The fact that most police magistrates are appointed for purely political reasons is much to be deprecated. The days of bribery are over, but occasionally the public has some excuse for believing that the desire to do "a favor" for a political friend may have influenced the action of one of them. This would have less color were they usually appointed for some other and better reason than mere party fealty. Ordinarily the appointment goes to some faithful worker, who has won distinction in ward politics. Like enough he may make an excellent judge. At any rate he has a direct personal knowledge of the people with whom he is called to deal. He has equally first-hand information of local conditions and thepersonnelof the police attached to the neighboring precincts. His judgment is apt to have a practical wisdom that a mere student of law could never achieve. He knows a crooked officer, a crooked lawyer, and a crooked complainant when he sees one. Whatever the verbal testimony happens to be he may very well "know different." He is, as the slang phrase accurately puts it, "wise to his job." And when all is said and done the "influence" exerted upon him will probably be only a request to "Do the best you can for So and So,—he's a friend of mine," which will not affect his action in the least. A college-bred lawyer with no actual knowledge of existing conditions might have the wool pulled over his eyes at every turn, and, while theoretically enforcing the law as it is printed on the statute books, fail utterly to achieve the rough-and-ready justicewhich the situation demands and which his less educated brethren can dispense by virtue of instinct acquired from long experience. It must be admitted, however, that the system of political appointments is just as bad, if not worse, when applied to police magistracies as when exercised in higher places. The appointees may or may not turn out successfully, and in New York we have had some extraordinary surprises in both directions.
Did space permit a judicious selection of the historic rulings of traditional magistrates would make entertaining reading. One of the most famous was that of a certain learned member of this bench who is said to have discharged a defendant accused of killing a robin in Central Park in the following words:
"You are charged with breaking a park ordinance forbidding the public to kill the robins. Of course you oughtnotto kill the robins for they are harmless birds, but I have looked this thing up a little, and I find that from time immemorial it has been held that there can be no right of property in wild beasts. Now, a robin is clearlyferræ naturæ—of a wild nature—and so the city has no property in it. The ordinance is therefore unconstitutional, and I am constrained to discharge you. You may go."
Nowhere than on the magistrate's bench is better illustrated the proverb that a little learning is a dangerous thing, but only a little learning, even such as classifies an innocent park robin as a wild beast, is preferable to an openly expressed intention of enforcing only those laws which appeal to the judge's individual sense of propriety. The writer recalls endeavoring some six years ago to inducea certain magistrate to hold a defendant for the grand jury for a certain statutory offence. The learned magistrate positively refused to do so on the ground that there was "nosensein the law."
"But itis the law!" returned the writer.
"Well, I don't care if it is," replied the judge tartly. "I didn't make it. It's no law of mine, and I don't propose to follow it. Go and get the grand jury to indict if you can, but I won't hold this man for doing what I might want to do myself some day."[21]
Taken as a body our magistrates, with a few obvious exceptions, are men of wide experience and practical common sense, who handle the enormous stream of business which comes before them with efficiency and dispatch. A forbidding exterior and, occasionally, a diction which might startle a Friday evening prayer meeting may co-exist with a fair mind, a kind heart, and an honest determination to see that justice is done. While the rights of the defendant are fully protected it is probable that actual justice is more nearly accomplished in these than in higher courts, where "reasonable doubt," the presumption of innocence, and kindred privileges, as interpreted by a sympathetic jury, intervene between the rights of the community and those of the prisoner at the bar.
FOOTNOTES:[15]Of course if he has been indicted by the grand jury in the first instance, he is arrested on a "bench warrant" issued by a judge of the General Sessions and placed in confinement without any preliminary examination.[16]This condition has been much improved in New York City by the institution of the "Night" Court in which one magistrate is always on duty. All minor offenders are at once arraigned before him, no matter what the hour, and thus may be disposed of without undue confinement.[17]"Many persons are arrested under suspicious circumstances, such as well-known criminals mysteriously loitering about the streets at night, or frequenting crowded places, or persons having property in their possession for which they can give no good account, nor of themselves. Frequently such an arrest is the first step in the detection of some crime in which (after investigation), if the proper complainant is found, a formal complaint is taken, and the prisoner is held for trial. In many instances such an arrest prevents the commission of crime."Comparison with Previous Years.Number Arraigned and Discharged.Year.Males.Females.Total.189623351202455189717561291885189816281541782189920333012334190020232932316190120661972263190223372002537190326341152749190437342243958190535512313782190654831805663190726561182774[18]The nativity of the persons held for trial in 1907 or summarily tried and convicted in magistrates' courts was:United States30,261Ireland8,061Germany4,219England1,044Scotland473France869Italy8,243Russia9,254Greece3,039Other countries5,790———Total71,253[19]In 1905 the number of persons so held in New York County by the magistrates of the first division, was 36,340.[20]During 1907 there were arrested 1,669 persons on charges of burglary, of whom 1,055 were held for trial.[21]See latter half of Subdivision 5, Section 278 New York Penal Code.
[15]Of course if he has been indicted by the grand jury in the first instance, he is arrested on a "bench warrant" issued by a judge of the General Sessions and placed in confinement without any preliminary examination.
[15]Of course if he has been indicted by the grand jury in the first instance, he is arrested on a "bench warrant" issued by a judge of the General Sessions and placed in confinement without any preliminary examination.
[16]This condition has been much improved in New York City by the institution of the "Night" Court in which one magistrate is always on duty. All minor offenders are at once arraigned before him, no matter what the hour, and thus may be disposed of without undue confinement.
[16]This condition has been much improved in New York City by the institution of the "Night" Court in which one magistrate is always on duty. All minor offenders are at once arraigned before him, no matter what the hour, and thus may be disposed of without undue confinement.
[17]"Many persons are arrested under suspicious circumstances, such as well-known criminals mysteriously loitering about the streets at night, or frequenting crowded places, or persons having property in their possession for which they can give no good account, nor of themselves. Frequently such an arrest is the first step in the detection of some crime in which (after investigation), if the proper complainant is found, a formal complaint is taken, and the prisoner is held for trial. In many instances such an arrest prevents the commission of crime."Comparison with Previous Years.Number Arraigned and Discharged.Year.Males.Females.Total.189623351202455189717561291885189816281541782189920333012334190020232932316190120661972263190223372002537190326341152749190437342243958190535512313782190654831805663190726561182774
[17]"Many persons are arrested under suspicious circumstances, such as well-known criminals mysteriously loitering about the streets at night, or frequenting crowded places, or persons having property in their possession for which they can give no good account, nor of themselves. Frequently such an arrest is the first step in the detection of some crime in which (after investigation), if the proper complainant is found, a formal complaint is taken, and the prisoner is held for trial. In many instances such an arrest prevents the commission of crime."
Comparison with Previous Years.
[18]The nativity of the persons held for trial in 1907 or summarily tried and convicted in magistrates' courts was:United States30,261Ireland8,061Germany4,219England1,044Scotland473France869Italy8,243Russia9,254Greece3,039Other countries5,790———Total71,253
[18]The nativity of the persons held for trial in 1907 or summarily tried and convicted in magistrates' courts was:
[19]In 1905 the number of persons so held in New York County by the magistrates of the first division, was 36,340.
