The Confessions of Artemas Quibble

"Do I know him?" my partner would cry. "I lunch with him almost every day! Wait a minute, and I'll call him up."

Vigorously ringing the bell attached to the unconnected instrument upon the wall Gottlieb would indulge his fancy in some such dialogue as:

"Hello—hello! Is this Judge Nemo? Oh, hello, Jack, is it you? Yes, it's me—Abe. Say, I want to talk over a little matter with you before I go into court. How about lunch? Sure—any time will suit me. One o'clock? I'll be there. Thanks. So long, old man. See you later!"

The client by virtue of this auricular demonstration of our friendly relations with the bench would be instantly convinced that his success was assured and that Gottlieb & Quibble were cheap at any retainer they might choose to name.

For the most part the routine office work fell to me and Gottlieb attended to the court end of the business. For there was no more adroit or experienced trial attorney in the courts than my little hook-nosed partner. Even down-town attorneys with almost national reputations as corporation lawyers would call him in as associate counsel in important cases in which a criminal element was involved. Thus we frequently secured big fees in what Gottlieb was pleased to call legitimate practice, although I am inclined to believe that our share was small compared with that of the civil lawyers who had retained us. On one occasion where Gottlieb had been thus called in, the regular attorney of record, who happened to be a prominent churchman, came to our office to discuss the fee that should be charged. The client was a rich man who had sued successfully for a divorce.

"How much, Mr. Gottlieb," inquired the attorney, stroking his chin, "do you think would be a fair amount to ask for our services?"

My partner hesitated for a moment and mentally reviewed the length of time of the case—a very simple one—had occupied.

"Do you think five thousand dollars would be too much?" he finally asked with some hesitation.

"Five!" cried the lawyer in astonishment. "It should be twenty thousand—at the least!"

It is not my intention to give a history of the firm of Gottlieb & Quibble, but rather a general description of the work of any criminal law office. Its object is precisely the same as that of the best offices where civil law is practised—that is, to make money out of the client. But inasmuch as the client who seeks the aid of a criminal attorney is usually in dread of losing not merely money but liberty, reputation, and perhaps life as well, he is correspondingly ready to pay generously for any real or fancied service on the part of the lawyers. Thus the fees of a criminal practitioner—when the client has any money—are ridiculously high, and he usually gets sooner or later all that the client has. Indeed, there are three golden rules in the profession, of which the first has already been hinted at—namely, thoroughly terrify your client. Second, find out how much money he has and where it is. Third, get it. The merest duffer can usually succeed in following out the first two of these precepts, but to accomplish the third requires often a master's art. The ability actually to get one's hands on the coin is what differentiates the really great criminal lawyer from his inconspicuous brethren.

The criminal attorney, therefore, whether he be called to see his client at the Tombs or in the police station, or is consulted in his own office, at once informs the latter that he is indeed in a parlous state. He demonstrates to him conclusively that there exist but a few steps between him and the gallows, or at least the State's prison, and that his only hope lies in his procuring at once sufficient money to—first, get out on bail; second, buy off the witnesses; third, "fix" the police; fourth, "square" the judge; and lastly, pay the lawyer. Even where the prisoner has no money himself, his family are usually ready to do what they can to get him off, in order to save themselves from the disgrace of being related to a convict. It is not what may actually happen to your client, but what he thinks may happen, that makes him ready and anxious to give up his money. Thus, the more artistic the practitioner in painting the dire consequences which will result if the family of the offender does not come to his rescue the quicker and larger will be the response. Time also is necessary to enable the ancestral stocking to be grudgingly withdrawn from its hiding-place and its contents disgorged, or to allow the pathetic representations of his nearer relatives to work upon the callous heart of old Uncle John, who once held a city office and has thus plenty of money. The object of the lawyer being to hang on to the client until he has got his money, it follows that if the latter is locked up in jail it is all the better for the lawyer, unless it be expedient to let him out to raise funds. Thus criminal attorneys are not, as a rule, particularly anxious to secure the release of a client from jail. Solitary confinement increases his apprehension and discomfort and renders him more complacent about paying well for liberty. The English king who locked up the money-lender and had one of his teeth drawn out each day until he made the desired loan knew his business. Once the fellow is out of jail—pfft! He is gone, and neither the place nor you know him more. Very likely also he will jump his bail and you will have to make good your bond. One client in jail is worth two at large.

