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The Prisoner at the Bar Sidelights on the Administration of Criminal Justice

The Prisoner at the Bar
Sidelights on the Administration of Criminal Justice
Title: The Prisoner at the Bar Sidelights on the Administration of Criminal Justice
Release Date: 2018-12-26
Type book: Text
Copyright Status: Public domain in the USA.
Date added: 27 March 2019
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Assistant District Attorney, New York County




Copyright, 1906, 1908, by






The favorable reception accorded to the "Prisoner at the Bar," notonly in the United States but in England, and the fact that it haswon a place in several colleges and law schools as a reference book,and in some instances as a sort of elementary text-book upon criminalprocedure, have resulted in a demand for a new edition. When the bookwas written the author's sole intention was to present in readable forma popular account of the administration of criminal justice. Upon itspublication he discovered to his surprise that it was the only book ofits exact character in the English language or perhaps in any other.Reviewers pointed out that whereas there were annotated text-booksof criminal procedure and isolated articles on special topics, mostof them relating to the jury system, there was in existence no othersketch of criminal justice as a whole, from arrest to conviction, basedupon either actual experience or hearsay.

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

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

Bar Harbor, Me.,
Sept. 1, 1908.


The prisoner at the bar is a figure little known to most of us. Thenewspapers keep us steadily informed as to the doings of all sorts ofcriminals up to the time of their capture, and prison literature isabundant, but just how the criminal becomes a convict is not a matterof common knowledge. This, however, does not prevent the ordinarycitizen from expressing pronounced and, frequently, vociferous opinionsupon our methods of administering criminal justice, in the same waythat he stands ready at any time to criticise the Darwinian theory,free trade or foreign missions. Full knowledge of any subject isinevitably an impediment to forcible asseveration. Generalities areeasy to formulate and difficult to disprove. The man who sits with hisfeet up and his chair tilted back in the "drummer's" hotel will informyou that there is no such thing as criminal justice and that the wholejudiciary, state and federal, is "owned" or can be bought; you yourselfdoubtless believe that the jury system is a failure and successfullyevade service upon it; while your neighbor is firmly convinced thatprosecutors secure their positions by reason of their similarity tobloodhounds and retain them by virtue of the same token.

The only information available to most people on this exceedinglyimportant subject is that offered by the press, and the press (savein the case of sensational murder trials) usually confines itselfto dramatic accounts of the arrest of the more picturesque sort ofcriminals, with lurid descriptions of their offences. The report or"story" concludes with the statement that "Detective-Sergeant Smithimmediately arraigned his prisoner (Robinson) before Magistrate Jones,who committed the latter to jail and adjourned the hearing until thefollowing Tuesday." This ends the matter, and the grewsome or ingeniousdetails of the crime having been served up to satisfy the publicappetite, and the offender having been locked up, there is nothing,from the reporters' point of view, any longer in the story. We neverhear of Robinson again unless he happens to be the president of abank or a degenerate millionaire. He is "disposed of," as they say inthe criminal reports, without exciting anybody's interest, and hisconviction or acquittal is not attended by newspaper comment.

If on the other hand the case be one of sensational interest we aretreated daily to long histories of the defendant and his family,illustrated by grotesque reproductions from the ancestral photographalbum. We become familiar with what he eats and drinks, the number ofcigars he smokes and his favorite actor and author. The case consumesmonths in preparation and its trial occupies weeks. A battalion of"special" talesmen marches to the court house,—"the standing army ofthe gibbet," as one of my professional brethren (on the other side ofthe bar) calls them. As each of the twelve is chosen his physiognomyappears on the front page of an evening edition, a tear dropping fromhis eye or his jaws locked in grim determination, in accordance withthe sentiments of the editor or the policy of the owner. Then followsa pictorial procession of witnesses. The prosecutor makes a full-pageaddress 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 havingmuch of an idea of what has actually taken place, and leaving on thepublic mind an entirely false and distorted conception of what acriminal trial is like.

The object of this book is to correct the very general erroneousimpression as to certain phases of criminal justice, and to give aconcrete idea of its actual administration in large cities in ordinarycases,—cases quite as important to the defendants and to the public asthose which attract widespread attention.

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

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

Arthur Train.
Bar Harbor, Me.,
Sept. 1, 1906.


Introduction. By Prof. John H. Wigmorexvii
What Is Crime? 1
Who Are the Real Criminals19
The Arrest31
The Police Court42
The Trial of Misdemeanors 62
The Grand Jury 81
The Law's Delays 102
Red Tape129
The Trial of Felonies148
The Judge 178
The Jury 205
The Witness224
The Verdict241
The Sentence261
Women in the Courts279
Tricks of the Trade303
What Fosters Crime334
Insanity and the Law350

[Pg xvii]


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

Mr. Train's book, "The Prisoner at the Bar," as an entertaining andvivid picture of the criminal procedure of to-day, and a repertory ofpractical experience and serious discussion of present-day problemsin the administration of justice, is, in my opinion, both unique andinvaluable. I know of no other book which so satisfyingly fills animportant but empty place in a modern field. At one extreme standthe scientific psycho-criminologists, usefully investigating andreflecting, but commonly severed from the practical treatment of anybranch of the subject until the prison doors are reached. At anotherextreme are the professional lawyers, skilled in the technique ofpresent procedure, but too much tied by precedent to take anythingbut a narrow, backward-looking view. Off in a third corner are theeconomists, sociologists, physicians, and serious citizens in general,who notice that some things are going wrong, but have no accurateconception of what is actually seen and done every day in courts ofjustice; these good people run the risk of favoring impracticable fadsor impossible theories.

[Pg xviii]

Now comes Mr. Train's book, casting in the centre of the field anillumination useful to all parties. It enlightens the serious citizenas to the actual experiences of our criminal justice, and shows him theinexorable facts that must be reckoned with in any new proposals. Theprofessional lawyer is stimulated to think over the large tendenciesinvolved in his daily work, to realize that all is not necessarilyfor the best, and to join and help with his skill. The scientificcriminologist is warned against trusting too much to the cobwebs ofhis ideal theories, or adhering too implicitly to the Lombrosan schoolor other foreign propaganda, and is forced to keep in mind a livingpicture of the practical needs of American justice.

I do not hesitate to say that every thoughtful American citizen oughtto know all the things that are told in this book; and if he did, andas soon as he did, we might then begin to work with encouragement toaccomplish in a fashion truly practical as well as scientific theneeded improvements in our criminal justice. Such effort is likely tobe hopeless until people come to realize what the facts are. Judgingby my own case, I feel that most people will never really know andappreciate the facts unless they read Mr. Train's book.

[Pg 1]




A crime is any act or omission to act punishable as such by law. It isdifficult, if not impossible, to devise any closer definition. Speakingbroadly, crimes are certain acts, usually wrongful, which are regardedas sufficiently dangerous or harmful to society to be forbidden underpain of punishment. The general relation of crimes to wrongs as a wholeis sometimes illustrated by a circle having two much smaller circleswithin it. The outer circle represents wrongful acts in the aggregate;the second, wrongful acts held by law to be torts, that is to say,infractions of private rights for which redress may be sought in thecivil courts, and the smallest or inner circle, acts held to be soinjurious to the public as to be punishable as crimes.

This does well enough for

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