Abatement, plea in, 96

Acquittals, table of percentages of, 175, 176, 177
of women, 299, 300
danger of, by lawless jury, 340-344
"on ground of insanity," meaning of, 352

Adams, "Al," 319

Alabama, test of criminal responsibility in, 368

Alibi, use of perjured evidence to prove, 224, 225

Ammon, Robert A., and "The Franklin Syndicate," 25, 26

Appeal, from magistrate's decision, 47
number of appeals so taken, 47
no appeal by aggrieved person if magistrate discharges, 47
few appeals from Special Sessions, 62
unfortunate that prosecution cannot appeal on verdict of acquittal, 186, 337
defendant has right of, 337
reversals on, 339, 340

Archer, Agnes, case of, 301

Arrest (see Chapter III), right of citizen to arrest, despite common belief, 33
right to, ordinarily left to police, 33
anyone may arrest for crime committed in his presence, 35
no one may arrest for felony without his view, unless felony committed, 35
difference in citizen's and officer's right to arrest, 35, 37
police construe their right to arrest more broadly than law permits, 35
example of above, 36
right of police to arrest at night under New York Criminal Code, 36
force permissible in making arrest, 38
cases in which the power may be abused, 38

Arrest, power to arrest to be exercised with discrimination, 40, 41
the first step in procedure toward conviction, 42
after arrest prisoner taken before magistrate, 42
on bench warrant if indicted by Grand Jury, 42
on suspicion illegal but necessary, 43
number of arrests in New York County in 1907, 46
table showing nativity of those arrested, 46

Arrest of judgment, motion for, 269

Assault, power of magistrate should be extended to punish simple assault, 49

Autrefois Acquit. See Pleas.


Bail, in case of misdemeanor may be assessed by sergeant on duty, 42
right of accused to, except in case of murder, 85
bail cases not tried in summer, 126
forfeiture of, 127, 128
recommendation for discharge of, 170
"skipping" bail, 317

Bauman, case of, 323

Bench warrant, indicted and arrested under, 42

Blindness, "An Act for the Prevention of," 15

Branding, 266-268, 278

Breach of peace, 49

"Bridge of Sighs," 115


Capital punishment, no woman has suffered here in two decades, 299
cases of, comparatively rare, 246

Challenges, number of peremptory in homicide cases, 215
reduction to reasonable number desirable, 325, 346
in larceny cases, 346

Cherry, "Tom," 73, 74

Cignarale Chiara, case of, 299

Clancy murder case, 325

Code. See Statutes and Criminal Law

Cohalan, Daniel F., 216

Commercial Crime. See Crime

Commission, to take testimony without state, 123
application for, to take testimony for purpose of delay, 315
right to take such testimony confined to defendant, 315
motion for, 317
to determine present mental condition of an accused, 369-72
to determine mental condition at time of offense, 369-76
desirability of such being permanent and salaried, 373, 374

Commutation, of sentence for good behavior, 273
how determined, 273
periods of, (note) 273
distinguished from indeterminate sentence, 274

Complaints, in Court of Special Sessions, 63
or informations, ancient form of, 89

Confession, not sufficient to convict without corroboration, 330

Contempt of court, practical inability of New York courts to punish editorial contempts, 347
defined in Penal Code, 348

Convictions, proof of prior, admitted for what purpose, 148, 166
table showing percentages of, 175, 176
too few, 177
of innocent men almost unknown, 247, 336
of women indicted, in same proportion as men, 299, 300

County clerk, grand jurors drawn by, 358

"County Detectives," 87

Court officers as plea getters, 173

Cowing, Rufus B., Judge, 255

Crime, What is Crime? Chapter I, definition of, 1
relation of, to wrongs, 1, 2, 3
artificial character of laws defining, 4
mala prohibita and mala in se, 6
little significance in mere name of crimes, 6
arbitrary nature of acts made crimes, 7
relation of, to insanity, 22
theory that crime is a disease overworked, 23
criminal instinct in all, 23
commercial crime favored by law, 24, 30, 223

Crimes, definition of, limiting it to those who "make a living" thereby is inadequate, 28
fundamental cause of, disrespect for law, 30, 334
attitude of jury toward commercial crime, 210, 211
What Fosters Crime? Chapter XVII
not on increase in proportion to growth of population, 334
fostered by idea that criminal justice is slow and uncertain, 335, 336
by constitutional safeguards, 335, 336
by defects in our criminal law and procedure, 338
by attitude of "yellow" press, 338
by belief that higher courts reverse on technical grounds, 339
by acquittal of guilty by sentimental juries, 340-342
restraints on, 344-346
fear of present criminal prosecution and punishment greatest restraint on, 344-346
may be deliberate or the result of accident or impulse, 345

