COURTS AND CRIMINALS

By Arthur Train

These essays, which were written between the years 1905-1910 arereprinted without revision, although in a few minor instances the lawsmay have been changed. 

CHAPTER I. The Pleasant Fiction of the Presumption of Innocence

There was a great to-do some years ago in the city of New York over anill-omened young person, Duffy by name, who, falling into the badgraces of the police, was most incontinently dragged to headquartersand "mugged" without so much as "By your leave, sir, " on the part of theauthorities. Having been photographed and measured (in most humiliatingfashion) he was turned loose with a gratuitous warning to behave himselfin the future and see to it that he did nothing which might gain himeven more invidious treatment. 

Now, although many thousands of equally harmless persons had beensimilarly treated, this particular outrage was made the occasion of avehement protest to the mayor of the city by a certain member of thejudiciary, who pointed out that such things in a civilized communitywere shocking beyond measure, and called upon the mayor to remove thecommissioner of police and all his staff of deputy commissioners foropenly violating the law which they were sworn to uphold. But, thecommissioner of police, who had sometimes enforced the penal statutes ina way to make him unpopular with machine politicians, saw nothing wrongin what he had done, and, what was more, said so most outspokenly. The judge said, "You did, " and the commissioner said, "I didn't. "Specifically, the judge was complaining of what had been done toDuffy, but more generally he was charging the police with despotism andoppression and with systematically disregarding the sacred liberties ofthe citizens which it was their duty to protect. 

Accordingly the mayor decided to look into the matter for himself, andafter a lengthy investigation came to the alleged conclusion that the"mugging" of Duffy was a most reprehensible thing and that all those whowere guilty of having any part therein should be instantly removedfrom office. He, therefore, issued a pronunciamento to the commissionerdemanding the official heads of several of his subordinates, which orderthe commissioner politely declined to obey. The mayor thereupon removedhim and appointed a successor, ostensibly for the purpose of having inthe office a man who should conduct the police business of the city withmore regard for the liberties of the inhabitants thereof. The judgewho had started the rumpus expressed himself as very much pleased anddeclared that now at last a new era had dawned wherein the governmentwas to be administered with a due regard for law. 

Now, curiously enough, although the judge had demanded the removal ofthe commissioner on the ground that he had violated the law and beenguilty of tyrannous and despotic conduct, the mayor had ousted himnot for pursuing an illegal course in arresting and "mugging" apresumptively innocent man (for illegal it most undoubtedly was), butfor inefficiency and maladministration in his department. 

Said the mayor in his written opinion:

"After thinking over this matter with the greatest care, I am led to theconclusion that as mayor of the city of New York I should not orderthe police to stop taking photographs of people arrested and accused ofcrime or who have been indicted by grand juries. That grave injusticemay occur the Duffy case has demonstrated, but I feel that it is not thetaking of the photograph that has given cause to the injustice, but theinefficiency and maladministration of the police department, etc. "

In other words, the mayor set the seal of his official approval uponthe very practice which caused the injustice to Duffy. "Mugging" was allright, so long as you "mugged" the right persons. 

The situation thus outlined was one of more than passing interest. Asensitive point in our governmental nervous system had been touched anda condition uncovered that sooner or later must be diagnosed and cured. 

For the police have no right to arrest and photograph a citizenunconvicted of crime, since it is contrary to law. And it is ridiculousto assert that the very guardians of the law may violate it so long asthey do so judiciously and do not molest the Duffys. The trouble goesdeeper than that. The truth is that we are up against that most delicateof situations, the concrete adjustment of a theoretical individual rightto a practical necessity. The same difficulty has always existed andwill always continue to exist whenever emergencies requiring promptand decisive action arise or conditions obtain that must be handledeffectively without too much discussion. It is easy while sitting on thepiazza with your cigar to recognize the rights of your fellow-men, youmay assert most vigorously the right of the citizen to immunity fromarrest without legal cause, but if you saw a seedy character sneakingdown a side street at three o'clock in the morning, his pockets bulgingwith jewelry and silver! Would you have the policeman on post insiston the fact that a burglary had been committed being established beyondperadventure before arresting the suspect, who in the meantime wouldundoubtedly escape? Of course, the worthy officer sometimes does this, but his conduct in that case becomes the subject of an investigationon the part of his superiors. In fact, the rules of the New York policedepartment require him to arrest all persons carrying bags in the smallhours who cannot give a satisfactory account of themselves. Yet thereis no such thing under the laws of the State as a right "to arrest onsuspicion. " No citizen may be arrested under the statutes unless a crimehas actually been committed. Thus, the police regulations deliberatelycompel every officer either to violate the law or to be made the subjectof charges for dereliction of duty. A confusing state of things, truly, to a man who wants to do his duty by himself and by his fellow-citizens!

The present author once wrote a book dealing with the practicaladministration of criminal justice, in which the unlawfulness of arreston mere "suspicion" was discussed at length and given a prominent place. But when the time came for publication that portion of it was omittedat the earnest solicitation of certain of the authorities on the groundthat as such arrests were absolutely necessary for the enforcementof the criminal law a public exposition of their illegality would doinfinite harm. Now, as it seems, the time has come when the facts, forone reason or another, should be faced. The difficulty does not end, however, with "arrest on suspicion, " "the third degree, " "mugging, " ortheir allied abuses. It really goes to the root of our whole theory ofthe administration of the criminal law. Is it possible that on finalanalysis we may find that our enthusiastic insistence upon certain ofthe supposedly fundamental liberties of the individual has led us intoa condition of legal hypocrisy vastly less desirable than the frankattitude of our continental neighbors toward such subjects?

The Massachusetts Constitution of 1785 concludes with the now famouswords: "To the end that this may be a government of laws and not ofmen. " That is the essence of the spirit of American government. Ourforefathers had arisen and thrown off the yoke of England and herintolerable system of penal government, in which an accused had noright to testify in his own behalf and under which he could be hungfor stealing a sheep. "Liberty!" "Liberty or death!" That was the noteringing in the minds and mouths of the signers of the Declaration andframers of the Constitution. That is the popular note to-day of theFourth of July orator and of the Memorial Day address. This liberty wasto be guaranteed by laws in such a way that it was never to be curtailedor violated. No mere man was to be given an opportunity to tamperwith it. The individual was to be protected at all costs. No king, orsheriff, or judge, or officer was to lay his finger on a free mansave at his peril. If he did, the free man might immediately have his"law"--"have the law on him, " as the good old expression was--for noking or sheriff was above the law. In fact, we were so energetic inproviding safeguards for the individual, even when a wrong-doer, that wepaid very little attention to the effectiveness of kings or sheriffs orwhat we had substituted for them. And so it is to-day. What candidatefor office, what silver-tongued orator or senator, what demagogue orpreacher could hold his audience or capture a vote if, when it came to aquestion of liberty, he should lift up his voice in behalf of the rightsof the majority as against the individual?

Accordingly in devising our laws We have provided in every possible wayfor the freedom of the citizen from all interference on the part of theauthorities. No one may be stopped, interrogated, examined, or arrestedunless a crime has been committed. Every one is presumed to be innocentuntil shown to be guilty by the verdict of a jury. No one's premisesmay be entered or searched without a warrant which the law renders itdifficult to obtain. Every accused has the right to testify in his ownbehalf, like any other witness. The fact that he has been held for acrime by a magistrate and indicted by a grand jury places him at not theslightest disadvantage so far as defending himself against the chargeis concerned, for he must be proven guilty beyond any reasonabledoubt. These illustrations of the jealousy of the law for the rights ofcitizens might be multiplied to no inconsiderable extent. Further, our law allows a defendant convicted of crime to appeal to the highestcourts, whereas if he be acquitted the people or State of New York haveno right of appeal at all. 

Without dwelling further on the matter it is enough to say that ingeneral the State constitutions, their general laws, or penal statutesprovide that a person who is accused or suspected of crime must bepresumed innocent and treated accordingly until his guilt has beenaffirmatively established in a jury trial; that meantime he must not beconfined or detained unless a crime has in fact been committed and thereis at least reasonable cause to believe that he has committed it; and, further, that if arrested he must be given an immediate opportunityto secure bail, to have the advice of counsel, and must in no way becompelled to give any evidence against himself. So much for the law. Itis as plain as a pikestaff. It is printed in the books in words ofone syllable. So far as the law is concerned we have done our bestto perpetuate the theories of those who, fearing that they might bearrested without a hearing, transported for trial, and convicted in aking's court before a king's judge for a crime they knew nothing of, insisted on "liberty or death. " They had had enough of kings and theirways. Hereafter they were to have "a government of laws and not of men. "

But the unfortunate fact remains that all laws, however perfect, must inthe end be administered by imperfect men. There is, alas! no such thingas a government of laws and not of men. You may have a governmentmore of laws and less of men, or vice versa, but you cannot have anauto-administration of the Golden Rule. Sooner or later you come to aman--in the White House, or on a wool sack, or at a desk in an office, or in a blue coat and brass buttons--and then, to a very considerableextent, the question of how far ours is to be a government of laws or ofmen depends upon him. Generally, so far as he is concerned, it is goingto be of man, for every official finds that the letter of the law worksan injustice many times out of a hundred. If he is worth his salary hewill try to temper justice with mercy. If he is human he will endeavorto accomplish justice as he sees it so long as the law can be stretchedto accommodate the case. Thus, inevitably there is a conflictbetween the law and its application. It is the human element in theadministration of the law that enables lawyers to get a living. It isusually not difficult to tell what the law is; the puzzle is how itis going to be applied in any individual case. How it is going to beapplied depends very largely upon the practical side of the matter andthe exigencies of existing conditions. 

It is pretty hard to apply inflexibly laws over a hundred years old. Itis equally hard to police a city of a million or so polyglot inhabitantswith a due regard to their theoretic constitutional rights. But supposein addition that these theoretic rights are entirely theoretic and flyin the face of the laws of nature, experience, and common sense? Whatthen? What is a police commissioner to do who has either got to make anillegal arrest or let a crook get away, who must violate the rights ofmen illegally detained by outrageously "mugging" them or egregiouslyfail to have a record of the professional criminals in his bailiwick?He does just what all of us do under similar conditions--he "takes achance. " But in the case of the police the thing is so necessary thatthere ceases practically to be any "chance" about it. They have got toprevent crime and arrest criminals. If they fail they are out of ajob, and others more capable or less scrupulous take their places. Thefundamental law qualifying all systems is that of necessity. You can'tlet professional crooks carry off a voter's silverware simply becausethe voter, being asleep, is unable instantly to demonstrate beyonda reasonable doubt that his silver has been stolen. You can't permitburglars to drag sacks of loot through the streets of the city at 4 A. M. Simply because they are presumed to be innocent until proven guilty. Andif "arrest on suspicion" were not permitted, demanded by the public, and required by the police ordinances, away would go the crooks and offwould go the silverware, the town would be full of "leather snatchers"and "strong-arm men, " respectable citizens would be afraid to go out o'nights, and liberty would degenerate into license. That is the point. WeAmericans, or at least some of the newer ones of us, have an idea that"liberty" means the right to steal apples from our neighbor's orchardwithout interference. Now, somewhere or other, there has got to be aswitch and a strong arm to keep us in order, and the switch and arm mustnot wait until the apples are stolen and eaten before getting busy. Ifwe come climbing over the fence sweating apples at every pore, is FarmerJones to go and count his apples before grabbing us?

The most presumptuous of all presumptions is this "presumption ofinnocence. " It really doesn't exist, save in the mouths of judges and inthe pages of the law books. Yet as much to-do is made about it as ifit were a living legal principle. Every judge in a criminal case isrequired to charge the jury in form or substance somewhat as follows:"The defendant is presumed to be innocent until that presumption isremoved by competent evidence". .. "This presumption is his property, remaining with him throughout the trial and until rebutted by theverdict of the jury. ". .. "The jury has no right to consider the factthat the defendant stands at the bar accused of a crime by an indictmentfound by the grand jury. " Shades of Sir Henry Hawkins! Does the judgeexpect that they are actually to swallow that? Here is a jury sworn "toa true verdict find" in the case of an ugly looking customer at the barwho is charged with knocking down an old man and stealing his watch. Theold man--an apostolic looking octogenarian--is sitting right over therewhere the jury can see him. One look at the plaintiff and one at theaccused and the jury may be heard to mutter, "He's guilty, --all right!"

"Presumed to be innocent?" Why, may I ask? Do not the jury and everybodyelse know that this good old man would never, save by mistake, accuseanybody falsely of crime? Innocence! Why, the natural and inevitablepresumption is that the defendant is guilty! The human mind worksintuitively by comparison and experience. We assume or presume withconsiderable confidence that parents love their children, that allcollege presidents are great and good men, and that wild bulls aredangerous animals. We may be wrong. But it is up to the other fellow toshow us the contrary. 

Now, if out of a clear sky Jones accuses Robinson of being a thief weknow by experience that the chances are largely in favor of Jones'saccusation being well founded. People as a rule don't go rushing aroundcharging each other with being crooks unless they have some reasonfor it. Thus, at the very beginning the law flies in the face ofprobabilities when it tells us that a man accused of crime must bepresumed to be innocent. In point of fact, whatever presumption there is(and this varies with the circumstances) is all the other way, greateror less depending upon the particular attitude of mind and experience ofthe individual. 

This natural presumption of guilt from the mere fact of the charge isrendered all the more likely by reason of the uncharitable readinesswith which we believe evil of our fellows. How unctuously we repeat somehearsay bit of scandal. "I suppose you have heard the report thatDeacon Smith has stolen the church funds?" we say to our friends with asententious sigh--the outward sign of an invisible satisfaction. DeaconSmith after the money-bag? Ha! ha! Of course, he's guilty! These deaconsare always guilty! And in a few minutes Deacon Smith is ruined forever, although the fact of the matter may well have been that he was butcounting the money in the collection-plate. This willingness to believethe worst of others is a matter of common knowledge and of historicaland literary record. "The evil that men do lives after them--" It mightwell have been put, "The evil men are said to have done lives forever. "However unfair, this is a psychologic condition which plays an importantpart in rendering the presumption of innocence a gross absurdity. 

But let us press the history of Jones and Robinson a step further. Thenext event in the latter's criminal history is his appearance incourt before a magistrate. Jones produces his evidence and calls hiswitnesses. Robinson, through his learned counsel, cross-examinesthem and then summons his own witnesses to prove his innocence. Theproceeding may take several days or perhaps weeks. Briefs are submitted. The magistrate considers the testimony and finally decides that hebelieves Robinson guilty and must hold him for the action of thegrand jury. You might now, it would perhaps seem, have some reason forsuspecting that Robinson was not all that he should be. But no! He isstill presumed in the eyes of the law, and theoretically in the eyes ofhis fellows, to be as innocent as a babe unborn. And now the grand jurytake up and sift the evidence that has already been gone over by thepolice judge. They, too, call witnesses and take additional testimony. They likewise are convinced of Robinson's guilt and straightway handdown an indictment accusing him of the crime. A bench warrant issues. The defendant is run to earth and ignominiously haled to court. But heis still presumed to be innocent! Does not the law say so? And is notthis a "government of laws"? Finally, the district attorney, who is notlooking for any more work than is absolutely necessary, investigates thecase, decides that it must be tried and begins to prepare it for trial. As the facts develop themselves Robinson's guilt becomes more and moreclear. The unfortunate defendant is given any opportunity he may desireto explain away the charge, but to no purpose. 

The district attorney knows Robinson is guilty, and so does everybodyelse, including Robinson. At last this presumably innocent man isbrought to the bar for trial. The jury scan his hang-dog countenanceupon which guilt is plainly written. They contrast his appearance withthat of the honest Jones. They know he has been accused, held by amagistrate, indicted by a grand jury, and that his case, after carefulscrutiny, has been pressed for trial by the public prosecutor. Do theyreally presume him innocent? Of course not. They presume him guilty. "Sosoon as I see him come through dot leetle door in the back of the room, then I know he's guilty!" as the foreman said in the old story. Whatgood does the presumption of innocence, so called, do for the miserableRobinson? None whatever--save perhaps to console him in the long dayspending his trial. But such a legal hypocrisy could never have deceivedanybody. How much better it would be to cast aside all such cant andfrankly admit that the attitude of the continental law toward the manunder arrest is founded upon common sense and the experience of mankind. If he is the wrong man it should not be difficult for him to demonstratethe fact. At any rate circumstances are against him, and he should beanxious to explain them away if he can. 

The fact of the matter is, that in dealing with practical conditions, police methods differ very little in different countries. Theauthorities may perhaps keep considerably more detailed "tabs" on peoplein Europe than in the United States, but if they are once caught in acompromising position they experience about the same treatment whereverthey happen to be. In France (and how the apostles of liberty condemnthe iniquity of the administration of criminal justice in that country!)the suspect or undesirable receives a polite official call or note, inwhich he is invited to leave the locality as soon as convenient. InNew York he is arrested by a plainclothes man, yanked down to MulberryStreet for the night, and next afternoon is thrust down the gangplankof a just departing Fall River liner. Many an inspector has earnedunstinted praise (even from the New York Evening Post) by "clearing NewYork of crooks" or having a sort of "round-up" of suspicious characterswhom, after proper identification, he has ejected from the city by theshortest and quickest possible route. Yet in the case of every personthus arrested and driven out of the town he has undoubtedly violatedconstitutional rights and taken the law into his own hands. 

What redress can a penniless tramp secure against a stout inspector ofpolice able and willing to spend a considerable sum of money in his owndefence, and with the entire force ready and eager to get at the trampand put him out of business? He swallows his pride, if he has any, andruefully slinks out of town for a period of enforced abstinence from thejoys of metropolitan existence. Yet who shall say that, in spite of thefact that it is a theoretic outrage upon liberty, this cleaning out ofthe city is not highly desirable? One or two comparatively innocent menmay be caught in the ruck, but they generally manage to intimate to thepolice that the latter have "got them wrong" and duly make theirescape. The others resume their tramp from city to city, clothed in thepresumption of their innocence. 

Since the days of the Doges or of the Spanish Inquisition there hasnever been anything like the morning inspection or "line up" of arrestedsuspects at the New York police head-quarters. * (*Now abolished. ) One byone the unfortunate persons arrested during the previous night (althoughnot charged with any crime) are pointed out to the assembled detectiveforce, who scan them from beneath black velvet masks in order that theythemselves may not be recognized when they meet again on Broadway orthe darker side streets of the city. Each prisoner is described and hischaracter and past performances are rehearsed by the inspector or headof the bureau. He is then measured, "mugged, " and, if lucky, turnedloose. What does his liberty amount to or his much-vaunted legal rightsif the city is to be made safe? Yet why does not some apostle of libertyraise his voice and cry aloud concerning the wrong that has been done?Are not the rights of a beggar as sacred as those of a bishop?

One of the most sacred rights guaranteed under the law is that of notbeing compelled to give evidence against ourselves or to testify toanything which might degrade or incriminate us. Now, this is all veryfine for the chap who has his lawyer at his elbow or has had somesimilar previous experience. He may wisely shut up like a clam and setat defiance the tortures of the third degree. But how about the poorfellow arrested on suspicion of having committed a murder, who has neverheard of the legal provision in question, or, if he has, is cajoled orthreatened into "answering one or two questions"? Few police officerstake the trouble to warn those whom they arrest that what they say maybe used against them. What is the use? Of course, when they testifylater at the trial they inevitably begin their testimony with thestereotyped phrase, "I first warned the defendant that anything whichhe said might be used against him. " If they did warn him they probablywhispered it or mumbled it so that he didn't hear what they said, or, in any event, whether they said it or not, half a dozen of them probablytook him into a back room and, having set him with his back against thewall, threatened and swore at him until he told them what he knew, orthought he knew, and perhaps confessed his crime. When the case comes totrial the police give the impression that the accused quietly summonedthem to his cell to make a voluntary statement. The defendant deniesthis, of course, but the evidence goes in and the harm has been done. Nodoubt the methods of the inquisition are in vogue the world over undersimilar conditions. Everybody knows that a statement by the accusedimmediately upon his arrest is usually the most important evidence thatcan be secured in any case. It is a police officer's duty to secure oneif he can do so by legitimate means. It is his custom to secure oneby any means in his power. As his oath, that such a statement wasvoluntary, makes it ipso facto admissible as evidence, the statutesproviding that a defendant cannot be compelled to give evidence againsthimself are practically nullified. 

In the more important cases the accused is usually put through some sortof an inquisitorial process by the captain at the station-house. Ifhe is not very successful at getting anything out of the prisoner thelatter is turned over to the sergeant and a couple of officers who canuse methods of a more urgent character. If the prisoner is arrestedby headquarters detectives, various efficient devices to compel him to"give up what he knows" may be used--such as depriving him of food andsleep, placing him in a cell with a "stool pigeon" who will try to worma confession out of him, and the usual moral suasion of a heart-to-hearttalk in the back room with the inspector. 

This is the darker side of the picture of practical government. Itis needless to say that the police do not always suggest the varioussafeguards and privileges which the law accords to defendants thusarrested, but the writer is free to confess that, save in exceptionalcases, he believes the rigors of the so-called third degree to begreatly exaggerated. Frequently in dealing with rough men rough methodsare used, but considering the multitude of offenders, and the thousandsof police officers, none of whom have been trained in a school ofgentleness, it is surprising that severer treatment is not generallymet with on the part of those who run afoul of the criminal law. Theordinary "cop" tries to do his duty as effectively as he can. With theaverage citizen gruffness and roughness go a long way in the assertionof authority. In the task of policing a big city, the rights of theindividual must indubitably suffer to a certain extent if the rightsof the multitude are to be properly protected. We can make too much ofsmall injustices and petty incivilities. Police business is not gentlebusiness. The officers are trying to prevent you and me from beingknocked on the head some dark night or from being chloroformed in ourbeds. Ten thousand men are trying to do a thirty-thousand-man job. Thestruggle to keep the peace and put down crime is a hard one anywhere. It requires a strong arm that cannot show too punctilious a regard fortheoretical rights when prompt decisions have to be made and equallyprompt action taken. The thieves and gun men have got to be drivenout. Suspicious characters have got to be locked up. Somehow or other arecord must be kept of professional criminals and persons likely tobe active in law-breaking. These are necessities in every civilizedcountry. They are necessities here. Society employs the same methods ofself-protection the world over. No one presumes a person charged withcrime to be innocent, either in Delhi, Pekin, Moscow, or New York. Underproper circumstances we believe him guilty. When he comes to be triedthe jury consider the evidence, and if they are reasonably sure he isguilty they convict him. The doctrine of reasonable doubt is almost asmuch of a fiction as that of the presumption of innocence. From thetime a man is arrested until arraignment he is quizzed with a view toinducing him to admit his offence or give some evidence that may helpconvict him. Logically, why should not a person charged with a crimebe obliged to give what explanation he can of the affair? Why should hehave the privilege of silence? Doesn't he owe a duty to the public thesame as any other witness? If he is innocent he has nothing to fear; ifhe is guilty--away with him! The French have no false ideas about suchthings and at the same time they have a high regard for liberty. Wemerely cheat ourselves into thinking that our liberty is somethingdifferent from French liberty because we have a lot of laws upon ourstatute books that are there only to be disregarded and would have to berepealed instantly if enforced. 

Take, for instance, the celebrated provision of the penal laws that thefailure of an accused to testify in his own behalf shall not be takenagainst him. Such a doctrine flies in the face of human nature. If aman sits silent when witnesses under oath accuse him of a crime it is aninevitable inference that he has nothing to say--that no explanation ofhis would explain. The records show that the vast majority of accusedpersons who do not avail themselves of the opportunity to testify areconvicted. Thus, the law which permits a defendant to testify in realitycompels him to testify, and a much-invoked safeguard of liberty turnsout to be a privilege in name only. In France or America alike a manaccused of crime sooner or later has to tell what he knows--or takehis medicine. It makes little difference whether he does so under thelegalized interrogation of a "juge d'instruction" in Paris or under thequasi-voluntary examination of an assistant district attorney or policeinspector in New York. It is six of one and half a dozen of the other ifat his trial in France he remains mute under examination or in Americarefrains from availing himself of the privilege of testifying in his ownbehalf. 

Thus, we are reluctantly forced to the conclusion that all humaninstitutions have their limitations, and that, however theoreticallyperfect a government of laws may be, it must be administered by menwhose chief regard will not be the idealization of a theory of libertyso much as an immediate solution of some concrete problem. 

Not that the matter, after all, is particularly important to most of us, but laws which exist only to be broken create a disrespect and disregardfor law which may ultimately be dangerous. It would be perfectly simplefor the legislature to say that a citizen might be arrested undercircumstances tending to create a reasonable suspicion, even if he hadnot committed a crime, and it would be quite easy to pass a statuteproviding that the commissioner of police might "mug" and measure allcriminals immediately after conviction. As it is, the prison authoritieswon't let him, so he has to do it while he has the opportunity. 

It must be admitted that this is rather hard on the innocent, but theynow have to suffer with the guilty for the sins of an indolent anduninterested legislature. Moreover, if such a right of arrest wereproposed, some wiseacre or politician would probably rise up anddenounce the suggestion as the first step in the direction of a militarydictatorship. Thus, we shall undoubtedly fare happily on in theblissful belief that our personal liberties are the subject of the mostsolicitous and zealous care on the part of the authorities, guaranteedto us under a government which is not of men but of laws, until oneof us happens to be arrested (by mistake, of course) and learns by sadexperience the practical methods of the police in dealing with criminalsand the agreeable but deceptive character of the pleasant fiction of thepresumption of innocence. 

CHAPTER II. Preparing a Criminal Case for Trial

When the prosecuting attorney in a great criminal trial arises to openthe case to the impanelled jury, very few, if any, of them have theslightest conception of the enormous expenditure of time, thought andlabor which has gone into the preparation of the case and made possiblehis brief and easily delivered speech. For in this opening address ofhis there must be no flaw, since a single misstated or overstated factmay prejudice the jury against him and result in his defeat. Uponit also depends the jury's first impression of the case and of theprosecutor himself--no inconsiderable factor in the result. In a trialof importance its careful construction with due regard to what factsshall be omitted (in order to enhance their dramatic effect whenultimately proven) may well occupy the district attorney every eveningfor a week. But if the speech itself has involved study and travail, itis as nothing compared with the amount required by that most importantfeature of every criminal case--the selection of the jury. 

For a month before the trial, or whenever it may be that the jury hasbeen drawn, every member upon the panel has been subjected to an unseenscrutiny. The prosecutor, through his own or through hired sleuths, hasexamined into the family history, the business standing and methods, thefinancial responsibility, the political and social affiliations, and thepersonal habits and "past performances" of each and every talesman. Whenat the beginning of the trial they, one by one, take the witness-chair(on what is called the voir dire) to subject themselves to anexamination by both sides as to their fitness to serve as jurors inthe case, the district attorney probably has close fit hand a ratherdetailed account of each, and perchance has great difficulty inrestraining a smile. When some prospective juror, in his eagernesseither to serve or to escape, deliberately equivocates in answer to animportant question as to his personal history. 

"Are you acquainted with the accused or his family?" mildly inquires theassistant prosecutor. "No--not at all, " the talesman may blandly reply. 

The answer, perhaps, is literally true, and yet the prosecutor may bepardoned for murmuring

"Liar!" to himself as he sees that his memorandum concerning the juror'squalifications states that he belongs to the same "lodge" with theprisoner's uncle by marriage and carries an open account on his bookswith the defendant's father. 

"I think we will excuse Mr. Ananias, " politely remarks the prosecutor;then in an undertone he turns to his chief and mutters: "The old rascal!He would have knifed us if we'd given him the chance!" And all this timethe disgruntled Mr. Ananias is wondering why, if he didn't "know thedefendant or his family, " he was not accepted as a juror. 

Of course, every district attorney has, or should have, information asto each talesman's actual capabilities as a juror and something ofa record as to how he has acted under fire. If he is a member of the"special" panel, it is easy to find out whether he has ever acquittedor convicted in any cause celebre, and if he has acquitted any plainlyguilty defendant in the past it is not likely that his services willbe required. If, however, he has convicted in such a case the districtattorney may try to lure the other side into accepting him by makingit appear that he himself is doubtful as to the juror's desirability. Sometimes persons accused of crime themselves, and actually underindictment, find their way onto the panels, and more than one ex-convicthas appeared there in some inexplicable fashion. But to find them outmay well require a double shift of men working day and night for a monthbefore the case is called, and what may appear to be the most trivialfact thus discovered may in the end prove the decisive argument for oragainst accepting the juror. 

Panel after panel may be exhausted before a jury in a great murdertrial has been selected, for each side in addition to its challengesfor "cause" or "bias" has thirty* peremptory ones which it may exercisearbitrarily. If the writer's recollection is not at fault, the largeoriginal panel drawn in the first Molineux trial was used up andseveral others had to be drawn until eight hundred talesmen had beeninterrogated before the jury was finally selected. It is usual toexamine at least fifty in the ordinary murder case before a jury issecured. 

 * In the State of New York. 

It may seem to the reader that this scrutiny of talesmen is not strictlypreparation for the trial, but, in fact, it is fully as importantas getting ready the facts themselves; for a poor jury, either fromignorance or prejudice, will acquit on the same facts which will leada sound jury to convict. A famous prosecutor used to say, "Get yourjury--the case will take care of itself. "

But as the examination of the panel and the opening address come lastin point of chronology it will be well to begin at the beginning andsee what the labors of the prosecutor are in the initial stages ofpreparation. Let us take, for example, some notorious case, where anunfortunate victim has died from the effects of a poisoned pill ordraught of medicine, or has been found dead in his room with a revolverbullet in his heart. Some time before the matter has come into the handsof the prosecutor, the press and the police have generally been doingmore or less (usually less) effective work upon the case. The yellowjournals have evolved some theory of who is the culprit and have loosedtheir respective reporters and "special criminologists" upon him. Eachhas its own idea and its own methods--often unscrupulous. And each hasits own particular victim upon whom it intends to fasten the blame. Heaven save his reputation! Many an innocent man has been ruined forlife through the efforts of a newspaper "to make a case, " and, ofcourse, the same thing, though happily in a lesser degree, is true ofthe police and of some prosecutors as well. 

In every great criminal case there are always four different andfrequently antagonistic elements engaged in the work of detection andprosecution--first, the police; second, the district attorney; third, the press; and, lastly, the personal friends and family of the deceasedor injured party. Each for its own ends--be it professional pride, personal glorification, hard cash, or revenge--is equally anxious tofind the evidence and establish a case. Of course, the police are thefirst ones notified of the commission of a crime, but as it is nowalmost universally their duty to inform at once the coroner and alsothe district attorney thereof, a tripartite race for glory frequentlyresults which adds nothing to the dignity of the administration ofcriminal justice. 

The coroner is at best no more than an appendix to the legal anatomy, and frequently he is a disease. The spectacle of a medical man ofsmall learning and less English trying to preside over a court of firstinstance is enough to make the accused himself chuckle for joy. 

Not long ago the coroners of New York discovered that, owing to thefact that the district attorney or his representatives generallyarrived first at the scene of any crime, there was nothing left for the"medicos" to do, for the district attorney would thereupon submit thematter at once to the grand jury instead of going through the formalityof a hearing in the coroner's court. The legal medicine men feltaggrieved, and determined to be such early birds that no worm shouldescape them. Accordingly, the next time one of them was notified of ahomicide he raced his horse down Madison Avenue at such speed that hecollided with a trolley car and broke his leg. 

Another complained to the district attorney that the assistants of thelatter, who had arrived at the scene of an asphyxiation before him, hadbungled everything. 

"Ach, dose young men!" he exclaimed, wringing his hands--"Dose youngmen, dey come here and dey opened der vindow and let out der gas and allmine evidence esgaped. "

It is said that this interesting personage once instructed his juryto find that "the diseased came to his death from an ulster on thestomach. "

These anecdotes are, perhaps, what judges would call obiter dicta, yetthe coroner's court has more than once been utilized as a field in theactual preparation of a criminal case. When Roland B. Molineux was firstsuspected of having caused the death of Mrs. Adams by sending the famouspoisoned package of patent medicine to Harry Cornish through themails, the assistant district attorney summoned him as a witness to thecoroner's court and attempted to get from him in this way a statementwhich Molineux would otherwise have refused to make. 

When all the first hullabaloo is over and the accused is under arrestand safely locked up, it is usually found that the police have merelyrun down the obvious witnesses and made a prima facie case. All thefiner work remains to be done either by the district attorney himselfor by the detective bureau working under his immediate direction orin harmony with him. Little order has been observed in the securing ofevidence. Every one is a fish who runs into the net of the police, andall is grist that comes to their mill. The district attorney sendsfor the officers who have worked upon the case and for the captainor inspector who has directed their efforts, takes all the papers andtabulates all their information. His practiced eye shows him at oncethat a large part is valueless, much is contradictory, and all needscareful elaboration. A winnowing process occurs then and there; andthe officers probably receive a "special detail" from headquarters andthereafter take their orders from the prosecutor himself. The detectivebureau is called in and arrangements made for the running down ofparticular clues. Then he will take off his coat, clear his desk, andget down to work. 

Of course, his first step is to get all the information he can as to theactual facts surrounding the crime itself. He immediately subpoenas allthe witnesses, whether previously interrogated by the police or not, who know anything about the matter, and subjects them to a rigorouscross-examination. Then he sends for the police themselves andcross-examines them. If it appears that any witnesses have disappearedhe instructs his detectives how and where to look for them. Often thisbecomes in the end the most important element in the preparation forthe trial. Thus in the Nan Patterson case the search for and ultimatediscovery of Mr. And Mrs. Morgan Smith (the sister and brother-in-law ofthe accused) was one of its most dramatic features. After they had beenfound it was necessary to indict and then to extradite them in orderto secure their presence within the jurisdiction, and when all this hadbeen accomplished it proved practically valueless. 

It frequently happens that an entire case will rest upon the testimonyof a single witness whose absence from the jurisdiction would preventthe trial. An instance of such a case was that of Albert T. Patrick, forwithout the testimony of his alleged accomplice--the valet, Jones--hecould not have been convicted of murder. The preservation of such awitness and his testimony thus becomes of paramount importance, andrascally witnesses sometimes enjoy considerable ease, if not luxury, atthe expense of the public while waiting to testify. Often, too, a caseof great interest will arise where the question of the guilt of theaccused turns upon the evidence of some one person who, either frommercenary motives or because of "blood and affection, " is unwillingto come to the fore and tell the truth. A striking case of this sortoccurred some ten years ago. The "black sheep" of a prominent New Yorkfamily forged the name of his sister to a draft for thirty thousanddollars. This sister, who was an elderly woman of the highest characterand refinement, did not care to pocket the loss herself and declined tohave the draft debited to her account at the bank. A lawsuit followed, in which the sister swore that the name signed to the draft was not inher handwriting. She won her case, but some officious person laid thematter before the district attorney. The forger was arrested andhis sister was summoned before the grand jury. Here was a pleasantpredicament. If she testified for the State her brother wouldundoubtedly go to prison for many years, to say nothing of the notorietyfor the entire family which so sensational a case would occasion. She, therefore, slipped out of the city and sailed for Europe the nightbefore she was to appear before the grand jury. Her brother was in duecourse indicted and held for trial in large bail, but there was andis no prospect of convicting him for his crime so long as his sisterremains in the voluntary exile to which she has subjected herself. Shecan never return to New York to live unless something happens either tothe indictment or her brother, neither of which events seems likely inthe immediate future. 

Perhaps, if the case is one of shooting, the weapon has vanished. Itsdiscovery may lead to the finding of the murderer. In one instance wherea body was found in the woods with a bullet through the heart, there wasnothing to indicate who had committed the crime. The only scintilla ofevidence was an exploded cartridge--a small thing on which to builda case. But the district attorney had the hammer marks upon the capmagnified several hundred times and then set out to find the rifle whichbore the hammer which had made them. Thousands of rifles all over theState were examined. At last in a remote lumber camp was found theweapon which had fired the fatal bullet. The owner was arrested, accusedof the murder, and confessed his crime. In like manner, if it becomesnecessary to determine where a typewritten document was prepared theletters may be magnified, and by examining the ribbons of suspectedmachines the desired fact may be ascertained. The magnifying glass stillplays an important part in detecting crime, although usually in wayslittle suspected by the general public. 

On the other hand, where the weapon has not been spirited away thedetectives may spend weeks in discovering when and where it waspurchased. Every pawnshop, every store where a pistol could be bought, is investigated, and under proper circumstances the requisite evidenceto show deliberation and premeditation may be secured. 

These investigations are naturally conducted at the very outset of thepreparation of the case. 

The weapon, in seven trials out of ten, is the most important thing init. By its means it can generally be demonstrated whether the shootingwas accidental or intentional--and whether or not the killing was inself-defence. 

Where this last plea is interposed it is usually made at once upon thearrest, the accused explaining to the police that he fired only tosave his own life. In such a situation, where the killing is admitted, practically the entire preparation will centre upon the most minutetests to determine whether or not the shot was fired as the accusedclaims that it was. The writer can recall at least a dozen cases in hisown experience where the story of the defendant, that the revolver wasdischarged in a hand-to-hand struggle, was conclusively disproved byexperimenting with the weapon before the trial. There was one homicidein which a bullet perforated a felt cap and penetrated the forehead ofthe deceased. The defendant asserted that he was within three feet ofhis victim when he fired, and that the other was about to strike himwith a bludgeon. A quantity of felt, of weight similar to that ofthe cap, was procured and the revolver discharged at it from varyingdistances. A microscopic examination showed that certain discolorationsaround the bullet-hole (claimed by the defence to be burns made by thepowder) were, in fact, grease marks, and that the shot must have beenfired from a distance of about fifteen feet. The defendant was convictedon his own story, supplemented by the evidence of the witness who madethe tests. 

