CHAPTER XVIII

INSANITY AND THE LAW

Harry Kendall Thaw shot and killed Stanford White on the 25th day of June, 1905. Although most of the Coroner's jury which first sat upon the case considered him irrational, he was committed to the Tombs and, having been indicted for murder, remained there over six months pending his trial. During that time it was a matter of common knowledge that his defence was to be that he was insane at the time of the shooting, but as under the New York law it is not necessary specifically to enter a plea of insanity to the indictment in order to take advantage of that defence (which may be proven under the general plea of "not guilty"), there was nothing officially on record to indicate this purpose. Neither was it possible for the District Attorney to secure any evidence of Thaw's mental condition, since he positively refused either to talk to the prosecutor's medical representatives or to allow himself to be examined by them. Mr. Jerome therefore was compelled to enter upon an elaborate and expensive preparation of the case, not only upon its merits, but upon the possible question of the criminal irresponsibility of the defendant.

The case was moved in January, 1906, and the defence thereupon proceeded to introduce a limited amount of testimony tending to show that Thaw was insane when he did the shooting. While much of this evidence commended itself but little to either the prosecutor or the jury, it was sufficient to raise grave doubt as to whether the accused was a fit subject for trial. The District Attorney's experts united in the opinion that, while he knew that he was doing wrong when he shot White, he was, nevertheless, the victim of a hopeless progressive form of insanity called _dementia præcox_. In the midst of the trial, therefore, Mr. Jerome moved for a commission to examine into the question of how far Thaw was capable of understanding the nature of the proceedings against him and consulting with counsel, and frankly expressed his personal opinion in open court that Thaw was no more a proper subject for trial than a baby. A commission was appointed which reported the prisoner sane enough to be tried, and the case then proceeded at great length with the surprising result that, in spite of the District Attorney's earlier declaration that he believed Thaw to be insane, the jury disagreed as to his criminal responsibility, a substantial number voting for conviction. Of course, logically, they would have been obliged either to acquit entirely on the ground of insanity or convict of murder in the first degree, but several voted for murder in the second degree.

A year now elapsed, during which equally elaborate preparations were made for a second trial. The State had already spent some $25,000, and yet its experts had never had the slightest opportunity to examine or interrogate the defendant, for the latter had not taken the stand at the first trial. The District Attorney still remained on record as having declared Thaw to be insane, and his own experts were committed to the same proposition, yet his official duty compelled him to prosecute the defendant a second time. The first prosecution had occupied months and delayed the trial of hundreds of other prisoners, and the next bid fair to do the same. But at this second trial the defence introduced enough testimony within two days to satisfy the public at large of the unbalanced mental condition of the defendant from boyhood.

After a comparatively short period of deliberation the jury acquitted the prisoner "on the ground of insanity," which may have meant either one of two things: (_a_) that they had a reasonable doubt in their own minds that Thaw knew that he was doing wrong when he committed the murder--something hard for the layman to believe, or (_b_) that, realizing that he was undoubtedly the victim of mental disease, they refused to follow the strict legal test.

Nearly two years had elapsed since the homicide; over a hundred thousand dollars had been spent upon the case; every corner of the community had been deluged with detailed accounts of unspeakable filth and depravity; the moral tone of society had been depressed; and the only element which had profited by this whole lamentable and unnecessary proceeding had been the sensational press. Yet the sole reason for it all was that the law of the land in respect to insane persons accused of crime was hopelessly out of date.

The question of how far persons who are victims of diseased mind shall be held criminally responsible for their acts has vexed judges, jurors, doctors, and lawyers for the last hundred years. During that time, in spite of the fact that the law has lagged far behind science in the march of progress, we have blundered along expecting our juries to reach substantial justice by dealing with each individual accused as most appeals to their enlightened common sense.

And the fact that they have obeyed their common sense rather than the law is the only reason why our present antiquated and unsatisfactory test of who shall be and who shall not be held "responsible" in the eye of the law remains untouched upon the statute-books. Because its inadequacy is so apparent, and because no experienced person seriously expects juries to apply it consistently, it fairly deserves first place in any discussion of present problems.

Thanks to human sympathy, the law governing insanity has had comparatively few victims, but the fact remains that more than one irresponsible insane man has swung miserably from the scaffold. But "hard cases" do more than "make bad law," they make lawlessness. A statute systematically violated is worse than no statute at all, and exactly in so far as we secure a sort of justice by evading the law as it stands, we make a laughing-stock of our procedure.

The law is, simply, that any person is to be held criminally responsible for a deed unless he was at the time laboring under such a defect of reason as not to know the nature and quality of his act and that it was wrong.

This doctrine first took concrete form in 1843, when, after a person named McNaughten, who had shot and killed a certain Mr. Drummond under an insane delusion that the latter was Sir Robert Peel, had been acquitted, there was such popular uneasiness over the question of what constituted criminal responsibility that the House of Lords submitted four questions to the fifteen judges of England asking for an opinion on the law governing responsibility for offences committed by persons afflicted with _certain forms_ of insanity. It is unnecessary to set forth at length these questions, but it is enough to say that the judges formulated the fore-going rule as containing the issue which should be submitted to the jury in such cases.[51]

Now, with that commendable reverence for judicial utterance which is so characteristic of the English nation, and is so conspicuously absent in our own country, it was assumed until recently that this solemn pronunciamento was the last word on the question of criminal responsibility and settled the matter once and forever. Barristers and legislators did not trouble themselves particularly over the fact that in 1843 the study of mental disease was in its infancy, and judges, including those of England, probably knew even less about the subject than they do now. In 1843 it was supposed that insanity, save of the sort that was obviously maniacal, necessitated "delusions," and unless a man had these delusions no one regarded him as insane. In the words of a certain well-known judge:

"The true criterion, the true test of the absence or presence of insanity, I take to be the absence or presence of what, used in a certain sense of it, is comprisable in a single term, namely, delusion.... In short, I look on delusion ... and insanity to be almost, if not altogether, convertible terms."[52]

This in a certain broad sense, probably not intended by the judge who made the statement, is nearly true, but, unfortunately, is not entirely so.

The dense ignorance surrounding mental disease and the barbarous treatment of the insane within a century are facts familiar to everybody. Lunatics were supposed to be afflicted with demons or devils which took possession of them as retribution for their sins, and in addition to the hopelessly or maniacally insane, medical science recognized only a so-called "partial" or delusionary insanity. To-day it would be regarded about as comprehensive to relate all mental diseases to the old-fashioned "delusion" as to regard as insane only those who frothed at the mouth.

But the particular individual out of whose case in 1843 arose the rule that is in 1908 applied to all defendants indiscriminately was the victim of a clearly defined insane delusion, and the four questions answered by the judges of England relate only to persons who are "_afflicted with insane delusions in respect to one or more particular subjects or persons_." Nothing is said about insane persons _without_ delusions, or about persons with _general_ delusions, and the judges limit their answers even further by making them apply "to those persons who labor under such partial delusion only _and are not in other respects insane_"--a medical impossibility.

Modern authorities agree that a man cannot have insane delusions and not be in other respects insane, for it is mental derangement which is the cause of the delusion.

In the first place, therefore, a fundamental conception of the judges in answering the questions was probably fallacious, and in the second, although the test they offered was distinctly limited to persons "_afflicted with insane delusions_," it has ever since been applied to all insane persons irrespective of their symptoms.

Finally, whether the judges knew anything about insanity or not, and whether in their answers they weighed their words very carefully or not, the test _as they laid it down_ is by no means clear from a medical or even legal point of view.

