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You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org/license - - -Title: The Criminal Imbecile - An Analysis of Three Remarkable Murder Cases - -Author: Henry Herbert Goddard - -Release Date: June 29, 2013 [EBook #43064] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK THE CRIMINAL IMBECILE *** - - - - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive.) - - - - - - - - - -THE CRIMINAL IMBECILE - - - - - THE MACMILLAN COMPANY - NEW YORK BOSTON CHICAGO DALLAS - ATLANTA SAN FRANCISCO - - MACMILLAN & CO., LIMITED - LONDON BOMBAY CALCUTTA - MELBOURNE - - THE MACMILLAN CO. OF CANADA, LTD. - TORONTO - - - - -[Illustration: JEAN GIANINI. - -(Upper picture taken in jail. Printed by permission of Zintsmaster and -Jones, Herkimer, N. Y., Photographers.)] - - - - - THE CRIMINAL IMBECILE - - AN ANALYSIS OF THREE - REMARKABLE MURDER CASES - - - BY HENRY HERBERT GODDARD - - DIRECTOR OF DEPARTMENT OF RESEARCH - VINELAND TRAINING SCHOOL - - - New York - THE MACMILLAN COMPANY - 1915 - _All rights reserved_ - - - - - COPYRIGHT, 1915, - BY THE MACMILLAN COMPANY. - - Set up and electrotyped. Published September, 1915. - - Norwood Press - J. S. Cushing Co.--Berwick & Smith Co. - Norwood, Mass., U.S.A. - - - - -PREFACE - - -This book is offered to the public in the belief that the three cases -herein described are typical of a large proportion of criminal cases and -that the analysis and discussion attempted will help to make clear -important points which are often misunderstood, points relative to the -criminal and to the imbecile. - -A clear conception of the nature of the imbecile and of his relation to -crime will inevitably result in a most desirable change in our criminal -procedure. - -It should be noted that we use "imbecile" in the legal sense which -includes the moron and often the idiot as scientifically classified. This -usage is justified since much of the literature still describes all mental -defectives as imbeciles, idiots, or feeble-minded--according to the -preference of the writers. - -These cases are unique in that they were the first court cases in which -the Binet-Simon tests were admitted in evidence, the mental status of -these persons under indictment being largely determined by this method. - -It happens, also, that these cases well illustrate three phases of the -workings of defective minds. Jean Gianini shows the criminal imbecile of -high grade and of loquacious type working by himself. Roland Pennington, -equally high grade but of a quiet, phlegmatic temperament, shows how a -defective mind works under suggestion. Finally, Tronson shows the crude -brutality of a somewhat lower grade defective. - -In the chapter on Responsibility we have tried to indicate the difference -between _verbal_ morality and deep-seated, appreciated, moral principle. A -child may have the former but the latter comes only with experience and -the age at least of the adolescent. - -We would remind the reader that in the confessions and the appendices we -have had at hand only stenographic reports. - -If this book shall help the lawyer to make a more successful defense of -the imbecile criminal, the judge to dispense justice to this much -misunderstood class of high grade imbeciles, and society in general to -realize its responsibility for the mental defective, it will have -fulfilled its mission. - -H. H. G. - - RESEARCH LABORATORY OF THE TRAINING SCHOOL - IN VINELAND, N. J. - - - - -CONTENTS - - - PAGE - - PREFACE v - - CHAPTER - - I. THE CASE OF JEAN GIANINI 1 - - II. THE CASE OF ROLAND PENNINGTON 42 - - III. THE CASE OF FRED TRONSON 65 - - IV. THE CRIMINAL IMBECILE 83 - - V. RESPONSIBILITY 94 - - VI. THE PUNISHMENT FOR CRIMINAL IMBECILES 100 - - - APPENDICES - - A. GIANINI CASE. HYPOTHETICAL QUESTION PROPOUNDED BY - THE DEFENSE 109 - - B. GIANINI CASE. HYPOTHETICAL QUESTION PROPOUNDED BY - THE PROSECUTION 131 - - C. GIANINI CASE. DEFENDANT'S REQUEST TO CHARGE 139 - - INDEX 155 - - - - -LIST OF ILLUSTRATIONS - - - JEAN GIANINI _Frontispiece_ - - FACING PAGE - - ROLAND PENNINGTON 42 - - FRED TRONSON 66 - - - - -THE CRIMINAL IMBECILE - - - - -CHAPTER I - -THE CASE OF JEAN GIANINI - - -"We find the defendant in this case not guilty as charged; we acquit the -defendant on the ground of criminal imbecility." - -Such was the verdict by the jury of the Supreme Court of Herkimer County, -New York, on May 28th, 1914, in the case of the people _vs._ Jean Gianini, -indicted for the murder of Lida Beecher, his former teacher. - -The prosecution and, at first at least, the majority of the citizens of -the community held that this had been a carefully planned, premeditated, -cold-blooded murder of the most atrocious character, committed with a -fiendishness seldom seen among human beings. It was, on the other hand, -claimed by the defense that the boy was an imbecile, that he had only the -intelligence of a ten-year-old child, that he did not know the nature and -quality of his act, and that he did not have any true realization of the -enormity of his crime. For some reason unaccountable to a great many -people, the jury accepted the view of the defense. - -Not infrequently have verdicts in murder trials been unacceptable to the -populace. In that respect this verdict is not an exceptional one, but from -other standpoints it is remarkable. Probably no verdict in modern times -has marked so great a step forward in society's treatment of the -wrongdoer. For the first time in history psychological tests of -intelligence have been admitted into court and the mentality of the -accused established on the basis of these facts. - -The value of this verdict cannot be overestimated. It establishes a new -standard in criminal procedure. It recognizes that _weakness_ of mind, as -an excuse for crime, is of the same importance as _disease_ of mind; puts -feeble-mindedness in the same category with insanity, and requires that it -like insanity be considered in all discussions of responsibility. When we -add the now accepted fact that the feeble-minded are at least as numerous -as the insane, we see the far-reaching significance of this standard set -by the Supreme Court of Herkimer County, New York. - -That the verdict has not been at once acceptable to the people is due to -the fact that the character and the limitations of the high-grade -imbecile are not understood. With a view to explaining this type of -defective, which the defendant so well illustrates, we propose in the -following pages to go over the history of this case, explaining the facts -in the light of present-day knowledge of the feeble-minded. - -The facts in the case as established by testimony:-- - -On the morning of March 28th, 1914, Henry Fitch, a farmer of Herkimer -County, accompanied by his son, started on his usual work to deliver milk. -At a point in the highway, approximately one mile from the village of -Poland, Mr. Fitch saw blood and signs of a struggle in the snow and slush -in the road; he also found an umbrella and a hat. A bloody path led out of -the road to a point some hundred and thirty feet away. Following the -tracks he found the body, which proved to be that of Lida Beecher, one of -the school-teachers in the village of Poland. She lay at full length on -her face, both arms under her. The body was removed to Sprague's -undertaking rooms in the village. - -On the same morning Jean Gianini, sixteen years old, left his father's -house on the edge of the village to go to the home of Sam Hutchinson, -where he was working and taking his meals. He had his breakfast, went to -the barn, and worked a short time. When Mr. Hutchinson went out a little -later, he could not find Jean. A Mr. Smith said he had seen him going down -the tracks toward Newport. William Taylor, the track foreman, said he -passed Jean near the bridge. Mr. Hutchinson then sent word to the boy's -father that he had gone. The father, supposing his son had run away as he -frequently did, telephoned to Newport asking that he be apprehended and -sent home. This was before anything was known of the crime. Peck Newman, -to whom the father telephoned, found Jean in a grocery store in Newport. -He had been apprehended at the depot. He was taken home and then to the -Justice of the Peace. Here he was stripped, presumably for the purpose of -discovering whether there was any blood upon his clothing or his body. -Although there is no evidence that any stains were found, yet he had no -sooner been stripped than he made a free and open confession. We shall -consider this confession in detail later. In substance he said that he -killed Miss Beecher to get revenge, because she had humiliated him in -school. He told in detail how he had accomplished this and what had been -his movements shortly before and after the deed. On the strength of this -confession and such corroborative evidence as could be obtained from -local witnesses the prosecution sought to convict this boy of murder in -the first degree. - -It was understood at first that the defense would attempt to prove that he -was insane. There did not seem to be much evidence of insanity and it did -not appear that the prosecution was in great fear of such a verdict. As a -matter of fact, the real defense was imbecility. It is probable that this -defense was less intelligible to people who knew Jean Gianini than that of -insanity would have been. To one familiar with imbecility, however, there -is no shadow of a doubt of the correctness of this diagnosis. The only -possible question in the mind of any such person would be whether a -defective of such high grade knew the nature and quality of his act and -knew that it was wrong, and was therefore responsible for his act. This -point the jury decided, and we shall attempt to show by a study of the -case that they decided correctly. - -Much of the confusion in the mind of the public and dissatisfaction with -the result in this case is due to a failure to understand the nature and -character of the imbecile. Most of the acts and the utterances of the -defendant, which seemed to many people to indicate his soundness of mind, -his premeditation and planning of the murder, are in reality so thoroughly -characteristic of the imbecile as to leave no doubt whatever of his low -mentality. - -We have already given all that is known of the circumstances except -certain details which Jean claimed in his confession, and certain acts and -utterances which were testified to by local witnesses. - -We may now examine these testimonies, reserving his confession for a later -discussion. So far as the crime itself is concerned but little testimony -was brought forward; so little, in fact, that without the boy's confession -he probably could never have been convicted of the deed. - -On the evening of the tragedy Jean was seen by several people walking up -the street toward his home in company with his victim. Two days before -this he had been heard to ask her when she was coming to see his father -about his returning to school; to this she had replied, that she "did not -know"; and he had answered, "Aw, I don't believe you intend to come at -all, you will wait until summer time, and go home and then it will be too -late." On the following evening he again asked her to go up to his house. -She said she could not go then, as she was going to prayer meeting, but -she would go the next night. He had also inquired of certain persons -whether she went to the Post Office in the evening. On one occasion he -had been seen with an old rusty wrench in his pocket and when asked what -he was doing with it, he had replied, "I have use for it." This was the -wrench with which he struck his victim the death-blow, according to his -confession. - -Previous to the tragedy he had told certain persons that he meant to get -even with Miss Beecher. The wrongs for which he claimed to have desired -revenge had occurred more than a year before the tragedy. For over a year -he had been out of school and had been working a part of that time. For -some months he had been an inmate of St. Vincent's School, to which -institution he was committed by a Justice of the Peace at the instigation -of his father because of his propensity to jump freight trains. - -The evidence was strongly against the idea that Miss Beecher had ever done -anything to injure him or anything which would reasonably cause resentment -in his mind. He had not gotten along well in his studies after going into -her room, had been more or less disorderly, and she, at the suggestion of -the principal, had seated him facing the wall with his back to the rest of -the school. She had occasionally sent him up to the principal, who had -sometimes flogged him. - -On the night of the deed Jean was seen walking up the street with Miss -Beecher at something after seven o'clock in the evening; before eight -o'clock he was at home in his father's house; there he was given an errand -to do and went down the street, returning shortly; spent some time in -reading and then went to bed. The next morning he was at his place of work -as already mentioned. The wrench which had been seen in his pocket was -found near the scene of the murder. These are the only known facts bearing -upon the case, previous to his own confession. For further items of -evidence see the hypothetical questions propounded by the prosecution and -by the defense--Appendix, pp. 109-138. - -The fact that he was the last person seen with her, that the monkey wrench -at one time seen in his pocket was found at the scene of the deed, that he -left his place of work and went down the railroad track toward Newport, -was sufficient to arouse suspicion. It is more than doubtful whether the -evidence could have resulted in an indictment by a grand jury, and -practically certain it never could have resulted in a conviction. The -absence of any real motive for the act would have been fatal to such an -attempt. The absence of evidence of a prearranged plan is also a serious -lack. It is true that, when we have the confession and the later -explanations, the presence of the monkey wrench in his pocket and his -words that he "had use for it" sound like a prearranged plan, and yet -there is no real evidence here. He might have had the monkey wrench for a -dozen purposes and have given the same answer. Perhaps his threat to get -even with her, his remark "that if he had a revolver he would shoot her," -may be considered more serious, but certainly no jury could convict him -merely on the basis of such statements. - -It is reasonably certain then that, had he not confessed, he never would -have been convicted even if he had been indicted. Let us now examine the -confession. - - _Gianini's Confession_: Jean Gianini, being duly sworn, deposes and - says he resides in the village of Poland and is sixteen years old; - deponent further says, "I went to school to Lida Beecher and had - trouble with her and wanted to get revenge. - - "I met her above the hotel and walked up the street with her up beyond - the stone quarry; she had been a coming to see my folks about school - and was a coming up to see them last night and I told her they lived - up the hill, and when we got up there on the left side of the road, I - hit her with a monkey wrench that I got out of my father's barn. I had - the wrench in my pocket when I went up. - - "After I had hit her about three times with the wrench, I hit her with - a knife several times, to be sure to finish her, and then I took her - over in the lot; I dragged her by the foot; and then I went home and - got there about 7:30. - - "The knife I stabbed her with was one that belonged to my father and I - took it home and put it in the pantry drawer. - - "I left the wrench somewhere near where I hit her. When I hit her - first, she did not scream but moaned. - - "She said she thought it was quite a ways and she did not see any - house. - - "I was not afraid when I got home; I was just as happy as I ever was - and didn't think anything about it as I thought I had revenge. - - "I make this statement voluntarily and under no fear or threat and - knowing the same may be used against me. - - "JEAN GIANINI. - - "Subscribed and sworn to before me this 28th day of March, 1914. - - "FRED MOORE, - "_Justice of the Peace of Town of Russia_." - -In its main points the confession must be accepted as true. To refuse to -accept it would be to admit at once without further proof that the boy -was crazy or an imbecile, since, if it were not true, it is inconceivable -that any normal person would claim to have done such a deed. It is -accepted then by all that Jean Gianini killed Lida Beecher on the night of -March 27th, 1914. There is no difference of opinion on that point. It is -now only a question of his responsibility. - -We may now review the facts and see what is the evidence: first, that he -is an imbecile; second, that being an imbecile, he did not know the nature -and quality of his act and that it was wrong. - -Is Jean Gianini an imbecile? What is an imbecile? We cannot expect to -agree upon the question of whether Jean is an imbecile until we agree upon -the definition of imbecile. There are various ways of designating this -type of individual. Imbecility, as used in law in this country, may be -defined as "the state of mental defect existing from birth or from an -early age, due to incomplete cerebral development, in consequence of which -the person affected is unable to perform his duties as a member of -society." The high-grade imbecile, such as the person under discussion, -feeble-minded as he is called in England, or the moron as we are coming to -call him in the United States, is one who is "capable of earning a living -under favorable circumstances, but is incapable from mental defect, -existing from birth or from an early age, (_a_) of competing on equal -terms with his normal fellows, or (_b_) of managing himself or his affairs -with ordinary prudence." These definitions were formulated by the Royal -College of Physicians of England, and accepted by the Royal Commission on -the Care and Control of the Feeble-minded. - -We may further designate this type of individual by saying that he has the -mentality of a normal child of from three to twelve years of age. These -age limits have been determined by examining thousands of the inmates of -institutions for the feeble-minded and comparing with normal children. The -inmates of the institutions are there because they were not capable of -managing their own affairs with ordinary prudence, because society has -discovered that they could not take care of themselves; they are -weak-minded; they must be cared for by the public. Careful examination of -such persons as have been determined by experience to be incapable of -managing themselves shows that they range in intelligence, as before -stated, from three to twelve years. There are practically none in these -institutions that have a mentality above twelve. Those under three are -called idiots. - -Considered from the standpoint of the growth and the development of the -child, we say that the imbecile is a case of arrested development; he has -stopped growing mentally, and has stopped previous to the age of twelve, -so that no matter what may be his actual age his mentality is that of a -child under twelve years. - -In the case of Jean Gianini, although he is sixteen years old, he has only -the mentality of a child of ten. Or, if a possible error of two years were -allowed, he would still have only the mentality of twelve and would be an -imbecile. As a matter of fact, there is probably nothing in the whole -career and history of Jean Gianini that is inconsistent with a mentality -under twelve; and on the other hand there are numbers of things in -evidence in connection with his crime that are so thoroughly typical of -high-grade imbeciles that any one with experience with this type of person -can have no doubt about it; but it is our purpose to show this by an -analysis of the case. We must first attempt to remove some of the -difficulties in the way of this view. - -First, why does it seem absurd to call Jean Gianini an imbecile? Mainly -because in the popular mind the term imbecile connotes only the low-grade -imbecile, the person who shows in every movement and action, if not in -his very face, that he is "lacking," is "not all there," is "not quite -right," or whatever may be the expression that we apply to those -unfortunate ones, of whom there are, sad to say, always one or more in -every community. - -Jean Gianini is not of that type; he is a _high-grade_ imbecile; he is of -the grade that is only recognized by those who are intimately familiar -with imbeciles of all types. He is only discovered when we make a close -comparison between him and normal boys of the various ages. We may perhaps -liken it to the question of tuberculosis: the average man never recognizes -a fellow being as suffering from consumption until he is afflicted with a -cough which does not yield to treatment, is constantly expectorating, gets -thin and pale, and has other marked outward symptoms; the average person -would not find more than one or two consumptives among a hundred persons; -the expert physician, however, experienced with tuberculosis, recognizes -many more by signs and symptoms which he can describe with great accuracy, -and when he is allowed to apply his physiological tests and his clinical -thermometer and his microscope, the number increases enormously, and he -assures us that every seventh person will die of tuberculosis. - -It is hard then for many people to accept the verdict that Jean Gianini -is an imbecile, largely because they do not realize what a high-grade -imbecile is. - -A second reason is found in the fact that we insist upon believing the -unbelievable. We view a crime like the one under discussion and say -frankly, "It is unbelievable that any reasoning, intelligent person could -commit such an atrocious act," and yet we believe that this boy did; we -believe that such a grade of villainy exists and that it can suddenly -appear in a boy who never before manifested anything approaching it. The -fact is, that our instinctive revulsion against such a thought is the -correct view. The fact that Jean Gianini committed such a crime is itself -the strongest kind of evidence that he is not a normal boy. But turning -from imbecility in the abstract, let us examine concrete instances in the -life of Jean Gianini, for we shall find there the best possible -illustrations of the characteristics of an imbecile. - -We may begin at the most dramatic point--the crime itself. Since we know -practically nothing of the crime except through his admissions, we will -begin with the confession. And first, why was there a confession? It is -safe to say that there is not a sensible man or boy the country over who, -knowing the facts in the case, would not say, "What a fool Jean was to -confess!" Nobody but an imbecile would have confessed under those -circumstances; they had no evidence against him, nor did they pretend they -had; he testifies that they told him that they thought he was guilty of -the crime; they did not pretend that they knew he was guilty; there were -no third-degree methods used; they had taken his clothing off and examined -him, but they had not found any blood or any evidence, and the clothing -had only just been removed when Jean began to tell his story. He had not -been promised any immunity if he should confess; in fact, he had been told -that anything that he said would be used against him, but still he -persisted in telling the whole story. But we do not have to rely upon the -fact that it looks foolish to us for him to have confessed, because we -have the fact, well known to all who have to deal with imbeciles, that it -is characteristic of them to do just this thing. They do not always -confess, it is true. It seems to depend largely upon how proud they are of -their deeds--and frequently the more atrocious these are, the prouder they -are of them. It is perfectly clear that such was the case with Jean. He -made some little attempt to get away, at least he made what appeared like -an attempt to get away; there really is no evidence that he was doing -anything more than he had done many times before, going away from home to -seek work elsewhere, with that _wanderlust_ which is also characteristic -of imbeciles. He walked down the railroad track toward Newport, not going -very fast, not taking any precautions to avoid being seen, and when met by -some one whom he knew, he came willingly back to Poland. - -There is the highest probability, perfectly clear to one who understands -imbeciles, that almost from the time the deed was done he had a strong -desire to tell somebody about it, to brag about it; but a certain -instinct, a certain feeling that he ought not to be caught, probably held -him back. But when at last he was taken back to Poland and into the -presence of the Deputy Sheriff; when his clothes had been removed and he -thought his story would get into the papers and he would become notorious; -then he began to talk. In spite of all the warnings and declarations that -he would suffer for it, he talked. At this point it is important to -remember that he is talking now to be heard; he is not confessing in order -to escape punishment, he is talking because he is proud of what he has -done; he wants to boast, wants to be talked about and written up, wants to -be notorious, a great criminal, as is evidenced in the course of the -trial. Remembering this, we _cannot believe all that he says in his -confession_. - -As already stated, in so far as it relates to the basal facts of the -crime, it is undoubtedly true; but when it comes to the finer details of -what he did, how he prepared, and what he claimed was his motive, we -greatly err if we accept everything he said. It is not in the sworn -confession, but it was in evidence that he said he sharpened the knife for -the purpose; the fact that he said he sharpened the knife for the purpose -should have no weight. It is precisely the kind of thing that he would put -in for effect. In fact all that he said after the deed as to arrangements -or plans or details must ever be questioned unless his statements can in -some way be corroborated, for this tendency to elaborate is so strong that -there is no possibility of putting any trust in his words. - -It is worthy of note that whereas the defense introduced many witnesses -who testified to Jean's sayings and actions that showed silliness and -indicated childish intelligence, the prosecution neither rebutted this nor -produced witnesses testifying to anything in his previous conduct that -gave evidence of good judgment or intelligence appropriate to his years, -or that he had any moral development that would be normal for his age.[1] - -The evidences of his pride in the deed are scattered throughout the -testimony. For example, at one time he said, referring to the deed, "You -would not think anybody could do a deed like that so quick, would you?" -When asked how he could get Miss Beecher to go so far up the hill in the -dark with him, he replied with a good deal of pride: "That's easy! I told -her my father was building a house up on the hill and we went up there." - -This leads us to another precaution which must be borne in mind in -considering this case. If Jean is an imbecile, then all our previous -conceptions must be changed, since the conclusions that we naturally draw -are based on the assumption that these facts relate to a normal man. To -illustrate: if Jean were a normal boy of sixteen, the fact that he -inquired as to the time of Lida Beecher's being at the Post Office, that -he talked with her the day before about her promise to go with him to see -his father, the fact that he went off with her that night, that when he -reached his father's house, he lied and said his father lived up over the -hill and led her up there, and then, as he said, struck her with the -monkey wrench, and so on, would all indicate premeditation and planning -and forethought; but the instant we conclude that Jean is an imbecile, -then these facts indicate nothing of the kind. It is not denied that such -may have been the case, or that it is impossible for an imbecile to carry -out such a plan. But it is claimed that there is no strong presumption -that such was the fact, because the result can be accounted for in another -way. Jean being an imbecile, _it is entirely possible that he had no -premeditation of murder at all_, that he not only did not grind that knife -for the purpose, but that he did not have the monkey wrench in his pocket -for the purpose. On the contrary, it is possible that as he walked up the -hill with Lida Beecher he had no more thought of killing her than of -committing suicide. Indeed, it is much more plausible from all we know of -imbeciles, and of boys of his physical development, that there was an -entirely different purpose. That purpose was probably sexual. The writer -is not alone in this thought. Hardly any of the persons with whom he has -talked of this crime has failed to ask the question, "Was there any sexual -offense in the matter?" The absence of any evidence of assault of this -character has been a surprise to many persons; but it again is no surprise -when we remember that Jean is an imbecile; we know also that he is a -masturbator. - -While the writer has no theory to put forth in regard to this crime, yet, -for the sake of clearness and as an illustration of the imbecile type, let -us assume a plausible hypothesis; that is to say, an hypothesis which may -fit the case and is entirely plausible from the standpoint of imbecility. - -Jean was sixteen years old, an age when sexual passion is strong. It is -the middle of the great adolescent period. The new physiological function -of sex is established, great psychic changes have occurred. The boy is -dreaming dreams, the imagination is active. In the normal boy this means -the evolution of ideals, ambitions, moral and religious ideas, attention -to dress and appearance, interest in the opposite sex. In the case of the -morally well-endowed boy, the sex impulses which have strengthened with -the development of the physical potency find their outlet in a kind of -vicarious functioning in the shape of polite and friendly association with -his girl friends, in chivalric attentions and devotions, with more or less -definite plans for future marriage and parenthood. In those with little or -no moral principle we see the impulse leaping over the social conventions -and attaining complete sexual gratification illegally. - -With the imbecile the case is different. The fires of sexual passion may -burn as vigorously as in the better endowed, but he lacks both the power -of control and the courage and ingenuity to overcome the social barriers. -He masturbates. This banks the fires somewhat and requires no courage. If -stimulated by association with girls, he makes crude and imbecilic plans -for conquest. Lacking moral development and ignorant of the more subtle -means of accomplishing his purpose, he may resort to violence in some one -of the many possible ways. Often he is not conscious of what it is that is -driving him and hence does not know where satisfaction lies. Under these -conditions his violence may show no outward signs of being sexual. It may -show every degree from rough horseplay with girls, such as pushing, -pulling, grabbing hat, cloak, or other articles of dress, bantering, -teasing, and other forms of personal contact, up to physical injury, -torture, and even murder. - -Volumes could be written--indeed volumes have been written--showing the -tremendous force of this sex impulse at this age, and the multifarious -ways in which it expresses itself--many of them not showing any of the -signs that are usually considered as indicating a sexual disturbance. That -is to say, such acts are, by the uninitiated, not considered sex acts at -all. One incident of this kind is in evidence. "At one time Jean took two -little girls to a piece of woods and started to take their clothes off, -and when asked why he did it, said he was going to play Indian and that -Indians were naked." Dismissing the possibility that his explanation was -invented to conceal a definitely conscious sexual impulse, let us admit -that he gave his real reason for the act. Still it is clear to all who are -familiar with sex psychology that the subconscious reason for playing -Indian in that way was a sexual one. The procedure also shows a lack of -judgment and appreciation of the proprieties which argues strongly for -mental deficiency--especially as he was then between ten and twelve years -old. (For further items the reader is referred to pp. 113-120 of the -Appendix, where the hypothetical questions have summed up the testimony.) - -The imbecile is a coward. Jean Gianini is an imbecile. Unconsciously -impelled by that strong instinct he seeks the company of Lida Beecher. As -a matter of fact her friend, Miss Clark, testified that Miss Beecher had -been annoyed at his attentions. He contrives an excuse to get her to come -up to his house; when he reaches the house, he makes another excuse to get -her to go farther, not, as generally believed, with the purpose of -murdering her; perhaps only blindly following that instinct of sex and -desiring to be in her company; more probably with the half-conscious -purpose of satisfying his passion if he could find a suitable -opportunity. They walk on; where they were going or how far they would -have walked no one will ever know, but there came a time when for some -reason her suspicions were aroused, or at least her common sense told her -that it was foolish to go farther. Of course we have nothing but Jean's -statement, which may be true or may be false; instead of the simple -statement that she thought she would go back as she saw no light, there -may, for all we know, have been a strong argument; he may have made -improper proposals which she resented; this led to blows with the fatal -result. We have no means of knowing what actually took place at that spot. -But even taking Jean's own account, when she remarked that "she thought -she would not go any further," he saw that his plan was frustrated. Then -he struck her with the monkey wrench which he happened to have in his -pocket--for what purpose no one knows. Having struck her once, it was easy -to strike the second and the third time. It was only natural for an -imbecile to keep at it,--"finish the job" as he expressed it. According to -the evidence he struck her with the knife approximately twenty-four times, -finally hitting the jugular vein in the neck, as a result of which she -probably bled to death. - -As already stated, the writer has no desire to advance this as _the -theory_ of the deed. But if Jean is an imbecile, this theory is fully as -good as that upon which the prosecution worked, and it eliminates entirely -all necessity for elaborate planning. Up to this point we have shown that -the fact of a confession and the character of the confession, both -difficult to explain on the basis that Jean is a normal boy of sixteen, -are entirely clear and perfectly characteristic of a high-grade imbecile. - -Let us look now at his actions immediately after the deed. It is in -evidence that Jean said he took the murdered girl by the foot because -there was no blood there and he did not want to get blood on his hands for -fear they would take his finger prints. Holding her by the foot, he -dragged her out of the road behind some bushes and left her in the snow. -He then went back into the road, making new tracks, which he made no -effort to cover. Nor did he make any effort to cover the old tracks or the -blood spots that were left along in the snow. Neither did he make any -attempt to hide the hat nor the umbrella nor the broken comb which were -left in the road; his care to take her by the foot where there was no -blood is cited as evidence of forethought and judgment; but what shall we -say of his failure to cover up his tracks when it was easy to have done -so! - -Again we must remind the reader that we have nothing but the boy's -testimony as to the fact that he took her by the foot or to explain why he -took her by the foot, but in accepting his testimony as true there is -nothing incompatible with high-grade imbecility. - -The one peculiar thing about Jean is that he has read more than most -imbeciles even of this high grade. But this peculiarity does not save him -from being an imbecile, since there are cases of imbeciles who have read -as much or even more than he. Furthermore, there is plenty of evidence in -the case that Jean's interest in reading has gone along the line, -childlike, of crime. The various