the judge having delivered his charge, and the jury having gathered up their collection of miscellaneous garments and retired to the jury-room, a court officer claps the prisoner upon the shoulder and leads him away to the prison pen. once the door of the court-room has closed behind him, he is conducted along a narrow corridor to the head of a flight of iron steps at the foot of which stands a keeper. as he descends the stairs the attendant notifies the keeper that the defendant is on his way down: and once the latter is safely below the keeper shouts "all right!" to the officer above, who returns once more to his duties in the court-room. since there is little danger of an escape the officers sometimes become a trifle lax in the handling of prisoners awaiting the verdict.

an incident recently occurred which shows how much care is necessary in guarding a defendant who confidently expects a verdict of conviction. at the conclusion of a trial for grand larceny the jury went out and the prisoner was conducted to the head of the stairs leading down to the pen. the court officer notified the keeper when the prisoner was about half-way down, and distinctly heard the latter reply "all right!" he thereupon departed. the keeper, however, had not uttered a syllable and was entirely unaware of the return of the defendant, who, being[pg 242] something of a ventriloquist, had answered for him, and had then calmly reascended the stairs, passed through the corridor to another court-room where he had mingled with the crowd, and later had had no difficulty in making his escape first into the main corridor and thence into the street. when the jury presently returned and the prisoner was sent for, his flight was discovered. the court waited patiently while the pens, corridors and finally the entire building were searched, but without disclosing a trace of the prisoner. meanwhile the jury, who had found the defendant guilty, wondered why their verdict was not received. according to law, however, all the proceedings incident to a trial for felony up to and including the rendition of the verdict must take place in the presence of the prisoner, and in this case his voluntary absence compelled the court to declare a "mistrial." when it became evident that the defendant was unlikely to return, terrible was the humiliation of the court officers, who, for a few days, lived in terror of losing their official heads, if not of being imprisoned and fined for contempt.

the prisoner's wife, however, had been present throughout the trial in the court-room, although, as his escape was entirely extemporaneous, she was as much surprised as anybody else at his departure. after the discharge of the jury several detectives followed her to her home in hoboken. late in the evening she left the house in response to a message and met her husband in a deserted part of the city, where he was recaptured. he was immediately brought back to new york and his case placed once more on trial; but this time he pleaded guilty. from[pg 243] a dramatic point of view it is to be regretted that the jury at the first trial had not found a verdict of "not guilty."

as the first talesman who happens to be selected for the jury in any given case becomes ipso facto its foreman, amusing incidents sometimes occur owing to his inexperience. where an indictment contains but a single count, as, for example, "receiving stolen goods," the foreman's answer to the clerk's interrogation of, "do you find the prisoner guilty or not guilty," is, of course, simple enough; he answers "guilty" or "not guilty," or "not guilty, with a recommendation to the mercy of the court"; but where the indictment contains either a number of counts set forth separately, or the crime charged is of such a character that the jury may find in a lesser degree, some confusion is apt to result. if, for example, a defendant is being tried for murder in the first degree the court is obliged to submit, under the law, not only murder in its first degree, but the lesser crimes of murder in the second degree, manslaughter in the first degree, manslaughter in the second degree and occasionally assault in one or more degrees. sometimes the foreman forgets entirely what he was going to say and stands staring, open-mouthed, until the clerk comes to his assistance.

in a case where the court charged the jury that they could find the defendant guilty of murder, manslaughter, or assault, or else acquit him on the ground that he was justified in taking the life of the deceased, the jury retired and deliberated for many hours. as the time dragged on the defendant became convinced that he was to be convicted. late[pg 244] at night the jury informed the court that they had agreed upon a verdict. they filed back and took their places in the box. the defendant was arraigned, pale with apprehension. the clerk arose.

"gentlemen of the jury," said he, "have you agreed upon a verdict?"

"we have," replied the foreman.

"the jury will rise," continued the clerk. "the defendant will rise." the jury and prisoner arose.

"jurymen, look upon the prisoner. prisoner, look upon the jury," continued the clerk, and turning to the foreman, "how say you? do you find the defendant guilty or not guilty?"

