"A great artist!" said the president.

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

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

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

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

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

He returned to his office and detailed a dozen men to work on the East Side and a dozen on the West Side, with orders to search out every man in New York who manufactured rubber stamps. Before the end of the afternoon the maker was found on the Bowery, near Houston Street. This was his story: A couple of weeks before, a young man had come in and ordered a certification stamp, drawing at the time a rough design of what he wanted. The stamp, when first manufactured, had not been satisfactory to him; and on his second visit, the customer had left a piece of a check, carefully torn out in circular form, which showed the certification which he desired copied. This fragment the maker had retained, as well as a slip of paper, upon which the customer had written the address of the place to which he wished the stamp sent—The Young Men's Christian Association! The face of the fragment showed a part of the maker's signature. The superintendent ran his eye over a list of brokers and picked out the name of the firm most like the hieroglyphics on the check. Then he telephoned over and asked to be permitted to see their pay roll. Carefully comparing the signature appearing thereon with the Y.M.C.A. slip, he picked his man in less than ten minutes.

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

A good example of the value of the accumulated information—documentary, pictorial, and otherwise—in the possession of an agency was the capture of Charles Wells, more generally known as Charles Fisher, alias Henry Conrad, an old-time forger, who suddenly resumed his activities after being released from a six-year term in England. A New York City bank had paid on a bogus two hundred and fifty dollar check and had reported its loss to the agency in question. The superintendent examined the check (although Fisher had been in confinement for six years on the other side) spotted it as his work. The next step was to find the forger. Of course, no man who does the actual "scratching" attempts to "lay down" the paper. That task is up to the "presenter." The cashier of the bank identified in the agency's gallery the picture of the man who had brought in the two hundred and fifty dollar check, and he in turn proved to be another ex-convict well known in the business, whose whereabouts in New York were not difficult to ascertain. He was "located" and "trailed" and all his associates noted and followed. In due course he "connected up" (as they say) with Fisher. Now, it is one thing to follow a man who has no idea that he is being followed and another to trail a man who is as suspicious and elusive as a fox. A professional criminal's daily business is to observe whether or not he is being followed, and he rarely if ever, makes a direct move. If he wants a drink at the saloon across the street, he will, by preference, go out the back door, walk around the block and dodge in the side entrance under the tail of an ice wagon. In this case the detectives followed the presenter for days before they reached Fisher, and when they did they had still to locate his "plant."

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

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

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

One more anecdote, at the expense of the deductive detective. A watchman was murdered, the safe of a brewery blown open and the contents stolen. Local detectives worked on the case and satisfied themselves that the night engineer at the brewery had committed the crime. He was a quiet and, apparently, a God-fearing man, but circumstances were conclusive against him. In fact, he had been traced within ten minutes of the murder on the way to the scene of the homicide. But some little link was lacking and the brewery officials called in the agency. The first thing the superintendent did was to look over the engineer. At first sight he recognized him as a famous crook who had served five years for a homicidal assault! One would think that that would have settled the matter. But it didn't! The detective said nothing to his associates or employers, but called on the engineer that evening and had a quiet talk with him in which he satisfied himself that the man was entirely innocent. The man had served his time, turned over a new leaf, and was leading an honest, decent life. Two months later the superintendent caused the arrest of four yeggmen, all of whom were convicted and are now serving fifteen years each for the crime.

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



CHAPTER VII. Women in the Courts

AS WITNESSES

Women appear in the criminal courts constantly as witnesses, although less frequently as complainants and defendants. As complainants are always witnesses, and as defendants may, and in point of fact generally do become so, whatever generalizations are possible regarding women in courts of law can most easily be drawn from their characteristics as givers of testimony. Roughly speaking, women exhibit about the same idiosyncrasies and limitations in the witness-chair as the opposite sex, and at first thought one would be apt to say that it would be fruitless and absurd to attempt to predicate any general principles in regard to their testimony, but a careful study of female witnesses as a whole will result in the inevitable conclusion that their evidence has virtues and limitations peculiar to itself.

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

"The following law," says W. M. Best, "is attributed to Moses by Josephus: 'Let the testimony of women not be received on account of the levity and audacity of their sex'; a law which looks apocryphal, but which, even if genuine, could not have been of universal application.... The law of ancient Rome, though admitting their testimony in general, refused it in certain cases. The civil canon laws of mediaeval Europe seem to have carried the exclusion much further. Mascardus says: 'Feminis plerumque omnino non creditur, et id dumtaxat, quod sunt feminae qua ut plurimum solent esse fraudulentre fallaces, et dolosae' [Generally speaking, no credence at all is given to women, and for this reason, because they are women, who are usually deceitful, untruthful, and treacherous in the very highest degree.] And Lancelottus, in his 'Institutiones Juris Canonici,' lays it down in the most distinct terms, that women cannot in general be witnesses, citing the language of Virgil: 'Varium et mutabile semper femina'....

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

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

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

Whatever difference does exist in character between the testimony of men and women has its root in the generally recognized diversity in the mental processes of the two sexes. Men, it is commonly declared, rely upon their powers of reason; women upon their intuition. Not that the former is frequently any more accurate than the latter. But our courts of law (at least those in English-speaking countries) are devised and organized, perhaps unfortunately, on the principle that testimony not apparently deduced by the syllogistic method from the observation of relevant fact is valueless, and hence woman at the very outset is placed at a disadvantage and her usefulness as a probative force sadly crippled.

The good old lady who takes the witness-chair and swears that she knows the prisoner took her purse has perhaps quite as good a basis for her opinion and her testimony (even though she cannot give a single reason for her belief and becomes hopelessly confused on cross-examination) as the man who reaches the same conclusion ostensibly by virtue of having seen the defendant near by, observed his hand reaching for the purse, and then perceived him take to his heels. She has never been taught to reason and has really never found it necessary, having wandered through life by inference or, more frankly, by guesswork, until she is no longer able to point out the simplest stages of her most ordinary mental processes.

As the reader is already aware, the value of all honestly given testimony depends first upon the witness's original capacity to observe the facts; second upon his ability to remember what he has seen and not to confuse knowledge with imagination, belief or custom, and lastly, upon his power to express what he has, in fact, seen and remembers.

Women do not differ from men in their original capacity to observe, which is a quality developed by the training and environment of the individual. It is in the second class of the witness's limitations that women as a whole are more likely to trip than men, for they are prone to swear to circumstances as facts, of their own knowledge, simply because they confuse what they have really observed with what they believe did occur or should have occurred, or with what they are convinced did happen simply because it was accustomed to happen in the past.