Was the accused laboring under such a defect of reason as not to _know_ the nature and quality of the act he was doing, or not to _know_ that it was wrong? What did these judges mean by _know_? What does the reader mean by _know_? What does the ordinary juryman mean by it?

We are left in doubt as to whether the word should be given, as Justice Stephens contended it should be, a very broad and liberal interpretation such as "able to judge calmly and reasonably of the moral or legal character of a proposed action,"[53] or a limited and qualified one. There are all grades and degrees of "knowledge," and it is more than probable that there is a state of mind which I have heard an astute expert call upon the witness stand "an insane knowledge," and equally obvious that there may be "imperfect" or "incomplete knowledge," where the victim sees "through a glass darkly." Certainly it seems far from fair to interpret the test of responsibility to cover a condition where the accused may have had a hazy or dream-like realization that his act was technically contrary to the law, and even more dangerous to make it exclude one who was simply unable to "judge calmly and reasonably" of his proposed action, a doctrine which could almost be invoked by any one who committed homicide in a state of anger.

Ordinarily the word is not defined at all and the befuddled juryman is left to his own devices in determining what significance he shall attach not only to this word but to the test as a whole.

An equally ambiguous term is the word "wrong." The judges made no attempt to define it in 1843, and it has been variously interpreted ever since. Now it may mean "contrary to the dictates of conscience" _or_, as it is usually construed, "contrary to the law of the land"--and exactly _what_ it means may make a great difference to the accused on trial. If the defendant thinks that God has directed him to kill a wicked man, he may know that such an act will not only be contrary to law, but also in opposition to the moral sense of the community as a whole, and yet he may believe that it is his conscientious duty to take life. In the case of Hadfield, who deliberately fired at George III in order to be hung, the defendant believed himself to be the Lord Jesus Christ, and that only by so doing could the world be saved. Applying the legal test and translating the word "wrong" as contrary to the common morality of the community wherein he resided or contrary to law, Hadfield ought to have achieved his object and been given death upon the scaffold instead of being clapped, as he was, into a lunatic asylum.

On the other hand, if the word "wrong" is judicially interpreted to mean "contrary to the dictates of conscience," it would seem to be given an elasticity which would invite inevitable confusion as well as abuse.

Moreover, the test in question takes no cognizance of persons who have no power of control. The law of New York and most of the states does not recognize "irresistible impulses," but it should admit the medical fact that there are persons who, through no fault of their own, are born practically without any inhibitory capacity whatever, and that there are others whose control has been so weakened, through accident or disease, as to render them morally irresponsible,--the so-called psychopathic inferiors.

Most of us are only too familiar with the state of a person just falling under the influence of an anesthetic, when all the senses seem supernaturally acute, the reasoning powers are active and unimpaired, and the patient is convinced that he can do as he wills, whereas, in reality, he says and does things which later on seem impossible in their absurdity. Such a condition is equally possible to the victim of mental disease, where the knowledge of right and wrong has no real relevancy.

The test of irresponsibility as defined by law is hopelessly inadequate, judged by present medical knowledge. There is no longer any pretence that a perception of the nature and quality of an act or that it is wrong or right is conclusive of the actual insanity of a particular accused. In a recent murder case a distinguished alienist, testifying for the prosecution, admitted that over seventy per cent. of the patients under his treatment, all of whom he regarded as insane and irresponsible, knew what they were doing and could distinguish right from wrong.

Countless attempts have been made to reconcile this obvious anachronism with justice and modern knowledge, but always without success, and courts have wriggled hard in their efforts to make the test adequate to the particular cases which they have been trying, but only with the result of hopelessly confounding the decisions.

But, however it is construed, the test as laid down in 1843 is insufficient in 1908. Medical science has marched on with giant strides, while the law, so far as this subject is concerned, has never progressed at all. It is no longer possible to determine mental responsibility by any such artificial rule as that given by the judges to the Lords in McNaughten's case, and which juries are supposed to apply in the courts of to-day. I say "supposed," for juries do not apply it, and the reason is simple enough--you cannot expect a juryman of intelligence to follow a doctrine of law which he instinctively feels to be crude and which he knows is arbitrarily applied.

No juryman believes himself capable of successfully analyzing a prisoner's past mental condition, and he is apt to suspect that, however sincere the experts on either side may appear, their opinions may be even less definite than the terms in which they are expressed. The spectacle of an equal number of intellectual-looking gentlemen, all using good English and all wearing clean linen, reaching diametrically opposite conclusions on precisely the same facts, is calculated to fill the well-intentioned juror with distrust. Painful as it is to record the fact, juries are sometimes almost as sceptical in regard to doctors as they always are in regard to lawyers.

The usual effect of the expert testimony on one side is to neutralize that on the other, for there is no practical way for the jury to distinguish between experts, since the foolish ones generally look as learned as the wise ones. The result is hopeless confusion on the part of the juryman, an inclination to "throw it all out," and a resort to other testimony to help him out of his difficulty. Of course he has no individual way of telling whether the defendant "_knew_ right from _wrong_," whatever that may mean, and so the ultimate test that he applies is apt to be whether or not the defendant is really "queer," "nutty" or "bughouse," or some other equally intelligible equivalent for "medically insane."

The unfortunate consequence is that there is so general and growing a scepticism about the plea of insanity, entirely apart from its actual merits, that it is difficult in ordinary cases, whatever the jurors may think or say in regard to the matter, to secure twelve men who will give the defence fair consideration at the outset.

This is manifest in frequent expressions from talesmen such as: "I think the defence of insanity is played out," or "I believe everybody is a little insane, anyhow" (very popular and regarded by jurymen as witty), or "Well, I have an idea that when a fellow can't cook up any other defence he claims to be insane."

The result is a rather paradoxical situation: The attitude of the ordinary jury in a homicide case, where the defence of insanity is interposed, is usually at the outset one of distrust, and their impulse is to brush the claim aside. This tendency is strengthened by the legal presumption, which the prosecutor invariably calls to their attention, that the defendant is sane. Every expert who has testified for the defence in the ordinary "knock down and drag out" homicide case must have felt with the prisoner's attorneys, that it was "up to them" not so much to create a _doubt_ of the defendant's sanity as to _prove_ that he was insane, if they expected consideration from the jury.

Now let us assume that the defence is meritorious and that the prisoner's experts have created a favorable impression. Let us go even further and assume that they have generated a reasonable doubt in the mind of the jury as to the defendant's responsibility at the time he committed the offence. What generally occurs? Not, as one would suppose, an _acquittal_, but, in nine cases out of ten, a _conviction_ in a lower degree.

The only usual result of an honest claim of irresponsibility on the ground of insanity is to lead the jury to reduce the grade of the offence from murder in the first, entailing the death penalty, to murder in the second degree. The jury have no intention of "taking the chance" involved in turning the man loose on the community and their minds are filled with the predominating fact that a human being has been killed. They have an idea that it is as easy to get "sworn out" of a lunatic asylum as they suppose it is to get "sworn into" one, and they know that if the prisoner is found to be insane when sent to State's prison he will be transferred elsewhere. They, therefore, as a rule, waste little time upon the question of how far the defendant was irresponsible within the legal definition when he committed the deed, but convict him "on general principles," trusting the prison officials to remedy any possible injustice. The jury in such cases ignore the law and decline either to acquit _or_ to convict in accordance with the test. Their action becomes rather that of a lay commission condemning the prisoner to hard labor for life on the ground that he is medically insane.