"guilty," stammered the foreman.

the defendant uttered a loud groan and collapsed into the arms of the court attendant beside him.

"of justifiable homicide," hastily added the inexperienced foreman. in spite of the laughter of the rest of the jurymen and the smiles of the court it took some moments to convince the unnerved prisoner that he was not to be electrocuted.

in a recent case the jury returned a verdict of "pretty nearly guilty!"

a very considerable proportion of jury trials in criminal cases result in disagreements. the question of reasonable doubt is always a troublesome one, and even where all the jury believe the defendant guilty, as likely as not half of them will not think that they are convinced beyond what they regard as a reasonable doubt. on this account many jurors are of the opinion that what is known as a scotch verdict, or a verdict of "not proven," should be allowed. the writer has been informed on good authority that in one of the recent trials of[pg 245] nan patterson eleven of the twelve jurymen believed her guilty, but that only six of them were of the opinion that they were so convinced beyond a reasonable doubt. had the scotch verdict been permissible it would probably have been rendered in this case. inasmuch as the ordinary american petit jury are apt to go outside the evidence and to decide the issue, in some degree at least, on evidence which properly they should not consider at all, no further loopholes of escape from rendering a verdict one way or the other should be afforded them. had we the scotch verdict, instead of disagreeing and giving the prosecution the opportunity to try the defendant over again, juries would probably make use of it in all cases where they disliked to render a verdict in accordance with the evidence.

juries frequently incorporate with the verdict of guilty the words "with a recommendation to mercy." of course this is no part of the verdict and has no legal effect whatever. it is merely a formal expression of opinion that in the eyes of the jury it would be well for the court to treat the defendant with leniency. the judge usually comments upon this recommendation and intimates that he will give it consideration in imposing sentence. it is not likely, however, that in any case which has appealed to the sympathies of the jury the court will not be equally moved. in point of fact, did juries fix the sentence in cases where they found the defendant guilty it is exceedingly probable that they would be much more severe than the bench. most jurors, however, are under the impression that "a recommendation to mercy" is an integral part of their verdict and it frequently does yeoman's[pg 246] service by inducing a juror or two who have a lingering feeling that perhaps the crime has not been as fully proven as it might have been, or that maybe the defendant is not guilty after all or should be given another chance, to agree with the majority of their fellows. the writer had one panel of jurors in the general sessions which, having returned a verdict of guilty "with a recommendation to mercy" in the first case tried during the month, affixed the same recommendation to each verdict which they rendered thereafter. it is his impression that they convicted every prisoner who came before them, so that the recommendation must in many cases have seemed to the hapless defendant but a hollow mockery. there is even a traditional case where a jury in a murder trial found the defendant guilty of murder in the first degree, "with a strong recommendation to the mercy of the court."

verdicts of murder in the first degree are comparatively rare and are, practically, only to be expected when the circumstances surrounding the crime are peculiarly atrocious. it is also a well-known fact that juries rarely find a verdict in a degree of crime higher than the one for which the majority vote upon the first ballot. for example, if on the first ballot the jury stands five for murder in the first degree, six for murder in the second degree and one for manslaughter only a miracle could account for a final verdict of murder in the first degree. in other words, a jury will almost never work up their verdict, argument invariably tending to work them down to a lesser degree. most cases of what is technically murder in the first degree result in verdicts of murder in the second degree, and[pg 247] most cases of murder in the second degree result in verdicts of manslaughter.

the jury having rendered a verdict of conviction, say of murder in the first degree, there remains to counsel but one last act which he can perform in his client's behalf, namely, to demand that the jury be polled. this must be done upon the requirement of either the defendant or the people, in which case, "they must be severally asked whether it is their verdict; and if any one answer in the negative, the jury must be sent out for further deliberation." the writer has never heard of a jury which, on being polled, showed a disagreement. it is not unusual, however, as the roll is called to see various members of the jury look apprehensively towards one of their number who has evidently put up in the jury-room a hard fight for a lesser degree and may be "of the same opinion still." a prosecutor always breathes more freely when the ordeal is over, and probably experiences during the process very much the same kind of emotion as that felt by the bride-groom at the altar as he listens apprehensively at the conclusion of the clergyman's announcement that "if any one has any just cause, etc., let him now speak or forever hold his peace."

