

shed.'" Needless to say, he leaves the stand with the same alacrity

as the other. Jurors readily enter into friendly relations with the

prosecutor and defendant's counsel, but rarely with any effect upon

their verdicts. In the first trial of Mock Duck, a Chinaman indicted

for murder, where the defence interposed was an alibi, to wit, that

the prisoner had been buying a terrapin in Fulton Market at the time

of the commission of the crime (whence the prosecutor claimed that it

was the case of a Mock Duck with a _mock turtle_ defence), a juryman

met the defendant's counsel during recess and told him that there was

no further need for him to call any more witnesses for the defendant,

as the jury "understood the situation perfectly." The lawyer took

the hint, and upon the reopening of court closed his case, feeling

sure of an acquittal or at least of a disagreement. When the jury had

retired the talesman in question made a long speech in favor of murder

in the first degree, and refused to vote for any other crime. Such

performances are rare. Of course, it not infrequently occurs that a

juror by his manner of asking questions shows plainly his state of

mind. The feelings of a prosecutor can be easily imagined when a juror

turns in disgust from one of the People's witnesses, or those of a

defendant's counsel when another, looking towards the prisoner, grinds

his teeth as the evidence goes in and ejaculates, "Brute!"

The jury offers a fertile field for the study of human nature, and

lawyers and prosecutors learn to look regularly for certain characters.

Of these may be mentioned the too officious juror who asks hundreds of

incompetent and irrelevant questions to which the lawyers are naturally

afraid to object, and whose inquisitiveness has to be curbed by the

court itself. Such a juror usually shows much conviction one way or

the other in the early stages of the case, and before he has heard

the evidence. Unfortunately his executive abilities usually fill the

balance of the jury with such disgust that to have a juror of this sort

on one's side is more of a misfortune than a boon.

Jurors of this variety frequently at inopportune moments interrupt

counsel during their addresses. In one case an aggressive talesman

broke in upon a burst of carefully prepared eloquence with the brutal

interrogation: "How about the _knife_?" The counsel stopped, bowed

to the juror, smiled, and said calmly: "Thank you, Mr. Smith, I'm

_glad_ you spoke of that. I am coming to it in a moment." The juror,

satisfied, leaned back contentedly, but the lawyer has not "come" to

the knife yet.

Practically the thing most desired by prosecutors and lawyers who are

both convinced of the justice of their cause is homogeneity of some

sort in the jury-box. Naturally antagonistic elements are undesirable,

and a wise selector of juries will try to get men of approximately

the same age, class in society, nationality, religion, and general

character. Of course, this is a difficult matter, but without a

friendly and helpful spirit among the jurors cases will result

frequently in disagreements. This is naturally less objectionable to

the defendant than to the People, for ordinarily it may be said that

"two disagreements are equivalent to an acquittal."

The common idea that juries are prone to leave their decisions to

chance, as by flipping a coin, or to act upon impulse, whim, caprice,

or from a desire to get away, is grossly exaggerated.

It was Pope who sang in the "Rape of the Lock":

"The hungry judges soon the sentence sign,

And wretches hang, that jurymen may dine."

Unfortunately, if the jury is hungry or exhausted and anxious to

dispose of the case, the defendant invariably gets the benefit of it.

The "wretches" don't "hang," but instead are turned out with a rush.

Instances of verdicts being determined by such considerations are in

fact rare.

Much of the seeming misguidedness of juries in criminal cases is due,

just as it is due in civil cases, to the idiosyncrasy, or the avowed

purpose to be "agin' the government," of a single talesman. In an ideal

community, no matter how many persons constituted the jury, provided

the evidence was clear one way or the other, the jury would always

agree, since they would all be honest and reasonable men. But just as a

certain portion of our population is mentally unbalanced, anarchistic,

and criminal, so will be a certain portion of our jurors. In addition

to these elements there will almost invariably be found some men upon

every panel who are so obstinate, conceited, and overbearing as to be

totally unfit to serve, either from the point of view of the people or

the defence. It is enough for one of these recalcitrant gentlemen that

eleven other human beings desire something else. That settles it. They

shall go his way or not at all.

The writer believes, therefore, that some allowance should be made for

the single lunatic or anarchist that gets himself drawn on about every

fifth jury, for if he once be empanelled a disagreement will inevitably

follow. This could be accomplished by reducing the number necessary for

a verdict to eleven.[38] Hundreds of juries have been "hung" by just

one man.[39] The trouble, as Professor Thayer points out, began a long,

long time ago in a case reported in the Book of Assizes in 1367.

"In another assize before the same justices at Northampton, the assize

was sworn. They were all agreed except one, who would not agree with

the eleven. They were remanded and stayed there all that day and the

next, without drink or food. Then the judges asked him if he would

agree with his associates, and he said never,--he would die in prison

first. Whereupon they took the verdict of the eleven and ordered him to

prison, and thereupon a day was given upon this verdict in the Common

Bench.

... And afterwards by assent of all the justices it was declared that

this was no verdict. It was therefore awarded that this panel be

quashed and annulled, and that he who was in prison be enlarged, and

that the plaintiff sue a new venire facias.... _Note, that the justices

said they ought to have taken the assize with them in a wagon until

they were agreed._"

How much happier would not only the eleven, but the twelfth juror, who

swore he would "die first," have been if, unanimity not being required,

they could comfortably have agreed to disagree and yet returned to

court and rendered a verdict.

A jury naturally tends to lean towards the defence--to let the accused

go if they can conscientiously do so; to find somewhere a reasonable

doubt as to the prisoner's guilt--and it is only because the cases

are so well sifted before they come to trial at all, and the wheat

separated from the chaff (the defendants in very weak cases being

frequently discharged on the recommendation of the district attorney

himself), that the percentage of acquittals is not vastly greater.

This natural feeling of sympathy for the accused makes it all the

easier for juries to be affected consciously or unconsciously by

considerations they have sworn to disregard. Then if the defendant be a

woman, or a poor man with a large family, or his crime has injured no

one's purse, or restitution has been made, or if the offence charged

is merely that of swindling by means of false representations as to

credit, or the defendant is very young or very old, or wears a clean

collar, or has an attractive personality, or, better, a beautiful

wife, he is turned out with a cheer.

"For twelve honest men have decided the cause,

Who are judges alike of the facts and the laws."

Yes, the jury system in criminal cases is a "practical success"--and

it "works substantial justice." It works the exact justice that we

want--the exact justice that we deserve. As we grow to have a greater

respect for human life and a higher regard for law and honesty, the

verdicts of our juries will continue to keep pace with our condition.

Then we shall want something better, and we shall have it. The day will

come when dishonesty in business will lead to the ball and chain as

assuredly as arson and rape. But the time is not yet.

Then juries will decide the issues submitted to them upon the evidence

alone, without prejudice or sympathy, in accordance with the laws

which they are sworn to uphold, without truckling to popular sentiment

or fear of newspaper disapproval; then they will allow the judge to

perform the functions vested in him by law without usurpation by their

verdicts; and will "true deliverance make" between the People on the

one hand and the defendant on the other. Then there will probably be no

need for juries--for there will be no criminals.[40]

FOOTNOTES:

[Footnote 36: This estimate does not apply to the actions of juries

outside of New York County. In other cities and in other states,

particularly in rural districts, the percentage of convictions is often

shockingly small.]

[Footnote 37: The following figures may be of interest to those readers

who are interested in the question of amending the laws governing the

sale of liquor:

In the year 1907, out of a total of 1,237 cases which came before the

Court of Special Sessions, there were 334 convictions, 7 pleas of

guilty, 223 acquittals, 18 discharges and 116 transfers to the General

Sessions. During the last eight years, out of a total of 7,416 cases,

there were 3,129 convictions, 244 pleas of guilty, 2,143 acquittals,

395 discharges, 361 demurrers allowed and 1,144 cases transferred,

on the defendants' motion, to General Sessions, to be tried under

indictment. During this period, very nearly half the cases have

resulted in convictions.

These cases were tried, as the reader is aware, by a bench of three

judges, who decide both law and fact. Compare this record with the

result of 91 transfers, taken as illustrative, from the Special to

the General Sessions in 1905. Of course, each case had to be taken

first before the grand jury. Eighty-four of these cases were summarily

dismissed by that body. In the remaining seven instances, indictments

were secured. Four of these seven defendants pleaded guilty, two were

acquitted by the jury, one was discharged on his own recognizance

and none were convicted. In other words, out of the whole bunch of

transfers, less than four per cent of the defendants were convicted, as

against nearly fifty per cent of convictions in the Special Sessions,

in all liquor-tax cases in the last eight years. In the same period,

out of a total of 1,241 cases presented to the grand jury, 987 were

dismissed by that body. Of the balance, viz., 254 in which indictments

were secured, 25 pleaded guilty, 36 were discharged on their own

recognizances, in 12 cases the bail was forfeited, and of the 181 cases

which actually were tried before juries, 165 defendants were acquitted

and 16 were convicted.