Lawyers exercise much invention in keeping their clients under control. I recall one recent case where a French chauffeur who had but just arrived in this country was arrested for speeding. The most that could happen to him would, in the natural course of events, be a fine of fifteen or twenty dollars. But an imaginative criminal practitioner got hold of him in the police court and drew such a highly colored picture of what might happen to him that the Frenchman stayed in jail without bail under an assumed name, raised some three hundred dollars by means of a draft on Paris, handed it over to his counsel, and finally after a delay of two weeks was tried in Special Sessions, found guilty, and let go on a suspended sentence. He is now looking for the lawyer with a view to doing something to him that will inevitably result in his own permanent incarceration.

Another practical distinction between civil and criminal practitioners is that while the first are concerned for the most part with the law, the second are chiefly occupied with the facts. In civil cases the lawyers spend most of their time in trying to demonstrate that, even assuming their opponents' contentions as to the facts to be true, the law is nevertheless in their own favor. Now, this is a comparatively easy thing, since no one knows what the law in most civil cases is—and it truth it might as well be one way as the other. A noted member of the supreme bench of the United States is reported to have said that when he was chief justice of one of the State courts, and he and his confrères found themselves in a quandary over the law, they were accustomed to send the sergeant- at-arms for what they called the "implements of decision"—a brace of dice and a copper cent. Thus the weightiest matters were decided without difficulty.

Now, the taking of a purse out of a lady's reticule does not present much confusion as a legal proposition. It would be somewhat difficult to persuade a judge or a jury that picking a pocket is not a crime. It is far easier to demonstrate that the pocket was not picked at all. This is generally only a question of money. Witnesses can easily be secured to swear either that the lady had no reticule, or that if she had a reticule it contained no purse, or that some person other than the defendant took the purse, or that she herself dropped it, or that even if the prisoner took it he had no criminal intent in so doing, since he observed that it was about to slip from the receptacle in which it was contained and intended but to return it to her. Lastly, if put to it, that in fact the owner was no lady, and therefore unworthy of credence.

Few persons realize how difficult it is for an outsider, such as an ordinary juryman, to decide an issue of fact. A flat denial is worth a hundred ingenious defences in which the act is admitted but the attempt is made to explain it away. It is this that gives the jury so much trouble in criminal cases. For example, in the case of the pickpocket the lawyers and the judge may know that the complaining witness is a worthy woman, the respectable mother of a family, and that the defendant is a rascal. But each comes before the jury presumably of equal innocence. She says he did, he says he didn't. The case must be proven beyond a reasonable doubt. Generally the defendant's word, so far as the jury can see, is as good as his accuser's. If there are other witnesses it is usually not difficult, and certainly not impossible, to show that they have poor eyesight, bad memories, or are undesirable citizens in general. The criminal lawyer learns in his cradle never to admit anything. By getting constant adjournments he wears out the People's witnesses, induces others to stay away, and when the case finally comes to trial has only the naked accusation of the complainant to disprove. Or, to put it in more technically correct fashion, the complainant has only his own word wherewith to establish his case beyond a reasonable doubt. A bold contradiction is often so startling that it throws confusion into the enemy's camp.