defendants who are convicted rarely show any emotion when receiving the verdict. this is of course to be expected, as the defendant, if guilty, has probably been anticipating that he will be so found by the jury, and has steeled himself for the occasion, while an innocent man is practically never convicted. hundreds of defendants, however, who confidently expect to be convicted, are acquitted through the leniency of the jury. their[pg 248] exclamations of gratification and joy upon such occasions are frequently most amusing. such a defendant not seldom thanks the court and the jury for their kindness, and in some cases his thanks are certainly due to those who have violated the letter and spirit of their oaths in acquitting him. the writer recalls one old colored mammy who, on being acquitted of stealing some wash which had been confided to her care, curtsied in all directions and remarked, "ah t'anks your honor, an' ah t'anks your honors, gen'lemen ob de jury, one an' all." an irishman, who had been but a few weeks in this country, and who had been acquitted on the charge of stealing a truck and horse which had been left in his charge, on learning of his acquittal invited the jury collectively in a loud voice to come across the street and have a drink.

before the jury is discharged, however, and the prisoner remanded to the tombs for sentence, he is required to answer certain questions relative to his age, parentage, education, previous convictions, etc. if the spectator is fortunate enough to be able to forget the solemnity of what has taken place, he may well be entertained, not only at the answers given by the defendant, but at the method of conducting the examination by the court officer. the clerk takes the indictment and, with a large rubber die, stamps upon it the statement that the defendant, on being arraigned, made answer to the questions put to him, as follows:

counsel assigned ............................................

sex .........................................................

age .........................................................

nativity ....................................................

[pg 249]residence ...................................................

occupation ...................................................

married or single ............................................

education ....................................................

religious instruction ........................................

parents living ...............................................

temperate or intemperate .....................................

before convicted .............................................

of course, the court officer who repeats the prisoner's answers to the clerk is usually so familiar with the order of the questions as to render any vocal action upon the part of the clerk unnecessary. the officer stands by the prisoner and, leaning over, asks in a low tone how old he is, if his parents are living, if he is addicted to the use of liquor, if he has had any religious instruction, or if he has been previously convicted of crime. it is really the officer to whom the defendant makes his replies, the former repeating them in a loud voice to the clerk. in some courts the clerk does not put the questions at all, but the officer merely gives in their order the answers of the defendant. for example, in part ii, upon the rendition of a verdict one will see mr. samuel wolff, the clerk, stamp the indictment, dip his pen in the ink, turn to the officer of the court and say, "all ready?"

the officer answers, "yes."

a subdued conversation then takes place between the prisoner and the officer, who raises his voice and answers:

"twenty-nine;—u.s.—no;—none;—single—yes;—no.—" all of which answers are properly recorded opposite the appropriate questions upon the indictment.

all this is a little startling to the juror who has rendered his first verdict. he has no idea at all of what is going on. the officer returns, if possible, a[pg 250] categorical reply to each question, but frequently prisoners make statements which are of course irrelevant in character and are not incorporated in the answer. at times it requires quite a little cross-examining on the part of the officer to determine whether or not the defendant is temperate or intemperate, or whether he has really ever been convicted of crime theretofore. any one who could overhear these colloquies would be well repaid for his trouble. the writer knows of one officer of a somewhat waggish disposition who, when he approaches the interrogation directed towards the prisoner's usual habits, first puts the question in its proper form:

"are you temperate or intemperate?"

the prisoner, who perhaps does not understand these terms, or, at any rate, is a little doubtful himself as to his usual condition, stammers and hesitates. the officer, dropping his voice, remarks, confidentially:

"say, do you ever take a drink?"

"sure," says the defendant, without hesitation.

