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1、【国外文学】The Prisoner at the BarPREFACE TO THE SECOND EDITIONThe favorable reception accorded to the Prisoner at the Bar, not only in the United States but in England, and the fact that it has won a place in several colleges and law schools as a reference book, and in some instances as a sort of elemen
2、tary text-book upon criminal procedure, have resulted in a demand for a new edition. When the book was written the authors sole intention was to present in readable form a popular account of the administration of criminal justice. Upon its publication he discovered to his surprise that it was the on
3、ly book of its exact character in the English language or perhaps in any other. Reviewers pointed out that whereas there were annotated text-books of criminal procedure and isolated articles on special topics, most of them relating to the jury system, there was in existence no other sketch of crimin
4、al justice as a whole, from arrest to conviction, based upon either actual experience or hearsay.This new edition has been indexed and is supplied with cross-references to other works on allied subjects. A chapter has been added upon Insanity and the Law, and such statistics as the book contains hav
5、e been brought down to date. It is satisfactory to add that these show a greatly increased efficiency in the jury system in criminal cases in New York County, and that the tabulations of an eight years experience as a prosecutor only serve to confirm the conclusions set forth in the first edition.Th
6、e author desires to express his thanks to Prof. John H. Wigmore, of the Northwestern University Law School, for his many kind suggestions and flattering references to this book in his masterly work upon the law of evidence; to Augustin Derby, Esq., of the New York bar, who most unselfishly gave much
7、 time to the examination of references, and voluntarily undertook the ungrateful task of compiling the index; and to those many others who, by comment or appreciation, have made a second edition necessary.Bar Harbor, Me.,Sept. 1, 1908.PREFACE TO THE FIRST EDITIONThe prisoner at the bar is a figure l
8、ittle known to most of us. The newspapers keep us steadily informed as to the doings of all sorts of criminals up to the time of their capture, and prison literature is abundant, but just how the criminal becomes a convict is not a matter of common knowledge. This, however, does not prevent the ordi
9、nary citizen from expressing pronounced and, frequently, vociferous opinions upon our methods of administering criminal justice, in the same way that he stands ready at any time to criticise the Darwinian theory, free trade or foreign missions. Full knowledge of any subject is inevitably an impedime
10、nt to forcible asseveration. Generalities are easy to formulate and difficult to disprove. The man who sits with his feet up and his chair tilted back in the drummers hotel will inform you that there is no such thing as criminal justice and that the whole judiciary, state and federal, is owned or ca
11、n be bought; you yourself doubtless believe that the jury system is a failure and successfully evade service upon it; while your neighbor is firmly convinced that prosecutors secure their positions by reason of their similarity to bloodhounds and retain them by virtue of the same token.The only info
12、rmation available to most people on this exceedingly important subject is that offered by the press, and the press (save in the case of sensational murder trials) usually confines itself to dramatic accounts of the arrest of the more picturesque sort of criminals, with lurid descriptions of their of
13、fences. The report or story concludes with the statement that Detective-Sergeant Smith immediately arraigned his prisoner (Robinson) before Magistrate Jones, who committed the latter to jail and adjourned the hearing until the following Tuesday. This ends the matter, and the grewsome or ingenious de
14、tails of the crime having been served up to satisfy the public appetite, and the offender having been locked up, there is nothing, from the reporters point of view, any longer in the story. We never hear of Robinson again unless he happens to be the president of a bank or a degenerate millionaire. H
15、e is disposed of, as they say in the criminal reports, without exciting anybodys interest, and his conviction or acquittal is not attended by newspaper comment.If on the other hand the case be one of sensational interest we are treated daily to long histories of the defendant and his family, illustr
16、ated by grotesque reproductions from the ancestral photograph album. We become familiar with what he eats and drinks, the number of cigars he smokes and his favorite actor and author. The case consumes months in preparation and its trial occupies weeks. A battalion of special talesmen marches to the
17、 court house,the standing army of the gibbet, as one of my professional brethren (on the other side of the bar) calls them. As each of the twelve is chosen his physiognomy appears on the front page of an evening edition, a tear dropping from his eye or his jaws locked in grim determination, in accor
18、dance with the sentiments of the editor or the policy of the owner. Then follows a pictorial procession of witnesses. The prosecutor makes a full-page address 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
19、letters.Murderer! hisses a magenta prosecutor, in characters of vermilion.Finally the whole performance comes to an end without anybody having much of an idea of what has actually taken place, and leaving on the public mind an entirely false and distorted conception of what a criminal trial is like.
