Punishing One in Ten

I

SHERWOOD DAVIS was indicted for assault upon Clio Godfrey. He had his trial and was convicted by a jury. Then he appealed to the supreme court because the evidence at the trial showed the girl’s name really to have been Cleo Godfrey. Eventually that tribunal announced that Davis had not been properly convicted. In its opinion, ‘ Clio is the name well known in history as being that of an ancient goddess, while Cleo is a contraction of Cleopatra. These names are entirely different and have no such similarity, as commonly pronounced in this country, as that they may be said to be idem sonans.’ There was a fatal variance between the indictment and the proof, therefore, and the court reversed the conviction.

This happened in Alabama, in the year nineteen hundred and twenty-six.

Lest a too complacent North be tempted to whittle its finger, note also this case from Nebraska. Formal complaint was made against Edward Wagner, charging that he did ‘unlawfully and feloniously drive and operate a motor vehicle, to wit a Studebaker automobile, at a greater rate of speed than thirty-five (35) miles per hour, to wit fifty (50) miles per hour, within the city of Falls City,’ contrary to statute, because of which excessive speed and negligent driving he severely injured another automobilist. Under this charge, a jury duly convicted Wagner of driving at illegal speed.

The supreme court, however, realized that the crime of exceeding the speed limit must occur on some ‘road, meaning public highway, street, or alley.’ ‘Neither of these words,’ said the supreme court, ‘appears in the information, nor their equivalent. The alleged acts might have occurred on defendant’s own premises, or on premises lawfully possessed by him, or on a private way, so far as reflected by it.’ Therefore the conviction was quashed and the case against Wagner dismissed.

This ruling too occurred in the year nineteen hundred and twenty-six.

In this same year, if one may judge the future by the immediate past, there will be punished less than one out of every ten of those who commit serious crime in the United States. In Alabama’s neighboring state of Georgia, — there are no figures available for Alabama itself, — of those who are actually formally charged with crime only 53 out of 100 will ever be punished at all and 38 out of these 53 will have pleaded guilty. In Missouri, of those persons arrested on warrant and charged with serious crimes only 3½ per cent will be acquitted by juries, yet only 32 per cent will be punished. In Chicago there will be 3019 burglaries reported by the police — with no figures as to how many more unreporled — and there will be just 179 persons punished for burglary. For 270 murders reported, there will be 65 persons penalized, of whom but nine will be sentenced to death. Of these nine, one will have his sentence commuted by the governor, two will be reprieved by him, five will secure from the supreme court a stay of execution until further proceedings can be had, and one will be hanged. Throughout the country there will be the same inefficiency in law enforcement. (These figures are taken from the reports of various crime commissions and surveys. But so lacking is this country in even the pretense of real record keeping that the accuracy of the figures is not vouched for even by the organizations presenting them.)

II

For this state of affairs Henry Flivverman will vigorously condemn ‘the law,’ and so will Mr. Lincoln. No doubt the law is very far from perfect, despite the 1173 statutes enacted last year in North Carolina alone and 812 more in Tennessee, and there is much to be done by the Commissions on Criminal Law springing into existence everywhere. In many places the law is antiquated and anachronistic. In some it is irrational. In a few it is ludicrous.

In California, for example, section 113 of the Vehicle Act makes it a crime for any person to drive an automobile on a public highway faster than 35 miles an hour. The section does not make exceptions or conditions, nor does it say merely that one ought not to exceed that speed. It explicitly declares speeding to be criminal. But section 155 of the same statute prohibits any court, in which a person is on trial for speeding, from considering evidence of the time required for him to traverse a measured stretch of highway, and it precludes judge or jury from hearing the testimony of any policeman unless such officer was ‘at the time of such arrest dressed in a distinctive uniform and patrolling the highway in plain sight of all persons traveling thereon.’ The legislature might have framed its ideas as to speeding with much less complicated expression. It might have used the simple declaration that anyone guilty of speeding while a uniformed policeman is in full view shall be punished. This would have hit the stupid and incautious, the unobservant speeder as effectively as does the more elaborate indirection of the statute. But Flivverman and Lincoln asked for just what they got, in respect to that law, and they are still asking for similar nonsensical legislation in other states.