"moderate," shouts the officer to the clerk.

a certain element of humor enters into the situation when a defendant convicted of bigamy is asked if he is married. the answer "yes" is generally accompanied by an irrepressible grin.

there used to be an old court officer in one of the parts of the general sessions a few years ago who was a loyal son of old erin and a devout member of the roman church.

on one occasion, a defendant having been found guilty he was arraigned at the bar for the purpose of having his pedigree taken, old flaherty officia[pg 251]ting. the conversation which ensued may be worth preservation.

flaherty to defendant: "say, me friend, where was ye born?"

defendant to flaherty: "lowell, mass."

flaherty to clerk: "lowell, mass."

flaherty to defendant: "where do yez hang out?"

defendant: "nowhere."

flaherty to clerk: "ain't got none."

flaherty to defendant: "phat do yez do fer a livin'?"

defendant: "nothin'."

flaherty to clerk: "ain't got none."

flaherty to defendant: "are ye married?"

defendant: "no,—thank god."

flaherty to clerk: "he says 'no, thank god!'"

flaherty to defendant: "ever receive any previous religious instruction?"

defendant: "how's that?"

flaherty to defendant: "phat's yer religion?"

defendant: "don't believe in nothin'."

flaherty to clerk (loudly): "protestant!"

for a convict to give under oath false answers to the questions thus put to him is, of course, perjury. it is frequently of no small importance for a prisoner to conceal his identity, or at least his record. but if a bible is thrust into his right hand he is loath to put himself within the statute governing false swearing, for the chances are all in favor of his being found out, in which case his punishment will be severe. the writer recalls a dramatic incident of a man who endeavored to prevent his past[pg 252] offences coming to the knowledge of the judge. he bore, however, all the ear-marks of an ex-convict, and the court became suspicious that all was not right. he had just been convicted of stealing a purse. the jury had remained out until eleven o'clock at night and the court-room was practically deserted. the prisoner was placed before the bar. we will call him james graham. the clerk put the usual questions and then inquired:

"have you ever been convicted before?"

"no," answered the prisoner in a low voice.

there was a long pause, and then the judge, looking down intently from the bench, said:

"graham, is that the truth?"

"yes, sir," replied the prisoner.

"are you quite sure?" insisted the court.

"yes, sir."

"swear him!" ordered the judge.

the officer started to place the bible in graham's hand, but he refused to take it.

"no, no, i can't!" he whispered. "i can't—i—i—it's no use!" he added.

"when were you convicted?"

"i served six months for petty larceny about five years ago."

"is that all?"

"yes, sir."

"are you sure?"

"yes, sir."

"quite sure? think again."

"yes, sir."

"swear him!"

again the book was placed in his hand and again it was declined.

[pg 253]

"i served three years in charlestown for larceny, and was discharged two months ago."

"is that all?"

"o god! isn't that enough?" suddenly groaned the prisoner, breaking down completely. "no, sir, it isn't all! it's always been the same old story! concord, joliet, elmira, springfield, sing sing, charlestown—yes, six times. twelve years!—i'm a jail bird!"

before rendering a verdict the members of almost every jury take the opportunity in the jury-room to stretch their legs and satisfy their craving to smoke. juries rarely return in less time than it takes to burn a cigar. while this may torture the prisoner it would seem a fairly earned perquisite on the part of his judges. some jurors are instinctively, and a few are actually lawyers. these rarely add much to the general usefulness of the panel. jurymen not infrequently seize the opportunity to display their oratorical ability, since their audience cannot get away and must perforce hear them out. the writer recalls one instance where in a well-known extortion case an enthusiastic talesman made a digest of the speeches of counsel for the defence and for the prosecution and then prepared a long harangue of his own which he committed to memory. when the jury were safely locked into their council chamber this self-sacrificing gentleman arose and began, "in this case the defence claims, thus and so." after he had repeated practically in toto the argument of the defence he got his second wind and continued, "on the other hand, the people assert, thus and so." at the end of about an hour he had reached his own humble views of the case, which he[pg 254] expanded at great length, ending with a peroration in which the great american eagle could be heard screaming all the way into the court-room. the jury, probably out of sheer fatigue, took but a single vote and found the defendant guilty. the orator to this day claims that he "did it."

