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- Courts and Criminals - 30/40 -

same crime. The other is still pending and the defendant awaiting his trial. Certainly there is little in the actual figures to give color to the impression that the criminal profits by mere technicalities on appeal,--at least in New York State.

In nine cases out of ten the reversal of a conviction in a criminal case is due to the carelessness or inefficiency of the prosecuting officer or trial judge and not to any inadequacy in our methods of procedure. Yet the tenth case, the case where the criminal does beat the law by a technicality, does more harm than can easily be estimated. That is the one case everybody knows about, the one the papers descant upon, the one that cheers the heart of the grafter and every criminal who can afford to pay a lawyer.

Yet the evil influence of the reversal of a conviction on appeal, however much it is to be deprecated, is as nothing compared with a deliberate acquittal of a guilty defendant by a reckless, sentimental, or lawless jury. Few can appreciate as does a prosecutor the actual, practical and immediate effect of such a spectacle upon those who witness it.

Two men were seen to enter an empty dwelling-house in the dead of night. The alarm was given by a watchman near by, and a young police officer, who had been but seven months on the force, bravely entered the black and deserted building, searched it from roof to cellar, and found the marauders locked in one of the rooms. He called upon them to open, received no reply, yet without hesitation and without knowing what the consequences to himself might be, smashed in the door and apprehended the two men. One was found with a large bundle of skeleton keys in his pocket and several candles, while a partially consumed candle lay upon the floor. In the police court they pleaded guilty to a charge of burglary, and were promptly indicted by the grand jury.

At the trial they claimed to have gone into the house to sleep, said they had found the bunch of keys on the stairs, denied having the candles at all or that they were in a room on the top story, and asserted that they were in the entrance hall when arrested.

The story told by the defendants was so utterly ridiculous that one of the two could not control a grin while giving his version of it on the witness stand. The writer, who prosecuted the case, regarded the trial as a mere formality and hardly felt that it was necessary to sum up the evidence at all.

Imagine his surprise when an intelligent-looking jury acquitted both the defendants after practically no deliberation. Both had offered to plead guilty to a slightly lower degree of crime before the case was moved for trial.

These two defendants, who were neither insane nor degenerates. consorted with others in Bowery hotels and saloons,--incubators of crime. What effect could such a performance have upon them and their friends save to inculcate a belief that they were licensed to commit as many burglaries as they chose? They had a practical demonstration that the law was "no good" and the system a failure. If they could beat a case in which they had already pleaded guilty, what could they not do where the evidence was less obvious? They were henceforth immune. Who shall say how many embryonic law-breakers took courage at the story and started upon an experimental attempt at crime?

The news of such an acquittal must instantly have been carried to the Tombs, where every other guilty prisoner took heart and prepared anew his defence. Those about to plead guilty and throw themselves upon the mercy of the court abandoned their honest purpose and devised some perjury instead. Criminals almost persuaded that honesty was the best policy changed their minds. The barometer of crime swung its needle from "stormy" to "fair."

But apart from the law-breakers consider the effect of such a miscarriage of justice upon a young, honest and zealous officer. First, all his good work, his bravery, his conscientious effort at safeguarding the sleeping public had been disregarded, tossed aside with a sneer, and had gone for naught. The jury had stamped his story as a lie and stigmatized him, by their action, as a perjurer. They had chosen two professional criminals as better men. His whole conduct of the case instead of being commended as meritorious had resulted in a solemn public declaration that he was not worthy of credence and that he had attempted wilfully to railroad to State's prison two innocent men. In other words. that he ought to be there himself. What was the use of trying to do good work any longer? He might just as well loiter in an area on a barrel and smoke a furtive cigar when he ought to be "on post." Perhaps he might better "stand in" with those who would inevitably be preferred to him by a jury of their peers.

