The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice

THE PRISONER AT THE BAR

SIDELIGHTS ON THE ADMINISTRATION
OF CRIMINAL JUSTICE

BY

ARTHUR TRAIN

Assistant District Attorney, New York County

SECOND EDITION
REVISED AND ENLARGED

NEW YORK
CHARLES SCRIBNER'S SONS

1915

Copyright, 1906, 1908, by

CHARLES SCRIBNER'S SONS

To

ETHEL KISSAM TRAIN

PREFACE TO THE SECOND EDITION

The favorable reception accorded to the "Prisoner at the Bar," not only in the United States but in England, and the fact that it has won a place in several colleges and law schools as a reference book, and in some instances as a sort of elementary text-book upon criminal procedure, have resulted in a demand for a new edition. When the book was written the author's sole intention was to present in readable form a popular account of the administration of criminal justice. Upon its publication he discovered to his surprise that it was the only book of its exact character in the English language or perhaps in any other. Reviewers pointed out that whereas there were annotated text-books of criminal procedure and isolated articles on special topics, most of them relating to the jury system, there was in existence no other sketch of criminal justice as a whole, from arrest to conviction, based upon either actual experience or hearsay.

This new edition has been indexed and is supplied with cross-references to other works on allied subjects. A chapter has been added upon "Insanity and the Law," and such statistics as the book contains have been brought down to date. It is satisfactory to add that these show a greatly increased efficiency in the jury system in criminal cases in New York County, and that the tabulations of an eight years' experience as a prosecutor only serve to confirm the conclusions set forth in the first edition.

The author desires to express his thanks to Prof. John H. Wigmore, of the Northwestern University Law School, for his many kind suggestions and flattering references to this book in his masterly work upon the law of evidence; to Augustin Derby, Esq., of the New York bar, who most unselfishly gave much time to the examination of references, and voluntarily undertook the ungrateful task of compiling the index; and to those many others who, by comment or appreciation, have made a second edition necessary.

Bar Harbor, Me.,
Sept. 1, 1908.

PREFACE TO THE FIRST EDITION

The prisoner at the bar is a figure little known to most of us. The newspapers keep us steadily informed as to the doings of all sorts of criminals up to the time of their capture, and prison literature is abundant, but just how the criminal becomes a convict is not a matter of common knowledge. This, however, does not prevent the ordinary citizen from expressing pronounced and, frequently, vociferous opinions upon our methods of administering criminal justice, in the same way that he stands ready at any time to criticise the Darwinian theory, free trade or foreign missions. Full knowledge of any subject is inevitably an impediment to forcible asseveration. Generalities are easy to formulate and difficult to disprove. The man who sits with his feet up and his chair tilted back in the "drummer's" hotel will inform you that there is no such thing as criminal justice and that the whole judiciary, state and federal, is "owned" or can be bought; you yourself doubtless believe that the jury system is a failure and successfully evade service upon it; while your neighbor is firmly convinced that prosecutors secure their positions by reason of their similarity to bloodhounds and retain them by virtue of the same token.

The only information available to most people on this exceedingly important subject is that offered by the press, and the press (save in the case of sensational murder trials) usually confines itself to dramatic accounts of the arrest of the more picturesque sort of criminals, with lurid descriptions of their offences. The report or "story" concludes with the statement that "Detective-Sergeant Smith immediately arraigned his prisoner (Robinson) before Magistrate Jones, who committed the latter to jail and adjourned the hearing until the following Tuesday." This ends the matter, and the grewsome or ingenious details of the crime having been served up to satisfy the public appetite, and the offender having been locked up, there is nothing, from the reporters' point of view, any longer in the story. We never hear of Robinson again unless he happens to be the president of a bank or a degenerate millionaire. He is "disposed of," as they say in the criminal reports, without exciting anybody's interest, and his conviction or acquittal is not attended by newspaper comment.

If on the other hand the case be one of sensational interest we are treated daily to long histories of the defendant and his family, illustrated by grotesque reproductions from the ancestral photograph album. We become familiar with what he eats and drinks, the number of cigars he smokes and his favorite actor and author. The case consumes months in preparation and its trial occupies weeks. A battalion of "special" talesmen marches to the court house,—"the standing army of the gibbet," as one of my professional brethren (on the other side of the bar) calls them. As each of the twelve is chosen his physiognomy appears on the front page of an evening edition, a tear dropping from his eye or his jaws locked in grim determination, in accordance with the sentiments of the editor or the policy of the owner. Then follows a pictorial procession of witnesses. The prosecutor makes a full-page address to the public in the centre of which appears his portrait, heroic size, arm sawing the air.

"I am innocent!" cries a purple defendant, in green letters.

"Murderer!" hisses a magenta prosecutor, in characters of vermilion.

Finally the whole performance comes to an end without anybody having much of an idea of what has actually taken place, and leaving on the public mind an entirely false and distorted conception of what a criminal trial is like.

The object of this book is to correct the very general erroneous impression as to certain phases of criminal justice, and to give a concrete idea of its actual administration in large cities in ordinary cases,—cases quite as important to the defendants and to the public as those which attract widespread attention.

The millionaire embezzler and the pickpocket are tried before the same judge and the same jury, and the same system suffices to determine the guilt or innocence of the boy who has broken into a cigar store and the actress who has murdered her lover. It is in crowded cities, like New York, containing an excessive foreign-born population, that the system meets with its severest test, and if tried and not found wanting under these conditions it can fairly be said to have demonstrated its practical efficiency and stability. Has the jury system broken down? Are prosecutors habitually vindictive and over-zealous? It is the hope of the writer that the chapters which follow may afford some data to assist the reader in formulating an intelligent opinion upon these and kindred subjects. It is needless to say that no attempt is made to discuss police corruption, the increase or decrease of crime, or penology in general, and the writer has confined himself strictly to that period of the criminals' history described in the title as "AT THE BAR."

To my official chief, William Travers Jerome, and to my associates, Charles Cooper Nott, Charles Albert Perkins, and Nathan A. Smyth, I desire to acknowledge my gratitude for their advice and assistance; to my friend, Leonard E. Opdycke, who suggested the collection and correlating of these chapters, I wish to express my thanks for his constant interest and encouragement; but my debt to these is naught compared to that which I owe to her to whom this book is dedicated, who, with unsparing pains, has read, re-read and revised these chapters in manuscript, galley and page and who has united the functions of critic, censor and collaborator with a patience, good humor, and discretion which make writing a joy and proof-reading a vacation.

Arthur Train.
Bar Harbor, Me.,
Sept. 1, 1906.

CONTENTS

[INTRODUCTION]

By Prof. John H. Wigmore,
Dean of the Law School of Northwestern University.

Mr. Train's book, "The Prisoner at the Bar," as an entertaining and vivid picture of the criminal procedure of to-day, and a repertory of practical experience and serious discussion of present-day problems in the administration of justice, is, in my opinion, both unique and invaluable. I know of no other book which so satisfyingly fills an important but empty place in a modern field. At one extreme stand the scientific psycho-criminologists, usefully investigating and reflecting, but commonly severed from the practical treatment of any branch of the subject until the prison doors are reached. At another extreme are the professional lawyers, skilled in the technique of present procedure, but too much tied by precedent to take anything but a narrow, backward-looking view. Off in a third corner are the economists, sociologists, physicians, and serious citizens in general, who notice that some things are going wrong, but have no accurate conception of what is actually seen and done every day in courts of justice; these good people run the risk of favoring impracticable fads or impossible theories.

Now comes Mr. Train's book, casting in the centre of the field an illumination useful to all parties. It enlightens the serious citizen as to the actual experiences of our criminal justice, and shows him the inexorable facts that must be reckoned with in any new proposals. The professional lawyer is stimulated to think over the large tendencies involved in his daily work, to realize that all is not necessarily for the best, and to join and help with his skill. The scientific criminologist is warned against trusting too much to the cobwebs of his ideal theories, or adhering too implicitly to the Lombrosan school or other foreign propaganda, and is forced to keep in mind a living picture of the practical needs of American justice.

I do not hesitate to say that every thoughtful American citizen ought to know all the things that are told in this book; and if he did, and as soon as he did, we might then begin to work with encouragement to accomplish in a fashion truly practical as well as scientific the needed improvements in our criminal justice. Such effort is likely to be hopeless until people come to realize what the facts are. Judging by my own case, I feel that most people will never really know and appreciate the facts unless they read Mr. Train's book.

THE PRISONER AT THE BAR

[CHAPTER I]

WHAT IS CRIME?

A crime is any act or omission to act punishable as such by law. It is difficult, if not impossible, to devise any closer definition. Speaking broadly, crimes are certain acts, usually wrongful, which are regarded as sufficiently dangerous or harmful to society to be forbidden under pain of punishment. The general relation of crimes to wrongs as a whole is sometimes illustrated by a circle having two much smaller circles within it. The outer circle represents wrongful acts in the aggregate; the second, wrongful acts held by law to be torts, that is to say, infractions of private rights for which redress may be sought in the civil courts, and the smallest or inner circle, acts held to be so injurious to the public as to be punishable as crimes.

This does well enough for the purpose of illustrating the relative proportion of crimes to torts or wrongful acts in general, and, if a tiny dot be placed in the centre of the bull's-eye to represent those crimes which are actually punished, one gets an excellent idea of how infinitely small a number of these serve to keep the whole social fabric in order and sustain the majesty of the law. But the inference might naturally be drawn that whatever was a crime must also be a tort or at least a wrong, which, while true in the majority of instances, is not necessarily the case in all. In a certain sense crimes are always wrongs or, at least, wrong, but only in the sense of being infractions of law are they always wrongs or wrong.

The word wrong being the antithesis of the word right, and carrying with it generally some ethical or moral significance, will vary in its meaning according to the ideas of the individual who makes use of it. Indeed, it is conceivable that the only really right thing to do under certain circumstances would be to commit an act designated by law as a crime. So, conversely, while a wrong viewed as an infraction of the laws of God is a sin, that which is universally held sinful is by no means always a crime. Speaking less broadly, a wrong is an infraction of a right belonging to another, which he derives from the law governing the society of which he is a member. Many wrongs are such that he may sue and obtain redress therefor in the courts. But it by no means follows that every crime involves the infraction of a private right or the commission of a tort. Thus "perjury" and most crimes against the State are not torts at all. It will thus be seen that no accurate definition of a crime can be given save that it is an act or omission which the State punishes as such, and that technically the word carries with it no imputation or implication of sin, vice, iniquity, or in a broad sense even of wrong. The act may or may not be repugnant to our ideas of right. Numerically considered, only a minority of crimes have any ethical significance whatever, the majority being designated by the law itself as mala prohibita, rather than mala in se.

It is the duty of a prosecutor to see that infractions of the criminal law are punished and to represent the public in all proceedings had for that purpose, but, in view of what has just been said, it will be observed that his duties do not necessarily involve familiarity with vice, violence or even sin. The crimes he is called upon to prosecute may be disgusting, depraved and wicked, or they may be, and frequently are, interesting, ingenious, amusing or, possibly (though not probably), commendable. For example, a man who chastises the foul slanderer of a young woman's character may have technically committed an assault of high degree, yet if he does so in the proper spirit, in a suitable place, and makes the offender smart sufficiently, he deserves the thanks and congratulations of all decent men and honest women. Yet, indubitably, he has committed a crime, although, thanks to our still lingering spirit of chivalry, he would never be stamped by any jury as a criminal.

A prosecutor is frequently asked if he does not find that his experience has a "hardening" effect.

"Why should it?" he might fairly reply. "I have to do with criminals, it is true, but the criminals as a rule are little or no worse than the classes of people outside from which they have been drawn. Their arrest and conviction are largely due to accidental causes, such as weak heads, warm hearts, quick temper, ignorance, foolishness or drunkenness. We see all of these characteristics in our immediate associates. A great many convicted persons have done acts which are not wrong at all, but are merely forbidden. Even where their acts are really wrong it is generally the stupid, the unfortunate, or the less skilful who are caught. For every rogue in jail there are at least ten thousand at large. The ones who escape are wiser and very likely meaner. Last, but not least, a very great number of the most despicable, wicked, and harmful deeds that can be committed are not crimes at all. The fact that a man is a criminal argues nothing at all against his general decency, and when I meet a convict I assume, and generally assume correctly, that to most intents and purposes he is a gentleman. The code which puts one man in stripes and allows another to ride in an automobile is purely artificial, and strictly speaking proves not a whit which is the better man."

Now while such an answer might seem frivolous enough to the lay reader, it would nevertheless be substantially true. Your criminal, that is to say, strictly, the law-breaker who is brought to book for his offence, is very likely a pretty good sort of fellow as fellows go. If he has been guilty merely of an act which is prohibited, not because of its inherent wrong, but simply on grounds of public policy—malum prohibitum—he is probably as good as anybody. His offence may be due to ignorance or accident. Assuming that his crime be one which would seem to involve moral turpitude—malum in se—there are very likely mitigating circumstances which render his offence, if not excusable, at least less reprehensible than would appear at first glance.

