The clerk rapidly turns over the leaves in a large book. Evidently he finds what he is looking for and, nodding, answers: "Well, here's the record of the case. One silver teapot, value fifty. Officer making arrest, Patrick McGinnis. Prisoner's name, Maria Holohan. Claimant's name, Silas Appleboy. That's you, is it? Stolen property, teapot. Held for evidence, yes. There you are, and you say now she skipped her bail?"
"Certainly," answers Appleboy.
"And you want the teapot?"
"Of course I do," answers Appleboy.
"Well, first you have to get an order from the court to that effect," says the clerk.
Appleboy almost loses his temper. Has he got to make another trip down to that miserable Criminal Courts building?
"Look here," he exclaims rather angrily, "what is the sense of all this red tape? The case is over, I own the teapot,—why don't you give it to me and be done with it?"
The clerk smiles,—a trifle condescendingly, thinks Appleboy.
"My dear sir," he says, "are you aware that I have no means of knowing that you are the Silas Appleboy who owns this teapot, except your own say so?"
"Isn't that enough?" shouts Appleboy.
"It ought to be," responds the clerk, "but sometimes it isn't. I don't even know that the woman has skipped her bail."
Appleboy begins to see the force of the clerk's argument.
"I never imagined that a gentleman would be tossed about from pillar to post, as I have been since I lost that teapot. What is it you say I must do; get an order from the mayor?"
"No, no,—the judge," answers the clerk.
"How shall I get it?" inquires Appleboy rather huffily.
"Oh, ask the assistant district attorney; he will probably get it for you."
"Thank you," says Appleboy stiffly, and marches out. This time he takes the subway to Canal Street, reaching the Criminal Courts building a few moments after nine. Much to his surprise Mr. Smith is already down at his office hard at work.
"Ah, Mr. Appleboy, good-morning to you," he exclaims.
"How are you, Mr. Smith?" responds Appleboy. "I have come after that confounded teapot."
"Oh, the one your cook stole. I remember it well. Where is it?"
"At Police Headquarters," responds Appleboy, "and they want me to get an order from some judge or something before they will give it up to me."
"That's easily managed," responds the assistant, "but you have to get a waiver from this office of any claim that we may have upon the teapot as evidence. There is a regular printed blank. I think, inasmuch as Jones was actually going to try the case when Maria skipped her bail, that he had betterfill it out. After you get it, come back here and I'll make the application for you."
Appleboy begins to feel better. Here is some one that knows his business. He lights a cigar and descends to the next floor, where he finds his old friend Jones. Jones is quite ready to give the desired waiver, and selects one from a pigeon-hole in his desk. He fills it out to read as follows:
New York, October 7, 1907.District Attorney's Office,County of New York.The People of the State of}New York on the complaint of}Silas Appleboy}against}For Grand Larcenyin the Second DegreeMaria Holohan.}This office has no further use for the property taken from the defendant in this case, and now in the possession of the property clerk of the police department. No objection is therefore made by me to its delivery to any person who proves to your satisfaction his right to the possession of the same,—one silver teapot.A. BIRD,District Attorney.Per William Jones, D.A.D.A.To the Property Clerk of the Police Department, Borough of Manhattan, City of New York.
New York, October 7, 1907.District Attorney's Office,County of New York.
This office has no further use for the property taken from the defendant in this case, and now in the possession of the property clerk of the police department. No objection is therefore made by me to its delivery to any person who proves to your satisfaction his right to the possession of the same,—one silver teapot.
A. BIRD,District Attorney.Per William Jones, D.A.D.A.
To the Property Clerk of the Police Department, Borough of Manhattan, City of New York.
"Now we'll go down and see if the judge will give us an order," says Jones.
"Why, is there any doubt about it?" inquiresAppleboy, fearful that perhaps after all he is going to lose his teapot.
"It all depends on circumstances," answers Jones. "Some of the judges are perfectly willing to give orders while others are not. You see, the trouble in your case is that the woman has never been tried, so that the question of whether or not she stole your teapot has really not been decided at all."
"The wicked flee—!" murmurs Appleboy in his most approved Friday evening manner.
They take the elevator down to the second floor, and make their way to that part of the Sessions upon whose calendar Maria's case appeared at the time she forfeited her bail. A trial is going on, and a pompous little lawyer is cross-examining a stout lady who weeps and laughs hysterically by turns. As the lawyer pauses for breath Mr. Jones arises and addresses the court.
"May it please your Honor, in the case of the People against Maria Holohan, charged with grand larceny, the bail in which was forfeited before your Honor about a week ago, I desire to apply for an order directing the property clerk at Police Headquarters to turn over the property, namely a silver teapot, to the complainant, who is here in court."
"But the case has never been tried, you say, Mr. Jones," objects his Honor.
"That is all very true," returns the assistant, "but the woman has run away, her bail has been forfeited, and judgment entered and satisfied."
"Supposing, however, she were captured and brought back and tried, how do I know but that the jury might acquit her? And they might acquit her on the specific ground that the teapot belonged toher, and not to the defendant. I should then be in a position of having directed its return to a person to whom it did not belong."
"Of course what your Honor says is entirely correct," answers Jones, "but it is unlikely that we shall ever hear of the case again."
"I don't know about that," answers the judge. "Your office might become suddenly extremely energetic and try to extradite her."
"Well, it seems rather hard on Mr. Appleboy," responds Jones.
"Of course it's hard; he has my entire sympathy," replies the judge; "but I cannot take the responsibility of deciding who owns property in a case which has not been tried. I am not here for that purpose. Let him take the proper legal steps to secure the return of his property in the civil courts."
Appleboy, who has understood very little of this colloquy, but who supposes that, for some entirely insufficient reason apparently, the judge is trying to block his efforts to secure the return of his property, suddenly jumps to his feet and shouts:—
"Look here, your Honor, I would like to have a word about this, if I may! That teapot of mine was stolen last June; I caught my cook in the very act of selling it to a pawnbroker; I had her arrested on the spot; she admitted her crime, and acknowledged her guilt in the police court. My teapot is tagged and locked up in a room at Police Headquarters, and they won't give it to me unless your Honor will grant an order directing them to do so. Kindly tell me what I am to do."