In 1906, out of 85 cases transferred, 79 were dismissed, and of the

remaining six, 5 defendants were acquitted and 1 was discharged. In

1907 there were 98 transferred and _all were dismissed_ by the grand

jury.

The significance of these figures becomes evident when it is realized

that the defendants whose cases are thus transferred are those who are

the actual holders of licenses. They can afford to pay for the services

of counsel, and their conviction is of vastly more importance to the

community than that of their hirelings who actually sell the liquor

over the bar. The barkeeper who violates the law and is caught, comes

to trial in the Special Sessions, either pleads guilty or is convicted,

and receives a fine which his employer promptly pays. The owner of the

saloon thereupon discharges the defendant from his service and secures

another barkeeper. This process can be continued indefinitely. But

when the owner himself is caught and convicted, he is either driven

out of business or has got to operate under another name. These are

the men who apply for and are apparently able to secure transfers of

their cases to the General Sessions, although any judge granting such

motions is, or, at least, should be, aware of what the practical result

of his action will be. The transfer of a liquor-tax case upon the order

of the judge sitting in Part I of the General Sessions is practically

tantamount to a dismissal of it.]

[Footnote 38: Whatever the actual origin of the number twelve for this

purpose there certainly lingered in olden times a feeling that it had a

sacred or foreordained character, and in Duncomb's Trials _per pais_,

the following illuminating explanation is to be found:

"And first as to their number twelve: and this number is no less

esteemed by our law than by Holy Writ. If the twelve apostles on their

twelve thrones must try us in our eternal state, good reason has the

law to appoint the number of twelve to try our temporal. The tribes

of Israel were twelve, the patriarchs were twelve, and Solomon's

officers were twelve. Therefore not only matters of fact were tried

by twelve, but of ancient times twelve judges were to try matters in

law, in the Exchequer Chamber, and there are twelve counsellors of

state for matters of state; and he that wageth his law must have eleven

others with him who believe he says true. And the law is so precise in

this number of twelve, that if the trial be by more or less, it is a

mistrial." (Cf. Thayer's Preliminary Treatise, as cited, p. 90.)]

[Footnote 39: Cf. "Criminal Law and Its Administration," by Robert

Earl, 2 Columbia Law Rev. 144.]

[Footnote 40: Many cases result in mis-trials owing to the sickness or

death of a single juror. In persecutions which it can be foreseen will

be long the swearing of an _extra juror_ would obviate this difficulty.

Cf. "Newspapers and the Jury," Clarence B. Smith, 17 Greenbag 223.]

CHAPTER XII

THE WITNESS

The probative value of all honestly given testimony depends, naturally,

first upon the witness's original capacity to observe; second, upon

the extent to which his memory may have played him false; and third,

upon how far he really means exactly what he says. This is just as

true of testimony in cases of so-called circumstantial evidence as in

cases where the evidence is direct, for the circumstances themselves

must be testified to by witnesses who have observed them, and the

authoritativeness of everything these witnesses have to say must lie in

their ability to see, remember, and describe accurately what they have

seen.

The subject of perjury is so distinct and far-reaching that it deserves

separate consideration. The crime is easy to commit and difficult to

establish by competent proof, for it is a highly technical offence

and one which juries seem to find it easy to condone. The brother or

friend of the accused has but to take the stand and swear to an alibi

and lo! he is free. The chance of detection is small in comparison with

the immediate benefit secured, while the temptation to swear falsely

must, at least in the case of the immediate family of the prisoner,

often be overwhelming. Where convictions for perjury are secured heavy

sentences are invariably imposed and a wholesome apprehension instilled

into the hearts of prospective witnesses, yet the amount of deliberate

false swearing in our criminal courts would be inadequately described

as shocking. To estimate its quantity would be difficult if not

impossible, for it varies with the character of the case and the nature

of the defence. When the latter is an alibi the entire testimony for

the prisoner is frequently manufactured out of whole cloth, and it is

probably not very wide of the mark to say that anywhere from a quarter

to seventy-five per cent of the testimony offered by the defendant's

witnesses _upon the direct point in issue_ in the ordinary run of

criminal trials is perjured.

Yet a careful scrutiny of even the honestly given testimony in such

cases gives rise to the belief that the amount of strictly accurate

evidence adduced is relatively small, so small as probably to stagger

the credulity of the layman and to give the lawyer ground for

reflection. It must be borne in mind, however, that this refers to

criminal trials only and to testimony of a character closely relevant

to the issue.

The first consideration is how far the witness was originally capable

of receiving correct impressions through his senses. Naturally this

depends almost entirely upon his physical equipment and the keenness

and accuracy of his general observation, both of which are usually

evidenced to a considerable degree by his appearance and conduct upon

the stand.

Children are proverbially observant, and make remarkable witnesses,

habitually noticing details which inevitably escape the attention of

their elders; while various classes of persons by reason of their

professional requirements are, of course, better qualified than others

to observe certain facts or conditions, as a gem merchant the shape and

cutting of a diamond, or a doctor the physical condition of a patient.

Witnesses are often honestly mistaken, however, as to their own ability

to observe facts, and will unhesitatingly testify that they could

hear sounds and discern objects at extraordinary distances. Lawyers

frequently attempt to induce aged or infirm witnesses to testify that

they could hear plainly what was said by the defendant, in an ordinary

tone, at a distance, say, of forty feet. The lawyer speaks in loud and

distinct tones during the preliminary examination, and then gradually

drops his voice to that usually employed in speaking, in the hope that

the witness will ask him to repeat the question. This ruse usually

fails by reason of the fact that the lawyer, in his anxiety to show

that the witness could not possibly hear the distance claimed, lowers

his voice to such an extent that the test is obviously unfair.

For similar reasons counsel often call upon such witnesses to state

the time by the clock which usually hangs upon the rear wall of the

court-room. A distinguished but conceited advocate, not long ago, after

securing an unqualified statement from an octogenarian, who was bravely

enduring cross-examination, that he "saw the whole thing as if it had

occurred ten feet away," suddenly challenged him to tell the time by

the clock referred to. The lawyer did not look around himself, as he

had done so about half an hour before, when he had noticed that it was

half after eleven. The old man looked at the clock and replied, after

a pause, "Half-past eleven," upon which the lawyer, knowing that it

must be nearly twelve, turned to the jury and burst into a derisive

laugh, exclaiming sarcastically, "That is _all_," and threw himself

back in his seat with an air of having finally annihilated the entire

value of the witness's testimony. The distinguished practitioner,

however, found himself laughing alone. Presently one of the jury

chuckled, and in a trice the whole court-room was in a roar at the

lawyer's expense. The clock had stopped--at half-past eleven.

The professional actor upon the stage presents the _illusion_ of nature

by exaggerating those details of action which ordinarily would escape

the attention of the observer.

In daily life we are quite as likely as not to be deceived by what we

have seen, and this fact is so familiar to jurors that they are apt

to distrust witnesses who profess to have seen much of complicated

or rapidly conducted transactions. They want the main facts stated

convincingly. The rest can take care of themselves. The extraordinary

extent to which the complex development of modern life has dwarfed

our powers of observation is noticeable nowhere more markedly than

in the court-room. Things run so smoothly, transportation facilities

are so perfect, specialization is carried to so high a degree, and

our whole existence goes on so much indoors, that it ceases to be a

matter of note or even of interest that the breakfast is properly

cooked and served, that we are whisked downtown (a little matter say

of five miles) in ten or twelve minutes, that we are shot up to our

offices through twenty floors in an electric elevator, that there is a

blizzard or a deluge, or that part of Broadway has been blown up or

a fifteen-story building fallen down. We pass days without paying the

remotest attention to the weather, and forget that we have relations.

Instead of walking home to supper, pausing to talk to our friends by

the way, we drop into the subway, bury ourselves in newspapers, and are

vomited forth almost without our knowing it at our front doorsteps. The

multiplicity of detail deprives us of either the desire or the capacity

to observe, and we cultivate a habit of not observing lest our eyes

and brains be overwhelmed with fatigue. Observation has ceased to be

necessary and has taken its place among the lost arts.

Compare the old days when a Greek could go to hear the "OEdipus,"

and on returning home could recount practically the whole of it from

beginning to end for the benefit of the wife, who was not allowed to

go herself, or even the comparatively recent period when the funeral

oration over Alexander Hamilton could be reported in the "Evening Post"

_from memory_.

Much the more difficult problem, however, is to determine how far the

witness is the victim of his memory and is unconsciously confusing fact

with imagination, or knowledge with belief. It is a matter of common

experience that almost all cases are stronger in court than they give

the impression of being when the witnesses are first examined in the

private office. Time and again, cases which in the beginning have

seemed hopeless to prosecute have resulted in verdicts of conviction,

and defences originally so fragile as to appear but gossamer have

returned many a defendant to his despairing family.

