[1] New York Penal Code, Section 276.
[2] No longer the law of New York. After this book was published the Court of Appeals reversed the conviction of Tracy for his $50,000 fraud upon Felix by means of the "wire-tapping" game and affirmed as law the doctrine of People vs. McCord. The author takes satisfaction in recording that the Legislature thereupon awoke to its duties and amended the penal code in such a fashion as to render such offences criminal.
[3] 46 New York 470.
[4] 47 App. Div. 283.
[5] The operations of these swindlers recently became so notorious that the District Attorney of New York County determined to prosecute the perpetrators of the Felix swindle, in spite of the fact that the offence appeared to come within the language of the Court of Appeals in the McCord and Livingston cases. Accordingly Christopher Tracy, alias Charles Tompkins, alias Topping, etc., etc., was indicted (on the theory of "trick and device") for the "common-law" larceny of Felix's fifty thousand dollars.
The trial came on before Judge Warren W. Foster in Part III of the General Sessions on February 27, 1906. A special panel quickly supplied a jury, which, after hearing the evidence, returned a verdict of guilty in short order.
It now remains for the judges of the Court of Appeals to decide whether they will extend the doctrine of the McCord and Livingston cases to a fraud of this character, whether they will limit the doctrine strictly to cases of precisely similar facts, or whether they will frankly refuse to be bound by any such absurd and iniquitous theory and consign the McCord case to the dust-heap of discarded and mistaken doctrines, where it rightfully belongs. Their action will determine whether the perpetrators of the most ingenious, elaborate and successful bunco game in the history of New York County shall be punished for their offence or instead be turned loose to prey at will upon the community at large. (See "The Last of the Wire-Tappers" in the American Magazine for June, 1906; also incorporated in the author's "True Stories of Crime," pp. 103-121, published by Charles Scribner's Sons, 1908.)
[6] Cf. in general, references given infra, p. 339.
[7] The following appeared in the New York Globe for April 25, 1905: "Criminal eyes—It is well known," says Dr. Beddoe, F.R.S., "that brown eyes and dark hair are particularly common among the criminal classes. An American observer calls the brown the criminal eye, etc., etc."