FOOTNOTES:
[36] This estimate does not apply to the actions of juries outside of New York County. In other cities and in other states, particularly in rural districts, the percentage of convictions is often shockingly small.
[37] The following figures may be of interest to those readers who are interested in the question of amending the laws governing the sale of liquor:
In the year 1907, out of a total of 1,237 cases which came before the Court of Special Sessions, there were 334 convictions, 7 pleas of guilty, 223 acquittals, 18 discharges and 116 transfers to the General Sessions. During the last eight years, out of a total of 7,416 cases, there were 3,129 convictions, 244 pleas of guilty, 2,143 acquittals, 395 discharges, 361 demurrers allowed and 1,144 cases transferred, on the defendants' motion, to General Sessions, to be tried under indictment. During this period, very nearly half the cases have resulted in convictions.
These cases were tried, as the reader is aware, by a bench of three judges, who decide both law and fact. Compare this record with the result of 91 transfers, taken as illustrative, from the Special to the General Sessions in 1905. Of course, each case had to be taken first before the grand jury. Eighty-four of these cases were summarily dismissed by that body. In the remaining seven instances, indictments were secured. Four of these seven defendants pleaded guilty, two were acquitted by the jury, one was discharged on his own recognizance and none were convicted. In other words, out of the whole bunch of transfers, less than four per cent of the defendants were convicted, as against nearly fifty per cent of convictions in the Special Sessions, in all liquor-tax cases in the last eight years. In the same period, out of a total of 1,241 cases presented to the grand jury, 987 were dismissed by that body. Of the balance, viz., 254 in which indictments were secured, 25 pleaded guilty, 36 were discharged on their own recognizances, in 12 cases the bail was forfeited, and of the 181 cases which actually were tried before juries, 165 defendants were acquitted and 16 were convicted.
In 1906, out of 85 cases transferred, 79 were dismissed, and of the remaining six, 5 defendants were acquitted and 1 was discharged. In 1907 there were 98 transferred and all were dismissed by the grand jury.
The significance of these figures becomes evident when it is realized that the defendants whose cases are thus transferred are those who are the actual holders of licenses. They can afford to pay for the services of counsel, and their conviction is of vastly more importance to the community than that of their hirelings who actually sell the liquor over the bar. The barkeeper who violates the law and is caught, comes to trial in the Special Sessions, either pleads guilty or is convicted, and receives a fine which his employer promptly pays. The owner of the saloon thereupon discharges the defendant from his service and secures another barkeeper. This process can be continued indefinitely. But when the owner himself is caught and convicted, he is either driven out of business or has got to operate under another name. These are the men who apply for and are apparently able to secure transfers of their cases to the General Sessions, although any judge granting such motions is, or, at least, should be, aware of what the practical result of his action will be. The transfer of a liquor-tax case upon the order of the judge sitting in Part I of the General Sessions is practically tantamount to a dismissal of it.
[38] Whatever the actual origin of the number twelve for this purpose there certainly lingered in olden times a feeling that it had a sacred or foreordained character, and in Duncomb's Trials per pais, the following illuminating explanation is to be found:
"And first as to their number twelve: and this number is no less esteemed by our law than by Holy Writ. If the twelve apostles on their twelve thrones must try us in our eternal state, good reason has the law to appoint the number of twelve to try our temporal. The tribes of Israel were twelve, the patriarchs were twelve, and Solomon's officers were twelve. Therefore not only matters of fact were tried by twelve, but of ancient times twelve judges were to try matters in law, in the Exchequer Chamber, and there are twelve counsellors of state for matters of state; and he that wageth his law must have eleven others with him who believe he says true. And the law is so precise in this number of twelve, that if the trial be by more or less, it is a mistrial." (Cf. Thayer's Preliminary Treatise, as cited, p. 90.)
[39] Cf. "Criminal Law and Its Administration," by Robert Earl, 2 Columbia Law Rev. 144.
[40] Many cases result in mis-trials owing to the sickness or death of a single juror. In persecutions which it can be foreseen will be long the swearing of an extra juror would obviate this difficulty. Cf. "Newspapers and the Jury," Clarence B. Smith, 17 Greenbag 223.
THE WITNESS
The probative value of all honestly given testimony depends, naturally, first upon the witness's original capacity to observe; second, upon the extent to which his memory may have played him false; and third, upon how far he really means exactly what he says. This is just as true of testimony in cases of so-called circumstantial evidence as in cases where the evidence is direct, for the circumstances themselves must be testified to by witnesses who have observed them, and the authoritativeness of everything these witnesses have to say must lie in their ability to see, remember, and describe accurately what they have seen.
The subject of perjury is so distinct and far-reaching that it deserves separate consideration. The crime is easy to commit and difficult to establish by competent proof, for it is a highly technical offence and one which juries seem to find it easy to condone. The brother or friend of the accused has but to take the stand and swear to an alibi and lo! he is free. The chance of detection is small in comparison with the immediate benefit secured, while the temptation to swear falsely must, at least in the case of the immediate family of the prisoner, often be overwhelming. Where convictions for perjury are secured heavy sentences are invariably imposed and a wholesome apprehension instilled into the hearts of prospective witnesses, yet the amount of deliberate false swearing in our criminal courts would be inadequately described as shocking. To estimate its quantity would be difficult if not impossible, for it varies with the character of the case and the nature of the defence. When the latter is an alibi the entire testimony for the prisoner is frequently manufactured out of whole cloth, and it is probably not very wide of the mark to say that anywhere from a quarter to seventy-five per cent of the testimony offered by the defendant's witnesses upon the direct point in issue in the ordinary run of criminal trials is perjured.
Yet a careful scrutiny of even the honestly given testimony in such cases gives rise to the belief that the amount of strictly accurate evidence adduced is relatively small, so small as probably to stagger the credulity of the layman and to give the lawyer ground for reflection. It must be borne in mind, however, that this refers to criminal trials only and to testimony of a character closely relevant to the issue.
The first consideration is how far the witness was originally capable of receiving correct impressions through his senses. Naturally this depends almost entirely upon his physical equipment and the keenness and accuracy of his general observation, both of which are usually evidenced to a considerable degree by his appearance and conduct upon the stand.
Children are proverbially observant, and make remarkable witnesses, habitually noticing details which inevitably escape the attention of their elders; while various classes of persons by reason of their professional requirements are, of course, better qualified than others to observe certain facts or conditions, as a gem merchant the shape and cutting of a diamond, or a doctor the physical condition of a patient.
Witnesses are often honestly mistaken, however, as to their own ability to observe facts, and will unhesitatingly testify that they could hear sounds and discern objects at extraordinary distances. Lawyers frequently attempt to induce aged or infirm witnesses to testify that they could hear plainly what was said by the defendant, in an ordinary tone, at a distance, say, of forty feet. The lawyer speaks in loud and distinct tones during the preliminary examination, and then gradually drops his voice to that usually employed in speaking, in the hope that the witness will ask him to repeat the question. This ruse usually fails by reason of the fact that the lawyer, in his anxiety to show that the witness could not possibly hear the distance claimed, lowers his voice to such an extent that the test is obviously unfair.
For similar reasons counsel often call upon such witnesses to state the time by the clock which usually hangs upon the rear wall of the court-room. A distinguished but conceited advocate, not long ago, after securing an unqualified statement from an octogenarian, who was bravely enduring cross-examination, that he "saw the whole thing as if it had occurred ten feet away," suddenly challenged him to tell the time by the clock referred to. The lawyer did not look around himself, as he had done so about half an hour before, when he had noticed that it was half after eleven. The old man looked at the clock and replied, after a pause, "Half-past eleven," upon which the lawyer, knowing that it must be nearly twelve, turned to the jury and burst into a derisive laugh, exclaiming sarcastically, "That is all," and threw himself back in his seat with an air of having finally annihilated the entire value of the witness's testimony. The distinguished practitioner, however, found himself laughing alone. Presently one of the jury chuckled, and in a trice the whole court-room was in a roar at the lawyer's expense. The clock had stopped—at half-past eleven.
The professional actor upon the stage presents the illusion of nature by exaggerating those details of action which ordinarily would escape the attention of the observer.
In daily life we are quite as likely as not to be deceived by what we have seen, and this fact is so familiar to jurors that they are apt to distrust witnesses who profess to have seen much of complicated or rapidly conducted transactions. They want the main facts stated convincingly. The rest can take care of themselves. The extraordinary extent to which the complex development of modern life has dwarfed our powers of observation is noticeable nowhere more markedly than in the court-room. Things run so smoothly, transportation facilities are so perfect, specialization is carried to so high a degree, and our whole existence goes on so much indoors, that it ceases to be a matter of note or even of interest that the breakfast is properly cooked and served, that we are whisked downtown (a little matter say of five miles) in ten or twelve minutes, that we are shot up to our offices through twenty floors in an electric elevator, that there is a blizzard or a deluge, or that part of Broadway has been blown up or a fifteen-story building fallen down. We pass days without paying the remotest attention to the weather, and forget that we have relations. Instead of walking home to supper, pausing to talk to our friends by the way, we drop into the subway, bury ourselves in newspapers, and are vomited forth almost without our knowing it at our front doorsteps. The multiplicity of detail deprives us of either the desire or the capacity to observe, and we cultivate a habit of not observing lest our eyes and brains be overwhelmed with fatigue. Observation has ceased to be necessary and has taken its place among the lost arts.
