Many of the things most abhorrent to our sense of right do not come within the scope of the criminal law. Omissions, no matter how reprehensible, are usually not regarded as criminal, because in most cases there is no technical legal duty to perform the act omitted. Thus, not to remove your neighbor's baby from the railroad track in front of an on-rushing train, although it would cause you very little trouble to do so, is no crime, even if the child's life be lost as a result of your neglect. You can let your mother-in-law choke to death without sending for a doctor, or permit a ruffian half your size to kill an old and helpless man, or allow your neighbor's house to burn down, he and his family peacefully sleeping inside it, while you play on the pianola and refuse to ring up the fire department, and never have to suffer for it—in this world.
Passing from felonies—mala in se—to misdemeanors—generally only mala prohibita—almost anything becomes a crime, depending upon the arbitrary act of the legislature.
It is a crime in New York State to run a horse race within a mile of where a court is sitting; to advertise as a divorce lawyer; to go fishing or "play" on the first day of the week; to set off fire-works or make a "disbursing noise"[1] at a military funeral in a city on Sunday; to arrest or attach a corpse for payment of debt; to keep a "slot machine"; to do business under any name not actually your own full name without filing a certificate with the county clerk (as, for example, if, being a tailor, you call your shop "The P.D.Q. Tailoring Establishment"); to ride in a long-distance bicycle race more than twelve hours out of twenty-four; to shoe horses without complying with certain articles of the Labor Law; to fail to supply seats for female employés in a mercantile establishment; to steal a ride in a freight car, or to board such a car or train while in motion; to set fire negligently to one's own woods, by means of which the property of another is endangered; to run a ferry without authority, or, having contracted to run one, to fail to do so; to neglect to post ferry rates (under certain conditions) in English; to induce the employé of a railroad company to leave its service because it requires him to wear a uniform; to wear a railroad uniform without authority; to fish with a net in any part of the Hudson River (except where permitted by statute); to secretly loiter about a building with intent to overhear discourse therein, and to repeat the same to vex others (eavesdropping); to sell skimmed milk without a label; to plant oysters (if you are a non-resident) inside the State without the consent of the owner of the water; to maintain an insane asylum without a license; to enter an agricultural fair without paying the entrance fee; to assemble with two or more other persons "disguised by having their faces painted, discolored, colored or concealed," save at a fancy-dress ball for which permission has been duly obtained from the police; or to wear the badge of the "Patrons of Husbandry," or of certain other orders without authority. These illustrations are selected at random from the New York Penal Code.
Where every business, profession, and sport is hedged around by such chevaux-de-frise of criminal statutes, he must be an extraordinarily careful as well as an exceptionally well-informed citizen who avoids sooner or later crossing the dead-line. It is to be deprecated that our law-makers can devise no other way of regulating our existences save by threatening us with the shaved head and striped shirt.
The actual effect of such a multitude of statutes making anything and everything crimes, punishable by imprisonment, instead of increasing our respect for law, decreases it, unless they are intended to be and actually are enforced. Acts mala in se are lost in the shuffle among the acts mala prohibita, and we have to become students to avoid becoming criminals.
Year by year the legislature goes calmly on creating all sorts of new crimes, while failing to amplify or give effect to the various statutes governing existing offences which to a far greater degree are a menace to the community. For example, it is not a crime in New York State to procure money by false pretences provided the person defrauded parts with his money for an illegal purpose.[2]
In the McCord[3] case, in which the Court of Appeals established this extraordinary doctrine, the defendant had falsely pretended to the complainant, a man named Miller, that he was a police officer and held a warrant for his arrest. By these means he had induced Miller to give him a gold watch and a diamond ring as the price of his liberty. The conviction in this case was reversed on the ground that Miller parted with his property for an unlawful purpose; but there was a very strong dissenting opinion from Mr. Justice Peckham, now a member of the bench of the Supreme Court of the United States.
In a second case, that of Livingston,[4] the complainant had been defrauded out of five hundred dollars by means of the "green-goods" game; but this conviction was reversed by the Appellate Division of the Second Department on the authority of the McCord case. The opinion was written by Mr. Justice Cullen, now Chief Judge of the New York Court of Appeals, who says in conclusion:
"We very much regret being compelled to reverse this conviction. Even if the prosecutor intended to deal in counterfeit money, it is no reason why the appellant should go unwhipped of justice. We venture to suggest that it might be well for the legislature to alter the rule laid down in McCord vs. People."
Well might the judges regret being compelled to set a rogue at liberty simply because he had been ingenious enough to invent a fraud which involved the additional turpitude of seducing another into a criminal conspiracy. Livingston was turned loose upon the community, in spite of the fact that he had swindled a man out of five hundred dollars, because he had incidentally led the latter to believe that in return he was to receive counterfeit money or "green goods" which might be put into circulation. Yet, because, some years before, the judges of the Court of Appeals had, in the McCord matter, adopted the rule followed in civil cases, to wit, that as the complaining witness was himself in fault and did not come into court with clean hands he could have no standing before them, the Appellate Division in the next case felt obliged to follow them and to rule tantamount to saying that two wrongs could make a right and two knaves one honest man. It may seem a trifle unfair to put it in just this way, but when one realizes the iniquity of such a rule as applied to criminal cases, it is hard to speak softly. Thus the broad and general doctrine seemed to be established that so long as a thief could induce his victim to believe that it was to his advantage to enter into a dishonest transaction, he might defraud him to any extent in his power. Immediately there sprang into being hordes of swindlers, who, aided by adroit shyster lawyers, invented all sorts of schemes which involved some sort of dishonesty upon the part of the person to be defrauded. The "wire-tappers," of whom "Larry" Summerfield was the Napoleon, the "gold-brick" and "green-goods" men, and the "sick engineers" flocked to New York, which, under the unwitting protection of the Court of Appeals, became a veritable Mecca for persons of their ilk.