The reason is not far to seek. Witnesses to the events leading up to a

crime are acquainted with a thousand details which are as vivid, and

probably more vivid, to them than the occurrence in regard to which

their testimony is actually desired. It may well be that the immaterial

facts are the only ones which have interested them at all, while their

knowledge of the criminal act is relatively slight. For example, they

_know_, of course, that they were in the saloon; are _positive_ that

the complainant and defendant were playing cards, even remembering

some of the hands dealt; are _sure_ that the complainant arose and

walked away; _have a very vivid recollection_ that in a few moments

the defendant got up and followed him across the room; are _pretty

clear_, although their attention was still upon the game, that the two

men had an argument; and _have a strong impression_ that the defendant

hit the complainant. In point of fact, their evidence is really of far

_less_ value, if of any at all, in regard to the _actual striking_

than in regard to the events leading up to it, for at the time of the

blow their attention was being given less to the participants in the

quarrel than to something else. Their ideas are in truth very hazy as

to the latter part of the transaction. However, they become witnesses,

pronouncing themselves ready to swear that they saw the blow struck,

which is perhaps the fact. Their evidence is practically of no value

on the question of justification or self-defence. But finding, on

being examined, that their testimony is wanted principally on that

aspect of the case, they naturally tell their entire story as if they

were as clear in their own minds upon one part of it as another. Being

able to give details as to the earlier aspect of the quarrel, they

feel obliged to be equally definite as to all of it. If they have an

idea that the striking was without excuse, they gradually imagine

details to fit their point of view. This is done quite unconsciously.

Before long they are as glib with their description of the assault

as they are about the game of cards. They get hazy on what occurred

before, and overwhelmingly positive as to what occurred towards and

at the last, and on the witness-stand swear convincingly that they

_saw_ the defendant strike the complainant, exactly how he did it,

the words he said, and that the complainant made no offer of any sort

to strike the defendant. From allowing their minds to dwell on their

own conception of what _must_ have occurred, they are soon convinced

that it _did_ occur in that way, and their account flows forth with a

circumstantiality that carries with it an irresistible impression of

veracity.

The witness remembers in a large proportion of cases what he _wants_ to

remember, or believes occurred. The liar with his prepared lie is far

less dangerous than the honest, but mistaken witness, or the witness

who draws inadvertently upon his imagination. Most juries instinctively

know a liar when they see and hear one, but few of them can determine

in the case of an honestly intentioned witness how much of his evidence

should be discarded as unreliable, and how much accepted as true.

The greatest difficulty in the trial of jury cases so far as the

evidence is concerned lies in the fallibility of the human mind, and

not in the inventive genius of the devil. An old man who combines a

venerable appearance with a failing memory is the witness most to be

feared by either side.

In a recent case a patriarch of some eighty-five years positively,

convincingly, and ultra-dramatically identified the defendant as a man

who had knocked him down and robbed him of a ring. The identification

was so perfect that on the evidence of this aged witness alone the jury

convicted the defendant after but a few moments' deliberation. He was

sentenced to ten years in State's prison, although he denied vehemently

that he had ever _seen_ the complainant. As he was being led from

the bar, the real criminal arose among the audience and gave himself

up, stating that he could not sit by and see an innocent man receive

_so great_ a punishment. The inference was, that had the sentence

been lighter his conscience would not have pricked him sufficiently

to sanction his act of self-sacrifice. In cross-examination lies the

only corrective of this sort of specious testimony, but it would be

manifestly inadequate to prevent injustice in such an instance as

that just described. Juries must and do take the evidence of most

well-intentioned witnesses with a grain of salt.

Both men and women habitually testify to facts as actually occurring on

a specific occasion because they occurred on most occasions:

_Q._ "_Did_ your husband _lock_ the door?"

_A._ "Of course he did."

_Q._ "How do you know?"

_A._ "He _always_ locks the door."

Witness after witness will take the stand and testify positively that

certain events took place, or certain acts were done, when in point of

fact all they can really swear to is that they usually took place or

usually were done:

_Q._ "Did he put on his hat?"

_A._ "Certainly he did."

_Q._ "Did you _see_ him?"

_A._ "No, but he _must_ have put on his hat _if he went_ out."

And the probability is that the whole question to be determined was

whether or not "_he_" _did go out_ or stay in.

The layman chancing to listen to a criminal trial finds himself gasping

with astonishment at the deluge of minute facts which pour from the

witnesses' mouths in regard to the happenings of some particular day

a year or so before. He knows that it is humanly impossible actually

to _remember_ any such facts, even had they occurred the day before

yesterday. He may ask himself what he did that very morning and be

unable to give any satisfactory reply. And yet the jury believe this

testimony, and because the witness swears to it it goes upon the record

as evidence of actual knowledge. In ninety-nine cases out of a hundred

counsel's only recourse is to argue to the jury that such a memory is

impossible. But in the same proportion of cases the jury will take

the oath of the witness against the lawyer's reasoning and their own

common-sense. This is because of the fictitious value given to the

witness's oath by talesmen who attach little significance to their own.

"He _swears_ to it," says the juryman, rubbing his forehead. "Well,

he _must_ remember it or he wouldn't swear to it!" And the witness

probably thinks he _does_ remember it.

Yet who of us could state with certainty the guests at a particular

dinner six months ago? Or the transactions of a morning only a week

ago, with any accuracy as to time? What the witness frequently does

is to discuss the matter with his friends who were present on the

occasion in question, and, as it were, form a sort of "pool" of their

common recollections, impressions, and beliefs. One suggestion corrects

or modifies another until a comparatively lucid and logical story is

evoked. When this has been accomplished the witness mentally exclaims:

"Of course! That was just the way it was! Now I remember it all!" The

time is so distant that whatever the final crystallization of the

matter may be, it is far from likely that it will thereafter be shown

to be inaccurate by any piece of evidence which will present itself

to the witness and his friends. The account thus developed by mutual

questions and "refreshing" of each other's recollection becomes, so

far as the parties to it are concerned, _the fact_. The witness is

now positive that he did and said exactly so and so, and nothing will

swerve him from it, for inherently there is nothing in the story or

its make-up that affords any reason for questioning its accuracy. This

story repeated from time to time becomes one of the most vivid things

in the witness's mental experience. He repeats it over and over, is

cross-examined by his own attorney upon it, incorporates it in an

affidavit to which he swears, and when he takes the stand recounts

these ancient happenings with an aggressiveness and enthusiasm that

bring dismay to the other side.

But what a farce to call this recollection! What is this circumstantial

romance when it comes to be analyzed? Jones, a friend of Smith the

prospective witness, is anxious to establish an alibi, and asks Smith

if he doesn't remember meeting him in the club on February 12, two

years before. Smith has no recollection of it at all, but Jones says:

"Oh, yes, you were going to the theatre with Robinson." Of course,

if Jones is so sure, Smith naturally begins to think it is probably

the fact, and he does remember vaguely that he and Robinson spent an

evening together. So he consults his diary and finds it recorded there

that he did attend the theatre on the day in question with Robinson.

He does not remember the play, but Robinson recalls that it was "The

Chinese Honeymoon," and believes that they dined together first at

the club. Smith now thinks he remembers this himself. Then Robinson

suggests that they probably went to the theatre in a cab. They look

in a file of old papers and find that it was raining. That settles

it--of _course_, they went in a cab. The next question is the hour.

They have no recollection of being late, so they must have arrived on

time. Well, the paper says the play commenced at eight, and it takes

a cab about twenty minutes to get from the club to Daly's Theatre, so

it is reasonably clear that they must have started a little before

eight. Smith unconsciously is persuaded to believe that if Jones was

right about their going to the theatre, he _must_ also have been in

the club at the time he says he was there. Both he and Robinson recall

that Jones was always hanging round the club two years ago, and as

neither can remember an evening when he wasn't there, they decide he

must have been there _that_ night. Robinson has a dim recollection that

they had a drink together. That is a pretty safe guess and has all

the air of verisimilitude. In an hour or two Smith is ready to swear

positively from _recollection_ that he dined with Robinson at the club

on February 12 two years ago, met Jones, had a drink with him, that

this occurred at seven fifty-five, that it was raining, that they took

a cab, etc., etc. In its elements this testimony is entirely hearsay

upon the only vital point, _i.e._, Jones's presence in the club at

that time, and the immaterial remainder is made up of equal parts of

diary, newspaper, play-bill, weather report, usual custom, reliance

on Robinson's alleged recollection, and belief in Jones's innocence.

He has practically no actual memory of the facts at all, and the only

thing he really does remember is that a long time ago he did attend

some theatre with Robinson.

The common doctrine of what is known as "refreshing the memory"

in actual practice is notoriously absurd. Witnesses who have made

memoranda as to certain facts, or even, in certain cases, of

conversations, and who have no independent recollection thereof, are

permitted to read them for the purpose of "refreshing" their memories.

Having done so, they are then asked if they _now_ have, _independently

of the paper_, any recollection of them. In ninety-nine cases out of a

hundred it would be absolutely impossible for them really to _remember_

anything of the sort. They read the entry, know it is probably

accurate, and are morally convinced that the fact is as thereon stated.