Compare the old days when a Greek could go to hear the "Œdipus," and on returning home could recount practically the whole of it from beginning to end for the benefit of the wife, who was not allowed to go herself, or even the comparatively recent period when the funeral oration over Alexander Hamilton could be reported in the "Evening Post" from memory.
Much the more difficult problem, however, is to determine how far the witness is the victim of his memory and is unconsciously confusing fact with imagination, or knowledge with belief. It is a matter of common experience that almost all cases are stronger in court than they give the impression of being when the witnesses are first examined in the private office. Time and again, cases which in the beginning have seemed hopeless to prosecute have resulted in verdicts of conviction, and defences originally so fragile as to appear but gossamer have returned many a defendant to his despairing family.
The reason is not far to seek. Witnesses to the events leading up to a crime are acquainted with a thousand details which are as vivid, and probably more vivid, to them than the occurrence in regard to which their testimony is actually desired. It may well be that the immaterial facts are the only ones which have interested them at all, while their knowledge of the criminal act is relatively slight. For example, they know, of course, that they were in the saloon; are positive that the complainant and defendant were playing cards, even remembering some of the hands dealt; are sure that the complainant arose and walked away; have a very vivid recollection that in a few moments the defendant got up and followed him across the room; are pretty clear, although their attention was still upon the game, that the two men had an argument; and have a strong impression that the defendant hit the complainant. In point of fact, their evidence is really of far less value, if of any at all, in regard to the actual striking than in regard to the events leading up to it, for at the time of the blow their attention was being given less to the participants in the quarrel than to something else. Their ideas are in truth very hazy as to the latter part of the transaction. However, they become witnesses, pronouncing themselves ready to swear that they saw the blow struck, which is perhaps the fact. Their evidence is practically of no value on the question of justification or self-defence. But finding, on being examined, that their testimony is wanted principally on that aspect of the case, they naturally tell their entire story as if they were as clear in their own minds upon one part of it as another. Being able to give details as to the earlier aspect of the quarrel, they feel obliged to be equally definite as to all of it. If they have an idea that the striking was without excuse, they gradually imagine details to fit their point of view. This is done quite unconsciously. Before long they are as glib with their description of the assault as they are about the game of cards. They get hazy on what occurred before, and overwhelmingly positive as to what occurred towards and at the last, and on the witness-stand swear convincingly that they saw the defendant strike the complainant, exactly how he did it, the words he said, and that the complainant made no offer of any sort to strike the defendant. From allowing their minds to dwell on their own conception of what must have occurred, they are soon convinced that it did occur in that way, and their account flows forth with a circumstantiality that carries with it an irresistible impression of veracity.
The witness remembers in a large proportion of cases what he wants to remember, or believes occurred. The liar with his prepared lie is far less dangerous than the honest, but mistaken witness, or the witness who draws inadvertently upon his imagination. Most juries instinctively know a liar when they see and hear one, but few of them can determine in the case of an honestly intentioned witness how much of his evidence should be discarded as unreliable, and how much accepted as true.
The greatest difficulty in the trial of jury cases so far as the evidence is concerned lies in the fallibility of the human mind, and not in the inventive genius of the devil. An old man who combines a venerable appearance with a failing memory is the witness most to be feared by either side.
In a recent case a patriarch of some eighty-five years positively, convincingly, and ultra-dramatically identified the defendant as a man who had knocked him down and robbed him of a ring. The identification was so perfect that on the evidence of this aged witness alone the jury convicted the defendant after but a few moments' deliberation. He was sentenced to ten years in State's prison, although he denied vehemently that he had ever seen the complainant. As he was being led from the bar, the real criminal arose among the audience and gave himself up, stating that he could not sit by and see an innocent man receive so great a punishment. The inference was, that had the sentence been lighter his conscience would not have pricked him sufficiently to sanction his act of self-sacrifice. In cross-examination lies the only corrective of this sort of specious testimony, but it would be manifestly inadequate to prevent injustice in such an instance as that just described. Juries must and do take the evidence of most well-intentioned witnesses with a grain of salt.
Both men and women habitually testify to facts as actually occurring on a specific occasion because they occurred on most occasions:
Q. "Did your husband lock the door?"
A. "Of course he did."
Q. "How do you know?"
A. "He always locks the door."
Witness after witness will take the stand and testify positively that certain events took place, or certain acts were done, when in point of fact all they can really swear to is that they usually took place or usually were done:
Q. "Did he put on his hat?"
A. "Certainly he did."
Q. "Did you see him?"
A. "No, but he must have put on his hat if he went out."
And the probability is that the whole question to be determined was whether or not "he" did go out or stay in.
The layman chancing to listen to a criminal trial finds himself gasping with astonishment at the deluge of minute facts which pour from the witnesses' mouths in regard to the happenings of some particular day a year or so before. He knows that it is humanly impossible actually to remember any such facts, even had they occurred the day before yesterday. He may ask himself what he did that very morning and be unable to give any satisfactory reply. And yet the jury believe this testimony, and because the witness swears to it it goes upon the record as evidence of actual knowledge. In ninety-nine cases out of a hundred counsel's only recourse is to argue to the jury that such a memory is impossible. But in the same proportion of cases the jury will take the oath of the witness against the lawyer's reasoning and their own common-sense. This is because of the fictitious value given to the witness's oath by talesmen who attach little significance to their own. "He swears to it," says the juryman, rubbing his forehead. "Well, he must remember it or he wouldn't swear to it!" And the witness probably thinks he does remember it.
Yet who of us could state with certainty the guests at a particular dinner six months ago? Or the transactions of a morning only a week ago, with any accuracy as to time? What the witness frequently does is to discuss the matter with his friends who were present on the occasion in question, and, as it were, form a sort of "pool" of their common recollections, impressions, and beliefs. One suggestion corrects or modifies another until a comparatively lucid and logical story is evoked. When this has been accomplished the witness mentally exclaims: "Of course! That was just the way it was! Now I remember it all!" The time is so distant that whatever the final crystallization of the matter may be, it is far from likely that it will thereafter be shown to be inaccurate by any piece of evidence which will present itself to the witness and his friends. The account thus developed by mutual questions and "refreshing" of each other's recollection becomes, so far as the parties to it are concerned, the fact. The witness is now positive that he did and said exactly so and so, and nothing will swerve him from it, for inherently there is nothing in the story or its make-up that affords any reason for questioning its accuracy. This story repeated from time to time becomes one of the most vivid things in the witness's mental experience. He repeats it over and over, is cross-examined by his own attorney upon it, incorporates it in an affidavit to which he swears, and when he takes the stand recounts these ancient happenings with an aggressiveness and enthusiasm that bring dismay to the other side.
But what a farce to call this recollection! What is this circumstantial romance when it comes to be analyzed? Jones, a friend of Smith the prospective witness, is anxious to establish an alibi, and asks Smith if he doesn't remember meeting him in the club on February 12, two years before. Smith has no recollection of it at all, but Jones says: "Oh, yes, you were going to the theatre with Robinson." Of course, if Jones is so sure, Smith naturally begins to think it is probably the fact, and he does remember vaguely that he and Robinson spent an evening together. So he consults his diary and finds it recorded there that he did attend the theatre on the day in question with Robinson. He does not remember the play, but Robinson recalls that it was "The Chinese Honeymoon," and believes that they dined together first at the club. Smith now thinks he remembers this himself. Then Robinson suggests that they probably went to the theatre in a cab. They look in a file of old papers and find that it was raining. That settles it—of course, they went in a cab. The next question is the hour. They have no recollection of being late, so they must have arrived on time. Well, the paper says the play commenced at eight, and it takes a cab about twenty minutes to get from the club to Daly's Theatre, so it is reasonably clear that they must have started a little before eight. Smith unconsciously is persuaded to believe that if Jones was right about their going to the theatre, he must also have been in the club at the time he says he was there. Both he and Robinson recall that Jones was always hanging round the club two years ago, and as neither can remember an evening when he wasn't there, they decide he must have been there that night. Robinson has a dim recollection that they had a drink together. That is a pretty safe guess and has all the air of verisimilitude. In an hour or two Smith is ready to swear positively from recollection that he dined with Robinson at the club on February 12 two years ago, met Jones, had a drink with him, that this occurred at seven fifty-five, that it was raining, that they took a cab, etc., etc. In its elements this testimony is entirely hearsay upon the only vital point, i.e., Jones's presence in the club at that time, and the immaterial remainder is made up of equal parts of diary, newspaper, play-bill, weather report, usual custom, reliance on Robinson's alleged recollection, and belief in Jones's innocence. He has practically no actual memory of the facts at all, and the only thing he really does remember is that a long time ago he did attend some theatre with Robinson.
