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THE PRISONER AT THE BAR


BOOKS BY ARTHUR TRAIN




 THE PRISONER AT
 THE BAR

 SIDELIGHTS ON THE ADMINISTRATION
 OF CRIMINAL JUSTICE

 BY
 ARTHUR TRAIN
 Assistant District Attorney, New York County

 SECOND EDITION
 REVISED AND ENLARGED

 NEW YORK
 CHARLES SCRIBNER'S SONS
 1915




 Copyright, 1906, 1908, by
 CHARLES SCRIBNER'S SONS

[Illustration]




 To
 ETHEL KISSAM TRAIN




PREFACE TO THE SECOND EDITION


The favorable reception accorded to the "Prisoner at the Bar," not
only in the United States but in England, and the fact that it has
won a place in several colleges and law schools as a reference book,
and in some instances as a sort of elementary text-book upon criminal
procedure, have resulted in a demand for a new edition. When the book
was written the author's sole intention was to present in readable form
a popular account of the administration of criminal justice. Upon its
publication he discovered to his surprise that it was the only book of
its exact character in the English language or perhaps in any other.
Reviewers pointed out that whereas there were annotated text-books
of criminal procedure and isolated articles on special topics, most
of them relating to the jury system, there was in existence no other
sketch of criminal justice as a whole, from arrest to conviction, based
upon either actual experience or hearsay.

This new edition has been indexed and is supplied with cross-references
to other works on allied subjects. A chapter has been added upon
"Insanity and the Law," and such statistics as the book contains have
been brought down to date. It is satisfactory to add that these show a
greatly increased efficiency in the jury system in criminal cases in
New York County, and that the tabulations of an eight years' experience
as a prosecutor only serve to confirm the conclusions set forth in the
first edition.

The author desires to express his thanks to Prof. John H. Wigmore, of
the Northwestern University Law School, for his many kind suggestions
and flattering references to this book in his masterly work upon the
law of evidence; to Augustin Derby, Esq., of the New York bar, who
most unselfishly gave much time to the examination of references, and
voluntarily undertook the ungrateful task of compiling the index; and
to those many others who, by comment or appreciation, have made a
second edition necessary.

 _Bar Harbor, Me._,
 Sept. 1, 1908.




PREFACE TO THE FIRST EDITION


The prisoner at the bar is a figure little known to most of us. The
newspapers keep us steadily informed as to the doings of all sorts of
criminals up to the time of their capture, and prison literature is
abundant, but just how the criminal becomes a convict is not a matter
of common knowledge. This, however, does not prevent the ordinary
citizen from expressing pronounced and, frequently, vociferous opinions
upon our methods of administering criminal justice, in the same way
that he stands ready at any time to criticise the Darwinian theory,
free trade or foreign missions. Full knowledge of any subject is
inevitably an impediment to forcible asseveration. Generalities are
easy to formulate and difficult to disprove. The man who sits with his
feet up and his chair tilted back in the "drummer's" hotel will inform
you that there is no such thing as criminal justice and that the whole
judiciary, state and federal, is "owned" or can be bought; you yourself
doubtless believe that the jury system is a failure and successfully
evade service upon it; while your neighbor is firmly convinced that
prosecutors secure their positions by reason of their similarity to
bloodhounds and retain them by virtue of the same token.

The only information available to most people on this exceedingly
important subject is that offered by the press, and the press (save
in the case of sensational murder trials) usually confines itself
to dramatic accounts of the arrest of the more picturesque sort of
criminals, with lurid descriptions of their offences. The report or
"story" concludes with the statement that "Detective-Sergeant Smith
immediately arraigned his prisoner (Robinson) before Magistrate Jones,
who committed the latter to jail and adjourned the hearing until the
following Tuesday." This ends the matter, and the grewsome or ingenious
details of the crime having been served up to satisfy the public
appetite, and the offender having been locked up, there is nothing,
from the reporters' point of view, any longer in the story. We never
hear of Robinson again unless he happens to be the president of a
bank or a degenerate millionaire. He is "disposed of," as they say in
the criminal reports, without exciting anybody's interest, and his
conviction or acquittal is not attended by newspaper comment.

If on the other hand the case be one of sensational interest we are
treated daily to long histories of the defendant and his family,
illustrated by grotesque reproductions from the ancestral photograph
album. We become familiar with what he eats and drinks, the number of
cigars he smokes and his favorite actor and author. The case consumes
months in preparation and its trial occupies weeks. A battalion of
"special" talesmen marches to the court house,--"the standing army of
the gibbet," as one of my professional brethren (on the other side of
the bar) calls them. As each of the twelve is chosen his physiognomy
appears on the front page of an evening edition, a tear dropping from
his eye or his jaws locked in grim determination, in accordance with
the sentiments of the editor or the policy of the owner. Then follows
a pictorial procession of witnesses. The prosecutor makes a full-page
address to the public in the centre of which appears his portrait,
heroic size, arm sawing the air.