while the deliberations of the jury are theoretically secret, the rooms in which they are confined are often so located with reference to corridors, retiring rooms, etc., that officers on duty, turnkeys, and other persons are occasionally made involuntary eavesdroppers. it is said that in other and more barbarous times interested parties would lurk near by in order to get an idea of how the wind was blowing. there is a story for which the writer assumes no responsibility that ten or fifteen years ago a noted prosecutor was accustomed to follow the jury out, climb upon a ladder, and listen at the transom to their arguments and comments; and there is also a report, which perhaps is but a fable, that there was a knot-hole in the jury-room of the old "brownstone" building from which the plug was regularly removed to allow of similar surreptitious observations. the rumors which come from the direction of the jury-room are quite as apt to be incorrect as accurate, and neither prosecutor nor prisoner really knows what is the result of the jury's deliberations until the foreman's word ends the suspense.

many strange and amusing stories are told of how certain historic verdicts in criminal cases were reached. perhaps the most famous is that of the trial of the first indictment which followed the robbery of the manhattan bank. the case was[pg 255] tried before judge cowing in the general sessions, and after a speedy, but conclusive, trial the jury retired. a vote, which was immediately taken, showed that they stood eleven to one for conviction. the twelfth juror was obstinate and no progress whatever was made by the others. the situation remained unchanged during the night and up to twelve o'clock of the next day, which happened to be a saturday. at that hour judge cowing sent word that he was going downtown and would not return until two o'clock. in some way the jury got the idea that the judge intended to lock them up until monday if they did not agree. they accordingly asked for five minutes more before the judge left the building. this was granted and at the end of that time they announced that they had agreed. into court they filed.

"have you agreed upon a verdict?" asked the clerk.

"we have," replied the foreman.

"how say you? do you find the defendant guilty or not guilty?"

"not guilty," answered the foreman defiantly. the defendant, who was as guilty a man as ever was brought to the bar of justice, almost collapsed from astonishment, and the judge gave the jury a frank piece of his mind in no uncertain language. rather than suffer any further inconvenience this high-minded jury had simply faced about and voted to acquit.

there are some cases, however, where one strong-minded and able juryman has swung the whole body to his way of thinking after a vote of eleven against him, and this is as true of verdicts of conviction as[pg 256] of acquittal. few jurors, however, can, as a rule, stand out against the assertions and incriminations of their fellows. most of them are easy-going and like to be led by a strong hand. a positive stand taken by a fellow talesman will often bring them to his views when they are really inclined to be in doubt. if the flag is raised they will quickly rally to it, but they will never reach the point where they would be willing to elevate it of their own accord. an experienced and highly intelligent juryman once told the writer that the first thing he always did when the jury had retired, whether he was the foreman or not, was to stand up at the end of the table and say:

"gentlemen, this man is guilty [or innocent, as the case might be]! the sooner we say so the better, but my mind is made up."

in this way he invariably secured at the outset the support and co-operation of a majority of the jury.

in capital cases where the prisoner's life hangs in the balance there will always be found in the first vote a few blank ballots. these are cast, as the expression is, "to provoke discussion." shrewd old jurors, realizing that no man can convince another half so well as that other can convince himself, will often vote for "not guilty" in order to get their fellows worked up to a white heat of intellectual frenzy in the effort to bring them over. there is many a wily odysseus among the variegated personalities of a jury.

"my first jury trial," said one of the judges of the general sessions recently, "occurred when i was a very young man and had just been admitted to the[pg 257] bar. it was my initial appearance in a court of justice. however, i threw out my chest and tried to make the jury think i was an old hand at the business, by objecting to almost every question and taking exceptions by the score. my client was an old woman who had been illegally ejected, or who claimed to have been illegally ejected, by the agent of a tenement house which belonged to mr. w.d. sloane. of course, i don't suppose mr. sloane ever heard of the incident, but i was suing him for damages and put in my case with a great deal of vigor. the lawyer for the defence was a big, good-natured man who did not seem to care very much which way the jury decided the case. the judge charged and the jury retired. they were gone a very long time. at last an officer appeared with a slip of paper. the judge beckoned the lawyer for the other side and myself to the bench and showed us the jury's message.

