Courts and Criminals
Arthur Train

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These essays, which were written between the years 1905-1910
are reprinted without revision, although in a few minor
instances the laws may have been changed.
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CHAPTER I


The Pleasant Fiction of the Presumption of Innocence


There was a great to-do some years ago in the city of New York
over an ill-omened young person, Duffy by name, who, falling
into the bad graces of the police, was most incontinently
dragged to headquarters and "mugged" without so much as "By
your leave, sir," on the part of the authorities.  Having been
photographed and measured (in most humiliating fashion) he was
turned loose with a gratuitous warning to behave himself in
the future and see to it that he did nothing which might gain
him even more invidious treatment.

Now, although many thousands of equally harmless persons had
been similarly treated, this particular outrage was made the
occasion of a vehement protest to the mayor of the city by a
certain member of the judiciary, who pointed out that such
things in a civilized community were shocking beyond measure,
and called upon the mayor to remove the commissioner of police
and all his staff of deputy commissioners for openly violating
the law which they were sworn to uphold.  But, the
commissioner of police, who had sometimes enforced the penal
statutes in a way to make him unpopular with machine
politicians, saw nothing wrong in what he had done, and, what
was more, said so most outspokenly.  The judge said, "You
did," and the commissioner said, "I didn't."  Specifically,
the judge was complaining of what had been done to Duffy, but
more generally he was charging the police with despotism and
oppression and with systematically disregarding the sacred
liberties of the citizens which it was their duty to protect.

Accordingly the mayor decided to look into the matter for
himself, and after a lengthy investigation came to the alleged
conclusion that the "mugging" of Duffy was a most
reprehensible thing and that all those who were guilty of
having any part therein should be instantly removed from
office.  He, therefore, issued a pronunciamento to the
commissioner demanding the official heads of several of his
subordinates, which order the commissioner politely declined
to obey.  The mayor thereupon removed him and appointed a
successor, ostensibly for the purpose of having in the office
a man who should conduct the police business of the city with
more regard for the liberties of the inhabitants thereof.  The
judge who had started the rumpus expressed himself as very
much pleased and declared that now at last a new era had
dawned wherein the government was to be administered with a
due regard for law.

Now, curiously enough, although the judge had demanded the
removal of the commissioner on the ground that he had violated
the law and been guilty of tyrannous and despotic conduct, the
mayor had ousted him not for pursuing an illegal course in
arresting and "mugging" a presumptively innocent man (for
illegal it most undoubtedly was), but for inefficiency and
maladministration in his department.

Said the mayor in his written opinion:


"After thinking over this matter with the greatest care, I
am led to the conclusion that as mayor of the city of New
York I should not order the police to stop taking photographs
of people arrested and accused of crime or who have been
indicted by grand juries.  That grave injustice may occur
the Duffy case has demonstrated, but I feel that it is not
the taking of the photograph that has given cause to the
injustice, but the inefficiency and maladministration of
the police department, etc."

In other words, the mayor set the seal of his official
approval upon the very practice which caused the injustice to
Duffy.  "Mugging" was all right, so long as you "mugged" the
right persons.

The situation thus outlined was one of more than passing
interest.  A sensitive point in our governmental nervous
system had been touched and a condition uncovered that sooner
or later must be diagnosed and cured.

For the police have no right to arrest and photograph a
citizen unconvicted of crime, since it is contrary to law.
And it is ridiculous to assert that the very guardians of the
law may violate it so long as they do so judiciously and do
not molest the Duffys.  The trouble goes deeper than that.
The truth is that we are up against that most delicate of
situations, the concrete adjustment of a theoretical
individual right to a practical necessity.  The same
difficulty has always existed and will always continue to
exist whenever emergencies requiring prompt and decisive
action arise or conditions obtain that must be handled
effectively without too much discussion.  It is easy while
sitting on the piazza with your cigar to recognize the rights
of your fellow-men, you may assert most vigorously the right
of the citizen to immunity from arrest without legal cause,
but if you saw a seedy character sneaking down a side street
at three o'clock in the morning, his pockets bulging with
jewelry and silver!  Would you have the policeman on post
insist on the fact that a burglary had been committed being
established beyond peradventure before arresting the suspect,
who in the meantime would undoubtedly escape?  Of course, the
worthy officer sometimes does this, but his conduct in that
case becomes the subject of an investigation on the part of
his superiors.  In fact, the rules of the New York police
department require him to arrest all persons carrying bags in
the small hours who cannot give a satisfactory account of
themselves.  Yet there is no such thing under the laws of the
State as a right "to arrest on suspicion."  No citizen may be
arrested under the statutes unless a crime has actually been
committed.  Thus, the police regulations deliberately compel
every officer either to violate the law or to be made the
subject of charges for dereliction of duty.  A confusing state
of things, truly, to a man who wants to do his duty by himself
and by his fellow-citizens!

The present author once wrote a book dealing with the
practical administration of criminal justice, in which the
unlawfulness of arrest on mere "suspicion" was discussed at
length and given a prominent place.  But when the time came
for publication that portion of it was omitted at the earnest
solicitation of certain of the authorities on the ground that
as such arrests were absolutely necessary for the enforcement
of the criminal law a public exposition of their illegality
would do infinite harm.  Now, as it seems, the time has come
when the facts, for one reason or another, should be faced.
The difficulty does not end, however, with "arrest on
suspicion," "the third degree," "mugging," or their allied
abuses.  It really goes to the root of our whole theory of the
administration of the criminal law.  Is it possible that on
final analysis we may find that our enthusiastic insistence
upon certain of the supposedly fundamental liberties of the
individual has led us into a condition of legal hypocrisy
vastly less desirable than the frank attitude of our
continental neighbors toward such subjects?

The Massachusetts Constitution of 1785 concludes with the now
famous words: "To the end that this may be a government of
laws and not of men."  That is the essence of the spirit of
American government.  Our forefathers had arisen and thrown
off the yoke of England and her intolerable system of penal
government, in which an accused had no right to testify in his
own behalf and under which he could be hung for stealing a
sheep.  "Liberty!"  "Liberty or death!"  That was the note
ringing in the minds and mouths of the signers of the
Declaration and framers of the Constitution.  That is the
popular note to-day of the Fourth of July orator and of the
Memorial Day address.  This liberty was to be guaranteed by
laws in such a way that it was never to be curtailed or
violated.  No mere man was to be given an opportunity to
tamper with it.  The individual was to be protected at all
costs.  No king, or sheriff, or judge, or officer was to lay
his finger on a free man save at his peril.  If he did, the
free man might immediately have his "law"--"have the law on
him," as the good old expression was--for no king or sheriff
was above the law.  In fact, we were so energetic in providing
safeguards for the individual, even when a wrong-doer, that we
paid very little attention to the effectiveness of kings or
sheriffs or what we had substituted for them.  And so it is
to-day.  What candidate for office, what silver-tongued orator
or senator, what demagogue or preacher could hold his audience
or capture a vote if, when it came to a question of liberty,
he should lift up his voice in behalf of the rights of the
majority as against the individual?

Accordingly in devising our laws We have provided in every
possible way for the freedom of the citizen from all
interference on the part of the authorities.  No one may be
stopped, interrogated, examined, or arrested unless a crime
has been committed.  Every one is presumed to be innocent
until shown to be guilty by the verdict of a jury.  No one's
premises may be entered or searched without a warrant which
the law renders it difficult to obtain.  Every accused has the
right to testify in his own behalf, like any other witness.
The fact that he has been held for a crime by a magistrate and
indicted by a grand jury places him at not the slightest
disadvantage so far as defending himself against the charge is
concerned, for he must be proven guilty beyond any reasonable
doubt.  These illustrations of the jealousy of the law for the
rights of citizens might be multiplied to no inconsiderable
extent.  Further, our law allows a defendant convicted of
crime to appeal to the highest courts, whereas if he be
acquitted the people or State of New York have no right of
appeal at all.

Without dwelling further on the matter it is enough to say
that in general the State constitutions, their general laws,
or penal statutes provide that a person who is accused or
suspected of crime must be presumed innocent and treated
accordingly until his guilt has been affirmatively established
in a jury trial; that meantime he must not be confined or
detained unless a crime has in fact been committed and there
is at least reasonable cause to believe that he has committed
it; and, further, that if arrested he must be given an
immediate opportunity to secure bail, to have the advice of
counsel, and must in no way be compelled to give any evidence
against himself.  So much for the law.  It is as plain as a
pikestaff.  It is printed in the books in words of one
syllable.  So far as the law is concerned we have done our
best to perpetuate the theories of those who, fearing that
they might be arrested without a hearing, transported for
trial, and convicted in a king's court before a king's judge
for a crime they knew nothing of, insisted on "liberty or
death."  They had had enough of kings and their ways.
Hereafter they were to have "a government of laws and not of
men."

But the unfortunate fact remains that all laws, however
perfect, must in the end be administered by imperfect men.
There is, alas! no such thing as a government of laws and not
of men.  You may have a government more of laws and less of
men, or vice versa, but you cannot have an autoadministration
of the Golden Rule.  Sooner or later you come to a man--in the
White House, or on a wool sack, or at a desk in an office, or
in a blue coat and brass buttons--and then, to a very
considerable extent, the question of how far ours is to be a
government of laws or of men depends upon him.  Generally, so
far as he is concerned, it is going to be of man, for every
official finds that the letter of the law works an injustice
many times out of a hundred.  If he is worth his salary he
will try to temper justice with mercy.  If he is human he will
endeavor to accomplish justice as he sees it so long as the
law can be stretched to accommodate the case.  Thus, inevitably
there is a conflict between the law and its application.  It
is the human element in the administration of the law that
enables lawyers to get a living.  It is usually not difficult
to tell what the law is; the puzzle is how it is going to be
applied in any individual case.  How it is going to be applied
depends very largely upon the practical side of the matter and
the exigencies of existing conditions.

It is pretty hard to apply inflexibly laws over a hundred
years old.  It is equally hard to police a city of a million
or so polyglot inhabitants with a due regard to their
theoretic constitutional rights.  But suppose in addition that
these theoretic rights are entirely theoretic and fly in the
face of the laws of nature, experience, and common sense?
What then?  What is a police commissioner to do who has either
got to make an illegal arrest or let a crook get away, who
must violate the rights of men illegally detained by
outrageously "mugging" them or egregiously fail to have a
record of the professional criminals in his bailiwick?  He
does just what all of us do under similar conditions--he
"takes a chance."  But in the case of the police the thing is
so necessary that there ceases practically to be any "chance"
about it.  They have got to prevent crime and arrest
criminals.  If they fail they are out of a job, and others
more capable or less scrupulous take their places.  The
fundamental law qualifying all systems is that of necessity.
You can't let professional crooks carry off a voter's
silverware simply because the voter, being asleep, is unable
instantly to demonstrate beyond a reasonable doubt that his
silver has been stolen.  You can't permit burglars to drag
sacks of loot through the streets of the city at 4 A.M.
simply because they are presumed to be innocent until proven
guilty.  And if "arrest on suspicion" were not permitted,
demanded by the public, and required by the police ordinances,
away would go the crooks and off would go the silverware, the
town would be full of "leather snatchers" and "strong-arm
men," respectable citizens would be afraid to go out o'
nights, and liberty would degenerate into license.  That is
the point.  We Americans, or at least some of the newer ones
of us, have an idea that "liberty" means the right to steal
apples from our neighbor's orchard without interference.  Now,
somewhere or other, there has got to be a switch and a strong
arm to keep us in order, and the switch and arm must not wait
until the apples are stolen and eaten before getting busy.  If
we come climbing over the fence sweating apples at every
pore, is Farmer Jones to go and count his apples before
grabbing us?

The most presumptuous of all presumptions is this "presumption
of innocence."  It really doesn't exist, save in the mouths of
judges and in the pages of the law books.  Yet as much to-do
is made about it as if it were a living legal principle.
Every judge in a criminal case is required to charge the jury
in form or substance somewhat as follows: "The defendant is
presumed to be innocent until that presumption is removed by
competent evidence" . . . "This presumption is his property,
remaining with him throughout the trial and until rebutted by
the verdict of the jury." . . . "The jury has no right to
consider the fact that the defendant stands at the bar accused
of a crime by an indictment found by the grand jury."  Shades
of Sir Henry Hawkins!  Does the judge expect that they are
actually to swallow that?  Here is a jury sworn "to a true
verdict find" in the case of an ugly looking customer at the
bar who is charged with knocking down an old man and stealing
his watch.  The old man--an apostolic looking octogenarian--is
sitting right over there where the jury can see him.  One look
at the plaintiff and one at the accused and the jury may be
heard to mutter, "He's guilty,--all right!"

