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

by Arthur Cheney Train

"Do you think I'd try the Smith case before ——?" one will say. "Not on your life!"

In similar fashion lawyers retained by complainants will seek to have their cases put on the calendar of such and such a judge.

"Put it before ——," they will say. "He's hell on larceny!"

Some judges are supposed to be more lenient in the matter of sentences than their brothers of the bench, but the writer, after six years of observation, believes this to be a fiction. They are all lenient,—entirely too much so.

Much of the impression among criminal lawyers that they will fare worse at the hands of one member of the judiciary than another is due to the obvious fact that some judges are by reason of their training better suited to sit in certain classes of cases than others. One may have had an exhaustive experience in commercial matters and thus be better qualified to pass upon the questions of law involved therein. Another may have heard many complicated cases involving expert testimony, etc., etc. Of course as a rule the less well equipped a judge is to hear a certain kind of case the more apt he will be to listen to ill-founded argument on the law or the facts. No insurance swindler would want to be tried before an expert on insurance law. He would very naturally prefer a judge whose experiences had converged upon assault and battery. It must be admitted that occasionally a judge is to be found who seems to feel that every complainant who has lost money in a commercial transaction has no standing in the criminal courts but must be relegated to civil tribunals. This is but another way of saying that such a judge does not believe that the criminal law is meant to cover cases where there has been fraud in commercial transactions. This is hardly to be wondered at considering the present ineffectiveness of our statutes governing such classes of crime.

The writer recalls prosecuting such a case before a certain judge who, after hearing some rather complicated evidence in regard to certain written instruments, called abruptly for the defendant. The latter took the stand, and the judge inquired with a smile:

"You didn't intend to cheat this man, did you?"

"Certainly not!" cried the defendant.

"Gentlemen of the jury!" said the judge. "This is not the kind of case that should be brought before a jury at all. This court is not the place to collect civil debts. I instruct you to acquit."

Learning wisdom by experience, the writer moved the case of the co-defendant for trial before another judge and convicted him, although he was, if anything, less guilty than the first. He was sentenced to a substantial term in State's prison.