In that time the entire aspect of the city had changed. Buildings

twenty-five stories in height had replaced those of six; the city had

reached far up and entirely covered the island; electric surface cars

had taken the place of ramshackle, bobtail horse cars. The defendant,

prematurely aged and with clothes long out of date, impressed those

in the court-room as a sort of Rip Van Winkle, awakened after a long

sleep. There was absolutely no question as to the man's sanity, and

he was discharged upon the writ of habeas corpus and remanded to the

Tombs to await his trial. The following morning he was brought into

court, and the district attorney moved that the indictment against

him be dismissed on the ground that there was no longer any evidence

upon which the people could proceed to prosecution. Then for the first

time _the defendant discovered that the only witness against him had

died ten days after he had been committed to the asylum_. Although the

writer does not vouch for the authenticity of this story, the incident

may well have happened.

In addition to the legal ground of insanity why judgment should not be

imposed, a convict or his counsel may properly, on his arraignment,

state to the court any general reasons for a mitigation of sentence or

for its absolute suspension when such is within the discretion of the

court, and few sentences are imposed without a more or less lengthy

appeal for clemency from the defendant's lawyer, who usually does not

confine himself merely to the contrition of the defendant, his past

respectability and his pledges to lead a new and better life, but

is prone to discourse volubly upon the reputable connections of the

defendant, the hardship which a sentence will impose upon his family,

and the fact that the complainant or those who have been interested in

the prosecution now have a profound sympathy for the prisoner. The gist

of many of these appeals is to the effect that because the defendant,

by reason of his education and opportunities, ought to have known

better than to commit crime, he should now, since he has discovered

his mistake, be excused from paying the penalty. The judge invariably

listens with courtesy to these orations, which are not often made

with any idea of actually influencing the court's decision. They are

grateful to the defendant and his family, and impress the latter with

the fact that the lawyer is doing everything in his power to get his

client off.

It is now the judge's soul is tried. How far may he temper justice

with mercy? How far are the interests of the public and the prisoner

irreconcilable? Many youthful offenders, who have not hitherto

been convicted, escape with a suspended sentence or a commitment

to a reformatory--even when found guilty of crimes as serious as

manslaughter or robbery. Little mercy is shown to old offenders. In

fact, the law now provides that they may be tried under an indictment

charging them with having committed a "second offence," under which, if

found guilty, they must be sentenced to the maximum penalty set for a

first offence of the same crime.

It should be noticed that originally only one sentence, and that a

definite one, could be passed by the judge upon a prisoner for any

given offence. At first there were no provisions of law granting to

convicts as a matter of right any reduction or commutation of sentence

because of good behavior. Then laws were passed which provided for

the definite commutation of the sentences of all convicts confined

in State's prison. The question as to whether or not the convict had

earned his commutation by good behavior was left to a board composed of

the State superintendent of prisons and others. A carefully prepared

scale or table showed exactly how much commutation it was possible for

any prisoner to earn.[42]

In 1889 there was introduced into New York State for the first time

what is commonly known as the "indeterminate sentence," that is to say,

a sentence consisting of a minimum and a maximum term of imprisonment

during which the prisoner may be discharged at the option of a board

consisting of various persons, but distinct from that which passes upon

the question of whether or not he has earned his "commutation." The

introduction of this form of sentence is in conformity with the most

recent and most enlightened view of the proper attitude of the State

towards its criminals.

Whenever the indeterminate sentence has been introduced into any State

it has been invariably attacked as being unconstitutional, but the

courts have uniformly upheld it. The principal difference to be noted

between "commutation" and "indeterminateness" of sentence is that the

latter is vastly broader in effect, since only the prisoner's good

behavior while actually undergoing his sentence in State's prison may

be considered by the board which passes upon his commutation, while, in

the case of the indeterminate sentence, the parole board may consider

all the facts surrounding the commission of the crime, the convict's

past life, and whatever other facts they see fit, as well as his good

behavior during his period of confinement.[43]

After conviction the natural optimism of the human race reasserts

itself and the defendant begins to believe that the worst is, after

all, over, and to rely upon the assurances of his counsel or his

political friends that the judge is going to be easy on him and give

him a light sentence. Terrible is the disappointment of such a one

who finds that he is going to be sentenced to State's prison when he

expected the penitentiary or to the penitentiary when he expected to be

set free entirely under a suspended sentence.

The judge usually prefaces the sentence with a few remarks of an

admonitory character, commenting upon the severity of the crime which

the defendant has committed, and upon the fact that it is within

his power to sentence the latter to a long term of imprisonment. He

generally adds that, under all the circumstances and considering the

fact that the defendant has never been convicted before and has

hitherto led a reputable life, he will be merciful and give him only so

and so many years in State's prison.

Of course, this occurs only in such cases as deserve leniency. But

where the defendant is a hardened criminal, or an ex-convict, or when

his crime is one of atrocity, he is apt to learn, in no unmeasured

terms, what the judge and the community think of him. The writer has

heard a prisoner censured in such language that he blushed for the

human race of which the convict could be the offspring. Most defendants

receive their sentence with imperturbability, for they are able with

approximate accuracy to figure out what punishment they will probably

receive. The experiences of their acquaintances in the Tombs are of

great assistance in this matter, yet more than one convict falls

senseless on the floor when sentence is pronounced upon him, and

hundreds lose their nerve and stagger away bewilderedly at the thought

of the interminable years before them.

Yet a layman happening to be present on a Friday in the Court of

General Sessions would be surprised at the apparent lightness of most

of the sentences. The judges of our criminal courts are merciful

men and rightly believe that a year or two in State's prison has a

better effect upon the defendant than a longer term. A short-term man

emerges, at least it is so to be hoped, with some aspirations for

the future and with health as yet not undermined. To most judges the

infliction of sentence upon a fellow human being ever remains a bitter

experience. In the old days, however, there were some judges who, not

unlike Jeffries, took a certain grim satisfaction in the performance

of this duty. There was, many years ago, one of them who seemed to

take a particular delight in so far as possible prolonging the agony

of the defendant's uncertainty. When a prisoner had been arraigned for

sentence the judge would wait for absolute silence, and would then with

the greatest deliberation address a long harangue to the unfortunate

man, characterize his crime in the severest manner, excoriate him for

having committed it, name the maximum penalty which the law allowed,

intimate that he was going to impose it, and then, after a long

hiatus, slowly take down his sentence book, ink his pen with annoying

deliberation, cough two or three times, look around the court-room

and begin carefully inscribing each word upon the record before him,

"I--shall--therefore--sentence--you--to--[cough, another glance around

the room]--five years in State's prison."

Many pathetic and also amusing incidents occur upon these occasions.

There is a true story of an incident which, however, did not occur in

the General Sessions of New York County, where a prisoner who had been

convicted was arraigned before the judge for sentence. This judge was

an aged man with a great reputation for his bitter wit and sarcasm.

The convict, who had been convicted of being a common gambler and who

was described by the court officers as a "fly guy," appeared in a

loudly checked yellow and black suit with a red necktie and a large

paste diamond horseshoe pin. The judge from under his beetling eyebrows

looked fiercely down upon him from the bench and remarked with intense

scorn:

"I sentence you to pay a fine of fifty dollars----'

"That's all right, judge," interrupted the "fly guy" nonchalantly,

thrusting his hand into his trousers. "Got it in my pants pocket."

"----And to three years and six months in State's prison," continued

his Honor, with a slight twinkle in his eye. "_Have you got_ THAT _in

your pants pocket_?"

Recorder Smyth is said to have had a habit of entering the sentences

which he proposed to inflict in a book which he kept for that purpose.

He also generally made use of a regular set form of expression when

imposing them. A miserable little defendant who was gifted with a

greater fund of originality than of common-sense, had conceived the

extraordinary idea of stealing a ship's anchor belonging to a company

which owned a dock in the North River. For this purpose he procured a

dray, drawn by six or eight horses, and a derrick, by means of which he

hoisted the anchor in question upon the dray in the dead of night and,

as might have been expected, succeeded in getting only about half way

down the dock with it before he was apprehended by a watchman.

Naturally he had no adequate explanation to offer and promptly pleaded

guilty. He was arraigned at the bar in company with several other

defendants. Recorder Smyth, his mind still dwelling upon the words

with which he had sentenced the latter, thus addressed the trembling

miscreant:

"You have pleaded guilty to the crime of stealing a ship's

anchor!"--then raising his voice he continued, with perfect solemnity:

"The crime of stealing a ship's anchor is _becoming entirely too

prevalent_! I sentence you to three years and a half in State's

prison."

In contrast with those cheerful days on Manhattan, not much over a

century and a half ago, when negroes were burnt to death in chains, and

thieves branded in open court and then, tied bareback to the tail of a

cart, whipped at every street corner from the City Hall to the Battery

and return, the following incident may serve as a pleasant reminder of

our progress in civilization:

A young Irishman of excellent address, and employed in a responsible

position in an express company, appropriated, at the instigation of

evil companions, some of the funds intrusted to his keeping. The

larceny was detected, he was arrested and admitted his guilt. Meantime,

some one had written to his parents in Ireland who lived in a remote

parish in the humblest circumstances. The two old people sold their

little cottage, as well as their pig and cow, and took steerage passage

from Queenstown to New York. They arrived upon the day set for their

son's sentence, entering the court-room as he was arraigned at the bar.

A tearful recognition followed, and the prisoner, overwhelmed at this

touching proof of his parents' love, begged the judge to listen to

their supplication for mercy. Their simple story deeply affected the

court, who discharged the defendant in their keeping, under his solemn

promise to return with them to Ireland, there to honor and labor for

them so long as they should live.

FOOTNOTES:

[Footnote 41: The whipping post and the pillory were in active use

until comparatively recent times. Under Dutch rule the former occupied

a conspicuous place in front of the Stadt Huys on the strand. As a

matter of great leniency the floggings were sometimes conducted in a

room to which the public was not admitted. But the disgrace of the

performance was regarded as an integral part of the punishment. The

offenders were at the same time branded and frequently banished. A

New York paper, dated 1712, says that one woman at the whipping post

"created much amusement by her resistance." The New York _Gazette_ for

May 14, 1750, states:

"Tuesday last one David Smith was convicted in the Mayor's Court

of Taking or Stealing Goods off a Shop Window in this City, and

was sentence to be whipped at the Cart's Tail round this Town and

afterwards whipped at the Pillory which sentence was accordingly

executed on him." The same paper for October 2, 1752, describes the

pillorying of a boy for picking pockets and the whipping of an Irishman

for stealing deerskins. In the olden days many a common scold was

ducked into quiescence in the North River.]

[Footnote 42: The periods of commutation are shown by the following

table:

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

Sentence | Commutation |

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

Years | Years | Months |

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

1 | .. | 2 |

2 | .. | 4 |

3 | .. | 8 |

4 | 1 | .. |

5 | 1 | 5 |

6 | 1 | 10 |

7 | 2 | 3 |

8 | 2 | 8 |

9 | 3 | 1 |

10 | 3 | 6 |

11 | 3 | 11 |

12 | 4 | 4 |

13 | 4 | 9 |

14 | 5 | 2 |

15 | 5 | 7 |

20 | 7 | 8 |

25 | 9 | 9 |

30 | 11 | 10 |

35 | 13 | 11 |

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

]

[Footnote 43: Cf. "Some Aspects of the Indeterminate Sentence," by C.D.

