Yet the evil influence of the reversal of a conviction on appeal,

however much it is to be deprecated, is as nothing compared with a

deliberate acquittal of a guilty defendant by a reckless, sentimental,

or lawless jury. Few can appreciate as does a prosecutor the actual,

practical and immediate effect of such a spectacle upon those who

witness it.

Two men were seen to enter an empty dwelling-house in the dead of

night. The alarm was given by a watchman near by, and a young police

officer, who had been but seven months on the force, bravely entered

the black and deserted building, searched it from roof to cellar, and

found the marauders locked in one of the rooms. He called upon them to

open, received no reply, yet without hesitation and without knowing

what the consequences to himself might be, smashed in the door and

apprehended the two men. One was found with a large bundle of skeleton

keys in his pocket and several candles, while a partially consumed

candle lay upon the floor. In the police court they _pleaded guilty_ to

a charge of burglary, and were promptly indicted by the grand jury.

At the trial they claimed to have gone into the house _to sleep_,

said they had found the bunch of keys on the stairs, _denied_ having

the candles at all or that they were in a room on the top story, and

asserted that they were in the entrance hall when arrested.

The story told by the defendants was so utterly ridiculous that one of

the two could not control a grin while giving his version of it on the

witness-stand. The writer, who prosecuted the case, regarded the trial

as a mere formality and hardly felt that it was necessary to sum up the

evidence at all.

Imagine his surprise when an intelligent-looking jury _acquitted_ both

the defendants after practically no deliberation. Both had offered to

plead guilty to a slightly lower degree of crime before the case was

moved for trial.

These two defendants, who were neither insane nor degenerates,

consorted with others in Bowery hotels and saloons,--incubators of

crime. What effect could such a performance have upon them and their

friends save to inculcate a belief that they were licensed to commit as

many burglaries as they chose? They had a practical demonstration that

the law was "no good" and the system a failure. If they could beat a

case in which they had already pleaded _guilty_, what could they not do

where the evidence was less obvious? They were henceforth immune. Who

shall say how many embryonic law-breakers took courage at the story and

started upon an experimental attempt at crime?

The news of such an acquittal must instantly have been carried to the

Tombs, where every other guilty prisoner took heart and prepared anew

his defence. Those about to plead guilty and throw themselves upon the

mercy of the court, abandoned their honest purpose and devised some

perjury instead. Criminals almost persuaded that honesty was the best

policy changed their minds. The barometer of crime swung its needle

from "stormy" to "fair."

But, apart from the law-breakers, consider the effect of such a

miscarriage of justice upon a young, honest and zealous officer.

First, all his good work, his bravery, his conscientious effort at

safeguarding the sleeping public had been disregarded, tossed aside

with a sneer, and had gone for naught. The jury had stamped his story

as a lie and stigmatized him, by their action, as a perjurer. They had

chosen two professional criminals as better men. His whole conduct of

the case instead of being commended as meritorious had resulted in a

solemn public declaration that he was not worthy of credence and that

he had attempted wilfully to railroad to State's prison two innocent

men. In other words, that he ought to be there himself. What was the

use of trying to do good work any longer? He might just as well loiter

in an area on a barrel and smoke a furtive cigar when he ought to be

"on post." Perhaps he might better "stand in" with those who would

inevitably be preferred to him by a jury of their peers.

What must have been the effect on the court officers, the witnesses,

the defendants out on bail, the complainants, the spectators? That

the whole business was nonsense and rot! That the jury system was

ridiculous. That the jurymen were either crooks or fools. That the

only people who were not insulted and sneered at were the law-breakers

themselves. That if two such rogues were to be set free all the other

jailbirds might as well be let go. That an honest man could whistle for

his justice and might better straightway put on his hat and go home.

That the only way to punish a criminal was to punish him yourself--kill

him if you got the chance or get the crowd to lynch him. That if a

thief stole from you the shrewdest thing to do was to induce him as

a set-off to give you the proceeds of his next thieving. That it was

humiliating to live in a town where a self-confessed rascal could snap

his fingers at the law and go unwhipped of justice.

The jury's action must have been due either to a wilful disregard of

their oath or an entire misconception of it. Assuming that the jury

deliberately declined to obey the law, the whole twelve elected

to become, and thereby did become, law-breakers. They disqualified

themselves forever as talesmen. No prosecutor in his senses would move

a case before a jury which numbered any one of them. They had arraigned

themselves upon the side, and under the standard, of crime. They became

accessories after the fact. If on the other hand they misconceived

the purpose for which they were there the performance was a shocking

example of what is possible under present conditions.

Just as there are three general classes of wrongs, so there are three

general and varyingly effective forms of restraint against their

perpetration. First there is the moral control exerted by what is

ordinarily called conscience, secondly there is the restraint which

arises out of the apprehension that the commission of a tort will

be followed by a judgment for damages in a civil court, and lastly

there is the restraint imposed by the criminal law. All these play

their part, separately or in conjunction. For some men conscience

is a sufficient barrier to crime or to those acts which, while

equally reprehensible, are not technically criminal; for others the

possibility of pecuniary loss is enough to keep them in the straight

and narrow way; but for a large proportion of the community the fear of

criminal prosecution, with implied disgrace and ignominy, forfeiture

of citizenship, and confinement in a common jail is about the only

conclusive reason for doing unto others as they would the others should

do unto them. Were the criminal law done away with in our present

state of civilization, religion, ethics and civil procedure would be

absolutely inefficacious to prevent anarchy. It is as imperative to

the ordinary citizen to know that if he steals he will be locked up as

it is for the child to know that if he puts his hand into the fire it

will be burned. The acquittal of every thief breeds another, and the

unpunished murder is an incentive for a dozen similar homicides.

Crimes are either deliberate or the result of accident or impulse.

The last class may rise to a high degree of enormity,--such as

manslaughter, but these crimes are rarely possible of restraint. The

perpetrator does not stop to consider, even if he be sober enough to

think at all, whether his act be moral, whether it will entail any

civil liability, or what will be its consequences, if it be a crime.

So far as such acts are concerned those who commit them are hardly

criminals in the ordinary sense, and no influence in the world is able

to prevent them.

The question is how far these different kinds of restraint operate

upon the community as a whole in the prevention of _deliberate_ crime.

Clearly the fear of pecuniary loss through actions brought to judgment

in the civil courts is practically _nil_. Most persons who set out to

commit crime have no bank account, the absence of one being generally

what leads them into a criminal career.

The writer has no intention of attempting to discuss or estimate the

efficacy of religion or ethics as restraining influences. A certain

limited proportion of the community would not commit crime under any

circumstances. It is enough for them that the act is forbidden by the

State even if it be not really wrong from their own personal point of

view. Side by side with these very good people are a very large number

who wear just as fashionable clothing, have the same friends, attend

the same churches, but who would commit almost any crime so long as

they were sure of not being caught. If we had no criminal law we should

soon discover who were the hypocrites.

But for an overwhelming majority of the community something more

practical than either religion, ethics, or philosophy is necessary to

keep them in order. They must be convinced that the transgressor will

surely be punished,--not some time, not next year or the year after,

but _now_. Not, moreover, that his way will be merely hard, but that he

will be put in stripes and made to break stones.

Hence the necessity for a vigorous and adequate criminal law and

procedure which shall command the respect and loyalty of the community,

administered by a fearless judiciary who will hold jurors to a rigid

and conscientious obedience to their oath.

There is nothing sacred about an archaic criminal procedure which in

some respects is less devised for the protection of the community than

for the exculpation of the guilty. The portals of liberty would not

fall down or the framers of the constitution turn in their graves if

the peremptory challenges allowed to both sides in the selection of a

jury were reduced to a reasonable number, or if persons found guilty

of crime after due process of law were compelled to stay in jail until

their appeals were decided, instead of walking the streets free as air

under a certificate of "reasonable doubt" issued by some judge who

personally knew nothing of the actual trial of the case. As things

stand to-day, a thief caught in the very act of picking a pocket in

the night-time may challenge arbitrarily the twenty most intelligent

talesmen called to sit as jurors in his case. Does such a practice

make for justice? It is even possible that the sacred bird of liberty

would not scream if eleven jurors, instead of twelve, were permitted

to convict a defendant or set him free, while the question of how far

the right of appeal in criminal cases might properly be limited or,

in default of such limitation, how far under certain conditions it

might be correspondingly extended to the community, is by no means

purely academic.[47] It is also conceivable that some means might be

found to do away with the interminable technicalities which can now be

interposed on behalf of the accused to prevent trials or the infliction

of sentence after conviction.

Yet these considerations are of slight moment in contrast to that most

crying of all present abuses,--the domination of the court-room by

the press.[48] It is no fiction to say that in many cases the actual

trial is conducted in the columns of yellow journals and the defendant

acquitted or convicted purely in accordance with an "editorial policy."

Judges, jurors, and attorneys are caricatured and flouted. There is

no evidence, however incompetent, improper, or prejudicial to either

side, excluded by the judge in a court of criminal justice, that is

not deliberately thrust under the noses of the jury in flaring letters

of red or purple the moment they leave the court-room. The judge may

charge one way in accordance with the law of the land, while the

editor charges the same jury in double-leaded paragraphs with what

"unwritten" law may best suit the owner of his conscience and his pen.