"'we want a bottle of whiskey and a box of cigars,' it read, and was signed, 'william smith, foreman.'

"'let 'em have them!' remarked the good-natured lawyer. 'i don't blame 'em for being thirsty.'

"'i don't know,' i replied. 'it does not seem to me that whiskey would help them to decide the facts any more clearly!'

"'of course, if mr. —— does not agree to it!' exclaimed the lawyer, 'i have nothing to say!' then he turned away and the judge whispered in my ear:

"'young man, i should advise you to let these refreshments go into the jury-room. you have not had a great deal of experience and probably do not[pg 258] appreciate the effect which a denial of their request may have upon the jurors. take a quiet tip from me and let the whiskey go in.'

"'all right, your honor,' said i. 'i bow to your honor's long acquaintance with men and your experience at the bar—of justice.'

"well, the whiskey and cigars went in, and i could see as the officer brought them through the court-room that the whiskey was the very best king william and the cigars were havana perfectos. i wondered with some misgivings who was paying for them.

"in about an hour the jury filed in flushed and happy and rendered a verdict in favor of mr. sloane. some time afterwards i happened to be in the court-room and learned from the officer that the jury had stood eleven to one in my favor for over three hours. the foreman, the only one against me, had finally remarked that he was thirsty and had offered to treat the rest of the jury. in less than an hour after the refreshments had arrived the other eleven came over and decided that mr. sloane was in the right."

another judge tells of an experience of his when serving upon a jury in ireland. the case over they retired to the jury-room and found that they stood eleven to one for acquittal, but that one happened to be a very complacent old gentleman in a billy-cock hat who, with his chin resting upon the head of a thick bamboo cane, announced defiantly that he was ready to stay there as long as anybody. the hours dragged slowly by, evening drew on, and still the old gentleman obstinately held out. the jurors disposed their weary bodies as best they could along the floor and the hard benches, and prepared to[pg 259] make a night of it. from time to time the old gentleman would contemplatively suck the head of his bamboo cane. finally he fell fast asleep and the cane fell heavily to the floor. then one of the jurors picked it up and found to his surprise that it was hollow and filled with good old irish whiskey. they passed the cane around, relieved it of its contents, and then awoke the owner. slowly he lifted the cane to his mouth, sucked ineffectually for a moment, looked at his watch and then arose with the announcement:

"b'ys! i'm afther changin' me moind!"

a recent trial, donohue vs. the new york, new haven and hartford railroad, illustrates the vagaries of individuals which may seriously interfere with the course of justice. the judge had been particularly careful to elucidate the point of law which the jury were to apply to the facts as they found them. the jury unanimously agreed that the facts were thus and so, but one of their number refused to follow the law as laid down by the court. at first he insisted that the judge had charged differently, but it soon became obvious that this was not the true cause of his indecision.

"well," exclaimed the foreman at last, on the verge of distraction, "should we go back into court and the judge should instruct you that what we say is the law, would you find a verdict then?"

the juryman hesitated and then announced with deliberation:

"no; not until i had consulted my attorney."

a frankly unscrupulous member of the criminal bar tells the following story at his own expense. his client was indicted for murder and on the evi[pg 260]dence apparently guilty. the lawyer's only chance, as he thought, lay in trying to "work it down" to manslaughter, which would get his client off with twenty years' imprisonment. accordingly he told his clerk to become friendly with the jurymen, treat them to drinks, and see what he could do. the clerk reported that he had become very thick with the twelfth juror, an old irishman, who had promised to "hold out for manslaughter." the lawyer told his client, and both ceased to worry about the result, as death no longer stared the prisoner in the face. the jury retired and remained out twenty-three hours. at the end of that time, tired, dishevelled, exasperated, they filed into court and returned a verdict of manslaughter. the lawyer warmly congratulated his client. as the jury were separating the old irishman leaned over to the lawyer and exultantly whispered:

"bedad, i had th' divil av a time av it! elivin o' thim were for lettin' him go entirely!"