Warner, 8 Yale Law Journal 219. See also 9 Yale Law Journal 17, as well

as "Das Moderne Amerikanische Besserungssystem," Dr. Paul Herr (Berlin,

1907).]

CHAPTER XV

WOMEN IN THE COURTS

AS WITNESSES

Women appear in the criminal courts constantly as witnesses, although

less frequently as complainants and defendants. As complainants are

always witnesses, and as defendants may, and in point of fact generally

do become so, whatever generalizations are possible regarding women in

courts of law can most easily be drawn from their characteristics as

givers of testimony. Roughly speaking, women exhibit about the same

idiosyncrasies and limitations in the witness-chair as the opposite

sex, and at first thought one would be apt to say that it would be

fruitless and absurd to attempt to predicate any general principles in

regard to their testimony, but a careful study of female witnesses as a

whole will result in the inevitable conclusion that their evidence has

virtues and limitations peculiar to itself.

The ancient theory that woman was man's inferior showed itself in the

tendency to reject, or at least to regard with suspicion, her evidence

in legal matters.

"The following law," says W.M. Best, "is attributed to Moses by

Josephus: 'Let the testimony of women not be received on account

of the _levity_ and _audacity_ of their sex'; a law which looks

apocryphal, but which, even if genuine, could not have been of

universal application.... The law of ancient Rome, though admitting

their testimony in general, refused it in certain cases. The civil and

canon laws of mediæval Europe seem to have carried the exclusion much

further. Mascardus says: '_Feminis plerumque omnino non creditur, et id

dumtaxat, quod sunt feminæ, quæ ut plurimum solent esse fraudulentæ,

fallaces, et dolosæ_' [Generally speaking, no credence at all is given

to women, and for this reason, because they _are_ women, who are

usually deceitful, untruthful, and treacherous in the very highest

degree]. And Lancelottus, in his 'Institutiones Juris Canonici,' lays

it down in the most distinct terms, that women cannot in general be

witnesses, citing the language of Virgil: '_Varium et mutabile semper

femina._' ...

"Bruneau, although a contemporary of Madame de Sévigné, did not scruple

to write, in 1686, that the deposition of three women was only equal to

that of two men. At Berne, so late as 1821, in the Canton of Vaud, so

late as 1824, the testimony of two women was required to counterbalance

that of one man.... A virgin was entitled to greater credit than a

widow.... In the 'Canonical Institutions of Devotus,' published at

Paris in 1852, it is distinctly stated that, except in a few peculiar

instances, women are not competent witnesses in criminal cases. In

Scotland also, until the beginning of the eighteenth century, sex was

a cause of exclusion from the witness-box in the great majority of

instances."

Cockburn in his Memoirs tells of an incident during the trial of

Glengarry, in Scotland, for murder in a duel, which is, perhaps,

explicable by this extraordinary attitude:--A lady of great beauty

was called as a witness and came into court heavily veiled. Before

administering the oath, Lord Eskgrove, the judge (to whom this function

belongs in Scotland), gave her this exposition of her duty:

"Young woman, you will now consider yourself as in the presence of

Almighty God and of this High Court. _Lift up your veil, throw off all

your modesty, and look me in the face._"

Whatever difference does exist in character between the testimony of

men and women has its root in the generally recognized diversity in the

mental processes of the two sexes. Men, it is commonly declared, rely

upon their powers of reason; women upon their intuition. Not that the

former is frequently any more accurate than the latter. But our courts

of law (at least those in English-speaking countries) are devised and

organized, perhaps unfortunately, on the principle that testimony not

apparently deduced by the syllogistic method from the observation of

relevant fact is valueless, and hence woman at the very outset is

placed at a disadvantage and her usefulness as a probative force sadly

crippled.

The good old lady who takes the witness-chair and swears that she

_knows_ the prisoner took her purse has perhaps quite as good a

basis for her opinion and her testimony (even though she cannot

give a single reason for her belief and becomes hopelessly confused

on cross-examination) as the man who reaches the same conclusion

ostensibly by virtue of having seen the defendant near by, observed

his hand reaching for the purse, and then perceived him take to his

heels. She has never been taught to reason and has really never found

it necessary, having wandered through life by inference or, more

frankly, by guesswork, until she is no longer able to point out the

simplest stages of her most ordinary mental processes.

As the reader is already aware, the value of all honestly given

testimony depends first upon the witness's original capacity to observe

the facts; second upon his ability to remember what he has seen and

not to confuse knowledge with _imagination_, _belief_ or _custom_,

and lastly, upon his power to express what he has, in fact, seen and

remembers.

Women do not differ from men in their original capacity to observe,

which is a quality developed by the training and environment of the

individual. It is in the second class of the witness's limitations

that women as a whole are more likely to trip than men, for they are

prone to swear to circumstances as facts, of _their own knowledge_,

simply because they confuse what they have really observed with what

they believe did occur or should have occurred, or with what they are

convinced did happen simply because it was accustomed to happen in the

past.

Perhaps the best illustration of the female habit of swearing that

facts occurred because they _usually_ occurred, was exhibited in the

Twitchell murder trial in Philadelphia, cited in Wellman's "Art of

Cross-Examination." The defendant had killed his wife with a blackjack,

and having dragged her body into the back yard, carefully unbolted

the gate leading to the adjacent alley and, retiring to the house,

went to bed. His purpose was to create the impression that she had

been murdered by some one from outside the premises. To carry out the

suggestion, he bent a poker and left it lying near the body smeared

with blood. In the morning the servant girl found her mistress and ran

shrieking into the street.

At the trial she swore positively that she was first obliged to _unbolt

the door_ in order to get out. Nothing could shake her testimony, and

she thus unconsciously negatived the entire value of the defendant's

adroit precautions. He was justly convicted, although upon absolutely

erroneous testimony.

The old English lawyers occasionally rejected the evidence of women

on the ground that they are "frail." But the exclusion of women as

witnesses in the old days was not for psychological reasons, nor did

it originate from a critical study of the probative value of their

testimony.

Though the conclusions to which women frequently jump may usually be

shown by careful interrogation to be founded upon observation of actual

fact, their habit of stating inferences often leads them to claim

knowledge of the impossible--"wiser in [their] own conceit than seven

men that can render a reason."

In a very recent case where a clever thief had been convicted of

looting various apartments in New York City of over eighty thousand

dollars' worth of jewelry, the female owners were summoned to identify

their property. The writer believes that in every instance these ladies

were absolutely ingenuous and intended to tell the absolute truth.

Each and every one positively identified various of the loose stones

found in the possession of the prisoner as her own. This was the case

even when the diamonds, emeralds and pearls had no distinguishing

marks at all. It was a human impossibility actually to identify any

such objects, and yet these eminently respectable and intelligent

gentlewomen swore positively that they could recognize their jewels.

They drew the inference merely that as the prisoner had stolen similar

jewels from them these must be the actual ones which they had lost, an

inference very likely correct, but valueless in a tribunal of justice.

Where their inferences are questioned, women, as a rule, are much

more ready to "swear their testimony through" than men. They are so

accustomed to act upon inference that, finding themselves unable to

substantiate their assertion by any sufficient reason, they become

irritated, "show fight," and seek refuge in prevarication. Had they

not, during their entire lives, been accustomed to mental short-cuts,

they would be spared the humiliation of seeing their evidence "stricken

from the record."

One of the ladies referred to testified as follows:

"Can you identify that diamond?"

"_I am quite sure that it is mine._"

"How do you know?"

"_It looks exactly like it._"

"But may it not be a similar one and not your own?"

"_No; it is mine._"

"But how? It has no marks."

"_I don't care. I know it is mine. I SWEAR IT IS!_"

The good lady supposed that, unless she swore to the fact, she might

lose her jewel, which was, of course, not the case at all, as the

sworn testimony founded upon nothing but inference left her in no

better position than she was in before.

The writer regrets to say that observation would lead him to believe

that women as a rule have somewhat less regard for the spirit of their

oaths than men, and that they are more ready, if it be necessary,

to commit perjury. This may arise from the fact that women are

fully aware that their sex protects them from the same severity of

cross-examination to which men would be subjected under similar

circumstances. It is to-day fatal to a lawyer's case if he be not

invariably gentle and courteous with a female witness, and this is true

even if she be a veritable Sapphira.

In spite of these limitations, which, of course, affect the testimony

of almost every person, irrespective of sex, women, with the possible

exception of children, make the most remarkable witnesses to be found

in the courts. They are almost invariably quick and positive in their

answers, keenly alive to the dramatic possibilities of the situation,

and with an unerring instinct for a trap or compromising admission.

A woman will inevitably couple with a categorical answer to a question,

if in truth she can be induced to give one at all, a statement of

damaging character to her opponent. For example:

"Do you know the defendant?"

"Yes,--to my cost!"

Or:

"How old are you?"

"Twenty-three,--old enough to have known better than to trust him."

Forced to make an admission which would seem to hurt her position, the

explanation, instead of being left for the re-direct examination of her

own counsel, is instantly added to her answer then and there.

"Do you admit that you were on Forty-second Street at midnight?"

"Yes. _But it was in response to a message sent by the defendant

through his cousin._"

What is commonly known as "silent cross-examination" is generally the

most effective. The jury realize the difficulties of the situation

for the lawyer, and are not unlikely to sympathize with him, unless

he makes bold to attack the witness, when they quickly change their

attitude.

One question, and that as to the witness's means of livelihood, is

often sufficient.

"How do you support yourself?"

"I am a lady of leisure!" replies the witness (arrayed in flamboyant

colors) snappishly.

"That will do, thank you," remarks the lawyer with a smile. "You may

step down."

The writer remembers being nicely hoisted by his own petard on a

similar occasion:

"What do you do for a living?" he asked.

The witness, a rather deceptively arrayed woman, turned upon him with a

glance of contempt:

"I am a respectable married woman, with seven children," she retorted.

"_I do nothing for a living except_ cook, wash, scrub, make beds, clean

windows, mend my children's clothes, mind the baby, teach the four

oldest their lessons, take care of my husband, and try to get enough

sleep to be up by five in the morning. I guess if some lawyers worked

as hard as I do they would have sense enough not to ask impertinent

questions."

An amusing incident is recorded of how a feminine witness turned

the laugh upon Mr. Francis L. Wellman, the noted cross-examiner. In

his book he takes the opportunity to advise his lawyer readers to

"avoid the mistake, so common among the inexperienced, of making much

of trifling discrepancies. It has been aptly said," he continues,

"that 'juries have no respect for small triumphs over a witness's

self-possession or memory!' Allow the loquacious witness to talk on; he

will be sure to involve himself in difficulties from which he can never

extricate himself. _Some witnesses prove altogether too much; encourage

them and lead them by degrees into exaggerations_ that will conflict

with the common-sense of the jury."

Mr. Wellman is famous for following this precept himself and, with one

eye significantly cast upon the jury, is likely to lead his witness

a merry dance until the latter is finally "bogged" in a quagmire of

absurdities. Not long ago, shortly after the publication of his book,

the lawyer had occasion to cross-examine a modest-looking young woman

as to the speed of an electric car. The witness seemed conscious that

she was about to undergo a severe ordeal, and Mr. Wellman, feeling

himself complete master of the situation, began in his most winsome and

deprecating manner:

"And how fast, Miss ----, would you say the car was going?"

"I really could not tell exactly, Mr. Wellman."

"Would you say that it was going at ten miles an hour?"

"Oh, fully that!"