experts who examined him told of his -talking about the case of the New York gunmen, of the Pomeroy case, of a -murder in the South, and possibly others. He inquired about Mahoney, the -would-be assassin of Mayor Mitchell. In connection with these crimes his -reading of finger prints had made the same impression upon him that it -would have upon any boy. He remembered what he had read and perhaps acted -upon it, at least talked about it when the opportunity came, and pretended -that he considered it in his action. - -It needs no argument to show that all the rest of his conduct in leaving -things as he did was imbecilic. Even many a high-grade imbecile would have -been much more thoughtful and more careful to cover up the tracks in the -snow. That Jean did not do so is in itself almost an unanswerable argument -that he was an imbecile. - -He then went home, and having washed the knife in the snow, put it in the -pantry drawer. No evidence was produced, so far as the writer knows, to -prove that this was the fact; we do not know whether the knife belonged in -the pantry drawer and he put it back, or whether it belonged in his pocket -and when he was through, he put it back in his pocket or put it somewhere -else. Again, assuming that he told the truth, he certainly ran the risk of -being questioned as to what he had been doing with the knife. He then went -on an errand, and, according to his statement, went down to the railroad, -hoping to jump a freight train. When he found the freight had gone, he -hurried back home. These actions according to the prosecution indicate -careful planning and a desire to get away; realizing the enormity of his -deed he wanted to get out of town. Surely no normal youth of sixteen would -have failed to get out of town even though he had missed the freight -train; but his conduct is perfectly characteristic of an imbecile. One -simple thought having failed to materialize, without planning further he -goes back home, acts as no one but an imbecile could under such -circumstances,--goes to bed, sleeps soundly, gets up the next morning, and -goes to work. Then he makes another effort to get away. But how crude an -effort it is. He walks quietly along the railroad track and, as already -stated, makes no attempt to hide, but passes the trackman and goes into -the station at Newport. When he meets a person from his own town, comes -promptly and quietly back home. Surely an act much more befitting an -imbecile than a normal boy of sixteen! - -The writer was asked upon the stand whether these incidents indicated to -his mind that Jean had intelligence and had planned this thing carefully. -The answer was emphatically, "No." At every turn they indicate an -imbecile. We could cite many instances of imbeciles in our institutions -who have done things of exactly the same character. Our high-grade boys -frequently plan to run away, and often their plans are much more -elaborately conceived and much better carried out than Jean's was. - -In speaking of the confession it may be noted also that not infrequently -our boys when they have made a plan to run away cannot keep it until they -can carry it out, but make a confession. They go to some attendant or -officer and, without any compulsion, actually tell of their plan. In this -way a great many times their purposes are frustrated. When two boys plan -to run away, it is rare indeed if they carry out their scheme; it is -almost certain that one of them will confess to somebody. - -Jean manifested throughout that love of display and notoriety, that -longing to be the center of observation and talk, which is so -characteristic of imbeciles. He asked the alienists who were examining him -if his picture would be in the paper and what the people were saying about -him. According to the testimony of the experts who examined him in jail, -every occasion on which he was examined was regarded by Jean with -pleasure, and his only thought apparently was that he was the center of -observation. Instead of showing some realization of his crime and that he -was exerting himself to make an appearance that would be favorable to his -case, all the evidence was of the opposite character. None of the -witnesses for the prosecution were able to hide the fact that he was -light-hearted and frivolous, and, in a word, "showing off," throughout -these various examinations. - -Throughout the whole time of the writer's examination of him Jean never -for one moment evidenced by word or action any thought as to how his -conduct or his answers to questions would affect his case. As was pointed -out by the defense, quite in keeping with his mentality was his statement -to the experts employed by the prosecution, that he had been told not to -talk, in spite of which he talked incessantly and told everything that -they wanted. The fact of the matter was that his desire to show off so far -overcame any thought of self-preservation that he talked and acted freely -in spite of his lawyer's caution that he should not answer questions. His -conduct in the court room throughout the trial was that of an imbecile, of -a child, who had no realization of the predicament that he was in and no -purpose to make a good appearance. He was in the limelight and he enjoyed -it. Even when the most gruesome details of his deed were being recited, he -evidenced no feeling of horror or sorrow or fear; on the contrary he was -indifferent, and frequently even laughed at the incidents that were -related. He showed no excitement after he got home that evening; he slept -well. His only comment on his prison cell, which to a normal person would -have been loathsome in the extreme, was that it was better than St. -Vincent's, where he had been at school. Even when the experts introduced -by his own counsel were examining him, and when, had he been intelligent, -he should have known that it was to his advantage to make the best -possible appearance, to give them every possible help, yet when his dinner -was brought into his cell, he could think of nothing but eating and -ignored the people who had been sent to help him. As one of the experts -testified, "As between soup and safety, Jean prefers soup." - -These facts and circumstances alone are enough to satisfy any person who -is familiar with the character of the inmates of our institutions for the -feeble-minded that Jean was an imbecile and really belonged in an -institution. But besides these circumstances several witnesses were -introduced who testified to the curious and childish actions of Jean in -his past history. Quite recently, he had tried to catch pigeons by putting -salt on their tails. The prosecuting attorney called attention to the fact -that almost every man remembers going through the same experience, but it -may be safely asserted that this is not done by any normal boy after the -age of twelve. It is a childish act, and indicates a mentality of less -than eleven. - -Peter Black, the village blacksmith, testified that some one sent Jean to -him one day for "strap oil"; that he carried out the joke by slapping -Jean with a strap, but was unable to make him see that the whole thing was -a joke. He teased and bullied the other children in a way that is -characteristic of the high-grade imbecile. Mrs. Anna Newman testified that -he was a restless boy, and that sometimes he would answer her questions -and sometimes not. Every superintendent of an institution for the -feeble-minded would instantly recognize these characteristics as common -among his inmates. The reader will find more of these incidents in the -Appendix, pp. 113-119. - -One of the unique features, so far as court procedure is concerned, was -the introduction into the case, of examinations by means of the -Binet-Simon Measuring Scale of Intelligence. The writer's examination of -Jean consisted largely of the use of these tests, and as a result he -estimated his mentality at approximately ten years of age. It was somewhat -difficult to estimate his mentality with the usual exactness since others -had already used the tests, and it was impossible to say how much Jean had -learned from his previous examinations. As a matter of fact, in some cases -at least, he had not profited by the experiences which should have helped -him greatly had he been a normal boy. For example, one of the tests is to -draw from memory a diagram which he has been allowed to study for ten -seconds. It is clear that if one were given this test two or three times, -at the last trial he should have a pretty good idea of it and be able to -draw it correctly. Although the writer's use of this test was in the last -of the series of those who tested him, yet he did not succeed in drawing -it. This is usually drawn by a child of ten years. When asked to repeat a -certain sentence, he replied, "Oh, I have been asked that a hundred -times." But in spite of the fact that he had heard it several times he -failed to remember it, and yet this sentence is generally remembered by a -child of twelve. - -This is not the place nor is it necessary to discuss the Binet tests -themselves. A word, however, may be said as to why the experts for the -prosecution did not get the same results with the tests that those of the -defense obtained. Also it seems necessary to make a brief explanation, -since the prosecuting attorney failed so markedly to understand the tests -in spite of the fact that he had had the instruction of one of his own -experts who used them. One of the prosecution's experts told the writer -that he did not ask Jean any questions except those in the twelve-year -list, and he "seemed to do those satisfactorily." There are two sources of -error in this. In the first place, Jean's failures were not only in the -twelve-year, but in the eleven and ten. Secondly, if Jean seemed to do the -twelve-year tests correctly, it could only have been because they were -wrongly used. The Binet Scale is not, as the prosecutor insisted on -stating, an "arbitrary system." It is not a set of questions to which -there are definite and fixed answers that are correct, and from which any -deviation is marked a failure. Nor is it a set of questions the answers to -which can be judged as to their correctness by the so-called "common -sense" of the investigator. To illustrate: Jean was asked to give the -definition of the word "charity"; he said, "Charity is giving." The -prosecuting attorney insisted that this was a correct answer, because, as -he said, "Charity _is_ giving." This is mere sophistry. It is not a -question as to whether "charity is giving" is a theoretically correct -answer to the question; the important point is, that such an answer is -_not the kind of answer that is given by twelve-year-old children_. This -has been proved by asking hundreds of twelve-year-old children to define -"charity." Practically 75 per cent of such children include not only the -idea of giving, but the other necessary idea of giving to some one who is -in need. The answer, "Charity is giving," is characteristic not of -twelve-year mentality, but of something under that,--ten or less. So -throughout the system the scale must not be judged by what seem correct or -incorrect answers to the inexperienced adult. The value of an answer can -only be known by knowing the character of answers that are given by -children of the various ages. The point is not always that this answer is -or is not technically correct, but that it is not the kind of answer which -a child of the specified age should give. Therefore, it indicates that he -is not of that age, but below it. This was the error into which the -prosecutor and his alienists had fallen in their use of the tests in the -case of Jean Gianini. - -Jean's school record was the serious stumblingblock to many persons who, -from the facts, notably those already cited, were inclined to think that -possibly he was an imbecile. To many of these persons that record seemed -to indicate a normal boy. The teachers and the principal testified that he -did his work well through the fifth grade and got excellent marks, even -getting 100 per cent in some studies. They lost sight, however, of the -fact that Jean was fourteen or fifteen years of age and in a grade which -he should have been in at eleven, namely, the fifth. - -As a matter of fact, Jean's school experience, when taken as a whole, is -most confirmatory of his imbecile grade. It was proved in court, but not -fully appreciated, that Jean got along well through the fifth grade, but -_when he went into the sixth grade, he failed_. - -Professor Robinson testified that when Jean was transferred to Miss -Beecher's room, his troubles began. The boy did not get along nearly so -well after the change and he dropped back in his studies. His teacher was -obliged to report him a number of times to the principal, who twice -whipped him with a piece of rubber hose. Failing to make his studies under -the new standard, he was made to occupy a special seat apart from the -other pupils, at the instance, if not the actual order, of Miss Beecher. - -The witness further testified that in the last days of his school life -Jean dropped, _to a very marked degree_, in his standing in his studies. -This falling off in Jean's ability was _attributed to his teacher_. As a -matter of fact, the falling off was due to the fact that Jean had _reached -his limit_ in the fifth grade. He attained to that height because of a -good memory, which is characteristic of many imbeciles and is in no way -indicative of normal intelligence. It is also very common for children of -this type to get through the fifth grade and fail in the sixth. They have -mentality enough to carry them to that point, but not farther. - -It is a satisfaction to realize that Jean's failure in school with Miss -Beecher is in no way due to the inefficiency of his unfortunate victim. It -was due simply and solely to the fact that Jean was an imbecile and had -reached his limit. These two facts of a good memory and of good school -work in a few school grades have deceived many people as to the -intelligence of a child. - -It should be remembered that many imbeciles do not show their defect until -at the age of eleven or twelve when they are in the fifth or sixth grade. - -One of the witnesses for the prosecution said that he considered that Jean -was normal and that his apparent backwardness was due to lack of -schooling. This is a common error in all such cases. If asked why a boy -should be backward through lack of schooling when he has been to school -and has had every opportunity to learn, it is common again to fall back -upon the idea that he has not studied. He has been a wild, wayward boy, -playing truant, more or less, and has never applied himself, therefore he -is behind his grade and is dull and backward. Again, while not denying -that there are children of perfectly normal intelligence who seem to be -misfits in school or who seem more interested in other things than in -their school work, or children who will not study because of dislike for -the teacher or for various other reasons, yet the reader must be reminded -that a study of the high-grade defective shows that he is continually -being confused with these very exceptional children who have the ability -but who do not study. In other words, when a boy does not get along in -school, even though it is evident that he does not study, the strong -probability is that he does not study because he has not mind enough to -appreciate the work, to understand it, hence to have that highest of all -incentives to work, success. The fact that the majority of boys do get -their lessons and get along well in school should be a strong argument -that there is something seriously wrong with those that do not succeed. - -It may further be asked: How does the fact that the boy has not succeeded -in school affect his examination by the Binet test? Experience has shown -that the test is affected but slightly. In other words, the mind develops -regardless of school and school training. As long as we ask only such -questions as call for a general intelligence and do not call for specific -school instruction we are reasonably independent of such instruction. As a -matter of fact, nearly all of the questions of the Binet Scale are free -from this objection. Some of them, it is true, are a little helped if the -child has been to school and correspondingly hard if the child has not -been to school; but, on the whole, they do not affect the final rating to -any serious extent. This has been proven repeatedly by normal children -who, on account of sickness or for other reasons, have not been to school, -and yet can pass the Binet tests for their own age. - -We must now turn to the question of cause. If we can account for Jean -Gianini's imbecility, it will be much easier to believe in it. Much has -been written on the subject of the causes of feeble-mindedness. Certain -fundamental principles have been agreed upon. It is now known that at -least 66 per cent of feeble-mindedness is hereditary; that is to say, the -individual is feeble-minded because he comes from stock in which -feeble-mindedness exists. There is another group in which there are -practically no other feeble-minded persons in the family or among the -ancestors so far as can be discovered, but there is, on the other hand, a -great deal of bad physical history; there may be epilepsy, alcoholism, -insanity, or other serious physical disturbances. Finally, we have a group -in which there is history of some accident, either to the child at the -time of birth or after birth, or to the mother previous to the birth of -the child. - -In Jean's case we have no history of accident or injury to the child -himself. The pedigree or family tree has not been worked up and we do not -know what there may be. It was in evidence that the grandfather was born -on the south side of the Alps; and there was some slight attempt to imply, -since cretinism is very common in that region, that possibly there was -some cretinous condition in the family. All this is not impossible; and if -it existed in the grandfather or even in the great-grandfather, such a -condition might reappear in the grandson in the form of imbecility; yet in -view of our present knowledge, or rather our lack of knowledge on this -subject, this line of argument is too vague to enable us to draw any -conclusions. - -The fact that