"Contempt of court" in its original significance is something known

to-day only to the reader of text books.[49]

Each State has its own particular problem to face, but ultimately the

question is a national one. Lack of respect for law is characteristic

of the American people as a whole. Until we acquire a vastly increased

sense of civic duty we should not complain that crime is increasing

or the law ineffective. It would be a most excellent thing for an

association of our leading citizens to interest itself in criminal-law

reform and demand and secure the passage of new and effective

legislation, but it would accomplish little if its individual members

continued to evade jury service and left their most important duty to

those least qualified by education or experience to perform it.[50] It

would serve some of this class of reformers right, if one day, when

after a life-time of evasion, they perchance came to be tried by a

jury of their peers, they should find that among their twelve judges

there was not one who could read or write the English language with

accuracy and that all were ready to convict anybody because he lived in

a brown-stone front.

Merchants, who in return for a larger possible restitution habitually

compound felonies by tacitly agreeing not to prosecute those who

have defrauded them, have no right to complain because juries acquit

the offenders whom they finally decide it to be worth their while to

pursue. The voter who has not the courage to insist that hypocritical

laws should be wiped from the statute books should express no surprise

when juries refuse to convict those who violate them. The man who

perjures himself to escape his taxes has no right to expect that his

fellow citizens are going to place a higher value upon an oath than he.

FOOTNOTES:

[Footnote 46: Cf. "Criminal Law Reform," G.W. Alger, "The Outlook,"

June, 1907. Also article having same title in "Moral Overstrain," by

same author. See also, by Hon. C.F. Amidon, "The Quest for Error and

the doing of Justice," 40 American Law Rev. 681, and article on same

subject in "The Outlook" for June, 1906.]

[Footnote 47: "Limitation of the Right of Appeal in Criminal Cases," by

Nathan A. Smythe, 17 Harvard Law Rev. 317 (1905).]

[Footnote 48: Cf. "Sensational Journalism and the Law," in "Moral

Overstrain," by G.W. Alger.]

[Footnote 49: By the New York Penal Code § 143, an editor is only

guilty of contempt of court (a misdemeanor) if he publishes "a false

or grossly inaccurate report" of its proceedings. The most insidious,

dangerous, offensive and prejudicial matter spread broadcast by the

daily press does not relate to actual trials at all, but to matters

entirely outside the record, such as what certain witnesses of either

side could establish were they available, the "real" past and character

of the defendant, etc. The New York Courts, under the present statute,

are powerless to prevent this abuse. In Massachusetts half a dozen of

our principal editors and "special writers" would have been locked up

long ago to the betterment of the community and to the increase of

respect for our courts of justice.]

[Footnote 50: "The Citizen and the Jury," in "Moral Overstrain," by

G.W. Alger.]

CHAPTER XVIII

INSANITY AND THE LAW

Harry Kendall Thaw shot and killed Stanford White on the 25th day of

June, 1905. Although most of the Coroner's jury which first sat upon

the case considered him irrational, he was committed to the Tombs and,

having been indicted for murder, remained there over six months pending

his trial. During that time it was a matter of common knowledge that

his defence was to be that he was insane at the time of the shooting,

but as under the New York law it is not necessary specifically to

enter a plea of insanity to the indictment in order to take advantage

of that defence (which may be proven under the general plea of "not

guilty"), there was nothing officially on record to indicate this

purpose. Neither was it possible for the District Attorney to secure

any evidence of Thaw's mental condition, since he positively refused

either to talk to the prosecutor's medical representatives or to allow

himself to be examined by them. Mr. Jerome therefore was compelled to

enter upon an elaborate and expensive preparation of the case, not

only upon its merits, but upon the possible question of the criminal

irresponsibility of the defendant.

The case was moved in January, 1906, and the defence thereupon

proceeded to introduce a limited amount of testimony tending to show

that Thaw was insane when he did the shooting. While much of this

evidence commended itself but little to either the prosecutor or the

jury, it was sufficient to raise grave doubt as to whether the accused

was a fit subject for trial. The District Attorney's experts united

in the opinion that, while he knew that he was doing wrong when he

shot White, he was, nevertheless, the victim of a hopeless progressive

form of insanity called _dementia præcox_. In the midst of the trial,

therefore, Mr. Jerome moved for a commission to examine into the

question of how far Thaw was capable of understanding the nature of

the proceedings against him and consulting with counsel, and frankly

expressed his personal opinion in open court that Thaw was no more

a proper subject for trial than a baby. A commission was appointed

which reported the prisoner sane enough to be tried, and the case then

proceeded at great length with the surprising result that, in spite

of the District Attorney's earlier declaration that he believed Thaw

to be insane, the jury disagreed as to his criminal responsibility, a

substantial number voting for conviction. Of course, logically, they

would have been obliged either to acquit entirely on the ground of

insanity or convict of murder in the first degree, but several voted

for murder in the second degree.

A year now elapsed, during which equally elaborate preparations were

made for a second trial. The State had already spent some $25,000, and

yet its experts had never had the slightest opportunity to examine

or interrogate the defendant, for the latter had not taken the stand

at the first trial. The District Attorney still remained on record

as having declared Thaw to be insane, and his own experts were

committed to the same proposition, yet his official duty compelled him

to prosecute the defendant a second time. The first prosecution had

occupied months and delayed the trial of hundreds of other prisoners,

and the next bid fair to do the same. But at this second trial the

defence introduced enough testimony within two days to satisfy the

public at large of the unbalanced mental condition of the defendant

from boyhood.

After a comparatively short period of deliberation the jury acquitted

the prisoner "on the ground of insanity," which may have meant either

one of two things: (_a_) that they had a reasonable doubt in their

own minds that Thaw knew that he was doing wrong when he committed

the murder--something hard for the layman to believe, or (_b_) that,

realizing that he was undoubtedly the victim of mental disease, they

refused to follow the strict legal test.

Nearly two years had elapsed since the homicide; over a hundred

thousand dollars had been spent upon the case; every corner of the

community had been deluged with detailed accounts of unspeakable

filth and depravity; the moral tone of society had been depressed;

and the only element which had profited by this whole lamentable and

unnecessary proceeding had been the sensational press. Yet the sole

reason for it all was that the law of the land in respect to insane

persons accused of crime was hopelessly out of date.

The question of how far persons who are victims of diseased mind

shall be held criminally responsible for their acts has vexed judges,

jurors, doctors, and lawyers for the last hundred years. During that

time, in spite of the fact that the law has lagged far behind science

in the march of progress, we have blundered along expecting our juries

to reach substantial justice by dealing with each individual accused as

most appeals to their enlightened common sense.

And the fact that they have obeyed their common sense rather than the

law is the only reason why our present antiquated and unsatisfactory

test of who shall be and who shall not be held "responsible" in the

eye of the law remains untouched upon the statute-books. Because its

inadequacy is so apparent, and because no experienced person seriously

expects juries to apply it consistently, it fairly deserves first place

in any discussion of present problems.

Thanks to human sympathy, the law governing insanity has had

comparatively few victims, but the fact remains that more than one

irresponsible insane man has swung miserably from the scaffold. But

"hard cases" do more than "make bad law," they make lawlessness. A

statute systematically violated is worse than no statute at all, and

exactly in so far as we secure a sort of justice by evading the law as

it stands, we make a laughing-stock of our procedure.

The law is, simply, that any person is to be held criminally

responsible for a deed unless he was at the time laboring under such a

defect of reason as not to know the nature and quality of his act and

that it was wrong.

This doctrine first took concrete form in 1843, when, after a person

named McNaughten, who had shot and killed a certain Mr. Drummond

under an insane delusion that the latter was Sir Robert Peel, had been

acquitted, there was such popular uneasiness over the question of what

constituted criminal responsibility that the House of Lords submitted

four questions to the fifteen judges of England asking for an opinion

on the law governing responsibility for offences committed by persons

afflicted with _certain forms_ of insanity. It is unnecessary to set

forth at length these questions, but it is enough to say that the

judges formulated the fore-going rule as containing the issue which

should be submitted to the jury in such cases.[51]

Now, with that commendable reverence for judicial utterance which

is so characteristic of the English nation, and is so conspicuously

absent in our own country, it was assumed until recently that this

solemn pronunciamento was the last word on the question of criminal

responsibility and settled the matter once and forever. Barristers and

legislators did not trouble themselves particularly over the fact that

in 1843 the study of mental disease was in its infancy, and judges,

including those of England, probably knew even less about the subject

than they do now. In 1843 it was supposed that insanity, save of the

sort that was obviously maniacal, necessitated "delusions," and unless

a man had these delusions no one regarded him as insane. In the words

of a certain well-known judge:

"The true criterion, the true test of the absence or presence of

insanity, I take to be the absence or presence of what, used in

a certain sense of it, is comprisable in a single term, namely,

delusion.... In short, I look on delusion ... and insanity to be

almost, if not altogether, convertible terms."[52]

This in a certain broad sense, probably not intended by the judge who

made the statement, is nearly true, but, unfortunately, is not entirely

so.

The dense ignorance surrounding mental disease and the barbarous

treatment of the insane within a century are facts familiar to

everybody. Lunatics were supposed to be afflicted with demons or devils

which took possession of them as retribution for their sins, and in

addition to the hopelessly or maniacally insane, medical science

recognized only a so-called "partial" or delusionary insanity. To-day

it would be regarded about as comprehensive to relate all mental

diseases to the old-fashioned "delusion" as to regard as insane only

those who frothed at the mouth.