"Twenty miles an hour?"

"Yes, I should say it was going twenty miles an hour."

"Will you say it was going thirty miles an hour?" inquired Wellman with

a glance at the jury.

"Why, yes, I will say that it was."

"Will you say it was going forty?"

"Yes."

"Fifty?"

"Yes, I will say so."

"Seventy?"

"Yes."

"Eighty?"

"Yes," responded the young lady with a countenance absolutely devoid of

expression.

"A hundred?" inquired the lawyer with a thrill of eager triumph in his

voice.

There was a significant hush in the court-room. Then the witness, with

a patient smile and a slight lifting of her pretty eyebrows, remarked

quietly:

"Mr. Wellman, _don't you think we have carried our little joke far

enough_?"

There is no witness in the world more difficult to cope with than

a shrewd old woman who apes stupidity, only to reiterate the gist

of her testimony in such incisive fashion as to leave it indelibly

imprinted on the minds of the jury. The lawyer is bound by every law

of decency, policy and manners to treat the aged dame with the utmost

consideration. He must allow her to ramble on discursively in defiance

of every rule of law and evidence in answer to the simplest question;

must receive imperturbably the opinions and speculations upon every

subject of both herself and (through her) of her neighbors; only to

find when he thinks she must be exhausted by her own volubility,

that she is ready, at the slightest opportunity, to break away again

into a tangle of guesswork and hearsay, interwoven with conclusions

and ejaculation. Woe be unto him if he has not sense enough to waive

her off the stand! He might as well try to harness a Valkyrie as to

restrain a pugnacious old Irishwoman who is intent on getting the whole

business before the jury in her own way.

In the recent case of Gustav Dinser, convicted of murder, a vigorous

old lady took the stand and testified forcibly against the accused.

She was as "smart as paint," as the saying goes, and resolutely

refused to answer any questions put to her by counsel for the defence.

Instead, she would raise her voice and make a savage onslaught upon the

prisoner, rehearsing his brutal treatment of the deceased on previous

occasions, and getting in the most damaging testimony.

"Do you say, Mrs. ----," the lawyer would inquire deferentially, "that

you heard the sound of _three_ blows?"

"Oh, thim blows!" the old lady would cry--"thim turrible blows! I could

hear the villain as he laid thim on! I could hear the poor, pitiful

groans av her, and she so sufferin'! 'Twas awful! Howly Saints, 'twould

make yer blood run cowld!"

"Stop! stop!" exclaimed the lawyer.

"Ah, stop is it? Ye can't stop me till Oi've had me say to tell the

whole truth. I says to me daughter Ellen, says I: 'Th' horrid baste

is afther murtherin' the poor thing,' says I; 'run out an' git an

officer!'"

"I object to all this!" shouts the lawyer.

"Ah, ye objec', do ye?" retorts the old lady. "Shure an' ye'd have been

after objectin' if ye'd heard thim turrible blows that kilt her--the

poor, sufferin', swate crayter! I hope he gits all that's comin' to

him--bad cess to him for a blood-thirsty divil!"

The lawyer ignominiously abandoned the attack.

The writer recalls a somewhat similar instance, but one even better

exhibiting the cleverness of an old woman, which occurred in the year

1901. A man named Orlando J. Hackett, of prepossessing appearance

and manners, was on trial, charged with converting to his own use

money which had been intrusted to him for investment in realty. The

complainant was a shrewd old lady, who, together with her daughter,

had had a long series of transactions with Hackett which would have

entirely confused the issue could the defence have brought them before

the jury. The whole contention of the prosecution was that Hackett had

received the money for one purpose and used it for another. During

preparation for the trial the writer had had both ladies in his office

and remembers making the remark:

"Now, Mrs. ----, don't forget that the charge here is that you gave

Mr. Hackett the money to put into real estate. Nothing else is

comparatively of much importance."

"Be sure and remember that, mother," the daughter had admonished her.

In the course of a month the case came on for trial before Recorder

Goff, in Part II of the General Sessions. Mrs. ---- gave her

testimony with great positiveness. Mr. Lewis Stuyvesant Chanler, now

Lieutenant-Governor of the State, arose to cross-examine her.

"Madam," he began courteously, "you say you gave the defendant money?"

"I told him to put it into real estate, _and he said he would_!"

replied Mrs. ---- firmly.

"I did not ask you that, Mrs. ----," politely interjected Mr. Chanler.

"How _much_ did you give him?"

"_I told him to put it into real estate_, and he said he would!"

repeated the old lady wearily.

"But, madam, you do not answer my question!" exclaimed Chanler. "How

_much_ did you give him?"

"I told him to put it into real----" began the old lady again.

"Yes, yes!" cried the lawyer; "we know that! Answer the question."

"----estate, _and he said he would_!" finished the old woman innocently.

"If your Honor please, I will excuse the witness. And I move that her

answers be stricken out!" cried Chanler savagely.

The old lady was assisted from the stand, but as she made her way

with difficulty towards the door of the court-room she could be heard

repeating stubbornly:

"I told him to put it _into real estate,--and he said he would_!"

Almost needless to say, Hackett was convicted and sentenced to seven

years in State's prison.

To recapitulate, the quickness and positiveness of women make them

ordinarily better witnesses than men; they are vastly more difficult to

cross-examine; their sex protects them from many of the most effective

weapons of the lawyer, with the result that they are the more ready to

yield to prevarication; and, even where the possibility of complete

and unrestricted cross-examination is afforded, their tendency to

inaccurately inferential reasoning, and their elusiveness in dodging

from one conclusion to another, render the opportunity of little value.

In general, however, women's testimony differs little in quality from

that of men, all testimony being subject to the same three great

limitations irrespective of the sex of the witness, and the conclusions

set forth above are merely the result of an effort on the part of the

writer to comment somewhat upon those small differences which, under

close scrutiny, may fairly be said to exist. These differences are

quite as noticeable at the breakfast-table as in the court-room; and

are no more patent to the advocate than to the ordinary male animal

whose forehead habitually reddens when he hears the unanswerable reason

which, in default of all others, explains and glorifies the mental

action of his wife, sister or mother: "Just because!"

AS COMPLAINANTS AND DEFENDANTS

The ratio of women to men indicted and tried for crime is, roughly,

about one to ten. Could adequate statistics be procured, the proportion

of female to male complainants in criminal cases would very likely

prove to be about the same. In a very substantial proportion,

therefore, of all prosecutions for crime a woman is one of the chief

actors. The law of the land compels the female prisoner to submit

the question of her guilt or innocence to twelve individuals of the

opposite sex; and permits the female complainant to rehearse the story

of her wrongs before the same collection of colossal intellects and

adamantine hearts.

The first thing the ordinary woman hastens to do if she be summoned to

appear in a court of justice is not, as might be expected, to think

over her testimony or try to recall facts obliterated or confused by

time, but to buy a new hat; and precisely the same thing is true of

the female defendant called to the bar of justice, whether it be for

stealing a pair of gloves or poisoning her lover.

Yet how far does the element of sex defeat the ends of justice? To

answer this question it is necessary to determine how far juries are

liable to favor the testimony of a woman plaintiff merely because she

is a woman, and how far sympathy for a woman arraigned as a prisoner is

likely to warp their judgment.

As to the first, it is fairly safe to say that a woman is much more

likely to win a verdict in a civil court or to persuade the jury that

the prisoner is guilty in a criminal case than a man would be in

precisely similar circumstances. In most criminal prosecutions for

the ordinary run of felonies little injustice is likely to result

from this. There is one exception, however, where juries should reach

conclusions with extreme caution, namely, where certain charges are

brought by women against members of the opposite sex. Here the jury is

apt to leap to a conclusion, rendered easy by the attractiveness of the

witness and the feeling that the defendant is a "cur anyway," and ought

to be "sent up."

The difficulty of determining, even in one's office, the true character

of a plausible woman is enhanced tenfold in the court-room, where the

lawyer is generally compelled to proceed upon the assumption that the

witness is a person of irreproachable life and antecedents. Almost any

young woman may create a favorable impression, provided her taste in

dress be not too crude, and, even when it is so, the jury are not apt

to distinguish carefully between that which cries to Heaven and that

which is merely "elegant."

When the complaining witness is a woman who has merely lost money

through the acts of the defendant, the jury are not so readily moved to

accept her story _in toto_ as when the crime charged is of a different

character. They realize that the complainant, feeling that she has been

injured, may be inclined to color her testimony, perhaps unconsciously,

until the wrong becomes a crime.

An ordinary example of this variety of prosecution is where the witness

is a young woman from the East Side, usually a Polish or Russian

Jewess, who charges the defendant, a youth of about her own age, with

stealing her money by means of false pretences. They have been engaged

to be married, and she has turned over her small savings to him to

purchase the diamond ring and perhaps set him up in a modest business

of his own. He has then fallen in love with some other girl, has broken

the engagement, and the ring now adorns the fourth finger of her rival.

Her money is gone. She is without a _dot_. She hurries with her parents

and loudly vociferating friends to the Essex Market Police Court, and

secures a warrant for the defendant on the theory that he defrauded

her by "trick and device" or "false representations." Usually the only

"representation" has been a _promise_ to marry her. Her real motive

is revenge upon her faithless _fiancé_. In nine cases out of ten the

fellow is a cad, who has deliberately deserted her after getting her

money, but it is doubtful whether any real crime is involved.

If the judge lets the case go to the jury it is a pure gamble as to

what the result will be, and it may largely turn on the girl's physical

attractiveness. If she be pretty and demure a mixture of emotions

is aroused in the jury. "He probably did love her," say the twelve,

"because any one would be likely to do so. If he did love her, of

course he didn't falsely pretend to do so; but if he deserted a woman

like that he ought to be in jail anyway." Thus the argument that ought

to _acquit_ in fact may _convict_ the defendant. If the rival also

is pretty, hopeless confusion results; while if the complainant be

a homely girl the jury feels that he must have intended to swindle

her anyway, as he could never have honestly intended to marry her.

Thus in any case the Lothario is apt to pay a severe penalty for his

faithlessness.

The man prosecuted by a woman, provided she cannot be persuaded

to withdraw the charge against him, is likely to get but cold

consideration for his side of the story and short shrift in the

jury-room. Turn about, if he can get a young and attractive woman to

swear to his alibi or good reputation, the honest masculine citizen

whom he has defrauded may very likely have to whistle for his revenge.

Many a scamp has gone free by producing some sweetly demure maiden who

faithfully swears that she knows him to be an honest man. A blush at

the psychological moment and a wink from the lawyer is quite enough to

lead the jury to believe that, if they acquit the defendant, they will

"make the young lady happy," whereas if he is convicted she will remain

for aye a heart-broken spinster. Like enough she may be only the merest

acquaintance.

The writer is not likely to forget a distinguished lawyer's

instructions to his client--who happened also to be a childhood

acquaintance--as she was about to go into court as the plaintiff in a

suit for damages:

"I would fold my hands in my lap, Gwendolyn--yes, like that--and

be calm, very calm. And, Gwendolyn, above all things, be _demure_,

Gwendolyn! Be _demure_!"

Gwendolyn was the demurest of the demure, letting her eyes fall beneath

their pendant black lashes at the conclusion of each answer, and won

her case without the slightest difficulty.

