University of Virginia Library

Topic 2. ISOLATED INFLUENCES.

Section 91. (a) Habit.

Habit may be of considerable importance in criminal law. We have, first of all, to know how far we ourselves are influenced in our thinking and acting by habit; then it is important, in judging the testimony of witnesses, to know whether and how far the witness behaved according to his habits. For by means of this knowledge we may be able to see the likelihood of many a thing that might have otherwise seemed improbable. Finally, we may be able properly to estimate many an excuse offered by a defendant through considering his habits, especially when we are dealing with events that are supposed to have occurred under stupefaction, absolute intoxication, distraction, etc.[1] Hume, indeed, has assigned to habit the maximum of significance; his whole system depends upon the use of habit as a principle of explanation. He shows that the essence of all our inferences with regard to facts relates to the principle of causation, and the foundation of all our beliefs in causation is experience, while the foundation of inference from experience is habit. As a matter of fact, it is strange how often an obscure event becomes suddenly clear by an inquiry into the possibility of habit as its cause. Even everything we call fashion, custom, presumption, is at bottom nothing more than habit, or explicable by habit. All new fashions in clothes, in usages, etc., are disliked until one becomes habituated to them, and custom and morality must attach themselves to the iron law of habit. What would my grandmother have said of a woman whom she might have seen happily bicycling through the streets! How every German citizen crosses himself when he sees French sea-bathing! And if we had no idea of a ball among the four hundred what should we say if we heard that in the evening men meet half-naked women, embrace them vigorously, pull them

round, and bob and stamp through the hall with disgusting noise until they must stop, pouring perspiration, gasping for breath? But because we are accustomed to it, we are satisfied with it. To see what influence habit has on our views of this subject, just close your ears tightly at some ball and watch the dancers. As soon as you stop hearing the music you think you are in a lunatic asylum. Indeed, you do not need to select such a really foolish case. Helmholtz suggests looking at a man walking in the distance, through the large end of a telescope. What extraordinary humping and rocking of the body the passer-by exhibits! There are any number of such examples, and if we inquire concerning the permissibility of certain events we simply carry the question of habit into the field of conduct. Hunting harmless animals, vivisection, the execution of back-breaking tricks, ballets, and numerous other things, will seem to us shocking, inconceivable, disgusting, if we are not habituated to them. What here requires thought is the fact that we criminalists often judge situations we do not know. When the peasant, the unskilled laborer, or the craftsman, does anything, we know only superficially the deed's nature and real status. We have, as a rule, no knowledge of the perpetrator's habits, and when we regard some one of his actions as most reprehensible,—quarrel or insult or maltreatment of his wife or children—he responds to us with a most astounded expression. He is not habituated to anything else, and we do not teach him a better way by punishing him.

Questions of this sort, however, deal with the generality of human nature, and do not directly concern us. But directly we are required to make a correct judgment of testimony concerning habit, they will help us to more just interpretations and will reduce the number of crass contradictions. This is so because many an assertion will seem probable when the witness shows that the thing described was habitual. No definite boundary can be drawn between skill and habit, and we may, perhaps, say rightly, that skill is possible only where habit exists, and habit is present where a certain amount of skill has been attained. Skill, generally, is the capacity of speedy habituation. But a distinction must be drawn. Habit makes actions easy. Habituation makes them necessary. This is most obvious in cases of bodily skill,—riding, swimming, skating, cycling,— everything in which habit and skill can not be separated, and with regard to which we can not see why we and other untrained people can not immediately do the same thing. And when we can do it, we do it without thinking, as if half asleep. Such action is not

skilled, but habitual, i. e., a part of it is determined by the body itself without the especial guidance of the mind.

We find the hunter's power to see so many animals, tracks, etc., inconceivable. When, e. g., we have once properly mastered the principle of a quite complicated crystal, we cannot understand why we had not done so before. We feel in the same way with regard to an unclear drawing, a new road, some bodily activity, etc. Anybody who has not acquired the habit might have to take all day to learn the business of dressing and undressing himself. And how difficult it is just to walk, a thing we do unconsciously, is confirmed by the mechanic who wants to construct a walking figure.

