Total..........135......107.....Aver. 55...Aver. 45 The reader will observe that the percentage of convictions to acquittals of women defendants averages twenty-two per cent greater than the percentage for both s.e.xes. A more elaborate table would show that where the defendants are men there are a greater proportionate number of acquittals, but more verdicts in higher degrees. A verdict of manslaughter in the second degree in the case of a man charged with murder is infrequent, but convictions of murder in the second degree are exceedingly common.

The reason for the higher percentage of convictions of women is that fewer women who commit crime are prosecuted than men, and that they are rarely indicted unless they are clearly guilty of the degree of crime charged against them; while practically every man who is charged with homicide and who, it seems, may be found guilty is indicted for murder in the first degree.

The trial of women for crime invariably arouses keen public interest, and the dethronement of a Czar, or the a.s.sa.s.sination of an Emperor, pales to insignificance before the prosecution of a woman for murder. Some of this interest is fict.i.tious and stimulated merely by the yellow press, but a great deal of it is genuine. The writer remembers attending a dinner of gray-headed judges and counsellors during the trial of Anna Eliza, alias "Nan," Patterson, where one would have supposed that the lightest subject of conversation would be not less weighty than the const.i.tutionality of an income tax, and finding to his astonishment that the only topic for which they showed any zest was whether "Nan" would be found guilty.

One of the earliest, if not the earliest, record of a woman being held for murder is that of Agnes Archer, indicted by twelve men on April 4, 1435, sworn before the mayor and coroner to inquire as to the death of Alice Colynbourgh. The quaint old report begins in Latin, but "the pleadings" are set forth in the language of the day, as follows:

"Agnes Archer, is that thy name? which answered, yes.... Thou art endyted that thou.... feloney moderiste her with a knyff fyve tymes in the throte stekyng, throwe the wheche stekyng the saide Alys is deed.... I am not guilty of thoo dedys, ne noon of hem, G.o.d help me so.... How wylte thou acquite the?... By G.o.d and by my neighbours of this town."

The subsequent history of Agnes is lost in obscurity, but since she had to procure but thirty-six compurgators who were prepared to swear that they believed her innocent, and as she was at liberty to choose these herself from her native village of Winchelsea, it is probable that she escaped.*

* Cf. Thayer, as cited, supra.

Fortunately the sight of a woman, save of the very lowest cla.s.s, at the bar of justice is rare. The number of cases where women of good environment appear as defendants in the criminal courts in the course of a year may be numbered upon the fingers of a single hand, and, although the number of female defendants may equal ten per cent of the total number of males, not one-tenth of the women brought to the bar of justice have had the benefit of an honest bringing up and good surroundings.

CHAPTER VIII. Tricks of the Trade

"Tricks and treachery," said Benjamin Franklin, "are the practice of fools that have not wit enough to be honest." Had the kindly philosopher been familiar with all the exigencies of the criminal law he might have added a qualification to this somewhat general, if indisputably moral, maxim. Though it doubtless remains true as a guiding principle of life that "Honesty is the best policy," it would be an unwarrantable aspersion upon the intellectual qualities of the members of the criminal bar to say that the tricks by virtue of which they often get their clients off are "the practice of fools." On the contrary, observation would seem to indicate that in many instances the wiser, or at least the more successful, the pract.i.tioner of criminal law becomes, the more numerous and ingenious become the "tricks" which are his stock in trade. This must not be taken to mean that there are not high-minded and conscientious pract.i.tioners of criminal law, many of them financially successful, some filled with a n.o.ble humanitarian purpose, and some drawn to their calling by a sincere enthusiasm for the vocation of the advocate which, in these days of "business" law and commercial methods, reaches perhaps its highest form in the criminal courts.

There are no more "tricks" practised in these tribunals than in the civil, but they are more ingenious in conception, more lawless in character, bolder in execution and less shamefaced in detection.