The unconscious or conscious influence of women upon the intellects

of jurymen has given rise to a very prevalent impression that it

is difficult if not impossible successfully to prosecute a woman

for crime. This feeling expresses itself in general statements to

the effect that as things stand to-day a woman may commit murder

with impunity. Experience, supplemented by the official records,

demonstrates, however, that, curious as it must seem, the same

sentiment aroused by a woman supposed to have been _wronged_ is not

inspired in a jury by a woman _accused_ of crime. It is, indeed, true

that juries are apt to be more lenient with women than with men, but

this leniency shows itself not in acquitting them of the crimes

charged against them, but of finding them guilty in lower degrees.

Of course flagrant miscarriages of justice frequently occur, which,

by reason of their widespread publicity in the press, would seem to

justify the almost universal opinion that women are immune from the

penalties for homicide. It is also true that such miscarriages of

justice are more likely when the defendant is a woman than if he be a

man.

One of these hysterical acquittals which give color to popular

impression, but which the writer believes to be an exception, was the

case of a young mother tried and acquitted for murder in the first

degree, December 22, 1904. This young woman, whose history was pathetic

in the extreme, was shown clearly by the evidence to have deliberately

taken the life of her child by giving it carbolic acid. The story was

a shocking one, yet the jury apparently never considered at all the

possibility of convicting her, but on retiring to the jury-room spent

their time in discussing how much money they should present her on her

acquittal.

No better actor ever played a part upon the court-room stage than old

"Bill" Howe. His every move and gesture was considered with reference

to its effect upon the jury, and the climax of his summing-up was

always accompanied by some dramatic exhibition calculated to arouse

sympathy for his client. Himself an adept at shedding tears at will, he

seemed able to induce them when needed in the lachrymal glands of the

most hardened culprit whom he happened to be defending.

Mr. Wellman tells the story of how he was once prosecuting a woman for

the murder of her lover, whom she had shot rather than allow him to

desert her. She was a parson's daughter who had gone wrong and there

seemed little to be said in her behalf. She sat at the bar the picture

of injured innocence, with a look of spirituality which she must have

conjured up from the storehouse of her memories of her father. Howe was

rather an exquisite so far as his personal habits were concerned, and

allowed his finger-nails to grow to an extraordinary length. He had

arranged that at the climax of his address to the jury he would turn

and, tearing away the slender hands of his client from her tear-stained

face, challenge the jury to find guilt written there. Wellman was

totally unprepared for this and a shiver ran down his spine when he

saw Howe, his face apparently surcharged with emotion, turn suddenly

towards his client and roughly thrust away her hands. As he did so

he embedded his finger-nails in her cheeks, and the girl uttered an

involuntary scream of nervous terror and pain that made the jury turn

cold.

"Look, gentlemen! Look in this poor creature's face! Does she look

like a guilty woman? No! A thousand times no! Those are the tears of

innocence and shame! Send her back to her aged father to comfort his

old age! Let him clasp her in his arms and press his trembling lips to

her hollow eyes! Let him wipe away her tears and bid her sin no more!"

The jury acquitted, and Wellman, aghast, followed them downstairs to

inquire how such a thing were possible. The jurors said that they had

agreed to disclose nothing of their deliberations.

"But," explained Wellman, "you see, in a way I am your attorney, and

I want to know how to do better next time. She had offered to plead

guilty if she could get off with twenty years!"

The abashed jury slunk downstairs in silence and the secret of their

deliberations remains as yet untold.

In spite of such cases, where guilty women have been acquitted through

maudlin sentiment or in response to popular clamor, nothing could be

more erroneous than the idea that few women who are brought to the

bar of justice are made to suffer for their offences. Thus, although

no woman has suffered the death penalty in New York County in twenty

years, _the average number of convictions for crime is practically the

same for women as for men in proportion to the number indicted_. The

last unreversed conviction of a woman for murder in the first degree

was that of Chiara Cignarale, in May, 1887. Her sentence was commuted

to life imprisonment. Since then thirty women have been actually tried

before juries for homicide with the following results:

Convicted of murder in first degree 0

" " murder in second degree 3

" " manslaughter in first degree 10

" " manslaughter in second degree 10

Acquitted 7

--

Total 30

The percentage of convictions to acquittals is as follows:

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

| Convictions | Acquittals | Convictions | Acquittals

| | | Per Cent | Per Cent

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

1887-1907 | 23 | 7 | 77 | 23

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

It is distinctly interesting to compare this with the table showing

the results of all the homicide trials for the past eight years

irrespective of the sex of the defendants:

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

| Convictions | Acquittals | Convictions | Acquittals

| | | Per Cent | Per Cent

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

1900 | 5 | 12 | 29 | 71

1901 | 17 | 17 | 50 | 50

1902 | 15 | 11 | 58 | 42

1903 | 24 | 8 | 75 | 25

1904 | 19 | 14 | 58 | 42

1905 | 18 | 13 | 58 | 42

1906 | 21 | 22 | 49 | 51

1907 | 16 | 10 | 62 | 38

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

Total | 135 | 107 | Aver. 55 | Aver. 45

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

The reader will observe that the percentage of convictions to

acquittals of women defendants averages twenty-two per cent greater

than the percentage for both sexes. A more elaborate table would show

that where the defendants are men there are a greater proportionate

number of _acquittals_, but more verdicts in higher degrees. A verdict

of manslaughter in the second degree in the case of a man charged with

murder is infrequent, but convictions of murder in the second degree

are exceedingly common.

The reason for the higher percentage of convictions of women is that

fewer women who commit crime are prosecuted than men, and that they are

rarely indicted unless they are clearly guilty of the degree of crime

charged against them; while practically every man who is charged with

homicide and who, it seems, may be found guilty is indicted for murder

in the first degree.

The trial of women for crime invariably arouses keen public interest,

and the dethronement of a Czar, or the assassination of an Emperor,

pales to insignificance before the prosecution of a woman for murder.

Some of this interest is fictitious and stimulated merely by the

yellow press, but a great deal of it is genuine. The writer remembers

attending a dinner of gray-headed judges and counsellors during the

trial of Ann Eliza, alias "Nan," Patterson, where one would have

supposed that the lightest subject of conversation would be not less

weighty than the constitutionality of an income tax, and finding to his

astonishment that the only topic for which they showed any zest was

whether "Nan" would be found guilty.

One of the earliest, if not the earliest, record of a woman being held

for murder is that of Agnes Archer, indicted by twelve men on April 4,

1435, sworn before the mayor and coroner to inquire as to the death

of Alice Colynbourgh. The quaint old report begins in Latin, but "the

pleadings" are set forth in the language of the day, as follows:

"Agnes Archer, is that thy name? which answered, yes.... Thou art

endyted that thou ... feloney moderiste her with a knyff fyve tymes

in the throte stekyng, throwe the wheche stekyng the saide Alys is

deed.... I am not guilty of thoo dedys, ne noon of hem, God help me

so.... How wylte thou acquite the?... By God and by my neighbours of

this town."

The subsequent history of Agnes is lost in obscurity, but since she had

to procure but thirty-six compurgators who were prepared to swear that

they believed her innocent, and as she was at liberty to choose these

herself from her native village of Winchelsea, it is probable that she

escaped.[44]

Fortunately the sight of a woman, save of the very lowest class, at

the bar of justice is rare. The number of cases where women of good

environment appear as defendants in the criminal courts in the course

of a year may be numbered upon the fingers of a single hand, and,

although the number of female defendants may equal ten per cent of

the total number of males, not one-tenth of the women brought to the

bar of justice have had the benefit of an honest bringing up and good

surroundings.

FOOTNOTES:

[Footnote 44: Cf. Thayer, as cited, _supra_.]

CHAPTER XVI

TRICKS OF THE TRADE

"Tricks and treachery," said Benjamin Franklin, "are the practice

of fools that have not wit enough to be honest." Had the kindly

philosopher been familiar with all the exigencies of the criminal

law he might have added a qualification to this somewhat general,

if indisputably moral, maxim. Though it doubtless remains true as a

guiding principle of life that "Honesty is the best policy," it would

be an unwarrantable aspersion upon the intellectual qualities of the

members of the criminal bar to say that the tricks by virtue of which

they often get their clients off are "_the practice of fools_." On the

contrary, observation would seem to indicate that in many instances the

wiser, or at least the more successful, the practitioner of criminal

law becomes, the more numerous and ingenious become the "tricks" which

are his stock in trade. This must not be taken to mean that there are

not high-minded and conscientious practitioners of criminal law, many

of them financially successful, some filled with a noble humanitarian

purpose, and some drawn to their calling by a sincere enthusiasm for

the vocation of the advocate which, in these days of "business" law and

commercial methods, reaches perhaps its highest form in the criminal

courts.

There are no more "tricks" practised in these tribunals than in the

civil, but they are more ingenious in conception, more lawless in

character, bolder in execution and less shamefaced in detection.

Let us not be too hard upon our brethren of the criminal branch. Truly,

their business is to "get their clients off." It is unquestionably a

generally accepted principle that it is better that ninety-nine guilty

men should escape than that one innocent man should be convicted.

However much persons of argumentative or philosophic disposition may

care to quarrel with this doctrine, they must at least admit that it

would doubtless appear to them of vital truth were they defending

some trembling client concerning whose guilt or innocence they were

themselves somewhat in doubt. "Charity believeth all things," and the

prisoner is entitled to every reasonable doubt, even from his own

lawyer. It is the lawyer's business to create such a doubt if he can,

and we must not be too censorious if, in his eagerness to raise this in

the minds of the jury, he sometimes oversteps the bounds of propriety,

appeals to popular prejudices and emotions, makes illogical deductions

from the evidence, and impugns the motives of the prosecution. The

district attorney should be able to take care of himself, handle the

evidence in logical fashion, and tear away the flimsy curtain of

sentimentality hoisted by the defence. These are hardly "tricks" at

all, but sometimes under the name of advocacy a trick is "turned" which

deserves a much harsher name.

Not long ago a celebrated case of murder was moved for trial after the

defendant's lawyer had urged him in vain to offer a plea of murder in

the second degree. A jury was summoned and, as is the usual custom

in such cases, examined separately on the "_voir dire_" as to their

fitness to serve. The defendant was a German, and the prosecutor

succeeded in keeping all Germans off the jury until the eleventh seat

was to be filled, when he found his peremptory challenges exhausted.

Then the lawyer for the prisoner managed to slip in a stout old Teuton,

who replied, in answer to a question as to his place of nativity,

"Schleswig-Holstein." The lawyer made a note of it, and, the box

filled, the trial proceeded with unwonted expedition.

The defendant was charged with having murdered a woman with whom he

had been intimate, and his guilt of murder in the first degree was

demonstrated upon the evidence beyond peradventure. At the conclusion

of the case, the defendant not having dared to take the stand, the

lawyer arose to address the jury in behalf of what appeared a hopeless

cause. Even the old German in the back row seemed plunged in soporific

inattention. After a few introductory remarks the lawyer raised his

voice and in heart-rending tones began:

"In the beautiful county of _Schleswig-Holstein_ sits a woman old

and gray, waiting the message of your verdict from beyond the seas."

(Number 11 opened his eyes and looked at the lawyer as if not quite

sure of what he had heard.) "There she sits" (continued the attorney),

"in _Schleswig-Holstein_, by her cottage window, waiting, waiting to

learn whether her boy is to be returned to her outstretched arms."