"Presumed to be innocent?"  Why, may I ask?  Do not the jury
and everybody else know that this good old man would never,
save by mistake, accuse anybody falsely of crime?  Innocence!
Why, the natural and inevitable presumption is that the
defendant is guilty!  The human mind works intuitively by
comparison and experience.  We assume or presume with
considerable confidence that parents love their children, that
all college presidents are great and good men, and that wild
bulls are dangerous animals.  We may be wrong.  But it is up
to the other fellow to show us the contrary.

Now, if out of a clear sky Jones accuses Robinson of being a
thief we know by experience that the chances are largely in
favor of Jones's accusation being well founded.  People as a
rule don't go rushing around charging each other with being
crooks unless they have some reason for it.  Thus, at the very
beginning the law flies in the face of probabilities when it
tells us that a man accused of crime must be presumed to be
innocent.  In point of fact, whatever presumption there is
(and this varies with the circumstances) is all the other way,
greater or less depending upon the particular attitude of mind
and experience of the individual.

This natural presumption of guilt from the mere fact of the
charge is rendered all the more likely by reason of the
uncharitable readiness with which we believe evil of our
fellows.  How unctuously we repeat some hearsay bit of
scandal.  "I suppose you have heard the report that Deacon
Smith has stolen the church funds?" we say to our friends
with a sententious sigh--the outward sign of an invisible
satisfaction.  Deacon Smith after the money-bag?  Ha! ha!  Of
course, he's guilty!  These deacons are always guilty!  And in
a few minutes Deacon Smith is ruined forever, although the
fact of the matter may well have been that he was but counting
the money in the collection-plate.  This willingness to
believe the worst of others is a matter of common knowledge
and of historical and literary record.  "The evil that men do
lives after them--"  It might well have been put, "The evil
men are said to have done lives forever."  However unfair,
this is a psychologic condition which plays an important part
in rendering the presumption of innocence a gross absurdity.

But let us press the history of Jones and Robinson a step
further.  The next event in the latter's criminal history is
his appearance in court before a magistrate.  Jones produces
his evidence and calls his witnesses.  Robinson, through his
learned counsel, cross-examines them and then summons his own
witnesses to prove his innocence.  The proceeding may take
several days or perhaps weeks.  Briefs are submitted.  The
magistrate considers the testimony and finally decides that he
believes Robinson guilty and must hold him for the action of
the grand jury.  You might now, it would perhaps seem, have
some reason for suspecting that Robinson was not all that he
should be.  But no!  He is still presumed in the eyes of the
law, and theoretically in the eyes of his fellows, to be as
innocent as a babe unborn.  And now the grand jury take up and
sift the evidence that has already been gone over by the
police judge.  They, too, call witnesses and take additional
testimony.  They likewise are convinced of Robinson's guilt
and straightway hand down an indictment accusing him of the
crime.  A bench warrant issues.  The defendant is run to earth
and ignominiously haled to court.  But he is still presumed to
be innocent!  Does not the law say so?  And is not this a
"government of laws"?  Finally, the district attorney, who is
not looking for any more work than is absolutely necessary,
investigates the case, decides that it must be tried and
begins to prepare it for trial.  As the facts develop
themselves Robinson's guilt becomes more and more clear.  The
unfortunate defendant is given any opportunity he may desire
to explain away the charge, but to no purpose.

The district attorney knows Robinson is guilty, and so does
everybody else, including Robinson.  At last this presumably
innocent man is brought to the bar for trial.  The jury scan
his hang-dog countenance upon which guilt is plainly written.
They contrast his appearance with that of the honest Jones.
They know he has been accused, held by a magistrate, indicted
by a grand jury, and that his case, after careful scrutiny,
has been pressed for trial by the public prosecutor.  Do they
really presume him innocent?  Of course not.  They presume him
guilty.  "So soon as I see him come through dot leetle door in
the back of the room, then I know he's guilty!" as the foreman
said in the old story.  What good does the presumption of
innocence, so called, do for the miserable Robinson?  None
whatever--save perhaps to console him in the long days pending
his trial.  But such a legal hypocrisy could never have
deceived anybody.  How much better it would be to cast aside
all such cant and frankly admit that the attitude of the
continental law toward the man under arrest is founded upon
common sense and the experience of mankind.  If he is the
wrong man it should not be difficult for him to demonstrate
the fact.  At any rate circumstances are against him, and he
should be anxious to explain them away if he can.

The fact of the matter is, that in dealing with practical
conditions, police methods differ very little in different
countries.  The authorities may perhaps keep considerably more
detailed "tabs" on people in Europe than in the United States,
but if they are once caught in a compromising position they
experience about the same treatment wherever they happen to
be.  In France (and how the apostles of liberty condemn the
iniquity of the administration of criminal justice in that
country!) the suspect or undesirable receives a polite
official call or note, in which he is invited to leave the
locality as soon as convenient.  In New York he is arrested by
a plainclothes man, yanked down to Mulberry Street for the
night, and next afternoon is thrust down the gangplank of a
just departing Fall River liner.  Many an inspector has earned
unstinted praise (even from the New York Evening Post) by
"clearing New York of crooks" or having a sort of "round-up"
of suspicious characters whom, after proper identification, he
has ejected from the city by the shortest and quickest
possible route.  Yet in the case of every person thus arrested
and driven out of the town he has undoubtedly violated
constitutional rights and taken the law into his own hands.

What redress can a penniless tramp secure against a stout
inspector of police able and willing to spend a considerable
sum of money in his own defence, and with the entire force
ready and eager to get at the tramp and put him out of
business?  He swallows his pride, if he has any, and ruefully
slinks out of town for a period of enforced abstinence from
the joys of metropolitan existence.  Yet who shall say that,
in spite of the fact that it is a theoretic outrage upon
liberty, this cleaning out of the city is not highly
desirable?  One or two comparatively innocent men may be
caught in the ruck, but they generally manage to intimate to
the police that the latter have "got them wrong" and duly make
their escape.  The others resume their tramp from city to
city, clothed in the presumption of their innocence.

Since the days of the Doges or of the Spanish Inquisition
there has never been anything like the morning inspection
or "line up" of arrested suspects at the New York police
head-quarters.*  (*Now abolished.)  One by one the unfortunate
persons arrested during the previous night (although not
charged with any crime) are pointed out to the assembled
detective force, who scan them from beneath black velvet masks
in order that they themselves may not be recognized when they
meet again on Broadway or the darker side streets of the city.
Each prisoner is described and his character and past
performances are rehearsed by the inspector or head of the
bureau.  He is then measured, "mugged," and, if lucky, turned
loose.  What does his liberty amount to or his much-vaunted
legal rights if the city is to be made safe?  Yet why does not
some apostle of liberty raise his voice and cry aloud
concerning the wrong that has been done?  Are not the rights
of a beggar as sacred as those of a bishop?

One of the most sacred rights guaranteed under the law is that
of not being compelled to give evidence against ourselves or
to testify to anything which might degrade or incriminate us.
Now, this is all very fine for the chap who has his lawyer at
his elbow or has had some similar previous experience.  He may
wisely shut up like a clam and set at defiance the tortures of
the third degree.  But how about the poor fellow arrested on
suspicion of having committed a murder, who has never heard of
the legal provision in question, or, if he has, is cajoled or
threatened into "answering one or two questions"?  Few police
officers take the trouble to warn those whom they arrest that
what they say may be used against them.  What is the use?  Of
course, when they testify later at the trial they inevitably
begin their testimony with the stereotyped phrase, "I first
warned the defendant that anything which he said might be used
against him."  If they did warn him they probably whispered it
or mumbled it so that he didn't hear what they said, or, in
any event, whether they said it or not, half a dozen of them
probably took him into a back room and, having set him with
his back against the wall, threatened and swore at him until
he told them what he knew, or thought he knew, and perhaps
confessed his crime.  When the case comes to trial the police
give the impression that the accused quietly summoned them to
his cell to make a voluntary statement.  The defendant denies
this, of course, but the evidence goes in and the harm has
been done.  No doubt the methods of the inquisition are in
vogue the world over under similar conditions.  Everybody
knows that a statement by the accused immediately upon his
arrest is usually the most important evidence that can be
secured in any case.  It is a police officer's duty to secure
one if he can do so by legitimate means.  It is his custom to
secure one by any means in his power.  As his oath, that such
a statement was voluntary, makes it ipso facto admissible as
evidence, the statutes providing that a defendant cannot be
compelled to give evidence against himself are practically
nullified.

In the more important cases the accused is usually put through
some sort of an inquisitorial process by the captain at the
station-house.  If he is not very successful at getting
anything out of the prisoner the latter is turned over to the
sergeant and a couple of officers who can use methods of a
more urgent character.  If the prisoner is arrested by
headquarters detectives, various efficient devices to compel
him to "give up what he knows" may be used--such as depriving
him of food and sleep, placing him in a cell with a "stool
pigeon" who will try to worm a confession out of him, and the
usual moral suasion of a heart-to-heart talk in the back room
with the inspector.

This is the darker side of the picture of practical
government.  It is needless to say that the police do not
always suggest the various safeguards and privileges which the
law accords to defendants thus arrested, but the writer is
free to confess that, save in exceptional cases, he believes
the rigors of the so-called third degree to be greatly
exaggerated.  Frequently in dealing with rough men rough
methods are used, but considering the multitude of offenders,
and the thousands of police officers, none of whom have been
trained in a school of gentleness, it is surprising that
severer treatment is not generally met with on the part of
those who run afoul of the criminal law.  The ordinary "cop"
tries to do his duty as effectively as he can.  With the
average citizen gruffness and roughness go a long way in the
assertion of authority.  In the task of policing a big city,
the rights of the individual must indubitably suffer to a
certain extent if the rights of the multitude are to be
properly protected.  We can make too much of small injustices
and petty incivilities.  Police business is not gentle
business.  The officers are trying to prevent you and me from
being knocked on the head some dark night or from being
chloroformed in our beds.  Ten thousand men are trying to do a
thirty-thousand-man job.  The struggle to keep the peace and
put down crime is a hard one anywhere.  It requires a strong
arm that cannot show too punctilious a regard for theoretical
rights when prompt decisions have to be made and equally
prompt action taken.  The thieves and gun men have got to be
driven out.  Suspicious characters have got to be locked up.
Somehow or other a record must be kept of professional
criminals and persons likely to be active in law-breaking.
These are necessities in every civilized country.  They are
necessities here.  Society employs the same methods of
self-protection the world over.  No one presumes a person
charged with crime to be innocent, either in Delhi, Pekin,
Moscow, or New York.  Under proper circumstances we believe
him guilty.  When he comes to be tried the jury consider the
evidence, and if they are reasonably sure he is guilty they
convict him.  The doctrine of reasonable doubt is almost as
much of a fiction as that of the presumption of innocence.
From the time a man is arrested until arraignment he is
quizzed with a view to inducing him to admit his offence or
give some evidence that may help convict him.  Logically, why
should not a person charged with a crime be obliged to give
what explanation he can of the affair?  Why should he have the
privilege of silence?  Doesn't he owe a duty to the public the
same as any other witness?  If he is innocent he has nothing
to fear; if he is guilty--away with him!  The French have no
false ideas about such things and at the same time they have a
high regard for liberty.  We merely cheat ourselves into
thinking that our liberty is something different from French
liberty because we have a lot of laws upon our statute books
that are there only to be disregarded and would have to be
repealed instantly if enforced.

Take, for instance, the celebrated provision of the penal laws
that the failure of an accused to testify in his own behalf
shall not be taken against him.  Such a doctrine flies in the
face of human nature.  If a man sits silent when witnesses
under oath accuse him of a crime it is an inevitable inference
that he has nothing to say--that no explanation of his would
explain.  The records show that the vast majority of accused
persons who do not avail themselves of the opportunity to
testify are convicted.  Thus, the law which permits a
defendant to testify in reality compels him to testify, and a
much-invoked safeguard of liberty turns out to be a privilege
in name only.  In France or America alike a man accused of
crime sooner or later has to tell what he knows--or take his
medicine.  It makes little difference whether he does so under
the legalized interrogation of a "juge d'instruction" in Paris
or under the quasi-voluntary examination of an assistant
district attorney or police inspector in New York.  It is six
of one and half a dozen of the other if at his trial in France
he remains mute under examination or in America refrains from
availing himself of the privilege of testifying in his own
behalf.

Thus, we are reluctantly forced to the conclusion that all
human institutions have their limitations, and that, however
theoretically perfect a government of laws may be, it must be
administered by men whose chief regard will not be the
idealization of a theory of liberty so much as an immediate
solution of some concrete problem.