That all people are equally subject to habit, is not asserted. The thing is a matter of disposition, in the sense of the recurrence of past ideas or tendencies. We must assume that an inclination evinced by idea A makes possible ideas a', a", a"'. Habits may develop according to these dispositions, but the knowledge of the conditions of this development we do not yet possess. Nevertheless, we tend to assume that the famous historian X and the famous Countess Y will not get the habit of drinking or opium-smoking— but in this case our assumption is deduced from their circumstances, and not from their personality. Hence, it is difficult to say with certainty that a person is incapable of acquiring this or that habit. So that it is of importance, when the question arises, to discover the existence of implied habits whenever these are asserted in the face of apparently contradictory conditions. There is a certain presumption for the correctness of the implication, when, e. g., the practiced physician asserts that he counted the pulse for a minute without a watch, or when the merchant accurately estimates the weight of goods within a few grams, etc. But it will be just as well to test the assertion, since, without this test, the possibility of error is still great.

Somebody asserts, e. g., that he had been distracted and had paid no attention to what two persons close to him had said. Suddenly he began to take notice and found himself able to recapitulate all their remarks. Or again, a musician, who is almost altogether deaf, says that he is so accustomed to music that in spite of his deafness he is able to hear the smallest discord in the orchestra. Yet again, we hear of insignificant, hardly controllable habits that become accidentally significant in a criminal case. Thus the crime of arson was observed by the firebrand's neighbor, who could have seen the action through the window, only if he had leaned far out

of it. When he was asked what he wanted to see in the cold winter night, he replied, that he had the habit daily of spitting out of the window just before going to bed. Another, who was surprised in his sleep by an entering thief, had heavily wounded the latter with a great brush, "because he happened to have had it in his hand." The happening was due to his habit of being unable to fall asleep without a brush in his hand. If such habits are demonstrable facts they serve to explain otherwise unexplainable events.

They are, however, the more difficult to establish, because they occur mainly in isolated people—old bachelors and old maids— so that their confirmation by others is rare. On the other hand, every one of us knows habits of his own or of his friends which would not be believed when cited, and which would be very difficult to prove when the need arose. The influence of habit on indifferent matters can be shown by numerous examples. There is Kant's citation, that if anybody happened to send his doctor nine ducats the latter would have to believe that the messenger had stolen the tenth. If you give a bride most beautiful linen, but only eleven pieces, she will weep. Give her thirteen pieces, and she will certainly throw one of them away. If you keep these deep-rooted habits in mind, you may possibly say that they must have had a definite, determinative, and alternative influence on body and mind. For example, from time immemorial mankind has taken medications at definite intervals, e. g., every hour, every two hours, etc.; hence, a powder ordered every seventy-seven minutes will cause us complete surprise. But by what authority does the body require exactly these quantities of time or weight? Or again, our lectures, private or public, so and so much time? Of course it would be inconvenient if professors lectured only 52 minutes, yet how much difficulty must not the mind have met in becoming habituated to exactly 60 minutes of instruction! This habituation has been going on for a long time, and now children, like nations, regard the new in the light of the old, so that the old, especially when it is fixed by language, becomes the mind's instrument for the control of the new. Indeed we often stick linguistically to old things, although they have been long superannuated.

There is the characteristic state of mind which might be called the refraction of an idea by the presence of another idea. An example is the habit of saying, "Unprepared, as I have—" before beginning a speech. The speaker means to say that he has not prepared himself, but, as he really has prepared himself, both expressions come out

together. This habitual concurrence of the real thought is of importance, and offers, frequently, the opportunity of correcting what is said by what is thought. This process is similar to that in which a gesture contradicts a statement. We often hear: "I had to take it because it was right there." This assertion indicates theft through need, and at the same time, theft through opportunity. Or again, we hear: "We had not agreed, before"—this assertion denies agreement and can indicate merely, because of the added "before," that the agreement was not of already longstanding. Still again, we hear, "When we fell to the floor, I defended myself, and struck down at him." Here what is asserted is self-defense, and what is admitted is that the enemy was underneath the speaker. Such refractions of thought occur frequently and are very important, particularly in witnesses who exaggerate or do not tell the whole truth. They are, however, rarely noticed because they require accurate observation of each word and that requires time, and our time has no time.

