Of course we had a great deal of the ordinary "knock-down-and-drag- out" variety of assault, robbery, theft, and homicide cases. Most of these our clerks attended to, but the murder cases Gottlieb defended in person, and in this he was so singularly successful that there was hardly a celebrated trial in which he was not retained in some capacity or other. For he was an adept in all those little arts that make a jury feel well disposed toward a lawyer, and as a word artist he was unsurpassed. Gottlieb could, I believe, have wrung tears from a lump of pig iron, and his own capacity to open the floodgates of emotion was phenomenal. He had that rare and priceless gift shared by some members of the theatrical profession of being able to shed real tears at will. His sobs and groans were truly heart-rending. This, as might be expected, rendered him peculiarly telling in his appeals to the jury, and he could frequently set the entire panel snivelling and wiping their eyes as he pictured the deserted home, the grief-stricken wife, and the starving children of the man whom they were asked to convict. These unfortunate wives and children were an important scenic feature in our defence, and if the prisoner was unmarried Gottlieb had little difficulty in supplying the omission due to such improvidence. Some buxom young woman with a child at the breast and another toddling by her side could generally be induced to come to court for a few hours for as many dollars. They were always seated beside the prisoner, but Gottlieb was scrupulous to avoid any statement that they belonged to the client. If the jury chose to infer as much that was not our fault. It was magnificent to hear (from the wings) Gottlieb sum up a case, his hand, in which was concealed a pin, caressing the youngest little one.
"Think, gentlemen, of the responsibility that rests upon you in rendering this woman a widow and depriving this poor innocent babe of a father's protecting love!"
Here Gottlieb would hiccough out a sob, sprinkle a few tears upon the counsel table, and gently thrust the pin into the infant's anatomy. Sob from Gottlieb—opportune wail from the baby. Verdict —not guilty.
There was a certain class of confidence men for whom we soon became the regular attorneys. They were a perennial source of delight as well as profit, and much of my time was given up to the drafting of circulars and advertisements for the sale of stock in such form that, whereas they contained no actual misstatement of an existing fact, they nevertheless were calculated to stimulate in the most casual reader an irresistible desire to sell all that he had and invest therein.
Originally the dealers in valueless securities did not take the trouble to purchase any properties but merely sold their stock and decamped with the proceeds. Of course such conduct was most ill- advised and unnecessary. It was obviously criminal to sell stock in a concern that has no existence, and several of my clients having been convicted of grand larceny, for this reason I took it upon myself to advise the others actually to purchase lands, mines, or other property and issue their stock against it. In this way their business became absolutely legitimate—as strictly honest and within the law as any of the stock-jobbing concerns of the financial district. To be sure, the mine need not be more than the mere beginning of a shaft, if even that; the oil-well might have ceased to flow; the timber land might be only an acre or so in extent; but at any rate they existed. Their value was immaterial, since the intending purchaser was not informed in the advertisement as to the amount of gold, silver, or copper mined in any specific period, the number of gallons of oil per minute that flowed from the well, or the precise locality of the timber forests, but merely as to the glorious future in store for all who subscribed for the stock.
This vital distinction has always existed in civil as well as criminal law between what is fraud and what is legitimate encouragement to the buyer. To tell the prospective vendee of your old gray mare that she is the finest horse in the county is not fraud even if she is the veriest scarecrow, for it merely represents your opinion —perhaps colored in part by your desire to sell—and is not a matter of demonstrable fact. To assure him, however, that she has never run away, had blind staggers, or spring halt, when these assertions are not true, is "a false statement as to a past or existing fact," and as such constitutes a fraud—if he buys your horse.
Now, it frequently has happened in my experience that gentlemen desiring to find purchasers for securities or property of little value have so carelessly mingled statements of fact with opinions, laudations, and prophecies as to their goods, that juries have said that they were guilty of fraud in so doing. Thus the lawyer becomes at every turn indispensable to the business man. The following circular was drawn up for one of our clients and is an excellent example of a perfectly harmless and legal advertisement that might easily become fraudulent. We will suppose that the corporation owned one-quarter of an acre of wood lot about ten miles from a region where copper was being mined.
"SAWHIDE COPPERS "YOUR LAST CHANCE TO BUY THIS STOCK AT PRESENT FIGURES! "The company's lands are located near the heart of the copper district, not far from properties now paying from forty to sixty per cent. a year. There is no reason in the world why Sawhide should not do as well if not better. With immense quantities of ore just beneath the surface, when our new smelter is completed Sawhide will undoubtedly prove one of the best dividend payers in the country! As the Buggenheims and other well-known financiers are largely interested in the stock, it is only a question of time before it will be marked up out of sight. The properties have great surface value and are rolling in timber and mineral wealth."
This is a fair example of a perfectly safe variety of advertisement that does not commit the author to anything. As long as there is a piece of land somewhere and an actual incorporated company the stock of which, however valueless, is being offered for sale, the mere fact that the writer indulges himself in rosy prophecies does not endanger him so far as the criminal law is concerned. It is only when he foolishly—and usually quite as unconsciously—makes some definite allegation, such as, for instance, that the company "owns six hundred acres of fully developed mining property," or has "a smelter in actual operation on the ground," or "has earned sixty-five per cent. on its capital in the past year," that the financier runs the slightest risk. It may be that a purchaser would find it so difficult to prove the falsity of any of the statements upon which he had relied in purchasing the stock that the vendor would practically be immune, but in these days of muck- raking and of an hysterical public conscience prosecutors sometimes go to the most absurd lengths and spend ridiculous sums of money out of the county treasuries to send promoters to jail.
They are apt to have a hard time of it, however. I recall one scheme in which a client of mine was interested, involving the floatation of about a hundred thousand dollars' worth of railroad stock. The circulars, printed by a famous engraver and stationer, were twenty pages in length and contained the minutest description of the company's board of directors, rolling stock, capitalization, bond issues, interests in other railroads, government grants of land, and the like. They were embellished with beautiful photographs of deep cuts, suspension-bridges, snow-sheds, railroad-yards, and round-houses. The promoter did a mail-order business and sold the stock by the bagful to elevator men, trained nurses, policemen, porters, clerks, and servant girls.