Not that the matter, after all, is particularly important to
most of us, but laws which exist only to be broken create a
disrespect and disregard for law which may ultimately be
dangerous.  It would be perfectly simple for the legislature
to say that a citizen might be arrested under circumstances
tending to create a reasonable suspicion, even if he had not
committed a crime, and it would be quite easy to pass a
statute providing that the commissioner of police might "mug"
and measure all criminals immediately after conviction.  As it
is, the prison authorities won't let him, so he has to do it
while he has the opportunity.

It must be admitted that this is rather hard on the innocent,
but they now have to suffer with the guilty for the sins of an
indolent and uninterested legislature.  Moreover, if such a
right of arrest were proposed, some wiseacre or politician
would probably rise up and denounce the suggestion as the
first step in the direction of a military dictatorship.  Thus,
we shall undoubtedly fare happily on in the blissful belief
that our personal liberties are the subject of the most
solicitous and zealous care on the part of the authorities,
guaranteed to us under a government which is not of men but of
laws, until one of us happens to be arrested (by mistake, of
course) and learns by sad experience the practical methods of
the police in dealing with criminals and the agreeable but
deceptive character of the pleasant fiction of the presumption
of innocence.




CHAPTER II

Preparing a Criminal Case for Trial


When the prosecuting attorney in a great criminal trial arises
to open the case to the impanelled jury, very few, if any, of
them have the slightest conception of the enormous expenditure
of time, thought and labor which has gone into the preparation
of the case and made possible his brief and easily delivered
speech.  For in this opening address of his there must be no
flaw, since a single misstated or overstated fact may
prejudice the jury against him and result in his defeat.  Upon
it also depends the jury's first impression of the case and of
the prosecutor himself--no inconsiderable factor in the
result.  In a trial of importance its careful construction
with due regard to what facts shall be omitted (in order to
enhance their dramatic effect when ultimately proven) may well
occupy the district attorney every evening for a week.  But if
the speech itself has involved study and travail, it is as
nothing compared with the amount required by that most
important feature of every criminal case--the selection of the
jury.

For a month before the trial, or whenever it may be that the
jury has been drawn, every member upon the panel has been
subjected to an unseen scrutiny.  The prosecutor, through his
own or through hired sleuths, has examined into the family
history, the business standing and methods, the financial
responsibility, the political and social affiliations, and the
personal habits and "past performances" of each and every
talesman.  When at the beginning of the trial they, one by
one, take the witness-chair (on what is called the voir dire)
to subject themselves to an examination by both sides as to
their fitness to serve as jurors in the case, the district
attorney probably has close fit hand a rather detailed account
of each, and perchance has great difficulty in restraining a
smile.  When some prospective juror, in his eagerness either
to serve or to escape, deliberately equivocates in answer to
an important question as to his personal history.

"Are you acquainted with the accused or his family?" mildly
inquires the assistant prosecutor.  "No--not at all," the
talesman may blandly reply.

The answer, perhaps, is literally true, and yet the prosecutor
may be pardoned for murmuring

"Liar!" to himself as he sees that his memorandum concerning
the juror's qualifications states that he belongs to the same
"lodge" with the prisoner's uncle by marriage and carries an
open account on his books with the defendant's father.

"I think we will excuse Mr. Ananias," politely remarks the
prosecutor; then in an undertone he turns to his chief and
mutters: "The old rascal!  He would have knifed us if we'd
given him the chance!"  And all this time the disgruntled Mr.
Ananias is wondering why, if he didn't "know the defendant or
his family," he was not accepted as a juror.

Of course, every district attorney has, or should have,
information as to each talesman's actual capabilities as a
juror and something of a record as to how he has acted under
fire.  If he is a member of the "special" panel, it is easy to
find out whether he has ever acquitted or convicted in any
cause celebre, and if he has acquitted any plainly guilty
defendant in the past it is not likely that his services will
be required.  If, however, he has convicted in such a case the
district attorney may try to lure the other side into
accepting him by making it appear that he himself is doubtful
as to the juror's desirability.  Sometimes persons accused of
crime themselves, and actually under indictment, find their
way onto the panels, and more than one ex-convict has appeared
there in some inexplicable fashion.  But to find them out may
well require a double shift of men working day and night for a
month before the case is called, and what may appear to be the
most trivial fact thus discovered may in the end prove the
decisive argument for or against accepting the juror.

Panel after panel may be exhausted before a jury in a great
murder trial has been selected, for each side in addition to
its challenges for "cause" or "bias" has thirty* peremptory
ones which it may exercise arbitrarily.  If the writer's
recollection is not at fault, the large original panel drawn
in the first Molineux trial was used up and several others had
to be drawn until eight hundred talesmen had been interrogated
before the jury was finally selected.  It is usual to examine
at least fifty in the ordinary murder case before a jury is
secured.


* In the State of New York.


It may seem to the reader that this scrutiny of talesmen is
not strictly preparation for the trial, but, in fact, it is
fully as important as getting ready the facts themselves; for
a poor jury, either from ignorance or prejudice, will acquit
on the same facts which will lead a sound jury to convict.  A
famous prosecutor used to say, "Get your jury--the case will
take care of itself."

But as the examination of the panel and the opening address
come last in point of chronology it will be well to begin at
the beginning and see what the labors of the prosecutor are in
the initial stages of preparation.  Let us take, for example,
some notorious case, where an unfortunate victim has died from
the effects of a poisoned pill or draught of medicine, or has
been found dead in his room with a revolver bullet in his
heart.  Some time before the matter has come into the hands of
the prosecutor, the press and the police have generally been
doing more or less (usually less) effective work upon the
case.  The yellow journals have evolved some theory of who is
the culprit and have loosed their respective reporters and
"special criminologists" upon him.  Each has its own idea and
its own methods--often unscrupulous.  And each has its own
particular victim upon whom it intends to fasten the blame.
Heaven save his reputation!  Many an innocent man has been
ruined for life through the efforts of a newspaper "to make a
case," and, of course, the same thing, though happily in a
lesser degree, is true of the police and of some prosecutors
as well.

In every great criminal case there are always four different
and frequently antagonistic elements engaged in the work of
detection and prosecution--first, the police; second, the
district attorney; third, the press; and, lastly, the personal
friends and family of the deceased or injured party.  Each
for its own ends--be it professional pride, personal
glorification, hard cash, or revenge--is equally anxious to
find the evidence and establish a case.  Of course, the police
are the first ones notified of the commission of a crime, but
as it is now almost universally their duty to inform at once
the coroner and also the district attorney thereof, a
tripartite race for glory frequently results which adds
nothing to the dignity of the administration of criminal
justice.

The coroner is at best no more than an appendix to the legal
anatomy, and frequently he is a disease.  The spectacle of a
medical man of small learning and less English trying to
preside over a court of first instance is enough to make the
accused himself chuckle for joy.

Not long ago the coroners of New York discovered that, owing
to the fact that the district attorney or his representatives
generally arrived first at the scene of any crime, there was
nothing left for the "medicos" to do, for the district
attorney would thereupon submit the matter at once to the
grand jury instead of going through the formality of a hearing
in the coroner's court.  The legal medicine men felt
aggrieved, and determined to be such early birds that no worm
should escape them.  Accordingly, the next time one of them
was notified of a homicide he raced his horse down Madison
Avenue at such speed that he collided with a trolley car and
broke his leg.

Another complained to the district attorney that the
assistants of the latter, who had arrived at the scene of an
asphyxiation before him, had bungled everything.

"Ach, dose young men!" he exclaimed, wringing his hands--"Dose
young men, dey come here and dey opened der vindow and let out
der gas and all mine evidence esgaped."

It is said that this interesting personage once instructed his
jury to find that "the diseased came to his death from an
ulster on the stomach."

These anecdotes are, perhaps, what judges would call obiter
dicta, yet the coroner's court has more than once been
utilized as a field in the actual preparation of a criminal
case.  When Roland B. Molineux was first suspected of having
caused the death of Mrs. Adams by sending the famous poisoned
package of patent medicine to Harry Cornish through the mails,
the assistant district attorney summoned him as a witness to
the coroner's court and attempted to get from him in this way
a statement which Molineux would otherwise have refused to
make.

When all the first hullabaloo is over and the accused is under
arrest and safely locked up, it is usually found that the
police have merely run down the obvious witnesses and made a
prima facie case.  All the finer work remains to be done
either by the district attorney himself or by the detective
bureau working under his immediate direction or in harmony
with him.  Little order has been observed in the securing of
evidence.  Every one is a fish who runs into the net of the
police, and all is grist that comes to their mill.  The
district attorney sends for the officers who have worked upon
the case and for the captain or inspector who has directed
their efforts, takes all the papers and tabulates all their
information.  His practiced eye shows him at once that a large
part is valueless, much is contradictory, and all needs
careful elaboration.  A winnowing process occurs then and
there; and the officers probably receive a "special detail"
from headquarters and thereafter take their orders from the
prosecutor himself.  The detective bureau is called in and
arrangements made for the running down of particular clues.
Then he will take off his coat, clear his desk, and get down
to work.

Of course, his first step is to get all the information he can
as to the actual facts surrounding the crime itself.  He
immediately subpoenas all the witnesses, whether previously
interrogated by the police or not, who know anything about the
matter, and subjects them to a rigorous cross-examination.
Then he sends for the police themselves and cross-examines
them.  If it appears that any witnesses have disappeared he
instructs his detectives how and where to look for them.
Often this becomes in the end the most important element in
the preparation for the trial.  Thus in the Nan Patterson case
the search for and ultimate discovery of Mr. and Mrs. Morgan
Smith (the sister and brother-in-law of the accused) was one
of its most dramatic features.  After they had been found it
was necessary to indict and then to extradite them in order to
secure their presence within the jurisdiction, and when all
this had been accomplished it proved practically valueless.

It frequently happens that an entire case will rest upon the
testimony of a single witness whose absence from the
jurisdiction would prevent the trial.  An instance of such a
case was that of Albert T. Patrick, for without the testimony
of his alleged accomplice--the valet, Jones--he could not have
been convicted of murder.  The preservation of such a witness
and his testimony thus becomes of paramount importance, and
rascally witnesses sometimes enjoy considerable ease, if not
luxury, at the expense of the public while waiting to testify.
Often, too, a case of great interest will arise where the
question of the guilt of the accused turns upon the evidence
of some one person who, either from mercenary motives or
because of "blood and affection," is unwilling to come to the
fore and tell the truth.  A striking case of this sort
occurred some ten years ago.  The "black sheep" of a prominent
New York family forged the name of his sister to a draft for
thirty thousand dollars.  This sister, who was an elderly
woman of the highest character and refinement, did not care to
pocket the loss herself and declined to have the draft debited
to her account at the bank.  A lawsuit followed, in which the
sister swore that the name signed to the draft was not in her
handwriting.  She won her case, but some officious person laid
the matter before the district attorney.  The forger was
arrested and his sister was summoned before the grand jury.
Here was a pleasant predicament.  If she testified for the
State her brother would undoubtedly go to prison for many
years, to say nothing of the notoriety for the entire family
which so sensational a case would occasion.  She, therefore,
slipped out of the city and sailed for Europe the night before
she was to appear before the grand jury.  Her brother was in
due course indicted and held for trial in large bail, but
there was and is no prospect of convicting him for his crime
so long as his sister remains in the voluntary exile to which
she has subjected herself.  She can never return to New York
to live unless something happens either to the indictment or
her brother, neither of which events seems likely in the
immediate future.

Perhaps, if the case is one of shooting, the weapon has
vanished.  Its discovery may lead to the finding of the
murderer.  In one instance where a body was found in the woods
with a bullet through the heart, there was nothing to indicate
who had committed the crime.  The only scintilla of evidence
was an exploded cartridge--a small thing on which to build a
case.  But the district attorney had the hammer marks upon the
cap magnified several hundred times and then set out to find
the rifle which bore the hammer which had made them.
Thousands of rifles all over the State were examined.  At last
in a remote lumber camp was found the weapon which had fired
the fatal bullet.  The owner was arrested, accused of the
murder, and confessed his crime.  In like manner, if it
becomes necessary to determine where a typewritten document
was prepared the letters may be magnified, and by examining
the ribbons of suspected machines the desired fact may be
ascertained.  The magnifying glass still plays an important
part in detecting crime, although usually in ways little
suspected by the general public.

On the other hand, where the weapon has not been spirited away
the detectives may spend weeks in discovering when and where
it was purchased.  Every pawnshop, every store where a pistol
could be bought, is investigated, and under proper
circumstances the requisite evidence to show deliberation and
premeditation may be secured.

These investigations are naturally conducted at the very
outset of the preparation of the case.

