They are, however, the more difficult to establish, because they occur mainly in isolated people—old bachelors and old maids— so that their confirmation by others is rare. On the other hand, every one of us knows habits of his own or of his friends which would not be believed when cited, and which would be very difficult to prove when the need arose. The influence of habit on indifferent matters can be shown by numerous examples. There is Kant's citation, that if anybody happened to send his doctor nine ducats the latter would have to believe that the messenger had stolen the tenth. If you give a bride most beautiful linen, but only eleven pieces, she will weep. Give her thirteen pieces, and she will certainly throw one of them away. If you keep these deep-rooted habits in mind, you may possibly say that they must have had a definite, determinative, and alternative influence on body and mind. For example, from time immemorial mankind has taken medications at definite intervals, e. g., every hour, every two hours, etc.; hence, a powder ordered every seventy-seven minutes will cause us complete surprise. But by what authority does the body require exactly these quantities of time or weight? Or again, our lectures, private or public, so and so much time? Of course it would be inconvenient if professors lectured only 52 minutes, yet how much difficulty must not the mind have met in becoming habituated to exactly 60 minutes of instruction! This habituation has been going on for a long time, and now children, like nations, regard the new in the light of the old, so that the old, especially when it is fixed by language, becomes the mind's instrument for the control of the new. Indeed we often stick linguistically to old things, although they have been long superannuated.

There is the characteristic state of mind which might be called the refraction of an idea by the presence of another idea. An example is the habit of saying, "Unprepared, as I have—'' before beginning a speech. The speaker means to say that he has not prepared himself, but, as he really has prepared himself, both expressions come out together. This habitual concurrence of the real thought is of importance, and offers, frequently, the opportunity of correcting what is said by what is thought. This process is similar to that in which a gesture contradicts a statement. We often hear: "I had to take it because it was right there.'' This assertion indicates theft through need, and at the same time, theft through opportunity. Or again, we hear: "We had not agreed, before''—this assertion denies agreement and can indicate merely, because of the added "before,'' that the agreement was not of already *long standing. Still again, we hear, "When we fell to the floor, I defended myself, and struck down at him.'' Here what is asserted is self-defense, and what is admitted is that the enemy was underneath the speaker. Such refractions of thought occur frequently and are very important, particularly in witnesses who exaggerate or do not tell the whole truth. They are, however, rarely noticed because they require accurate observation of each word and that requires time, and our time has no time.

Section 92. (b) Heredity.[1]

[1] Benedict: Heredity. Med Times, 1902, XXX, 289. Richardson: Theories of Heredity. Nature, 1902, LXVI, 630. Petruskewisch: Gedanken zur Vererbung. Freiburg 1904.

However important the question of heredity may be to lawyers psychologically, its application to legal needs is impossible. It would require, on the one hand, the study of all the literature concerning it, together with the particular teachings of Darwin and his disciples, and of Lombroso and his. The criminal-psychological study of it has not yet been established. The unfounded, adventurous, and arbitrary assertions of the Lombrosists have been contradicted, especially through the efforts of German investigators. But others, like Debierre in Lille, Sernoff in Moscow, Taine, Drill, Marchand have also had occasion to controvert the Italian positivists. At the same time, the problem of heredity is not dead, and will not die. This is being shown particularly in the retort of Marchand concerning the examinations he made with M. E. Koslow, in the asylum for juvenile offenders founded by the St. Petersburg Anthropological Society. Between Buckle, who absolutely denies heredity, and the latest of the modern doctrines, there are a number of intermediate views, one of which may possibly be true. There is an enormous literature which every criminalist should study.[2]

[2] Calton: Hereditary Genius 2d Ed. London 1892. Martinak: Einige Ansichten ber Vererbung moralischer Eigenschaften. Transactions, Viennese Philological society. Leipzig 1893. Haacke: Gestaltung u Vererbunsr Leipzig 1893. Tarde: Les Lois de l'Imitation. Paris 1904. Etc., etc.



Nevertheless, this literature can tell us nothing about the legitimacy of the premise of heredity. Every educated man still believes Darwin's doctrines, and the new theories that seek to emancipate themselves from it do so only by pushing them out of the big front door, and insinuating them through the little back door. But according to Bois-Reymond Darwinism is only the principle of the hereditary maintenance of the child's variation from its parents. Everybody knows of real inherited characters, and many examples of it are cited. According to Ribot, suicide is hereditary; according to Despine, kleptomania; according to Lucas, vigorous sexuality; according to Darwin, hand-writing, etc. Our personal acquaintances show the inheritance of features, figure, habits, intellectual properties, particularly cleverness, such as, sense of space and time, capacity for orientation, interests, diseases, etc. Even ideas have their ancestors like men, and we learn from the study of animals how instincts, capacities, even acquired ones, are progressively inherited. And yet we refuse to believe in the congenital criminal! But the contradiction is only apparent.

A study of the works of Darwin, Weismann, DeVries, etc., shows us indubitably that no authority asserts the inheritance of great alterations appearing for the first time in an individual. And as to the inheritance of acquired characteristics, some authorities assert this to be impossible.

Until Darwin the old law of species demanded that definite traits of a species should not change through however long a period. The Darwinian principle indicates the inheritance of minute variations, intensified by sexual selection, and, in the course of time, developed into great variations. Now nobody will deny that the real criminal is different from the majority of other people. That this difference is great and essential, is inferred from the circumstance that a habit a single characteristic, an unhappy inclination, etc., does not constitute a criminal. If a man is a thief it will not be asserted that he is otherwise like decent people, varying only in the accidental inclination to theft. We know that, besides the inclination to theft, we may assign him a dislike for honest work, lack of moral power, indifference to the laws of honor when caught, the lack of real religion,—in short, the inclination to theft must be combined with a large number of very characteristic qualities in order to make a thief of a man. There must, in a word, be a complete and profound change in his whole nature. Such great changes in the individual are never directly inherited; only particular properties can be inherited, but these do not constitute a criminal. Hence, the son of a criminal need not in his turn be a criminal.

This does not imply that in the course of generations characters might not compound themselves until a criminal type is developed, but this is as rare as the development of new species among the animals. Races are frequently selected; species develop rarely.

Section 93. (c) Prepossession.

Prepossession, prejudice, and anticipatory opinion are, perhaps, the most dangerous foes of the criminalist. It is believed that the danger from them is not great, since, in most cases, prepossession controls only one individual, and a criminal case is dealt with by several, but this proves nothing. When the elegant teacher of horseback riding has performed his subtlest tricks, he gracefully removes his hat and bows to the public, and only at that moment does the public observe that it has been seeing something remarkable and applauds heartily, not because it has understood the difficulty of the performance, but because the rider has bowed. This happens to us however good our will. One man has a case in hand; he develops it, and if, at the proper time, he says "Voila,'' the others say, "Oh, yes,'' and "Amen.'' He may have been led by a prepossession, but its presence is now no longer to be perceived. Thus, though our assumptions may be most excellently meant, we still must grant that a conviction on false grounds, even when unconsciously arrived at, so suffuses a mind that the event in itself can no longer be honestly observed. To have no prejudices indicates a healthy, vigorous mind in no sense. That is indicated by the power to set aside prejudices as soon as their invalidity is demonstrated. Now this demonstration is difficult, for when a thing is recognized as a prejudice, it is one no longer. I have elsewhere,[1] under the heading "anticipatory opinion,'' indicated the danger to which the examining justice is subject thereby, and have sought to show how even a false idea of location may lead to a prepossession in favor of a certain view; how vigorous the influence of the first witness is, inasmuch as we easily permit ourselves to be taken in by the earliest information, and later on lack time to convince ourselves that the matter may not be as our earliest advice paints it. Hence, false information necessarily conceals a danger, and it always is a matter of effort to see that the crime is a fictitious one, or that something which has been called accident may conceal a crime. The average man knows this well, and after a brawl, after contradictory testimony, etc., both parties hurry to be beforehand in laying the information. Whoever lays the information first has the advantage. His story effects a prepossession in favor of his view, and it requires effort to accustom oneself to the opposite view. And later it is difficult to reverse the rles of witness and defendant.

[1] Manual.

But we have to deal with prepossession in others besides ourself, in witnesses, accused, experts, jury, colleagues, subordinates, etc. The more we know, the newer new things seem. Where, however, the apperceptive mass is hard and compact, the inner reconstruction ceases, and therewith the capacity for new experiences, and hence, we get those judges who can learn nothing and forget nothing. Indefiniteness in the apperceptive masses results in the even movement of apperception. Minds with confused ideational complexes hit little upon the particular characteristic of presented fact, and find everywhere only what they have in mind.

The one-sidedness of apperception frequently contains an error in conception. In most cases, the effective influence is egoism, which inclines men to presuppose their own experiences, views, and principles in others, and to build according to them a system of prepossessions and prejudices to apply to the new case. Especially dangerous are the *similar experiences, for these tend to lead to the firm conviction that the present case can in no sense be different from former ones. If anybody has been at work on such earlier, similar cases, he tends to behave now as then. His behavior at that time sets the standard for the present, and whatever differs from it he calls false, even though the similarity between the two cases is only external and apparent.