It is not such peculiarities in the law, however, that account for 270 murders and but one execution, or for five convictions for a hundred burglaries. The scope of the criminal law in general is broad enough. It covers the acts of which we would convict the actors. The figures cited, which are representative of conditions throughout all the United States, show a real escape of offenders from the punishment which the law does provide. The law exists, it is sound, it is wise, it is sufficient. Yet those who violate its prohibitions go unpunished. Murder, rape, excessive speed, are legally punishable, but the murderer, the rapist, and the speeder go unconvicted. The law in effect is a failure.

But, using ‘law’ in the sense of rules of conduct which are obligatory, which must be followed by the judge as well as by the commoner, this failure is not the fault of the law. On the contrary, its failure, its inefficacy, is the fault of the human element through which alone it can operate. Messrs. Flivverman and Lincoln must direct the blast of their condemnation at the policemen, prosecutors, judges, pardoning boards, and governors who, from good motive and bad, constantly misapply or misuse the law and defeat its objective.

Consider, for instance, that reversal of Sherwood Davis’s conviction. There was no ‘law’ which obligated the supreme court to reverse it. True, there is an unhesitatingly accepted and very wise principle of law to the effect that the conviction of one who has not had fair trial must be reversed, even though the judges of the supreme court may personally think him guilty. Our law imperatively requires fair trial and full opportunity for defense before a jury, in an orderly and customary way. Consequent on this is the requirement that every defendant be precisely informed, before the trial, of the specific facts upon which the charge against him is based. He must be informed whom he is alleged to have killed, for instance, in order that he may be prepared to prove, if possible, that the victim is still alive. The time of the killing, too, is important to the defendant, that he may be prepared to prove the fact of his presence elsewhere at the time. The allegation of certain material facts in an indictment and the unexpected proof of quite different ones at the trial might be extremely upsetting to a wholly innocent defendant, might catch him without available disproof, and might even result in a most erroneous conviction. Nor could a court of review, knowing only the evidence adduced and not that which might have been adduced, wisely do otherwise than order a trial de novo.

Based on this sound proposition, there developed during that period of English history when courts were scholastic rather than rational a judicial practice of treating every variance between allegation and proof as ipso facto prejudicial. The absurdities of these decisions would be incredible were they not so manifest. They were unreasonable, nonsensical in the extreme, even when the other conditions of society at the time are considered, but they were in fact the judicial custom.

Among these fungoids of the rational principle was the ruling that any variance in name between allegation and proof was fatal unless the two were idem sonans. (The reason for the exception is immaterial here, although it makes the adoption of the ruling by modern courts peculiarly irrational and ludicrous.) The judges of that period would have rendered the decision in the Davis case as a mere matter of course.

Nor in fact is there lacking a plenitude of decisions by much more modern courts, to which the Alabama court could have pointed by way of precedent. In 1913 the Illinois supreme court reversed a conviction of crime committed against a little girl, saying simply, very simply, ‘The Christian name of the victim of the crime was alleged to be Rosetta. The proof was that her name was Rosalia. The variance is fatal.’ And this despite explicit Illinois law to the effect that writs of error should be granted only when the court is of the opinion ‘that there is serious or prejudicial error in the record,’ and that ‘no writ of error shall be sustained for any matter not affecting the real merits of the offense charged in the indictment’!

But no real principle of law to-day precluded the Alabama judges from disregarding those particular unprincipled and unsuitable old English decisions. No modern philosophy demanded from the court the decision of the Davis case. So far as legal philosophy is concerned, so far as personal liability to some other political authority is concerned, so far as anything save personal inclination and independence of mind is concerned, the Alabama judges might have declared that those precedents were unsuited to modern conditions, were inapplicable to the facts of the Davis case, because the status of a defendant is not what it used to be; that the decisions never were in their inception founded on reason; that no rule of property was involved, making certainty more important than reasonableness; that, in short, the decisions were not ‘law,’ and the court was under no real or theoretical obligation to follow them.

