FOOTNOTES:

FOOTNOTES:[1]New York Penal Code, Section 276.[2]No longer the law of New York. After this book was published the Court of Appeals reversed the conviction of Tracy for his $50,000 fraud upon Felix by means of the "wire-tapping" game and affirmed as law the doctrine of Peoplevs.McCord. The author takes satisfaction in recording that the Legislature thereupon awoke to its duties and amended the penal code in such a fashion as to render such offences criminal.[3]46 New York 470.[4]47 App. Div. 283.[5]The operations of these swindlers recently became so notorious that the District Attorney of New York County determined to prosecute the perpetrators of the Felix swindle, in spite of the fact that the offence appeared to come within the language of the Court of Appeals in the McCord and Livingston cases. Accordingly Christopher Tracy, alias Charles Tompkins, alias Topping, etc., etc., was indicted (on the theory of "trick and device") for the "common-law" larceny of Felix's fifty thousand dollars.The trial came on before Judge Warren W. Foster in Part III of the General Sessions on February 27, 1906. A special panel quickly supplied a jury, which, after hearing the evidence, returned a verdict of guilty in short order.It now remains for the judges of the Court of Appeals to decide whether they will extend the doctrine of the McCord and Livingston cases to a fraud of this character, whether they will limit the doctrine strictly to cases of precisely similar facts, or whether they will frankly refuse to be bound by any such absurd and iniquitous theory and consign the McCord case to the dust-heap of discarded and mistaken doctrines, where it rightfully belongs. Their action will determine whether the perpetrators of the most ingenious, elaborate and successful bunco game in the history of New York County shall be punished for their offence or instead be turned loose to prey at will upon the community at large. (See "The Last of the Wire-Tappers" in theAmerican Magazinefor June, 1906; also incorporated in the author's "True Stories of Crime," pp. 103-121, published by Charles Scribner's Sons, 1908.)[6]Cf. in general, references giveninfra, p. 339.[7]The following appeared in the New YorkGlobefor April 25, 1905: "Criminal eyes—It is well known," says Dr. Beddoe, F.R.S., "that brown eyes and dark hair are particularly common among the criminal classes. An American observer calls the brown the criminal eye, etc., etc."

[1]New York Penal Code, Section 276.

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

[3]46 New York 470.

[4]47 App. Div. 283.

[5]The operations of these swindlers recently became so notorious that the District Attorney of New York County determined to prosecute the perpetrators of the Felix swindle, in spite of the fact that the offence appeared to come within the language of the Court of Appeals in the McCord and Livingston cases. Accordingly Christopher Tracy, alias Charles Tompkins, alias Topping, etc., etc., was indicted (on the theory of "trick and device") for the "common-law" larceny of Felix's fifty thousand dollars.The trial came on before Judge Warren W. Foster in Part III of the General Sessions on February 27, 1906. A special panel quickly supplied a jury, which, after hearing the evidence, returned a verdict of guilty in short order.It now remains for the judges of the Court of Appeals to decide whether they will extend the doctrine of the McCord and Livingston cases to a fraud of this character, whether they will limit the doctrine strictly to cases of precisely similar facts, or whether they will frankly refuse to be bound by any such absurd and iniquitous theory and consign the McCord case to the dust-heap of discarded and mistaken doctrines, where it rightfully belongs. Their action will determine whether the perpetrators of the most ingenious, elaborate and successful bunco game in the history of New York County shall be punished for their offence or instead be turned loose to prey at will upon the community at large. (See "The Last of the Wire-Tappers" in theAmerican Magazinefor June, 1906; also incorporated in the author's "True Stories of Crime," pp. 103-121, published by Charles Scribner's Sons, 1908.)

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

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

[6]Cf. in general, references giveninfra, p. 339.

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

CHAPTER II

WHO ARE THE REAL CRIMINALS?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The "Ship-Building fellers" have never been convicted of any wrong-doing. Perhaps they committedno crime. Summerfield has three years more to serve in Sing Sing.[11]

In this connection the reader will recall the attitude of the inhabitants of Lilliput as chronicled by Gulliver.—"They look upon fraud as a greater crime than theft, and therefore seldom fail to punish it with death; for they allege that care and vigilance, with a very common understanding, may preserve a man's goods from theft, but honesty has nodefenceagainst superior cunning; ... the honest dealer is always undone, and the knave gets the advantage. I remember when I was once interceding with the king for a criminal who had wronged his master for a great sum of money, which he had received by order, and ran away with; and happening to tell his Majesty by way of extenuation that it was only a breach of trust, the Emperor thought it monstrous in me to offer as a defence the greatest aggravation of the crime; and truly I had little to say in return, further than the common answer, that different nations had different customs; for, I confess, I was heartily ashamed."

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

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

The man who deliberately violates the law by doing that which he knows to be wrong is a real criminal, whether he be a house-breaker, an adulterator of drugs, the receiver of a fraudulent assignment or a trade-mark thief, an insurance "grafter," a bribe giver, or a butcher who charges the cook's commission against next Sunday's delivery. The writer fails to see the slightest valid distinction between them and believes it should be made possible to punish them all with equal severity. There isno reason why one should be a felon, another guilty of only a misdemeanor, while still another is guilty of nothing at all. The cause of crime is our general and widespread lack of respect for law, and this in turn is largely due to the unpunished, and often unpunishable, dishonesty which seems to permeate many phases of commercial activity. Diogenes's job is still vacant.