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

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

The old English lawyers occasionally rejected the evidence of women on the ground that they are "frail." But the exclusion of women as witnesses in the old days was not for psychological reasons, nor did it originate from a critical study of the probative value of their testimony.

Though the conclusions to which women frequently jump may usually be shown by careful interrogation to be founded upon observation of actual fact, their habit of stating inferences often leads them to claim knowledge of the impossible—"wiser in [their] own conceit than seven men that can render a reason."

In a very recent case where a clever thief had been convicted of looting various apartments in New York City of over eighty thousand dollars' worth of jewelry, the female owners were summoned to identify their property. The writer believes that in every instance these ladies were absolutely ingenuous and intended to tell the absolute truth. Each and every one positively identified various of the loose stones found in the possession of the prisoner as her own. This was the case even when the diamonds, emeralds and pearls had no distinguishing marks at all. It was a human impossibility actually to identify any such objects, and yet these eminently respectable and intelligent gentlewomen swore positively that they could recognize their jewels. They drew the inference merely that as the prisoner had stolen similar jewels from them these must be the actual ones which they had lost, an inference very likely correct, but valueless in a tribunal of justice.

Where their inferences are questioned, women, as a rule, are much more ready to "swear their testimony through" than men. They are so accustomed to act upon inference that, finding themselves unable to substantiate their assertion by any sufficient reason, they become irritated, "show fight," and seek refuge in prevarication. Had they not, during their entire lives, been accustomed to mental short-cuts, they would be spared the humiliation of seeing their evidence "stricken from the record."

One of the ladies referred to testified as follows:

"Can you identify that diamond?"

"I am quite sure that it is mine:"

"How do you know?"

"It looks exactly like it."

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

"No; it is mine."

"But how? It has no marks."

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

The good lady supposed that, unless she swore to the fact, she might lose her jewel, which was, of course, not the case at all, as the sworn testimony founded upon nothing but inference left her in no better position than she was in before.

The writer regrets to say that observation would lead him to believe that women as a rule have somewhat less regard for the spirit of their oaths than men, and that they are more ready, if it be necessary, to commit perjury. This may arise from the fact that women are fully aware that their sex protects them from the same severity of cross-examination to which men would be subjected under similar circumstances. It is today fatal to a lawyer's case if he be not invariably gentle and courteous with a female witness, and this is true even if she be a veritable Sapphira.

In spite of these limitations, which, of course, affect the testimony of almost every person, irrespective of sex, women, with the possible exception of children, make the most remarkable witnesses to be found in the courts. They are almost invariably quick and positive in their answers, keenly alive to the dramatic possibilities of the situation, and with an unerring instinct for a trap or compromising admission.

A woman will inevitably couple with a categorical answer to a question, if in truth she can be induced to give one at all, a statement of damaging character to her opponent. For example:

"Do you know the defendant?"

"Yes, to my cost!"

Or

"How old are you?"

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

Forced to make an admission which would seem to hurt her position, the explanation, instead of being left for the re-direct examination of her own counsel, is instantly added to her answer then and there.

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

"Yes. But it was in response to a message sent by the defendant through his cousin."

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

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

"How do you support yourself?"

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

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

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

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

The witness, a rather deceptively arrayed woman, turned upon him with a glance of contempt:

"I am a respectable married woman, with seven children," she retorted. "I do nothing for a living except cook, wash, scrub, make beds, clean windows, mend my children's clothes, mind the baby, teach the four oldest their lessons, take care of my husband, and try to get enough sleep to be up by five in the morning. I guess if some lawyers worked as hard as I do they would have sense enough not to ask impertinent questions."

An amusing incident is recorded of how a feminine witness turned the laugh upon Mr. Francis L. Wellman, the noted cross-examiner. In his book he takes the opportunity to advise his lawyer readers to "avoid the mistake, so common among the inexperienced, of making much of trifling discrepancies. It has been aptly said," he continues, "that 'juries have no respect for small triumphs over a witness's self-possession or memory!' Allow the loquacious witness to talk on; he will be sure to involve himself in difficulties from which he can never extricate himself. Some witnesses prove altogether too much; encourage them and lead them by degrees into exaggerations that will conflict with the common-sense of the jury."

Mr. Wellman is famous for following this precept himself and, with one eye significantly cast upon the jury, is likely to lead his witness a merry dance until the latter is finally "bogged" in a quagmire of absurdities. Not long ago, shortly after the publication of his book, the lawyer had occasion to cross-examine a modest-looking young woman as to the speed of an electric car. The witness seemed conscious that she was about to undergo a severe ordeal, and Mr. Wellman, feeling himself complete master of the situation, began in his most winsome and deprecating manner:

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

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

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

"Oh, fully that!"

"Twenty miles an hour?"

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

"Will you say it was going thirty miles an hour?" inquired Wellman with a glance at the jury.

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

"Will you say it was going forty?"

"Yes."

"Fifty?"

"Yes, I will say so."

"Seventy?"

"Yes."

"Eighty?"

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

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

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

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

There is no witness in the world more difficult to cope with than a shrewd old woman who apes stupidity, only to reiterate the gist of her testimony in such incisive fashion as to leave it indelibly imprinted on the minds of the jury. The lawyer is bound by every law of decency, policy and manners to treat the aged dame with the utmost consideration. He must allow her to ramble on discursively in defiance of every rule of law and evidence in answer to the simplest question; must receive imperturbably the opinions and speculations upon every subject of both herself and (through her) of her neighbors; only to find when he thinks she must be exhausted by her own volubility, that she is ready, at the slightest opportunity, to break away again into a tangle of guesswork and hearsay, interwoven with conclusions and ejaculation. Woe be unto him if he has not sense enough to waive her off the stand! He might as well try to harness a Valkyrie as to restrain a pugnacious old Irishwoman who is intent on getting the whole business before the jury in her own way.

In the recent case of Gustav Dinser, convicted of murder, a vigorous old lady took the stand and testified forcibly against the accused. She was as "smart as paint," as the saying goes, and resolutely refused to answer any questions put to her by counsel for the defence. Instead, she would raise her voice and make a savage onslaught upon the prisoner, rehearsing his brutal treatment of the deceased on previous occasions, and getting in the most damaging testimony.

"Do you say, Mrs.—" the lawyer would inquire deferentially, "that you heard the sound of three blows?"

"Oh, thim blows!" the old lady would cry—"thim turrible blows! I could hear the villain as he laid thim on! I could hear the poor, pitiful groans av her, and she so sufferin'! 'Twas awful! Howly Saints,'twould make yer blood run cowld!"

"Stop! stop!" exclaimed the lawyer.