The crowd in the court-room titters and the courtattendant raps loudly with a paper-weight on the oaken railing for silence. The judge regards Mr. Appleboy good-naturedly.
"I am very sorry you have had so much trouble. My position in the matter simply is that I cannot personally take the responsibility of deciding to whom this property belongs, particularly when no jury has ever passed upon the guilt or innocence of the defendant. I shall be very glad, however, to approve any certificate which the district attorney may choose to give you stating that he has no further need or use for the property."
Appleboy brightens.
"Your Honor," says he, "Mr. Jones has already given me such a certificate, and I shall be much obliged to you if you will approve it."
Jones hands it to the judge, who writes the word "Approved" upon it, then returns it to the assistant.
"You will observe," says his Honor, "that all I do in the matter is to approve the statement of the district attorney that he makes no objection to the delivery of the property to any person who proves to the satisfaction of the property clerk his right to the possession of the same. My approval really does not amount to anything at all. I cannot grant you a court order. I am aware that several of my associates might do so under exactly similar circumstances, but I personally do not care to assume any such responsibility. Proceed with the case on trial."
Out in the corridor Appleboy inquires anxiously of Jones how on earth he is going to prove to the satisfaction of the property clerk his right to the possession of the teapot.
"Oh, you won't have any difficulty at all," saysJones; "this certificate from us, with the judge's 'O.K.' on it, is equivalent to a court order, even if it is not one technically."
"I don't know," answers Appleboy doubtfully; "this paper seems to leave it up to me to persuade the intelligence of the property clerk."
"You won't have any trouble," laughs the assistant. "Good-by."
Mr. Appleboy leaves the building once more, and again takes the subway to Police Headquarters.
"Back again?" inquires the property clerk pleasantly.
"I have a certificate from the district attorney, approved by the judge giving you permission to return the teapot to me," says Appleboy, shoving the paper through the wicket.
The clerk takes it.
"This isn't a court order," says he. "Still, if the woman has skipped her bail and the judgment has been satisfied, I guess we can take a chance and let you have your teapot, provided of course you are properly identified. You see, so far as we know, you may have picked this certificate up on the street. The thing for you to do is to get hold of the officer who made the arrest, and who knows all about the case, and have him identify you."
"How shall I do that?" asks Appleboy, very much irritated. "I don't know where he is; I can't go chasing all over the City of New York after police officers; I'm sick of this whole business; you know perfectly well I am Silas Appleboy, else I shouldn't have this paper, and I shouldn't be around here trying to get that teapot."
"Don't be too sure about that," replies the property clerk. "We have had three women here at the same time claiming the same pair of diamond earrings, and each woman looked absolutely respectable. One of them came in a carriage with a footman. We found out afterwards that the earrings didn't belong to any one of them, but to an entirely different person."
Appleboy loses all patience. Just as he is about to place his hands upon the teapot,presto, it vanishes. Two Italians and a Chinaman, escorted by an officer, now elbow past Appleboy, who disconsolately gives them place. He is "up against it" again; there is no help for it; rules are rules and the law is the law. How now to find Patrick, the officer! He begins to wish he had been nicer to Patrick;—if he had been a little more liberal in the way of cigars at the time the teapot was stolen, things might have been very much easier for him now. He utters an imprecation under his breath against all policemen and police red tape. Grinding his teeth, he goes to the nearest telephone booth and asks to be connected with the precinct to which Patrick is attached. The operator refers him to 3100 Spring, namely, Headquarters,—but there he is informed that private citizens may not be connected with police stations. He hangs up the receiver with something almost like an oath, Poor Vestryman Appleboy! Let us not be too hard upon him.
It is now half-past eleven o'clock. He takes the car uptown and returns to the station house, but the sergeant informs him that Patrick is down in the Criminal Courts building as a witness in a burglary case. This is the last straw. Frenzied, he rushes from the station house, takes another car and sits tensely until once more he is at the Criminal Courtsbuilding. Fortunately he has had the forethought to inquire of the sergeant to which of the four parts of the General Sessions Patrick has been subpœnaed, and he now finds that it is the same court-room at the door of which presides his friend of the day before. The doorkeeper greets him genially, and in response to Appleboy's inquiries replies, shure, that he knows Pat McGinnis;—that Pat has been there all the morning, but has just shtepped out over to Tom Foley's saloon. Although Appleboy has not been inside the portals of such a place since he was nineteen years old, he frantically inquires its direction, and, fearful lest he lose the object of his search, dashes across the street to the corner bar-room.
The little old gentleman with the shining silk hat sticks his head timidly through the door and observes Patrick at the end of the bar crooking his elbow in the customary manner. He draws an inspiration from the sight; with a bland smile he steps up to the bar himself, slaps the officer familiarly on the back and, pulling off his gloves, remarks, "Well, Pat, old boy, how do you feel? Have another on me!"
Patrick gazes at him open-mouthed. Can this be the stiff, little old bank president he knew six months ago? But there can be no question as to Appleboy's intention when he hears the latter order "two rye high-ballsand another-for-yourself" of the astonished barkeeper. Appleboy toasts Patrick, Patrick toasts Appleboy. Patrick produces cigars; Appleboy replaces them with others, larger and thicker than any seen at Foley's.
"By the way," says Appleboy, "step up to Police Headquarters with me, will you, Pat? Now that I happen to be down this way, I might as well take that teapot home with me, don't you know."
"Shure," says Pat; "court's adjourned by this time, and I can get back by two o'clock all right."
The best of friends, they go up in the subway together to Police Headquarters. With a bold front and fearless eye Appleboy enters the office of the property clerk, produces his certificate from the district attorney, and demands his teapot.