In fact, the Alabama court itself had already denied explicitly that a mere difference of name in allegation and proof was necessarily prejudicial. Only a month before the Davis case, that same court had affirmed the conviction of Ben Dinkins, charged with assault upon Gese Parker, although the proof showed Parker’s name to be Gise. And a year before they had opined that the defendant was not at all prejudiced by the difference in allegation and proof between Burl Odam and Burrell Odom, Booth and Boothe, Burdet and Boudet, Edmundson and Edminson. If the court chose to find cause for reversal because of the difference between Clio and Cleo, it was the court’s own choice and not the compulsion of an absurd law.

If there was no real potential prejudice to Davis in the difference of name, the court delayed and perhaps defeated enforcement of the law because it made an unwise choice and unnecessarily reversed a fair conviction. If the variance was in fact so probably potential as to make reversal necessary, the fault was that of the prosecuting attorney who allowed the prejudice to occur. In either event it was failure of the human element, not a defect in the rules or the philosophy of law.

So too of the Wagner case, did space and interest warrant its discussion, it might be pointed out that while an indictment must state facts which show a crime to have been committed, and while many preceding decisions have required that the showing be made with the utmost explicitness and meticulous exactitude, there is nevertheless no rational principle which compelled the Nebraska court to ignore the statement of fact by reasonable implication which runs with every other course of human communication. Such decisions are matters of predilection and choice, not of legal obligation.

III

In any number of ways it is the humanness of the judges rather than any law which accounts for failures of public justice and inefficacy of the criminal law. This is not said in derogation of the American judiciary. The writer yields to no one in respect for our judges, in appreciation of their character and abilities, and in admiration for what they have accomplished under the circumstances. Inasmuch as the primary requisite of an American judge is political ability, else would he not be a judge, it is matter for congratulation that they have so consistently been endowed also with the honesty and judicial capacities which they have shown in so high degree. Nor are the majority fairly to be painted with the technical peculiarities, or the deficiencies, which some have shown. Cases such as those here cited and those of which the public is most apt to hear are the spectacular ones, the unusual ones. The wise and efficient application and development of law, which are the daily routine, seldom come to the public notice. Nevertheless there are faults in that human element which, developing in the administration of justice, stigmatize the law with a false appearance of asininity and inefficiency.

When Cornelius Shea was tried in Illinois, 9425 persons were summoned to court as potential jurymen. Of these, 4821 were examined and discharged before a sufficiently unintelligent jury of twelve was selected to sit in judgment. In a San Francisco trial, 91 days were occupied in the sole task of selecting a jury, although when the famous, or infamous, Dr. Crippen was tried in England the jury was selected in eight minutes.

But again this extravagant, wasteful travesty upon rational procedure sprang from no defect in the law. The Illinois statutes exclude from jury service certain limited classes of people, such as public servants whose duties to the public are such that their time should not be otherwise required. The law provides further that persons whose natural interest in the success of one party or the other would probably prejudice them shall be excused from sitting in the particular case. But save for such limited exceptions as these, the law merely excuses from the particular case those persons who a preliminary interrogation shows would have a tendency to be biased, who would not probably render an impartial verdict. Beyond a limited number of peremptory challenges, the attorneys have no right to say that any particular man shall or shall not sit. Nothing more could be asked of the law. Impartial jurors are the fundamental requisite of our whole legal system. In permitting the calling and rejection of thousands of veniremen for a single jury, either that judge was confronted by the amazing fact that of nearly 5000 men presumably impartially called only 12 were capable of rendering an impartial verdict, or else he rejected qualified, suitable jurors in disregard of the law. In either event the law was sound, and the human element, veniremen or judge, alone to blame. When one finds unfit juries, incompetent jurors of the lowest intellectual classes, ‘professional’ jurors, this too is frequently the result of some judge’s laxity and indifference, or his political laissez faire. In some states the judge appoints the official whose duty it is to select for jury duty the names of citizens ‘of good character, of approved integrity, of sound judgment, and well informed,’ and he has power to insist on jury service by those who are selected. Whenever the so frequent undesirables, instead of citizens well informed and of good judgment, form the jury panel, it is the defect of those who have failed to follow the clear mandates of a wise law.