They answer _yes_, that their recollection _has_ been refreshed and

that they now do remember, and are allowed to testify to the fact as of

their own knowledge. In most instances they do not clearly understand

the distinction they are called upon to draw between actual independent

recollection and a strong belief on their own part that the fact must

be as recorded. It is the exceptional witness indeed who makes any

such distinction.

There are also many cases where a defendant has been put in jeopardy

because some one, remembering that he _intended_ to do an act, becomes

convinced that he _has_ done so, to the extent of being willing to

swear thereto. No better illustration of this kind of error could be

given than the disappearance of the famous necklace of a prominent

resident of Newport during the summer of 1904. There lives hardly a

family which has not frequently had such an experience. Some night the

husband can't find his pearl shirt-studs. He knows he had them on the

evening before. The hue and cry is raised. Maledictions are called down

upon Anna or Delia or Nora. But the studs are not in the shirt. Their

owner swears he left them there. Then Delia tremblingly suggests that

"master dined in his ordinary clothes last evening," and he realizes

that it was so late when he got home that at the last minute he decided

not to change. Amid great excitement the studs are located in the

bureau drawer where they belonged.

The final question to be determined by the juror in regard to the

testimony of any witness is how far the latter has succeeded in

conveying his actual recollections through the medium of speech and

gesture. This necessarily depends upon a variety of considerations.

Among these are his familiarity with the English language; inadvertent

accentuation of wrong words or of the less important features of his

testimony; his physical condition, which in nine cases out of ten is

one of extreme nervousness and timidity, if not of actual fear; and a

hundred other trifling, but, in the aggregate, material matters.

The most effective testimony is that which is given with what the

jury regard as the evidences of candor. It is a familiar fact that

the surer a person is of anything, particularly among the laboring

classes, the more loudly will he assert its truth. This is so well

known to the jury as ordinarily constituted that unless testimony is

given with positiveness it might as well not be given at all. Much

as it is to be deprecated, an assertive lie is of much more weight

with a jury than an anemic statement of the truth. The juror imagines

himself telling the story, and feels that if he were doing so and his

testimony were true, he would be so convincing that the jury could

have no doubt about it at all. Ofttimes a witness leads the jury to

suspect that he is a liar simply because he has too strong a sense of

the proprieties of his position vehemently to resent a suggestion of

untruthfulness. The gentleman who mildly replies "That is not so" to a

challenge of his veracity, makes far less impression on the jury than

the coal-heaver who leans forward and shakes his fist in the shyster's

face, exclaiming: "If ye said that outside, ye little spalpeen, I'd

knock yer head off." "Ah," say the jury, "there's a _man_ for you."

Just as your puritan is at a disadvantage in an alehouse, and your

dandy in a mob, so are the hyper-conscientious and the oversensitive

and refined before a jury. The most effective witness is he whom the

general run of jurors can understand, who speaks their own language,

feels about the same emotions, and is not so morbidly conscientious

about details that in qualifying testimony he finds himself entangled

and rendered helpless in his own refinements. A distinguished lawyer

testifying in a recent case was so careful to qualify every statement

and refine every bit of his evidence that the jury took the word of a

perjured loafer and a street-walker in preference. This kind of thing

happens again and again, and the wily witness who thinks himself clever

in appearing overdisinterested is "hoist by his own petard." The jury

at once distrust him. They feel either that he is making it all up, or

is in fact not sure of his evidence, else, they argue, he would be more

positive in giving it.

Most witnesses in the general run of criminal cases have no

comprehension of the meaning of words of more than three syllables. It

is hopeless to make use of even such modest members of our national

vocabulary as "preceding," "subsequent," "various," etc. A negro when

asked if certain shots were _simultaneous_ replied:

"Yas, boss. Dat's it! 'Zactly simultaneous! One _right_ after de odder."

The ordinary witness usually says "minutes" when he means "seconds." He

will testify without hesitation that the defendant drew his revolver

and immediately shot the complainant, illustrating on the stand the

rapidity of the movement. When asked how long it took, he will answer:

"Oh, about two or three minutes."

A proper medium in which to converse between the lawyer and witness

is sometimes difficult to find, and invariably much tact is required

in handling witnesses of limited education. The writer remembers

one witness who was completely disconcerted by the use of the word

"cravat," and at the precise moment the attorney was so confused as

not to be able to remember any synonym. The Tenderloin and the Bowery

have a vocabulary of their own differing somewhat from that of beggars

and professional criminals. The language of the ordinary policeman is

a polyglot of all three. Popular writers on the "powers that prey,"

and dabblers in criminology in general, are apt to become the victims

of self-alleged "ex-convicts" and "criminals" who are anxious to sell

unreliable information for honest liquor. A large part of the lingo

in realistic treatises on prison life and "life among the burglars,"

originates in the doped imagination of whatever fanciful "reformed"

thief happens to be the personal gold mine of that particular author.

Thieves, like any distinct class, make use of slang, some of which is

peculiar to them alone. But for the most part the "tough" elements in

the community make themselves easily understood either in the office or

on the witness-stand.

Where the witness speaks a foreign language the task of discovering

exactly what he knows, or even what he actually says, is herculean.

In the first place interpreters, as a rule, give the substance--as

they understand it--of the witness's testimony rather than his exact

words. It is also practically impossible to cross-examine through an

interpreter, for the whole psychological significance of the answer is

destroyed, ample opportunity being given for the witness to collect

his wits and carefully to frame his reply. One could cross-examine a

deaf-mute by means of the finger alphabet about as effectively as an

Italian through a court interpreter, who probably speaks (defectively)

seventeen languages.

The reader might perhaps conclude from what has been said that the

action of the ordinary jury in most cases must be founded simply upon

shrewd guesswork. To a certain degree this cannot be denied, and it

is equally true that all the delicate processes of the human mind,

and the shadowy presences there of intent, motive, and recollection,

can never be demonstrated save by inference. Our machinery is crude

indeed. Ofttimes it is like trying to dissect a butterfly with a pair

of pincers, and the wonder is that the jury are able to get at the

truth as frequently as they do. Hence the necessity for the advocate

to assist the jury and remedy their ignorance of the psychology of

testimony by his own observation, knowledge, and experience. With the

jury keenly alive to all the possibilities of error in the testimony

of even the most honest of witnesses, it is for the advocate, the

psychologist of the law, to test by his cross-examination and

demonstrate in his summing up the precise probative value of the

evidence, frequently revealing, below an apparently limpid stream of

truth, a turbid bed of conjecture, assumption, belief, hearsay, and

inaccuracy of expression, with the rank weeds of perjury growing just

beneath the surface.

CHAPTER XIII

THE VERDICT

The judge having delivered his charge, and the jury having gathered

up their collection of miscellaneous garments and retired to the

jury-room, a court officer claps the prisoner upon the shoulder and

leads him away to the prison pen. Once the door of the court-room has

closed behind him, he is conducted along a narrow corridor to the

head of a flight of iron steps at the foot of which stands a keeper.

As he descends the stairs the attendant notifies the keeper that the

defendant is on his way down: and once the latter is safely below the

keeper shouts "All right!" to the officer above, who returns once more

to his duties in the court-room. Since there is little danger of an

escape the officers sometimes become a trifle lax in the handling of

prisoners awaiting the verdict.

An incident recently occurred which shows how much care is necessary in

guarding a defendant who confidently expects a verdict of conviction.

At the conclusion of a trial for grand larceny the jury went out and

the prisoner was conducted to the head of the stairs leading down

to the pen. The court officer notified the keeper when the prisoner

was about half-way down, and distinctly heard the latter reply "All

right!" He thereupon departed. The keeper, however, had not uttered a

syllable and was entirely unaware of the return of the defendant, who,

being something of a ventriloquist, had answered for him, and had then

calmly reascended the stairs, passed through the corridor to another

court-room where he had mingled with the crowd, and later had had no

difficulty in making his escape first into the main corridor and thence

into the street. When the jury presently returned and the prisoner was

sent for, his flight was discovered. The court waited patiently while

the pens, corridors and finally the entire building were searched, but

without disclosing a trace of the prisoner. Meanwhile the jury, who

had found the defendant guilty, wondered why their verdict was not

received. According to law, however, all the proceedings incident to

a trial for felony up to and including the rendition of the verdict

must take place in the presence of the prisoner, and in this case his

voluntary absence compelled the court to declare a "mistrial." When it

became evident that the defendant was unlikely to return, terrible was

the humiliation of the court officers, who, for a few days, lived in

terror of losing their official heads, if not of being imprisoned and

fined for contempt.

The prisoner's wife, however, had been present throughout the trial in

the court-room, although, as his escape was entirely extemporaneous,

she was as much surprised as anybody else at his departure. After the

discharge of the jury several detectives followed her to her home

in Hoboken. Late in the evening she left the house in response to a

message and met her husband in a deserted part of the city, where he

was recaptured. He was immediately brought back to New York and his

case placed once more on trial; but this time he pleaded guilty. From

a dramatic point of view it is to be regretted that the jury at the

first trial had not found a verdict of "not guilty."