Crimes bear no absolute relation to one another. A murderer may or may not be worse than a thief,—and either may be better than his accuser. The actual danger of any particular offender to the community lies not so much in the kind or degree of crime which he may have committed as in the state of his mind. Even the criminals who are really criminal, in the sense that they have a systematic intention of defying the law and preying upon society, are generally not criminal in all directions, but usually only in one, so that taken upon their unprofessional side they present the same characteristics as ordinary and, roughly speaking, law-abiding citizens. The bank robber usually is a bank robber and nothing more. He specializes in that one pursuit. It is his vocation and his joy. He prides himself on the artistic manner in which he does his work. He would scorn to steal your watch and is a man of honor outside of bank-breaking hours,—"Honor among thieves." Often enough he is a model husband and father. So, too, may be your forger, gambler, swindler, burglar, highwayman, or thief,—any in fact except the real moral pervert; and of course murder is entirely compatible on occasion with a noble, dignified and generous character. "There is nothing essentially incongruous between crime and culture." The prosecutor who begins by loathing and despising the man sitting at the bar may end by having a sincere admiration for his intellect, character or capabilities. This by way of defence to crime in general.

Our forefathers contented themselves with a rough distinction between crimes as mala prohibita and mala in se. When they sought to classify criminal acts under this arrangement they divided them accordingly as the offence carried or did not carry with it a suggestion of moral turpitude. Broadly speaking, all felonies were and are regarded as mala in se. Murder, arson, burglary, theft, etc., in general indubitably imply a depraved mind, while infractions of Sunday observance laws or of statutes governing the trade in liquor do not. Yet it must be perfectly clear that any such distinction is inconclusive.

There can be no general rule based merely on the name or kind of crime committed which is going to tell us which offender is really the worst. A misdemeanor may be very much more heinous than a felony. The adulterator of drugs or the employer of illegal child labor may well be regarded as vastly more reprehensible than the tramp who steals part of the family wash. So far as that goes there are an alarming multitude of acts and omissions not forbidden by statute or classed as crimes which are to all intents and purposes fully as criminal as those designated as such by law. This is the inevitable result of the fact that crimes are not crimes merely because they are wrong, but because the State has enjoined them. For example, to push a blind man over the edge of a cliff so that he is killed upon the rocks below is murder, but to permit him to walk over it, although by stretching out your hand you might prevent him, is no crime at all. It is a crime to defame a woman's character if you write your accusation upon a slip of paper and pass it to another, but it is no crime in New York State to arise in a crowded lecture hall and ruin her forever by word of mouth. It is a crime to steal a banana off a fruit-stand, but it is no crime to borrow ten thousand dollars from a man whose entire fortune it is, although you have no expectation of returning it. You can be a swindler all your life—the meanest sort of a mean swindler, but there is no crime of being a swindler or of being a mean man. It is a crime to ruin a girl of seventeen years and eleven months, but not to ruin a girl of eighteen. The "age of consent" varies in the different States. It is a crime to obtain a dollar by means of a false statement as to a past or existing fact, but it is no crime to obtain as much money as you can by any other sort of a lie. Lying is not a crime, but lying under oath is a crime,—provided it be done in a legal proceeding and relates to a material matter. The most learned jurists habitually disagree as to what is material and what is not.

Even when the acts to be contrasted are all crimes there is no way of actually discriminating between them except by carefully scrutinizing the circumstances of each. The so-called "degrees" mean little or nothing. If you steal four hundred and ninety-nine dollars out of a man's safe in the daytime it is grand larceny in the second degree. If you pick the same man's pocket of a subway ticket after sunset it is grand larceny in the first degree. You may get five years in the first instance and ten in the second. If you steal twenty-five dollars out of a bureau drawer you commit petty larceny and may be sent to prison for only one year.

If the degree of any particular crime of which a defendant is found guilty is no index to his real criminality or of his danger to society, still less is the name of the crime he has committed an index to his moral character, save in the case of certain offences which it is not necessary to enumerate. Most men charged with homicide are indicted for murder in the first degree. This may be a wise course for the grand jury to pursue in view of the additional evidence which often comes to light during a trial. But it frequently is discovered before the case goes to the jury that in point of fact the killing was in hot blood and under circumstances which evince no great moral turpitude in the slayer. For example, two drunken men become involved in an altercation and one strikes the other, who loses his equilibrium and falls, hitting his head against a curbstone and fracturing his skull. The striker is indicted and tried for murder. Now he is doubtless guilty of manslaughter, but he is less dangerous to the community than a professional thief who preys upon the public by impersonating a gasman or telephone repairer and by thus gaining access to private dwellings steals the owner's property. One is an accidental, the other an intentional criminal. One is hostile to society as a whole and the other is probably not really hostile to anybody. Yet the less guilty is denominated a murderer, and the other is rarely held guilty of more than petty larceny. A fellow who bumps into you on the street, if he be accompanied by another, and grabs your cane, is guilty of robbery in the first degree,—"highway" robbery,—and may get twenty years for it, but the same man may publish a malicious libel about you, and by accusing you of the foulest practices rob you of your good name and be only guilty of a misdemeanor. Yet the reader should not infer that definitions and grades of crime capable of corresponding punishments are not proper, desirable, and necessary. Of course they are. The practical use of such statutes is to fix a maximum sentence of punishment. As a rule the minimum is anything the judge sees fit. Hence you may deduce a general principle to the effect that the charge against the prisoner, even assuming his guilt, indicates nothing definite as to his moral turpitude, danger to the community, or general undesirability.

But we may honestly go much further. Not only are the names and degrees of the crimes which a defendant may have committed of very little assistance in determining his real criminality, but the fact that he has committed them by no means signifies that he is morally any worse than some man who has committed no so-called crime at all. Many criminals, even those guilty of homicide, are as white as snow compared with others who have never transgressed the literal wording of a penal statute.

"We used to have So and So for our lawyer," remarked the president of a large street railway corporation. "He was always telling us what we couldn't do. Now we have Blank, and pay him one hundred thousand dollars a year to tell us how we can do the same things." The thief who can have the advice of able counsel "how to do it" need never go to jail.

Many of the things most abhorrent to our sense of right do not come within the scope of the criminal law. Omissions, no matter how reprehensible, are usually not regarded as criminal, because in most cases there is no technical legal duty to perform the act omitted. Thus, not to remove your neighbor's baby from the railroad track in front of an on-rushing train, although it would cause you very little trouble to do so, is no crime, even if the child's life be lost as a result of your neglect. You can let your mother-in-law choke to death without sending for a doctor, or permit a ruffian half your size to kill an old and helpless man, or allow your neighbor's house to burn down, he and his family peacefully sleeping inside it, while you play on the pianola and refuse to ring up the fire department, and never have to suffer for it—in this world.

Passing from felonies—mala in se—to misdemeanors—generally only mala prohibita—almost anything becomes a crime, depending upon the arbitrary act of the legislature.

It is a crime in New York State to run a horse race within a mile of where a court is sitting; to advertise as a divorce lawyer; to go fishing or "play" on the first day of the week; to set off fire-works or make a "disbursing noise"[1] at a military funeral in a city on Sunday; to arrest or attach a corpse for payment of debt; to keep a "slot machine"; to do business under any name not actually your own full name without filing a certificate with the county clerk (as, for example, if, being a tailor, you call your shop "The P.D.Q. Tailoring Establishment"); to ride in a long-distance bicycle race more than twelve hours out of twenty-four; to shoe horses without complying with certain articles of the Labor Law; to fail to supply seats for female employés in a mercantile establishment; to steal a ride in a freight car, or to board such a car or train while in motion; to set fire negligently to one's own woods, by means of which the property of another is endangered; to run a ferry without authority, or, having contracted to run one, to fail to do so; to neglect to post ferry rates (under certain conditions) in English; to induce the employé of a railroad company to leave its service because it requires him to wear a uniform; to wear a railroad uniform without authority; to fish with a net in any part of the Hudson River (except where permitted by statute); to secretly loiter about a building with intent to overhear discourse therein, and to repeat the same to vex others (eavesdropping); to sell skimmed milk without a label; to plant oysters (if you are a non-resident) inside the State without the consent of the owner of the water; to maintain an insane asylum without a license; to enter an agricultural fair without paying the entrance fee; to assemble with two or more other persons "disguised by having their faces painted, discolored, colored or concealed," save at a fancy-dress ball for which permission has been duly obtained from the police; or to wear the badge of the "Patrons of Husbandry," or of certain other orders without authority. These illustrations are selected at random from the New York Penal Code.

Where every business, profession, and sport is hedged around by such chevaux-de-frise of criminal statutes, he must be an extraordinarily careful as well as an exceptionally well-informed citizen who avoids sooner or later crossing the dead-line. It is to be deprecated that our law-makers can devise no other way of regulating our existences save by threatening us with the shaved head and striped shirt.

The actual effect of such a multitude of statutes making anything and everything crimes, punishable by imprisonment, instead of increasing our respect for law, decreases it, unless they are intended to be and actually are enforced. Acts mala in se are lost in the shuffle among the acts mala prohibita, and we have to become students to avoid becoming criminals.

Year by year the legislature goes calmly on creating all sorts of new crimes, while failing to amplify or give effect to the various statutes governing existing offences which to a far greater degree are a menace to the community. For example, it is not a crime in New York State to procure money by false pretences provided the person defrauded parts with his money for an illegal purpose.[2]

In the McCord[3] case, in which the Court of Appeals established this extraordinary doctrine, the defendant had falsely pretended to the complainant, a man named Miller, that he was a police officer and held a warrant for his arrest. By these means he had induced Miller to give him a gold watch and a diamond ring as the price of his liberty. The conviction in this case was reversed on the ground that Miller parted with his property for an unlawful purpose; but there was a very strong dissenting opinion from Mr. Justice Peckham, now a member of the bench of the Supreme Court of the United States.

In a second case, that of Livingston,[4] the complainant had been defrauded out of five hundred dollars by means of the "green-goods" game; but this conviction was reversed by the Appellate Division of the Second Department on the authority of the McCord case. The opinion was written by Mr. Justice Cullen, now Chief Judge of the New York Court of Appeals, who says in conclusion:

"We very much regret being compelled to reverse this conviction. Even if the prosecutor intended to deal in counterfeit money, it is no reason why the appellant should go unwhipped of justice. We venture to suggest that it might be well for the legislature to alter the rule laid down in McCord vs. People."

Well might the judges regret being compelled to set a rogue at liberty simply because he had been ingenious enough to invent a fraud which involved the additional turpitude of seducing another into a criminal conspiracy. Livingston was turned loose upon the community, in spite of the fact that he had swindled a man out of five hundred dollars, because he had incidentally led the latter to believe that in return he was to receive counterfeit money or "green goods" which might be put into circulation. Yet, because, some years before, the judges of the Court of Appeals had, in the McCord matter, adopted the rule followed in civil cases, to wit, that as the complaining witness was himself in fault and did not come into court with clean hands he could have no standing before them, the Appellate Division in the next case felt obliged to follow them and to rule tantamount to saying that two wrongs could make a right and two knaves one honest man. It may seem a trifle unfair to put it in just this way, but when one realizes the iniquity of such a rule as applied to criminal cases, it is hard to speak softly. Thus the broad and general doctrine seemed to be established that so long as a thief could induce his victim to believe that it was to his advantage to enter into a dishonest transaction, he might defraud him to any extent in his power. Immediately there sprang into being hordes of swindlers, who, aided by adroit shyster lawyers, invented all sorts of schemes which involved some sort of dishonesty upon the part of the person to be defrauded. The "wire-tappers," of whom "Larry" Summerfield was the Napoleon, the "gold-brick" and "green-goods" men, and the "sick engineers" flocked to New York, which, under the unwitting protection of the Court of Appeals, became a veritable Mecca for persons of their ilk.

The "wire-tapping" game consisted in inducing the victim to put up money for the purpose of betting upon a "sure thing," knowledge of which the thief pretended to have secured by "tapping" a Western Union wire of advance news of the races. He usually had a "lay out" which included telegraph instruments connected with a dry battery in an adjoining closet, and would merrily steal the supposed news off an imaginary wire and then send his dupe to play his money upon the "winner" in a pretended pool-room which in reality was nothing but a den of thieves, who instantly absconded with the money.

In this way one John Felix was defrauded out of fifty thousand dollars on a single occasion.[5] Now the simplest legislation could instantly remedy this evil and put all the "wire-tappers" and similar swindlers out of business, yet a bill framed and introduced in accordance with the suggestion of the highest court in the State was defeated. Instead the legislature passes scores of entirely innocuous and respectable acts like the following, which became a law in 1890:

An Act for the Prevention of Blindness

Section 1. Should ... nurse having charge of an infant ... notice that one or both eyes of such infant are inflamed or reddened at any time within two weeks after its birth it shall be the duty of such nurse ... to report the fact in writing within six hours to the health officer or some legally qualified practitioner of medicine ...

Section 2. Any failure to comply with the provisions of this act shall be punished by a fine not to exceed one hundred dollars, or imprisonment not to exceed six months, or both.

The criminal law which had its origin when violence was rife is admirably adapted to the prevention, prosecuting and punishment of crude crimes, such as arson, rape, robbery, burglary, mayhem, assault, homicide, and "common-law" larceny,—theft accompanied by a trespass. In old times everything was against the man charged with crime—at least that was the attitude of the court and jury. "Aha!" exclaims the judge as the evidence goes in. "You thought you were stealing only a horse! But you stole a halter as well!" And the spectators are convulsed with merriment.

