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from exposure. Yes, yes, I say, it is winter; but it is difficult to keep the fact in mind where one sees roses in bloom and butterflies and dragon-flies on the wing. Not that cool weather is unknown, even in this latitude. One night lately, water froze, and on more than one night orange-growers have suffered a scare. Some of them, less than a week ago, sat up till near daylight watching the mercury, which, after grazing the danger mark, took at the last

minute an upward turn. A little more, and I should have seen the grove illuminated. But even at the worst no real harm has been done, and within a day or two shirt-sleeves and surf-bathing have been again in order.

Under such conditions, and if one does not make too hard work of it, beholding the fowls of the air is surely a pleasant business. If that were all, as I said before, gospel obedience would be an easy yoke.

IN THE DISTRICT ATTORNEY'S OFFICE

BY CHARLES C. NOTT, JR.

THE public forms its impressions of the administration of the criminal law in the county of New York - very naturally from the accounts it reads of important and intricate cases, and therefore - very naturally, again - believes that defendants languish long in prison, awaiting trial; that the majority of them go free, or that, if convicted, the punishment of most of them is either defeated or delayed by technicalities and appeals. As a matter of fact, these impressions are entirely erroneous, so far as the general enforcement of the criminal law in New York County is concerned. During the year 1903, the average length of time between a defendant's arrest for felony and his trial-in cases where he was imprisoned awaiting trial-was less than two weeks. There were 2400 convictions by plea or verdict, to 615 acquittals; while out of 11,011 convictions during the five years 1898 to 1902 inclusive, the number of appeals brought to hearing was only ninety-five, and out of that number the ratio of affirmances of conviction to reversals has been nearly four to one.

The purpose of this article is to sketch very briefly some of the conditions attending the trial of average, commonplace felonies which are proceeding day

after day, during every month of the year, in the county the old city of New York.

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The administration of the criminal law in New York, even in important cases, is far from a spectacular affair. In the Court of General Sessions, or the Criminal Branch of the Supreme Court, where all indictments for felonies are tried, the courtrooms are large and comfortable, flooded by the garish light of day, and, back of the rail reserving a space for the panel of jurors, filled by a motley crowd of witnesses and spectators, Italians, negroes, long-bearded Polish and Roumanian Jews, poorly clad working women, and handsomely dressed women without visible occupation. At a table within an inner railing close by the jury-box will be sitting a collarless young man, or a much behatted young woman, listening attentively to the proceedings, while in the box will be twelve citizens, among whom it is safe to say that the German and Hebrew elements will predominate. If the trial is an ordinary one, for grand larceny, burglary, assault, etc., it will proceed very swiftly. The complainant takes the stand and tells his story, usually corroborated to a greater or less extent by

a witness or two and a police officer. "The people rest," announces the prosecuting attorney. "Go round there, young man," directs the counsel assigned to the defense; the defendant rises and passes around to the witness-chair, to the ordeal which will make or mar his chance for freedom, and the most important and interesting phase of the case begins, — the examination and cross-examination of the defendant, an ordeal, but also a privilege, bestowed by the law within the past fifty years. After a brief charge by the Court, the jury file out; "John Jones to the bar," calls the Clerk; another young man followed by an officer enters from the pens in the rear of the courtroom, and another jury is being impaneled before the first one is fairly out of the room. As the second trial commences, it will perhaps be interrupted, and a third young man will take his place at the bar, to whom the Clerk will address the somewhat pointed question: "John Smith, do you now desire to withdraw the plea of not guilty heretofore entered by you, and to now plead guilty of grand larceny, second degree?" Mr. Smith signifies by a sulky nod that such is his desire, whereupon further inquiries concerning his age, parentage, habits, etc., are put to him, concluding with one as to his prior convictions. The prisoner whispers to the officer standing by him, who calls to the Clerk, "In 1892, three years, burglary; in 1898, four years, grand larceny;" and the prisoner is remanded for sentence and led away, and the trial resumed. During the day from two to four cases will be disposed of by trial, and anywhere from one to seven or eight by plea of guilty. This is the ordinary, routine spectacle that goes on, day in and day out, in the four parts of the Court of General Sessions.

If the setting and actors in the endless drama are prosaic and commonplace, the drama itself is not, and its variety is endless. The victim of the saloon robbery follows as complainant a degraded little girl, punishment for whose moral perversion is being sought by the Society

for the Prevention of Cruelty to Children; and he will be followed by the merchant whose packing cases have been pilfered, or by the woman whose purse has been snatched.