"Ah, stop is it? Ye can't stop me till Oi've had me say to tell the whole truth. I says to me daughter Ellen, says I: 'Th' horrid baste is afther murtherin' the poor thing,' says I; 'run out an' git an officer!'"

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

"Ah, ye objec', do ye?" retorts the old lady. "Shure an' ye'd have been after objectin' if ye'd heard thim turrible blows that kilt her—the poor, sufferin', swate crayter! I hope he gits all that's comin' to him—bad cess to him for a blood-thirsty divil!"

The lawyer ignominiously abandoned the attack.

The writer recalls a somewhat similar instance, but one even better exhibiting the cleverness of an old woman, which occurred in the year 1901. A man named Orlando J. Hackett, of prepossessing appearance and manners, was on trial, charged with converting to his own use money which had been intrusted to him for investment in realty. The complainant was a shrewd old lady, who together with her daughter, had had a long series of transactions with Hackett which would have entirely confused the issue could the defence have brought them before the jury. The whole contention of the prosecution was that Hackett had received the money for one purpose and used it for another. During preparation for the trial the writer had had both ladies in his office and remembers making the remark:

"Now, Mrs. ———, don't forget that the charge here is that you gave Mr. Hackett the money to put into real estate. Nothing else is comparatively of much importance."

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

In the course of a month the case came on for trial before Recorder Goff, in Part II of the General Sessions. Mrs. ——— gave her testimony with great positiveness. Mr. Lewis Stuyvesant Chanler, now Lieutenant-Governor of the State, arose to cross-examine her.

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

"I told him to put it into real estate, and he said he would!" replied Mrs. firmly.

"I did not ask you that, Mrs. ———," politely interjected Mr. Chanler. "How much did you give him?"

"I told him to put it into real estate, and he said he would!" repeated the old lady wearily.

"But, madam, you do not answer my question!" exclaimed Chanler. "How much did you give him?"

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

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

"estate, and he said he would!" finished the old woman innocently.

"If your Honor please, I will excuse the witness. And I move that her answers be stricken out!" cried Chanler savagely.

The old lady was assisted from the stand, but as she made her way with difficulty towards the door of the court-room she could be heard repeating stubbornly:

"I told him to put it into real estate, and he said he would!"

Almost needless to say, Hackett was convicted and sentenced to seven years in State's prison.

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

In general, however, women's testimony differs little in quality from that of men, all testimony being subject to the same three great limitations irrespective of the sex of the witness, and the conclusions set forth above are merely the result of an effort on the part of the writer to comment somewhat upon those small differences which, under close scrutiny, may fairly be said to exist. These differences are quite as noticeable at the breakfast-table as in the court-room; and are no more patent to the advocate than to the ordinary male animal whose forehead habitually reddens when he hears the unanswerable reason which, in default of all others, explains and glorifies the mental action of his wife, sister or mother: "Just because!"

AS COMPLAINANTS AND DEFENDANTS

The ratio of women to men indicted and tried for crime is, roughly, about one to ten. Could adequate statistics be procured, the proportion of female to male complainants in criminal cases would very likely prove to be about the same: In a very substantial proportion, therefore, of all prosecutions for crime a woman is one of the chief actors. The law of the land compels the female prisoner to submit the question of her guilt or innocence to twelve individuals of the opposite sex; and permits the female complainant to rehearse the story of her wrongs before the same collection of colossal intellects and adamantine hearts.

The first thing the ordinary woman hastens to do if she be summoned to appear in a court of justice is not, as might be expected, to think over her testimony or try to recall facts obliterated or confused by time, but to buy a new hat; and precisely the same thing is true of the female defendant called to the bar of justice, whether it be for stealing a pair of gloves or poisoning her lover.

Yet how far does the element of sex defeat the ends of justice? To answer this question it is necessary to determine how far juries are liable to favor the testimony of a woman plaintiff merely because she is a woman, and how far sympathy for a woman arraigned as a prisoner is likely to warp their judgment.

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

Here the jury is apt to leap to a conclusion, rendered easy by the attractiveness of the witness and the feeling that the defendant is a "cur anyway," and ought to be "sent up."

The difficulty of determining, even in one's office, the true character of a plausible woman is enhanced tenfold in the court-room, where the lawyer is generally compelled to proceed upon the assumption that the witness is a person of irreproachable life and antecedents. Almost any young woman may create a favorable impression, provided her taste in dress be not too crude, and, even when it is so, the jury are not apt to distinguish carefully between that which cries to Heaven and that which is merely "elegant."

When the complaining witness is a woman who has merely lost money through the acts of the defendant, the jury are not so readily moved to accept her story in toto as when the crime charged is of a different character. They realize that the complainant, feeling that she has been injured, may be inclined to color her testimony, perhaps unconsciously, until the wrong becomes a crime.

An ordinary example of this variety of prosecution is where the witness is a young woman from the East Side, usually a Polish or Russian Jewess, who charges the defendant, a youth of about her own age, with stealing her money by means of false pretences. They have been engaged to be married, and she has turned over her small savings to him to purchase the diamond ring and perhaps set him up in a modest business of his own. He has then fallen in love with some other girl, has broken the engagement, and the ring now adorns the fourth finger of her rival. Her money is gone. She is without a dot. She hurries with her parents and loudly vociferating friends to the Essex Market Police Court, and secures a warrant for the defendant on the theory that he defrauded her by "trick and device" or "false representations." Usually the only "representation" has been a promise to marry her. Her real motive is revenge upon her faithless fiance. In nine cases out of ten the fellow is a cad, who has deliberately deserted her after getting her money, but it is doubtful whether any real crime is involved.

If the judge lets the case go to the jury it is a pure gamble as to what the result will be, and it may largely turn on the girl's physical attractiveness. If she be pretty and demure a mixture of emotions is aroused in the jury. "He probably did love her," say the twelve, "because any one would be likely to do so. If he did love her, of course he didn't falsely pretend to do so; but if he deserted a woman like that he ought to be in jail anyway." Thus the argument that ought to acquit in fact may convict the defendant. If the rival also is pretty, hopeless confusion results; while if the complainant be a homely girl the jury feels that he must have intended to swindle her anyway, as he could never have honestly intended to marry her. Thus in any case the Lothario is apt to pay a severe penalty for his faithlessness.