I once defended a worthy gentleman named Cohen on a charge of perjury, alleged to have been committed by him in a civil case in which he, as defendant, denied that he had ever ordered a set of stable plans from a certain architect. The latter was a young man of very small practice who had an office but no clerks or draughtsmen. He certainly believed with the utmost honesty that my client had come to his office, engaged him to design a stable, and approved an elaborate set of plans that he had drawn. When it came to paying for them Mr. Cohen declined. The architect brought suit, and at the trial swore to the dates and places of the interviews between Cohen and himself, and to all the surrounding circumstances and details connected with the execution of the plans in question. His lawyer expected that the defendant would interpose the defense that the plans were inferior, defective, or worthless. Not at all! Mr. Cohen swore that he had never ordered the plans and, in fact, had never seen the architect in his life! He alleged that until the suit was brought he had never even heard of him, and that either the architect was demented or a liar, or else some other Cohen had given the order. The architect and his lawyer were thunderstruck, but they had no witnesses to corroborate their contentions, since no one had ever seen Cohen in the other's office. The jury disagreed and the architect in some way secured Cohen's indictment for perjury. But during the criminal trial, at which I defended him, Mr. Cohen calmly persisted in his denial that he had ever enjoyed the honor of the architect's acquaintance, and after two prosecutions, in each of which the jury hopelessly disagreed, the indictments against him were dismissed. From this it may easily be inferred that no fact is too patent to be denied. Frequently the more heroic the denial the greater its verisimilitude to truth. The jury feel that no prisoner would deny a fact that it would be much easier to explain away—and believe him.

I once represented an Italian called the King of Mulberry Street, who was charged with having deliberately shot in the head and killed a respectable dealer in olive-oil against whom he held no grudge whatsoever. The King was just an egotistic little man who liked notoriety and admiration. He was wont to refer to himself simply as "The Bravest Man," without reference to time or place—just "The Bravest Man." He was accustomed to demonstrate his bravery by shooting inoffensive people whenever the idea seized him. He never killed anybody save quiet and law-abiding fellow citizens who made no resistance, and the method he selected was to shoot them through the head. He seemed to feel that it was essential to his dignity thus to execute at least one human being every six months, and the extraordinary feature of his history was that he had never been convicted.

The case that I was called upon to defend was this: Not having killed anybody for nearly a year and fearing to jeopardize his dual title of King of Mulberry Street and The Bravest Man, he put a forty-four calibre pistol in his pocket, donned his Sunday clothes and took a walk. The thoroughfare was crowded, the day bright and fair, the time twelve o'clock noon. Presently the oil merchant approached and The King, first glancing about him to make sure that he had a "gallery," went up to him, placed the pistol at his head and fired. He was immediately arrested and indicted for murder.

Now, twenty witnesses had seen him fire the fatal shot. Yet there was not the slightest reason in the world why he should have done such a thing. Upon the trial my client insisted on simply denying that he had done anything of the kind. I had naturally assumed that he would either claim that the shooting had been accidental or that he had fired in self-defense, after he had first been attacked by the deceased. But no—he had had no pistol, did not know the man, and had not killed him. Why should he have killed him? he inquired. No one could answer the question, least of all the jury. The twenty witnesses were positive that he had done so, but he was equally positive that he had not. No one could offer the slightest explanation of the deed—if it had in fact taken place. The jury puzzled over the case for hours, at one time, I am informed, being on the point of acquitting the prisoner for lack of proof of any motive. They reasoned, with perfect logic, that it was almost if not quite as improbable that the defendant should in broad daylight on a public street have shot down a man against whom he had not the slightest grudge as that twenty commonplace citizens should be mistaken as to what they had seen. Whether they were aided in reaching a verdict by "the implements of decision" I do not know, but in the end they found my client guilty and in due course he paid the penalty, as many another king has done, upon the scaffold. The plain fact was that The King was a "bravo," who took a childish and vain pride in killing people. He killed for the love of killing, or rather for the egotistic satisfaction of being talked of as a killer. At any rate, there are many like him. While his defence was unsuccessful, he came near enough to escaping to point out the value of a bold denial in a criminal case.