So too delay, which is the salvation from retribution sought by many a hard-pressed criminal, delay which cools the ardor of prosecution, blunts the edge of public interest, effaces the memory of witnesses, and — less valuable to the criminal but important to the public safety — weakens the deterrent effect of punishment when it does come, delay is a favor from the judge. Law which forbade any delay, which precluded postponement regardless of illness of attorney or witness, for instance, would be ridiculous. Law which rigidly limited the number of adjournments to one, or to two, would be scarcely less so. The right to adjournment of trial must reasonably and fairly rest within the discretion of the judge. The law which clothes him with that discretion is sound. But what of the judges who exercise that discretion, when a recent report covering the Chicago criminal courts shows a murder committed in 1920, the defendant on bond, 19 continuances granted by six judges; another murder committed in 1921, the defendant at liberty on bond, 34 continuances granted by ten judges; two other murders committed in 1921, the defendants all out on bond, 31 and 30 continuances respectively? In still other murder cases the list of ten or more continuances is lengthy. Over four years gone by to the date of the report in one case, over three years in the other cases, the defendants all at large, enjoying the liberty of any lawabiding and unsuspected citizens, the probability of ultimate conviction at a minimum!

A defect in the law? Not at all, but in elected officials.

IV

Not all inefficacy of the law is the fault of the judges, of course. When Dion O’Bannion was murdered amid his Chicago flowers the press made much of his record of unpunished crime. But it neglected to record that during his life, when the police asserted that they had caught him in the act of robbing a safe and he was duly indicted and tried, it was the twelve good men and true of a Chicago jury who declared him guiltless. To a query of probable bribery, the police answer was, ’Not necessary; the criminal jurymen all knew O’Bannion.'

It was a Chicago jury which found Martin Durkin, bootlegger, automobile thief, seducer, killer, guilty of murder without any extenuating circumstance, and then recommended a term of years in the penitentiary instead of the execution which Illinois law provides. It was a Chicago jury which declared Russell Scott too insane to be hung for the murder of which he had already been convicted. It was a jury which acquitted Harry Thaw, on the ground of insanity. If it be true, as the layman believes, that a pretty woman cannot be convicted, it is necessarily the jury which always acquits her. It was a woman of the jury quoted as saying, when Kid McCoy was acquitted of murder, ‘ Mr. McCoy is not the type of man that hangs.’ In the words of an editorial, ‘that verdict, from any point of view, was ridiculous.’ It was; but it was the verdict of a jury, not a defect in the law.

The failures of the prosecuting attorney likewise account for much inefficacy in law enforcement—not only his failures to secure convictions, but his success in conviction through failure to prosecute the case fairly. Often, of course, he fails for one reason or another to get a conviction which justice demands. Sometimes that is attributable to unwise technicalities in the law, sometimes to his human deficiencies, quite often to force of circumstance, for which he cannot be blamed. But sometimes his energy is unwisely spent in success. Within three months of each other, two important cases from Cook County — one a conviction for homicide, the other for embezzlement— were reversed by the Illinois supreme court for prejudicial conduct of the state’s attorney. In the embezzlement case the court said of the prosecutor and the expert accountant, ‘Neither of them seemed to know what was needed to establish the guilt of the accused, or how to make the proof if they had found out what was necessary to be proven.’ In the other it said, ‘Respect for the law and its proper administration will not be established by the lawless and unprofessional conduct of those charged with the enforcement of the law such as shown by this record.

. . . For the misconduct of the state’s attorney and the errors of the trial court in permitting such misconduct the case must be reversed.’

During the year preceding, out of the 162 criminal cases that were carried to the Illinois supreme court on one ground and another, 13 involved improper conduct of the state’s attorney and eight of the convictions were reversed on that account. Again be it said that this is not meant as a reflection on the character or ability of the thousands of prosecuting attorneys throughout the country who are carrying out honestly and well a particularly difficult obligation. Nevertheless, again the law itself cannot be bettered. It does not say that convictions must be reversed if the prosecutor misbehaves, but only that they must be reversed if such misbehavior casts suspicion upon the fairness and justice of the conviction. The rule could not be otherwise. If reversals occur where convictions are clearly just, only the members of the reversing court can be blamed; if the reversals are proper, the state’s attorneys must bear the censure.