It is characteristic of egoism that it causes people to permit themselves to be bribed by being met half-way. The inclination and favor of most men is won by nothing so easily and completely as by real or apparent devotion and interest. If this is done at all cleverly, few can resist it, and the prepossession in their favor is complete. How many are free of prejudice against ugly, deformed, red-haired, stuttering, individuals, and who has no prejudice in favor of handsome, lovable people? Even the most just must make an effort so to meet his neighbor as to be without prejudice for or against him, because of his natural endowment.

Behavior and little pleasantnesses are almost as important. Suppose that a criminalist has worked hard all morning. It is long past the time at which he had, for one reason or another, hoped to get home, and just as he is putting his hat on his head, along comes a man who wants to lay information concerning some ancient apparent perjury. The man had let it go for years, here he is with it again at just this inconvenient moment. He has come a long distance —he can not be sent away. His case, moreover, seems improbable and the man expresses himself with difficulty. Finally, when the protocol is made, it appears that he has not been properly understood, and moreover, that he has added many irrelevant things—in short, he strains one's patience to the limit. Now, I should like to know the criminalist who would not acquire a vigorous prejudice against this complainant? It would be so natural that nobody would blame one for such a prejudice. At the same time it is proper to require that it shall be only transitive, and that later, when the feeling has calmed, everything shall be handled with scrupulous conscientiousness so as to repair whatever in the first instance might have been harmed.

It is neither necessary nor possible to discuss all the particular forms of prepossession. There is the unconditional necessity of merely making a thoroughly careful search for their presence if any indication whatever, even the remotest, shows its likelihood. Of the extremest limit of possible prejudice, names may serve as examples. It sounds funny to say that a man may be prejudiced for or against an individual by the sound of his name, but it is true. Who will deny that he has been inclined to favor people because they bore a beloved name, and who has not heard remarks like, "The very name of that fellow makes me sick.'' I remember clearly two cases. In one, Patriz Sevenpounder and Emmerenzia Hinterkofler were accused of swindling, and my first notion was that such honorable names could not possibly belong to people guilty of swindling. The opposite case was one in which a deposition concerning some attack upon him was signed by Arthur Filgr. I thought at first that the whole complaint was as windy as the complainant's name. Again, I know that one man did not get the job of private secretary he was looking for because his name, as written, was Kilian Krautl. "How can a man be decent, who has such a foolish name?'' said his would-be employer. Then again, a certain Augustinian monk, who was a favorite in a large city, owed his popularity partly to his rhythmical cognomen Pater Peter Pumm.

Our poets know right well the importance for us short-sighted earth-worms of so indifferent a thing as a name, and the best among them are very cautious about the selection and composition of names. Not the smallest part of their effects lies in the successful tone of the names they use. And it was not unjust to say that Bismark could not possibly have attained his position if he had been called Maier.

Section 94. (d) Imitation and the Crowd.

The character of the instinct of imitation and its influence on the crowd has long been studied in animals, children, and even men, and has been recognized as a fundamental trait of intellect and the prime condition of all education. Later on its influence on crowds was observed, and Napoleon said, "Les crimes collectifs n'engagent personnes.'' Weber spoke of moral contagion, and it has long been known that suicide is contagious. Baer, in his book on "Die Gefngnisse,'' has assigned the prison-suicides "imitative tendency.'' There is the remarkable fact that suicides often hang themselves on trees which have already been used for that purpose. And in jails it is frequently observed that after a long interval a series of suicides suddenly appear.

The repetition of crimes, once one has been committed in a particular way, is also frequent; among them, the crime of child-murder. If a girl has stifled her child, ten others do so; if a girl has sat down upon it, or has choked it by pressing it close to her breast, etc., there are others to do likewise. Tarde believes that crime is altogether to be explained by the laws of imitation. It is still unknown where imitation and the principles of statistics come into contact, and it is with regard to this contact we find our greatest difficulties. When several persons commit murder in the same way we call it imitation, but when definite forms of disease or wounds have for years not been noticed in hospitals and then suddenly appear in numbers, we call it duplication. Hospital physicians are familiar with this phenomenon and count on the appearance of a second case of any disease if only a first occurs. Frequently such diseases come from the same region and involve the same extraordinary abnormalities, so that nothing can be said about imitation. Now, how can imitation and duplication be distinguished in individual cases? Where are their limits? Where do they touch, where cover each other? Where do the groups form?

There is as yet no solution for the crimino-political interpretation of the problems of imitation, and for its power to excuse conduct as being conduct's major basis. But the problems have considerable symptomatic and diagnostic value. At the very least, we shall be able to find the sole possibility of the explanation of the nature or manner of a crime in the origin of the stimulus to some particular imitation. Among youthful persons, women especially, there will be some anticipatory image which serves as a plan, and this will explain at least the otherwise inexplicable and superfluous concomitants like unnecessary cruelty and destruction. The knowledge of this anticipatory image may give even a clew to the criminal, for it may indicate the nature of the person who could act it out and realize it. Also in our field there exists "duplication of cases.''

The condition of action in great crowds offers remarkable characteristics. The most instructive are the great misfortunes in which almost every unhappy individual conducts himself, not only irrationally but, objectively taken, criminally towards his fellows, inasmuch as he sacrifices them to his own safety without being in real need. To this class belong the crossing of bridges by retreating troops in which the cavalry stupidly ride down their own comrades in order to get through. Again, there are the well-known accidents, e. g., at the betrothal of Louis XVI., in which 1200 people were killed in the crush, the fires at the betrothal of Napoleon, in the Viennese Ringtheater in 1881, and the fire on the picnic-boat "General Slocum,'' in 1904. In each of these cases horrible scenes occurred, because of the senseless conduct of terrified people. It is said simply and rightly, by the Styrian poet, "One individual is a man, a few are people, many are cattle.'' In his book on imitation, Tarde says, "In crowds, the calmest people do the silliest things,'' and in 1892, at the congress for criminal anthropology, "The crowd is never frontal and rarely occipital; it is mainly spinal. It always contains something childish, puerile, quite feminine.'' He, Garnier, and Dekterew, showed at the same congress how frequently the mob is excited to all possible excesses by lunatics and drunkards. Lombroso, Laschi, etc., tell of many cruelties which rebelling crowds committed without rhyme or reason.[1] The "soul of the crowd,'' just recently invented, is hardly different from Schopenhauer's Macroanthropos, and it is our important task to determine how much the anthropos and how much the macroanthropos is to be blamed for any crime.

[1] Cf. Friedmann: Die Wahnsinn im Vlkerleben. Wiesbaden 1901. Sighele: La folla deliquente. Studio di psicologia Collettiva 2d Ed. Torino 1895. I delitti della folla studiati seconde la psicologia, il diritto la giurisprudenza. Torino 1902.

Section 95. (e) Passion and Affection.

Passion and affection occasion in our own minds and in those of witnesses considerable confusion of observations, influence, or even effect the guilt of the defendant and serve to explain many things at the moment of examination. The essence of passion or affection, its definition and influence, its physical and physiological explanation, is discussed in any psychology. The use of this discussion for the lawyer's purposes has been little spoken of, and possibly can not have more said about it. Things that are done with passion show themselves as such, and require no particular examination in that respect. What we have to do is to discover what might have happened without passion, and especially to protect ourselves from being in person overcome by passion or affection. It is indubitable that the most "temperamental'' of the criminalists are the best, for phlegm and melancholy do not carry one through an examination. The lively and the passionate judges are the most effective, but they also have the defects of their virtues. No one will deny that it is difficult to maintain a calm demeanor with an impudent denying criminal, or in the face of some very cruel, unhuman, or terrible crime. But it is essential to surmount this difficulty. Everyone of us must recall shameful memories of having, perhaps justly, given way to passion. Of course the very temperamental Count Gideon Raday freed his county in a short time from numberless robberies by immediately hanging the mayor of the town in which the robberies occurred, but nowadays so much temperament is not permissible. It is well to recall the painful position of an excellent presiding justice at a murder trial, who attacked the defendant passionately, and had to submit to the latter's really justified reprimand.

The only means of avoiding such difficulties is not to begin quarrelling. Just as soon as a single word is uttered which is in any way improper in polite society, everything is lost. The word is the rolling snow-ball, and how much momentum it may gather depends upon the nature and the training of the judge. Lonely insults are not frequent, and a single improper word breaks down the boundaries. The criminal knows this and often makes use of his knowledge. A man who has "cussed out'' the other fellow is no longer dangerous, he becomes calm and kind, and feels instinctively the need of repairing the damage he has committed by "going too far.'' He then exhibits an exaggerated geniality and care upon which many criminals count, and hence intentionally provoke the examiner until he does things and says things he is sorry for.

The emotions of witnesses, especially of those who have been harmed by the crime and of those who have seen something terrible and disgusting, and who still tend to get excited over it, constitute a great many difficulties. Against the unconditional reliability of such persons' testimony experienced judges take measures of defence. The participant of this class is never calm; passion, anxiety, anger, personal interest, etc., either anticipate or exaggerate trouble. Of course, we are not speaking of cases in which a wound is considerably exaggerated, or even invented for the sake of money, but of those in which people under emotional stress often say unthinkable things about their enemy, just to get him punished. This, however, is comparatively rare where the damage has been very great. A man who has lost his eye, the father of a raped daughter, the victim impoverished by arson, often behaves very calmly toward the criminal. He makes no especial accusation, does not exaggerate, and does not insult. A person, however, whose orchard has suffered damage, may behave much worse.