The man prosecuted by a woman, provided she cannot be persuaded to withdraw the charge against him, is likely to get but cold consideration for his side of the story and short shrift in the jury-room. Turn about, if he can get a young and attractive woman to swear to his alibi or good reputation the honest masculine citizen whom he has defrauded may very likely have to whistle for his revenge. Many a scamp has gone free by producing some sweetly demure maiden who faithfully swears that she knows him to be an honest man. A blush at the psychological moment and a wink from the lawyer is quite enough to lead the jury to believe that, if they acquit the defendant, they will "make the young lady happy," whereas if he is convicted she will remain for aye a heart-broken spinster. Like enough she may be only the merest acquaintance.

The writer is not likely to forget a distinguished lawyer's instructions to his client who happened also to be a childhood acquaintance—as she was about to go into court as the plaintiff in a suit for damages:

"I would fold my hands in my lap, Gwendolyn—yes, like that—and be calm, very calm. And, Gwendolyn, above all things, be demure, Gwendolyn! Be demure!"

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

The unconscious or conscious influence of women upon the intellects of jurymen has given rise to a very prevalent impression that it is difficult if not impossible successfully to prosecute a woman for crime. This feeling expresses itself in general statements to the effect that as things stand to-day a woman may commit murder with impunity. Experience, supplemented by the official records, demonstrates, however, that, curious as it must seem, the same sentiment aroused by a woman supposed to have been wronged is not inspired in a jury by a woman accused of crime. It is, indeed, true that juries are apt to be more lenient with women than with men, but this leniency shows itself not in acquitting them of the crimes charged against them, but of finding them guilty in lower degrees.

Of course flagrant miscarriages of justice frequently occur, which, by reason of their widespread publicity in the press, would seem to justify the almost universal opinion that women are immune from the penalities for homicide. It is also true that such miscarriages of justice are more likely when the defendant is a woman than if he be a man.

One of these hysterical acquittals which give color to popular impression, but which the writer believes to be an exception, was the case of a young mother tried and acquitted for murder in the first degree, December 22, 1904. This young woman, whose history was pathetic in the extreme, was shown clearly by the evidence to have deliberately taken the life of her child by giving it carbolic acid. The story was a shocking one, yet the jury apparently never considered at all the possibility of convicting her, but on retiring to the jury-room spent their time in discussing how much money they should present her on her acquittal.

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

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

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

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

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

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

In spite of such cases, where guilty women have been acquitted through maudlin sentiment or in response to popular clamor, nothing could be more erroneous than the idea that few women who are brought to the bar of justice are made to suffer for their offences. Thus, although no woman has suffered the death penalty in New York County in twenty years, the average number of convictions for crime is practically the same for women as for men in proportion to the number indicted. The last unreversed conviction of a woman for murder in the first degree was that of Chiara Cignarale, in May, 1887. Her sentence was commuted to life imprisonment. Since then thirty women have been actually tried before juries for homicide with the following results:

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

Total.......................................30

The percentage of convictions to acquittals is as follows:

Convictions Acquittals Convictions Acquittals Per Cent Per Cent 1887-1907......23........7..........77..........23

It is distinctly interesting to compare this with the table showing the results of all the homicide trials for the past eight years irrespective of the sex of the defendants:

Convictions Acquittals Convictions Acquittals Per Cent Per Cent

1900.............5.......12...........29.........71 1901............17.......17...........50.........50 1902............15.......11...........58.........42 1903............24........8...........75.........25 1904............19.......14...........58.........42 1905............18.......13...........58.........42 1906............21.......22...........49.........51 1907............16.......10...........62.........38

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

The reader will observe that the percentage of convictions to acquittals of women defendants averages twenty-two per cent greater than the percentage for both sexes. A more elaborate table would show that where the defendants are men there are a greater proportionate number of acquittals, but more verdicts in higher degrees. A verdict of manslaughter in the second degree in the case of a man charged with murder is infrequent, but convictions of murder in the second degree are exceedingly common.

The reason for the higher percentage of convictions of women is that fewer women who commit crime are prosecuted than men, and that they are rarely indicted unless they are clearly guilty of the degree of crime charged against them; while practically every man who is charged with homicide and who, it seems, may be found guilty is indicted for murder in the first degree.

The trial of women for crime invariably arouses keen public interest, and the dethronement of a Czar, or the assassination of an Emperor, pales to insignificance before the prosecution of a woman for murder. Some of this interest is fictitious and stimulated merely by the yellow press, but a great deal of it is genuine. The writer remembers attending a dinner of gray-headed judges and counsellors during the trial of Anna Eliza, alias "Nan," Patterson, where one would have supposed that the lightest subject of conversation would be not less weighty than the constitutionality of an income tax, and finding to his astonishment that the only topic for which they showed any zest was whether "Nan" would be found guilty.

One of the earliest, if not the earliest, record of a woman being held for murder is that of Agnes Archer, indicted by twelve men on April 4, 1435, sworn before the mayor and coroner to inquire as to the death of Alice Colynbourgh. The quaint old report begins in Latin, but "the pleadings" are set forth in the language of the day, as follows:

"Agnes Archer, is that thy name? which answered, yes.... Thou art endyted that thou.... feloney moderiste her with a knyff fyve tymes in the throte stekyng, throwe the wheche stekyng the saide Alys is deed.... I am not guilty of thoo dedys, ne noon of hem, God help me so.... How wylte thou acquite the?... By God and by my neighbours of this town."

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



* Cf. Thayer, as cited, supra.

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



CHAPTER VIII. Tricks of the Trade

"Tricks and treachery," said Benjamin Franklin, "are the practice of fools that have not wit enough to be honest." Had the kindly philosopher been familiar with all the exigencies of the criminal law he might have added a qualification to this somewhat general, if indisputably moral, maxim. Though it doubtless remains true as a guiding principle of life that "Honesty is the best policy," it would be an unwarrantable aspersion upon the intellectual qualities of the members of the criminal bar to say that the tricks by virtue of which they often get their clients off are "the practice of fools." On the contrary, observation would seem to indicate that in many instances the wiser, or at least the more successful, the practitioner of criminal law becomes, the more numerous and ingenious become the "tricks" which are his stock in trade. This must not be taken to mean that there are not high-minded and conscientious practitioners of criminal law, many of them financially successful, some filled with a noble humanitarian purpose, and some drawn to their calling by a sincere enthusiasm for the vocation of the advocate which, in these days of "business" law and commercial methods, reaches perhaps its highest form in the criminal courts.

There are no more "tricks" practised in these tribunals than in the civil, but they are more ingenious in conception, more lawless in character, bolder in execution and less shamefaced in detection.

