Read Ebook: The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice by Train Arthur Cheney

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It is the duty of a prosecutor to see that infractions of the criminal law are punished and to represent the public in all proceedings had for that purpose, but, in view of what has just been said, it will be observed that his duties do not necessarily involve familiarity with vice, violence or even sin. The crimes he is called upon to prosecute may be disgusting, depraved and wicked, or they may be, and frequently are, interesting, ingenious, amusing or, possibly , commendable. For example, a man who chastises the foul slanderer of a young woman's character may have technically committed an assault of high degree, yet if he does so in the proper spirit, in a suitable place, and makes the offender smart sufficiently, he deserves the thanks and congratulations of all decent men and honest women. Yet, indubitably, he has committed a crime, although, thanks to our still lingering spirit of chivalry, he would never be stamped by any jury as a criminal.

A prosecutor is frequently asked if he does not find that his experience has a "hardening" effect.

"Why should it?" he might fairly reply. "I have to do with criminals, it is true, but the criminals as a rule are little or no worse than the classes of people outside from which they have been drawn. Their arrest and conviction are largely due to accidental causes, such as weak heads, warm hearts, quick temper, ignorance, foolishness or drunkenness. We see all of these characteristics in our immediate associates. A great many convicted persons have done acts which are not wrong at all, but are merely forbidden. Even where their acts are really wrong it is generally the stupid, the unfortunate, or the less skilful who are caught. For every rogue in jail there are at least ten thousand at large. The ones who escape are wiser and very likely meaner. Last, but not least, a very great number of the most despicable, wicked, and harmful deeds that can be committed are not crimes at all. The fact that a man is a criminal argues nothing at all against his general decency, and when I meet a convict I assume, and generally assume correctly, that to most intents and purposes he is a gentleman. The code which puts one man in stripes and allows another to ride in an automobile is purely artificial, and strictly speaking proves not a whit which is the better man."

Crimes bear no absolute relation to one another. A murderer may or may not be worse than a thief,--and either may be better than his accuser. The actual danger of any particular offender to the community lies not so much in the kind or degree of crime which he may have committed as in the state of his mind. Even the criminals who are really criminal, in the sense that they have a systematic intention of defying the law and preying upon society, are generally not criminal in all directions, but usually only in one, so that taken upon their unprofessional side they present the same characteristics as ordinary and, roughly speaking, law-abiding citizens. The bank robber usually is a bank robber and nothing more. He specializes in that one pursuit. It is his vocation and his joy. He prides himself on the artistic manner in which he does his work. He would scorn to steal your watch and is a man of honor outside of bank-breaking hours,--"Honor among thieves." Often enough he is a model husband and father. So, too, may be your forger, gambler, swindler, burglar, highwayman, or thief,--any in fact except the real moral pervert; and of course murder is entirely compatible on occasion with a noble, dignified and generous character. "There is nothing essentially incongruous between crime and culture." The prosecutor who begins by loathing and despising the man sitting at the bar may end by having a sincere admiration for his intellect, character or capabilities. This by way of defence to crime in general.

Even when the acts to be contrasted are all crimes there is no way of actually discriminating between them except by carefully scrutinizing the circumstances of each. The so-called "degrees" mean little or nothing. If you steal four hundred and ninety-nine dollars out of a man's safe in the daytime it is grand larceny in the second degree. If you pick the same man's pocket of a subway ticket after sunset it is grand larceny in the first degree. You may get five years in the first instance and ten in the second. If you steal twenty-five dollars out of a bureau drawer you commit petty larceny and may be sent to prison for only one year.

If the degree of any particular crime of which a defendant is found guilty is no index to his real criminality or of his danger to society, still less is the name of the crime he has committed an index to his moral character, save in the case of certain offences which it is not necessary to enumerate. Most men charged with homicide are indicted for murder in the first degree. This may be a wise course for the grand jury to pursue in view of the additional evidence which often comes to light during a trial. But it frequently is discovered before the case goes to the jury that in point of fact the killing was in hot blood and under circumstances which evince no great moral turpitude in the slayer. For example, two drunken men become involved in an altercation and one strikes the other, who loses his equilibrium and falls, hitting his head against a curbstone and fracturing his skull. The striker is indicted and tried for murder. Now he is doubtless guilty of manslaughter, but he is less dangerous to the community than a professional thief who preys upon the public by impersonating a gasman or telephone repairer and by thus gaining access to private dwellings steals the owner's property. One is an accidental, the other an intentional criminal. One is hostile to society as a whole and the other is probably not really hostile to anybody. Yet the less guilty is denominated a murderer, and the other is rarely held guilty of more than petty larceny. A fellow who bumps into you on the street, if he be accompanied by another, and grabs your cane, is guilty of robbery in the first degree,--"highway" robbery,--and may get twenty years for it, but the same man may publish a malicious libel about you, and by accusing you of the foulest practices rob you of your good name and be only guilty of a misdemeanor. Yet the reader should not infer that definitions and grades of crime capable of corresponding punishments are not proper, desirable, and necessary. Of course they are. The practical use of such statutes is to fix a maximum sentence of punishment. As a rule the minimum is anything the judge sees fit. Hence you may deduce a general principle to the effect that the charge against the prisoner, even assuming his guilt, indicates nothing definite as to his moral turpitude, danger to the community, or general undesirability.

But we may honestly go much further. Not only are the names and degrees of the crimes which a defendant may have committed of very little assistance in determining his real criminality, but the fact that he has committed them by no means signifies that he is morally any worse than some man who has committed no so-called crime at all. Many criminals, even those guilty of homicide, are as white as snow compared with others who have never transgressed the literal wording of a penal statute.