The weapon, in seven trials out of ten, is the most important
thing in it.  By its means it can generally be demonstrated
whether the shooting was accidental or intentional--and
whether or not the killing was in self-defence.

Where this last plea is interposed it is usually made at once
upon the arrest, the accused explaining to the police that he
fired only to save his own life.  In such a situation, where
the killing is admitted, practically the entire preparation
will centre upon the most minute tests to determine whether or
not the shot was fired as the accused claims that it was.  The
writer can recall at least a dozen cases in his own experience
where the story of the defendant, that the revolver was
discharged in a hand-to-hand struggle, was conclusively
disproved by experimenting with the weapon before the trial.
There was one homicide in which a bullet perforated a felt cap
and penetrated the forehead of the deceased.  The defendant
asserted that he was within three feet of his victim when he
fired, and that the other was about to strike him with a
bludgeon.  A quantity of felt, of weight similar to that of
the cap, was procured and the revolver discharged at it from
varying distances.  A microscopic examination showed that
certain discolorations around the bullet-hole (claimed by the
defence to be burns made by the powder) were, in fact, grease
marks, and that the shot must have been fired from a distance
of about fifteen feet.  The defendant was convicted on his own
story, supplemented by the evidence of the witness who made
the tests.

The most obvious and first requirement is, as has been said,
to find the direct witnesses to the facts surrounding the
crime, commit their statements under oath to writing, so that
they cannot later be denied or evaded, and make sure that
these witnesses will not only hold no intercourse with the
other side, but will be on hand when wanted.  This last is not
always an easy task, and various expedients often have to be
resorted to, such as placing hostile witnesses under police
surveillance, or in some cases in "houses of detention," and
hiding others in out-of-the-way places, or supplying them with
a bodyguard if violence is to be anticipated.  When the proper
time comes the favorable witnesses must be duly drilled or
coached, which does not imply anything improper, but means
merely that they must be instructed how to deliver their
testimony, what answers are expected to certain questions, and
what facts it is intended to elicit from them.  Witnesses are
often offended and run amuck because they are not given a
chance upon the stand to tell the story of their lives.  This
must be guarded against and steps taken to have their
statements given in such a way that they are audible and
intelligible.  A few lessons in elementary elocution are
generally vitally necessary.  The man with the bassoon voice
must be tamed, and the birdlike old lady made to chirp more
loudly.  But all this is the self-evident preparation which
must take place in every case, and while highly important is
of far less interest than the development of the
circumstantial evidence which is the next consideration of the
district attorney.

The discovery and proper proof of minute facts which tend to
demonstrate the guilt of an accused are the joy of the natural
prosecutor, and he may in his enthusiasm spend many thousands
of dollars on what seems, and often is, an immaterial matter.
Youthful officials intrusted with the preparation of important
cases often become unduly excited and forget that the
taxpayers are paying the bills.  The writer remembers sitting
beside one of these enthusiasts during a celebrated trial.  A
certain woman witness had incidentally testified to a remote
meeting with the deceased at which a certain other woman was
alleged to have been present.  The matter did not seem of much
interest or importance, but the youth in question seized a
yellow pad and excitedly wrote in blue pencil, "Find Birdie"
(the other lady) "at any cost!"  This he handed to a
detective, who hastened importantly away.  It is to be hoped
that "Birdie" was found speedily and in an inexpensive manner.

When the case against Albert T. Patrick, later convicted of
the murder of the aged William M. Rice, was in course of
preparation, it was found desirable to show that Patrick had
called up his accomplice on the telephone upon the night of
the murder.  Accordingly, the telephone company was compelled
to examine several hundred thousand telephone slips to
determine whether or not this had actually occurred.  While
the fact was established in the affirmative, the company now
destroys its slips in order not to have to repeat the
performance a second time.

Likewise, in the preparation of the Molineux case it became
important to demonstrate that the accused had sent a letter
under an assumed name ordering certain remedies.  As a result,
one of the employees of the patent-medicine company spent
several months going over their old mail orders and comparing
them with a certain sample, until at last the letter was
unearthed.  Of course, the district attorney had to pay for
it, and it was probably worth what it cost to the prosecution,
although Molineux's conviction was reversed by the Court of
Appeals and he was acquitted upon his second trial.

The danger is, however, that a prosecutor who has an unlimited
amount of money at his disposal may be led into expenditures
which are hardly justified simply because he thinks they may
help to secure a conviction.  Nothing is easier than to waste
money in this fashion, and public officials sometimes spend
the county's money with considerably more freedom than they
would their own under similar circumstances.

The legitimate expenses connected with the preparation of
every important case are naturally large.  For example,
diagrams must be prepared, photographs taken of the place of
the crime, witnesses compensated for their time and their
expenses paid, and, most important of all, competent experts
must be engaged.  This leads us to an interesting aspect of
the modern jury trial.

When no other defence to homicide is possible the claim of
insanity is frequently interposed.  Nothing is more confusing
to the ordinary juryman than trying to determine the probative
value of evidence touching unsoundness of mind, and the
application thereto of the legal test of criminal
responsibility.  In point of fact, juries are hardly to be
blamed for this, since the law itself is antiquated and the
subject one abounding in difficulty.  Unfortunately the
opportunity for vague yet damaging testimony on the part of
experts, the ease with which any desired opinion can be
defended by a slight alteration in the hypothetical facts, and
the practical impossibility of exposure, have been seized upon
with avidity by a score or more of unscrupulous alienists who
are prepared to sell their services to the highest bidder.
These men are all the more dangerous because, clever students
of mental disease and thorough masters of their subject as
they are, they are able by adroit qualifications and skilful
evasions to make half-truths seem as convincing as whole ones.
They ask and receive large sums for their services, and their
dishonest testimony must be met and refuted by the evidence of
honest physicians, who, by virtue of their attainments, have a
right to demand substantial fees.  Even so, newspaper reports
of the expense to the State of notorious trials are grossly
exaggerated.  The entire cost of the first Thaw trial to the
County of New York was considerably less than twenty thousand
dollars, and the second trial not more than half that amount.
To the defence, however, it was a costly matter, as the recent
schedules in bankruptcy of the defendant show.  Therein it
appears that one of his half-dozen counsel still claims as
owing to him for his services on the first trial the modest
sum of thirty-five thousand dollars.  The cost of the whole
defence was probably ten times that sum.  Most of the money
goes to the lawyers, and the experts take the remainder.

It goes without saying that both prosecutor and attorney for
the defence must be masters of the subject involved.  A trial
for poisoning means an exhaustive study not only of analytic
chemistry, but of practical medicine on the part of all the
lawyers in the case, while a plea of insanity requires that,
for the time being, the district attorney shall become an
alienist, familiar with every aspect of paranoia, dementia
praecox, and all other forms of mania.  He must also reduce
his knowledge to concrete, workable form, and be able to
defeat opposing experts on their own ground.  But such
knowledge comes only by prayer and fasting--or, perhaps,
rather by months of hard and remorseless grind.

The writer once prosecuted a druggist who had, by mistake,
filled a prescription for a one-fourth-grain pill of calomel
with a one-fourth-grain pill of morphine.  The baby for whom
the pill was intended died in consequence.  The defence was
that the prescription had been properly filled, but that the
child was the victim of various diseases, from acute gastritis
to cerebro-spinal meningitis.  In preparation the writer was
compelled to spend four hours every evening for a week with
three specialists, and became temporarily a minor expert on
children's diseases.  To-day he is forced to admit that he
would not know a case of acute gastritis from one of mumps.
But the druggist was convicted.

Yet it is not enough to prepare for the defence you believe
the accused is going to interpose.  A conscientious
preparation means getting ready for any defence he may
endeavor to put in.  Just as the prudent general has an eye
to every possible turn of the battle and has, if he can,
re-enforcements on the march, so the prosecutor must be ready
for anything, and readiest of all for the unexpected.  He must
not rest upon the belief that the other side will concede any
fact, however clear it may seem.  Some cases are lost simply
because it never occurs to the district attorney that the
accused will deny something which the State has twenty
witnesses to prove.  The twenty witnesses are, therefore, not
summoned on the day of trial, the defendant does deny it, and
as it is a case of word against word the accused gets the
benefit of the doubt and, perhaps, is acquitted.

No case is properly prepared unless there is in the court-room
every witness who knows anything about any aspect of the case.
No one can foretell when the unimportant will become the
vital.  Most cases turn on an unconsidered point.  A
prosecutor once lost what seemed to him the clearest sort of a
case.  When it was all over, and the defendant had passed out
of the courtroom rejoicing, he turned to the foreman and asked
the reason for the verdict.

"Did you hear your chief witness say he was a carpenter?"
inquired the foreman.

"Why, certainly," answered the district attorney,

"Did you hear me ask him what he paid for that ready-made pine
door he claimed to be working on when he saw the assault?"

The prosecutor recalled the incident and nodded.

"Well, he said ten dollars--and I knew he was a liar.  A door
like that don't cost but four-fifty!"

It is, perhaps, too much to require a knowledge of carpentry
on the part of a lawyer trying an assault case.  Yet the juror
was undoubtedly right in his deduction.

In a case where insanity is the defence, the State must dig up
and have at hand every person it can find who knew the accused
at any period of his career.  He will probably claim that in
his youth he was kicked in a game of foot-ball and fractured
his skull, that later he fell into an elevator shaft and had
concussion of the brain, or that he was hit on the head by a
burglar.  It is usually difficult, if not impossible, to
disprove such assertions, but the prosecutor must be ready, if
he can, to show that foot-ball was not invented until after
the defendant had attained maturity, that it was some other
man who fell down the elevator shaft, and to produce the
burglar to deny that the assault occurred.  Naturally,
complete preparation for an important trial demands the
presence of many witnesses who ultimately are not needed and
who are never called.  Probably in most such cases about half
the witnesses do not testify at all.  Most of what has been
said relates to the preparation for trial of cases where the
accused is already under arrest when the district attorney is
called into the case.  If this stage has not been reached the
prosecutor may well be called upon to exercise some of the
functions of a detective in the first instance.

A few years ago it was brought to the attention of the New
York authorities that many blackmailing letters were being
received bearing the name of "Lewis Jarvis."  These were of a
character to render the apprehension of the writer of them a
matter of much importance.  The letters directed that the
replies be sent to a certain box in the New York post-office,
but as the boxes are numerous and close together it seemed
doubtful if "Lewis Jarvis" could be detected when he called
for his mail.  The district attorney, the police, and the
post-office officials finally evolved the scheme of plugging
the lock of "Lewis Jarvis's" box with a match.  The scheme
worked, for "Jarvis," finding that he could not use his key,
went to the delivery window and asked for his mail.  The very
instant the letters reached his hand the gyves were upon the
wrists of one of the best-known attorneys in the city.

When the district attorney has been apprised that a crime has
been committed, and that a certain person is the guilty party,
he not infrequently allows the suspect to go his way under the
careful watch of detectives, and thus often secures much new
evidence against him.  In this way it is sometimes established
that the accused has endeavored to bribe the witnesses and to
induce them to leave the State, while the whereabouts of
stolen loot is often discovered.  In most instances, however,
the district attorney begins where the police leave off, and
he merely supplements their labors and prepares for the actual
trial itself.  But the press he has always with him, and from
the first moment after the crime up to the execution of the
sentence or the liberation of the accused, the reporters dog
his footsteps, sit on his doorstep, and deluge him with advice
and information.

Now a curious feature about the evidence "worked up" by
reporters for their papers is that little of it materializes
when the prosecutor wishes to make use of it.  Of course,
some reporters do excellent detective work, and there are one
or two veterans attached to the criminal courts in New York
City who, in addition to their literary capacities, are
natural-born sleuths, and combine with a knowledge of criminal
law, almost as extensive as that of a regular prosecutor, a
resourcefulness and nerve that often win the case for
whichever side they espouse.  I have frequently found that
these men knew more about the cases which I was prosecuting
than I did myself, and a tip from them has more than once
turned defeat into victory.  But newspaper men, for one reason
or another, are loath to testify, and usually make but poor
witnesses.  They feel that their motives will be questioned,
and are naturally unwilling to put themselves in an equivocal
position.  The writer well remembers that in the Mabel Parker
case, where the defendant, a young and pretty woman, had
boasted of her forgeries before a roomful of reporters, it was
impossible, when her trial was called, to find more than one
of them who would testify--and he had practically to be
dragged to the witness chair.  In point of fact, if reporters
made a practice of being witnesses it would probably hurt
their business.  But, however much "faked" news may be
published, a prosecutor who did not listen to all the hints
the press boys had to give would make a great mistake; and as
allies and advisers they are often invaluable, for they can
tell him where and how to get evidence of which otherwise he
would never hear.