As the first talesman who happens to be selected for the jury in

any given case becomes _ipso facto_ its foreman, amusing incidents

sometimes occur owing to his inexperience. Where an indictment contains

but a single count, as, for example, "receiving stolen goods," the

foreman's answer to the clerk's interrogation of, "Do you find the

prisoner guilty or not guilty," is, of course, simple enough; he

answers "guilty" or "not guilty," or "not guilty, with a recommendation

to the mercy of the court"; but where the indictment contains either

a number of counts set forth separately, or the crime charged is of

such a character that the jury may find in a lesser degree, some

confusion is apt to result. If, for example, a defendant is being tried

for murder in the first degree the court is obliged to submit, under

the law, not only murder in its first degree, but the lesser crimes

of murder in the second degree, manslaughter in the first degree,

manslaughter in the second degree and occasionally assault in one or

more degrees. Sometimes the foreman forgets entirely what he was going

to say and stands staring, open-mouthed, until the clerk comes to his

assistance.

In a case where the court charged the jury that they could find the

defendant guilty of murder, manslaughter, or assault, or else acquit

him on the ground that he was justified in taking the life of the

deceased, the jury retired and deliberated for many hours. As the time

dragged on the defendant became convinced that he was to be convicted.

Late at night the jury informed the court that they had agreed upon

a verdict. They filed back and took their places in the box. The

defendant was arraigned, pale with apprehension. The clerk arose.

"Gentlemen of the jury," said he, "have you agreed upon a verdict?"

"We have," replied the foreman.

"The jury will rise," continued the clerk. "The defendant will rise."

The jury and prisoner arose.

"Jurymen, look upon the prisoner. Prisoner, look upon the jury,"

continued the clerk, and turning to the foreman, "How say you? Do you

find the defendant guilty or not guilty?"

"Guilty," stammered the foreman.

The defendant uttered a loud groan and collapsed into the arms of the

court attendant beside him.

"_Of justifiable homicide_," hastily added the inexperienced foreman.

In spite of the laughter of the rest of the jurymen and the smiles of

the court it took some moments to convince the unnerved prisoner that

he was not to be electrocuted.

In a recent case the jury returned a verdict of "_Pretty nearly

guilty_!"

A very considerable proportion of jury trials in criminal cases

result in disagreements. The question of reasonable doubt is always

a troublesome one, and even where all the jury believe the defendant

guilty, as likely as not half of them will not think that they are

convinced beyond what they regard as a reasonable doubt. On this

account many jurors are of the opinion that what is known as a Scotch

verdict, or a verdict of "Not proven," should be allowed. The writer

has been informed on good authority that in one of the recent trials

of Nan Patterson eleven of the twelve jurymen believed her guilty, but

that only six of them were of the opinion that they were so convinced

beyond a reasonable doubt. Had the Scotch verdict been permissible

it would probably have been rendered in this case. Inasmuch as the

ordinary American petit jury are apt to go outside the evidence and to

decide the issue, in some degree at least, on evidence which properly

they should not consider at all, no further loopholes of escape from

rendering a verdict one way or the other should be afforded them.

Had we the Scotch verdict, instead of disagreeing and giving the

prosecution the opportunity to try the defendant over again, juries

would probably make use of it in all cases where they disliked to

render a verdict in accordance with the evidence.

Juries frequently incorporate with the verdict of guilty the words

"with a recommendation to mercy." Of course this is no part of the

verdict and has no legal effect whatever. It is merely a formal

expression of opinion that in the eyes of the jury it would be well

for the court to treat the defendant with leniency. The judge usually

comments upon this recommendation and intimates that he will give

it consideration in imposing sentence. It is not likely, however,

that in any case which has appealed to the sympathies of the jury

the court will not be equally moved. In point of fact, did juries

fix the sentence in cases where they found the defendant guilty it

is exceedingly probable that they would be much more severe than

the bench. Most jurors, however, are under the impression that "a

recommendation to mercy" is an integral part of their verdict and

it frequently does yeoman's service by inducing a juror or two who

have a lingering feeling that perhaps the crime has not been as fully

proven as it might have been, or that maybe the defendant is not

guilty after all or should be given another chance, to agree with the

majority of their fellows. The writer had one panel of jurors in the

General Sessions which, having returned a verdict of guilty "with a

recommendation to mercy" in the first case tried during the month,

affixed the same recommendation to each verdict which they rendered

thereafter. It is his impression that they convicted every prisoner who

came before them, so that the recommendation must in many cases have

seemed to the hapless defendant but a hollow mockery. There is even a

traditional case where a jury in a murder trial found the defendant

guilty of murder in the first degree, "with a strong recommendation to

the mercy of the court."

Verdicts of murder in the first degree are comparatively rare and are,

practically, only to be expected when the circumstances surrounding

the crime are peculiarly atrocious. It is also a well-known fact that

juries rarely find a verdict in a degree of crime higher than the

one for which the majority vote upon the first ballot. For example,

if on the first ballot the jury stands five for murder in the first

degree, six for murder in the second degree and one for manslaughter

only a miracle could account for a final verdict of murder in the

first degree. In other words, a jury will almost never work _up_ their

verdict, argument invariably tending to work them _down_ to a lesser

degree. Most cases of what is technically murder in the first degree

result in verdicts of murder in the second degree, and most cases of

murder in the second degree result in verdicts of manslaughter.

The jury having rendered a verdict of conviction, say of murder in the

first degree, there remains to counsel but one last act which he can

perform in his client's behalf, namely, to demand that the jury be

polled. This must be done upon the requirement of either the defendant

or the People, in which case, "they must be severally asked whether it

is their verdict; and if any one answer in the negative, the jury must

be sent out for further deliberation." The writer has never heard of a

jury which, on being polled, showed a disagreement. It is not unusual,

however, as the roll is called to see various members of the jury look

apprehensively towards one of their number who has evidently put up

in the jury-room a hard fight for a lesser degree and may be "of the

same opinion still." A prosecutor always breathes more freely when

the ordeal is over, and probably experiences during the process very

much the same kind of emotion as that felt by the bride-groom at the

altar as he listens apprehensively at the conclusion of the clergyman's

announcement that "if any one has any just cause, etc., let him now

speak or forever hold his peace."

Defendants who are convicted rarely show any emotion when receiving

the verdict. This is of course to be expected, as the defendant, if

guilty, has probably been anticipating that he will be so found by the

jury, and has steeled himself for the occasion, while an innocent man

is practically never convicted. Hundreds of defendants, however, who

confidently expect to be convicted, are acquitted through the leniency

of the jury. Their exclamations of gratification and joy upon such

occasions are frequently most amusing. Such a defendant not seldom

thanks the court and the jury for their kindness, and in some cases

his thanks are certainly due to those who have violated the letter and

spirit of their oaths in acquitting him. The writer recalls one old

colored mammy who, on being acquitted of stealing some wash which had

been confided to her care, curtsied in all directions and remarked, "Ah

t'anks your honor, an' Ah t'anks your Honors, gen'lemen ob de jury, one

an' all." An Irishman, who had been but a few weeks in this country,

and who had been acquitted on the charge of stealing a truck and horse

which had been left in his charge, on learning of his acquittal invited

the jury collectively in a loud voice to come across the street and

have a drink.

Before the jury is discharged, however, and the prisoner remanded to

the Tombs for sentence, he is required to answer certain questions

relative to his age, parentage, education, previous convictions, etc.

If the spectator is fortunate enough to be able to forget the solemnity

of what has taken place, he may well be entertained, not only at the

answers given by the defendant, but at the method of conducting the

examination by the court officer. The clerk takes the indictment

and, with a large rubber die, stamps upon it the statement that the

defendant, on being arraigned, made answer to the questions put to him,

as follows:

Counsel Assigned ............................................

Sex .........................................................

Age .........................................................

Nativity ....................................................

Residence ...................................................

Occupation ...................................................

Married or Single ............................................

Education ....................................................

Religious Instruction ........................................

Parents Living ...............................................

Temperate or Intemperate .....................................

Before Convicted .............................................

Of course, the court officer who repeats the prisoner's answers to the

clerk is usually so familiar with the order of the questions as to

render any vocal action upon the part of the clerk unnecessary. The

officer stands by the prisoner and, leaning over, asks in a low tone

how old he is, if his parents are living, if he is addicted to the use

of liquor, if he has had any religious instruction, or if he has been

previously convicted of crime. It is really the officer to whom the

defendant makes his replies, the former repeating them in a loud voice

to the clerk. In some courts the clerk does not put the questions at

all, but the officer merely gives in their order the answers of the

defendant. For example, in Part II, upon the rendition of a verdict one

will see Mr. Samuel Wolff, the clerk, stamp the indictment, dip his pen

in the ink, turn to the officer of the court and say, "All ready?"

The officer answers, "Yes."

A subdued conversation then takes place between the prisoner and the

officer, who raises his voice and answers:

"Twenty-nine;--U.S.--No;--None;--Single--Yes;--No.--" All of which

answers are properly recorded opposite the appropriate questions upon

the indictment.