Section 92. (b) Heredity.[1]

However important the question of heredity may be to lawyers psychologically, its application to legal needs is impossible. It would require, on the one hand, the study of all the literature concerning it, together with the particular teachings of Darwin and his disciples, and of Lombroso and his. The criminal-psychological study of it has not yet been established. The unfounded, adventurous, and arbitrary assertions of the Lombrosists have been contradicted, especially through the efforts of German investigators. But others, like Debierre in Lille, Sernoff in Moscow, Taine, Drill, Marchand have also had occasion to controvert the Italian positivists. At the same time, the problem of heredity is not dead, and will not die. This is being shown particularly in the retort of Marchand concerning the examinations he made with M. E. Koslow, in the asylum for juvenile offenders founded by the St. Petersburg Anthropological Society. Between Buckle, who absolutely denies heredity, and the latest of the modern doctrines, there are a number of intermediate views, one of which may possibly be true. There is an enormous literature which every criminalist should study.[2]

Nevertheless, this literature can tell us nothing about the legitimacy of the premise of heredity. Every educated man still believes Darwin's doctrines, and the new theories that seek to emancipate themselves from it do so only by pushing them out of the big front door, and insinuating them through the little back door. But according to Bois-Reymond Darwinism is only the principle of the hereditary maintenance of the child's variation from its parents. Everybody knows of real inherited characters, and many examples of it are cited. According to Ribot, suicide is hereditary; according to Despine, kleptomania; according to Lucas, vigorous sexuality; according to Darwin, hand-writing, etc. Our personal acquaintances show the inheritance of features, figure, habits, intellectual properties, particularly cleverness, such as, sense of space and time, capacity for orientation, interests, diseases, etc. Even ideas have their ancestors like men, and we learn from the study of animals how instincts, capacities, even acquired ones, are progressively inherited. And yet we refuse to believe in the congenital criminal! But the contradiction is only apparent.

A study of the works of Darwin, Weismann, DeVries, etc., shows us indubitably that no authority asserts the inheritance of great alterations appearing for the first time in an individual. And as to the inheritance of acquired characteristics, some authorities assert this to be impossible.

Until Darwin the old law of species demanded that definite traits of a species should not change through however long a period. The Darwinian principle indicates the inheritance of minute variations, intensified by sexual selection, and, in the course of time, developed into great variations. Now nobody will deny that the real criminal is different from the majority of other people. That this difference is great and essential, is inferred from the circumstance that a habit a single characteristic, an unhappy inclination, etc., does not constitute a criminal. If a man is a thief it will not be asserted that he is otherwise like decent people, varying only in the accidental inclination to theft. We know that, besides the inclination to theft, we may assign him a dislike for honest work, lack of moral power, indifference to the laws of honor when caught, the lack of real religion,—in short, the inclination to theft must be combined with a large number of very characteristic qualities in order to make a thief of a man. There must, in a word, be a complete and profound change in his whole nature. Such great changes in the individual are never directly inherited; only particular properties can be

inherited, but these do not constitute a criminal. Hence, the son of a criminal need not in his turn be a criminal.

This does not imply that in the course of generations characters might not compound themselves until a criminal type is developed, but this is as rare as the development of new species among the animals. Races are frequently selected; species develop rarely.

Section 93. (c) Prepossession.