"This officer will identify me," says he.
"Shure I indentify him," announces Pat.
The clerk takes the certificate, opens the record book and, with a rubber stamp, enters up on the back of the original report the words:
"Identified by officeras owner of the property."
"Identified by officer
as owner of the property."
"Write your name there," says he to Patrick, and McGinnis laboriously scrawls his name between the lines.
The clerk now disappears into an adjoining room, presently returning with an object about the size of a football, wrapped in coarse paper, tied with a multitude of strings and bearing a tag.
"Here you are, sir," says he, opening the door in the wire grating and passing the football to Appleboy, whose heart beats wildly.
The clerk then stamps the words "Delivered on identification of officer" upon his record book, closes the same with a slam and turns aside to other more important business. How simple it all is when you once know how to do it!
"Easy, ain't it?" remarks Pat.
"Easy as rolling off a log," answers Appleboy with a grim smile.
CHAPTER IX
THE TRIAL OF FELONIES
It is a fact, which may at first appear paradoxical, that the jury in the ordinary run of criminal cases passes upon the guilt or innocence of very few professional criminals. A moment's consideration will reveal the reason. The professional criminal usually has a "record" and he knows full well that in view of his past history, if there be any sort of a case against him, his own defence, however eloquent or ingenious, will go for nothing. An affirmative answer to the simple question, "Have you ever been convicted?" is, in three cases out of five, equivalent to a plea of guilty. Now it is an understood thing that any prisoner, who is willing to admit his guilt and save the county the expense and trouble of a trial, shall receive some consideration in return therefor when it comes time to impose his sentence, and usually he expects to receive in addition a guarantee of good faith from the assistant district attorney in the shape of the latter's acceptance of his plea to a lower degree of the same crime. The real "gun" is apt to have his life pretty well mapped out. He anticipates serving about so much time "in stir" and figures on beating about every other case before it reaches an actual trial. If worst comes to worst, and he finds he must face a jury of his peers, he dickers for the lowest plea he can get. Whole court terms often go by without a single professional crookbeing actually tried. If one of them is "caught with the goods" he generally throws up his hands and stolidly takes his medicine.
The ordinary citizen quite naturally gains his impressions of the administration of criminal justice by reading accounts of sensational trials. He imagines that the daily life of the prosecutor consists in demanding the conviction of hardened felons with sordid, crime-tracked features, varied by occasional spectacular "star cases" where counsel for the defendant and the prosecutor vie with one another in stupendous outbursts of oratory in which the bird of liberty screams unrestrained and Justice frantically waves her scales. He supposes, if he gives the matter any consideration at all, that defendants languish away their lives in the Tombs waiting for trials which never come, and that influential criminals walk the streets while the indictments against them lie accumulating an overcoat of dust in some forgotten pigeon-hole. He frankly assumes that the jury system is pretty nearly a failure, and knows of his own knowledge, or thinks he does, that any one with enough money can either avoid being tried for crime at all or, if by any mischance he be convicted, can easily escape punishment or at least delay it indefinitely by technicalities of procedure and appeals. In his customary dialect he "has no use" for the criminal or the criminal courts, and his only dread is that he may some time be drawn as a juror and be compelled to serve in a region of the city where he will be unable to find a satisfactory place to get his lunch and in the society of those whose companionship he fancies he is not likely to enjoy.
Let us assume that Mr. Ordinary Citizen has been so unfortunate as to receive one of those pink slips which call upon him to "all business or other matters lay aside" and to attend at Part I of the General Sessions of the Peace at ten o'clock on the first Monday of the month. He finds himself in a large and well-lighted court-room, at one end of which, on a dais, sits a judge more or less surrounded by various persons who continually approach and engage him in conversation. At a desk in front, a clerk and his assistant are busy with piles of documents, which "O.C." learns later to be indictments, and with big ledgers which are in fact the "Minutes of the Sessions." The room is crowded, all the benches being filled with a varied, but, on the whole, a respectable-appearing assortment of humanity. In front of the judge and clerk, wandering around inside an enclosure, at one side of which stands the temporarily empty jury-box, are several young men who are earnestly engaged in talking to the lawyers, complainants and policemen who throng at the bar.
Suddenly the clerk raises his voice and shouts, "Harken to the call of the calendar!" An officer pounds on a railing with a paper-weight, another bellows, "Find seats there! An' quit talkin'!" and the judge, gazing at a long sheet of foolscap in his hand, remarks inquiringly:
"People against Murphy?"
The young assistant district attorney at once answers:
"People are ready."
"If your Honor please," nervously exclaims a stout man pushing his way to the front, "this casehas never been on the calendar before. I was only retained last night and I did not receive any notice that it was to be tried until this morning. I ask that it go over until next week."
"What do you say, Mr. District Attorney?" asks the judge.
"Oh, it's a very simple case," answers the assistant. "There's no reason why it should not be tried to-day."
"Well, I'll give you until to-morrow," says the judge. "You must be readythen."
"People against Smith?" he continues.
Both sides happen to be ready in this case.
"People against McCord?"
"Defendant's going to plead," says the assistant.
"People against Vermicelli?"
"We expect to make a recommendation in that case, your Honor," announces the assistant,—and so it goes until fifteen or twenty cases have been marked "Ready" or "Passed for the day" or adjourned to let the defendant get his witnesses or, in point of fact, for the lawyer to extract his fee.
The clerk then calls the roll of the jury, and after the rush which ensues to present excuses to the effect that the talesman's health or business is in a precarious condition, the court settles gradually down to its routine work.
A jury is empanelled and a lank, seedy-looking youth takes his seat at the bar between a spruce, bald-headed little man and a court officer. He is charged with having "policy-slips in his possession."
So far "O.C.," our juror, has been impressed with the business-like and cheerful manner in which theproceedings have been conducted. Most of the lawyers, instead of clamoring for a trial for their languishing clients, have exerted all their efforts to secure delays. Then he learns to his surprise that the average length of time which elapses between a defendant's arrest for felony and his trial, unless the prisoner be out on bail, isless than one week.[27]
"Jury satisfactory to both sides?" inquires the clerk.