But the particular individual out of whose case in 1843 arose the rule

that is in 1908 applied to all defendants indiscriminately was the

victim of a clearly defined insane delusion, and the four questions

answered by the judges of England relate only to persons who are

"_afflicted with insane delusions in respect to one or more particular

subjects or persons_." Nothing is said about insane persons _without_

delusions, or about persons with _general_ delusions, and the judges

limit their answers even further by making them apply "to those persons

who labor under such partial delusion only _and are not in other

respects insane_"--a medical impossibility.

Modern authorities agree that a man cannot have insane delusions and

not be in other respects insane, for it is mental derangement which is

the cause of the delusion.

In the first place, therefore, a fundamental conception of the judges

in answering the questions was probably fallacious, and in the second,

although the test they offered was distinctly limited to persons

"_afflicted with insane delusions_," it has ever since been applied to

all insane persons irrespective of their symptoms.

Finally, whether the judges knew anything about insanity or not, and

whether in their answers they weighed their words very carefully or

not, the test _as they laid it down_ is by no means clear from a

medical or even legal point of view.

Was the accused laboring under such a defect of reason as not to _know_

the nature and quality of the act he was doing, or not to _know_ that

it was wrong? What did these judges mean by _know_? What does the

reader mean by _know_? What does the ordinary juryman mean by it?

We are left in doubt as to whether the word should be given, as

Justice Stephens contended it should be, a very broad and liberal

interpretation such as "able to judge calmly and reasonably of the

moral or legal character of a proposed action,"[53] or a limited and

qualified one. There are all grades and degrees of "knowledge," and it

is more than probable that there is a state of mind which I have heard

an astute expert call upon the witness stand "an insane knowledge,"

and equally obvious that there may be "imperfect" or "incomplete

knowledge," where the victim sees "through a glass darkly." Certainly

it seems far from fair to interpret the test of responsibility to

cover a condition where the accused may have had a hazy or dream-like

realization that his act was technically contrary to the law, and even

more dangerous to make it exclude one who was simply unable to "judge

calmly and reasonably" of his proposed action, a doctrine which could

almost be invoked by any one who committed homicide in a state of anger.

Ordinarily the word is not defined at all and the befuddled juryman

is left to his own devices in determining what significance he shall

attach not only to this word but to the test as a whole.

An equally ambiguous term is the word "wrong." The judges made no

attempt to define it in 1843, and it has been variously interpreted

ever since. Now it may mean "contrary to the dictates of conscience"

_or_, as it is usually construed, "contrary to the law of the

land"--and exactly _what_ it means may make a great difference to

the accused on trial. If the defendant thinks that God has directed

him to kill a wicked man, he may know that such an act will not

only be contrary to law, but also in opposition to the moral sense

of the community as a whole, and yet he may believe that it is

his conscientious duty to take life. In the case of Hadfield, who

deliberately fired at George III in order to be hung, the defendant

believed himself to be the Lord Jesus Christ, and that only by so doing

could the world be saved. Applying the legal test and translating

the word "wrong" as contrary to the common morality of the community

wherein he resided or contrary to law, Hadfield ought to have achieved

his object and been given death upon the scaffold instead of being

clapped, as he was, into a lunatic asylum.

On the other hand, if the word "wrong" is judicially interpreted to

mean "contrary to the dictates of conscience," it would seem to be

given an elasticity which would invite inevitable confusion as well as

abuse.

Moreover, the test in question takes no cognizance of persons who have

no power of control. The law of New York and most of the states does

not recognize "irresistible impulses," but it should admit the medical

fact that there are persons who, through no fault of their own, are

born practically without any inhibitory capacity whatever, and that

there are others whose control has been so weakened, through accident

or disease, as to render them morally irresponsible,--the so-called

psychopathic inferiors.

Most of us are only too familiar with the state of a person just

falling under the influence of an anesthetic, when all the senses seem

supernaturally acute, the reasoning powers are active and unimpaired,

and the patient is convinced that he can do as he wills, whereas, in

reality, he says and does things which later on seem impossible in

their absurdity. Such a condition is equally possible to the victim

of mental disease, where the knowledge of right and wrong has no real

relevancy.

The test of irresponsibility as defined by law is hopelessly

inadequate, judged by present medical knowledge. There is no longer

any pretence that a perception of the nature and quality of an act or

that it is wrong or right is conclusive of the actual insanity of a

particular accused. In a recent murder case a distinguished alienist,

testifying for the prosecution, admitted that over seventy per cent. of

the patients under his treatment, all of whom he regarded as insane and

irresponsible, knew what they were doing and could distinguish right

from wrong.

Countless attempts have been made to reconcile this obvious

anachronism with justice and modern knowledge, but always without

success, and courts have wriggled hard in their efforts to make the

test adequate to the particular cases which they have been trying, but

only with the result of hopelessly confounding the decisions.

But, however it is construed, the test as laid down in 1843 is

insufficient in 1908. Medical science has marched on with giant

strides, while the law, so far as this subject is concerned, has

never progressed at all. It is no longer possible to determine mental

responsibility by any such artificial rule as that given by the judges

to the Lords in McNaughten's case, and which juries are supposed to

apply in the courts of to-day. I say "supposed," for juries do not

apply it, and the reason is simple enough--you cannot expect a juryman

of intelligence to follow a doctrine of law which he instinctively

feels to be crude and which he knows is arbitrarily applied.

No juryman believes himself capable of successfully analyzing a

prisoner's past mental condition, and he is apt to suspect that,

however sincere the experts on either side may appear, their opinions

may be even less definite than the terms in which they are expressed.

The spectacle of an equal number of intellectual-looking gentlemen, all

using good English and all wearing clean linen, reaching diametrically

opposite conclusions on precisely the same facts, is calculated to fill

the well-intentioned juror with distrust. Painful as it is to record

the fact, juries are sometimes almost as sceptical in regard to doctors

as they always are in regard to lawyers.

The usual effect of the expert testimony on one side is to neutralize

that on the other, for there is no practical way for the jury to

distinguish between experts, since the foolish ones generally look as

learned as the wise ones. The result is hopeless confusion on the part

of the juryman, an inclination to "throw it all out," and a resort to

other testimony to help him out of his difficulty. Of course he has

no individual way of telling whether the defendant "_knew_ right from

_wrong_," whatever that may mean, and so the ultimate test that he

applies is apt to be whether or not the defendant is really "queer,"

"nutty" or "bughouse," or some other equally intelligible equivalent

for "medically insane."

The unfortunate consequence is that there is so general and growing a

scepticism about the plea of insanity, entirely apart from its actual

merits, that it is difficult in ordinary cases, whatever the jurors may

think or say in regard to the matter, to secure twelve men who will

give the defence fair consideration at the outset.

This is manifest in frequent expressions from talesmen such as: "I

think the defence of insanity is played out," or "I believe everybody

is a little insane, anyhow" (very popular and regarded by jurymen as

witty), or "Well, I have an idea that when a fellow can't cook up any

other defence he claims to be insane."

The result is a rather paradoxical situation: The attitude of the

ordinary jury in a homicide case, where the defence of insanity is

interposed, is usually at the outset one of distrust, and their impulse

is to brush the claim aside. This tendency is strengthened by the

legal presumption, which the prosecutor invariably calls to their

attention, that the defendant is sane. Every expert who has testified

for the defence in the ordinary "knock down and drag out" homicide case

must have felt with the prisoner's attorneys, that it was "up to them"

not so much to create a _doubt_ of the defendant's sanity as to _prove_

that he was insane, if they expected consideration from the jury.

Now let us assume that the defence is meritorious and that the

prisoner's experts have created a favorable impression. Let us go even

further and assume that they have generated a reasonable doubt in the

mind of the jury as to the defendant's responsibility at the time

he committed the offence. What generally occurs? Not, as one would

suppose, an _acquittal_, but, in nine cases out of ten, a _conviction_

in a lower degree.

The only usual result of an honest claim of irresponsibility on the

ground of insanity is to lead the jury to reduce the grade of the

offence from murder in the first, entailing the death penalty, to

murder in the second degree. The jury have no intention of "taking the

chance" involved in turning the man loose on the community and their

minds are filled with the predominating fact that a human being has

been killed. They have an idea that it is as easy to get "sworn out"

of a lunatic asylum as they suppose it is to get "sworn into" one,

and they know that if the prisoner is found to be insane when sent to

State's prison he will be transferred elsewhere. They, therefore, as a

rule, waste little time upon the question of how far the defendant was

irresponsible within the legal definition when he committed the deed,

but convict him "on general principles," trusting the prison officials

to remedy any possible injustice. The jury in such cases ignore the law

and decline either to acquit _or_ to convict in accordance with the

test. Their action becomes rather that of a lay commission condemning

the prisoner to hard labor for life on the ground that he is medically

insane.

Assuming that the jury take the defence seriously, there is only one

class of cases where, in the writer's opinion, they follow the legal

test as laid down by the court--that is to say, in cases of extreme

brutality. Here they hold the prisoner to the letter of the law, and

the more abhorrent the crime (even where its nature might indicate to

a physician that the accused was the victim of some sort of mania) the

less likely they are to acquit. The writer has prosecuted perhaps a

dozen homicide and other cases where the defence was insanity. In his

own experience he has known of no acquittal. In several instances the

defendants were undoubtedly insane, but, strictly speaking, probably

vaguely knew the nature and quality of their acts and that they were

wrong. In a few of these the juries convicted of murder in the first

degree because the circumstances surrounding the homicides were so

brutal that the harshness of the technical doctrine they were required

to apply was overshadowed in their minds by their horror of the act

itself. In other cases, where either the accused appeared obviously

abnormal as he sat at the bar of justice, or the details of the crime

were less abhorrent, they convicted of murder in the second degree in

accordance with the reasoning set forth in the fore-going paragraph.