We take honest pride in the protection which our law affords to the indicted prisoner. It is the natural expression of our disapproval of a system which at the time of our severance from England ignored the rights of the individual for those of the community. We touched the lips of the defendant and gave him the right to speak in his own behalf. We gave him an unlimited right of appeal on any imaginable technicality.[6] But while we have been making it harder and harder to convict our common criminals, we have to a very great extent failed to recognize the fact that all sorts of new and ingenious crimes have come into existence with which the law in its present state is utterly unable to cope. The evolution of the modern corporation has made possible larcenies to the punishment of which the law is entirely inadequate. "Acts for the prevention of blindness" are perhaps desirable, but how about a few statutes to prevent the officers of insurance companies from arbitrarily diverting the funds of that vague host commonly alluded to as "widows and orphans"? The careless nurse is a criminal and may be confined in a penitentiary; while perhaps a man who may be guilty of a great iniquity and known to be so drives nonchalantly off in his coach and four.

What is crime? We may well ask the question, only eventually to be confronted by that illuminating definition with which begins the Penal Code—"A crime is an act or omission forbidden by law and punishable upon conviction by ... penal discipline." Let us put on our glasses and find out what these acts or omissions are. When we have done that we may begin to look around for the criminals. But it will be of comparatively little assistance in finding the sinners.

So-called criminologists delight in measuring the width of the skulls between the eyes, the height of the foreheads, the length of the ears, and the angle of the noses of persons convicted of certain kinds of crimes, and prepare for the edification of the simple-minded public tables demonstrating that the burglar has this kind of a head, the pickpocket that sort of an ear, and the swindler such and such a variety of visage. Exhaustive treatises upon crime and criminals lay down general principles supposed to assist in determining the kind of crime for which any particular unfortunate may have a predilection. One variety of criminal looks this way and another looks that way. One has blue eyes, the other brown eyes.[7] Some look up, others look down. My friend, if you examine into the question, you will probably discover that the clerk who sells you your glass of soda water at the corner drug store will qualify for some one of these classes, so will your host at dinner this evening, so, very likely, will the family doctor or the pastor of your church.

The writer is informed that there has recently been produced an elaborate work on political criminals in which an attempt is made to set forth the telltale characteristics of such. It is explained that the tendency to commit such crimes may be inherited. You are about as likely to inherit an inclination to commit a political crime as you are to derive from a maiden aunt a tendency to violate a speed ordinance or make a "disbursing" noise.

Let some one codify all the sins and meannesses of mankind, let the legislatures make them crimes and affix appropriate penalties, then those of us who still remain outside the bars may with more propriety indulge ourselves in reflections at the expense of those who are not.

FOOTNOTES:

[1] New York Penal Code, Section 276.

[2] No longer the law of New York. After this book was published the Court of Appeals reversed the conviction of Tracy for his $50,000 fraud upon Felix by means of the "wire-tapping" game and affirmed as law the doctrine of People vs. McCord. The author takes satisfaction in recording that the Legislature thereupon awoke to its duties and amended the penal code in such a fashion as to render such offences criminal.

[3] 46 New York 470.

[4] 47 App. Div. 283.

[5] The operations of these swindlers recently became so notorious that the District Attorney of New York County determined to prosecute the perpetrators of the Felix swindle, in spite of the fact that the offence appeared to come within the language of the Court of Appeals in the McCord and Livingston cases. Accordingly Christopher Tracy, alias Charles Tompkins, alias Topping, etc., etc., was indicted (on the theory of "trick and device") for the "common-law" larceny of Felix's fifty thousand dollars.

The trial came on before Judge Warren W. Foster in Part III of the General Sessions on February 27, 1906. A special panel quickly supplied a jury, which, after hearing the evidence, returned a verdict of guilty in short order.

It now remains for the judges of the Court of Appeals to decide whether they will extend the doctrine of the McCord and Livingston cases to a fraud of this character, whether they will limit the doctrine strictly to cases of precisely similar facts, or whether they will frankly refuse to be bound by any such absurd and iniquitous theory and consign the McCord case to the dust-heap of discarded and mistaken doctrines, where it rightfully belongs. Their action will determine whether the perpetrators of the most ingenious, elaborate and successful bunco game in the history of New York County shall be punished for their offence or instead be turned loose to prey at will upon the community at large. (See "The Last of the Wire-Tappers" in the American Magazine for June, 1906; also incorporated in the author's "True Stories of Crime," pp. 103-121, published by Charles Scribner's Sons, 1908.)

[6] Cf. in general, references given infra, p. 339.

[7] The following appeared in the New York Globe for April 25, 1905: "Criminal eyes—It is well known," says Dr. Beddoe, F.R.S., "that brown eyes and dark hair are particularly common among the criminal classes. An American observer calls the brown the criminal eye, etc., etc."

[CHAPTER II]

WHO ARE THE REAL CRIMINALS?

Some reader of the preceding chapter may perhaps remark, "This is all very well so far as it goes. It doubtless is entirely true from a purely technical point of view. But that is only one side of the matter. How about the real criminals?" This is neither an unexpected nor an uninvited criticism. Who are the "real" criminals? Charles Dudley Warner says: "Speaking technically, we put in that [the criminal] class those whose sole occupation is crime, who live upon it as a profession and who have no other permanent industry. They prey upon society. They are by their acts at war upon it and are outlaws." Now the class of professional criminals to which Mr. Warner refers as contrasted with the great mass of criminal defendants as a whole is, in point of fact, relatively so small, and so easily recognized and handled, that it plays but an inconspicuous part in the administration of criminal justice.

The criminals who conform accurately to childhood's tradition are comparatively few in number. The masked highwayman, the safe-cracker and even the armed house burglar have, with a few exceptions, long since withdrawn from the actual pursuit of their romantic professions and exist practically only in the eagerly devoured pages of Sherlock Holmes and the "memoirs of great detectives." New and almost more picturesque figures have taken their places,—the polite and elegant swindler, the out-at-the-elbows but confidence-inspiring promoter of assetless corporations, the dealer in worthless securities, and the forger who drives in his own carriage to the bank he intends to defraud. In some cases the individuals are the same, the safe-cracker merely having doffed his mask in favor of the silk hat of Nassau Street. Of yore he stole valuable securities which he was compelled to dispose of at a tremendous discount; now he sells you worthless stocks and bonds at a slight premium. Mr. J. Holt Schorling, writing in The Contemporary Review for June, 1902, points out that while all crimes other than fraud decreased materially in England from 1885 to 1899, the crime of fraud itself materially increased during the same period.[8]

The subject is a tempting one, but it is not essential to our thesis. The devil is not dead; he has merely changed his clothes. Criminal activity has not subsided; it has instead sought new ways to meet modern conditions, and so favorable are these that while polite crime may be said still to be in its infancy, it is nevertheless thriving lustily.

While the degenerate criminal class is the subject of much elaborate and minute analysis by our continental neighbors, its extent is constantly exaggerated and its relation to the other criminal classes not fully appreciated. To read some supposedly scientific works one would imagine that every court of criminal justice was or should be nothing but a sort of clinic. To these learned authors, civilization, it is true, owes a debt for their demonstration that some crime is due to insanity and should be prevented, and, where possible, cured in much the same manner. But they have created an impression that practically all crime is the result of abnormality.

Every great truth brings in its train a few falsehoods,—every great reform a few abuses. The first penological movement was in the direction of prison reform. While perhaps the psychological problem was not entirely overlooked, it was completely subordinated to the physical. It is a noble thing that the convict should have a warm cell in winter and a cool one in summer, with electric light and running water, wholesome and nutritious food, books, bathrooms, hospitals, chapels, concerts, ball games and chaplains. "But it must be noted that along with this movement has grown up a sickly sentimentality about criminals which has gone altogether too far, and which, under the guise of humanity and philanthropy, confounds all moral distinctions." To a large number of well-meaning people every convict is a person to whom the State has done an injury.

Then came the study of degeneracy, with the cranium of every criminal as a subject of investigation. In 1881 or thereabouts Professor Benedickt published his conclusion that "the brains of criminals exhibit a deviation from the anthropological variety of their species, at least among the cultured races." It was a commendable thing to point out the relation of insanity to crime. It is an undeniable truth that there are insane people who are predisposed to crime just as there are those who are predisposed to dance.

The vicious criminal class contains many who are actually or incipiently insane, and it numbers a great many more who are physically and mentally normal, who yet by reason of their education and environment are not much to be blamed for doing wrong. But it is far from true that a majority of the "real" criminals are mentally defective. Crime and insanity are no more closely related than sin and insanity. Certain criminals are also perverts. But they would be criminals even if they were not perverts. The fact that a man who takes drugs is also a criminal does not prove that he is a criminal because he takes drugs. We know many drug-takers who are otherwise highly respectable. Go to the General Sessions and watch the various defendants who are brought into court and you will discover little more degeneracy or abnormality than you would find on the corner of Twenty-third Street and Fifth Avenue among the same number of unaccused citizens.

The point which the writer desires to make is that, leaving out the accidental and experimental criminals, there is a much closer relation between all law-breakers than the public and our legislators seem to suppose. The man who adulterates his milk to make a little extra money is in the same class with the financial swindler. One waters his milk, the other his stock. The same underhanded desire to better one's self at the expense of one's neighbor is the moving cause in each case. The forger belongs to the class whose heads the criminologists delight to measure, but they would not measure your milkman's. The man who steals your purse is a felon and a subject of scientific investigation and discussion; the man who forges a trade-mark commits only a misdemeanor and excites no psychological interest. But they are criminals of exactly the same type.

The "crime-is-a-disease" theory has been worked entirely too hard. It is a penologic generality which does not need any truckling to popular sentimentality to demonstrate its truth. But there are as many sorts of this "disease" as there are kinds of crime, and some varieties would be better described by other and less euphemistic names. Crime is no more a disease than sin, and the sinners deserve a good share of the sympathy that is at present wasted on the criminals. The poor fellow who has merely done wrong gets but scant courtesy, but once jerk him behind the bars and the women send him flowers. If crime is a disease, sin is also a disease, and we have all got a case of it. It is strange that there is not more "straight talk" on this subject. Every one of us has criminal propensities,—that is to say, in every one of us lurks the elemental and unlawful passions of sex and of acquirement. It is but a play on words to say that the man who yields to his inclinations to the extent of transgressing the criminal statutes is "diseased." Up to a certain point it is his own business, beyond it becomes ours, and he transgresses at his peril.

The ordinary criminal usually is such because he "wants the money"; he either does not like to work or wants more money than he can earn honestly. He has no "irresistible impulse" to steal,—he steals because he thinks he can "get away with it."

The so-called professional thief is usually one who has succeeded in so doing or who, having been convicted of larceny, finds he cannot live agreeably other than by thieving; but the man is no less a professional thief who systematically puts money in his pocket by dishonest and illegal methods in business. The fact that it is not, in the ordinary sense, his "sole occupation" does not affect the question at all. Indeed, it would be difficult for one whose business life was permeated by graft to refute the general allegation that his "sole occupation" was criminal. Granting this, your dishonest business man fulfils every requirement of Mr. Warner's definition, for he "preys upon society and is [secretly] at war upon it." He may not be an "outlaw," but he should be one under any enlightened code of criminal laws.[9]

There is no practical distinction between a man who gets all of a poor living dishonestly and one who gets part of an exceedingly good living dishonestly. The thieving of the latter may be many times more profitable than that of the former. So long as both keep at it systematically there is little to choose between the thief who earns his livelihood by picking pockets and the grocer or the financier who swindles those who rely upon his representations. The man who steals a trade-mark, counterfeits a label, or adulterates food or drugs, who makes a fraudulent assignment of his property, who as a director of a corporation declares an unearned dividend for the purpose of selling the stock of himself and his associates at an inflated value, who publishes false statements and reports, makes illegal loans, or who is guilty of any of the thousand and one dishonest practices which are being uncovered every day in the management of life insurance, banking, trust, and railroad companies, is precisely as "real" a criminal as one who lurks in an alley and steals from a passing wagon. Each is guilty of a deliberate violation of law implying conscious wrong, and each commits it for essentially the same reason.

Yet at the present time the law itself recognizes a fictitious distinction between these crimes and those of a more elementary sort. The adulteration of foods, the theft of trade-marks, stock-jobbing, corporation frauds, and fraudulent assignments are as a rule only misdemeanors. The trouble is that we have not yet adjusted ourselves to the idea that the criminal who wears a clean collar is as dangerous as one who does not. Of course, in point of fact he is a great deal worse, for he has not the excuse of having a gnawing at his vitals.

If a rascally merchant makes a fraudulent conveyance of his property and then "fails," although he may have secreted goods worth fifty thousand dollars, the punishment of himself and his confederate is limited to a year in the penitentiary and a thousand dollars fine, while if a bank cashier should steal an equivalent amount and turn it over to an accomplice for safe keeping he could receive ten years in State's prison. Even in this last case the receiver's punishment could not exceed five years. Thus Robert A. Ammon, who was the sole person to profit by the notorious "Franklyn Syndicate,"[10] when convicted of receiving the proceeds of the fraud, could be sentenced to only five years in Sing Sing, while his dupe, Miller, who sat at the desk and received the money, although he acted throughout by the other's advice and counsel, in fact did receive a sentence of ten years for practically the same offence. However inequitable this may seem, what inducements are offered in the field of fraudulent commercial activity when a similar kind of theft is punishable by only a year in the penitentiary?

