Chapter XVIII: Insanity and the Law (2)

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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