Prepossession, prejudice, and anticipatory opinion are, perhaps, the most dangerous foes of the criminalist. It is believed that the danger from them is not great, since, in most cases, prepossession controls only one individual, and a criminal case is dealt with by several, but this proves nothing. When the elegant teacher of horseback riding has performed his subtlest tricks, he gracefully removes his hat and bows to the public, and only at that moment does the public observe that it has been seeing something remarkable and applauds heartily, not because it has understood the difficulty of the performance, but because the rider has bowed. This happens to us however good our will. One man has a case in hand; he develops it, and if, at the proper time, he says "Voila," the others say, "Oh, yes," and "Amen." He may have been led by a prepossession, but its presence is now no longer to be perceived. Thus, though our assumptions may be most excellently meant, we still must grant that a conviction on false grounds, even when unconsciously arrived at, so suffuses a mind that the event in itself can no longer be honestly observed. To have no prejudices indicates a healthy, vigorous mind in no sense. That is indicated by the power to set aside prejudices as soon as their invalidity is demonstrated. Now this demonstration is difficult, for when a thing is recognized as a prejudice, it is one no longer. I have elsewhere,[1] under the heading "anticipatory opinion," indicated the danger to which the examining justice is subject thereby, and have sought to show how even a false idea of location may lead to a prepossession in favor of a certain view; how vigorous the influence of the first witness is, inasmuch as we easily permit ourselves to be taken in by the earliest information, and later on lack time to convince ourselves that the matter may not be as our earliest advice paints it. Hence, false information necessarily conceals a danger, and it always is a matter of effort to see that the crime is a fictitious one, or that something which has been called accident may conceal a crime. The average man knows

this well, and after a brawl, after contradictory testimony, etc., both parties hurry to be beforehand in laying the information. Whoever lays the information first has the advantage. His story effects a prepossession in favor of his view, and it requires effort to accustom oneself to the opposite view. And later it is difficult to reverse the rôles of witness and defendant.

But we have to deal with prepossession in others besides ourself, in witnesses, accused, experts, jury, colleagues, subordinates, etc. The more we know, the newer new things seem. Where, however, the apperceptive mass is hard and compact, the inner reconstruction ceases, and therewith the capacity for new experiences, and hence, we get those judges who can learn nothing and forget nothing. Indefiniteness in the apperceptive masses results in the even movement of apperception. Minds with confused ideational complexes hit little upon the particular characteristic of presented fact, and find everywhere only what they have in mind.

The one-sidedness of apperception frequently contains an error in conception. In most cases, the effective influence is egoism, which inclines men to presuppose their own experiences, views, and principles in others, and to build according to them a system of prepossessions and prejudices to apply to the new case. Especially dangerous are the similar experiences, for these tend to lead to the firm conviction that the present case can in no sense be different from former ones. If anybody has been at work on such earlier, similar cases, he tends to behave now as then. His behavior at that time sets the standard for the present, and whatever differs from it he calls false, even though the similarity between the two cases is only external and apparent.

It is characteristic of egoism that it causes people to permit themselves to be bribed by being met half-way. The inclination and favor of most men is won by nothing so easily and completely as by real or apparent devotion and interest. If this is done at all cleverly, few can resist it, and the prepossession in their favor is complete. How many are free of prejudice against ugly, deformed, red-haired, stuttering, individuals, and who has no prejudice in favor of handsome, lovable people? Even the most just must make an effort so to meet his neighbor as to be without prejudice for or against him, because of his natural endowment.

Behavior and little pleasantnesses are almost as important. Suppose that a criminalist has worked hard all morning. It is long past the time at which he had, for one reason or another, hoped to

get home, and just as he is putting his hat on his head, along comes a man who wants to lay information concerning some ancient apparent perjury. The man had let it go for years, here he is with it again at just this inconvenient moment. He has come a long distance —he can not be sent away. His case, moreover, seems improbable and the man expresses himself with difficulty. Finally, when the protocol is made, it appears that he has not been properly understood, and moreover, that he has added many irrelevant things—in short, he strains one's patience to the limit. Now, I should like to know the criminalist who would not acquire a vigorous prejudice against this complainant? It would be so natural that nobody would blame one for such a prejudice. At the same time it is proper to require that it shall be only transitive, and that later, when the feeling has calmed, everything shall be handled with scrupulous conscientiousness so as to repair whatever in the first instance might have been harmed.