Let us not be too hard upon our brethren of the criminal branch. Truly, their business is to "get their clients off." It is unquestionably a generally accepted principle that it is better that ninety-nine guilty men should escape than that one innocent man should be convicted. However much persons of argumentative or philosophic disposition may care to quarrel with this doctrine, they must at least admit that it would doubtless appear to them of vital truth were they defending some trembling client concerning whose guilt or innocence they were themselves somewhat in doubt. "Charity believeth all things," and the prisoner is ent.i.tled to every reasonable doubt, even from his own lawyer. It is the lawyer's business to create such a doubt if he can, and we must not be too censorious if, in his eagerness to raise this in the minds of the jury, he sometimes oversteps the bounds of propriety, appeals to popular prejudices and emotions, makes illogical deductions from the evidence, and impugns the motives of the prosecution. The district attorney should be able to take care of himself, handle the evidence in logical fashion, and tear away the flimsy curtain of sentimentality hoisted by the defence. These are hardly "tricks" at all, but sometimes under the name of advocacy a trick is "turned" which deserves a much harsher name.

Not long ago a celebrated case of murder was moved for trial after the defendant's lawyer had urged him in vain to offer a plea of murder in the second degree. A jury was summoned and, as is the usual custom in such cases, examined separately on the "voir dire" as to their fitness to serve. The defendant was a German, and the prosecutor succeeded in keeping all Germans off the jury until the eleventh seat was to be filled, when he found his peremptory challenges exhausted. Then the lawyer for the prisoner managed to slip in a stout old Teuton, who replied, in answer to a question as to his place of nativity, "Schleswig-Holstein." The lawyer made a note of it, and, the box filled, the trial proceeded with unwonted expedition.

The defendant was charged with having murdered a woman with whom he had been intimate, and his guilt of murder in the first degree was demonstrated upon the evidence beyond peradventure. At the conclusion of the case, the defendant not having dared to take the stand, the lawyer arose to address the jury in behalf of what appeared a hopeless cause. Even the old German in the back row seemed plunged in soporific inattention. After a few introductory remarks the lawyer raised his voice and in heart-rending tones began:

"In the beautiful county of Schleswig-Holstein sits a woman old and gray, waiting the message of your verdict from beyond the seas." (Number 11 opened his eyes and looked at the lawyer as if not quite sure of what he had heard.) "There she sits" (continued the attorney), "in Schleswig-Holstein, by her cottage window, waiting, waiting to learn whether her boy is to be returned to her outstretched arms." (Number 11 sat up and rubbed his forehead.) "Had the woman, who so unhappily met her death at the hands of my unfortunate client, been like those women of Schleswig-Holstein-n.o.ble, sweet, pure, lovely women of Schleswig-Holstein-I should have naught to say to you in his behalf." (Number 11 leaned forward and gazed searchingly into the lawyer's face.) "But alas, no! Schleswig-Holstein produces a virtue, a loveliness, a n.o.bility of its own." (Number 11 sat up and proudly expanded his chest.)

When, after about an hour or more of Schleswig-Holstein the defendant's counsel surrendered the floor to the district attorney, the latter found it quite impossible to secure the slightest attention from the eleventh juror, who seemed to be spending his time in casting compa.s.sionate glances in the direction of the prisoner. In due course the jury retired, but had no sooner reached their room and closed the door than the old Teuton cried, "Dot man iss not guilty!" The other eleven wrestled with him in vain. He remained impervious to argument for seventeen hours, declining to discuss the evidence, and muttering at intervals, "Dot man iss not guilty!" The other eleven stood unanimously for murder in the first degree, which was the only logical verdict that could possibly have been returned upon the evidence.

At last, worn out with their efforts, they finally induced the old Teuton to compromise with them on a verdict of manslaughter. Wearily they straggled in, the old native of Schleswig-Holstein bringing up the rear, bursting with exultation and with victory in his eye.

"Gentlemen of the jury, have you agreed upon a verdict?" inquired the clerk.

"We have," replied the foreman.

"How say you, do you find the defendant guilty or not guilty?"

"Guilty-of manslaughter," returned the foreman feebly.

The district attorney was aghast at such a miscarriage of justice, and the judge showed plainly by his demeanor his opinion of such a verdict. But the old inhabitant of Schleswig-Holstein cared for this not a whit. The old mother in Schleswig-Holstein might still clasp her son in her arms before she died! The defendant was arraigned at the bar. Then for the first time, and to the surprise and disgust of No. 11, he admitted in answer to the questions of the clerk that his parents were both dead and that he was born in Hamburg, a town for whose inhabitants the old juryman had, like others of his compatriots, a const.i.tutional antipathy.