To take the actual record of an ordinary day: Maria Dzialozindky takes the stand and swears that after a brief acquaintance she married (as she supposed) the defendant before a rabbi of his choosing; a man in charge of an officer is identified by her as the rabbi; he is brought over from the Penitentiary on Blackwell's Island where he is serving a sentence for larceny, being a thief and not a rabbi; Maria goes on to relate how the defendant then procured from her $149, and disappeared, leaving her alone in the Suffolk Street tenement which was to have been their connubial bower of bliss; it further appears that the defendant had a wife living at the time that he went through the ceremony of a mock marriage with Maria. Defendant takes the stand, modestly admits that he is possessed of such unusual attractions that Maria persecuted him into this marriage; that she forced the $149 upon him, and that he unfortunately slumbered in a saloon and it was stolen from his person. The jury fail to give credence to his tale, and promptly convict him. The next defendant is smooth and well dressed, a hanger-on in the region known as "the Tenderloin." Testimony is given that he and another did take and carry away and sell certain typewriting machines from an office in Thirty-Fourth Street. Defendant with an engaging smile tells how his companion had just been discharged from the office in question, and had enlisted his (defendant's) aid to remove the machines, which he informed defendant were his own, and how shocked he was later to learn that this wicked companion had no right or title to them. His smile is so engaging, and his looks so respectable, that the jury acquit him, and are somewhat chagrined when the judge, in discharging him, states that in the Court's opinion he is a smooth and plausible thief and guilty

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beyond a doubt, which is the fact, as previous to the trial he had offered to plead guilty to a lower degree of the crime charged. Next comes a stalwart Irishman who describes with much feeling how the defendant (unfortunately a much smaller man), without any provocation whatever, viciously assaulted him in the hallway of the West Side tenement house where they both lived, and cut him in various vital parts with a pocket knife. Defendant (bandaged to no less a degree than complainant) describes how he had "an argiment" (a term embracing any affray ending in anything short of murder in the first degree) with complainant and his brother over a game of cards, whereupon they followed him to the hallway, threw him down and kicked him, and he struck at them with a large key. His tale sounding reasonable and being corroborated by several neighbors, defendant is acquitted. Lastly, an unsuspecting passenger and an alert trolley-car conductor tell how defendant, a shiftylooking young gentleman, while sitting next to the unsuspecting passenger, kept with one hand a newspaper shoved under the latter's chin, while with the other he abstracted a fine diamond scarf pin adorning his cravat. When their tale is completed, the defendant and his counsel put their respective heads together, and counsel then announces that his client, the sole support of a widowed mother, did, in a moment of temptation induced by filial anxiety, endeavor to acquire this pin, and he therefore desires to throw himself upon the mercy of the Court and plead guilty, which he does. It appears, however (of course to counsel's astonishment), that his portrait has for several years ornamented the Rogues' Gallery, and that his record as a son is not all that it might be, whereupon he is sentenced upon the spot, and court adjourns. This is the summary of the actual record of a court day presenting no unusual features.

Like all dramas, that presented at the Criminal Courts Building has also a side transacted behind the scenes which the

jury, as audience, never sees. Many a jury will be wrestling (more profanely than prayerfully) over the case of some young man who, down in the pen before the trial, has expressed the shrewd opinion that "the judge ain't going to give me more than Elmira, anyway, so I might as well chance it with them guys." The philosophy of this intention is due to the fact that a man sent to the Elmira Reformatory is sent under an indeterminate sentence, to be determined by the authorities of the Reformatory, and therefore has nothing to gain by pleading guilty, and a chance to fool the "guys" by a plausible defense. And frequently the same wrestlings in spirit will be gone through in cases where the defendant has offered a plea of guilty of a lower degree of crime and the offer has been rejected. Of course such offers are confidential, and occasionally a defendant will walk out a free man, giving a triumphant grin, in which his attorney joins, at the prosecuting officer who refused the plea, while the jury are congratulating themselves on having vindicated an innocent man. And submerged beneath the facts admitted in evidence is very often another state of facts inadmissible under legal limitations, which would frequently put a very different complexion upon the case.

Take, for example, a certain case tried in the Criminal Branch of the Supreme Court in the January term of 1902. The jury saw the defendant, a stalwart, openfaced laboring man of nearly sixty years, on trial for murder in the first degree; they heard a bar-tender and a smoothshaven, bullet-headed witness describe how the defendant in the saloon became involved in a dispute with the deceased, caused by the defendant's bad taste in reminding him that he had done time for killing his own father; and they heard him of the bullet head admit on crossexamination that a scar adorning his neck had been inflicted by the deceased some two years before; they heard the two witnesses describe how the deceased left, breathing threatenings and slaughter, and

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how a few minutes later the defendant, in the room back of the saloon, was approaching the rear door, cutting a plug of tobacco with his knife, which he had providentially drawn for that purpose, when the deceased leaped upon him from the door and tried to stab him, whereupon a fight ensued, in which the defendant was cut, and after which the deceased left, followed a few minutes later by the defendant and the bullet-headed, who saw naught further of him. To mar the metry of this tale of self-defense (proved by the prosecution's own case), but two jarring facts appeared, first, the saloon proper (not the rear room) was found soaked in blood, and, second, the deceased was found shortly after defendant's departure at three A. M. lying on the sidewalk in plain sight of the rear door, with his throat cut from ear to ear. No evidence was put in for the defense, the defendant modestly refrained from taking the stand, and of course an acquittal was inevitable.