The writer seriously advances the suggestion that the more the

brutality of a homicide indicates mental derangement the less chance

the defendant has to secure an acquittal upon the plea of insanity.

And this leads us to that increasingly large body of cases where

the usual scepticism of the jury in regard to such defences is

counterbalanced by some real or imaginary element of sympathy. In

cities like New York, where the jury system is seen at its very

best, where the statistics show seventy per cent. of convictions by

verdict for the year 1907, and where the sentiment of the community

is against the invocation of any law supposedly higher than that of

the State, our talesmen are unwilling to condone homicide or to act

as self-constituted pardoning bodies, for they know that an obviously

lawless verdict will bring down upon them the censure of the public and

the press. This is perhaps demonstrated by the fact that in New York

County a higher percentage of women are convicted of homicide than of

men.

But the plea of insanity, with its vague test of responsibility, whose

terms the juryman may construe for himself (or which his fellow-jurors

may construe for him) offers an unlimited and fertile field for the

"reasonable" doubt and an easy excuse for the conscientious talesman

who wants to acquit if he can. Juries take little stock in irresistible

impulses and emotional or temporary insanity save as a cloak to cover

an unrighteous acquittal.

In no other class of cases does "luck" play so large a part in the

final disposition of the prisoner. A jury is quite as likely to send an

insane man to the electric chair as to acquit a defendant who is fully

responsible for his crime.

To recapitulate from the writer's experience:

(1) The ordinary juror tends to be sceptical as to the good faith of

the defence of insanity.

(2) When once this distrust is removed by honest evidence on the part

of the defence, he usually declines to follow the legal test as laid

down by the court on the general theory that any one but an idiot or a

maniac has some knowledge of what he is doing and whether it is right

or wrong.

(3) He applies the strict legal test only in cases of extreme brutality.

(4) In all other cases he follows the medical rather than the legal

test, but instead of acquitting the accused on account of his medical

irresponsibility, merely convicts in a lower degree.

The following deductions may also fairly be made from observation:

(1) That the present legal test for criminal responsibility is

admittedly vague and inadequate, affording great opportunity for

divergent expert testimony and a readily availed of excuse for the

arbitrary and sentimental actions of juries, to which is largely due

the distrust prevailing of the claim of insanity when interposed as a

defence to crime.

(2) That expert medical testimony in such cases is largely discounted

by the layman.

(3) That in no class of cases are the verdicts of jurors so apt to be

influenced solely by emotion and prejudice, or to be guided less by the

law as laid down by the court.

(4) That a new definition of criminal responsibility is necessary,

based upon present knowledge of mental disease and its causes.

(5) Lastly, that, as whatever definition may be adopted will inevitably

be difficult of application by an untutored lay jury, our procedure

should be so amended that they may be relieved wherever possible of a

task sufficiently difficult for even the most experienced and expert

alienists.

* * * * *

A classification of the different forms of insanity, based upon its

causes to which the case of any particular accused might be relegated,

such as has recently been urged by a distinguished young neurologist,

would not, with a few exceptions, assist us in determining his

responsibility. It would be easy to say then, as now, that lunatics or

maniacs should not be held responsible for their acts, but we should

be left where we are at present in regard to all those shadowy cases

where the accused had insane, incomplete or imperfect knowledge of

what he was doing. It would be ridiculous, for example, to lay down a

general rule that no person suffering from hysterical insanity should

be punished for his acts. Yet, even so, such a classification would

instantly remedy that anachronism in our present law which refuses to

recognize as irresponsible those born without power to control their

emotions--the psychopathic inferiors of science, and the real victims

of _dementia præcox_.

Of course, if the insanity under which the defendant labors bears no

relation to or connection with the deed for which he is on trial, there

would logically be no reason why his insanity on other subjects should

be any defence to his crime. For example, there is the well-known

case of the Harvard professor who was apparently sane on all other

matters, yet believed himself to be possessed of glass legs. Had

this man in wanton anger struck and killed another, his "glass leg"

delusion could not logically have availed him. If, however, he had

struck and killed one who he believed was going to shatter his legs

it might have been important. The illustration is clear enough, but

its application probably involves a mistaken premise. If he thought

he had glass legs his mind was undoubtedly deranged--whether enough

or not enough to constitute him irresponsible or beyond the effect of

penal discipline might be a difficult question. The generally accepted

doctrine is, that if a man has a delusion concerning something, which

if _actually existing_ as he believed it to be would be _no excuse_

for his committing the criminal act, he is responsible and liable to

punishment; but, as Bishop well says:

"This branch of the doctrine should be cautiously received; for

delusion of any kind is strongly indicative of a generally diseased

mind."

The new test to determine responsibility will recognize, as does the

law of Germany, that there can be no criminal act where the free

determination of the will is excluded by disease, and that the capacity

to distinguish between right and wrong is inconclusive. It may perhaps

have to take a general form, leaving it to a lay, expert, or a mixed

lay-and-expert jury to say merely whether the accused had a disease

of the mind of a type recognized by science, and whether the alleged

criminal act was of such a character as would naturally flow from that

type of insanity, in which case it would seem obviously just to regard

the defendant as partially irresponsible, and perhaps entirely so.

Possibly the practical needs of the moment might be met by permitting

such a jury to determine whether the defendant had _such_ a knowledge

of the wrongful nature and consequences of his act and such a control

over his will as to be a proper subject of punishment.[54] This would

require the jury to find that the defendant had some knowledge of right

and wrong and the power to choose between them. In any event, to render

the accused entirely irresponsible, his act should arise out of and be

caused solely by the diseased condition of his mind. The law, while

asserting the responsibility of many insane people, should recognize

"partial" responsibility as well.

The reader may feel that little after all would be gained, but he will

observe that at any rate such a test, however imperfect, would permit

juries to do lawfully that which they now do by violating their oaths.

The writer believes that the best concrete test yet formulated and

applied by any court is that laid down in Parsons _vs._ The State of

Alabama (81 Ala., 577):

"1. Was the defendant at the time of the commission of the alleged

crime, as matter of fact, afflicted with a disease of the mind, so as

to be either idiotic, or otherwise insane?

"2. If such be the case, did he know right from wrong as applied to

the particular act in question? If he did not have such knowledge, he

is not legally responsible.

"3. If he did have such knowledge, he may nevertheless not be legally

responsible if the two following conditions concur:

"(1) If, by reason of the duress of such mental disease, he had so

far lost the power to choose between the right and wrong, and to

avoid doing the act in question, as that his free agency was at the

time destroyed.

"(2) And if, at the same time, the alleged crime was so connected

with such mental disease, in the relation of cause and effect, as to

have been the product of it solely."

But whatever modification in the present test of criminal

responsibility is adopted, there must come an equally, if not even more

important, reform in the procedure in insanity cases, which to-day is

as cumbersome and out of date as the law itself. As things stand now in

New York and most other jurisdictions there are no adequate means open

to the State to find out the actual present or past mental condition of

the defendant until the trial itself, and ofttimes not even then.

In New York, in cases like Thaw's, the accused, while fully intending

to interpose the defense of insanity (which he is now permitted to do

simply under the general plea of "not guilty") may not only conceal

the fact until the trial, but may likewise successfully block every

effort of the authorities to examine him and find out his present

mental condition. He may thus keep it out of the power of the District

Attorney to secure the facts upon which to move for a commission to

determine whether or not he ought to be in an insane asylum or is a fit

subject for trial, and at the same time prevent the prosecutor from

obtaining any evidence through direct medical observation by which to

meet the claim, which may be "sprung" suddenly upon him later at the

trial, that the defendant was irresponsible.

In order that this may be clearly understood by the reader he should

fully appreciate the distinction between (1) the claim on the part of

an accused that he is at present insane, and for that reason should

not be either tried or punished for his alleged offence, and (2) the

defence that he was (irrespective of his _present_ mental condition)

insane within the legal definition of irresponsibility at the time he

committed it. No person who is incapable of understanding the nature of

the proceedings against him or of consulting with counsel and preparing

his defence can be placed on trial at all, or, if already on trial, can

continue to be tried, and if a defendant "appears to the court to be

insane," the judge may appoint a commission to examine him and report

as to his present condition. This may be done upon the application

either of the State or of the accused through his counsel.

It was such a commission to determine the accused's present mental

condition that District Attorney Jerome, upon the basis of the evidence

introduced by the defence, applied for and secured during the first

trial of Harry K. Thaw. The commission reported that Thaw was sane

enough to be tried and the court then proceeded with the original case

for the purpose of allowing the jury to say whether he knew the nature

and quality of his act and that it was wrong when he shot and killed

White.

This was a totally distinct proceeding from the interposition of the

DEFENCE that the accused was irresponsible _when he committed the

crime_ charged against him and was not inconsistent with it.

Now supposing that the Commission had reported that Thaw _was_ insane

at the time of examination and not a fit subject for trial, but, on

the contrary, ought to be confined in an insane asylum, the District

Attorney would have spent some twenty odd thousand dollars and a

year's time of one or more of his assistants in fruitless preparation.