The "tricks" of the trade as practised by the astute and unscrupulous criminal lawyer vary with the stage of the case and the character of the crime charged. They are also adapted with careful attention to the disposition, experience and capacity of the particular district attorney who happens to be trying the case against the defendant. An ill.u.s.tration of one of these occurred during the prosecution of a bartender for selling "spirituous liquors" without a proper license. He was defended by an old war-horse of the criminal bar famous for his astuteness and ability to laugh a case out of court. The a.s.sistant district attorney who appeared against him was a young man recently appointed to office, and who was almost overcome at the idea of trying a case against so well known a pract.i.tioner. He had personally conducted but very few cases, had an excessive conception of his own dignity, and dreaded nothing so much as to appear ridiculous. Everything, except the evidence, favored the defendant, who, however, was, beyond every doubt, guilty of the offence charged.

The young a.s.sistant put in his case, calling his witnesses one by one, and examining them with the most feverish anxiety lest he should forget something. The lawyer for the defence made no cross-examination and contented himself with smiling blandly as each witness left the stand. The youthful prosecutor became more and more nervous. He was sure that something was wrong, but he couldn't just make out what. At the conclusion of the People's case the lawyer inquired, with a broad grin, "if that was all."

The young a.s.sistant replied that it was, and that, in his opinion, it was "quite enough."

"Let that be noted by the stenographer," remarked the lawyer. "Now, if your Honors please," he continued, addressing the three judges of the Special Sessions, "you all know how interested I am to see these young lawyers growing up. I like to help 'em along-give 'em a chance-teach 'em a thing or two. I trust it may not be out of place for me to say that I like my young friend here and think he tried his case very well. But he has a great deal to learn. I'm always glad, as I said, to give the boys a chance-to give 'em a little experience. I shall not put my client upon the stand. It is not necessary. The fact is," turning suddenly to the unfortunate a.s.sistant district attorney-"my client has a license." He drew from his pocket a folded paper and handed it to the paralyzed young attorney with the harsh demand: "What do you say to that?"

The a.s.sistant took the paper in trembling fingers and perused it as well as he could in his unnerved condition.

"Mr. District Attorney," remarked the presiding justice dryly (which did not lessen the confusion of the young lawyer), "is this a fact? Has the defendant a license?"

"Yes, your Honors," replied the a.s.sistant; "this paper seems to be a license."

"Defendant discharged!" remarked the court briefly.

The prisoner stepped from the bar and rapidly disappeared though the door of the court-room. After enough time had elapsed to give him a good start and while another case was being called, the old lawyer leaned over to the a.s.sistant and remarked with a chuckle

"I am always glad to give the boys a chance-help 'em along-teach 'em a little. That license was a beer license!"

BEFORE TRIAL To begin at the beginning, whenever a person has been arrested, charged with crime, and has secured a criminal lawyer to defend him, the first move of the latter is naturally to try and nip the case in the bud by inducing the complaining witness to abandon the prosecution. In a vast number of cases he is successful. He appeals to the charity of the injured party, quotes a little of the Scriptures and the "Golden Rule," pictures the dest.i.tute condition of the defendant's family should he be cast into prison, and the dragging of an honored name in the gutter if he should be convicted. Few complainants have ever before appeared in a police court, and are filled with repugnance at the rough treatment of prisoners and the suffering which they observe upon every side. After they have seen the prisoner emerge from the cells, pale, hollow-eyed, bedraggled, and have beheld the tears of his wife and children as they crowd around the husband and father, they begin to realize the horrible consequences of a criminal prosecution and to regret that they ever took the steps which have brought the wrong-doer where he is. The district attorney had not yet taken up the case; the prosecution up to this point is of a private character; there are loud promises of "rest.i.tution" and future good behavior from the defendant, and the occasion is ripe for the lawyer to urge the complainant to "temper justice with mercy" and withdraw "before it be too late and the poor man be ruined forever."

If the complainant is, however, bent on bringing the defendant to justice and remains adamantine to the arguments of the lawyer and the tears of the defendant's family connections, it remains for the prisoner's attorney to endeavor to get the case adjourned "until matters can be adjusted"-to wit, rest.i.tution made if money has been stolen, or doctors' bills paid if a head has been cracked, with perhaps another chance of "pulling off" the complainant and his witnesses. Failing in an attempt to secure an adjournment, two courses remain open: first, to persuade the court that the matter is a trivial one arising out of petty spite, is all a mistake, or that at best it is a case of "disorderly conduct" (and thus induce the judge to "turn the case out" or inflict some trifling punishment in the shape of a fine); or, second, if it be clear that a real crime has been committed, to clamor for an immediate hearing in order, if it be secured, to subject the prosecution's witnesses to a most exhaustive cross-examination, and thus get a clear idea of just what evidence there is against the accused.