Criminal Courts Building, description of, 115

Criminal law, adapted especially to punishment of crimes of violence, 16
impression of ordinary citizen concerning, 149, 335
at present tends to retard and defeat justice, 336
present state of, result of exaggerated regard for personal liberty, 336
English system of, better than ours, 336
leaves many technical avenues of escape, 338

Criminal responsibility (see Insanity and the Law, Chapter XVIII), 350
test of, 353
unchanged since case of McNaughten, 353
questions propounded by House of Lords to the judges, with their answers, 354
delusions in the law of insanity, significance of, 355, 356
doubtful interpretation to be given to words "wrong" and "know," 357
Hadfield's case, 358

Criminal responsibility, present New York test does not recognize any lack of inhibitory capacity, 359
test is imperfect, inadequate, and vague, 357, 359
difficult of application, 357
juries disregard it except in extreme cases, 360-366
expert testimony in insanity cases discounted by jury, 360, 361
requirements of proposed new tests, 366-368
Alabama test, 368
the "defense" of insanity often confused with claim of present insanity, 369
present insanity determined by commission, 369-376
mental condition at time of crime should be likewise determined, 369-376
defendant may refuse to permit examination, 370
present ineffectuality of law in New York, 370-376
could be easily remedied, 372-374
plea of insanity should be made compulsory, 373
defendants so pleading should be remanded for observation by permanent, salaried, expert commission, as in Germany and elsewhere, 373, 374
probable unconstitutionality of other suggested remedies, 374

Criminals, not necessarily worse than other people, 5, 9
not usually criminal in all directions, 5
generally specialists, 5
intentional, as distinguished from accidental or occasional, 9
as distinguished from sinners, 17
Who are the Real Criminals? Chapter II
Charles D. Warner's definition of, 19
traditional criminals few, 19
the modern criminal, 20
degenerate class of, exaggerated by continental writers, 21
sentimentality concerning, over-done, 21, 23, 196
majority of, not mentally defective, 22
close relation between all, 22, 29
why men are criminals, 24
dishonest business men real criminals, 24, 25
law at present favors business criminal, 25
Criminals, professional criminals and degenerates form small proportion of law breakers, 29
distinction between criminals and convicts, 42
begin with petty infractions of law, 72
professional criminals generally plead guilty, 148
receive consideration for saving expense of trial, 148
may obtain speedy trial if desired, 152
weight given to prior conviction, 148

Criminology, modern tendencies in, 17
penological movements, first in direction of prison reform, 21
and second in study of degeneracy, 22

Cross-examination, use of, 231, 240
impossible to cross-examine through interpreter, 239
of women difficult, 291, 292


Defendants, hostile attitude of courts to, in ancient times, 16
present rights of, 16, 17
presumed to be innocent, 44
have right to counsel, 43
sensations of, 45
cannot be compelled to testify, 91, 326
may move to dismiss indictment and thus retard trial, 91
may easily obtain speedy trial, 152
their own testimony generally convicts, 154
rapid trial redounds to their benefit, 156
if innocent need not fear to testify, 162
majority of those failing to testify convicted, 163
may defend themselves, 164
often wise to rest on People's case, 164
danger to, by perjury of one of their own witnesses, 164
influenced to plead by result of prior cases, 174
benefit by prosecutor's desire to dispose of case, 220
favored by jury, 222
description of, while waiting verdict, 241
right to poll jury, 247
when convicted rarely show emotion, 247, 248
may present plea for clemency before sentence, 271
latitude allowed, 337, 338
(See Criminals.)

Degrees of crime, arbitrary character of, 8

Delays, The Law's, Chapter VII
secured by motions based on irregularities before Grand Jury, 93
delay the first, in the police court, 108
delay the second, before the Grand Jury, 114
delay the third, pleading, 119
delay the fourth, in preparation of case for trial, 121
delay the fifth, after case on calendar, before trial, 122
delay the sixth, dilatory tactics of counsel for defense, 123
delay the seventh, bail cases not tried in summer, 126
delay the eighth, forfeiting recognizance, 126
alienates support of citizens, 129
defendant has everything to gain by delay, 314
method of securing, 315, 316
motions to secure, 316
many penal statutes and procedure tend to retard and defeat justice, 336
(See Red Tape, Chapter VIII, 129.)