Our clients consisted, for the most part, of three clearly defined classes of persons: Criminals, their victims, and persons involved in marital or quasi-marital difficulties. These last furnished by far the most interesting quota of our business, and, did not professional confidence seal my lips, I could recount numerous entertaining anecdotes concerning some of what are usually regarded as New York's most respectable, not to say straight-laced, households. A family skeleton is the criminal lawyer's strongest ally. Once you can locate him and drag him forth you have but to rattle his bones ever so little and the paternal bank account is at your mercy. New York is prolific of skeletons of this generic character, and Gottlieb had a magnificent collection. When naught else was doing we used to stir them up and revive business. Over this feature of the firm's activities I feel obliged, however, from a natural feeling of delicacy, to draw a veil. Our function usually consisted in offering to see to it that a certain proposed action, based on certain injudicious letters, should be discontinued upon the payment of a certain specified sum of money. These sums ranged in amount from five to twenty thousand dollars, of which we retained only one-half. I understand that some lawyers make more than this percentage, but for such I have only contempt. A member of a learned and honorable profession should be scrupulous in his conduct, and to keep for one's self more than half the money recovered for a client seems to me to be bordering on the unethical. But perhaps I am hypersqueamish.

Of course we had a great deal of the ordinary "knock-down-and-drag- out" variety of assault, robbery, theft, and homicide cases. Most of these our clerks attended to, but the murder cases Gottlieb defended in person, and in this he was so singularly successful that there was hardly a celebrated trial in which he was not retained in some capacity or other. For he was an adept in all those little arts that make a jury feel well disposed toward a lawyer, and as a word artist he was unsurpassed. Gottlieb could, I believe, have wrung tears from a lump of pig iron, and his own capacity to open the floodgates of emotion was phenomenal. He had that rare and priceless gift shared by some members of the theatrical profession of being able to shed real tears at will. His sobs and groans were truly heart-rending. This, as might be expected, rendered him peculiarly telling in his appeals to the jury, and he could frequently set the entire panel snivelling and wiping their eyes as he pictured the deserted home, the grief-stricken wife, and the starving children of the man whom they were asked to convict. These unfortunate wives and children were an important scenic feature in our defence, and if the prisoner was unmarried Gottlieb had little difficulty in supplying the omission due to such improvidence. Some buxom young woman with a child at the breast and another toddling by her side could generally be induced to come to court for a few hours for as many dollars. They were always seated beside the prisoner, but Gottlieb was scrupulous to avoid any statement that they belonged to the client. If the jury chose to infer as much that was not our fault. It was magnificent to hear (from the wings) Gottlieb sum up a case, his hand, in which was concealed a pin, caressing the youngest little one.

"Think, gentlemen, of the responsibility that rests upon you in rendering this woman a widow and depriving this poor innocent babe of a father's protecting love!"

Here Gottlieb would hiccough out a sob, sprinkle a few tears upon the counsel table, and gently thrust the pin into the infant's anatomy. Sob from Gottlieb—opportune wail from the baby. Verdict —not guilty.

There was a certain class of confidence men for whom we soon became the regular attorneys. They were a perennial source of delight as well as profit, and much of my time was given up to the drafting of circulars and advertisements for the sale of stock in such form that, whereas they contained no actual misstatement of an existing fact, they nevertheless were calculated to stimulate in the most casual reader an irresistible desire to sell all that he had and invest therein.

Originally the dealers in valueless securities did not take the trouble to purchase any properties but merely sold their stock and decamped with the proceeds. Of course such conduct was most ill- advised and unnecessary. It was obviously criminal to sell stock in a concern that has no existence, and several of my clients having been convicted of grand larceny, for this reason I took it upon myself to advise the others actually to purchase lands, mines, or other property and issue their stock against it. In this way their business became absolutely legitimate—as strictly honest and within the law as any of the stock-jobbing concerns of the financial district. To be sure, the mine need not be more than the mere beginning of a shaft, if even that; the oil-well might have ceased to flow; the timber land might be only an acre or so in extent; but at any rate they existed. Their value was immaterial, since the intending purchaser was not informed in the advertisement as to the amount of gold, silver, or copper mined in any specific period, the number of gallons of oil per minute that flowed from the well, or the precise locality of the timber forests, but merely as to the glorious future in store for all who subscribed for the stock.

