Chapter V: 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 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 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:

[Footnote 1: New York Penal Code, Section 276.]

[Footnote 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.]

[Footnote 3: 46 New York 470.]

[Footnote 4: 47 App. Div. 283.]

[Footnote 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.)]

[Footnote 6: Cf. in general, references given _infra_, p. 339.]

[Footnote 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."]