It frequently happens that the sufferer and the defendant really hate each other. Not necessarily because one had broken the other's head, or robbed him; frequently the ostensible reason for coming to trial is the result of a long and far-reaching hatred. That this emotion can go to any length is well known and it is therefore necessary, though not always easy, to seek it out. Hatred is possible among peers, or people who are peers in one connection or another. As a rule, the king will not be able to hate his musketeer, but he will when they are both passionately in love with the same girl, for they are peers in love. Similarly, the high-bred lady will hardly hate her maid, but if she observes the maid's magnificent hair and believes that it is better than her own, she will hate the maid, for there is no difference in rank with regard to the love of hair.

Real hate has only three sources: pain, jealousy, or love. Either the object of hatred has caused his enemy a great irremediable pain or jealousy, or hatred is, was, or will become love. Some authorities believe that there is another source of hatred which becomes apparent when we have done harm to somebody. That this might show itself as hatred or passion similar to hatred is possible, but in most cases it will probably be a feeling of deep shame and regret, which has certain particular characteristics in common with hatred. If it is really hatred, it is hatred through pain. Hatred is difficult to hide, and even criminalists of small experience will overlook it only in exceptional cases. The discovery of envy, which is less forgiving than hatred, less explosive, much profounder and much more extensive, is incomparably more difficult. Real hatred, like exquisite passion, requires temperament, and under circumstances may evoke sympathy, but friendless envy, any scamp is capable of. Possibly no other passion endangers and destroys so many lives, chokes off so much service, makes impossible so many significant things, and finally, judges so falsely an endless number of persons. When you remember, moreover, its exaggerated extent, and the poor-spirited, easy trick of hiding it, its dangerous nature can not be overestimated. We lawyers are even more imperilled by it because we do not easily allow people to be praised before us; we require witnesses, etc., to speak incriminatingly most of the time, and we cannot easily see whether they are envious.

However freely one man may speak against another, we may assume that he is telling the truth, or at worst, that he has a false notion of the matter, or was badly instructed, but we rarely think that his envy dictates it all. This idea occurs to us when he is to praise the other man. Then he exhibits a cautious, tentative, narrowing attitude, so that even a person of little experience infers envy. And here the much-discussed fact manifests itself, that real envy requires a certain equality. By way of example the petty shopkeeper is cited as envying his more fortunate competitor, but not the great merchant whose ships go round the world. The feeling of the private toward his general, the peasant toward his landlord, is not really envy, it is desire to be like him. It is anger that the other is better off, but inasmuch as the emotion lacks that effective capacity which we require for envy, we can not call it envy. It becomes envy when something by way of intrigue or evil communication, etc., has been undertaken against the envied person. Thus the mere *feeling is confessed at once. People say, "How I envy him this trip, his magnificent health, his gorgeous automobile, etc.'' They do not say: "I have enviously spoken evil of him, or done this or that against him.'' Yet it is in the latter form that the actual passion of envy expresses itself.

The capacity of the envious for false representation makes them particularly dangerous in the court-room. If we want to discover anything about an individual we naturally inquire of his colleagues, his relatives, etc. But it is just among these that envy rules. If you inquire of people without influence you learn nothing from them, since they do not understand the matter; if you ask professional people they speak enviously or selfishly, and that constitutes our dilemma. Our attention may be called to envy by the speaker's hesitation, his reserved manner of answering. This is the same in all classes, and is valuable because it may warn us against very bad misunderstandings.

As a rule, nothing can be said about passion as a source of crime. We may assume that passion passes through three periods. The first is characterized by the general or partial recurrence of older images; in the second, the new idea employs its dominating place negatively or positively with respect to the older one,—the passion culminates; and in the third, the forcibly-disturbed emotional equilibrium is restored. Most emotions are accompanied by well- known physical phenomena. Some have been thoroughly studied, e. g., the juristically important emotion of fear. In fear, breathing is irregular, inspiration is frequently broken, a series of short breaths is followed by one or more deep ones, inspiration is short, expiration is prolonged, one or the other is sobbing. All these phenomena are only a single consequence of the increase of respiratory changes. The irregularity of the latter causes coughing, then a disturbance of speech, which is induced by the irregular action of the muscles of the jaw, and in part by the acceleration of the breathing. In the stages of echoing fear, yawning occurs, and the distention of the pupils may be noticed as the emotion develops. This is what we often see when a denying defendant finds himself confounded by evidence, etc.

The most remarkable and in no way explicable fact is, that these phenomena do not occur in innocent people. One might think that the fear of being innocently convicted would cause an expression of dread, anger, etc., but it does not cause an expression of real terror. I have no other than empirical evidence of the fact, so that many more observations are required before any fresh inferences are deduced therefrom anent a man's guilt or innocence. We must never forget that under such circumstances passions and emotions often change into their opposites according to rule. Parsimony becomes extravagance, and conversely; love becomes hate. Many a man becomes altogether too foolhardy because of despairing fear. So it may happen that terror may become petrifying coldness, and then not one of the typical marks of terror appears. But it betrays itself just as certainly by its icy indifference as by its own proper traits. Just as passions transmute into their opposites, so they carry a significant company of subordinate characteristics. Thus, dread or fear is accompanied by disorderly impertinence, sensuality by cruelty. The latter connection is of great importance to us, for it frequently eliminates difficulties in the explanation of crime. That cruelty and lasciviousness have the same root has long been known. The very ecstasy of adventurous and passionate love is frequently connected with a certain cruel tendency. Women are, as a rule, more ferocious than men.[1] It is asserted that a woman in love is constantly desiring her man. If this be true, the foregoing statement is sufficiently explained. In one sense the connection between sexual passion and cruelty is bound up with that unsatiability which is characteristic of several passions. It is best to be observed in passions for property, especially such as involve the sense-perception of money. It is quite correct to speak of the overwhelming, devilish power of gold, of the sensual desire to roll in gold, of the irresistible ring of coins, etc. And it is also correctly held that money has the same definite influence on man as blood on preying animals. We all know innumerable examples of quite decent people who were led to serious crimes by the mere sight of a large sum of money. Knowledge of this tendency may, on occasion, lead to clues, and even to the personality of the criminal.

[1] A. Eulenberg: Sexuale Neuropathie. Leipzig 1895.

Section 96. (f) Honor.

Kant says that a man's honor consists in what people think about him, a woman's in what people say about her. Another authority believes that honor and a sense of honor are an extension of the sense of self in and through others. The essence of my honor is my belief that I exist for others, that my conduct will be judged and valued not only by myself but by others. Falstaff calls honor the painted picture at a funeral. Our authors are both right and wrong, for honor is simply the position a man takes with regard to the world, so that even gamins may be said to have honor. Unwillingness to see this may cause us criminalists considerable trouble. One of the worst men I ever met in my profession, a person guilty of the nastiest crimes, so nasty that he had driven his honorable parents to suicide, had at the expiration of his last sentence of many years in prison, said literally, "I offer no legal objection against the sentence. I beg, however, for three days' suspension so that I may write a series of farewell letters which I could not write as a prisoner.'' Even in the heart of this man there was still the light of what other people call honor. We often find similar things which may be used to our advantage in examination. Not, of course, for the purpose of getting confession, accusation of accomplices, etc. This might, indeed, serve the interests of the case, but it is easy to identify a pliable attitude with an honorable inclination, and the former must certainly not be exploited, even with the best intention. Moreover, among persons of low degree, an inclination toward decency will hardly last long and will briefly give way to those inclinations which are habitual to bad men. Then they are sorry for what they had permitted to occur in their better moment and curse those who had made use of that moment.

It is often funny to see the points at which the criminal seeks his "honor.'' What is proper for a thief, may be held improper for a robber. The burglar hates to be identified with the pick-pocket. Many a one finds his honor in this wise deeply attacked, particularly when it is shown him that he is betraying an accomplice, or that he has swindled his comrades in the division of booty, etc. I remember one thief who was inconsolable because the papers mentioned that he had foolishly overlooked a large sum of money in a burglary. This would indicate that criminals have professional ambitions and seek professional fame.

Section 97. (g) Superstition.

For a discussion of Superstition see my Handbuch fr Untersuchungsrichter, etc. (English translation by J. Adam, New York, 1907), and H. Gross's Archiv I, 306; III, 88; IV, 340; V, 290, 207; IX, 253; IV, 168; VI, 312; VII, 162; XII, 334.



Topic 3. MISTAKES.

(a) Mistakes of the Senses.

Section 98. (1) General Considerations.

As sensation is the basis of knowledge, the sensory process must be the basis of the correctness of legal procedure. The information we get from our senses and on which we construct our conclusion, may be said, all in all, to be reliable, so that we are not justified in approaching things we assume to depend on sense-perception with exaggerated caution. Nevertheless, this perception is not always completely correct, and the knowledge of its mistakes must help us and even cause us to wonder that we make no greater ones.

Psychological examination of sense-perception has been going on since Heraclitus. Most of the mistakes discovered have been used for various purposes, from sport to science. They are surprising and attract and sustain public attention; they have, hence, become familiar, but their influence upon other phenomena and their consequences in the daily life have rarely been studied. For two reasons. First, because such illusions seem to be small and their far-reaching effects are rarely thought of, as when, e. g., a line drawn on paper seems longer or more inclined than it really is. Secondly, it is supposed that the influence of sensory illusions can not easily make a difference in practical life. If the illusion is observed it is thereby rendered harmless and can have no effect. If it is not observed and later on leads to serious consequences, their cause can not possibly be sought out, because it can not be recognized as such, and because there have been so many intermediate steps that a correct retroduction is impossible.