The most obvious and first requirement is, as has been said, to findthe direct witnesses to the facts surrounding the crime, commit theirstatements under oath to writing, so that they cannot later be deniedor evaded, and make sure that these witnesses will not only hold nointercourse with the other side, but will be on hand when wanted. Thislast is not always an easy task, and various expedients often have tobe resorted to, such as placing hostile witnesses under policesurveillance, or in some cases in "houses of detention, " and hidingothers in out-of-the-way places, or supplying them with a bodyguard ifviolence is to be anticipated. When the proper time comes the favorablewitnesses must be duly drilled or coached, which does not imply anythingimproper, but means merely that they must be instructed how to delivertheir testimony, what answers are expected to certain questions, andwhat facts it is intended to elicit from them. Witnesses are oftenoffended and run amuck because they are not given a chance upon thestand to tell the story of their lives. This must be guarded against andsteps taken to have their statements given in such a way that they areaudible and intelligible. A few lessons in elementary elocution aregenerally vitally necessary. The man with the bassoon voice must betamed, and the birdlike old lady made to chirp more loudly. But all thisis the self-evident preparation which must take place in every case, andwhile highly important is of far less interest than the developmentof the circumstantial evidence which is the next consideration of thedistrict attorney. 

The discovery and proper proof of minute facts which tend to demonstratethe guilt of an accused are the joy of the natural prosecutor, and hemay in his enthusiasm spend many thousands of dollars on what seems, andoften is, an immaterial matter. Youthful officials intrusted with thepreparation of important cases often become unduly excited and forgetthat the taxpayers are paying the bills. The writer remembers sittingbeside one of these enthusiasts during a celebrated trial. A certainwoman witness had incidentally testified to a remote meeting withthe deceased at which a certain other woman was alleged to have beenpresent. The matter did not seem of much interest or importance, butthe youth in question seized a yellow pad and excitedly wrote in bluepencil, "Find Birdie" (the other lady) "at any cost!" This he handedto a detective, who hastened importantly away. It is to be hoped that"Birdie" was found speedily and in an inexpensive manner. 

When the case against Albert T. Patrick, later convicted of the murderof the aged William M. Rice, was in course of preparation, it was founddesirable to show that Patrick had called up his accomplice on thetelephone upon the night of the murder. Accordingly, the telephonecompany was compelled to examine several hundred thousand telephoneslips to determine whether or not this had actually occurred. While thefact was established in the affirmative, the company now destroys itsslips in order not to have to repeat the performance a second time. 

Likewise, in the preparation of the Molineux case it became importantto demonstrate that the accused had sent a letter under an assumed nameordering certain remedies. As a result, one of the employees of thepatent-medicine company spent several months going over their old mailorders and comparing them with a certain sample, until at last theletter was unearthed. Of course, the district attorney had to pay forit, and it was probably worth what it cost to the prosecution, althoughMolineux's conviction was reversed by the Court of Appeals and he wasacquitted upon his second trial. 

The danger is, however, that a prosecutor who has an unlimited amountof money at his disposal may be led into expenditures which are hardlyjustified simply because he thinks they may help to secure a conviction. Nothing is easier than to waste money in this fashion, and publicofficials sometimes spend the county's money with considerably morefreedom than they would their own under similar circumstances. 

The legitimate expenses connected with the preparation of everyimportant case are naturally large. For example, diagrams must beprepared, photographs taken of the place of the crime, witnessescompensated for their time and their expenses paid, and, most importantof all, competent experts must be engaged. This leads us to aninteresting aspect of the modern jury trial. 

When no other defence to homicide is possible the claim of insanity isfrequently interposed. Nothing is more confusing to the ordinary jurymanthan trying to determine the probative value of evidence touchingunsoundness of mind, and the application thereto of the legal testof criminal responsibility. In point of fact, juries are hardly to beblamed for this, since the law itself is antiquated and the subject oneabounding in difficulty. Unfortunately the opportunity for vague yetdamaging testimony on the part of experts, the ease with whichany desired opinion can be defended by a slight alteration in thehypothetical facts, and the practical impossibility of exposure, have been seized upon with avidity by a score or more of unscrupulousalienists who are prepared to sell their services to the highest bidder. These men are all the more dangerous because, clever students of mentaldisease and thorough masters of their subject as they are, they are ableby adroit qualifications and skilful evasions to make half-truths seemas convincing as whole ones. They ask and receive large sums for theirservices, and their dishonest testimony must be met and refuted by theevidence of honest physicians, who, by virtue of their attainments, havea right to demand substantial fees. Even so, newspaper reports of theexpense to the State of notorious trials are grossly exaggerated. The entire cost of the first Thaw trial to the County of New York wasconsiderably less than twenty thousand dollars, and the second trialnot more than half that amount. To the defence, however, it was a costlymatter, as the recent schedules in bankruptcy of the defendant show. Therein it appears that one of his half-dozen counsel still claimsas owing to him for his services on the first trial the modest sum ofthirty-five thousand dollars. The cost of the whole defence was probablyten times that sum. Most of the money goes to the lawyers, and theexperts take the remainder. 

It goes without saying that both prosecutor and attorney for the defencemust be masters of the subject involved. A trial for poisoning meansan exhaustive study not only of analytic chemistry, but of practicalmedicine on the part of all the lawyers in the case, while a plea ofinsanity requires that, for the time being, the district attorney shallbecome an alienist, familiar with every aspect of paranoia, dementiapraecox, and all other forms of mania. He must also reduce his knowledgeto concrete, workable form, and be able to defeat opposing expertson their own ground. But such knowledge comes only by prayer andfasting--or, perhaps, rather by months of hard and remorseless grind. 

The writer once prosecuted a druggist who had, by mistake, filleda prescription for a one-fourth-grain pill of calomel with aone-fourth-grain pill of morphine. The baby for whom the pill wasintended died in consequence. The defence was that the prescriptionhad been properly filled, but that the child was the victim of variousdiseases, from acute gastritis to cerebro-spinal meningitis. Inpreparation the writer was compelled to spend four hours every eveningfor a week with three specialists, and became temporarily a minor experton children's diseases. To-day he is forced to admit that he would notknow a case of acute gastritis from one of mumps. But the druggist wasconvicted. 

Yet it is not enough to prepare for the defence you believe the accusedis going to interpose. A conscientious preparation means getting readyfor any defence he may endeavor to put in. Just as the prudent generalhas an eye to every possible turn of the battle and has, if he can, re-enforcements on the march, so the prosecutor must be ready foranything, and readiest of all for the unexpected. He must not rest uponthe belief that the other side will concede any fact, however clearit may seem. Some cases are lost simply because it never occurs to thedistrict attorney that the accused will deny something which the Statehas twenty witnesses to prove. The twenty witnesses are, therefore, notsummoned on the day of trial, the defendant does deny it, and as it is acase of word against word the accused gets the benefit of the doubt and, perhaps, is acquitted. 

No case is properly prepared unless there is in the court-room everywitness who knows anything about any aspect of the case. No one canforetell when the unimportant will become the vital. Most cases turnon an unconsidered point. A prosecutor once lost what seemed to him theclearest sort of a case. When it was all over, and the defendant hadpassed out of the courtroom rejoicing, he turned to the foreman andasked the reason for the verdict. 

"Did you hear your chief witness say he was a carpenter?" inquired theforeman. 

"Why, certainly, " answered the district attorney, "Did you hear me ask him what he paid for that ready-made pine door heclaimed to be working on when he saw the assault?"

The prosecutor recalled the incident and nodded. 

"Well, he said ten dollars--and I knew he was a liar. A door like thatdon't cost but four-fifty!"

It is, perhaps, too much to require a knowledge of carpentry on the partof a lawyer trying an assault case. Yet the juror was undoubtedly rightin his deduction. 

In a case where insanity is the defence, the State must dig up and haveat hand every person it can find who knew the accused at any period ofhis career. He will probably claim that in his youth he was kicked ina game of foot-ball and fractured his skull, that later he fell into anelevator shaft and had concussion of the brain, or that he was hit onthe head by a burglar. It is usually difficult, if not impossible, todisprove such assertions, but the prosecutor must be ready, if he can, to show that foot-ball was not invented until after the defendant hadattained maturity, that it was some other man who fell down the elevatorshaft, and to produce the burglar to deny that the assault occurred. Naturally, complete preparation for an important trial demands thepresence of many witnesses who ultimately are not needed and who arenever called. Probably in most such cases about half the witnessesdo not testify at all. Most of what has been said relates to thepreparation for trial of cases where the accused is already under arrestwhen the district attorney is called into the case. If this stage hasnot been reached the prosecutor may well be called upon to exercise someof the functions of a detective in the first instance. 

A few years ago it was brought to the attention of the New Yorkauthorities that many blackmailing letters were being received bearingthe name of "Lewis Jarvis. " These were of a character to render theapprehension of the writer of them a matter of much importance. Theletters directed that the replies be sent to a certain box in the NewYork post-office, but as the boxes are numerous and close together itseemed doubtful if "Lewis Jarvis" could be detected when he calledfor his mail. The district attorney, the police, and the post-officeofficials finally evolved the scheme of plugging the lock of "LewisJarvis's" box with a match. The scheme worked, for "Jarvis, " findingthat he could not use his key, went to the delivery window and asked forhis mail. The very instant the letters reached his hand the gyves wereupon the wrists of one of the best-known attorneys in the city. 

When the district attorney has been apprised that a crime has beencommitted, and that a certain person is the guilty party, he notinfrequently allows the suspect to go his way under the careful watchof detectives, and thus often secures much new evidence against him. Inthis way it is sometimes established that the accused has endeavoredto bribe the witnesses and to induce them to leave the State, whilethe whereabouts of stolen loot is often discovered. In most instances, however, the district attorney begins where the police leave off, andhe merely supplements their labors and prepares for the actual trialitself. But the press he has always with him, and from the first momentafter the crime up to the execution of the sentence or the liberation ofthe accused, the reporters dog his footsteps, sit on his doorstep, anddeluge him with advice and information. 

Now a curious feature about the evidence "worked up" by reporters fortheir papers is that little of it materializes when the prosecutorwishes to make use of it. Of course, some reporters do excellentdetective work, and there are one or two veterans attached to thecriminal courts in New York City who, in addition to their literarycapacities, are natural-born sleuths, and combine with a knowledge ofcriminal law, almost as extensive as that of a regular prosecutor, aresourcefulness and nerve that often win the case for whichever sidethey espouse. I have frequently found that these men knew more about thecases which I was prosecuting than I did myself, and a tip from them hasmore than once turned defeat into victory. But newspaper men, for onereason or another, are loath to testify, and usually make but poorwitnesses. They feel that their motives will be questioned, and arenaturally unwilling to put themselves in an equivocal position. The writer well remembers that in the Mabel Parker case, where thedefendant, a young and pretty woman, had boasted of her forgeries beforea roomful of reporters, it was impossible, when her trial was called, tofind more than one of them who would testify--and he had practically tobe dragged to the witness chair. In point of fact, if reporters made apractice of being witnesses it would probably hurt their business. But, however much "faked" news may be published, a prosecutor who did notlisten to all the hints the press boys had to give would make a greatmistake; and as allies and advisers they are often invaluable, for theycan tell him where and how to get evidence of which otherwise he wouldnever hear. 

The week before a great case is called is a busy one for the prosecutorin charge. He is at his office early to interview his main witnesses andgo over their testimony with them so that their regular daily workmay not be interrupted more than shall be actually necessary. Some hecautions against being overenthusiastic and others he encourages togreater emphasis. The bashful "cop" is badgered until at last he ceasesto begin his testimony in the cut-and-dried police fashion. 

"On the morning of the twenty-second of July, about 3. 30 A. M. , while onpost at the corner of Desbrosses Street--, " he starts. 

"Oh, quit that!" shouts the district attorney. "Tell me what you saw inyour own words. "

The "cop" blushes and stammers:

"Aw, well, on the morning of the twenty-second of July, about 3. 30 A. M. "

"Look here!" yells the prosecutor, jumping to his feet and shaking hisfist at him, "do you want to be taken for a d--n liar? 'Morning ofthe twenty-second of July, about 3. 30 A. M. , while on post I' You nevertalked like that in your life. "

By this time the "cop" is "mad clear through. "

"I'm no liar!" he retorts. "I saw the ------ pull his gun and shoot!"

"Well, why didn't you say so?" laughs the prosecutor, and the officermollified with a cigar, dimly perceives the objectionable feature of histestimony. 

About this time one of the sleuths comes in to report that certainmuch-desired witnesses have been "located" and are in custodydownstairs. The assistant makes immediate preparation for taking theirstatements. Then one of the experts comes in for a chat about a newphase of the case occasioned by the discovery that the defendantactually did have spasms when an infant. The assistant wisely makes anappointment for the evening. A telegram arrives saying that a witnessfor the defence has just started for New York from Philadelphia andshould be duly watched on arrival. The district attorney sends for theassistant to inquire if he has looked up the law on similar cases inTexas and Alabama--which he probably has not done; and a friend on thetelephone informs him that Tomkins, who has been drawn on the jury, isa boon companion of the prisoner and was accustomed to play bridge withhim every Sunday night before the murder. 

Coincidently, some private detectives enter with a long report on thevarious members of the panel, including the aforesaid Tomkins, whom theypronounce to be "all right, " and as never having, to their knowledge, laid eyes on the accused. Finally, in despair, the prosecutor lockshimself in his library with a copy of the Bible, "Bartlett's FamiliarQuotations, " and a volume of celebrated speeches, to prepare his summingup, for no careful trial lawyer opens a case without first havingprepared, to some extent, at least, his closing address to the jury. Hehas thought about this for weeks and perhaps for months. In his dreamshe has formulated syllogisms and delivered them to imaginary yetobstinate talesman. He has glanced through many volumes for similes andquotations of pertinency. He has tried various arguments on his friendsuntil he knows just how, if he succeeds in proving certain facts andthe defence expected is interposed, he is going to convince the twelvejurors that the defendant is guilty and, perhaps, win an everlastingreputation as an orator himself. 

This superficial sketch of how an important criminal case is gotready for trial would be incomplete without some further reference tosomething which has been briefly hinted at before--preparation upon itspurely legal aspect. This may well demand almost as much labor asthat required in amassing the evidence. Yet a careful and painstakinginvestigation of the law governing every aspect of the case isindispensable to success. The prosecutor with a perfectly clear case maysee the defendant walk out of court a free man, simply because he hasneglected to acquaint himself with the various points of law which mayarise in the course of the trial, and the lawyer for an accused mayfind his client convicted upon a charge to which he has a perfectly goodlegal defence, for the same reason. 

Looking at it from the point of view of the prisoner's counsel, it isobvious that it is quite as efficacious to free your client on a pointof law, without having the case go to the jury at all, as to secure anacquittal at their hands. 

At the conclusion of the evidence introduced in behalf of the Statethere is always a motion made to dismiss the case on the ground ofalleged insufficiency in the proof. This has usually been made thesubject of the most exhaustive study by the lawyers for the defence, and requires equal preparation on the part of the prosecutor. The writerrecalls trying a bankrupt, charged with fraud, where the lawyer forthe defendant had written a brief of some three hundred pages upon thepoints of law which he proposed to argue to the court upon his motion toacquit. But, unfortunately, his client pleaded guilty and the volume wasnever brought into play. 

But a mastery of the law, a thorough knowledge and control of theevidence, a careful preparation for the opening and closing addresses, and an intimate acquaintance with the panel from which the jury is to bedrawn are by no means the only elements in the preparation for agreat legal battle. One thing still remains, quite as important as therest--the selection of the best time and the best court for the trial. "A good beginning" in a criminal case means a beginning before the rightjudge, the proper jury, and at a time when that vague but importantinfluence known as public opinion augurs success. A clever criminallawyer, be he prosecutor or lawyer for the defendant, knows that all thepreparation in the world is of no account provided his case is to comebefore a stupid or biased judge, or a prejudiced or obstinate jury. Therefore, each side, in a legal battle of importance, studies, as wellas it can, the character, connections, and cast of mind of the differentjudges who may be called upon to hear the case, and, like a jockeyat the flag, tries to hurry or delay, as the case may be, until thejudicial auspices appear most favorable. A lawyer who has a weak defenceseeks to bring the case before a weak judge, or, if public clamor isloud against his client, makes use of every technical artifice to securedelay, by claiming that there are flaws in the indictment, or by movingfor commissions to take testimony in distant points of the country. The opportunities for legal procrastination are so numerous that in acomplicated case the defence may often delay matters for over a year. This may be an important factor in the final result. 

Yet even this is not enough, for, ultimately, it is the judge's chargeto the jury which is going to guide their deliberations and, inlarge measure, determine their verdict. The lawyers for the defence, therefore, prepare long statements of what they either believe orpretend to believe to be the law. These statements embrace all the legalpropositions, good or bad, favorable to their side of the case. Ifthey can induce the judge to follow these so much the better for theirclient, for even if they are not law it makes no difference, since theState has no appeal from an acquittal in a criminal case, no matter howmuch the judge has erred. In the same way, but not in quite the samefashion, the district attorney prepares "requests to charge, " but hisdesire for favorable instructions should be, and generally is, curbed bythe consideration that if the judge makes any mistake in the law and thedefendant is convicted he can appeal and upset the case. Of course, someprosecutors are so anxious to convict that they will wheedle or deceivea judge into giving charges which are not only most inimical to theprisoner, but so utterly unsound that a reversal is sure to follow; butwhen one of these professional bloodhounds is baying upon the trail allhe thinks of is a conviction--that is all he wants, all the publicwill remember; to him will be the glory; and when the case is finallyreversed he will probably be out of office. These "requests" coverpages, and touch upon every phase of law applicable or inapplicable tothe case. Frequently they number as many as fifty, sometimes many more. It is "up to" the judge to decide "off the bat" which are right andwhich are wrong. If he guesses that the right one is wrong or the wrongone right the defendant gets a new trial. 

CHAPTER III. Sensationalism and Jury Trials

For the past twenty-five years we have heard the cry upon all sidesthat the jury system is a failure, and to this general indictment isfrequently added the specification that the trials in our highercourts of criminal justice are the scenes of grotesque buffoonery andmerriment, where cynical juries recklessly disregard their oaths andwhere morbid crowds flock to satisfy the cravings of their imaginationsfor details of blood and sexuality. 

It is unnecessary to question the honesty of those who thus picture theadministration of criminal justice in America. Indeed, thus it probablyappears to them. But before such an arraignment of present conditionsin a highly civilized and progressive nation is accepted as final, it iswell to examine into its inherent probabilities and test it by what weknow of the actual facts. 

In the first place, it should be remembered that the jury was institutedand designed to protect the English freeman from tyranny upon the partof the crown. Judges were, and sometimes still are, the creatures of aruler or unduly subject to his influence. And that ruler neither was, nor is, always the head of the nation; but just as in the days of theNormans he might have been a powerful earl whose influence could make orunmake a judge, so to-day he may be none the less a ruler if he existsin the person of a political boss who has created the judge before whomhis political enemy is to be tried. The writer has seen more than onejudge openly striving to influence a jury to convict or to acquit aprisoner at the dictation of such a boss, who, not content to issue hiscommands from behind the arras, came to the courtroom and ascendedthe bench to see that they were obeyed. Usually the jury indignantlyresented such interference and administered a well-merited rebuke byacting directly contrary to the clearly indicated wishes of the judge. 

But while admitting its theoretic value as a bulwark of liberty, the modern assailant of the jury brushes the consideration aside byasserting that the system has "broken down" and "degenerated into afarce. "

Let us now see how much of a farce it is. If four times out of fivea judge rendered decisions that met with general approval, he wouldprobably be accounted a highly satisfactory judge. Now, out of everyone hundred indicted prisoners brought to the bar for trial, probablyfifteen ought to be acquitted if prosecuted impartially and inaccordance with the strict rules of evidence. In the year 1910 thejuries of New York County convicted in sixty-six per cent of the casesbefore them. If we are to test fairly the efficiency of the system, we must deduct from the thirty-four acquittals remaining the fifteenacquittals which were justifiable. By so doing we shall find that inthe year 1910 the New York County juries did the correct thing in abouteighty-one cases out of every hundred. This is a high percentage ofefficiency. * Is it likely that any judge would have done much better?

 * The following table gives the yearly percentages of convictions and acquittals by verdict in New York County since 1901:

 NUMBER NUMBER YEAR CONVICTIONS ACQUITTALS CONVICTIONS ACQUITTALS BY VERDICT BY VERDICT PER CENT PER CENT

 1901. .. .. .. . 551. .. .. .. .. .. 344. .. .. .. .. . 62. .. .. .. .. .. . 38 1902. .. .. .. . 419. .. .. .. .. .. 349. .. .. .. .. . 55. .. .. .. .. .. . 45 1903. .. .. .. . 485. .. .. .. .. .. 307. .. .. .. .. . 61. .. .. .. .. .. . 39 1904. .. .. .. . 495. .. .. .. .. .. 357. .. .. .. .. . 58. .. .. .. .. .. . 42 1905. .. .. .. . 489. .. .. .. .. .. 299. .. .. .. .. . 62. .. .. .. .. .. . 38 1906. .. .. .. . 464. .. .. .. .. .. 246. .. .. .. .. . 65. .. .. .. .. .. . 35 1907. .. .. .. . 582. .. .. .. .. .. 264. .. .. .. .. . 68. .. .. .. .. .. . 32 1908. .. .. .. . 649. .. .. .. .. .. 301. .. .. .. .. . 62. .. .. .. .. .. . 38 1909. .. .. .. . 463. .. .. .. .. .. 235. .. .. .. .. . 66. .. .. .. .. .. . 34 1910. .. .. .. . 649. .. .. .. .. .. 325. .. .. .. .. . 66. .. .. .. .. .. . 34

After a rather long experience as a prosecutor, in which he conductedmany hundreds of criminal cases, the writer believes that the ordinaryNew York City jury finds a correct general verdict four times out offive. As to talesmen in other localities he has no knowledge or reliableinformation. It seems hardly possible, however, that juries inother parts of the United States could be more heterogeneous or lessintelligent than those before which he formed his conclusions. Ofcourse, jury judgments are sometimes flagrantly wrong. But there aremany verdicts popularly regarded as examples of lawlessness which, ifexamined calmly and solely from the point of view of the evidence, wouldbe found to be the reasonable acts of honest and intelligent juries. 

For example, the acquittal of Thaw upon the ground of insanity isusually spoken of as an illustration of sentimentality on the part ofjurymen, and of their willingness to be swayed by their emotions wherea woman is involved. But few clearer cases of insanity have beenestablished in a court of justice. The district attorney's own expertshad pronounced the defendant a hopeless paranoiac; the prosecutor had, at a previous trial, openly declared the same to be his own opinion; andthe evidence was convincing. At the time it was rendered, the verdictwas accepted as a foregone conclusion. To-day the case is commonlycited as proof of the gullibility of juries and of the impossibility ofconvicting a rich man of a crime. 

There will always be some persons who think that every defendant shouldbe convicted and feel aggrieved if he is turned out by the jury. Yetthey entirely forget, in their displeasure at the acquittal of a manwhom they instinctively "know" to be guilty, that the jury probablyhad exactly the same impression, but were obliged under their oaths toacquit because of an insufficiency of evidence. 

An excellent illustration of such a case is that of Nan Patterson. Sheis commonly supposed to have attended, upon the night of her acquittal, a banquet at which one of her lawyers toasted her as "the guilty girlwho beat the case. " Whether she was guilty or not, there is a generalimpression that she murdered Caesar Young. Yet the writer, who waspresent throughout the trial, felt at the conclusion of the case thatthere was a fairly reasonable doubt of her guilt. Even so, the jurydisagreed, although the case is usually referred to as an acquittal anda monument to the sentimentality of juries. 

The acquittal of Roland B. Molineux is also recalled as a case where aman, previously proved guilty, managed to escape. The writer, whowas then an assistant district attorney, made a careful study of theevidence at the time, and feels confident that the great majority of thelegal profession would agree with him in the opinion that the Court ofAppeals had no choice but to reverse the defendant's first conviction onaccount of the most prejudicial error committed at the trial, and thatthe jury who acquitted him upon the second occasion had equally nochoice when the case was presented with a proper regard to the rules ofevidence and procedure. Indeed, on the second trial the evidence pointedalmost as convincingly toward another person as toward the defendant. 

I have mentioned the Patterson, Thaw, and Molineux trials because theyare cases commonly referred to in support of the general contentionthat the jury system is a failure. But I am inclined to believe thatany single judge, bench of judges, or board of commissioners would havereached the same result as the juries did in these instances. 

It is quite true that juries, for rather obvious reasons, are more aptto acquit in murder cases than in others. In the first place, save wherethe defendant obviously belongs to the vicious criminal class, a juryfinds it somewhat difficult to believe, unless overwhelming motive beshown, that he could have deliberately taken another's life. Thus, withsound reason, they give great weight to the plea of self-defence whichthe accused urges upon them. He is generally the only witness. His storyhas to be disproved by circumstantial evidence, if indeed there be any. Frequently it stands alone as the only account of the homicide. Thusmurder cases are almost always weaker than others, since the chiefwitness has been removed by death; while at the same time the nature ofthe punishment leads the jury unconsciously to require a higher degreeof proof than in cases where the consequences are less abhorrent. Allthis is quite natural and inevitable. Moreover, homicide cases as a ruleare better defended than others, a fact which undoubtedly affects theresult. These considerations apply to all trials for homicide, notoriousor otherwise, the results of which in New York County for ten years areset forth in the following table:

 YEAR CONVICTIONS ACQUITTALS CONVICTIONS ACQUITTALS PER CENT PER CENT 1901. .. .. .. .. 25. .. .. .. .. .. . 17. .. .. .. .. . 60. .. .. .. .. .. . 40 1902. .. .. .. .. 31. .. .. .. .. .. . 11. .. .. .. .. . 74. .. .. .. .. .. . 26 1903. .. .. .. .. 42. .. .. .. .. .. .. 8. .. .. .. .. . 84. .. .. .. .. .. . 16 1904. .. .. .. .. 37. .. .. .. .. .. . 14. .. .. .. .. . 72. .. .. .. .. .. . 28 1905. .. .. .. .. 32. .. .. .. .. .. . 13. .. .. .. .. . 71. .. .. .. .. .. . 29 1906. .. .. .. .. 53. .. .. .. .. .. . 22. .. .. .. .. . 70. .. .. .. .. .. . 30 1907. .. .. .. .. 39. .. .. .. .. .. . 10. .. .. .. .. . 78. .. .. .. .. .. . 22 1908. .. .. .. .. 35. .. .. .. .. .. . 17. .. .. .. .. . 67. .. .. .. .. .. . 33 1909. .. .. .. .. 43. .. .. .. .. .. . 11. .. .. .. .. . 80. .. .. .. .. .. . 20 1910. .. .. .. .. 45. .. .. .. .. .. . 15. .. .. .. .. . 75. .. .. .. .. .. . 25 TOTAL. .. .. .. 382. .. .. .. .. .. 138. .. .. . Av. 74. .. .. .. . Av. 27

A popular impression exists at the present time that a man convicted ofmurder has but to appeal his case on some technical ground in order tosecure a reversal, and thus escape the consequences of his crime. Howwide of the mark such a belief may be, at least so far as one localityis concerned, is shown by the fact that in New York State, from 1887 to1907, there were 169 decisions by the Court of Appeals on appeals fromconvictions of murder in the first degree, out of which there were onlytwenty-nine reversals. Seven of these defendants were again immediatelytried and convicted, and a second time appealed, upon which occasiononly two were successful, while five had their convictions promptlyaffirmed. Thus, so far as the ultimate triumph of justice is concerned, out of 169 cases in that period the appellants finally succeeded intwenty-two only. 

Since 1902 there have been twenty-seven decisions rendered infirst-degree murder cases by the Court of Appeals, with only threereversals. * (* Written in 1909. ) The more important convictionsthroughout the State are affirmed with great regularity. 

As to the conduct of such cases, the writer's own experience is thata murder trial is the most solemn proceeding known to the law. He hasprosecuted at least fifty men for murder, and convicted more than hecares to remember. Such trials are invariably dignified and deliberateso far as the conduct of the legal side of the case is concerned. No judge, however unqualified for the bench; no prosecutor, howeverlight-minded; no lawyer however callous, fails to feel the seriousnature of the transaction or to be affected strongly by the fact thathe is dealing with life, and death. A prosecutor who openly laughedor sneered at a prisoner charged with murder would severely injure hiscause. The jury, naturally, are overwhelmed with the gravity of theoccasion and the responsibility resting upon them. 

In the Patterson, Thaw, and Molineux cases the evidence, unfortunately, dealt with unpleasant subjects and at times was revolting, but there wasa quiet propriety in the way in which the witnesses were examinedthat rendered it as inoffensive as it could possibly be. Outside thecourt-room the vulgar crowd may have spat and sworn; and inside no doubtthere were degenerate men and women who eagerly strained their ears tocatch every item of depravity. But the throngs that filled the courtroomwere quiet and well ordered, and the justified interested outnumberedthe morbid. 

The writer deprecates the impulse which leads judges, from a feelingthat justice should be publicly administered, to throw wide the doorsof every courtroom, irrespective of the subject-matter of the trial. Weneed have no fear of Star Chamber proceedings in America, and no harmwould be done by excluding from the courtroom all persons who have nobusiness there. 

It is, of course, not unnatural that in the course of a trial occupyingweeks or months the tension should occasionally be relieved by a gleamof humor. After one has been busy trying a case for a couple of weeksone goes to court and sets to work in much the same frame of mind inwhich one would attack any other business. But the fact that a smallboy sometimes sees something funny at a funeral, or a bevy of gigglingshop-girls may be sitting in the gallery at a fashionable wedding, argues little in respect to the solemnity or beauty of the serviceitself. 

What are the celebrated cases--the trials that attract the attentionand interest of the public? In the first place, they are the very caseswhich contain those elements most likely to arouse the sympathy andprejudices of a jury--where a girl has taken the life of her supposedseducer, or a husband has avenged his wife's alleged dishonor. Suchcases arouse the public imagination for the very reason that everyman realizes that there are two sides to every genuine tragedy ofthis character--the legal and the natural. Thus, aside from any otherconsideration, they are the obvious instances where justice is mostlikely to go astray. 

In the next place, the defence is usually in the hands of counsel ofadroitness and ability; for even if the prisoner has no money to pay hislawyer, the latter is willing to take the case for the advertising hewill get out of it. 

Third, a trial which lasts for a long time naturally results in creatingin the jury's mind an exaggerated idea of the prisoner's rights, namely, the presumption of innocence and the benefit of the reasonable doubt. For every time that the jury will hear these phrases once in a pettylarceny or forgery case, they will hear them in a lengthy murder triala hundred times. They see the defendant day after day, and the relationbecomes more personal. Their responsibility seems greater toward himthan toward the defendant in petty cases. 

Last, as previously suggested, murder cases are apt to be inherentlyweaker than others, and more often depend upon circumstantial evidence. 

The results of such cases are therefore an inadequate test of theefficiency of a jury system. They are, in fact, the precise cases where, if at all, the jury might be expected to go wrong. 

But juries would go astray far less frequently even in such trials wereit not for that most vicious factor in the administration of criminaljustice--the "yellow" journal. For the impression that public trialsare the scenes of buffoonery and brutality is due to the manner in whichthese trials are exploited by the sensational papers. 

The instant that a sensational homicide occurs, the aim of the editorsof these papers is--not to see that a swift and sure retribution isvisited upon the guilty, or that a prompt and unqualified vindication isaccorded to the innocent, but, on the contrary, so to handle the matterthat as many highly colored "stories" as possible can be run about it. 

Thus, where the case is perfectly clear against the prisoner, the"yellow" press seeks to bolster up the defence and really to justifythe killing by a thinly disguised appeal to the readers' passions. Notinfrequently, while the editorial page is mourning the prevalence ofhomicide, the front columns are bristling with sensational accounts ofthe home-coming of the injured husband, the heartbreaking confession ofthe weak and erring wife, and the sneering nonchalance of the seducer, until a public sentiment is created which, if it outwardly deprecatesthe invocation of the unwritten law, secretly avows that it would havedone the same thing in the prisoner's place. 

This antecedent public sentiment is fostered from day to day until ithas unconsciously permeated every corner of the community. The jurymanwill swear that he is unaffected by what he has read, but unknown tohimself there are already tiny furrows in his brain along which theappeal of the defence will run. 

In view of this deliberate perversion of truth and morals, theeuphemisms of a hard-put defendant's counsel when he pictures a chorusgirl as an angel and a coarse bounder as a St. George seem innocentindeed. It is not within the rail of the courtroom but within the pagesof these sensational journals that justice is made a farce. The phrase"contempt of court" has ceased practically to have any significancewhatever. The front pages teem with caricatures of the judge upon thebench, of the individual jurors with exaggerated heads upon impossiblebodies, of the lawyers ranting and bellowing, juxtaposed with sketchesof the defendant praying beside his prison cot or firing the fatal shotin obedience to a message borne by an angel from on high. 

How long would the "unwritten law" play any part in the administrationof criminal justice if every paper in the land united in demanding, notonly in its editorials, but upon its front pages, that private vengeancemust cease? Let the "yellow" newspapers confine themselves simply toan accurate report of the evidence at the trial, with a reiteratedinsistence that the law must take its course. Let them stop panderingto those morbid tastes which they have themselves created. Let the"Sympathy Sisters, " the photographer, and the special artist be excludedfrom the court-room. When these things are done, we shall have the samehigh standard of efficiency upon the part of the jury in great murdertrials that we have in other cases. 

CHAPTER IV. Why Do Men Kill?

When a shrewd but genial editor called me up on the telephone and askedme how I should like to write an article on the above lurid title, Ilaughed in his--I mean the telephone's face. 

"My dear fellow!" I said (I should only have the nerve to call him thatover a wire). "It would ruin me! How could I keep my self-respect andwrite that kind of sensational stuff--Why do men kill? Why do men eat?Why do men drink? Why do men love? Why do men--"

"Look here!" he interrupted. "I want to know why one man kills anotherman. If we knew why, maybe we could stop it, couldn't we? We could tryto, anyhow. And you know something about it. You've prosecuted nearlya hundred men for murder. Get the facts--that's what I want. Cutthe adjectives and morality, and get down to the reasons. Anythingparticularly undignified about that?" And he rang off. 

I arose and walked over to the bookcase on which reposed severalshelves of "minutes" of criminal trials. They were dusty and depressing. Practically every one of them was a memento of some poor devil gone toprison or to the chair. Where were they now--and why did they kill--yes, why DID they?

I glanced along the red-labeled backs. 

"People versus Candido. " Now why did HE kill? I remembered the Italianperfectly. He killed his friend because the latter had been tooattentive to his wife. "People versus Higgins. " Why did he? That wasa drunken row on a New Year's Eve within the sound of Trinity chimes. "People versus Sterling Greene. " Yes, he was a colored man--I recalledthe evidence--drink and a "yellow gal. " "People versus Mock Duck"-aChinese feud between the On Leong Tong and the Hip Sing Tong--avendetta, first one Chink shot and then another, turn and turn about, running back through Mott Street, New York, Boston, San Francisco, untilthe origin of the quarrel was lost in the dim Celestial mists acrossthe sea. Out of the first four cases the following motives: Jealousy--1. Drink--1. Drink and jealousy--1. Scattering (how can you term a "Tong"row?)--1. 

I began to get interested. Supposing I dug out all the homicide cases Ihad ever tried, what would the result show as to motive for the killing?Would drink and women account for seventy-five per cent? Mentally I ranmy eye back over nearly ten years. What OTHER motives had the defendantsat the bar had? There was Laudiero--an Italian "Camorrista"--he hadkilled simply for the distinction it gave him among his countrymenand the satisfaction he felt at being known as a "bad" man--a "capomaestra. " There was Joseph Ferrone--pure jealousy again. Hendry--animalhate intensified by drink. Yoscow--a deliberate murder, planned inadvance by several of a gang, to get rid of a young bully who had madehimself generally unpleasant. There was Childs, who had killed, as heclaimed, in self-defence because he was set upon and assaulted by rivalrunners from another seaman's boarding house. Really it began to look asif men killed for a lot of reasons. 

One consideration at once suggested itself. How about the killings wherethe murderer is never caught? The prisoners tried for murder are only amere fraction of those who commit murder. True, and the more deliberatethe murder, the greater, unfortunately, the chance of the villaingetting away. Still, in cases merely of suspected murder, or in caseswhere no evidence is taken, it would be manifestly unfair arbitrarily toassign motives for the deed, if deed it was. No, one must start with theassumption, sufficiently accurate under all the circumstances, thatthe killings in which the killer is caught are fairly representative ofkillings as a whole. 

All crimes naturally tend to divide themselves into two classes--crimesagainst property and crimes against the person, each class having anentirely different assortment of reasons for their commission. 

There can be practically but one motive for theft, burglary, or robbery. It is, of course, conceivable that such crimes might be perpetrated forrevenge--to deprive the victim of some highly prized possession. But inthe main there is only one object--unlawful gain. So, too, blackmail, extortion, and kidnapping are all the products of the desire for"easy money. " But, unquestionably, this is the reason for murder incomparatively few cases. 

The usual motive for crimes against the person--assault, manslaughter, mayhem, murder, etc. --is the desire to punish, or be avenged uponanother by inflicting personal pain upon him or by depriving him of hismost valuable asset--life. And this desire for retaliation or revengegenerally grows out of a recent humiliation received at the hands ofthe other person, a real or fancied wrong to oneself, a member ofone's family, or one's property. But this was too easy an answer to myfriend's question. He wanted and deserved more than that, and I set outto give it to him. 