Parole commissioners too are human, though they hold office through the law. ‘Big Jim’ Morton was foisted on society, or nearly so, by the Ohio Board of Clemency. Six times he had been convicted of burglary and sentenced to imprisonment and six times he had been paroled or otherwise released from the penitentiary. Only once was he held for more than three years—in California, where he spent three years and a half in jail. Twice he was paroled and once returned to the penitentiary for violation of parole. Once he escaped prosecution for automobile stealing in Minnesota by jumping his bond. After that he robbed a bank in Cleveland. He was later arrested for a minor offense in Toledo; his connection with the Cleveland robbery was discovered and he was eventually convicted thereof. The Ohio supreme court reversed the conviction because he had not been allowed to take certain depositions. On a new trial he was again convicted and was sentenced to from one to fifteen years in the penitentiary. Then he began to ask for parole, on the strange ground that he would like to go to Minnesota or Michigan to stand trial for crimes which he was alleged to have committed there. Neither Minnesota nor Michigan asked for his release or appears to have desired it. Nevertheless the Board of Clemency held a special meeting and granted a ‘conditional release to Michigan authorities, effective if and when called for, out of Ohio forever with no final release.’ No official explanation for this was given, though those assigned in the press included the fact that it was too hot in the Ohio penitentiary, that Morton would probably be convicted of robbery in Michigan, and that he had promised to stay out of Ohio.

In due course Morton was delivered to the Detroit authorities. After many continuances it developed that, owing to lapse of time since the commission of the crime, he could not be convicted in Michigan. He refused to plead guilty. (He had promised to plead guilty to the Minnesota charge, but for reasons unknown had not been sent there.) The question became how to hold him longer. He had been ‘conditionally released,’ to be sure, but what were the conditions? The order of release did not state. He had been released presumably to stand trial in Michigan, and he was ready to stand trial. There seemed to be no strings sufficient to haul him back to Ohio. He was not a fugitive from justice for whom extradition could be asked; he had been voluntarily released ‘out of Ohio forever.’ A writ of habeas corpus was about to be asked by his attorney and might probably be granted, freeing Morton from any custody. Fortunately for society, the authorities themselves undertook to violate the law, for which they were afterward vigorously criticized in some quarters and by some judges. Three state troopers unexpectedly spirited Morton across the state line, and Ohio authorities locked him up again for a while.

Such a situation could hardly be foreseen or forestalled by the law. We cannot so far step backward as to abolish entirely the parole law. It is therefore to its very human administrators that we must look for avoidance of its abuse.

V

So the tale might run unendingly. Quite recently the writer sat in one of the criminal court rooms of a city sometimes noted for its prompt administration of criminal justice, listening to the arraignment of prisoners. The judge, for a laudable purpose of his own, asked each defendant when he had been arrested. Many had already been in jail fora fortnight, some for a month, awaiting trial. One man had been in jail for six weeks waiting for a chance to plead guilty. As it later developed, he had been given a preliminary hearing as soon as arrested and admitted his guilt. But judgment could not be rendered against him until a formal accusation was made — an indispensable of orderly, recorded procedure. Two weeks went by, however, while he lay in jail, before the facts of his case were sent to the prosecuting attorney. For two weeks more he waited in jail before that busy office could draw up an information and return it to the courts. Still another two weeks he waited before the assignment clerk brought the case up for hearing. At the hearing the defendant promptly pleaded guilty. And then the judge was compelled to remand him to jail for sentence at a later date, because no one had been notified to look up his history and previous criminal record.

Thus, from the failure of the police to arrest for crime, the failure to prepare the evidence, the failure of the state’s attorney to prosecute the case, the failure of the jury to convict, the failure of the courts to sustain a fair conviction, the failure of the parole board to function wisely, to the failure of the governor to withhold his pardon, the inefficiency of the criminal law is a matter of the weakness of the human element through which it must function.

Crime commissions of one sort or another in half the states of the Union are busily gathering data and preparing proposals for revamping the criminal law. May their work prosper! There is everything in the way of fact yet to be learned, and the law needs revision. The danger is in resting content therewith. The situation is unfortunately not one to be cured by the comparatively easy method of a fit of enthusiasm and a bit of legislation at the capitol. It can be really alleviated only when Messrs. Flivverman and Lincoln correct their own failure to show a continuing and helpful interest in the conduct of the officials on whose service they rely.