[19]In 1905 the number of persons so held in New York County by the magistrates of the first division, was 36,340.
[20]During 1907 there were arrested 1,669 persons on charges of burglary, of whom 1,055 were held for trial.
[20]During 1907 there were arrested 1,669 persons on charges of burglary, of whom 1,055 were held for trial.
[21]See latter half of Subdivision 5, Section 278 New York Penal Code.
[21]See latter half of Subdivision 5, Section 278 New York Penal Code.
CHAPTER V
THE TRIAL OF MISDEMEANORS
One of the most efficient, effective, and important criminal courts in the civilized world is that established for the trial of misdemeanors in New York County. Three judges, each having an equal voice, act as arbiters of both law and fact. Originally this bench was filled by three regular police magistrates sitting in rotation, and in many cases the same judge before whom the prisoner had been arraigned in the first instance assisted in determining the final question of his guilt or innocence. But the old Court of Special Sessions acquired a very unsavory reputation for many reasons, the chief among them being its alleged susceptibility to political influence and the looseness with which its funds were handled, and it was finally legislated out of existence in 1895. Then a new court was created composed of three justices who, while they had the powers of police magistrates, did not sit in magistrates' courts, but devoted their entire time to the trial of misdemeanors. In the last eight years this court disposed of 65,579 cases, in which 40,894 persons were convicted of crime, either by trial or by plea of guilty. During the year 1907 alone 13,140 cases were disposed of, in which there were 7,960 convictions. The judges in this huge mill of justice rarely make mistakes, and few appeals are ever taken from their decisions.They have become, by virtue of long experience, experts in fact, and the training thus received has qualified several of them for higher office.[22]
As the reader is already aware, a defendant charged in a magistrate's court with the commission of a misdemeanor, say that of petit larceny, is given an immediate hearing, and, if there be reasonable ground to believe him guilty, is held for trial in the Special Sessions. The information or affidavit, to which the complaining witness has sworn and which contains a more or less succinct account of the facts alleged against the prisoner, is thereupon forwarded to the clerk of the court and in due course the defendant appears, if he be on bail, or is brought from prison, if he be in confinement, to "plead." This information, which is the basis of the proceedings against him and which is practically the only record in the case, is commonly called the "complaint" and corresponds with the indictment found by the grand jury where the defendant is charged with the commission of a felony.
After the prisoner has entered his plea, if he be in prison, he is given a trial almost immediately; if not, his case will probably come up within a week or two. The offences over which these three judges have jurisdiction are as many and as diversified as human ingenuity and the demands of modern civilized life, qualified by ineffective legislation, have combined to make them.
As might be expected, petty larcenies and assaults furnish together more than thirty per cent of the cases tried. The following table will show the more numerous and important offences for which defendants were held in 1907 for the Special Sessions and their relative proportions:
A spectator may in the course of a morning hear thirty or forty cases actually tried in which the charges cover almost every conceivable kind of sin, wrong, or prohibition. One prisoner is being prosecuted for assaulting a non-union workman, another for maintaining a public nuisance, another for aviolation of the Liquor Tax Law, another for practising medicine without a license; a dozen cases will be rapidly disposed of wherein the defendants are charged with shoplifting or "illegal entry" (a charge frequently lodged against a suspected burglar who has made an entry without a "break" and has been caught before he has accomplished his purpose); others still will be tried for carrying concealed weapons, publishing or possessing indecent literature, violating trade-mark laws, breaking speed ordinances, or "malicious mischief"; while, if the student of institutions be patient, he may be rewarded by the exciting spectacle of one who is defending himself against the charge of selling skimmed milk, holding a mock auction, driving a spavined horse, writing a threatening letter, making a fraudulent assignment, pawning borrowed property, using a false weight, opening another's letter, keeping a cow in an unhealthy place, running a cock-fight, misrepresenting the circulation of a newspaper, divulging the contents of a telegram, impersonating a policeman, adulterating food; or, provided he be exceptionally fortunate, may hear the trial of a celebrated actress for her impersonation of "Sappho," or of a manager for producing "Mrs. Warren's Profession."
He will see every conceivable type of man, woman, and child, either as defendant or witness, and he may also study every variety of human failing or weakness. No mock defence or prepared lie can deceive these argus-eyed judges; short shrift is made of the guilty, while the "reasonable doubt" is recognized the instant it puts in the most furtive appearance. In fact defendants are often found guiltyor acquitted almost before they are aware they are on trial,—and this with no detriment to them or to their cause.
The advocates of the abandonment of the jury system point to this court as their strongest argument. No time is lost in the selection of a jury,—a matter often of hours in the General Sessions in cases of no greater importance. There is no opening address on the part of the district attorney or counsel for the defendant,—the written statement or information sworn to by the complainant being entirely sufficient for the court. Cross-examination is cut down to its essentials and tests of "credibility" are almost unnecessary. At the conclusion of the case there are no harangues from either side, and the judges almost immediately announce their decision and generally impose sentence on the spot.
Of course in nine cases out of ten the evidence is conclusive and the merest glance at the complainant and his or her witnesses is enough to satisfy the onlooker that their claim is honest and the charge substantial. In such cases the trials proceed with lightning-like celerity. The owner of the stolen property is sworn while the defendant and his lawyer are pushing their way through the crowd to the bar.
"Mr. Blickendecker, are you a grocer, fifty-five years of age, residing at 1000-A-rear, First Avenue, and having a store at 666½ Catharine Street?" rapidly articulates the deputy assistant district attorney.
"Ya; I vas," answers Blickendecker heavily, trying helplessly to catch up.
"Did you, about 4:49P.M., on Tuesday, the 17th of April, observe the defendant near your place of business?"
"Ya; I vas—I mean, ya, I did."
"What did you see him do?"
Blickendecker wipes his forehead and turns towards the court:
"Your honors, gentlemens, I see dot feller dere——"
"The defendant?" interrupts the presiding judge, patiently.
"Ya—the defender, I see dot defender mit a leetle vagon on two wheels, py mein store mit anoder feller, unt dey catch up ein crate of eggs unt put him in de vagon unt skip mit him, unt I hollers 'Tief!' unt runs, unt de officer——"
"That's enough. Any cross-examination? No? Call the officer."
The officer is sworn.
"Are you a member of the Municipal Police force of the city and county of New York, attached to the —— Precinct, and were you so attached on the 17th of April last, and did you see the defendant on that day near the premises 666½ Catharine Street?"
"Shure I seen him. Him and another feller. They were makin' off wid old 'Delicatessen's' eggs. I catched this young feller——"
"That's enough. Any cross-examination? No? Leave the stand."
"The People rest," announces the assistant.
"Take the stand," directs the lawyer, and his client shambles into the chair.
"Did you steal Mr. Blickendecker's eggs?"
"No, your honor; Cully Fagan asked me to go round and help him deliver some eggs. He said he'd gimme a drink. So I went along wid him. All of a sudden out comes this old guy and yells 'thief.' I gets scared and runs. I didn't mean no harm."