The week before a great case is called is a busy one for the
prosecutor in charge.  He is at his office early to interview
his main witnesses and go over their testimony with them so
that their regular daily work may not be interrupted more than
shall be actually necessary.  Some he cautions against being
overenthusiastic and others he encourages to greater emphasis.
The bashful "cop" is badgered until at last he ceases to begin
his testimony in the cut-and-dried police fashion.

"On the morning of the twenty-second of July, about 3.30 A.M.,
while on post at the corner of Desbrosses Street--," he
starts.

"Oh, quit that!" shouts the district attorney.  "Tell me what
you saw in your own words."

The "cop" blushes and stammers:

"Aw, well, on the morning of the twenty-second of July, about
3.30 A.M."

"Look here!" yells the prosecutor, jumping to his feet and
shaking his fist at him, "do you want to be taken for a d--n
liar?  `Morning of the twenty-second of July, about 3.30 A.M.,
while on post I' You never talked like that in your life."

By this time the "cop" is "mad clear through."

"I'm no liar!" he retorts.  "I saw the ------ pull his gun and
shoot!"

"Well, why didn't you say so?" laughs the prosecutor, and the
officer mollified with a cigar, dimly perceives the
objectionable feature of his testimony.

About this time one of the sleuths comes in to report that
certain much-desired witnesses have been "located" and are in
custody downstairs.  The assistant makes immediate preparation
for taking their statements.  Then one of the experts comes in
for a chat about a new phase of the case occasioned by the
discovery that the defendant actually did have spasms when an
infant.  The assistant wisely makes an appointment for the
evening.  A telegram arrives saying that a witness for the
defence has just started for New York from Philadelphia and
should be duly watched on arrival.  The district attorney
sends for the assistant to inquire if he has looked up the law
on similar cases in Texas and Alabama--which he probably has
not done; and a friend on the telephone informs him that
Tomkins, who has been drawn on the jury, is a boon companion
of the prisoner and was accustomed to play bridge with him
every Sunday night before the murder.

Coincidently, some private detectives enter with a long report
on the various members of the panel, including the aforesaid
Tomkins, whom they pronounce to be "all right," and as never
having, to their knowledge, laid eyes on the accused.
Finally, in despair, the prosecutor locks himself in his
library with a copy of the Bible, "Bartlett's Familiar
Quotations," and a volume of celebrated speeches, to prepare
his summing up, for no careful trial lawyer opens a case
without first having prepared, to some extent, at least, his
closing address to the jury.  He has thought about this for
weeks and perhaps for months.  In his dreams he has formulated
syllogisms and delivered them to imaginary yet obstinate
talesman.  He has glanced through many volumes for similes and
quotations of pertinency.  He has tried various arguments on
his friends until he knows just how, if he succeeds in proving
certain facts and the defence expected is interposed, he is
going to convince the twelve jurors that the defendant is
guilty and, perhaps, win an everlasting reputation as an
orator himself.

This superficial sketch of how an important criminal case is
got ready for trial would be incomplete without some further
reference to something which has been briefly hinted at
before--preparation upon its purely legal aspect.  This may
well demand almost as much labor as that required in amassing
the evidence.  Yet a careful and painstaking investigation of
the law governing every aspect of the case is indispensable to
success.  The prosecutor with a perfectly clear case may see
the defendant walk out of court a free man, simply because he
has neglected to acquaint himself with the various points of
law which may arise in the course of the trial, and the lawyer
for an accused may find his client convicted upon a charge to
which he has a perfectly good legal defence, for the same
reason.

Looking at it from the point of view of the prisoner's
counsel, it is obvious that it is quite as efficacious to free
your client on a point of law, without having the case go to
the jury at all, as to secure an acquittal at their hands.

At the conclusion of the evidence introduced in behalf of the
State there is always a motion made to dismiss the case on the
ground of alleged insufficiency in the proof.  This has
usually been made the subject of the most exhaustive study by
the lawyers for the defence, and requires equal preparation on
the part of the prosecutor.  The writer recalls trying a
bankrupt, charged with fraud, where the lawyer for the
defendant had written a brief of some three hundred pages upon
the points of law which he proposed to argue to the court upon
his motion to acquit.  But, unfortunately, his client pleaded
guilty and the volume was never brought into play.

But a mastery of the law, a thorough knowledge and control of
the evidence, a careful preparation for the opening and
closing addresses, and an intimate acquaintance with the panel
from which the jury is to be drawn are by no means the only
elements in the preparation for a great legal battle.  One
thing still remains, quite as important as the rest--the
selection of the best time and the best court for the trial.
"A good beginning" in a criminal case means a beginning before
the right judge, the proper jury, and at a time when that
vague but important influence known as public opinion augurs
success.  A clever criminal lawyer, be he prosecutor or
lawyer for the defendant, knows that all the preparation in
the world is of no account provided his case is to come before
a stupid or biased judge, or a prejudiced or obstinate jury.
Therefore, each side, in a legal battle of importance,
studies, as well as it can, the character, connections, and
cast of mind of the different judges who may be called upon to
hear the case, and, like a jockey at the flag, tries to hurry
or delay, as the case may be, until the judicial auspices
appear most favorable.  A lawyer who has a weak defence seeks
to bring the case before a weak judge, or, if public clamor is
loud against his client, makes use of every technical artifice
to secure delay, by claiming that there are flaws in the
indictment, or by moving for commissions to take testimony in
distant points of the country.  The opportunities for legal
procrastination are so numerous that in a complicated case the
defence may often delay matters for over a year.  This may be
an important factor in the final result.

Yet even this is not enough, for, ultimately, it is the
judge's charge to the jury which is going to guide their
deliberations and, in large measure, determine their verdict.
The lawyers for the defence, therefore, prepare long
statements of what they either believe or pretend to believe
to be the law.  These statements embrace all the legal
propositions, good or bad, favorable to their side of the
case.  If they can induce the judge to follow these so much
the better for their client, for even if they are not law it
makes no difference, since the State has no appeal from an
acquittal in a criminal case, no matter how much the judge has
erred.  In the same way, but not in quite the same fashion,
the district attorney prepares "requests to charge," but his
desire for favorable instructions should be, and generally is,
curbed by the consideration that if the judge makes any
mistake in the law and the defendant is convicted he can
appeal and upset the case.  Of course, some prosecutors are so
anxious to convict that they will wheedle or deceive a judge
into giving charges which are not only most inimical to the
prisoner, but so utterly unsound that a reversal is sure to
follow; but when one of these professional bloodhounds is
baying upon the trail all he thinks of is a conviction--that
is all he wants, all the public will remember; to him will be
the glory; and when the case is finally reversed he will
probably be out of office.  These "requests" cover pages, and
touch upon every phase of law applicable or inapplicable to
the case.  Frequently they number as many as fifty, sometimes
many more.  It is "up to" the judge to decide "off the bat"
which are right and which are wrong.  If he guesses that the
right one is wrong or the wrong one right the defendant gets a
new trial.




CHAPTER III

Sensationalism and Jury Trials


For the past twenty-five years we have heard the cry upon all
sides that the jury system is a failure, and to this general
indictment is frequently added the specification that the
trials in our higher courts of criminal justice are the scenes
of grotesque buffoonery and merriment, where cynical juries
recklessly disregard their oaths and where morbid crowds flock
to satisfy the cravings of their imaginations for details of
blood and sexuality.

It is unnecessary to question the honesty of those who thus
picture the administration of criminal justice in America.
Indeed, thus it probably appears to them.  But before such an
arraignment of present conditions in a highly civilized and
progressive nation is accepted as final, it is well to examine
into its inherent probabilities and test it by what we know of
the actual facts.

In the first place, it should be remembered that the jury was
instituted and designed to protect the English freeman from
tyranny upon the part of the crown.  Judges were, and
sometimes still are, the creatures of a ruler or unduly
subject to his influence.  And that ruler neither was, nor is,
always the head of the nation; but just as in the days of the
Normans he might have been a powerful earl whose influence
could make or unmake a judge, so to-day he may be none the
less a ruler if he exists in the person of a political boss
who has created the judge before whom his political enemy is
to be tried.  The writer has seen more than one judge openly
striving to influence a jury to convict or to acquit a
prisoner at the dictation of such a boss, who, not content to
issue his commands from behind the arras, came to the
courtroom and ascended the bench to see that they were obeyed.
Usually the jury indignantly resented such interference and
administered a well-merited rebuke by acting directly contrary
to the clearly indicated wishes of the judge.

But while admitting its theoretic value as a bulwark of
liberty, the modern assailant of the jury brushes the
consideration aside by asserting that the system has "broken
down" and "degenerated into a farce."

Let us now see how much of a farce it is.  If four times out
of five a judge rendered decisions that met with general
approval, he would probably be accounted a highly satisfactory
judge.  Now, out of every one hundred indicted prisoners
brought to the bar for trial, probably fifteen ought to be
acquitted if prosecuted impartially and in accordance with the
strict rules of evidence.  In the year 1910 the juries of New
York County convicted in sixty-six per cent of the cases
before them.  If we are to test fairly the efficiency of the
system, we must deduct from the thirty-four acquittals
remaining the fifteen acquittals which were justifiable.  By
so doing we shall find that in the year 1910 the New York
County juries did the correct thing in about eighty-one cases
out of every hundred.  This is a high percentage of
efficiency.*  Is it likely that any judge would have done much
better?
       _______________________________________

* The following table gives the yearly percentages of
convictions and acquittals by verdict in New York County since
1901:

           NUMBER        NUMBER
YEAR     CONVICTIONS   ACQUITTALS  CONVICTIONS   ACQUITTALS
          BY VERDICT   BY VERDICT   PER CENT      PER CENT

1901........551...........344..........62............38
1902........419...........349..........55............45
1903........485...........307..........61............39
1904........495...........357..........58............42
1905........489...........299..........62............38
1906........464...........246..........65............35
1907........582...........264..........68............32
1908........649...........301..........62............38
1909........463...........235..........66............34
1910........649...........325..........66............34
       _______________________________________

After a rather long experience as a prosecutor, in which he
conducted many hundreds of criminal cases, the writer believes
that the ordinary New York City jury finds a correct general
verdict four times out of five.  As to talesmen in other
localities he has no knowledge or reliable information.  It
seems hardly possible, however, that juries in other parts of
the United States could be more heterogeneous or less
intelligent than those before which he formed his conclusions.
Of course, jury judgments are sometimes flagrantly wrong.  But
there are many verdicts popularly regarded as examples of
lawlessness which, if examined calmly and solely from the
point of view of the evidence, would be found to be the
reasonable acts of honest and intelligent juries.

For example, the acquittal of Thaw upon the ground of insanity
is usually spoken of as an illustration of sentimentality on
the part of jurymen, and of their willingness to be swayed by
their emotions where a woman is involved.  But few clearer
cases of insanity have been established in a court of justice.
The district attorney's own experts had pronounced the
defendant a hopeless paranoiac; the prosecutor had, at a
previous trial, openly declared the same to be his own
opinion; and the evidence was convincing.  At the time it was
rendered, the verdict was accepted as a foregone conclusion.
To-day the case is commonly cited as proof of the gullibility
of juries and of the impossibility of convicting a rich man of
a crime.

There will always be some persons who think that every
defendant should be convicted and feel aggrieved if he is
turned out by the jury.  Yet they entirely forget, in their
displeasure at the acquittal of a man whom they instinctively
"know" to be guilty, that the jury probably had exactly the
same impression, but were obliged under their oaths to acquit
because of an insufficiency of evidence.

An excellent illustration of such a case is that of Nan
Patterson.  She is commonly supposed to have attended, upon
the night of her acquittal, a banquet at which one of her
lawyers toasted her as "the guilty girl who beat the case."
Whether she was guilty or not, there is a general impression
that she murdered Caesar Young.  Yet the writer, who was
present throughout the trial, felt at the conclusion of the
case that there was a fairly reasonable doubt of her guilt.
Even so, the jury disagreed, although the case is usually
referred to as an acquittal and a monument to the
sentimentality of juries.

The acquittal of Roland B. Molineux is also recalled as a case
where a man, previously proved guilty, managed to escape.  The
writer, who was then an assistant district attorney, made a
careful study of the evidence at the time, and feels confident
that the great majority of the legal profession would agree
with him in the opinion that the Court of Appeals had no
choice but to reverse the defendant's first conviction on
account of the most prejudicial error committed at the trial,
and that the jury who acquitted him upon the second occasion
had equally no choice when the case was presented with a
proper regard to the rules of evidence and procedure.  Indeed,
on the second trial the evidence pointed almost as
convincingly toward another person as toward the defendant.