It is neither necessary nor possible to discuss all the particular forms of prepossession. There is the unconditional necessity of merely making a thoroughly careful search for their presence if any indication whatever, even the remotest, shows its likelihood. Of the extremest limit of possible prejudice, names may serve as examples. It sounds funny to say that a man may be prejudiced for or against an individual by the sound of his name, but it is true. Who will deny that he has been inclined to favor people because they bore a beloved name, and who has not heard remarks like, "The very name of that fellow makes me sick." I remember clearly two cases. In one, Patriz Sevenpounder and Emmerenzia Hinterkofler were accused of swindling, and my first notion was that such honorable names could not possibly belong to people guilty of swindling. The opposite case was one in which a deposition concerning some attack upon him was signed by Arthur Filgré. I thought at first that the whole complaint was as windy as the complainant's name. Again, I know that one man did not get the job of private secretary he was looking for because his name, as written, was Kilian Krautl. "How can a man be decent, who has such a foolish name?" said his would-be employer. Then again, a certain Augustinian monk, who was a favorite in a large city, owed his popularity partly to his rhythmical cognomen Pater Peter Pumm.

Our poets know right well the importance for us short-sighted earth-worms of so indifferent a thing as a name, and the best among them are very cautious about the selection and composition of names. Not the smallest part of their effects lies in the successful tone of the

names they use. And it was not unjust to say that Bismark could not possibly have attained his position if he had been called Maier.

Section 94. (d) Imitation and the Crowd.

The character of the instinct of imitation and its influence on the crowd has long been studied in animals, children, and even men, and has been recognized as a fundamental trait of intellect and the prime condition of all education. Later on its influence on crowds was observed, and Napoleon said, "Les crimes collectifs n'engagent personnes." Weber spoke of moral contagion, and it has long been known that suicide is contagious. Baer, in his book on "Die Gefängnisse," has assigned the prison-suicides "imitative tendency." There is the remarkable fact that suicides often hang themselves on trees which have already been used for that purpose. And in jails it is frequently observed that after a long interval a series of suicides suddenly appear.

The repetition of crimes, once one has been committed in a particular way, is also frequent; among them, the crime of child-murder. If a girl has stifled her child, ten others do so; if a girl has sat down upon it, or has choked it by pressing it close to her breast, etc., there are others to do likewise. Tarde believes that crime is altogether to be explained by the laws of imitation. It is still unknown where imitation and the principles of statistics come into contact, and it is with regard to this contact we find our greatest difficulties. When several persons commit murder in the same way we call it imitation, but when definite forms of disease or wounds have for years not been noticed in hospitals and then suddenly appear in numbers, we call it duplication. Hospital physicians are familiar with this phenomenon and count on the appearance of a second case of any disease if only a first occurs. Frequently such diseases come from the same region and involve the same extraordinary abnormalities, so that nothing can be said about imitation. Now, how can imitation and duplication be distinguished in individual cases? Where are their limits? Where do they touch, where cover each other? Where do the groups form?

There is as yet no solution for the crimino-political interpretation of the problems of imitation, and for its power to excuse conduct as being conduct's major basis. But the problems have considerable symptomatic and diagnostic value. At the very least, we shall be able to find the sole possibility of the explanation of the nature or manner of a crime in the origin of the stimulus to some particular

imitation. Among youthful persons, women especially, there will be some anticipatory image which serves as a plan, and this will explain at least the otherwise inexplicable and superfluous concomitants like unnecessary cruelty and destruction. The knowledge of this anticipatory image may give even a clew to the criminal, for it may indicate the nature of the person who could act it out and realize it. Also in our field there exists "duplication of cases."