The common doctrine of what is known as "refreshing the memory" in actual practice is notoriously absurd. Witnesses who have made memoranda as to certain facts, or even, in certain cases, of conversations, and who have no independent recollection thereof, are permitted to read them for the purpose of "refreshing" their memories. Having done so, they are then asked if they now have, independently of the paper, any recollection of them. In ninety-nine cases out of a hundred it would be absolutely impossible for them really to remember anything of the sort. They read the entry, know it is probably accurate, and are morally convinced that the fact is as thereon stated. They answer yes, that their recollection has been refreshed and that they now do remember, and are allowed to testify to the fact as of their own knowledge. In most instances they do not clearly understand the distinction they are called upon to draw between actual independent recollection and a strong belief on their own part that the fact must be as recorded. It is the exceptional witness indeed who makes any such distinction.
There are also many cases where a defendant has been put in jeopardy because some one, remembering that he intended to do an act, becomes convinced that he has done so, to the extent of being willing to swear thereto. No better illustration of this kind of error could be given than the disappearance of the famous necklace of a prominent resident of Newport during the summer of 1904. There lives hardly a family which has not frequently had such an experience. Some night the husband can't find his pearl shirt-studs. He knows he had them on the evening before. The hue and cry is raised. Maledictions are called down upon Anna or Delia or Nora. But the studs are not in the shirt. Their owner swears he left them there. Then Delia tremblingly suggests that "master dined in his ordinary clothes last evening," and he realizes that it was so late when he got home that at the last minute he decided not to change. Amid great excitement the studs are located in the bureau drawer where they belonged.
The final question to be determined by the juror in regard to the testimony of any witness is how far the latter has succeeded in conveying his actual recollections through the medium of speech and gesture. This necessarily depends upon a variety of considerations. Among these are his familiarity with the English language; inadvertent accentuation of wrong words or of the less important features of his testimony; his physical condition, which in nine cases out of ten is one of extreme nervousness and timidity, if not of actual fear; and a hundred other trifling, but, in the aggregate, material matters.
The most effective testimony is that which is given with what the jury regard as the evidences of candor. It is a familiar fact that the surer a person is of anything, particularly among the laboring classes, the more loudly will he assert its truth. This is so well known to the jury as ordinarily constituted that unless testimony is given with positiveness it might as well not be given at all. Much as it is to be deprecated, an assertive lie is of much more weight with a jury than an anemic statement of the truth. The juror imagines himself telling the story, and feels that if he were doing so and his testimony were true, he would be so convincing that the jury could have no doubt about it at all. Ofttimes a witness leads the jury to suspect that he is a liar simply because he has too strong a sense of the proprieties of his position vehemently to resent a suggestion of untruthfulness. The gentleman who mildly replies "That is not so" to a challenge of his veracity, makes far less impression on the jury than the coal-heaver who leans forward and shakes his fist in the shyster's face, exclaiming: "If ye said that outside, ye little spalpeen, I'd knock yer head off." "Ah," say the jury, "there's a man for you." Just as your puritan is at a disadvantage in an alehouse, and your dandy in a mob, so are the hyper-conscientious and the oversensitive and refined before a jury. The most effective witness is he whom the general run of jurors can understand, who speaks their own language, feels about the same emotions, and is not so morbidly conscientious about details that in qualifying testimony he finds himself entangled and rendered helpless in his own refinements. A distinguished lawyer testifying in a recent case was so careful to qualify every statement and refine every bit of his evidence that the jury took the word of a perjured loafer and a street-walker in preference. This kind of thing happens again and again, and the wily witness who thinks himself clever in appearing overdisinterested is "hoist by his own petard." The jury at once distrust him. They feel either that he is making it all up, or is in fact not sure of his evidence, else, they argue, he would be more positive in giving it.
Most witnesses in the general run of criminal cases have no comprehension of the meaning of words of more than three syllables. It is hopeless to make use of even such modest members of our national vocabulary as "preceding," "subsequent," "various," etc. A negro when asked if certain shots were simultaneous replied:
"Yas, boss. Dat's it! 'Zactly simultaneous! One right after de odder."
The ordinary witness usually says "minutes" when he means "seconds." He will testify without hesitation that the defendant drew his revolver and immediately shot the complainant, illustrating on the stand the rapidity of the movement. When asked how long it took, he will answer: "Oh, about two or three minutes."
A proper medium in which to converse between the lawyer and witness is sometimes difficult to find, and invariably much tact is required in handling witnesses of limited education. The writer remembers one witness who was completely disconcerted by the use of the word "cravat," and at the precise moment the attorney was so confused as not to be able to remember any synonym. The Tenderloin and the Bowery have a vocabulary of their own differing somewhat from that of beggars and professional criminals. The language of the ordinary policeman is a polyglot of all three. Popular writers on the "powers that prey," and dabblers in criminology in general, are apt to become the victims of self-alleged "ex-convicts" and "criminals" who are anxious to sell unreliable information for honest liquor. A large part of the lingo in realistic treatises on prison life and "life among the burglars," originates in the doped imagination of whatever fanciful "reformed" thief happens to be the personal gold mine of that particular author. Thieves, like any distinct class, make use of slang, some of which is peculiar to them alone. But for the most part the "tough" elements in the community make themselves easily understood either in the office or on the witness-stand.
Where the witness speaks a foreign language the task of discovering exactly what he knows, or even what he actually says, is herculean. In the first place interpreters, as a rule, give the substance—as they understand it—of the witness's testimony rather than his exact words. It is also practically impossible to cross-examine through an interpreter, for the whole psychological significance of the answer is destroyed, ample opportunity being given for the witness to collect his wits and carefully to frame his reply. One could cross-examine a deaf-mute by means of the finger alphabet about as effectively as an Italian through a court interpreter, who probably speaks (defectively) seventeen languages.
The reader might perhaps conclude from what has been said that the action of the ordinary jury in most cases must be founded simply upon shrewd guesswork. To a certain degree this cannot be denied, and it is equally true that all the delicate processes of the human mind, and the shadowy presences there of intent, motive, and recollection, can never be demonstrated save by inference. Our machinery is crude indeed. Ofttimes it is like trying to dissect a butterfly with a pair of pincers, and the wonder is that the jury are able to get at the truth as frequently as they do. Hence the necessity for the advocate to assist the jury and remedy their ignorance of the psychology of testimony by his own observation, knowledge, and experience. With the jury keenly alive to all the possibilities of error in the testimony of even the most honest of witnesses, it is for the advocate, the psychologist of the law, to test by his cross-examination and demonstrate in his summing up the precise probative value of the evidence, frequently revealing, below an apparently limpid stream of truth, a turbid bed of conjecture, assumption, belief, hearsay, and inaccuracy of expression, with the rank weeds of perjury growing just beneath the surface.
THE VERDICT
The judge having delivered his charge, and the jury having gathered up their collection of miscellaneous garments and retired to the jury-room, a court officer claps the prisoner upon the shoulder and leads him away to the prison pen. Once the door of the court-room has closed behind him, he is conducted along a narrow corridor to the head of a flight of iron steps at the foot of which stands a keeper. As he descends the stairs the attendant notifies the keeper that the defendant is on his way down: and once the latter is safely below the keeper shouts "All right!" to the officer above, who returns once more to his duties in the court-room. Since there is little danger of an escape the officers sometimes become a trifle lax in the handling of prisoners awaiting the verdict.
An incident recently occurred which shows how much care is necessary in guarding a defendant who confidently expects a verdict of conviction. At the conclusion of a trial for grand larceny the jury went out and the prisoner was conducted to the head of the stairs leading down to the pen. The court officer notified the keeper when the prisoner was about half-way down, and distinctly heard the latter reply "All right!" He thereupon departed. The keeper, however, had not uttered a syllable and was entirely unaware of the return of the defendant, who, being something of a ventriloquist, had answered for him, and had then calmly reascended the stairs, passed through the corridor to another court-room where he had mingled with the crowd, and later had had no difficulty in making his escape first into the main corridor and thence into the street. When the jury presently returned and the prisoner was sent for, his flight was discovered. The court waited patiently while the pens, corridors and finally the entire building were searched, but without disclosing a trace of the prisoner. Meanwhile the jury, who had found the defendant guilty, wondered why their verdict was not received. According to law, however, all the proceedings incident to a trial for felony up to and including the rendition of the verdict must take place in the presence of the prisoner, and in this case his voluntary absence compelled the court to declare a "mistrial." When it became evident that the defendant was unlikely to return, terrible was the humiliation of the court officers, who, for a few days, lived in terror of losing their official heads, if not of being imprisoned and fined for contempt.