"Entirely so," reply the little bald-headed man and the prosecutor together.
Suddenly the lank youth leans over and whispers to the lawyer, who after a moment's conversation beckons to the prosecutor. There is a brief consultation and the assistant tosses the indictment to the clerk with the announcement:
"He pleads guilty."
The defendant gets up and shuffles to the bar,where his pedigree is taken and a day set for his sentence, which, in the event of his never having been convicted before, will probably be a fine of twenty-five dollars or a month in the penitentiary.
"Call the next case," says the judge.
"People against Thompson," shouts the clerk. "Bring up Thompson."
The door in the back of the room opens and "Thompson" is "brought up." He is a good-looking young negro, defended by a member of his own race. The jury say they have no prejudice against negroes and are sworn without leaving the box. The charge is one of assault in the first degree—that is to say, with intent to kill. The complainant is a flashily dressed young mulatto woman, who asserts that the defendant "done crack her head wif an ice-pitcher," and produces the fragments of pitcher, done up in a newspaper. She admits that at the time of the unfortunate occurrence she was living with the defendant as his wife. There are no other witnesses for the People, and the defendant is sworn without more ado. He explains that the complainant accused him of being too attentive to a "yaller gal" on the next street and when he attempted to go out of the house she attacked him with a pen-knife. In confirmation of this he exhibits a small cicatrix on his wrist. After hearing the evidence the assistant announces to the judge that the case ought in his opinion to have been disposed of in the police court and that the interests of justice will be subserved if his Honor will discharge the defendant on his own recognizance. This the judge does with an admonitory lecture, and the defendant and the complainant go away together. "O.C.," thejuror, begins to conclude that the assistant is a pretty fair sort of a chap.
Trial follows trial with great rapidity. Gradually the crowd in the court-room thins out. By one o'clock only a dozen or fifteen witnesses and spectators remain, and by half-past three the benches are practically empty. "O.C." has heard a dozen different complaining witnesses tell the story of how as many defendants have wronged them. The Bowery merchant whose packing-cases have been broken into has followed as complainant the man who has been robbed in a saloon; the "clothes-line fight" has given place to the story of the actual abduction of a young girl by a "cadet"; the landlady who has received a bad cheque from a lodger can hardly wait to recount the history of her misfortunes, for the man who has lost a horse and wagon through a drunken driver, whom he charges with grand larceny.
Generally the "People's case" consists of the complainant's version of what has occurred, somewhat corroborated by another witness or two, and the officer who made the arrest. Then the lawyer for the defendant takes his client by the shoulder and with a gruff "Go 'round there, young man," or, if he be playing for sympathy, a gentle "Please take the stand, William," starts him upon that most dangerous of all adventures, a journey to the witness-chair in his own behalf. In two cases out of three the defendant's own testimony, if he is guilty, is what convicts him. Both sides "sum" up in short, disconnected speeches, and the judge delivers a brief charge. The jury file out and another is immediately sworn. As the next trial begins very likelythe door from the "pen" will open and the proceedings be interrupted long enough to allow another prisoner to tramp around the court-room, take his stand at the bar, and plead guilty.
"John Keenan, alias Foxy Keenan, alias Gum-Shoe Jack, do you now desire to withdraw the plea of 'Not guilty' heretofore entered by you, and to now plead guilty to grand larceny in the second degree?"
The defendant acknowledges with no very amiable expression that this is his inclination, and his pedigree, which is taken by the clerk forthwith, discloses that he has served five times in State's prison and twice in the penitentiary. "O.C." looks at his fellow jurors and whistles under his breath. That was the real thing and no mistake. Very likely the jury upon which he is now serving will convict, it having thus been brought to their attention by a concrete illustration that all the defendants are not innocent persons unjustly accused of crime. "Remanded," says the clerk, and Gum-Shoe Jack tramps back to the little door and the interrupted trial goes on. The stream of complainants, witnesses and defendants is as varied as that in Balzac's "Comédie Humaine." "O.C." begins to take a keen interest and now and then to put a question himself. He has taken the opportunity to make the acquaintance of the assistant district attorney at the noon hour and now feels that he is really a part of the machinery of justice.[28]
Ordinarily in a full court day there will occur from two to four complete trials, while an equal number of pleas may be taken. Sometimes a hundred and fifty cases will be got rid of by trial or plea in a single term in one part of the General Sessions alone. On the other hand, if the calendar is made up of "old-bail cases," indictments for receiving stolen goods, misappropriation, and Italian or Chinese homicides, the office accounts itself lucky in getting rid of half a dozen cases in the month. Occasionally, when a brisk, business-like judge is sitting, a "homicide calendar" will be disposed of at the rate of one a day, but this is rare and can occur only when most of the cases are for manslaughter or criminal negligence.
When trials are rapid their speed always redounds to the benefit, not of the People, but of the defendant.