Yet, as the law stands on the books to-day in New York, there is no

adequate way for the prosecution to find out whether this enormous

expenditure of time or money is necessary or not, for it cannot compel

the defendant to submit either to a physical or mental examination. To

do so has been held to be a violation of his constitutional rights and

equivalent to compelling him to give evidence against himself.

Thus when Thaw came to the bar at his first trial the State had never

had any opportunity, through an examination by its physicians, to learn

what his present condition was or past mental condition had been. The

accused, on the other hand, had had over six months to prepare his

defence and had fully availed himself of the time to submit to the most

exhaustive examinations on the part of his own experts. The defendant's

physicians came to court brimming with facts to which they could

testify; while the State's experts had only the barren opportunity for

determining the defendant's condition afforded by observing him daily

in the court room and hearing what Thaw's own doctors claimed that they

had discovered. There was no chance to rebut anything which the latter

alleged that they had observed, and their testimony, save in so far as

it was inconsistent or contradictory in itself, remained irrefutable.

There is probably no procedure which would be held constitutional

whereby a compulsory examination of the accused could be had upon the

mere application of the prosecuting authorities; but as a commission

may generally be appointed at any time after an accused has been

indicted if he "appears" to the court to be "insane," and as it is

usually within the power of the District Attorney where such is the

case to bring sufficient evidence of it to the attention of the court

before the prisoner is brought to trial, little time is actually lost

and justice is rarely defeated except in those cases (such as Thaw's)

where an attempt is to be made to prove the accused insane _at the time

of the alleged crime_ although _sane_ at the time of trial. Even here

it would be the simplest thing in the world to remedy the difficulty

and the proper legal steps in all jurisdictions should be taken

immediately.

The two chief objects of such reforms should be, first, to relieve

the ordinary jury in as many cases as possible from the necessity of

passing upon the delicate issue of a defendant's mental condition at

a previous time, and second, where this may not be avoided, to make

their task as easy as possible by providing (_a_) a more scientific

and definite test of legal responsibility and (_b_) an opportunity for

adequate examination of defendants availing themselves of this defence.

This last and most practical reform can be easily secured by a slight

alteration in the New York Code of Criminal Procedure, which already

provides both for the entering of the specific plea of insanity and for

the introduction of the defence and the proof of insanity under the

general plea of "not guilty." At present the defendant has his choice

of openly announcing or of concealing until the trial his intention of

claiming that he was insane and so irresponsible for his crime. This is

an advantage the results of which were probably not fully contemplated

by the Legislature, and one to which an accused has no fair claim.

Fortunately, in the same section of the Code (658), which provides

that the court may appoint a Commission to inquire into the sanity of

a defendant at the time of his trial, there exists another provision,

hitherto little noticed, that

"When a defendant PLEADS INSANITY, as prescribed in Section 336, the

court in which the indictment is pending, instead of proceeding with

the trial of the indictment, may appoint a commission of not more than

three disinterested persons to examine him and report to the court as

to his insanity _at the time of the commission of the crime_."

If a defendant intends to prove himself irresponsible for his offence,

why should he not be compelled to enter a specific plea to that effect?

Once he has entered that plea, the law as it stands just quoted will

do the rest. No reason has been brought to the attention of the writer

why the admission of any evidence upon the defendant's trial tending to

show that he was mentally irresponsible at the time of committing the

crime should not be made contingent upon the defence of insanity having

been _specifically pleaded_ either at the time of his arraignment or

later by substitution for or in conjunction with the plea of "not

guilty." This would deprive him of no constitutional right whatever.

There is no legal necessity of permitting an accused to prove insanity

under a general answer of "not guilty." Then upon his own plea _that

he had been insane_ he could instantly be committed to some place

of observation where a permanent medical board of inquiry could be

given full opportunity to examine him and study his case with a view

to determining his present and past mental condition. He would still

have in prospect his regular jury trial, but if this board found him

at the present time insane, the court could immediately commit him to

an asylum pending recovery, precisely as under the present procedure,

while if they found him sane at the present time, but reported that,

in their opinion (whatever test, "medical" or "legal," they might have

applied), he was _irresponsible at the time he committed the crime_, it

is unlikely that any prosecutor would bring him to trial. If, however,

they reported _that he was not only sane, but had been sane_ at the

time of his crime, it is probable that any proposed defence of insanity

would be abandoned, while if it was still urged by the accused, the

opinion of such a board would carry far greater weight at the ultimate

trial of the case than the individual opinions of experts retained and

paid by either side for that particular occasion only, and having had

only a comparatively limited opportunity for examination. At any rate,

if the court called in the services of such a board of medical judges

to assist as _amici curiæ_ in determining the defendant's condition,

while their opinion would not be conclusive upon the jury, it would

at least do away with the present lamentable necessity of learned men

answering "yes" or "no" to a hypothetical question fifty thousand words

long, when the most superficial personal examination of the accused

would settle the matter definitely in their minds. Such a procedure

is in general use in Germany and other continental countries, and is

likewise substantially followed in Massachusetts, Maine, Vermont, and

New Hampshire.[55]

There is good reason to hope that we may soon see in all the states

adequate provision for preliminary examination upon the plea of

insanity, and a new test of criminal responsibility consistent with

humanity and modern medical knowledge. Even then, although murderers

who indulge in popular crime will probably be acquitted on the ground

of insanity, we shall at least be spared the melancholy spectacle

of juries arbitrarily committing feeble-minded persons charged with

homicide to imprisonment at hard labor for life, and in a large measure

do away with the present unedifying exhibition of two groups of hostile

experts, each interpreting an archaic and inadequate test of criminal

responsibility in his own particular way, and each conscientiously able

to reach a diametrically opposite conclusion upon precisely the same

facts.

FOOTNOTES:

[Footnote 51: The questions propounded to the judges and their answers

are here given:

_Question 1._--"What is the law respecting alleged crimes committed

by persons _afflicted with insane delusion in respect of one or more

particular subjects or persons_, as, for instance, where, at the time

of the commission of the alleged crime, the accused knew he was acting

contrary to law, but did the act complained of with a view, under the

influence of insane delusion, of redressing or revenging some supposed

grievance or injury, or of producing some supposed public benefit?

_Answer 1._--"Assuming that your lordships' inquiries are confined to

those persons who labor _under such partial delusions only, and are

not in other respects insane_, we are of opinion that, notwithstanding

the accused did the act complained of with a view, under the influence

of insane delusion, of redressing or revenging some supposed grievance

or injury, or of producing some public benefit, he is, nevertheless,

punishable, according to the nature of the crime committed, if he knew

at the time of committing such crime that he was acting contrary to

law, by which expression we understand your lordships to mean the law

of the land.

_Question 4._--"If a person under an insane delusion as to existing

facts commits an offence in consequence thereof, is he thereby excused?

_Answer 4._--"The answer must of course depend on the nature of the

delusion; but, making the same assumption as we did before, namely,

that he labors under such partial delusion only, and is not in other

respects insane, we think he must be considered in the same situation

as to responsibility as if the facts with respect to which the

delusions exist were real. For example, if under the influence of his

delusion he supposes another man to be in the act of attempting to take

away his life, and kills the man, as he supposes in self-defence, he

would be exempt from punishment. If his delusion was that the deceased

had inflicted a serious injury to his character and fortune, and he

killed him in revenge for such supposed injury, he would be liable to

punishment.

_Question 2._--"What are the proper questions to be submitted to the

jury when a person, afflicted with insane delusions respecting one or

more particular subjects or persons, is charged with the commission of

a crime (murder, for instance), and insanity is set up as a defence?

_Question 3._--"In what terms ought the question to be left to the jury

as to the prisoner's state of mind when the act was committed?

_Answers 2 and 3._--"As these two questions appear to us to be more

conveniently answered together, we submit our opinion to be that the

jurors ought to be told, in all cases, that every man is presumed to be

sane, and to possess a sufficient degree of reason to be responsible

for his crimes, until the contrary be proved to their satisfaction;

and that, to establish a defence on the ground of insanity it must be

clearly proved that at the time of committing the act the accused was

laboring under such a defect of reason, from disease of the mind, as

not to know the nature and quality of the act he was doing, or, if he

did know it, that he did not know he was doing what was wrong." (The

remainder of the answer goes on to discuss the usual way the question

is put to the jury.)]

[Footnote 52: Dew _vs._ Clark.]

[Footnote 53: "General View of the Criminal Law," p. 80.]

[Footnote 54: See State _vs._ Richards, 1873, Conn.]

[Footnote 55: Another equally efficacious means of dealing with the

matter would be to substitute, upon a defendant's plea of insanity, a

full jury of experts--like any "special" jury--for the ordinary petit

jury.]