One can hardly blame such picturesque swindlers as "Larry" Summerfield, who saw gigantic financial and commercial frauds being perpetrated on every side, while the thieves who had enriched themselves at the expense of a gullible public went scot-free, for wanting to participate in the feast. Almost every day sees some new corporation brought into being, the only object of which is to enable its organizers to foist its worthless stock among poorly paid clerks, stenographers, trained nurses, elevator men and hard-working mechanics. The stock is disposed of and the "corporation" (usually a copper or gold mining enterprise) is never heard of again. Apparently if you do the thing correctly there can be no "come back." Accordingly Summerfield and his gang of "sick engineers" hawked through the town nearly eighty thousand dollars' worth of the securities of the Horse Shoe Copper Mining Company, which owned a hole in the ground in Arizona. It was all done under legal advice and was undoubtedly believed to be within the letter of the law. But there were a few unnecessary falsehoods, a few slips in the schedule, a few complainants who would not be placated, and "Larry" found himself in the toils. He was convicted of grand larceny in the first degree, secured a certificate of reasonable doubt and gave bail in a very large amount. Within a short time he was re-arrested for working the same game upon an unsuspecting southerner. This time his bail was increased to thirty thousand dollars. It was not long after the investigations into the Ship-Building Trust scandal and New York had been edified by seeing the inside workings of some very high finance. After his temporary release Summerfield strolled over to Pontin's restaurant for lunch, where he sat down at a table adjoining one occupied by the assistant district attorney who had prosecuted and convicted him.

"How are you, Mr. ——?" inquired "Larry" with his usual urbanity. "How are things?"

"So so," replied the prosecutor, amused at the nonchalance of a man who might reasonably expect to be in Sing Sing within three months. "How's business?"

"Oh, pretty good," returned Larry. "You know there is a sucker born every minute."

"I should think after your conviction you would have had sense enough to keep out of swindling for a while," continued the assistant.

"Swindling!" exclaimed Summerfield. "Swindling nothin'! My lawyer says I didn't commit any crime. Didn't the Supreme Court say there was a reasonable doubt in my case? Well, I'm just giving myself the benefit of it,—that's all. I'm entitled to it. How about those Ship-Building fellers?"

The "Ship-Building fellers" have never been convicted of any wrong-doing. Perhaps they committed no crime. Summerfield has three years more to serve in Sing Sing.[11]

In this connection the reader will recall the attitude of the inhabitants of Lilliput as chronicled by Gulliver.—"They look upon fraud as a greater crime than theft, and therefore seldom fail to punish it with death; for they allege that care and vigilance, with a very common understanding, may preserve a man's goods from theft, but honesty has no defence against superior cunning; ... the honest dealer is always undone, and the knave gets the advantage. I remember when I was once interceding with the king for a criminal who had wronged his master for a great sum of money, which he had received by order, and ran away with; and happening to tell his Majesty by way of extenuation that it was only a breach of trust, the Emperor thought it monstrous in me to offer as a defence the greatest aggravation of the crime; and truly I had little to say in return, further than the common answer, that different nations had different customs; for, I confess, I was heartily ashamed."

Any definition of the criminal class which limits it to those who "make their living" by crime is inadequate and begs the question entirely. There is no choice between the grafter and the "professional" thief, the boodler and the bank robber. They are all "real" criminals. One is as "diseased" and "degenerate" as the other. Every reversed conviction of a "grafter" lowers a peg the popular respect for law. The clerk in the corner grocery in Dakota feels the wireless influence of the boodler in St. Louis, and the "successful" failure in New York sets some fellow thinking in San Francisco.

The so-called degenerate and professional criminals constitute a very small fraction of the law-breakers and it is not from either class that we have most to fear. Our real danger lies in those classes of the population who have no regard for law, if not an actual contempt for it, and who may become criminals, or at least criminal, whenever any satisfactory reason, coupled with adequate opportunity, presents itself. From this class spring the experimental criminals of every sort, who in time become "professionals," and from it the embezzler, the stock jobber, the forger and business thief. From it as well are largely recruited those who commit the crimes of violence which, however undeservedly, give the United States such an unenviable place upon the tables of the statisticians. From it spring the "fellow who does not care" or who "will take a chance," the dynamiter, the man who is willing to "turn a trick" at a price, and all those who need the strong arm of the law to restrain them from yielding to their entirely normal evil inclinations.

The man who deliberately violates the law by doing that which he knows to be wrong is a real criminal, whether he be a house-breaker, an adulterator of drugs, the receiver of a fraudulent assignment or a trade-mark thief, an insurance "grafter," a bribe giver, or a butcher who charges the cook's commission against next Sunday's delivery. The writer fails to see the slightest valid distinction between them and believes it should be made possible to punish them all with equal severity. There is no reason why one should be a felon, another guilty of only a misdemeanor, while still another is guilty of nothing at all. The cause of crime is our general and widespread lack of respect for law, and this in turn is largely due to the unpunished, and often unpunishable, dishonesty which seems to permeate many phases of commercial activity. Diogenes's job is still vacant.

FOOTNOTES:

[8] Including under the general term "fraud," obtaining money by false pretences, thefts by solicitors, bankers, agents, directors, trustees, etc. ("generally recorded under the euphony 'misappropriation'"), falsifying accounts, etc., Mr. Schorling found that taking the number of these two divisions of crime between 1885-1889 as 100% there had been the following relative decrease and increase between them:

A similar table constructed for the United States during the last fifteen years would be instructive but perhaps unduly depressing. Recent financial and other disclosures would probably send up the mercury of the "fraud" thermometer until it burst.

[9] Cf. "Unpunished Commercial Crime" in "Moral Overstrain," by G.W. Alger. Houghton, Mifflin & Co., 1906.

[10] See "True Stories of Crime," referred to supra, p. 15.

[11] Since the publication of this book Summerfield has been discharged from prison, having earned his parole by exemplary conduct. He has gone West to lead a new and better life, and there is reason to believe that he will succeed in doing so.

[CHAPTER III]

THE ARREST

To most of us modest folk a police officer looks not an inch less than eight feet in height,—and his blue coat and brass buttons typify the majesty and inflexibility of the law. At his most trivial gesture the coachmen rein in their curvetting steeds upon the crowded thoroughfare, and at his lightest word the gaping pedestrian obediently "moves on." When necessity compels we address him deprecatingly and, as it were, with hat in hand, and if he deign to listen to us, and still more if he condescend to reply, we thrill with pride. We experience a certain surprise that he has seen fit to give heed to us at all and has not, instead, ordered us roughly about our business with threatening mien and uplifted club. That he has rendered us assistance fills us with humble gratitude. One feels like Dr. Holmes,

"How kind it was of him
To mind a slender man like me!
He of the mighty limb!"

It rarely occurs to us that these stomachic Titans are in fact our servants and that they have no authority save that which they have received from ourselves,—that, horrible thought! they wear our livery as assuredly as does Jeames or Wilkins. Why do these big men patrol the streets and order us about? Simply because in these busy days the ordinary citizen has neither time nor inclination to attend to his own criminal business, and because it is better upon the whole for the State to attend to it for him.

Eight hundred years ago the punishment of crime was a matter of private vengeance gradually evolving itself into the criminal procedure of modern English law. The injured citizen took his appeal "to the county" and fought it out with his wrong-doer either personally or by proxy. The idea was, originally, that the man who had been injured ought to have his revenge, and criminal justice in England even to-day savors for this reason somewhat of private litigation. Of course, nowadays, crime is punished on the theory that the public has been injured; and that not only does the safety of the community require that a repetition of the same crime by the same offender should be prevented, but also that an example should be made of the evil-doer as a lesson to others. Be this as it may, vengeance and not public spirit is still the moving cause of ninety per cent of all prosecutions for crime.

Just as the right to apprehend a wrong-door was an inherent right at the common law of every free-born English subject, it is our inherent right to-day, modified or extended by the statute law of the several States, and, save where a court of justice has issued its warrant and commands its agents to apprehend the party named therein, one person has substantially the same right as another to arrest a criminal, even if that other be an officer of the law.

The policeman has no greater rights in the matter of preventing crime or arresting evil-doers than the citizen. He is merely hired by the citizen to do it for him. The only difference is that it is the duty of the officer by virtue of his position to make arrests, just as it is that of the fireman to extinguish fires. Yet it is undoubtedly the fact that nine-tenths of us really believe that the policeman's blue coat, helmet, and club invest him with some sacred and peculiar authority of his own. If every citizen recognized the fallacy of this idea, and if some elementary instruction in such matters were given in the public schools, even at the sacrifice of clay modelling and decorative art, it might add much to the spirit of independence and to the practical efficiency of the coming generation. We are slaves to the magic of the word "police." We imagine that without a representative of the law we can do nothing.

Of course we know in general that we may defend the persons and protect the property of ourselves and others by the exercise of reasonable force. Beyond this rather vague principle we are not prepared to go. Where the situation offers no particular inconvenience we are ready to do our part, but if anything disagreeable is going on we prefer to be excused. We are out of the habit of doing the simplest police duty. Most of us would have enough public spirit to summon an officer if a felony were being committed before our very eyes, provided we could do so without making ourselves ridiculous, but few of us, the writer fancies, would join the hue and cry after a pickpocket unless ours happened to be the pocket he had picked. We leave that to those whose natural bellicosity is greater and who do not object to being undignified. It is nevertheless true, however unpleasant the thought may be, that at any moment we may find ourselves in the centre of a whirlpool of events where individual action on our part will be necessary unless we are willing to allow some vicious and cruel violation of the law to go unpunished. Such exigencies may run all the way from the malicious beating of an overloaded horse to the garrotting of a feeble old man. Our efficiency on such occasions might be represented by a fraction, of which our physical capacity would be the numerator and our disinclination the denominator, but obviously, to make the formula complete, this would have to be multiplied by another representing our knowledge of our rights.

Suppose for example that Mr. Ordinary Citizen on a nocturnal ramble should, at about three o'clock in the morning, observe some ill-favored person with a heavy bag in his hand, furtively making his exit from the area door of a stylish mansion in the residential district. What should he do? What would you do? Without discussing this embarrassing question, does the reader know what he would have a right to do? The chances are largely in favor of his being obliged to answer this question in the negative. Indeed, our indifference to the unexpected is so great that we are generally mute and helpless in the face of any unusual situation where anybody's rights are concerned. We hesitate to act without the advice of counsel, and in the meantime the burglar has made his escape!

In the State of New York and generally in this country, any person, whether he be an officer of the law or not, may make an arrest, without a warrant, for any crime, of any grade, actually committed in his presence. It makes no difference whether the offence be that of spitting in a street-car or murder in the first degree, the offender may be haled before a magistrate by any one who has seen him commit it.

But the statutes governing the right of arrest, while extensive enough to safeguard the public interest, are carefully limited to prevent arbitrary interference with the liberty of innocent persons. The law, therefore, makes it a positive condition that before any one, whether he be citizen or officer, may arrest another for a felony not committed in his presence the felony must in fact have been committed. Thus the right to apprehend a suspected wrong-doer is invoked at the peril of him who seeks to exercise it. If no felony has been committed the arrest is illegal.

In one respect only does the law recognize any difference between the private citizen and the public officer paid to keep the peace,—if a felony has in fact been committed, the officer may arrest any one who he has reasonable ground to believe is the guilty party, while a citizen may arrest only the person who is actually guilty. Thus the citizen must guarantee not only the commission of the crime but the identity of the criminal, while the officer, so long as the law has actually been violated, may take a chance as to the identity of the perpetrator of the offence.

Now, the police invariably interpret the law to mean that they may arrest anybody who they have reasonable cause for believing has committed a felony,—but of course the statute gives them no such power.[12] The felony must have been committed; the "reasonable cause" refers only to the identity of the criminal. This, however, does not worry the average policeman at all.

He sees "Mr. O.C.'s" burglar coming out of the area with his bag, promptly pounces upon him and hales him off to the precinct house in spite of the burglar's protests and expletives. If the burglar prove refractory he is clubbed into submission, or if he attempt to run he may be shot in the leg. Now suppose that on reaching the police station the burglar turns out not to be a burglar at all but the family doctor? Or a late caller upon the cook? Or a gentleman who has mistaken some one's else area for his own? Of course no felony has been committed. The policeman had no right to make the arrest. Assuming that the house had been burglarized, the officer beyond a doubt had reasonable cause for a hastily formed opinion that the man in the area was the guilty party and had a right to make the arrest, but in law he makes this assumption at his peril. If he is wrong the victim has a good cause of action against the policeman for false arrest. But the execution following his civil judgment against the latter will probably be returned nulla bona by the sheriff, and he will have to pay for his own medical treatment and legal advice.

Now let us see in what position is O.C., who is not a peace officer, when he discovers the suspicious figure in the area. He may lawfully make an arrest, although he has not seen the crime committed, "when the person arrested has committed a felony." In other words, if it turns out that no crime has occurred, or that if one has in fact been perpetrated he has got hold of the wrong man, he will have to patch up the matter and very likely his own head as best he can.

We will assume O.C. to be a public-spirited citizen and that he forthwith lays hands on his burglar and reduces him to subjection. Having done so he rings the front door bell and rouses the owner of the house, who in turn discovers that the mansion has been burglarized. They then investigate the prisoner and find that he is a commercial traveller in an advanced state of intoxication who has rambled into that particular area by accident. O.C. has been guilty of an illegal arrest. Even should it prove that the intruder was in fact a burglar, but not the right burglar, the arrest would still have been without authority.[13]

To carry the illustration a little further let us assume that in each case a burglary has been committed and that the prisoner is the guilty party. What can the officer do, and what can "O.C." do, if his quarry attempt to escape?