"That is our case," says the lawyer.
"No cross-examination," says the assistant.
The judges consult for a moment.
"We find the defendant guilty," announces the presiding judge, dipping his pen into the ink.
"Now, young man, have you ever been convicted?"
"No, your honor."
"I advise you not to steal any more eggs. One month in the penitentiary. Next case!"
Now here is a defendant given a perfectly fair, if not a very full, trial in less than three minutes. Of course it is in such a case practically a mere formality. Two witnesses who have had no previous acquaintance with the prisoner, whose eyesight is perfect, and who have no motive to swear falsely, identify him as caughtin flagrante delicto. The defendant has merely put in his defence "on the chance." His sentence would be about the same in either case. The only disadvantage of so active a court is the fact that the multitude of the defendants render it almost impossible to make any very exhaustive study of the majority of them before sentence. However, as the sentences are all light, the defendant always gets the benefit of the doubt, and the court resolves all doubts in his favor.
Sometimes in such a case a criminal conspiracy between the complainant and the officer is disclosed to "do" a mischievous, but not criminal, youth whohas fallen into their disfavor. Then the witnesses are subjected to such a fire of questions that they wilt and wither in the blast, the defendant is acquitted and the prosecution's witnesses sometimes held for the action of the grand jury on a charge of perjury. Many acause célèbrehas originated in the Special Sessions through the perspicacity of some member of that bench during a petty trial, and defendants there convicted often divulge in their confessions evidence which for a time sets the newspaper world by the ears. This is especially true of cases where some civil officer is accused of taking a bribe to influence his action or to make an appointment. He may be convicted, confess, and for a day or two the papers are full of the unearthing of a far-reaching conspiracy to debauch the city government, barter offices at wholesale, and deliver the city to a coterie of criminals. The next step in the proceeding is the unfortunate discovery that the defendant's confession, since it cannot be corroborated, is entirely worthless. Yet, as he has apparently done all he could to atone for his offence, he receives a mitigated sentence, while the uproar occasioned by his sensational disclosures subsides as suddenly as it began.
The bane of the Court of Special Sessions in New York County and very likely the bane of all similar courts, are the so-called "Liquor Tax cases." As one of the officers of this court recently said: "In this class of cases the court knows that it is being 'flim-flammed,' and, in addition, that it is helpless. We convict in about sixty per cent of the cases, but the judges know perfectly well that a considerable number of those convicted are men who, while nothonest enough not to violate the law, are too honest to pay corruption money."
The possibilities for blackmail and the arbitrary and unequal way in which the law is enforced in different parts of the city (one section being allowed to be "wide open" while an adjacent district is "dry") render the judges loath to convict even in "straight" cases. When Liquor Tax cases are transferred, by order of the judge presiding in Part I, for trial in the General Sessions, the juries before which they are prosecuted will not convict at all.[23]
In the same way the court looks with grave suspicion on most cases where a defendant is arraigned charged with "assault" on an officer. They expect to see arraigned at the bar (and are usually not disappointed) a small man covered with bandages, while a burly officer without a scratch upon his rosy countenance takes the stand and swears that the defendant assaulted him. The policeman always has plenty of corroboration—the defendant none at all. The chances are that the relative sizes of the two men are such that if the officer coughed the defendant would drop dead. The proper charge in such a case would be, not attempted assault on an officer, butattempted suicide. The truth of the matter probably is that the small man, having done or said something to irritate the officer, has been pounded to a pulp and then ignominiously haled away to the station house, while his terrified companions, knowing full well that if they interfered theirs would be a similar fate, have retired to their homes privately to execrate a state of civilization where humble citizens can be subjected to such persecution.
Practically the Special Sessions is the final court of disposition for most misdemeanors. Except in automobile, theatrical, health, copyright, and trade-mark cases and a few others, a majority of the defendants do not have enough money even to hire a lawyer, to say nothing of taking an appeal. They are disposed of then and there just as in certain cases they are disposed of in the magistrates' courts. For them a sentence once imposed is final.
Occasionally the Special Sessions is the scene of a great trial, as celebrated as those fought out in the "Parts" upstairs or in the criminal trial term of the Supreme Court across the hall. A prominent druggist may have been accused of refilling bottles with spurious or diluted contents. He is being prosecuted by the owners of the trade-mark or label. They retain distinguished counsel to prepare the case for the prosecution. The accused engages equally able lawyers to defend him. The crime is highly technical and the evidence almost entirely a matter of chemical analysis and expert opinion. The battle goes on for weeks or even months. A jury would have become hopelessly confused and the issue successfully obscured, but the three judges are expert jurymen, and in due course, if he be guilty, the defendant is inevitably convicted. Such a trial may cost the parties tens of thousands of dollars for expert testimony alone, while the sentence of the defendant will very likely be not more than a two-hundred-and-fifty-dollar fine. Even so, the integrity of the trade-mark has been sustained and the swindler stamped as a criminal.
Fifty per cent or more of the work of the Special Sessions is practically amplified police-court business, but it is accomplished with an exactitude and efficiency that makes much of that done in the magistrates' courts appear crude indeed. The lesson of this particular court is that police business can be done speedily, effectively, and justly, provided the right men are selected to do it.
Fully seventy-five per cent of the criminals begin with petty infractions of the law. A driver for an iceman may "swipe" his comrade's horse blanket. If he be convicted and sent to the penitentiary he may learn to commit crimes of which he had never dreamed in his driver days, when his highest ambition was to get a ticket to a "chowder" or to a "grand ball." His next appearance may be in the General Sessions charged with burglary, and his last in the Supreme Court under indictment for murder. If, on the other hand, having been found guilty, he be merely reprimanded and paroled under a suspended sentence, he will in all likelihood never appear in court as a defendant again. Hence an opportunity, greater even than that of the police justice, for the exercise of a wise and humane discretion.
The multitude of prisoners who are unable to employ counsel have created a bevy of lawyers, abundantly able to look out for the interests of petty offenders, who stand or sit near the bar and are assigned by the court to the various defendants. A whispered fifteen seconds' conversation with their unfortunate client and they are enabled to take charge of the case. Long experience has made them almost as expert in estimating human nature as the judges themselves, and they are familiar with every trick of the trade which may raise a "reasonable doubt." The leaders among them have skilful"runners" who haunt the police courts and the corridors of the building, heralding the virtues and successes of their masters, handing cards to prospective clients, and currying business in every conceivable manner. Observing a forlorn person, who timidly responds when his case is called, the runner instantly offers him the services of the "biggest" lawyer in the court for a five-, three-, or two-dollar retainer. If the client escapes conviction he is supposed to pay twenty-five dollars more and is dunned until he does. This may seem petty business and small pickings, but when one considers that thirteen thousand odd cases are disposed of each year, one sees that at even the modest fee of ten dollars per case there is over a hundred thousand dollars a year in the Special Sessions waiting for somebody.