I have mentioned the Patterson, Thaw, and Molineux trials
because they are cases commonly referred to in support of the
general contention that the jury system is a failure.  But I
am inclined to believe that any single judge, bench of judges,
or board of commissioners would have reached the same result
as the juries did in these instances.

It is quite true that juries, for rather obvious reasons, are
more apt to acquit in murder cases than in others.  In the
first place, save where the defendant obviously belongs to the
vicious criminal class, a jury finds it somewhat difficult to
believe, unless overwhelming motive be shown, that he could
have deliberately taken another's life.  Thus, with sound
reason, they give great weight to the plea of self-defence
which the accused urges upon them.  He is generally the only
witness.  His story has to be disproved by circumstantial
evidence, if indeed there be any.  Frequently it stands alone
as the only account of the homicide.  Thus murder cases are
almost always weaker than others, since the chief witness has
been removed by death; while at the same time the nature of
the punishment leads the jury unconsciously to require a
higher degree of proof than in cases where the consequences
are less abhorrent.  All this is quite natural and inevitable.
Moreover, homicide cases as a rule are better defended than
others, a fact which undoubtedly affects the result.  These
considerations apply to all trials for homicide, notorious or
otherwise, the results of which in New York County for ten
years are set forth in the following table:

YEAR     CONVICTIONS   ACQUITTALS  CONVICTIONS   ACQUITTALS
                                    PER CENT      PER CENT
1901.........25............17..........60............40
1902.........31............11..........74............26
1903.........42.............8..........84............16
1904.........37............14..........72............28
1905.........32............13..........71............29
1906.........53............22..........70............30
1907.........39............10..........78............22
1908.........35............17..........67............33
1909.........43............11..........80............20
1910.........45............15..........75............25
TOTAL.......382...........138......Av. 74........Av. 27


A popular impression exists at the present time that a man
convicted of murder has but to appeal his case on some
technical ground in order to secure a reversal, and thus
escape the consequences of his crime.  How wide of the mark
such a belief may be, at least so far as one locality is
concerned, is shown by the fact that in New York State, from
1887 to 1907, there were 169 decisions by the Court of Appeals
on appeals from convictions of murder in the first degree, out
of which there were only twenty-nine reversals.  Seven of
these defendants were again immediately tried and convicted,
and a second time appealed, upon which occasion only two were
successful, while five had their convictions promptly
affirmed.  Thus, so far as the ultimate triumph of justice is
concerned, out of 169 cases in that period the appellants
finally succeeded in twenty-two only.

Since 1902 there have been twenty-seven decisions rendered in
first-degree murder cases by the Court of Appeals, with only
three reversals.* (* Written in 1909.)  The more important
convictions throughout the State are affirmed with great
regularity.

As to the conduct of such cases, the writer's own experience
is that a murder trial is the most solemn proceeding known
to the law.  He has prosecuted at least fifty men for murder,
and convicted more than he cares to remember.  Such trials
are invariably dignified and deliberate so far as the conduct
of the legal side of the case is concerned.  No judge,
however unqualified for the bench; no prosecutor, however
light-minded; no lawyer however callous, fails to feel the
serious nature of the transaction or to be affected strongly
by the fact that he is dealing with life, and death.  A
prosecutor who openly laughed or sneered at a prisoner charged
with murder would severely injure his cause.  The jury,
naturally, are overwhelmed with the gravity of the occasion
and the responsibility resting upon them.

In the Patterson, Thaw, and Molineux cases the evidence,
unfortunately, dealt with unpleasant subjects and at times was
revolting, but there was a quiet propriety in the way in which
the witnesses were examined that rendered it as inoffensive as
it could possibly be.  Outside the court-room the vulgar crowd
may have spat and sworn; and inside no doubt there were
degenerate men and women who eagerly strained their ears to
catch every item of depravity.  But the throngs that filled
the courtroom were quiet and well ordered, and the justified
interested outnumbered the morbid.

The writer deprecates the impulse which leads judges, from a
feeling that justice should be publicly administered, to throw
wide the doors of every courtroom, irrespective of the
subject-matter of the trial.  We need have no fear of Star
Chamber proceedings in America, and no harm would be done by
excluding from the courtroom all persons who have no business
there.

It is, of course, not unnatural that in the course of a trial
occupying weeks or months the tension should occasionally be
relieved by a gleam of humor.  After one has been busy trying
a case for a couple of weeks one goes to court and sets to
work in much the same frame of mind in which one would attack
any other business.  But the fact that a small boy sometimes
sees something funny at a funeral, or a bevy of giggling
shop-girls may be sitting in the gallery at a fashionable
wedding, argues little in respect to the solemnity or beauty
of the service itself.

What are the celebrated cases--the trials that attract the
attention and interest of the public?  In the first place,
they are the very cases which contain those elements most
likely to arouse the sympathy and prejudices of a jury--where
a girl has taken the life of her supposed seducer, or a
husband has avenged his wife's alleged dishonor.  Such cases
arouse the public imagination for the very reason that every
man realizes that there are two sides to every genuine tragedy
of this character--the legal and the natural.  Thus, aside
from any other consideration, they are the obvious instances
where justice is most likely to go astray.

In the next place, the defence is usually in the hands of
counsel of adroitness and ability; for even if the prisoner
has no money to pay his lawyer, the latter is willing to take
the case for the advertising he will get out of it.

Third, a trial which lasts for a long time naturally results
in creating in the jury's mind an exaggerated idea of the
prisoner's rights, namely, the presumption of innocence and
the benefit of the reasonable doubt.  For every time that the
jury will hear these phrases once in a petty larceny or
forgery case, they will hear them in a lengthy murder trial a
hundred times.  They see the defendant day after day, and the
relation becomes more personal.  Their responsibility seems
greater toward him than toward the defendant in petty cases.

Last, as previously suggested, murder cases are apt to be
inherently weaker than others, and more often depend upon
circumstantial evidence.

The results of such cases are therefore an inadequate test of
the efficiency of a jury system.  They are, in fact, the
precise cases where, if at all, the jury might be expected to
go wrong.

But juries would go astray far less frequently even in such
trials were it not for that most vicious factor in the
administration of criminal justice--the "yellow" journal.  For
the impression that public trials are the scenes of buffoonery
and brutality is due to the manner in which these trials are
exploited by the sensational papers.

The instant that a sensational homicide occurs, the aim of the
editors of these papers is--not to see that a swift and sure
retribution is visited upon the guilty, or that a prompt and
unqualified vindication is accorded to the innocent, but, on
the contrary, so to handle the matter that as many highly
colored "stories" as possible can be run about it.

Thus, where the case is perfectly clear against the prisoner,
the "yellow" press seeks to bolster up the defence and really
to justify the killing by a thinly disguised appeal to the
readers' passions.  Not infrequently, while the editorial page
is mourning the prevalence of homicide, the front columns are
bristling with sensational accounts of the home-coming of the
injured husband, the heartbreaking confession of the weak and
erring wife, and the sneering nonchalance of the seducer,
until a public sentiment is created which, if it outwardly
deprecates the invocation of the unwritten law, secretly avows
that it would have done the same thing in the prisoner's
place.

This antecedent public sentiment is fostered from day to day
until it has unconsciously permeated every corner of the
community.  The juryman will swear that he is unaffected by
what he has read, but unknown to himself there are already
tiny furrows in his brain along which the appeal of the
defence will run.

In view of this deliberate perversion of truth and morals, the
euphemisms of a hard-put defendant's counsel when he pictures
a chorus girl as an angel and a coarse bounder as a St. George
seem innocent indeed.  It is not within the rail of the
courtroom but within the pages of these sensational journals
that justice is made a farce.  The phrase "contempt of court"
has ceased practically to have any significance whatever.  The
front pages teem with caricatures of the judge upon the bench,
of the individual jurors with exaggerated heads upon
impossible bodies, of the lawyers ranting and bellowing,
juxtaposed with sketches of the defendant praying beside his
prison cot or firing the fatal shot in obedience to a message
borne by an angel from on high.

How long would the "unwritten law" play any part in the
administration of criminal justice if every paper in the land
united in demanding, not only in its editorials, but upon its
front pages, that private vengeance must cease?  Let the
"yellow" newspapers confine themselves simply to an accurate
report of the evidence at the trial, with a reiterated
insistence that the law must take its course.  Let them stop
pandering to those morbid tastes which they have themselves
created.  Let the "Sympathy Sisters," the photographer, and
the special artist be excluded from the court-room.  When
these things are done, we shall have the same high standard of
efficiency upon the part of the jury in great murder trials
that we have in other cases.



CHAPTER IV

Why Do Men Kill?


When a shrewd but genial editor called me up on the telephone
and asked me how I should like to write an article on the
above lurid title, I laughed in his--I mean the telephone's
face.

"My dear fellow!" I said (I should only have the nerve to call
him that over a wire).  It would ruin me!  How could I keep my
self-respect and write that kind of sensational stuff--Why do
men kill?  Why do men eat?  Why do men drink?  Why do men
love?  Why do men--"

"Look here!" he interrupted.  I want to know why one man kills
another man.  If we knew why, maybe we could stop it, couldn't
we?  We could try to, anyhow.  And you know something about
it.  You've prosecuted nearly a hundred men for murder.  Get
the facts--that's what I want.  Cut the adjectives and
morality, and get down to the reasons.  Anything particularly
undignified about that?"  And he rang off.

I arose and walked over to the bookcase on which reposed
several shelves of "minutes" of criminal trials.  They were
dusty and depressing.  Practically every one of them was a
memento of some poor devil gone to prison or to the chair.
Where were they now--and why did they kill--yes, why DID they?

I glanced along the red-labeled backs.

"People versus Candido."  Now why did HE kill?  I remembered
the Italian perfectly.  He killed his friend because the
latter had been too attentive to his wife.  "People versus
Higgins."  Why did he?  That was a drunken row on a New Year's
Eve within the sound of Trinity chimes.  "People versus
Sterling Greene."  Yes, he was a colored man--I recalled the
evidence--drink and a "yellow gal."  "People versus Mock
Duck"-a Chinese feud between the On Leong Tong and the Hip
Sing Tong--a vendetta, first one Chink shot and then another,
turn and turn about, running back through Mott Street, New
York, Boston, San Francisco, until the origin of the quarrel
was lost in the dim Celestial mists across the sea.  Out of
the first four cases the following motives: Jealousy--1.
Drink--1.  Drink and jealousy--1.  Scattering (how can you
term a "Tong" row?)--1.

I began to get interested.  Supposing I dug out all the
homicide cases I had ever tried, what would the result show as
to motive for the killing?  Would drink and women account for
seventy-five per cent?  Mentally I ran my eye back over nearly
ten years.  What OTHER motives had the defendants at the bar
had?  There was Laudiero--an Italian "Camorrista"--he had
killed simply for the distinction it gave him among his
countrymen and the satisfaction he felt at being known as a
"bad" man--a "capo maestra."  There was Joseph Ferrone--pure
jealousy again.  Hendry--animal hate intensified by drink.
Yoscow--a deliberate murder, planned in advance by several of
a gang, to get rid of a young bully who had made himself
generally unpleasant.  There was Childs, who had killed, as he
claimed, in self-defence because he was set upon and assaulted
by rival runners from another seaman's boarding house.  Really
it began to look as if men killed for a lot of reasons.

One consideration at once suggested itself.  How about the
killings where the murderer is never caught?  The prisoners
tried for murder are only a mere fraction of those who commit
murder.  True, and the more deliberate the murder, the
greater, unfortunately, the chance of the villain getting
away.  Still, in cases merely of suspected murder, or in cases
where no evidence is taken, it would be manifestly unfair
arbitrarily to assign motives for the deed, if deed it was.
No, one must start with the assumption, sufficiently accurate
under all the circumstances, that the killings in which the
killer is caught are fairly representative of killings as a
whole.

All crimes naturally tend to divide themselves into two
classes--crimes against property and crimes against the
person, each class having an entirely different assortment of
reasons for their commission.

There can be practically but one motive for theft, burglary,
or robbery.  It is, of course, conceivable that such crimes
might be perpetrated for revenge--to deprive the victim of
some highly prized possession.  But in the main there is only
one object--unlawful gain.  So, too, blackmail, extortion, and
kidnapping are all the products of the desire for "easy
money."  But, unquestionably, this is the reason for murder in
comparatively few cases.

The usual motive for crimes against the person--assault,
manslaughter, mayhem, murder, etc.--is the desire to punish,
or be avenged upon another by inflicting personal pain upon
him or by depriving him of his most valuable asset--life.  And
this desire for retaliation or revenge generally grows out of
a recent humiliation received at the hands of the other
person, a real or fancied wrong to oneself, a member of one's
family, or one's property.  But this was too easy an answer to
my friend's question.  He wanted and deserved more than that,
and I set out to give it to him.