(Number 11 sat up and rubbed his forehead.) "Had the woman, who so

unhappily met her death at the hands of my unfortunate client, been

_like those women of Schleswig-Holstein_--noble, sweet, pure, lovely

women of _Schleswig-Holstein_--I should have naught to say to you in

his behalf." (Number 11 leaned forward and gazed searchingly into the

lawyer's face.) "But alas, no! _Schleswig-Holstein_ produces a virtue,

a loveliness, a nobility of its own." (Number 11 sat up and proudly

expanded his chest.)

When, after about an hour or more of _Schleswig-Holstein_ the

defendant's counsel surrendered the floor to the district attorney,

the latter found it quite impossible to secure the slightest attention

from the eleventh juror, who seemed to be spending his time in casting

compassionate glances in the direction of the prisoner. In due course

the jury retired, but had no sooner reached their room and closed the

door than the old Teuton cried, "Dot man iss _not guilty_!" The other

eleven wrestled with him in vain. He remained impervious to argument

for seventeen hours, declining to discuss the evidence, and muttering

at intervals, "Dot man iss _not guilty_!" The other eleven stood

unanimously for murder in the first degree, which was the only logical

verdict that could possibly have been returned upon the evidence.

At last, worn out with their efforts, they finally induced the old

Teuton to compromise with them on a verdict of manslaughter. Wearily

they straggled in, the old native of Schleswig-Holstein bringing up the

rear, bursting with exultation and with victory in his eye.

"Gentlemen of the jury, have you agreed upon a verdict?" inquired the

clerk.

"We have," replied the foreman.

"How say you, do you find the defendant guilty or not guilty?"

"Guilty--of manslaughter," returned the foreman feebly.

The district attorney was aghast at such a miscarriage of justice, and

the judge showed plainly by his demeanor his opinion of such a verdict.

But the old inhabitant of Schleswig-Holstein cared for this not a whit.

The old mother in Schleswig-Holstein might still clasp her son in her

arms before she died! The defendant was arraigned at the bar. Then for

the first time, and to the surprise and disgust of No. 11, he admitted

in answer to the questions of the clerk that his parents were _both

dead_ and that he was born in _Hamburg_, a town for whose inhabitants

the old juryman had, like others of his compatriots, a constitutional

antipathy.

The "tricks" of the trade as practised by the astute and unscrupulous

criminal lawyer vary with the stage of the case and the character of

the crime charged. They are also adapted with careful attention to

the disposition, experience and capacity of the particular district

attorney who happens to be trying the case against the defendant. An

illustration of one of these occurred during the prosecution of a

bartender for selling "spirituous liquors" without a proper license.

He was defended by an old war-horse of the criminal bar famous for his

astuteness and ability to laugh a case out of court. The assistant

district attorney who appeared against him was a young man recently

appointed to office, and who was almost overcome at the idea of

trying a case against so well known a practitioner. He had personally

conducted but very few cases, had an excessive conception of his

own dignity, and dreaded nothing so much as to appear ridiculous.

Everything, except the evidence, favored the defendant, who, however,

was, beyond every doubt, guilty of the offence charged.

The young assistant put in his case, calling his witnesses one by one,

and examining them with the most feverish anxiety lest he should forget

something. The lawyer for the defence made no cross-examination and

contented himself with smiling blandly as each witness left the stand.

The youthful prosecutor became more and more nervous. He was sure

that something was wrong, but he couldn't just make out what. At the

conclusion of the People's case the lawyer inquired, with a broad grin,

"if that was all."

The young assistant replied that it was, and that, in his opinion, it

was "quite enough."

"Let that be noted by the stenographer," remarked the lawyer. "Now, if

your Honors please," he continued, addressing the three judges of the

Special Sessions, "you all know how interested I am to see these young

lawyers growing up. I like to help 'em along--give 'em a chance--teach

'em a thing or two. I trust it may not be out of place for me to say

that I like my young friend here and think he tried his case very well.

But he has a great deal to learn. I'm always glad, as I said, to give

the boys a chance--to give 'em a little experience. I shall not put my

client upon the stand. It is not necessary. _The fact is_," turning

suddenly to the unfortunate assistant district attorney--"my client

_has_ a license." He drew from his pocket a folded paper and handed it

to the paralyzed young attorney with the harsh demand: "What do you say

to that?"

The assistant took the paper in trembling fingers and perused it as

well as he could in his unnerved condition.

"Mr. District Attorney," remarked the presiding justice dryly (which

did not lessen the confusion of the young lawyer), "is this a fact? Has

the defendant a license?"

"Yes, your Honors," replied the assistant; "this paper seems to be a

license."

"Defendant discharged!" remarked the court briefly.

The prisoner stepped from the bar and rapidly disappeared through the

door of the court-room. After enough time had elapsed to give him a

good start and while another case was being called, the old lawyer

leaned over to the assistant and remarked with a chuckle:

"I am always glad to give the boys a chance--help 'em along--teach 'em

a little. That license was a _beer_ license!"

BEFORE TRIAL

To begin at the beginning, whenever a person has been arrested, charged

with crime, and has secured a criminal lawyer to defend him, the first

move of the latter is naturally to try and nip the case in the bud by

inducing the complaining witness to abandon the prosecution. In a vast

number of cases he is successful. He appeals to the charity of the

injured party, quotes a little of the Scriptures and the "Golden Rule,"

pictures the destitute condition of the defendant's family should

he be cast into prison, and the dragging of an honored name in the

gutter if he should be convicted. Few complainants have ever before

appeared in a police court, and are filled with repugnance at the

rough treatment of prisoners and the suffering which they observe upon

every side. After they have seen the prisoner emerge from the cells,

pale, hollow-eyed, bedraggled, and have beheld the tears of his wife

and children as they crowd around the husband and father, they begin

to realize the horrible consequences of a criminal prosecution and to

regret that they ever took the steps which have brought the wrong-doer

where he is. The district attorney has not yet taken up the case; the

prosecution up to this point is of a private character; there are loud

promises of "restitution" and future good behavior from the defendant,

and the occasion is ripe for the lawyer to urge the complainant to

"temper justice with mercy" and withdraw "before it be too late and the

poor man be ruined forever."

If the complainant is, however, bent on bringing the defendant to

justice and remains adamantine to the arguments of the lawyer and

the tears of the defendant's family connections, it remains for the

prisoner's attorney to endeavor to get the case adjourned "until

matters can be adjusted"--to wit, restitution made if money has been

stolen, or doctors' bills paid if a head has been cracked, with perhaps

another chance of "pulling off" the complainant and his witnesses.

Failing in an attempt to secure an adjournment, two courses remain

open: first, to persuade the court that the matter is a trivial one

arising out of petty spite, is all a mistake, or that at best it is a

case of "disorderly conduct" (and thus induce the judge to "turn the

case out" or inflict some trifling punishment in the shape of a fine);

or, second, if it be clear that a real crime has been committed, to

clamor for an immediate hearing in order, if it be secured, to subject

the prosecution's witnesses to a most exhaustive cross-examination,

and thus get a clear idea of just what evidence there is against the

accused.

At the conclusion of the complainant's case, if it appear reasonably

certain that the magistrate will "hold" the prisoner for the action of

a superior court, the lawyer will then "waive further examination," or,

in other words, put in no defence, preferring the certainty of having

to face a jury trial to affording the prosecution an opportunity to

discover exactly what defence will be put in and to secure evidence in

advance of the trial to rebut it. Thus it rarely happens in criminal

cases of importance that the district attorney knows what the defence

is to be until the defendant himself takes the stand, and, by "waiving

further examination" in the police court, the astute criminal attorney

may select at his leisure the defence best suited to fit in with and

render nugatory the prosecution's evidence.

The writer has frequently been told by the attorney for a defendant

_on trial_ for crime that "the defence has not yet been decided upon."

In fact, such statements are exceedingly common. In many courts the

attitude of all parties concerned seems to be that the defendant will

put up a perjured defence (so far as his own testimony is concerned, at

any rate) as a matter of course, and that this is hardly to be taken

against him.

On the other hand, if a guilty defendant has been so badly advised as

to give his own version of the case before the magistrate in the first

instance, it requires but slight assiduity on the part of the district

attorney to secure, in the interval between the hearing and the jury

trial, ample evidence to rebut it.

As illustrating merely the fertility and resourcefulness of some

defendants (or perhaps their counsel), the writer recalls a case

which he tried in the year 1902 where the defendant, a druggist, was

charged with manslaughter in having caused the death of an infant

by filling a doctor's prescription for calomel with morphine. It so

happened that two jars containing standard pills had been standing

side by side upon an adjacent shelf, and, a prescription for morphine

having come in at the same time as that for the calomel, the druggist

had carelessly filled the morphine prescription with calomel, and the

calomel prescription with morphine. The adult for whom the morphine had

been prescribed recovered immediately under the beneficent influence of

the calomel, but the baby for whom the calomel had been ordered died

from the effects of the first morphine pill administered. All this had

occurred in 1897--five years before. The remainder of the pills had

disappeared.

Upon the trial (no inconsistent contention having been entered in the

police court) the prisoner's counsel introduced six separate defences,

to wit: That the prescription had been _properly_ filled with calomel

and that the child had died from natural causes, the following being

suggested:

1. Acute gastritis.

2. Acute nephritis.

3. Cerebro-spinal meningitis.

4. Fulminating meningitis.

5. That the child had died of _apomorphine_, a totally distinct poison.

6. That it had received and taken calomel, but that, having eaten a

small piece of pickle shortly before, the conjunction of the vegetable

acid with the calomel had formed, in the child's stomach, a precipitate

of corrosive sublimate, from which it had died.

These were all argued with great learning. During the trial the box

containing the balance of the pills, which the defence contended were

calomel, unexpectedly turned up. It has always been one of the greatest

regrets of the writer's life that he did not then and there challenge

the defendant _to eat one of the pills_ and thus prove the good faith

of his defence.

This was one of the very rare cases where a chemical analysis has been

conducted in open court. The chemist first tested a standard trade

morphine pill with sulphuric acid, so that the jury could personally

observe the various color reactions for themselves. He then took one

of the contested pills and subjected it to the same test. The first

pill had at once turned to a brilliant rose, but the contested pill,

being antiquated, "hung fire," as it were, for some seconds. As nothing

occurred, dismay made itself evident on the face of the prosecutor, and

for a moment he felt that all was lost. Then the five-year-old pill

slowly turned to a faint brown, changed to a yellowish red, and finally

broke into an ardent rose. The jury settled back into their seats with

an audible "Ah!" and the defendant was convicted.

Let us return, however, to that point in the proceedings where the

defendant has been "held for trial" by the magistrate. The prisoner's

counsel now endeavors to convince the district attorney that "there

is nothing in the case," and continues unremittingly to work upon the

feelings of the complainant. If he finds that his labors are likely

to be fruitless in both directions, he may now seek an opportunity to

secure permission for his client to appear before the grand jury and

explain away, if possible, the charge against him.

We will assume, however, that, in spite of the assiduity of his

lawyer, the prisoner has at last been indicted and is awaiting

trial. What can be done about it? Of course, if the case could be

indefinitely adjourned, the complainant or his chief witness might

die or move away to some other jurisdiction, and if the indictment

could be "pigeon-holed" the case might die a natural death of itself.

Indictments, however, in New York County, whatever may be the case

elsewhere, are no longer "pigeon-holed," and they cannot be adequately

"lost," since certified copies are made of each. The next step,

therefore, is to secure as long a time as possible before trial.