Assuming that the jury take the defence seriously, there is only one class of cases where, in the writer's opinion, they follow the legal test as laid down by the court--that is to say, in cases of extreme brutality. Here they hold the prisoner to the letter of the law, and the more abhorrent the crime (even where its nature might indicate to a physician that the accused was the victim of some sort of mania) the less likely they are to acquit. The writer has prosecuted perhaps a dozen homicide and other cases where the defence was insanity. In his own experience he has known of no acquittal. In several instances the defendants were undoubtedly insane, but, strictly speaking, probably vaguely knew the nature and quality of their acts and that they were wrong. In a few of these the juries convicted of murder in the first degree because the circumstances surrounding the homicides were so brutal that the harshness of the technical doctrine they were required to apply was overshadowed in their minds by their horror of the act itself. In other cases, where either the accused appeared obviously abnormal as he sat at the bar of justice, or the details of the crime were less abhorrent, they convicted of murder in the second degree in accordance with the reasoning set forth in the fore-going paragraph. The writer seriously advances the suggestion that the more the brutality of a homicide indicates mental derangement the less chance the defendant has to secure an acquittal upon the plea of insanity.

And this leads us to that increasingly large body of cases where the usual scepticism of the jury in regard to such defences is counterbalanced by some real or imaginary element of sympathy. In cities like New York, where the jury system is seen at its very best, where the statistics show seventy per cent. of convictions by verdict for the year 1907, and where the sentiment of the community is against the invocation of any law supposedly higher than that of the State, our talesmen are unwilling to condone homicide or to act as self-constituted pardoning bodies, for they know that an obviously lawless verdict will bring down upon them the censure of the public and the press. This is perhaps demonstrated by the fact that in New York County a higher percentage of women are convicted of homicide than of men.

But the plea of insanity, with its vague test of responsibility, whose terms the juryman may construe for himself (or which his fellow-jurors may construe for him) offers an unlimited and fertile field for the "reasonable" doubt and an easy excuse for the conscientious talesman who wants to acquit if he can. Juries take little stock in irresistible impulses and emotional or temporary insanity save as a cloak to cover an unrighteous acquittal.

In no other class of cases does "luck" play so large a part in the final disposition of the prisoner. A jury is quite as likely to send an insane man to the electric chair as to acquit a defendant who is fully responsible for his crime.

To recapitulate from the writer's experience:

(1) The ordinary juror tends to be sceptical as to the good faith of the defence of insanity.

(2) When once this distrust is removed by honest evidence on the part of the defence, he usually declines to follow the legal test as laid down by the court on the general theory that any one but an idiot or a maniac has some knowledge of what he is doing and whether it is right or wrong.

(3) He applies the strict legal test only in cases of extreme brutality.

(4) In all other cases he follows the medical rather than the legal test, but instead of acquitting the accused on account of his medical irresponsibility, merely convicts in a lower degree.

The following deductions may also fairly be made from observation:

(1) That the present legal test for criminal responsibility is admittedly vague and inadequate, affording great opportunity for divergent expert testimony and a readily availed of excuse for the arbitrary and sentimental actions of juries, to which is largely due the distrust prevailing of the claim of insanity when interposed as a defence to crime.

(2) That expert medical testimony in such cases is largely discounted by the layman.

(3) That in no class of cases are the verdicts of jurors so apt to be influenced solely by emotion and prejudice, or to be guided less by the law as laid down by the court.

(4) That a new definition of criminal responsibility is necessary, based upon present knowledge of mental disease and its causes.

(5) Lastly, that, as whatever definition may be adopted will inevitably be difficult of application by an untutored lay jury, our procedure should be so amended that they may be relieved wherever possible of a task sufficiently difficult for even the most experienced and expert alienists.

* * * * *

A classification of the different forms of insanity, based upon its causes to which the case of any particular accused might be relegated, such as has recently been urged by a distinguished young neurologist, would not, with a few exceptions, assist us in determining his responsibility. It would be easy to say then, as now, that lunatics or maniacs should not be held responsible for their acts, but we should be left where we are at present in regard to all those shadowy cases where the accused had insane, incomplete or imperfect knowledge of what he was doing. It would be ridiculous, for example, to lay down a general rule that no person suffering from hysterical insanity should be punished for his acts. Yet, even so, such a classification would instantly remedy that anachronism in our present law which refuses to recognize as irresponsible those born without power to control their emotions--the psychopathic inferiors of science, and the real victims of _dementia præcox_.

Of course, if the insanity under which the defendant labors bears no relation to or connection with the deed for which he is on trial, there would logically be no reason why his insanity on other subjects should be any defence to his crime. For example, there is the well-known case of the Harvard professor who was apparently sane on all other matters, yet believed himself to be possessed of glass legs. Had this man in wanton anger struck and killed another, his "glass leg" delusion could not logically have availed him. If, however, he had struck and killed one who he believed was going to shatter his legs it might have been important. The illustration is clear enough, but its application probably involves a mistaken premise. If he thought he had glass legs his mind was undoubtedly deranged--whether enough or not enough to constitute him irresponsible or beyond the effect of penal discipline might be a difficult question. The generally accepted doctrine is, that if a man has a delusion concerning something, which if _actually existing_ as he believed it to be would be _no excuse_ for his committing the criminal act, he is responsible and liable to punishment; but, as Bishop well says:

"This branch of the doctrine should be cautiously received; for delusion of any kind is strongly indicative of a generally diseased mind."

The new test to determine responsibility will recognize, as does the law of Germany, that there can be no criminal act where the free determination of the will is excluded by disease, and that the capacity to distinguish between right and wrong is inconclusive. It may perhaps have to take a general form, leaving it to a lay, expert, or a mixed lay-and-expert jury to say merely whether the accused had a disease of the mind of a type recognized by science, and whether the alleged criminal act was of such a character as would naturally flow from that type of insanity, in which case it would seem obviously just to regard the defendant as partially irresponsible, and perhaps entirely so. Possibly the practical needs of the moment might be met by permitting such a jury to determine whether the defendant had _such_ a knowledge of the wrongful nature and consequences of his act and such a control over his will as to be a proper subject of punishment.[54] This would require the jury to find that the defendant had some knowledge of right and wrong and the power to choose between them. In any event, to render the accused entirely irresponsible, his act should arise out of and be caused solely by the diseased condition of his mind. The law, while asserting the responsibility of many insane people, should recognize "partial" responsibility as well.

The reader may feel that little after all would be gained, but he will observe that at any rate such a test, however imperfect, would permit juries to do lawfully that which they now do by violating their oaths. The writer believes that the best concrete test yet formulated and applied by any court is that laid down in Parsons _vs._ The State of Alabama (81 Ala., 577):

"1. Was the defendant at the time of the commission of the alleged crime, as matter of fact, afflicted with a disease of the mind, so as to be either idiotic, or otherwise insane?

"2. If such be the case, did he know right from wrong as applied to the particular act in question? If he did not have such knowledge, he is not legally responsible.

"3. If he did have such knowledge, he may nevertheless not be legally responsible if the two following conditions concur:

"(1) If, by reason of the duress of such mental disease, he had so far lost the power to choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed.

"(2) And if, at the same time, the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely."

But whatever modification in the present test of criminal responsibility is adopted, there must come an equally, if not even more important, reform in the procedure in insanity cases, which to-day is as cumbersome and out of date as the law itself. As things stand now in New York and most other jurisdictions there are no adequate means open to the State to find out the actual present or past mental condition of the defendant until the trial itself, and ofttimes not even then.