At the conclusion of the complainant's case, if it appear reasonably certain that the magistrate will "hold" the prisoner for the action of a superior court, the lawyer will then "waive further examination," or, in other words, put in no defence, preferring the certainty of having to face a jury trial to affording in prosecution an opportunity to discover exactly what defence will be put in and to secure evidence in advance of the trial to rebut it. Thus it rarely happens in criminal cases of importance that the district attorney knows what the defence is to be until the defendant himself takes the stand, and, by "waiving further examination" in the police court, the astute criminal attorney may select at his leisure the defence best suited to fit in with and render nugatory the prosecution's evidence.

The writer has frequently been told by the attorney for a defendant on trial for crime that "the defence has not yet been decided upon." In fact, such statements are exceedingly common. In many courts the att.i.tude of all parties concerned seems to be that the defendant will put up a perjured defence (so far as his own testimony is concerned, at any rate) as a matter of course, and that this is hardly to be taken against him.

On the other hand, if a guilty defendant has been so badly advised as to give his own version of the case before the magistrate in the first instance, it requires but slight a.s.siduity on the part of the district attorney to secure, in the interval between the hearing and the jury trial, ample evidence to rebut it.

As ill.u.s.trating merely the fertility and resourcefulness of some defendants (or perhaps their counsel), the writer recalls a case which he tried in the year 1902 where the defendant, a druggist, was charged with manslaughter in having caused the death of an infant by filling a doctor's prescription for calomel with morphine. It so happened that two jars containing standard pills had been standing side by side upon an adjacent shelf, and, a prescription for morphine having come in at the same time as that for the calomel, the druggist had carelessly filled the morphine prescription with calomel, and the calomel prescription with morphine. The adult for whom the morphine had been prescribed recovered immediately under the beneficent influence of the calomel, but the baby for whom the calomel had been ordered died from the effects of the first morphine pill administered. All this had occurred in 1897-five years before. The remainder of the pills had disappeared.

Upon the trial (no inconsistent contention having been entered in the police court) the prisoner's counsel introduced six separate defences, to wit: That the prescription had been properly filled with calomel and that the child had died from natural causes, the following being suggested.

1. Acute gastritis.

2. Acute nephritis.

3. Cerebro-spinal meningitis.

4. Fulminating meningitis.

5. That the child had died of apomorphine, a totally distinct poison.

6. That it had received and taken calomel, but that, having eaten a small piece of pickle shortly before, the conjunction of the vegetable acid with the calomel had formed, in the child's stomach, a precipitate of corrosive sublimate, from which it had died.

These were all argued with great learning. During the trial the box containing the balance of the pills, which the defence contended were calomel, unexpectedly turned up. It has always been one of the greatest regrets of the writer's life that he did not then and there challenge the defendant to eat one of the pills and thus prove the good faith of his defence.

This was one of the very rare cases where a chemical a.n.a.lysis has been conducted in open court. The chemist first tested a standard trade morphine pill with sulphuric acid, so that the jury could personally observe the various color reactions for themselves. He then took one of the contested pills and subjected it to the same test. The first pill had at once turned to a brilliant rose, but the contested pill, being antiquated, "hung fire," as it were, for some seconds. As nothing occurred, dismay made itself evident on the face of the prosecutor, and for a moment he felt that all was lost. Then the five-year-old pill slowly turned to a faint brown, changed to a yellowish red, and finally broke into an ardent rose. The jury settled back into their seats with an audible "Ah!" and the defendant was convicted.

Let us return, however, to that point in the proceedings where the defendant has been "held for trial" by the magistrate. The prisoner's counsel now endeavors to convince the district attorney that "there is nothing in the case," and continues unremittingly to work upon the feelings of the complainant. If he finds that his labors are likely to be fruitless in both directions, he may now seek an opportunity to secure permission for his client to appear before the grand jury and explain away, if possible, the charge against him.