a crime is any act or omission to act punishable as such by law. it is difficult, if not impossible, to devise any closer definition. speaking broadly, crimes are certain acts, usually wrongful, which are regarded as sufficiently dangerous or harmful to society to be forbidden under pain of punishment. the general relation of crimes to wrongs as a whole is sometimes illustrated by a circle having two much smaller circles within 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 the civil courts, and the smallest or inner circle, acts held to be so injurious to the public as to be punishable as crimes.

this does well enough for the purpose of illustrating the relative proportion of crimes to torts or wrongful acts in general, and, if a tiny dot be placed in the centre of the bull's-eye to represent those crimes which are actually punished, one gets an excellent idea of how infinitely small a number of these serve to keep the whole social fabric in order and sustain the majesty of the law. but the inference might naturally be drawn that whatever[pg 2] was a crime must also be a tort or at least a wrong, which, while true in the majority of instances, is not necessarily the case in all. in a certain sense crimes are always wrongs or, at least, wrong, but only in the sense of being infractions of law are they always wrongs or wrong.

pic

the word wrong being the antithesis of the word right, and carrying with it generally some ethical or moral significance, will vary in its meaning according to the ideas of the individual who makes use of it. indeed, it is conceivable that the only really right thing to do under certain circumstances would be to commit an act designated by law as a crime. so, conversely, while a wrong viewed as an infraction of the laws of god is a sin, that which is uni[pg 3]versally held sinful is by no means always a crime. speaking less broadly, a wrong is an infraction of a right belonging to another, which he derives from the law governing the society of which he is a member. many wrongs are such that he may sue and obtain redress therefor in the courts. but it by no means follows that every crime involves the infraction of a private right or the commission of a tort. thus "perjury" and most crimes against the state are not torts at all. it will thus be seen that no accurate definition of a crime can be given save that it is an act or omission which the state punishes as such, and that technically the word carries with it no imputation or implication of sin, vice, iniquity, or in a broad sense even of wrong. the act may or may not be repugnant to our ideas of right. numerically considered, only a minority of crimes have any ethical significance whatever, the majority being designated by the law itself as mala prohibita, rather than mala in se.

it is the duty of a prosecutor to see that infractions of the criminal law are punished and to represent the public in all proceedings had for that purpose, but, in view of what has just been said, it will be observed that his duties do not necessarily involve familiarity with vice, violence or even sin. the crimes he is called upon to prosecute may be disgusting, depraved and wicked, or they may be, and frequently are, interesting, ingenious, amusing or, possibly (though not probably), commendable. for example, a man who chastises the foul slanderer of a young woman's character may have technically committed an assault of high degree, yet if he does so in the proper spirit, in a suitable place, and[pg 4] makes the offender smart sufficiently, he deserves the thanks and congratulations of all decent men and honest women. yet, indubitably, he has committed a crime, although, thanks to our still lingering spirit of chivalry, he would never be stamped by any jury as a criminal.

a prosecutor is frequently asked if he does not find that his experience has a "hardening" effect.

"why should it?" he might fairly reply. "i have to do with criminals, it is true, but the criminals as a rule are little or no worse than the classes of people outside from which they have been drawn. their arrest and conviction are largely due to accidental causes, such as weak heads, warm hearts, quick temper, ignorance, foolishness or drunkenness. we see all of these characteristics in our immediate associates. a great many convicted persons have done acts which are not wrong at all, but are merely forbidden. even where their acts are really wrong it is generally the stupid, the unfortunate, or the less skilful who are caught. for every rogue in jail there are at least ten thousand at large. the ones who escape are wiser and very likely meaner. last, but not least, a very great number of the most despicable, wicked, and harmful deeds that can be committed are not crimes at all. the fact that a man is a criminal argues nothing at all against his general decency, and when i meet a convict i assume, and generally assume correctly, that to most intents and purposes he is a gentleman. the code which puts one man in stripes and allows another to ride in an automobile is purely artificial, and strictly speaking proves not a whit which is the better man."

