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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.