My first inquiry was in the direction of original sources. I sought outthe man in the district attorney's office who had had the widest generalexperience and put the question to him. This was Mr. Charles C. Nott, Jr. , (now judge of the General Sessions) who had been trying murdercases for nearly ten years. It so happened that he had kept a completerecord of all of them and this he courteously placed at my disposal. Thelist contains sixty-two cases, and the defendants were of divers races. These homicides included seventeen committed in cold blood (abouttwenty-five per cent, an extraordinary percentage) from varying motives, as follows: One defendant (white) murdered his colored mistress simplyto get rid of her; another killed out of revenge because the deceasedhad "licked" him several times before; another, having quarrelledwith his friend over a glass of soda water, later on returned andprecipitated a quarrel by striking him, in the course of which he killedhim; another because the deceased had induced his wife to desert him;another lay in wait for his victim and killed him without the motiveever being ascertained; one man killed his brother to get a sum ofmoney, and another because his brother would not give him money; anotherbecause he believed the deceased had betrayed the Armenian cause to theTurks; another because he wished to get the deceased out of the way inorder to marry his wife; and another because deceased had knocked himdown the day before. One man had killed a girl who had ridiculed him;and one a girl who had refused to marry him; another had killed hisdaughter because she could no longer live in the house with him; one, aninformer, had been the victim of a Black Hand vendetta; and the lasthad poisoned his wife for the insurance money in order to go off withanother woman. There were two cases of infanticide, one in which a womanthrew her baby into the lake in Central Park, and another in which shegave her baby poison. Besides these murders, five homicides had beencommitted in the course of perpetrating other crimes, including burglaryand robbery. 

Passing over three cases of culpable negligence resulting in death, wecome to thirty-seven homicides during quarrels, some of which might havebeen technically classified as murders, but which being committed"in the heat of passion, " in practically every instance resulted in averdict of manslaughter. The quarrels often arose over the most triflingmatters. One was a dispute over a broom, another over a horse blanket, another over food, another over a twenty-five cent bet in a pool game, another over a loan of fifty cents, another over ten cents in a crapgame, and still another over one dollar and thirty cents in a crap game. Five men were killed in drunken rows which had no immediate cause exceptthe desire to "start something. " One man killed another because he hadnot prevented the theft of some lumber, one (a policeman) because thedeceased would not "move on" when ordered, one because a bartenderrefused to serve him with any more drinks, and one (a bartender) becausethe deceased insisted that he should serve more drinks. One man waskilled in a quarrel over politics, one in a fuss over some beer, one ina card game, one trying to rob a fruit-stand, one in a dispute with aship's officer, one in a dance hall row. One man killed another whomhe found with his wife, and one wife killed her husband for a similarcause; another wife killed her husband simply because she "could notstand him, " and one because he was fighting with their son. One manwas killed by another who was trying to collect from him a debt of sixhundred dollars. One quarrel resulting in homicide arose because thedefendant had pointed out deceased to the police, another becausethe participants called each other names, and another arose out of analleged seduction. Three homicides grew out of street rows originatingin various ways. One man killed another who was fighting with a friendof the first, a janitor was killed in a "continuous row" which had beengoing on for a long time, and one homicide was committed for "nothing inparticular. "

This astonishing olla podrida of reasons for depriving men of theirlives leaves one stunned and confused. Is it possible to deduce anyorder out of such homicidal chaos? Still, an attempt to classify suchdiverse causes enables one to reach certain general conclusions. Out ofthe sixty-two homicides there were seventeen cold-blooded murders, with deliberation and premeditation (in such cases the reasons forthe killing are by comparison unimportant); three homicides due tonegligence, five committed while perpetrating a felony; thirty-sevenmanslaughters, due in sixteen cases to quarrels (simply), thirteento drink, four to disputes over money, three to women, one to raceantagonism. 

Reclassifying the seventeen murders according to causes, we have:Six due to women, four to quarrels, five to other causes, and twoinfanticides. Added to the manslaughters previously classified, we havea total of sixty-two killings, due in twenty cases to quarrels, thirteento drink, nine to women, four to disputes over money, one torace antagonism, five to general causes, three to negligence, twoinfanticides, five during the commission of other crimes. 

The significant features of this analysis are that about seventy-fiveper cent of the killings were due to quarrels over small sums orother matters, drink and women; over fifty per cent to drink and pettyquarrels; and about thirty per cent to quarrels simply. The triflingcharacter of the causes of the quarrels themselves is shown by the factthat in three of these particular cases, tried in a single week, thetotal amount involved in the disputes was only eighty-five cents. Thatis about twenty-eight and one-half cents a life. Many a murder in abarroom grows out of an argument over whether a glass of beer has, orhas not, been paid for, or whose turn it is to treat; and more than oneman has been killed in New York City because he was too clumsy to avoidstepping on somebody's feet or bumping into another man on the sidewalk. 

The writer sincerely regrets that his own lack of initiative preventedhis keeping a diary during his seven years's service as a prosecutor. Itis now impossible for him to refresh his memory as to the causes of allthe various homicides which he prosecuted, but where he can do so theevidence points to a conclusion similar to that deduced from Mr. Nott'srecord. The proximate causes were trifling--the underlying cause wasthe lack of civilization of the defendant--his brutality and absence ofself-control. 

With a view to ascertaining conditions in general throughout the UnitedStates, I asked a clipping agency to send me the first one hundrednotices of actual homicides which should come under its scissors. Theimmediate result of this experiment was that I received forty-fivenotices supposedly relating to murders and homicides, which on closerexamination proved to be anything but what I wanted for the purpose inview. With only one or two exceptions they related not to deaths fromviolence reported as having occurred on any particular day, but tonotices of convictions, acquittals, indictments, pleas of guilty andnot guilty, rewards offered, sentences, executions, "suspicions" of thepolice, "mysteries revived, " and even editorials on capital punishment. 

A letter of protest brought in due course, but much more slowly, onehundred and seven clippings, which yielded the following reasons whymen killed: There were four suicides, three lynchings, one infanticide, three murders while resisting arrest, three criminals killed whileresisting arrest, two men killed in riots, eight murders in thecourse of committing burglaries and robberies, seven persons killed invendettas, three grace murders, and twenty-four killed in quarrels overpetty causes; there were twelve murders from jealousy, followed infour instances by suicide on the part of the murderer; six killingsjustifiable on the "higher law" theory only, but involving greatprovocation, and thirty deliberate slaughters. The last clippingrecounted how an irate husband pounded a "masher" so hard that he died. Leaving out the suicides and those killed while resisting arrest, thereremain one hundred persons murdered, not only by persons insane orwild from the effects of liquor, but by robbers and burglars, brutes, bullies, and thugs, husbands, wives, and lovers, and by a vast number ofpeople who not only destroyed their enemies in the fury of anger, but inmany instances openly went out gunning for them, lay in wait for them inthe dark, or hacked off their heads with hatchets while they slept. 

It is, indeed, a sanguinary record, from which little consolation is tobe derived, and the only comfort is the probability that the accountsof the first one hundred murders anywhere in Europe would undoubtedly bejust as blood-curdling. I had simply asked the clipping bureau tosend me one hundred horrors and I had got them. They did not indicateanything at all so far as the ratio of homicide to population wasconcerned or as to the bloodthirstiness of Americans in general. Theymerely showed what despicable things murders were. 

As to the reasons for the killings, they were as diverse as thosewhich Mr. Nott had prosecuted, save that there were more of an ultrablood-thirsty character, due probably to the fact that the young ladywho did the clipping wanted (after one rebuff) to make sure that I wassatisfied with the goods she sent me. And this suggests a reason forthe large percentage of cold-blooded killings prosecuted by myfriend--namely, that Mr. Nott being the most astute prosecutoravailable, the district attorney, whenever the latter had a particularlyatrocious case, sent it to him in order that the defendant might surelyget his full deserts. 

The reasons for these homicides were of every sort; police officers andcitizens were shot and killed by criminals trying to make "get-aways, "and by negroes and others "running amuck"; despondent young men shottheir unresponsive sweethearts and then either blew out their own brainsof pretended to try to do so; two stable-men had a duel with revolvers, and each killed the other; several men were shot for being too attentiveto young women residing in the same hotels; an Italian, whose wife hadleft him and gone to her mother, went to the house and killed her, her sister, her sister's husband, his mother-in-law, two children, andfinally himself; the "Gopher Gang" started a riot at a "benefit" dancegiven to a widow and killed a man, after which they fled to the woodsand fired from cover upon the police until eighteen were overpowered andarrested; a young girl and her fiance, sitting in the parlor, planningtheir honeymoon, were unexpectedly interrupted by a rejected suitor ofthe girl's, who shot and killed both of them; an Italian who peeked intoa bedroom, just for fun, afterward rushed in and cut off two persons'heads with an ax--one of them was his wife; a gang of white ruffiansshot and then burned a negro family of three peacefully working in thefields; a man who went to the front door to see who had tapped onhis window was shot through the heart; a striker was killed by atwenty-five-pound piece of flagging thrown from a roof; there was a gunfight of colored men at Madison, Wisconsin, at which three were shot; agang of negro ruffians killed and mutilated a white woman (with a babyin her arms) and her husband; masked robbers called a man to his barn atWinston-Salem, North Carolina, and cut his throat; an Italian wasfound with his head split in two by a butcher's cleaver; a negress inLafayette, Louisiana, killed a family of six with a hatchet; a negrofarmer and his two daughters were lynched and their bodies burned byfour white men (who will probably also be lynched if caught); a girlof eleven shot her girl friend of about the same age and killed her;several persons were found stabbed to death; a plumber killed hisbrother (also a plumber) for saying that he stole two dollars; amurderer was shot by a posse of militia in a cornfield; a card game atBayonne, New Jersey, resulted in a revolver fight on the street in whichone of the players was killed; bank robbers killed a cashier at twelveo'clock noon; a jealous lover in Butte, Montana, shot and killed hissweetheart, her father, and mother; a deputy sheriff was murdered;burglars killed several persons in the course of their business;Kokolosski, a Pole, kicked his child to death; and a couple of dozenpeople were incidentally shot, stabbed, or otherwise disposed of in thecourse of quarrels over the most trivial matters. In almost no case wasthere what an intelligent, civilized man would regard as an adequatereason for the homicide. They killed because they felt like killing, andyielded to the impulse, whatever its immediate origin. 

This conclusion is abundantly supported by the figures of the 'ChicagoTribune' for the seven years ending in 1900, when carefully analyzed. During this period 62, 812 homicides were recorded. Of these there were17, 120 of which the causes were unknown and 3, 204 committed while makinga justifiable arrest, in self-defence, or by the insane, so that therewere in fact only 42, 488 felonious homicides the causes of which canbe definitely alleged. The ratio of the "quarrels" to this net total isabout seventy-five per cent. There were, in addition, 2, 848 homicidesdue to liquor--that is, without cause. Thus eighty per cent of all themurders and manslaughters in the United States for a period of sevenyears were for no reason at all or from mere anger or habit, arising outof causes often of the most trifling character. 

Nor are the conclusions changed by the figures of the years between 1904and 1909. 

During this period 61, 786 homicides were recorded. Of these there were9, 302 of which the causes were not known, and 2, 480 committed whilemaking a justifiable arrest, in self-defence, or by the insane, leaving50, 004 cases of felonious homicides of known causes. Of these homicides, 33, 476 were due to quarrels and 4, 799 to liquor, a total of 38, 275 outof the 50, 004 cases of known causes being traceable in this, anotherseven years, to motives the most casual. 

It would be stupid to allege that the reason men killed was because theyhad been stepped on or had been deprived of a glass of beer. The causelies deeper than that. It rests in the willingness or desire of themurderer to kill at all. Among barbaric or savage peoples this isnatural; but among civilized nations it is hardly to be anticipated. Ifthe negro who shoots his fellow because he believes himself to have beencheated out of ten cents were really civilized, he would either nothave the impulse to kill or, having the impulse to kill, would havesufficient power of self-control to refrain from doing so. This powerof self-control may be natural or acquired, and it may or may not bepossessed by the man who feels a desire to commit a homicide. The factto be observed--the interesting and, broadly speaking, the astonishingfact--is that among a people like ourselves anybody should have a desireto kill. It is even more astonishing than that the impulse should beyielded to so often if it comes. 

This, then, is the real reason why men kill--because it is inherentin their state of mind, it is part of their mental and physicalmake-up--they are ready to kill, they want to kill, they are the kindof men who do kill. This is the result of their heredity, environment, educational and religious training, or the absence of it. How manyreaders of this paper have ever experienced an actual desire to killanother human being? Probably not one hundredth of one per cent. Theybelong to the class of people who either never have such an impulse, orat any rate have been taught to keep such impulses under control. Henceit is futile to try to explain that some men kill for a trifling sum ofmoney, some because they feel insulted, others because of political orlabor disputes, or because they do not like their food. Any one of thesemay be the match that sets off the gunpowder, but the real cause of thekilling is the fact that the gunpowder is there, lying around loose, and ready to be touched off. What engenders this gunpowder state ofmind would make a valuable sociological study, but it may well be that aseemingly inconsequential fact may so embitter a boy or man toward lifeor the human race in general that in time he "sees red" and goes throughthe world looking for trouble. Any cause that makes for crime anddepravity makes for murder as well. The little boy who is driven out ofthe tenement onto the street, and in turn off the street by a policeman, until, finding no wholesome place to play, he joins a "gang" and beginsan incipient career of crime, may end in the "death house. "

The table on the opposite page gives the figures collected by the'Chicago Tribune' for the years from 1881 to 1910. 

In view of the foregoing it may seem paradoxical for the writer to statethat he questions the alleged unusual tendency to commit murder on thepart of citizens of the United States. Yet of one fact he is absolutelyconvinced--namely, that homicide has substantially decreased in the lastfifteen years. Even according to the figures collected by the 'ChicagoTribune', there were but 8, 975 homicides in 1910 as compared with 10, 500in 1895, and 10, 652 in 1896. Meantime the population of our country hasbeen leaping onward. 

 NUMBER OF MURDERS AND HOMICIDES IN THE UNITED STATES EACH YEAR SINCE 1891, COMPARED WITH THE POPULATION

 NUMBER OF NUMBER OF MURDERS AND ESTIMATED MURDERS AND YEAR HOMICIDES IN POPULATION HOMICIDES THE UNITED OF THE FOR EACH STATES UNITED STATES MILLION OF PEOPLE

 1881. .. .. . 1, 266. .. .. .. .. . 51, 316, 000. .. .. .. .. . 24. 7

 1882. .. .. . 1. 467. .. .. .. .. . ----------. .. .. .. .. . 27. 9

 1883. .. .. . 1, 697. .. .. .. .. . ----------. .. .. .. .. . 31. 6

 1884. .. .. . 1, 465. .. .. .. .. . ----------. .. .. .. .. . 26. 7

 1885. .. .. . 1, 808. .. .. .. .. . 56, 148, 000. .. .. .. .. . 32. 2

 1886. .. .. . 1, 499. .. .. .. .. . ----------. .. .. .. .. . 26. 1

 1887. .. .. . 2, 335. .. .. .. .. . ----------. .. .. .. .. . 39. 8

 1888. .. .. . 2, 184. .. .. .. .. . ---------. .. .. .. .. .. 36. 4

 1889. .. .. . 3, 567. .. .. .. .. . ---------. .. .. .. .. .. 58. 0

 1890. .. .. . 4, 290. .. .. .. .. 62, 622, 250. .. .. .. .. .. 68. 5

 1891. .. .. . 5, 906. .. .. .. .. . ---------. .. .. .. .. .. 92. 4

 1892. .. .. . 6, 791. .. .. .. .. . ---------. .. .. .. .. . 104. 2

 1893. .. .. . 6, 615. .. .. .. .. . ---------. .. .. .. .. . 99. 5

 1894. .. .. . 9, 800. .. .. .. .. . ---------. .. .. .. .. 144. 7

 1895. .. .. 10, 500. .. .. .. .. 69, 043, 000. .. .. .. .. 152. 2

 1896. .. .. 10, 652. .. .. .. .. . ---------. .. .. .. .. 151. 3

 1897. .. .. . 9, 520. .. .. .. .. . ---------. .. .. .. .. 132. 8

 1898. .. .. . 7, 840. .. .. .. .. . ---------. .. .. .. .. 107. 2

 1899. .. .. . 6, 225. .. .. .. .. . ---------. .. .. .. .. . 83. 6

 1900. .. .. . 8, 275. .. .. .. .. 75, 994, 575. .. .. .. .. 108. 7

 1901. .. .. . 7, 852. .. .. .. .. 77, 754, 000. .. .. .. .. 100. 9

 1902. .. .. . 8, 834. .. .. .. .. 79, 117, 000. .. .. .. .. 111. 7

 1903. .. .. . 8, 976. .. .. .. .. . ---------. .. .. .. .. 112. 0

 1904. .. .. . 8, 482. .. .. .. .. . ---------. .. .. .. .. .. .. .. 

 1905. .. .. . 9, 212. .. .. .. .. . ---------. .. .. .. .. .. .. .. 

 1906. .. .. . 9, 350. .. .. .. .. ---------. .. .. .. .. .. .. .. . 

 1907. .. .. . 8, 712. .. .. .. .. . ---------. .. .. .. .. .. .. .. 

 1908. .. .. . 8, 952. .. .. .. .. . ---------. .. .. .. .. .. .. .. 

 1909. .. .. . 8, 103. .. .. .. .. . ---------. .. .. .. .. .. .. .. 

 1910. .. .. . 8, 975. .. .. .. .. 91, 972, 266. .. .. .. .. .. 97. 5

 Total. .. .. . 191, 150

We are blood-thirsty enough, God knows, without making things out anyworse than they are. Our murder rate per 100, 000 unquestionably exceedsthat of most of the countries of western Europe, but, as the saying is, "there's a reason. " If our homicide statistics related only to the whitepopulation of even the second generation born in this country we shouldfind, I am convinced, that we are no more homicidal than France andBelgium, and less so than Italy. It is to be expected that with ourChinese, "greaser, " and half-breed population in the West, our BlackBelt in the South, and our Sicilian and South Italian immigration in theNorth and East, our murder rate should exceed those of the continentalnations, which are nothing if not well policed. 

But of one thing we can be abundantly certain without any figures atall, and that is that our present method of administering justice(less the actions of juries than of judges)--the system taken as awhole--offers no deterrent to the embryonic or professional criminal. The administration of justice to-day is not the swift judgment of honestmen upon a criminal act, but a clever game between judge and lawyer, inwhich the action of the jury is discounted entirely and the moves aremade with a view to checkmating justice, not in the trial courtroom, butbefore the appellate tribunal two or three years later. 

"My young feller, " said a grizzled veteran of the criminal bar to melong years ago, after our jury had gone out, "there's lots of things inthis game you ain't got on to yet. Do you think I care what this jurydoes? Not one mite. I got a nice little error into the case the veryfirst day--and I've set back ever since. S'pose we are convicted? I'llget Jim here [the prisoner] out on a certificate and it'll be two yearsbefore the Court of Appeals will get around to the case. MeantimeJim'll be out makin' money to pay me my fee--won't you, Jim? Then yourwitnesses, will be gone, and nobody'll remember what on earth it's allabout. You'll be down in Wall Street practicing real law yourself, andthe indictment will kick around the office for a year or so, all coveredwith dust, and then some day I'll get a friend of mine to come inquietly and move to dismiss. And it'll be dismissed. Don't you worry!Why, a thousand other murders will have been committed in this county bythe time that happens. Bless your soul! You can't go on tryin' the sameman forever! Give the other fellers a chance. You shake your head? Well, it's a fact. I've been doin' it for forty years. You'll see. " And Idid. That may not be why men kill, but perhaps indirectly it may havesomething to do with it. 

CHAPTER V. Detectives and Others

A Detective, according to the dictionaries, is one "whose occupation itis to discover matters as to which information is desired, particularlywrong-doers, and to obtain evidence to be used against them. " A privatedetective, by the same authority, is one "engaged unofficially inobtaining secret information for or guarding the private interests ofthose who employ him. " The definition emphasizes the official characterof detectives in general as contrasted with those whose services may beenlisted for hire by the individual citizen, but the distinction is oflittle importance, since it is based arbitrarily upon the character ofthe employer (whether the State or a private client) instead of upon thenature of the employment itself, which is the only thing which is likelyto interest us about detectives at all. 

The sanctified tradition that a detective was an agile person with avariety of side-whiskers no longer obtains even in light literature, andthe most imaginative of us is frankly aware of the fact that a detectiveis just a common man earning (or pretending to earn) a common living bycommon and obvious means. Yet in spite of ourselves we are accustomedto attribute superhuman acuteness and a lightning-like rapidity ofintellect to this vague and romantic class of fellow-citizens. Theordinary work of a detective, however, requires neither of thesequalities. Honesty and obedience are his chief requirements, and if hehave intelligence as well, so much the better, provided it be of thevariety known as "horse" sense. A genuine candidate for the job ofSherlock Holmes would find little competition. In the first place, theusual work of a detective does not demand any extraordinary powers ofdeduction at all. 

Leaving out of consideration those who are merely private policemen(often in uniform), and principally engaged in patrolling residentialstreets, preserving order at fairs, race-tracks, and political meetings, or in breaking strikes and preventing riots, the largest part of thework for which detectives are employed is not in the detection ofcrime and criminals, but in simply watching people, following them, andreporting as accurately as possible their movements. These functions areknown in the vernacular as spotting, locating, and trailing. Itrequires patience, some powers of observation, and occasionally a littleingenuity. The real detective under such circumstances is the man towhom they hand in their reports. Yet much of the most dramatic andvaluable work that is done involves no acuteness at all, but simply awillingness to act as a spy and to brave the dangers of being found out. 

There is nothing more thrilling in the pages of modern history than thestory of the man (James McPartland) who uncovered the conspiracies ofthe Molly McGuires. But the work of this man was that of a spy pure andsimple. 

Another highly specialized class of detectives is that engaged in policeand banking work, who by experience (or even origin) have a wide andintimate acquaintance with criminals of various sorts, and by theirfamiliarity with the latters' whereabouts, associates, work, and methodsare able to recognize and run down the perpetrators of particularcrimes. 

Thus, for example, there are men in the detective bureau of New YorkCity who know by name, and perhaps have a speaking acquaintance with, a large number of the pick-pockets and burglars of the East Side. Theyknow their haunts and their ties of friendship or marriage. When anyparticular job is pulled off they have a pretty shrewd idea of who isresponsible for it and lay their plans accordingly. If necessary, they run in the whole gang and put each of them through a course ofinterrogation, accusation, and browbeating until some one breaks downor makes a slip that involves him in a tangle. These men are specialpolicemen whose knowledge makes them detectives by courtesy. Buttheir work does not involve any particular superiority or quickness ofintellect--the quality which we are wont to associate with the detectionof crime. 

Now, if the ordinary householder finds that his wife's necklace hasmysteriously disappeared, his first impulse is to send for a detectiveof some sort or other. In general, he might just as well send for hismother-in-law. Of course, the police can and will watch the pawnshopsfor the missing baubles, but no crook who is not a fool is going topawn a whole necklace on the Bowery the very next day after it has been"lifted. " Or he can enlist a private detective who will question theservants and perhaps go through their trunks, if they will let him. Either sort will probably line up the inmates of the house for generalscrutiny and try to bully them separately into a confession. This maysave the master a disagreeable experience, but it is the simplest sortof police work and is done vicariously for the taxpayer, just as thepublic garbage man relieves you from the burden of taking out theashes yourself, because he is paid for it, not on account of your ownincapacity or his superiority. 

The real detective is the one who, taking up the solution of a crime orother mystery, brings to bear upon it unusual powers of observationand deduction and an exceptional resourcefulness in acting upon hisconclusions. Frankly, I have known very few such, although for some tenyears I have made use of a large number of so-called detectives in bothpublic and private matters. As I recall the long line of cases wherethese men have rendered service of great value, almost every oneresolves itself into a successful piece of mere spying or trailing. Little ingenuity or powers of reason were required. Of course, thereare a thousand tricks that an experienced man acquires as a matter ofcourse, but which at first sight seem almost like inspiration. I shallnot forget my delight when Jesse Blocher, who had been trailing CharlesFoster Dodge through the South (when the latter was wanted as the chiefwitness against Abe Hummel on the charge of subornation of perjury ofwhich he was finally convicted), told me how he instantly located hisman, without disclosing his own identity, by unostentatiously leaving anote addressed to Dodge in a bright-red envelope upon the office counterof the Hotel St. Charles in New Orleans, where he knew his quarry to bestaying. A few moments later the clerk saw it, picked it up, and, asa matter of course, thrust it promptly into box No. 420, thusinvoluntarily hanging, as it were, a red lantern on Dodge's door. 

There is no more reason to look for superiority of intelligence ormental alertness among detectives of the ordinary class than there is toexpect it from clerks, stationary engineers, plumbers, or firemen. Whilecomparisons are invidious, I should be inclined to say that the ordinarychauffeur was probably a brighter man than the average detective. Thisis not to be taken in derogation of the latter, but as a compliment tothe former. There are a great many detectives of ambiguous training. Iremember in one case discovering that of the more important detectivesemployed by a well-known private Anti-Criminal Society in New York, onehad been a street vender of frankfurters (otherwise yclept "hot dogs"), and another the keeper of a bird store, which last perhaps qualified himfor the pursuit and capture of human game. There is a popular fictionthat lawyers are shrewd and capable, similar to the prevailing onethat detectives are astute and cunning. But, as the head of one ofthe biggest agencies in the country remarked to me the other day, whendiscussing the desirability of retaining local counsel in a distantcity: "You know how hard it is to find a lawyer that isn't a dead one. "I feel confident that he did not mean this in the sense that there wasno good lawyer except a dead lawyer. What my detective friend probablyhad in mind was that it was difficult to find a lawyer who brought tobear on a new problem any originality of thought or action. It is evenharder to find a detective who is not in this sense a dead one. I havethe feeling, being a lawyer myself, that it is harder to find a livedetective than a live lawyer. There are a few of both, however, if youknow where to look for them. But it is easy to fall into the hands ofthe Philistines. 

The fundamental reason why it is so hard to form any just opinion ofdetectives in general is that (except by their fruits) there is littleopportunity to discriminate between the able and the incapable. Now, themore difficult and complicated his task the less likely is the sleuth(honest or otherwise) to succeed. The chances are a good deal more thaneven that he will never solve the mystery for which he is engaged. Thus at the end of three months you will have only his reports and hisbill--which are poor comfort, to say the least. And yet he may havereally worked eighteen hours a day in your service. But a dishonestdetective has only to disappear (and take his ease for the same period)and send you his reports and his bill--and you will have only his wordfor how much work he has done and how much money he has spent. You areabsolutely in his power--unless you hire another detective to watchHIM. Consequently there is no class in the world where the temptation todishonesty is greater than among detectives. This, too, is, I fancy, the reason that the evidence of the police detective is received with somuch suspicion by jurymen--they know that the only way for him to retainhis position is by making a record and getting convictions, and hencethey are always looking for jobs and frame-ups. If a police detectivedoesn't make arrests and send a man to jail every once in a while thereis no conclusive way for his superiors to be sure he isn't loafing. 

There are a very large number of persons who go into the detectivebusiness for the same reason that others enter the ministry--they can'tmake a living at anything else, Provided he has squint eyes and a darkcomplexion, almost anybody feels that he is qualified to unravel thetangled threads of crime. The first resource of the superannuated ordischarged police detective is to start an agency. Of course, he may befirst class in spite of these disqualifications, but the presumption inthe first instance is that he is no longer alert or effective, andin the second that in one way or another he is not honest. Agenciesrecruited from deposed and other ex-policemen usually have all thefaults of the police without any of their virtues. There are many smallagencies which do reliable work, and there are a number of privatedetectives in all the big cities who work single-handed and achieveexcellent results. However, if he expects to accomplish anything byhiring detectives, the layman or lawyer must first make sure of hisagency or his man. 

One other feature of the detective business should not be overlooked. Inaddition to charging for services not actually rendered and expenses notactually incurred, there is in many cases a strong temptation to betraythe interests of the employer. A private detective may, and usuallydoes, become possessed of information even more valuable to the personwho is being watched than to the person to whom he owes his allegiance. Unreliable rascals constantly sell out to the other side and playboth ends against the middle. In this they resemble some of the famousdiplomatic agents of history. And police detectives employed to run downcriminals and protect society have been known instead to act as stallsfor bank burglars and (for a consideration) to assist them to dispose oftheir booty and protect them from arrest and capture. It has repeatedlyhappened that reliable private detectives have discovered that thepolice employed upon the same case have in reality been tipping offthe criminals as to what was being done and coaching them as to theirconduct. Of course the natural jealousy existing between official andunofficial agents of the law leads to many unfounded accusations ofthis character, but, on the other hand, the fact that much of the mosteffective police work is done by employing professional criminals tosecure information and act as stool-pigeons often results in a definiteunderstanding that the latter shall be themselves protected in the quietenjoyment of their labors. The relations of the regular police to crime, however, and the general subject of police graft have little place in achapter of this character. 

The first question that usually arises is whether a detective shall orshall not be employed at all in any particular case. Usually the mostimportant thing is to find out what the real character, past, andassociations of some particular individual may be. Well-establisheddetective agencies with offices throughout the country are naturally ina better position to acquire such information quickly than the privateindividual or lawyer, since they are on the spot and have an organizedstaff containing the right sort of men for the work. If the informationlies in your own city you can probably hire some one to get it or ferretit out yourself quite as well, and much more cheaply, than by employingtheir services. The leads are few and generally simple. The subject'spast employers and business associates, his landlords and landladies, his friends and enemies, and his milkman must be run down andinterrogated. Perhaps his personal movements must be watched. Anyintelligent fellow who is out of a job will do this for you for about $5a day and expenses. The agencies usually charge from $6 to $8 (and up), and prefer two men to one, as a matter of convenience and to make surethat the subject is fully covered. If the suspect is on the move andtrains or steamships must be met, you have practically no choice but toemploy a national agency. It alone has the proper plant and equipmentfor the work. In an emergency, organization counts more than anythingelse. Where time is of the essence, the individual has no opportunity tohire his own men or start an organization of his own. But if the matteris one where there is plenty of leisure to act, you can usually do yourown detective work better and cheaper than any one else. 

Regarding the work of the detective as a spy (which probably constitutesseventy-five per cent of his employment to-day), few persons realizehow widely such services are being utilized. The insignificant oldIrishwoman who stumbles against you in the department store ispossibly watching with her cloudy but eagle eye for shoplifters. Thetired-looking man on the street-car may, in fact, be a professional"spotter. " The stout youth with the pince nez who is examining thewedding presents is perhaps a central-office man. All this you know ormay suspect. But you are not so likely to be aware that the floor-walkerhimself is the agent of a rival concern placed in the department storeto keep track, not only of prices but of whether or not the wholesalersare living up to their agreements in regard to the furnishing ofparticular kinds of goods only to one house; or that the conductor onthe car is a paid detective of the company, whose principal duty is notto collect fares, but to report the doings of the unions; or that thegentleman who is accidentally introduced to you at the wedding breakfastis employed by a board of directors to get a line on your host'sbusiness associates and social companions. 

In the great struggle between capital and labor, each side hasexpended large sums of money in employing confederates to secure secretinformation as to the plans and doings of the enemy. Almost every laborunion has its Judas, and less often a secretary to a capitalist isin the secret employment of a labor union. The railroads must be keptinformed of what is going on, and, if necessary, they import a man fromanother part of the country to join the local organization. Often suchmen, on account of their force and intelligence, are elected to highoffice in the brotherhoods whose secrets they are hired to betray. Practically every big manufacturing plant in the United States hason its payrolls men acting as engineers, foremen, or laborers who aredrawing from $80 to $100 per month as detectives either (1) to keeptheir employers informed as to the workings of the labor unions, (2)to report to the directors the actual conduct of the business by itssalaried officers, superintendents, and overseers, or (3) to ascertainand report to outside competing concerns the methods and processes madeuse of, the materials utilized, and the exact cost of production. 

There are detectives among the chambermaids and bellboys in the hotels, and also among the guests; there are detectives on the passenger listsand in the cardrooms of the Atlantic liners; the colored porter onthe private car, the butler at your friend's house, the chorus girl onBroadway, the clerk in the law office, the employee in the commercialagency, may all be drawing pay in the interest of some one else, who maybe either a transportation company, a stock-broker, a rival financier, a yellow newspaper, an injured or even an erring wife, a grievancecommittee, or a competing concern; and the duties of these personsmay and will range from the theft of mailing lists, books, papers, and private letters, up to genuine detective work requiring some realability. 

Detective work of the sort which involves the betrayal of confidencesand friendships naturally excites our aversion--yet in many cases theend undoubtedly justifies the means employed, and often there is noother way to avert disaster and prevent fiendish crimes. Sometimes, onthe other hand, the information sought is purely for mercenary or evenless worthy reasons, and those engaged in these undertakings range fromrascals of the lowest type to men who are ready to risk death for thecause which they represent and who are really heroes of a high order. One of the latter with whom I happened to be thrown professionally was ayoung fellow of about twenty named Guthrie. 

It was during a great strike, and outrages were being committed all overthe city of New York by dynamiters supposed to be in the employ ofthe unions. Young Guthrie, who was a reckless daredevil, offered hisservices to the employers, and agreed to join one of the local unionsand try to find out who were the men blowing up office buildings inprocess of construction and otherwise terrorizing the inhabitants of thecity. Accordingly he applied for membership in the organization, and bygiving evidence of his courage and fiber managed to secure a place as avolunteer in the dynamiting squad. So cleverly did he pass himself offas a bitter enemy of capital that he was entrusted with secrets ofthe utmost value and took part in making the plans and procuring thedynamite to execute them. The quality of his nerve (as well as hisfoolhardiness) is shown by the fact that he once carried a dress-suitcase full of the explosive around the city, jumping on and off streetcars, and dodging vehicles. When the proper moment came and the dynamitehad been placed in an uncompleted building on Twenty-second Street, Guthrie gave the signal and the police arrested the dynamiters--all ofthem, including Guthrie, who was placed with the rest in a cell inthe Tombs and continued to report to the district attorney all theinformation which he thus secured from his unsuspecting associates. Indeed, it was hard to convince the authorities that Guthrie was a spyand not a mere accomplice who had turned State's evidence, a distinctionof far-reaching legal significance so far as his evidence was concerned. 

The final episode in the drama was the unearthing by the police ofHoboken of the secret cache of the dynamiters, containing a largequantity of the explosive. Guthrie's instructions as to how they shouldfind it read like a page from Poe's "Gold Bug. " You had to go at nightto a place where a lonely road crossed the Erie Railroad tracks in theHackensack meadows, and mark the spot where the shadow of a telegraphpole (cast by an arc light) fell on a stone wall. This you must climband walk so many paces north, turn and go so many feet west, and thennorth again. You then came to a white stone, from which you laid yourcourse through more latitude and longitude until you were right over thespot. The police of Hoboken did as directed, and after tacking round andround the field, found the dynamite. Of course, the union said the wholething was a plant, and that Guthrie had put the dynamite in the fieldhimself at the instigation of his employers, but before the case came totrial both dynamiters pleaded guilty and went to Sing Sing. One of themturned out to be an ex-convict, a burglar. I often wonder where Guthrieis now. He certainly cared little for his life. Perhaps he is down inVenezuela or Mexico. He could never be aught than a soldier of fortune. But for a long time the employers thought that Guthrie was a detectivesent by the unions to compromise THEM in the very dynamiting they weretrying to stop!

I once had a particularly dangerous and unfortunate case where a privateclient was being blackmailed by a half-crazy ruffian who had never seenhim, but had selected him arbitrarily as a person likely to giveup money. The blackmailer was a German Socialist, who was out ofemployment--a man of desperate character. He had made up his mind thatthe world owed him a living, and he had decided that the easiest wayto get it was to make some more prosperous person give him a thousanddollars under threat of being exposed as an enemy of society. 

The charge was so absurd as to be almost ludicrous, but had my clientcaused the blackmailer's arrest the matter would have been the subjectof endless newspaper notoriety and comment. It was therefore thoughtwise to make use of other means, and I procured the assistance ofa young German-American of my acquaintance, who, in the guise ofa vaudeville artist seeking a job, went to the blackmailer'sboarding-house and pretended to be looking for an actor friend with aname not unlike that of the criminal. 

After two or three visits he managed to scrape an acquaintance with theblackmailer and thereafter spent much time with him. Both were out ofwork, both were German, and both liked beer. My friend had just enoughmoney to satisfy this latter craving. In a month or so they wereintimate friends and used to go fishing together down the bay. At last, after many months, the criminal disclosed to the detective his plan ofblackmailing my client, and suggested that as two heads were better thanone they had better make it a joint venture. The detective pretended tobalk at the idea at first, but was finally persuaded, and at the other'srequest undertook the delivery of the blackmailing letters to my client!Inside of three weeks he had in his possession enough evidence in thecriminal's own handwriting to send him to a prison for the rest of hislife. When at last the detective disclosed his identity the blackmailerat first refused to believe him, and then literally rolled on the floorin his agony and fear at discovering how he had been hoodwinked. Thenext day he disappeared and has not been heard of since, but his lettersare in my vault, ready to be used if he again puts in an appearance. 

The records of the police and of the private agencies contain manyinstances where murderers have confessed their guilt long after thecrime to supposed friends, who were in reality decoys placed there forthat very purpose. It is a peculiarity of criminals that they cannotkeep their secrets locked in their own breasts. The impulse toconfession is universal, particularly in women. Egotism has some part inthis, but the chief element is the desire for companionship. Criminalshave a horror of dying under an alias. The dignity of identity appealseven to the tramp. This impulse leads oftentimes to the most unnecessaryand suicidal disclosures. The murderer who has planned and executed adiabolical homicide and who has retired to obscurity and safety willvery likely in course of time make a clean breast of it to some one whomhe believes to be his friend. He wants to "get it off his chest, " totalk it over, to discuss its fine points, to boast of how clever he was, to ask for unnecessary advice about his conduct in the future, tohave at least one other person in the world who has seen his soul'snakedness. 

