The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice

by Arthur Cheney Train

[28] The writer's colleague, Mr. Charles Cooper Nott, Jr., has recorded, as follows, the actual proceedings of an ordinary court day:

"Maria Dzialozindky takes the stand and swears that after a brief acquaintance she married (as she supposed) the defendant before a rabbi of his choosing; a man in charge of an officer is identified by her as the rabbi; he is brought over from the penitentiary on Blackwell's Island where he is serving a sentence for larceny, being a thief and not a rabbi; Maria then goes on to relate how the defendant then procured from her one hundred and forty-nine dollars, and disappeared, leaving her alone in the Suffolk Street tenement which was to have been their connubial bower of bliss; it further appears that the defendant had a wife living at the time that he went through the ceremony of a mock marriage with Maria. Defendant takes the stand, modestly admits that he is possessed of such unusual attractions that Maria persecuted him into this marriage; that she forced the one hundred and forty-nine dollars upon him, and that he unfortunately slumbered in a saloon and it was stolen from his person. The jury fail to give credence to his tale, and promptly convict him. The next defendant is smooth and well dressed, a hanger-on in the region known as the Tenderloin. Testimony is given that he and another did take and carry away and sell certain typewriting machines from an office in Thirty-fourth Street. Defendant with an engaging smile tells how his companion had just been discharged from the office in question, and had enlisted his (defendant's) aid to remove the machines, which he informed defendant were his own, and how shocked he was later to learn that this wicked companion had no right or title to them. His smile is so engaging, and his looks so respectable, that the jury acquit him, and are somewhat chagrined when the judge, in discharging him, states that in the court's opinion he is a smooth and plausible thief and guilty beyond a doubt—which is the fact, as previous to the trial he had offered to plead guilty to a lower degree of the crime charged. Next comes a stalwart Irishman who describes with much feeling how the defendant (unfortunately a much smaller man), without any provocation whatever, viciously assaulted him in the hallway of the West Side tenement-house where they both lived, and cut him in various vital parts with a pocket knife. Defendant (bandaged to no less a degree than complainant) describes how he had "an argument" (a term embracing any affray ending in anything short of murder in the first degree) with complainant and his brother over a game of cards, whereupon they followed him to the hallway, threw him down and kicked him, and then struck at them with a large key. His talk sounding reasonable and being corroborated by several neighbors, defendant is acquitted. Lastly, an unsuspecting passenger and an alert trolley-car conductor tell how defendant, a shifty-looking young gentleman, while sitting next to the unsuspecting passenger, kept with one hand a newspaper shoved under the latter's chin, while with the other he abstracted a fine diamond scarf pin adorning his cravat. When their tale is completed, the defendant and his counsel put their respective heads together, and counsel then announces that his client, the sole support of a widowed mother, did, in a moment of temptation induced by filial anxiety, endeavor to acquire this pin, and he therefore desires to throw himself upon the mercy of the court and plead guilty, which he does. It appears, however (of course to counsel's astonishment), that his portrait has for several years ornamented the Rogues' Gallery, and that his record as a son is not all that it might be, whereupon he is sentenced upon the spot, and court adjourns. This is the summary of the actual record of a court day presenting no unusual features"—"In the District Attorney's Office," Atlantic Monthly for April, 1905.

[29] Cf. "Reform in Criminal Procedure," by Everet P. Wheeler, 4 Columbia Law Rev. 356.

[30] Ruloff vs. The People, 45 N.Y. 221.