the mother of Jean was insane and alcoholic justly had great -weight. Before her first child was born she broke down mentally and was -probably never "right" after that time. The first child lived to the age -of seven and from the description was clearly an idiot. The second child -is entirely normal. Jean, who is the third child, did not talk until he -was five years old. - -Our general studies have not yet gone far enough, and certainly our study -of this particular family is far from sufficient, to enable us to decide -whether this is a matter of heredity or whether we shall say that Jean's -condition as well as that of the first child is traceable directly to the -mother's insanity or to her alcoholism. - -For the present purpose, of course, it does not matter. We see in these -facts, whether we regard them as causes or merely as symptoms of a deeper -lying cause, sufficient reason for Jean's being an imbecile. There is -every reason to believe that Jean Gianini is an imbecile of high grade. -The next important question that arises is a legal one of whether, being -an imbecile of high grade, he knew the nature and quality of his act and -that it was wrong. - -Before discussing this let us consider two other cases--after which we may -discuss the general proposition of whether high-grade imbeciles know right -and wrong. - - - - -CHAPTER II - -THE CASE OF ROLAND PENNINGTON - - -On November 7th, 1913, Lewis S. Pinkerton, the manager of a certain farm -in Delaware County, Pennsylvania, suddenly disappeared. As it seemed -probable that he was the victim of foul play the detectives set to work -and in due time arrested George March, the dairyman on the farm, and -Roland Pennington, a farm laborer. Suspicion was directed to these two men -largely through the testimony of the woman who was supposed to be the -so-called common-law wife of March. At his trial it was shown that he had -another wife living, and consequently she did not even have that as a -claim upon him. This woman had heard groanings from the direction of the -barn, and later when March came into the house, had noticed blood on the -towel and on his clothing. - -The body of the lost man could not be found. After being taken to prison -March accused Pennington of the crime, admitting that after the deed was -done he assisted young Pennington in disposing of the body, because, as -he said, he was afraid that he himself would be accused of the crime. -Having made this admission, he took the officers to a wood some miles away -where the body had been buried in a rude, shallow grave. - -[Illustration: ROLAND PENNINGTON. - -(By permission of "Alienist and Neurologist.")] - -When Pennington was confronted with March's accusation, he too made a -confession, which, however, implicated March quite as much as himself. - -March was tried in Delaware County, and convicted of murder in the first -degree. The defense was, in accordance with the above statement, "that he -had nothing to do with the crime itself, merely assisted in disposing of -the body." - -Pennington's trial occurred in June, 1914, when he also was convicted of -murder in the first degree. The defense in this case was imbecility and -irresponsibility. Although the jury did not accept this view, the case is -a most interesting one from the standpoint of criminal imbecility. - -The story of the crime is probably best given in Pennington's own words, -since his confession has all the marks of truthfulness and was evidently -accepted by the jury in the March case. It was almost exclusively on the -strength of this testimony that March was convicted. - - _Statement of Roland Pennington as to the Pinkerton Homicide_ - - I, Roland Pennington, being duly sworn according to law depose as - follows:-- - - I went to work at the Wilson farm about October 7th; I boarded with - George March and his wife; George worked on the farm too; he was the - butter maker; from the time I went to the farm, George was always kind - and good to me; George had charge over me when Lew was not there; - George would loan me money when I wanted any, and several times took - me to Gradyville with him, when he would take me over to the hotel and - treat me to a drink; about a week or two after I went to the farm, - George had a fight with his wife at the dinner table; George told her - she was too intimate with Lew and a painter, who was working there; - she talked back to George and George threw things at her; after dinner - George told me that what he said to his wife was true; that was the - first I knew about George's trouble with his wife; after that George - talked to me about his wife all the time; once I told George I would - like to go West; one day George said he was going to take the painter - to law, and get some money from him, and if I would stick by him, he - would divide up with me and take me West. Afterwards he talked more - about Lew and his wife; one day he said if it didn't stop, he would - break up, sell the furniture, and go West, and that if I would save my - money to help out, he would take me with him; one day George's wife - was away all day, Lew was away that day too; they came home about the - same time; George told me afterwards that he accused his wife of being - with Lew; that night Lew came in the cow stable while George and I - were milking; they had some words, but I could not hear what they - said; George looked pretty mad and Lew was excited; George told me - afterwards that he had accused Lew of being with his wife and Lew - denied it; he also said it was as much as he could do to keep from - getting up and smashing Lew in the face. On several different times - when we were working together, George said that if Lew didn't stop - going with his wife, he would put a stop to it; George had charge over - me when Lew was not at the farm, and one time when I asked Lew for - some money to buy shoes, he would only give me two dollars, and gave - five dollars to George to buy shoes for me; after the first of - November, George said, "Lew hasn't paid me. I wonder why"; he said - this on two or three different occasions; on Thursday, November 6th, - George came to me and said, "Well, Rol, Lew paid me to-day." I said, - "Did he?" and he says, "Yes, he had a big bunch of money on him. Did - you ever see a thousand dollar bill?" I said, "No, I never saw one." - He says, "Well, neither did I. What figures ought a thousand dollar - bill have on it?" I says, "I don't know. A thousand is one and three - noughts after it." He says, "Well, I asked the Mrs. about it, and if - that's right he had one of them on him." This took place Thursday - afternoon about half past three in the stable. That night about - quarter after five while George and I were separating the milk down in - the milk house, George said, "How would you like to have that bunch of - money Lew's got on him?" I don't remember saying anything to that. - There was nothing more said about it that day. The next morning, - George and I were separating the milk down at the milk house before - breakfast, and George said, "Well, Lew will have that bunch of money - on him to-day. Let's get it." I said, "What do you mean?" He says, - "Why, do away with him." I says, "What? Kill him?" He says, "Yes." I - says, "No. I won't kill him." He says, "Well, you start it and I'll - finish it. I got a blackjack up at the house, I used one time myself - to knock a man in the head with out West, to get seventy-five dollars - from him to come East on." He said he was in a bank in the West and - saw this man get the money--the seventy-five dollars--and when the man - came out, he managed to get a ride with him, and while they were going - along the road, he hit the man in the head and knocked him out, and - went on his way. I didn't say anything. - - That afternoon, about three o'clock, George came to me in the milk - house, while we were getting the milk buckets and cans ready to take - to the barn, and handed me the blackjack and said, "Here's the - blackjack; you can do it with that." I put it in my pocket. We then - went to the barn. From then up to about five o'clock, while we were - working about the barn, George kept saying to me, "Don't lose your - nerve. The first chance you get after the workmen are gone, get him." - Several times he said, "Don't miss your chance--Don't forget." Lew was - away that afternoon. He came home while George and I were milking. - - After we finished milking, we took the milk down to the milk house; - then I went back to the barn to feed the horses. While I was feeding - them, George came up from the milk house to feed the calf. I generally - fed the calf. George seldom did it. In feeding the horse, I had to - carry hay around from the old horse stable to the new one. In going - around for some hay, I met George right outside the old horse stable - door. He said, "Lew will be around here pretty soon. You can get him - then." After I had finished feeding the horses, I took the fork over - to the old stable. As I was doing so, Lew went in the new stable. I - met George at the stable door when I came out from putting the fork - away. George said, "He's in the new horse stable; go get him." I went - in and told Lew there was a nail in the last stall next to the box - stall and that he had better look at it. He went up to look at it, and - while looking at the place I told him, I struck him on the head with - the blackjack. He turned part way around, threw up his arm, and said, - "Hey, what are you doing?" I struck at him some more; he rushed at me - and we clinched. This happened in the stall alongside a horse. After - we clinched we got out into the passageway, back of the horses. Lew - soon got the blackjack away from me. As we came out into the - passageway, I think I saw George near the door. He afterwards told me - he heard when I hit Lew first and that he came in, and that while Lew - and I were wrestling, Lew made a grab for him and knocked his glasses - off. Lew and I tussled quite a while up and down the passage back of - the horses; Lew was hollering all the time; I think we went down - once, got up again, and went down again, with Lew on top of me; then I - got on top of him. At about that time he called for George; George - must have gone out in the meantime, for when Lew called for him, I - remember the door being opened and George coming in. He came up and - asked Lew what was the matter, whether the horses kicked him. Lew - said, "Yes, yes, help me." George stooped over and whispered to me, - "Where is the blackjack?" I told him Lew had it. Lew then said, - "George, you are no kind of a man." Whether George got the blackjack - or not I don't know. He then went around by Lew's head and started - kicking. I had my hand on Lew's head and the first kick George made he - kicked my knuckles. I then left go of Lew and got up. While getting up - George was continuing to kick him in the head. After continuing to - kick him in the head after I got up, George went around and kicked and - stamped Lew in the side. Then he stopped--and said as though to - himself--"Which side is his heart on?" Then he started to kick him on - the other side. After a while he stopped. I don't remember whether he - said anything to me or not. Anyhow, George took him by the head and - shoulders and I by the feet and we carried him into the box stall. - Then George went up to the house for a lantern. I waited for him at - the stable door. He came down with the lantern and went in the box - stall, felt Lew's heart, and then stood up and stamped him some more; - then he searched him. - - In tussling with Lew I had gotten blood on my coat, pants, and shirt. - After George searched Lew, we left the stable, and I asked George - where the overalls were that the whitewasher had worn. George said he - thought they were up at the wagon house. We went there, but could not - find them. George did find an old pair of Lew's pants and a shirt. He - gave them to me and I put them on. While I was putting them on George - went in the house. I went in later, went to my room, put on another - coat, and went down to supper. George finished his supper first; got - up and told the Mrs. he was going to Gradyville after some sulphur for - the pigs. He then asked me if I wanted to go along with him. I said I - would. Then we went to the barn; George got two bags in the old horse - stable and put one inside the other. Then we went in the new horse - stable where Lew was. George set the lantern down and told me to take - hold of his arms and lift his head and shoulders. I did so, and George - slipped the two bags over Lew's head and body. Then George tied a - cloth around the neck overtop the bags. Then he told me to hitch the - horse Dick to the milk wagon. I did so. Then I returned to the new - horse stable. George then said we will carry him up to the wagon. I - had left it in front of the wagon house at the barn. George said, "We - had better take him up through the barn." George took him by the head - and shoulders and I by the feet. We carried him up through the barn. - When we got to the wagon, George got some bags and put them on the - floor of the wagon. Then we put the body in. Then we got a blanket and - threw it over the body. Then George got two shovels and a grubbing - hoe, and put them in the wagon. Then we drove away. - - After we got started George said we would bury the body in - Lauterback's woods. When we reached the road that he said led up to - that woods, he said it was too near home and kept on driving. After - driving for a long time we came to a pair of bars. He pulled up there - and said, "That wood over there looks pretty good." Then he drove on a - little piece further. Then he said we better go back to that woods. - Then we turned around and went back to the bars. George got out there, - handed me the lines, and he took down the bars. I drove in, he put in - the bars, and led the way, and I drove on across a field, till we came - to another pair of bars. He took them out and then led the way across - the fields to the woods. When we got there, George picked out a place; - said he thought it would be an all right place. Then we dug the grave. - Then we went back to the wagon, got the body, put it in the grave, and - covered it up. Then we returned home. - - That night George suggested that we clean up the marks in the morning. - The next morning we got up early and cleaned up the marks on the floor - and washed the walls. George said to make sure there would be no marks - on the wall it would be better to whitewash it. He said he would do - that and for me to go to other work, so I started to haul stone. - George also said to take my clothes to the milk house and burn them. I - did take them there on Saturday morning. George was there and I gave - them to him. He said he would burn them. On Saturday, George came to - me and gave me seven dollars and a watch and a ring which he got off - of Lew when he searched him. He told me he had only gotten fourteen - dollars and five cents and to pawn the watch and chuck the ring. I - threw the ring away and took the watch to Philadelphia and pawned it - at Carver Reeds on Market Street near Fifteenth Street for four - dollars. When I saw George the next morning, Sunday, I gave him the - pawn ticket and said I would give him two dollars when I got the - change. He said never mind that. - - (_Signed_) ROLAND PENNINGTON. - -Here again is a crime so abhorrent in its details that it is unbelievable. -There is no excuse for it, no adequate motive, no justification whatever -so far as the boy, Pennington, is concerned. - -For March, it is easy to believe, as the jury evidently did believe, that -he was actuated by what might be called an insane jealousy of the woman -with whom he was living. We are familiar with the lengths to which such -jealousy can lead a man. But why Pennington allowed himself to be made the -dupe of this jealous man cannot be explained; it is absolutely -incomprehensible on any theory that assumes that he is a normal boy of -nineteen years. - -It was in accordance with this feeling that some one raised the inquiry as -to whether the boy was possibly a mental defective. This question having -arisen, the writer was asked to examine him and give an opinion as to -whether or not he was normal. - -Accordingly the examination was made in the Delaware County jail in Media; -this showed that the boy had a mentality of about eleven years according -to the Binet Scale. He could not do any of the tests for age twelve and -failed on some of those in ten and eleven. This indicated an intelligence -scarcely up to eleven. - -Further examination by other methods, the circumstances of his life, his -appearance, and his school history, all tended to corroborate this view. -The boy was nineteen years old when he committed the crime; two years -before he had left Westtown Boarding School, after an attendance there of -two and a half years. When he entered the school, the teachers graded him -as of a capacity equivalent to the fifth grade in public school; he, -therefore, began sixth-grade work. He never got out of that grade. For two -and a half years he studied and tried to pass. He was absolutely unable to -do sixth-grade work. Sixth-grade work, it will be remembered, is about the -grade for a twelve-year-old normal boy; thus we have a striking agreement -between his school experience and his Binet tests. By the Binet test he is -eleven; in school he cannot do twelve-year work! - -Asked what he had done since he left the school, he said he had done "a -good many things." Asked where he had worked, he said he did not remember -all of the places. As a matter of fact, he had had exactly the career that -the high-grade imbecile usually has out in the world. He either gets -discharged from his positions because of incompetency or he leaves -because of his nomadic tendencies. The imbecile rarely stays long in a -place if free to move. - -In addition to the above, the reader will see many evidences of -childishness in his confession. He talks like a child; he alludes to -George March as a child would; he says, "He has charge over me"--"He was -kind and good to me; he used to take me to Gradyville," etc. Even -Pinkerton gave the money to March to buy shoes for Pennington. Again -Pennington says, "George said he was going West and he would _take me with -him_." One cannot