The best of these lawyers earn as much as five thousand dollars per year, including their outside and police-court business. The runner usually gets nearly as much. Sometimes there will be a one-hundred-dollar, a two-hundred-and-fifty-dollar, or even a five-hundred-dollar fee. In reality there is more money to be made in the police court than in the Special Sessions, for it is when the offender has just been caught and is in his first spasm of terror that he is most ready to "give up." Police-court fees are sometimes very high.
The most notable figure of this bar was Tom Cherry, otherwise known as "The Attorney-General of the Special Sessions." When sober he was a most capable, rough-and-ready, catch-as-catch-can, police-court lawyer. His fame extended to every magistrate's court, and his business was so constant that he never sat down, but stood at the bar fromthe opening of court to its adjournment, defending almost every prisoner who had money to pay a fee, and being assigned to practically all those who had not. His success was his undoing. Without any knowledge of law, although he presumably had passed the Bar examinations (Heaven knows how!), his judgment of character, his ready wit, and his quick tongue made him no unworthy antagonist for a well-trained youngster. But Cherry never took an unfair advantage, and his statement as to his client's past, and sometimes as to his innocence, was received without question by the court. It was a boon to a new assistant to gain Cherry's confidence; and it was a reproach to many that they did not do so.
Cherry finally succumbed to his closest friend and worst enemy—drink. His periodic absences became more and more frequent, and finally the word was sadly whispered through the building that Cherry had "passed." His memory is still green and his smiling face will never be forgotten by those who knew him. A rival attorney almost immediately succeeded to his practice and his particular place beside the bar, but the Court of Special Sessions is not the same.
The practices of the shysters are the curse of the lower courts, and their enormities are such that a special cycle in Hades should be reserved for their particular retribution. Preying upon ignorance and vice, they become hardened to every appeal of human sympathy and often deserve punishment a thousand times more heavy than the miserable wretches whom they make a pretence of defending. They pervert justice and prostitute a sacred calling,extorting from their clients the uttermost farthing by fear and false pretence. To show that this charge is not ill-founded, the reader may take as an example the practice of the shyster in dealing with those unfortunate women who are the common prey of the corrupt plain-clothes man and his conscienceless ally—the police-court lawyer.
Let us suppose that a certain section of the town is, as the saying goes, "wide open," and the police are regularly collecting protection money according to the approved method of "the system." The houses which pay up are left undisturbed—and all do pay up. So does the little street walker who plies her trade in the open. Some citizen or newspaper makes a complaint that the police are not doing their duty. There is a bare chance that political capital will be made of it and word is sent to the captain of the precinct to "get busy." He sends for the plain-clothes man, and tells him "there are not arrests enough." The officer answers that "everything is quiet." "Get busy," says the captain. A scapegoat is necessary and so the officer goes out and, leaving the bawdy-houses untroubled, tracks some miserable creature to her lonely room and there arrests her under the pretence that she is violating the "Tenement House Law." Now the worst that would happen to such an unfortunate would be, having "waived examination" before the magistrate, and pleaded guilty in Special Sessions, to be fined twenty-five or fifty dollars. The girl usually does not know this. When she is brought in under arrest the keeper "tips off" the runner for some lawyer, who first frightens her into believing that a long term of imprisonment confrontsher, and then introduces his master. The latter in turn offers to get her out on bail, meantime determining by an expert cross-examination, at which he is a past master, exactly how much money she has in the world. He then proceeds to acquire this by every means at his command. An actual case will illustrate what follows.
A young girl who had fallen from virtue, but who had never been arrested before, was brought into the Jefferson Market prison. She had saved five hundred dollars with which she intended the following week to return to her native town in New Hampshire and start life anew. The keeper led her to believe that she would be imprisoned in the penitentiary for nearly a year unless she could "beat the case." One of these buzzards learned of her distress and offered to procure bail for her for the sum of fifty dollars. A straw bondsman was produced, and she paid him the money and was liberated. Meanwhile the lawyer had learned of the existence of her five hundred dollars. By terrifying her with all sorts of stories as to what would possibly happen to her, he succeeded in inducing her to pay him three hundred as a retainer to appear for her at the hearing in the magistrate's court. He had guaranteed to get her off then and there, but when her case was called he happened to be engaged in reading a newspaper and, looking up from where he was sitting, merely remarked, "Waives examination, your honor." The girl had only one hundred and fifty dollars left, and as yet had had no defence, but the shyster now demanded and received one hundred dollars more for representing her in the Special Sessions. She now hadbut fifty dollars. Immediately after the hearing in the police court the bondsman "surrendered" her and she was locked up in the Tombs pending her trial, for she had not money enough to secure another bail bond. Here she languished three or four days. When at last her case appeared upon the calendar the shyster did not even take the trouble to come to court himself, but telephoned to another buzzard that she still had fifty dollars, telling him to "take her on." Abandoned by her counsel, alone and in prison, she gave up the last cent she had, hoping thus still to escape the dreadful fate predicted for her. When she was called to the bar the second lawyer informed her she had no defence and the best thing she could do was to plead guilty. This she did and was fined twenty-five dollars, but, having now no money, was compelled to serve out her time, a day for each dollar, in the City Prison, at the end of which time she was cast penniless upon the streets.
Many an originally honest young fellow who, in a sincere attempt to build up a small practice, has haunted the magistrate's court and secured petty police business has been gradually drawn into the vortex of crime until he is even more tainted than those whom he defends. The Legal Aid Society, which, so far as the writer is aware, is the only bona fide charitable organization existing in New York for the purpose of assisting impoverished persons to secure legal counsel, does not undertake any criminal business. No greater service could be rendered to the community than by some society organized to protect helpless defendants who have fallen victims to the vultures who prey upon theprison pens. At the present time the official prosecutor himself is the only person to whom one charged with a criminal offence can turn with any hope of relief from his own lawyer, and if the number of cases were known where the prosecutor has befriended the prosecuted the eyes of jurors and of the public would be opened to the real spirit which animates a fair-minded district attorney.
A favorite trick of shysters if they have an imprisoned client who still refuses to "give up," is to plead "not guilty and not ready" and thus have the case adjourned until they squeeze their victim dry. A defendant who has any money is never permitted to go to trial or even to plead guilty before his money is entirely exhausted.
This is not romance, it is practice. The men who do these things can be seen any day in every police court in New York—heartless, cynical, merciless. Lying and deceit are their stock in trade, corruption their daily food. Within three months one of these gentry not only compelled an eighteen-year-old girl to give him a fine Etruscan ring which she had inherited, and which he pawned for five dollars, but stripped her of a new silk petticoat which he carried away in a newspaper as a fee. This woman served ten days because she could not pay her fine. Another woman who hadstolen an umbrellagave a shyster her watch. He pawned it and then abandoned her, when she came up for trial. Each of these men has a special line of clients which he serves, either because he is supposed to be particularly expert in such cases or because he is regularly retained by the "trust" which they compose. Thus the East Side pickpockets have one attorney, the"green-goods" men another, the opium sellers a third, the abortionists a fourth, while every "short changing," "thimble rigging," or "flim-flam" case sees the same lawyer for the defence.