The prisoner's wife, however, had been present throughout the trial in the court-room, although, as his escape was entirely extemporaneous, she was as much surprised as anybody else at his departure. After the discharge of the jury several detectives followed her to her home in Hoboken. Late in the evening she left the house in response to a message and met her husband in a deserted part of the city, where he was recaptured. He was immediately brought back to New York and his case placed once more on trial; but this time he pleaded guilty. From a dramatic point of view it is to be regretted that the jury at the first trial had not found a verdict of "not guilty."
As the first talesman who happens to be selected for the jury in any given case becomes ipso facto its foreman, amusing incidents sometimes occur owing to his inexperience. Where an indictment contains but a single count, as, for example, "receiving stolen goods," the foreman's answer to the clerk's interrogation of, "Do you find the prisoner guilty or not guilty," is, of course, simple enough; he answers "guilty" or "not guilty," or "not guilty, with a recommendation to the mercy of the court"; but where the indictment contains either a number of counts set forth separately, or the crime charged is of such a character that the jury may find in a lesser degree, some confusion is apt to result. If, for example, a defendant is being tried for murder in the first degree the court is obliged to submit, under the law, not only murder in its first degree, but the lesser crimes of murder in the second degree, manslaughter in the first degree, manslaughter in the second degree and occasionally assault in one or more degrees. Sometimes the foreman forgets entirely what he was going to say and stands staring, open-mouthed, until the clerk comes to his assistance.
In a case where the court charged the jury that they could find the defendant guilty of murder, manslaughter, or assault, or else acquit him on the ground that he was justified in taking the life of the deceased, the jury retired and deliberated for many hours. As the time dragged on the defendant became convinced that he was to be convicted. Late at night the jury informed the court that they had agreed upon a verdict. They filed back and took their places in the box. The defendant was arraigned, pale with apprehension. The clerk arose.
"Gentlemen of the jury," said he, "have you agreed upon a verdict?"
"We have," replied the foreman.
"The jury will rise," continued the clerk. "The defendant will rise." The jury and prisoner arose.
"Jurymen, look upon the prisoner. Prisoner, look upon the jury," continued the clerk, and turning to the foreman, "How say you? Do you find the defendant guilty or not guilty?"
"Guilty," stammered the foreman.
The defendant uttered a loud groan and collapsed into the arms of the court attendant beside him.
"Of justifiable homicide," hastily added the inexperienced foreman. In spite of the laughter of the rest of the jurymen and the smiles of the court it took some moments to convince the unnerved prisoner that he was not to be electrocuted.
In a recent case the jury returned a verdict of "Pretty nearly guilty!"
A very considerable proportion of jury trials in criminal cases result in disagreements. The question of reasonable doubt is always a troublesome one, and even where all the jury believe the defendant guilty, as likely as not half of them will not think that they are convinced beyond what they regard as a reasonable doubt. On this account many jurors are of the opinion that what is known as a Scotch verdict, or a verdict of "Not proven," should be allowed. The writer has been informed on good authority that in one of the recent trials of Nan Patterson eleven of the twelve jurymen believed her guilty, but that only six of them were of the opinion that they were so convinced beyond a reasonable doubt. Had the Scotch verdict been permissible it would probably have been rendered in this case. Inasmuch as the ordinary American petit jury are apt to go outside the evidence and to decide the issue, in some degree at least, on evidence which properly they should not consider at all, no further loopholes of escape from rendering a verdict one way or the other should be afforded them. Had we the Scotch verdict, instead of disagreeing and giving the prosecution the opportunity to try the defendant over again, juries would probably make use of it in all cases where they disliked to render a verdict in accordance with the evidence.
Juries frequently incorporate with the verdict of guilty the words "with a recommendation to mercy." Of course this is no part of the verdict and has no legal effect whatever. It is merely a formal expression of opinion that in the eyes of the jury it would be well for the court to treat the defendant with leniency. The judge usually comments upon this recommendation and intimates that he will give it consideration in imposing sentence. It is not likely, however, that in any case which has appealed to the sympathies of the jury the court will not be equally moved. In point of fact, did juries fix the sentence in cases where they found the defendant guilty it is exceedingly probable that they would be much more severe than the bench. Most jurors, however, are under the impression that "a recommendation to mercy" is an integral part of their verdict and it frequently does yeoman's service by inducing a juror or two who have a lingering feeling that perhaps the crime has not been as fully proven as it might have been, or that maybe the defendant is not guilty after all or should be given another chance, to agree with the majority of their fellows. The writer had one panel of jurors in the General Sessions which, having returned a verdict of guilty "with a recommendation to mercy" in the first case tried during the month, affixed the same recommendation to each verdict which they rendered thereafter. It is his impression that they convicted every prisoner who came before them, so that the recommendation must in many cases have seemed to the hapless defendant but a hollow mockery. There is even a traditional case where a jury in a murder trial found the defendant guilty of murder in the first degree, "with a strong recommendation to the mercy of the court."
Verdicts of murder in the first degree are comparatively rare and are, practically, only to be expected when the circumstances surrounding the crime are peculiarly atrocious. It is also a well-known fact that juries rarely find a verdict in a degree of crime higher than the one for which the majority vote upon the first ballot. For example, if on the first ballot the jury stands five for murder in the first degree, six for murder in the second degree and one for manslaughter only a miracle could account for a final verdict of murder in the first degree. In other words, a jury will almost never work up their verdict, argument invariably tending to work them down to a lesser degree. Most cases of what is technically murder in the first degree result in verdicts of murder in the second degree, and most cases of murder in the second degree result in verdicts of manslaughter.
The jury having rendered a verdict of conviction, say of murder in the first degree, there remains to counsel but one last act which he can perform in his client's behalf, namely, to demand that the jury be polled. This must be done upon the requirement of either the defendant or the People, in which case, "they must be severally asked whether it is their verdict; and if any one answer in the negative, the jury must be sent out for further deliberation." The writer has never heard of a jury which, on being polled, showed a disagreement. It is not unusual, however, as the roll is called to see various members of the jury look apprehensively towards one of their number who has evidently put up in the jury-room a hard fight for a lesser degree and may be "of the same opinion still." A prosecutor always breathes more freely when the ordeal is over, and probably experiences during the process very much the same kind of emotion as that felt by the bride-groom at the altar as he listens apprehensively at the conclusion of the clergyman's announcement that "if any one has any just cause, etc., let him now speak or forever hold his peace."
Defendants who are convicted rarely show any emotion when receiving the verdict. This is of course to be expected, as the defendant, if guilty, has probably been anticipating that he will be so found by the jury, and has steeled himself for the occasion, while an innocent man is practically never convicted. Hundreds of defendants, however, who confidently expect to be convicted, are acquitted through the leniency of the jury. Their exclamations of gratification and joy upon such occasions are frequently most amusing. Such a defendant not seldom thanks the court and the jury for their kindness, and in some cases his thanks are certainly due to those who have violated the letter and spirit of their oaths in acquitting him. The writer recalls one old colored mammy who, on being acquitted of stealing some wash which had been confided to her care, curtsied in all directions and remarked, "Ah t'anks your honor, an' Ah t'anks your Honors, gen'lemen ob de jury, one an' all." An Irishman, who had been but a few weeks in this country, and who had been acquitted on the charge of stealing a truck and horse which had been left in his charge, on learning of his acquittal invited the jury collectively in a loud voice to come across the street and have a drink.
Before the jury is discharged, however, and the prisoner remanded to the Tombs for sentence, he is required to answer certain questions relative to his age, parentage, education, previous convictions, etc. If the spectator is fortunate enough to be able to forget the solemnity of what has taken place, he may well be entertained, not only at the answers given by the defendant, but at the method of conducting the examination by the court officer. The clerk takes the indictment and, with a large rubber die, stamps upon it the statement that the defendant, on being arraigned, made answer to the questions put to him, as follows:
Counsel Assigned ............................................
Sex .........................................................
Age .........................................................
Nativity ....................................................
Residence ...................................................
Occupation ...................................................
Married or Single ............................................
Education ....................................................
Religious Instruction ........................................
Parents Living ...............................................
Temperate or Intemperate .....................................
Before Convicted .............................................
Of course, the court officer who repeats the prisoner's answers to the clerk is usually so familiar with the order of the questions as to render any vocal action upon the part of the clerk unnecessary. The officer stands by the prisoner and, leaning over, asks in a low tone how old he is, if his parents are living, if he is addicted to the use of liquor, if he has had any religious instruction, or if he has been previously convicted of crime. It is really the officer to whom the defendant makes his replies, the former repeating them in a loud voice to the clerk. In some courts the clerk does not put the questions at all, but the officer merely gives in their order the answers of the defendant. For example, in Part II, upon the rendition of a verdict one will see Mr. Samuel Wolff, the clerk, stamp the indictment, dip his pen in the ink, turn to the officer of the court and say, "All ready?"
The officer answers, "Yes."
A subdued conversation then takes place between the prisoner and the officer, who raises his voice and answers:
"Twenty-nine;—U.S.—No;—None;—Single—Yes;—No.—" All of which answers are properly recorded opposite the appropriate questions upon the indictment.