All this is a little startling to the juror who has rendered his

first verdict. He has no idea at all of what is going on. The officer

returns, if possible, a categorical reply to each question, but

frequently prisoners make statements which are of course irrelevant in

character and are not incorporated in the answer. At times it requires

quite a little cross-examining on the part of the officer to determine

whether or not the defendant _is_ temperate or intemperate, or whether

he _has_ really ever been convicted of crime theretofore. Any one who

could overhear these colloquies would be well repaid for his trouble.

The writer knows of one officer of a somewhat waggish disposition who,

when he approaches the interrogation directed towards the prisoner's

usual habits, first puts the question in its proper form:

"Are you temperate or intemperate?"

The prisoner, who perhaps does not understand these terms, or, at any

rate, is a little doubtful himself as to his usual condition, stammers

and hesitates. The officer, dropping his voice, remarks, confidentially:

"Say, do you ever take a drink?"

"Sure," says the defendant, without hesitation.

"_Moderate_," shouts the officer to the clerk.

A certain element of humor enters into the situation when a defendant

convicted of bigamy is asked if he is married. The answer "Yes" is

generally accompanied by an irrepressible grin.

There used to be an old court officer in one of the parts of the

General Sessions a few years ago who was a loyal son of Old Erin and a

devout member of the Roman Church.

On one occasion, a defendant having been found guilty he was arraigned

at the bar for the purpose of having his pedigree taken, old Flaherty

officiating. The conversation which ensued may be worth preservation.

Flaherty to Defendant: "Say, me friend, where was ye born?"

Defendant to Flaherty: "_Lowell, Mass._"

Flaherty to Clerk: "Lowell, Mass."

Flaherty to Defendant: "Where do yez hang out?"

Defendant: "Nowhere."

Flaherty to Clerk: "_Ain't got none._"

Flaherty to Defendant: "Phat do yez do fer a livin'?"

Defendant: "Nothin'."

Flaherty to Clerk: "_Ain't got none._"

Flaherty to Defendant: "Are ye married?"

Defendant: "No,--thank God."

Flaherty to Clerk: "_He says 'No, thank God!'_"

Flaherty to Defendant: "Ever receive any previous religious

instruction?"

Defendant: "How's that?"

Flaherty to Defendant: "Phat's yer religion?"

Defendant: "Don't believe in nothin'."

Flaherty to Clerk (loudly): "PROTESTANT!"

* * * * *

For a convict to give under oath false answers to the questions thus

put to him is, of course, perjury. It is frequently of no small

importance for a prisoner to conceal his identity, or at least his

record. But if a Bible is thrust into his right hand he is loath to put

himself within the statute governing false swearing, for the chances

are all in favor of his being found out, in which case his punishment

will be severe. The writer recalls a dramatic incident of a man who

endeavored to prevent his past offences coming to the knowledge of

the judge. He bore, however, all the ear-marks of an ex-convict, and

the court became suspicious that all was not right. He had just been

convicted of stealing a purse. The jury had remained out until eleven

o'clock at night and the court-room was practically deserted. The

prisoner was placed before the bar. We will call him James Graham. The

clerk put the usual questions and then inquired:

"Have you ever been convicted before?"

"No," answered the prisoner in a low voice.

There was a long pause, and then the judge, looking down intently from

the bench, said:

"Graham, is that the truth?"

"Yes, sir," replied the prisoner.

"Are you quite sure?" insisted the court.

"Yes, sir."

"Swear him!" ordered the judge.

The officer started to place the Bible in Graham's hand, but he refused

to take it.

"No, no, I can't!" he whispered. "I can't--I--I--it's no use!" he added.

"When were you convicted?"

"I served six months for petty larceny about five years ago."

"Is that all?"

"Yes, sir."

"Are you sure?"

"Yes, sir."

"Quite sure? Think again."

"Yes, sir."

"Swear him!"

Again the book was placed in his hand and again it was declined.

"I served three years in Charlestown for larceny, and was discharged

two months ago."

"Is that all?"

"O God! Isn't that enough?" suddenly groaned the prisoner, breaking

down completely. "No, sir, it isn't all! It's always been the

same old story! Concord, Joliet, Elmira, Springfield, Sing Sing,

Charlestown--Yes, six times. Twelve years!--_I'm a jail bird!_"

Before rendering a verdict the members of almost every jury take the

opportunity in the jury-room to stretch their legs and satisfy their

craving to smoke. Juries rarely return in less time than it takes to

burn a cigar. While this may torture the prisoner it would seem a

fairly earned perquisite on the part of his judges. Some jurors are

instinctively, and a few are actually lawyers. These rarely add much to

the general usefulness of the panel. Jurymen not infrequently seize the

opportunity to display their oratorical ability, since their audience

cannot get away and must perforce hear them out. The writer recalls

one instance where in a well-known extortion case an enthusiastic

talesman made a digest of the speeches of counsel for the defence and

for the prosecution and then prepared a long harangue of his own which

he committed to memory. When the jury were safely locked into their

council chamber this self-sacrificing gentleman arose and began, "In

this case the defence claims, thus and so." After he had repeated

practically in toto the argument of the defence he got his second wind

and continued, "On the other hand, the People assert, thus and so." At

the end of about an hour he had reached his own humble views of the

case, which he expanded at great length, ending with a peroration in

which the great American eagle could be heard screaming all the way

into the court-room. The jury, probably out of sheer fatigue, took but

a single vote and found the defendant guilty. The orator to this day

claims that he "did it."

While the deliberations of the jury are theoretically secret, the rooms

in which they are confined are often so located with reference to

corridors, retiring rooms, etc., that officers on duty, turnkeys, and

other persons are occasionally made involuntary eavesdroppers. It is

said that in other and more barbarous times interested parties would

lurk near by in order to get an idea of how the wind was blowing. There

is a story for which the writer assumes no responsibility that ten or

fifteen years ago a noted prosecutor was accustomed to follow the jury

out, climb upon a ladder, and listen at the transom to their arguments

and comments; and there is also a report, which perhaps is but a fable,

that there was a knot-hole in the jury-room of the old "Brownstone"

building from which the plug was regularly removed to allow of similar

surreptitious observations. The rumors which come from the direction of

the jury-room are quite as apt to be incorrect as accurate, and neither

prosecutor nor prisoner really knows what is the result of the jury's

deliberations until the foreman's word ends the suspense.

Many strange and amusing stories are told of how certain historic

verdicts in criminal cases were reached. Perhaps the most famous is

that of the trial of the first indictment which followed the robbery

of the Manhattan Bank. The case was tried before Judge Cowing in the

General Sessions, and after a speedy, but conclusive, trial the jury

retired. A vote, which was immediately taken, showed that they stood

eleven to one for conviction. The twelfth juror was obstinate and

no progress whatever was made by the others. The situation remained

unchanged during the night and up to twelve o'clock of the next day,

which happened to be a Saturday. At that hour Judge Cowing sent word

that he was going downtown and would not return until two o'clock. In

some way the jury got the idea that the judge intended to lock them up

until Monday if they did not agree. They accordingly asked for five

minutes more before the judge left the building. This was granted and

at the end of that time they announced that they had agreed. Into court

they filed.

"Have you agreed upon a verdict?" asked the clerk.

"We have," replied the foreman.

"How say you? Do you find the defendant guilty or not guilty?"

"_Not guilty_," answered the foreman defiantly. The defendant, who

was as guilty a man as ever was brought to the bar of justice, almost

collapsed from astonishment, and the judge gave the jury a frank piece

of his mind in no uncertain language. Rather than suffer any further

inconvenience this high-minded jury had simply faced about and voted to

acquit.

There are some cases, however, where one strong-minded and able juryman

has swung the whole body to his way of thinking after a vote of eleven

against him, and this is as true of verdicts of conviction as of

acquittal. Few jurors, however, can, as a rule, stand out against

the assertions and incriminations of their fellows. Most of them are

easy-going and like to be led by a strong hand. A positive stand taken

by a fellow talesman will often bring them to his views when they are

really inclined to be in doubt. If the flag is raised they will quickly

rally to it, but they will never reach the point where they would be

willing to elevate it of their own accord. An experienced and highly

intelligent juryman once told the writer that the first thing he always

did when the jury had retired, whether he was the foreman or not, was

to stand up at the end of the table and say:

"Gentlemen, this man is _guilty_ [or innocent, as the case might be]!

The sooner we say so the better, _but my mind is made up_."

In this way he invariably secured at the outset the support and

co-operation of a majority of the jury.

In capital cases where the prisoner's life hangs in the balance there

will always be found in the first vote a few blank ballots. These are

cast, as the expression is, "to provoke discussion." Shrewd old jurors,

realizing that no man can convince another half so well as that other

can convince himself, will often vote for "not guilty" in order to get

their fellows worked up to a white heat of intellectual frenzy in the

effort to bring them over. There is many a wily Odysseus among the

variegated personalities of a jury.