Such a performance in a court of justice as the following, recounted by Lord Brampton, could not take place to-day. It is worth reproduction as marking the progress of criminal procedure:
The first thing that struck me in the after-dinner trials was the extreme rapidity with which the proceedings were conducted. As judges and counsel were exhilarated, the business was proportionately accelerated. But of all the men I had the pleasure of meeting on these occasions, the one who gave me the best idea of rapidity in an after-dinner case was Muirhouse.Let me illustrate it by a trial which I heard: Jones was the name of the prisoner. His offence was that of picking pockets, entailing of course a punishment corresponding in severity with the barbarity of the times. It was not a plea of "Guilty," when perhaps a little more inquiry might have been necessary; it was a case in which the prisoner solemnly declared he was "Not guilty," and therefore had a right to be tried.The accused having "held up his hand," and the juryhaving solemnly sworn "to hearken to the evidence," etc., the witness for the prosecution climbs into the box, which was like a pulpit, and before he has time to look around and see where the voice comes from, he is examined by the prosecuting counsel."I think you were walking up Ludgate Hill on Thursday 25th about half-past two in the afternoon and suddenly felt a tug at your pocket and missed your handkerchief, which the constable now produces. Is that it?""Yes, sir.""I suppose you have nothing to ask him?" says the judge. "Next witness."Constable stands up."Were you following the prosecutor on the occasion when he was robbed on Ludgate Hill, and did you see the prisoner put his hand into the prosecutor's pocket and take the handkerchief out of it?""Yes, sir."Judge to the prisoner: "Nothing to say, I suppose?"Then to the jury: "Gentlemen, I suppose you have no doubt? I have none."Jury: "Guilty, my lord," as though to oblige his lordship.Judge to prisoner: "Jones, we have met before—we shall not meet again for some time—seven years' transportation. Next case."Time: two minutes and fifty-three seconds.
The first thing that struck me in the after-dinner trials was the extreme rapidity with which the proceedings were conducted. As judges and counsel were exhilarated, the business was proportionately accelerated. But of all the men I had the pleasure of meeting on these occasions, the one who gave me the best idea of rapidity in an after-dinner case was Muirhouse.
Let me illustrate it by a trial which I heard: Jones was the name of the prisoner. His offence was that of picking pockets, entailing of course a punishment corresponding in severity with the barbarity of the times. It was not a plea of "Guilty," when perhaps a little more inquiry might have been necessary; it was a case in which the prisoner solemnly declared he was "Not guilty," and therefore had a right to be tried.
The accused having "held up his hand," and the juryhaving solemnly sworn "to hearken to the evidence," etc., the witness for the prosecution climbs into the box, which was like a pulpit, and before he has time to look around and see where the voice comes from, he is examined by the prosecuting counsel.
"I think you were walking up Ludgate Hill on Thursday 25th about half-past two in the afternoon and suddenly felt a tug at your pocket and missed your handkerchief, which the constable now produces. Is that it?"
"Yes, sir."
"I suppose you have nothing to ask him?" says the judge. "Next witness."
Constable stands up.
"Were you following the prosecutor on the occasion when he was robbed on Ludgate Hill, and did you see the prisoner put his hand into the prosecutor's pocket and take the handkerchief out of it?"
"Yes, sir."
Judge to the prisoner: "Nothing to say, I suppose?"
Then to the jury: "Gentlemen, I suppose you have no doubt? I have none."
Jury: "Guilty, my lord," as though to oblige his lordship.
Judge to prisoner: "Jones, we have met before—we shall not meet again for some time—seven years' transportation. Next case."
Time: two minutes and fifty-three seconds.
But to return to our juror. What strikes "O.C.," who has now become entirely disabused of his previous ideas of what criminal trials are like, is the fairness with which those trials are conducted in the General Sessions and the fact that the interests of the accused are safeguarded in every possible way. Plenty of time is taken to try out even a pickpocket case or a street-corner brawl. The judge always covers the law fully and accentuates the necessity of giving every reasonable doubt to the defendant. In his heart "O.C." begins to have a slight feeling that the devil is getting a little more than his due. He has acquitted so many of the persons who have been tried that when he now sees a head he is not at all unwilling to hit it. He is fast reaching that state of mind which the prosecutor has anticipated when he has told his chief that in a few days he will have the jury "knocked into shape," in other words, he no longer believes every hard-luck story that he hears, he knows that certain criminal attorneys are capable of almost any kind of misrepresentation, he realizes that practically every defendant has already had a pretty exhaustive trial in the police court before indictment, he is quite as anxious to see the guilty convicted as he is to see the innocent acquitted, and he has been properly disgusted with the attitude and actions of certain of his colleagues in the jury-room whom he regards quite properly as anarchists or idiots. The district attorney at the end of a week has found out who some of these are. They have been "excused" for the remainder of the term, and he can rely pretty safely on the others rendering a fair verdict in any important case which he now desires to move before them.
What naturally interests "O.C." and his fellow jurors most of all is the defendant's own story of how he came to be involved in the transaction out of which the charge against him arises. For the first few days he very probably gives such explanations rather more credit than they deserve, for he is sympathetically inclined to believe that the prisoner is more likely to be the victim of circumstances than guilty of an act of moral turpitude. The eager attitude of some of the complainants likewise gives him an excuse for believing them to be actuated by more than a mere desire to see justice doneand to have the truth prevail. He is inclined to look for hidden motives for every prosecution. This gradually wears off and his attention becomes centred on the defendant himself. Will he put in a defence? Will he testify in his own behalf? What will he say? Little by little "O.C." gets to inventing defences to fit the facts established against the prisoner by the people's case. Meantime he is learning a little law. That "the people must prove the defendant's guilt beyond every reasonable doubt," and "that no unfavorable inference must be drawn as against the defendant from his failure to testify in his own behalf." "O.C." has some difficulty with the "reasonable doubt." Perhaps he says to himself, "I am a reasonable man,—hence any doubt I have must be reasonable." However, the judge's reiteration that not every doubt is a reasonable one and that the words do not mean "a mere guess or conjecture that the defendant may, after all, be innocent, but a substantial doubt arising out of the evidence in the case, for which a reason can be given," and of such a character as would influence him in the important affairs of his daily life, eventually clears his mind on this somewhat abstruse psychological problem, and he translates "beyond any reasonable doubt" into the more lucid and comprehensive "moral certainty" of ordinary existence.[29]But that he shall not permit himself to be prejudiced against a defendant by the latter's refusal to testify is a much more difficult matter. He knows it to be the law, and he tries hard to obey it, but in a majority of cases he cannot escape the sub-conscious deduction that if the defendant were innocent he would not hesitate to offer an explanation.As time goes on and he gains in experience it becomes even harder to follow the instructions of the judge in this respect. He discovers that the district attorney cannot prove the prison record or bad character of the defendant unless the latter subjects himself to cross-examination by taking the witness-stand, and hence is likely to suspect that any defendant who does not testify is an ex-convict. Three jurors out of five will convict any man who is unwilling to offer an explanation of the charge against him. How they reconcile this with their oath it would be hard to understand, if they were accustomed to obey it literally in other respects. The writer has heard more than one talesman say, in discussing a verdict, "Of course we couldn't take it against him, but weknewhe was guilty because he was afraid to testify."