This demonstrates the rarity of a practical consideration of sense- perception, but does not justify that rarity. Of course, there are great difficulties in applying results of limited experiments to extensive conditions. They arise from the assumption that the conditions will be similar to those which the scientist studies, and that a situation which exhibits certain phenomena under narrow experimental conditions will show them, also, in the large. But this is not the case, and it is for this reason that the results of modern psychology have remained practically unproductive. This, of course, is not a reproach to the discipline of experimental psychology, or an assault upon the value of its researches. Its narrow limitations were necessary if anything definite was to be discovered. But once this has been discovered the conditions may be extended and something practical may be attained to, particularly in the matter of illusion of sense. And this possibility disposes of the second reason for not paying attention to these illusions.

Witnesses do not of course know that they have suffered from illusions of sense; we rarely hear them complain of it, anyway. And it is for this very reason that the criminalist must seek it out. The requirement involves great difficulties for we get very little help from the immense literature on the subject. There are two roads to its fulfilment. In the first place, we must understand the phenomenon as it occurs in our work, and by tracing it back determine whether and which illusion of the sense may have caused an abnormal or otherwise unclear fact. The other road is the theoretical one, which must be called, in this respect, the preparatory road. It requires our mastery of all that is known of sense-illusion and particularly of such examples of its hidden nature as exist. Much of the material of this kind is, however, irrelevant to our purpose, par- ticularly all that deals with disease and lies in the field of medicine. Of course, where the nature of the disease is uncertain or its very presence is unknown, it is as well for us to consider the case as for the physician. But above all, it is our duty to consult the physician.

Apart from what belongs to the physician there is the material which concerns other professions than ours. That must be set aside, though increasing knowledge may require us to make use even of that. It is indubitable that we make many observations in which we get the absolute impression that matters of sensory illusion which do not seem to concern us lie behind some witnesses' observations, etc., although we can not accurately indicate what they are. The only thing to do when this occurs is either to demonstrate the possibility of their presence or to wait for some later opportunity to test the witness for them.

Classification will ease our task a great deal. The apparently most important divisions are those of "normal'' and "abnormal.'' But as the boundary between them is indefinite, it would be well to consider that there is a third class which can not fall under either heading. This is a class where especially a group of somatic conditions either favor or cause illusory sense-perceptions, e. g., a rather over-loaded stomach, a rush of blood to the head, a wakeful night, physical or mental over-exertion. These conditions are not abnormal or diseased, but as they are not habitual, they are not normal either. If the overloaded stomach has turned into a mild indigestion, the increase of blood into congestion, etc., then we are very near disease, but the boundary between that and the other condition can not be determined.

Another question is the limit at which illusions of sense begin, how, indeed, they can be distinguished from correct perceptions. The possibility of doing so depends upon the typical construction of the sense-organs in man. By oneself it would be impossible to determine which sensation is intrinsically correct and which is an illusion. There are a great many illusions of sense which all men suffer from under similar conditions, so that the judgment of the majority can not be normative. Nor can the control of one sense by another serve to distinguish illusory from correct perception. In many cases it is quite possible to test the sense of sight by touch, or the sense of hearing by sight, but that is not always so. The simplest thing is to say that a sense-impression is correct and implies reality when it remains identical under various circumstances, in various conditions, when connected with other senses, and observed by different men, with different instruments. It is illusory when it is not so constant. But here again the limit of the application of the term "illusion'' is difficult to indicate. That distant things seem to be smaller than they are; that railway tracks and two sides of a street seem to run together are intrinsically real illusions of sense, but they are not so called—they are called the laws of perspective, so that it would seem that we must add to the notion of sense- perception that of rarity, or extraordinary appearance.

I have found still another distinction which I consider important. It consists in the difference between real illusions and those false conceptions in which the mistake originates as false inference. In the former the sense organ has been really registering wrongly, as when, for example, the pupil of the eye is pressed laterally and everything is seen double. But when I see a landscape through a piece of red glass, and believe the landscape to be really red, the mistake is one of inference only, since I have not included the effect of the glass in my concluding conception. So again, when in a rain I believe mountains to be nearer than they really are, or when I believe the stick in the water to be really bent, my sensations are perfectly correct, but my inferences are wrong. In the last instance, even a photograph will show the stick in water as bent.

This difference in the nature of illusion is particularly evident in those phenomena of expectation that people tend to miscall "illusions of sense.'' If, in church, anybody hears a dull, weak tone, he will believe that the organ is beginning to sound, because it is appropriate to assume that. In the presence of a train of steam cars which shows every sign of being ready to start you may easily get the illusion that it is already going. Now, how is the sense to have been mistaken in such cases? The ear has really heard a noise, the eye has really seen a train, and both have registered correctly, but it is not their function to qualify the impression they register, and if the imagination then effects a false inference, that can not be called an illusion of sensation.

The incorrectness of such classification becomes still more obvious when some numerical, arithmetical demonstration can be given of the presence of faulty inference. For example, if I see through the window a man very far away clearing a lot with an ax, I naturally see the ax fall before I hear the noise of the blow. Now, it may happen that the distance may be just great enough to make me hear the sound of the second blow at the moment in which I see the delivery of the third blow. Thus I perceive at the same moment, in spite of the great distance, both the phenomena of light and of sound, just as if I were directly on the spot. Perhaps I will wonder at first about these physical anomalies, and then, if I have made my simple mistake in inference, I shall tell somebody about the remarkable "sensory illusion'' I had today, although no one had ever supposed me capable of being deceived in this way. Schopenhauer calls attention to the familiar fact that on waking after a short nap all localizations are apparently perverted, and the mind does not know what is in front, what behind, what to the right, and what to the left. To call also this sensory illusion, would again be wrong, since the mind is not fully awake, and sufficiently orientated to know clearly its condition. The matter is different when we do not properly estimate an uncustomary sense-impression. A light touch in an unaccustomed part of the body is felt as a heavy weight. After the loss of a tooth we feel an enormous cave in the mouth, and what a nonsensical idea we have of what is happening when the dentist is drilling a hole in a tooth! In all these cases the senses have received a new impression which they have not yet succeeded in judging properly, and hence, make a false announcement of the object. It is to this fact that all fundamentally incorrect judgments of new impressions must be attributed,—for example, when we pass from darkness into bright light and find it very sharp; when we find a cellar warm in winter that we believe to be ice-cold in summer; when we suppose ourselves to be high up in the air the first time we are on horseback, etc. Now, the actual presence of sensory illusions is especially important to us because we must make certain tests to determine whether testimony depends on them or not, and it is of great moment to know whether the illusions depend on the individual's mind or on his senses. We may trust a man's intellect and not his senses, and conversely, from the very beginning.

It would be superfluous to talk of the importance of sensory illusion in the determination of a sentence. The correctness of the judgment depends on the correctness of the transmitted observations, and to understand the nature of sense-illusion and its frequency is to know its significance for punishment. There are many mistakes of judges based entirely on ignorance of this matter. Once a man who claimed, in spite of absolute darkness, to have recognized an opponent who punched him in the eye, was altogether believed, simply because it was assumed that the punch was so vigorous that the wounded man saw sparks by the light of which he could recognize the other. And yet already Aristotle knew that such sparks are only subjective. But that such things were believed is a notable warning.[1]

[1] For literature of Edmund Parish: ber Trugwahrnehmung. Leipsig 1894. A Cramer: Geriehtliche Psychiatrie. Jena 1897. Th. Lipps: sthetische Eindrcke u. optische. Taschung. J. Sully: Illusions, London, 1888.

Section 99. (2) Optical Illusions.

It will be best to begin the study of optical illusions with the consideration of those conditions which cause extraordinary, lunatic images. They are important because the illusion is recognizable with respect to the possibility of varied interpretations by any observer, and because anybody may experiment for himself with a bit of paper on the nature of false optical apprehension. If we should demonstrate no more than that the simplest conditions often involve coarse mistakes, much will have been accomplished for the law, since the "irrefutable evidence'' of our senses would then show itself to need corroboration. Nothing is proved with "I have seen it myself,'' for a mistake in one point shows the equal possibility of mistakes in all other points.

Generally, it may be said that the position of lines is not without influence on the estimation of their size.[2] Perpendicular dimensions are taken to be somewhat greater than they are. Of two crossed lines, the vertical one seems longer, although it is really equal to the horizontal one. An oblong, lying on its somewhat longer side, is taken to be a square; if we set it on the shorter side it seems to be still more oblong than it really is. If we divide a square into equal angles we take the nearer horizontal ones to be larger, so that we often take an angle of thirty degrees to be forty-five. Habit has much influence here. It will hardly be believed, and certainly is not consciously known, that in the letter S the upper curve has a definitely smaller radius than the lower one; but the inverted S shows this at once. To such types other false estimations belong: inclinations, roofs, etc., appear so steep in the distance that it is said to be impossible to move on them without especial help. But whoever does move on them finds the inclination not at all so great. Hence, it is necessary, whenever the ascension of some inclined plane is declared impossible, to inquire whether the author of the declaration was himself there, or whether he had judged the thing at a distance.