imagine a nineteen-year-old youth, or even a -fifteen-year-old, talking in this way. By the time a boy reaches the -latter age, he is in his own mind the equal of anybody. He would not say, -"George took me." He would say, "We went." He would say, "I got along all -right with George," or some other expression whereby he would assert his -own manhood and not take the rle of a child. - -While in jail he showed no realization of the seriousness of his -situation; showed no remorse for his deed; took no interest in his case. -For example, he was told by his lawyer not to allow himself to be examined -by any doctors without sending for his counsel; in spite of this warning -he allowed himself to be examined by four physicians at one time and by -two at another, and never mentioned the matter to his counsel even after -it was done. - -In the confession made to the prosecuting attorney one notices, as in the -one we have quoted, that he appears simple and innocent; answers the -questions often in terms of the questioner instead of by a simple "Yes" or -"No," which would be natural for a normal young man; he is uncertain and -hesitates; he says, "I think," in a great many cases where it was strongly -to his advantage to speak positively. - -After the deed was committed he _took no care to remove the evidence_; -everything that was done in that connection was done at the _suggestion of -George March_. All the way through this part of the confession it -reads--"He led, I followed," "I did as he told me." - -Having satisfied ourselves that Roland Pennington is a high-grade -imbecile, the next question is, even as an imbecile, why did he do this -deed. - -In the case of Jean Gianini we found that it was for revenge of a fancied -wrong, that is, according to his own statement. If not that, it may have -been a sexual matter. In this case neither motive applies, and we have -only two possible theories. The theory of the state was that it was for -robbery. Indeed, Roland himself seems to admit that this was the motive. -But this again is only a part of his imbecility. He was given a leading -question by the prosecution and was weak-minded enough to say, "Yes." - -As a matter of fact one finds it very hard to get any evidence from the -whole situation that he really was lead by cupidity. There is no evidence -of any elaborate plans in regard to money, either as to getting it or as -to what was to be done with it when he got it. March had talked about a -thousand-dollar bill, and asked Pennington how he would like to have "that -bunch of money." Pennington says he does not remember saying anything in -reply. This does not look as though it aroused any great emotion in him. -Later March said--referring to the money Pinkerton was supposed to have -"on him"--"Let's get it." Pennington asks, "What do you mean?" He is -clearly thinking less of the money than of what he begins to dimly -understand they are to do. When he understands that they are to kill him, -he says distinctly, "No. I won't kill him." Never again is the subject of -money mentioned. In all March's urging him to do the deed he never says, -"Remember the money," or alludes to money in any way. - -Perhaps we are begging the question. If Pennington were really intelligent -and shrewd, he would not say anything in his confession that would supply -a motive for the crime. Not only does the whole confession give ample -evidence that he was not sufficiently intelligent to protect himself in -this way, but the conclusion of the matter shows clearly that it was of -practically no importance to him. After the deed, March gave him seven -dollars! He said, "I thought there was more." That is all. He did not -insist or complain. He accepted it calmly and without protest. He even -proposed to give March half of the four dollars received for the pawned -watch. Imagine a nineteen-year-old boy with full consciousness and -responsibility killing a man for his money and being so complacent over -receiving seven dollars! The theory is not convincing. Even the -prosecution, whose whole case depended upon showing a motive, never -pretended that Pennington made any stir because the amount was so small. - -There is not the slightest evidence, external or internal, that the idea -of getting money played any part in Pennington's share of the crime. - -Why then did he consent to begin the matter which George was to finish? It -is clearly a case of suggestion. A suggestion, it is true, which never -would have worked with a normal nineteen-year-old youth. With this -weak-minded boy it is easily understandable. As we study the confession we -discover that George March, either consciously or more likely -unconsciously, used suggestion most adroitly. Undoubtedly he had learned, -through association with Roland for six weeks, that this boy was very -simple-minded and easily led. Having reasons of his own for desiring to -get rid of Lewis Pinkerton, he first suggests the matter of money, hoping -to appeal to Roland's cupidity. It will be noticed that he nowhere uses -the word "murder" or "kill"; even the mild expression, "Make away with -him," he uses only once. When Roland at one time almost takes fright and -asks, "Do you mean kill him?" and he admits that he does and Roland says -he won't do that, the older man lulls him to sleep by the suggestion, -"Well, you begin and I'll finish it." - -March tells a story about a blackjack; then he brings the blackjack and -gives it to Roland, saying nothing except, "You can do it with that." -Roland is so weak-minded that he takes the blackjack and puts it in his -pocket. When the right time comes and the opportunity is near at hand, -March stations himself at a convenient place where he will see Roland as -he goes back and forth at his work, and for some little time he -constantly coaxes and dogs him, pouring into his ears a stream of -suggestion such as, "You will have a chance pretty soon"; "Don't forget"; -"Don't lose your nerve"; "Now you can get him"; "Now nail him." - -It is an interesting little point, possibly only a coincidence but -nevertheless a perfectly natural imbecilic association, that the one -seemingly original thing that the boy did in connection with the matter -was to invent a little trick in regard to the nail in the stall. It is -quite likely that even this was suggested by George's previous expression, -"Nail him." - -Even the blow itself does not seem to have been given with normal vigor; -having every advantage,--the victim bending over, Roland being behind him -and with a blackjack which is capable of thoroughly stunning, if not -killing at one blow,--he apparently did not strike with force enough to -even produce unconsciousness. His victim was able to talk and to struggle -for some minutes, until March, the companion in crime, came up and, as he -expressed it, "finished him." - -As to motive, then, we conclude that the defendant had none. He was acting -upon the suggestion of George March. Even the poor mind that he had, which -under other circumstances might possibly have rebelled at such a -suggestion, was lulled to sleep by this man of better intelligence for -whom he had been working and who he had learned to think was "good and -kind" and on whose judgment he thought he could rely. - -Since the Pennington case is typical of the way weak minds work under -control of normal minds, it will be worth while to analyze somewhat more -fully this idea of _suggestion_. - -How does suggestion work? Why does it indicate a weak mind and how does it -affect our ideas of responsibility? Let us see. - -We have already seen that Roland Pennington was under the control of -another mind; we do not mean that he was actually hypnotized--a -nonsensical plea that is sometimes brought into court cases. Roland -Pennington was a victim of suggestion. An illustration will make this -clear. - -If I were to take a city man to a third-rail electric road and ask him to -stand on one rail and put his hand on the third rail, he would resist the -suggestion, because there would immediately come into his mind visions of -himself burned to a crisp or instantly killed. But suppose I take a man -who has come from the rural districts and who never heard of third rails. -He has lived, let us assume, in my house and worked under my direction a -month and has come to regard me as a friend. We have worked together and -talked together; I take him out and say, "Touch that third rail." Will he -resist the suggestion? Not at all. Why not? What is the difference between -the two men? The first has ideas about third rails. His past experience -has filled his mind and memory with thoughts and with knowledge which -instantly come to consciousness when I suggest touching the third rail. -The other man has no such experience. He has known me long enough to have -some faith in me. In fact from the very nature of things he is in the -habit of doing what I tell him. I tell him to do this, and he does it. - -Coming back to the first case, one perhaps can conceive that the city man -and I might come upon the third rail under such conditions that he was not -thinking of it. Instead of saying "third rail" to him I might say, "My! -that rail is hot" and he would almost instinctively put his hand upon it -to verify my remark. If he survived and could talk about it afterwards, he -would say, "Of course I ought to have known and did know that was the -third rail, but I did not think." That is the way suggestion works. - -To illustrate still further, we may speak of hypnotism itself. All of the -wonders that are produced under hypnosis are to be explained in exactly -this way. The subject is so nearly asleep that nothing gets into his -consciousness except the ideas suggested by the operator. Accordingly he -is utterly unable to resist any suggestion that is given him. - -Now coming nearer to our problem, children are naturally very suggestible -because they have not the experiences, the ideas. One may easily believe -that an eleven-year-old child could be induced to touch the third rail. -Furthermore, authority plays an enormous rle with children. I might take -my ten-year-old boy out for a walk. He knows all about third rails and -would not touch one. But if I were to say to him, "Son, you can put your -hand on this, because there is no current on," he would probably obey -without question, because of his implicit trust in me. That confidence in -a superior, either in age, intelligence, or position, is one of the -characteristics of immature minds and one of the conditions that makes us -all suggestible. In the hypnotic terminology again, this is the being _en -rapport_. The hypnotized subject obeys the operator and no one else -because it is the operator with whom he is _en rapport_--in other words, -in whom he has confidence. - -Now let us come to the situation. It is perfectly clear that Roland -Pennington was under strong suggestion and that any vague concepts that he -might have had of the wrongfulness of murder or of killing a man were very -carefully allayed by the man who had the influence over him and who had -the motive for this homicide. - -The whole statement shows that Roland recognized George as a superior, as -one in authority over him and at the same time as a friend, as one on -whose word he could absolutely rely. It is a perfect picture of the child -following the man. - - - - -CHAPTER III - -THE CASE OF FRED TRONSON - - -Our third case is that of Fred Tronson of Portland, Oregon. What we know -of the history of Tronson is brief, but amply sufficient to prove that he -belongs to the group that we are considering. He had lived in Portland for -two years and in that time had held seven different positions as elevator -man. He was twenty-four years of age, when, in August, 1914, he met and -became infatuated with Emma Ulrich, a stenographer who worked in the same -establishment where he ran the elevator. He asked her to marry him, but -she refused. Later he was arrested for threatening her and was ordered to -leave town and not to annoy her any further. On November 16th of the same -year he waited for her outside of her home with two loaded revolvers. When -she stepped off the street car, he again asked her to marry him. She -became frightened and ran toward her home. He followed her, shooting as he -went. He followed her into her own house and there shot her down. On -Wednesday, December 9th, 1914, Tronson was tried and convicted of murder -in the second degree. Oregon having abolished the death penalty on -November 3d, only a second-degree verdict, which carries with it -imprisonment for life, could be returned. The trial was very brief, and -the jury returned within fifteen minutes. There was practically no -defense, except the claim on the part of Tronson's attorney that the man -was weak-minded and, therefore, in strict justice, should be placed in -custody, not in the penitentiary but in some other institution more suited -to his condition. He had been examined by two alienists and pronounced -sane, but of low mentality. He was also examined by a psychologist who -used a modification of the Binet tests, which showed him to have a -mentality of nine years. - -[Illustration: FRED TRONSON.] - -This rating obtained by the psychologist was confirmed in many ways. His -mother said he had never been able to hold a job more than two or three -months. He left school shortly before he was twenty, but we have no record -of what success he had or what grade he was in. His conduct at the trial -and before was that of an imbecile. When he was examined in the police -station, he seemed to be in constant fear that some one outside would do -him harm. When he had displayed uneasiness about an open window, the -detectives told how they closed it and sat between him and the window to -assure him that no one in the street would harm him. During the impaneling -of the jury and the taking of the testimony, Tronson sat slouching in his -chair, with sunken eyes, glaring at each witness, and with his mouth -hanging half open as though he barely understood what was going on. The -deep lines in his face and the dark circles beneath his eyes gave a vision -of sleepless nights and haunting memories. Like the other two imbeciles -whom we have discussed, he made a confession. The following is his -statement:-- - -Statement of Fred Tronson taken in the office of Detective Captain Baty on -Thursday, November 19th, 1914, in the presence of Deputy District -Attorneys John A. Collier and Thomas G. Ryan, Detectives Pat Moloney and -Tom Swennes. - -_Question._ What is your name? - -_Answer._ Fred Tronson. - -_Q._ How old are you? - -_A._ Twenty-four. - -_Q._ How long have you lived in Portland? - -_A._ One year and seven months. - -_Q._ What have you been doing? - -_A._ Running elevators. - -_Q._ Now, Fred, I am a deputy district attorney representing this state, -Mr. Ryan here is a deputy district attorney, and these other men are -officials and officers. You have been charged with a crime, and of course -you have your rights. You have a right to make a statement here to me if -you want to tell us what the facts are. You are not forced to make a -statement, but you may do so if you want to. There isn't any use of your -getting nervous, and there is nobody going to bother you here. You needn't -be afraid. You cannot be forced or compelled to make a statement, and any -statement you make must be voluntary. Do you want to make any statement -about this shooting affair? - -_A._ Yes. - -_Q._ You may go ahead and just tell me what happened, commencing at the -first of it, and tell me how it came about. - -_A._ Well, that time I accosted the girl in the street, it was last August -the 3d, I asked her if she would have me and she didn't give me any -satisfactory answer. She said she would wait outside at noon. In the -meantime she had me arrested. Of course I threatened to shoot myself if -she wouldn't have me. She says, "No, don't do that; I would rather have -you leave town," she says like that. She says, "I will write to you." She -says, "You are going to be a man, aren't you?" I said, "Yes, if I can't -have you." She said she would meet me out there at twelve, and before that -she phoned the police or the other girl up there, I don't know. - -_Q._ That was last August? - -_A._ Yes. - -_Q._ You were arrested on that charge? - -_A._ Yes. - -_Q._ What did they do with you? - -_A._ Well, they kept me here about a week and then let me go with the -understanding that I go out of town. Judge Stevenson says go out in the -harvest fields and take a good sweat and when you come back, look for some -other job and you will be all right. Come back in the fall. So I went out -next Monday and stayed a couple of days and couldn't get anything and came -back and waited about a week and stayed another week and then went to Hood -River, and picked apples and stayed up there about ten days and then came -back and I couldn't get anything. I was hoping the girl would kind of come -to me after awhile and I found after a few months that she wasn't, so I -thought I would get rid of her so somebody else wouldn't have her. - -_Q._ When did you make up your mind to do that? - -_A._ Last week. - -_Q._ After you made up your mind to do that, what did you do? - -_A._ I went off and got the guns. - -_Q._ Where did you get the guns? - -_A._ At Vancouver. - -_Q._ What kind of a gun was it? - -_A._ You got it there. That's the one I shot her with (pointing to a gun -on Captain Baty's desk just opposite Mr. Ryan), but I had another one, -too. - -(This gun, marked #5308 on gun itself and marked "Exhibit A--Ryan," was -thereupon handed to the prisoner.) - -_Q._ This gun marked "Exhibit A," here, is that the gun you shot her with? - -_A._ Yes. - -_Q._ Where did you get that gun? - -_A._ Vancouver. - -_Q._ For what purpose did you get it? What did you intend to do with it? - -_A._ I intended to shoot her. I intended to hold on to it, but in my -excitement I dropped it in the weeds there, I guess. - -_Q._ Where did you get the gun at Vancouver? Do you know the name of the -store? - -_A._ No, it was a hardware store. - -_Q._ How long before you did the shooting did you get this gun? - -_A._ About three hours, something like that. - -_Q._ Do I understand that you went to Vancouver and got this gun and then -came over to Portland, and did the shooting? - -_A._ Yes. - -_Q._ Where did you