Roughly speaking, a person lawfully engaged in arresting another for a felony or in preventing the escape of such an one lawfully arrested, may use all the force necessary for the purpose, even to taking the life of the prisoner.[14]

It is by virtue of this salutary provision of law that the unscrupulous policeman gets "square" with his enemies of the under world. When the officer clubs the "drunk" on the corner, it is on the pretext that the latter is "resisting" arrest. It is practically an impossibility to prove that it was not justifiable unless there be eye-witnesses to what has occurred, and an officer may safely be guilty of a good deal of physical brutality so long as he brings his victim to the station house under actual arrest for some alleged offence. It is only when the victim of such an assault is not arrested that the officer finds himself in an awkward situation. He must then explain why he clubbed the citizen unless the latter had committed some offence and was trying to resist arrest, and, if so, why he did not then conduct him to the station house.

There is a story told of an old veteran upon the force who was heard to remark to a companion as they left court together after the acquittal of an ex-convict on the charge of assaulting the officer:

"Begorra, Tom, 'twon't be long before I'll be afther arrestin' the cuss agin, and whin I do, pray God that he resists arrest!"

It is said that in some of the southwestern states the personal right to make an arrest at times resulted, practically, in the privilege of shooting cattle thieves upon sight. The foreman would send out Jack to "look for" cattle thieves. Jack would lie all day in a gully and when Sonora Slim hove in sight, perhaps on an entirely lawful errand, would "let him have it." Then he would ride leisurely over, abstract Sonora's "gun," discharge it a couple of times and throw it carelessly upon the ground. Half an hour later he would appear at the ranch.

"Sorry, Bill," he would report, "but I caught Sonora Slim driving off three of our two-year-olds. I headed him off and says,

"'Look here, Sonora, you've got some of our heifers there.'

"'Go to——!' says Sonora and pulls his gun.

"'That's all right,' says I. 'You're under arrest!'

"We swapped a few shots and I had to drop him to prevent his escape."

"All right, Jack," the foreman would reply, "we'll ride over and tell the sheriff about it."

"See here, sheriff," he would announce on their arrival, "Jack here arrested Sonora Slim stealin' our cattle, and the feller resisted arrest and Jack had to shoot him. Jack's here if you want him."

"Yes, sheriff, here I am," Jack would say.

The sheriff would rub his forehead and reply:

"No, I don't want you. Sorry you had to kill him, but I'll have to have some evidence that what you say ain't true."

It may be well to suggest that, while a thorough knowledge of our rights is always desirable, it by no means follows that it is wise to invoke them upon every occasion when we observe a technical violation of the law. Regrettable as it may seem, no police force, however large, could arrest all the violators of every law, and no system of courts could dispose of the multitude of offenders. We do the best we can and make an example of a few, hoping thus to persuade the others to be good. If every citizen undertook to exercise his right of arresting every individual whom he saw committing petty crime, the business of the community would come to a standstill and the magistrates' courts would be hopelessly congested with great hordes of prisoners, irate witnesses, and gratuitous policemen. The prisons would overflow and the magistrates would resign. Moreover, the enforcement of such a disused and unexpected technical right would lead to immense disorder and violence. The ignorant infractor of an obscure section of the Penal Code would rise in his wrath and in resisting arrest become guilty of assault in the second degree or of manslaughter. It is probably very much better that trivial offences should go unpunished than that public conveyances and thoroughfares should be made the scenes of violent altercations and obstructive volunteer police work. Having hired a certain class of persons to attend to this business for us, it is better to leave it to them when possible. We need the best police force that we can get, and this naturally depends upon the efficiency of the higher police officials who hold their offices by appointment. An active interest on the part of our citizens in the betterment of municipal conditions through the purification of politics is probably more to be desired than any general attempt to participate in the ordinary duties of "the man on the beat."

FOOTNOTES:

[12] An attempt has apparently been made by the legislature of New York State to enlarge the powers of the police during the night-time by giving them authority to arrest "on reasonable suspicion of felony." The statute (Penal Code) reads as follows: "Section 179. May arrest at night, on reasonable suspicion of felony.

"He may also, at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony, and is justified in making the arrest, though it afterwards appear that a felony had been committed, but that the person arrested did not commit it."

This statute clearly stultifies itself. The writer is not aware of any judicial interpretation of its meaning up to the present time.

[13] In People v. Hochstim (36 Misc., 562, 571) it is said that "in the matter of arresting without a warrant, whether for a misdemeanor or for a felony, a private citizen and a peace officer have the very same right and power under the law, namely: (1) Either may without a warrant arrest a person who commits any crime, whether misdemeanor or felony, in his view, and (2) either may without a warrant arrest any person who has in fact committed a felony although not in his view, but (3) neither may arrest any one without a warrant in the case of a felony unless the alleged felony has in fact been committed. If no felony has in fact been committed, then the arrest without a warrant is in every case unlawful and may be lawfully resisted. The law does not justify either an officer or a private citizen in arresting for a felony without a warrant on mere suspicion or information that a felony has been committed. If either act without a warrant on groundless suspicion or information on the question of whether a felony has in fact been committed, he acts at his peril. Nothing but the absolute fact that the felony has actually been committed will suffice to justify and protect the person making such an arrest, whether an officer or a private citizen. But if a felony has in fact been committed, the law does justify an officer, but not a private citizen, in arresting a person therefor without a warrant 'on reasonable cause for believing' (to quote the words of the statute) that such person is the one who committed it. In a word, an officer, the same as a private citizen, is not permitted to act on mere grounds of belief on the question of whether a felony has in fact been committed; nothing but the absolute fact that it has been committed will suffice; but an officer is permitted to act on reasonable cause for belief on the question of whether the person arrested is the person who committed it. All of this is plain statute law (Code of Criminal Procedure, secs. 177, 183)."

[14] A distinction exists in this respect between misdemeanors and felonies. In the case of the former it is not lawful to kill a prisoner even if his escape cannot otherwise be prevented, and although there be a warrant for his apprehension. In the case of a felony the offender's life may be taken provided there is absolute necessity for so doing to prevent his escape. Conraddy v. People, 5 Park 234.

[CHAPTER IV]

THE POLICE COURT

The procedure by which a law-breaker is convicted for his offence begins with his arrest and ends with the formal pronouncement of sentence against him after he has been declared guilty. Prior to his arrest he has been merely a criminal; after sentence (or, to be strictly technical, after the verdict against him) he becomes a convict; during the proceedings he is a "prisoner at the bar."

Whatever has been the manner of his arrest he is in most instances taken at once before the nearest magistrate in order that the latter may inquire into the charge against him and determine whether upon the evidence there is reasonable cause to believe him guilty.[15] If the arrest takes place after four o'clock in the afternoon, or no magistrate happens to be holding court, the prisoner is locked up until the following morning.[16] If he be charged with a felony he must remain in confinement until the magistrate admits him to bail, for no police official can fix or receive bail in such cases: if, however, he has been arrested for the commission of a misdemeanor only, the sergeant on duty at "the desk" must fix the bail and give him a reasonable opportunity to procure it.

If arrested while a police court is in session he is entitled to an immediate hearing, and to the services of counsel, for whom the magistrate must send, free of charge, through an officer. After the arrival of counsel or after waiting a reasonable time for his appearance, the magistrate may then proceed to examine into the case, and can only adjourn the hearing for forty-eight hours at a time for "good cause," unless at the request of the defendant himself.

The subjects of the rights of apprehended persons is too extensive to be adequately treated in a few pages. The power which the magistrate may arbitrarily exercise of holding persons merely "suspected" of crime for further examination is very great. Where a prisoner is brought in under arrest as a fugitive from another State he is frequently "held" (without any formal charge being made against him) for several days at the mere telegraphic request of some police official in a distant city. The writ of habeas corpus may secure his release, but persons unjustly arrested on "suspicion" have little redress in ordinary cases, whether they are discharged immediately or held for long periods. While no technical authority exists for such detentions (the right of arrest being strictly limited as set forth in the last chapter) they are practically necessary to prevent the escape of dangerous criminals. "Arrest on suspicion" is a euphemistic description of a technically illegal proceeding, which is universally recognized as necessary for the protection of society.[17]

The police court is the great clearing house of crime. Inasmuch as all persons arrested, whether innocent or guilty, are brought there together, they should naturally, so far as possible, be accorded the benefit of the doubt as to their guilt in the treatment which they receive. They are presumed to be innocent, and indeed many of them are, until a jury has declared to the contrary. However, the attitude generally taken towards a prisoner in a police court is that he is guilty and that it is useless for him to deny it, and he feels the discomfort and ignominy of his position far more at this state of the proceedings than he does later, when he is accorded more individual importance. As a rule he is brought into a crowded, stuffy court where a vociferous pair of shyster lawyers are shouting at each other's witnesses and the magistrate is with difficulty trying to preserve order. A great throng of complainants, defendants, witnesses, policemen, lawyers and idlers fill the room, and the prisoner instantly becomes the centre of vision for all eyes as the officer leads him up to the clerk's desk and makes his formal accusation. The altercation in front of the magistrate is suspended long enough for the latter to "commit" the defendant, who instantly finds himself locked in a narrow cell where he must remain until some friend or relation has had an opportunity to reach a lawyer, secure a bondsman, and compass his release.

What he must naturally feel most is his own insignificance. He is merely one of a huge multitude of miserable people who are all in the same box. The hours until his lawyer arrives are very dark indeed,—particularly as he probably has no idea of what is going to happen to him in the meantime. If he be a poor man accused of drunkenness or disorderly conduct he may be, and frequently is, sent to the island before he has any adequate opportunity to notify his family, who may suffer an agony of anxiety before they discover what has become of him. The punishment of the minor offender for trifling breaches of the peace is not only swift, but is characterized by a certainty unknown to that which the law attaches to crimes of a higher order.

The police court has sometimes been termed "The Poor Man's Court of Appeals." So far as this implies that five out of every seven defendants arraigned there are summarily disposed of and accept the decision or sentence of the presiding judge as final, and that the same number of aggrieved persons who seek justice there do the same, it is a correct description. No court has a more direct influence for good or evil, or for the creation of a respect or a disregard for law. For an overwhelming majority of our citizens, particularly those of foreign birth or extraction, it is the only court of justice in existence.[18]

There may be higher courts or higher laws but they know them not. To them the magistrate is an autocrat. They are avenged or punished by virtue of his will alone, and as he is just or unjust, honest or corrupt, so do they come to regard American institutions as a whole. The officers of the precinct are his minions, only a little lower in majesty, and even more terrible and implacable.

When it is considered that the magistrates in the first division of the City of New York (namely, the Boroughs of Manhattan and the Bronx) alone disposed of 138,047 cases in the year 1907, and that in 104,622 of these they exercised a summary jurisdiction over the liberty of the prisoner, with power in many instances to inflict severe punishment, it will be seen that the importance of these courts cannot be easily overrated. Including the defendants arraigned in the "Children's Court" and before certain judges of the Special Sessions sitting as magistrates, there were 149,494 persons arrested during 1907 in New York County alone.

The summary jurisdiction of the police judge embraces all offences classed as "disorderly conduct," violations of so-called "corporation ordinances" (such as peddling without a license, etc.), infractions of the "Sabbath law," the disposition of persons alleged to be insane, vagrancy, and the offence (not recognized by any statute) of being a "suspicious person." Any person whom the magistrate finds guilty of any of these charges (except the last) he may fine or imprison. It is quite true that the defendant may, if convicted, take an appeal to the Court of General Sessions or test the jurisdiction of the magistrate by a writ of habeas corpus, but the grounds of appeal are few, and the victim rarely is aware or advised of his rights in this respect. Even were he fully informed, his purse would not usually permit of further proceedings, unless taken for him from charity by some outside party or organization. The fact that there were, out of this multitude of cases, but one hundred and fifty-nine appeals taken (of which only seventy-seven were successful) speaks for itself.

Besides those charged with the offences over which the magistrate has final jurisdiction, before him come all persons arrested for crimes which are triable in higher courts.[19] These persons he must "hold for trial" (either for the court which tries misdemeanors or for the grand jury) or discharge. Should he have reasonable ground to believe that the accused has committed the crime alleged he is obliged by law to "hold" him, but if the judge sees fit to discharge the prisoner, the aggrieved person has no appeal and his only alternative is to try to persuade the district attorney in spite of the decision of the magistrate to take personal action either by laying the matter before the grand jury, or in cases of misdemeanors by filing an information in the Court of Special Sessions. He is usually unaware of this possibility and at all events it is a difficult proceeding, so that even in the case of crimes in which the magistrate has not a final jurisdiction, his action, so far as setting free the prisoner is concerned, is generally a conclusion of the matter. When a police judge unwarrantably discharges a prisoner accused of a felony the complainant rarely takes any further steps to get justice.