The interesting feature of such confessions from a legal point of viewis that, no matter how circumstantial they may be, they are not usuallyof themselves sufficient under our law to warrant a conviction. Theadmission or confession of a defendant needs legal corroboration. Thiscorroboration is often very difficult to find, and frequently cannot besecured at all. This provision of the statutes is doubtless a wise oneto prevent hysterical, suicidal, egotistical, and semi-insane personsfrom meeting death in the electric chair or on the gallows, but it oftenresults in the guilty going unpunished. Personally, I have never known acriminal to confess a crime of which he was innocent. The nearest thingto it in my experience is when one criminal, jointly guilty with anotherand sure of conviction, has drawn lots with his pal, lost, confessed, and in the confession exculpated his companion. 

In the police organization of almost every large city there are a fewmen who are genuinely gifted for the work of detection. Such an one wasGuiseppe Petrosino, a great detective, and an honest, unselfish, and heroic man, who united indefatigable patience and industry withreasoning powers of a high order. The most thrilling evening of my lifewas when I listened before a crackling fire in my library to Joe'sstory of the Van Cortlandt Park murder, the night before I was going toprosecute the case. Sitting stiffly in an arm-chair, his ugly moon-faceexpressionless save for an occasional flash from his black eyes, Petrosino recounted slowly and accurately how, by means of a singleslip of paper bearing the penciled name "Sabbatto Gizzi, P. O. Box 239, Lambertville, N. J. , " he had run down the unknown murderer of an unknownItalian stabbed to death in the park's shrubbery. 

Petrosino's physical characteristics were so pronounced that he wasprobably as widely, if not more widely, known than any other Italianin New York. He was short and heavy, with enormous shoulders and a bullneck, on which was placed a great round head like a summer squash. Hisface was pock-marked, and he talked with a deliberation that was due tohis desire for accuracy, but which at times might have been suspectedto arise from some other cause. He rarely smiled and went methodicallyabout his business, which was to drive the Italian criminals out of thecity and country. Of course, being a marked man in more senses than one, it was practically impossible to disguise himself, and, accordingly, he had to rely upon his own investigations and detective powers, supplemented by the efforts of the trained men in the Italian branch, many of whom are detectives of a high order of ability. If the life ofPetrosino were to be written, it would be a book unique in the historyof criminology and crime, for this man was probably the only greatdetective of the world to find his career in a foreign country amidcriminals of his own race. 

I have instanced Petrosino as an example of a police detective of a veryunusual type, but I have known several other men on the New York PoliceForce of real genius in their own particular lines of work. One of theseis an Irishman who makes a specialty of get-rich-quick men, oil andmining stock operators, wire-tappers and their kin, and who knows theantecedents and history of most of them better than any other man in thecountry. He is ready to take the part of either a "sucker" or a fellowcrook, as the exigencies of the case may demand. 

There are detectives--real ones--on the police force of all the greatcities of the world to-day, most of them specialists, a few of themgeniuses capable of undertaking the ferreting out of any sort ofmystery, but the last are rare. The police detective usually lacks thetraining, education, and social experience to make him effective indealing with the class of elite criminals who make high society theirfield. Yet, of course, it is this class of crooks who most excite ourinterest and who fill the pages of popular detective fiction. 

The headquarters man has no time nor inclination to follow the sportingduchess and the fictitious earl who accompanies her in their picturesquewanderings around the world. He is busy inside the confines of his owncountry. Parents or children may disappear, but the mere seeking ofoblivion on their part is no crime and does not concern him except byspecial dispensation on the part of his superiors. Divorced couples maysteal their own children back and forth, royalties may inadvertentlyinvolve themselves with undesirables, governmental information exudefrom State portals in a peculiar manner, business secrets pass intothe hands of rivals, racehorses develop strange and untimely diseases, husbands take long and mysterious trips from home--a thousand excitingand worrying things may happen to the astonishment, distress, orintense interest of nations, governments, political parties, or privateindividuals, which from their very nature are outside the purview of theregular police. Here, then, is the field of the secret agent or privatedetective, and here, forsooth, is where the detective of genuinedeductive powers and the polished address of the so-called "man of theworld" is required. 

There are two classes of cases where a private detective must needs beused, if indeed any professional assistance is to be called in: first, where the person whose identity is sought to be discovered or whoseactivities are sought to be terminated is not a criminal or hascommitted no crime, and second, where, though a crime has beencommitted, the injured parties cannot afford to undertake a publicprosecution. 

For example, if you are receiving anonymous letters, the writer of whichaccuses you of all sorts of unpleasant things, you would, of course, much prefer to find out who it is and stop him quietly than to turn overthe correspondence to the police and let the writer's attorneys publiclycross-examine you at his trial as to your past career. Even if a diamondnecklace is stolen from a family living on Fifth Avenue, there is morethan an even chance that the owner will prefer to conceal her lossrather than to have her picture in the morning paper. Yet she will wishto find the necklace if she can. 

When the matter has no criminal side at all, the police cannot beavailed of, although we sometimes read that the officers of the localprecinct have spent many hours in trying to locate Mrs. So-and-So's lostPomeranian, or in performing other functions of an essentially privatenature--most generously. But if, for example, your daughter is made therecipient, almost daily, of anonymous gifts of jewelry which arriveby mail, express, or messenger, and you are anxious to discover theidentity of her admirer and return them, you will probably wish toengage outside assistance. 

Where will you seek it? You can do one of two things: go to a big agencyand secure the services of the right man, or engage such a man outsidewho may or may not be a professional detective. I have frequentlyutilized with success in peculiar and difficult cases the services ofmen whom I knew to be common-sense persons, with a natural taste forferreting out mysteries, but who were not detectives at all. Your headbookkeeper may have real talents in this direction--if he is not aboveusing them. Naturally, the first essential is brains--and if you cangive the time to the matter, your own head will probably be the bestone for your purposes. If, then, you are willing to undertake the jobyourself, all you need is some person or persons to carry out yourinstructions, and such are by no means difficult to find. I have hadmany a case run down by my own office force--clerks, lawyers, andstenographers, all taking a turn at it. Why not? Is the professionalsleuth working on a fixed salary for a regular agency and doing a dozendifferent jobs each month as likely to bring to bear upon your ownprivate problem as much intelligence as you yourself?

There is no mystery about such work, except what the detective himselfsees fit to enshroud it with. Most of us do detective work all the timewithout being conscious of it. Simply because the matter concerns thetheft of a pearl, or the betraying of a business or professional secret, or the disappearance of a friend, the opinion of a stranger becomes nomore valuable. And the chances are equal that the stranger will make abungle of it. 

Many of the best available detectives are men who work by themselveswithout any permanent staff, and who have their own regular clients, generally law firms and corporations. Almost any attorney knows severalsuch, and the chief advantage of employing one of them lies in the factthat you can learn just what their abilities are by personal experience. They usually command a high rate of remuneration, but deductive abilityand resourcefulness are so rare that they are at a premium and can onlybe secured by paying it. These men are able, if necessary, to assumethe character of a doctor, traveller, man-about-town, or business agentwithout wearing in their lapels a sign that they are detectives, andthey will reason ahead of the other fellow and can sometimes calculatepretty closely what he will do. Twenty-five dollars a day will generallyhire the best of them, and they are well worth it. 

The detective business swarms with men of doubtful honesty and morals, who are under a constant temptation to charge for services not renderedand expenses not incurred, who are accustomed to exaggeration if notto perjury, and who have neither the inclination nor the ability to docompetent work. 

Once they get their clutches on a wealthy client, they resemble theshyster lawyer in their efforts to bleed him by stimulating his fears ofpublicity and by holding out false hopes of success, and thus prolongingtheir period of service. An unscrupulous detective will, almost as amatter of course, work on two jobs at once and charge all his time toeach client. He will constantly report progress when nothing has beenaccomplished, and his expenses will fill pages of his notebook. Meantimehis daily reports will fall like a shower of autumn leaves. In noprofession is it more essential to know the man who is working for you. If you need a detective, get the best you can find, put a limit on theexpense, and give him your absolute confidence. 

CHAPTER VI. Detectives Who Detect

In the preceding chapter the writer discussed at some length the real, as distinguished from the fancied, attributes of detectives in general, and the weaknesses as well as the virtues of the so-called detective"agency. " There are in the city of New York at the present time aboutone hundred and fifty licensed detectives. Under the detective licenselaws each of these has been required to file with the State comptrollerwritten evidences of his competency, and integrity, approved by fivereputable freeholders of his county, and to give bond in the sum oftwo thousand dollars. He also has to pay a license fee of one hundreddollars per annum, but this enables him to employ as many "operators"as he chooses. In other words, the head of the agency may be of goodcharacter and his agents wholly undesirable citizens. How often this isthe case is known to none better than the heads themselves. The strengthand efficiency of a detective agency does not lie in the name at thetop of its letter-paper, but in the unknown personnel of the men who aredoing or shirking the work. I believe that most of the principals ofthe many agencies throughout the United States are animated by a seriousdesire to give their clients a full return for their money and loyal andhonest service. But the best intentions in the world cannot make upfor the lack of untiring vigilance in supervising the men who are beingemployed in the client's service. 

It is the right here that the "national" has an immense advantageover the small agency which cannot afford to keep a large staff of menconstantly on hand, but is forced to engage them temporarily as they maybe needed. The "national" agency can shift its employees from placeto place as their services are required, and the advantages ofcentralization are felt as much in this sort of work as in any otherindustry. The licensed detective who sends out a hurry call forassistants is apt to be able to get only men whom he would otherwise notemploy. In this chapter, the word "national, " as applied to a detectiveagency, refers not to the title under which such an agency may do itsbusiness, but to the fact that it is organized and equipped to renderservices all over the country. 

In this connection it is worth noticing that the best detective agenciestrain their own operators, selecting them from picked material. Thecandidate must as rule be between twenty and thirty-five years of age, sound of body, and reasonably intelligent. He gets pretty good wagesfrom the start. From the comparatively easy work of watching or"locating, " he is advanced through the more difficult varieties of"shadowing" and "trailing, " until eventually he may develop into afirst-class man who will be set to unravel a murder mystery or to "rope"a professional criminal. But with years of training the best materialmakes few real detectives, and the real detective remains in fact theman who sits at the mahogany desk in the central office and presses therow of mother of pearl buttons in front of him. 

If you know the heads or superintendents of the large agencies you willfind that the "star" cases, of which they like to talk, are, for themost part, the pursuit and capture of forgers and murderers. Theformer, as a rule, are "spotted" and "trailed" to their haunts, and whensufficient evidence has been obtained the police are notified, and araid takes place, or the arrest is made, by the State authorities. In the case of a murderer, in a majority of cases, his capture is theresult of skilful "roping" by an astute detective who manages to getinto his confidence. For example, a murder is committed by anItalian miner. Let us suppose he has killed his "boss, " or even thesuperintendent or owner. He disappears. As the reader known, theItalians are so secretive that it is next to impossible to secure anyinformation--even from the relatives of the murdered man. 

The first thing is to locate the assassin. An Italian detective is sentinto the mine as a laborer. Months may elapse before he gets on familiaror intimate terms with his fellows. All the time he is listening andwatching. Presently he hears something that indicates that the murdereris communicating with one of his old friends either directly or throughthird parties. It is then generally only a question of time before hiswhereabouts are ascertained. Once he is "located" the same method isfollowed in securing additional evidence or material in the nature ofa confession or admission tending to establish guilt. Having previously"roped" the murderer's friends, the detective now proceeds to the moredifficult task of "roping" the murderer himself. Of course, the lifeof a detective in a Pennsylvania coal mine would be valueless if hisidentity were discovered, and yet the most daring pieces of detectivework are constantly being performed under these and similar conditions. Where the criminal is not known, the task becomes far more difficult andat times exceedingly dangerous. 

One of my own friends, an Italian gentleman, spent several months in thedifferent mines of this country, where Italians are largely employed, investigating conditions and ascertaining for the benefit of hisgovernment the extent to which anarchy was prevalent. It was necessaryfor him to secure work as a miner at the lowest wages and to disguisehimself in such a way that it would be impossible for anybody to detecthis true character. Fortunately, the great diversity of Italian dialectsfacilitated his efforts and enabled him to pass himself off asfrom another part of the country than his comrades. Having made hispreparations he came to New York as an immigrant and joined a party ofnewly arrived Italians on their way to the coal mines of West Virginia. Without following him further, it is enough to say that during hisservice in the mines he overheard much that was calculated to interestexceedingly the authorities at Rome. Had his disguise been penetratedthe quick thrust of a five-inch blade would have ended his career. He would never have returned to New York. There would only have beenanother dead "Dago" miner. The local coroner would have driven up inhis buggy, looked at the body, examined the clean, deep wound in theabdomen, shrugged his shoulders, and empanelled a hetrogeneous jury whowould have returned a verdict to the effect that "deceased came tohis death through a stab wound inflicted by some person to the juryunknown. " My friend was not a professional detective, but the recital ofhis experiences was enough to fill me with new respect for those engagedin the "man hunt" business among the half civilized miners of the coalregions. 

But the work of even the "national" agencies is not of the kind whichthe novel-reading public generally associates with detectives--that isto say, it rarely deals with the unravelling of "mysteries, " except theidentity of passers of fraudulent paper and occasional murderers. Theprotection of the banks is naturally the most important work that suchan agency can perform. 

The National Bankers' Association has eleven thousand members. "Pinkerton's Bank and Bankers' Protection" also has a large organizationof subscribers. These devote themselves to identifying and running downall criminals whose activities are dangerous to them. Here the agencyand the police work hand in hand, exchanging photographs of crooks andsuspects and keeping closely informed as to each other's doings. Yetthere is no official connection between any detective agency and thepolice of any city. It is an almost universal rule that a privatedetective shall not make an arrest. The reasons for this are manifold. In the first place, the private detective has neither the generalauthority nor the facilities for the manual detention of a criminal. Ablue coat and brass buttons, to say nothing of a night stick, are ofteninvaluable stage properties in the last act of the melodrama. And as thecriminal authorities are eventually to deal with the defendant anyway, it is just as well if they come into the case as soon as may be. It goeswithout saying, of course, that a detective per se has no more right tomake an arrest than any private citizen--nor has a policeman, for thatmatter, save in exceptional cases. The officer is valuable for hisdignity, avoirdupois, "bracelets, " and other accessories. The policethus get the credit of many arrests in difficult cases where all thework has been done by private detectives, and it is good business forthe latter to let them know it. 

One of the chief assets of the big agency is its accumulated informationconcerning all sorts of professional criminals. Its galleries are quiteas complete as those of the local police headquarters, for a constantexchange of art objects is going on with the police throughout theworld. And as the agency is protecting banks all over the United Statesit has greater interest in all bank burglars as a class than the policeof any particular city who are only concerned with the burglars who(as one might say) burgle in their particular burg. Thus, you are morelikely to find a detective from a national agency than a sleuth from300 Mulberry Street, New York, following a forger to Australasia orPolynesia. 

The best agencies absolutely decline to touch divorce and matrimonialcases of any sort. It does not do a detective agency any good to haveits men constantly upon the witness stand subject to attack, witha consequent possible reflection upon their probity of character ortruthfulness. Moreover, a good detective is too valuable a person tobe wasting his time in the court-room. In the ordinary divorce case thedetective, having procured evidence, is obliged to remain on tap andsubject to call as a witness for at least three or four months, duringwhich time he cannot be sent away on distant work. Neither can thecustomer be charged ordinarily for waiting time, and apart from itsmalodorous character the business is not desirable from a financialpoint of view. 

The national agencies prefer clean criminal work, murder cases, and general investigating. They no longer undertake any policing, strike-breaking, or guarding. The most ridiculous misinformation inregard to their participation in this sort of work has been spreadbroadcast largely by jealous enemies and by the labor unions. 

By way of illustration, one Thomas Beet, describing himself as anEnglish detective, contributed an article to the 'New York Tribune' ofSeptember 16, 1906, in which he said:

"In one of the greatest of our strikes, that involving the steelindustry, over two thousand armed detectives were employed supposedly toprotect property, while several hundred men were scattered in the ranksof strikers as workmen. Many of the latter became officers in the laborbodies, helped to make laws for the organizations, made incendiaryspeeches, cast their votes for the most radical movements made by thestrikers, participated in and led bodies of the members in the acts oflawlessness that eventually caused the sending of State troops and thedeclaration of martial law. While doing this, these spies withinthe ranks were making daily reports of the plans and purposes of thestrikers. To my knowledge, when lawlessness was at its height and murderran riot, these men wore little patches of white on the lapels of theircoats so that their fellow detectives of the two thousand would notshoot them down by mistake. "

He, of course, referred to the great strike at Homestead, Pennsylvania, in 1892. In point of fact, there were only six private detectivesengaged on the side of the employers at that time, and these were thereto assist the local authorities in taking charge of six hundred andfifty watchmen, and to help place the latter upon the property of thesteel company. These watchmen were under the direction of the sheriffand sworn in as peace officers of the county. Mr. Beet seems tohave confused his history and mixed up the white handkerchief of theHuguenots of Nantes with the strike-breakers of Pennsylvania. It isneedless to repeat (as Mr. Robert A. Pinkerton stated at the time), that the white label story is ridiculously' untrue, and that it was thestrikers who attacked the watchmen, and not the watchmen the strikers. One striker and one watchman were killed. 

But this attack of Mr. Beet upon his own profession, under the guiseof being an English detective (it developed that he was an ex-divorcedetective from New York City), was not confined to his remarks aboutinciting wanton murder. On the contrary, he alleged (as one havingauthority and not merely as a scribe) that American detective agencieswere practically nothing but blackmailing concerns, which used theinformation secured in a professional capacity to extort money fromtheir own clients. 

"Think of the so-called detective, " says Mr. Beet, "whose agency payshim two dollars or two dollars and fifty cents a day, being engaged uponconfidential work and in the possession of secrets that he knowsare worth money! Is it any wonder that so many cases are sold out byemployees, even when the agencies are honest?"

We are constrained to answer that it is no more wonderful than that anyperson earning the same sum should remain honest when he might so easilyturn thief. As the writer has himself pointed out in these pages, thereare hundreds of so-called detective agencies which are but traps for theguileless citizen who calls upon them for aid. But there are many whichare as honestly conducted as any other variety of legitimate business. Ido not know Mr. Beet's personal experience, but it appears to have beenunfortunate. At any rate, his diatribe is unfounded and false, and theworst feature of it is his assertion that detective agencies make abusiness of manufacturing cases when there happen to be none on hand. 

"Soon, " says he, "there were not enough cases to go around, and thenwith the aid of spies and informers the unscrupulous detectives began tomake cases. Agencies began to work up evidence against persons and thenresorted to blackmail, or else approached those to whom the informationmight be valuable, and by careful manoeuvring had themselves retainedto unravel the case. This brought into existence hordes of professionalinformers who secured the opening wedges for the fake agencies. Men andwomen, many of them of some social standing, made it a practice to pryaround for secrets which might be valuable able; spies kept up theirwork in large business establishments and began to haunt the cafes andresorts of doubtful reputation, on the watch for persons of wealthand prominence who might be foolish enough to place themselves incompromising circumstances. Even the servants in wealthy families soonlearned that certain secrets of the master and mistress could beturned to profitable account. We shudder when we hear of the systemof espionage maintained in Russia, while in the large American cities, unnoticed, are organizations of spies and informers on every hand whospend their lives digging pitfalls for the unwary who can afford topay. "

One would think that we were living in the days of the Borgias! "Ninetyper cent, " says Mr. Beet, "of private detective agencies are rotten tothe core and simply exist and thrive upon a foundation of dishonesty, deceit, conspiracy, and treachery to the public in general and their ownpatrons in particular. There are detectives at the heads of prominentagencies in this country whose pictures adorn the Rogues' Gallery; menwho have served time in various prisons for almost every crime on thecalendar. "

This harrowing picture has the modicum of truth that makes itinsidiously dangerous. But this last extravagance betrays thedenunciator. One would be interested to have this past-master ofoverstatement mention the names of these distinguished crooks that headthe prominent agencies. Their exposure, if true, would not be libellous, and it would seem that he had performed but half his duty to the publicin refraining from giving this important, if not vital, information. 

I know several of these gentlemen whose pictures I feel confident do notappear in the Rogues' Gallery, and who have not been, as yet, convictedof crime. A client is as safe in the hands of a good detective agency ashe is in the hands of a good attorney; he should know his agency, thatis all--just as he should know his lawyer. The men at the head of thebig agencies generally take the same pride in their work as the membersof any other profession. They know that a first-class reputation forhonesty is essential to their financial success and that good will istheir stock in trade. Take this away and they would have nothing. 

In 1878 the founder of one of the most famous of our national agenciespromulgated in printed form for the benefit of his employees what hecalled his general principles. One of these was the following:

"This agency only offers its services at a stated per diem for eachdetective employed on an operation, giving no guarantee of success, except in the reputation for reliability and efficiency; and any personin its service who shall, under any circumstances, permit himself orherself to receive a gift, reward, or bribe shall be instantly dismissedfrom the service. "

Another:

"The profession of the detective is a high and honorable calling. Fewprofessions excel it. He is an officer of justice, and must himself bepure and above reproach. "

Again:

"It is an evidence of the unfitness of the detective for his professionwhen he is compelled to resort to the use of intoxicating liquors; and, indeed, the strongest kind of evidence, if he continually resorts tothis evil practice. The detective must not do anything to farther sinkthe criminal in vice or debauchery, but, on the contrary, must seek towin his confidence by endeavoring to elevate him, etc. "

"Kindness and justice should go hand in hand, whenever it is possible, in the dealings of the detective with the criminal. There is no humanbeing so degraded but there is some little bright spark of conscienceand of right still existing in him. "

Last:

"The detective must, in every instance, report everything which isfavorable to the suspected party, as well as everything which may beagainst him. "

The man who penned these principles had had the safety of AbrahamLincoln in his keeping; and these simple statements are the bestrefutation of the baseless assertions above referred to. 

It may be that in those days the detection of crime was a bit moreelementary than at the present time. One can hardly picture a modernsleuth delaying long in an attempt to evangelize his quarry, but thesegeneral principles are the right stuff and shine like good deeds in anaughty world. 

As one peruses this little pink pamphlet he is constantly struck by therepeated references to the detective as an actor. That was undoubtedlythe ancient concept of a sleuth. "He must possess, also, the player'sfaculty of assuming any character that his case may require, and ofacting it out to the life with an ease and naturalness which shall notbe questioned. " This somewhat large order is, to our relief, qualified alittle later on. "It is not to be expected, however, " the author admits, "that every detective shall possess these rare qualifications, althoughthe more talented and versatile he is, the higher will be the sphere ofoperation which he will command. "

The modern detective agency is conducted on business principles and doesnot look for histrionic talent or general versatility. As one of theheads of a prominent agency said to me the other day:

"When we want a detective to take the part of a plumber we get aplumber, and when we need one to act as a boiler-maker we go out and geta real one--if we haven't one on our pay rolls. "

"But, " I replied, "when you need a man to go into a private family andpretend to be an English clergyman, or a French viscount, or a brilliantman of the world--who do you send?"

The "head" smiled. 

"The case hasn't arisen yet, " said he. "When it does I guess we'll getthe real thing. "

The national detective agency, with its thousands of employees who have, most of them, grown up and received their training in its service, is apowerful organization, highly centralized, and having an immense sinkingfund of special knowledge and past experience. This is the product ofdecades of patient labor and minute record. The agency which offersyou the services of a Sherlock Holmes is a fraud, but you can accept asgenuine a proposition to run down any man whose picture you may be ableto identify in the gallery. The day of the impersonator is over. Thedetective of this generation is a hard-headed business man with a stoutpair of legs. 

This accumulated fund of information is the heritage of an honest andlong established industry. It is seventy-five per cent of its capital. It is entirely beyond the reach of the mushroom agency, which inconsequence has to accept less desirable retainers involving no suchrequirements, or go to the wall. The collection of photographs is almostpriceless and the clippings, letters, and memoranda in the filing casesonly secondarily so. Very few of the "operators" pretend to anything butcommon-sense, with perhaps some special knowledge of the men theyare after. They are not clairvoyants or mystery men, but they willtirelessly follow a crook until they get him. They are the regulartroops who take their orders without question. The real "detective" isthe "boss" who directs them. 

The reader can easily see that in all cases where a crime, such asforgery, is concerned, once the identity of the criminal is ascertained, half the work (or more than half) is done. The agencies know the faceand record of practically every man who ever flew a bit of bad paper inthe United States, in England, or on the Continent. If an old hand getsout of prison his movements are watched until it is obvious that he doesnot intend to resort to his old tricks. After the criminal is known or"located, " the "trailing" begins and his "connections" are carefullystudied. This may or may not require what might be called real detectivework; that is to say, work requiring superior power of deducingconclusions from first-hand information, coupled with unusual skillin acting upon them. Mere trailing is often simple, yet sometimesvery difficult. A great deal depends on the operator's own peculiarinformation as to his man's habits, haunts, and associates. It is veryhard to say in most cases just where mere knowledge ends and detectivework proper begins. As for disguises, they are almost unknown, exceptsuch as are necessary to enable an operator to join a gang where hisquarry may be working and "rope" him into a confession. 

Detective agencies of the first-class are engaged principally inclean-cut criminal work, such as guarding banks from forgers and"yeggmen"--an original and dangerous variety of burglar peculiar to theUnited States and Canada. In other words, they have large associationsof clients who need more protection than the regular police can givethem, and whose interest it is that the criminal shall not only bedriven out of town, but run down (wherever he may be), captured, and putout of the way for as long a time as possible. 

The work done for private individuals is no less important andeffective, but it is secondary to the other. The great value of the"agency" to the victim of a theft is the speed with which it candisseminate its information--something quite impossible so far as theindividual citizen is concerned. Let me give an illustration or two. 

Between 10. 30 P. M. Saturday, February 25, 1911, and 9. 30 A. M. Sunday, February 26, 1911, one hundred and thirty thousand dollars worth ofpearls belonging to Mrs. Maldwin Drummond were stolen from a stateroomon the steamship 'Amerika' of the Hamburg-American line. The Londonunderwriters cabled five thousand dollars reward and retained toinvestigate the case a well-known American agency, which beforethe 'Amerika' had reached Plymouth on her return trip had theirnotifications in the hands of all the jewelers and police officials ofEurope and the United States, and had covered every avenue of disposalin North and South America. In addition, this agency investigated everyhuman being on the Amerika from first cabin to forecastle. 

Within a year or so an aged stock-broker, named Bancroft, was robbedon the street of one hundred thousand dollars in securities. Inside offifty-five minutes after he had reported his loss a detective agency hadnotified all banks, brokers, and the police in fifty-six cities of theUnited States and Canada. 

In the story books your detective scans with eagle eye the surface ofthe floor for microscopic evidences of crime. His mind leaps from acigar ash to a piece of banana peel and thence to what the family hadfor dinner. His brain is working all the time. It is, of course, allquite wonderful and most excellent reading, and the old-style sleuthreally thought he could do it! Nowadays, while the fake detectiveis snooping around the back piazza with a telescope, the real one isgetting the "dope" from the village blacksmith or barber or the waitressat the station. He may not be highly intelligent, but he knows thecountry, and, what is more important, he knows the people. All thebrains in the world cannot make up for the lack of an elementaryknowledge of the place and the characters themselves. It stands toreason that no strange detective could form as good an opinion as towhich of the members of your household would be most likely to steal apiece of jewelry as you could yourself. Yet the old-fashioned Sherlockknew and knows it all. 

One of the best illustrations of the practical necessity of somefirst-hand knowledge is that afforded by the recovery of a diamondnecklace belonging to the wife of a gentleman in a Connecticut town. The facts that are given here are absolutely accurate. The gentleman inquestion was a retired business man of some means who lived not far fromthe town and who made frequent visits to New York City. He had made hiswife a present of a fifteen thousand-dollar diamond necklace, which shekept in a box in a locked trunk in her bedroom. While she had ownedthe necklace for over a year she had never worn it. One evening havingguests for dinner on the occasion of her wedding anniversary she decidedto put it on and wear it for the first time. That night she replaced itin its box and enclosed this in another box, which she locked and placedin her bureau drawer. This she also locked. The following night shedecided to replace the necklace in the trunk. She accordingly unlockedthe bureau drawer, and also the larger box, which apparently was inexactly the same condition as when she had put it away. But the innerbox was empty and the necklace had absolutely disappeared. Now, noone had seen the necklace for a year, and then only her husband, theirservants, and two or three old friends. No outsider could have known ofits existence. There was no evidence of the house or bureau having beendisturbed. 

A New York detective agency was at once retained, which sent one of itsbest men to the scene of the crime. He examined the servants, heard thestory, and reported that it must have been an inside job--that there wasno possibility of anything else. But there was nothing to implicate anyone of the servants, and there seemed no hope of getting the necklaceback. Two or three days later the husband turned up at the agency'soffice in New York, and after beating about the bush for a while, remarked:

"I want to tell you something. You have got this job wrong. There's onefact your man didn't understand. The truth is that I'm a pretty easygoing sort, and every six months or so I take all the men and girlsemployed around my house down to Coney Island and give 'em a rip-roaringtime. I make 'em my friends, and I dance with the girls and I jollyup the men, and we are all good pals together. Sort of unconventional, maybe, but it pays. I know--see?--that there isn't a single one of thosepeople who would do me a mean trick. Not one of 'em but would lend meall the money he had. I don't care what your operator says, the personwho took that necklace came from outside. You take that from me. Thesuperintendent, who is wise in his generation, scratched his chin. 

"Is that dead on the level?" he inquired. 

"Gospel!" answered the other. 

"I'll come up myself!" said the boss. 

Next day the boss behind a broken-winded horse, in a dilapidated buggy, drove from another town to the place where his client lived. At thesmithy on the crossroads he stopped and borrowed a match. 

"Anybody have good hosses in this town?" asked the detective. 

"Sure!" answered the smith. "Mr. ------ up on the hill has the best inthe county!"

"What sort of a feller is he?"

The smith chewed in silence for a moment. 

"Don't know him myself, but I tell you what, his help says he's the bestemployer they ever had--and they stay there forever!"

The boss drove on to the house, which he observed was situated at aboutan equal distance from three different railway stations and surroundedby a piazza with pillars. He walked around it, examining the vines untilhis eye caught a torn creeper and a white scratch on the paint. It hadbeen an outside job after all, and two weeks had already been lost. Deduction was responsible for a mistake which would not have occurredhad a little knowledge been acquired first. That is the lesson of thisstory. 

The denouement, which has no lesson at all, is interesting. Thesuperintendent saw no prospect of getting back the necklace, but beforeso informing the client, decided to cogitate on the matter for a day ortwo. During that time he met by accident a friend who made a hobbyof studying yeggmen and criminals and occasionally doing a bit of theamateur tramp act himself. 

"By the way, " said the friend, "do you ever hear of any 'touches' up theriver or along the Sound?"

"Sometimes, " answered the boss, pricking up his ears. "Why do you ask?"

"Why, the other night, " replied the friend, "I happened to be meeting mywife up at the Grand Central about six o'clock and I saw two yeggs thatI knew taking a train out. I thought it was sort of funny. PittsburghIke and Denver Red. "

"When was it?"

"Two weeks ago, " said the friend. 

"Thanks, " returned the boss. "You must excuse me now; I've got animportant engagement. "

Three hours later Pittsburgh Ike and Denver Red were in a cell atheadquarters. At six o'clock that evening the necklace had beenreturned. This was a coincidence that might not occur in a hundredyears, but had the deductive detective determined the question he wouldstill be pondering on the comparative probability of whether the cook, the chore man, or the hired girl was the guilty party. 

A clean bit of detection on the part of an agency, and quite in theday's work, was the comparatively recent capture of a thief who securedthree hundred and sixty thousand dollars worth of securities from afamous banking institution in New York City by means of a very simpledevice. A firm of stock brokers had borrowed from this bank about twohundred and fifty thousand dollars for a day or two and put up thesecurities as collateral. In the ordinary course of business, when theborrower has no further use for the money, he sends up a certified checkfor the amount of the loan with interest, and the bank turns over thesecurities to the messenger. In this particular case a messenger arrivedwith a certified check, shoved it into the cage, and took away what waspushed out to him in return--three hundred and sixty thousand dollars inbonds. The certification turned out to be a forgery and the securitiesvanished. I do not know whether the police were consulted or not. Sometimes in such cases the banks prefer to resort to more privatemethods and, perhaps, save the necessity of making a public admission oftheir stupidity. When my friend, the superintendent, was called in, theofficers of the bank were making the wildest sort of guesses as to theidentity of the master mind and hand which had deceived the cashier. Hemust, they felt sure, have made the forgery with a camel's hair brush ofunrivalled fineness. 

"A great artist!" said the president. 

"The most skilful forger in the world!" opined another. 

"We must run down all the celebrated criminals!" announced a third. 

"Great artist-nothing!" remarked the boss, rubbing his thumb over thecertification which blurred at the touch. "He's no painter! Why, that'sa rubber stamp!"

What a shock for those dignified gentlemen! To think that their cashierhad been deceived by a mere, plebeian, common or garden thing of rubber!

"Good-day, gents!" said the boss, putting the check in his wallet. "I'vegot to get busy with the rubber stamp makers!"

He returned to his office and detailed a dozen men to work on the EastSide and a dozen on the West Side, with orders to search out everyman in New York who manufactured rubber stamps. Before the end of theafternoon the maker was found on the Bowery, near Houston Street. Thiswas his story: A couple of weeks before, a young man had come in andordered a certification stamp, drawing at the time a rough designof what he wanted. The stamp, when first manufactured, had not beensatisfactory to him; and on his second visit, the customer had left apiece of a check, carefully torn out in circular form, which showedthe certification which he desired copied. This fragment the makerhad retained, as well as a slip of paper, upon which the customer hadwritten the address of the place to which he wished the stamp sent--TheYoung Men's Christian Association! The face of the fragment showed apart of the maker's signature. The superintendent ran his eye overa list of brokers and picked out the name of the firm most like thehieroglyphics on the check. Then he telephoned over and asked to bepermitted to see their pay roll. Carefully comparing the signatureappearing thereon with the Y. M. C. A. Slip, he picked his man in less thanten minutes. 

The latter was carefully trailed to his home, and thence to the YoungMen's Christian Association, after which he called on his fiancee ather father's house. He spent the night at his own boarding place. Nextmorning (Sunday) he was arrested on his way to church, and all thesecurities (except some that he later returned) were discovered in hisroom. More quick work! The amateur's method had been very simple. Heknew that the loan had been made and the bonds sent to the bank. So heforged a check, certified it himself, and collected the securities. Ofcourse, he was a bungler and took a hundred rash chances. 

A good example of the value of the accumulated information--documentary, pictorial, and otherwise--in the possession of an agency was the captureof Charles Wells, more generally known as Charles Fisher, alias HenryConrad, an old-time forger, who suddenly resumed his activities afterbeing released from a six-year term in England. A New York City bank hadpaid on a bogus two hundred and fifty dollar check and had reported itsloss to the agency in question. The superintendent examined the check(although Fisher had been in confinement for six years on the otherside) spotted it as his work. The next step was to find the forger. Ofcourse, no man who does the actual "scratching" attempts to "lay down"the paper. That task is up to the "presenter. " The cashier of thebank identified in the agency's gallery the picture of the man who hadbrought in the two hundred and fifty dollar check, and he in turn provedto be another ex-convict well known in the business, whose whereaboutsin New York were not difficult to ascertain. He was "located" and"trailed" and all his associates noted and followed. In due course he"connected up" (as they say) with Fisher. Now, it is one thing to followa man who has no idea that he is being followed and another to trail aman who is as suspicious and elusive as a fox. A professional criminal'sdaily business is to observe whether or not he is being followed, and herarely if ever, makes a direct move. If he wants a drink at the saloonacross the street, he will, by preference, go out the back door, walkaround the block and dodge in the side entrance under the tail of anice wagon. In this case the detectives followed the presenter for daysbefore they reached Fisher, and when they did they had still to locatehis "plant. "

The arrest in this case illustrates forcibly the chief characteristic ofsuccessful criminals--egotism. The essential quality of daring requiredin their pursuits gives them an extraordinary degree of self-confidence, boldness, and vanity. And to vanity most of them can trace their fall. It seems incredible that Fisher should have returned to the UnitedStates after his discharge from prison and immediately resumed hisoperations without carefully concealing his impedimenta. Yet when he wasrun down in a twenty-six family apartment house, the detectives found inhis valise several thousand blank and model checks, hundreds of lettersand private papers, a work on "Modern Bank Methods, " and his "ticket ofleave" from England! This man was a successful forger and because hewas successful, his pride in himself was so great that he attributed hisconviction in England to accident and really felt that he was immune onhis release. 

The arrest of such a man often presents great legal difficulties whichthe detectives overcome by various practical methods. Of course, noofficer without a search warrant has a right to enter a house or anapartment. A man's house is his castle. Mayor Gaynor, when a judge, ina famous opinion (more familiarly known in the lower world even thanthe Decalogue) laid down the law unequivocally and emphatically in thisregard. Thus, in the Fisher case, the defendant having been arrested onthe street, the detectives desired to search the apartment of the familywith which he lived. They did this by first inducing the tenant to openthe door and, after satisfying themselves that they were in the rightplace, ordering the occupants to get in line and "march" from one roomto another while they rummaged for evidence. "Of course, we had no rightto do it, but they didn't know we hadn't!" said the boss. 