[31] Mr. Nott cites the following case:

"The complainant, A, a well-dressed bartender, testified that he had known the defendant, B, for some time; that on the night in question B came to A's rooms, and shortly after B's departure, A found that his watch was missing; the watch had been in the pocket of A's vest, which A had left hanging on a chair, and A had stepped out of the room for ten minutes, leaving B alone there. B afterwards admitted to A that he had "hocked" the watch. Of course this testimony, if believed, made a case against B, and it is difficult now to realize how any one could ever have believed that the chance of explaining or contradicting it could be more dangerous to B than the certainty of having A's testimony go to the jury uncontradicted. B took the stand and testified that he was getting a good salary as manager of an "intelligence office"; had never been even arrested before; that A had obtained a loan of fifteen dollars from him and had left the watch with him on the understanding that B was to pawn it for fifteen dollars and give A the ticket; B did pawn it in his own name and was shortly thereafter arrested. This case is a fair illustration of a puzzling class. On the one hand, no motive or reason was shown why A should cause the arrest of his friend on a false charge (unless that of getting the watch back from the pawnbroker without payment of the fifteen dollars, on the ground that it had been stolen, is an adequate one). Upon the other hand, B's character and position in life seemed to make it unlikely that he would commit such a theft, and his act in pawning the watch under his true name gave color to his story. The jury acquitted, and who can say that there was not at least a reasonable doubt?"

[32] Mr. Nott gives the following illustration from an actual trial:

"Take, for example, a certain case tried in the Criminal Branch of the Supreme Court in the January term of 1902. The jury saw the defendant, a stalwart, open-faced laboring man of nearly sixty years, on trial for murder in the first degree; they heard a bartender and a smooth-shaven, bullet-headed witness describe how the defendant in the saloon became involved in a dispute with the deceased, caused by the defendant's bad taste in reminding him that he had done time for killing his own father; and they heard him of the bullet-head admit on cross-examination that a scar adorning his neck had been inflicted by the deceased some two years before; they heard the two witnesses describe how the deceased left, breathing threatenings and slaughter, and how a few minutes later the defendant, in the room back of the saloon, was approaching the rear door, cutting a plug of tobacco with his knife, which he had providentially drawn for that purpose, when the deceased leaped upon him from the door and tried to stab him, whereupon a fight ensued, in which the defendant was cut, and after which the deceased left, followed a few minutes later by the defendant and the bullet-headed, who saw naught further of him. To mar the symmetry of this tale of self-defence (proved by the prosecution's own case), but two jarring facts appeared—first, the saloon proper (not the rear room) was found soaked in blood, and, second, the deceased was found shortly after the defendant's departure at three A.M. lying on the sidewalk in plain sight of the rear door, with his throat cut from ear to ear. No evidence was put in for the defence, the defendant modestly refrained from taking the stand, and of course an acquittal was inevitable.

"From behind the scenes, however, the facts assumed a different aspect. The frank-faced defendant was one 'Red,' who had served time for robbery and other offences; the bullet-head surmounted shoulders upon which rested a heavy load of crime and violence, their owner having served the State several times and been implicated in numerous crimes, including murder; the bartender would have considered it quite as safe, and far more comfortable, to put a bullet through his head than to testify against this choice pair; while it was true that the deceased had killed his own father, the act was performed while parent and son were in a drunken fight, by striking the old man on the head with a water pitcher, and had occasioned great mortification to the son when he became sober; and it was true that defendant and the bullet-headed were both bitter enemies of the deceased. On this statement of facts, there is little doubt that the deceased was murdered in the saloon where the blood was found, and his body thrown out on to the sidewalk, and the story arranged, the defendant shouldering the quarrel because he had received a cut in the course of the fight. As the defendant did not take the stand, his record and character could not be shown; as the State was compelled to call the bartender and the other witness (they being the sole witnesses to the occurrence), it could not impeach their veracity nor attack their character. To the prosecuting officer, therefore, was presented the choice of recommending the 'turning out' of a desperate criminal without a trial, or of putting in what facts the law permitted to be shown, and leaving the jury to acquit, while marvelling that such a weak case should be presented to them."

[33] The number of these cases is one of the saddest commentaries upon the conditions of life in a great city. Upon this charge during the year 1905, 268 males and 114 females, a total of 382, were arrested. Thirteen males and no females were held for trial and the others were discharged.