It is a fact of considerable significance that most retailers charged with selling adulterated milk are defended by the same lawyers. The large milk companies apparently invite the trade of the small dealer by offering him cheap milk, and a guarantee that if he is caught selling their product they will not only defend him but, if he be found guilty, will pay his fine. Who does the adulterating? The company or the retailer? It is almost impossible to say. Nevertheless, if lack of evidence prevents proceedings against the companies themselves, the next best thing is to punish the dealers who act as their agents, under the guise of doing an independent business. If prison sentences were invariably inflicted in such cases the dealers would soon find their miserable business as unhealthy as do the consumers who buy from them.
Some very disreputable, but, nevertheless, highly amusing tricks are invoked by wily practitioners in the Special Sessions to secure the release of their clients. One of the most adroit is to secure adjournments from day to day on various pretexts until the patience of the complaining witness is nearly exhausted. When the case is at last about to be called for trial the lawyer tells his runner to go into the corridor outside the court-room and send in word that some one desires to see the complainant. The complainant goes out to see what is wanted. In the meantime the case is moved for trial, and when his name is called he naturally fails to respond. Theshyster, in a most aggrieved tone, then informs the court that the defendant "is a hard-working man who has already been dragged down to court four or five times," on each occasion being compelled to lose an entire day's pay; that he is the only support of an invalid wife, an aged mother, six children, and an imbecile brother; that the defence is and always has been ready to proceed with the case; that simply in the interests of justice he requests that the defendant be discharged on his own recognizance or acquitted. In many cases this motion is granted and the complainant hurries back into the court-room just in time to meet the defendant making a triumphal exit.
The tears and laughter of the police courts are the tears and laughter of the Sessions. TheMiserablesof Hugo are the miserables of to-day. Jean Valjean, Fantine, and Cosette haunt the corridors of our courts. As well try to paint the sufferings and experiences of mankind in a single picture as the ten thousand yearly tragedies of the Special Sessions in a single chapter.
FOOTNOTES:[22]Misdemeanors Disposed of During the Year 1907.Convicted1,853Acquitted1,045Plead Guilty6,107Discharged502Demurrers allowed1Forfeited457Actions dismissed3,175———Total13,140[23]See note, infra, p. 210.
[22]Misdemeanors Disposed of During the Year 1907.Convicted1,853Acquitted1,045Plead Guilty6,107Discharged502Demurrers allowed1Forfeited457Actions dismissed3,175———Total13,140
[22]Misdemeanors Disposed of During the Year 1907.
[23]See note, infra, p. 210.
[23]See note, infra, p. 210.
CHAPTER VI
THE GRAND JURY
The constitutions and laws of most of the States of the Union provide that no person shall be tried for a felony unless he shall first have been indicted for his offence by a grand jury. The defendant may have been caught in the very act, have freely acknowledged his guilt to the officer who arrested him, have admitted it before the magistrate, and have signed a full and complete confession of his crime in every detail, yet he cannot be placed on trial or his plea of guilty received until a body of twenty-three intelligent, but exceedingly busy, gentlemen, sitting together in a secluded chamber, have solemnly deliberated upon the case. If they agree with the prisoner in his contention that he is guilty they thereupon file a diffuse and perplexing document to that effect, which they have not read, and probably would not understand if they had. The proceeding has cost the county some additional expense and the defendant a day or two longer in jail, and he has still to be tried before a petit jury, where the evidence must be presented again at the greatest length, and where the grand jury's action cannot be considered in any way as affecting the issue. If, on the other hand, the prisoner contends that he is innocent, and yet the magistrate who has heard the case thinks otherwise, the same twenty-three gentlemen, hearing, as a general rule, only the evidencein hisdisfavor, will almost inevitably return a true bill against him, and he will be put to his trial. Of all the features of modern criminal procedure, bar only the office of coroner, the grand jury, or "The Grand Inquest," as it is called, is the most archaic. While without any doubt in thinly populated districts it may still be of value, in crowded cities like New York, where the volume of criminal business is overwhelming, it has in large measure ceased to be either effective or desirable so far as the ordinary run of criminal cases is concerned.
Some States manage to dispense entirely with the services of the grand jury. The prosecutor receives the complaint against the accused directly from the committing magistrate, files an information and puts the prisoner on trial. Truly this would seem both cheap and expeditious.
Among the dusty archives of the Court of General Sessions lie a pile of parchment-bound volumes which contain the earliest minutes of criminal proceedings in the county. The first page of the most ancient of these presents an account of the empanelling of the first grand jury of which any record now remains in New York. It reads as follows:
PROVINCE OF NEW YORK. Att the General Quarter Sessions of our Lord the King held att the Citty Hall in the Citty of New-York for Our Sayd Lord the King, and the body of the sayd Citty and County of New-York, that is to say on Tuesday the 8th day of February, in the Six and thirtieth year of the Reigne of our Sovereigne Lord Charles the Second of England, Scottland, France and Ireland, King, Defender of the faith, & before Cornelis Steenyck, Esqr, Mayrof the sayd Citty, and James Graham, Recorder, Nicholas Bayard, John Inians, WmPinho ... Guyl. Ver Plank, JnoRobinson and William Cox, Esqrs, Aldermen andJustices of the Peace of the sayd Citty and County, Commisionated by Authority undrhis Royal Highness James Duke of York and Albany Lord Proprietrof the Province aforesd.The Grand Jury "which consisted of Nineteen [?],[24]was Called and Sworne According to An Oath Agreed On by the Court, and was as followeth, viztt.:"You Shall diligently Enquire and true Presentmtmake of all Such things and mattrsas shall be giuen you in Charge Or shall Come to your knowledge this Present Servise. The Kings, His Royal Highness Lord Proprietrand this City Councell Yorfallows and yourowne you shall well and Truely keep Secreet. You shall present nothing for Malace or Euill will that you Bare to Any Person, Neither shall you Leaue anything unpresented for Loue, favour, affection Reward Or Any hopes thereof, but in all things that shall Concerne this Present Servise you Shall Present the truth the whole truth and nothing but the truth, According to yorbest skill and knowledge—Soe help you God."Mr. Francis Rumbout was Apoynted foreman.The Recorder ... read to them therCharge whchwas Deliuered in Writeing.
PROVINCE OF NEW YORK. Att the General Quarter Sessions of our Lord the King held att the Citty Hall in the Citty of New-York for Our Sayd Lord the King, and the body of the sayd Citty and County of New-York, that is to say on Tuesday the 8th day of February, in the Six and thirtieth year of the Reigne of our Sovereigne Lord Charles the Second of England, Scottland, France and Ireland, King, Defender of the faith, & before Cornelis Steenyck, Esqr, Mayrof the sayd Citty, and James Graham, Recorder, Nicholas Bayard, John Inians, WmPinho ... Guyl. Ver Plank, JnoRobinson and William Cox, Esqrs, Aldermen andJustices of the Peace of the sayd Citty and County, Commisionated by Authority undrhis Royal Highness James Duke of York and Albany Lord Proprietrof the Province aforesd.