But frequently the defendant knows his rights just as well as thepolice. On one occasion the same detective who arrested Fisher wanted totake another man out of an apartment where he had been run to earth. Hismother (aged eighty-two years) put the chain on the door and politelydeclined to open it. All the evidence against the forger was inside theapartment and he was actively engaged in burning it up in the kitchenstove. In half an hour to arrest him would have been useless! Thedetectives stormed and threatened, but the old crone merely grinned atthem. She hated a "bull" as much as did her son. Fearing to take thelaw into their own hands, they summoned a detective sergeant fromhead-quarters, but, although he sympathized with them, he had read MayorGaynor's decision and declined to take any chances. They then "appealed"to the cop on the beat, who proved more reasonable, but although he usedall his force, he was unable to break down the door which had in themeantime been reinforced from the inside. After about an hour, the oldlady unchained the door and invited the detectives to come in. The crookwas sitting by the window smoking a cigar and reading St. Nicholas, while all evidence of his crime had vanished in smoke. 

One more anecdote, at the expense of the deductive detective. A watchmanwas murdered, the safe of a brewery blown open and the contents stolen. Local detectives worked on the case and satisfied themselves that thenight engineer at the brewery had committed the crime. He was a quietand, apparently, a God-fearing man, but circumstances were conclusiveagainst him. In fact, he had been traced within ten minutes of themurder on the way to the scene of the homicide. But some little link waslacking and the brewery officials called in the agency. The first thingthe superintendent did was to look over the engineer. At first sighthe recognized him as a famous crook who had served five years for ahomicidal assault! One would think that that would have settled thematter. But it didn't! The detective said nothing to his associates oremployers, but called on the engineer that evening and had a quiettalk with him in which he satisfied himself that the man was entirelyinnocent. The man had served his time, turned over a new leaf, and wasleading an honest, decent life. Two months later the superintendentcaused the arrest of four yeggmen, all of whom were convicted and arenow serving fifteen years each for the crime. 

Thus, the reader will observe that there are just a few morereal detectives still left in the business-if you can find them. Incidentally, they, one and all, take off their hats to Scotland Yard. They will tell you that the Englishman may be slow (fancy an Americaninspector of police wearing gray suede gloves and brewing himself a dishof tea in his office at four o'clock), but that once he goes after acrook he is bound to get him--it is merely a question of time. I may addthat in the opinion of the heads of the big agencies the percentage ofability in the New York Detective Bureau is high--one of them goingso far as to claim that fifty per cent of the men have real detectiveability--that is to say "brains. " That is rather a higher average thanone finds among clergymen and lawyers, yet it may be so. 

CHAPTER VII. Women in the Courts

AS WITNESSES

Women appear in the criminal courts constantly as witnesses, althoughless frequently as complainants and defendants. As complainants arealways witnesses, and as defendants may, and in point of fact generallydo become so, whatever generalizations are possible regarding women incourts of law can most easily be drawn from their characteristics asgivers of testimony. Roughly speaking, women exhibit about the sameidiosyncrasies and limitations in the witness-chair as the opposite sex, and at first thought one would be apt to say that it would be fruitlessand absurd to attempt to predicate any general principles in regard totheir testimony, but a careful study of female witnesses as a whole willresult in the inevitable conclusion that their evidence has virtues andlimitations peculiar to itself. 

The ancient theory that woman was man's inferior showed itself in thetendency to reject, or at least to regard with suspicion, her evidencein legal matters. 

"The following law, " says W. M. Best, "is attributed to Moses byJosephus: 'Let the testimony of women not be received on account of thelevity and audacity of their sex'; a law which looks apocryphal, butwhich, 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 canon laws of mediaeval Europeseem to have carried the exclusion much further. Mascardus says:'Feminis plerumque omnino non creditur, et id dumtaxat, quod suntfeminae qua ut plurimum solent esse fraudulentre fallaces, et dolosae'[Generally speaking, no credence at all is given to women, and for thisreason, 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 distinctterms, that women cannot in general be witnesses, citing the language ofVirgil: 'Varium et mutabile semper femina'. .. . 

"Bruneau, although a contemporary of Madame de Sevigne, did not scrupleto write, in 1686, that the deposition of three women was only equal tothat of two men. At Berne, so late as 1821, in the Canton of Vaud, solate as 1824, the testimony of two women was required to counterbalancethat of one man. .. . A virgin was entitled to greater credit than awidow. .. . In the 'Canonical Institutions of Devotus, ' published atParis in 1852, it is distinctly stated that, except in a few peculiarinstances, women are not competent witnesses in criminal cases. InScotland also, until the beginning of the eighteenth century, sex wasa cause of exclusion from the witness-box in the great majority ofinstances. "

Cockburn in his Memoirs tells of an incident during the trial ofGlengarry, in Scotland, for murder in a duel, which is, perhaps, explicable by this extraordinary attitude: A lady of great beautywas called as a witness and came into court heavily veiled. Beforeadministering the oath, Lord Eskgrove, the judge (to whom this functionbelongs in Scotland), gave her this exposition of her duty:

"Young woman, you will now consider yourself as in the presence ofAlmighty God and of this High Court. Lift up your veil, throw off allyour modesty, and look me in the face. "

Whatever difference does exist in character between the testimony ofmen and women has its root in the generally recognized diversity in themental processes of the two sexes. Men, it is commonly declared, relyupon their powers of reason; women upon their intuition. Not that theformer is frequently any more accurate than the latter. But our courtsof law (at least those in English-speaking countries) are devised andorganized, perhaps unfortunately, on the principle that testimony notapparently deduced by the syllogistic method from the observation ofrelevant fact is valueless, and hence woman at the very outset isplaced at a disadvantage and her usefulness as a probative force sadlycrippled. 

The good old lady who takes the witness-chair and swears that she knowsthe prisoner took her purse has perhaps quite as good a basis for heropinion and her testimony (even though she cannot give a single reasonfor her belief and becomes hopelessly confused on cross-examination) asthe man who reaches the same conclusion ostensibly by virtue of havingseen the defendant near by, observed his hand reaching for the purse, and then perceived him take to his heels. She has never been taught toreason and has really never found it necessary, having wandered throughlife by inference or, more frankly, by guesswork, until she is nolonger able to point out the simplest stages of her most ordinary mentalprocesses. 

As the reader is already aware, the value of all honestly giventestimony depends first upon the witness's original capacity to observethe facts; second upon his ability to remember what he has seen and notto 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 theindividual. It is in the second class of the witness's limitations thatwomen as a whole are more likely to trip than men, for they are prone toswear to circumstances as facts, of their own knowledge, simply becausethey confuse what they have really observed with what they believedid occur or should have occurred, or with what they are convinced didhappen simply because it was accustomed to happen in the past. 

Perhaps the best illustration of the female habit of swearing that factsoccurred because they usually occurred, was exhibited in theTwitchell murder trial in Philadelphia, cited in Wellman's "Art ofCross-Examination. " The defendant had killed his wife with a blackjack, and having dragged her body into the back yard, carefully unbolted thegate leading to the adjacent alley and, retiring to the house, went tobed. His purpose was to create the impression that she had been murderedby some one from outside the premises. To carry out the suggestion, hebent a poker and left it lying near the body smeared with blood. In themorning the servant girl found her mistress and ran shrieking into thestreet. 

At the trial she swore positively that she was first obliged to unboltthe door in order to get out. Nothing could shake her testimony, and shethus unconsciously negatived the entire value of the defendant's adroitprecautions. He was justly convicted, although upon absolutely erroneoustestimony. 

The old English lawyers occasionally rejected the evidence of womenon the ground that they are "frail. " But the exclusion of women aswitnesses in the old days was not for psychological reasons, nor didit originate from a critical study of the probative value of theirtestimony. 

Though the conclusions to which women frequently jump may usually beshown by careful interrogation to be founded upon observation of actualfact, their habit of stating inferences often leads them to claimknowledge of the impossible--"wiser in [their] own conceit than sevenmen that can render a reason. "

In a very recent case where a clever thief had been convicted of lootingvarious apartments in New York City of over eighty thousand dollars'worth of jewelry, the female owners were summoned to identify theirproperty. The writer believes that in every instance these ladies wereabsolutely ingenuous and intended to tell the absolute truth. Each andevery one positively identified various of the loose stones found in thepossession of the prisoner as her own. This was the case even when thediamonds, emeralds and pearls had no distinguishing marks at all. Itwas a human impossibility actually to identify any such objects, and yetthese eminently respectable and intelligent gentlewomen swore positivelythat they could recognize their jewels. They drew the inference merelythat as the prisoner had stolen similar jewels from them these must bethe 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 muchmore ready to "swear their testimony through" than men. They are soaccustomed to act upon inference that, finding themselves unable tosubstantiate their assertion by any sufficient reason, they becomeirritated, "show fight, " and seek refuge in prevarication. Had they not, during their entire lives, been accustomed to mental short-cuts, theywould be spared the humiliation of seeing their evidence "stricken fromthe 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 mightlose her jewel, which was, of course, not the case at all, as the sworntestimony founded upon nothing but inference left her in no betterposition than she was in before. 

The writer regrets to say that observation would lead him to believethat women as a rule have somewhat less regard for the spirit of theiroaths than men, and that they are more ready, if it be necessary, tocommit perjury. This may arise from the fact that women are fully awarethat their sex protects them from the same severity of cross-examinationto which men would be subjected under similar circumstances. It is todayfatal to a lawyer's case if he be not invariably gentle and courteouswith a female witness, and this is true even if she be a veritableSapphira. 

In spite of these limitations, which, of course, affect the testimonyof almost every person, irrespective of sex, women, with the possibleexception of children, make the most remarkable witnesses to be foundin the courts. They are almost invariably quick and positive in theiranswers, 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 ofdamaging 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, theexplanation, instead of being left for the re-direct examination of herown 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 throughhis cousin. "

What is commonly known as "silent cross-examination" is generally themost effective. The jury realize the difficulties of the situation forthe lawyer, and are not unlikely to sympathize with him, unless he makesbold to attack the witness, when they quickly chance their attitude. 

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

"How do you support yourself?"

"I am a lady of leisure!" replies the witness (arrayed in flamboyantcolors) snappishly. 

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

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

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

The witness, a rather deceptively arrayed woman, turned upon him with aglance 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, cleanwindows, mend my children's clothes, mind the baby, teach the fouroldest their lessons, take care of my husband, and try to get enoughsleep to be up by five in the morning. I guess if some lawyers workedas hard as I do they would have sense enough not to ask impertinentquestions. "

An amusing incident is recorded of how a feminine witness turned thelaugh upon Mr. Francis L. Wellman, the noted cross-examiner. In hisbook he takes the opportunity to advise his lawyer readers to "avoid themistake, so common among the inexperienced, of making much of triflingdiscrepancies. It has been aptly said, " he continues, "that 'jurieshave no respect for small triumphs over a witness's self-possession ormemory!' Allow the loquacious witness to talk on; he will be sureto involve himself in difficulties from which he can never extricatehimself. Some witnesses prove altogether too much; encourage them andlead them by degrees into exaggerations that will conflict with thecommon-sense of the jury. "

Mr. Wellman is famous for following this precept himself and, with oneeye significantly cast upon the jury, is likely to lead his witnessa merry dance until the latter is finally "bogged" in a quagmire ofabsurdities. Not long ago, shortly after the publication of his book, the lawyer had occasion to cross-examine a modest-looking young woman asto the speed of an electric car. The witness seemed conscious that shewas about to undergo a severe ordeal, and Mr. Wellman, feeling himselfcomplete master of the situation, began in his most winsome anddeprecating 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 witha 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 ofexpression. 

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

There was a significant hush in the court-room Then the witness, witha patient smile and a slight lifting of her pretty eyebrows, remarkedquietly:

"Mr. Wellman, don't you think we have carried our little joke farenough?"

There is no witness in the world more difficult to cope with than ashrewd old woman who apes stupidity, only to reiterate the gist of hertestimony in such incisive fashion as to leave it indelibly imprintedon 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 ruleof law and evidence in answer to the simplest question; must receiveimperturbably the opinions and speculations upon every subject of bothherself and (through her) of her neighbors; only to find when he thinksshe must be exhausted by her own volubility, that she is ready, at theslightest opportunity, to break away again into a tangle of guessworkand hearsay, interwoven with conclusions and ejaculation. Woe be untohim if he has not sense enough to waive her off the stand! He mightas well try to harness a Valkyrie as to restrain a pugnacious oldIrishwoman who is intent on getting the whole business before the juryin her own way. 

In the recent case of Gustav Dinser, convicted of murder, a vigorous oldlady took the stand and testified forcibly against the accused. Shewas as "smart as paint, " as the saying goes, and resolutely refused toanswer 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 youheard the sound of three blows?"

"Oh, thim blows!" the old lady would cry--"thim turrible blows! I couldhear the villain as he laid thim on! I could hear the poor, pitifulgroans av her, and she so sufferin'! 'Twas awful! Howly Saints, 'twouldmake 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 thewhole truth. I says to me daughter Ellen, says I: 'Th' horrid basteis afther murtherin' the poor thing, ' says I; 'run out an' git anofficer!'"

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

"Ah, ye objec', do ye?" retorts the old lady. "Shure an' ye'd have beenafter objectin' if ye'd heard thim turrible blows that kilt her--thepoor, sufferin', swate crayter! I hope he gits all that's comin' tohim--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 betterexhibiting the cleverness of an old woman, which occurred in the year1901. A man named Orlando J. Hackett, of prepossessing appearance andmanners, was on trial, charged with converting to his own usemoney which had been intrusted to him for investment in realty. Thecomplainant was a shrewd old lady, who together with her daughter, hadhad a long series of transactions with Hackett which would have entirelyconfused the issue could the defence have brought them before the jury. The whole contention of the prosecution was that Hackett had receivedthe money for one purpose and used it for another. During preparationfor the trial the writer had had both ladies in his office and remembersmaking the remark:

"Now, Mrs. ------, don't forget that the charge here is that yougave Mr. Hackett the money to put into real estate. Nothing else iscomparatively 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 RecorderGoff, in Part II of the General Sessions. Mrs. ------ gave hertestimony with great positiveness. Mr. Lewis Stuyvesant Chanler, nowLieutenant-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!" repliedMrs. 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!" repeatedthe old lady wearily. 

"But, madam, you do not answer my question!" exclaimed Chanler. "Howmuch 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 heranswers be stricken out!" cried Chanler savagely. 

The old lady was assisted from the stand, but as she made her waywith difficulty towards the door of the court-room she could be heardrepeating 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 sevenyears in State's prison. 

To recapitulate, the quickness and positiveness of women make themordinarily better witnesses than men; they are vastly more difficult tocross-examine; their sex protects them from many of the most effectiveweapons of the lawyer, with the result that they are the more ready toyield to prevarication; and, even where the possibility of completeand unrestricted cross-examination is afforded, their tendency toinaccurately inferential reasoning, and their elusiveness in dodgingfrom one conclusion to another, render the opportunity of little value. 

In general, however, women's testimony differs little in qualityfrom that of men, all testimony being subject to the same three greatlimitations irrespective of the sex of the witness, and the conclusionsset forth above are merely the result of an effort on the part of thewriter to comment somewhat upon those small differences which, underclose scrutiny, may fairly be said to exist. These differences are quiteas noticeable at the breakfast-table as in the court-room; and areno more patent to the advocate than to the ordinary male animal whoseforehead habitually reddens when he hears the unanswerable reason which, in default of all others, explains and glorifies the mental action ofhis 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 proportionof female to male complainants in criminal cases would very likely proveto be about the same: In a very substantial proportion, therefore, ofall prosecutions for crime a woman is one of the chief actors. The lawof the land compels the female prisoner to submit the question ofher guilt or innocence to twelve individuals of the opposite sex; andpermits the female complainant to rehearse the story of her wrongsbefore the same collection of colossal intellects and adamantine hearts. 

The first thing the ordinary woman hastens to do if she be summoned toappear in a court of justice is not, as might be expected, to think overher 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 femaledefendant called to the bar of justice, whether it be for stealing apair of gloves or poisoning her lover. 

Yet how far does the element of sex defeat the ends of justice? Toanswer this question it is necessary to determine how far juries areliable to favor the testimony of a woman plaintiff merely because sheis a woman, and how far sympathy for a woman arraigned as a prisoner islikely to warp their judgment. 

As to the first, it is fairly safe to say that a woman is much morelikely to win a verdict in a civil court or to persuade the jurythat the prisoner is guilty in a criminal case than a man would be inprecisely similar circumstances. In most criminal prosecutions for theordinary run of felonies little injustice is likely to result from this. There is one exception, however, where juries should reach conclusionswith extreme caution, namely, where certain charges are brought by womenagainst members of the opposite sex. 

Here the jury is apt to leap to a conclusion, rendered easy by theattractiveness 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 characterof a plausible woman is enhanced tenfold in the court-room, where thelawyer is generally compelled to proceed upon the assumption that thewitness is a person of irreproachable life and antecedents. Almost anyyoung woman may create a favorable impression, provided her taste indress be not too crude, and, even when it is so, the jury are not apt todistinguish carefully between that which cries to Heaven and that whichis merely "elegant. "

When the complaining witness is a woman who has merely lost moneythrough the acts of the defendant, the jury are not so readily movedto accept her story in toto as when the crime charged is of a differentcharacter. They realize that the complainant, feeling that she has beeninjured, 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 witnessis 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 stealingher money by means of false pretences. They have been engaged to bemarried, and she has turned over her small savings to him to purchasethe diamond ring and perhaps set him up in a modest business of hisown. He has then fallen in love with some other girl, has broken theengagement, and the ring now adorns the fourth finger of her rival. Hermoney is gone. She is without a dot. She hurries with her parentsand loudly vociferating friends to the Essex Market Police Court, andsecures a warrant for the defendant on the theory that he defraudedher by "trick and device" or "false representations. " Usually the only"representation" has been a promise to marry her. Her real motive isrevenge upon her faithless fiance. In nine cases out of ten the fellowis a cad, who has deliberately deserted her after getting her money, butit is doubtful whether any real crime is involved. 

If the judge lets the case go to the jury it is a pure gamble as towhat the result will be, and it may largely turn on the girl's physicalattractiveness. If she be pretty and demure a mixture of emotionsis 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 coursehe didn't falsely pretend to do so; but if he deserted a woman like thathe ought to be in jail anyway. " Thus the argument that ought to acquitin fact may convict the defendant. If the rival also is pretty, hopelessconfusion results; while if the complainant be a homely girl the juryfeels that he must have intended to swindle her anyway, as he couldnever have honestly intended to marry her. Thus in any case the Lothariois apt to pay a severe penalty for his faithlessness. 

The man prosecuted by a woman, provided she cannot be persuaded towithdraw the charge against him, is likely to get but cold considerationfor 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 goodreputation the honest masculine citizen whom he has defrauded may verylikely have to whistle for his revenge. Many a scamp has gone free byproducing some sweetly demure maiden who faithfully swears that sheknows him to be an honest man. A blush at the psychological moment anda 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-brokenspinster. Like enough she may be only the merest acquaintance. 

The writer is not likely to forget a distinguished lawyer's instructionsto his client who happened also to be a childhood acquaintance--as shewas 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 becalm, very calm. And, Gwendolyn, above all things, be demure, Gwendolyn!Be demure!"

Gwendolyn was the demurest of the demure, letting her eyes fall beneaththeir pendant black lashes at the conclusion of each answer, and won hercase without the slightest difficulty. 

The unconscious or conscious influence of women upon the intellectsof jurymen has given rise to a very prevalent impression that it isdifficult if not impossible successfully to prosecute a woman for crime. This feeling expresses itself in general statements to the effectthat 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 womansupposed to have been wronged is not inspired in a jury by a womanaccused of crime. It is, indeed, true that juries are apt to be morelenient with women than with men, but this leniency shows itself not inacquitting them of the crimes charged against them, but of finding themguilty in lower degrees. 

Of course flagrant miscarriages of justice frequently occur, which, byreason of their widespread publicity in the press, would seem to justifythe almost universal opinion that women are immune from the penalitiesfor homicide. It is also true that such miscarriages of justice are morelikely when the defendant is a woman than if he be a man. 

One of these hysterical acquittals which give color to popularimpression, but which the writer believes to be an exception, was thecase of a young mother tried and acquitted for murder in the firstdegree, December 22, 1904. This young woman, whose history was patheticin the extreme, was shown clearly by the evidence to have deliberatelytaken the life of her child by giving it carbolic acid. The story wasa shocking one, yet the jury apparently never considered at all thepossibility of convicting her, but on retiring to the jury-room spenttheir time in discussing how much money they should present her on heracquittal. 

No better actor ever played a part upon the court-room stage than old"Bill" Howe. His every move and gesture was considered with referenceto its effect upon the jury, and the climax of his summing-up was alwaysaccompanied by some dramatic exhibition calculated to arouse sympathyfor his client. Himself an adept at shedding tears at will, he seemedable to induce them when needed in the lachrymal glands of the mosthardened culprit whom he happened to be defending. 

Mr. Wellman tells the story of how he was once prosecuting a woman forthe murder of her lover, whom she had shot rather than allow him todesert her. She was a parson's daughter who had gone wrong and thereseemed little to be said in her behalf. She sat at the bar the pictureof injured innocence, with a look of spirituality which she must haveconjured up from the storehouse of her memories of her father. Howe wasrather an exquisite so far as his personal habits were concerned, andallowed his finger-nails to grow to an extraordinary length. He hadarranged that at the climax of his address to the jury he would turnand, tearing away the slender hands of his client from her tear-stainedface, challenge the jury to find guilt written there. Wellman wastotally unprepared for this and a shiver ran down his spine when he sawHowe, his face apparently surcharged with emotion, turn suddenly towardshis client and roughly thrust away her hands. As he did so he embeddedhis finger-nails in her cheeks, and the girl uttered an involuntaryscream of nervous terror and pain that made the jury turn cold. 

"Look, gentlemen! Look in this poor creature's face! Does she looklike a guilty woman? No! A thousand times no! Those are the tears ofinnocence and shame! Send her back to her aged father to comfort his oldage! Let him clasp her in his arms and press his trembling lips to herhollow eyes! Let him wipe away her tears and bid her sin no more!"

The jury acquitted, and Wellman, aghast, followed them downstairs toinquire how such a thing were possible. The jurors said that they hadagreed to disclose nothing of their deliberations. 

"But, " explained Wellman, "you see, in a way I am your attorney, and Iwant to know how to do better next time. She had offered to plead guiltyif she could get off with twenty years!"

The abashed jury slunk downstairs in silence and the secret of theirdeliberations remains as yet untold. 

In spite of such cases, where guilty women have been acquitted throughmaudlin sentiment or in response to popular clamor, nothing could bemore erroneous than the idea that few women who are brought to the barof justice are made to suffer for their offences. Thus, although nowoman has suffered the death penalty in New York County in twenty years, the average number of convictions for crime is practically the samefor women as for men in proportion to the number indicted. The lastunreversed conviction of a woman for murder in the first degree was thatof Chiara Cignarale, in May, 1887. Her sentence was commuted to lifeimprisonment. Since then thirty women have been actually tried beforejuries for homicide with the following results:

 Convicted of murder in first degree. .. .. .. .. .. 0 Acquitted ". .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 7 " " murder in second degree. .. .. .. .. .. 3 " " manslaughter in first degree. .. .. 10 " " manslaughter in seconds degree. .. 10

 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 theresults of all the homicide trials for the past eight years irrespectiveof 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 acquittalsof women defendants averages twenty-two per cent greater than thepercentage for both sexes. A more elaborate table would show that wherethe defendants are men there are a greater proportionate numberof acquittals, but more verdicts in higher degrees. A verdict ofmanslaughter in the second degree in the case of a man charged withmurder is infrequent, but convictions of murder in the second degree areexceedingly common. 

The reason for the higher percentage of convictions of women is thatfewer women who commit crime are prosecuted than men, and that they arerarely indicted unless they are clearly guilty of the degree of crimecharged against them; while practically every man who is charged withhomicide and who, it seems, may be found guilty is indicted for murderin 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 yellowpress, but a great deal of it is genuine. The writer remembers attendinga dinner of gray-headed judges and counsellors during the trial of AnnaEliza, alias "Nan, " Patterson, where one would have supposed that thelightest subject of conversation would be not less weighty than theconstitutionality of an income tax, and finding to his astonishment thatthe only topic for which they showed any zest was whether "Nan" would befound guilty. 

One of the earliest, if not the earliest, record of a woman being heldfor 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 deathof Alice Colynbourgh. The quaint old report begins in Latin, but "thepleadings" are set forth in the language of the day, as follows:

"Agnes Archer, is that thy name? which answered, yes. .. . Thou artendyted that thou. .. . Feloney moderiste her with a knyff fyve tymes inthe 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. .. . Howwylte thou acquite the?. .. By God and by my neighbours of this town. "

The subsequent history of Agnes is lost in obscurity, but since she hadto procure but thirty-six compurgators who were prepared to swear thatthey believed her innocent, and as she was at liberty to choose theseherself from her native village of Winchelsea, it is probable that sheescaped. *

 * Cf. Thayer, as cited, supra. 

Fortunately the sight of a woman, save of the very lowest class, atthe bar of justice is rare. The number of cases where women of goodenvironment appear as defendants in the criminal courts in the course ofa year may be numbered upon the fingers of a single hand, and, althoughthe number of female defendants may equal ten per cent of the totalnumber of males, not one-tenth of the women brought to the barof justice have had the benefit of an honest bringing up and goodsurroundings. 

CHAPTER VIII. Tricks of the Trade

"Tricks and treachery, " said Benjamin Franklin, "are the practice offools that have not wit enough to be honest. " Had the kindly philosopherbeen familiar with all the exigencies of the criminal law he might haveadded a qualification to this somewhat general, if indisputably moral, maxim. Though it doubtless remains true as a guiding principle oflife that "Honesty is the best policy, " it would be an unwarrantableaspersion upon the intellectual qualities of the members of the criminalbar to say that the tricks by virtue of which they often get theirclients off are "the practice of fools. " On the contrary, observationwould seem to indicate that in many instances the wiser, or at leastthe more successful, the practitioner of criminal law becomes, the morenumerous and ingenious become the "tricks" which are his stock intrade. This must not be taken to mean that there are not high-minded andconscientious practitioners of criminal law, many of them financiallysuccessful, some filled with a noble humanitarian purpose, and somedrawn to their calling by a sincere enthusiasm for the vocation of theadvocate 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 thecivil, but they are more ingenious in conception, more lawless incharacter, 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 agenerally accepted principle that it is better that ninety-nine guiltymen should escape than that one innocent man should be convicted. However much persons of argumentative or philosophic disposition maycare to quarrel with this doctrine, they must at least admit that itwould doubtless appear to them of vital truth were they defendingsome trembling client concerning whose guilt or innocence they werethemselves somewhat in doubt. "Charity believeth all things, " andthe prisoner is entitled to every reasonable doubt, even from his ownlawyer. 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 inthe minds of the jury, he sometimes oversteps the bounds of propriety, appeals to popular prejudices and emotions, makes illogical deductionsfrom the evidence, and impugns the motives of the prosecution. Thedistrict attorney should be able to take care of himself, handlethe evidence in logical fashion, and tear away the flimsy curtain ofsentimentality hoisted by the defence. These are hardly "tricks" atall, but sometimes under the name of advocacy a trick is "turned" whichdeserves a much harsher name. 

Not long ago a celebrated case of murder was moved for trial after thedefendant's lawyer had urged him in vain to offer a plea of murder inthe second degree. A jury was summoned and, as is the usual custom insuch cases, examined separately on the "voir dire" as to their fitnessto serve. The defendant was a German, and the prosecutor succeededin keeping all Germans off the jury until the eleventh seat was to befilled, when he found his peremptory challenges exhausted. Then thelawyer 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 hehad been intimate, and his guilt of murder in the first degree wasdemonstrated upon the evidence beyond peradventure. At the conclusion ofthe case, the defendant not having dared to take the stand, the lawyerarose to address the jury in behalf of what appeared a hopelesscause. Even the old German in the back row seemed plunged in soporificinattention. After a few introductory remarks the lawyer raised hisvoice and in heart-rending tones began:

"In the beautiful county of Schleswig-Holstein sits a woman old andgray, waiting the message of your verdict from beyond the seas. " (Number11 opened his eyes and looked at the lawyer as if not quite sure ofwhat he had heard. ) "There she sits" (continued the attorney), "inSchleswig-Holstein, by her cottage window, waiting, waiting to learnwhether her boy is to be returned to her outstretched arms. " (Number 11sat up and rubbed his forehead. ) "Had the woman, who so unhappily mether death at the hands of my unfortunate client, been like thosewomen of Schleswig-Holstein--noble, sweet, pure, lovely women ofSchleswig-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, anobility of its own. " (Number 11 sat up and proudly expanded his chest. )

When, after about an hour or more of Schleswig-Holstein the defendant'scounsel surrendered the floor to the district attorney, the latter foundit quite impossible to secure the slightest attention from the eleventhjuror, who seemed to be spending his time in casting compassionateglances in the direction of the prisoner. In due course the juryretired, but had no sooner reached their room and closed the doorthan the old Teuton cried, "Dot man iss not guilty!" The other elevenwrestled with him in vain. He remained impervious to argument forseventeen hours, declining to discuss the evidence, and muttering atintervals, "Dot man iss not guilty!" The other eleven stood unanimouslyfor murder in the first degree, which was the only logical verdict thatcould possibly have been returned upon the evidence. 

At last, worn out with their efforts, they finally induced the oldTeuton to compromise with them on a verdict of manslaughter. Wearilythey straggled in, the old native of Schleswig-Holstein bringing up therear, bursting with exultation and with victory in his eye. 

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

"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, andthe 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 herarms before she died! The defendant was arraigned at the bar. Then forthe first time, and to the surprise and disgust of No. 11, he admittedin answer to the questions of the clerk that his parents were both deadand that he was born in Hamburg, a town for whose inhabitants the oldjuryman had, like others of his compatriots, a constitutional antipathy. 

The "tricks" of the trade as practised by the astute and unscrupulouscriminal lawyer vary with the stage of the case and the character ofthe crime charged. They are also adapted with careful attention to thedisposition, experience and capacity of the particular district attorneywho happens to be trying the case against the defendant. An illustrationof one of these occurred during the prosecution of a bartender forselling "spirituous liquors" without a proper license. He was defendedby an old war-horse of the criminal bar famous for his astuteness andability to laugh a case out of court. The assistant district attorneywho 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 wellknown a practitioner. He had personally conducted but very few cases, had an excessive conception of his own dignity, and dreaded nothing somuch as to appear ridiculous. Everything, except the evidence, favoredthe defendant, who, however, was, beyond every doubt, guilty of theoffence 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 forgetsomething. The lawyer for the defence made no cross-examination andcontented himself with smiling blandly as each witness left the stand. The youthful prosecutor became more and more nervous. He was surethat something was wrong, but he couldn't just make out what. At theconclusion 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, itwas "quite enough. "

"Let that be noted by the stenographer, " remarked the lawyer. "Now, ifyour Honors please, " he continued, addressing the three judges of theSpecial Sessions, "you all know how interested I am to see these younglawyers 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 saythat 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 givethe boys a chance--to give 'em a little experience. I shall not putmy client upon the stand. It is not necessary. The fact is, " turningsuddenly to the unfortunate assistant district attorney--"my client hasa license. " He drew from his pocket a folded paper and handed it tothe paralyzed young attorney with the harsh demand: "What do you say tothat?"

The assistant took the paper in trembling fingers and perused it as wellas he could in his unnerved condition. 

"Mr. District Attorney, " remarked the presiding justice dryly (which didnot lessen the confusion of the young lawyer), "is this a fact? Has thedefendant a license?"

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

"Defendant discharged!" remarked the court briefly. 

The prisoner stepped from the bar and rapidly disappeared though thedoor of the court-room. After enough time had elapsed to give him a goodstart and while another case was being called, the old lawyer leanedover to the assistant and remarked with a chuckle

"I am always glad to give the boys a chance--help 'em along--teach 'em alittle. That license was a beer license!"

BEFORE TRIAL

To begin at the beginning, whenever a person has been arrested, chargedwith crime, and has secured a criminal lawyer to defend him, the firstmove of the latter is naturally to try and nip the case in the bud byinducing the complaining witness to abandon the prosecution. In a vastnumber of cases he is successful. He appeals to the charity of theinjured party, quotes a little of the Scriptures and the "Golden Rule, "pictures the destitute condition of the defendant's family should he becast into prison, and the dragging of an honored name in the gutter ifhe should be convicted. Few complainants have ever before appeared in apolice court, and are filled with repugnance at the rough treatment ofprisoners and the suffering which they observe upon every side. Afterthey have seen the prisoner emerge from the cells, pale, hollow-eyed, bedraggled, and have beheld the tears of his wife and children as theycrowd around the husband and father, they begin to realize the horribleconsequences of a criminal prosecution and to regret that they ever tookthe steps which have brought the wrong-doer where he is. The districtattorney had not yet taken up the case; the prosecution up to this pointis of a private character; there are loud promises of "restitution" andfuture good behavior from the defendant, and the occasion is ripe forthe lawyer to urge the complainant to "temper justice with mercy" andwithdraw "before it be too late and the poor man be ruined forever. "

If the complainant is, however, bent on bringing the defendant tojustice and remains adamantine to the arguments of the lawyer andthe tears of the defendant's family connections, it remains for theprisoner's attorney to endeavor to get the case adjourned "until matterscan be adjusted"--to wit, restitution made if money has been stolen, or doctors' bills paid if a head has been cracked, with perhaps anotherchance of "pulling off" the complainant and his witnesses. Failing inan attempt to secure an adjournment, two courses remain open: first, topersuade the court that the matter is a trivial one arising out of pettyspite, is all a mistake, or that at best it is a case of "disorderlyconduct" (and thus induce the judge to "turn the case out" or inflictsome trifling punishment in the shape of a fine); or, second, if it beclear that a real crime has been committed, to clamor for an immediatehearing in order, if it be secured, to subject the prosecution'switnesses to a most exhaustive cross-examination, and thus get a clearidea of just what evidence there is against the accused. 

At the conclusion of the complainant's case, if it appear reasonablycertain that the magistrate will "hold" the prisoner for the action of asuperior court, the lawyer will then "waive further examination, " or, in other words, put in no defence, preferring the certainty of having toface a jury trial to affording in prosecution an opportunity to discoverexactly what defence will be put in and to secure evidence in advanceof the trial to rebut it. Thus it rarely happens in criminal cases ofimportance that the district attorney knows what the defence is to beuntil the defendant himself takes the stand, and, by "waiving furtherexamination" in the police court, the astute criminal attorney mayselect at his leisure the defence best suited to fit in with and rendernugatory the prosecution's evidence. 

The writer has frequently been told by the attorney for a defendant ontrial for crime that "the defence has not yet been decided upon. "In fact, such statements are exceedingly common. In many courts theattitude of all parties concerned seems to be that the defendant willput 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 takenagainst him. 

On the other hand, if a guilty defendant has been so badly advised asto give his own version of the case before the magistrate in the firstinstance, it requires but slight assiduity on the part of the districtattorney to secure, in the interval between the hearing and the jurytrial, ample evidence to rebut it. 

As illustrating merely the fertility and resourcefulness of somedefendants (or perhaps their counsel), the writer recalls a case whichhe tried in the year 1902 where the defendant, a druggist, was chargedwith manslaughter in having caused the death of an infant by filling adoctor's prescription for calomel with morphine. It so happened that twojars containing standard pills had been standing side by side upon anadjacent shelf, and, a prescription for morphine having come in at thesame time as that for the calomel, the druggist had carelessly filledthe morphine prescription with calomel, and the calomel prescriptionwith morphine. The adult for whom the morphine had been prescribedrecovered immediately under the beneficent influence of the calomel, butthe baby for whom the calomel had been ordered died from the effectsof the first morphine pill administered. All this had occurred in1897--five years before. The remainder of the pills had disappeared. 

Upon the trial (no inconsistent contention having been entered in thepolice court) the prisoner's counsel introduced six separate defences, to wit: That the prescription had been properly filled with calomeland that the child had died from natural causes, the following beingsuggested. 

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 asmall piece of pickle shortly before, the conjunction of the vegetableacid with the calomel had formed, in the child's stomach, a precipitateof corrosive sublimate, from which it had died. 

These were all argued with great learning. During the trial the boxcontaining the balance of the pills, which the defence contended werecalomel, unexpectedly turned up. It has always been one of the greatestregrets of the writer's life that he did not then and there challengethe defendant to eat one of the pills and thus prove the good faith ofhis defence. 

This was one of the very rare cases where a chemical analysis has beenconducted in open court. The chemist first tested a standard trademorphine pill with sulphuric acid, so that the jury could personallyobserve the various color reactions for themselves. He then took one ofthe contested pills and subjected it to the same test. The first pillhad at once turned to a brilliant rose, but the contested pill, beingantiquated, "hung fire, " as it were, for some seconds. As nothingoccurred, 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 pillslowly turned to a faint brown, changed to a yellowish red, and finallybroke into an ardent rose. The jury settled back into their seats withan audible "Ah!" and the defendant was convicted. 

Let us return, however, to that point in the proceedings where thedefendant has been "held for trial" by the magistrate. The prisoner'scounsel now endeavors to convince the district attorney that "thereis nothing in the case, " and continues unremittingly to work upon thefeelings of the complainant. If he finds that his labors are likelyto be fruitless in both directions, he may now seek an opportunity tosecure permission for his client to appear before the grand jury andexplain 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. Whatcan be done about it? Of course, if the case could be indefinitelyadjourned, the complainant or his chief witness might die or moveaway to some other jurisdiction, and if the indictment couldbe "pigeon-holed" the case might die a natural death of itself. Indictments, however, in New York County, whatever may be the caseelsewhere, 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 theextreme. The writer knows one criminal attorney who, if driven to thewall in the matter of excuses, will always serenely announce the deathof a near relative and the obligation devolving upon him to attend thefuneral. Another, as a last resort, regularly is attacked in open courtby severe cramps in the stomach. If the court insists on the trialproceeding, he invariably recovers. Of course, there are many legitimatereasons for adjourning cases which the prosecution is powerless tocombat. 