This vital distinction has always existed in civil as well as criminal law between what is fraud and what is legitimate encouragement to the buyer. To tell the prospective vendee of your old gray mare that she is the finest horse in the county is not fraud even if she is the veriest scarecrow, for it merely represents your opinion —perhaps colored in part by your desire to sell—and is not a matter of demonstrable fact. To assure him, however, that she has never run away, had blind staggers, or spring halt, when these assertions are not true, is "a false statement as to a past or existing fact," and as such constitutes a fraud—if he buys your horse.

Now, it frequently has happened in my experience that gentlemen desiring to find purchasers for securities or property of little value have so carelessly mingled statements of fact with opinions, laudations, and prophecies as to their goods, that juries have said that they were guilty of fraud in so doing. Thus the lawyer becomes at every turn indispensable to the business man. The following circular was drawn up for one of our clients and is an excellent example of a perfectly harmless and legal advertisement that might easily become fraudulent. We will suppose that the corporation owned one-quarter of an acre of wood lot about ten miles from a region where copper was being mined.

"SAWHIDE COPPERS "YOUR LAST CHANCE TO BUY THIS STOCK AT PRESENT FIGURES! "The company's lands are located near the heart of the copper district, not far from properties now paying from forty to sixty per cent. a year. There is no reason in the world why Sawhide should not do as well if not better. With immense quantities of ore just beneath the surface, when our new smelter is completed Sawhide will undoubtedly prove one of the best dividend payers in the country! As the Buggenheims and other well-known financiers are largely interested in the stock, it is only a question of time before it will be marked up out of sight. The properties have great surface value and are rolling in timber and mineral wealth."

This is a fair example of a perfectly safe variety of advertisement that does not commit the author to anything. As long as there is a piece of land somewhere and an actual incorporated company the stock of which, however valueless, is being offered for sale, the mere fact that the writer indulges himself in rosy prophecies does not endanger him so far as the criminal law is concerned. It is only when he foolishly—and usually quite as unconsciously—makes some definite allegation, such as, for instance, that the company "owns six hundred acres of fully developed mining property," or has "a smelter in actual operation on the ground," or "has earned sixty-five per cent. on its capital in the past year," that the financier runs the slightest risk. It may be that a purchaser would find it so difficult to prove the falsity of any of the statements upon which he had relied in purchasing the stock that the vendor would practically be immune, but in these days of muck- raking and of an hysterical public conscience prosecutors sometimes go to the most absurd lengths and spend ridiculous sums of money out of the county treasuries to send promoters to jail.

They are apt to have a hard time of it, however. I recall one scheme in which a client of mine was interested, involving the floatation of about a hundred thousand dollars' worth of railroad stock. The circulars, printed by a famous engraver and stationer, were twenty pages in length and contained the minutest description of the company's board of directors, rolling stock, capitalization, bond issues, interests in other railroads, government grants of land, and the like. They were embellished with beautiful photographs of deep cuts, suspension-bridges, snow-sheds, railroad-yards, and round-houses. The promoter did a mail-order business and sold the stock by the bagful to elevator men, trained nurses, policemen, porters, clerks, and servant girls.

After he had salted away about forty thousand dollars some of the purchasers began to get anxious about their dividends. None were forthcoming, and as the promoter was inclined to be indefinite as to future prospects he was presently arrested. But when the case came to trial I pointed out a fact that, strange as it may seem, practically no one of the multitude of stockholders had previously noticed, namely, that the circulars made no actual statement as to where the railroad was located. By inference it might well have been supposed to be somewhere in Canada, but there was no such fact clearly alleged. Of course it was impossible for the prosecutor to prove that my client did not own a railroad somewhere in the world and the indictment had to be dismissed. Negations are extremely hard to establish, and therein lies the promoter's safety. If he sticks to generalizations, no matter how they glitter, he is immune. Had my railroad promoter inserted a single word descriptive of the location of his franchise or his terminals he would now be in Sing Sing instead of owning a steam yacht and spending his winters in Florida.