The Grand Jury "which consisted of Nineteen [?],[24]was Called and Sworne According to An Oath Agreed On by the Court, and was as followeth, viztt.:
"You Shall diligently Enquire and true Presentmtmake of all Such things and mattrsas shall be giuen you in Charge Or shall Come to your knowledge this Present Servise. The Kings, His Royal Highness Lord Proprietrand this City Councell Yorfallows and yourowne you shall well and Truely keep Secreet. You shall present nothing for Malace or Euill will that you Bare to Any Person, Neither shall you Leaue anything unpresented for Loue, favour, affection Reward Or Any hopes thereof, but in all things that shall Concerne this Present Servise you Shall Present the truth the whole truth and nothing but the truth, According to yorbest skill and knowledge—Soe help you God."
Mr. Francis Rumbout was Apoynted foreman.
The Recorder ... read to them therCharge whchwas Deliuered in Writeing.
Then follows the quaint record of the first presentment or bill of indictment:
John Robinson,}For Our Lord the Kings sworne toWmCox,}declare to the grand jury wttheyRichard Elliott,}know about the Burgulary HenryDarby Bryan.}Thomassen is Charged with.The Bill Against him was Committed to the Grand Jury wththe Examnconof the witnesses, and the Court adjourned till four in the afternoone.In the Afternoone the Court being opened the IndictmtagstHenry Thomassen was returned by the Grand Jury Billa vera.Henry Thomassen being Called for the Sherriff returnes that he has Broak Prison and made his Escape, and Desires tyme till the next Sessions to Persue him.Ordered That the Sherriff doe make Persuits after the prisonrto haue him att the next session to abide his Tryall. The Grand Jury was dismissed from further Attendance till yenext sessions and yecourt dissolved.
The Bill Against him was Committed to the Grand Jury wththe Examnconof the witnesses, and the Court adjourned till four in the afternoone.
In the Afternoone the Court being opened the IndictmtagstHenry Thomassen was returned by the Grand Jury Billa vera.
Henry Thomassen being Called for the Sherriff returnes that he has Broak Prison and made his Escape, and Desires tyme till the next Sessions to Persue him.
Ordered That the Sherriff doe make Persuits after the prisonrto haue him att the next session to abide his Tryall. The Grand Jury was dismissed from further Attendance till yenext sessions and yecourt dissolved.
It is interesting to observe that on the 13th day of the November following, in the first year of "the Reigne of our Sovereignee Lord James the Second of England, Scotland, France, and Ireland," etc., the "sherriff" having apparently made good "persuits" of Thomassen and effected his capture, the latter was brought to the bar and duly charged:
"For that he not haveing the feare of God before his eyes, but being Lead by the instigation of the divell ... by force and armes the Cellar belonging to and being parte of the dwelling house of William Cox of the Citty of New-Yorke merchant in the night Season, To Witt, between or about the houres of tenn or Eleven of the Clock ... feloniously and burgularly did breake and into the same did Enter with an intent to steale and spoile the goods and Chattles of the said William Cox contrary to the peace of our said sovereigne Lord the King his Crowne and dignity."
"For that he not haveing the feare of God before his eyes, but being Lead by the instigation of the divell ... by force and armes the Cellar belonging to and being parte of the dwelling house of William Cox of the Citty of New-Yorke merchant in the night Season, To Witt, between or about the houres of tenn or Eleven of the Clock ... feloniously and burgularly did breake and into the same did Enter with an intent to steale and spoile the goods and Chattles of the said William Cox contrary to the peace of our said sovereigne Lord the King his Crowne and dignity."
Having pleaded not guilty and put himself upon the county a jury was empanelled who swore:
"That the said Henry Thomassen is guilty of the feleony and burgularly aforesaid in the said inditement above specifyed in manner and forme as above against him is supposed, Therefore it is considered by the Court, that the aforesaid Henry Thomassen be branded on the forehead with the Letter B, and be whipped on the bare back eleven Stripes on the fourteenth day of November instant in the morning by Eleven of the Clock, before the City Hall and pay all costs and charges of prosecution."
"That the said Henry Thomassen is guilty of the feleony and burgularly aforesaid in the said inditement above specifyed in manner and forme as above against him is supposed, Therefore it is considered by the Court, that the aforesaid Henry Thomassen be branded on the forehead with the Letter B, and be whipped on the bare back eleven Stripes on the fourteenth day of November instant in the morning by Eleven of the Clock, before the City Hall and pay all costs and charges of prosecution."
The oath of the grand jurors, their general procedure, and the form of indictment are practically the same up to the present day.
To appreciate fully just what part the grand jury plays in the administration of criminal justice thereader should remember that almost all defendants in criminal cases are brought immediately after their arrest before a police magistrate and given, if they so desire, an exhaustive hearing. If the magistrate thinks there is sufficient cause to believe the prisoner has committed the crime charged against him he is held (if the crime be a felony or a libel) for the action of the grand jury, or if it be a misdemeanor, for whatever court tries such offences,—in New York County the Court of Special Sessions. Of course it is the privilege of the defendant to be admitted to bail, save where the charge is one of murder, until the proceedings against him result either in his final discharge or his indictment, and, as has been said before, once he isheldfor the grand jury he cannot, even if he be a self-confessed criminal, be tried or punished until that body has deliberated upon his case.
The following table shows the number of arrests for felony in New York County each year since 1900, the number of persons so arrested who were "held" by magistrates for the action of the grand jury, and the number of indictments "found" by that body:
It may be of some interest to note how this inquisitorial body is brought into being. Every year a Board of Commissioners, consisting of the Mayor, the Recorder, the Presiding Justice of the Supreme Court, and others, meet and make up a list of a thousand names from which the grand jurors for the year are to be drawn. These names are placed in a wheel and each month fifty of them are drawn out at random by the County Clerk in the presence of one of the judges of the General Sessions. From these fifty names the grand jury of the succeeding month are chosen by lot. Of course the selection of jurors must perforce be made with ostensible impartiality, for a grand jury which was amenable to political influence would render the administration of justice worse than a farce. Such a condition has not been unknown.
Not so very long ago Recorder Goff observed that certain representative gentlemen who had served on the grand jury for years were no longer drawn. In view of the significance of the political situation at that time the fact seemed peculiar and he determined to make a personal investigation. Accordingly at the next monthly drawing the Recorder inserted his own hand in the wheel and found that some of the slips were heavier and of a different texture from the others, and could easily be separated by the sense of touch. The inference was obvious. Undoubtedly the opportunity thus to elect between the sheep and the goats had been made good use of. No excuse for this astounding situation was offered, and all the slips at once were destroyed by order of the court. Later on it was explained that the manufacturer "had not been able to furnish all the slips of the same material."
As but twenty-three grand jurymen are selected each month, only two hundred and seventy-six out of the total number chosen ever actually serve. The judge appoints a foreman, usually a man of some previous experience, and the jury are sworn. The court then delivers a charge and reads or calls to their attention certain sections from the Code of Criminal Procedure. If there is any matter of public notoriety which comes within their purvue, such as crimes against the elective franchise, or insurance, banking, or other frauds, he is likely to dwell upon the necessity of paying particular attention to this variety of offence. The jury then retire to the rooms prepared for them and begin their secret deliberations.