My first inquiry was in the direction of original sources.  I
sought out the man in the district attorney's office who had
had the widest general experience and put the question to him.
This was Mr. Charles C. Nott, Jr., (now judge of the General
Sessions) who had been trying murder cases for nearly ten
years.  It so happened that he had kept a complete record of
all of them and this he courteously placed at my disposal.
The list contains sixty-two cases, and the defendants were of
divers races.  These homicides included seventeen committed in
cold blood (about twenty-five per cent, an extraordinary
percentage) from varying motives, as follows: One defendant
(white) murdered his colored mistress simply to get rid of
her; another killed out of revenge because the deceased had
"licked" him several times before; another, having quarrelled
with his friend over a glass of soda water, later on returned
and precipitated a quarrel by striking him, in the course of
which he killed him; another because the deceased had induced
his wife to desert him; another lay in wait for his victim and
killed him without the motive ever being ascertained; one man
killed his brother to get a sum of money, and another because
his brother would not give him money; another because he
believed the deceased had betrayed the Armenian cause to the
Turks; another because he wished to get the deceased out of
the way in order to marry his wife; and another because
deceased had knocked him down the day before.  One man had
killed a girl who had ridiculed him; and one a girl who had
refused to marry him; another had killed his daughter because
she could no longer live in the house with him; one, an
informer, had been the victim of a Black Hand vendetta; and
the last had poisoned his wife for the insurance money in
order to go off with another woman.  There were two cases of
infanticide, one in which a woman threw her baby into the lake
in Central Park, and another in which she gave her baby
poison.  Besides these murders, five homicides had been
committed in the course of perpetrating other crimes,
including burglary and robbery.

Passing over three cases of culpable negligence resulting in
death, we come to thirty-seven homicides during quarrels, some
of which might have been technically classified as murders,
but which being committed "in the heat of passion," in
practically every instance resulted in a verdict of
manslaughter.  The quarrels often arose over the most trifling
matters.  One was a dispute over a broom, another over a horse
blanket, another over food, another over a twenty-five cent
bet in a pool game, another over a loan of fifty cents,
another over ten cents in a crap game, and still another over
one dollar and thirty cents in a crap game.  Five men were
killed in drunken rows which had no immediate cause except the
desire to "start something."  One man killed another because
he had not prevented the theft of some lumber, one (a
policeman) because the deceased would not "move on" when
ordered, one because a bartender refused to serve him with any
more drinks, and one (a bartender) because the deceased
insisted that he should serve more drinks.  One man was killed
in a quarrel over politics, one in a fuss over some beer, one
in a card game, one trying to rob a fruit-stand, one in a
dispute with a ship's officer, one in a dance hall row.  One
man killed another whom he found with his wife, and one wife
killed her husband for a similar cause; another wife killed
her husband simply because she "could not stand him," and one
because he was fighting with their son.  One man was killed by
another who was trying to collect from him a debt of six
hundred dollars.  One quarrel resulting in homicide arose
because the defendant had pointed out deceased to the police,
another because the participants called each other names, and
another arose out of an alleged seduction.  Three homicides
grew out of street rows originating in various ways.  One man
killed another who was fighting with a friend of the first, a
janitor was killed in a "continuous row" which had been going
on for a long time, and one homicide was committed for
"nothing in particular."

This astonishing olla podrida of reasons for depriving men of
their lives leaves one stunned and confused.  Is it possible
to deduce any order out of such homicidal chaos?  Still, an
attempt to classify such diverse causes enables one to reach
certain general conclusions.  Out of the sixty-two homicides
there were seventeen cold-blooded murders, with deliberation
and premeditation (in such cases the reasons for the killing
are by comparison unimportant); three homicides due to
negligence, five committed while perpetrating a felony;
thirty-seven manslaughters, due in sixteen cases to quarrels
(simply), thirteen to drink, four to disputes over money,
three to women, one to race antagonism.

Reclassifying the seventeen murders according to causes, we
have: Six due to women, four to quarrels, five to other
causes, and two infanticides.  Added to the manslaughters
previously classified, we have a total of sixty-two killings,
due in twenty cases to quarrels, thirteen to drink, nine to
women, four to disputes over money, one to race antagonism,
five to general causes, three to negligence, two infanticides,
five during the commission of other crimes.

The significant features of this analysis are that about
seventy-five per cent of the killings were due to quarrels
over small sums or other matters, drink and women; over fifty
per cent to drink and petty quarrels; and about thirty per
cent to quarrels simply.  The trifling character of the causes
of the quarrels themselves is shown by the fact that in three
of these particular cases, tried in a single week, the total
amount involved in the disputes was only eighty-five cents.
That is about twenty-eight and one-half cents a life.  Many a
murder in a barroom grows out of an argument over whether a
glass of beer has, or has not, been paid for, or whose turn it
is to treat; and more than one man has been killed in New York
City because he was too clumsy to avoid stepping on somebody's
feet or bumping into another man on the sidewalk.

The writer sincerely regrets that his own lack of initiative
prevented his keeping a diary during his seven years's service
as a prosecutor.  It is now impossible for him to refresh his
memory as to the causes of all the various homicides which he
prosecuted, but where he can do so the evidence points to a
conclusion similar to that deduced from Mr. Nott's record.
The proximate causes were trifling--the underlying cause was
the lack of civilization of the defendant--his brutality and
absence of self-control.

With a view to ascertaining conditions in general throughout
the United States, I asked a clipping agency to send me the
first one hundred notices of actual homicides which should
come under its scissors.  The immediate result of this
experiment was that I received forty-five notices supposedly
relating to murders and homicides, which on closer examination
proved to be anything but what I wanted for the purpose in
view.  With only one or two exceptions they related not to
deaths from violence reported as having occurred on any
particular day, but to notices of convictions, acquittals,
indictments, pleas of guilty and not guilty, rewards offered,
sentences, executions, "suspicions" of the police, "mysteries
revived," and even editorials on capital punishment.

A letter of protest brought in due course, but much more
slowly, one hundred and seven clippings, which yielded the
following reasons why men killed:  There were four suicides,
three lynchings, one infanticide, three murders while
resisting arrest, three criminals killed while resisting
arrest, two men killed in riots, eight murders in the course
of committing burglaries and robberies, seven persons killed
in vendettas, three grace murders, and twenty-four killed in
quarrels over petty causes; there were twelve murders from
jealousy, followed in four instances by suicide on the part of
the murderer; six killings justifiable on the "higher law"
theory only, but involving great provocation, and thirty
deliberate slaughters.  The last clipping recounted how an
irate husband pounded a "masher" so hard that he died.
Leaving out the suicides and those killed while resisting
arrest, there remain one hundred persons murdered, not only by
persons insane or wild from the effects of liquor, but by
robbers and burglars, brutes, bullies, and thugs, husbands,
wives, and lovers, and by a vast number of people who not only
destroyed their enemies in the fury of anger, but in many
instances openly went out gunning for them, lay in wait for
them in the dark, or hacked off their heads with hatchets
while they slept.

It is, indeed, a sanguinary record, from which little
consolation is to be derived, and the only comfort is the
probability that the accounts of the first one hundred
murders anywhere in Europe would undoubtedly be just as
blood-curdling.  I had simply asked the clipping bureau to
send me one hundred horrors and I had got them.  They did not
indicate anything at all so far as the ratio of homicide to
population was concerned or as to the bloodthirstiness of
Americans in general.  They merely showed what despicable
things murders were.

As to the reasons for the killings, they were as diverse as
those which Mr. Nott had prosecuted, save that there were more
of an ultra blood-thirsty character, due probably to the fact
that the young lady who did the clipping wanted (after one
rebuff) to make sure that I was satisfied with the goods she
sent me.  And this suggests a reason for the large percentage
of cold-blooded killings prosecuted by my friend--namely, that
Mr. Nott being the most astute prosecutor available, the
district attorney, whenever the latter had a particularly
atrocious case, sent it to him in order that the defendant
might surely get his full deserts.

The reasons for these homicides were of every sort; police
officers and citizens were shot and killed by criminals trying
to make "get-aways," and by negroes and others "running
amuck"; despondent young men shot their unresponsive
sweethearts and then either blew out their own brains of
pretended to try to do so; two stable-men had a duel with
revolvers, and each killed the other; several men were shot
for being too attentive to young women residing in the same
hotels; an Italian, whose wife had left him and gone to her
mother, went to the house and killed her, her sister, her
sister's husband, his mother-in-law, two children, and finally
himself; the "Gopher Gang" started a riot at a "benefit" dance
given to a widow and killed a man, after which they fled to
the woods and fired from cover upon the police until eighteen
were overpowered and arrested; a young girl and her fiance,
sitting in the parlor, planning their honeymoon, were
unexpectedly interrupted by a rejected suitor of the girl's,
who shot and killed both of them; an Italian who peeked into a
bedroom, just for fun, afterward rushed in and cut off two
persons' heads with an ax--one of them was his wife; a gang of
white ruffians shot and then burned a negro family of three
peacefully working in the fields; a man who went to the front
door to see who had tapped on his window was shot through the
heart; a striker was killed by a twenty-five-pound piece of
flagging thrown from a roof; there was a gun fight of colored
men at Madison, Wisconsin, at which three were shot; a gang of
negro ruffians killed and mutilated a white woman (with a baby
in her arms) and her husband; masked robbers called a man to
his barn at Winston-Salem, North Carolina, and cut his throat;
an Italian was found with his head split in two by a butcher's
cleaver; a negress in Lafayette, Louisiana, killed a family of
six with a hatchet; a negro farmer and his two daughters were
lynched and their bodies burned by four white men (who will
probably also be lynched if caught); a girl of eleven shot her
girl friend of about the same age and killed her; several
persons were found stabbed to death; a plumber killed his
brother (also a plumber) for saying that he stole two dollars;
a murderer was shot by a posse of militia in a cornfield; a
card game at Bayonne, New Jersey, resulted in a revolver fight
on the street in which one of the players was killed; bank
robbers killed a cashier at twelve o'clock noon; a jealous
lover in Butte, Montana, shot and killed his sweetheart, her
father, and mother; a deputy sheriff was murdered; burglars
killed several persons in the course of their business;
Kokolosski, a Pole, kicked his child to death; and a couple of
dozen people were incidentally shot, stabbed, or otherwise
disposed of in the course of quarrels over the most trivial
matters.  In almost no case was there what an intelligent,
civilized man would regard as an adequate reason for the
homicide.  They killed because they felt like killing, and
yielded to the impulse, whatever its immediate origin.

This conclusion is abundantly supported by the figures of the
'Chicago Tribune' for the seven years ending in 1900, when
carefully analyzed.  During this period 62,812 homicides were
recorded.  Of these there were 17,120 of which the causes were
unknown and 3,204 committed while making a justifiable arrest,
in self-defence, or by the insane, so that there were in fact
only 42,488 felonious homicides the causes of which can be
definitely alleged.  The ratio of the "quarrels" to this net
total is about seventy-five per cent.  There were, in
addition, 2,848 homicides due to liquor--that is, without
cause.  Thus eighty per cent of all the murders and
manslaughters in the United States for a period of seven years
were for no reason at all or from mere anger or habit, arising
out of causes often of the most trifling character.

Nor are the conclusions changed by the figures of the years
between 1904 and 1909.

During this period 61,786 homicides were recorded.  Of these
there were 9,302 of which the causes were not known, and 2,480
committed while making a justifiable arrest, in self-defence,
or by the insane, leaving 50,004 cases of felonious homicides
of known causes.  Of these homicides, 33,476 were due to
quarrels and 4,799 to liquor, a total of 38,275 out of the
50,004 cases of known causes being traceable in this, another
seven years, to motives the most casual.

It would be stupid to allege that the reason men killed was
because they had been stepped on or had been deprived of a
glass of beer.  The cause lies deeper than that.  It rests in
the willingness or desire of the murderer to kill at all.
Among barbaric or savage peoples this is natural; but among
civilized nations it is hardly to be anticipated.  If the
negro who shoots his fellow because he believes himself to
have been cheated out of ten cents were really civilized, he
would either not have the impulse to kill or, having the
impulse to kill, would have sufficient power of self-control
to refrain from doing so.  This power of self-control may be
natural or acquired, and it may or may not be possessed by the
man who feels a desire to commit a homicide.  The fact to be
observed--the interesting and, broadly speaking, the
astonishing fact--is that among a people like ourselves
anybody should have a desire to kill.  It is even more
astonishing than that the impulse should be yielded to so
often if it comes.