All this is a little startling to the juror who has rendered his first verdict. He has no idea at all of what is going on. The officer returns, if possible, a categorical reply to each question, but frequently prisoners make statements which are of course irrelevant in character and are not incorporated in the answer. At times it requires quite a little cross-examining on the part of the officer to determine whether or not the defendant is temperate or intemperate, or whether he has really ever been convicted of crime theretofore. Any one who could overhear these colloquies would be well repaid for his trouble. The writer knows of one officer of a somewhat waggish disposition who, when he approaches the interrogation directed towards the prisoner's usual habits, first puts the question in its proper form:
"Are you temperate or intemperate?"
The prisoner, who perhaps does not understand these terms, or, at any rate, is a little doubtful himself as to his usual condition, stammers and hesitates. The officer, dropping his voice, remarks, confidentially:
"Say, do you ever take a drink?"
"Sure," says the defendant, without hesitation.
"Moderate," shouts the officer to the clerk.
A certain element of humor enters into the situation when a defendant convicted of bigamy is asked if he is married. The answer "Yes" is generally accompanied by an irrepressible grin.
There used to be an old court officer in one of the parts of the General Sessions a few years ago who was a loyal son of Old Erin and a devout member of the Roman Church.
On one occasion, a defendant having been found guilty he was arraigned at the bar for the purpose of having his pedigree taken, old Flaherty officiating. The conversation which ensued may be worth preservation.
Flaherty to Defendant: "Say, me friend, where was ye born?"
Defendant to Flaherty: "Lowell, Mass."
Flaherty to Clerk: "Lowell, Mass."
Flaherty to Defendant: "Where do yez hang out?"
Defendant: "Nowhere."
Flaherty to Clerk: "Ain't got none."
Flaherty to Defendant: "Phat do yez do fer a livin'?"
Defendant: "Nothin'."
Flaherty to Clerk: "Ain't got none."
Flaherty to Defendant: "Are ye married?"
Defendant: "No,—thank God."
Flaherty to Clerk: "He says 'No, thank God!'"
Flaherty to Defendant: "Ever receive any previous religious instruction?"
Defendant: "How's that?"
Flaherty to Defendant: "Phat's yer religion?"
Defendant: "Don't believe in nothin'."
Flaherty to Clerk (loudly): "PROTESTANT!"
For a convict to give under oath false answers to the questions thus put to him is, of course, perjury. It is frequently of no small importance for a prisoner to conceal his identity, or at least his record. But if a Bible is thrust into his right hand he is loath to put himself within the statute governing false swearing, for the chances are all in favor of his being found out, in which case his punishment will be severe. The writer recalls a dramatic incident of a man who endeavored to prevent his past offences coming to the knowledge of the judge. He bore, however, all the ear-marks of an ex-convict, and the court became suspicious that all was not right. He had just been convicted of stealing a purse. The jury had remained out until eleven o'clock at night and the court-room was practically deserted. The prisoner was placed before the bar. We will call him James Graham. The clerk put the usual questions and then inquired:
"Have you ever been convicted before?"
"No," answered the prisoner in a low voice.
There was a long pause, and then the judge, looking down intently from the bench, said:
"Graham, is that the truth?"
"Yes, sir," replied the prisoner.
"Are you quite sure?" insisted the court.
"Yes, sir."
"Swear him!" ordered the judge.
The officer started to place the Bible in Graham's hand, but he refused to take it.
"No, no, I can't!" he whispered. "I can't—I—I—it's no use!" he added.
"When were you convicted?"
"I served six months for petty larceny about five years ago."
"Is that all?"
"Yes, sir."
"Are you sure?"
"Yes, sir."
"Quite sure? Think again."
"Yes, sir."
"Swear him!"
Again the book was placed in his hand and again it was declined.
"I served three years in Charlestown for larceny, and was discharged two months ago."
"Is that all?"
"O God! Isn't that enough?" suddenly groaned the prisoner, breaking down completely. "No, sir, it isn't all! It's always been the same old story! Concord, Joliet, Elmira, Springfield, Sing Sing, Charlestown—Yes, six times. Twelve years!—I'm a jail bird!"
Before rendering a verdict the members of almost every jury take the opportunity in the jury-room to stretch their legs and satisfy their craving to smoke. Juries rarely return in less time than it takes to burn a cigar. While this may torture the prisoner it would seem a fairly earned perquisite on the part of his judges. Some jurors are instinctively, and a few are actually lawyers. These rarely add much to the general usefulness of the panel. Jurymen not infrequently seize the opportunity to display their oratorical ability, since their audience cannot get away and must perforce hear them out. The writer recalls one instance where in a well-known extortion case an enthusiastic talesman made a digest of the speeches of counsel for the defence and for the prosecution and then prepared a long harangue of his own which he committed to memory. When the jury were safely locked into their council chamber this self-sacrificing gentleman arose and began, "In this case the defence claims, thus and so." After he had repeated practically in toto the argument of the defence he got his second wind and continued, "On the other hand, the People assert, thus and so." At the end of about an hour he had reached his own humble views of the case, which he expanded at great length, ending with a peroration in which the great American eagle could be heard screaming all the way into the court-room. The jury, probably out of sheer fatigue, took but a single vote and found the defendant guilty. The orator to this day claims that he "did it."
While the deliberations of the jury are theoretically secret, the rooms in which they are confined are often so located with reference to corridors, retiring rooms, etc., that officers on duty, turnkeys, and other persons are occasionally made involuntary eavesdroppers. It is said that in other and more barbarous times interested parties would lurk near by in order to get an idea of how the wind was blowing. There is a story for which the writer assumes no responsibility that ten or fifteen years ago a noted prosecutor was accustomed to follow the jury out, climb upon a ladder, and listen at the transom to their arguments and comments; and there is also a report, which perhaps is but a fable, that there was a knot-hole in the jury-room of the old "Brownstone" building from which the plug was regularly removed to allow of similar surreptitious observations. The rumors which come from the direction of the jury-room are quite as apt to be incorrect as accurate, and neither prosecutor nor prisoner really knows what is the result of the jury's deliberations until the foreman's word ends the suspense.
Many strange and amusing stories are told of how certain historic verdicts in criminal cases were reached. Perhaps the most famous is that of the trial of the first indictment which followed the robbery of the Manhattan Bank. The case was tried before Judge Cowing in the General Sessions, and after a speedy, but conclusive, trial the jury retired. A vote, which was immediately taken, showed that they stood eleven to one for conviction. The twelfth juror was obstinate and no progress whatever was made by the others. The situation remained unchanged during the night and up to twelve o'clock of the next day, which happened to be a Saturday. At that hour Judge Cowing sent word that he was going downtown and would not return until two o'clock. In some way the jury got the idea that the judge intended to lock them up until Monday if they did not agree. They accordingly asked for five minutes more before the judge left the building. This was granted and at the end of that time they announced that they had agreed. Into court they filed.
"Have you agreed upon a verdict?" asked the clerk.
"We have," replied the foreman.
"How say you? Do you find the defendant guilty or not guilty?"
"Not guilty," answered the foreman defiantly. The defendant, who was as guilty a man as ever was brought to the bar of justice, almost collapsed from astonishment, and the judge gave the jury a frank piece of his mind in no uncertain language. Rather than suffer any further inconvenience this high-minded jury had simply faced about and voted to acquit.
There are some cases, however, where one strong-minded and able juryman has swung the whole body to his way of thinking after a vote of eleven against him, and this is as true of verdicts of conviction as of acquittal. Few jurors, however, can, as a rule, stand out against the assertions and incriminations of their fellows. Most of them are easy-going and like to be led by a strong hand. A positive stand taken by a fellow talesman will often bring them to his views when they are really inclined to be in doubt. If the flag is raised they will quickly rally to it, but they will never reach the point where they would be willing to elevate it of their own accord. An experienced and highly intelligent juryman once told the writer that the first thing he always did when the jury had retired, whether he was the foreman or not, was to stand up at the end of the table and say:
"Gentlemen, this man is guilty [or innocent, as the case might be]! The sooner we say so the better, but my mind is made up."
In this way he invariably secured at the outset the support and co-operation of a majority of the jury.
In capital cases where the prisoner's life hangs in the balance there will always be found in the first vote a few blank ballots. These are cast, as the expression is, "to provoke discussion." Shrewd old jurors, realizing that no man can convince another half so well as that other can convince himself, will often vote for "not guilty" in order to get their fellows worked up to a white heat of intellectual frenzy in the effort to bring them over. There is many a wily Odysseus among the variegated personalities of a jury.