20、The object of this book is to correct the very general erroneous impression as to certain phases of criminal justice, and to give a concrete idea of its actual administration in large cities in ordinary cases,cases quite as important to the defendants and to the public as those which attract widespr
21、ead attention.The millionaire embezzler and the pickpocket are tried before the same judge and the same jury, and the same system suffices to determine the guilt or innocence of the boy who has broken into a cigar store and the actress who has murdered her lover. It is in crowded cities, like New Yo
22、rk, containing an excessive foreign-born population, that the system meets with its severest test, and if tried and not found wanting under these conditions it can fairly be said to have demonstrated its practical efficiency and stability. Has the jury system broken down? Are prosecutors habitually
23、vindictive and over-zealous? It is the hope of the writer that the chapters which follow may afford some data to assist the reader in formulating an intelligent opinion upon these and kindred subjects. It is needless to say that no attempt is made to discuss police corruption, the increase or decrea
24、se of crime, or penology in general, and the writer has confined himself strictly to that period of the criminals history described in the title as AT THE BAR.To my official chief, William Travers Jerome, and to my associates, Charles Cooper Nott, Charles Albert Perkins, and Nathan A. Smyth, I desir
25、e to acknowledge my gratitude for their advice and assistance; to my friend, Leonard E. Opdycke, who suggested the collection and correlating of these chapters, I wish to express my thanks for his constant interest and encouragement; but my debt to these is naught compared to that which I owe to her
26、 to whom this book is dedicated, who, with unsparing pains, has read, re-read and revised these chapters in manuscript, galley and page and who has united the functions of critic, censor and collaborator with a patience, good humor, and discretion which make writing a joy and proof-reading a vacatio
27、n.Arthur Train.Bar Harbor, Me.,Sept. 1, 1906.INTRODUCTIONBy Prof. John H. Wigmore,Dean of the Law School of Northwestern University.Mr. Trains book, The Prisoner at the Bar, as an entertaining and vivid picture of the criminal procedure of to-day, and a repertory of practical experience and serious
28、discussion of present-day problems in the administration of justice, is, in my opinion, both unique and invaluable. I know of no other book which so satisfyingly fills an important but empty place in a modern field. At one extreme stand the scientific psycho-criminologists, usefully investigating an
29、d reflecting, but commonly severed from the practical treatment of any branch of the subject until the prison doors are reached. At another extreme are the professional lawyers, skilled in the technique of present procedure, but too much tied by precedent to take anything but a narrow, backward-look
30、ing view. Off in a third corner are the economists, sociologists, physicians, and serious citizens in general, who notice that some things are going wrong, but have no accurate conception of what is actually seen and done every day in courts of justice; these good people run the risk of favoring imp
31、racticable fads or impossible theories.Pg xviiiNow comes Mr. Trains book, casting in the centre of the field an illumination useful to all parties. It enlightens the serious citizen as to the actual experiences of our criminal justice, and shows him the inexorable facts that must be reckoned with in
32、 any new proposals. The professional lawyer is stimulated to think over the large tendencies involved in his daily work, to realize that all is not necessarily for the best, and to join and help with his skill. The scientific criminologist is warned against trusting too much to the cobwebs of his id
33、eal theories, or adhering too implicitly to the Lombrosan school or other foreign propaganda, and is forced to keep in mind a living picture of the practical needs of American justice.I do not hesitate to say that every thoughtful American citizen ought to know all the things that are told in this b
34、ook; and if he did, and as soon as he did, we might then begin to work with encouragement to accomplish in a fashion truly practical as well as scientific the needed improvements in our criminal justice. Such effort is likely to be hopeless until people come to realize what the facts are. Judging by
35、 my own case, I feel that most people will never really know and appreciate the facts unless they read Mr. Trains book.CHAPTER IWHAT IS CRIME?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
36、 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 repre
37、sents 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
38、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 bulls-eye to represent those crimes which are actually punished, one gets an excellent idea of how infinitely small a number of t
39、hese serve to keep the whole social fabric in order and sustain the majesty of the law. But the inference might naturally be drawn that whateverPg 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 s
40、ense crimes are always wrongs or, at least, wrong, but only in the sense of being infractions of law are they always wrongs or wrong.picThe 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
41、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 uniPg 3ve
42、rsally 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
43、 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 pun
44、ishes 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, th
45、e 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 obs
46、erved 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 exa
47、mple, a man who chastises the foul slanderer of a young womans character may have technically committed an assault of high degree, yet if he does so in the proper spirit, in a suitable place, andPg 4 makes the offender smart sufficiently, he deserves the thanks and congratulations of all decent men
48、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
49、 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 gre