In New York, in cases like Thaw's, the accused, while fully intending to interpose the defense of insanity (which he is now permitted to do simply under the general plea of "not guilty") may not only conceal the fact until the trial, but may likewise successfully block every effort of the authorities to examine him and find out his present mental condition. He may thus keep it out of the power of the District Attorney to secure the facts upon which to move for a commission to determine whether or not he ought to be in an insane asylum or is a fit subject for trial, and at the same time prevent the prosecutor from obtaining any evidence through direct medical observation by which to meet the claim, which may be "sprung" suddenly upon him later at the trial, that the defendant was irresponsible.

In order that this may be clearly understood by the reader he should fully appreciate the distinction between (1) the claim on the part of an accused that he is at present insane, and for that reason should not be either tried or punished for his alleged offence, and (2) the defence that he was (irrespective of his _present_ mental condition) insane within the legal definition of irresponsibility at the time he committed it. No person who is incapable of understanding the nature of the proceedings against him or of consulting with counsel and preparing his defence can be placed on trial at all, or, if already on trial, can continue to be tried, and if a defendant "appears to the court to be insane," the judge may appoint a commission to examine him and report as to his present condition. This may be done upon the application either of the State or of the accused through his counsel.

It was such a commission to determine the accused's present mental condition that District Attorney Jerome, upon the basis of the evidence introduced by the defence, applied for and secured during the first trial of Harry K. Thaw. The commission reported that Thaw was sane enough to be tried and the court then proceeded with the original case for the purpose of allowing the jury to say whether he knew the nature and quality of his act and that it was wrong when he shot and killed White.

This was a totally distinct proceeding from the interposition of the DEFENCE that the accused was irresponsible _when he committed the crime_ charged against him and was not inconsistent with it.

Now supposing that the Commission had reported that Thaw _was_ insane at the time of examination and not a fit subject for trial, but, on the contrary, ought to be confined in an insane asylum, the District Attorney would have spent some twenty odd thousand dollars and a year's time of one or more of his assistants in fruitless preparation. Yet, as the law stands on the books to-day in New York, there is no adequate way for the prosecution to find out whether this enormous expenditure of time or money is necessary or not, for it cannot compel the defendant to submit either to a physical or mental examination. To do so has been held to be a violation of his constitutional rights and equivalent to compelling him to give evidence against himself.

Thus when Thaw came to the bar at his first trial the State had never had any opportunity, through an examination by its physicians, to learn what his present condition was or past mental condition had been. The accused, on the other hand, had had over six months to prepare his defence and had fully availed himself of the time to submit to the most exhaustive examinations on the part of his own experts. The defendant's physicians came to court brimming with facts to which they could testify; while the State's experts had only the barren opportunity for determining the defendant's condition afforded by observing him daily in the court room and hearing what Thaw's own doctors claimed that they had discovered. There was no chance to rebut anything which the latter alleged that they had observed, and their testimony, save in so far as it was inconsistent or contradictory in itself, remained irrefutable.

There is probably no procedure which would be held constitutional whereby a compulsory examination of the accused could be had upon the mere application of the prosecuting authorities; but as a commission may generally be appointed at any time after an accused has been indicted if he "appears" to the court to be "insane," and as it is usually within the power of the District Attorney where such is the case to bring sufficient evidence of it to the attention of the court before the prisoner is brought to trial, little time is actually lost and justice is rarely defeated except in those cases (such as Thaw's) where an attempt is to be made to prove the accused insane _at the time of the alleged crime_ although _sane_ at the time of trial. Even here it would be the simplest thing in the world to remedy the difficulty and the proper legal steps in all jurisdictions should be taken immediately.

The two chief objects of such reforms should be, first, to relieve the ordinary jury in as many cases as possible from the necessity of passing upon the delicate issue of a defendant's mental condition at a previous time, and second, where this may not be avoided, to make their task as easy as possible by providing (_a_) a more scientific and definite test of legal responsibility and (_b_) an opportunity for adequate examination of defendants availing themselves of this defence.

This last and most practical reform can be easily secured by a slight alteration in the New York Code of Criminal Procedure, which already provides both for the entering of the specific plea of insanity and for the introduction of the defence and the proof of insanity under the general plea of "not guilty." At present the defendant has his choice of openly announcing or of concealing until the trial his intention of claiming that he was insane and so irresponsible for his crime. This is an advantage the results of which were probably not fully contemplated by the Legislature, and one to which an accused has no fair claim.

Fortunately, in the same section of the Code (658), which provides that the court may appoint a Commission to inquire into the sanity of a defendant at the time of his trial, there exists another provision, hitherto little noticed, that

"When a defendant PLEADS INSANITY, as prescribed in Section 336, the court in which the indictment is pending, instead of proceeding with the trial of the indictment, may appoint a commission of not more than three disinterested persons to examine him and report to the court as to his insanity _at the time of the commission of the crime_."

If a defendant intends to prove himself irresponsible for his offence, why should he not be compelled to enter a specific plea to that effect? Once he has entered that plea, the law as it stands just quoted will do the rest. No reason has been brought to the attention of the writer why the admission of any evidence upon the defendant's trial tending to show that he was mentally irresponsible at the time of committing the crime should not be made contingent upon the defence of insanity having been _specifically pleaded_ either at the time of his arraignment or later by substitution for or in conjunction with the plea of "not guilty." This would deprive him of no constitutional right whatever. There is no legal necessity of permitting an accused to prove insanity under a general answer of "not guilty." Then upon his own plea _that he had been insane_ he could instantly be committed to some place of observation where a permanent medical board of inquiry could be given full opportunity to examine him and study his case with a view to determining his present and past mental condition. He would still have in prospect his regular jury trial, but if this board found him at the present time insane, the court could immediately commit him to an asylum pending recovery, precisely as under the present procedure, while if they found him sane at the present time, but reported that, in their opinion (whatever test, "medical" or "legal," they might have applied), he was _irresponsible at the time he committed the crime_, it is unlikely that any prosecutor would bring him to trial. If, however, they reported _that he was not only sane, but had been sane_ at the time of his crime, it is probable that any proposed defence of insanity would be abandoned, while if it was still urged by the accused, the opinion of such a board would carry far greater weight at the ultimate trial of the case than the individual opinions of experts retained and paid by either side for that particular occasion only, and having had only a comparatively limited opportunity for examination. At any rate, if the court called in the services of such a board of medical judges to assist as _amici curiæ_ in determining the defendant's condition, while their opinion would not be conclusive upon the jury, it would at least do away with the present lamentable necessity of learned men answering "yes" or "no" to a hypothetical question fifty thousand words long, when the most superficial personal examination of the accused would settle the matter definitely in their minds. Such a procedure is in general use in Germany and other continental countries, and is likewise substantially followed in Massachusetts, Maine, Vermont, and New Hampshire.[55]

There is good reason to hope that we may soon see in all the states adequate provision for preliminary examination upon the plea of insanity, and a new test of criminal responsibility consistent with humanity and modern medical knowledge. Even then, although murderers who indulge in popular crime will probably be acquitted on the ground of insanity, we shall at least be spared the melancholy spectacle of juries arbitrarily committing feeble-minded persons charged with homicide to imprisonment at hard labor for life, and in a large measure do away with the present unedifying exhibition of two groups of hostile experts, each interpreting an archaic and inadequate test of criminal responsibility in his own particular way, and each conscientiously able to reach a diametrically opposite conclusion upon precisely the same facts.

FOOTNOTES:

[Footnote 51: The questions propounded to the judges and their answers are here given:

_Question 1._--"What is the law respecting alleged crimes committed by persons _afflicted with insane delusion in respect of one or more particular subjects or persons_, as, for instance, where, at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?