The condition of action in great crowds offers remarkable characteristics. The most instructive are the great misfortunes in which almost every unhappy individual conducts himself, not only irrationally but, objectively taken, criminally towards his fellows, inasmuch as he sacrifices them to his own safety without being in real need. To this class belong the crossing of bridges by retreating troops in which the cavalry stupidly ride down their own comrades in order to get through. Again, there are the well-known accidents, e. g., at the betrothal of Louis XVI., in which 1200 people were killed in the crush, the fires at the betrothal of Napoleon, in the Viennese Ringtheater in 1881, and the fire on the picnic-boat "General Slocum," in 1904. In each of these cases horrible scenes occurred, because of the senseless conduct of terrified people. It is said simply and rightly, by the Styrian poet, "One individual is a man, a few are people, many are cattle." In his book on imitation, Tarde says, "In crowds, the calmest people do the silliest things," and in 1892, at the congress for criminal anthropology, "The crowd is never frontal and rarely occipital; it is mainly spinal. It always contains something childish, puerile, quite feminine." He, Garnier, and Dekterew, showed at the same congress how frequently the mob is excited to all possible excesses by lunatics and drunkards. Lombroso, Laschi, etc., tell of many cruelties which rebelling crowds committed without rhyme or reason.[1] The "soul of the crowd," just recently invented, is hardly different from Schopenhauer's Macroanthropos, and it is our important task to determine how much the anthropos and how much the macroanthropos is to be blamed for any crime.

Section 95. (e) Passion and Affection.

Passion and affection occasion in our own minds and in those of witnesses considerable confusion of observations, influence, or even

effect the guilt of the defendant and serve to explain many things at the moment of examination. The essence of passion or affection, its definition and influence, its physical and physiological explanation, is discussed in any psychology. The use of this discussion for the lawyer's purposes has been little spoken of, and possibly can not have more said about it. Things that are done with passion show themselves as such, and require no particular examination in that respect. What we have to do is to discover what might have happened without passion, and especially to protect ourselves from being in person overcome by passion or affection. It is indubitable that the most "temperamental" of the criminalists are the best, for phlegm and melancholy do not carry one through an examination. The lively and the passionate judges are the most effective, but they also have the defects of their virtues. No one will deny that it is difficult to maintain a calm demeanor with an impudent denying criminal, or in the face of some very cruel, unhuman, or terrible crime. But it is essential to surmount this difficulty. Everyone of us must recall shameful memories of having, perhaps justly, given way to passion. Of course the very temperamental Count Gideon Raday freed his county in a short time from numberless robberies by immediately hanging the mayor of the town in which the robberies occurred, but nowadays so much temperament is not permissible. It is well to recall the painful position of an excellent presiding justice at a murder trial, who attacked the defendant passionately, and had to submit to the latter's really justified reprimand.

The only means of avoiding such difficulties is not to begin quarrelling. Just as soon as a single word is uttered which is in any way improper in polite society, everything is lost. The word is the rolling snow-ball, and how much momentum it may gather depends upon the nature and the training of the judge. Lonely insults are not frequent, and a single improper word breaks down the boundaries. The criminal knows this and often makes use of his knowledge. A man who has "cussed out" the other fellow is no longer dangerous, he becomes calm and kind, and feels instinctively the need of repairing the damage he has committed by "going too far." He then exhibits an exaggerated geniality and care upon which many criminals count, and hence intentionally provoke the examiner until he does things and says things he is sorry for.

The emotions of witnesses, especially of those who have been harmed by the crime and of those who have seen something terrible

and disgusting, and who still tend to get excited over it, constitute a great many difficulties. Against the unconditional reliability of such persons' testimony experienced judges take measures of defence. The participant of this class is never calm; passion, anxiety, anger, personal interest, etc., either anticipate or exaggerate trouble. Of course, we are not speaking of cases in which a wound is considerably exaggerated, or even invented for the sake of money, but of those in which people under emotional stress often say unthinkable things about their enemy, just to get him punished. This, however, is comparatively rare where the damage has been very great. A man who has lost his eye, the father of a raped daughter, the victim impoverished by arson, often behaves very calmly toward the criminal. He makes no especial accusation, does not exaggerate, and does not insult. A person, however, whose orchard has suffered damage, may behave much worse.