Delusions, significance of, in law of insanity, 355, 356

Dementia præcox, 351

Demurrer, 316

Dinser, Gustav, case of, 289

Disagreements, two equivalent to acquittal, 220
large number of trials resulting in, 244

Disorderly conduct, jurisdiction over, by magistrate, 49

Dodge-Morse divorce case, 321, 322

Donohue v. N.Y., N.H. & H.R.R., case of, 259

Dummies, 318-322
attempt to induce witness to identify, 321, 322
most famous case of, 321

District Attorney (see Prosecutor), power to act when magistrate discharges, 47, 48
copies papers forwarded from magistrate and subpœnas witnesses for Grand Jury, 87
prepares calendar for Grand Jury, 87
draws indictments, 87
preliminary examination of witnesses by, 117
a quasi-judicial officer, 167, 168
limitations placed upon, by laws of evidence and procedure, 165, 168

District Attorney, should move defendant's discharge if convinced of innocence, 168
has same latitude in summing up as defendant's attorney 168
in presentation of case, People should have same rights as an individual, 168
should win confidence of jury, 169
function of, 304
can rebut defense more easily where it has been exposed before magistrate, 312
necessity of examination of jury by, 323


Electric chair, jury send to, only in atrocious cases, 213

Ellis, William H., case of, 315, 316

Elmira, release from, 165
sentence to, indeterminate, 165

Evidence, character of defendant provable only when put in issue by himself, 161, 166
defendant's right to give, himself, 161-162
but no inference to be drawn from defendant's failure to testify, 160, 162
rule permitting defendant to testify practically forces him to do so, 163
good character of complainant and witnesses only provable on attack, 167
amount of strictly accurate testimony very small, 225
"refreshing recollection," in practice absurd, 235
method of refreshing recollection, 235
(See Witnesses)

Ex Parte, proceeding before Grand Jury is, 90, 99


Felix, John, case of, 15

Felonies, The Trial of, Chapter IX
(See District Attorney, Prosecutor, Defendants, etc.)
distinction between felonies and misdemeanors often without merit, 30
number of persons arrested for, 85
should be prosecuted by information, 100
rapidity of trials for, 152, 154
description of trials for, 150
attempted suicide, 171
compounding, by agreeing not to prosecute, 349

Foster, Judge Warren W., 216

"Franklin Syndicate, The," 26

Fursman, Judge, 321


General Sessions, Court of, appeal to, from magistrate's courts, 47
procedure in, 119, 150, 151
description of (see Felonies), 150

Goff, Recorder, 86, 290


Habeas Corpus, for prisoners held in police court, 43
to test magistrate's jurisdiction, 47
only remedy for illegal commitment, 49
writ of, often secured for delay, 317

Hackett, Orlando J., case of, 290

Hadfield's Case, 358

Harris, Carlyle W., case of, 263, 264

Hawkins, Sir Henry, on want of uniformity in sentences, 189, 190

Homicide, typical case of manslaughter, 8
large proportion of defendants charged with, plead guilty to manslaughter, 174
charge of court in cases of, 243
verdicts in cases of, 246
sentence in cases of murder fixed by law, 261
larger proportion of women indicted convicted of, than men, 334

Howe, "Bill," 297, 298, 323

Howe & Hummel, 322

Hummel, Abraham, 321, 322


Imprisonment, pending appeal, advisability of, 346

Impulse. See Irresistible.

Indeterminate sentence, definition of, 273
constitutionality of, upheld by courts, 274
distinguished from commutation, 274

Indictments, found by Grand Jury, 81
"true bills," 82
number of, found, 85
drawn by District Attorney, 87
form of, 87, 88
for larceny, 88, 89
invalid, when, 91
defendant may move to dismiss, when, 91, 92
ratio of women to men indicted, 292
not "pigeon-holed" or "lost" in New York County, 314
motion to dismiss, 317
for forgery, 331

Information, in Court of Special Sessions, 48, 49
Information, of aggrieved party, old form, 89
proceeding by, in different states, 100
all felonies should be prosecuted by, 100

Insanity, not true that majority of criminals are mentally defective, 22
sentence cannot be pronounced on insane person, 269
how those insane at sentence are dealt with, 269
defendants unlikely to feign, at sentence, 270
used as means of avoiding trial by rich, 317
As a Defense to Crime, Chapter XVIII, 350
(Also see Criminal Responsibility and Commissions)

Inspection, of Grand Jury minutes, 122, 316

Interpreters, usually very incompetent, 239
difficulty of cross-examining through, 239

Irresistible impulses not recognized by present New York test of responsibility, 359


Johnson, Richard, words of, before sentence, 262

Judge, The (Chapter X), functions of, 178
most difficult function of, to impose sentence, 178, 179
his conduct during trial, 179
may "sum up" in England but not here, 179, 337
his business practically to "even things up," 182
should interrogate witnesses, 182
difference between his theoretical and practical functions, 179, 182
should not interfere with jury on questions of fact, 183
able to convey opinion to jury despite the law to contrary, 184
most judges too lenient, 187, 195, 196
tendencies often well known, 187, 188