[2] Cf. Lotze: Medizinische Psychologie. Leipzig 1852.



Slight crooks are underestimated. Exner[1] rightly calls attention to the fact that in going round the rotunda of the Viennese Prater, he always reached the exit much sooner than he expected. This is due to the presence of slight deviations and on them are based the numerous false estimates of distance and the curious fact that people, on being lost at night in the woods, go round in a significantly small circle. It is frequently observed that persons, who for one reason or another, i. e., robbery, maltreatment, a burglarious assault, etc., had fled into the woods to escape, found themselves at daybreak, in spite of their flight, very near the place of the crime, so that their honesty in fleeing seems hardly believable. Nevertheless it may be perfectly trustworthy, even though in the daytime the fugitive might be altogether at home in the woods. He has simply underestimated the deviations he has made, and hence believes that he has moved at most in a very flat arc. Supposing himself to be going forward and leaving the wood, he has really been making a sharp arc, and always in the same direction, so that his path has really been circular.

[1] Cf. Entwurf, etc.

Some corroboration for this illusion is supplied by the fact that the left eye sees objects on the left too small, while the right eye underestimates the right side of objects. This underestimation varies from 0.3 to 0.7%. These are magnitudes which may naturally be of importance, and which in the dark most affect deviations that are closely regarded on the inner side of the eye—i. e., deviations to the left of the left eye or the right of the right eye.

Such confusions become most troublesome when other estimations are added to them. So long as the informant knows that he has only been estimating, the danger is not too great. But as a rule the informant does not regard his conception as an estimate, but as certain knowledge. He does not say, "I estimate,'' he says, "It is so.'' Aubert tells how the astronomer Frster had a number of educated men, physicians, etc., estimate the diameter of the moon. The estimation varied from 1'' to 8'' and more. The proper diameter is 1.5'' at a distance of 12''.

It is well known that an unfurnished room seems much smaller than a furnished one, and a lawn covered with snow, smaller than a thickly-grown one. We are regularly surprised when we find an enormous new structure on an apparently small lot, or when a lot is parcelled out into smaller building lots. When they are planked off we marvel at the number of planks which can be laid on the sur- face. The illusions are still greater when we look upward. We are less accustomed to estimation of verticals than of horizontals. An object on the gutter of a roof seems much smaller than at a similar distance on the ground. This can be easily observed if any figure which has been on the roof of a house for years is once brought down. Even if it is horizontally twice as far as the height of the house, the figure still seems larger than before. That this illusion is due to defective practice is shown by the fact that children make mistakes which adults find inconceivable. Helmholtz tells how, as child, he asked his mother to get him the little dolls from the gallery of a very high tower. I remember myself that at five years I proposed to my comrades to hold my ankles so that I could reach for a ball from the second story of a house down to the court-yard. I had estimated the height as one-twelfth of its actual magnitude. Certain standards of under and overestimations are given us when there is near the object to be judged an object the size of which we know. The reason for the fact that trees and buildings get such ideal sizes on so-called heroic landscape is the artistically reduced scale. I know that few pictures have made such a devilish impression on me as an enormous landscape, something in the style of Claude Lorraine, covering half a wall. In its foreground there is to be seen a clerk riding a horse in a glen. Rider and horse are a few inches high, and because of this the already enormous landscape becomes frightfully big. I saw the picture as a student, and even now I can describe all its details. Without the diminutive clerk it would have had no particular effect.

In this connection we must not forget that the relations of magnitude of things about us are, because of perspective, so uncertain that we no longer pay any attention to them. "I find it difficult,'' says Lipps,[1] "to believe that the oven which stands in the corner of the room does not look larger than my hand when I hold it a foot away from my eyes, or that the moon is not larger than the head of a pin, which I look at a little more closely.... We must not forget how we are in the custom of comparing. I compare hand and oven, and I think of the hand in terms of the oven.'' That is because we know how large the hand and the oven are, but very often we compare things the sizes of which we do not know, or which we can not so easily get at, and then there are many extraordinary illusions.

[1] Die Grundtatsachen des Seelenlebens. Bonn 1883.

In connection with the cited incident of the estimation of the moon's diameter, there is the illusion of Thomas Reid who saw that the moon seemed as large as a plate when looked at with the unhampered eye, but as large as a dollar when looked at through a tube. This mistake establishes the important fact that the size of the orifice influences considerably the estimation of the size of objects seen through it. Observations through key-holes are not rarely of importance in criminal cases. The underestimations of sizes are astonishing.

{illust. caption = FIG. 1.}

{illust. caption = FIG. 2.}

Arial perspective has a great influence on the determination of these phenomena, particularly such as occur in the open and at great distances. The influence is to be recognized through the various appearances of distant objects, the various colors of distant mountains, the size of the moon on the horizon, and the difficulties which arial perspective offers painters. Many a picture owes its success or failure to the use of arial perspective. If its influence is significant in the small space of a painting, the illusions in nature can easily become of enormous significance, particularly when extremes are brought together in the observations of objects in unknown regions. The condition of the air, sometimes foggy and not pellucid, at another time particularly clear, makes an enormous difference, and statements whether about distance, size, colors, etc., are completely unreliable. A witness who has several times observed an unknown region in murky weather and has made his important observation under very clear skies, is not to be trusted.

An explanation of many sensory illusions may be found in the so-called illusory lines. They have been much studied, but Zllner[1] has been the first to show their character. Thus, really quite parallel lines are made to appear unparallel by the juxtaposition of inclined or crossing lines. In figures 1 and 2 both the horizontal lines are actually parallel, as may be determined in various ways.

[1] Poggendorf's Annelen der Physik, Vol. 110, p. 500; 114, 587; 117, 477.

The same lines looked at directly or backwards seem, in Fig. 1, convex, in Fig. 2 concave.

{illust. caption = FIG. 3.}

Still more significant is the illusion in Fig. 3, in which the convexity is very clear. The length, etc., of the lines makes no difference in the illusion.

On the other hand, in Fig. 4 the diagonals must be definitely thicker than the parallel horizontal lines, if those are to appear not parallel. That the inclination is what destroys the appearance of parallels is shown by the simple case given in Fig. 5, where the distance from A to B is as great as from B to C, and yet where the first seems definitely smaller than the second.

Still more deceptive is Fig. 6 where the first line with the angle inclined inwards seems incomparably smaller than the second with the angle inclined outwards.

{illust. caption = FIG 4.}



All who have described this remarkable subject have attempted to explain it. The possession of such an explanation might put

{illust. caption = FIG. 5.}

{illust. caption = FIG. 6.}

us in a position to account for a large number of practical difficulties. But certain as the facts are, we are still far from their *why and *how. We may believe that the phenomenon shown in Figs. 1 and 2 appears when the boundaries of a field come straight up to a street with parallel sides, with the result that at the point of meeting the street seems to be bent in. Probably we have observed this frequently without being aware of it, and have laid no particular stress on it, first of all, because it was really unimportant, and secondly, because we thought that the street was really not straight at that point.

In a like manner we may have seen the effect of angles as shown in Figs. 5 and 6 on streets where houses or house-fronts were built cornerwise. Then the line between the corners seemed longer or shorter, and as we had no reason for seeking an accurate judgment we paid no attention to its status. We simply should have made a false estimate of length if we had been required to judge it. It is also likely that we may have supposed an actual or suppository line on the side of the gables of a house enclosed by angles of the gables, to be short,—but until now the knowledge of this supposition has had no practical value. Nevertheless, the significance of these illusions should not be underestimated. They mean most of all the fact that we really can be much deceived, even to the degree of swearing to the size of a simple thing and yet being quite innocently mistaken. This possibility shows, moreover, that the certainty of our judgment according to sensible standards is inadequate and we have no way of determining how great this inadequacy is. We have already indicated that we know only the examples cited by Zllner, Delboeuf and others. It is probable that they were hit upon by accident and that similar ones can not be discovered empirically or intentionally. Hence, it may be assumed that such illusions occur in great number and even in large dimensions. For example, it is known that Thompson discovered his familiar "optical circle illusion'' (six circles arranged in a circle, another in the middle. Each possesses bent radii which turn individually if the whole drawing is itself turned in a circle) by the accident of having seen the geometrical ornament drawn by a pupil. Whoever deals with such optical illusions may see very remarkable ones in almost every sample of ladies' clothes, particularly percale, and also in types of carpets and furniture. And these are too complicated to be described. In the course of time another collection of such illusions will be discovered and an explanation of them will be forthcoming, and then it may be possible to determine how our knowledge of their existence can be turned to practical use.

Practical application is easier in the so-called inversion of the visual object. Fig. 7 shows the simplest case of it—the possibility of seeing the middle vertical line as either deeper or higher than the others. In the first instance you have before you a gutter,

{illust. caption = FIG. 7.}

{illust. caption = FIG. 8.}

in the second a room. Similar relations are to be observed in the case of a cube in which the corner a may be seen as either convex or concave according as you think it behind or before the background of the angles from which a proceeds. It is still clearer when, in a rhomboid, the line XY is drawn. Then x or y may be seen alternately as nearer or further and the figure can thereby be brought into a different position. (Fig. 9.) Done once it may be repeated voluntarily.