Usually a prisoner has nothing to lose and everything to gain by

delay, and the excuses offered for adjournment are often ingenious in

the extreme. The writer knows one criminal attorney who, if driven

to the wall in the matter of excuses, will always serenely announce

the death of a near relative and the obligation devolving upon him to

attend the funeral. Another, as a last resort, regularly is attacked

in open court by severe cramps in the stomach. If the court insists

on the trial proceeding, he invariably recovers. Of course, there are

many legitimate reasons for adjourning cases which the prosecution is

powerless to combat.

The most effective method invoked to secure delay, and one which

it is practically useless for the district attorney to oppose, is

an application "to take testimony" upon commission in some distant

place. Here again it must be borne in mind that such applications are

often legitimate and proper and should be granted in simple justice

to the defendant. Although this right to take the testimony of absent

witnesses is confined in New York State to the defendant and does not

extend to the prosecution, and is undoubtedly often the subject of much

abuse, it not infrequently is the cause of saving an innocent man.

An example of this was the case of William H. Ellis, recently

brought into the public eye through his connection with the treaty

between the United States Government and King Menelik of Abyssinia.

Ellis was accused in 1901 by a young woman of apparently excellent

antecedents and character of a serious crime. Prior to his indictment

a colored man employed in his office (the alleged scene of the crime)

disappeared. When the case was moved for trial, Ellis, through his

attorneys, moved for a commission to take the testimony of this

absent, but clearly material, witness in one of the remote States of

Mexico--a proceeding which would require a journey of some two weeks

on muleback, beyond the railway terminus. The district attorney, in

view of the peculiarly opportune disappearance of this person from

the jurisdiction, strenuously opposed the application and hinted at

collusion between Ellis and the witness. The application, however, was

granted, and a delay of over a month ensued. During that time evidence

was procured by the counsel of the prisoner showing conclusively that

the complaining witness _was mentally unsound and had made similar

and groundless charges against others_. The indictment was at once

dismissed.

But such delays are not always so righteously employed. There is a

story told of a case where a notorious character was charged with

the unusual crime of "mayhem"--biting off another man's finger. The

defendant's counsel secured adjournment after adjournment--no one knew

why. At last the case was moved for trial and the prosecution put

in its evidence, clearly showing the guilt of the prisoner. At the

conclusion of the People's testimony, the lawyer for the defendant

arose and harshly stigmatized the story of the complainant as a "pack

of lies."

"I will prove to you in a moment, gentlemen," exclaimed he to the jury,

"how absurd is this charge against my innocent client. Take the stand!"

The prisoner arose and walked to the witness-chair.

"Open your mouth!" shouted the lawyer.

The defendant did so. He had not a tooth in his head. The delay had

been advantageously employed.

The importance of mere delay to a guilty defendant cannot well be

overestimated. "You never can tell what may happen to knock a case on

the head." For this reason a sufficiently paid and properly equipped

counsel will run the whole gamut of criminal procedure, and--

1. Demur to the indictment.

2. Move for an inspection of the minutes of the proceedings before the

grand jury.

3. Move to dismiss the indictment for lack of sufficient evidence

before that body.

4. Move for a commission to take testimony.

5. Move for a change of venue.

6. Secure, where possible, a writ of habeas corpus and a stay of

proceedings from some federal judge on the ground that his client is

confined without due process of law.

All these steps he will take _seriatim_, and some cases have been

delayed for as much as two years by merely invoking "legitimate" legal

processes. In point of fact it is quite possible for any defendant

absolutely to prevent an immediate trial provided he has the services

of vigilant counsel, for these are not the only proceedings of which he

can avail himself.

A totally distinct method is for the defendant to secure bail, and,

after securing as many adjournments as possible, simply flee the

jurisdiction. He will then remain away until the case is hopelessly

stale, or he no longer fears prosecution.

In default of all else he may go "insane" just before the case is

moved for trial. This habit of the criminal rich when brought to book

for their misdeeds is too well known to require comment. All that is

necessary is for a sufficient number of "expert" alienists to declare

it to be their opinion that the defendant is mentally incapable of

understanding the proceedings against him or of preparing his defence,

and he is shifted off to a "sanitarium" until some new sensation

occupies the public mind and his offences are partially forgotten.

In this way justice is often thwarted and the law cheated of its

victim, but unless fortune favors him, sooner or later the indicted

man must return for trial and submit the charge against him to a jury.

But if this happens, even if he be guilty, all hope need not be lost.

There are still "tricks of the trade" which may save him from the

clutches of the law.

AT THE TRIAL

What can be done when at last the prisoner who has fought persistently

for adjournment has been forced to face the witnesses against him and

submit the evidence to a jury of peers? Let us assume further that

he has been "out on bail," with plenty of opportunity to prepare his

defence and lay his plans for escape.

When the case is finally called and the defendant takes his seat at

the bar after a lapse of anywhere from six months to a year or more

after his arrest, the first question for the district attorney to

investigate is whether or no the person presenting himself for trial

be in point of fact the individual mentioned in the indictment. This

is often a difficult matter to determine. "Ringers"--particularly in

the magistrates' courts--are by no means unknown. Sometimes they appear

even in the higher courts. If the defendant be an ex-convict or a

well-known crook, his photograph and measurements will speedily remove

all doubt upon the subject, but if he be a foreigner (particularly a

Pole, Italian or a Chinaman), or even merely one of the homogeneous

inhabitants of the densely-populated East Side of New York, it is

sometimes a puzzling problem. "Mock Duck," the celebrated Highbinder

of Chinatown, who was set free after two lengthy trials for murder,

was charged not long ago with a second assassination. He was pointed

out to the police by various Chinamen, arrested and brought into the

Criminal Courts building for identification, but for a long time it

was a matter of uncertainty whether friends of his (masquerading as

enemies) had not surrendered a substitute. Luckily the assistant

district attorney who had prosecuted this wily and dangerous Celestial

in the first instance was able to identify him.

Many years ago, during the days of Fernando Wood, a connection of

his was reputed to be the power behind the "policy" business in New

York City--the predecessor of the notorious Al Adams. A "runner"

belonging to the system having been arrested and policy slips having

been found in his possession, the reigning Policy King retained a

lawyer of eminent respectability to see what could be done about it.

The defendant was a particularly valuable man in the business and

one for whom his employer desired to do everything in his power. The

lawyer advised the defendant to plead guilty, provided the judge

could be induced to let him off with a fine, which the Policy King

agreed to pay. Accordingly, the lawyer visited the judge in his

chambers and the latter practically promised to inflict only a fine in

case the defendant, whom we will call, out of consideration for his

memory, "Johnny Dough," should plead guilty. Unfortunately for this

very satisfactory arrangement, the judge, now long since deceased,

was afflicted with a serious mental trouble which occasionally

manifested itself in peculiar losses of memory. When "Johnny Dough,"

the Policy King's favorite, was arraigned at the bar and, in answer

to the clerk's interrogation, stated that he withdrew his plea of

"not guilty" and now stood ready to plead "guilty," the judge, to

the surprise and consternation of the lawyer, the defendant, and the

latter's assembled friends, turned upon him and exclaimed:

"Ha! So you plead guilty, do you? Well, I sentence you to the

penitentiary for one year, you miserable scoundrel!"

Utterly overwhelmed, "Johnny Dough" was led away, while his lawyer

and relatives retired to the corridor to express their opinion of the

court. About three months later the lawyer, who had heard nothing

further concerning the case, happened to be in the office of the

district attorney, when the latter looked up with a smile and inquired:

"Well, how's your client--Mr. Dough?"

"Safe on the Island, I suppose," replied the lawyer.

"Not a bit of it," returned the district attorney. "He never went

there."

"What do you mean?" inquired the lawyer. "I heard him sentenced to a

year myself!"

"I can't help that," said the district attorney. "The other day a

workingman went down to the Island to see his old friend 'Johnny

Dough.' There was only one 'Johnny Dough' on the lists, but when he was

produced the visitor exclaimed: '_That_ Johnny Dough! That ain't him

_at all_, at all!' The visitor departed in disgust. We instituted an

investigation and found that the man at the Island was a 'ringer.'"

"You don't say!" cried the lawyer.

"Yes," continued the district attorney. "But that is not the best part

of it. You see, the 'ringer' says he was to get two hundred dollars

per month for each month of Dough's sentence which he served. The

prison authorities have refused to keep him any longer, and _now he

is suing them for damages_, and is trying to get a writ of mandamus

to compel them to take him back and let him serve out the rest of the

sentence!"

Probably the most successful instance on record of making use of a

dummy occurred in the early stages of the now famous Morse-Dodge

divorce tangle. Dodge had been the first husband of Mrs. Morse,

and from him she had secured a divorce. A proceeding to effect the

annulment of her second marriage had been begun on the ground that

Dodge had never been legally served with the papers in the original

divorce case--in other words, to establish the fact that she was still,

in spite of her marriage to Morse, the wife of Dodge. Dodge appeared

in New York and swore that he had never been served with any papers.

A well-known and reputable lawyer, on the other hand, Mr. Sweetser,

was prepared to swear that he had served them personally upon Dodge

himself. The matter was sent by the court to a referee. At the hour set

for the hearing in the referee's office, Messrs. Hummel and Steinhardt

arrived early, in company with a third person, and took their seats

with their backs to a window on one side of the table, at the head of

which sat the referee, and opposite ex-Judge Fursman, attorney for Mrs.

Morse. Mr. Sweetser was late. Presently he appeared, entered the office

hurriedly, bowed to the referee, apologized for being tardy, greeted

Messrs. Steinhardt and Hummel, and then, turning to their companion,

exclaimed: "How do you do, Mr. Dodge?" It was not Dodge at all, but an

acquaintance of one of Howe & Hummel's office force who had been asked

to accommodate them. Nothing had been said, no representations had been

made, and Sweetser had voluntarily walked into a trap.

The attempt to induce witnesses to identify "dummies" is frequently

made by both sides in criminal cases, and under certain circumstances

is generally regarded as professional. Of course, in such instances no

false suggestions are made, the witness himself being relied upon to

"drop the fall." In case he does identify the wrong person, he has, of

course, invalidated his entire testimony.

Not in one case out of five hundred, however, is any attempt made

to substitute a "dummy" for the real defendant, the reason being,

presumably, the prejudice innocent people have against going to prison

even for a large reward. The question resolves itself, therefore,

into how to get the client off when he is actually on trial. First,

how can the sympathies of the jury be enlisted at the very start?

Weeping wives and wailing infants are a drug on the market. It is a

friendless man indeed, even if he be a bachelor, who cannot procure

for the purposes of his trial the services of a temporary wife and

miscellaneous collection of children. Not that he need swear that they

are his! They are merely lined up along a bench well to the front of

the court-room--the imagination of the juryman does the rest.

A defendant's counsel always endeavors to impress the jury with the

idea that all he wants is a fair, open trial--and that he has nothing

in the world to conceal. This usually takes the form of a loud

announcement that _he_ is willing "to take the first twelve men who

enter the box." Inasmuch as the defence needs only to secure the vote

of one juryman to procure a disagreement, this offer is a comparatively

safe one for the defendant to make, since the prosecutor, who must

secure unanimity on the part of the jury (at least in New York State),

can afford to take no chances of letting an incompetent or otherwise

unfit talesman slip into the box. Caution requires him to _examine_ the

jury in every important case, and frequently this ruse on the part of

the defendant makes it appear as if the State had less confidence in

its case than the defence. This trick was invariably used by the late

William F. Howe in all homicide cases where he appeared for the defence.