"My first jury trial," said one of the judges of the General Sessions

recently, "occurred when I was a very young man and had just been

admitted to the bar. It was my initial appearance in a court of

justice. However, I threw out my chest and tried to make the jury

think I was an old hand at the business, by objecting to almost every

question and taking exceptions by the score. My client was an old

woman who had been illegally ejected, or who claimed to have been

illegally ejected, by the agent of a tenement house which belonged to

Mr. W.D. Sloane. Of course, I don't suppose Mr. Sloane ever heard of

the incident, but I was suing him for damages and put in my case with a

great deal of vigor. The lawyer for the defence was a big, good-natured

man who did not seem to care very much which way the jury decided the

case. The judge charged and the jury retired. They were gone a very

long time. At last an officer appeared with a slip of paper. The judge

beckoned the lawyer for the other side and myself to the bench and

showed us the jury's message.

"'We want a bottle of whiskey and a box of cigars,' it read, and was

signed, 'William Smith, Foreman.'

"'Let 'em have them!' remarked the good-natured lawyer. 'I don't blame

'em for being thirsty.'

"'I don't know,' I replied. 'It does not seem to me that whiskey would

help them to decide the facts any more clearly!'

"'Of course, if Mr. ---- does not agree to it!' exclaimed the lawyer,

'I have nothing to say!' Then he turned away and the judge whispered in

my ear:

"'Young man, I should advise you to let these refreshments go into the

jury-room. You have not had a great deal of experience and probably do

not appreciate the effect which a denial of their request may have

upon the jurors. Take a quiet tip from me and let the whiskey go in.'

"'All right, your Honor,' said I. 'I bow to your Honor's long

acquaintance with men and your experience at the bar--of justice.'

"Well, the whiskey and cigars went in, and I could see as the officer

brought them through the court-room that the whiskey was the very best

King William and the cigars were Havana perfectos. I wondered with some

misgivings who was paying for them.

"In about an hour the jury filed in flushed and happy and rendered a

verdict in favor of Mr. Sloane. Some time afterwards I happened to

be in the court-room and learned from the officer that the jury had

stood eleven to one in my favor for over three hours. The foreman, the

only one against me, had finally remarked that he was thirsty and had

offered to treat the rest of the jury. In less than an hour after the

refreshments had arrived the other eleven came over and decided that

Mr. Sloane was in the right."

Another judge tells of an experience of his when serving upon a jury

in Ireland. The case over they retired to the jury-room and found that

they stood eleven to one for acquittal, but that one happened to be a

very complacent old gentleman in a billy-cock hat who, with his chin

resting upon the head of a thick bamboo cane, announced defiantly

that he was ready to stay there as long as anybody. The hours dragged

slowly by, evening drew on, and still the old gentleman obstinately

held out. The jurors disposed their weary bodies as best they could

along the floor and the hard benches, and prepared to make a night of

it. From time to time the old gentleman would contemplatively suck the

head of his bamboo cane. Finally he fell fast asleep and the cane fell

heavily to the floor. Then one of the jurors picked it up and found

to his surprise _that it was hollow and filled with good old Irish

whiskey_. They passed the cane around, relieved it of its contents, and

then awoke the owner. Slowly he lifted the cane to his mouth, sucked

ineffectually for a moment, looked at his watch and then arose with the

announcement:

"B'ys! I'm afther changin' me moind!"

A recent trial, Donohue _vs._ The New York, New Haven and Hartford

Railroad, illustrates the vagaries of individuals which may seriously

interfere with the course of justice. The judge had been particularly

careful to elucidate the point of law which the jury were to apply to

the facts as they found them. The jury unanimously agreed that the

facts were thus and so, but one of their number refused to follow the

law as laid down by the court. At first he insisted that the judge had

charged differently, but it soon became obvious that this was not the

true cause of his indecision.

"Well," exclaimed the foreman at last, on the verge of distraction,

"should we go back into court and the judge should instruct you that

what we say _is_ the law, would you find a verdict _then_?"

The juryman hesitated and then announced with deliberation:

"No; _not until I had consulted my attorney_."

A frankly unscrupulous member of the criminal bar tells the following

story at his own expense. His client was indicted for murder and on the

evidence apparently guilty. The lawyer's only chance, as he thought,

lay in trying to "work it down" to manslaughter, which would get his

client off with twenty years' imprisonment. Accordingly he told his

clerk to become friendly with the jurymen, treat them to drinks, and

see what he could do. The clerk reported that he had become very thick

with the twelfth juror, an old Irishman, who had promised to "hold out

for manslaughter." The lawyer told his client, and both ceased to worry

about the result, as death no longer stared the prisoner in the face.

The jury retired and remained out twenty-three hours. At the end of

that time, tired, dishevelled, exasperated, they filed into court and

returned a verdict of manslaughter. The lawyer warmly congratulated his

client. As the jury were separating the old Irishman leaned over to the

lawyer and exultantly whispered:

"Bedad, I had th' divil av a time av it! Elivin o' thim were for

_lettin' him go entirely_!"

CHAPTER XIV

THE SENTENCE

"What have you to say why judgment of the court should not be

pronounced against you according to law?"

With these words begins the final chapter of the convict's history.

He has been arraigned for the last time at the bar of justice, after

a jury of his peers has declared him "guilty," and now awaits his

sentence.

The judge who presides at the trial of a criminal case does but begin

his labors when he receives the jury's verdict. If he be a man of

sensibilities the strain of a trial is as nothing compared with the

responsibility of determining whether the defendant shall be let

go free under a "suspended" sentence or ordered to prison. No one

appreciates the horror of prison life or its effect upon the individual

better than the judge himself, and he may pass many a sleepless night

before sentencing a man whose circumstances and whose years suggest the

possibility of reformation.

Where the defendant has been found guilty of murder in any of its

degrees the judge is, of course, relieved of the responsibility of

determining the sentence, which is fixed by law, and the interrogation

of the clerk must seem but a mockery to the prisoner, who knows that,

whatever he may say in his own behalf, the judgment of the court will

be the same. For this reason counsel rarely address the court upon

the sentence in such a case, but sometimes the prisoner himself seeks

a last public opportunity to assert his innocence or proclaim his

repentance.

On Saturday morning, March 21, 1829, Richard Johnson, convicted of the

murder of Ursula Newman, was brought to the bar of the New York Court

of Oyer and Terminer, and was asked what he had to say why judgment

of death should not be pronounced against him according to law. In

the faded ink of the records of the General Sessions is inscribed the

following:

The prisoner replies:

If your Honor please. I am asked what I have to say why judgment of

death should not be pronounced against me? To this I reply--To the

judgment of the law, nothing. A jury of my country has pronounced

me guilty; and there remains no discretion with the court but to

pronounce upon me the sentence of the law. But to the judgment of

the world I have much to say. I have been convicted of a crime the

bare recital of which causes humanity to shudder. And it is a duty

which I owe to myself while living, and to my memory when dead that

the circumstances of my offence should be fully explained. Before

entering into the detail, I must take this public opportunity in the

name of that omniscient and all-merciful Being who will hereafter

pronounce his judgment, alike upon my judges & myself, of disclaiming

any knowledge of the transactions of that fatal 20th of November.

I do not mean to impugn the decision of the jury; the movements of

the mind were beyond their power to penetrate; and hard as is my

fate I humbly bow to their verdict. I cannot here enter fully into

the details of my intimacy with the unfortunate cause of my present

awful situation. Duped and betrayed as I have been into sorrow and

bitter despair, and lastly involuntary crime I am unwilling while

living to indulge in unavailing reproaches. In life the deceased

was the object of my tenderest affection. An affection that her own

unkind conduct seemed to inflame, and that, baffled in its honorable

purpose--expelled reason from her throne, and, in its absence, led

to the commission of the offence, for which I am now to satisfy the

offended community by my own life. Was I conscious of any moral

guilt, at this result I should not repine. Accustomed throughout my

life to respect the law, I have not now to learn that the blood of

the murderer is alike a propitiating sacrifice to the laws of God

and man. Convicted of the legal crime I know my fate. For the moral

offence I have to answer to my conscience and my God; and that innate

monitor tells me, that I stand before this court and this community a

legal but not a moral murderer. To my counsel who have so ably though

vainly made my defence, I tender my warmest thanks. Of the court I

have but one request to make, that the period allowed me to prepare

for my impending fate may be as long as the law will permit.

The sentence of the court was then pronounced.

Compare this solemn and thrilling declaration with what occurred

upon the sentence of Dr. Carlyle W. Harris, convicted of the murder

of his girl-wife by the administration of morphine capsules which he

compounded and furnished to her. He had married her secretly under an

assumed name and in all probability had never intended to recognize

her as his wife. Events finally rendered it impossible for him to

conceal the marriage longer, and, realizing this, he procured for

her the medicine which caused her death. Harris was a gentleman,--or

rather he was a very debonair, nonchalant, and brazen imitation of one.