The most effective method invoked to secure delay, and one which itis practically useless for the district attorney to oppose, is anapplication "to take testimony" upon commission in some distant place. Here again it must be borne in mind that such applications are oftenlegitimate and proper and should be granted in simple justice to thedefendant. Although this right to take the testimony of absent witnessesis confined in New York State to the defendant and does not extend tothe prosecution, and is undoubtedly often the subject of much abuse, itnot infrequently is the cause of saving an innocent man. 

An example of this was the case of William H. Ellis, recently broughtinto the public eye through his connection with the treaty betweenthe United States Government and King Menelik of Abyssinia. Ellis wasaccused in 1901 by a young woman of apparently excellent antecedentsand character of a serious crime. Prior to his indictment a colored manemployed in his office (the alleged scene of the crime) disappeared. When the case was moved for trial, Ellis, through his attorneys, movedfor a commission to take the testimony of this absent, but clearlymaterial, witness in one of the remote States of Mexico--a proceedingwhich would require a journey of some two weeks on muleback, beyondthe railway terminus. The district attorney, in view of the peculiarlyopportune disappearance of this person from the jurisdiction, strenuously opposed the application and hinted at collusion betweenEllis and the witness. The application, however, was granted, and adelay of over a month ensued. During that time evidence was procured bythe counsel of the prisoner showing conclusively that the complainingwitness was mentally unsound and had made similar and groundless chargesagainst others. The indictment was at once dismissed. 

But such delays are not always so righteously employed. There is a storytold of a case where a notorious character was charged with the unusualcrime of "mayhem"--biting off another man's finger. The defendant'scounsel secured adjournment after adjournment--no one knew why. At lastthe case was moved for trial and the prosecution put in its evidence, clearly showing the guilt of the prisoner. At the conclusion of thePeople's testimony, the lawyer for the defendant arose and harshlystigmatized 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 witnesschair. 

"Open your mouth!" shouted the lawyer. 

The defendant did so. He had not a tooth in his head. The delay had beenadvantageously employed. 

The importance of mere delay to a guilty defendant cannot well beoverestimated. "You never can tell what may happen to knock a case onthe head. " For this reason a sufficiently paid and properly equippedcounsel 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 thegrand jury. 

3. Move to dismiss the indictment for lack of sufficient evidence beforethat 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 ofproceedings from some federal judge on the ground that his client isconfined without due process of law. 

All these steps he will take seriatim, and some cases have beendelayed for as much as two years by merely invoking "legitimate" legalprocesses. In point of fact it is quite possible for any defendantabsolutely to prevent an immediate trial provided he has the services ofvigilant counsel, for these are not the only proceedings of which he canavail himself. 

A totally distinct method is for the defendant to secure bail, and, after securing as many adjournments as possible, simply flee thejurisdiction. He will then remain away until the case is hopelesslystale, or he no longer fears prosecution. 

In default of all else he may go "insane" just before the case is movedfor trial. This habit of the criminal rich when brought to book fortheir misdeeds is too well known to require comment. All that isnecessary is for a sufficient number of "expert" alienists to declareit to be their opinion that the defendant is mentally incapable ofunderstanding the proceedings against him or of preparing his defence, and he is shifted off to a "sanitarium" until some new sensationoccupies 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 mustreturn for trial and submit the charge against him to a jury. But ifthis happens, even if he be guilty, all hope need not be lost. There arestill "tricks of the trade" which may save him from the clutches of thelaw. 

AT THE TRIAL

What can be done when at last the prisoner who has fought presistentlyfor adjournment has been forced to face the witnesses against him andsubmit the evidence to a jury of peers? Let us assume further thathe has been "out on bail, " with plenty of opportunity to prepare hisdefence and lay his plans for escape. 

When the case is finally called and the defendant takes his seat at thebar after a lapse of anywhere from six months to a year or more afterhis arrest, the first question for the district attorney to investigateis whether or no the person presenting himself for trial be in pointof fact the individual mentioned in the indictment. This is oftena difficult matter to determine. "Ringers"--particularly in themagistrates' courts--are by no means unknown. Sometimes they appear evenin the higher courts. If the defendant be an ex-convict or a well-knowncrook, his photograph and measurements will speedily remove all doubtupon the subject, but if he be a foreigner (particularly a Pole, Italianor a Chinaman), or even merely one of the homogeneous inhabitants ofthe densely-populated East Side of New York, it is sometimes a puzzlingproblem. "Mock Duck, " the celebrated Highbinder of Chinatown, who wasset free after two lengthy trials for murder, was charged not long agowith a second assassination. He was pointed out to the police by variousChinamen, arrested and brought into the Criminal Courts building foridentification, but for a long time it was a matter of uncertaintywhether friends of his (masquerading as enemies) had not surrendered asubstitute. Luckily the assistant district attorney who had prosecutedthis wily and dangerous Celestial in the first instance was able toidentify him. 

Many years ago, during the days of Fernando Wood, a connection of hiswas reputed to be the power behind the "policy" business in New YorkCity--the predecessor of the notorious Al Adams. A "runner" belongingto the system having been arrested and policy slips having been foundin his possession, the reigning Policy King retained a lawyer of eminentrespectability to see what could be done about it. The defendant was aparticularly valuable man in the business and one for whom his employerdesired to do everything in his power. The lawyer advised the defendantto plead guilty, provided the judge could be induced to let him off witha fine, which the policy King agreed to pay. Accordingly, the lawyervisited the judge in his chambers and the latter practically promisedto inflict only a fine in case the defendant, whom we will call, outof consideration for his memory, "Johnny Dough, " should plead guilty. Unfortunately for this very satisfactory arrangement, the judge, nowlong since deceased, was afflicted with a serious mental trouble whichoccasionally manifested itself in peculiar losses of memory. When"Johnny Dough, " the Policy King's favorite, was arraigned at the barand, in answer to the clerk's interrogation, stated that he withdrew hisplea of "not guilty" and now stood ready to plead "guilty, " the judge, to the surprise and consternation of the lawyer, the defendant, and thelatter's assembled friends, turned upon him and exclaimed:

"Ha! So you plead guilty, do you? Well, I sentence you to thepenitentiary for one year, you miserable scoundrel!"

Utterly overwhelmed, "Johnny Dough!" was led away, while his lawyer andrelatives retired to the corridor to express their opinion of the court. About three months later the lawyer, who had heard nothing furtherconcerning the case, happened to be in the office of the districtattorney, 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 wentthere. "

"What do you mean?" inquired the lawyer. "I heard him sentenced to ayear myself!"

"I can't help that, " said the district attorney. "The other day aworkingman 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 producedthe visitor exclaimed: 'That Johnny Dough! That ain't him at all, atall!' The visitor departed in disgust. We instituted an investigationand 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 partof it. You see, the 'ringer' says he was to get two hundred dollars permonth for each month of Dough's sentence which he served. The prisonauthorities have refused to keep him any longer, and now he is suingthem for damages, and is trying to get a writ of mandamus to compel themto take him back and let him serve out the rest of the sentence!"

Probably the most successful instance on record of making use of adummy occurred in the early stages of the now famous Morse-Dodge divorcetangle. Dodge had been the first husband of Mrs. Morse, and from himshe had secured a divorce. A proceeding to effect the annulment of hersecond marriage had been begun on the ground that Dodge had never beenlegally served with the papers in the original divorce case--in otherwords, to establish the fact that she was still, in spite of hermarriage to Morse, the wife of Dodge. Dodge appeared in New York andswore that he had never been served with any papers. A well-known andreputable lawyer, on the other hand, Mr. Sweetser, was prepared to swearthat he had served them personally upon Dodge himself. The matter wassent by the court to a referee. At the hour set for the hearing inthe referee's office, Messrs. Hummel and Steinhardt arrived early, incompany with a third person, and took their seats with their backs to awindow 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 waslate. Presently he appeared, entered the office hurriedly, bowed tothe referee, apologized for being tardy, greeted Messrs. Steinhardt andHummel, 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. Nothinghad been said, no representations had been made, and Sweetser hadvoluntarily walked into a trap. 

The attempt to induce witnesses to identify "dummies" is frequentlymade by both sides in criminal cases, and under certain circumstancesis generally regarded as professional. Of course, in such instances nofalse suggestions are made, the witness himself being relied upon to"drop the fall. " In case he does identify the wrong person, he has, ofcourse, invalidated his entire testimony. 

Not in one case out of five hundred, however, is any attempt madeto substitute a "dummy" for the real defendant, the reason being, presumably, the prejudice innocent people have against going to prisoneven for a large reward. The question resolves itself, therefore, intohow to get the client off when he is actually on trial. First, how canthe sympathies of the jury be enlisted at the very start? Weeping wivesand wailing infants are a drug on the market. It is a friendless manindeed, even if he be a bachelor, who cannot procure for the purposes ofhis trial the services of a temporary wife and miscellaneous collectionof children. Not that he need swear that they are his! They aremerely lined up along a bench well to the front of the court-room--theimagination of the juryman does the rest. 

A defendant's counsel always endeavors to impress the jury with the ideathat all he wants is a fair, open trial--and that he has nothing in theworld to conceal. This usually takes the form of a loud announcementthat 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 toprocure a disagreement, this offer is a comparatively safe one for thedefendant to make, since the prosecutor, who must secure unanimity onthe part of the jury (at least in New York State), can afford to take nochances of letting an incompetent or otherwise unfit talesman slip intothe box. Caution requires him to examine the jury in every importantcase, and frequently this ruse on the part of the defendant makes itappear 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 allhomicide cases where he appeared for the defence. 

The next step is to slip some juryman into the box who is likely for anyone of a thousand reasons to lean toward the defence--as, for example, one who is of the same religion, nationality or even name as thedefendant. The writer once tried a case where the defendant was a Hebrewnamed Bauman, charged with perjury. Mr. Abraham Levy was the counsel forthe defendant. Having left an associate to select the jury the writerreturned to the courtroom to find that his friend had chosen for foremana Hebrew named Abraham Levy. Needless to say, a disagreement of the jurywas the almost inevitable result. The same lawyer not many years agodefended a client named Abraham Levy. In like manner he managed to getan Abraham Levy on the jury, and on that occasion succeeded in gettinghis 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 ablood-thirsty Italian shortly after the assassination of PresidentMcKinley, the defence was interposed that a quarrel had arisen betweenthe two men owing to the fact that the deceased had loudly proclaimedanarchistic doctrines and openly gloried in the death of the President, that the defendant had expostulated with him, whereupon the deceased hadviolently attacked the prisoner, who had killed him in self-defence. 

The whole thing was so thin as to deceive nobody, but Mr. Purdy, aseach 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 dutyto my unfortunate client that impels me to it--but have you any sympathywith anarchy or with assassination?"

The talesman, of course, inevitably replied in the negative. 

"Thank you, sir, " Purdy would continue: "In that event you are entirelyacceptable!"

Not long ago two shrewd Irish attorneys were engaged in defending aclient charged with an atrocious murder. The defendant had the mostHebraic cast of countenance imaginable, and a beard that reached tohis waist. Practically the only question which these lawyers put to thedifferent talesmen during the selection of the jury was, "Have you anyprejudice against the defendant on account of his race?" In due coursethey succeeded in getting several Hebrews upon the jury who managed inthe jury-room to argue the verdict down from murder to manslaughter inthe second degree. As the defendant was being taken across the bridge tothe Tombs he fell on his knees and offered up a heartfelt prayer such ascould only have emanated from the lips of a devout Roman Catholic. 

Lawyers frequently secure the good-will of jurors (which may lastthroughout the trial and show itself in the verdict) by some happyremark during the early stages of the case. During the Clancy murdertrial each side exhausted its thirty peremptory challenges and also theentire panel of jurors in filling the box. At this stage of the case theforeman became ill and had to be excused. No jurors were left except onewho had been excused by mutual consent for some trifling reason, andwho out of curiosity had remained in court. He rejoiced in the name ofStone. Both sides then agreed to accept him as foreman provided he wasstill willing to serve, and this proving to be the case he triumphantlymade his way towards the box. As he did so, the defendant's counselremarked: "The Stone which the builders refused is become the head Stoneof the corner. " The good-will generated by this meagre jest stood himlater in excellent stead. 

In default of any other defence, some criminal attorneys have been knownto seek to excite sympathy for their helpless clients by appearing incourt so intoxicated as to be manifestly unable to take care of thedefendant's interests, and prisoners have frequently been acquittedsimply by virtue of their lawyer's obvious incapacity. The attitudeof 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 appealsto the juryman's sympathies and he overlooks the fact that by his actionthe prosecution is given no "show" at all. 

Generally speaking, the advice credited to Mr. Lincoln, as being givenby him to a young attorney who was about to defend a presumably guiltyclient, is religiously followed by all criminal practitioners:

"Well, my boy, if you've got a good case, stick to the evidence; ifyou've got a weak one, go for the People's witnesses; but--if you've gotno 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 oreven 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-oldprofessional thief, is always "this poor boy, " and, as he is notcompelled by law to testify, and as his failure to do so must not beweighed against him by the jury, he frequently walks out of court a freeman, because the jury believe from the lawyer's remarks that he is infact a mere youthful offender of hitherto good reputation and deservesanother chance. 

By all odds the greatest abuse in criminal trials lies in the opendisregard of professional ethics on the part of lawyers who deliberatelysupply of themselves, in their opening and closing addresses to thejury, what incompetent bits of evidence, true or false, they have notbeen able to establish by their witnesses. There is no complete cure forthis, for even if the judge rebukes the lawyer and directs the jury todisregard what he has said as "not being in the evidence, " the damagehas been done, the statement still lingering in the jury's mind withoutany opportunity on the part of the prosecutor to disprove it. There isno antidote for such jury-poison. A shyster lawyer need but to keep hisclient off the stand and he can saturate the jury's mind with anyfacts concerning the defendant's respectability and history whichhis imagination is powerful enough to supply. On such occasions anex-convict with no relatives may become a "noble fellow, who, ratherthan have his family name tainted by being connected with a criminaltrial, is willing to risk even conviction"--"a veteran of the gloriouswar which knocked the shackles from the slave"--"the father of ninechildren"--"a man hounded by the police. " The district attorney mayshout himself hoarse, the judge may pound his gavel in righteousindignation, the lawyer may apologize because in the zeal with whichhe feels inspired for his client's cause he perhaps (which only makesmatters worse) has overstepped the mark--but some juryman may supposethat, after all, the prisoner is a hero or nine times a father. 

There is one notorious attorney who poses as a philanthropist and whoinvariably promises the jury that if they acquit his client he willpersonally give him employment. If he has kept half of his promiseshe must by this time have several hundred clerks, gardeners, coachmen, choremen and valets. 

In like manner attorneys of this feather will deliberately state to thejury that if the defendant had taken the stand he would have testifiedthus and so; or that if certain witnesses who have not appeared (and whoperhaps in reality do not exist at all) had testified they wouldhave established various facts. Such lawyers should be locked up ordisbarred; courts are powerless to negative entirely their dishonesty inindividual cases. 

Clever counsel, of course, habitually make use of all sorts of appealsto 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. Hislawyer managed to get a veteran on the jury. Mr. Osborne is a native ofNorth Carolina. The defendant's counsel, to use his own words, "workedthe war for all it was worth, " and the defendant lived, bled and diedfor his country and over and over again. In summing up the case, theattorney 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 fieldof battle when the ancestors of Mr. Osborne were raising their handsagainst the flag!" For once Mr. Osborne had no adequate words to reply. 

By far the most effective and dangerous "trick" employed by guiltydefendants is the deliberate shouldering of the entire blame by one oftwo persons who are indicted together for a single offence. A commonexample of this is where two men are caught at the same time bearingaway between them the spoil of their crime and are jointly indictedfor "criminally receiving stolen property. " Both, probably, are "sidepartners, " equally guilty, and have burglarized some house or store ineach other's company. They maybe old pals and often have served timetogether. They agree to demand separate trials, and that whoever isconvicted first shall assume the entire responsibility. Accordingly, A. Is tried and, in spite of his asseveration that he is innocent and thatthe "stuff" was given him by a strange man, who paid him a dollar totransport it to a certain place, is properly convicted. * The bargainholds. B. 's case is moved for trial and he claims never to have seenA. In his life before the night in question, and that he volunteered tohelp the latter carry a bundle which seemed to be too heavy for him. Hecalls A. , who testifies that this is so--that B. , whom he did not knowfrom Adam, tendered his services and that he availed himself of theoffer. The jury are usually prone to acquit, as the weight of evidenceis clearly with the defendant. 

 * The defence that the accused innocently received the stolen propertyinto his possession was a familiar one even in 1697, as appears by thefollowing record taken from the Minutes of the Sessions. It would seemthat it was even then received with some incredulity. 

CITY & COUNTY OF NEW YORK: ss:

At a Meeting of the Justices of the Peace for the said City & County atthe City Hall of the said City on Thursday the 10th day of June Anno Dom1697. 

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 forye said City and County Informed the Kings justices that a peace ofLinnen Ticking was taken out of his Shop this Morning. That he wasinformed a Negro Slave Named Joe was seen to take the same whereupon thesaid Jacobus Van Cortlandt Pursued the said, Joe and apprehended him andfound the said peice of ticking in his custody and had the said NegroJoe penned in the cage, upon which the said Negro man being broughtbefore the said Justices said he did not take the said ticking out ofthe Shop window but that a Boy gave itt to him, but upon Examination ofSundry other Evidence itt Manifestly Appeareth to the said Justices thatthe said Negro man Named Joe, did steal the said piece of linnen tickingout of the Shop Window of the said Jacobus Van Cortlandt and thereupondoe order the punishment of the said Negro as follows vigt. That thesaid Negro man Slave Named Joe shall be forthwith by the Common whipperof the City or some of the Sheriffs officers art the Cage be strippedNaked from the Middle upwards and then and there shall be tyed to thetayle of a Cart and being soe stripped and tyed shah be Drove Round theCity and Receive upon his naked body art the Corner of each Street ninelashes until he return to the place from whence he sett out and that heafterwards Stand Committed to the Sheriffs custody till he pay his fees. 

Many changes are rung upon this device. There is said to have been acase in which the defendant was convicted of murder in the first degreeand sentenced to be executed. It was one of circumstantial evidence andthe verdict was the result of hours of deliberation on the part of thejury. The prisoner had stoutly denied knowing anything of the homicide. Shortly before the date set for the execution, another man turned up whoadmitted that he had committed the crime and made the fullest sort ofa confession. A new trial was thereupon granted by the Appellate Court, and the convict, on the application of the prosecuting attorney, wasdischarged and quickly made himself scarce. It then developed that apartfrom the prisoner's own confession there was practically nothingto connect him with the crime. Under a statute making such evidenceobligatory 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 withthe forgery of a large number of checks, many of them for substantialamounts, her husband made an almost successful attempt to procure heracquittal 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 afellow criminal who was interested in securing Parker's release. Indue course she took this supposed friend into her confidence, made acomplete confession, and illustrated her skill by impromptu copies ofher forgeries from memory upon a sheet of pad paper. This the detectivesecured and then arrested her. She was indicted for forging the nameAlice Kauser to a check upon the Lincoln National Bank. On her trialshe denied having done so, and claimed that the detective had found thesheet containing her supposed handwriting in her husband's desk, andthat she had written none of the alleged copies upon it. The door of thecourtroom then opened, and James Parker was led to the bar and pleadedguilty to the forgery of the check in question. (For the benefit of thelayman it should be explained that as a rule indictments for forgeryalso contain a count for "uttering. ") He then took the stand, admittedthat he had not only uttered but had also written the check, and sworethat it was his handwriting which, appeared on the pad. 

The prosecutor was nonplussed. If he should ask the witness to provehis capacity to forge such a check from memory on the witness-stand, thelatter, as he had ample time to practise the signature while in prison, would probably succeed in doing so. If, on the other hand, he should notask him to write the name, the defendant's counsel would argue to thejury that he was afraid to do so. The district attorney therefore tookthe bull by the horns and challenged Parker to make from memory a copyof the signature, and, much as he had suspected, the witness produceda very good one. An acquittal seemed certain, and the prosecutor wasat his wit's end to devise a means to meet this practical demonstrationthat the husband was in fact the forger. At last it was suggested to himthat it would be comparatively easy to memorize such a signature, andacting on this hint he found that after half an hour's practice he wasable to make almost as good a forgery as Parker. When therefore it cametime for him to address the jury he pointed out the fact that Parker'sperformance on the witness-stand really established nothing at all--thatany one could forge such a signature from memory after but a fewminutes' practice. 

"To prove to you how easily this can be done, " said he, "I willvolunteer 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 hercounsel's arm and cried out: "For God's sake, don't let him do it!" Thelawyer objected, the objection was sustained, but the case was saved. Why, the jury argued, should the lawyer object unless the making of sucha forgery were in fact an easy matter?

In desperate cases, desperate men will take desperate chances. Thetraditional instance where the lawyer, defending a client charged withcausing the death of another by administering poisoned cake, met theevidence of the prosecution's experts with the remark: "This is myanswer to their testimony!" and calmly ate the balance of the cake, istoo familiar to warrant detailed repetition. The jury retired to thejury-room and the lawyer to his office, where a stomach pump quickly puthim out of danger. The jury is supposed to have acquitted. 

Such are some of the tricks of the legal trade as practised in itscriminal branch. Most of them are unsuccessful and serve only to relievethe gray monotony of the courts. When they achieve their object they addto the interest of the profession and teach the prosecutor a lesson bywhich, perhaps, he may profit in the future. 

CHAPTER IX. What Fosters Crime

To lack of regard for law is mainly due the existence of crime, for aperfect respect for law would involve entire obedience to it. Yet crimecontinues and from time to time breaks forth to such an extent asto give ground for a popular impression that it is increasing outof proportion to our growth as a nation. Now, while it may be fairlyquestioned whether there is any actual increase of crime in the UnitedStates, and while, on the contrary, observation would seem to showan actual decrease, not only in crimes of violence, but in all majorcrimes, there nevertheless exists to-day a widespread contempt for thecriminal law which, if it has not already stimulated a general increaseof criminal activity, is likely to do so in the future. This contemptfor the law is founded not only upon actual conditions, but also uponbelief in conditions erroneously supposed to exist, which is fostered bycurrent literature and by the sensational press. 

Thus, as has already been pointed out, while it is popularly believedthat women are almost never convicted of crime, and particularly ofhomicide, the fact is, at least in New York County, that a much greaterproportion of women charged with murder are convicted than of mencharged with the same offence. To read the newspapers one would supposethat the mere fact that the defendant was a female instantly paralyzedthe minds of the jury and reduced them to a state of imbecility. Theinevitable result of this must be to encourage lawlessness among thelower orders of women and to lead them to look upon arrest as a mereformality without ultimate significance. The writer recalls trying formurder a negress who had shot her lover not long after the discharge ofa 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 juryto reach a verdict in the Patterson case, but as an illuminatingillustration of the concrete and immediate effect of all actual orsupposed failures of justice. 

A belief that the course of criminal justice is slow and uncertain, thatthe chances are all in favor of the defendant, and that he has butto resort to technicalities to secure not only indefinite delay butgenerally ultimate freedom, breeds an indifference amounting almost toarrogance among law-breakers, powerful and otherwise, and a painful yethopeless conviction among honest men that nothing can prevent the wickedfrom flourishing. Honesty seems no longer even a good policy, andthe young business man resorts to sharp practices to get ahead of hisunscrupulous competitor. In some localities the uncertainty and delayattendant upon the execution of the law is the alleged and maybethe actual, cause of the community crime of lynching. Even where theadministration of justice is seen at its best many people who have beenwronged believe that there is so little likelihood that the offenderwill after all be punished that the cheapest and easiest course is tolet the matter drop. All this gives aid and comfort to the powers ofdarkness. 

The widespread impression as to the uncertainty of the law is notentirely a misapprehension. "We have long since passed the period whenit is possible to punish an innocent man. We are now struggling with theproblem whether it is any longer possible to punish the guilty. " It isa melancholy fact that at the present time "penal statutes and proceduretend more to defeat and retard the ends of justice than to protect therights of the accused. "

The subject of criminal-law reform is too extensive to be discussedhere even superficially, but historically the explanation of existingconditions is simple enough. The present overgrown state of the criminallaw is the direct result of our exaggerated regard for personal liberty, coupled with a wholesale adoption of the technicalities of English lawinvented when only such technicalities could stand between the minoroffender and the barbarous punishments of a bygone age. We forget thatthe community is composed of individuals, and we tend to disregard itsinterests for those of any particular individual who happens to be aprisoner at the bar. We revolted from England and incidentally from hersystem of administering the criminal law, by which the defendant couldhave no voice at his own trial, where practically every crime waspunishable with death, and where only the Crown could produce andexamine witnesses. Every one will have to agree that the English systemwas 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 ourown system we adopted those humane expedients for evading the law whichwere only justified by the existing penalties attached to convictionsfor crime, --and then discarded the penalties. We were through withtyrants once and for all. The Crown had always been opposed to thedefendant and the Crown was a tyrant. We naturally turned with sympathytowards the prisoner. 

We gave him the right of appeal on all matters of law through all thecourts 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 prisonerwas convicted he could go on and test the case all along the line, --ifhe was acquitted the People had to rest satisfied. We stopped the mouthof the judge and made it illegal for him to "sum up" the case or discussthe facts to any extent. We clipped the wings of the prosecutor andallowed him less latitude of expression than an English judge. Then wegazed on the work of our intellects and said it was good. If an ignorantjury 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-nineguilty men should escape than that one innocent man should be convicted. Yes, better for whom? If another murderer, about whose guilt the highestcourt in one of the States said there was no possible doubt, securedthree new trials and was finally acquitted on the fourth, it merelydemonstrated how perfectly we safeguarded the rights of the individual. 

The result is that we have unnecessarily fettered ourselves, havefurnished a multitude of technical avenues of escape to wrong-doers, and have created a popular contempt for courts of justice, which showsitself in the sentimental and careless verdicts of juries, in a lackof public spirit, and in an indisposition to prosecute wrong-doers. Inaddition, the impression sought to be conveyed by the yellow pressthat our judiciary is corrupt and that money can buy anything--evenjustice--leads the jury in many cases to feel that their presence ismerely a formal concession to an archaic procedure and that their oathshave no real significance. 

The community, the "People, " have a sufficiently hard task to securejustice at any criminal trial. On the one hand is the abstractproposition that the law has been violated, on the other sits a humanbeing, ofttimes contrite, always an object of pity. He is presumedinnocent, he is to be given the benefit of every reasonable doubt. Hehas the right to make his own powerful appeal to the jury and to havethe services of the best lawyer he can secure to sway their emotionsand their sympathies. If the prosecutor resorts to eloquence he isstigmatized as "over-zealous" and as a "persecutor. " If a plainly guiltydefendant be acquitted, not the trampled ideal of justice, but thevision of a liberated prisoner rejoicing in his freedom hovers in thetalesman's dreams. 

So far so good; we can afford to stand by a system which in the long runhas served us fairly well. But an occasional evil, an evil which whenit occurs is productive of great harm and serves to give color to thepopular opinion of criminal law, begins only when the lawyers have hadtheir opportunity for elocution. At the conclusion of the chargethe defendant's attorney proceeds to put the judge through what isfamiliarly known as "a course of sprouts. " He makes twenty or thirty"requests to charge the jury" on the most abstract propositions of lawwhich his fertile mind can devise, --relevant or irrelevant, applicableor inapplicable to the facts, --and the judge is compelled to decidefrom the bench, without opportunity for reflection, questions which theattorney has labored upon, perchance, for weeks. If he guesses wrong, the lawyer "excepts" and the case may be reversed on appeal. This is nota test of the defendant's guilt or innocence, but a test of the abstractlearning and quickness of the presiding judge. 

It is generally believed that appellate courts are prone to reversecriminal cases on purely technical grounds. Whether this belief be wellfounded or ill, its wide acceptance as fact is fertile in bringing thelaw into disrepute. * Justice to be effective must be not only sure butswift. An "iron hand" cannot always compensate for a "leaden heel". 

 *Cf. "Criminal Law Reform, " G. W. Alger, "The Outlook, " June, 1907. Alsoarticle having same title in "Moral Overstrain, " by same author. See also, by Hon. C. F. Amidon, "The Quest for Error and the doing ofJustice, " 40 American Law Rev. 681, and article on same subject in "TheOutlook" for June, 1906. 

It is probably true that in some of the States such a tendency existsand 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 andMassachusetts. The Appellate Division, First Department, and Court ofAppeals in New York are distinctly opposed to reversing criminal caseson technical grounds and are prone to disregard trivial error wherethe guilt of the defendant is clear. The writer can recall no recentcriminal case where the district attorney's office has felt aggrieved atthe action of the higher courts, and on the contrary believes thattheir action is generally based on broad principles of public policy andcommon-sense. 

During the year 1905 the district attorney of New York County defendedforty-seven appeals from convictions in criminal cases in the AppellateDivision. Of these convictions only three were reversed. He defendedeighteen in the Court of Appeals, of which only two were reversed. Oneof the writer's associates computed that he had secured, during a fouryears' term of office, twenty-nine convictions in which appeals had beentaken. Of these but two were reversed, one of them immediately resultingin the defendant's re-conviction for the same crime. The other is stillpending and the defendant awaiting his trial. Certainly there is littlein the actual figures to give color to the impression that the criminalprofits 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 caseis due to the carelessness or inefficiency of the prosecuting officer ortrial 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 atechnicality, does more harm than can easily be estimated. That is theone case everybody knows about, the one the papers descant upon, the onethat cheers the heart of the grafter and every criminal who can affordto pay a lawyer. 

Yet the evil influence of the reversal of a conviction on appeal, however much it is to be deprecated, is as nothing compared with adeliberate 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 whowitness 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 blackand deserted building, searched it from roof to cellar, and found themarauders locked in one of the rooms. He called upon them to open, received no reply, yet without hesitation and without knowing what theconsequences to himself might be, smashed in the door and apprehendedthe two men. One was found with a large bundle of skeleton keys in hispocket and several candles, while a partially consumed candle layupon the floor. In the police court they pleaded guilty to a charge ofburglary, and were promptly indicted by the grand jury. 

At the trial they claimed to have gone into the house to sleep, saidthey had found the bunch of keys on the stairs, denied having thecandles at all or that they were in a room on the top story, andasserted that they were in the entrance hall when arrested. 

The story told by the defendants was so utterly ridiculous that one ofthe two could not control a grin while giving his version of it on thewitness stand. The writer, who prosecuted the case, regarded the trialas a mere formality and hardly felt that it was necessary to sum up theevidence at all. 

Imagine his surprise when an intelligent-looking jury acquitted both thedefendants after practically no deliberation. Both had offered to pleadguilty to a slightly lower degree of crime before the case was moved fortrial. 

These two defendants, who were neither insane nor degenerates, consortedwith others in Bowery hotels and saloons, --incubators of crime. Whateffect could such a performance have upon them and their friends save toinculcate a belief that they were licensed to commit as many burglariesas they chose? They had a practical demonstration that the law was "nogood" and the system a failure. If they could beat a case in which theyhad already pleaded guilty, what could they not do where the evidencewas less obvious? They were henceforth immune. Who shall say how manyembryonic law-breakers took courage at the story and started upon anexperimental attempt at crime?

The news of such an acquittal must instantly have been carried to theTombs, where every other guilty prisoner took heart and prepared anewhis defence. Those about to plead guilty and throw themselves uponthe mercy of the court abandoned their honest purpose and devised someperjury instead. Criminals almost persuaded that honesty was the bestpolicy 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 amiscarriage of justice upon a young, honest and zealous officer. First, all his good work, his bravery, his conscientious effort at safeguardingthe sleeping public had been disregarded, tossed aside with a sneer, and had gone for naught. The jury had stamped his story as a lie andstigmatized him, by their action, as a perjurer. They had chosen twoprofessional criminals as better men. His whole conduct of the caseinstead of being commended as meritorious had resulted in a solemnpublic declaration that he was not worthy of credence and that he hadattempted wilfully to railroad to State's prison two innocent men. Inother words, that he ought to be there himself. What was the use oftrying to do good work any longer? He might just as well loiter inan 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 wouldinevitably be preferred to him by a jury of their peers. 

What must have been the effect on the court officers, the witnesses, thedefendants out on bail, the complainants, the spectators? That the wholebusiness was nonsense and rot! That the jury system was ridiculous. Thatthe jurymen were either crooks or fools. That the only people who werenot insulted and sneered at were the lawbreakers themselves. That if twosuch rogues were to be set free all the other jailbirds might as wellbe let go. That an honest man could whistle for his justice and mightbetter straightway put on his hat and go home. That the only way topunish a criminal was to punish him yourself--kill him if you got thechance or get the crowd to lynch him. That if a thief stole from youthe shrewdest thing to do was to induce him as a set-off to give you theproceeds of his next thieving. That it was humiliating to live in a townwhere a self-confessed rascal could snap his fingers at the law and gounwhipped of justice. 

The jury's action must have been due either to a wilful disregard oftheir oath or an entire misconception of it. Assuming that the jurydeliberately declined to obey the law, the whole twelve electedto become, and thereby did become, lawbreakers. They disqualifiedthemselves forever as talesmen. No prosecutor in his senses would movea case before a jury which numbered any one of them. They had arraignedthemselves upon the side, and under the standard, of crime. They becameaccessories after the fact. If on the other hand they misconceived thepurpose for which they were there the performance was a shocking exampleof what is possible under present conditions. 

Just as there are three general classes of wrongs, so there are threegeneral and varyingly effective forms of restraint against theirperpetration. First there is the moral control exerted by what isordinarily called conscience, secondly there is the restraint whicharises out of the apprehension that the commission of a tort will befollowed by a judgment for damages in a civil court, and lastly thereis the restraint imposed by the criminal law. All these play their part, separately or in conjunction. For some men conscience is a sufficientbarrier to crime or to those acts which, while equally reprehensible, are not technically criminal; for others the possibility of pecuniaryloss is enough to keep them in the straight and narrow way; but for alarge proportion of the community the fear of criminal prosecution, with implied disgrace and ignominy, forfeiture of citizenship, andconfinement in a common jail is about the only conclusive reason fordoing unto others as they would the others should do unto them. Werethe criminal law done away with in our present state of civilization, religion, ethics and civil procedure would be absolutely inefficaciousto prevent anarchy. It is as imperative to the ordinary citizen to knowthat if he steals he will be locked up as it is for the child to knowthat if he puts his hand into the fire it will be burned. The acquittalof every thief breeds another, and the unpunished murder is an incentivefor a dozen similar homicides. 

Crimes are either deliberate or the result of accident or impulse. Thelast class may rise to a high degree of enormity, such as manslaughter, but these crimes are rarely possible of restraint. The perpetratordoes 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, orwhat will be its consequences, if it be a crime. So far as such actsare concerned those who commit them are hardly criminals in the ordinarysense, and no influence in the world is able to prevent them. 

The question is how far these different kinds of restraint operate uponthe community as a whole in the prevention of deliberate crime. Clearlythe fear of pecuniary loss through actions brought to judgment in thecivil courts is practically nil. Most persons who set out to commitcrime have no bank account, the absence of one being generally whatleads them into a criminal career. 

The writer has no intention of attempting to discuss or estimate theefficacy of religion or ethics as restraining influences. A certainlimited proportion of the community would not commit crime under anycircumstances. It is enough for them that the act is forbidden by theState even if it be not really wrong from their own personal point ofview. Side by side with these very good people are a very large numberwho wear just as fashionable clothing, have the same friends, attendthe same churches, but who would commit almost any crime so long as theywere sure of not being caught. If we had no criminal law we should soondiscover who were the hypocrites. 

But for an overwhelming majority of the community something morepractical than either religion, ethics, or philosophy is necessary tokeep them in order. They must be convinced that the transgressor willsurely be punished, --not some time, not next year or the year after, butnow. Not, moreover, that his way will be merely hard; but that he willbe put in stripes and made to break stones. 

Hence the necessity for a vigorous and adequate criminal law andprocedure which shall command the respect and loyalty of the community, administered by a fearless judiciary who will hold jurors to a rigid andconscientious obedience to their oath. 

There is nothing sacred about an archaic criminal procedure which insome respects is less devised for the protection of the community thanfor the exculpation of the guilty. The portals of liberty would notfall down or the framers of the constitution turn in their graves if theperemptory challenges allowed to both sides in the selection of a jurywere reduced to a reasonable number, or if persons found guilty of crimeafter due process of law were compelled to stay in jail until theirappeals were decided, instead of walking the streets free as air undera certificate of "reasonable doubt" issued by some judge who personallyknew nothing of the actual trial of the case. As things stand to-day, athief caught in the very act of picking a pocket in the night-time maychallenge arbitrarily the twenty most intelligent talesmen called to sitas jurors in his case. Does such a practice make for justice? It iseven possible that the sacred bird of liberty would not scream if elevenjurors, instead of twelve, were permitted to convict a defendant or sethim free, while the question of how far the right of appeal in criminalcases might properly be limited or, in default of such limitation, howfar under certain conditions it might be correspondingly extended to thecommunity, is by no means purely academic. * It is also conceivablethat some means might be found to do away with the interminabletechnicalities which can now be interposed on behalf of the accused toprevent trials or the infliction of sentence after conviction. 

 * "Limitation of the Right of Appeal in Criminal Cases, " by Nathan A. Smythe, 17 Harvard Law Rev. 317 (1905). 