get this other gun? (Gun numbered 2506 was thereupon -marked "Exhibit B" by Mr. Ryan, and handed to Mr. Tronson.) - -_A._ This second-hand gun? - -_Q._ At a second-hand store? - -_A._ Yes. - -_Q._ Did you buy that at the same time you bought the other gun? - -_A._ Yes. - -_Q._ Where did you buy this gun? - -_A._ Well, I didn't want to buy them both at the same place. I thought -that they might get suspicious. I didn't want to get two five-dollar guns. -I bought that for three. - -_Q._ What did you have in mind when you bought this? - -_A._ Well, if one didn't work, the other would. - -_Q._ Do I understand you to say that you bought this to kill her with? - -_A._ Yes. - -_Q._ If the new gun didn't work, that would? - -_A._ Yes. - -_Q._ When you came over from Vancouver, did you have the guns loaded? - -_A._ No. - -_Q._ When did you first load the guns and prepare to do the shooting? - -_A._ Down there along the river some place. - -_Q._ Out in South Portland? - -_A._ Yes. - -_Q._ Did you load both of them? - -_A._ Yes. - -_Q._ You knew where Miss Ulrich lived, did you? - -_A._ Yes. - -_Q._ Had you ever visited at the house? - -_A._ No. - -_Q._ Had you ever kept company with her? - -_A._ Yes, I walked around the streets with her once in awhile. - -_Q._ You never went to her home? - -_A._ No. - -_Q._ Did you know her folks? - -_A._ No. - -_Q._ Where did you stay out there until she came along? - -_A._ I didn't get out there any too soon. I didn't stand round two -minutes. - -_Q._ What time did you leave town here to go out to the scene of the -shooting? - -_A._ I came right from Vancouver and went through. - -_Q._ What time did you get over to Portland from Vancouver? - -_A._ About five o'clock. - -_Q._ After you got over to Portland what car did you take then? - -_A._ I walked out. - -_Q._ Which way did you go out? - -_A._ First Street. - -_Q._ How far out First Street did you go? - -_A._ Until I struck some of those other streets down there, Front Street I -guess, Water or Corbett. - -_Q._ How long did you wait out there before you saw Miss Ulrich? - -_A._ I didn't wait at all, I just walked around the block and she got off -the car. - -_Q._ Did you see her get off the car? - -_A._ Yes. - -_Q._ What time was it when she got off the car? - -_A._ A little before six. - -_Q._ What car did she get off? - -_A._ North and South Portland. - -_Q._ Did you speak to her when she got off? - -_A._ Yes, I said, "Wait a minute." I wanted to talk to her, and asked her -for the last time; she started running, hollering. - -_Q._ Just what did you say to her? - -_A._ That's all I said to her. I wanted to talk to her and she started -running and hollered. - -_Q._ Did you have the gun in your hand at that time? - -_A._ No, in my pocket. - -_Q._ All loaded and ready for action? - -_A._ Yes. - -_Q._ How far was her house from the car? - -_A._ Not quite half a block. - -_Q._ Was there any one else got off the car at that place? - -_A._ No. - -_Q._ What did you do next? - -_A._ I followed her around the house. - -_Q._ Did she run around the house? - -_A._ Yes. - -_Q._ Did you run after her? - -_A._ Yes. - -_Q._ When did you commence shooting? - -_A._ Just before she went in the door. - -_Q._ What door did she go in? - -_A._ The back door. - -_Q._ How many shots did you fire? - -_A._ One before she went in. - -_Q._ How many after that? - -_A._ Four; I think there are only five in the gun. - -_Q._ Did you know that the last bullet struck her? - -_A._ I knew one must because she fell down after I began firing the other -bullets. She was in the bathroom; then she began to crunch down; then she -fell on her face like a board and struck her head on the floor. I thought -she must be dead or unconscious or something like that. I left then. I -took it for granted she was dead. - -_Q._ You didn't leave or didn't stop shooting until you thought she was -dead? - -_A._ No. - -_Q._ You went out there for the purpose of killing her if she didn't -accede to your wishes? - -_A._ Yes, I am sorry I had to do it. - -_Q._ Why did you feel that you had to do it? - -_A._ I didn't want anybody else to have her if I couldn't. I thought I -should have her. She told me once she liked me, and I didn't see any -reason for turning me down. I acted like a gentleman. I had given her one -present already. - -_Q._ After you thought she was dead and that you had completed your job, -where did you go? - -_A._ I ran down on Hamilton Street. - -_Q._ This gun that you used to do the shooting, was this gun (marked -"Exhibit A") the new gun numbered 5308 (handing it to him for inspection)? - -_A._ Yes. - -_Q._ Where did you go? - -_A._ I ran out of the way kind of on a trot down into Hawthorne Bridge and -then North on Union Avenue and caught the Vancouver car and went to -Vancouver. - -_Q._ Did you take both of these guns with you? - -_A._ No, just one. I dropped the other one. - -_Q._ Which one did you drop? - -_A._ The new gun. - -_Q._ That is, you dropped that after all the bullets were fired out? - -_A._ Yes. - -_Q._ After you got to Vancouver where did you go? - -_A._ I went to a picture show over there and stayed about half an hour, -and then I went to a rooming house. - -_Q._ Stayed all night in Vancouver? - -_A._ Yes. - -_Q._ Did you feel pretty nervous, knowing that you killed her? - -_A._ Yes, I sat up. I didn't sit up; I laid awake. I didn't sleep at all. - -_Q._ Where did you go when you left Vancouver? - -_A._ Went right out the next morning, went right out the Pacific Highway. - -_Q._ Why did you run away? - -_A._ Well, I wanted to get the papers and see if I had killed her and then -I was going back and shoot myself at the same place I shot her. I didn't -want them to get me until after I went around another way and shot myself -down there. - -_Q._ Did you intend to come back? - -_A._ Yes. - -_Q._ Did you read the papers at Vancouver? - -_A._ Yes. - -_Q._ Did you see in the papers that Miss Ulrich was dead? - -_A._ Yes. - -_Q._ Why did you keep going the other way? - -_A._ Well, I didn't want to come back this way and run into the police. I -was going around Seattle and Tacoma and cross over and come back around. - -_Q._ When you read in the papers that you had killed her, did you feel -satisfied? - -_A._ Well, yes, but I was afraid there would be bloodhounds after me, and -I would get shot down in the road. - -_Q._ You weren't worrying so much about her as you were afraid somebody -might do you an injury? - -_A._ Well, I didn't want them to get me until the job was completed and I -had shot myself. - -_Q._ Did you think there was somebody else interfering to keep her from -marrying you? - -_A._ I guess there was. - -_Q._ Did you have in mind to shoot any one else? - -_A._ No. - -_Q._ You knew she was engaged to marry another fellow? - -_A._ Yes. - -_Q._ Was that what made you decide to kill her? - -_A._ I thought she gave him up. Well in a way I did and in another way I -thought it was a bluff. - -_Q._ When did you make up your mind to get these guns--on the day of the -killing? - -_A._ Yes. - -_Q._ You knew at the time what you were doing,--what you were getting the -guns for? - -_A._ Yes. - -_Q._ You got the guns with the idea that if she refused to marry you why, -then, you would kill her? - -_A._ Yes. - -_Q._ You knew what you were doing at that time? - -_A._ Yes,--I don't think a man in his right mind would do it. - -_Q._ You knew that it was wrong to kill her, didn't you? - -_A._ Yes, but all I was thinking was about her. - -_Q._ You knew it would be wrong to kill her? - -_A._ That's what the law says. - -_Q._ You realized that fact at the time? - -_A._ Not as much as I do now. - -_Q._ You were in possession of your senses and you knew it was wrong to -kill her? - -_A._ Oh, yes, it was wrong to kill her--take her life. - -_Q._ You know it is wrong to take that which you cannot give, and you knew -at the time that you were doing wrong, and you knew that when you went -over there to get guns? - -_A._ I didn't take it very serious then like now. - -_Q._ Did you ever drink liquor to the extent of getting drunk? - -_A._ No. - -When this confession was read to the jury, Tronson leaned over and asked -the clergyman, "Well, what do you think of it?" When the verdict of the -jury was given, he did not understand what it meant and asked to be told. -When he was answered, he showed no appreciation of its significance, but -remarked that there wasn't so much of a crowd out as at the trial. - -This is the third case in which the Binet tests have been admitted in -evidence and the findings in accordance with these tests practically -accepted. No one seems to have denied that Tronson is an imbecile. He is -of lower grade than the other two that we have discussed, and enough lower -so that his defectiveness was much more apparent and easily admitted by -all of the judges. As will be noted, there was no reasonable motive for -the crime. In his own words: "She wouldn't marry me. That's why I killed -her--so that no one else could have her." In the case of Gianini we are -possibly dealing with the sex impulse, perhaps hardly recognized even by -the criminal himself. In Tronson's case we have that impulse definitely -recognized and asserting itself and, being uncontrolled, leading to an -action of the crudest and most savage kind. Under other conditions, it -would very likely have shown itself in a different way. If Tronson could -have gotten the girl off by herself, it is very probable that he would -have committed violence in the gratification of his sex impulse. But since -she refused to marry him and kept out of his reach, he shot her down in -order that "no one else could have her." - -It is unnecessary to discuss the case further. We need nothing more to -convince us that the diagnosis of imbecility was correct. It remains only -to point out two facts. First, that this man has been an imbecile at least -since he was twelve years of age, that he could have been recognized as an -imbecile and cared for, and thus this atrocious murder prevented. Second, -that there are hundreds of just such persons, now in their youth, who are -potential criminals. Unless their mental condition is recognized and they -are cared for in such a way as to make crime impossible, many of them will -repeat the career of Tronson. - -Fred Tronson is in prison for life. He will in all probability never be -pardoned. He will never have an opportunity to commit another murder. But -that does not restore the life of Emma Ulrich and it is small comfort to -her friends and relatives. It does not in the least remove the blot upon -society, which has allowed such a murder to be committed. Society should -have taken him in hand twelve years ago. It should be further noted that -Tronson had been before the Court at least once before he committed this -crime. At that time had the Judge realized that he was dealing with an -imbecile he might have sent the boy to an institution for the -feeble-minded instead of simply ordering him to leave the town. Shall we -learn the lesson and take care of the other Fred Tronsons who are now in -our public schools and on our streets? - - - - -CHAPTER IV - -THE CRIMINAL IMBECILE - - -From the description already given it will be seen that Roland Pennington -is very different from Jean Gianini. Both are imbeciles, but each is an -example of a special type. Gianini is of a nervous, impulsive, irritable, -loquacious type, fond of show and excitement, a braggart and a coward, -with an excellent memory, a great reader--particularly interested in -stories of excitement and crime. Pennington, on the contrary, is a slow, -dull, relatively stupid boy, of poor memory and slow perception. While -having made the fifth grade in school work, he has done it slowly and with -not so much success as in the case of Gianini. He is not so much given to -talk or to showing off; is somewhat addicted to drink and is exceptionally -fond of playing pool. - -Gianini's confession is colored by his desire to show off and shine in the -limelight; Pennington's, on the contrary, is a plain, unelaborated -statement of the facts. He is driven to his confession, not by his desire -to show off, but in self-defense. His colleague, March, is trying to throw -the entire responsibility upon him in order to escape from any -condemnation. In the face of this Pennington is prompted to tell his own -story. He is not intelligent enough to make up a plausible story which -would incriminate March and save himself. But in telling the facts as they -occurred he incriminates himself quite as much as March, so far as the -actual occurrences are concerned. His whole conduct, from the beginning of -the crime until his arrest, is that of a dull, stupid person. He does not -even wield the blackjack with intelligence, and after the man is killed by -his comrade, he takes no precaution to save himself from suspicion, to -dispose of the body or to clean up about the barn and remove the evidences -of a crime. And finally, when it comes to a statement of the case, he -apparently makes no attempt to shield himself, but acknowledges his part -in it, although that part was, as a matter of fact, so slight that a -little variation in his testimony would have thrown the entire burden upon -March and relieved him from any complicity in the matter. - -If the foregoing statement of the case is correct, we ask at once, how it -happened that the jury did not see it in this light, but instead brought -in a verdict of "Guilty in the first degree"? While there are many -elements in the answer, such as the demand of the public for revenge on -the murderer of the man who was more or less of a favorite; a hastily -drawn jury; a hurried trial, etc., the burden of the explanation falls -back upon the same condition which we discovered in the case of Gianini, -namely, the ignorance of the general public in regard to this type of -feeble-mindedness. Almost every one thinks that he knows an imbecile. We -have so long considered these high-grade cases as _normal but vicious_ -persons, that it is difficult to change the point of view suddenly and -realize that they are not responsible for their deeds. - -This failure to recognize the high-grade type of imbecile extended even to -the "experts" in the case; for whereas there were three who testified to -the feeble-mindedness of the prisoner, there were four or five who -testified to his normality. These were four general practitioners of -medicine, including the jail physician, and the fifth, a professor of -neurology and neuropathology. These gentlemen are all familiar with what -we should call the low-grade type of imbecile. They were perfectly correct -in declaring that Roland Pennington is not a low-grade imbecile. Not one -of them had had experience with the high-grade type. They were, -therefore, not qualified to pass upon a case of this kind. It was as -though four general practitioners had been brought in to decide a case of -obscure insanity. Every one of them could have testified that he had had -more or less to do with insane people, meaning persons who are maniacal or -strongly melancholic or katatonic, but what would be the value of the -testimony of such men in such a case, for instance, as that of Thaw? - -These men all thought they knew something about high-grade -feeble-mindedness. They all testified that Pennington was a normal man. -Compare this with the statement of Dr. Martin W. Barr, one of the foremost -authorities on feeble-mindedness in the United States--indeed, in the -world. Dr. Barr says (_Alienist and Neurologist_, November, 1914, page -367):-- - -"The courts simply do not go far enough back; they fail in that they do -not reach the inception--the root of the matter. They often punish without -careful investigation of the causes from which criminal instinct -springs--the environment, family history, inherited tendencies, physical -disability, and that susceptibility to suggestion which makes them the -ready tools of the vicious. - -"In the case of Roland Pennington, tried in Media last June, for aiding -in the murder of a man, it was proven that the boy, although almost twenty -in actual age, yet coming from a neurotic stock, with three first cousins -imbecile, had mentally only attained some 11 or 12 years; still he was -adjudged responsible, and murder in the first degree was the verdict. - -"Is it not a poor law that first permits a person to commit a crime, and -then punishes him for it, not recognizing that an ounce of prevention is -worth a pound of cure? - -"Pennington had sufficient intelligence to comprehend the enormity of the -deed, but, susceptible to suggestion in exaggerated degree, he had not -sufficient inhibition to resist the volitional act. - -"Early recognition of his mental defect and separation would have -protected him alike from tempter and temptation." - -It is unfortunate that Dr. Barr did not testify in the case, but his -assistant did testify and was understood to express Dr. Barr's views. - -It was unfortunate, indeed, that men who really knew so little about the -type of case before them were allowed to pass as experts and their opinion -allowed to carry more weight with the jury than the opinion of those who -have spent years in intimate association and study of the problem of -high-grade imbecility. It should be recognized that there are very few -persons who are expert with this type. The superintendents of our -institutions for the feeble-minded, after a few years of experience, have -a knowledge of this matter which far surpasses that of any physician who -has not had institution experience, however great a specialist he may be -in nerve diseases, in insanity or epilepsy. It is not enough to find out -that a physician has had some experience with imbeciles. The real problem -is: Has he had experience with this high-grade type? Is he able to pick -them out? Is his knowledge as well as his experience confined to the -medium and low grades, which every one meets? Failure to make this -distinction had much to do with the verdict in the case of Pennington. - -Another element in the result was the failure to make clear to the jury -the precise situation, the real point at issue. The defense in the case -had no desire to free Roland Pennington from all the consequences of his -deed. It was not a case of the electric chair or freedom. The imbecile, -especially one who has shown the tendency toward crime or willingness to -be led into crime, should never be at large where it is possible for him -again to go wrong. On the other hand, it is abhorrent to think of a child -(in mind) going to the electric chair for the deed which he committed -while under the influence of a superior intelligence, or while impelled by -the hidden forces of his nature over which he had no control on account of -his weak mind. It should have been made very clear to the jury that what -was wanted was to save the commonwealth the shame of officially putting to -death a person who had only a child's intelligence. In an ideal state such -a person should doubtless be kept in an institution for the feeble-minded -under a life commitment, unless his impulses are such that he proves to be -dangerous to the other inmates, in which case a different kind of -institution should be provided. Until we arrive at a condition where we -treat such persons ideally, one cannot object to the state prison for life -for the imbecile manslayer. This, unfortunately, was not made very clear -to the jury, and it seems probable that many of them thought that their -verdict was either to condemn him to the electric chair or to set him -free. Having only these alternatives, one can perhaps understand their -decision.