This, then, is the real reason why men kill--because it is
inherent in their state of mind, it is part of their mental
and physical make-up--they are ready to kill, they want to
kill, they are the kind of men who do kill.  This is the
result of their heredity, environment, educational and
religious training, or the absence of it.  How many readers of
this paper have ever experienced an actual desire to kill
another human being?  Probably not one hundredth of one per
cent.  They belong to the class of people who either never
have such an impulse, or at any rate have been taught to keep
such impulses under control.  Hence it is futile to try to
explain that some men kill for a trifling sum of money, some
because they feel insulted, others because of political or
labor disputes, or because they do not like their food.  Any
one of these may be the match that sets off the gunpowder, but
the real cause of the killing is the fact that the gunpowder
is there, lying around loose, and ready to be touched off.
What engenders this gunpowder state of mind would make a
valuable sociological study, but it may well be that a
seemingly inconsequential fact may so embitter a boy or man
toward life or the human race in general that in time he "sees
red" and goes through the world looking for trouble.  Any
cause that makes for crime and depravity makes for murder as
well.  The little boy who is driven out of the tenement onto
the street, and in turn off the street by a policeman, until,
finding no wholesome place to play, he joins a "gang" and
begins an incipient career of crime, may end in the "death
house."

The table on the opposite page gives the figures collected by
the 'Chicago Tribune' for the years from 1881 to 1910.

In view of the foregoing it may seem paradoxical for the
writer to state that he questions the alleged unusual tendency
to commit murder on the part of citizens of the United States.
Yet of one fact he is absolutely convinced--namely, that
homicide has substantially decreased in the last fifteen
years.  Even according to the figures collected by the
'Chicago Tribune', there were but 8,975 homicides in 1910 as
compared with 10,500 in 1895, and 10,652 in 1896.  Meantime
the population of our country has been leaping onward.


NUMBER OF MURDERS AND HOMICIDES IN THE UNITED STATES EACH
YEAR SINCE 1891, COMPARED WITH THE POPULATION

         NUMBER OF                          NUMBER OF
         MURDERS AND     ESTIMATED          MURDERS AND
YEAR     HOMICIDES IN    POPULATION         HOMICIDES
         THE UNITED      OF THE             FOR EACH
         STATES          UNITED STATES      MILLION OF
                                            PEOPLE

1881......1,266..........51,316,000..........24.7

1882......1.467..........----------..........27.9

1883......1,697..........----------..........31.6

1884......1,465..........----------..........26.7

1885......1,808..........56,I48,000..........32.2

1886......1,499..........----------..........26.1

1887......2,335..........----------..........39.8

1888......2,184..........---------...........36.4

1889......3,567..........---------...........58.0

1890......4,290.........62,622,250...........68.5

1891......5,906..........---------...........92.4

1892......6,791..........---------..........104.2

1893......6,615..........---------..........99.5

1894......9,800..........---------.........144.7

1895.....10,500.........69,043,000.........152.2

1896.....10,652..........---------.........151.3

1897......9,520..........---------.........132.8

1898......7,840..........---------.........107.2

1899......6,225..........---------..........83.6

1900......8,275.........75,994,575.........108.7

1901......7,852.........77,754,000.........100.9

1902......8,834.........79,117,OOO.........111.7

1903......8,976..........---------.........112.0

1904......8,482..........---------...............

1905......9,212..........---------...............

1906......9,350.........---------................

1907......8,712..........---------...............

1908......8,952..........---------...............

1909......8,103..........---------...............

1910......8,975.........91,972,266...........97.5

Total......191,150


We are blood-thirsty enough, God knows, without making things
out any worse than they are.  Our murder rate per 100,000
unquestionably exceeds that of most of the countries of
western Europe, but, as the saying is, "there's a reason."  If
our homicide statistics related only to the white population
of even the second generation born in this country we should
find, I am convinced, that we are no more homicidal than
France and Belgium, and less so than Italy.  It is to be
expected that with our Chinese, "greaser," and half-breed
population in the West, our Black Belt in the South, and our
Sicilian and South Italian immigration in the North and East,
our murder rate should exceed those of the continental
nations, which are nothing if not well policed.

But of one thing we can be abundantly certain without any
figures at all, and that is that our present method of
administering justice (less the actions of juries than of
judges)--the system taken as a whole--offers no deterrent to
the embryonic or professional criminal.  The administration of
justice to-day is not the swift judgment of honest men upon a
criminal act, but a clever game between judge and lawyer, in
which the action of the jury is discounted entirely and the
moves are made with a view to checkmating justice, not in the
trial courtroom, but before the appellate tribunal two or
three years later.

"My young feller," said a grizzled veteran of the criminal bar
to me long years ago, after our jury had gone out, "there's
lots of things in this game you ain't got on to yet.  Do you
think I care what this jury does?  Not one mite.  I got a nice
little error into the case the very first day--and I've set
back ever since.  S'pose we are convicted?  I'll get Jim here
[the prisoner] out on a certificate and it'll be two years
before the Court of Appeals will get around to the case.
Meantime Jim'll be out makin' money to pay me my fee--won't
you, Jim?  Then your witnesses, will be gone, and nobody'll
remember what on earth it's all about.  You'll be down in Wall
Street practicing real law yourself, and the indictment will
kick around the office for a year or so, all covered with
dust, and then some day I'll get a friend of mine to come in
quietly and move to dismiss.  And it'll be dismissed.  Don't
you worry!  Why, a thousand other murders will have been
committed in this county by the time that happens.  Bless your
soul!  You can't go on tryin' the same man forever!  Give the
other fellers a chance.  You shake your head?  Well, it's a
fact.  I've been doin' it for forty years.  You'll see."  And
I did.  That may not be why men kill, but perhaps indirectly
it may have something to do with it.




CHAPTER V

Detectives and Others


A Detective, according to the dictionaries, is one "whose
occupation it is to discover matters as to which information
is desired, particularly wrong-doers, and to obtain evidence
to be used against them."  A private detective, by the same
authority, is one "engaged unofficially in obtaining secret
information for or guarding the private interests of those who
employ him."  The definition emphasizes the official character
of detectives in general as contrasted with those whose
services may be enlisted for hire by the individual citizen,
but the distinction is of little importance, since it is based
arbitrarily upon the character of the employer (whether the
State or a private client) instead of upon the nature of the
employment itself, which is the only thing which is likely to
interest us about detectives at all.

The sanctified tradition that a detective was an agile
person with a variety of side-whiskers no longer obtains
even in light literature, and the most imaginative of us
is frankly aware of the fact that a detective is just a
common man earning (or pretending to earn) a common living
by common and obvious means.  Yet in spite of ourselves
we are accustomed to attribute superhuman acuteness and a
lightning-like rapidity of intellect to this vague and
romantic class of fellow-citizens.  The ordinary work of a
detective, however, requires neither of these qualities.
Honesty and obedience are his chief requirements, and if he
have intelligence as well, so much the better, provided it be
of the variety known as "horse" sense.  A genuine candidate
for the job of Sherlock Holmes would find little competition.
In the first place, the usual work of a detective does not
demand any extraordinary powers of deduction at all.

Leaving out of consideration those who are merely private
policemen (often in uniform), and principally engaged in
patrolling residential streets, preserving order at fairs,
race-tracks, and political meetings, or in breaking strikes
and preventing riots, the largest part of the work for which
detectives are employed is not in the detection of crime and
criminals, but in simply watching people, following them, and
reporting as accurately as possible their movements.  These
functions are known in the vernacular as spotting, locating,
and trailing.  It requires patience, some powers of
observation, and occasionally a little ingenuity.  The real
detective under such circumstances is the man to whom they
hand in their reports.  Yet much of the most dramatic and
valuable work that is done involves no acuteness at all, but
simply a willingness to act as a spy and to brave the dangers
of being found out.

There is nothing more thrilling in the pages of modern history
than the story of the man (James McPartland) who uncovered the
conspiracies of the Molly McGuires.  But the work of this man
was that of a spy pure and simple.

Another highly specialized class of detectives is that engaged
in police and banking work, who by experience (or even origin)
have a wide and intimate acquaintance with criminals of
various sorts, and by their familiarity with the latters'
whereabouts, associates, work, and methods are able to
recognize and run down the perpetrators of particular crimes.

Thus, for example, there are men in the detective bureau of
New York City who know by name, and perhaps have a speaking
acquaintance with, a large number of the pick-pockets and
burglars of the East Side.  They know their haunts and their
ties of friendship or marriage.  When any particular job is
pulled off they have a pretty shrewd idea of who is
responsible for it and lay their plans accordingly.  If
necessary, they run in the whole gang and put each of them
through a course of interrogation, accusation, and browbeating
until some one breaks down or makes a slip that involves him
in a tangle.  These men are special policemen whose knowledge
makes them detectives by courtesy.  But their work does not
involve any particular superiority or quickness of intellect
--the quality which we are wont to associate with the
detection of crime.

Now, if the ordinary householder finds that his wife's
necklace has mysteriously disappeared, his first impulse is to
send for a detective of some sort or other.  In general, he
might just as well send for his mother-in-law.  Of course, the
police can and will watch the pawnshops for the missing
baubles, but no crook who is not a fool is going to pawn a
whole necklace on the Bowery the very next day after it has
been "lifted."  Or he can enlist a private detective who will
question the servants and perhaps go through their trunks, if
they will let him.  Either sort will probably line up the
inmates of the house for general scrutiny and try to bully
them separately into a confession.  This may save the master a
disagreeable experience, but it is the simplest sort of police
work and is done vicariously for the taxpayer, just as the
public garbage man relieves you from the burden of taking out
the ashes yourself, because he is paid for it, not on account
of your own incapacity or his superiority.

The real detective is the one who, taking up the solution
of a crime or other mystery, brings to bear upon it unusual
powers of observation and deduction and an exceptional
resourcefulness in acting upon his conclusions.  Frankly, I
have known very few such, although for some ten years I have
made use of a large number of so-called detectives in both
public and private matters.  As I recall the long line of
cases where these men have rendered service of great value,
almost every one resolves itself into a successful piece of
mere spying or trailing.  Little ingenuity or powers of reason
were required.  Of course, there are a thousand tricks that an
experienced man acquires as a matter of course, but which at
first sight seem almost like inspiration.  I shall not forget
my delight when Jesse Blocher, who had been trailing Charles
Foster Dodge through the South (when the latter was wanted
as the chief witness against Abe Hummel on the charge of
subornation of perjury of which he was finally convicted),
told me how he instantly located his man, without disclosing
his own identity, by unostentatiously leaving a note addressed
to Dodge in a bright-red envelope upon the office counter of
the Hotel St. Charles in New Orleans, where he knew his quarry
to be staying.  A few moments later the clerk saw it, picked
it up, and, as a matter of course, thrust it promptly into box
No. 420, thus involuntarily hanging, as it were, a red lantern
on Dodge's door.

There is no more reason to look for superiority of
intelligence or mental alertness among detectives of the
ordinary class than there is to expect it from clerks,
stationary engineers, plumbers, or firemen.  While comparisons
are invidious, I should be inclined to say that the ordinary
chauffeur was probably a brighter man than the average
detective.  This is not to be taken in derogation of the
latter, but as a compliment to the former.  There are a great
many detectives of ambiguous training.  I remember in one case
discovering that of the more important detectives employed by
a well-known private Anti-Criminal Society in New York, one
had been a street vender of frankfurters (otherwise yclept
"hot dogs"), and another the keeper of a bird store, which
last perhaps qualified him for the pursuit and capture of
human game.  There is a popular fiction that lawyers are
shrewd and capable, similar to the prevailing one that
detectives are astute and cunning.  But, as the head of one of
the biggest agencies in the country remarked to me the other
day, when discussing the desirability of retaining local
counsel in a distant city: "You know how hard it is to find a
lawyer that isn't a dead one."  I feel confident that he did
not mean this in the sense that there was no good lawyer
except a dead lawyer.  What my detective friend probably had
in mind was that it was difficult to find a lawyer who brought
to bear on a new problem any originality of thought or action.
It is even harder to find a detective who is not in this sense
a dead one.  I have the feeling, being a lawyer myself, that
it is harder to find a live detective than a live lawyer.
There are a few of both, however, if you know where to look
for them.  But it is easy to fall into the hands of the
Philistines.

The fundamental reason why it is so hard to form any just
opinion of detectives in general is that (except by their
fruits) there is little opportunity to discriminate between
the able and the incapable.  Now, the more difficult and
complicated his task the less likely is the sleuth (honest or
otherwise) to succeed.  The chances are a good deal more than
even that he will never solve the mystery for which he is
engaged.  Thus at the end of three months you will have only
his reports and his bill--which are poor comfo