There are many practical examples of these illusions. Sinsteden saw one evening the silhouette of a windmill against a luminous background. The arms seemed now

{illust. caption = FIG. 9.}

to go to the right, now to the left—clearly because he did not make out the body of the mill and might equally assume that he saw it from the front or from the rear, the wheels going toward the right in the first, and toward the left in the other case. An analogous case is cited by Bernstein. If (Fig. 10) the cross made of the thin lines stand for the bars of a weather vane and the heavy lines represent the weather vane itself, it may be impossible under the conditions of illumination for an eye looking from N to distinguish whether the weather vane points NE or SW; there is no way of determining the starting point of motion. All that can certainly be said is that the weather vane lies between NE and SW and that

{illust. caption = FIG. 10.}

its angle is at the crossing of the two lines, but the direction in which its heads point can not be determined at even a slight distance. Both forms of this illusion may occur in a criminal trial. If once a definite idea of some form of order has been gained, it is not abandoned or doubted, and is even sworn to. If asked, for example, whether the mill-wheel moved right or left, the observer will consider hardly one time in a hundred whether there might not have been an optical illusion. He will simply assure us that the thing was as he thinks he saw it, and whether he saw it correctly is purely a matter of luck.

To all these illusions may be added those which are connected with movement or are exposed by movement. During the movement of certain bodies we can distinguish their form only under definite conditions. As their movement increases they seem shorter in the direction of movement and as it decreases they seem broader than normally. An express train with many cars seems shorter when moving directly near us, and rows of marching men seem longer. The illusion is most powerful when we look through a stationary small opening. The same thing occurs when we move quickly past bodies, for this makes them seem very short as we go by.

Of such cases sense-illusion does not constitute an adequate explanation; it must be supplemented by a consideration of certain inferences which are, in most instances, comparatively complex.[1] We know, e. g., that objects which appear to us unexpectedly at night, particularly on dark, cloudy nights, seem inordinately magnified. The process is here an exceedingly complex one. Suppose I see, some cloudy night, unexpectedly close to me a horse whose environment, because of the fog, appears indistinct. Now I know from experience that objects which appear from indistinct environments are as a rule considerably distant. I know, further, that considerably distant objects seem much smaller, and hence I must assume that the horse, which in spite of its imaginary distance appears to retain its natural size, is really larger than it is. The train of thought is as follows: "I see the horse indistinctly. It seems to be far away. It is, in spite of its distance, of great size. How enormous it must be when it is close to me!'' Of course these inferences are neither slow nor conscious. They occur in reflection with lightning-like swiftness and make no difference to the certainty of the instantaneous judgment. Hence it is frequently very difficult to discover the process and the mistake it contains.

[1] W. Larden: Optical Illusion. Nature LXIII, 372 (1901).

If, however, the observer finds an inexplicable hiatus in an event he happens to notice, he finds it strange because unintelligible. In this way is created that notion of strangeness which often plays so great a rle in the examination of witnesses. Hence when under otherwise uncomfortable conditions, I see a horse run without hearing the beat of his hoofs, when I see trees sway without feeling any storm; when I meet a man who, in spite of the moonlight, has no shadow, I feel them to be very strange because something is lacking in their logical development as events. Now, from the moment a thing becomes strange to an individual his perceptions are no longer reliable, it is doubtful whether he knows what he has really experienced before his world became strange to him. Add to this that few people are unwilling to confess that they felt ill at ease, that perhaps they do not even know it,[1] and you get the complicated substitution of sensory illusions and uncanny sensation, the one causing the other, the other magnifying the one, and so on until the whole affair is turned into something quite unrecognizable. So we find ourselves in the presence of one of the inexplicable situations of the reality of which we are assured by the most trustworthy individuals.

[1] H. Gross: Lehrbuch fr den Ausforschungsdienst der Gendarmerie.

To magnify this phenomenon, we need only think of a few slightly abnormal cases. It has already been indicated that there are many such which are not diseased, and further, that many diseased cases occur which are not known as such, at least, as being so much so as to make the judge call in the doctor. This is the more likely because there are frequently, if I may say so, localized diseases which do not exhibit any extraordinary symptoms, at least to laymen, and hence offer no reason for calling in experts. If we set aside all real diseases which are connected with optical illusions as not concerning us, there are still left instances enough. For example, any medical text-book will tell you that morphine fiends and victims of the cocaine habit have very strong tendencies to optical illusions and are often tortured by them. If the disease is sufficiently advanced, such subjects will be recognized by the physician at a single glance. But the layman can not make this immediate diagnosis. He will get the impression that he is dealing with a very nervous invalid, but not with one who is subject to optical illusions. So, we rarely hear from a witness that he knows such people, and certainly not that he is one himself. A very notable oculist, Himly, was the first to have made the observation that in the diseased excitability of the retina every color is a tone higher. Luminous black looks blue, blue looks violet, violet looks red, red looks yellow. Torpor of the retina inverts the substitution.

Dietz[2] tells of color-illusions following upon insignificant indigestion; Foder of hysterics who see everything reversed, and Hoppe[3] says, "If the order of the rods and cones of the retina is somewhat disturbed by an inflammatory touch, the equilibrium of vision is

[2] ber die Quelle der Sinnestuschungen. Magazin fr Seelenkunde VIII.

[3] Erklrung der Sinnestuschungen. Wurzburg 1888.

altered and changes in size, in form, or appearance occur.'' Naturally the criminalist can not perceive slight indigestion, weak hysteria, or an inflamed area in the retina when he is examining witnesses, yet false observations like those described may have a definite influence upon the decision in a case.

If such abnormal occasions are lacking the reasons for optical illusions are of another nature. As a rule optical illusions occur when there is an interruption in the communication between the retina, the sense of movement, and the sense of touch, or when we are prevented from reducing the changes of the retinal image to the movement of our body or of our eyes. This reduction goes on so unconsciously that we see the idea of the object and its condition as a unit. Again, it is indubitable that the movement of the body seems quicker when we observe it with a fixed glance than when we follow it with our eyes. The difference may be so significant that it is often worth while, when much depends on determining the speed of some act in a criminal case, to ask how the thing was looked at.

Fechner has made a far-reaching examination of the old familiar fact that things on the ground appear to run when we ride by them rapidly.[1] This fact may be compared with the other, that when you look directly into swift-moving water from a low bridge, the latter seems all of a sudden to be swimming rapidly up stream, though the water does not appear to stand still. Here some unknown factor is at work and may exercise considerable influence on many other phenomena without our being able to observe the results. To this class may be added the extraordinary phenomenon that from the train objects easily seem too near and hence appear smaller than they are. It may be, however, that the converse is true and objects appear smaller, or at least shorter, and that inasmuch as we are in the habit of attributing the diminution of size in objects to their distance, we tax the latter as false. So much is certain—that whenever we ourselves move quickly we make false judgments of size, distance, and even color. The last may be due to the fact that during a quick passage, colors may so compose themselves, that green and red become white, and blue and yellow, green, etc. I believe that all these illusions are increasing in connection with the spread of bicycling, inasmuch as many observations are made from the fleeting wheel and its motion tends to increase the illusions considerably. Concerning the differences in movement Stricker[2]

[1] Elemente die Psychophysik. Leipzig 1889.

[2] Studien ber die Sprachvorstellung. Vienna 1880.

says: "If I lie on my back and see a bird fly in the uniformly blue heaven, I recognize the movement although I have no object with which to compare it. This can not be explained by the variety of points on the retina which are affected, for when the bird pauses and I turn my eye, I know that it is not moving.'' The last argument is not correct. If the bird is sitting on a branch I know, in spite of all my occipital movement, that it is quiet, but only because I perceive and observe the bird's immobility. If, however, I lie on my back like Stricker and see above me a bird of the class that, so to speak, swim motionless in the air for minutes at a time, and if then I turn my head, I can not tell when the bird begins to move. Here then we have no exception to the general rule and can always say that we are speaking of movement optically perceived when the rays issuing from any body progressively touch various points on the retina. And since this occurs when we are in motion as well as when the object is in motion it happens that we can not locate the movement, we cannot say whether it be in us or in the object.

Of course, the possibility that fanciful images may appear during movement is familiar. If I sit quietly in the forest and at some distance see a stone or a piece of wood or a little heap of dried leaves, etc., it may be that, because of some illusion, I take it to be a rolled up hedgehog, and it may happen that I am so convinced of the nature of the object while I am looking at it that I see how the hedgehog stretches itself, sticks out its paws and makes other movements. I remember one winter when, because of some delay, a commission on which I was serving had failed to reach a village not far from the capital. We had gone to investigate a murder case and had found the body frozen stiff. The oven in the room was heated and the grave-digger placed the stiff body near the oven in order to thaw it out. We at this time were examining the place. After a while I was instructed by the examining justice to see about the condition of the corpse, and much to my disgust, I found it sitting near the oven, bent over. It had thawed out and collapsed. During the subsequent obduction I saw most clearly how the corpse made all kinds of movements, and even after the section, during the dictation of the protocol, my imagination still seemed to see the corpse moving a hand or a foot.