INDEX

Abatement, plea in, 96

Acquittals, table of percentages of, 175, 176, 177

of women, 299, 300

danger of, by lawless jury, 340-344

"on ground of insanity," meaning of, 352

Adams, "Al," 319

Alabama, test of criminal responsibility in, 368

Alibi, use of perjured evidence to prove, 224, 225

Ammon, Robert A., and "The Franklin Syndicate," 25, 26

Appeal, from magistrate's decision, 47

number of appeals so taken, 47

no appeal by aggrieved person if magistrate discharges, 47

few appeals from Special Sessions, 62

unfortunate that prosecution cannot appeal on verdict of acquittal, 186,

337

defendant has right of, 337

reversals on, 339, 340

Archer, Agnes, case of, 301

Arrest (see Chapter III), right of citizen to arrest, despite common

belief, 33

right to, ordinarily left to police, 33

anyone may arrest for crime committed in his presence, 35

no one may arrest for felony without his view, unless felony

committed, 35

difference in citizen's and officer's right to arrest, 35, 37

police construe their right to arrest more broadly than law permits, 35

example of above, 36

right of police to arrest at night under New York Criminal Code, 36

force permissible in making arrest, 38

cases in which the power may be abused, 38

Arrest, power to arrest to be exercised with discrimination, 40, 41

the first step in procedure toward conviction, 42

after arrest prisoner taken before magistrate, 42

on bench warrant if indicted by Grand Jury, 42

on suspicion illegal but necessary, 43

number of arrests in New York County in 1907, 46

table showing nativity of those arrested, 46

Arrest of judgment, motion for, 269

Assault, power of magistrate should be extended to punish simple

assault, 49

Autrefois Acquit. See Pleas.

Bail, in case of misdemeanor may be assessed by sergeant on duty, 42

right of accused to, except in case of murder, 85

bail cases not tried in summer, 126

forfeiture of, 127, 128

recommendation for discharge of, 170

"skipping" bail, 317

Bauman, case of, 323

Bench warrant, indicted and arrested under, 42

Blindness, "An Act for the Prevention of," 15

Branding, 266-268, 278

Breach of peace, 49

"Bridge of Sighs," 115

Capital punishment, no woman has suffered here in two decades, 299

cases of, comparatively rare, 246

Challenges, number of peremptory in homicide cases, 215

reduction to reasonable number desirable, 325, 346

in larceny cases, 346

Cherry, "Tom," 73, 74

Cignarale Chiara, case of, 299

Clancy murder case, 325

Code. See Statutes and Criminal Law

Cohalan, Daniel F., 216

Commercial Crime. See Crime

Commission, to take testimony without state, 123

application for, to take testimony for purpose of delay, 315

right to take such testimony confined to defendant, 315

motion for, 317

to determine present mental condition of an accused, 369-72

to determine mental condition at time of offense, 369-76

desirability of such being permanent and salaried, 373, 374

Commutation, of sentence for good behavior, 273

how determined, 273

periods of, (note) 273

distinguished from indeterminate sentence, 274

Complaints, in Court of Special Sessions, 63

or informations, ancient form of, 89

Confession, not sufficient to convict without corroboration, 330

Contempt of court, practical inability of New York courts to punish

editorial contempts, 347

defined in Penal Code, 348

Convictions, proof of prior, admitted for what purpose, 148, 166

table showing percentages of, 175, 176

too few, 177

of innocent men almost unknown, 247, 336

of women indicted, in same proportion as men, 299, 300

County clerk, grand jurors drawn by, 358

"County Detectives," 87

Court officers as plea getters, 173

Cowing, Rufus B., Judge, 255

Crime, What is Crime? Chapter I, definition of, 1

relation of, to wrongs, 1, 2, 3

artificial character of laws defining, 4

_mala prohibita_ and _mala in se_, 6

little significance in mere name of crimes, 6

arbitrary nature of acts made crimes, 7

relation of, to insanity, 22

theory that crime is a disease overworked, 23

criminal instinct in all, 23

commercial crime favored by law, 24, 30, 223

Crimes, definition of, limiting it to those who "make a living" thereby

is inadequate, 28

fundamental cause of, disrespect for law, 30, 334

attitude of jury toward commercial crime, 210, 211

What Fosters Crime? Chapter XVII

not on increase in proportion to growth of population, 334

fostered by idea that criminal justice is slow and uncertain, 335, 336

by constitutional safeguards, 335, 336

by defects in our criminal law and procedure, 338

by attitude of "yellow" press, 338

by belief that higher courts reverse on technical grounds, 339

by acquittal of guilty by sentimental juries, 340-342

restraints on, 344-346

fear of present criminal prosecution and punishment greatest restraint

on, 344-346

may be deliberate or the result of accident or impulse, 345

Criminal Courts Building, description of, 115

Criminal law, adapted especially to punishment of crimes of violence, 16

impression of ordinary citizen concerning, 149, 335

at present tends to retard and defeat justice, 336

present state of, result of exaggerated regard for personal liberty, 336

English system of, better than ours, 336

leaves many technical avenues of escape, 338

Criminal responsibility (see Insanity and the Law, Chapter XVIII), 350

test of, 353

unchanged since case of McNaughten, 353

questions propounded by House of Lords to the judges, with their

answers, 354

delusions in the law of insanity, significance of, 355, 356

doubtful interpretation to be given to words "wrong" and "know," 357

Hadfield's case, 358

Criminal responsibility, present New York test does not recognize any

lack of inhibitory capacity, 359

test is imperfect, inadequate, and vague, 357, 359

difficult of application, 357

juries disregard it except in extreme cases, 360-366

expert testimony in insanity cases discounted by jury, 360, 361

requirements of proposed new tests, 366-368

Alabama test, 368

the "defense" of insanity often confused with claim of present

insanity, 369

present insanity determined by commission, 369-376

mental condition at time of crime should be likewise determined, 369-376

defendant may refuse to permit examination, 370

present ineffectuality of law in New York, 370-376

could be easily remedied, 372-374

plea of insanity should be made compulsory, 373

defendants so pleading should be remanded for observation by

permanent, salaried, expert commission, as in Germany and

elsewhere, 373, 374

probable unconstitutionality of other suggested remedies, 374

Criminals, not necessarily worse than other people, 5, 9

not usually criminal in all directions, 5

generally specialists, 5

intentional, as distinguished from accidental or occasional, 9

as distinguished from sinners, 17

Who are the Real Criminals? Chapter II

Charles D. Warner's definition of, 19

traditional criminals few, 19

the modern criminal, 20

degenerate class of, exaggerated by continental writers, 21

sentimentality concerning, over-done, 21, 23, 196

majority of, not mentally defective, 22

close relation between all, 22, 29

why men are criminals, 24

dishonest business men real criminals, 24, 25

law at present favors business criminal, 25

Criminals, professional criminals and degenerates form small proportion

of law breakers, 29

distinction between criminals and convicts, 42

begin with petty infractions of law, 72

professional criminals generally plead guilty, 148

receive consideration for saving expense of trial, 148

may obtain speedy trial if desired, 152

weight given to prior conviction, 148

Criminology, modern tendencies in, 17

penological movements, first in direction of prison reform, 21

and second in study of degeneracy, 22

Cross-examination, use of, 231, 240

impossible to cross-examine through interpreter, 239

of women difficult, 291, 292

Defendants, hostile attitude of courts to, in ancient times, 16

present rights of, 16, 17

presumed to be innocent, 44

have right to counsel, 43

sensations of, 45

cannot be compelled to testify, 91, 326

may move to dismiss indictment and thus retard trial, 91

may easily obtain speedy trial, 152

their own testimony generally convicts, 154

rapid trial redounds to their benefit, 156

if innocent need not fear to testify, 162

majority of those failing to testify convicted, 163

may defend themselves, 164

often wise to rest on People's case, 164

danger to, by perjury of one of their own witnesses, 164

influenced to plead by result of prior cases, 174

benefit by prosecutor's desire to dispose of case, 220

favored by jury, 222

description of, while waiting verdict, 241

right to poll jury, 247

when convicted rarely show emotion, 247, 248

may present plea for clemency before sentence, 271

latitude allowed, 337, 338

(See Criminals.)

Degrees of crime, arbitrary character of, 8

Delays, The Law's, Chapter VII

secured by motions based on irregularities before Grand Jury, 93

delay the first, in the police court, 108

delay the second, before the Grand Jury, 114

delay the third, pleading, 119

delay the fourth, in preparation of case for trial, 121

delay the fifth, after case on calendar, before trial, 122

delay the sixth, dilatory tactics of counsel for defense, 123

delay the seventh, bail cases not tried in summer, 126

delay the eighth, forfeiting recognizance, 126

alienates support of citizens, 129

defendant has everything to gain by delay, 314

method of securing, 315, 316

motions to secure, 316

many penal statutes and procedure tend to retard and defeat justice, 336

(See Red Tape, Chapter VIII, 129.)