It frequently happens that the sufferer and the defendant really hate each other. Not necessarily because one had broken the other's head, or robbed him; frequently the ostensible reason for coming to trial is the result of a long and far-reaching hatred. That this emotion can go to any length is well known and it is therefore necessary, though not always easy, to seek it out. Hatred is possible among peers, or people who are peers in one connection or another. As a rule, the king will not be able to hate his musketeer, but he will when they are both passionately in love with the same girl, for they are peers in love. Similarly, the high-bred lady will hardly hate her maid, but if she observes the maid's magnificent hair and believes that it is better than her own, she will hate the maid, for there is no difference in rank with regard to the love of hair.

Real hate has only three sources: pain, jealousy, or love. Either the object of hatred has caused his enemy a great irremediable pain or jealousy, or hatred is, was, or will become love. Some authorities believe that there is another source of hatred which becomes apparent when we have done harm to somebody. That this might show itself as hatred or passion similar to hatred is possible, but in most cases it will probably be a feeling of deep shame and regret, which has certain particular characteristics in common with hatred. If it is really hatred, it is hatred through pain. Hatred is difficult to hide, and even criminalists of small experience will overlook it only in exceptional cases. The discovery of envy, which is less forgiving than hatred, less explosive, much profounder and much more extensive, is incomparably more difficult. Real hatred,

like exquisite passion, requires temperament, and under circumstances may evoke sympathy, but friendless envy, any scamp is capable of. Possibly no other passion endangers and destroys so many lives, chokes off so much service, makes impossible so many significant things, and finally, judges so falsely an endless number of persons. When you remember, moreover, its exaggerated extent, and the poor-spirited, easy trick of hiding it, its dangerous nature can not be overestimated. We lawyers are even more imperilled by it because we do not easily allow people to be praised before us; we require witnesses, etc., to speak incriminatingly most of the time, and we cannot easily see whether they are envious.

However freely one man may speak against another, we may assume that he is telling the truth, or at worst, that he has a false notion of the matter, or was badly instructed, but we rarely think that his envy dictates it all. This idea occurs to us when he is to praise the other man. Then he exhibits a cautious, tentative, narrowing attitude, so that even a person of little experience infers envy. And here the much-discussed fact manifests itself, that real envy requires a certain equality. By way of example the petty shopkeeper is cited as envying his more fortunate competitor, but not the great merchant whose ships go round the world. The feeling of the private toward his general, the peasant toward his landlord, is not really envy, it is desire to be like him. It is anger that the other is better off, but inasmuch as the emotion lacks that effective capacity which we require for envy, we can not call it envy. It becomes envy when something by way of intrigue or evil communication, etc., has been undertaken against the envied person. Thus the mere feeling is confessed at once. People say, "How I envy him this trip, his magnificent health, his gorgeous automobile, etc." They do not say: "I have enviously spoken evil of him, or done this or that against him." Yet it is in the latter form that the actual passion of envy expresses itself.

The capacity of the envious for false representation makes them particularly dangerous in the court-room. If we want to discover anything about an individual we naturally inquire of his colleagues, his relatives, etc. But it is just among these that envy rules. If you inquire of people without influence you learn nothing from them, since they do not understand the matter; if you ask professional people they speak enviously or selfishly, and that constitutes our dilemma. Our attention may be called to envy by the speaker's hesitation, his reserved manner of answering. This is the same in

all classes, and is valuable because it may warn us against very bad misunderstandings.

As a rule, nothing can be said about passion as a source of crime. We may assume that passion passes through three periods. The first is characterized by the general or partial recurrence of older images; in the second, the new idea employs its dominating place negatively or positively with respect to the older one,—the passion culminates; and in the third, the forcibly-disturbed emotional equilibrium is restored. Most emotions are accompanied by well-known physical phenomena. Some have been thoroughly studied, e. g., the juristically important emotion of fear. In fear, breathing is irregular, inspiration is frequently broken, a series of short breaths is followed by one or more deep ones, inspiration is short, expiration is prolonged, one or the other is sobbing. All these phenomena are only a single consequence of the increase of respiratory changes. The irregularity of the latter causes coughing, then a disturbance of speech, which is induced by the irregular action of the muscles of the jaw, and in part by the acceleration of the breathing. In the stages of echoing fear, yawning occurs, and the distention of the pupils may be noticed as the emotion develops. This is what we often see when a denying defendant finds himself confounded by evidence, etc.