"I am innocent!" cries a purple defendant, in green letters.

"Murderer!" hisses a magenta prosecutor, in characters of vermilion.

Finally the whole performance comes to an end without anybody having
much of an idea of what has actually taken place, and leaving on the
public mind an entirely false and distorted conception of what a
criminal trial is like.

The object of this book is to correct the very general erroneous
impression as to certain phases of criminal justice, and to give a
concrete idea of its actual administration in large cities in ordinary
cases,--cases quite as important to the defendants and to the public as
those which attract widespread attention.

The millionaire embezzler and the pickpocket are tried before the same
judge and the same jury, and the same system suffices to determine the
guilt or innocence of the boy who has broken into a cigar store and
the actress who has murdered her lover. It is in crowded cities, like
New York, containing an excessive foreign-born population, that the
system meets with its severest test, and if tried and not found wanting
under these conditions it can fairly be said to have demonstrated its
practical efficiency and stability. Has the jury system broken down?
Are prosecutors habitually vindictive and over-zealous? It is the hope
of the writer that the chapters which follow may afford some data to
assist the reader in formulating an intelligent opinion upon these
and kindred subjects. It is needless to say that no attempt is made
to discuss police corruption, the increase or decrease of crime, or
penology in general, and the writer has confined himself strictly to
that period of the criminals' history described in the title as "AT THE
BAR."

To my official chief, William Travers Jerome, and to my associates,
Charles Cooper Nott, Charles Albert Perkins, and Nathan A. Smyth, I
desire to acknowledge my gratitude for their advice and assistance;
to my friend, Leonard E. Opdycke, who suggested the collection and
correlating of these chapters, I wish to express my thanks for his
constant interest and encouragement; but my debt to these is naught
compared to that which I owe to her to whom this book is dedicated,
who, with unsparing pains, has read, re-read and revised these chapters
in manuscript, galley and page and who has united the functions of
critic, censor and collaborator with a patience, good humor, and
discretion which make writing a joy and proof-reading a vacation.

 Arthur Train.

 _Bar Harbor, Me._,
 Sept. 1, 1906.




CONTENTS


                                                       PAGE

  Introduction. By Prof. John H. Wigmore              xvii

  CHAPTER I

  What Is Crime?                                        1

  CHAPTER II

  Who Are the Real Criminals                           19

  CHAPTER III

  The Arrest                                           31

  CHAPTER IV

  The Police Court                                     42

  CHAPTER V

  The Trial of Misdemeanors                            62

  CHAPTER VI

  The Grand Jury                                       81

  CHAPTER VII

  The Law's Delays                                    102

  CHAPTER VIII

  Red Tape                                            129

  CHAPTER IX

  The Trial of Felonies                               148

  CHAPTER X

  The Judge                                           178

  CHAPTER XI

  The Jury                                            205

  CHAPTER XII

  The Witness                                         224

  CHAPTER XIII

  The Verdict                                         241

  CHAPTER XIV

  The Sentence                                        261

  CHAPTER XV

  Women in the Courts                                 279

  CHAPTER XVI

  Tricks of the Trade                                 303

  CHAPTER XVII

  What Fosters Crime                                  334

  CHAPTER XVIII

  Insanity and the Law                                350

  Index                                               377




INTRODUCTION

By Prof. John H. Wigmore, Dean of the Law School of Northwestern
University.


Mr. Train's book, "The Prisoner at the Bar," as an entertaining and
vivid picture of the criminal procedure of to-day, and a repertory of
practical experience and serious discussion of present-day problems
in the administration of justice, is, in my opinion, both unique and
invaluable. I know of no other book which so satisfyingly fills an
important but empty place in a modern field. At one extreme stand
the scientific <DW43>-criminologists, usefully investigating and
reflecting, but commonly severed from the practical treatment of any
branch of the subject until the prison doors are reached. At another
extreme are the professional lawyers, skilled in the technique of
present procedure, but too much tied by precedent to take anything
but a narrow, backward-looking view. Off in a third corner are the
economists, sociologists, physicians, and serious citizens in general,
who notice that some things are going wrong, but have no accurate
conception of what is actually seen and done every day in courts of
justice; these good people run the risk of favoring impracticable fads
or impossible theories.

Now comes Mr. Train's book, casting in the centre of the field an
illumination useful to all parties. It enlightens the serious citizen
as to the actual experiences of our criminal justice, and shows him the
inexorable facts that must be reckoned with in any new proposals. The
professional lawyer is stimulated to think over the large tendencies
involved in his daily work, to realize that all is _not_ necessarily
for the best, and to join and help with his skill. The scientific
criminologist is warned against trusting too much to the cobwebs of
his ideal theories, or adhering too implicitly to the Lombrosan school
or other foreign propaganda, and