From behind the scenes, however, the facts assumed a different aspect. The frank-faced defendant was one "Red," who had served time for robbery and other offenses; the bullet head surmounted shoulders upon which rested a heavy load of crime and violence, their owner having served the State several times and been implicated in numerous crimes, including murder; the bar tender would have considered it quite as safe, and far more comfortable, to put a bullet through his head than to testify against this choice pair; while it was true that the deceased had killed his own father, the act was performed, while parent and son were in a drunken fight, by striking the old man on the head with a water pitcher, and had occasioned great mortification to the son when he became sober; and it was true that defendant and the bulletheaded were both bitter enemies of the deceased. On this statement of facts, there is little doubt that the deceased was murdered in the saloon where the blood was found, and his body thrown

out on to the sidewalk, and the story arranged, the defendant shouldering the quarrel because he had received a cut in the course of the fight. As the defendant did not take the stand, his record and character could not be shown; as the State was compelled to call the bar-tender and the other witness (they being the sole witnesses to the occurrence), it could not impeach their veracity nor attack their character. To the prosecuting officer, therefore, was presented the choice of recommending the "turning out" of a desperate criminal without a trial, or of putting in what facts the law permitted to be shown, and leaving the jury to acquit, while marveling that such a weak case should be presented to them.

One "Hoboken Jack," when he was questioned confidentially in the district attorney's office as to the circumstances attending his last conviction, picturesquely remarked, "Well, me an' another gun was takin' a flyer on de rattlers down to de dead-line, ringing shiners, an' de bull made a collar, an' it framed up for a tenspot, so I put in a squeal;" which being translated is to say that "I and another thief took a trip on the trolley down to the dead-line, twisting watches off by the ring, and the policeman caught me, whereupon, the situation suggesting that I might get ten years, I deemed it advisable to plead guilty; "— which shows that the children of darkness are wise in their generation, — it being the only one about which they especially concern themselves.

With all their wisdom in evading the worst consequences of their acts, they get for the most part but small wages for their criminal labors. I recall three homicide cases tried during the year 1902, where disputes concerning money led directly to the killing, and the aggregate amount involved was eighty-five cents; and a few dollars received from a pawn-broker is the usual dividend on a state prison sentence. The "good-thing" and "get-richquick" men seem to form an exception to this rule, and the rich hauls made

by them indicate that there has been no falling off in the birth-rate of "suckers" since the day when a noted confidence man declared that one was born every minute. One gang of these men, five members of which were convicted during the year 1903, took in upwards of $25,000 in little over a month, by a typical device. The victim was introduced to a voluble president of a mining company in his comfortable office, who confirmed the story of the introducer to the effect that the company, in consequence of recent discoveries of ore, was buying in all of its stock obtainable at from fourteen to twenty dollars a share, and that it was unable to locate one of its former engineers who had left on account of illness before the discovery, owning a large number of shares. After long negotiation, the president would agree to buy at twenty dollars a share as much of the stock as the victim would offer within three days. The introducer, who had succeeded in locating the sick engineer, then led the victim to his bedside in some hotel, and the engineer, between his moans of pain, finally agreed to sell his stock at, say, nine dollars. The victim thereupon exchanged a substantial sum of good and lawful money of the United States for an elegant example of the engraver's art, and diligently sought the president, who could not be found for three days, and who had during that period changed his mind as to the wisdom of the purchase. During the same period the health of the sick engineer always improved sufficiently to allow of his departure from his hotel, and he never thought it necessary to leave his address.

Another class of criminals whose gains reach substantial amounts, while their terms of punishment do not, consists of the well-connected embezzlers and men in good position who steal from their employers in various ways. These men are usually first offenders, of good appearance and address. Their guilt is almost always so mathematically demonstrable that they plead guilty, and then the reputable counsel whom they employ-coun

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duty to harass the judge with every form of "influence" in order to procure a suspension of sentence. Upon the day of sentence, their argument for clemency invariably amounts, when boiled down, to the statement that the defendant's position in life was such that he was not impelled by poverty, want, or suffering, to commit this crime, and that by reason of good family influences and associations, he knew better than to commit it, and that therefore he should, on account of that position and those associations, be more leniently dealt with than the common offender. And, as a rule, he is. Crime brings with it other punishments than imprisonment, but as far as the danger of imprisonment in state prison is concerned, the well-connected embezzler's risk, from a business point of view, is not much greater than that incurred by the ordinary business man in embarking on any ordinary commercial venture.

The question is often asked by laymen, how far an attorney may properly go in the defense of one known by him to be guilty. The answer would seem simple enough. In the first place, it is the right of a defendant to have his guilt proved, and fully proved by competent evidence, and nothing else, and it is his counsel's duty to force the prosecution to prove its case, and no less his duty to prevent, if he can, the introduction of any improper proof; and this whether his client has privately admitted his guilt or not. When the prosecution rests, if the defendant has throughout protested his innocence, it is his right to take the stand and tell his story, however little belief in it may be placed by his counsel. But if a defendant has admitted his guilt to his counsel, the latter can no more be defended for allowing him to take the stand and perjure himself than he could be for aiding him in the concoction of a defense, or for calling other perjured testimony to his aid.

The duty of the prosecuting officer is even simpler. It is to present the truth

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