The imagination may also cause changes in color. Once, I saw on my desk, which stood next to a window, a great round drop of water on the left side of which the panes of the window were reflected. (Fig. 11). The whole business was about a meter from my eye. I saw it repeatedly while working and it finally occurred to me to inquire how such a great drop of water could get there. I had sat at my desk for hours without moving. I must have observed it if it had dropped there. Refraining intentionally from going closer, I started, without avail, to consider how it could have

{illust. caption = FIG. 11.}

come. Some time after I examined the drop of water FIG. 11. and found it to be an ink-blot, long ago completely dried, and bearing on its left side a few grains of white cigar ash. I had taken these to be the image of the window, and hence, had immediately attached to it the idea of the shining, raised drop of water. I had altogether overlooked the deep black color of the drop. On the witness stand I would have sworn that I had seen a drop of water, even if I had known the evidence on the matter to be important.

In many cases it is possible to control the imagination, but only when it is known that the images can not be as they are seen. Everybody is aware how a half-covered object at a distance, or objects accidentally grouped in one way or another, are taken for God knows what. Thus once, looking from my desk to my smoking table, I saw an enormous pair of tailor's scissors half-covered by a letter. It remained identical under a number of repeated glances. Only when I thought vigorously that such a thing could not possibly be in my room did it disappear. A few scales of ashes, the lower round of the match safe, the metal trimmings of two cigar boxes half- covered by a letter and reflected by the uncertain light breaking through the branches of a tree, were all that the tailor's scissors was composed of. If there had been such a thing in the house, or if I had believed something like it to exist in the house, I should have sought no further and should have taken my oath that I had seen the thing. It is significant that from the moment I understood the phenomenon I could not restore the image of the scissors. How often may similar things be of importance in criminal trials!

The so-called captivation of our visual capacity plays a not unimportant part in distinguishing correct from illusory seeing. In order to see correctly we must look straight and fully at the object. Looking askance gives only an approximate image, and permits the imagination free play. Anybody lost in a brown study who pictures some point in the room across the way with his eyes can easily mistake a fly, which he sees confusedly askance, for a great big bird. Again, the type of a book seems definitely smaller if the eyes are fixed on the point of a lead pencil with a certain distance before or above the book. And yet again, if you stand so that at an angle of about 90 degrees from the fixation point, you look at a white door in a dark wall, observing its extent in indirect vision, you will find it much higher than in direct vision.

These examples indicate how indirect vision may be corrected by later correct vision, but such correction occurs rarely. We see something indirectly; we find it uninteresting, and do not look at it directly. When it becomes of importance later on, perhaps enters into a criminal case, we think that we have seen the thing as it is, and often swear that "a fly is a big bird.''

There are a number of accidents which tend to complete illusion. Suppose that the vision of a fly, which has been seen indirectly and taken for a big bird happens to be synchronous with the shriek of some bird of prey. I combine the two and am convinced that I have seen that bird of prey. This may increase, so much so that we may have series of sense-illusions. I cite the example of the decorative theatrical artist, who can make the most beautiful images with a few, but very characteristic blots. He does it by emphazising what seems to us characteristic, e. g., of a rose arbor, in such a way that at the distance and under the conditions of illumination of the theatre we imagine we really see a pretty rose arbor. If the scene painter could give definite rules he would help us lawyers a great deal. But he has none, he proceeds according to experience, and is unable to correct whatever mistakes he has committed. If the rose arbor fails to make the right impression, he does not try to improve it—he makes a new one. This may lead to the conclusion that not all people require the same characteristics in order to identify a thing as such, so that if we could set the rose arbor on the stage by itself, only a part of the public would recognize it as properly drawn, the other part would probably not recognize it at all. But if, of an evening, there is a large number of decorations on the stage, the collective public will find the arbor to be very pretty. That will be because the human senses, under certain circumstances, are susceptible to sympathetic induction. In the case of the rose arbor we may assume that the artist has typically represented the necessary characteristics of the arbor for one part of the audience, for another part those of a castle, for another part those of a forest, and for a fourth those of a background. But once an individual finds a single object to be correct, his senses are already sympathetically inductive, i. e., captivated for the correctness of the whole collection, so that the correctness passes from one object to the total number. Now, this psychic process is most clear in those optical illusions which recently have been much on public exhibition (the Battle of Gravelotte, the Journey of the Austrian Crown Prince in Egypt, etc.). The chief trick of these representations is the presenting of real objects, like stones, wheels, etc., in the foreground in such a way that they fuse unnoticeably with the painted picture. The sense of the spectator rests on the plastic objects, is convinced of their materiality and transfers the idea of this plasticity to the merely pictured. Thus the whole image appears as tri-dimensional.

The decorations of great parks at the beginning of the last century indicate that illumination and excited imagination are not alone in causing such illusions. Weber tells ecstatically of an alley in Schwetzing at the end of which there was a highly illuminated concave wall, painted with a landscape of mountains and water-falls. Everybody took the deception for a reality because the eye was captivated and properly inducted. The artist's procedure must have been psychologically correct and must have counted upon the weakness of our observation and intellection. Exner points to the simple circumstance that we do not want to see that things under certain conditions must terminate. If we draw a straight line and cover an end with a piece of paper, every one wonders that the line is not longer when the paper is removed.

I know of no case in criminal procedure where illusions of this kind might be of importance, but it is conceivable that such illusions enter in numberless instances. This is especially susceptible of observation when we first see some region or object hastily and then observe it more accurately. We are astonished how fundamentally false our first conception was. Part of this falseness may be adduced to faults of memory, but these play little or no part if the time is short and if we are able to recall that the false conception appeared just as soon as we observed the situation in question. The essential reason for false conception is to be found only in the fact that our first hasty view was incorrectly inducted, and hence, led to illusions like those of the theatre. Thus, it is possible to take a board fence covered at points with green moss, for a moss-covered rock, and then to be led by this to see a steep cliff. Certain shadows may so magnify the size of the small window of an inn that we may take it to be as large as that of a sitting room. And if we have seen just one window we think all are of the same form and are convinced that the inn is a mansion. Or again, we see, half-covered, through the woods, a distant pool, and in memory we then see the possibly, but not necessarily, present river. Or perhaps we see a church spire, and possibly near it the roof of a house rises above the trees; then we are inducted into having seen a village, although there really are visible only the church and the house.

These illusions again, I must repeat, are of no importance if they are at all doubted, for then the truth is ascertained. When, however, they are not doubted and are sworn to, they cause the greatest confusion in trials. A bar-room quarrel, a swung cane, and a red handkerchief on the head, are enough to make people testify to having seen a great brawl with bloody heads. A gnawing rat, a window accidentally left open through the night, and some misplaced, not instantaneously discovered object, are the ingredients of a burglary. A man who sees a rather quick train, hears a shrill blowing of the whistle, and sees a great cloud, may think himself the witness of a wreck. All these phenomena, moreover, reveal us things as we have been in the habit of seeing them. I repeat, here also, that the photographic apparatus, in so far as it does not possess a refracting lens, shows things much more truly than our eye, which is always corrected by our memory. If I permit a man sitting on a chair to be photographed, front view, with his legs crossed and stretched far out, the result is a ludicrous picture because the boots seem immensely larger than the head of the subject. But the photograph is not at fault, for if the subject is kept in the same position and then the apparent size of head and boot are measured, we get accurately the same relation as on the photograph. We know by experience how big a head is. And hence, we ordinarily see all relations of size in proper proportion. But on the photograph we can not apply this "natural'' standard because it is not given in nature, and we blame the camera.

If, in a criminal case, we are dealing with a description of size, and it is given as it is known from experience, not as it really appears, then if experience has deceived us, our testimony is also wrong, although we pretend to have testified on the basis of direct sense- perception.

The matter of after-images, probably because of their short duration, is of no criminalistic importance. I did once believe that they might be of considerable influence on the perception of witnesses, but I have not succeeded in discovering a single example in which this influence is perceptible.

On the other hand, the phenomenon of irradiation, the appearance of dark bodies as covered with rays of light by adjacent luminosities, is of importance. This phenomenon is well-known, as are Helmholtz's and Plateau's explanations of it. But it is not sufficiently applied. One needs only to set a white square upon the blackest possible ground and at the same time a similar black square of equal size on a white ground, and then to place them under a high light, to perceive how much larger the white square appears to be. That such phenomena often occur in nature need not be expounded. Whenever we are dealing with questions of size it is indubitably necessary to consider the color of the object and its environment with respect to its background and to the resulting irradiation.

Section 100. (3) Auditory Illusions.

From the point of view of the criminalist, auditory illusions are hardly less significant than visual illusions, the more so, as incorrect hearing is much more frequent than incorrect seeing. This is due to the greater similarity of tones to each other, and this similarity is due to the fact that sound has only one dimension, while vision involves not only three but also color. Of course, between the booming of cannons and the rustling of wings there are more differences than one, but the most various phenomena of tones may be said to vary only in degree. For purposes of comparison moreover, we can make use only of a class of auditory images on the same plane, e. g., human voices, etc. Real acoustic illusions are closely connected with auditory misapprehension and a distinction between these two can not be rigorously drawn. A misapprehension may, as a rule, be indicated by almost any external condition, like the relations of pitch, echo, repetition, false coincidence of waves of sound, etc. Under such circumstances there may arise real illusions.