Let us not be too hard upon our brethren of the criminal branch. Truly, their business is to "get their clients off." It is unquestionably a generally accepted principle that it is better that ninety-nine guilty men should escape than that one innocent man should be convicted. However much persons of argumentative or philosophic disposition may care to quarrel with this doctrine, they must at least admit that it would doubtless appear to them of vital truth were they defending some trembling client concerning whose guilt or innocence they were themselves somewhat in doubt. "Charity believeth all things," and the prisoner is entitled to every reasonable doubt, even from his own lawyer. It is the lawyer's business to create such a doubt if he can, and we must not be too censorious if, in his eagerness to raise this in the minds of the jury, he sometimes oversteps the bounds of propriety, appeals to popular prejudices and emotions, makes illogical deductions from the evidence, and impugns the motives of the prosecution. The district attorney should be able to take care of himself, handle the evidence in logical fashion, and tear away the flimsy curtain of sentimentality hoisted by the defence. These are hardly "tricks" at all, but sometimes under the name of advocacy a trick is "turned" which deserves a much harsher name.

Not long ago a celebrated case of murder was moved for trial after the defendant's lawyer had urged him in vain to offer a plea of murder in the second degree. A jury was summoned and, as is the usual custom in such cases, examined separately on the "voir dire" as to their fitness to serve. The defendant was a German, and the prosecutor succeeded in keeping all Germans off the jury until the eleventh seat was to be filled, when he found his peremptory challenges exhausted. Then the lawyer for the prisoner managed to slip in a stout old Teuton, who replied, in answer to a question as to his place of nativity, "Schleswig-Holstein." The lawyer made a note of it, and, the box filled, the trial proceeded with unwonted expedition.

The defendant was charged with having murdered a woman with whom he had been intimate, and his guilt of murder in the first degree was demonstrated upon the evidence beyond peradventure. At the conclusion of the case, the defendant not having dared to take the stand, the lawyer arose to address the jury in behalf of what appeared a hopeless cause. Even the old German in the back row seemed plunged in soporific inattention. After a few introductory remarks the lawyer raised his voice and in heart-rending tones began:

"In the beautiful county of Schleswig-Holstein sits a woman old and gray, waiting the message of your verdict from beyond the seas." (Number 11 opened his eyes and looked at the lawyer as if not quite sure of what he had heard.) "There she sits" (continued the attorney), "in Schleswig-Holstein, by her cottage window, waiting, waiting to learn whether her boy is to be returned to her outstretched arms." (Number 11 sat up and rubbed his forehead.) "Had the woman, who so unhappily met her death at the hands of my unfortunate client, been like those women of Schleswig-Holstein—noble, sweet, pure, lovely women of Schleswig-Holstein—I should have naught to say to you in his behalf." (Number 11 leaned forward and gazed searchingly into the lawyer's face.) "But alas, no! Schleswig-Holstein produces a virtue, a loveliness, a nobility of its own." (Number 11 sat up and proudly expanded his chest.)

When, after about an hour or more of Schleswig-Holstein the defendant's counsel surrendered the floor to the district attorney, the latter found it quite impossible to secure the slightest attention from the eleventh juror, who seemed to be spending his time in casting compassionate glances in the direction of the prisoner. In due course the jury retired, but had no sooner reached their room and closed the door than the old Teuton cried, "Dot man iss not guilty!" The other eleven wrestled with him in vain. He remained impervious to argument for seventeen hours, declining to discuss the evidence, and muttering at intervals, "Dot man iss not guilty!" The other eleven stood unanimously for murder in the first degree, which was the only logical verdict that could possibly have been returned upon the evidence.

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

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

"We have," replied the foreman.

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

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

The district attorney was aghast at such a miscarriage of justice, and the judge showed plainly by his demeanor his opinion of such a verdict. But the old inhabitant of Schleswig-Holstein cared for this not a whit. The old mother in Schleswig-Holstein might still clasp her son in her arms before she died! The defendant was arraigned at the bar. Then for the first time, and to the surprise and disgust of No. 11, he admitted in answer to the questions of the clerk that his parents were both dead and that he was born in Hamburg, a town for whose inhabitants the old juryman had, like others of his compatriots, a constitutional antipathy.

The "tricks" of the trade as practised by the astute and unscrupulous criminal lawyer vary with the stage of the case and the character of the crime charged. They are also adapted with careful attention to the disposition, experience and capacity of the particular district attorney who happens to be trying the case against the defendant. An illustration of one of these occurred during the prosecution of a bartender for selling "spirituous liquors" without a proper license. He was defended by an old war-horse of the criminal bar famous for his astuteness and ability to laugh a case out of court. The assistant district attorney who appeared against him was a young man recently appointed to office, and who was almost overcome at the idea of trying a case against so well known a practitioner. He had personally conducted but very few cases, had an excessive conception of his own dignity, and dreaded nothing so much as to appear ridiculous. Everything, except the evidence, favored the defendant, who, however, was, beyond every doubt, guilty of the offence charged.

The young assistant put in his case, calling his witnesses one by one, and examining them with the most feverish anxiety lest he should forget something. The lawyer for the defence made no cross-examination and contented himself with smiling blandly as each witness left the stand. The youthful prosecutor became more and more nervous. He was sure that something was wrong, but he couldn't just make out what. At the conclusion of the People's case the lawyer inquired, with a broad grin, "if that was all."

The young assistant replied that it was, and that, in his opinion, it was "quite enough."

"Let that be noted by the stenographer," remarked the lawyer. "Now, if your Honors please," he continued, addressing the three judges of the Special Sessions, "you all know how interested I am to see these young lawyers growing up. I like to help 'em along—give 'em a chance—teach 'em a thing or two. I trust it may not be out of place for me to say that I like my young friend here and think he tried his case very well. But he has a great deal to learn. I'm always glad, as I said, to give the boys a chance—to give 'em a little experience. I shall not put my client upon the stand. It is not necessary. The fact is," turning suddenly to the unfortunate assistant district attorney—"my client has a license." He drew from his pocket a folded paper and handed it to the paralyzed young attorney with the harsh demand: "What do you say to that?"

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

"Mr. District Attorney," remarked the presiding justice dryly (which did not lessen the confusion of the young lawyer), "is this a fact? Has the defendant a license?"

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

"Defendant discharged!" remarked the court briefly.