What must have been the effect on the court officers, the witnesses, the defendants out on bail, the complainants, the spectators? That the whole business was nonsense and rot! That the jury system was ridiculous. That the jurymen were either crooks or fools. That the only people who were not insulted and sneered at were the lawbreakers themselves. That if two such rogues were to be set free all the other jailbirds might as well be let go. That an honest man could whistle for his justice and might better straightway put on his hat and go home. That the only way to punish a criminal was to punish him yourself--kill him if you got the chance or get the crowd to lynch him. That if a thief stole from you the shrewdest thing to do was to induce him as a set-off to give you the proceeds of his next thieving. That it was humiliating to live in a town where a self-confessed rascal could snap his fingers at the law and go unwhipped of justice.

The jury's action must have been due either to a wilful disregard of their oath or an entire misconception of it. Assuming that the jury deliberately declined to obey the law, the whole twelve elected to become, and thereby did become, lawbreakers. They disqualified themselves forever as talesmen. No prosecutor in his senses would move a case before a jury which numbered any one of them. They had arraigned themselves upon the side, and under the standard, of crime. They became accessories after the fact. If on the other hand they misconceived the purpose for which they were there the performance was a shocking example of what is possible under present conditions.

Just as there are three general classes of wrongs, so there are three general and varyingly effective forms of restraint against their perpetration. First there is the moral control exerted by what is ordinarily called conscience, secondly there is the restraint which arises out of the apprehension that the commission of a tort will be followed by a judgment for damages in a civil court, and lastly there is the restraint imposed by the criminal law. All these play their part, separately or in conjunction. For some men conscience is a sufficient barrier to crime or to those acts which, while equally reprehensible, are not technically criminal; for others the possibility of pecuniary loss is enough to keep them in the straight and narrow way; but for a large proportion of the community the fear of criminal prosecution, with implied disgrace and ignominy, forfeiture of citizenship, and confinement in a common jail is about the only conclusive reason for doing unto others as they would the others should do unto them. Were the criminal law done away with in our present state of civilization, religion, ethics and civil procedure would be absolutely inefficacious to prevent anarchy. It is as imperative to the ordinary citizen to know that if he steals he will be locked up as it is for the child to know that if he puts his hand into the fire it will be burned. The acquittal of every thief breeds another, and the unpunished murder is an incentive for a dozen similar homicides.

Crimes are either deliberate or the result of accident or impulse. The last class may rise to a high degree of enormity, such as manslaughter, but these crimes are rarely possible of restraint. The perpetrator does not stop to consider, even if he be sober enough to think at all, whether his act be moral, whether it will entail any civil liability, or what will be its consequences, if it be a crime. So far as such acts are concerned those who commit them are hardly criminals in the ordinary sense, and no influence in the world is able to prevent them.

The question is how far these different kinds of restraint operate upon the community as a whole in the prevention of deliberate crime. Clearly the fear of pecuniary loss through actions brought to judgment in the civil courts is practically nil. Most persons who set out to commit crime have no bank account, the absence of one being generally what leads them into a criminal career.

The writer has no intention of attempting to discuss or estimate the efficacy of religion or ethics as restraining influences. A certain limited proportion of the community would not commit crime under any circumstances. It is enough for them that the act is forbidden by the State even if it be not really wrong from their own personal point of view. Side by side with these very good people are a very large number who wear just as fashionable clothing, have the same friends, attend the same churches, but who would commit almost any crime so long as they were sure of not being caught. If we had no criminal law we should soon discover who were the hypocrites.

But for an overwhelming majority of the community something more practical than either religion, ethics, or philosophy is necessary to keep them in order. They must be convinced that the transgressor will surely be punished,--not some time, not next year or the year after, but now. Not, moreover, that his way will be merely hard; but that he will be put in stripes and made to break stones.

Hence the necessity for a vigorous and adequate criminal law and procedure which shall command the respect and loyalty of the community, administered by a fearless judiciary who will hold jurors to a rigid and conscientious obedience to their oath.

There is nothing sacred about an archaic criminal procedure

Courts and Criminals - 30/40

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