[pg 5]

now while such an answer might seem frivolous enough to the lay reader, it would nevertheless be substantially true. your criminal, that is to say, strictly, the law-breaker who is brought to book for his offence, is very likely a pretty good sort of fellow as fellows go. if he has been guilty merely of an act which is prohibited, not because of its inherent wrong, but simply on grounds of public policy—malum prohibitum—he is probably as good as anybody. his offence may be due to ignorance or accident. assuming that his crime be one which would seem to involve moral turpitude—malum in se—there are very likely mitigating circumstances which render his offence, if not excusable, at least less reprehensible than would appear at first glance.

crimes bear no absolute relation to one another. a murderer may or may not be worse than a thief,—and either may be better than his accuser. the actual danger of any particular offender to the community lies not so much in the kind or degree of crime which he may have committed as in the state of his mind. even the criminals who are really criminal, in the sense that they have a systematic intention of defying the law and preying upon society, are generally not criminal in all directions, but usually only in one, so that taken upon their unprofessional side they present the same characteristics as ordinary and, roughly speaking, law-abiding citizens. the bank robber usually is a bank robber and nothing more. he specializes in that one pursuit. it is his vocation and his joy. he prides himself on the artistic manner in which he does his work. he would scorn to steal your watch and is a man of[pg 6] honor outside of bank-breaking hours,—"honor among thieves." often enough he is a model husband and father. so, too, may be your forger, gambler, swindler, burglar, highwayman, or thief,—any in fact except the real moral pervert; and of course murder is entirely compatible on occasion with a noble, dignified and generous character. "there is nothing essentially incongruous between crime and culture." the prosecutor who begins by loathing and despising the man sitting at the bar may end by having a sincere admiration for his intellect, character or capabilities. this by way of defence to crime in general.

our forefathers contented themselves with a rough distinction between crimes as mala prohibita and mala in se. when they sought to classify criminal acts under this arrangement they divided them accordingly as the offence carried or did not carry with it a suggestion of moral turpitude. broadly speaking, all felonies were and are regarded as mala in se. murder, arson, burglary, theft, etc., in general indubitably imply a depraved mind, while infractions of sunday observance laws or of statutes governing the trade in liquor do not. yet it must be perfectly clear that any such distinction is inconclusive.

there can be no general rule based merely on the name or kind of crime committed which is going to tell us which offender is really the worst. a misdemeanor may be very much more heinous than a felony. the adulterator of drugs or the employer of illegal child labor may well be regarded as vastly more reprehensible than the tramp who steals part of the family wash. so far as that goes there are an[pg 7] alarming multitude of acts and omissions not forbidden by statute or classed as crimes which are to all intents and purposes fully as criminal as those designated as such by law. this is the inevitable result of the fact that crimes are not crimes merely because they are wrong, but because the state has enjoined them. for example, to push a blind man over the edge of a cliff so that he is killed upon the rocks below is murder, but to permit him to walk over it, although by stretching out your hand you might prevent him, is no crime at all. it is a crime to defame a woman's character if you write your accusation upon a slip of paper and pass it to another, but it is no crime in new york state to arise in a crowded lecture hall and ruin her forever by word of mouth. it is a crime to steal a banana off a fruit-stand, but it is no crime to borrow ten thousand dollars from a man whose entire fortune it is, although you have no expectation of returning it. you can be a swindler all your life—the meanest sort of a mean swindler, but there is no crime of being a swindler or of being a mean man. it is a crime to ruin a girl of seventeen years and eleven months, but not to ruin a girl of eighteen. the "age of consent" varies in the different states. it is a crime to obtain a dollar by means of a false statement as to a past or existing fact, but it is no crime to obtain as much money as you can by any other sort of a lie. lying is not a crime, but lying under oath is a crime,—provided it be done in a legal proceeding and relates to a material matter. the most learned jurists habitually disagree as to what is material and what is not.

even when the acts to be contrasted are all crimes[pg 8] there is no way of actually discriminating between them except by carefully scrutinizing the circumstances of each. the so-called "degrees" mean little or nothing. if you steal four hundred and ninety-nine dollars out of a man's safe in the daytime it is grand larceny in the second degree. if you pick the same man's pocket of a subway ticket after sunset it is grand larceny in the first degree. you may get five years in the first instance and ten in the second. if you steal twenty-five dollars out of a bureau drawer you commit petty larceny and may be sent to prison for only one year.