Throughout his trial he had preserved an absolutely unruffled exterior,

chatting affably with counsel and court attendants, and receiving the

verdict with undiminished equanimity. On the day set for his sentence

he came into court with the easy and gracious manner of a young man

paying an afternoon call. He was arraigned at the bar and the Recorder

[Smyth] proceeded to rehearse the history of his terrible crime

and stigmatize the loathsome character of his act. Harris listened

politely, and apparently endeavored to show a considerable interest in

his remarks. Then the Recorder made some slight error in giving a date.

"Pardon me, your Honor," interrupted the blithe defendant, "it was the

eighteenth and not the nineteenth----" and corrected him.

The Recorder frowned and replied with dignity.

"That is a matter of slight importance!"

"I beg your Honor's pardon," returned Harris flippantly; "you see, I

have never been sentenced to death before, and am not as familiar with

the procedure as might be."

Unpleasant as is the duty of the prosecutor who is obliged to move

that the sentence of death be pronounced, it is less terrible than

listening to the few simple but hopeless words that doom a convict to

life imprisonment. The murderer must die; but it will soon be over. The

ghost of his victim will in a few weeks cease to haunt his dreams. But

the "lifer"! Who can picture the horror of a life-time of repentance

or of mocking remorselessness? "Civilly dead," he is doomed to drag

out his weary years in an earthly tomb, a silent, forgotten creature,

numbered like a human specimen, enduring all the tortures of purgatory

until the end seems a far distant haven of oblivion. The court-room

echoes, like the empty future of the white-faced prisoner, to the

dull fall of the words upon his barren soul--"_for the rest of your

natural life_." The listener shudders. "God grant that it be short!" he

murmurs, then looks away.

Of course, in the seventeenth century and early in the eighteenth all

felonies were punishable, not only in England but in America, by death.

When the severity of punishment began to be abated and imprisonment

substituted for the extreme penalty, all sentences were for a fixed and

definite term, and the only way that the convict could obtain release

or secure the modification of his sentence was by pardon from the

supreme executive authority of the country.

Sometimes a ray of sunshine illumines the dreary pages of these

parchment-bound volumes, the stiff phraseology of the crabbed

entries failing to obscure it. For example, on Monday morning, March

29, 1784, "The Court met pursuant to adjournment" and was "opened

by proclamation." The grand jury came into court and presented an

indictment against one Sylvia, a negro slave, "for stealing monies from

Alexr Johnson."

"The prisoner being set to the bar and arraigned, did plead guilty,

and for trial put herself upon God and the country." Her case was

immediately moved. One witness, the Alexander Johnson mentioned,

testified.

"The jury without going from the Bar say, that they find the prisoner

at the bar Guilty of the Felony whereof she stands indicted...."

Just one week later, Sylvia, now a convict, "was called to the Bar, for

judgment, and it being demanded of her in the usual manner what she

could say for herself why judgment of Death should not now pass against

her, according to law, she did produce and plead a pardon of the People

of the State of New York, under the Great Seal, bearing test the 31st

March, 1784, which was read and allowed, and the Prisoner discharged."

Sylvia was undoubtedly a valuable piece of personal property--valuable

enough evidently to make it worth her master's while to urge his claims

upon the Governor for clemency.

White offenders did not always fare as well. But for them in the

colonial times still occasionally remained that quaint old plea of

"benefit of clergy." This lingered on as late as 1784, when the record

shows that one John Cullen, having been convicted of forgery,

"ON MOTION of Mr. Attorney-General ... was sent to the Bar for

judgment, and it being demanded of him in the usual form what he

could say for himself why judgment of death should not pass against

him according to Law, he prayed the Benefit of Clergy, which was

granted by the Court.

THEREUPON IT WAS ORDERED that the said John Cullen be branded in the

brawn of the left Thumb with the letter T in the presence of the

court, and that the sheriff execute the order immediately, which was

done accordingly."

Benefit of clergy was the historic privilege accorded in England to

all priests of being tried only in the ecclesiastical courts for

their crimes. Coke says that "it took its root from a constitution of

the Pope that no man should accuse the priests of Holy Church before

a secular judge." As all common-law felonies (except petty larceny

and mayhem) were _punishable by death_ even as late as 1826, and as

these felonies included homicide, rape, burglary, arson, robbery and

larceny, and _all were clergyable_, it must have been a prerogative of

considerable value to any member of the cloth of lively disposition.

Originally the privilege could be claimed _before trial_, and ousted

the lay courts of any jurisdiction whatever, the right being strictly

limited, however, to those who exhibited all the physical attributes

and garb of priesthood, having "_habitum et tonsuram clericalem_,"

but long before (1350) it was provided that "_all manner of clerks_,

as well secular as religious, shall from henceforth freely have and

enjoy the privileges of Holy Church." As a priest's trial in the

ecclesiastical courts was hardly more than a matter of form, with

rarely any result save that of acquittal, he who could plead his

"benefit" was practically immune so far as punishment for his crimes

was concerned. In course of time the right was accorded only _after_

conviction in the secular courts.

In 1487 it was provided that every person convicted of a clergyable

felony should be branded in the brawn of his thumb, so that mere

inspection would reveal second offenders. The letter M stood for

murderer and T for thief or forger, as we have seen in Cullen's case.

The statute also provided that no person could plead his clergy a

second time unless he were actually in orders. Thus as late as 1487

practically any one who could read or write might commit as many

crimes, including murder, as he chose, with no fear of punishment

save of having to make his purgation, and after that date could, so

to speak, have one murder, arson or larceny and escape with branding,

while the priest in orders continued free to violate the law to his

heart's content. Perhaps this wholesale extension of the privilege

was made in the interest of education and as an incentive to literary

accomplishment. It certainly put a premium on learning which a mere

"degree" could not offer.

From the beginning of the eighteenth century on (the privilege having

been extended by statute to all the inhabitants of England, male or

female), _any one_, irrespective of his learning, could plead his

clergy once to any crime that remained clergyable, if he could find

one, and priests in orders could do so indefinitely. But the crimes

which were clergyable were correspondingly reduced in number. In 1779

branding was practically done away with in England. (19 Geo. 3, c. 74

s. 3.)

It is interesting to find the custom still in vogue in America as late

as 1784, as shown by the case of Cullen.[41]

In one or two of the Southern States the plea lingered on for nearly

another half century.

When the defendant could not avail himself of clergy and no pardon

was at hand to save him, the law in the early days took its full and

awful course. Thus we read in the first almost illegible volume of the

records, the phraseology of the sentence, save for its terms, being

practically the same to this day:

Att a Court holden for the tryal of negro and Indian slaves at the

Citty Hall of the Citty of New-York, on Tuesday the 15th day of

April, Anno Dom. 1712.

Present:

Caleb Heathsope, } Esquires,

William Smith, } Justices

Edward Blagge }

Court opened--

{ The defendt Tom being brought to the Barr

Dom Regina { & having nothing to say for himself why

vs. { judgment of death should not pass agt him

Tom the Negro man, slave { according to the verdict &c. It is considered

of Nicholas Rossvelt { by the Court that he be carryed from hence to

J.D. { the place from whence he came and from thence

{ to the place of execution and thence to be

burned with a slow fire that he may continue in torment for eight or ten

hours and continue burning in said fire untill he be dead and consumed to

ashes.

At present, when "benefit of clergy" is but a legal tradition, and

pardons are obtained with difficulty, but one legal barrier can be

raised to the interposition of sentence upon a convict--proof of his

insanity. If, in the opinion of the court, there is reasonable ground

for believing him to be mentally unbalanced, the question must be

determined as provided in the Code. If he is found to be sane, judgment

must then be pronounced, but if found insane he must be committed to

the State Lunatic Asylum until he recovers his sanity, and when notice

is given of that fact he must be brought before the court for judgment.

Of course, he may also allege legal ground why the judgment should be

arrested or why a new trial should be granted, but at this time a

technical discussion of these motions would be unnecessary.

Defendants are far less likely to feign insanity at the time of their

sentence than they are upon the actual trial; for if a man is clever

enough to act the part of a lunatic he is shrewd enough to realize that

the best time to do so is before he has been convicted of the crime

charged against him.

There is a reputed case, the memory of which still lingers around the

criminal courts, where it is said that a defendant who was charged

with murder in its first degree feigned insanity just before his case

was moved for trial. This was many years ago, at a time when such a

fact did not, of itself, necessarily excite the same suspicion that

it does to-day. The issue of the defendant's sanity was tried before

a lay jury, who promptly found that he was incapable of understanding

the proceedings against him or of making proper preparation for

his defence. He was thereupon committed to the State Asylum for

the Insane, where he remained incarcerated for many years. It so

happened that there was but a single eye-witness to the shooting,

and the circumstances surrounding the affair were such that without

the testimony of this witness it would be a practical impossibility

to determine whether the deceased had been murdered or had committed

suicide. After twenty years, in the course of which the defendant's

lawyer had died and the entire family of the prisoner had either died

or disappeared, another lawyer, who had found among some old papers a

memorandum of the case, went to Matteawan, located the defendant, and

discovered, as he had anticipated, that he was entirely sane. A writ

of habeas corpus was thereupon procured and the defendant brought back

to New York.

The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice · 第 21 / 23 章

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