_Answer 1._--"Assuming that your lordships' inquiries are confined to those persons who labor _under such partial delusions only, and are not in other respects insane_, we are of opinion that, notwithstanding the accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is, nevertheless, punishable, according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law, by which expression we understand your lordships to mean the law of the land.

_Question 4._--"If a person under an insane delusion as to existing facts commits an offence in consequence thereof, is he thereby excused?

_Answer 4._--"The answer must of course depend on the nature of the delusion; but, making the same assumption as we did before, namely, that he labors under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusions exist were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and kills the man, as he supposes in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.

_Question 2._--"What are the proper questions to be submitted to the jury when a person, afflicted with insane delusions respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for instance), and insanity is set up as a defence?

_Question 3._--"In what terms ought the question to be left to the jury as to the prisoner's state of mind when the act was committed?

_Answers 2 and 3._--"As these two questions appear to us to be more conveniently answered together, we submit our opinion to be that the jurors ought to be told, in all cases, that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defence on the ground of insanity it must be clearly proved that at the time of committing the act the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong." (The remainder of the answer goes on to discuss the usual way the question is put to the jury.)]

[Footnote 52: Dew _vs._ Clark.]

[Footnote 53: "General View of the Criminal Law," p. 80.]

[Footnote 54: See State _vs._ Richards, 1873, Conn.]

[Footnote 55: Another equally efficacious means of dealing with the matter would be to substitute, upon a defendant's plea of insanity, a full jury of experts--like any "special" jury--for the ordinary petit jury.]

INDEX

Abatement, plea in, 96

Acquittals, table of percentages of, 175, 176, 177 of women, 299, 300 danger of, by lawless jury, 340-344 "on ground of insanity," meaning of, 352

Adams, "Al," 319

Alabama, test of criminal responsibility in, 368

Alibi, use of perjured evidence to prove, 224, 225

Ammon, Robert A., and "The Franklin Syndicate," 25, 26

Appeal, from magistrate's decision, 47 number of appeals so taken, 47 no appeal by aggrieved person if magistrate discharges, 47 few appeals from Special Sessions, 62 unfortunate that prosecution cannot appeal on verdict of acquittal, 186, 337 defendant has right of, 337 reversals on, 339, 340

Archer, Agnes, case of, 301

Arrest (see Chapter III), right of citizen to arrest, despite common belief, 33 right to, ordinarily left to police, 33 anyone may arrest for crime committed in his presence, 35 no one may arrest for felony without his view, unless felony committed, 35 difference in citizen's and officer's right to arrest, 35, 37 police construe their right to arrest more broadly than law permits, 35 example of above, 36 right of police to arrest at night under New York Criminal Code, 36 force permissible in making arrest, 38 cases in which the power may be abused, 38

Arrest, power to arrest to be exercised with discrimination, 40, 41 the first step in procedure toward conviction, 42 after arrest prisoner taken before magistrate, 42 on bench warrant if indicted by Grand Jury, 42 on suspicion illegal but necessary, 43 number of arrests in New York County in 1907, 46 table showing nativity of those arrested, 46

Arrest of judgment, motion for, 269

Assault, power of magistrate should be extended to punish simple assault, 49

Autrefois Acquit. See Pleas.

Bail, in case of misdemeanor may be assessed by sergeant on duty, 42 right of accused to, except in case of murder, 85 bail cases not tried in summer, 126 forfeiture of, 127, 128 recommendation for discharge of, 170 "skipping" bail, 317

Bauman, case of, 323

Bench warrant, indicted and arrested under, 42

Blindness, "An Act for the Prevention of," 15

Branding, 266-268, 278

Breach of peace, 49

"Bridge of Sighs," 115

Capital punishment, no woman has suffered here in two decades, 299 cases of, comparatively rare, 246

Challenges, number of peremptory in homicide cases, 215 reduction to reasonable number desirable, 325, 346 in larceny cases, 346

Cherry, "Tom," 73, 74

Cignarale Chiara, case of, 299

Clancy murder case, 325

Code. See Statutes and Criminal Law

Cohalan, Daniel F., 216

Commercial Crime. See Crime

Commission, to take testimony without state, 123 application for, to take testimony for purpose of delay, 315 right to take such testimony confined to defendant, 315 motion for, 317 to determine present mental condition of an accused, 369-72 to determine mental condition at time of offense, 369-76 desirability of such being permanent and salaried, 373, 374

Commutation, of sentence for good behavior, 273 how determined, 273 periods of, (note) 273 distinguished from indeterminate sentence, 274

Complaints, in Court of Special Sessions, 63 or informations, ancient form of, 89

Confession, not sufficient to convict without corroboration, 330

Contempt of court, practical inability of New York courts to punish editorial contempts, 347 defined in Penal Code, 348

Convictions, proof of prior, admitted for what purpose, 148, 166 table showing percentages of, 175, 176 too few, 177 of innocent men almost unknown, 247, 336 of women indicted, in same proportion as men, 299, 300

County clerk, grand jurors drawn by, 358

"County Detectives," 87

Court officers as plea getters, 173

Cowing, Rufus B., Judge, 255

Crime, What is Crime? Chapter I, definition of, 1 relation of, to wrongs, 1, 2, 3 artificial character of laws defining, 4 _mala prohibita_ and _mala in se_, 6 little significance in mere name of crimes, 6 arbitrary nature of acts made crimes, 7 relation of, to insanity, 22 theory that crime is a disease overworked, 23 criminal instinct in all, 23 commercial crime favored by law, 24, 30, 223

Crimes, definition of, limiting it to those who "make a living" thereby is inadequate, 28 fundamental cause of, disrespect for law, 30, 334 attitude of jury toward commercial crime, 210, 211 What Fosters Crime? Chapter XVII not on increase in proportion to growth of population, 334 fostered by idea that criminal justice is slow and uncertain, 335, 336 by constitutional safeguards, 335, 336 by defects in our criminal law and procedure, 338 by attitude of "yellow" press, 338 by belief that higher courts reverse on technical grounds, 339 by acquittal of guilty by sentimental juries, 340-342 restraints on, 344-346 fear of present criminal prosecution and punishment greatest restraint on, 344-346 may be deliberate or the result of accident or impulse, 345

Criminal Courts Building, description of, 115

Criminal law, adapted especially to punishment of crimes of violence, 16 impression of ordinary citizen concerning, 149, 335 at present tends to retard and defeat justice, 336 present state of, result of exaggerated regard for personal liberty, 336 English system of, better than ours, 336 leaves many technical avenues of escape, 338

Criminal responsibility (see Insanity and the Law, Chapter XVIII), 350 test of, 353 unchanged since case of McNaughten, 353 questions propounded by House of Lords to the judges, with their answers, 354 delusions in the law of insanity, significance of, 355, 356 doubtful interpretation to be given to words "wrong" and "know," 357 Hadfield's case, 358

Criminal responsibility, present New York test does not recognize any lack of inhibitory capacity, 359 test is imperfect, inadequate, and vague, 357, 359 difficult of application, 357 juries disregard it except in extreme cases, 360-366 expert testimony in insanity cases discounted by jury, 360, 361 requirements of proposed new tests, 366-368 Alabama test, 368 the "defense" of insanity often confused with claim of present insanity, 369 present insanity determined by commission, 369-376 mental condition at time of crime should be likewise determined, 369-376 defendant may refuse to permit examination, 370 present ineffectuality of law in New York, 370-376 could be easily remedied, 372-374 plea of insanity should be made compulsory, 373 defendants so pleading should be remanded for observation by permanent, salaried, expert commission, as in Germany and elsewhere, 373, 374 probable unconstitutionality of other suggested remedies, 374