"My first jury trial," said one of the judges of the General Sessions recently, "occurred when I was a very young man and had just been admitted to the bar. It was my initial appearance in a court of justice. However, I threw out my chest and tried to make the jury think I was an old hand at the business, by objecting to almost every question and taking exceptions by the score. My client was an old woman who had been illegally ejected, or who claimed to have been illegally ejected, by the agent of a tenement house which belonged to Mr. W.D. Sloane. Of course, I don't suppose Mr. Sloane ever heard of the incident, but I was suing him for damages and put in my case with a great deal of vigor. The lawyer for the defence was a big, good-natured man who did not seem to care very much which way the jury decided the case. The judge charged and the jury retired. They were gone a very long time. At last an officer appeared with a slip of paper. The judge beckoned the lawyer for the other side and myself to the bench and showed us the jury's message.
"'We want a bottle of whiskey and a box of cigars,' it read, and was signed, 'William Smith, Foreman.'
"'Let 'em have them!' remarked the good-natured lawyer. 'I don't blame 'em for being thirsty.'
"'I don't know,' I replied. 'It does not seem to me that whiskey would help them to decide the facts any more clearly!'
"'Of course, if Mr. —— does not agree to it!' exclaimed the lawyer, 'I have nothing to say!' Then he turned away and the judge whispered in my ear:
"'Young man, I should advise you to let these refreshments go into the jury-room. You have not had a great deal of experience and probably do not appreciate the effect which a denial of their request may have upon the jurors. Take a quiet tip from me and let the whiskey go in.'
"'All right, your Honor,' said I. 'I bow to your Honor's long acquaintance with men and your experience at the bar—of justice.'
"Well, the whiskey and cigars went in, and I could see as the officer brought them through the court-room that the whiskey was the very best King William and the cigars were Havana perfectos. I wondered with some misgivings who was paying for them.
"In about an hour the jury filed in flushed and happy and rendered a verdict in favor of Mr. Sloane. Some time afterwards I happened to be in the court-room and learned from the officer that the jury had stood eleven to one in my favor for over three hours. The foreman, the only one against me, had finally remarked that he was thirsty and had offered to treat the rest of the jury. In less than an hour after the refreshments had arrived the other eleven came over and decided that Mr. Sloane was in the right."
Another judge tells of an experience of his when serving upon a jury in Ireland. The case over they retired to the jury-room and found that they stood eleven to one for acquittal, but that one happened to be a very complacent old gentleman in a billy-cock hat who, with his chin resting upon the head of a thick bamboo cane, announced defiantly that he was ready to stay there as long as anybody. The hours dragged slowly by, evening drew on, and still the old gentleman obstinately held out. The jurors disposed their weary bodies as best they could along the floor and the hard benches, and prepared to make a night of it. From time to time the old gentleman would contemplatively suck the head of his bamboo cane. Finally he fell fast asleep and the cane fell heavily to the floor. Then one of the jurors picked it up and found to his surprise that it was hollow and filled with good old Irish whiskey. They passed the cane around, relieved it of its contents, and then awoke the owner. Slowly he lifted the cane to his mouth, sucked ineffectually for a moment, looked at his watch and then arose with the announcement:
"B'ys! I'm afther changin' me moind!"
A recent trial, Donohue vs. The New York, New Haven and Hartford Railroad, illustrates the vagaries of individuals which may seriously interfere with the course of justice. The judge had been particularly careful to elucidate the point of law which the jury were to apply to the facts as they found them. The jury unanimously agreed that the facts were thus and so, but one of their number refused to follow the law as laid down by the court. At first he insisted that the judge had charged differently, but it soon became obvious that this was not the true cause of his indecision.
"Well," exclaimed the foreman at last, on the verge of distraction, "should we go back into court and the judge should instruct you that what we say is the law, would you find a verdict then?"
The juryman hesitated and then announced with deliberation:
"No; not until I had consulted my attorney."
A frankly unscrupulous member of the criminal bar tells the following story at his own expense. His client was indicted for murder and on the evidence apparently guilty. The lawyer's only chance, as he thought, lay in trying to "work it down" to manslaughter, which would get his client off with twenty years' imprisonment. Accordingly he told his clerk to become friendly with the jurymen, treat them to drinks, and see what he could do. The clerk reported that he had become very thick with the twelfth juror, an old Irishman, who had promised to "hold out for manslaughter." The lawyer told his client, and both ceased to worry about the result, as death no longer stared the prisoner in the face. The jury retired and remained out twenty-three hours. At the end of that time, tired, dishevelled, exasperated, they filed into court and returned a verdict of manslaughter. The lawyer warmly congratulated his client. As the jury were separating the old Irishman leaned over to the lawyer and exultantly whispered:
"Bedad, I had th' divil av a time av it! Elivin o' thim were for lettin' him go entirely!"
THE SENTENCE
"What have you to say why judgment of the court should not be pronounced against you according to law?"
With these words begins the final chapter of the convict's history. He has been arraigned for the last time at the bar of justice, after a jury of his peers has declared him "guilty," and now awaits his sentence.
The judge who presides at the trial of a criminal case does but begin his labors when he receives the jury's verdict. If he be a man of sensibilities the strain of a trial is as nothing compared with the responsibility of determining whether the defendant shall be let go free under a "suspended" sentence or ordered to prison. No one appreciates the horror of prison life or its effect upon the individual better than the judge himself, and he may pass many a sleepless night before sentencing a man whose circumstances and whose years suggest the possibility of reformation.
Where the defendant has been found guilty of murder in any of its degrees the judge is, of course, relieved of the responsibility of determining the sentence, which is fixed by law, and the interrogation of the clerk must seem but a mockery to the prisoner, who knows that, whatever he may say in his own behalf, the judgment of the court will be the same. For this reason counsel rarely address the court upon the sentence in such a case, but sometimes the prisoner himself seeks a last public opportunity to assert his innocence or proclaim his repentance.
On Saturday morning, March 21, 1829, Richard Johnson, convicted of the murder of Ursula Newman, was brought to the bar of the New York Court of Oyer and Terminer, and was asked what he had to say why judgment of death should not be pronounced against him according to law. In the faded ink of the records of the General Sessions is inscribed the following:
The prisoner replies:
If your Honor please. I am asked what I have to say why judgment of death should not be pronounced against me? To this I reply—To the judgment of the law, nothing. A jury of my country has pronounced me guilty; and there remains no discretion with the court but to pronounce upon me the sentence of the law. But to the judgment of the world I have much to say. I have been convicted of a crime the bare recital of which causes humanity to shudder. And it is a duty which I owe to myself while living, and to my memory when dead that the circumstances of my offence should be fully explained. Before entering into the detail, I must take this public opportunity in the name of that omniscient and all-merciful Being who will hereafter pronounce his judgment, alike upon my judges & myself, of disclaiming any knowledge of the transactions of that fatal 20th of November. I do not mean to impugn the decision of the jury; the movements of the mind were beyond their power to penetrate; and hard as is my fate I humbly bow to their verdict. I cannot here enter fully into the details of my intimacy with the unfortunate cause of my present awful situation. Duped and betrayed as I have been into sorrow and bitter despair, and lastly involuntary crime I am unwilling while living to indulge in unavailing reproaches. In life the deceased was the object of my tenderest affection. An affection that her own unkind conduct seemed to inflame, and that, baffled in its honorable purpose—expelled reason from her throne, and, in its absence, led to the commission of the offence, for which I am now to satisfy the offended community by my own life. Was I conscious of any moral guilt, at this result I should not repine. Accustomed throughout my life to respect the law, I have not now to learn that the blood of the murderer is alike a propitiating sacrifice to the laws of God and man. Convicted of the legal crime I know my fate. For the moral offence I have to answer to my conscience and my God; and that innate monitor tells me, that I stand before this court and this community a legal but not a moral murderer. To my counsel who have so ably though vainly made my defence, I tender my warmest thanks. Of the court I have but one request to make, that the period allowed me to prepare for my impending fate may be as long as the law will permit.
The sentence of the court was then pronounced.
Compare this solemn and thrilling declaration with what occurred upon the sentence of Dr. Carlyle W. Harris, convicted of the murder of his girl-wife by the administration of morphine capsules which he compounded and furnished to her. He had married her secretly under an assumed name and in all probability had never intended to recognize her as his wife. Events finally rendered it impossible for him to conceal the marriage longer, and, realizing this, he procured for her the medicine which caused her death. Harris was a gentleman,—or rather he was a very debonair, nonchalant, and brazen imitation of one. Throughout his trial he had preserved an absolutely unruffled exterior, chatting affably with counsel and court attendants, and receiving the verdict with undiminished equanimity. On the day set for his sentence he came into court with the easy and gracious manner of a young man paying an afternoon call. He was arraigned at the bar and the Recorder [Smyth] proceeded to rehearse the history of his terrible crime and stigmatize the loathsome character of his act. Harris listened politely, and apparently endeavored to show a considerable interest in his remarks. Then the Recorder made some slight error in giving a date.
"Pardon me, your Honor," interrupted the blithe defendant, "it was the eighteenth and not the nineteenth——" and corrected him.
The Recorder frowned and replied with dignity.
"That is a matter of slight importance!"
"I beg your Honor's pardon," returned Harris flippantly; "you see, I have never been sentenced to death before, and am not as familiar with the procedure as might be."