FOOTNOTES:[8]Including under the general term "fraud," obtaining money by false pretences, thefts by solicitors, bankers, agents, directors, trustees, etc. ("generally recorded under the euphony 'misappropriation'"), falsifying accounts, etc., Mr. Schorling found that taking the number of these two divisions of crime between 1885-1889 as 100% there had been the following relative decrease and increase between them:All Crimes Except FraudFrauds1885-1889100%1885-1889100%1890-189496.2%1890-1894110.1%1895-189990.4%1895-1899138.3%A similar table constructed for the United States during the last fifteen years would be instructive but perhaps unduly depressing. Recent financial and other disclosures would probably send up the mercury of the "fraud" thermometer until it burst.[9]Cf. "Unpunished Commercial Crime" in "Moral Overstrain," by G.W. Alger. Houghton, Mifflin & Co., 1906.[10]See "True Stories of Crime," referred tosupra, p. 15.[11]Since the publication of this book Summerfield has been discharged from prison, having earned his parole by exemplary conduct. He has gone West to lead a new and better life, and there is reason to believe that he will succeed in doing so.

[8]Including under the general term "fraud," obtaining money by false pretences, thefts by solicitors, bankers, agents, directors, trustees, etc. ("generally recorded under the euphony 'misappropriation'"), falsifying accounts, etc., Mr. Schorling found that taking the number of these two divisions of crime between 1885-1889 as 100% there had been the following relative decrease and increase between them:All Crimes Except FraudFrauds1885-1889100%1885-1889100%1890-189496.2%1890-1894110.1%1895-189990.4%1895-1899138.3%A similar table constructed for the United States during the last fifteen years would be instructive but perhaps unduly depressing. Recent financial and other disclosures would probably send up the mercury of the "fraud" thermometer until it burst.

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

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

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

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

CHAPTER III

THE ARREST

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

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

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

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

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

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

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

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

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

But the statutes governing the right of arrest, while extensive enough to safeguard the public interest, are carefully limited to prevent arbitrary interference with the liberty of innocent persons. The law, therefore, makes it a positive condition that before any one, whether he be citizen or officer, may arrest another for a felonynotcommitted in his presence the felony mustin fact have been committed. Thus the right to apprehend a suspected wrong-doer is invoked at the peril of him who seeks to exercise it. If no felony has been committed the arrest is illegal.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The sheriff would rub his forehead and reply:

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

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

FOOTNOTES:[12]An attempt has apparently been made by the legislature of New York State to enlarge the powers of the police during the night-time by giving them authority to arrest "on reasonable suspicion of felony." The statute (Penal Code) reads as follows: "Section 179.May arrest at night, on reasonable suspicion of felony."He may also, at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony, and is justified in making the arrest,though it afterwards appear that a felony had been committed, but that the person arrested did not commit it."This statute clearly stultifies itself. The writer is not aware of any judicial interpretation of its meaning up to the present time.[13]In People v. Hochstim (36 Misc., 562, 571) it is said that "in the matter of arresting without a warrant, whether for a misdemeanor or for a felony, a private citizen and a peace officer have the very same right and power under the law, namely: (1) Either may without a warrant arrest a person who commits any crime, whether misdemeanor or felony, in his view, and (2) either may without a warrant arrest any person who has in fact committed a felony although not in his view, but (3) neither may arrest any one without a warrant in the case of a felony unless the alleged felony has in fact been committed. If no felony has in fact been committed, then the arrest without a warrant is in every case unlawful and may be lawfully resisted. The law does not justify either an officer or a private citizen in arresting for a felony without a warrant on mere suspicion or information that a felony has been committed. If either act without a warrant on groundless suspicion or information on the question of whether a felony has in fact been committed, he acts at his peril. Nothing but the absolute fact that the felony has actually been committed will suffice to justify and protect the person making such an arrest, whether an officer or a private citizen. But if a felony has in fact been committed, the law does justify an officer, but not a private citizen, in arresting a person therefor without a warrant 'on reasonable cause for believing' (to quote the words of the statute) that such person is the one who committed it. In a word, an officer, the same as a private citizen, is not permitted to act on mere grounds of belief on the question of whether a felony has in fact been committed; nothing but the absolute fact that it has been committed will suffice; but an officer is permitted to act on reasonable cause for belief on the question of whether the person arrested is the person who committed it. All of this is plain statute law (Code of Criminal Procedure, secs. 177, 183)."[14]A distinction exists in this respect between misdemeanors and felonies. In the case of the former it is not lawful to kill a prisoner even if his escape cannot otherwise be prevented, and although there be a warrant for his apprehension. In the case of a felony the offender's life may be taken provided there isabsolute necessityfor so doing to prevent his escape. Conraddy v. People, 5 Park 234.

[12]An attempt has apparently been made by the legislature of New York State to enlarge the powers of the police during the night-time by giving them authority to arrest "on reasonable suspicion of felony." The statute (Penal Code) reads as follows: "Section 179.May arrest at night, on reasonable suspicion of felony."He may also, at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony, and is justified in making the arrest,though it afterwards appear that a felony had been committed, but that the person arrested did not commit it."This statute clearly stultifies itself. The writer is not aware of any judicial interpretation of its meaning up to the present time.

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

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

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

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

CHAPTER IV

THE POLICE COURT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Tree dollars!" he cries with fine scorn. "Tree dollars for a purglar!Ivould be a purglarmyselffortree dollars!"

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

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

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

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

"And that you fainted?"

"Shure, your honor."

"Did you fall?" inquires the judge sharply.

"N—n—no," admits the complainant.

"Defendant discharged," announces the magistrate.

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

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

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

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

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

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

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

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

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

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

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

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

The clients would inquire the relative cost.

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

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

Back to Index Next