if the degree of any particular crime of which a defendant is found guilty is no index to his real criminality or of his danger to society, still less is the name of the crime he has committed an index to his moral character, save in the case of certain offences which it is not necessary to enumerate. most men charged with homicide are indicted for murder in the first degree. this may be a wise course for the grand jury to pursue in view of the additional evidence which often comes to light during a trial. but it frequently is discovered before the case goes to the jury that in point of fact the killing was in hot blood and under circumstances which evince no great moral turpitude in the slayer. for example, two drunken men become involved in an altercation and one strikes the other, who loses his equilibrium and falls, hitting his head against a curbstone and fracturing his skull. the striker is indicted and tried for murder. now he is doubtless guilty of manslaughter, but he is less dangerous to the community than a professional thief who preys upon the public by impersonating a gasman or telephone repairer and by thus gaining access to private[pg 9] dwellings steals the owner's property. one is an accidental, the other an intentional criminal. one is hostile to society as a whole and the other is probably not really hostile to anybody. yet the less guilty is denominated a murderer, and the other is rarely held guilty of more than petty larceny. a fellow who bumps into you on the street, if he be accompanied by another, and grabs your cane, is guilty of robbery in the first degree,—"highway" robbery,—and may get twenty years for it, but the same man may publish a malicious libel about you, and by accusing you of the foulest practices rob you of your good name and be only guilty of a misdemeanor. yet the reader should not infer that definitions and grades of crime capable of corresponding punishments are not proper, desirable, and necessary. of course they are. the practical use of such statutes is to fix a maximum sentence of punishment. as a rule the minimum is anything the judge sees fit. hence you may deduce a general principle to the effect that the charge against the prisoner, even assuming his guilt, indicates nothing definite as to his moral turpitude, danger to the community, or general undesirability.

but we may honestly go much further. not only are the names and degrees of the crimes which a defendant may have committed of very little assistance in determining his real criminality, but the fact that he has committed them by no means signifies that he is morally any worse than some man who has committed no so-called crime at all. many criminals, even those guilty of homicide, are as white as snow compared with others who have never transgressed the literal wording of a penal statute.

"we used to have so and so for our lawyer,"[pg 10] remarked the president of a large street railway corporation. "he was always telling us what we couldn't do. now we have blank, and pay him one hundred thousand dollars a year to tell us how we can do the same things." the thief who can have the advice of able counsel "how to do it" need never go to jail.

many of the things most abhorrent to our sense of right do not come within the scope of the criminal law. omissions, no matter how reprehensible, are usually not regarded as criminal, because in most cases there is no technical legal duty to perform the act omitted. thus, not to remove your neighbor's baby from the railroad track in front of an on-rushing train, although it would cause you very little trouble to do so, is no crime, even if the child's life be lost as a result of your neglect. you can let your mother-in-law choke to death without sending for a doctor, or permit a ruffian half your size to kill an old and helpless man, or allow your neighbor's house to burn down, he and his family peacefully sleeping inside it, while you play on the pianola and refuse to ring up the fire department, and never have to suffer for it—in this world.

passing from felonies—mala in se—to misdemeanors—generally only mala prohibita—almost anything becomes a crime, depending upon the arbitrary act of the legislature.

it is a crime in new york state to run a horse race within a mile of where a court is sitting; to advertise as a divorce lawyer; to go fishing or "play" on the first day of the week; to set off fire-works or make a "disbursing noise"[1] at a military funeral in a city on sunday; to arrest or attach a[pg 11] corpse for payment of debt; to keep a "slot machine"; to do business under any name not actually your own full name without filing a certificate with the county clerk (as, for example, if, being a tailor, you call your shop "the p.d.q. tailoring establishment"); to ride in a long-distance bicycle race more than twelve hours out of twenty-four; to shoe horses without complying with certain articles of the labor law; to fail to supply seats for female employés in a mercantile establishment; to steal a ride in a freight car, or to board such a car or train while in motion; to set fire negligently to one's own woods, by means of which the property of another is endangered; to run a ferry without authority, or, having contracted to run one, to fail to do so; to neglect to post ferry rates (under certain conditions) in english; to induce the employé of a railroad company to leave its service because it requires him to wear a uniform; to wear a railroad uniform without authority; to fish with a net in any part of the hudson river (except where permitted by statute); to secretly loiter about a building with intent to overhear discourse therein, and to repeat the same to vex others (eavesdropping); to sell skimmed milk without a label; to plant oysters (if you are a non-resident) inside the state without the consent of the owner of the water; to maintain an insane asylum without a license; to enter an agricultural fair without paying the entrance fee; to assemble with two or more other persons "disguised by having their faces painted, discolored, colored or concealed," save at a fancy-dress ball for which permission has been duly obtained from the police; or to wear the badge of the "pa[pg 12]trons of husbandry," or of certain other orders without authority. these illustrations are selected at random from the new york penal code.

where every business, profession, and sport is hedged around by such chevaux-de-frise of criminal statutes, he must be an extraordinarily careful as well as an exceptionally well-informed citizen who avoids sooner or later crossing the dead-line. it is to be deprecated that our law-makers can devise no other way of regulating our existences save by threatening us with the shaved head and striped shirt.

the actual effect of such a multitude of statutes making anything and everything crimes, punishable by imprisonment, instead of increasing our respect for law, decreases it, unless they are intended to be and actually are enforced. acts mala in se are lost in the shuffle among the acts mala prohibita, and we have to become students to avoid becoming criminals.