[2] - -Another somewhat nice legal point was involved and brings up a matter -which calls for some discussion. As already stated, March had been -convicted largely upon the testimony of his accomplice, Roland Pennington. -If now the jury should acquit Roland Pennington on the ground of -imbecility, what would be the effect of such a decision upon Pennington's -testimony against March. Every one felt that March was guilty and -consciously guilty and should be punished to the extent of the law. To -bring in a verdict in the case of Pennington which would result in -annulling his testimony and thereby taking away the one sure means of -convicting March, was a serious matter. One may well believe that the jury -felt that it was safest to convict Pennington of murder in the first -degree and thus avoid raising this confusing question. - -As a matter of fact, although the question would undoubtedly have been -raised and attempts made to free March on the basis of Pennington's -feeble-minded testimony, yet such a procedure would not have been -warranted. - -Pennington, as we have claimed, is an imbecile with a mentality of about -eleven years. We have a right to judge him largely on the basis of an -eleven-year-old child. The testimony of eleven-year-old children is often -admitted into court, and many a person has been convicted on such -testimony. It is true that it is a somewhat moot question as to how much -credence should be placed in children's testimony. The real criterion in -such cases is the nature of the child, a matter which we have already -considered. A child may testify to simple facts, and may be relied upon -where he has no particular interest, where there cannot be shown any -tendency or desire on the part of the child to show off or to say -something for effect or to exercise childish imagination and invent a -large story for the sake of the pleasing sound. - -It is perfectly clear to any one who studies the confession of Pennington -that he must have told a straight-forward story. As already stated, he -would not have incriminated himself as he did if he had been falsifying. -He is not the type of person that runs on in an imaginary tale without -regard to the facts. In short, his testimony bears every evidence of being -entirely credible. - -On the other hand, as already pointed out, Gianini's testimony is -unreliable, because he was talking for effect. He is of the type that -loves show and notoriety. His testimony was only to be trusted where it -could be corroborated by facts or the testimony of others. - -Careful study of the testimony and the nature and the character of the -child will almost always enable one to decide very accurately as to how -much credence is to be placed in the evidence. In other words, the fact of -high-grade imbecility does not of itself make the child's testimony -acceptable or non-acceptable. It must be judged on its merits. We have in -these two cases excellent examples of the trustworthy and untrustworthy. - -The testimony of Pennington at the March trial was a most marvelous -performance. To those unfamiliar with high-grade imbecility, it was almost -unexplainable. Many thought that he must have been very carefully and -elaborately coached; that he had been told just what to say, and had -learned his lesson well. Those, however, who know the imbecile understood -perfectly what was happening. This eleven-year-old boy was telling a -plain, unelaborated tale. He was not intelligent enough to try to escape -himself, and so he had nothing to hide and, consequently, got into no -confusion. He answered, "Yes," "No," or, "I don't know" with a wisdom and -a consistency that was simply amazing, and, as said, could only be -explained on the understanding that he was telling the truth. No amount of -cross-examination confused him, no sudden coups of the lawyer for the -defense could entrap him. For example, when asked with considerable heat -on the part of the attorney why he had forgotten a certain point while he -remembered very vividly a certain other point, the witness made no attempt -to explain; simply remarked that he did not know. In truth, he did not -know. Any such psychological matter was as far beyond him as the heavens. -Without imagination, without ability to reason out the effect of his -answer on his own future, he could simply answer in the plainest kind of -"Yes" or "No" as he knew the facts. - -With these considerations, we pass on to consider the larger and more -difficult problem, "Can an imbecile of the mentality of eleven years know -the nature and quality of his acts and understand that it is wrong?" - - - - -CHAPTER V - -RESPONSIBILITY - - -All students of the psychology of childhood agree that not until the dawn -of adolescence does reasoning as such begin to show itself in the child -mind; that judgment and foresight and self-control, such as enable a -person to counteract his natural impulses and make himself fit into the -conventions of society, are practically unknown previous to this age. It -is true that many children are taught to say what the adult alone can feel -in connection with such matters. But as for having the real feeling and -the understanding of the situation, we seem to have no right to expect it -before the beginning of this adolescent period, from twelve to fifteen -years of age. Everything points to the correctness of the conclusion that -during this early period of pre-adolescence the child is a creature of -impulse and instinct and is controlled largely by counteracting one -instinct by another. For example, the instinct to love and obey a parent -impels the child to do what that parent says, when he tells him not to -yield to some impulse which would lead him into trouble according to the -canons of modern society. Without going further into a discussion of the -point, which would necessarily lead to many philosophical considerations, -the writer may express his conviction, born of a study both of normal -children and also of mental defectives of twelve years and under in -mentality, that persons of this mentality do not know much about right and -wrong. They act upon impulse and upon instinct, without very much thought. -Even the child of the best opportunity and the most elaborate training in -a good home may quite likely not know the wrongfulness of an act of -homicide in the sense of having a real feeling of that wrong. He can -doubtless, as already stated, _say_ that the thing is wrong, because he -has learned that this is the right thing to say. - -Let us turn now to the other part of the legal phrase, "Does such a person -know the nature and quality of his act?" If the writer understands these -terms, the first may be translated into the expression, "Does he know what -he is doing?" We take it that the expression originated in the attempt to -cover those cases where persons, either momentarily or permanently -deranged, literally do not know what they are doing. If this is correct, -then one cannot, as a rule, say that a high-grade imbecile does not know -what he is doing. He is not like the lunatic who acts blindly and is -probably no more responsible for his acts than a person walking in his -sleep. The imbecile is not in this condition. He has, so to speak, full -possession of all the mind that he has ever had and that, in the case of -these high-grade imbeciles or morons, is certainly sufficient to enable -him to know what he is doing. In the case of Jean Gianini, the writer -testified that in his opinion he knew what he was doing. He knew the -nature of his act. One cannot speak, it is true, with certainty in such -cases. It is entirely possible that, as already intimated, the situation -at first may have been a simple altercation or discussion which finally -got to a point where the anger of the boy was aroused to such an extent -that he acted without really knowing what he was doing. However, there is -no more argument for that theory than against it, and without definite -evidence on the question it is probably going too far afield to make any -such claims of immunity on that ground. We are frank to admit that the -probabilities are high that the boy knew the nature of his act. Did he -know the quality of his act? - -By the quality of a thing is meant that which distinguishes it from all -other things. This implies a complete and extensive knowledge of the thing -in question. To know the quality of an act--murder, for example--means to -know all of the elements, forms, or modes of being or action which seem to -make it distinct from all other acts. To know the quality of an act of -murder is to know that it is unjustifiable; it is to know that it differs -from the killing of a rat in that different consequences follow; that -human suffering is involved, both that of the victim and of the victim's -friends and associates. It is to know, at least in some vague way, that -human society could not exist if murder were the rule. To know the quality -of an act of murder is to know enough to be able to distinguish it from -justifiable homicide, from killing in war, not to mention more obvious -necessary distinctions. - -Did Jean Gianini know the quality of his act? On the stand, under -cross-examination, the writer was led to express the opinion that he did. -Later study of the problem and consideration of the circumstances leads to -the conclusion that this was erroneous. Such knowledge implies mental -capacity which is not possessed by a boy under twelve years of age. It -involves experience; it involves abstraction, which is notoriously lacking -in such persons. If there is one characteristic more noticeable than -another among the high-grade imbeciles or morons, it is their failure to -deal with abstract ideas; to draw generalizations from specific instances. - -Did Pennington know the quality of his act? There is not the slightest -evidence that he did. Indeed, in his case we may go farther and hold very -probably that he did not even know the nature of his act. It is easily -conceivable that he struck the man with the blackjack without knowing that -he was committing murder, without knowing that he might kill him. His -stupidity was clearly of such a character that it is a perfectly tenable -position that he thought he was to strike the man and stun him until they -could rob him and escape. - -Did Tronson know the nature and quality of his act? Using revolvers as he -did, it seems undeniable that he knew the nature. He was familiar with -revolvers; he knew what they would do. He, undoubtedly, knew that he was -killing Emma Ulrich. That he did not know the quality of his act is -equally certain. She would not marry him, he did not want her to marry any -one else, and he had no conception that he had no right to put her out of -the way so that she could not marry another if she would not marry him. - -Again, we might go further and deeper into the philosophy of the -question, the logic and ethics of it. But these few considerations seem -sufficient to make it of the highest probability that persons of a mental -age under twelve years, like the normal boys or girls of the same age, do -not know and cannot be expected to know the quality of their acts. And -this is sufficient, because the law requires no more than a reasonable -doubt, and there certainly is a very reasonable doubt as to whether such -persons know the quality of an act of murder and know that it is wrong. - - - - -CHAPTER VI - -THE PUNISHMENT FOR CRIMINAL IMBECILES - - -In the foregoing chapters we have discussed the problem involved in these -murders from the standpoint of the law in order to show that even under -the law, as it now exists, such persons are not guilty of murder in the -first degree. In the present chapter, we propose to discuss the matter -from another standpoint and from a different angle. It is not now a -question of responsibility or of some kind of justice to be satisfied. Let -us face the practical question of what is to be done in these cases. - -After all, what we want is protection for society. We cannot have innocent -people killed in accordance with the whim of the irresponsible. These -imbeciles have killed innocent members of society. What shall the living -do to prevent these particular persons from repeating the crime and to -prevent other imbeciles from ever committing such a crime? This, of -course, involves the whole problem of punishment or the treatment of the -wrongdoer. Upon one thing everybody is agreed--we must make it impossible -for these persons ever to do such a deed again. The surest way to -accomplish this is to destroy them. Dead men commit no crimes. Society -feels safe when a desperado is killed. If we can agree upon this solution, -the problem is easily solved and further discussion is unnecessary. But -society is not at one on this question. We are already seriously debating -the question whether any wrongdoer should ever be officially executed. -Indeed, many States have already decided that they should not be, and -imprisonment for life has replaced capital punishment. - -It is somewhat difficult to draw a line of distinction between the persons -involved in these crimes and the so-called responsible murderers. It -certainly is no great loss to society if Tronson is put out of the way. -The same is true in varying degrees of Gianini and Pennington. It may be -very successfully argued that the matter of responsibility is a fiction -and that all persons should be treated alike, either all executed or none -executed. Nevertheless, at the present time, we do draw the distinction, -and many feel that the person who has full power over his action, who -knows the nature and quality and wrongfulness of his act, should be -executed, while those who do not know should not be executed. - -If we take the latter view, the question still remains, What shall be done -with these criminal imbeciles? The alternative to capital punishment is -incarceration for life. Here at least we find a distinction between these -persons and the normal intelligent wrongdoers. Of all persons in the -world, the criminal imbecile should be placed in custody under conditions -that will forever make it impossible for him to repeat his offense. The -man who commits murder in a fit of insanity may recover from his insanity -and be a useful citizen for the rest of his life. The man who commits -murder under a strong impulse of anger or in calm meditation as the result -of perverted reasoning may recover normal reasoning and be a useful -citizen. This is not true of the imbecile. He will never recover; he will -never have more mind than he has now; he will never be free from the -danger of following the suggestion of some wicked person or of yielding to -his own inborn and uncontrolled impulses. It will never be safe for him to -be at large. This is so obvious that it is highly probable that the -imbecile once committed to life custody would never be released, and even -that there would never be any attempt at such release. When these facts -are understood, the public will undoubtedly be satisfied to have such -persons imprisoned for life or committed to an institution for mental -defectives, where they will be constantly guarded and prevented from doing -injury. - -This was well brought out in the case of at least two of the persons -described in this book. In the case of Jean Gianini, the lawyer made -emphatically plain that there was no desire on the part of the defense to -procure the complete liberty of the defendant. John F. McIntyre, the -counsel, stated clearly to the jury that he had no desire except to save -the boy from the electric chair, a punishment which he considered unjust. -He even went so far as to state that if at any time in the future efforts -should be made to secure the release of this defendant from any -institution to which he might be committed, he himself would make as -strenuous an effort to have the boy kept in custody as he was now making -to save him from the electric chair. Apparently this made a deep -impression upon the jury and went a long way toward helping them to return -the verdict that they did. On the other hand, in the case of Roland -Pennington this point was not made so clear, and the jury and the -prosecution did not realize that the defense only wished to save the boy -from execution and would be quite content with a verdict that would -result in his being incarcerated for life. An institution for -feeble-minded would seem at first glance to be the logical place to which -such a person should be committed. But no one need seriously object to -commitment to a penitentiary or a state prison. Perhaps, in view of the -fact that an imbecile has committed crime, that he has, as one may say, -begun a habit in that direction, the state prison is the proper place for -him, because here he can be absolutely controlled and saved from any -future acts of this kind. This is precisely what happened in Tronson's -case. - -We are learning in these days that the old adage, "An ounce of prevention -is worth a pound of cure," is something more than a witticism. These are -days of