Criminals, not necessarily worse than other people, 5, 9 not usually criminal in all directions, 5 generally specialists, 5 intentional, as distinguished from accidental or occasional, 9 as distinguished from sinners, 17 Who are the Real Criminals? Chapter II Charles D. Warner's definition of, 19 traditional criminals few, 19 the modern criminal, 20 degenerate class of, exaggerated by continental writers, 21 sentimentality concerning, over-done, 21, 23, 196 majority of, not mentally defective, 22 close relation between all, 22, 29 why men are criminals, 24 dishonest business men real criminals, 24, 25 law at present favors business criminal, 25 Criminals, professional criminals and degenerates form small proportion of law breakers, 29 distinction between criminals and convicts, 42 begin with petty infractions of law, 72 professional criminals generally plead guilty, 148 receive consideration for saving expense of trial, 148 may obtain speedy trial if desired, 152 weight given to prior conviction, 148

Criminology, modern tendencies in, 17 penological movements, first in direction of prison reform, 21 and second in study of degeneracy, 22

Cross-examination, use of, 231, 240 impossible to cross-examine through interpreter, 239 of women difficult, 291, 292

Defendants, hostile attitude of courts to, in ancient times, 16 present rights of, 16, 17 presumed to be innocent, 44 have right to counsel, 43 sensations of, 45 cannot be compelled to testify, 91, 326 may move to dismiss indictment and thus retard trial, 91 may easily obtain speedy trial, 152 their own testimony generally convicts, 154 rapid trial redounds to their benefit, 156 if innocent need not fear to testify, 162 majority of those failing to testify convicted, 163 may defend themselves, 164 often wise to rest on People's case, 164 danger to, by perjury of one of their own witnesses, 164 influenced to plead by result of prior cases, 174 benefit by prosecutor's desire to dispose of case, 220 favored by jury, 222 description of, while waiting verdict, 241 right to poll jury, 247 when convicted rarely show emotion, 247, 248 may present plea for clemency before sentence, 271 latitude allowed, 337, 338 (See Criminals.)

Degrees of crime, arbitrary character of, 8

Delays, The Law's, Chapter VII secured by motions based on irregularities before Grand Jury, 93 delay the first, in the police court, 108 delay the second, before the Grand Jury, 114 delay the third, pleading, 119 delay the fourth, in preparation of case for trial, 121 delay the fifth, after case on calendar, before trial, 122 delay the sixth, dilatory tactics of counsel for defense, 123 delay the seventh, bail cases not tried in summer, 126 delay the eighth, forfeiting recognizance, 126 alienates support of citizens, 129 defendant has everything to gain by delay, 314 method of securing, 315, 316 motions to secure, 316 many penal statutes and procedure tend to retard and defeat justice, 336 (See Red Tape, Chapter VIII, 129.)

Delusions, significance of, in law of insanity, 355, 356

_Dementia præcox_, 351

Demurrer, 316

Dinser, Gustav, case of, 289

Disagreements, two equivalent to acquittal, 220 large number of trials resulting in, 244

Disorderly conduct, jurisdiction over, by magistrate, 49

Dodge-Morse divorce case, 321, 322

Donohue _v._ N.Y., N.H. & H.R.R., case of, 259

Dummies, 318-322 attempt to induce witness to identify, 321, 322 most famous case of, 321

District Attorney (see Prosecutor), power to act when magistrate discharges, 47, 48 copies papers forwarded from magistrate and subpoenas witnesses for Grand Jury, 87 prepares calendar for Grand Jury, 87 draws indictments, 87 preliminary examination of witnesses by, 117 a quasi-judicial officer, 167, 168 limitations placed upon, by laws of evidence and procedure, 165, 168

District Attorney, should move defendant's discharge if convinced of innocence, 168 has same latitude in summing up as defendant's attorney 168 in presentation of case, People should have same rights as an individual, 168 should win confidence of jury, 169 function of, 304 can rebut defense more easily where it has been exposed before magistrate, 312 necessity of examination of jury by, 323

Electric chair, jury send to, only in atrocious cases, 213

Ellis, William H., case of, 315, 316

Elmira, release from, 165 sentence to, indeterminate, 165

Evidence, character of defendant provable only when put in issue by himself, 161, 166 defendant's right to give, himself, 161-162 but no inference to be drawn from defendant's failure to testify, 160, 162 rule permitting defendant to testify practically forces him to do so, 163 good character of complainant and witnesses only provable on attack, 167 amount of strictly accurate testimony very small, 225 "refreshing recollection," in practice absurd, 235 method of refreshing recollection, 235 (See Witnesses)

Ex Parte, proceeding before Grand Jury is, 90, 99

Felix, John, case of, 15

Felonies, The Trial of, Chapter IX (See District Attorney, Prosecutor, Defendants, etc.) distinction between felonies and misdemeanors often without merit, 30 number of persons arrested for, 85 should be prosecuted by information, 100 rapidity of trials for, 152, 154 description of trials for, 150 attempted suicide, 171 compounding, by agreeing not to prosecute, 349

Foster, Judge Warren W., 216

"Franklin Syndicate, The," 26

Fursman, Judge, 321

General Sessions, Court of, appeal to, from magistrate's courts, 47 procedure in, 119, 150, 151 description of (see Felonies), 150

Goff, Recorder, 86, 290

Habeas Corpus, for prisoners held in police court, 43 to test magistrate's jurisdiction, 47 only remedy for illegal commitment, 49 writ of, often secured for delay, 317

Hackett, Orlando J., case of, 290

Hadfield's Case, 358

Harris, Carlyle W., case of, 263, 264

Hawkins, Sir Henry, on want of uniformity in sentences, 189, 190

Homicide, typical case of manslaughter, 8 large proportion of defendants charged with, plead guilty to manslaughter, 174 charge of court in cases of, 243 verdicts in cases of, 246 sentence in cases of murder fixed by law, 261 larger proportion of women indicted convicted of, than men, 334

Howe, "Bill," 297, 298, 323

Howe & Hummel, 322

Hummel, Abraham, 321, 322

Imprisonment, pending appeal, advisability of, 346

Impulse. See Irresistible.

Indeterminate sentence, definition of, 273 constitutionality of, upheld by courts, 274 distinguished from commutation, 274

Indictments, found by Grand Jury, 81 "true bills," 82 number of, found, 85 drawn by District Attorney, 87 form of, 87, 88 for larceny, 88, 89 invalid, when, 91 defendant may move to dismiss, when, 91, 92 ratio of women to men indicted, 292 not "pigeon-holed" or "lost" in New York County, 314 motion to dismiss, 317 for forgery, 331

Information, in Court of Special Sessions, 48, 49 Information, of aggrieved party, old form, 89 proceeding by, in different states, 100 all felonies should be prosecuted by, 100

Insanity, not true that majority of criminals are mentally defective, 22 sentence cannot be pronounced on insane person, 269 how those insane at sentence are dealt with, 269 defendants unlikely to feign, at sentence, 270 used as means of avoiding trial by rich, 317 As a Defense to Crime, Chapter XVIII, 350 (Also see Criminal Responsibility and Commissions)

Inspection, of Grand Jury minutes, 122, 316

Interpreters, usually very incompetent, 239 difficulty of cross-examining through, 239

Irresistible impulses not recognized by present New York test of responsibility, 359