From the foregoing the reader will observe that the first-class criminal lawyer by no means devotes his time to defending mere burglars and "strong-arm" men. The élite of the profession do as gilt-edged an office practice as the most dignified corporation attorneys. Indeed, in many respects their work is strictly identical.

CHAPTER V

The firm of Gottlieb & Quibble had not been long established before —quite by chance—a new vista of opportunity opened before us. My partner had a wretched client who, not unlike many others, would go to more pains and trouble to steal a dollar than it would have taken him to earn twenty. This, I have noticed, is a general peculiarity of lawbreakers. The man's name was McDuff and my partner had defended him on several occasions and had got him off, with the result that he was always hanging about the office and asking if this and that were "within the law." One fine day he was arrested on the charge of having obtained money by false premises in an unique manner.

It appeared that he had learned through a certain bar-tender that one Jones, a patron of the place, had but recently come into a legacy of a couple of hundred dollars and, in connection therewith, had imbibed so freely that he had become involved in a fist fight with a gentleman by the name of Holahan and had done the latter considerable facial damage. McDuff pondered upon these facts for some time over his beer and then set out to find Jones—not a difficult task, as the legatee was making a round of all the near- by saloons and endeavoring to drink up his good fortune as rapidly as possible. Overtaking him in a side street McDuff grasped him roughly by the shoulder.

"Look here, Jones," says he, pretending to be an officer; "I have a warrant for your arrest for committing a battery upon Thomas Holahan. You must come along with me to the station-house."

"What! For me!" cries Jones in an agony of dismay. "Sure, I did nothing to the man. You're not going to lock me up for that!"

"It's my unpleasant duty," answers McDuff. "An officer has no choice in the matter. You must step along."

"Come, come!" replies Jones, pulling his money from his pocket.

"Here's a hundred and fifty dollars. Say you couldn't find me!"

"I would be taking a great risk," responds the supposed officer.

"Have you no more than that?"

"I have my gold watch and chain," returned Jones. "You can have them and welcome—only let me go!"

The bargain was struck then and there and the transfer from Jones' pockets to those of McDuff effected. Unfortunately, however, Jones next day discovered that Holahan harbored no ill-will against him and that the supposed officer was nothing of the kind. Rising in his wrath, he in turn procured a warrant for McDuff and caused his arrest and indictment. The trial came off and despite Gottlieb's best efforts his client was convicted by the jury of stealing Jones' watch, chain, and money by falsely representing himself to be an officer of the law. The case went on appeal to the Supreme Court, which affirmed the conviction, and there seemed no escape for McDuff from a term in prison.

One evening Gottlieb and I got talking about the case among other things.

"How is it," said I, "that the criminal law will step in and give a man back his money when, under precisely the same circumstances, the civil law will let him whistle?"

"What mean you by that?" asked my partner.

"Why," answered I, "the civil law will not settle disputes between thieves, it will not enforce an equitable division of stolen property, and it will not compel rogues to keep a dishonest contract between themselves. Now this fellow, Jones, it seems to me, was almost as bad as your friend McDuff. He tried to induce a man he thought was a sworn officer of the law to violate his oath and disregard his duty. Why should the criminal law do anything for him? Why should it hand him back his money as if he were an innocent and honest man?"

"It is an ingenious argument," replied Gottlieb, scratching his ear; "and yet it is poppycock for all that. The criminal law is to punish criminals. According to your reasoning, two wrongs would make a right and two thieves one honest man. Would you let McDuff go unpunished simply because he was clever enough to induce Jones to try to break the law as well as himself? Why, any judge would laugh you out of court on such a proposition."

"But," I retorted, "surely, if I gave you a hundred dollars for the purpose of bribing a judge and you failed to accomplish your purpose, no court would assist me to recover the money. 'Twould be against public policy and contra bonos mores."