The enormous power wielded by what people are accustomed to call "mere police judges" is obvious when we realize that one of them may send a woman to a reformatory for three years, and boys to similar institutions for the same period. Their jurisdiction is, however, strictly confined to certain classes of offences; and if, for example, the crime charged be "larceny" in any form they are compelled to hold the defendant for the action of a higher court even if he admit his guilt. Thus a vagrant who is caught begging can be sent away for six months, but if the same man steal an old rug from a door-step or a gunny-sack from a wagon he must willy nilly be sent to the Tombs to await a trial in Special Sessions. Now, in any case where he is going to plead guilty he would probably vastly prefer to have his case disposed of by the magistrate and have done with it.

There would seem to be good reason for believing that coincident with other reforms in the magistrates' courts their original jurisdiction might well be extended to cases of petit larceny where the defendant admits the commission of the offence. A deal of time, money, and inconvenience to the prisoner might be saved. The present situation results in a tendency on the part of the judge to construe as many cases as he can of "petit larceny" into "disorderly conduct." Very often a trivial theft is accompanied by acts which make it perfectly proper for the magistrate to overlook the larceny for the disorder. Certainly it is better for the offender, where possible, to be classed as a "disorderly" rather than as a thief. In the latter case he may, with the stigma thus fastened upon him, go forth to a life of crime; in the first he would never be regarded as a criminal. This jurisdiction to punish any act or omission tending to create a breach of the peace offers a boundless opportunity for an arbitrary judge to arrogate to himself powers which an ignorant or helpless offender can hardly be expected successfully to defy. If illegally "committed" his only redress is a writ of habeas corpus, which probably is a phrase entirely unintelligible to him and which will cost more money to procure than he has ever had at any one time in his existence.

The magistrates might also be given jurisdiction to impose punishment in all cases of "simple assault," and in certain cases even of assaults with weapons. There is no particular reason why, if the magistrate can send an old woman away for begging, or for being drunk of a Saturday night, he cannot be trusted to punish her properly for hitting her husband over the head with a hot-water kettle. Moreover, the magistrate before whom the damaged party hales the offender is able to see with his own eyes the actual extent of the injuries which have been inflicted, whereas, by the time the case is tried before the judge of the Sessions, Dame Nature has usually restored the victim's battered physiognomy to its pristine condition of refined elegance.

No one could fail to profit by a day spent upon the police-court bench watching the judge exercise his many diverse yet not inconsistent duties, which variously include those of magistrate, lawyer, clergyman, almoner, arbitrator of domestic difficulties, and general adviser. He will begin his day's work, which, before it be concluded, will have required him to pass upon anywhere from fifty to eighty cases, by disposing of a long line of drunks and disorderlies of both sexes. Justice is plentifully tempered with mercy, however, and the unpleasant business is soon over. Next comes the disposition of unfinished business, which includes the continuance of trials not concluded on the preceding court day. These, of course, embrace every possible offence known to the law. The extraordinary number of petty burglaries is sure to attract the attention of the spectator.[20] Boy after boy is brought to the bar charged with breaking into a tobacco shop, or a small grocery, or a room used for the storage of merchandise, push-carts or fruit. At the very outside the value of the plunder cannot exceed a few dollars.

One defendant, his head heavily bandaged, is half carried to the bar by a husky officer and charged with attempting to burglarize the shed adjoining Isadore Aselovitch's junk store. He is clearly much the worse for a severe clubbing. "Izzy," the complainant, exhibiting an iron bar several feet in length and weighing upwards of twenty pounds, proudly claims to have effected the arrest of the defendant by merely giving him "a little poke mit it." In response to the interrogatories of the magistrate, Izzy explains that he and another kept their junk in a certain rear room and from time to time noticed that various odd pieces of iron seemed to be missing. They thereupon concealed themselves behind a pile of old push-cart wheels and waited for the thief. After several hours of inactivity they finally heard a rattling among the iron and discovered the defendant apparently in the very act of stealing a crowbar. Being upon his hands and knees he was unable to offer any effectual resistance to their combined onslaught and barely succeeded in escaping with his life. His cries had brought an officer who had arrested him, upon Izzy's complaint, for attempted burglary. The defendant in turn had charged the two with felonious assault, alleging that he had a right to be in the store-room, inasmuch as he was accustomed to leave junk there himself. He further tearfully asserts that he is a rival of Izzy's in the push-cart business, which accounts for the extreme animosity of the latter.

"It vas a lie, your honor, chuge," urges Izzy. "Dot man vas a purglar. He ain't got no push-cart. Gif him ten years, chuge!"

The judge, who is wise in his generation, fines "the burglar" three dollars for disorderly conduct, to the intense disgust of Izzy.

"Tree dollars!" he cries with fine scorn. "Tree dollars for a purglar! I vould be a purglar myself for tree dollars!"

Very likely the next case will be that of a small merchant charged with obstructing the sidewalk with his boxes. He is let off with a warning or, if it be a second offence, with a small fine. Then a couple of boys will be brought in charged with "shooting craps," and on their heels a half-drunken driver who is accused by a little girl (having on an S.P.C.A. badge) of driving an overloaded horse. The crap boys are let go, but as the "cop" agrees with the little girl that the driver was abusing his horse the latter is "held" for Special Sessions.

While these matters are being attended to a great uproar is heard and a large crowd forces its way into the court-room. Above the clamor the wails of a young Jewess make themselves distinctly audible. The judge has just ordered the drunken driver locked up and is all ready to take up the new case. The defendant, a slick, pale-faced young Hebrew, loudly proclaims his innocence and demands an immediate hearing. No time is lost, for the parents of the girl have procured a lawyer who at once causes a charge of robbery to be entered. The girl, hysterically weeping, tells her story. Up to a certain point it is lucid enough. She had been walking along the street when a nice-looking young "feller" had accosted her and inquired the way to the nearest pawnbroker's. While they were conversing pleasantly upon this subject a second young gentleman had joined them and asked the first to purchase a pair of beautiful diamond earrings which he exhibited. This the other regretfully had explained he could not do, since he had no money (being even then on the way to the pawnbroker's). The diamonds had glistened and sparkled in the sunlight. The girl had asked to look at them and while she was doing so the owner had suggested that perhaps she might like to purchase them herself, giving as part of the consideration her own modest little baubles. This tempting offer she says she refused, on the ground that she did not know the young gentleman. She then rapidly states that the two set upon her, struck her, and that she "knew no more," until on recovering her senses she found that her own earrings had disappeared and that those of the stranger were in her ears.

"Hm!" says the magistrate; "and do you say that the defendant struck you?"

"Shure, your honor," replies the young lady.

"And that you fainted?"

"Shure, your honor."

"Did you fall?" inquires the judge sharply.

"N—n—no," admits the complainant.

"Defendant discharged," announces the magistrate.

"Get out of here, all of you," orders the officer at the bridge. "Get along, now!"

The explanation, as the reader already guesses, is simply that by a time-honored trick the girl has been persuaded by an oily-tongued trickster to exchange her own earrings for his worthless ones. This she has done quite voluntarily. She has then hurried home only to find that her newly acquired gems are paste. The family goes into a paroxysm of anger and lamentation. The nearest lawyer is consulted, who, of course, agrees to secure the return of the earrings. They pay him a five-dollar fee, the defendant is sought for and arrested, and in her eagerness to see him punished and to obtain her property the victim swears away her own case. Probably had she told the truth the defendant could have been "held" for grand larceny by false pretences.

These proceedings may no sooner be concluded than perchance a giant negro is brought in charged with assault. A dozen officers bring him manacled to the bar, while a crowd of reporters follow and gather on each side, notebook in hand. It appears that the prisoner suddenly ran out of a saloon, drew a revolver and began an indiscriminate shooting. The "reserves" were called out and three policemen now lie dangerously wounded in the hospital. He is held for examination, pending a possible inquest by the coroner.

Meantime a lank youth from New Jersey listens vacantly while an officer accuses him of abandoning a horse which has suddenly expired while harnessed to the defendant's truck wagon. He pays a fine and vanishes. Two young Irish-Americans, mutually damaged, are arraigned for "disorderly conduct." They, too, are fined, being already substantially punished—by each other. A man accused of "Sunday selling" follows a woman who tells a pitiful tale of how her husband has abandoned her and her five little ones. Later in the day the husband is found and ordered to pay her ten dollars per week. Two retail milk dealers charged with adulteration or "keeping a cow in an unhealthy place," a band of pickpockets who have been caught "working" a horse-car, a woman accused of "soliciting," and a bartender who has allowed a "slot machine" to be left upon the premises, give place to a vociferous store-keeper who has caused the arrest of a very stout man for the larceny of four pairs of trousers. He explains loudly that the defendant (who weighs at least 325 pounds) came into the store, asked to see some "pants," and while the clerk was not looking stuffed four pairs of these articles inside his waistband and made his escape. The complainant not only identifies the defendant with absolute certainty but goes so far as to state with equal positiveness that the accused now has on the very trousers into which he stuffed the stolen property. Four pairs identical in size and material with those alleged to have been purloined are produced and marked in evidence. The fat man indignantly denies having been in the store at all. The reporters are interested.

"Gentlemen," says the judge, "I appoint you a committee to conduct the defendant to my private room for the purpose of determining whether or not you can stuff these articles of apparel inside his waistband."

The reporters, followed more slowly by the perspiring defendant, make their way to a back room, from which they presently emerge to announce through their spokesman that it would be impossible to thrust any object, much less four pairs of trousers, inside the band of the defendant's trousers.

In the interim the judge has been settling matrimonial difficulties, giving all sorts of gratuitous legal advice, acting as arbitrator over the question of the mutual use of the "landings" on the stairs in tenement houses, issuing warrants, and endeavoring to find an opportunity to continue the hearing in a complicated "false label" case. In this last several rather well-known attorneys are retained, who stand about disgustedly while the more immediate business of the court is being attended to. In most cases, however, the lawyers are hardly likely to add to the general reputation of the profession for ability.

The inordinate number of cases which the magistrates have to dispose of results oftentimes in an inconclusive method of hearing charges of misdemeanors or of felonies, which, if the defendant be held at all, must of necessity be tried in a higher court or, as the magistrates say, "go downtown." If the defendant be a man of some influence, with enough money to retain a boisterous and bully-ragging lawyer, the line of least resistance may lead the judge almost unconsciously to regard the case as having "nothing in it." If, on the other hand, the complainant be a man of independence and insistence, with perhaps a bit of a pull, it is much easier to "hold" a defendant than to assume the responsibility of "turning him out." In point of fact some magistrates are prone to shift the responsibility off their own shoulders and to "hold" anyway. Thus there can be "no kick coming" so far as they are concerned. There are also cases where, rather than take the time for a careful examination of the case, the magistrate will "hold," when, if he had really examined into it with the necessary care, he would find that there was no reasonable ground for his action. Now the grand jury is apt to find an indictment almost as a matter of course, and the defendant must then be placed on trial before a petit jury. In large measure this is the reason why the calendars of the criminal courts are crowded with cases which should never have gone beyond the police court, and why prisoners charged with homicide often lie for months in the Tombs before the petty business of the General Sessions can be cleaned up sufficiently to allow time for their trial. In this way much of the work which should be done by the police judge is cast upon the already over-burdened petit jury. The evil, however, does not stop there. When a petit jury finds that a majority of the cases brought before it have little or no merit it frequently gets the idea that all criminal business is of the same character and that it is empanelled for the purpose of a general jail delivery. After a jury has "turned out" twenty men in succession it can hardly be blamed for thinking that the twenty-first, who may be a real sinner, ought likewise to be sent home with the others to join his family. Respect for law cannot be maintained unless each part of the machine of justice does its full duty and assumes its own burdens and responsibilities.

It goes without saying that no official comes into closer contact with the police than the magistrate. He gets to know them collectively and individually as no other person can. In determining what should be done in any given case he takes largely into consideration the personal equation of the officer making the arrest. He is able to detect exaggerated or manufactured evidence, which might easily pass as truth and perhaps convince a jury in a higher court. Hence one of the arguments for giving him a wider original jurisdiction. Petit juries are ordinarily disinclined to convict and send a man to State's prison in what seems to them trivial cases. If the magistrate had a wider scope in the disposal of such cases one of the principal reasons for our lack of respect for law (the sentimental and arbitrary action of juries) would be largely done away with.

The magistrate, if he be the right kind of a man, can do more real good, right more real wrongs, and exert a more wholesome and salutary influence upon the working people of large cities than any benevolent or charitable association. He can do much to break up the alliance of the police with crime and to prevent arbitrary acts of violence and lawlessness upon their part committed either to compel the payment of blackmail or cover derelictions of duty.

The police judge also soon learns the character of the practitioners who appear so constantly before him. Many a case which on its face seems founded on justice may be shown by a little questioning on the part of the magistrate to be nothing but an attempt to "hold up" or injure the defendant. The quasi-criminal classes know well the power of the criminal law and frequently invite it to secure private vengeance. When two rogues fall out there is often a race to see who can get to the police court first. In other cases the dense ignorance of complainant or defendant renders justice almost impossible. The shyster plays upon this to his profit. There is a story told of a practitioner with a large Italian following who was accustomed to display prominently upon a table in his office a small Testament and a huge Webster's Dictionary. After his clients had stated their case he would turn to them and ask:

"Do you wish the law from the big book or the little book?"

The clients would inquire the relative cost.

"The law from the little book is ten dollars—the law from the big book is twenty-five dollars."

The clients would consult together and on the assumption that the bigger the book the better the law, would almost invariably pay their twenty-five dollars and procure the best advice which Noah Webster could give.