In a second case, that of Livingston, the complainant had been defrauded out of five hundred dollars by means of the "green-goods" game; but this conviction was reversed by the Appellate Division of the Second Department on the authority of the McCord case. The opinion was written by Mr. Justice Cullen, now Chief Judge of the New York Court of Appeals, who says in conclusion:

Well might the judges regret being compelled to set a rogue at liberty simply because he had been ingenious enough to invent a fraud which involved the additional turpitude of seducing another into a criminal conspiracy. Livingston was turned loose upon the community, in spite of the fact that he had swindled a man out of five hundred dollars, because he had incidentally led the latter to believe that in return he was to receive counterfeit money or "green goods" which might be put into circulation. Yet, because, some years before, the judges of the Court of Appeals had, in the McCord matter, adopted the rule followed in civil cases, to wit, that as the complaining witness was himself in fault and did not come into court with clean hands he could have no standing before them, the Appellate Division in the next case felt obliged to follow them and to rule tantamount to saying that two wrongs could make a right and two knaves one honest man. It may seem a trifle unfair to put it in just this way, but when one realizes the iniquity of such a rule as applied to criminal cases, it is hard to speak softly. Thus the broad and general doctrine seemed to be established that so long as a thief could induce his victim to believe that it was to his advantage to enter into a dishonest transaction, he might defraud him to any extent in his power. Immediately there sprang into being hordes of swindlers, who, aided by adroit shyster lawyers, invented all sorts of schemes which involved some sort of dishonesty upon the part of the person to be defrauded. The "wire-tappers," of whom "Larry" Summerfield was the Napoleon, the "gold-brick" and "green-goods" men, and the "sick engineers" flocked to New York, which, under the unwitting protection of the Court of Appeals, became a veritable Mecca for persons of their ilk.

The "wire-tapping" game consisted in inducing the victim to put up money for the purpose of betting upon a "sure thing," knowledge of which the thief pretended to have secured by "tapping" a Western Union wire of advance news of the races. He usually had a "lay out" which included telegraph instruments connected with a dry battery in an adjoining closet, and would merrily steal the supposed news off an imaginary wire and then send his dupe to play his money upon the "winner" in a pretended pool-room which in reality was nothing but a den of thieves, who instantly absconded with the money.

In this way one John Felix was defrauded out of fifty thousand dollars on a single occasion. Now the simplest legislation could instantly remedy this evil and put all the "wire-tappers" and similar swindlers out of business, yet a bill framed and introduced in accordance with the suggestion of the highest court in the State was defeated. Instead the legislature passes scores of entirely innocuous and respectable acts like the following, which became a law in 1890:

An Act for the Prevention of Blindness

We take honest pride in the protection which our law affords to the indicted prisoner. It is the natural expression of our disapproval of a system which at the time of our severance from England ignored the rights of the individual for those of the community. We touched the lips of the defendant and gave him the right to speak in his own behalf. We gave him an unlimited right of appeal on any imaginable technicality. But while we have been making it harder and harder to convict our common criminals, we have to a very great extent failed to recognize the fact that all sorts of new and ingenious crimes have come into existence with which the law in its present state is utterly unable to cope. The evolution of the modern corporation has made possible larcenies to the punishment of which the law is entirely inadequate. "Acts for the prevention of blindness" are perhaps desirable, but how about a few statutes to prevent the officers of insurance companies from arbitrarily diverting the funds of that vague host commonly alluded to as "widows and orphans"? The careless nurse is a criminal and may be confined in a penitentiary; while perhaps a man who may be guilty of a great iniquity and known to be so drives nonchalantly off in his coach and four.

So-called criminologists delight in measuring the width of the skulls between the eyes, the height of the foreheads, the length of the ears, and the angle of the noses of persons convicted of certain kinds of crimes, and prepare for the edification of the simple-minded public tables demonstrating that the burglar has this kind of a head, the pickpocket that sort of an ear, and the swindler such and such a variety of visage. Exhaustive treatises upon crime and criminals lay down general principles supposed to assist in determining the kind of crime for which any particular unfortunate may have a predilection. One variety of criminal looks this way and another looks that way. One has blue eyes, the other brown eyes. Some look up, others look down. My friend, if you examine into the question, you will probably discover that the clerk who sells you your glass of soda water at the corner drug store will qualify for some one of these classes, so will your host at dinner this evening, so, very likely, will the family doctor or the pastor of your church.

The writer is informed that there has recently been produced an elaborate work on political criminals in which an attempt is made to set forth the telltale characteristics of such. It is explained that the tendency to commit such crimes may be inherited. You are about as likely to inherit an inclination to commit a political crime as you are to derive from a maiden aunt a tendency to violate a speed ordinance or make a "disbursing" noise.

Let some one codify all the sins and meannesses of mankind, let the legislatures make them crimes and affix appropriate penalties, then those of us who still remain outside the bars may with more propriety indulge ourselves in reflections at the expense of those who are not.

FOOTNOTES:

WHO ARE THE REAL CRIMINALS?

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 that while 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 with the 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 at war upon it." He may not be an "outlaw," but he should be one under any enlightened code of criminal laws.

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.

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" 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 be placated, 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.

"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 committed no crime. Summerfield has three years more to serve in Sing Sing.

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, and the "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 is no 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:

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 him To 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 us about? 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.

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 not object 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.

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.

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.

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.

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:

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.

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