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

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

BEFORE TRIAL

To begin at the beginning, whenever a person has been arrested, charged with crime, and has secured a criminal lawyer to defend him, the first move of the latter is naturally to try and nip the case in the bud by inducing the complaining witness to abandon the prosecution. In a vast number of cases he is successful. He appeals to the charity of the injured party, quotes a little of the Scriptures and the "Golden Rule," pictures the destitute condition of the defendant's family should he be cast into prison, and the dragging of an honored name in the gutter if he should be convicted. Few complainants have ever before appeared in a police court, and are filled with repugnance at the rough treatment of prisoners and the suffering which they observe upon every side. After they have seen the prisoner emerge from the cells, pale, hollow-eyed, bedraggled, and have beheld the tears of his wife and children as they crowd around the husband and father, they begin to realize the horrible consequences of a criminal prosecution and to regret that they ever took the steps which have brought the wrong-doer where he is. The district attorney had not yet taken up the case; the prosecution up to this point is of a private character; there are loud promises of "restitution" and future good behavior from the defendant, and the occasion is ripe for the lawyer to urge the complainant to "temper justice with mercy" and withdraw "before it be too late and the poor man be ruined forever."

If the complainant is, however, bent on bringing the defendant to justice and remains adamantine to the arguments of the lawyer and the tears of the defendant's family connections, it remains for the prisoner's attorney to endeavor to get the case adjourned "until matters can be adjusted"—to wit, restitution made if money has been stolen, or doctors' bills paid if a head has been cracked, with perhaps another chance of "pulling off" the complainant and his witnesses. Failing in an attempt to secure an adjournment, two courses remain open: first, to persuade the court that the matter is a trivial one arising out of petty spite, is all a mistake, or that at best it is a case of "disorderly conduct" (and thus induce the judge to "turn the case out" or inflict some trifling punishment in the shape of a fine); or, second, if it be clear that a real crime has been committed, to clamor for an immediate hearing in order, if it be secured, to subject the prosecution's witnesses to a most exhaustive cross-examination, and thus get a clear idea of just what evidence there is against the accused.

At the conclusion of the complainant's case, if it appear reasonably certain that the magistrate will "hold" the prisoner for the action of a superior court, the lawyer will then "waive further examination," or, in other words, put in no defence, preferring the certainty of having to face a jury trial to affording in prosecution an opportunity to discover exactly what defence will be put in and to secure evidence in advance of the trial to rebut it. Thus it rarely happens in criminal cases of importance that the district attorney knows what the defence is to be until the defendant himself takes the stand, and, by "waiving further examination" in the police court, the astute criminal attorney may select at his leisure the defence best suited to fit in with and render nugatory the prosecution's evidence.

The writer has frequently been told by the attorney for a defendant on trial for crime that "the defence has not yet been decided upon." In fact, such statements are exceedingly common. In many courts the attitude of all parties concerned seems to be that the defendant will put up a perjured defence (so far as his own testimony is concerned, at any rate) as a matter of course, and that this is hardly to be taken against him.

On the other hand, if a guilty defendant has been so badly advised as to give his own version of the case before the magistrate in the first instance, it requires but slight assiduity on the part of the district attorney to secure, in the interval between the hearing and the jury trial, ample evidence to rebut it.

As illustrating merely the fertility and resourcefulness of some defendants (or perhaps their counsel), the writer recalls a case which he tried in the year 1902 where the defendant, a druggist, was charged with manslaughter in having caused the death of an infant by filling a doctor's prescription for calomel with morphine. It so happened that two jars containing standard pills had been standing side by side upon an adjacent shelf, and, a prescription for morphine having come in at the same time as that for the calomel, the druggist had carelessly filled the morphine prescription with calomel, and the calomel prescription with morphine. The adult for whom the morphine had been prescribed recovered immediately under the beneficent influence of the calomel, but the baby for whom the calomel had been ordered died from the effects of the first morphine pill administered. All this had occurred in 1897—five years before. The remainder of the pills had disappeared.

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

1. Acute gastritis.

2. Acute nephritis.

3. Cerebro-spinal meningitis.

4. Fulminating meningitis.

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

6. That it had received and taken calomel, but that, having eaten a small piece of pickle shortly before, the conjunction of the vegetable acid with the calomel had formed, in the child's stomach, a precipitate of corrosive sublimate, from which it had died.

These were all argued with great learning. During the trial the box containing the balance of the pills, which the defence contended were calomel, unexpectedly turned up. It has always been one of the greatest regrets of the writer's life that he did not then and there challenge the defendant to eat one of the pills and thus prove the good faith of his defence.

This was one of the very rare cases where a chemical analysis has been conducted in open court. The chemist first tested a standard trade morphine pill with sulphuric acid, so that the jury could personally observe the various color reactions for themselves. He then took one of the contested pills and subjected it to the same test. The first pill had at once turned to a brilliant rose, but the contested pill, being antiquated, "hung fire," as it were, for some seconds. As nothing occurred, dismay made itself evident on the face of the prosecutor, and for a moment he felt that all was lost. Then the five-year-old pill slowly turned to a faint brown, changed to a yellowish red, and finally broke into an ardent rose. The jury settled back into their seats with an audible "Ah!" and the defendant was convicted.

Let us return, however, to that point in the proceedings where the defendant has been "held for trial" by the magistrate. The prisoner's counsel now endeavors to convince the district attorney that "there is nothing in the case," and continues unremittingly to work upon the feelings of the complainant. If he finds that his labors are likely to be fruitless in both directions, he may now seek an opportunity to secure permission for his client to appear before the grand jury and explain away, if possible, the charge against him.

We will assume, however, that, in spite of the assiduity of his lawyer, the prisoner has at last been indicted and is awaiting trial. What can be done about it? Of course, if the case could be indefinitely adjourned, the complainant or his chief witness might die or move away to some other jurisdiction, and if the indictment could be "pigeon-holed" the case might die a natural death of itself. Indictments, however, in New York County, whatever may be the case elsewhere, are no longer "pigeon-holed," and they cannot be adequately "lost," since certified copies are made of each. The next step, therefore, is to secure as long a time as possible before trial.

Usually a prisoner has nothing to lose and everything to gain by delay, and the excuses offered for adjournment are often ingenious in the extreme. The writer knows one criminal attorney who, if driven to the wall in the matter of excuses, will always serenely announce the death of a near relative and the obligation devolving upon him to attend the funeral. Another, as a last resort, regularly is attacked in open court by severe cramps in the stomach. If the court insists on the trial proceeding, he invariably recovers. Of course, there are many legitimate reasons for adjourning cases which the prosecution is powerless to combat.