The most remarkable and in no way explicable fact is, that these phenomena do not occur in innocent people. One might think that the fear of being innocently convicted would cause an expression of dread, anger, etc., but it does not cause an expression of real terror. I have no other than empirical evidence of the fact, so that many more observations are required before any fresh inferences are deduced therefrom anent a man's guilt or innocence. We must never forget that under such circumstances passions and emotions often change into their opposites according to rule. Parsimony becomes extravagance, and conversely; love becomes hate. Many a man becomes altogether too foolhardy because of despairing fear. So it may happen that terror may become petrifying coldness, and then not one of the typical marks of terror appears. But it betrays itself just as certainly by its icy indifference as by its own proper traits. Just as passions transmute into their opposites, so they carry a significant company of subordinate characteristics. Thus, dread or fear is accompanied by disorderly impertinence, sensuality by cruelty. The latter connection is of great importance to us, for it frequently eliminates difficulties in the explanation of

crime. That cruelty and lasciviousness have the same root has long been known. The very ecstasy of adventurous and passionate love is frequently connected with a certain cruel tendency. Women are, as a rule, more ferocious than men.[1] It is asserted that a woman in love is constantly desiring her man. If this be true, the foregoing statement is sufficiently explained. In one sense the connection between sexual passion and cruelty is bound up with that unsatiability which is characteristic of several passions. It is best to be observed in passions for property, especially such as involve the sense-perception of money. It is quite correct to speak of the overwhelming, devilish power of gold, of the sensual desire to roll in gold, of the irresistible ring of coins, etc. And it is also correctly held that money has the same definite influence on man as blood on preying animals. We all know innumerable examples of quite decent people who were led to serious crimes by the mere sight of a large sum of money. Knowledge of this tendency may, on occasion, lead to clues, and even to the personality of the criminal.

Section 96. (f) Honor.

Kant says that a man's honor consists in what people think about him, a woman's in what people say about her. Another authority believes that honor and a sense of honor are an extension of the sense of self in and through others. The essence of my honor is my belief that I exist for others, that my conduct will be judged and valued not only by myself but by others. Falstaff calls honor the painted picture at a funeral. Our authors are both right and wrong, for honor is simply the position a man takes with regard to the world, so that even gamins may be said to have honor. Unwillingness to see this may cause us criminalists considerable trouble. One of the worst men I ever met in my profession, a person guilty of the nastiest crimes, so nasty that he had driven his honorable parents to suicide, had at the expiration of his last sentence of many years in prison, said literally, "I offer no legal objection against the sentence. I beg, however, for three days' suspension so that I may write a series of farewell letters which I could not write as a prisoner." Even in the heart of this man there was still the light of what other people call honor. We often find similar things which may be used to our advantage in examination. Not, of course, for the purpose of getting confession, accusation of accomplices, etc. This might,

indeed, serve the interests of the case, but it is easy to identify a pliable attitude with an honorable inclination, and the former must certainly not be exploited, even with the best intention. Moreover, among persons of low degree, an inclination toward decency will hardly last long and will briefly give way to those inclinations which are habitual to bad men. Then they are sorry for what they had permitted to occur in their better moment and curse those who had made use of that moment.

It is often funny to see the points at which the criminal seeks his "honor." What is proper for a thief, may be held improper for a robber. The burglar hates to be identified with the pick-pocket. Many a one finds his honor in this wise deeply attacked, particularly when it is shown him that he is betraying an accomplice, or that he has swindled his comrades in the division of booty, etc. I remember one thief who was inconsolable because the papers mentioned that he had foolishly overlooked a large sum of money in a burglary. This would indicate that criminals have professional ambitions and seek professional fame.

Section 97. (g) Superstition.

For a discussion of Superstition see my Handbuch für Untersuchungsrichter, etc. (English translation by J. Adam, New York, 1907), and H. Gross's Archiv I, 306; III, 88; IV, 340; V, 290, 207; IX, 253; IV, 168; VI, 312; VII, 162; XII, 334.