year by year the legislature goes calmly on creating all sorts of new crimes, while failing to amplify or give effect to the various statutes governing existing offences which to a far greater degree are a menace to the community. for example, it is not a crime in new york state to procure money by false pretences provided the person defrauded parts with his money for an illegal purpose.[2]

in the mccord[3] case, in which the court of appeals established this extraordinary doctrine, the defendant had falsely pretended to the complainant, a[pg 13] man named miller, that he was a police officer and held a warrant for his arrest. by these means he had induced miller to give him a gold watch and a diamond ring as the price of his liberty. the conviction in this case was reversed on the ground that miller parted with his property for an unlawful purpose; but there was a very strong dissenting opinion from mr. justice peckham, now a member of the bench of the supreme court of the united states.

in a second case, that of livingston,[4] the complainant had been defrauded out of five hundred dollars by means of the "green-goods" game; but this conviction was reversed by the appellate division of the second department on the authority of the mccord case. the opinion was written by mr. justice cullen, now chief judge of the new york court of appeals, who says in conclusion:

"we very much regret being compelled to reverse this conviction. even if the prosecutor intended to deal in counterfeit money, it is no reason why the appellant should go unwhipped of justice. we venture to suggest that it might be well for the legislature to alter the rule laid down in mccord vs. people."

well might the judges regret being compelled to set a rogue at liberty simply because he had been ingenious enough to invent a fraud which involved the additional turpitude of seducing another into a criminal conspiracy. livingston was turned loose upon the community, in spite of the fact that he had swindled a man out of five hundred dollars, because he had incidentally led the latter to believe that in return he was to receive counterfeit money or "green goods" which might be put into circulation.[pg 14] yet, because, some years before, the judges of the court of appeals had, in the mccord matter, adopted the rule followed in civil cases, to wit, that as the complaining witness was himself in fault and did not come into court with clean hands he could have no standing before them, the appellate division in the next case felt obliged to follow them and to rule tantamount to saying that two wrongs could make a right and two knaves one honest man. it may seem a trifle unfair to put it in just this way, but when one realizes the iniquity of such a rule as applied to criminal cases, it is hard to speak softly. thus the broad and general doctrine seemed to be established that so long as a thief could induce his victim to believe that it was to his advantage to enter into a dishonest transaction, he might defraud him to any extent in his power. immediately there sprang into being hordes of swindlers, who, aided by adroit shyster lawyers, invented all sorts of schemes which involved some sort of dishonesty upon the part of the person to be defrauded. the "wire-tappers," of whom "larry" summerfield was the napoleon, the "gold-brick" and "green-goods" men, and the "sick engineers" flocked to new york, which, under the unwitting protection of the court of appeals, became a veritable mecca for persons of their ilk.

the "wire-tapping" game consisted in inducing the victim to put up money for the purpose of betting upon a "sure thing," knowledge of which the thief pretended to have secured by "tapping" a western union wire of advance news of the races. he usually had a "lay out" which included telegraph instruments connected with a dry battery in an adjoining closet, and would merrily steal the sup[pg 15]posed news off an imaginary wire and then send his dupe to play his money upon the "winner" in a pretended pool-room which in reality was nothing but a den of thieves, who instantly absconded with the money.

in this way one john felix was defrauded out of fifty thousand dollars on a single occasion.[5] now the simplest legislation could instantly remedy this evil and put all the "wire-tappers" and similar swindlers out of business, yet a bill framed and introduced in accordance with the suggestion of the highest court in the state was defeated. instead the legislature passes scores of entirely innocuous and respectable acts like the following, which became a law in 1890:

an act for the prevention of blindness

section 1. should ... nurse having charge of an [pg 16]infant ... notice that one or both eyes of such infant are inflamed or reddened at any time within two weeks after its birth it shall be the duty of such nurse ... to report the fact in writing within six hours to the health officer or some legally qualified practitioner of medicine ...

section 2. any failure to comply with the provisions of this act shall be punished by a fine not to exceed one hundred dollars, or imprisonment not to exceed six months, or both.

the criminal law which had its origin when violence was rife is admirably adapted to the prevention, prosecuting and punishment of crude crimes, such as arson, rape, robbery, burglary, mayhem, assault, homicide, and "common-law" larceny,—theft accompanied by a trespass. in old times everything was against the man charged with crime—at least that was the attitude of the court and jury. "aha!" exclaims the judge as the evidence goes in. "you thought you were stealing only a horse! but you stole a halter as well!" and the spectators are convulsed with merriment.