The next step is to slip some juryman into the box who is likely for

any one of a thousand reasons to lean towards the defence--as, for

example, one who is of the same religion, nationality or even name

as the defendant. The writer once tried a case where the defendant

was a Hebrew named Bauman, charged with perjury. Mr. Abraham Levy was

the counsel for the defendant. Having left an associate to select the

jury the writer returned to the court-room to find that his friend had

chosen for foreman a Hebrew named _Abraham Levy_. Needless to say, a

disagreement of the jury was the almost inevitable result. The same

lawyer not many years ago defended a _client_ named Abraham Levy. In

like manner he managed to get an Abraham Levy on the jury, and on that

occasion succeeded in getting his client off scot-free.

No method is too far-fetched to be made use of on the chance of

"catching" some stray talesman. In a case defended by Ambrose Hal.

Purdy, where the deceased had been wantonly stabbed to death by a

blood-thirsty Italian shortly after the assassination of President

McKinley, the defence was interposed that a quarrel had arisen between

the two men owing to the fact that the deceased had loudly proclaimed

anarchistic doctrines and openly gloried in the death of the President,

that the defendant had expostulated with him, whereupon the deceased

had violently attacked the prisoner, who had killed him in self-defence.

The whole thing was so thin as to deceive nobody, but Mr. Purdy, as

each talesman took the witness-chair to be examined on the _voir dire_,

solemnly asked each one:

"Pardon me for asking such a question at this time--it is only my

duty to my unfortunate client that impels me to it--but have you _any

sympathy with anarchy_ or with _assassination_?"

The talesman, of course, inevitably replied in the negative.

"Thank you, sir," Purdy would continue. "In _that event_ you are

_entirely acceptable_!"

Not long ago two shrewd Irish attorneys were engaged in defending a

client charged with an atrocious murder. The defendant had the most

Hebraic cast of countenance imaginable, and a beard that reached to

his waist. Practically the only question which these lawyers put to

the different talesmen during the selection of the jury was, "Have you

any prejudice against the defendant _on account of his race_?" In due

course they succeeded in getting several Hebrews upon the jury who

managed in the jury-room to argue the verdict down from murder to

manslaughter in the second degree. As the defendant was being taken

across the bridge to the Tombs he fell on his knees and offered up a

heartfelt prayer such as could only have emanated from the lips of a

devout Roman Catholic.

Lawyers frequently secure the good-will of jurors (which may last

throughout the trial and show itself in the verdict) by some happy

remark during the early stages of the case. During the Clancy murder

trial each side exhausted its thirty peremptory challenges and also

the entire panel of jurors in filling the box. At this stage of the

case the foreman became ill and had to be excused. No jurors were left

except one who had been excused by mutual consent for some trifling

reason, and who out of curiosity had remained in court. He rejoiced

in the name of Stone. Both sides then agreed to accept him as foreman

provided he was still willing to serve, and this proving to be the

case he triumphantly made his way towards the box. As he did so, the

defendant's counsel remarked: "The Stone which the builders refused is

become the head Stone of the corner." The good-will generated by this

meagre jest stood him later in excellent stead.

In default of any other defence, some criminal attorneys have been

known to seek to excite sympathy for their helpless clients by

appearing in court so intoxicated as to be manifestly unable to take

care of the defendant's interests, and prisoners have frequently been

acquitted simply by virtue of their lawyer's obvious incapacity. The

attitude of the jury in such cases seems to be that the defendant has

not had a "fair show" and so should be acquitted anyway. Of course,

this appeals to the juryman's sympathies and he overlooks the fact that

by his action the prosecution is given no "show" at all.

Generally speaking, the advice credited to Mr. Lincoln, as being given

by him to a young attorney who was about to defend a presumably guilty

client, is religiously followed by all criminal practitioners:

"Well, my boy, if you've got a good case, stick to the evidence; if

you've got a weak one, go for the People's witnesses; but--if you've

got no case at all, _hammer the district attorney_!"

As a rule, however, criminal lawyers are not in a position to "hammer"

the prosecuting officer, but endeavor instead to suggest by innuendo or

even open declaration his bias and unfairness.

"Be _fair_, Mr. ----!" is the continual cry. "Try to be _fair_!"

The defendant, whether he be an ex-convict or thirty-year-old

professional thief, is always "this poor boy," and, as he is not

compelled by law to testify, and as his failure to do so must not be

weighed against him by the jury, he frequently walks out of court a

free man, because the jury believe from the lawyer's remarks that he

is in fact a mere youthful offender of hitherto good reputation and

deserves another chance.

By all odds the greatest abuse in criminal trials lies in the

open disregard of professional ethics on the part of lawyers who

deliberately supply of themselves, in their opening and closing

addresses to the jury, what incompetent bits of evidence, true or

false, they have not been able to establish by their witnesses. There

is no complete cure for this, for even if the judge rebukes the

lawyer and directs the jury to disregard what he has said as "not

being in the evidence," the damage has been done, the statement still

lingering in the jury's mind without any opportunity on the part of the

prosecutor to disprove it. There is no antidote for such jury-poison.

A shyster lawyer need but to keep his client off the stand and he can

saturate the jury's mind with any facts concerning the defendant's

respectability and history which his imagination is powerful enough

to supply. On such occasions an ex-convict with no relatives may

become a "noble fellow, who, rather than have his family name tainted

by being connected with a criminal trial, is willing to risk even

conviction"--"a veteran of the glorious war which knocked the shackles

from the slave"--"the father of nine children"--"a man hounded by the

police." The district attorney may shout himself hoarse, the judge may

pound his gavel in righteous indignation, the lawyer may apologize

because in the zeal with which he feels inspired for his client's

cause he perhaps (which only makes matters worse) has _overstepped the

mark_--but some juryman may suppose that, after all, the prisoner _is_

a hero or nine times a father.

There is one notorious attorney who poses as a philanthropist and who

invariably promises the jury that if they acquit his client he will

personally give him employment. If he has kept half of his promises he

must by this time have several hundred clerks, gardeners, coachmen,

choremen and valets.

In like manner attorneys of this feather will deliberately state

to the jury that _if_ the defendant had taken the stand he _would

have_ testified thus and so; or that if certain witnesses who have

not appeared (and who perhaps in reality do not exist at all) _had_

testified they would have established various facts. Such lawyers

should be locked up or disbarred; courts are powerless to negative

entirely their dishonesty in individual cases.

Clever counsel, of course, habitually make use of all sorts of appeals

to sympathy and prejudice. In one case in New York in which James W.

Osborne appeared as prosecutor the defendant wore a G.A.R. button. His

lawyer managed to get a veteran on the jury. Mr. Osborne is a native

of North Carolina. The defendant's counsel, to use his own words,

"worked the war for all it was worth," and the defendant lived, bled

and died for his country over and over again. In summing up the case,

the attorney addressed himself particularly to the veteran on the back

row, and, after referring to numerous imaginary engagements, exclaimed:

"Why, gentlemen, my client was pouring out his life blood upon the

field of battle when the ancestors of Mr. Osborne were raising their

hands against the flag!" For once Mr. Osborne had no adequate words to

reply.

By far the most effective and dangerous "trick" employed by guilty

defendants is the deliberate shouldering of the entire blame by one of

two persons who are indicted together for a single offence. A common

example of this is where two men are caught at the same time bearing

away between them the spoil of their crime and are jointly indicted

for "criminally receiving stolen property." Both, probably, are "side

partners," equally guilty, and have burglarized some house or store in

each other's company. They may be old pals and often have served time

together. They agree to demand separate trials, and that whoever is

convicted first shall assume the entire responsibility. Accordingly, A.

is tried and, in spite of his asseveration that he is innocent and that

the "stuff" was given him by a strange man, who paid him a dollar to

transport it to a certain place, is properly convicted.[45] The bargain

holds. B.'s case is moved for trial and he claims never to have seen

A. in his life before the night in question, and that he volunteered

to help the latter carry a bundle which seemed to be too heavy for

him. He calls A., who testifies that this is so--that B., whom he did

not know from Adam, tendered his services and that he availed himself

of the offer. The jury are usually prone to acquit, as the weight of

evidence is clearly with the defendant.

Many changes are rung upon this device. There is said to have been a

case in which the defendant was convicted of murder in the first degree

and sentenced to be executed. It was one of circumstantial evidence and

the verdict was the result of hours of deliberation on the part of the

jury. The prisoner had stoutly denied knowing anything of the homicide.

Shortly before the date set for the execution, another man turned up

who admitted that he had committed the crime and made the fullest sort

of a confession. A new trial was thereupon granted by the Appellate

Court, and the convict, on the application of the prosecuting attorney,

was discharged and quickly made himself scarce. It then developed that

apart from the prisoner's own confession there was practically nothing

to connect him with the crime. Under a statute making such evidence

obligatory in order to render a confession sufficient for a conviction,

the prisoner had to be discharged.

In the case of Mabel Parker, a young woman of twenty, charged with

the forgery of a large number of checks, many of them for substantial

amounts, her husband made an almost successful attempt to procure her

acquittal by means of a new variation of the old game. Mrs. Parker,

after her husband had been arrested for _passing_ one of the bogus

checks, had been duped by a detective into believing that the latter

was a fellow criminal who was interested in securing Parker's release.

In due course she took this supposed friend into her confidence, made a

complete confession, and illustrated her skill by impromptu copies of

her forgeries from memory upon a sheet of pad paper. This the detective

secured and then arrested her. She was indicted for forging the name

_Alice Kauser_ to a check upon the Lincoln National Bank. On her trial

she denied having done so, and claimed that the detective had found

the sheet containing her supposed handwriting in her husband's desk,

and that she had written none of the alleged copies upon it. The door

of the court-room then opened, and James Parker was led to the bar and

_pleaded guilty_ to the forgery of the check in question. (For the

benefit of the layman it should be explained that as a rule indictments

for forgery also contain a count for "uttering.") He then took the

stand, admitted that he had not only uttered but had also written the

check, and swore that it was _his handwriting_ which appeared on the

pad.

The prosecutor was nonplussed. If he should ask the witness to prove

his capacity to forge such a check from memory on the witness-stand,

the latter, as he had had ample time to practise the signature while

in prison, would probably succeed in doing so. If, on the other hand,

he should not ask him to write the name, the defendant's counsel would

argue to the jury that he was _afraid_ to do so. The district attorney

therefore took the bull by the horns and challenged Parker to make

from memory a copy of the signature, and, much as he had suspected,

the witness produced a very good one. An acquittal seemed certain,

and the prosecutor was at his wit's end to devise a means to meet this

practical demonstration that the husband was in fact the forger. At

last it was suggested to him that it would be comparatively easy to

memorize such a signature, and acting on this hint he found that after

half an hour's practice he was able to make almost as good a forgery

as Parker. When therefore it came time for him to address the jury he

pointed out the fact that Parker's performance on the witness-stand

really established nothing at all--that any one could forge such a

signature from memory after but a few minutes' practice.

"To prove to you how easily this can be done," said he, "I will

volunteer to write a better Kauser signature than Parker did."

He thereupon seized a pen and began to demonstrate his ability to do

so. Mrs. Parker, seeing the force of this ocular demonstration, grasped

her counsel's arm and cried out: "For God's sake, don't let him do it!"

The lawyer objected, the objection was sustained, but the case was

saved. Why, the jury argued, should the lawyer object unless the making

of such a forgery were in fact an easy matter?