Delusions, significance of, in law of insanity, 355, 356

_Dementia præcox_, 351

Demurrer, 316

Dinser, Gustav, case of, 289

Disagreements, two equivalent to acquittal, 220

large number of trials resulting in, 244

Disorderly conduct, jurisdiction over, by magistrate, 49

Dodge-Morse divorce case, 321, 322

Donohue _v._ N.Y., N.H. & H.R.R., case of, 259

Dummies, 318-322

attempt to induce witness to identify, 321, 322

most famous case of, 321

District Attorney (see Prosecutor), power to act when magistrate

discharges, 47, 48

copies papers forwarded from magistrate and subpoenas witnesses for

Grand Jury, 87

prepares calendar for Grand Jury, 87

draws indictments, 87

preliminary examination of witnesses by, 117

a quasi-judicial officer, 167, 168

limitations placed upon, by laws of evidence and procedure, 165, 168

District Attorney, should move defendant's discharge if convinced of

innocence, 168

has same latitude in summing up as defendant's attorney 168

in presentation of case, People should have same rights as an

individual, 168

should win confidence of jury, 169

function of, 304

can rebut defense more easily where it has been exposed before

magistrate, 312

necessity of examination of jury by, 323

Electric chair, jury send to, only in atrocious cases, 213

Ellis, William H., case of, 315, 316

Elmira, release from, 165

sentence to, indeterminate, 165

Evidence, character of defendant provable only when put in issue by

himself, 161, 166

defendant's right to give, himself, 161-162

but no inference to be drawn from defendant's failure to testify,

160, 162

rule permitting defendant to testify practically forces him to do

so, 163

good character of complainant and witnesses only provable on attack, 167

amount of strictly accurate testimony very small, 225

"refreshing recollection," in practice absurd, 235

method of refreshing recollection, 235

(See Witnesses)

Ex Parte, proceeding before Grand Jury is, 90, 99

Felix, John, case of, 15

Felonies, The Trial of, Chapter IX

(See District Attorney, Prosecutor, Defendants, etc.)

distinction between felonies and misdemeanors often without merit, 30

number of persons arrested for, 85

should be prosecuted by information, 100

rapidity of trials for, 152, 154

description of trials for, 150

attempted suicide, 171

compounding, by agreeing not to prosecute, 349

Foster, Judge Warren W., 216

"Franklin Syndicate, The," 26

Fursman, Judge, 321

General Sessions, Court of, appeal to, from magistrate's courts, 47

procedure in, 119, 150, 151

description of (see Felonies), 150

Goff, Recorder, 86, 290

Habeas Corpus, for prisoners held in police court, 43

to test magistrate's jurisdiction, 47

only remedy for illegal commitment, 49

writ of, often secured for delay, 317

Hackett, Orlando J., case of, 290

Hadfield's Case, 358

Harris, Carlyle W., case of, 263, 264

Hawkins, Sir Henry, on want of uniformity in sentences, 189, 190

Homicide, typical case of manslaughter, 8

large proportion of defendants charged with, plead guilty to

manslaughter, 174

charge of court in cases of, 243

verdicts in cases of, 246

sentence in cases of murder fixed by law, 261

larger proportion of women indicted convicted of, than men, 334

Howe, "Bill," 297, 298, 323

Howe & Hummel, 322

Hummel, Abraham, 321, 322

Imprisonment, pending appeal, advisability of, 346

Impulse. See Irresistible.

Indeterminate sentence, definition of, 273

constitutionality of, upheld by courts, 274

distinguished from commutation, 274

Indictments, found by Grand Jury, 81

"true bills," 82

number of, found, 85

drawn by District Attorney, 87

form of, 87, 88

for larceny, 88, 89

invalid, when, 91

defendant may move to dismiss, when, 91, 92

ratio of women to men indicted, 292

not "pigeon-holed" or "lost" in New York County, 314

motion to dismiss, 317

for forgery, 331

Information, in Court of Special Sessions, 48, 49

Information, of aggrieved party, old form, 89

proceeding by, in different states, 100

all felonies should be prosecuted by, 100

Insanity, not true that majority of criminals are mentally defective, 22

sentence cannot be pronounced on insane person, 269

how those insane at sentence are dealt with, 269

defendants unlikely to feign, at sentence, 270

used as means of avoiding trial by rich, 317

As a Defense to Crime, Chapter XVIII, 350

(Also see Criminal Responsibility and Commissions)

Inspection, of Grand Jury minutes, 122, 316

Interpreters, usually very incompetent, 239

difficulty of cross-examining through, 239

Irresistible impulses not recognized by present New York test of

responsibility, 359

Johnson, Richard, words of, before sentence, 262

Judge, The (Chapter X), functions of, 178

most difficult function of, to impose sentence, 178, 179

his conduct during trial, 179

may "sum up" in England but not here, 179, 337

his business practically to "even things up," 182

should interrogate witnesses, 182

difference between his theoretical and practical functions, 179, 182

should not interfere with jury on questions of fact, 183

able to convey opinion to jury despite the law to contrary, 184

most judges too lenient, 187, 195, 196

tendencies often well known, 187, 188

want of uniformity in sentences, 189, 199

interference with judges in sentences, 191

matters presented to, in determination of sentence, 192, 193

restitution considered by, in sentencing, 195

reasons for leniency, 195, 196

fear of reversal, 196

Judge, impression that judge is easy-going or subject to influence

conduces to lawlessness, 197

judicial propriety desirable, 198

sometimes gives benefit of reasonable doubt after conviction, 199, 200

inequality in punishment, 200-202

no place for weak judge, 204

when a law-breaker, 210

responsibility of, in sentencing, 261, 272

Judgment, arrest of, 269

Jury, Grand (Chapter VI)

power to hold for, by magistrate, 47

indict as matter of course, 56

indictment must precede trial for felony, 81

composition of, 81, 82

finding true bill by, 82

is archaic, 82

procedure by information in states where there is no grand jury, 82

first record of Grand Jury proceeding in New York, 82, 83

number of persons held for, in last six years, 85

how chosen, 86

charged by judge, 87

calendar of, prepared by district attorney, 87

nature of proceedings before, 90

may send for witnesses, 91

relieves district attorney of responsibility for failure to

prosecute, 91

historical development of, (footnote) 92-95

irregularities before, 93

power as general inquisitorial body, 93, 94

power of, vast, 94

tendency to exceed powers, 95, 96

presentment by (see Presentment), 96, 97

why not abolish? 99

original necessity for, has disappeared, 98, 99

one purpose only for which it should be continued, 98, 101

original advantage of, 99

out of harmony with present institutions, 99

few cases originate before, 100

abolished in certain states, 100

subpoenas to appear before 115

description of proceeding before, 116-118

delay before, 119

indict for "murder" in most homicide cases, 174

Jury, Petit (Chapter XI), trial before, after indictment, 56

disinclination of, to convict, 57

find it difficult not to be prejudiced by defendant's failure to

testify, 160, 161

improves with service, 169

see little of professional criminals, 148, 169

inclined to take law in its own hands in trivial cases, 171, 172

inclined to convict on substantial evidence in serious cases, 172

petty offender profits by lawlessness of, 172

why efficient in criminal cases, 172

when at its best, 173

apt to acquit early in term, 173

percentage of convictions to acquittals by, 175, 176

function of, 205

capacity of, 205

apt to usurp functions of judge, 206

English jury more satisfactory, 206

have little regard for law here, 207, 208

inaccuracy of verdicts by, 209

reason for arbitrariness on part of, 209

attitude of, toward different crimes, 211, 212

have small regard for life, 209, 213

time require to select, in homicide case, 215

futility of wasting time in selection of, 215

some examination of, imperative, 216

method of escaping service on, 217

often contains officious members, 219

desirability of homogeneity in, 219, 220

eleven jurors should find verdict, 221, 222

favors defendant, 222

practically successful, 223

first member of, selected is foreman, 243

take time before returning verdict, 253

deliberations of secret, 254

failure in duty by, 255

the influence of one strong-minded member upon, 255, 256

effect on, of women's evidence, 293

effect of appeals to sympathy, 322

disregard the law in applying test of criminal responsibility, 360-366

Jury system, works best in criminal cases, 192

a practical success, 223

works "substantial justice," 223

brought in contempt by sentimental or lawless acquittal, 343, 344

Jurisdiction, of magistrate, 47

of courts tested by habeas corpus, 43, 47

Larceny, magistrate compelled to hold defendant for higher court in all

cases of, 48

summary jurisdiction of magistrate should be extended to petit

larceny, 48

now frequently treated in police courts as disorderly conduct, 49

form of indictment for, 88

grand, value necessary to constitute, 102

Lawyers, retained to advise prospective criminals, 10

seek to postpone rather than hasten trials, 152

business of, to create reasonable doubt, 304

(See Shysters)

Legal Aid Society, 77

"Legal" insanity, 354, 360-366

Levy, Abraham, 323

Lincoln, Abraham, advice of, 326

Liquor Tax cases, the bane of Special Sessions, 69

few convictions for violation of (see note), 210

juries reluctant to convict in, 70, 209, 210

Livingston, case of, 13

Magistrates, broad power of, 43, 48

committment by, 45

how regarded by humble classes, 46

number of cases disposed of yearly by, 46

jurisdiction of, 46, 47, 48

power to hold for higher court of, 47, 85

jurisdiction of, should be extended over petit larceny and simple

assault, 48, 49, 57

jurisdiction of, over breach of peace, 49

tendency of, to hold for higher courts rather than spend time for

examination, 56

power of, for good, 58

close contact of, with police, 58

appointment of, generally political, 59

(See Police Courts)

_Mala prohibita_, as distinguished from _mala in se_, 6

illustrations of, 10

Manhattan Bank, case of, 254

Mayhem, crime of, 316

McCord, People _vs._, case of, 12

McNaughten's case, 353

doctrine of, 354

"Medical" insanity and "legal" insanity, 354, 365

Miller and "The Franklin Syndicate," 26

Misdemeanors (Chapter V), may be morally worse than felonies, 6

illustrations of what are, in New York state, 10

distinction between, and felony often without merit, 30

tried in Special Sessions, 85

(See Special Sessions)