Unpleasant as is the duty of the prosecutor who is obliged to move that the sentence of death be pronounced, it is less terrible than listening to the few simple but hopeless words that doom a convict to life imprisonment. The murderer must die; but it will soon be over. The ghost of his victim will in a few weeks cease to haunt his dreams. But the "lifer"! Who can picture the horror of a life-time of repentance or of mocking remorselessness? "Civilly dead," he is doomed to drag out his weary years in an earthly tomb, a silent, forgotten creature, numbered like a human specimen, enduring all the tortures of purgatory until the end seems a far distant haven of oblivion. The court-room echoes, like the empty future of the white-faced prisoner, to the dull fall of the words upon his barren soul—"for the rest of your natural life." The listener shudders. "God grant that it be short!" he murmurs, then looks away.
Of course, in the seventeenth century and early in the eighteenth all felonies were punishable, not only in England but in America, by death. When the severity of punishment began to be abated and imprisonment substituted for the extreme penalty, all sentences were for a fixed and definite term, and the only way that the convict could obtain release or secure the modification of his sentence was by pardon from the supreme executive authority of the country.
Sometimes a ray of sunshine illumines the dreary pages of these parchment-bound volumes, the stiff phraseology of the crabbed entries failing to obscure it. For example, on Monday morning, March 29, 1784, "The Court met pursuant to adjournment" and was "opened by proclamation." The grand jury came into court and presented an indictment against one Sylvia, a negro slave, "for stealing monies from Alexr Johnson."
"The prisoner being set to the bar and arraigned, did plead guilty, and for trial put herself upon God and the country." Her case was immediately moved. One witness, the Alexander Johnson mentioned, testified.
"The jury without going from the Bar say, that they find the prisoner at the bar Guilty of the Felony whereof she stands indicted...."
Just one week later, Sylvia, now a convict, "was called to the Bar, for judgment, and it being demanded of her in the usual manner what she could say for herself why judgment of Death should not now pass against her, according to law, she did produce and plead a pardon of the People of the State of New York, under the Great Seal, bearing test the 31st March, 1784, which was read and allowed, and the Prisoner discharged."
Sylvia was undoubtedly a valuable piece of personal property—valuable enough evidently to make it worth her master's while to urge his claims upon the Governor for clemency.
White offenders did not always fare as well. But for them in the colonial times still occasionally remained that quaint old plea of "benefit of clergy." This lingered on as late as 1784, when the record shows that one John Cullen, having been convicted of forgery,
"ON MOTION of Mr. Attorney-General ... was sent to the Bar for judgment, and it being demanded of him in the usual form what he could say for himself why judgment of death should not pass against him according to Law, he prayed the Benefit of Clergy, which was granted by the Court.
THEREUPON IT WAS ORDERED that the said John Cullen be branded in the brawn of the left Thumb with the letter T in the presence of the court, and that the sheriff execute the order immediately, which was done accordingly."
Benefit of clergy was the historic privilege accorded in England to all priests of being tried only in the ecclesiastical courts for their crimes. Coke says that "it took its root from a constitution of the Pope that no man should accuse the priests of Holy Church before a secular judge." As all common-law felonies (except petty larceny and mayhem) were punishable by death even as late as 1826, and as these felonies included homicide, rape, burglary, arson, robbery and larceny, and all were clergyable, it must have been a prerogative of considerable value to any member of the cloth of lively disposition.
Originally the privilege could be claimed before trial, and ousted the lay courts of any jurisdiction whatever, the right being strictly limited, however, to those who exhibited all the physical attributes and garb of priesthood, having "habitum et tonsuram clericalem," but long before (1350) it was provided that "all manner of clerks, as well secular as religious, shall from henceforth freely have and enjoy the privileges of Holy Church." As a priest's trial in the ecclesiastical courts was hardly more than a matter of form, with rarely any result save that of acquittal, he who could plead his "benefit" was practically immune so far as punishment for his crimes was concerned. In course of time the right was accorded only after conviction in the secular courts.
In 1487 it was provided that every person convicted of a clergyable felony should be branded in the brawn of his thumb, so that mere inspection would reveal second offenders. The letter M stood for murderer and T for thief or forger, as we have seen in Cullen's case. The statute also provided that no person could plead his clergy a second time unless he were actually in orders. Thus as late as 1487 practically any one who could read or write might commit as many crimes, including murder, as he chose, with no fear of punishment save of having to make his purgation, and after that date could, so to speak, have one murder, arson or larceny and escape with branding, while the priest in orders continued free to violate the law to his heart's content. Perhaps this wholesale extension of the privilege was made in the interest of education and as an incentive to literary accomplishment. It certainly put a premium on learning which a mere "degree" could not offer.
From the beginning of the eighteenth century on (the privilege having been extended by statute to all the inhabitants of England, male or female), any one, irrespective of his learning, could plead his clergy once to any crime that remained clergyable, if he could find one, and priests in orders could do so indefinitely. But the crimes which were clergyable were correspondingly reduced in number. In 1779 branding was practically done away with in England. (19 Geo. 3, c. 74 s. 3.)
It is interesting to find the custom still in vogue in America as late as 1784, as shown by the case of Cullen.[41]
In one or two of the Southern States the plea lingered on for nearly another half century.
When the defendant could not avail himself of clergy and no pardon was at hand to save him, the law in the early days took its full and awful course. Thus we read in the first almost illegible volume of the records, the phraseology of the sentence, save for its terms, being practically the same to this day:
Att a Court holden for the tryal of negro
and Indian slaves at the Citty Hall of the Citty of New-York,
on Tuesday the 15th day of April, Anno Dom. 1712.Present: Caleb Heathsope, } Esquires, William Smith, } Justices Edward Blagge } Court opened— The defendt Tom being brought to the Barr & having nothing to say for himself why
judgment of death should not pass agt him according to the verdict &c.
It is considered by the Court that he be carryed from hence to the place from
whence he came and from thence burned with a slow fire that he may continue
in torment for eight or ten hours and continue burning in said fire untill he be
dead and consumed to ashes.Dom Regina { vs. { Tom the Negro man, slave { of Nicholas Rossvelt J.D. {
Att a Court holden for the tryal of negro | ||
| Present: | ||
| Caleb Heathsope, | } | Esquires, |
| William Smith, | } | Justices |
| Edward Blagge | } | |
| Court opened— | ||
| The defendt Tom being brought to the Barr& having nothing to say for himself why judgment of death should not pass agt himaccording to the verdict &c. It is consideredby the Court that he be carryed from hence tothe place from whence he came and from thenceburned with a slow fire that he may continue in torment for eight or tenhours and continue burning in said fire untill he be dead and consumed toashes. | ||
| Dom Regina | { | |
| vs. | { | |
| Tom the Negro man, slave | { | |
| of Nicholas Rossvelt J.D. | { |
At present, when "benefit of clergy" is but a legal tradition, and pardons are obtained with difficulty, but one legal barrier can be raised to the interposition of sentence upon a convict—proof of his insanity. If, in the opinion of the court, there is reasonable ground for believing him to be mentally unbalanced, the question must be determined as provided in the Code. If he is found to be sane, judgment must then be pronounced, but if found insane he must be committed to the State Lunatic Asylum until he recovers his sanity, and when notice is given of that fact he must be brought before the court for judgment. Of course, he may also allege legal ground why the judgment should be arrested or why a new trial should be granted, but at this time a technical discussion of these motions would be unnecessary.
Defendants are far less likely to feign insanity at the time of their sentence than they are upon the actual trial; for if a man is clever enough to act the part of a lunatic he is shrewd enough to realize that the best time to do so is before he has been convicted of the crime charged against him.
There is a reputed case, the memory of which still lingers around the criminal courts, where it is said that a defendant who was charged with murder in its first degree feigned insanity just before his case was moved for trial. This was many years ago, at a time when such a fact did not, of itself, necessarily excite the same suspicion that it does to-day. The issue of the defendant's sanity was tried before a lay jury, who promptly found that he was incapable of understanding the proceedings against him or of making proper preparation for his defence. He was thereupon committed to the State Asylum for the Insane, where he remained incarcerated for many years. It so happened that there was but a single eye-witness to the shooting, and the circumstances surrounding the affair were such that without the testimony of this witness it would be a practical impossibility to determine whether the deceased had been murdered or had committed suicide. After twenty years, in the course of which the defendant's lawyer had died and the entire family of the prisoner had either died or disappeared, another lawyer, who had found among some old papers a memorandum of the case, went to Matteawan, located the defendant, and discovered, as he had anticipated, that he was entirely sane. A writ of habeas corpus was thereupon procured and the defendant brought back to New York.