As the reader is doubtless aware, under the common law no defendant in either a civil suit or criminal prosecution could testify in his own behalf. He was regarded as a party in interest whose bias must necessarily render his evidence of questionable, if of any, value. This doctrine, along with many others, our fathers adopted on their severance from England, and it continued to be the law in New York for a long time,—in civil cases until 1849, and in criminal until 1869. Then, ostensibly for the sake of the defendant and for the protection of the innocent, the rule was abolished. That the change from the common law was not generally approved either by the bench or bar of New York is clear from the opinion of the Court of Appeals in one of the earliest cases which arose under the new practice.[30]The court expressed the opinion thatthe change would redound to the benefit of the glib, quick-witted and hardened criminal who could invent a plausible defence, and result in the confusion of the innocent man unjustly accused of crime who might from stupidity or timidity involve himself in apparent contradiction; to say nothing of the fact that if the defendant did not take the stand the jury, however much they were instructed to the contrary, would inevitably draw an unfavorable conclusion from his failure to deny his guilt.
Now to any fair-minded American it must seem almost rudimentary justice that the accused should have a chance to tell his own story. That in itself is a sufficient reason for the rule. Just why, theoretically, if a defendant does not see fit to give an explanation and subject himself to cross-examination, the jury shouldnotbe permitted to draw an unfavorable inference is not so clear.
Experience has demonstrated that an innocent man need have no fear about taking the stand. Jurors sympathize with a defendant who is subjected to a withering fire of questions, and do not expect him to be able to give a lucid account of himself since the day of his birth, or to explain without the minutest contradiction every detail in the evidence against him. But they do want him to deny his guilt and to have an opportunity to "size him up." On the other hand, the slightest word of explanation may suffice to change the whole complexion of a case.[31]In the old days the guiltiest ofcriminals could, almost with impunity, shield himself behind his lawyer's eloquent assertion that his client had a "perfect defence," but that the law "had sealed his lips." To-day in the vast majority of cases the prisoner who does not take the stand is doomed. Out of three hundred defendants tried by the writer's associate, Mr. C.C. Nott, twenty-three failed to take the stand in cases submitted to the jury. Of these twenty-one were convicted, one was acquitted, and as to one the jury disagreed. Had these men been prevented by law from testifying in their own behalf, the ratio would have been very different.
Thus a rule originally intended to benefit the innocent defendant bypermittinghim to offer his explanation of the charge against him has practically resulted incompellingall defendants, guilty or innocent alike, to testify. It goes without saying that this has resulted in a considerable benefit to the community. Its only disadvantage, and this isprobably more theoretical than practical, is that ex-convicts on trial can no longer successfully conceal their pasts. If they do not testify they will probably pay the usual penalty, and if they do testify they are more than likely to be convicted "on their records." Clever criminals often seek to avoid this dilemma by declining the services of counsel and conducting their own cases, thus rendering it impossible for themselves to take the stand, for in such an event there would be no lawyer to examine them. This ruse is well calculated to deceive the ordinary juryman.
The jury are also far less inclined to draw an unfavorable inference from a defendant's failure to testify if, on the conclusion of the evidence of the prosecution, he merely "rests on the people's case" and puts in no defence at all, than if he puts in only a partial defence. They readily appreciate that his counsel may honestly believe that as matter of law no case has been made out against him, and they bend their energies to the determination of the simple and unobstructed issue of whether the uncontradicted evidence of the prosecution has of itself established the guilt of the prisoner beyond a reasonable doubt. If he puts in a defence and calls witnesses to contradict those of the people, the jury are apt to concentrate their attention upon the question of the relative truthfulness of the witnesses on either side. Juries, quite naturally, are quick to infer guilt from any attempt at deception on the part of the defence, and habitually visit the sins of his witness upon the prisoner. Every criminal lawyer has had the unpleasant experience of seeing his client convicted merely because the jury have caught one of the witnesses for the defence lying on an immaterial point. Whether the jury hear one or both sides of a case, they inevitably labor under the disadvantage of never being able to pierce the screen which the law has hung between them and the truth in every case. Many a jury is struggling manfully with the question of the defendant's guilt or innocence, while the latter sits in the pen chewing the cud of narcotic contentment and wondering whether the yarn he "framed" for them will be believed. He has figured out what he is likely to get, knowing that even if he were found guilty the judge would probably not "give" him "more than Elmira," and has resolved to "take a chance." As the Elmira sentence is indeterminate, the defendant has nothing to gain by pleading. Once there, he will be released in fourteen months if his conduct appears to warrant it. The only real "chance" that he takes, is, that the judge may send him to State's prison, but he usually has made a study of the judge's character and past performances. Similarly he may have offered to plead to a lower degree of the same offence and his offer may have been refused, yet the matter is confidential and the case has to be tried by the district attorney as though he had no knowledge of the defendant's guilt. So the jury retire and frequently end their deliberations by acquitting the defendant, who leaves the court-room triumphantly to the great chagrin of the prosecutor. The jury, on the other hand, are filled with complacent satisfaction at having restored to liberty a man unjustly accused of crime. But these trifling considerations are as nothing when compared with the limitations which the laws of evidence and procedure place upon thepresentation of what is ofttimes a perfectly plain case.[32]
The prosecutor who has thoroughly investigated a case has a knowledge of its real merits which can never be brought to the minds of the jury. There is much evidence, not technically admissible, which properly should be considered by him in determining his official action, and there is usually an equal amount of evidence, the competency of which will depend on the course of the trial. He occupies a delicate and frequently a very difficult position, since he must prosecute the case without reference to facts which might conclusively prove the defendant guilty, could they be introduced in evidence. The real character of the accused can almost never be demonstrated, for unless he takes the stand in his own behalf his "record" is inadmissible, and even when he does take the stand, he can deny withimpunity any allegation as to his past offences and conduct, since the law does not permit the prosecutor to disprove such denials unless they relate to actual convictions for crime. Similarly the excellent character of the complainant and his witnesses may not be shown, unless the defendant himself directly attacks it, so that it is probable that throughout the case the injured party and the wrong-doer appear to the jury to be of equal credibility. The district attorney is a "quasi-judicial" officer, who must be at one and the same time the friend and right arm of the court and the advocate of the public right. His official position gives him an influence with the jury which honor forbids him to abuse, and demands an impartial consideration of the evidence and a dignified method of conducting the case, irrespectiveof the tactics of the defence. He represents not only the public, but the defendant, who is one of the public. He should be glad to welcome at any stage of the proceedings credible evidence tending to establish the innocence of the accused, and if it convinces him that the defendant is not guilty, he should, even in the midst of a trial, arise and move that the jury be discharged and the prisoner set free. But this is by no means inconsistent with a vigorous insistence upon the people's rights, nor does it require that the prosecutor should refrain from using the advocate's customary weapons of attack and defence. While he is cross-examining the witnesses for the defence and arguing to the jury, he is for the time being the lawyer for the people, and the appellate courts have said that it would be manifestly unfair not to extend to him in summing up the case an equal latitude of expression and scope of argument with counsel for the defendant.