In desperate cases, desperate men will take desperate chances. The

traditional instance where the lawyer, defending a client charged with

causing the death of another by administering poisoned cake, met the

evidence of the prosecution's experts with the remark: "_This is my

answer to their testimony!_" and calmly ate the balance of the cake, is

too familiar to warrant detailed repetition. The jury retired to the

jury-room and the lawyer to his office, where a stomach pump quickly

put him out of danger. The jury is supposed to have acquitted.

Such are some of the tricks of the legal trade as practised in its

criminal branch. Most of them are unsuccessful and serve only to

relieve the gray monotony of the courts. When they achieve their object

they add to the interest of the profession and teach the prosecutor a

lesson by which, perhaps, he may profit in the future.

FOOTNOTES:

[Footnote 45: The defence that the accused innocently received the

stolen property into his possession was a familiar one even in 1697, as

appears by the following record taken from the Minutes of the Sessions.

It would seem that it was even then received with some incredulity.

CITY & COUNTY OF NEW YORK: ss:

Att a Meeting of the Justices of the Peace for the said City & County

att the City Hall of the said City on Thursday the 10th day of June

Anno Dom 1697.

PRESENT.

William Morrott } Esquires

James Graham } quorum

Jacobus Cortlandt } Esquires

Grandt Schuylor } Justices

Leonard Lowie } of the Peace

Jacobus Cortlandt, Esq., one of his Majestys Justices of the peace

for ye said City and County Informed the Kings Justices that a peace

of Linnen Ticking was taken out of his Shop this Morning. That he was

informed a Negro Slave Named Joe was seen to take the same whereupon

the said Jacobus Van Cortlandt Pursued the said Joe and apprehended

him and found the said piece of ticking in his custody and had the

said Negro Joe penned in the cage, upon which the said Negro man

being brought before the said Justices said he did not take the said

ticking out of the Shop window but that a Boy gave itt to him, but

upon Examination of Sundry other Evidence itt Manifestly Appeareth

to the said Justices that the said Negro man Named Joe, did steal

the said piece of linnen ticking out of the Shop Window of the said

Jacobus Van Cortlandt and thereupon doe order the punishment of the

said Negro as follows vigt. That the said Negro man Slave Named Joe

shall be forthwith by the Common whipper of the City or some of the

Sheriffs officers att the Cage be stripped Naked from the Middle

upwards and then and there shall be tyed to the tayle of a Cart and

being soe stripped and tyed shall be Drove Round the City and Receive

upon his naked body att the Corner of each Street nine lashes until

he return to the place from whence he sett out and that he afterwards

Stand Committed to the Sheriffs custody till he pay his fees.]

CHAPTER XVII

WHAT FOSTERS CRIME

To lack of regard for law is mainly due the existence of crime, for

a perfect respect for law would involve entire obedience to it. Yet

crime continues and from time to time breaks forth to such an extent

as to give ground for a popular impression that it is increasing out

of proportion to our growth as a nation. Now, while it may be fairly

questioned whether there is any actual increase of crime in the United

States, and while, on the contrary, observation would seem to show

an actual decrease, not only in crimes of violence, but in all major

crimes, there nevertheless exists to-day a widespread contempt for the

criminal law which, if it has not already stimulated a general increase

of criminal activity, is likely to do so in the future. This contempt

for the law is founded not only upon actual conditions, but also upon

belief in conditions erroneously supposed to exist, which is fostered

by current literature and by the sensational press.

Thus, as has already been pointed out, while it is popularly believed

that women are almost never convicted of crime, and particularly of

homicide, the fact is, at least in New York County, that a much greater

proportion of women charged with murder are convicted than of men

charged with the same offence. To read the newspapers one would suppose

that the mere fact that the defendant was a female instantly paralyzed

the minds of the jury and reduced them to a state of imbecility. The

inevitable result of this must be to encourage lawlessness among the

lower orders of women and to lead them to look upon arrest as a mere

formality without ultimate significance. The writer recalls trying for

murder a negress who had shot her lover not long after the discharge of

a notorious female defendant in a recent spectacular trial in New York.

When asked why she had killed him she replied:

"Oh, Nan Patterson did it and got off."

This is not offered as a reflection upon the failure of the jury

to reach a verdict in the Patterson case, but as an illuminating

illustration of the concrete and immediate effect of all actual or

supposed failures of justice.

A belief that the course of criminal justice is slow and uncertain,

that the chances are all in favor of the defendant, and that he has but

to resort to technicalities to secure not only indefinite delay but

generally ultimate freedom, breeds an indifference amounting almost to

arrogance among law-breakers, powerful and otherwise, and a painful

yet hopeless conviction among honest men that nothing can prevent the

wicked from flourishing. Honesty seems no longer even a good policy,

and the young business man resorts to sharp practices to get ahead of

his unscrupulous competitor. In some localities the uncertainty and

delay attendant upon the execution of the law is the alleged, and maybe

the actual, cause of the community crime of lynching. Even where the

administration of justice is seen at its best many people who have been

wronged believe that there is so little likelihood that the offender

will after all be punished that the cheapest and easiest course is to

let the matter drop. All this gives aid and comfort to the powers of

darkness.

The widespread impression as to the uncertainty of the law is not

entirely a misapprehension. "We have long since passed the period when

it is possible to punish an innocent man. We are now struggling with

the problem whether it is any longer possible to punish the guilty."

It is a melancholy fact that at the present time "penal statutes and

procedure tend more to defeat and retard the ends of justice than to

protect the rights of the accused."

The subject of criminal-law reform is too extensive to be discussed

here even superficially, but historically the explanation of

existing conditions is simple enough. The present overgrown state

of the criminal law is the direct result of our exaggerated regard

for personal liberty, coupled with a wholesale adoption of the

technicalities of English law invented when only such technicalities

could stand between the minor offender and the barbarous punishments of

a bygone age. We forget that the community is composed of individuals,

and we tend to disregard its interests for those of any particular

individual who happens to be a prisoner at the bar. We revolted from

England and incidentally from her system of administering the criminal

law, by which the defendant could have no voice at his own trial,

where practically every crime was punishable with death, and where

only the Crown could produce and examine witnesses. Every one will

have to agree that the English system was very harsh and very unfair

indeed. To-day it is better than ours, simply because its errors have

been systematically and wisely corrected, without diminution in the

national respect for law. When we devised our own system we adopted

those humane expedients for evading the law which were only justified

by the existing penalties attached to convictions for crime,--and then

discarded the penalties. We were through with tyrants once and for all.

The Crown had always been opposed to the defendant and the Crown was a

tyrant. We naturally turned with sympathy towards the prisoner.

We gave him the right of appeal on all matters of law through all the

courts of our States, and even into the courts of the United States,

while we allowed the People no right of appeal at all. If the prisoner

was convicted he could go on and test the case all along the line,--if

he was acquitted the People had to rest satisfied. We stopped the

mouth of the judge and made it illegal for him to "sum up" the case or

discuss the facts to any extent. We clipped the wings of the prosecutor

and allowed him less latitude of expression than an English judge.

Then we gazed on the work of our intellects and said it was good. If

an ignorant jury acquitted a murderer under the eyes of a gagged and

helpless judge, we said that it was all right and that it was better

that ninety-nine guilty men should escape than that one innocent man

should be convicted. Yes,--better for whom? If another murderer, about

whose guilt the highest court in one of the States said there was no

possible doubt, secured three new trials and was finally acquitted on

the fourth, it merely demonstrated how perfectly we safeguarded the

rights of the individual.

The result is that we have unnecessarily fettered ourselves, have

furnished a multitude of technical avenues of escape to wrong-doers,

and have created a popular contempt for courts of justice, which shows

itself in the sentimental and careless verdicts of juries, in a lack

of public spirit, and in an indisposition to prosecute wrong-doers.

In addition, the impression sought to be conveyed by the yellow press

that our judiciary is corrupt and that money can buy anything--even

justice--leads the jury in many cases to feel that their presence is

merely a formal concession to an archaic procedure and that their oaths

have no real significance.

The community, the "People," have a sufficiently hard task to secure

justice at any criminal trial. On the one hand is the abstract

proposition that the law has been violated, on the other sits a human

being, ofttimes contrite, always an object of pity. He is presumed

innocent, he is to be given the benefit of every reasonable doubt. He

has the right to make his own powerful appeal to the jury and to have

the services of the best lawyer he can secure to sway their emotions

and their sympathies. If the prosecutor resorts to eloquence he is

stigmatized as "over-zealous" and as a "persecutor." If a plainly

guilty defendant be acquitted, not the trampled ideal of justice, but

the vision of a liberated prisoner rejoicing in his freedom hovers in

the talesman's dreams.

So far so good; we can afford to stand by a system which in the long

run has served us fairly well. But an occasional evil, an evil which

when it occurs is productive of great harm and serves to give color to

the popular opinion of criminal law, begins only when the lawyers have

had their opportunity for elocution. At the conclusion of the charge

the defendant's attorney proceeds to put the judge through what is

familiarly known as "a course of sprouts." He makes twenty or thirty

"requests to charge the jury" on the most abstract propositions of law

which his fertile mind can devise,--relevant or irrelevant, applicable

or inapplicable to the facts,--and the judge is compelled to decide

from the bench, without opportunity for reflection, questions which the

attorney has labored upon, perchance, for weeks. If he guesses wrong,

the lawyer "excepts" and the case may be reversed on appeal. This is

not a test of the defendant's guilt or innocence, but a test of the

abstract learning and quickness of the presiding judge.

It is generally believed that appellate courts are prone to reverse

criminal cases on purely technical grounds. Whether this belief be well

founded or ill, its wide acceptance as fact is fertile in bringing the

law into disrepute.[46] Justice to be effective must be not only sure

but swift. An "iron hand" cannot always compensate for a "leaden heel."

It is probably true that in some of the States such a tendency exists

and may result in making the administration of justice a laughing

stock, but it is far from being so in States of the character of New

York and Massachusetts. The Appellate Division, First Department,

and Court of Appeals in New York are distinctly opposed to reversing

criminal cases on technical grounds and are prone to disregard trivial

error where the guilt of the defendant is clear. The writer can recall

no recent criminal case where the district attorney's office has felt

aggrieved at the action of the higher courts, and on the contrary

believes that their action is generally based on broad principles of

public policy and common-sense.

During the year 1905 the district attorney of New York County defended

forty-seven appeals from convictions in criminal cases in the Appellate

Division. Of these convictions only _three_ were reversed. He defended

eighteen in the Court of Appeals, of which only _two_ were reversed.

One of the writer's associates computed that he had secured, during a

four years' term of office, twenty-nine convictions in which appeals

had been taken. Of these but two were reversed, one of them immediately

resulting in the defendant's re-conviction for the same crime. The

other is still pending and the defendant awaiting his trial. Certainly

there is little in the actual figures to give color to the impression

that the criminal profits by mere technicalities on appeal,--at least

in New York State.

In nine cases out of ten the reversal of a conviction in a criminal

case is due to the carelessness or inefficiency of the prosecuting

officer or trial judge and not to any inadequacy in our methods of

procedure. Yet the tenth case, the case where the criminal does beat

the law by a technicality, does more harm than can easily be estimated.

That is the one case everybody knows about,--the one the papers descant

upon, the one that cheers the heart of the grafter and every criminal

who can afford to pay a lawyer.