In that time the entire aspect of the city had changed. Buildings twenty-five stories in height had replaced those of six; the city had reached far up and entirely covered the island; electric surface cars had taken the place of ramshackle, bobtail horse cars. The defendant, prematurely aged and with clothes long out of date, impressed those in the court-room as a sort of Rip Van Winkle, awakened after a long sleep. There was absolutely no question as to the man's sanity, and he was discharged upon the writ of habeas corpus and remanded to the Tombs to await his trial. The following morning he was brought into court, and the district attorney moved that the indictment against him be dismissed on the ground that there was no longer any evidence upon which the people could proceed to prosecution. Then for the first time the defendant discovered that the only witness against him had died ten days after he had been committed to the asylum. Although the writer does not vouch for the authenticity of this story, the incident may well have happened.
In addition to the legal ground of insanity why judgment should not be imposed, a convict or his counsel may properly, on his arraignment, state to the court any general reasons for a mitigation of sentence or for its absolute suspension when such is within the discretion of the court, and few sentences are imposed without a more or less lengthy appeal for clemency from the defendant's lawyer, who usually does not confine himself merely to the contrition of the defendant, his past respectability and his pledges to lead a new and better life, but is prone to discourse volubly upon the reputable connections of the defendant, the hardship which a sentence will impose upon his family, and the fact that the complainant or those who have been interested in the prosecution now have a profound sympathy for the prisoner. The gist of many of these appeals is to the effect that because the defendant, by reason of his education and opportunities, ought to have known better than to commit crime, he should now, since he has discovered his mistake, be excused from paying the penalty. The judge invariably listens with courtesy to these orations, which are not often made with any idea of actually influencing the court's decision. They are grateful to the defendant and his family, and impress the latter with the fact that the lawyer is doing everything in his power to get his client off.
It is now the judge's soul is tried. How far may he temper justice with mercy? How far are the interests of the public and the prisoner irreconcilable? Many youthful offenders, who have not hitherto been convicted, escape with a suspended sentence or a commitment to a reformatory—even when found guilty of crimes as serious as manslaughter or robbery. Little mercy is shown to old offenders. In fact, the law now provides that they may be tried under an indictment charging them with having committed a "second offence," under which, if found guilty, they must be sentenced to the maximum penalty set for a first offence of the same crime.
It should be noticed that originally only one sentence, and that a definite one, could be passed by the judge upon a prisoner for any given offence. At first there were no provisions of law granting to convicts as a matter of right any reduction or commutation of sentence because of good behavior. Then laws were passed which provided for the definite commutation of the sentences of all convicts confined in State's prison. The question as to whether or not the convict had earned his commutation by good behavior was left to a board composed of the State superintendent of prisons and others. A carefully prepared scale or table showed exactly how much commutation it was possible for any prisoner to earn.[42]
In 1889 there was introduced into New York State for the first time what is commonly known as the "indeterminate sentence," that is to say, a sentence consisting of a minimum and a maximum term of imprisonment during which the prisoner may be discharged at the option of a board consisting of various persons, but distinct from that which passes upon the question of whether or not he has earned his "commutation." The introduction of this form of sentence is in conformity with the most recent and most enlightened view of the proper attitude of the State towards its criminals.
Whenever the indeterminate sentence has been introduced into any State it has been invariably attacked as being unconstitutional, but the courts have uniformly upheld it. The principal difference to be noted between "commutation" and "indeterminateness" of sentence is that the latter is vastly broader in effect, since only the prisoner's good behavior while actually undergoing his sentence in State's prison may be considered by the board which passes upon his commutation, while, in the case of the indeterminate sentence, the parole board may consider all the facts surrounding the commission of the crime, the convict's past life, and whatever other facts they see fit, as well as his good behavior during his period of confinement.[43]
After conviction the natural optimism of the human race reasserts itself and the defendant begins to believe that the worst is, after all, over, and to rely upon the assurances of his counsel or his political friends that the judge is going to be easy on him and give him a light sentence. Terrible is the disappointment of such a one who finds that he is going to be sentenced to State's prison when he expected the penitentiary or to the penitentiary when he expected to be set free entirely under a suspended sentence.
The judge usually prefaces the sentence with a few remarks of an admonitory character, commenting upon the severity of the crime which the defendant has committed, and upon the fact that it is within his power to sentence the latter to a long term of imprisonment. He generally adds that, under all the circumstances and considering the fact that the defendant has never been convicted before and has hitherto led a reputable life, he will be merciful and give him only so and so many years in State's prison.
Of course, this occurs only in such cases as deserve leniency. But where the defendant is a hardened criminal, or an ex-convict, or when his crime is one of atrocity, he is apt to learn, in no unmeasured terms, what the judge and the community think of him. The writer has heard a prisoner censured in such language that he blushed for the human race of which the convict could be the offspring. Most defendants receive their sentence with imperturbability, for they are able with approximate accuracy to figure out what punishment they will probably receive. The experiences of their acquaintances in the Tombs are of great assistance in this matter, yet more than one convict falls senseless on the floor when sentence is pronounced upon him, and hundreds lose their nerve and stagger away bewilderedly at the thought of the interminable years before them.
Yet a layman happening to be present on a Friday in the Court of General Sessions would be surprised at the apparent lightness of most of the sentences. The judges of our criminal courts are merciful men and rightly believe that a year or two in State's prison has a better effect upon the defendant than a longer term. A short-term man emerges, at least it is so to be hoped, with some aspirations for the future and with health as yet not undermined. To most judges the infliction of sentence upon a fellow human being ever remains a bitter experience. In the old days, however, there were some judges who, not unlike Jeffries, took a certain grim satisfaction in the performance of this duty. There was, many years ago, one of them who seemed to take a particular delight in so far as possible prolonging the agony of the defendant's uncertainty. When a prisoner had been arraigned for sentence the judge would wait for absolute silence, and would then with the greatest deliberation address a long harangue to the unfortunate man, characterize his crime in the severest manner, excoriate him for having committed it, name the maximum penalty which the law allowed, intimate that he was going to impose it, and then, after a long hiatus, slowly take down his sentence book, ink his pen with annoying deliberation, cough two or three times, look around the court-room and begin carefully inscribing each word upon the record before him, "I—shall—therefore—sentence—you—to—[cough, another glance around the room]—five years in State's prison."
Many pathetic and also amusing incidents occur upon these occasions. There is a true story of an incident which, however, did not occur in the General Sessions of New York County, where a prisoner who had been convicted was arraigned before the judge for sentence. This judge was an aged man with a great reputation for his bitter wit and sarcasm. The convict, who had been convicted of being a common gambler and who was described by the court officers as a "fly guy," appeared in a loudly checked yellow and black suit with a red necktie and a large paste diamond horseshoe pin. The judge from under his beetling eyebrows looked fiercely down upon him from the bench and remarked with intense scorn:
"I sentence you to pay a fine of fifty dollars——'
"That's all right, judge," interrupted the "fly guy" nonchalantly, thrusting his hand into his trousers. "Got it in my pants pocket."
"——And to three years and six months in State's prison," continued his Honor, with a slight twinkle in his eye. "Have you got THAT in your pants pocket?"
Recorder Smyth is said to have had a habit of entering the sentences which he proposed to inflict in a book which he kept for that purpose. He also generally made use of a regular set form of expression when imposing them. A miserable little defendant who was gifted with a greater fund of originality than of common-sense, had conceived the extraordinary idea of stealing a ship's anchor belonging to a company which owned a dock in the North River. For this purpose he procured a dray, drawn by six or eight horses, and a derrick, by means of which he hoisted the anchor in question upon the dray in the dead of night and, as might have been expected, succeeded in getting only about half way down the dock with it before he was apprehended by a watchman.
Naturally he had no adequate explanation to offer and promptly pleaded guilty. He was arraigned at the bar in company with several other defendants. Recorder Smyth, his mind still dwelling upon the words with which he had sentenced the latter, thus addressed the trembling miscreant:
"You have pleaded guilty to the crime of stealing a ship's anchor!"—then raising his voice he continued, with perfect solemnity: "The crime of stealing a ship's anchor is becoming entirely too prevalent! I sentence you to three years and a half in State's prison."
In contrast with those cheerful days on Manhattan, not much over a century and a half ago, when negroes were burnt to death in chains, and thieves branded in open court and then, tied bareback to the tail of a cart, whipped at every street corner from the City Hall to the Battery and return, the following incident may serve as a pleasant reminder of our progress in civilization:
A young Irishman of excellent address, and employed in a responsible position in an express company, appropriated, at the instigation of evil companions, some of the funds intrusted to his keeping. The larceny was detected, he was arrested and admitted his guilt. Meantime, some one had written to his parents in Ireland who lived in a remote parish in the humblest circumstances. The two old people sold their little cottage, as well as their pig and cow, and took steerage passage from Queenstown to New York. They arrived upon the day set for their son's sentence, entering the court-room as he was arraigned at the bar. A tearful recognition followed, and the prisoner, overwhelmed at this touching proof of his parents' love, begged the judge to listen to their supplication for mercy. Their simple story deeply affected the court, who discharged the defendant in their keeping, under his solemn promise to return with them to Ireland, there to honor and labor for them so long as they should live.