Johnson, Richard, words of, before sentence, 262

Judge, The (Chapter X), functions of, 178 most difficult function of, to impose sentence, 178, 179 his conduct during trial, 179 may "sum up" in England but not here, 179, 337 his business practically to "even things up," 182 should interrogate witnesses, 182 difference between his theoretical and practical functions, 179, 182 should not interfere with jury on questions of fact, 183 able to convey opinion to jury despite the law to contrary, 184 most judges too lenient, 187, 195, 196 tendencies often well known, 187, 188 want of uniformity in sentences, 189, 199 interference with judges in sentences, 191 matters presented to, in determination of sentence, 192, 193 restitution considered by, in sentencing, 195 reasons for leniency, 195, 196 fear of reversal, 196

Judge, impression that judge is easy-going or subject to influence conduces to lawlessness, 197 judicial propriety desirable, 198 sometimes gives benefit of reasonable doubt after conviction, 199, 200 inequality in punishment, 200-202 no place for weak judge, 204 when a law-breaker, 210 responsibility of, in sentencing, 261, 272

Judgment, arrest of, 269

Jury, Grand (Chapter VI) power to hold for, by magistrate, 47 indict as matter of course, 56 indictment must precede trial for felony, 81 composition of, 81, 82 finding true bill by, 82 is archaic, 82 procedure by information in states where there is no grand jury, 82 first record of Grand Jury proceeding in New York, 82, 83 number of persons held for, in last six years, 85 how chosen, 86 charged by judge, 87 calendar of, prepared by district attorney, 87 nature of proceedings before, 90 may send for witnesses, 91 relieves district attorney of responsibility for failure to prosecute, 91 historical development of, (footnote) 92-95 irregularities before, 93 power as general inquisitorial body, 93, 94 power of, vast, 94 tendency to exceed powers, 95, 96 presentment by (see Presentment), 96, 97 why not abolish? 99 original necessity for, has disappeared, 98, 99 one purpose only for which it should be continued, 98, 101 original advantage of, 99 out of harmony with present institutions, 99 few cases originate before, 100 abolished in certain states, 100 subpoenas to appear before 115 description of proceeding before, 116-118 delay before, 119 indict for "murder" in most homicide cases, 174

Jury, Petit (Chapter XI), trial before, after indictment, 56 disinclination of, to convict, 57 find it difficult not to be prejudiced by defendant's failure to testify, 160, 161 improves with service, 169 see little of professional criminals, 148, 169 inclined to take law in its own hands in trivial cases, 171, 172 inclined to convict on substantial evidence in serious cases, 172 petty offender profits by lawlessness of, 172 why efficient in criminal cases, 172 when at its best, 173 apt to acquit early in term, 173 percentage of convictions to acquittals by, 175, 176 function of, 205 capacity of, 205 apt to usurp functions of judge, 206 English jury more satisfactory, 206 have little regard for law here, 207, 208 inaccuracy of verdicts by, 209 reason for arbitrariness on part of, 209 attitude of, toward different crimes, 211, 212 have small regard for life, 209, 213 time require to select, in homicide case, 215 futility of wasting time in selection of, 215 some examination of, imperative, 216 method of escaping service on, 217 often contains officious members, 219 desirability of homogeneity in, 219, 220 eleven jurors should find verdict, 221, 222 favors defendant, 222 practically successful, 223 first member of, selected is foreman, 243 take time before returning verdict, 253 deliberations of secret, 254 failure in duty by, 255 the influence of one strong-minded member upon, 255, 256 effect on, of women's evidence, 293 effect of appeals to sympathy, 322 disregard the law in applying test of criminal responsibility, 360-366

Jury system, works best in criminal cases, 192 a practical success, 223 works "substantial justice," 223 brought in contempt by sentimental or lawless acquittal, 343, 344

Jurisdiction, of magistrate, 47 of courts tested by habeas corpus, 43, 47

Larceny, magistrate compelled to hold defendant for higher court in all cases of, 48 summary jurisdiction of magistrate should be extended to petit larceny, 48 now frequently treated in police courts as disorderly conduct, 49 form of indictment for, 88 grand, value necessary to constitute, 102

Lawyers, retained to advise prospective criminals, 10 seek to postpone rather than hasten trials, 152 business of, to create reasonable doubt, 304 (See Shysters)

Legal Aid Society, 77

"Legal" insanity, 354, 360-366

Levy, Abraham, 323

Lincoln, Abraham, advice of, 326

Liquor Tax cases, the bane of Special Sessions, 69 few convictions for violation of (see note), 210 juries reluctant to convict in, 70, 209, 210

Livingston, case of, 13

Magistrates, broad power of, 43, 48 committment by, 45 how regarded by humble classes, 46 number of cases disposed of yearly by, 46 jurisdiction of, 46, 47, 48 power to hold for higher court of, 47, 85 jurisdiction of, should be extended over petit larceny and simple assault, 48, 49, 57 jurisdiction of, over breach of peace, 49 tendency of, to hold for higher courts rather than spend time for examination, 56 power of, for good, 58 close contact of, with police, 58 appointment of, generally political, 59 (See Police Courts)

_Mala prohibita_, as distinguished from _mala in se_, 6 illustrations of, 10

Manhattan Bank, case of, 254

Mayhem, crime of, 316

McCord, People _vs._, case of, 12

McNaughten's case, 353 doctrine of, 354 "Medical" insanity and "legal" insanity, 354, 365

Miller and "The Franklin Syndicate," 26

Misdemeanors (Chapter V), may be morally worse than felonies, 6 illustrations of what are, in New York state, 10 distinction between, and felony often without merit, 30 tried in Special Sessions, 85 (See Special Sessions)

Mock Duck, case of, 218, 318, 319

Moran, trial of, 216

Morse-Dodge divorce case, 320, 322

Motions, for delay in proceedings, 316, 317

New trial, motion for, at sentence, 276

"Not proven," inadvisability of a verdict of, 244, 245

Nott, Charles C., "In the District Attorney's Office," 155 cases cited by 162, 166 quoted on defendant's failure to testify, 163

Oath, in police court, 112 before Grand Jury, 118

Omissions, usually not crimes, 10 illustrations of, 10

Osborne, James W., 328

Parker, Mabel, case of, 330

Parole. See Suspended Sentence

Patterson, Nan, case of, 299, 301, 335

Pedigree, taking of, 155, 248, 252

Perjury, crime of, 224, 225 large amount of, among defendants' witnesses, 225 false answer in taking pedigree is perjury, 251 women more ready to commit, than men, 285 in defendant's own testimony, 311

Plea, in Court of Special Sessions, 63, 120 in abatement, 92 of "guilty," "not guilty," and "autrefois acquit," 92 withdrawal of, 155 benefit of clergy, 266-269 of "insanity" should be compulsory, where defense is anticipated, 373

Police Courts (Chapter IV). See Magistrates right of arrested to immediate hearing in, 43, 85 right to counsel in, 43 attitude in, toward defendants, 44 description of, 44, 109 harsh treatment in, 45 proportion of cases there disposed of summarily, 45 great importance of, 45 a day's work in, 50, 56 proceedings in, 110, 111 delay in, 113

Police headquarters, described, 32

Police judge. See Magistrate

Police officers, great awe of persons in general for, 31 right to arrest (see Arrest) contact with magistrate, 58 assault on, 70 the police sergeant, 107

Police station, proceeding in, 107

"Policy," business of, 319 (See Al. Adams)

Polling, of jury, 247

"Poor Man's Court of Appeals, The." See Police Courts.