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

An example of this was the case of William H. Ellis, recently brought into the public eye through his connection with the treaty between the United States Government and King Menelik of Abyssinia. Ellis was accused in 1901 by a young woman of apparently excellent antecedents and character of a serious crime. Prior to his indictment a colored man employed in his office (the alleged scene of the crime) disappeared. When the case was moved for trial, Ellis, through his attorneys, moved for a commission to take the testimony of this absent, but clearly material, witness in one of the remote States of Mexico—a proceeding which would require a journey of some two weeks on muleback, beyond the railway terminus. The district attorney, in view of the peculiarly opportune disappearance of this person from the jurisdiction, strenuously opposed the application and hinted at collusion between Ellis and the witness. The application, however, was granted, and a delay of over a month ensued. During that time evidence was procured by the counsel of the prisoner showing conclusively that the complaining witness was mentally unsound and had made similar and groundless charges against others. The indictment was at once dismissed.

But such delays are not always so righteously employed. There is a story told of a case where a notorious character was charged with the unusual crime of "mayhem"—biting off another man's finger. The defendant's counsel secured adjournment after adjournment—no one knew why. At last the case was moved for trial and the prosecution put in its evidence, clearly showing the guilt of the prisoner. At the conclusion of the People's testimony, the lawyer for the defendant arose and harshly stigmatized the story of the complainant as a "pack of lies."

"I will prove to you in a moment, gentlemen," exclaimed he to the jury, "how absurd is this charge against my innocent client. Take the stand!"

The prisoner arose and walked to the witnesschair.

"Open your mouth!" shouted the lawyer.

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

The importance of mere delay to a guilty defendant cannot well be overestimated. "You never can tell what may happen to knock a case on the head." For this reason a sufficiently paid and properly equipped counsel will run the whole gamut of criminal procedure, and:

1. Demur to the indictment.

2. Move for an inspection of the minutes of the proceedings before the grand jury.

3. Move to dismiss the indictment for lack of sufficient evidence before that body.

4. Move for a commission to take testimony.

5. Move for a change of venue.

6. Secure, where possible, a writ of habeas corpus and a stay of proceedings from some federal judge on the ground that his client is confined without due process of law.

All these steps he will take seriatim, and some cases have been delayed for as much as two years by merely invoking "legitimate" legal processes. In point of fact it is quite possible for any defendant absolutely to prevent an immediate trial provided he has the services of vigilant counsel, for these are not the only proceedings of which he can avail himself.

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

In default of all else he may go "insane" just before the case is moved for trial. This habit of the criminal rich when brought to book for their misdeeds is too well known to require comment. All that is necessary is for a sufficient number of "expert" alienists to declare it to be their opinion that the defendant is mentally incapable of understanding the proceedings against him or of preparing his defence, and he is shifted off to a "sanitarium" until some new sensation occupies the public mind and his offences are partially forgotten.

In this way justice is often thwarted and the law cheated of its victim, but unless fortune favors him, sooner or later the indicted man must return for trial and submit the charge against him to a jury. But if this happens, even if he be guilty, all hope need not be lost. There are still "tricks of the trade" which may save him from the clutches of the law.

AT THE TRIAL

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

When the case is finally called and the defendant takes his seat at the bar after a lapse of anywhere from six months to a year or more after his arrest, the first question for the district attorney to investigate is whether or no the person presenting himself for trial be in point of fact the individual mentioned in the indictment. This is often a difficult matter to determine. "Ringers"—particularly in the magistrates' courts—are by no means unknown. Sometimes they appear even in the higher courts. If the defendant be an ex-convict or a well-known crook, his photograph and measurements will speedily remove all doubt upon the subject, but if he be a foreigner (particularly a Pole, Italian or a Chinaman), or even merely one of the homogeneous inhabitants of the densely-populated East Side of New York, it is sometimes a puzzling problem. "Mock Duck," the celebrated Highbinder of Chinatown, who was set free after two lengthy trials for murder, was charged not long ago with a second assassination. He was pointed out to the police by various Chinamen, arrested and brought into the Criminal Courts building for identification, but for a long time it was a matter of uncertainty whether friends of his (masquerading as enemies) had not surrendered a substitute. Luckily the assistant district attorney who had prosecuted this wily and dangerous Celestial in the first instance was able to identify him.

Many years ago, during the days of Fernando Wood, a connection of his was reputed to be the power behind the "policy" business in New York City—the predecessor of the notorious Al Adams. A "runner" belonging to the system having been arrested and policy slips having been found in his possession, the reigning Policy King retained a lawyer of eminent respectability to see what could be done about it. The defendant was a particularly valuable man in the business and one for whom his employer desired to do everything in his power. The lawyer advised the defendant to plead guilty, provided the judge could be induced to let him off with a fine, which the policy King agreed to pay. Accordingly, the lawyer visited the judge in his chambers and the latter practically promised to inflict only a fine in case the defendant, whom we will call, out of consideration for his memory, "Johnny Dough," should plead guilty. Unfortunately for this very satisfactory arrangement, the judge, now long since deceased, was afflicted with a serious mental trouble which occasionally manifested itself in peculiar losses of memory. When "Johnny Dough," the Policy King's favorite, was arraigned at the bar and, in answer to the clerk's interrogation, stated that he withdrew his plea of "not guilty" and now stood ready to plead "guilty," the judge, to the surprise and consternation of the lawyer, the defendant, and the latter's assembled friends, turned upon him and exclaimed:

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

Utterly overwhelmed, "Johnny Dough!" was led away, while his lawyer and relatives retired to the corridor to express their opinion of the court. About three months later the lawyer, who had heard nothing further concerning the case, happened to be in the office of the district attorney, when the latter looked up with a smile and inquired:

"Well, how's your client-Mr. Dough?"

"Safe on the Island, I suppose," replied the lawyer,

"Not a bit of it," returned the district attorney. "He never went there."

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

"I can't help that," said the district attorney. "The other day a workingman went down to the Island to see his old friend 'Johnny Dough.' There was only one 'Johnny Dough' on the lists, but when he was produced the visitor exclaimed: 'That Johnny Dough! That ain't him at all, at all!' The visitor departed in disgust. We instituted an investigation and found that the man at the Island was a 'ringer.'"

"You don't say!" cried the lawyer.

"Yes," continued the district attorney. "But that is not the best part of it. You see, the 'ringer' says he was to get two hundred dollars per month for each month of Dough's sentence which he served. The prison authorities have refused to keep him any longer, and now he is suing them for damages, and is trying to get a writ of mandamus to compel them to take him back and let him serve out the rest of the sentence!"