Yet these considerations are of slight moment in contrast to that mostcrying of all present abuses, --the domination of the court-room by thepress. * It is no fiction to say that in many cases the actual trial isconducted in the columns of yellow journals and the defendant acquittedor convicted purely in accordance with an "editorial policy. " Judges, jurors, and attorneys are caricatured and flouted. There is no evidence, how ever incompetent, improper, or prejudicial to either side, excludedby the judge in a court of criminal justice, that is not deliberatelythrust under the noses of the jury in flaring letters of red or purplethe moment they leave the court-room. The judge may charge one way inaccordance with the law of the land, while the editor charges the samejury in double-leaded paragraphs with what "unwritten" law may bestsuit the owner of his conscience and his pen. "Contempt of court" inits original significance is something known today only to the reader oftext books. **

 *Cf. "Sensational Journalism and the Law, " in "Moral Overstrain, " byG. W. Alger. 

 **By the New York Penal Code section 143, an editor is only guilty ofcontempt of court (a misdemeanor) if he publishes "a false or grosslyinaccurate report" of its proceedings. The most insidious, dangerous, offensive and prejudicial matter spread broadcast by the daily pressdoes not relate to actual trials at all, but to matters entirelyoutside the record, such as what certain witnesses of either side couldestablish were they available, the "real" past and character of thedefendant, etc. The New York Courts, under the present statute, arepowerless to prevent this abuse. In Massachusetts half a dozen of ourprincipal editors and "special writers" would have been locked up longago to the betterment of the community and to the increase of respectfor our courts of justice. 

Each State has its own particular problem to face, but ultimately thequestion is a national one. Lack of respect for law is characteristicof the American people as a whole. Until we acquire a vastly increasedsense of civic duty we should not complain that crime is increasingor the law ineffective. It would be a most excellent thing for anassociation of our leading citizens to interest itself in criminal-lawreform and demand and secure the passage of new and effectivelegislation, but it would accomplish little if its individual memberscontinued to evade jury service and left their most important duty tothose least qualified by education or experience to perform. * It wouldserve some of this class of reformers right, if one day, when after alife-time of evasion, they perchance came to be tried by a jury of theirpeers, they should find that among their twelve judges there was not onewho could read or write the English language with accuracy and that allwere ready to convict anybody because he lived in a brown-stone front. 

 *"The Citizen and the Jury, " in "Moral Overstrain, " by G. W. Alger. 

Merchants, who in return for a larger possible restitution habituallycompound felonies by tacitly agreeing not to prosecute those who havedefrauded them, have no right to complain because juries acquit theoffenders whom they finally decide it to be worth their while to pursue. The voter who has not the courage to insist that hypocritical lawsshould be wiped from the statute books should express no surprise whenjuries refuse to convict those who violate them. The man who perjureshimself to escape his taxes has no right to expect that his fellowcitizens are going to place a higher value upon an oath than he. 

CHAPTER X. Insanity and the Law

Harry Kendall Thaw shot and killed Stanford White on the 25th day ofJune, 1905. Although most of the Coroner's jury which first sat uponthe case considered him irrational, he was committed to the Tombs and, having been indicted for murder, remained there over six months pendinghis trial. During that time it was a matter of common knowledge that hisdefence was to be that he was insane at the time of the shooting, but asunder the New York law it is not necessary specifically to enter a pleaof insanity to the indictment in order to take advantage of that defence(which may be proven under the general plea of "not guilty"), there wasnothing officially on record to indicate this purpose. Neither was itpossible for the District Attorney to secure any evidence of Thaw'smental condition, since he positively refused either to talk to theprosecutor's medical representatives or to allow himself to be examinedby them. Mr. Jerome therefore was compelled to enter upon an elaborateand expensive preparation of the case, not only upon its merits, butupon the possible question of the criminal irresponsibility of thedefendant. 

The case was moved in January, 1906, and the defence thereupon proceededto introduce a limited amount of testimony tending to show that Thaw wasinsane when he did the shooting. While much of this evidence commendeditself but little to either the prosecutor or the jury, it wassufficient to raise grave doubt as to whether the accused was a fitsubject for trial. The District Attorney's experts united in the opinionthat, while he knew that he was doing wrong when he shot White, he was, nevertheless, the victim of a hopeless progressive form of insanitycalled dementia praecox. In the midst of the trial, therefore, Mr. Jerome moved for a commission to examine into the question of how farThaw was capable of understanding the nature of the proceedings againsthim and consulting with counsel, and frankly expressed his personalopinion in open court that Thaw was no more a proper subject for trialthan a baby. A commission was appointed which reported the prisoner wassane enough to be tried, and the case then proceeded at great lengthwith the surprising result that, in spite of the District Attorney'searlier declaration that he believed Thaw to be insane, the jurydisagreed as to his criminal responsibility, a substantial number votingfor conviction. Of course, logically, they would have been obligedeither to acquit entirely on the ground of insanity or convict of murderin the first degree, but several voted for murder in the second degree. 

A year now elapsed, during which equally elaborate preparations weremade for a second trial. The State had already spent some $25, 000, andyet its experts had never had the slightest opportunity to examine orinterrogate the defendant, for the latter had not taken the stand at thefirst trial. The District Attorney still remained on record as havingdeclared Thaw to be insane, and his own experts were committed to thesame proposition, yet his official duty compelled him to prosecute thedefendant a second time. The first prosecution had occupied months anddelayed the trial of hundreds of other prisoners, and the next bid fairto the do same. But at this second trial the defence introducedenough testimony within two days to satisfy the public at large of theunbalanced mental condition of the defendant from boyhood. 

After a comparatively short period of deliberation the jury acquittedthe prisoner "on the ground of insanity, " which may have meant eitherone of two things: (a) that they had a reasonable doubt in their ownminds that Thew knew that he was doing wrong when he committed themurder--something hard for the layman to believe, or (b) that, realizingthat he was undoubtedly the victim of mental disease, they refused tofollow the strict legal test. 

Nearly two years had elapsed since the homicide; over a hundred thousanddollars had been spent upon the case; every corner of the community hadbeen deluged with detailed accounts of unspeakable filth and depravity;the moral tone of society had been depressed; and the only element whichhad profited by this whole lamentable and unnecessary proceeding hadbeen the sensational press. Yet the sole reason for it all was thatthe law of the land in respect to insane persons accused of crime washopelessly out of date. 

The question of how far persons who are victims of diseased mind shallbe held criminally responsible for their acts has vexed judges, jurors, doctors, and lawyers for the last hundred years. During that time, inspite of the fact that the law has lagged far behind science in themarch of progress, we have blundered along expecting our juries to reachsubstantial justice by dealing with each individual accused as mostappeals to their enlightened common sense. 

And the fact that they have obeyed their common sense rather than thelaw is the only reason why our present antiquated and unsatisfactorytest of who shall be and who shall not be held "responsible" in theeyes of the law remains untouched upon the statute-books. Because itsinadequacy is so apparent, and because no experienced person seriouslyexpects juries to apply it consistently, it fairly deserves first placein any discussion of present problems. 

Thanks to human sympathy, the law governing insanity has hadcomparatively few victims, but the fact remains that more than oneirresponsible insane man has swung miserably from the scaffold. But"hard cases" do more than "make bad law, " they make lawlessness. Astatute systematically violated is worse than no statute at all, andexactly in so far as we secure a sort of justice by evading the law asit stands, we make a laughing-stock of our procedure. 

The law is, simply, that any person is to be held criminally responsiblefor a deed unless he was at the time laboring under such a defect ofreason as not to know the nature and quality of his act and that it waswrong. 

This doctrine first took concrete form in 1843, when, after a personnamed McNaughten, who had shot and killed a certain Mr. Drummondunder an insane delusion that the latter was Sir Robert Peel, had beenacquitted, there was such popular uneasiness over the question of whatconstituted criminal responsibility that the House of Lords submittedfour questions to the fifteen judges of England asking for an opinionon the law governing responsibility for offences committed by personsafflicted with certain forms of insanity. It is unnecessary to setforth at length these questions, but it is enough to say that the judgesformulated the foregoing rule as containing the issue which shouldbe submitted to the jury in such cases. *

 * The questions propounded to the judges and their answers are heregiven:

Question 1. --"What is the law respecting alleged crimes committedby persons afflicted with insane delusion in respect of one or moreparticular subjects or persons, as, for instance, where, at the timeof the commission of the alleged crime, the accused knew he was actingcontrary to law, but did the act complained of with a view, under theinfluence of insane delusion, of redressing or revenging some supposedgrievance or injury, or of producing some supposed public benefit?

Answer 1. -"Assuming that your lordships' inquiries are confined to thosepersons who labor under such partial delusions only, and are not inother respects insane, we are of opinion that, notwithstanding theaccused did the act complained of with a view, under the influence ofinsane delusion, of redressing or revenging some supposed grievanceor injury, or of producing some public benefit, he is, nevertheless, punishable, according to the nature of the crime committed, if he knewat 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 theland. 

Question 4:--"If a person under an insane delusion as to existing factscommits an offence in consequence thereof, is he thereby excused?

Answer 4. --"The answer must of course depend on the nature of thedelusion; but, making the same assumption as we did before, namely, thathe labors under such partial delusion only, and is not in other respectsinsane, we think he must be considered in the same situation as toresponsibility as if the facts with respect to which the delusionsexist were real. For example, if under the influence of his delusionhe supposes another man to be in the act of attempting to take away hislife, and kills the man, as he supposes in self-defence, he wouldbe exempt from punishment. If his delusion was that the deceased hadinflicted a serious injury to his character and fortune, and hekilled him in revenge for such supposed injury, he would be liable topunishment. 

Question 2. --"What are the proper questions to be submitted to the jurywhen a person, afflicted with insane delusions respecting one or moreparticular subjects or persons, is charged with the commission of acrime (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 asto the prisoner's state of mind when the act was committed?

Answers 2 and 3. --"As these two questions appear to us to be moreconveniently answered together, we submit our opinion to be that thejurors ought to be told, in all cases, that every man is presumed to besane, and to possess a sufficient degree of reason to be responsiblefor his crimes, until the contrary be proved to their satisfaction;and that, to establish a defence on the ground of insanity it must beclearly proved that at the time of committing the act the accused waslaboring under such a defect of reason, from disease of the mind, as notto know the nature and quality of the act he was doing, or, if hedid know it, that he did not know he was doing what was wrong. " (Theremainder of the answer goes on to discuss the usual way the questionis put to the jury. )

Now, with that commendable reverence for judicial utterance which is socharacteristic of the English nation, and is so conspicuously absentin our own country, it was assumed until recently that this solemnpronunciamento was the last word on the question of criminalresponsibility and settled the matter once and forever. Barristers andlegislators did not trouble themselves particularly over the fact thatin 1843 the study of mental disease was in its infancy, and judges, including those of England, probably knew even less about the subjectthan they do now. In 1843 it was supposed that insanity, save of thesort that was obviously maniacal, necessitated "delusions, " and unless aman had these delusions no one regarded him as insane. In the words of acertain well-known judge:

"The true criterion, the true test of the absence or presence ofinsanity, I take to be the absence or presence of what, used ina certain sense of it, is comprisable in a single term, namely, delusion. .. . In short, I look on delusion . .. . And insanity to bealmost, if not altogether, convertible terms. "*

 * Dew vs. Clark. 

This in a certain broad sense, probably not intended by the judge whomade the statement, is nearly true, but, unfortunately, is not entirelyso. 

The dense ignorance surrounding mental disease and the barbaroustreatment of the insane within a century are facts familiar toeverybody. Lunatics were supposed to be afflicted with demons or devilswhich took possession of them as retribution for their sins, andin addition to the hopelessly or maniacally insane, medical sciencerecognized only a so-called "partial" or delusionary insanity. Today itwould be regarded about as comprehensive to relate all mental diseasesto the old-fashioned "delusion" as to regard as insane only those whofrothed at the mouth. 

But the particular individual out of whose case in 1843 arose the rulethat is in 1908 applied to all defendants indiscriminately was thevictim of a clearly defined insane delusion, and the four questionsanswered by the judges of England relate only to persons who are"afflicted with insane delusions in respect to one or more particularsubjects or persons. " Nothing is said about insane persons withoutdelusions, or about persons with general delusions, and the judges limittheir answers even further by making them apply "to those persons wholabor under such partial delusion only and are not in other respectsinsane"--a medical impossibility. 

Modern authorities agree that a man cannot have insane delusions and notbe in other respects insane, for it is mental derangement which is thecause of the delusion. 

In the first place, therefore, a fundamental conception of the judgesin 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 allinsane persons irrespective of their symptoms. 

Finally, whether the judges knew anything about insanity or not, andwhether 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 oreven legal point of view. 

Was the accused laboring under such a defect of reason as not to knowthe nature and quality of the act he was doing, or not to know that itwas wrong? What did these judges mean by know?

What does the reader mean by know? What does the ordinary juryman meanby it?

We are left in doubt as to whether the word should be given, as justiceStephens contended it should be, a very broad and liberal interpretationsuch as "able to judge calmly and reasonably of the moral or legalcharacter of a proposed action, "* or a limited and qualified one. Thereare all grades and degrees of "knowledge, " and it is more than probablethat there is a state of mind which I have heard an astute expert callupon the witness stand "an insane knowledge, " and equally obvious thatthere may be "imperfect" nor "incomplete knowledge, " where the victimsees "through a glass darkly. " Certainly it seems far from fair tointerpret the test of responsibility to cover a condition where theaccused may have had a hazy or dream-like realization that his act wastechnically contrary to the law, and even more dangerous to make itexclude one who was simply unable to "judge calmly and reasonably" ofhis proposed action, a doctrine which could almost be invoked by any onewho committed homicide in a state of anger. 

 *"General View of the Criminal Law, " p. 80. 

Ordinarily the word is not defined at all and the befuddled juryman isleft to his own devices in determining what significance he shall attachnot only to this word but to the test as a whole. 

An equally ambiguous term is the word "wrong. " The judges made noattempt to define it in 1843, and it has been variously interpreted eversince. Now it may mean "contrary to the dictates of conscience" or, asit is usually construed, "contrary to the law of the land"--and exactlywhat it means may make a great difference to the accused on trial. Ifthe defendant thinks that God has directed him to kill a wicked man, hemay know that such an act will not only be contrary to law, but also inopposition to the moral sense of the community as a whole, and yet hemay believe that it is his conscientious duty to take life. In the caseof Hadfield, who deliberately fired at George III in order to be hung, the defendant believed himself to be the Lord Jesus Christ, and thatonly by so doing could the world be saved. Applying the legal test andtranslating the word "wrong" as contrary to the common morality of thecommunity wherein he resided or contrary to law, Hadfield ought to haveachieved his object and been given death upon the scaffold instead ofbeing clapped, as he was, into a lunatic asylum. 

On the other hand, if the word "wrong" is judicially interpreted, itwould seem to be given an elasticity which would invite inevitableconfusion as well as abuse. 

Moreover, the test in question takes no cognizance of persons who haveno power of control. The law of New York and most of the states does notrecognize "irresistible impulses, " but it should admit the medical factthat there are persons who, through no fault of their own, are bornpractically without any inhibitory capacity whatever, and that there areothers whose control has been so weakened, through accident or disease, as to render them morally irresponsible, --the so-called psychopathicinferiors. 

Most of us are only too familiar with the state of a person justfalling under the influence of an anesthetic, when all the senses seemsupernaturally acute, the reasoning powers are active and unimpaired, and the patient is convinced that he can do as he wills, whereas, inreality, he says and does things which later on seem impossible in theirabsurdity. Such a condition is equally possible to the victim of mentaldisease, 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 pretencethat a perception of the nature and quality of an act or that it iswrong or right is conclusive of the actual insanity of a particularaccused. In a recent murder case a distinguished alienist, testifyingfor the prosecution, admitted that over seventy per cent. Of thepatients under his treatment, all of whom he regarded as insane andirresponsible, knew what they were doing and could distinguish rightfrom wrong. 

Countless attempts have been made to reconcile this obvious anachronismwith justice and modern knowledge, but always without success, andcourts have wriggled hard in their efforts to make the test adequateto the particular cases which they have been trying, but only with theresult of hopelessly confounding the decisions. 

But, however it is construed, the test as laid down in 1843 isinsufficient in 1908. Medical science has marched on with giant strides, while the law, so far as this subject is concerned, has never progressedat all. It is no longer possible to determine mental responsibility byany such artificial rule as that given by the judges to the Lords inMcNaughten's case, and which juries are supposed to apply in the courtsof today. I say "supposed, " for juries do not apply it, and the reasonis simple enough--you cannot expect a juryman of intelligence to followa doctrine of law which he instinctively feels to be crude and which heknows is arbitrarily applied. 

No juryman believes himself capable of successfully analyzing aprisoner's past mental condition, and he is apt to suspect that, howeversincere the experts on either side may appear, their opinions may beeven less definite than the terms in which they are expressed. Thespectacle of an equal number of intellectual-looking gentlemen, allusing good English and all wearing clean linen, reaching diametricallyopposite conclusions on precisely the same facts, is calculated to fillthe well-intentioned juror with distrust. Painful as it is to record thefact, juries are sometimes almost as sceptical in regard to doctors asthey always are in regard to lawyers. 

The usual effect of the expert testimony on one side is to neutralizethat on the other, for there is no practical way for the jury todistinguish between experts, since the foolish ones generally look aslearned as the wise ones. The result is hopeless confusion on the partof the juryman, an inclination to "throw it all out, " and a resort toother testimony to help him out of his difficulty. Of course he has noindividual way of telling whether the defendant "knew right from wrong, "whatever that may mean, and so the ultimate test that he applies isapt to be whether or not the defendant is really "queer, " "nutty" or"bughouse, " or some other equally intelligible equivalent far "medicallyinsane. "

The unfortunate consequence is that there is so general and growing ascepticism about the plea of insanity, entirely apart from its actualmerits, that it is difficult in ordinary cases, whatever the jurors maythink or say in regard to the matter, to secure twelve men who will givethe defence fair consideration at the outset. 

This is manifest in frequent expressions from talesmen such as: "I thinkthe defence of insanity is played out, " or "I believe everybody is alittle 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 otherdefence he claims to be insane. "

The result is a rather paradoxical situation: The attitude of theordinary jury in a homicide case, where the defence of insanity isinterposed, is usually at the outset one of distrust, and their impulseis to brush the claim aside. This tendency is strengthened by the legalpresumption, which the prosecutor invariably calls to their attention, that the defendant is sane. Every expert who has testified for thedefence in the ordinary "knock down and drag out" homicide case musthave felt with the prisoner's attorneys, that it was "up to them" not somuch to create a doubt of the defendant's sanity as to prove that he wasinsane, if they expected consideration from the jury. 

Now let us assume that the defence is meritorious and that theprisoner's experts have created a favorable impression. Let us go evenfurther and assume that they have generated a reasonable doubt in themind of the jury as to the defendant's responsibility at the time hecommitted the offence. What generally occurs? Not, as one would suppose, an acquittal, but, in nine cases out of ten, a conviction in a lowerdegree. 

The only usual result of an honest claim of irresponsibility on theground of insanity is to lead the jury to reduce the grade of theoffence from murder in the first, entailing the death penalty, to murderin the second degree. The jury have no intention of "taking the chance"involved in turning the man loose on the community and their minds arefilled 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 lunaticasylum as they suppose it is to get "sworn into" one, and they know thatif the prisoner is found to be insane when sent to State's prison hewill be transferred elsewhere. They, therefore, as a rule, waste littletime upon the question of how far the defendant was irresponsible withinthe legal definition when he committed the deed, but convict him"on general principles, " trusting the prison officials to remedy anypossible injustice. The jury in such cases ignore the law and declineeither to acquit or to convict in accordance with the test. Their actionbecomes rather that of a lay commission condemning the prisoner to hardlabor for life on the ground that he is medically insane. 

Assuming that the jury take the defence seriously, there is only oneclass of cases where, in the writer's opinion, they follow the legaltest as laid down by the court--that is to say, in cases of extremebrutality. Here they hold the prisoner to the letter of the law, andthe more abhorrent the crime (even where its nature might indicate toa physician that the accused was the victim of some sort of mania) theless likely they are to acquit. The writer has prosecuted perhaps adozen homicide and other cases where the defence was insanity. In hisown experience he has known of no acquittal. In several instances thedefendants were undoubtedly insane, but, strictly speaking, probablyvaguely knew the nature and quality of their acts and that they werewrong. In a few of these the juries convicted of murder in the firstdegree because the circumstances surrounding the homicides were sobrutal that the harshness of the technical doctrine they were requiredto apply was overshadowed in their minds by their horror of the actitself. In other cases, where either the accused appeared obviouslyabnormal as he sat at the bar of justice, or the details of the crimewere less abhorrent, they convicted of murder in the second degree inaccordance with the reasoning set forth in the foregoing paragraph. Thewriter seriously advances the suggestion that the more the brutality ofa homicide indicates mental derangement the less chance the defendanthas to secure an acquittal upon the plea of insanity. 

And this leads us to that increasingly large body of cases wherethe usual scepticism of the jury in regard to such defences iscounterbalanced by some real or imaginary element of sympathy. In citieslike New York, where the jury system is seen at its very best, where thestatistics show seventy per cent. Of convictions by verdict for the year1907, and where the sentiment of the community is against the invocationof any law supposedly higher than that of the State, our talesmen areunwilling to condone homicide or to act as self-constituted pardoningbodies, for they know that an obviously lawless verdict will bringdown upon them the censure of the public and the press. This is perhapsdemonstrated by the fact that in New York County a higher percentage ofwomen are convicted of homicide than of men. 

But the plea of insanity, with its vague test of responsibility, whoseterms the juryman may construe for himself (or which his fellow-jurorsmay construe for him) offers an unlimited and fertile field for the"reasonable" doubt and an easy excuse for the conscientious talesman whowants to acquit if he can. Juries take the little stock in irresistibleimpulses and emotional or temporary insanity save as a cloak to cover anunrighteous acquittal. 

In no other class of cases does "luck" play so large a part in the finaldisposition of the prisoner. A jury is quite as likely to send aninsane man to the electric chair as to acquit a defendant who is fullyresponsible for his crime. 

To recapitulate from the writer's experience:

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

(2) When once this distrust is removed by honest evidence on the part ofthe defence, he usually declines to follow the legal test as laid downby the court on the general theory that any one but an idiot or a maniachas 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 legaltest, but instead of acquitting the accused on account of his medicalirresponsibility, 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 isadmittedly vague and inadequate, affording great opportunity fordivergent expert testimony and a readily availed of excuse for thearbitrary and sentimental actions of juries, to which is largely duethe distrust prevailing of the claim of insanity when interposed as adefence to crime. 

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

(3) That in no class of cases are the verdicts of jurors so apt to beinfluenced solely by emotion and prejudice, or to be guided less by thelaw as laid down by the court. 

(4) That a new definition of criminal responsibility is necessary, basedupon present knowledge of mental disease and its causes. 

(5) Lastly, that, as whatever definition may be adopted will inevitablybe difficult of application by an untutored lay jury, our procedureshould be so amended that they may be relieved wherever possible of atask sufficiently difficult for even the most experienced and expertalienists. 

A classification of the different forms of insanity, based upon itscauses 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 hisresponsibility. It would be easy to say then, as now, that lunatics ormaniacs should not be held responsible for their acts, but we should beleft where we are at present in regard to all those shadowy cases wherethe accused had insane, incomplete or imperfect knowledge of what he wasdoing. It would be ridiculous, for example, to lay down a general rulethat no person suffering from hysterical insanity should be punishedfor his acts. Yet, even so, such a classification would instantlyremedy that anachronism in our present law which refuses to recognizeas irresponsible those born without power to control their emotions--thepsychopathic inferiors of science, and the real victims of dementiapraecox. 

Of course, if the insanity under which the defendant labors bears norelation to or connection with the deed for which he is on trial, therewould logically be no reason why his insanity on other subjects shouldbe any defence to his crime. For example, there is the well-known caseof the Harvard professor who was apparently sane on all other matters, yet believed himself to be possessed of glass legs. Had this man inwanton anger struck and killed another, his "glass leg" delusion couldnot logically have availed him. If, however, he had struck and killedone who he believed was going to shatter his legs it might have beenimportant. The illustration is clear enough, but its applicationprobably involves a mistaken premise. If he thought he had glass legshis mind was undoubtedly deranged--whether enough or not enough toconstitute him irresponsible or beyond the effect of penal disciplinemight be a difficult question. The generally accepted doctrine is, thatif a man has a delusion concerning something, which if actually existingas he believed it to be would be no excuse for his committing thecriminal act, he is responsible and liable to punishment; but, as Bishopwell says:

"This branch of the doctrine should be cautiously received; for delusionof any kind is strongly indicative of a generally diseased mind. "

The new test to determine responsibility will recognize, as does thelaw of Germany, that there can be no criminal act where the freedetermination of the will is excluded by disease, and that the capacityto distinguish between right and wrong is inconclusive. It mayperhaps have to take a general form, leaving it to a lay, or a mixedlay-and-expert jury to say merely whether the accused had a diseaseof the mind of a type recognized by science, and whether the allegedcriminal act was of such a character as would naturally flow from thattype of insanity, in which case it would seem obviously just to regardthe defendant as partially irresponsible, and perhaps entirely so. Possibly the practical needs of the moment might be met by permittingsuch a jury to determine whether the defendant had such a knowledge ofthe wrongful nature and consequences of his act and such a control overhis will as to be a proper subject of punishment. * This would requirethe jury to find that the defendant had some knowledge of right andwrong and the power to choose between them. In any event, to renderthe accused entirely irresponsible, his act should arise out of andbe caused solely by the diseased condition of his mind. The law, whileasserting the responsibility of many insane people, should recognize"partial" responsibility as well. 

 *See State vs. Richards, 1873, Conn. 

The reader may feel that little after all would be gained, but he willobserve that at any rate such a test, however imperfect, would permitjuries to do lawfully that which they now do by violating their oaths. The writer believes that the best concrete test yet formulated andapplied by any court is that laid down in Parsons vs. The State ofAlabama (81 Ala. , 577):

"1. Was the defendant at the time of the commission of the allegedcrime, as matter of fact, afflicted with a disease of the mind, so as tobe either idiotic, or otherwise insane?

"2. If such be the case, did he know right from wrong as applied to theparticular act in question? If he did not have such knowledge, he is notlegally responsible. 

"3. If he did have such knowledge, he may nevertheless not be legallyresponsible if the two following conditions concur:

"(1) If, by reason of the duress of such mental disease, he had so farlost the power to choose between the right and wrong, and to avoid doingthe 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 withsuch mental disease, in the relation of cause and effect, as to havebeen the product of it solely. "

But whatever modification in the present test of criminal responsibilityis adopted, there must come an equally, if not even more important, reform in the procedure in insanity cases, which to-day is as cumbersomeand out of date as the law itself. As things stand now in New York andmost other jurisdictions there are no adequate means open to the Stateto find out the actual present or past mental condition of the defendantuntil the trial itself, and ofttimes not even then. 

In New York, in cases like Thaw's, the accused, while fully intendingto interpose the defence of insanity (which he is now permitted to dosimply under the general plea of "not guilty") may not only conceal thefact until the trial, but may likewise successfully block every effortof the authorities to examine him and find out his present mentalcondition. He may thus keep it out of the power of the District Attorneyto secure the facts upon which to move for a commission to determinewhether or not he ought to be in an insane asylum or is a fit subjectfor trial, and at the same time prevent the prosecutor from obtainingany evidence through direct medical observation by which to meet theclaim, which may be "sprung" suddenly upon him later at the trial, thatthe defendant was irresponsible. 

In order that this may be clearly understood by the reader he shouldfully appreciate the distinction between (1) the claim on the part of anaccused that he is at present insane, and for that reason should not beeither tried or punished for his alleged offence, and (2) the defencethat he was (irrespective of his present mental condition) insane withinthe legal definition of irresponsibility at the time he committed it. Noperson who is incapable of understanding the nature of the proceedingsagainst him or of consulting with counsel and preparing his defence canbe placed on trial at all, or, if already on trial, can continue to betried, and if a defendant "appears to the court to be insane, " the judgemay appoint a commission to examine him and report as to his presentcondition. This may be done upon the application either of the State ofthe accused through his counsel. 

It was such a commission to determine the accused's present mentalcondition that District Attorney Jerome, upon the basis of the evidenceintroduced by the defence, applied for and secured during the firsttrial of Harry K. Thaw. The commission reported that Thaw was saneenough to be tried and the court then proceeded with the original casefor the purpose of allowing the jury to say whether he knew the natureand quality of his act and that it was wrong when he shot and killedWhite. 

This was a totally distinct proceeding from the interposition of theDEFENCE that the accused was irresponsible when he committed the crimecharged against him and was not inconsistent with it. 

Now supposing that the Commission had reported that Thaw was insane atthe time of examination and not a fit subject for trial, but, onthe contrary, ought to be confined in an insane asylum, the DistrictAttorney would have spent some twenty odd thousand dollars and a year'stime of one or more of his assistants in fruitless preparation. Yet, asthe law stands on the books to-day in New York, there is no adequateway for the prosecution to find out whether this enormous expenditure oftime or money is necessary or not, for it cannot compel the defendantto submit either to a physical or mental examination. To do so has beenheld to be a violation of his constitutional rights and equivalent tocompelling him to give evidence against himself. 

Thus when Thaw came to the bar at his first trial the State had neverhad any opportunity, through an examination by its physicians, to learnwhat his present condition was or past mental condition had been. Theaccused, on the other hand, had had over six months to prepare hisdefence and had fully availed himself of the time to submit to the mostexhaustive examinations on the part of his own experts. The defendant'sphysicians came to court brimming with facts to which they couldtestify; while the State's experts had only the barren opportunity fordetermining the defendant's condition afforded by observing him daily inthe court room and hearing what Thaw's own doctors claimed that theyhad discovered. There was no chance to rebut anything which the latteralleged that they had observed, and their testimony, save in so far asit was inconsistent or contradictory in itself, remained irrefutable. 

There is probably no procedure which would be held constitutionalwhereby a compulsory examination of the accused could be had upon themere application of the prosecuting authorities; but as a commission maygenerally be appointed at any time after an accused has been indictedif he "appears" to the court to be "insane, " and as it is usually withinthe power of the District Attorney where such is the case to bringsufficient evidence of it to the attention of the court before theprisoner is brought to trial, little time is actually lost and justiceis rarely defeated except in those cases (such as Thaw's) where anattempt is to be made to prove the accused insane at the time of thealleged crime although sane at the time of trial. Even here it would bethe simplest thing in the world to remedy the difficulty and the properlegal steps in all jurisdictions should be taken immediately. 

The two chief objects of such reforms should be, first, to relieve theordinary jury in as many cases as possible from the necessity of passingupon the delicate issue of a defendant's mental condition at a previoustime, and second, where this may not be avoided, to make their task aseasy as possible by providing (a) a more scientific and definite test oflegal responsibility and (b) an opportunity for adequate examination ofdefendants availing themselves of this defence. 

This last and most practical reform can be easily secured by a slightalteration in the New York Code of Criminal Procedure, which alreadyprovides both for the entering of the specific plea of insanity andfor the introduction of the defence and the proof of insanity under thegeneral plea of "not guilty. " At present the defendant has his choiceof openly announcing or of concealing until the trial his intention ofclaiming that he was insane and so irresponsible for his crime. This isan advantage the results of which were probably not fully contemplatedby the Legislature, and one to which an accused has no fair claim. 

Fortunately, in the same section of the Code (658), which providesthat the court may appoint a Commission to inquire into the sanity ofa 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, thecourt in which the indictment is pending, instead of proceeding with thetrial of the indictment, may appoint a commission of not more than threedisinterested persons to examine him and report to the court as to hisinsanity 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 dothe rest. No reason has been brought to the attention of the writer whythe admission of any evidence upon the defendant's trial tending to showthat he was mentally irresponsible at the time of committing the crimeshould not be made contingent upon the defence of insanity having beenspecifically pleaded either at the time of his arraignment or later bysubstitution for or in conjunction with the plea of "not guilty. " Thiswould deprive him of no constitutional right whatever. There is no legalnecessity of permitting an accused to prove insanity under a generalanswer of "not guilty. " Then upon his own plea that he had been insanehe could instantly be committed to some place of observation where apermanent medical board of inquiry could be given full opportunity toexamine him and study his case with a view to determining his presentand past mental condition. He would still have in prospect his regularjury 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 saneat the present time, but reported that, in their opinion (whatever test, "medical" or "legal, " they might have applied), he was irresponsibleat the time he committed the crime, it is unlikely that any prosecutorwould bring him to trial. If, however, they reported that he was notonly sane, but had been sane at the time of his crime, it is probablethat any proposed defence of insanity would be abandoned, while if itwas still urged by the accused, the opinion of such a board would carryfar greater weight at the ultimate trial of the case than the individualopinions of experts retained and paid by either side for that particularoccasion only, and having had only a comparatively limited opportunityfor examination. At any rate, if the court called in the services ofsuch a board of medical judges to assist as amici curie in determiningthe defendant's condition, while their opinion would not be conclusiveupon the jury, it would at least do away with the present lamentablenecessity of learned men answering "yes" or "no" to a hypotheticalquestion fifty thousand words long, when the most superficial personalexamination of the accused would settle the matter definitely intheir minds. Such a procedure is in general use in Germany and othercontinental countries, and is likewise substantially followed inMassachusetts, Maine, Vermont, and New Hampshire. *

 * Another equally efficacious means of dealing with the matter wouldbe to substitute, upon a defendant's plea of insanity, a full jury ofexperts--like any "special" jury--for the ordinary petit jury. 

There is good reason to hope that we may soon see in all the statesadequate provision for preliminary examination upon the plea ofinsanity, and a new test of criminal responsibility consistent withhumanity and modern medical knowledge. Even then, although murdererswho indulge in popular crime will probably be acquitted on the ground ofinsanity, we shall at least be spared the melancholy spectacle of juriesarbitrarily committing feeble-minded persons charged with homicide toimprisonment at hard labor for life, and in a large measure do away withthe present unedifying exhibition of two groups of hostile experts, eachinterpreting an archaic and inadequate test of criminal responsibilityin his own particular way, and each conscientiously able to reach adiametrically opposite conclusion upon precisely the same facts. 

CHAPTER XI. The Mala Vita in America

There are a million and a half of Italians in the United States, of whomnearly six hundred thousand reside in New York City--more than in Romeitself. Naples alone of all the cities of Italy has so large an Italianpopulation; while Boston has one hundred thousand, Philadelphia onehundred thousand, San Francisco seventy thousand, New Orleans seventythousand, Chicago sixty thousand, Denver twenty-five thousand, Pittsburgtwenty-five thousand, Baltimore twenty thousand, and there are extensivecolonies, often numbering as many as ten thousand, in several othercities. 

So vast a foreign-born population is bound to contain elements of bothstrength and weakness. The north Italians are molto simpatici to theAmerican character, and many of their national traits are singularlylike our own, for they are honest, thrifty, industrious, law-abiding andgood-natured. The Italians from the extreme south of the peninsula havefewer of these qualities, and are apt to be ignorant, lazy, destitute, and superstitious. A considerable percentage, especially of those fromthe cities, are criminal. Even for a long time after landing in America, the Calabrians and Sicilians often exhibit a lack of enlightenment morecharacteristic of the Middle Ages than of the twentieth century. 

At home they have lived in a tumble-down stone hut about fifteen feetsquare, half open to the sky (its only saving quality); in one cornerthe entire family sleeping in a promiscuous pile on a bed of leaves; inanother a domestic zoo consisting of half a dozen hens, a cock, a goat, and a donkey. They neither read, think, nor exchange ideas. The sight ofa uniform means to them either a tax-gatherer, a compulsory enlistmentin the army, or an arrest, and at its appearance the man will runand the wife and children turn into stone. They are stubborn anddistrustful. They are the same as they were a thousand or more yearsgone by. 

When the writer was acting as an assistant prosecutor in New YorkCounty, a young Italian, barely twenty years of age, was brought tothe bar charged with assault with intent to kill. The complainant was awithered Sicilian woman who claimed to be his wife. Both spoke an almostunintelligible dialect. The case on its face was simple enough. Anofficer testified that on a Sunday morning in Mulberry Bend Park, ata distance of about fifty feet from where he was standing, he saw thedefendant, who had been walking peaceably with the complaining witness, suddenly draw a long and deadly looking knife and proceed to slash herabout the head and arms. It had taken the officer but a moment or two toseize the defendant from behind and disarm him, but in the meantime hehad inflicted some eleven wounds upon her body. No explanation had beenoffered for this terrible assault, and the complainant had appearedinvoluntarily before the Grand jury and afterward had to be kept in theHouse of Detention as a hostile witness. The woman, who appeared to beabout fifty years old, was sworn, and on being questioned stated thatshe had been married to the defendant in Sicily three years before. She declined to admit that he had attacked or harmed her in any way, constantly mumbling: "He is my husband. Do not punish him!"

The defendant, however, seemed eager to get on the stand and to tellhis story; nor did the introduction of the knife in evidence or theexhibition of the woman's wounds embarrass him in the slightest degree. His manner was that of a man who had only to explain to be entirelyexonerated from blame. He nodded at the jury and the judge, and scowledat the complainant, who was speedily conducted to a place where no harmcould possibly come to her. When at last he was sworn, he could hardlyrestrain himself into coherency. 