The study of auditory illusions is rendered especially difficult by the rarity of their repetition, which makes it impossible reliably to exclude accidents and mistakes in observation. Only two phenomena are susceptible of accurate and sufficient study. For three summers a man used to ride through the long street in which I live. The man used to sell ice and would announce himself by crying out, "Frozen,'' with the accent on the Fro. This word was distinctly audible, but if the man came to a definite place in the street, there were also audible the words "Oh, my.'' If he rode on further the expression became confused and gradually turned into the correct, "Frozen.'' I observed this daily, got a number of others to do so, without telling them of the illusion, but each heard the same thing in spite of the distinct difference between "frozen,'' and "oh, my.''

I made a similar observation at a bicycle school. As is known, beginners are able frequently to ride by themselves but need help in mounting and dismounting their machines. To do so they call a teacher by crying out: "Herr Maier.'' At a certain place this sound would seem distinctly to be "mamma.'' I was at first much surprised to hear people of advanced age cry cheerfully, "mamma.'' Later I discovered what the word really was and acquaintances whose attention I called to the matter confirmed my observation. Such things are not indifferent, they show that really very different sounds may be mistaken for one another, that the test of misunderstandings may often lead to false results, since only during the test of an illusion are both auditor and speaker accurately in the same position as before. Finally, these things show that the whole business of correcting some false auditions is very difficult. Yet this work of correction may be assumed to be much more easy with respect to hearing than with respect to seeing. If, e. g., it is asserted that the revolver has been seen somewhere, and if it has been known that the sight was impossible, it becomes just as impossible, almost, to determine what the object seen really was. In the rarest cases only will it be something altogether similar, e. g., a pistol; most of the time it will be an object which could not be inferred from no matter what combinations. In hearing, on the contrary, if once it is determined that there has been a false audition, the work of placing it, though difficult, need not be unprofitable. This work is often compulsory upon the criminalist who receives protocols which have not been read aloud, and in which mistakes of hearing and dictation have been made. Such mistakes are considerably disturbing, and if the case is important their source and status must be inferred. This may almost always be done. Of course, strange, badly heard proper names can not be corrected, but other things can.

As regards the general treatment of auditory illusions, it is necessary, first of all, to consider their many and significant differences. In the first place, there are the varieties of good hearing. That normal and abnormal hearers vary in degree of power is well known. There are also several special conditions, causing, e. g., the so called hyper-auditive who hear more acutely than normal people. Of course, such assertions as those which cite people who can hear the noise of sulphur rubbed on the poles of quartz crystals and so on are incorrect, but it is certain that a little attention will reveal a surprising number of people whose hearing is far acuter than that of normal individuals. Apart from children, the class is made up of musicians, of young girls, and of very nervous, excitable, and sickly persons. The musicians in fact have become so because of their ears; the young girls hear well largely because of their delicate organization and the very fine construction of their ears; and the nervous people because of their sensibility to the pain involved in loud noises. Many differences of perception among witnesses are to be explained by differences of audition, and the reality of apparent impossibilities in hearing must not be denied but must be tested under proper conditions. One of these conditions is location. The difference between hearing things in the noisy day and in the quiet night, in the roar of the city, or in the quiet of the mountains, is familiar. The influence of resonance and pitch, echo and absorption of tones, i. e., the location of the sound, is of great importance. Finally, it must not be forgotten that people's ability to hear varies with the weather. Colds reduce the power, and not a few people are influenced by temperature, atmospheric pressure, etc. These considerations show the degree in which auditory illusions can be of importance even in tests of their nature and existence. They show above all that the same object of comparison under the same circumstances must be used in every test. Otherwise much confusion inevitably results.

The presence of auditory illusions in diseases, fever, hysteria, nervousness, alcoholism and its associates, mental disturbances, hypermia, diseases of the ear, etc., is well known, but concerns us only as pointing to the necessity of calling in the physician immediately. They have their definite characteristics and rarely leave the layman in doubt of his duty in that direction. The great difficulty comes in dealing with diseases or apparent diseases while it is still impossible to know of their existence, or where the pain is of such character that the layman does not know of its presence and thus has no ground for consulting the doctor. For example, it is well known that a large amount of ear wax in the aural passage may cause all sorts of ringing and sighing in the ear, and may even produce real hallucinations. Yet a person having an abnormal amount of ear wax may be otherwise absolutely sound. How is the need of a physician to be guessed in such a case? Again, the perforation of the drum, especially when it follows a catarrh, may cause a definite auditory illusion with regard to the sound of voices, or the illusion may be effected by the irritation of the skin in the ear passage, or by anemia, or by a strong carotid pulse and a distention of the bloodvessels, as happens in alcoholism. Many people become abnormally sensitive to sound at the beginning of fevers. Women at the time of their climacterium hear all kinds of voices. Inasmuch as this soon stops, the abnormality and incorrectness of their audition is hard to establish. Childbirth, too, makes a difference. Old, otherwise conscientious midwives claim to have heard unborn children breathe and cry.

Examples of this sort of thing are innumerable and they teach that whenever any questionable assertion is made about a thing heard the doctor must be called in to determine whether the witness heard it under abnormal, though not diseased conditions. Again, merely accidental or habitual general excitability tends to intensify all sounds, and whether the witness under consideration was in such condition can be determined only by the expert physician.

The illusions of hearing which completely normal people are subject to are the most difficult of all. Their number and frequency is variously estimated. The physician has nothing to do with them. The physicist, the acoustician and physiologist do not care about the criminalist's needs in this matter, and we ourselves rarely have time and opportunity to deal with it. As a result our information is very small, and no one can say how much is still undiscovered. One of my friends has called my attention to the fact that when the beats of the clock are counted during sleepiness, one too many is regularly counted. I tested this observation and my experience confirmed it. If, now, we consider how frequently the determination of time makes the whole difference in a criminal case and how easily it is possible to mistake a whole hour, we can get some notion of the importance of this illusion. Its explanation is difficult and it may be merely a single instance of a whole series of unknown auditory illusions resting on the same basis. Another and similar phenomenon is the "double beat of the hammer.'' If you have an assistant strike the table with a hammer while you hold both ears with your fingers and then open them half a second or a second after the blow, you hear the blow again. And if you open and shut your ears quickly you can hear the blow several times. This is explained through the fact that a number of reflections of the sound occur in the room, and that these are perceivable only by the unfatigued ear. The explanation is unsatisfactory because the experiment is sometimes successful in the open. Taken in itself, this matter seems very theoretical and without practical value. But this kind of action may occur automatically. It is well known that swallowing closes the Eustachian tubes for a moment, especially if done when lying down. Now, if this occurs during a blow, a shot, etc., the sound must be heard twice. Again, it may easily happen that because of the noise a man wakes up half asleep and, frightened, swallows the collected saliva; then this accident, which in itself seems unimportant, may lead to very significant testimony. Such occurrences are not infrequent.

The intensity of a sound already heard may be of considerable influence. Certain experimenters have indicated the remarkable character of slightly intensive effects of sound. If you hold a watch so far from the ear as to hear it clearly but weakly, the sound decreases until finally it is not heard at all, and after awhile it is again heard, etc. This may lead to hearing distinct sounds made up of many tones, and need not evince any great illusion with regard to the ticking of a watch. But the thing may occur also in connection with more powerful and more distant sounds, e. g., the murmur of a brook, the rush of a train, the pounding in a distant factory. Noises far removed are influenced by reflections of sound, waves of air, etc., and it is possible that all kinds of things may be heard in a completely monotonous noise. This can be easily learned by listening to the soft murmur of a distant brook at night. Given the disposition and supposing the existence of the brook unknown, it is easy to hear in its monotonous murmur, human voices, sighs, shrieks, etc.

Another remarkable observation shows that in the dark very distinct things are heard during the playing of delicate instruments, such as mouth-organs. The humming approaches and withdraws, then it comes on various sides, and finally one has the feeling that the whole room is full of humming and winging insects. And this may go on indefinitely. There is a large collection of reasons for this reduplication of monotonous sounds. Everybody knows the accord of the olian harp which consists of identical notes, and the melodies which seem to lie in the pounding of the train on the rails. This can become especially clear when one is half asleep. If ever thinking begins to be ousted by slumber, the rhythmic pound begins to dominate consciousness. Then the rhythm gets its appropriate melody which becomes progressively more intense, and if one grows suddenly wide awake one wonders why the clearly-heard music is missing. Similarly, it is often asserted that a row of travelling wild swans make pleasant chords, although each swan is able to utter only one cry. Difference in distance and alterations in the air cause the chords.

The difficulties in distinguishing the intensity or weakness of a sound are of importance. Fechner learned from the violinist Wasilewski that he observed that a male choir of four hundred voices did not sound essentially louder than one of two hundred. At the same time one clock is not heard at a great distance, a hundred clocks are heard. One locust can not be heard eating; when 1000 eat they are heard; hence each one must make a definite noise.[1] Early authorities have already indicated how difficult it is to distinguish the number of bells ringing together. Even musicians will often take two or three to be five or six.

Certain dispositions make some difference in this respect. The operating physician hears the low groaning of the patient after the operation without having heard his loud cries during the operation. During the operation the physician must not hear anything that is likely to disturb his work, but the low groan has simply borne in upon him. The sleeping mother often is deaf to considerable noise, but wakes up immediately when her child draws a deeper breath than usual. Millers and factory hands, travellers, etc., do not hear the pounding of their various habitual environmental noises, but they perceive the slightest call, and everybody observes the considerable murmur of the world, the sum of all distant noises, only in the silence of the night that misses it.