It is the consciousness that he is indeed sore let and hindered in really laying the truth before the jury that makes the accusation of "unfairness" so bitter to a prosecutor, and it is the cause of whatever "overzealousness" it is often popular to ascribe to the district attorney's office. One would think, to read the communications in the evening papers during a recent trial, that the community had no privileges at all. A prosecutor frequently reaches that conclusion from experience. The writer is not aware that the constitutional guarantees which protect the liberty of the individual were intended to deprive the public of an advocate. In the nature of things, if justice is to be done, the People should be entitled to the same rights as the individual. If weare to have respect for law, the law must be deserving of respect, and law which makes rather for the acquittal than for the conviction of the guilty is not of that sort.
But with a trained panel of jurors, at the end of the second week of the term, the chaff having been separated from the wheat, the prosecution may reasonably expect to see the mill of justice grinding smoothly and reasonably fine, the jury at home in the court-room, familiar with their duties, and appreciative of the fact that all the assistant is trying to accomplish is the disposal of as many cases as possible consistent with fair trials and just verdicts. By the middle of the term he must be a very indifferent sort of fellow if he has not made friends of the jury; and assuming that he has done his work disinterestedly and in a business-like fashion, he will find that he has now the good-will and respect of the entire panel,—a regard which may well stand him in good stead later on in his career. This is the prosecutor's reward,—to try cases before a body of men who know that he is anxious to do the right thing, ready to welcome any evidence that really tends to establish the innocence of the accused, but insistent that no guilty man shall go free unless his act is first stamped as wrong by a conscientious verdict on the part of the jury.
Yet, as the writer has already stated, when the jury disband at the conclusion of the term with the thanks of the court, they have seen few professional criminals, save for a fleeting glance as one or two are led to the bar to admit their guilt. One exception readily suggests itself,—namely, the prosperous swindler who, by means of the "wire-tapping,""sick engineer" or other similar device, has parted some gullible person from his savings. Yet these gentry always save plenty of money with which to engage able counsel and are only forced to trial after they have exhausted every means of delay known to the law. They never plead guilty, but fight until the last gun is fired, believing that as they have escaped punishment in the past, so they will in the future. Their records rarely make it possible for them to take the stand in their own behalf, and if the case goes to the jury at all they are immediately convicted. Almost every panel has the opportunity to hear at least one "sucker" tell his story and to render a speedy verdict in his favor. It needs little explanation from a prosecutor to convince the twelve hard-working tradesmen before him that the defendants in this class of cases are the "real" criminals,—systematic enemies of society.
The great bulk of cases, that is to say, nearly seventy-five per cent, are disposed of by plea, by direction of the court, or "recommendation," that is to say, on the written application of the district attorney that the defendant's bail be discharged. Hundreds of cases are thus "turned out" every year, and for the most part represent those instances where the magistrate and grand jury have not had either the time or the inclination to assume the responsibility of discharging the defendants, preferring to put the question "up" to the district attorney or a petit jury. These recommendations are made on numberless grounds, the principal being (1) that it is clearly apparent that a reasonable doubt exists on the evidence; in other words, that as a matter of law the case should not be submitted toa jury; (2) that the People's witnesses have disappeared or left the jurisdiction; (3) that the case has once been tried with the jury standing almost unanimously for acquittal; (4) that owing to the peculiar circumstances in the case it is quite unreasonable to suppose that any jury would convict,—such as where an entirely respectable young woman being out of work has, in a fit of despair, attempted her own life.[33]Two or three cases are disposed of in this manner in each part of the Sessions almost every calendar day in the year.
The defendants who plead guilty are professional criminals, ex-convicts, and prisoners whose guilt is so overwhelmingly clear that they have no hope of getting even a disagreement.
Thus most of the cases tried are neither "dead open and shut," as the saying is, nor exceptionally weak. They usually present some question of doubt,—usually only a conjectural one, however, or at least admit of a more or less logical argument for an acquittal on the part of the defence.