Prescott, quoted on integrity of judges among Aztecs, 198

Presentments, by Grand Jury, 96 often unnecessary and frivolous, 97, 98

Press, sensational press fosters crime, 334, 338 domination of court room by, 347 trial by, 347, 348

Property clerk, at police headquarters, 132, 134, 137, 138, 146, 147 at district attorney's office, 134

Prosecutor, effect of experience on, 4 often protects accused from shysters, 78 delicate position of, when informed of facts inadmissible in evidence, 166 allowed small latitude, 337 (See District Attorney)

Punishment, unfair apportionment of, under the law, 26 once a matter of private vengeance, 32 now for protection of public safety, 32 desire for punishment of accused still moving cause of most prosecutions, 32 imposed by magistrate, 47 inequality in, the exception, 200 (See Sentences)

Purdy, Ambrose H., 324

Questions of House of Lords to English Judges after McNaughten's case, 354

Reasonable doubt, definition of, 160 giving benefit of, _after_ conviction, 199, 200 difficulty in finding guilt beyond, 244, 245 defendant entitled to benefit of, 304 certificate of, 346

Recognizance, form of (see Bail), 127

Recommendation, cases dismissed on, of district attorney, without trial, 170 ground of, 170, 171 to mercy by jury, 245 to mercy usually considered by jurors as part of verdict, 245 to mercy, facilitates agreement, 246

"Red Tape" (Chapter VIII), at police headquarters, 137, 138, 144, 147 at district attorney's office, 140, 143 (See Delays)

Requests, to charge, 339

Reversals of convictions, effect on community of, 198 number of, on appeal, 339, 340 rare on technical grounds in New York state, 339 usually fault of trial judge, 340

"Ringers," 318-320

"Runners," methods of, 73, 75

Scannell, John J., case of, 92

Schorling, J. Holt, quoted, table of increase and decrease in specific crimes, 20

Sentences (Chapter XIV), want of uniformity in, 189, 199 judges too lenient in, 187, 195 matters considered by judge in imposing, 192, 195 impossible to secure equality in, 200, 202 table showing sentences for different crimes, 201, 202 might be imposed by judges _en banc_, 203 for perjury, heavy, 224 jury would be more severe in, than judge, 245 for murder fixed by law, 261 great responsibility of judge in matter of, 261 to life imprisonment, 264 of death in all felony cases, formerly, 265

Sentences, motions to arrest judgment, 269, 270 appeal for clemency before, 271, 272 little mercy to old offenders in, 272 (See Indeterminate Sentences) remarks of judge at time of, 274, 275 lightness of, 275 advantages of short sentences, 275

"Shysters," methods of, 58, 74-80, 122, 327 (See Tricks of the trade)

"Sick engineers," 14, 170 never plead guilty, 170

Special panel, 173

Special Sessions, Court of (see Misdemeanors), information in, 48 power to try petit larceny cases, 48 old court of, 62 present composition of, 62 number of cases disposed of in, 62, 63 procedure in bringing cases before, 63 speedy trial in, 63 jurisdiction of, 64, 65 rapidity of procedure in, 65, 66 Liquor tax cases in, 69 attitude of, toward assaults on police officers, 70 practically final court of disposition for misdemeanor, 71 important cases often tried therein, 71 efficiency of, 62, 72 lawyers in, 72, 73 menace of "shysters" in Special Sessions and police courts, 79, 80

Statutes, multiplicity of, undesirable 12 "to prevent blindness," 15 punishing contempt, 348

Stay, of proceedings, 317

Stolen property, recovery of, by owner. See Red Tape innocently receiving, 329

Street walkers, 75, 76, 77

Subpoenas, served by district attorney for Grand Jury, 87

Summerfield, "Larry," 14, 26, 27

Sweetser, William A., 321

Supreme Court, Criminal Term, tries most of homicide cases, 174

Suspended sentences, in large number of cases against first offenders, 195, 261

Technicalities, reversal on technical grounds, 339, 340

Technicalities, means to abolish, 347

Test of criminal responsibility, 353 proposed new tests, 360-368

Thayer, J.B., on historical development of Grand Jury (footnote), 92, 95 cited, 221, 301

Thaw, case of H.K., 350, 370

"Tombs," The, 115

Tricks of the Trade (Chapter XVI), of the successful practitioner, 303 bolder than in civil courts, 304 inducing complainant to withdraw charge, 309, 310 securing adjournments, 310 persuading court that case is trivial, 310 obtaining immediate hearing to find out People's evidence, 311 waiving examination to conceal defendant's case, 311 which are utilized after magistrate has held accused, 314 securing permission for defendant to appear before Grand Jury, 314 securing delay in trial, 314 introducing "ringers" in place of real defendant, 318-320 attempt to have witnesses identify dummies, 321, 322 appeals to sympathy of jury, 305, 307, 322 offer to "take first twelve" jurors, 323 obtaining one favorable juror, 323 getting members of same race as defendant on jury, 324 gaining good will of jury by chance remark, 325 defendant's counsel intentionally appearing intoxicated, 325 supplying missing evidence in counsel's opening or closing, 326, 328 getting one of two defendants to take entire blame, 328, 332 most of them unsuccessful, 333

True bill. See Indictment

Twitchell, case of, 282, 283

Verdicts (Chapter XIII), lack of accuracy in, 209 arbitrariness of, 209 form of, 243 procedure in rendering, 244 difficulty in reaching, 244, 245 of murder in first degree rare, 246 how received by defendants, 246, 247 slowness in reaching, 253

Verdicts, in Manhattan Bank case, 255 by eleven jurors, advisability of, 347

_Voir dire_, 305, 324

Warren, Chas. D., definition of criminals by, 19, 24 within the definition, 24

"Watch, The," 109

Wellman's "Art of Cross-Examination," 282, 287, 298, 299

Wigmore, Professor John H. See Introduction

"Wire tappers," wire tapping described, 14 (See McCord and Livingston and Tompkins cases)

Witnesses (Chapter XII). See Evidence. value of testimony of, 224 original capacity of, for observing correctly, 225 children make remarkable, 225, 226 often honestly mistaken, 226 present stronger testimony in court than upon preliminary examination, 228 unconscious amplification by, 229, 230 fallibility of the honest witnesses, 230 recollect impossible details, 232 who refresh recollection, 233 ultimate test of value of testimony of, 236 physical condition of important, 236 to be convincing must be positive, 237 the most effective witness with jury, 237 measurement of time by, 238 difficulty of finding language comprehensible to, 238, 239 difficulty with foreign, 239

Wood, Fernando, 319

Women in the Courts (Chapter XV), sentences of, table, 202 their evidence originally regarded with suspicion, 279-281 men said to rely on power of 281

Women in the Courts, reason, women on intuition, 281 do not differ from men in original capacity to observe, 282 confuse knowledge with imagination and belief, 282 illustration, 283 their habit of stating inference, 283 more ready to swear testimony through than men, 284 more ready to commit perjury than men, 285 often make remarkable witnesses, 285 frequently couple with answer statement damaging to defendant, 285 silent cross-examination of, the most effective, 286 old women simulating stupidity the most dangerous, 288 more difficult to cross-examine than men, 291, 292 testimony of, little different from men's, 292 number of, indicted and tried, 292 number of complaints by, 292 tried by opposite sex, 293 more likely to persuade jury than men 293, 295 effect of beauty of, on jury, 295 juries apt to be more lenient with, 296 no woman has suffered death penalty in this country in twenty years, 299 number of, convicted in proportion to those indicted compared with men, 299, 300 number of, prosecuted, few, 300, 301 earliest case on record of prosecution of woman for murder, 301 larger proportion of, charged with murder, than men convicted, 334 false popular impression that few women are convicted, 334

Wrongs, relation of, to crime, 1, 2, 3 huge number of, not crimes at all, 7

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TRUE STORIES OF CRIME

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