They are now prepared to hear the evidence against all persons charged with felonies or libel, who have been held for their action by the police magistrates. The original papers in all these cases have already been copied under the direction of the district attorney and the witnesses subpœnaed to attend and give their testimony. These subpœnas are served by attachés of the prosecutor's office, commonly known as "county detectives," or, more popularly, "sleuths." It should be observed that the district attorney in fact decides what cases shall be submitted, and prepares the daily calendar of the grand jury, which as a rule does not know in advance what business it is to consider. In addition to this, the district attorney draws, usually in advance, all the indictments.
The indictment may be said to be the most important individual paper in criminal procedure, for upon its sufficiency depends the question of whetheror not a defendant may be tried, or if tried and convicted, sentenced to prison. The general form of these instruments has varied little during many centuries. They are as archaic as the grand jury itself. Originally the draughter of documents was paid by the word, and the more prolix he could be the better it was for him. This fact naturally influenced the form of all legal papers. His sins are still directly visited upon us. Moreover, not the best forms, but the worst are our inheritance, for usually only the sufficiency of the worst is questioned and tested by appeal. If an indictment is not absolutely defective, it is sustained by the higher courts, and having been passed upon and not found wanting, immediately becomes a model for all future draughtsmen. It may fairly be said that the more faulty an indictment is (so long as it be not actually void) the better its chance of immortality.
Probably the simplest indictment which the grand jury can find is one for larceny. Let us suppose that a servant, Maria Holohan, has stolen the teapot of her master, the Hon. Silas Appleboy. The grand jury present an indictment against her in the following terms:
Court of General Sessions of the Peace in and for the County of New York. The People of the State of New York against Maria Holohan.The People of the State of New York, by this indictment, accuse Maria Holohan of the crime of grand larceny in the second degree committed as follows: The said Maria Holohan, late of the Borough of Manhattan of the City of New York, in the County of New York, aforesaid, on the 1st day of April, in the year of our Lord, One thousand, nine hundred and seven, at the Borough and County aforesaid, one teapot of the value of $50, of the goods, chattels and personal property of one Silas Appleboy, then and therebeing found, then and there feloniously did steal, take and carry away, against the form of the statute in such case made and provided and against the peace of the People of the State of New York and their dignity.A. BIRD,District Attorney.
Court of General Sessions of the Peace in and for the County of New York. The People of the State of New York against Maria Holohan.
The People of the State of New York, by this indictment, accuse Maria Holohan of the crime of grand larceny in the second degree committed as follows: The said Maria Holohan, late of the Borough of Manhattan of the City of New York, in the County of New York, aforesaid, on the 1st day of April, in the year of our Lord, One thousand, nine hundred and seven, at the Borough and County aforesaid, one teapot of the value of $50, of the goods, chattels and personal property of one Silas Appleboy, then and therebeing found, then and there feloniously did steal, take and carry away, against the form of the statute in such case made and provided and against the peace of the People of the State of New York and their dignity.
A. BIRD,District Attorney.
This is merely saying that "the grand jury charge Maria Holohan with stealing the silver teapot of Silas Appleboy on April 1, 1907." It is the shortest indictment possible. A complicated indictment may fill hundreds of pages.
Many interesting old indictments are on file among the records of the General Sessions; and if one can judge by the frequency with which the names of divers ungodly and reckless Philadelphians are inscribed upon their pages, "the general reputation" of the City of Brotherly Love for "peace and quiet" must have considerably improved during the past two hundred years.
As a usual thing we find among the papers filed with the indictment the original "information" sworn to by the aggrieved party. Give heed to the "unmerciful conduct" of Mr. William Miller:
CITY OF NEW }YORK ss: }Mathew O'Brien of the City of New York Mariner maketh Oath and Saith that on Sunday night the first Day of November instant he this Deponent being at the Tavern kept by Francis King on the Dock between the Hours of Ten and Eleven of the Clock and having a dispute with the Landlord relative to a French Crown dropped by this Deponent one William Miller who this Deponent heard and believesis Marker to a Billiard Table in Philadelphiaimmediately challenged this Dept. to fight him and stopped this Deponent from going out either at the Door or window altho. he made frequent attempts for that purpose and thereupon knocked this Deponent down, andbeat kicked and wounded him in a desperate and unmerciful manner. This Dept. Saith he also lost out of his pocket the whole of his Money then about him consisting of five Guineas in Gold two Crown pieces and a Note of hand for ten guineas. And further saith not.Mathew O'Brien.Sworn the 1 Day ofNovr. 1704 before meJnoBroome, JustPeace.
CITY OF NEW }YORK ss: }
Mathew O'Brien of the City of New York Mariner maketh Oath and Saith that on Sunday night the first Day of November instant he this Deponent being at the Tavern kept by Francis King on the Dock between the Hours of Ten and Eleven of the Clock and having a dispute with the Landlord relative to a French Crown dropped by this Deponent one William Miller who this Deponent heard and believesis Marker to a Billiard Table in Philadelphiaimmediately challenged this Dept. to fight him and stopped this Deponent from going out either at the Door or window altho. he made frequent attempts for that purpose and thereupon knocked this Deponent down, andbeat kicked and wounded him in a desperate and unmerciful manner. This Dept. Saith he also lost out of his pocket the whole of his Money then about him consisting of five Guineas in Gold two Crown pieces and a Note of hand for ten guineas. And further saith not.
Mathew O'Brien.Sworn the 1 Day ofNovr. 1704 before meJnoBroome, JustPeace.
The grand jury of to-day is the same old grand jury that indicted William Miller; and the cases are piling up,—piling up, at the rate of three, four, five, or even six hundred a month.
What would Mr. Francis Rumbout, who was "apoynted" foreman of that earliest grand jury, have said if he had been obliged to pass upon six hundred cases in a month? The time which could actually be given to the consideration of any particular charge under such circumstances would average aboutsix minutes!
For example, Giuseppe Candido, having been summoned to appear suddenly, finds himself standing in the centre of a large room around which are arranged a semi-circle of inquisitors.
He states where he lives, what his business is, that he knows Michael Angelo Spaghetti, and that the latter cut him in the shoulder in a quarrel over a glass of beer. He is then excused. The grand jury take a vote and Spaghetti is indicted for "wilfully and feloniously committing an assault with intent to kill." Generally only one side of the case is heard. There is very little attempt made to hold the witnesses down to the strict rules of evidence. It is allex parte. "L'évidence at jurie est que cunque chose que serve le partie a prover l'issuepur luy," as Henry Finch put it at the beginning of the seventeenth century.
Once in a great while, if there is something a little peculiar in the charge or in the manner in which the witnesses give their testimony, the jurors may become suspicious and send out for other witnesses or possibly for the defendant himself. Of course he cannot be compelled to testify, but usually he is glad of a chance to explain away the accusation if he can. Perchance the inquisitors refuse to indict. But what a waste of time for twenty-three busy men! And as a rule what trivial matters are brought to their attention!
Most of the cases dismissed are so inherently weak that the district attorney would himself have discharged the defendants of his own motion, but the action of the grand jury saves him the trouble and the odium, if any, and diffuses it among an irresponsible body. The same thing is true of indictments found against influential persons,—the responsibility is with twenty-three, not merely one.