Probably the most successful instance on record of making use of a dummy occurred in the early stages of the now famous Morse-Dodge divorce tangle. Dodge had been the first husband of Mrs. Morse, and from him she had secured a divorce. A proceeding to effect the annulment of her second marriage had been begun on the ground that Dodge had never been legally served with the papers in the original divorce case—in other words, to establish the fact that she was still, in spite of her marriage to Morse, the wife of Dodge. Dodge appeared in New York and swore that he had never been served with any papers. A well-known and reputable lawyer, on the other hand, Mr. Sweetser, was prepared to swear that he had served them personally upon Dodge himself. The matter was sent by the court to a referee. At the hour set for the hearing in the referee's office, Messrs. Hummel and Steinhardt arrived early, in company with a third person, and took their seats with their backs to a window on one side of the table, at the head of which sat the referee, and opposite ex-Judge Fursman, attorney for Mrs. Morse. Mr. Sweetser was late. Presently he appeared, entered the office hurriedly, bowed to the referee, apologized for being tardy, greeted Messrs. Steinhardt and Hummel, and then, turning to their companion, exclaimed: "How do you do, Mr. Dodge?" It was not Dodge at all, but an acquaintance of one of Howe & Hummel's office force who had been asked to accommodate them. Nothing had been said, no representations had been made, and Sweetser had voluntarily walked into a trap.

The attempt to induce witnesses to identify "dummies" is frequently made by both sides in criminal cases, and under certain circumstances is generally regarded as professional. Of course, in such instances no false suggestions are made, the witness himself being relied upon to "drop the fall." In case he does identify the wrong person, he has, of course, invalidated his entire testimony.

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

A defendant's counsel always endeavors to impress the jury with the idea that all he wants is a fair, open trial—and that he has nothing in the world to conceal. This usually takes the form of a loud announcement that he is willing "to take the first twelve men who enter the box." Inasmuch as the defence needs only to secure the vote of one juryman to procure a disagreement, this offer is a comparatively safe one for the defendant to make, since the prosecutor, who must secure unanimity on the part of the jury (at least in New York State), can afford to take no chances of letting an incompetent or otherwise unfit talesman slip into the box. Caution requires him to examine the jury in every important case, and frequently this ruse on the part of the defendant makes it appear as if the State had less confidence in its case than the defence. This trick was invariably used by the late William F. Howe in all homicide cases where he appeared for the defence.

The next step is to slip some juryman into the box who is likely for any one of a thousand reasons to lean toward the defence—as, for example, one who is of the same religion, nationality or even name as the defendant. The writer once tried a case where the defendant was a Hebrew named Bauman, charged with perjury. Mr. Abraham Levy was the counsel for the defendant. Having left an associate to select the jury the writer returned to the courtroom to find that his friend had chosen for foreman a Hebrew named Abraham Levy. Needless to say, a disagreement of the jury was the almost inevitable result. The same lawyer not many years ago defended a client named Abraham Levy. In like manner he managed to get an Abraham Levy on the jury, and on that occasion succeeded in getting his client off scot-free.

No method is too far-fetched to be made use of on the chance of "catching" some stray talesman. In a case defended by Ambrose Hal. Purdy, where the deceased had been wantonly stabbed to death by a blood-thirsty Italian shortly after the assassination of President McKinley, the defence was interposed that a quarrel had arisen between the two men owing to the fact that the deceased had loudly proclaimed anarchistic doctrines and openly gloried in the death of the President, that the defendant had expostulated with him, whereupon the deceased had violently attacked the prisoner, who had killed him in self-defence.

The whole thing was so thin as to deceive nobody, but Mr. Purdy, as each talesman took the witness-chair to be examined on the voir dire, solemnly asked each one:

"Pardon me for asking such a question at this time—it is only my duty to my unfortunate client that impels me to it—but have you any sympathy with anarchy or with assassination?"

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

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

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

Lawyers frequently secure the good-will of jurors (which may last throughout the trial and show itself in the verdict) by some happy remark during the early stages of the case. During the Clancy murder trial each side exhausted its thirty peremptory challenges and also the entire panel of jurors in filling the box. At this stage of the case the foreman became ill and had to be excused. No jurors were left except one who had been excused by mutual consent for some trifling reason, and who out of curiosity had remained in court. He rejoiced in the name of Stone. Both sides then agreed to accept him as foreman provided he was still willing to serve, and this proving to be the case he triumphantly made his way towards the box. As he did so, the defendant's counsel remarked: "The Stone which the builders refused is become the head Stone of the corner." The good-will generated by this meagre jest stood him later in excellent stead.

In default of any other defence, some criminal attorneys have been known to seek to excite sympathy for their helpless clients by appearing in court so intoxicated as to be manifestly unable to take care of the defendant's interests, and prisoners have frequently been acquitted simply by virtue of their lawyer's obvious incapacity. The attitude of the jury in such cases seems to be that the defendant has not had a "fair show" and so should be acquitted anyway. Of course, this appeals to the juryman's sympathies and he overlooks the fact that by his action the prosecution is given no "show" at all.

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

"Well, my boy, if you've got a good case, stick to the evidence; if you've got a weak one, go for the People's witnesses; but—if you've got no case at all, hammer the district attorney!"

As a rule, however, criminal lawyers are not in a position to "hammer" the prosecuting officer, but endeavor instead to suggest by innuendo or even open declaration his bias and unfairness.

"Be fair, Mr.—!" is the continual cry. "Try to be fair!"

The defendant, whether he be an ex-convict or thirty-year-old professional thief, is always "this poor boy," and, as he is not compelled by law to testify, and as his failure to do so must not be weighed against him by the jury, he frequently walks out of court a free man, because the jury believe from the lawyer's remarks that he is in fact a mere youthful offender of hitherto good reputation and deserves another chance.

By all odds the greatest abuse in criminal trials lies in the open disregard of professional ethics on the part of lawyers who deliberately supply of themselves, in their opening and closing addresses to the jury, what incompetent bits of evidence, true or false, they have not been able to establish by their witnesses. There is no complete cure for this, for even if the judge rebukes the lawyer and directs the jury to disregard what he has said as "not being in the evidence," the damage has been done, the statement still lingering in the jury's mind without any opportunity on the part of the prosecutor to disprove it. There is no antidote for such jury-poison. A shyster lawyer need but to keep his client off the stand and he can saturate the jury's mind with any facts concerning the defendant's respectability and history which his imagination is powerful enough to supply. On such occasions an ex-convict with no relatives may become a "noble fellow, who, rather than have his family name tainted by being connected with a criminal trial, is willing to risk even conviction"—"a veteran of the glorious war which knocked the shackles from the slave"—"the father of nine children"—"a man hounded by the police." The district attorney may shout himself hoarse, the judge may pound his gavel in righteous indignation, the lawyer may apologize because in the zeal with which he feels inspired for his client's cause he perhaps (which only makes matters worse) has overstepped the mark—but some juryman may suppose that, after all, the prisoner is a hero or nine times a father.