The fact that most police magistrates are appointed for purely political reasons is much to be deprecated. The days of bribery are over, but occasionally the public has some excuse for believing that the desire to do "a favor" for a political friend may have influenced the action of one of them. This would have less color were they usually appointed for some other and better reason than mere party fealty. Ordinarily the appointment goes to some faithful worker, who has won distinction in ward politics. Like enough he may make an excellent judge. At any rate he has a direct personal knowledge of the people with whom he is called to deal. He has equally first-hand information of local conditions and the personnel of the police attached to the neighboring precincts. His judgment is apt to have a practical wisdom that a mere student of law could never achieve. He knows a crooked officer, a crooked lawyer, and a crooked complainant when he sees one. Whatever the verbal testimony happens to be he may very well "know different." He is, as the slang phrase accurately puts it, "wise to his job." And when all is said and done the "influence" exerted upon him will probably be only a request to "Do the best you can for So and So,—he's a friend of mine," which will not affect his action in the least. A college-bred lawyer with no actual knowledge of existing conditions might have the wool pulled over his eyes at every turn, and, while theoretically enforcing the law as it is printed on the statute books, fail utterly to achieve the rough-and-ready justice which the situation demands and which his less educated brethren can dispense by virtue of instinct acquired from long experience. It must be admitted, however, that the system of political appointments is just as bad, if not worse, when applied to police magistracies as when exercised in higher places. The appointees may or may not turn out successfully, and in New York we have had some extraordinary surprises in both directions.

Did space permit a judicious selection of the historic rulings of traditional magistrates would make entertaining reading. One of the most famous was that of a certain learned member of this bench who is said to have discharged a defendant accused of killing a robin in Central Park in the following words:

"You are charged with breaking a park ordinance forbidding the public to kill the robins. Of course you ought not to kill the robins for they are harmless birds, but I have looked this thing up a little, and I find that from time immemorial it has been held that there can be no right of property in wild beasts. Now, a robin is clearly ferræ naturæ—of a wild nature—and so the city has no property in it. The ordinance is therefore unconstitutional, and I am constrained to discharge you. You may go."

Nowhere than on the magistrate's bench is better illustrated the proverb that a little learning is a dangerous thing, but only a little learning, even such as classifies an innocent park robin as a wild beast, is preferable to an openly expressed intention of enforcing only those laws which appeal to the judge's individual sense of propriety. The writer recalls endeavoring some six years ago to induce a certain magistrate to hold a defendant for the grand jury for a certain statutory offence. The learned magistrate positively refused to do so on the ground that there was "no sense in the law."

"But it is the law!" returned the writer.

"Well, I don't care if it is," replied the judge tartly. "I didn't make it. It's no law of mine, and I don't propose to follow it. Go and get the grand jury to indict if you can, but I won't hold this man for doing what I might want to do myself some day."[21]

Taken as a body our magistrates, with a few obvious exceptions, are men of wide experience and practical common sense, who handle the enormous stream of business which comes before them with efficiency and dispatch. A forbidding exterior and, occasionally, a diction which might startle a Friday evening prayer meeting may co-exist with a fair mind, a kind heart, and an honest determination to see that justice is done. While the rights of the defendant are fully protected it is probable that actual justice is more nearly accomplished in these than in higher courts, where "reasonable doubt," the presumption of innocence, and kindred privileges, as interpreted by a sympathetic jury, intervene between the rights of the community and those of the prisoner at the bar.

FOOTNOTES:

[15] Of course if he has been indicted by the grand jury in the first instance, he is arrested on a "bench warrant" issued by a judge of the General Sessions and placed in confinement without any preliminary examination.

[16] This condition has been much improved in New York City by the institution of the "Night" Court in which one magistrate is always on duty. All minor offenders are at once arraigned before him, no matter what the hour, and thus may be disposed of without undue confinement.

[17] "Many persons are arrested under suspicious circumstances, such as well-known criminals mysteriously loitering about the streets at night, or frequenting crowded places, or persons having property in their possession for which they can give no good account, nor of themselves. Frequently such an arrest is the first step in the detection of some crime in which (after investigation), if the proper complainant is found, a formal complaint is taken, and the prisoner is held for trial. In many instances such an arrest prevents the commission of crime."

Comparison with Previous Years.

[18] The nativity of the persons held for trial in 1907 or summarily tried and convicted in magistrates' courts was:

[19] In 1905 the number of persons so held in New York County by the magistrates of the first division, was 36,340.

[20] During 1907 there were arrested 1,669 persons on charges of burglary, of whom 1,055 were held for trial.

[21] See latter half of Subdivision 5, Section 278 New York Penal Code.

[CHAPTER V]

THE TRIAL OF MISDEMEANORS

One of the most efficient, effective, and important criminal courts in the civilized world is that established for the trial of misdemeanors in New York County. Three judges, each having an equal voice, act as arbiters of both law and fact. Originally this bench was filled by three regular police magistrates sitting in rotation, and in many cases the same judge before whom the prisoner had been arraigned in the first instance assisted in determining the final question of his guilt or innocence. But the old Court of Special Sessions acquired a very unsavory reputation for many reasons, the chief among them being its alleged susceptibility to political influence and the looseness with which its funds were handled, and it was finally legislated out of existence in 1895. Then a new court was created composed of three justices who, while they had the powers of police magistrates, did not sit in magistrates' courts, but devoted their entire time to the trial of misdemeanors. In the last eight years this court disposed of 65,579 cases, in which 40,894 persons were convicted of crime, either by trial or by plea of guilty. During the year 1907 alone 13,140 cases were disposed of, in which there were 7,960 convictions. The judges in this huge mill of justice rarely make mistakes, and few appeals are ever taken from their decisions. They have become, by virtue of long experience, experts in fact, and the training thus received has qualified several of them for higher office.[22]

As the reader is already aware, a defendant charged in a magistrate's court with the commission of a misdemeanor, say that of petit larceny, is given an immediate hearing, and, if there be reasonable ground to believe him guilty, is held for trial in the Special Sessions. The information or affidavit, to which the complaining witness has sworn and which contains a more or less succinct account of the facts alleged against the prisoner, is thereupon forwarded to the clerk of the court and in due course the defendant appears, if he be on bail, or is brought from prison, if he be in confinement, to "plead." This information, which is the basis of the proceedings against him and which is practically the only record in the case, is commonly called the "complaint" and corresponds with the indictment found by the grand jury where the defendant is charged with the commission of a felony.

After the prisoner has entered his plea, if he be in prison, he is given a trial almost immediately; if not, his case will probably come up within a week or two. The offences over which these three judges have jurisdiction are as many and as diversified as human ingenuity and the demands of modern civilized life, qualified by ineffective legislation, have combined to make them.

As might be expected, petty larcenies and assaults furnish together more than thirty per cent of the cases tried. The following table will show the more numerous and important offences for which defendants were held in 1907 for the Special Sessions and their relative proportions:

A spectator may in the course of a morning hear thirty or forty cases actually tried in which the charges cover almost every conceivable kind of sin, wrong, or prohibition. One prisoner is being prosecuted for assaulting a non-union workman, another for maintaining a public nuisance, another for a violation of the Liquor Tax Law, another for practising medicine without a license; a dozen cases will be rapidly disposed of wherein the defendants are charged with shoplifting or "illegal entry" (a charge frequently lodged against a suspected burglar who has made an entry without a "break" and has been caught before he has accomplished his purpose); others still will be tried for carrying concealed weapons, publishing or possessing indecent literature, violating trade-mark laws, breaking speed ordinances, or "malicious mischief"; while, if the student of institutions be patient, he may be rewarded by the exciting spectacle of one who is defending himself against the charge of selling skimmed milk, holding a mock auction, driving a spavined horse, writing a threatening letter, making a fraudulent assignment, pawning borrowed property, using a false weight, opening another's letter, keeping a cow in an unhealthy place, running a cock-fight, misrepresenting the circulation of a newspaper, divulging the contents of a telegram, impersonating a policeman, adulterating food; or, provided he be exceptionally fortunate, may hear the trial of a celebrated actress for her impersonation of "Sappho," or of a manager for producing "Mrs. Warren's Profession."

He will see every conceivable type of man, woman, and child, either as defendant or witness, and he may also study every variety of human failing or weakness. No mock defence or prepared lie can deceive these argus-eyed judges; short shrift is made of the guilty, while the "reasonable doubt" is recognized the instant it puts in the most furtive appearance. In fact defendants are often found guilty or acquitted almost before they are aware they are on trial,—and this with no detriment to them or to their cause.

The advocates of the abandonment of the jury system point to this court as their strongest argument. No time is lost in the selection of a jury,—a matter often of hours in the General Sessions in cases of no greater importance. There is no opening address on the part of the district attorney or counsel for the defendant,—the written statement or information sworn to by the complainant being entirely sufficient for the court. Cross-examination is cut down to its essentials and tests of "credibility" are almost unnecessary. At the conclusion of the case there are no harangues from either side, and the judges almost immediately announce their decision and generally impose sentence on the spot.

Of course in nine cases out of ten the evidence is conclusive and the merest glance at the complainant and his or her witnesses is enough to satisfy the onlooker that their claim is honest and the charge substantial. In such cases the trials proceed with lightning-like celerity. The owner of the stolen property is sworn while the defendant and his lawyer are pushing their way through the crowd to the bar.

"Mr. Blickendecker, are you a grocer, fifty-five years of age, residing at 1000-A-rear, First Avenue, and having a store at 666½ Catharine Street?" rapidly articulates the deputy assistant district attorney.

"Ya; I vas," answers Blickendecker heavily, trying helplessly to catch up.

"Did you, about 4:49 P.M., on Tuesday, the 17th of April, observe the defendant near your place of business?"

"Ya; I vas—I mean, ya, I did."

"What did you see him do?"

Blickendecker wipes his forehead and turns towards the court:

"Your honors, gentlemens, I see dot feller dere——"

"The defendant?" interrupts the presiding judge, patiently.

"Ya—the defender, I see dot defender mit a leetle vagon on two wheels, py mein store mit anoder feller, unt dey catch up ein crate of eggs unt put him in de vagon unt skip mit him, unt I hollers 'Tief!' unt runs, unt de officer——"

"That's enough. Any cross-examination? No? Call the officer."

The officer is sworn.

"Are you a member of the Municipal Police force of the city and county of New York, attached to the —— Precinct, and were you so attached on the 17th of April last, and did you see the defendant on that day near the premises 666½ Catharine Street?"

"Shure I seen him. Him and another feller. They were makin' off wid old 'Delicatessen's' eggs. I catched this young feller——"

"That's enough. Any cross-examination? No? Leave the stand."

"The People rest," announces the assistant.

"Take the stand," directs the lawyer, and his client shambles into the chair.

"Did you steal Mr. Blickendecker's eggs?"

"No, your honor; Cully Fagan asked me to go round and help him deliver some eggs. He said he'd gimme a drink. So I went along wid him. All of a sudden out comes this old guy and yells 'thief.' I gets scared and runs. I didn't mean no harm."

"That is our case," says the lawyer.

"No cross-examination," says the assistant.

The judges consult for a moment.

"We find the defendant guilty," announces the presiding judge, dipping his pen into the ink.

"Now, young man, have you ever been convicted?"

"No, your honor."

"I advise you not to steal any more eggs. One month in the penitentiary. Next case!"

Now here is a defendant given a perfectly fair, if not a very full, trial in less than three minutes. Of course it is in such a case practically a mere formality. Two witnesses who have had no previous acquaintance with the prisoner, whose eyesight is perfect, and who have no motive to swear falsely, identify him as caught in flagrante delicto. The defendant has merely put in his defence "on the chance." His sentence would be about the same in either case. The only disadvantage of so active a court is the fact that the multitude of the defendants render it almost impossible to make any very exhaustive study of the majority of them before sentence. However, as the sentences are all light, the defendant always gets the benefit of the doubt, and the court resolves all doubts in his favor.

Sometimes in such a case a criminal conspiracy between the complainant and the officer is disclosed to "do" a mischievous, but not criminal, youth who has fallen into their disfavor. Then the witnesses are subjected to such a fire of questions that they wilt and wither in the blast, the defendant is acquitted and the prosecution's witnesses sometimes held for the action of the grand jury on a charge of perjury. Many a cause célèbre has originated in the Special Sessions through the perspicacity of some member of that bench during a petty trial, and defendants there convicted often divulge in their confessions evidence which for a time sets the newspaper world by the ears. This is especially true of cases where some civil officer is accused of taking a bribe to influence his action or to make an appointment. He may be convicted, confess, and for a day or two the papers are full of the unearthing of a far-reaching conspiracy to debauch the city government, barter offices at wholesale, and deliver the city to a coterie of criminals. The next step in the proceeding is the unfortunate discovery that the defendant's confession, since it cannot be corroborated, is entirely worthless. Yet, as he has apparently done all he could to atone for his offence, he receives a mitigated sentence, while the uproar occasioned by his sensational disclosures subsides as suddenly as it began.

The bane of the Court of Special Sessions in New York County and very likely the bane of all similar courts, are the so-called "Liquor Tax cases." As one of the officers of this court recently said: "In this class of cases the court knows that it is being 'flim-flammed,' and, in addition, that it is helpless. We convict in about sixty per cent of the cases, but the judges know perfectly well that a considerable number of those convicted are men who, while not honest enough not to violate the law, are too honest to pay corruption money."