In trivial cases the jury are inclined to take thelaw into their own hands. Boys charged with attempting to pick pockets or burglarize small stores, with assaulting police officers, carrying concealed weapons such as knives and brass knuckles, having policy-slips in their possession, rioting, malicious mischief, etc., are usually acquitted. This is because the jury think that they have been already punished enough for the character of offence which they have committed,—not because they believe them innocent. Cases where the charge is a serious one and which are tried before trained panels on a substantial amount of evidence usually result in conviction. In so-called "important" or "star" cases, defendants are rarely acquitted. If the reader will recall the sensational first trials of the last ten years he will find that there is hardly a single acquittal among them.[34]It is the petty law-breaker who profits by the lawlessness of the modern jury.
The fact that the prosecutor appears every day before the general panel of jurors in the Part to which he is assigned throughout the term and soon gains among them the reputation of being fair, and that he on his side knows their peculiarities and idiosyncrasies is what makes the jury system in criminal cases work more accurately and accomplish better results than in civil trials, where the jury usually has never seen either counsel before and probably distrusts both of them. A prosecutor who knows his petit jury, its faults, virtues and foibles, can move an important case beforeit, even though it be composed of retail cigar and newspaper dealers and small tailors from the East Side, more safely and with a better expectation of a just verdict than before a "special" panel of bankers and architects with whom he is unfamiliar. The ordinary panel at its daily task during the last two weeks of every term illustrates the jury system at its best. Cases moved at the beginning of the term usually result in acquittals. Occasionally a jury will open a term with a rather unexpected conviction, but it takes three or four days before they realize that a reasonable doubt is not meant to include "a mere guess or conjecture that the defendant may, after all, be innocent." Wily criminal practitioners seek if possible to have their cases put on the calendars at the opening of a term, and to secure adjournments at the end of the term in order that they may go over to the beginning of the next.
Court officers often win fame in accordance with their ability as "plea getters." They are anxious that the particular Part to which they are assigned shall make as good a showing as possible in the number of cases disposed of. Accordingly each morning some of them visit the pens on the floor below the court-room and negotiate with the prisoners for pleas. The writer suspects that the assistant in charge of the Part is usually depicted as a fierce and relentless prosecutor and the jury as a hardened, heartless crew who would convict their own mothers on the slightest pretext. The joys of Elmira as contrasted with other places of confinement are alluringly described and a somewhat paradoxical readiness to accept any sort of plea, in view of his bull-dog character, is attributed to the assistant.
The writer has known of the entire population of a prison pen pleading guilty one after another under the persuasion of an eloquent bluecoat assisted by an opportune conviction. Of course the prisoners expect to be treated with a considerable degree of leniency, and if one of their comrades goes up to plead and returns with the story that the judge is "easy" and the assistant "all right," and a sentence to Elmira, the others are apt very quickly to follow suit. If, however, the first of the batch called for trial does not come back at all (having been acquitted), the remainder will not "plead" under any circumstances. The same thing is true if the first prisoner who pleads gets a severe sentence. Prosecutors anxious to dispose of business hope for light sentences at the beginning of the term.
Most of the homicide cases are tried in the Criminal Term of the Supreme Court, and a great many pleas to "manslaughter" are accepted by the judge where the technical charge is murder in the first degree. The grand jury indict for murder in almost every homicide case on the theory that some evidence may possibly be given at the trial which will warrant such a verdict. A very large proportion of these defendants plead guilty to manslaughter, and are encouraged in all legitimate ways to do so. About two years ago, in the Supreme Court, the first defendant called to the bar concluded that discretion was the better part of valor and pleaded guilty. The judge, who had never sat in Criminal Term before, promptly gave him eighteen years,—only two less than the maximum, although the shooting had occurred during a quarrel over a game of "craps." Not a single other prisoner offered a plea to anydegree of crime during the remainder of the term.
A great deal of interest is felt everywhere in the practical results of the jury system, and particularly in the proportion of convictions to acquittals. Figures purporting to show such ratios should be scrutinized with great care, as they usually include among "verdicts of conviction" pleas of guilty voluntarily offered by the defendant, and similarly include among "acquittals" all cases where defendants are discharged without trial on the motion of the prosecutor. The only figures which have any particular bearing on the question of how far the jury system is efficacious are those drawn from the results of actual trials in which verdicts have been rendered.
The following table shows the comparative number of convictions, pleas, acquittals, etc., in New York County during the last eight years:
During 1907 in New York County out of 4,573 indictments .62 per cent. (including pleas of guilty) resulted in convictions. The following table showsa gradually increasing percentage of such convictions for the past eight years:
During this eight-year period 32,731 indictments were finally disposed of either by trial, plea, direction of the court or on the recommendation of the district attorney. These dispositions bear the following ratios to each other:
What the reader is naturally most curious to discover is in what proportion of cases (where they had any say in the matter at all) the jury let the defendant go. Roughly speaking, the proportion of convictions to acquittalsby actual verdictis considerably more than two to one,—the ratio for 1907 being as 69 is to 31:
The writer desires very particularly not to be understood as suggesting that because the district attorney in all these cases thought the defendant guilty or evenknewhim to be guilty, the action of the jury was necessarily improper. So far as his opinion may be worth anything he believes thoroughly in the jury system in criminal cases, with some trifling modifications. In a vast proportion of the cases in which acquittals resulted there was undoubtedly room for an honest difference of opinion as between reasonable men,—men in the long run better qualified to judge of the defendant's guilton the evidencethan the prosecutor himself, who is always at the disadvantage of knowing the "inside" or "unprovable" elements of the People's case, a fact which is apt to lead him to believe that the record establishes his own contention more than it appears to do so to the jury. The propriety of any jury's action must be determined only upon the basis of the evidence presented to them, and upon which they are permitted to act. The writer is inclined to believe that nearer eighty than seventy per cent of the defendants tried should be convicted. In the heat of conflict he might even claim ninety per cent and maintain that if a majority of eleven on each jury could render a verdict, nine out of every ten defendants, after a hearing in the magistrate's court, an examination by the grand jury, and a careful investigation by the prosecutor's office, should be convicted. The writer submits that the increasing percentage of convictions shown on the opposite page is evidence of the effectiveness of the jury in criminal cases in New York County.