we take honest pride in the protection which our law affords to the indicted prisoner. it is the natural expression of our disapproval of a system which at the time of our severance from england ignored the rights of the individual for those of the community. we touched the lips of the defendant and gave him the right to speak in his own behalf. we gave him an unlimited right of appeal on any imaginable technicality.[6] but while we have been making it harder and harder to convict our common criminals, we have to a very great extent failed to recognize the fact that all sorts of new and ingenious crimes have come into existence with which the law in its present state is utterly unable to cope. the evolution of the modern corporation[pg 17] has made possible larcenies to the punishment of which the law is entirely inadequate. "acts for the prevention of blindness" are perhaps desirable, but how about a few statutes to prevent the officers of insurance companies from arbitrarily diverting the funds of that vague host commonly alluded to as "widows and orphans"? the careless nurse is a criminal and may be confined in a penitentiary; while perhaps a man who may be guilty of a great iniquity and known to be so drives nonchalantly off in his coach and four.

what is crime? we may well ask the question, only eventually to be confronted by that illuminating definition with which begins the penal code—"a crime is an act or omission forbidden by law and punishable upon conviction by ... penal discipline." let us put on our glasses and find out what these acts or omissions are. when we have done that we may begin to look around for the criminals. but it will be of comparatively little assistance in finding the sinners.

so-called criminologists delight in measuring the width of the skulls between the eyes, the height of the foreheads, the length of the ears, and the angle of the noses of persons convicted of certain kinds of crimes, and prepare for the edification of the simple-minded public tables demonstrating that the burglar has this kind of a head, the pickpocket that sort of an ear, and the swindler such and such a variety of visage. exhaustive treatises upon crime and criminals lay down general principles supposed to assist in determining the kind of crime for which any particular unfortunate may have a predilection. one variety of criminal looks this way[pg 18] and another looks that way. one has blue eyes, the other brown eyes.[7] some look up, others look down. my friend, if you examine into the question, you will probably discover that the clerk who sells you your glass of soda water at the corner drug store will qualify for some one of these classes, so will your host at dinner this evening, so, very likely, will the family doctor or the pastor of your church.

the writer is informed that there has recently been produced an elaborate work on political criminals in which an attempt is made to set forth the telltale characteristics of such. it is explained that the tendency to commit such crimes may be inherited. you are about as likely to inherit an inclination to commit a political crime as you are to derive from a maiden aunt a tendency to violate a speed ordinance or make a "disbursing" noise.

let some one codify all the sins and meannesses of mankind, let the legislatures make them crimes and affix appropriate penalties, then those of us who still remain outside the bars may with more propriety indulge ourselves in reflections at the expense of those who are not.

footnotes:

[1] new york penal code, section 276.

[2] no longer the law of new york. after this book was published the court of appeals reversed the conviction of tracy for his $50,000 fraud upon felix by means of the "wire-tapping" game and affirmed as law the doctrine of people vs. mccord. the author takes satisfaction in recording that the legislature thereupon awoke to its duties and amended the penal code in such a fashion as to render such offences criminal.

[3] 46 new york 470.

[4] 47 app. div. 283.

[5] the operations of these swindlers recently became so notorious that the district attorney of new york county determined to prosecute the perpetrators of the felix swindle, in spite of the fact that the offence appeared to come within the language of the court of appeals in the mccord and livingston cases. accordingly christopher tracy, alias charles tompkins, alias topping, etc., etc., was indicted (on the theory of "trick and device") for the "common-law" larceny of felix's fifty thousand dollars.

the trial came on before judge warren w. foster in part iii of the general sessions on february 27, 1906. a special panel quickly supplied a jury, which, after hearing the evidence, returned a verdict of guilty in short order.

it now remains for the judges of the court of appeals to decide whether they will extend the doctrine of the mccord and livingston cases to a fraud of this character, whether they will limit the doctrine strictly to cases of precisely similar facts, or whether they will frankly refuse to be bound by any such absurd and iniquitous theory and consign the mccord case to the dust-heap of discarded and mistaken doctrines, where it rightfully belongs. their action will determine whether the perpetrators of the most ingenious, elaborate and successful bunco game in the history of new york county shall be punished for their offence or instead be turned loose to prey at will upon the community at large. (see "the last of the wire-tappers" in the american magazine for june, 1906; also incorporated in the author's "true stories of crime," pp. 103-121, published by charles scribner's sons, 1908.)

[6] cf. in general, references given infra, p. 339.

[7] the following appeared in the new york globe for april 25, 1905: "criminal eyes—it is well known," says dr. beddoe, f.r.s., "that brown eyes and dark hair are particularly common among the criminal classes. an american observer calls the brown the criminal eye, etc., etc."