The possibilities for blackmail and the arbitrary and unequal way in which the law is enforced in different parts of the city (one section being allowed to be "wide open" while an adjacent district is "dry") render the judges loath to convict even in "straight" cases. When Liquor Tax cases are transferred, by order of the judge presiding in Part I, for trial in the General Sessions, the juries before which they are prosecuted will not convict at all.[23]

In the same way the court looks with grave suspicion on most cases where a defendant is arraigned charged with "assault" on an officer. They expect to see arraigned at the bar (and are usually not disappointed) a small man covered with bandages, while a burly officer without a scratch upon his rosy countenance takes the stand and swears that the defendant assaulted him. The policeman always has plenty of corroboration—the defendant none at all. The chances are that the relative sizes of the two men are such that if the officer coughed the defendant would drop dead. The proper charge in such a case would be, not attempted assault on an officer, but attempted suicide. The truth of the matter probably is that the small man, having done or said something to irritate the officer, has been pounded to a pulp and then ignominiously haled away to the station house, while his terrified companions, knowing full well that if they interfered theirs would be a similar fate, have retired to their homes privately to execrate a state of civilization where humble citizens can be subjected to such persecution.

Practically the Special Sessions is the final court of disposition for most misdemeanors. Except in automobile, theatrical, health, copyright, and trade-mark cases and a few others, a majority of the defendants do not have enough money even to hire a lawyer, to say nothing of taking an appeal. They are disposed of then and there just as in certain cases they are disposed of in the magistrates' courts. For them a sentence once imposed is final.

Occasionally the Special Sessions is the scene of a great trial, as celebrated as those fought out in the "Parts" upstairs or in the criminal trial term of the Supreme Court across the hall. A prominent druggist may have been accused of refilling bottles with spurious or diluted contents. He is being prosecuted by the owners of the trade-mark or label. They retain distinguished counsel to prepare the case for the prosecution. The accused engages equally able lawyers to defend him. The crime is highly technical and the evidence almost entirely a matter of chemical analysis and expert opinion. The battle goes on for weeks or even months. A jury would have become hopelessly confused and the issue successfully obscured, but the three judges are expert jurymen, and in due course, if he be guilty, the defendant is inevitably convicted. Such a trial may cost the parties tens of thousands of dollars for expert testimony alone, while the sentence of the defendant will very likely be not more than a two-hundred-and-fifty-dollar fine. Even so, the integrity of the trade-mark has been sustained and the swindler stamped as a criminal.

Fifty per cent or more of the work of the Special Sessions is practically amplified police-court business, but it is accomplished with an exactitude and efficiency that makes much of that done in the magistrates' courts appear crude indeed. The lesson of this particular court is that police business can be done speedily, effectively, and justly, provided the right men are selected to do it.

Fully seventy-five per cent of the criminals begin with petty infractions of the law. A driver for an iceman may "swipe" his comrade's horse blanket. If he be convicted and sent to the penitentiary he may learn to commit crimes of which he had never dreamed in his driver days, when his highest ambition was to get a ticket to a "chowder" or to a "grand ball." His next appearance may be in the General Sessions charged with burglary, and his last in the Supreme Court under indictment for murder. If, on the other hand, having been found guilty, he be merely reprimanded and paroled under a suspended sentence, he will in all likelihood never appear in court as a defendant again. Hence an opportunity, greater even than that of the police justice, for the exercise of a wise and humane discretion.

The multitude of prisoners who are unable to employ counsel have created a bevy of lawyers, abundantly able to look out for the interests of petty offenders, who stand or sit near the bar and are assigned by the court to the various defendants. A whispered fifteen seconds' conversation with their unfortunate client and they are enabled to take charge of the case. Long experience has made them almost as expert in estimating human nature as the judges themselves, and they are familiar with every trick of the trade which may raise a "reasonable doubt." The leaders among them have skilful "runners" who haunt the police courts and the corridors of the building, heralding the virtues and successes of their masters, handing cards to prospective clients, and currying business in every conceivable manner. Observing a forlorn person, who timidly responds when his case is called, the runner instantly offers him the services of the "biggest" lawyer in the court for a five-, three-, or two-dollar retainer. If the client escapes conviction he is supposed to pay twenty-five dollars more and is dunned until he does. This may seem petty business and small pickings, but when one considers that thirteen thousand odd cases are disposed of each year, one sees that at even the modest fee of ten dollars per case there is over a hundred thousand dollars a year in the Special Sessions waiting for somebody.

The best of these lawyers earn as much as five thousand dollars per year, including their outside and police-court business. The runner usually gets nearly as much. Sometimes there will be a one-hundred-dollar, a two-hundred-and-fifty-dollar, or even a five-hundred-dollar fee. In reality there is more money to be made in the police court than in the Special Sessions, for it is when the offender has just been caught and is in his first spasm of terror that he is most ready to "give up." Police-court fees are sometimes very high.

The most notable figure of this bar was Tom Cherry, otherwise known as "The Attorney-General of the Special Sessions." When sober he was a most capable, rough-and-ready, catch-as-catch-can, police-court lawyer. His fame extended to every magistrate's court, and his business was so constant that he never sat down, but stood at the bar from the opening of court to its adjournment, defending almost every prisoner who had money to pay a fee, and being assigned to practically all those who had not. His success was his undoing. Without any knowledge of law, although he presumably had passed the Bar examinations (Heaven knows how!), his judgment of character, his ready wit, and his quick tongue made him no unworthy antagonist for a well-trained youngster. But Cherry never took an unfair advantage, and his statement as to his client's past, and sometimes as to his innocence, was received without question by the court. It was a boon to a new assistant to gain Cherry's confidence; and it was a reproach to many that they did not do so.

Cherry finally succumbed to his closest friend and worst enemy—drink. His periodic absences became more and more frequent, and finally the word was sadly whispered through the building that Cherry had "passed." His memory is still green and his smiling face will never be forgotten by those who knew him. A rival attorney almost immediately succeeded to his practice and his particular place beside the bar, but the Court of Special Sessions is not the same.

The practices of the shysters are the curse of the lower courts, and their enormities are such that a special cycle in Hades should be reserved for their particular retribution. Preying upon ignorance and vice, they become hardened to every appeal of human sympathy and often deserve punishment a thousand times more heavy than the miserable wretches whom they make a pretence of defending. They pervert justice and prostitute a sacred calling, extorting from their clients the uttermost farthing by fear and false pretence. To show that this charge is not ill-founded, the reader may take as an example the practice of the shyster in dealing with those unfortunate women who are the common prey of the corrupt plain-clothes man and his conscienceless ally—the police-court lawyer.

Let us suppose that a certain section of the town is, as the saying goes, "wide open," and the police are regularly collecting protection money according to the approved method of "the system." The houses which pay up are left undisturbed—and all do pay up. So does the little street walker who plies her trade in the open. Some citizen or newspaper makes a complaint that the police are not doing their duty. There is a bare chance that political capital will be made of it and word is sent to the captain of the precinct to "get busy." He sends for the plain-clothes man, and tells him "there are not arrests enough." The officer answers that "everything is quiet." "Get busy," says the captain. A scapegoat is necessary and so the officer goes out and, leaving the bawdy-houses untroubled, tracks some miserable creature to her lonely room and there arrests her under the pretence that she is violating the "Tenement House Law." Now the worst that would happen to such an unfortunate would be, having "waived examination" before the magistrate, and pleaded guilty in Special Sessions, to be fined twenty-five or fifty dollars. The girl usually does not know this. When she is brought in under arrest the keeper "tips off" the runner for some lawyer, who first frightens her into believing that a long term of imprisonment confronts her, and then introduces his master. The latter in turn offers to get her out on bail, meantime determining by an expert cross-examination, at which he is a past master, exactly how much money she has in the world. He then proceeds to acquire this by every means at his command. An actual case will illustrate what follows.

A young girl who had fallen from virtue, but who had never been arrested before, was brought into the Jefferson Market prison. She had saved five hundred dollars with which she intended the following week to return to her native town in New Hampshire and start life anew. The keeper led her to believe that she would be imprisoned in the penitentiary for nearly a year unless she could "beat the case." One of these buzzards learned of her distress and offered to procure bail for her for the sum of fifty dollars. A straw bondsman was produced, and she paid him the money and was liberated. Meanwhile the lawyer had learned of the existence of her five hundred dollars. By terrifying her with all sorts of stories as to what would possibly happen to her, he succeeded in inducing her to pay him three hundred as a retainer to appear for her at the hearing in the magistrate's court. He had guaranteed to get her off then and there, but when her case was called he happened to be engaged in reading a newspaper and, looking up from where he was sitting, merely remarked, "Waives examination, your honor." The girl had only one hundred and fifty dollars left, and as yet had had no defence, but the shyster now demanded and received one hundred dollars more for representing her in the Special Sessions. She now had but fifty dollars. Immediately after the hearing in the police court the bondsman "surrendered" her and she was locked up in the Tombs pending her trial, for she had not money enough to secure another bail bond. Here she languished three or four days. When at last her case appeared upon the calendar the shyster did not even take the trouble to come to court himself, but telephoned to another buzzard that she still had fifty dollars, telling him to "take her on." Abandoned by her counsel, alone and in prison, she gave up the last cent she had, hoping thus still to escape the dreadful fate predicted for her. When she was called to the bar the second lawyer informed her she had no defence and the best thing she could do was to plead guilty. This she did and was fined twenty-five dollars, but, having now no money, was compelled to serve out her time, a day for each dollar, in the City Prison, at the end of which time she was cast penniless upon the streets.

Many an originally honest young fellow who, in a sincere attempt to build up a small practice, has haunted the magistrate's court and secured petty police business has been gradually drawn into the vortex of crime until he is even more tainted than those whom he defends. The Legal Aid Society, which, so far as the writer is aware, is the only bona fide charitable organization existing in New York for the purpose of assisting impoverished persons to secure legal counsel, does not undertake any criminal business. No greater service could be rendered to the community than by some society organized to protect helpless defendants who have fallen victims to the vultures who prey upon the prison pens. At the present time the official prosecutor himself is the only person to whom one charged with a criminal offence can turn with any hope of relief from his own lawyer, and if the number of cases were known where the prosecutor has befriended the prosecuted the eyes of jurors and of the public would be opened to the real spirit which animates a fair-minded district attorney.

A favorite trick of shysters if they have an imprisoned client who still refuses to "give up," is to plead "not guilty and not ready" and thus have the case adjourned until they squeeze their victim dry. A defendant who has any money is never permitted to go to trial or even to plead guilty before his money is entirely exhausted.

This is not romance, it is practice. The men who do these things can be seen any day in every police court in New York—heartless, cynical, merciless. Lying and deceit are their stock in trade, corruption their daily food. Within three months one of these gentry not only compelled an eighteen-year-old girl to give him a fine Etruscan ring which she had inherited, and which he pawned for five dollars, but stripped her of a new silk petticoat which he carried away in a newspaper as a fee. This woman served ten days because she could not pay her fine. Another woman who had stolen an umbrella gave a shyster her watch. He pawned it and then abandoned her, when she came up for trial. Each of these men has a special line of clients which he serves, either because he is supposed to be particularly expert in such cases or because he is regularly retained by the "trust" which they compose. Thus the East Side pickpockets have one attorney, the "green-goods" men another, the opium sellers a third, the abortionists a fourth, while every "short changing," "thimble rigging," or "flim-flam" case sees the same lawyer for the defence.

It is a fact of considerable significance that most retailers charged with selling adulterated milk are defended by the same lawyers. The large milk companies apparently invite the trade of the small dealer by offering him cheap milk, and a guarantee that if he is caught selling their product they will not only defend him but, if he be found guilty, will pay his fine. Who does the adulterating? The company or the retailer? It is almost impossible to say. Nevertheless, if lack of evidence prevents proceedings against the companies themselves, the next best thing is to punish the dealers who act as their agents, under the guise of doing an independent business. If prison sentences were invariably inflicted in such cases the dealers would soon find their miserable business as unhealthy as do the consumers who buy from them.

Some very disreputable, but, nevertheless, highly amusing tricks are invoked by wily practitioners in the Special Sessions to secure the release of their clients. One of the most adroit is to secure adjournments from day to day on various pretexts until the patience of the complaining witness is nearly exhausted. When the case is at last about to be called for trial the lawyer tells his runner to go into the corridor outside the court-room and send in word that some one desires to see the complainant. The complainant goes out to see what is wanted. In the meantime the case is moved for trial, and when his name is called he naturally fails to respond. The shyster, in a most aggrieved tone, then informs the court that the defendant "is a hard-working man who has already been dragged down to court four or five times," on each occasion being compelled to lose an entire day's pay; that he is the only support of an invalid wife, an aged mother, six children, and an imbecile brother; that the defence is and always has been ready to proceed with the case; that simply in the interests of justice he requests that the defendant be discharged on his own recognizance or acquitted. In many cases this motion is granted and the complainant hurries back into the court-room just in time to meet the defendant making a triumphal exit.

The tears and laughter of the police courts are the tears and laughter of the Sessions. The Miserables of Hugo are the miserables of to-day. Jean Valjean, Fantine, and Cosette haunt the corridors of our courts. As well try to paint the sufferings and experiences of mankind in a single picture as the ten thousand yearly tragedies of the Special Sessions in a single chapter.

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