Mock Duck, case of, 218, 318, 319

Moran, trial of, 216

Morse-Dodge divorce case, 320, 322

Motions, for delay in proceedings, 316, 317

New trial, motion for, at sentence, 276

"Not proven," inadvisability of a verdict of, 244, 245

Nott, Charles C., "In the District Attorney's Office," 155

cases cited by 162, 166

quoted on defendant's failure to testify, 163

Oath, in police court, 112

before Grand Jury, 118

Omissions, usually not crimes, 10

illustrations of, 10

Osborne, James W., 328

Parker, Mabel, case of, 330

Parole. See Suspended Sentence

Patterson, Nan, case of, 299, 301, 335

Pedigree, taking of, 155, 248, 252

Perjury, crime of, 224, 225

large amount of, among defendants' witnesses, 225

false answer in taking pedigree is perjury, 251

women more ready to commit, than men, 285

in defendant's own testimony, 311

Plea, in Court of Special Sessions, 63, 120

in abatement, 92

of "guilty," "not guilty," and "autrefois acquit," 92

withdrawal of, 155

benefit of clergy, 266-269

of "insanity" should be compulsory, where defense is anticipated, 373

Police Courts (Chapter IV). See Magistrates

right of arrested to immediate hearing in, 43, 85

right to counsel in, 43

attitude in, toward defendants, 44

description of, 44, 109

harsh treatment in, 45

proportion of cases there disposed of summarily, 45

great importance of, 45

a day's work in, 50, 56

proceedings in, 110, 111

delay in, 113

Police headquarters, described, 32

Police judge. See Magistrate

Police officers, great awe of persons in general for, 31

right to arrest (see Arrest)

contact with magistrate, 58

assault on, 70

the police sergeant, 107

Police station, proceeding in, 107

"Policy," business of, 319

(See Al. Adams)

Polling, of jury, 247

"Poor Man's Court of Appeals, The." See Police Courts.

Prescott, quoted on integrity of judges among Aztecs, 198

Presentments, by Grand Jury, 96

often unnecessary and frivolous, 97, 98

Press, sensational press fosters crime, 334, 338

domination of court room by, 347

trial by, 347, 348

Property clerk, at police headquarters, 132, 134, 137, 138, 146, 147

at district attorney's office, 134

Prosecutor, effect of experience on, 4

often protects accused from shysters, 78

delicate position of, when informed of facts inadmissible in

evidence, 166

allowed small latitude, 337

(See District Attorney)

Punishment, unfair apportionment of, under the law, 26

once a matter of private vengeance, 32

now for protection of public safety, 32

desire for punishment of accused still moving cause of most

prosecutions, 32

imposed by magistrate, 47

inequality in, the exception, 200

(See Sentences)

Purdy, Ambrose H., 324

Questions of House of Lords to English Judges after McNaughten's case, 354

Reasonable doubt, definition of, 160

giving benefit of, _after_ conviction, 199, 200

difficulty in finding guilt beyond, 244, 245

defendant entitled to benefit of, 304

certificate of, 346

Recognizance, form of (see Bail), 127

Recommendation, cases dismissed on, of district attorney, without

trial, 170

ground of, 170, 171

to mercy by jury, 245

to mercy usually considered by jurors as part of verdict, 245

to mercy, facilitates agreement, 246

"Red Tape" (Chapter VIII), at police headquarters, 137, 138, 144, 147

at district attorney's office, 140, 143

(See Delays)

Requests, to charge, 339

Reversals of convictions, effect on community of, 198

number of, on appeal, 339, 340

rare on technical grounds in New York state, 339

usually fault of trial judge, 340

"Ringers," 318-320

"Runners," methods of, 73, 75

Scannell, John J., case of, 92

Schorling, J. Holt, quoted, table of increase and decrease in specific

crimes, 20

Sentences (Chapter XIV), want of uniformity in, 189, 199

judges too lenient in, 187, 195

matters considered by judge in imposing, 192, 195

impossible to secure equality in, 200, 202

table showing sentences for different crimes, 201, 202

might be imposed by judges _en banc_, 203

for perjury, heavy, 224

jury would be more severe in, than judge, 245

for murder fixed by law, 261

great responsibility of judge in matter of, 261

to life imprisonment, 264

of death in all felony cases, formerly, 265

Sentences, motions to arrest judgment, 269, 270

appeal for clemency before, 271, 272

little mercy to old offenders in, 272

(See Indeterminate Sentences)

remarks of judge at time of, 274, 275

lightness of, 275

advantages of short sentences, 275

"Shysters," methods of, 58, 74-80, 122, 327

(See Tricks of the trade)

"Sick engineers," 14, 170

never plead guilty, 170

Special panel, 173

Special Sessions, Court of (see Misdemeanors), information in, 48

power to try petit larceny cases, 48

old court of, 62

present composition of, 62

number of cases disposed of in, 62, 63

procedure in bringing cases before, 63

speedy trial in, 63

jurisdiction of, 64, 65

rapidity of procedure in, 65, 66

Liquor tax cases in, 69

attitude of, toward assaults on police officers, 70

practically final court of disposition for misdemeanor, 71

important cases often tried therein, 71

efficiency of, 62, 72

lawyers in, 72, 73

menace of "shysters" in Special Sessions and police courts, 79, 80

Statutes, multiplicity of, undesirable 12

"to prevent blindness," 15

punishing contempt, 348

Stay, of proceedings, 317

Stolen property, recovery of, by owner. See Red Tape

innocently receiving, 329

Street walkers, 75, 76, 77

Subpoenas, served by district attorney for Grand Jury, 87

Summerfield, "Larry," 14, 26, 27

Sweetser, William A., 321

Supreme Court, Criminal Term, tries most of homicide cases, 174

Suspended sentences, in large number of cases against first

offenders, 195, 261

Technicalities, reversal on technical grounds, 339, 340

Technicalities, means to abolish, 347

Test of criminal responsibility, 353

proposed new tests, 360-368

Thayer, J.B., on historical development of Grand Jury (footnote), 92, 95

cited, 221, 301

Thaw, case of H.K., 350, 370

"Tombs," The, 115

Tricks of the Trade (Chapter XVI), of the successful practitioner, 303

bolder than in civil courts, 304

inducing complainant to withdraw charge, 309, 310

securing adjournments, 310

persuading court that case is trivial, 310

obtaining immediate hearing to find out People's evidence, 311

waiving examination to conceal defendant's case, 311

which are utilized after magistrate has held accused, 314

securing permission for defendant to appear before Grand Jury, 314

securing delay in trial, 314

introducing "ringers" in place of real defendant, 318-320

attempt to have witnesses identify dummies, 321, 322

appeals to sympathy of jury, 305, 307, 322

offer to "take first twelve" jurors, 323

obtaining one favorable juror, 323

getting members of same race as defendant on jury, 324

gaining good will of jury by chance remark, 325

defendant's counsel intentionally appearing intoxicated, 325

supplying missing evidence in counsel's opening or closing, 326, 328

getting one of two defendants to take entire blame, 328, 332

most of them unsuccessful, 333

True bill. See Indictment

Twitchell, case of, 282, 283

Verdicts (Chapter XIII), lack of accuracy in, 209

arbitrariness of, 209

form of, 243

procedure in rendering, 244

difficulty in reaching, 244, 245

of murder in first degree rare, 246

how received by defendants, 246, 247

slowness in reaching, 253

Verdicts, in Manhattan Bank case, 255

by eleven jurors, advisability of, 347

_Voir dire_, 305, 324

Warren, Chas. D., definition of criminals by, 19, 24

within the definition, 24

"Watch, The," 109

Wellman's "Art of Cross-Examination," 282, 287, 298, 299

Wigmore, Professor John H. See Introduction

"Wire tappers," wire tapping described, 14

(See McCord and Livingston and Tompkins cases)

Witnesses (Chapter XII). See Evidence.

value of testimony of, 224

original capacity of, for observing correctly, 225

children make remarkable, 225, 226

often honestly mistaken, 226

present stronger testimony in court than upon preliminary

examination, 228

unconscious amplification by, 229, 230

fallibility of the honest witnesses, 230

recollect impossible details, 232

who refresh recollection, 233

ultimate test of value of testimony of, 236

physical condition of important, 236

to be convincing must be positive, 237

the most effective witness with jury, 237

measurement of time by, 238

difficulty of finding language comprehensible to, 238, 239

difficulty with foreign, 239

Wood, Fernando, 319

Women in the Courts (Chapter XV), sentences of, table, 202

their evidence originally regarded with suspicion, 279-281

men said to rely on power of 281

Women in the Courts, reason, women on intuition, 281

do not differ from men in original capacity to observe, 282

confuse knowledge with imagination and belief, 282

illustration, 283

their habit of stating inference, 283

more ready to swear testimony through than men, 284

more ready to commit perjury than men, 285

often make remarkable witnesses, 285

frequently couple with answer statement damaging to defendant, 285

silent cross-examination of, the most effective, 286

old women simulating stupidity the most dangerous, 288

more difficult to cross-examine than men, 291, 292

testimony of, little different from men's, 292

number of, indicted and tried, 292

number of complaints by, 292

tried by opposite sex, 293

more likely to persuade jury than men 293, 295

effect of beauty of, on jury, 295

juries apt to be more lenient with, 296

no woman has suffered death penalty in this country in twenty years, 299

number of, convicted in proportion to those indicted compared with

men, 299, 300

number of, prosecuted, few, 300, 301

earliest case on record of prosecution of woman for murder, 301

larger proportion of, charged with murder, than men convicted, 334

false popular impression that few women are convicted, 334

Wrongs, relation of, to crime, 1, 2, 3

huge number of, not crimes at all, 7

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