But if the grand jury is to exist at all, it must be constituted, and required to act, in accordance with the law. The indictment is invalid if there be on the grand jury one who has not the proper qualification to sit, or if an unauthorized person be present, or if the evidence is not legally sufficient. Even if the defendant be as guilty as the Father of Sin, he may make a motion to dismiss the indictment on any of these grounds, and, whether the point be well taken or no, the case may in consequence be delayed for weeks. Where the defendant has the means to employ astute and learned counsel, he may retard his trial for weeks, or even months, by questioning theproceedings of the grand jury which found the indictment against him.
For example, when Fire Commissioner John J. Scannel was indicted for conspiracy to defraud the city of New York, his lawyers ferreted out the fact that one of the grand jurors who had found the indictment lived a large portion of the year in the town of New Rochelle. When the defendant was called upon to plead to his indictment the lawyers offered "a plea in abatement," although the law expressly provides that no pleas save of "guilty" or "not guilty" or of "autrefois acquit" may now be entered. They insisted, however, on their right to such a plea and the matter was delayed for a long time. Their plea having been refused they then moved to dismiss the indictment because of the alleged irregularity in having this juror present who spent his summers at the seashore. The determination of this motion took months. How like the situation to that which existed in 1433, when a statute was enacted in order to remedy, if possible, somewhat similar abuses.
" ... When the Grand Jury appears and is ready to pass, a tenant or defendant or one of the petit jury pleads false pleas not tryable by the Grand Jury, and so delays proceedings until this be tried. When this is settled for the plaintiff, another pleads a like false plea since the last continuance; and so each of the defendants, tenants, or jurors, one after another, may plead and delay the Grand Jury; and although all be false and feigned, the Common Law has no penalty. This has caused great vexation and travail to the grand juries, and plaintiffs have been so impoverished that they could not pursue their cases, and jurors are more emboldened to swear falsely."[25]
" ... When the Grand Jury appears and is ready to pass, a tenant or defendant or one of the petit jury pleads false pleas not tryable by the Grand Jury, and so delays proceedings until this be tried. When this is settled for the plaintiff, another pleads a like false plea since the last continuance; and so each of the defendants, tenants, or jurors, one after another, may plead and delay the Grand Jury; and although all be false and feigned, the Common Law has no penalty. This has caused great vexation and travail to the grand juries, and plaintiffs have been so impoverished that they could not pursue their cases, and jurors are more emboldened to swear falsely."[25]
A substantial proportion of the delays in criminal procedure are due to the interminable motions based upon alleged irregularities in the constitution and action of the grand jury, and the insufficiency of indictments. Such delays would vanish with the abolition of that body.
But beyond its general power to investigate specific charges of crime laid before it, the grand jury constitutes the only general inquisitorial body that we have, and its value and services in this respect must not be overlooked. It is highly important that the power should reside in some responsible body to summon witnesses and compel testimony anent suspected offences, conspiracies, and official misconduct. This is precisely what the grand jury did asfar back as 1300, when it acted as a "suspecting" jury. Only through some such power can a rumor of crime, unsubstantial and intangible in itself, be traced to its source and the knowledge of those who can testify as to the perpetration of it secured at first hand.
Acting within its legal powers as an investigating body, the grand jury has a vast power and can be immensely useful to the community, but when it attempts to do more, its action has no more validity and is entitled to no more respect than that of anyother self-constituted inquisitorial body of intelligent citizens.
A belief is quite prevalent, however, among grand jurymen that it is their duty not only to ascertain what crimes have been committed and to find indictments for them, but to act as the censors of the public morals, as watchdogs of the public treasury, as the promoters of legislation, and generally as the conservators of the public interests. This impression is entirely erroneous, and yet it is surprising to what an extent grand jurors imagine that becauseof their office some particular sanctity attaches to their enunciation of opinions in matters that do not concern them.
A grand juror walking in the morning from his house to the corner to take a street-car, accidentally stumbles over a coal-hole cover; he reports it to his associates; many of them know persons who have stumbled over coal-hole covers; they talk the matter over and decide that there should be no coal-holes, since with the abolition of the coal-hole the coal-hole cover also would disappear. They call upon the commissioner of public works to appear before them and testify; upon the street-cleaning commissioner; upon the commissioner of buildings; they learn how many coal-holes there are in the city; what their covers are made of; how they are fastened or are not fastened in place; and some day when the grand jury comes down into court, the foreman arises and states that he has a presentment. The judge on the bench requests him to hand it up; he delivers it to the clerk, who passes it to the judge, who returns it to the clerk and directs him to read it. The clerk stands; the grand jurors stand; the clerk reads:
"To the Honorable John Smith, Presiding Justice of the Court of General Sessions: The Grand Jury of the County of New York respectfully present: Our attention has been called to the large number of unprotected and unguarded coal-holes existing in the County of New York; we have called before us a large number of witnesses and given much time to the taking of testimony relative thereto; we find that in the past year ten thousand persons have lost their lives through falling into improperly guardedcoal-holes, and that the records of the hospitals show lists of over one hundred thousand others who have been severely injured by similar catastrophies; while it is beyond the capacity of the mind of man to comprehend the infinite number of those who have been wounded, bruised, lacerated and contused by similar accidents, to an extent not sufficient to render hospital aid necessary, etc." And such a presentment goes on with its statistics and figures and ends with the recommendation that the legislature pass a certain law, that the aldermen pass a certain ordinance, that certain laws or certain ordinances be repealed, or that other legislative interference be had, or legislative action should be taken, or that some city official or city officials do this or do that, or that some department make such and such an investigation and act thereon in such and such a way, and concludes with the signature of the foreman and secretary of the grand jury. The court then arises, bows to the grand jurors, says: "Gentlemen, we have heard your presentment; I now direct that it be placed on file in this court and that copies thereof be forwarded forthwith by the clerks to the heads of the appropriate departments." And the grand jurors retire, imagining that in some way they have contributed directly to the public weal.
An examination of the long list of presentments on file in the office of the clerk of the Court of General Sessions will show the diversified interests to which the grand jury, acting as we have shown as a merely self-constitutedcensor morum, has devoted its attention and in which it has consumed many of its working hours in the past. So far as we know, no action whatever has ever been takenupon any of these presentments. That at times they may have done some good through calling to the attention of the public press matters which otherwise would not be under scrutiny, may be admitted; but the discussion of them in the press has usually been as ephemeral as the existence of the grand jury by which they were filed; and in general it may be said that the only effect of a grand jury's meddling with these things is to detract from the dignity of its office and the importance of the work which it and it alone can lawfully do.
The lay reader will naturally be led to inquire why this archaic institution which it costs so much time and money to perpetuate, which causes so much unnecessary inconvenience to witnesses and offers so many technical opportunities for delay, which frequently is ineffective and officious, and for the most part concerns itself with the most trivial matters only, should not be abolished, and why prisoners charged with crime whose cases have been properly examined by committing magistrates should not be immediately placed upon their trial.