"Yes--that woman forced me to marry her!" he testified in substance. "But in the eyes of God I am not her husband, for she bewitched me! Elsewould I have married an old crone who could not have borne me children?When her spells weakened I left her and came to America. Here I metthe woman I love, --Rosina, --and as I had been bewitched into the othermarriage, we lived together as man and wife for two years. Then one daya friend told me that the old woman had followed me over the sea and wasgoing to throw her spells upon me again. But I did not inform Rosina ofthese things. The next evening she told me that an old woman had beento the house and asked for me. For days my first wife lurked in theneighborhood, beseeching me to come back to her. But I told her that inthe eyes of God she was not my wife. Then, in revenge, she cast the evileye upon the child--sul bambino--and for six weeks it ailed and thendied. Again the witch asked me to go with her, and again I refused. Thistime she cast her evil eye upon my wife--and Rosina grew pale and sickand took to her bed. There was only one thing to do, you understand. Iresolved to slay her, just as you--giudici--would have done. I boughta carving-knife and sharpened it, and asked her to walk with me tothe park, and I would have killed her had not the police prevented me. Wherefore, O giudici! I pray you to recall her and permit me to kill heror to decree that she be hung!"

This case illustrates the depths of ignorance and superstition thatare occasionally to be found among Italian peasant immigrants. Anotheractual experience may demonstrate the mediaeval treachery of which theSicilian Mafiuso is capable, and how little his manners or ideals haveprogressed in the last five hundred years or so. 

A photographer and his wife, both from Palermo, came to New York andrented a comfortable home with which was connected a "studio. " In thecourse of time a young man--a Mafiuso from Palermo--was engaged as anassistant, and promptly fell in love with the photographer's wife. Shewas tired of her husband, and together they plotted the latter's murder. After various plans had been considered and rejected, they determined onpoison, and the assistant procured enough cyanide of mercury to kill ahundred photographers, and turned it over to his mistress to administerto the victim in his "Marsala. " But at the last moment her hand lostits courage and she weakly sewed the poison up for future use inside theticking of the feather bolster on the marital bed. 

This was not at all to the liking of her lover, who thereupon tookmatters into his own hands, by hiring another Mafiuso to remove thephotographer with a knife-thrust through the heart. In order that theassassin might have a favorable opportunity to effect his object, theassistant, who posed as a devoted friend of his employer, invited thecouple to a Christmas festival at his own apartment. Here they all spentan animated and friendly evening together, drinking toasts and singingChristmas carols, and toward midnight the party broke up with mutualprotestations of regard. If the writer remembers accurately, theevidence was that the two men embraced and kissed each other. Aftera series of farewells the photographer started home. It was a clearmoonlight night with the streets covered with a glistening fall of snow. The wife, singing a song, walked arm in arm with her husband until theycame to a corner where a jutting wall cast a deep shadow across thesidewalk. At this point she stepped a little ahead of him, and at thesame moment the hired assassin slipped up behind the victim and drovehis knife into his back. The wife shrieked. The husband staggered andfell, and the "bravo" fled. 

The police arrived, and so did an ambulance, which removed thehysterical wife and the transfixed victim to a hospital. Luckily theambulance surgeon did not remove the knife, and his failure to do sosaved the life of the photographer, who in consequence practically lostno blood and whose cortex was skilfully hooked up by a dextrous surgeon. In a month he was out. In another the police had caught the would-bemurderer and he was soon convicted and sentenced to State prison, undera contract with the assistant to be paid two hundred and fifty dollarsfor each year he had to serve. Evidently the lover and his mistressconcluded that the photographer bore a charmed life, for they made nofurther homicidal attempts. 

So much for the story as an illustration of the mediaeval character ofsome of our Sicilian immigrants. For the satisfaction of the reader'staste for the romantic and picturesque it should be added, however, thatthe matter did not end here. The convict, having served several years, found that the photographer's assistant was not keeping his part of thecontract, as a result of which the assassin's wife and children weresuffering for lack of food and clothing. He made repeated but fruitlessattempts to compel the party of the first part to pay up, and finally, in despair, wrote to the District Attorney of New York County that hecould, if he would, a tale unfold that would harrow up almost anybody'ssoul. Mr. Jerome therefore, on the gamble of getting something worthwhile, sent Detective Russo to Auburn to interview the prisoner. That ishow the whole story came to be known. The case was put in the writer'shands, and an indictment for the very unusual crime of attempted murder(there are only one or two such cases on record in New York State) wasspeedily found against the photographer's assistant. At the trial thelover saw his mistress compelled to turn State's evidence against him tosave herself. She testified to the Christmas carols and the cyanide ofmercury. 

"Did you ever remove this terrible poison from the bolster?" demandedthe defendant's counsel in a sneering tone. 

"No, " answered the woman. 

"Have you ever changed the bolster?" he persisted. 

"No. "

"Then it's there yet?"

"I-I think so, " falteringly. 

"I demand that this incredible yarn be investigated!" cried the lawyer. "I ask that the court send for the bolster and cut it open here in thepresence of the jury. "

The writer had no choice but to accede to this request, and the bolsterwas hunted down and brought into court. With some anxiety both sideswatched while the lining was slit with a penknife. A few feathersfluttered to the floor as the fingers of the witness felt insideand came in contact with the poison. The assistant was convicted ofattempted murder on the convict's testimony, and sentenced to Sing Singfor twenty-five years. That was the end of the second lesson. 

About a month afterward the defendant's counsel made a motion for a newtrial on the ground that the convict now admitted his testimony to havebeen wholly false, and produced an affidavit from the assassin to thateffect. Naturally so startling an allegation demanded investigation. Yes, insisted the "bravo, " it was all made up, a "camorra"--not a wordof truth in it, and he had invented the whole thing in order to get avacation from State prison and a free ride to New York. However, thecourt denied the motion. The writer procured a new indictment againstthe assassin--this time for perjury--and he was sentenced to anotheradditional term in prison. What induced this sudden and extraordinarychange of mind on his part can only be surmised. 

These two cases are extreme examples of the mediaevalism that to aconsiderable degree prevails in New York City, probably in Chicago andBoston, and wherever there is an excessive south Italian population. 

The conditions under which a large number of Italians live in thiscountry are favorable not only to the continuance of ignorance, but tothe development of disease and crime. Naples is bad enough, no doubt. The people there are poverty-stricken and homeless. But in New York Citythey are worse than homeless. It is better far to sleep under the starsthan in a stuffy room with ten or twelve other persons. Let the readerclimb the stairs of some of the tenements in Elizabeth Street, or gothrough those in Union Street, Brooklyn, and he will get firsthandevidence. This is generally true of the lower class of Italiansthroughout the United States, whether in the city or country. They liveunder worse conditions than at home. You may go through the railroadcamps and see twenty men sleeping together in a one-room built oflath, tar-paper, and clay. The writer knows of one Italian laborer inMassachusetts who slept in a floorless mud hovel about six feetsquare, with one hole to go in and out by and another in the rooffor ventilation--in order to save $1. 75 per month. All honor to him!Garibaldi was of just such stuff, only he suffered in a better cause. InNaples the young folks are out all day in the sun. Here they areindoors all the year round. For the consequences of this change seeDr. Peccorini's article in the 'Forum' for January, 1911, on thetuberculosis that soon develops among Italians who abroad wereaccustomed to live in the country but here are forced to exist intenements. 

Now, for historic reasons, these south Italians hate and distrust allgovernmental control and despise any appeal to the ordinary tribunals ofjustice to assert a right or to remedy a wrong. It has been justly saidby a celebrated Italian writer that, in effect, there is some instinctfor civil war in the heart of every Italian. The insufferable tyrannyof the Bourbon dynasty made every outlaw dear to the hearts of theoppressed people of the Kingdom of the Two Sicilies. Even if he robbedthem, they felt that he was the lesser of two evils, and shelteredhim from the authorities. Out of this feeling grew the "Omerta, " whichparalyzes the arm of justice both in Naples and Sicily. The late MarionCrawford thus summed up the Sicilian code of honor:

According to this code, a man who appeals to the law against his fellowman is not only a fool but a coward, and he who cannot take care ofhimself without the protection of the police is both. .. . It is reckonedas cowardly to betray an offender to justice, even though the offence beagainst one's self, as it would be not to avenge an injury by violence. It is regarded as dastardly and contemptible in a wounded man to betraythe name of his assailant, because if he recovers he must naturallyexpect to take vengeance himself. A rhymed Sicilian proverb sums up thisprinciple, the supposed speaker being one who has been stabbed. "If Ilive, I will kill thee, " it says; "if I die, I forgive thee!"

Any one who has had anything to do with the administration of criminaljustice in a city with a large Italian population must have foundhimself constantly hampered by precisely this same "Omerta. " The southItalian feels obliged to conceal the name of the assassin and verylikely his person, though he himself be but an accidental witness of thecrime; and, while the writer knows of no instance in New York Citywhere an innocent man has gone to prison himself rather than betray acriminal, Signor Cutera, formerly chief of police in Palermo, statesthat there have been many cases in Sicily where men have suffered longterms of penal servitude and even have died in prison rather than giveinformation to the police. 

In point of fact, however, the "Omerta" is not confined to Italians. Itis a common attribute of all who are opposed to authority of any kind, including small boys and criminals, and with the latter arises no morefrom a half chivalrous loyalty to their fellows than it does from hatredof the police and a uniform desire to block their efforts (even ifa personal adversary should go unpunished in consequence), fear thatcomplaint made or assistance given to the authorities will result invengeance being taken upon the complainant by some comrade or relativeof the accused, distrust of the ability of the police to do anythinganyway, disgust at the delay involved, and lastly, if not chiefly, therealization that as a witness in a court of justice the informer as aprofessional criminal would have little or no standing or credence, andin addition would, under cross-examination, be compelled to lay bare thesecrets of his unsavory past, perhaps resulting indirectly in a termin prison for himself. * Thus may be accounted for much of the supposed"romantic, if misguided, chivalry" of the south Italian. It is commonboth to him and to the Bowery tough. The writer knew personally aprofessional crook who was twice almost shot to pieces in ChathamSquare, New York City, and who persistently declined, even on his dyingbed, to give a hint of the identity of his assassins, announcing that ifhe got well he "would attend to that little matter himself. " Much of theromance surrounding crime and criminals, on examination, "fades intothe light of common day"--the obvious product not of idealism, but ofwell-calculated self-interest. 

 * Much more likely in Italy than in the United States. 

As illustrating the backwardness of our Italian fellow-citizens incoming forward when the criminality of one of their countrymen isat stake, the last three cases of kidnapping in New York City may bementioned. 

About a year and a half ago the little boy of Dr. Scimeca, of 2 PrinceStreet, New York, was taken from his home. From outside sources thepolice heard that the child had been stolen, but, although he wasreceiving constant letters and telephonic communications from thekidnappers, Dr. Scimeca would not give them any information. It is knownon pretty good authority that the sum of $10, 000 was at first demandedas a ransom, and was lowered by degrees to $5, 000, $2, 500, and finallyto $1, 700. Dr. Scimeca at last made terms with the kidnappers, and wastold to go one evening to City Park, where he is said to have handed$1, 700 to a stranger. The child was found wandering aimlessly in thestreets next day, after a detention of nearly three months. 

The second case was that of Vincenzo Sabello, a grocer of 386 BroomeStreet, who lost his little boy on August 26, 1911. After thirty days hereported the matter to the police, but shortly after tried to throw themoff the track by saying that he had been mistaken, that the boy had notbeen kidnapped, and that he wished no assistance. Finally he orderedthe detectives out of his place. About a month later the child wasrecovered, but not, according to reliable information, until Mr. Sabellohad handed over $2, 500. 

Pending the recovery of the Sabello boy, a third child was stolen fromthe top floor of a house at 119 Elizabeth Street. The father, LeonardoQuartiano, reported the disappearance, and in answer to questions statedthat he had received no letters or telephone messages. "Why should I?"he inquired, with uplifted hands and the most guileless demeanor. "I ampoor! I am a humble fishmonger. " In point of fact, Quartiano at the timehad a pocketful of blackmail letters, and after four weeks paid a goodransom and got back his boy. 

It is impossible to estimate correctly the number of Italian criminalsin America or their influence upon our police statistics; but in severalclasses of crime the Italians furnish from fifteen to fifty per cent ofthose convicted. In murder, assault with intent to kill, blackmail, and extortion they head the list, as well as in certain other offencesunnecessary to describe more fully but prevalent in Naples and theSouth. 

Joseph Petrosino, the able and fearless officer of New York policewho was murdered in Palermo while in the service of the country ofhis adoption, was, while he lived, our greatest guaranty of protectionagainst the Italian criminal. But Petrosino is gone. The fear of him nolonger will deter Italian ex-convicts from seeking asylum in the UnitedStates. He once told the writer that there were five thousand Italianex-convicts in New York City alone, of whom he knew a large proportionby sight and name. * Signor Ferrero, the noted historian, is reportedto have stated, on his recent visit to America, that there were thirtythousand Italian criminals in New York City. Whatever their actualnumber, there are quite enough at all events. 

 *Petrosino is a national hero in Italy, where he was known as "IlSherlock Holmes d'Italia"--"the Italian Sherlock Holmes. " Many novels inwhich he figures as the central character have a wide circulation there. 

By far the greater portion of these criminals, whether ex-convicts ornovices, are the products or byproducts of the influence of the twogreat secret societies of southern Italy. These societies and theunorganized criminal propensity and atmosphere which they generate, areknown as the "Mala Vita. "

The Mafia, a purely Sicilian product, exerts a much more obviousinfluence in America than the Camorra, since the Mafia is powerful allover Sicily, while the Camorra is practically confined to the city ofNaples and its environs. The Sicilians in America vastly outnumber theNeapolitans. Thus in New York City for every one Camorrist you will findseven or eight Mafiusi. But they are all essentially of a piece, andthe artificial distinction between them in Italy disappears entirely inAmerica. 

Historically the Mafia burst from a soil fertilized by the blood ofmartyred patriots, and represented the revolt of the people against allforms of the tyrannous government of the Bourbons; but the fact remainsthat, whatever its origin, the Mafia to-day is a criminal organization, having, like the Camorra, for its ultimate object blackmail andextortion. Its lower ranks are recruited from the scum of Palermo, who, combining extraordinary physical courage with the lowest type ofviciousness, generally live by the same means that supports the EastSide "cadet" in New York City, and who end either in prison or on thedissecting-table, or gradually develop into real Mafiusi and perhapsgain some influence. 

It is, in addition, an ultra-successful criminal political machine, which, under cover of a pseudoprinciple, deals in petty crime, wholesaleblackmail, political jobbery, and the sale of elections, and may fairlybe compared to the lowest types of politico-criminal clubs or societiesin New York City. In Palmero it is made up of "gangs" of toughs andcriminals, not unlike the Camorrist gangs of Naples, but without theirorganization, and is kept together by personal allegiance to someleader. Such a leader is almost always under the patronage of a "boss"in New York or a 'padrone' in Italy, who uses his influence to protectthe members of the gang when in legal difficulties and find them jobswhen out of work and in need of funds. Thus the "boss" can rely on thegang's assistance in elections in return for favors at other times. Suchgangs may act in harmony or be in open hostility or conflict with oneanother, but all are united as against the police, and exhibit much thesame sort of "Omerta" in Chatham Square as in Palermo. The differencebetween the Mafia and Camorra and the "gangs" of New York City lies inthe fact that the latter are so much less numerous and powerful, andbribery and corruption so much less prevalent, that they can exert nopractical influence in politics outside the Board of Aldermen, whereasthe Italian societies of the Mala Vita exert an influence everywhere--inthe Chamber of Deputies, the Cabinet, and even closer to the King. Infact, political corruption has been and still is of a character in Italyluckily unknown in America--not in the amounts of money paid over (whichare large enough), but in the calm and matter-of-fact attitude adoptedtoward the subject in Parliament and elsewhere. 

The overwhelming majority of Italian criminals in this country come fromSicily, Calabria, Naples, and its environs. They have lived, mostof their lives, upon the ignorance, fear, and superstitions of theirfellow-countrymen. They know that so long as they confine their criminaloperations to Italians of the lower class they need have little terrorof the law, since, if need be, their victims will harbor them from thepolice and perjure themselves in their defence. For the ignorant Italianbrings to this country with him the same attitude toward governmentand the same distrust of the law that characterized him and hisfellow-townsmen at home, the same Omerta that makes it so difficultto convict any Italian of a serious offence. The Italian crook isquick-witted and soon grasps the legal situation. He finds his fellowcountrymen prospering, for they are generally a hard-working and thriftylot, and he proceeds to levy tribute on them just as he did in Naples orPalermo. If they refuse his demands, stabbing or bomb-throwing show thathe has lost none of his ferocity. Where they are of the most ignoranttype he threatens them with the "evil eye, " the "curse of God, " or evenwith sorceries. The number of Italians who can be thus terrorized isastonishing. Of course, the mere possibility of such things argues astate of mediaevalism. But mere mediaevalism would be comparativelyunimportant did it not supply the principal element favorable to thegrowth of the Mala Vita, apprehended with so much dread by many of thecitizens of the United States. 

Now, what are the phases of the Mala Vita--the Camorra, the Black Hand, the Mafia--which are to-day observable in the United States and whichmay reasonably be anticipated in the future?

In the first place, it may be safely said that of the Camorra in itshistoric sense--the Camorra of the ritual, of the "Capo in Testa" and"Capo in Trino, " highly organized with a self-perpetuating body ofofficers acting under a supreme head--there is no trace. Indeed, as hasalready been explained, this phase of the Camorra, save in the prisons, is practically over, even in Naples. But of the Mala Vita there isevidence enough. 

Every large city, where people exist under unwholesome conditions, hassome such phenomenon. In Palermo we have the traditional Mafia--a stateof mind, if you will, ineradicable and all-pervasive. Naples festerswith the Camorra as with a venereal disease, its whole body politicinfected with it, so that its very breath is foul and its moral eyesightastigmatized. In Paris we find the Apache, abortive offspring ofprostitution and brutality, the twin brother of the Camorrista. In NewYork there are the "gangs, " composed of pimps, thugs, cheap thieves, andhangers-on of criminals, which rise and wane in power according to thehonesty and efficiency of the police, and who, from time to time, holdmuch the same relations to police captains and inspectors as the variousgangs of the Neapolitan Camorra do to commissaries and delegati of the"Public Safety. " Corresponding to these, we have the "Black Hand" gangsamong the Italian population of our largest cities. Sometimes the twocoalesce, so that in the second generation we occasionally find anItalian, like Paul Kelly, leading a gang composed of other Italians, Irish-Americans, and "tough guys" of all nationalities. But the genuineBlack Hander (the real Camorrist or "Mafiuoso") works alone or with twoor three of his fellow-countrymen. 

Curiously enough, there is a society of criminal young men in New YorkCity who are almost the exact counterpart of the Apaches of Paris. Theyare known by the euphonious name of "Waps" or "Jacks. " These are youngItalian-Americans who allow themselves to be supported by one or twowomen, almost never of their own race. These pimps affect a peculiarcut of hair, and dress with half-turned-up velvet collar, not unlikethe old-time Camorrist, and have manners and customs of their own. Theyfrequent the lowest order of dance-halls, and are easily known by theirpicturesque styles of dancing, of which the most popular is yclept the"Nigger. " They form one variety of the many "gangs" that infest thecity, are as quick to flash a knife as the Apaches, and, as a cult bythemselves, form an interesting sociological study. 

The majority of the followers of the Mala Vita--the Black Handers--arenot actually of Italian birth, but belong to the second generation. Aschildren they avoid school, later haunt "pool" parlors and saloons, andsoon become infected with a desire for "easy money, " which makes themglad to follow the lead of some experienced capo maestra. To them he isa sort of demi-god, and they readily become his clients in crime, takingtheir wages in experience or whatever part of the proceeds he doles outto them. Usually the "boss" tells them nothing of the inner workings ofhis plots. They are merely instructed to deliver a letter or to blowup a tenement. The same name is used by the Black Hander to-day forhis "assistant" or "apprentice" who actually commits a crime as that bywhich he was known under the Bourbons in 1820. In those early days thesecond-grade member of the Camorra was known as a picciotto. To-day theapprentice or "helper" of the Black Hander is termed a picciott' in theclipped dialect of the South. But the picciotto of New York is neverraised to the grade of Camorrista, since the organization of the Camorrahas never been transferred to this country. Instead he becomes in courseof time a sort of bully or bad man on his own hook, a criminal "swell, "who does no manual labor, rarely commits a crime with his own hands, andlives by his brain. Such a one was Micelli Palliozzi, arrested for thekidnapping of the Scimeca and Sabello children mentioned above--a dandywho did nothing but swagger around the Italian quarter. 

Generally each capo maestra works for himself with his own handful offollowers, who may or may not enjoy his confidence, and each gang hasits own territory, held sacred by the others. The leaders all know eachother, but never trespass upon the others' preserves, and rarely attemptto blackmail or terrorize any one but Italians. They gather around themassociates from their own part of Italy, or the sons of men whom theyhave known at home. Thus for a long time Costabili was leader of theCalabrian Camorra in New York, and held undisputed sway of the territorysouth of Houston Street as far as Canal Street and from Broadway to theEast River. On September 15, last, Costabili was caught with a bomb inhis hand, and he is now doing a three-year bit up the river. Sic transitgloria mundi!

The Italian criminal and his American offspring have a sincere contemptfor American criminal law. They are used by experience or traditionto arbitrary police methods and prosecutions unhampered by Anglo-Saxonrules of evidence. When the Italian crook is actually brought to thebar of justice at home, that he will "go" is generally a foregoneconclusion. There need be no complainant in Italy. The government isthe whole thing there. But, in America, if the criminal can "reach" thecomplaining witness or "call him off" he has nothing to worry about. This he knows he can easily do through the terror of the Camorra. And thus he knows that the chances he takes are comparatively small, including that of conviction if he is ever tried by a jury of hisAmerican peers, who are loath to find a man guilty whose language andmotives they are unable to understand. All this the young Camorrist isperfectly aware of and gambles on. 

One of the unique phenomena of the Mala Vita in America is the class ofItalians who are known as "men of honor. " These are native Italians whohave been convicted of crime in their own country and have eithermade their escape or served their terms. Some of these may have beencounterfeiters at home. They come to America either as stokers, sailors, stewards, or stowaways, and, while they can not get passports, it issurprising how lax the authorities are in permitting their escape. Thespirit of the Italian law is willing enough, but its fleshly enforcementis curiously weak. Those who have money enough manage to reach France orHolland and come over first or second-class. The main fact is that theyget here--law or no law. Once they arrive in America, they realize theiropportunities and actually start in to turn over a new leaf. They workhard; they become honest. They may have been Camorrists or Mafiusi athome, but they are so no longer. They are "on the level, " and stay so;only--they are "men of honor. " And what is the meaning of that? Simplythat they keep their mouths, eyes, and ears shut so far as the MalaVita is concerned. They are not against it. They might even assist itpassively. Many of these erstwhile criminals pay through the nose forrespectability--the Camorrist after his kind, the Mafius' after hiskind. Sometimes the banker who is paying to a Camorrist is blackmailedby a Mafius'. He straightway complains to his own bad man, who goes tothe "butter-in" and says in effect: "Here! What are you doing? Don't youknow So-and-So is under my protection?"

"Oh!" answers the Mafius'. "Is he? Well, if that is so, I'll leave himalone--as long as he is paying for protection by somebody. "

The reader will observe how the silence of "the man of honor" is notremotely associated with the Omerta. As a rule, however, the "men ofhonor" form a privileged and negatively righteous class, and are letstrictly alone by virtue of their evil past. 

The number of south Italians who now occupy positions of respectabilityin New York and who have criminal records on the other side wouldastound even their compatriots. Even several well-known business men, bankers, journalists, and others have been convicted of something orother in Italy. Occasionally they have been sent to jail; more oftenthey have been convicted in their absence--condannati in contumacia--anddare not return to their native land. Sometimes the offences have beenserious, others have been merely technical. At least one popular Italianbanker in New York has been convicted of murder--but the matter wasarranged at home so that he treats it in a humourous vein. Two otherbankers are fugitives from justice, and at least one editor. 

To-day most of these men are really respectable citizens. Of course someof them are a bad lot, but they are known and avoided. Yet the fact thateven the better class of Italians in New York are thoroughly familiarwith the phenomena surrounding the Mala Vita is favorable to thespread of a certain amount of Camorrist activity. There are a number ofinfluential bosses, or capi maestra, who are ready to undertake almostany kind of a job for from twenty dollars up, or on a percentage. Hereis an illustration. 

A well-known Italian importer in New York City was owed the sum of threethousand dollars by an other Italian, to whom he had loaned the moneywithout security and who had abused his confidence. Finding that thedebtor intended to cheat him out of the money, although he could easilyhave raised the amount of the debt had he so wished, the importer sentfor a Camorrist and told him the story. 

"You shall be paid, " said the Camorrist. 

Two weeks later the importer was summoned to a cellar on Mott Street. The Camorrist conducted him down the stairs and opened the door. A candle-end flaring on a barrel showed the room crowded withrough-looking Italians and the debtor crouching in a corner. TheCamorrist motioned to the terrified victim to seat himself by thebarrel. No word was spoken and amid deathly silence the man obeyed. Atlast the Camorrist turned to the importer and said:

"This man owes you three thousand dollars, I believe. "

The importer nodded. 

"Pay what you justly owe, " ordered the Camorrist. 

Slowly the reluctant debtor produced a roll of bills and counted themout upon the barrel-head. At five hundred he stopped and looked at theCamorrist. 

"Go on!" directed the latter. 

So the other, with beads of sweat on his brow, continued until hereached the two thousand-dollar mark. Here the bills seemed exhausted. The importer by this time began to feel a certain reticence about hispart in the matter--there might be some widows and orphans somewhere. The bad man looked inquiringly at him, and the importer mumbledsomething to the effect that he "would let it go at that. " But the badman misunderstood what his client had said and ordered the bankrupt toproceed. So he did proceed to pull out another thousand dollars from aninside pocket and add it to the pile on the barrel-head. 

The Camorrist nodded, picked up the money, recounted it, and removedthree hundred dollars, handing the rest to the importer. 

"I have deducted the camorra, " said he. 

The bravos formed a line along the cellar to the door, and, as theimporter passed on his way out, each removed his hat and wished hima buona sera. That importer certainly will never contribute toward asociety for the purpose of eradicating the "Black Hand" from the city ofNew York. He says it is the greatest thing he knows. 

But the genuine Camorrist or Mafius' would be highly indignant at beingcalled a "Black Hander. " His is an ancient and honorable profession;he is no common criminal, but a "man peculiarly sensitive in mattersof honor, " who for a consideration will see that others keep theirhonorable agreements. 

The writer has received authoritative reports of three instances ofextortion which are probably prototypes of many other varieties. Thefirst is interesting because it shows a Mafius' plying his regularbusiness and coming here for that precise purpose. There is a largewholesale lemon trade in New York City, and various growers in Italycompete for it. Not long past, a well-dressed Italian of good appearanceand address rented an office in the World Building. 

His name on the door bore the suffix "Agent. " He was, indeed, a mosteffective one, and he secured practically all the lemon business amongthe Italians for his principals, for he was a famous capo ma mafia, andhis customers knew that if they did not buy from the growers under his"protection" that something might, and very probably would, happen totheir families in or near Palermo. At any rate, few of them took anychances in the matter, and his trip to America was a financial success. 

In much the same way a notorious crook named Lupo forced all the retailItalian grocers to buy from him, although his prices were considerablyhigher than those of his competitors. 

Even Americans have not been slow to avail themselves of Camorristmethods. There is a sewing machine company which sells its machines toItalian families on the instalment plan. A regular agent solicits theorders, places the machines, and collects the initial dollar; but themoment a subscriber in Mulberry Street falls in arrears his or her nameis placed on a black list, which is turned over by this enterprisingbusiness house to a "collector, " who is none other than the leadingCamorrist, "bad man, " or Black Hander of the neighborhood. A knock onthe door from his fist, followed by the connotative expression on hisface, results almost uniformly in immediate payment of all that is due. Needless to say, he gets his camorra--a good one--on the money thatotherwise might never be obtained. 

It is probable that we should have this kind of thing among the Italiansin America even if the Neapolitan Camorra and the Sicilian Mafia hadnever existed, for it is the precise kind of crime that seems to bespontaneously generated among a suspicious, ignorant, and superstitiouspeople. The Italian is keenly alive to the dramatic, sensational, andpicturesque; he loves to intrigue, and will imagine plots against himwhen none exists. If an Italian is late for a business engagement theman with whom he has his appointment will be convinced that there issome conspiracy afoot, even if his friend has merely been delayed by ablock on the subway. Thus, he is a good subject for any wily lago thathappens along. The Italians in America are the most thrifty of all ourimmigrant citizens. In five years their deposits in the banks of NewYork State amounted to over one hundred million dollars. The localItalian crooks avail themselves of the universal fear of the vendetta, and let it be generally known that trouble will visit the banker orimporter who does not "come across" handsomely. In most cases theseBlack Handers are ex-convicts with a pretty general reputation as"bad men. " It is not necessary for them to phrase their demands. Thetradesman who is honored with a morning call from one of this gentrydoes not need to be told the object of the visit. The mere presence ofthe fellow is a threat; and if it is not acceded to, the front of thebuilding will probably be blown out by a dynamite bomb in the course ofthe next six weeks--whenever the gang of which the bad man is the leadercan get around to it. And the bad man may perhaps have a still badderman who is preying upon HIM. Very often one of these leaders or bosseswill run two or three groups, all operating at the same time. They meetin the back rooms of saloons behind locked doors, under pretence ofwishing to play a game of zecchinetta unmolested, or in the gloamingin the middle of a city park or undeveloped property on the outskirts. There the different members of the gang get their orders and stations, and perhaps a few dollars advance wages. It is naturally quiteimpossible to guess the number of successful and unsuccessful attemptsat blackmail among Italians, as the amount of undiscovered crimethroughout the country at large is incomputable. No word of itcomes from the lips of the victims, who are in mortal terror of thevendetta--of meeting some casual stranger on the street who willsignificantly draw the forefinger of his right hand across his throat. 

There is rather more chance to find and convict a kidnapper than abomb-thrower, so that, as a means of extortion, child-snatching is lesspopular than the mere demand for the victim's money or his life. Onthe other hand it is probably much more effective in accomplishing itsresult. But America will not stand for kidnapping, and, althoughthe latter occurs occasionally, the number of cases is insignificantcompared with those in which dynamite is the chief factor. In 1908, there were forty-four bomb outrages reported in New York City. Therewere seventy arrests and nine convictions. During the present year(1911) there have been about sixty bomb cases, but there have been nonesince September 8, since Detective Carrao captured Rizzi, a picciott', in the act of lighting a bomb in the hallway of a tenement house. 

This case of Rizzi is an enlightening one for the student of socialconditions in New York, for Rizzi was no Orsini, not even a Guy Fawks, nor yet was he an outlaw in his own name. He was simply a picciott'(pronounced "pish-ot") who did what he was told in order that some otherman who did know why might carry out a threat to blow up somebody whohad refused to be blackmailed. It is practically impossible to getinside the complicated emotions and motives that lead a man to become anunderstudy in dynamiting. Rizzi probably got well paid; at any rate, he was constantly demonstrating his fitness "to do big things in a bigway, " and be received into the small company of the elect--to go forthand blackmail on his own hook and hire some other picciott' to set offthe bombs. 

Whoever the capo maestra that Rizzi worked for, he was not onlya deep-dyed villain, but a brainy one. The gang hired a store andpretended to be engaged in the milk business. They carried the bombs inthe steel trays holding the milk bottles and cans, and, in the costumeof peaceful vendors of the lacteal fluid, they entered the tenements anddid their damage to such as failed to pay them tribute. The manner ofhis capture was dramatic. A real milkman for whom Rizzi had workedin the past was marked out for slaughter. He had been blown up twicealready. While he slept his wife heard some one moving in the hall. Looking out through a small window, she saw the ex-employee fumblewith something and then turn out the gas on the landing. Her husband, awakened by her exit and return, asked sleepily what the matter was. 

"I saw Rizzi out in the hall, " she answered. "It was funny-he put outthe light!"

In a moment the milkman was out of bed and gazing, with his wife, intothe street. They saw Rizzi come down with his tray and pass out ofsight. So did a couple of Italian detectives from Headquarters who hadbeen following him and now, at his very heels, watched him enter anothertenement, take a bomb from his tray, and ignite a time fuse. They caughthim with the thing alight in his hand. Meanwhile the other bomb had goneoff and blown up the milkman's tenement. 

There is some ancient history in regard to these matters which oughtto be retold in the light of modern knowledge; for example, the caseof Patti, the Sicilian banker. He had a prosperous institution in whichwere deposited the earnings of many Italians, poor and wealthy. Lupo'sgang got after him and demanded a large sum for "protection. " But Pattihad a disinclination to give up, and refused. At the time his refusalwas attributed to high civic ideals, and he was lauded as a hero. Anyhow, he defied the Mafia, laid in a stock of revolvers and rifles, and rallied his friends around him. But the news got abroad that Lupowas after Patti, and there was a run on Patti's bank. It was a bigrun, and some of the depositors gesticulated and threatened--for Patticouldn't pay it all out in a minute. Then there was some kind of a row, and Patti and his friends (claiming that the Mafia had arrived) openedfire, killing one man and wounding others. The newspapers praised Pattifor a brave and stalwart citizen. Maybe he was. After the smoke hadcleared away, however, he disappeared with all his depositors' money, and now it has been discovered that the man he killed was a depositorand not a Black Hander. The police are still looking for him. 

This case seems a fairly good illustration of the endless opportunityfor wrong-doing possible in a state of society where extortion ispermitted to exist--where the laws are not enforced--where there is a"higher" sanction than the code. Whether Patti was a good or a bad man, he might easily have killed an enemy in revenge and got off scot-free onthe mere claim that the other was blackmailing him; just as an Americanin some parts of our country can kill almost anybody and rely on beingacquitted by a jury, provided he is willing to swear that the deceasedhad made improper advances to his wife. 

The prevention of kidnapping, bomb-throwing, and the other alliedmanifestations of the Black Hand depends entirely upon the activityof the police--particularly the Italian detectives, who should form aninevitable part of the force in every large city. The fact of the matteris that we never dreamed of a real "Italian peril" (or, more accurately, a real "Sicilian peril") until about the year 1900. Then we woke up towhat was going on--it had already gone a good way--and started in to putan end to it. Petrosino did put an end to much of it, and at the presenttime it is largely sporadic. Yet there will always be a halo about theheads of the real Camorrists and Mafiusi--the Alfanos and the Rapis--inthe eyes of their simple-minded countrymen in the United States. 

Occasionally one of these big guns arrives at an American port of entry, coming first-class via Havre or Liverpool, having made his exit fromItaly without a passport. Then the Camorrists of New York and Brooklynget busy for a month or so, raising money for the boys at home andknowing that they will reap their reward if ever they go back. Thepopular method of collecting is for the principal capo maestra, ortemporary boss of Mulberry Street, to "give" a banquet at which all"friends" must be present--at five dollars per head. No one cares to beconspicuous by reason of his absence, and the hero returns to Italy witha large-sized draft on Naples or Palermo. 

Meanwhile the criminal driven out of his own country has but to securetransportation to New York to find himself in a rich field for hisactivities; and once he has landed and observed the demoralization oftenexisting from political or other reasons in our local forces of policeand our uncertain methods of administering justice (particularly wherethe defendant is a foreigner), he rapidly becomes convinced that Americais not only the country of liberty but of license--to commit crime. 

Most Italian crooks come to the United States not merely some time orother, but at intervals. Practically all of the Camorrist defendants ontrial at Viterbo have been in the United States, and all will be heresoon again, after their discharge, unless steps are taken to keep themout. Luckily, it is a fact that so much has been written in Americannewspapers and periodicals in the past few years about the danger of theBlack Hand and the criminals from south Italy that the authorities onthe other side have allowed a rumor to be circulated that the climate ofSouth America is peculiarly adapted to persons whose lungs have becomeweakened from confinement in prison. In fact, at the present timemore Italian criminals seek asylum in the Argentine than in the UnitedStates. Theoretically, of course, as no convict can procure a passport, none of them leave Italy at all--but that is one of the humors ofdiplomacy. The approved method among the continental countries of Europeof getting rid of their criminals is to induce them to "move on. " A lotof them keep "moving on" until they land in America. 

Of course, the police should be able to cope with the Black Handproblem, and, with a free use of Italian detectives who speak thedialects and know their quarry, we may gradually, in the course offifteen years or so, see the entire disappearance of this particularcriminal phenomenon. But an ounce of prevention is worth--several tonsof cure. Petrosino claimed--not boastfully--that he could, with properdeportation laws behind him, exterminate the Black Hand throughout theUnited States in three months. 

But, as far as the future is concerned, a solution of the problemexists--a solution so simple that only a statesman could explain whyit has not been adopted long years ago. The statutes in force at EllisIsland permit the exclusion of immigrants who have been guilty of crimesinvolving moral turpitude in their native land, but do not provide forthe compulsory production of the applicants' "penal certificate" underpenalty of deportation. Every Italian emigrant is obliged to securea certified document from the police authorities of his native place, giving his entire criminal record or showing that he has had none, andwithout it he can not obtain a passport. For several years effortshave been made to insert in our immigration laws a provision that everyimmigrant from a country issuing such a certificate must produceit before he can be sure of admission to the United States. If thisproposed law should be passed by Congress the exclusion of Italiancriminals would be almost automatic. But if it or some similarprovisions fails to become law, it is not too much to say that we maywell anticipate a Camorra of some sort in every locality in our countryhaving a large Italian population. Yet government moves slowly, andaction halts while diplomacy sagely shakes its head over the officialcigarette. 

A bill amending the present law to this effect has received theenthusiastic approval of the immigration authorities and of thePresident. At first the Italian officials here and abroad expressedthemselves as heartily in sympathy with this proposed addition tothe excluded classes; but, once the bill was drawn and submitted toCongress, some of these same officials entered violent protests againstit, on the ground that such a provision discriminated unfairly againstItaly and the other countries issuing such certificates. The result ofthis has been to delay all action on the bill which is now being held incommittee. Meanwhile the Black Hander is arriving almost daily, and wehave no adequate laws to keep him out.