prevention--in medicine and in morals. The most important part of -our problem is yet to be discussed. It is true we must come to some -decision as to what is to be done with these persons who now infest -society and who, because of their imbecility which is unrecognized, may -become criminals. But vastly more important, because more far-reaching, is -the problem of how to prevent imbeciles from becoming criminals. We may -save the Gianinis and the Tronsons and the Penningtons from murdering any -more people, but how much better if we save them from killing anybody. No -one of these persons had, probably, any more instinct to kill than have -you or I. As children in years they were harmless and innocent. They could -have been cared for and led into paths of harmlessness if not of -usefulness. All of them could have been recognized as mental defectives -long before they arrived at the age when they committed crime. As dull and -backward children at school, they were at once suspicious characters. -Attention was called to them. Careful examination, such as is now -possible, would have revealed the fact that they were mental defectives -and as mental defectives were potential criminals. Then was the time that -they should have been carefully guarded and watched and saved from an -environment that would lead them to prey upon their fellows. If we wish to -save our teachers from the possibility of being murdered by their pupils -or our daughters from being killed by their wooers or business men from -being struck down by the blows of feeble-minded boys, we must be on the -watch for symptoms of feeble-mindedness in our school children. When such -symptoms are discovered, we must watch and guard such persons as carefully -as we do cases of leprosy or any other malignant disease. For fear that -some one should feel that these are rare and exceptional cases, let us -remind the reader that the best estimate and the result of the most -careful studies indicate that somewhere in the neighborhood of 50 per cent -of all criminals are feeble-minded. Whether this holds for murderers is -indeed not known. But many persons acquainted with feeble-mindedness -recognize from the newspaper descriptions of murders that many of the -murderers are feeble-minded. - -These facts certainly warrant us in taking seriously the problem of the -feeble-minded and the criminal imbecile. - -One thing more. Careful studies have shown beyond the peradventure of -doubt that at least two thirds of these mental defectives have inherited -their defect; in other words, that they belong to strains of the human -family whose intelligence lies below that which is required for the -performance of their duties as citizens. This points to a further -precaution necessary in looking toward the ultimate prevention of -feeble-mindedness and the solution of a large part of our prison problem, -and that is the prevention of the further propagation of this race of -defectives. If it is true--and there is every evidence that it is--that -children are daily being born of such a mentality that it requires the -attention and thought of an army of normal people to prevent their -growing up into criminal lives and that all of the best efforts can never -make them able to take their place in society as useful citizens, then it -certainly is our duty to see that such children are not born. How this is -to be accomplished has not yet been worked out in detail. The colonization -and segregation of all such people in institutions where they will not be -allowed to propagate is one solution that is proposed. The other is by -surgical interference, to render such people physically incapable of -propagating. Probably both these methods and still others must be utilized -to help solve this problem. - -The intelligence of men is often measured by the amount of foresight that -they have. The little child has little or none, as is also true of men of -low intelligence. There are men who can look forward and plan their -affairs for a few months in the future, others who can look forward a few -years, still others a lifetime, and a few who can look forward into the -coming generations. We shall demonstrate a high degree of intelligence if -we look not only to the amelioration of present conditions in our -prisons--which _must_ be done; not only to the removal to more suitable -environment of those persons who are unjustly confined because of their -irresponsibility--which ought to be done; if we not only see to it that -from now on persons who come before the court, either juvenile or adult, -are first studied to discover whether they are mentally responsible or -not, which is of utmost importance; but if we go still farther and put -forth efforts to determine how many and which of the children who are in -the public schools to-day are mentally defective and therefore need care; -and going still farther, if we have studies made and laws passed that -shall, as soon as possible, lead to the reduction in the birthrate of -these mentally defective individuals. A certain amount of -feeble-mindedness we must expect to have with us for long years to come, -because there will be sporadic cases and cases due to accident. But -feeble-mindedness as related to crime may be exterminated in a few -generations if we will but use our intelligence to attack this problem at -its root. - - - - -APPENDIX A - -GIANINI CASE - -HYPOTHETICAL QUESTION PROPOUNDED BY THE DEFENSE - - -Assuming the following circumstances to have been established by the -evidence in this case:-- - -That the defendant was on the 5th of December, 1897, born in the City of -New York; that his father was Charles A. Gianini, who also was born in -said city, and the paternal grandfather of the defendant was born in the -said city and the paternal great-grandfather of the defendant was born on -the south slope of the Alps in the republic of Switzerland. - -The defendant's mother was born in the City of New York, her maiden name -being Sara Cecelia McVey. That the defendant's mother was married to his -father when she was about twenty years of age; that prior or previous to -the said marriage she was bright, vivacious, stylish, and accomplished in -music; that shortly after her marriage she began to become untidy in her -appearance, morose, depressed, and indifferent. - -At the time of the birth of the first child (Charles), to-wit, on the 13th -day of November, 1891, about eleven months after her marriage, she was -suffering from melancholia as the evidence in this case discloses. - -Assuming that the child, Charles, lived to be but seven years of age and -during his lifetime did not learn to speak, but merely made guttural -sounds; that he did not walk, but moved about when seated on the floor, -pushing himself sidewise, and finally shortly before his death tottered -about. His death occurred when he was about seven years old. That he ate -gluttonously and his death was due to asphyxiation, choking due to taking -in trachea foreign matter while vomiting contents of an overloaded -stomach. - -Assuming that after the birth of Charles his mother's melancholia -continued, she became indifferent to her child, took no care of him, and -said that while she wanted to die, she was going to live forever; that she -also said she thought that her face was black and that she was a negress, -that she would not go into the street because she was black. - -Assuming, too, that she became addicted to the use of liquor, first lager -beer and subsequently whisky and brandy; that she made pledges, -administered by priests, only to be broken. That at times she would -brighten up, and during one of these periods, namely, July 12, 1894, a -second child, called Catherine, was born, which child still lives. - -Assuming that thereafter she began to drink again more than before; that -for eight months preceding the birth of the defendant she was drunk a -great many times, that she was found in a drunken stupor, that she was -brought home in a drunken condition by detectives, on which occasion she -had with her her second child Catherine. That about six months before the -birth of this defendant his mother was drunk, that the seventh month -before the birth of this defendant she was drinking, and on one occasion -threw her husband's books out of the window on an adjoining roof, during a -rain storm. And in the eighth month before the defendant's birth she drank -and the same condition prevailed. - -Assuming that from the June before the defendant was born, which was on -December 5, 1897, she was attended by Dr. Charles N. Weeks of New York -City, and he found her depressed, morose, and in a melancholic condition -most of the time, at times hysterical; that she would refuse to talk to -him, for one half a day at a time; that she would refuse to answer -questions, that she would pay no attention to questions, and that she was -also inclined to stare right past him; that she would weep; that she paid -no attention at all. At times the pupils of her eyes were dilated, at -times contracted, their expression at times was wild and sometimes vacant. -These conditions continued during the time Dr. Weeks was treating her. He -prescribed bromide for her liquor and the same condition continued after -the birth of the defendant. - -The general appearance of the defendant's mother was untidy, and these -conditions remained unchanged after defendant's birth. That when born the -defendant was poorly nourished, under weight, weighed about five pounds, -and was inclined to be emaciated; that at the time of the death of the -first born (Charlie), to-wit, on the 21st day of March, 1899, she was -again observed by Dr. Weeks, and then she was absolutely indifferent as to -the conditions so far as the boy was concerned; showed no grief, and her -general condition was such as he described at the time he was treating -her. - -And assuming that after the birth of the defendant he was a bottle-fed -baby, not nursed by his mother, and when about a year old placed in the -care of Mrs. Leigh, with whom he remained until he was about six years -old. That the defendant's mother died on June 3, 1899, in a Sanitarium, -known as St. Anne's Retreat in the City of New York, the cause of death -was meningitis, alcoholic heart failure. - -Assume that up to the time the defendant was five years of age he didn't -speak, and made sounds which resembled yells. Assume that about 1906 or -1907 the defendant's father took him from Mrs. Leigh's, he was then able -to talk and walk, and for several weeks he was taken care of by Mrs. -Hoberg and from there was taken to Lady Cliff Academy on the Hudson, where -he remained for one term. While there he usually appeared dirty, but -seemed to be making some progress. - -In 1907, assume when the defendant was ten years of age he went to live in -the Bronx, where he lived for two years and attended school during this -period. At one time he took two little girls to a piece of woods and -started to take their clothes off, and when asked why he did it, said he -was going to play Indian and that Indians were naked. - -On one Sunday afternoon he was observed in a group of children eating mud -pies, and the children were calling him "Loonie" and were telling him to -eat another one. - -During these two years that the defendant lived in the Bronx he was -observed to tease children. He would take a little boy's wagon and run -away with it. He would take his hat and throw it over a neighboring -fence. He would take the caps of girls and toss them over fences, pull -their curls, take away their hoops when they were rolling hoops, and take -the ball away when they were playing ball. He would do these things quite -often. On one afternoon he was brought home with a gash on his right -temple. It was bleeding and at least one inch in length. He stated that he -had received it from a fall from a stone wall while he was playing -"thief." On another occasion he chased a young girl who was stopping at -the house around the room with a table knife because she was trying to -correct him because he ran home from school without her. He did not -attempt anything against that girl again, although she remained in the -room the balance of the day. - -In 1910 defendant's father moved from the Bronx, to Poland, and brought -the defendant with him, and the defendant attended the Poland School which -he entered in April of 1910, and there remained until February or March, -1913. After leaving school defendant worked in a knitting mill in Newport -from about the first half of April until the second half of May, 1913, -when he ran away and went to Ilion. At Ilion he was found working by his -father and Mr. Frank Newman wiping dishes in the hotel. He was then taken -home. In the middle of August, 1913, the defendant again ran away, this -time to Albany, and stated that while he was there he had been shot at two -or three times by a policeman and was arrested. From Albany the defendant -again went to Ilion, where his father and Frank Newman again found him at -the same hotel, and when he saw them, he said that they were "swindlers." - -At another time the defendant ran away to Herkimer, in the summer of 1912, -and he stated that he had gone to the moving pictures. He said that he -went to the store, the Poland Union, and bought a can of beans and a bunch -of bananas for his trip to Herkimer. He left in the afternoon and did not -return until the following afternoon, when he said that he ate the bananas -going along the track before he ate the beans because he was afraid the -bananas would melt. He said he ate the beans at night, opening the can -with a nail, and ate them with a nail. - -On another occasion in Poland he chased his sister with a table knife -although she had not done anything to him. In the summer of 1910 the -defendant was at Morehouseville, and one day while there he was fishing at -the stream that passes in front of the Mountain Home, when the flies and -the punkies were biting very fiercely. He stood down there in his bare -legs and bare head fishing and the flies biting him until the blood ran -down his face and neck and legs. He was fishing there for fully an hour, -and when asked if the flies had bothered him, he said "No." - -In 1911, when the defendant's father's stepmother was in Poland, the -defendant was overheard to say to her, "Why didn't you marry my father, I -would like you better than this stepmother." - -When the defendant was fifteen years of age, in the month of September, -1913, the defendant's father had him committed to the St. Vincent's -Industrial School for juvenile delinquency, presided over by Christian -Brothers, where he remained for about six months, coming home in February. - -A few weeks before the commission of the alleged crime, he was observed to -be quarreling on Main Street in Poland with two very small children. - -At the age of sixteen years, in the early part of March, 1914, the -defendant was noticed playing with a toy railroad car and building some -tracks with some little irregular pieces of wood. He was also observed to -play tag with children apparently from two to four years younger than -himself. - -In the early part of 1912, the defendant's father observed that he was -practicing masturbation. - -The defendant's father thereupon slept in the same room with him in order -to watch him. The defendant continued this practice until the time he left -home in the spring or summer of 1913 and admitted that he did it -frequently. - -Assuming that on the 25th day of March, 1914, Mrs. Ethel Beecher and the -deceased Lida Beecher met the defendant at the Post Office in Poland, and -the defendant asked the deceased when she was coming to see his father, -and that she replied that she did not know, and the defendant said, -speaking impatiently, "Aw, I don't believe that you intend to come at all; -you will wait until the summer time and go home and then it will be too -late." That they spoke about school, and the deceased said to the -defendant that it would be better for him to wait until the beginning of -another term because he would be behind the other pupils in his work; that -on another occasion, on about the middle of February, 1914, the defendant -came on an errand to get yeast to the place where the deceased and Mrs. -Beecher were boarding and the defendant then said to them that he wanted -to get away from Poland, and would rather be in New York in the Great -White Way; that he thought he would like to act in moving pictures as he -did not like his home and he hated his father, and would not care to be a -"sod-buster"; that the deceased asked him whether he would like to return -to school, and he said that he would, but that his father would not let -him; that he never stole but once in his life and that was twenty-five -cents from a lady in New York, and she had given him twenty-five cents to -buy some candy and he bought the candy and ate it himself. On the same -visit the defendant asked Mrs. Ethel Beecher if there was a state prison -in Rochester, and she told him no; he wanted to know if there was not some -sort of a reform school there. She said that there used to be, but that -the reform school had removed to Industry, and he asked what the reform -school was like at Industry and she told him that the boys lived in -cottages under the care of a matron, a man and wife generally, and that -was as much as she knew about it. The defendant said he would like to be -there and asked her about the state prison at Auburn and different -prisons, what the sentence was and whether they had an electric chair or -whether they hung. The defendant told them that they worked awfully hard -at Sing Sing. The defendant also stated on that occasion that his father -used to thrash him for stealing apples that other men put him up to -stealing. - -Assuming at the time Mrs. Ethel Beecher and the deceased and the defendant -were talking together, that the deceased told the defendant that she -thought he would like to go in the country to work on a farm and asked him -why he did not continue his school work another year; and that her tone -was kindly and her whole deportment towards him on that occasion was such -as to incline one to believe that she desired to help him and to well -advise him; and that the defendant's conversation concerning prisons and -industrial schools was such that it caused them to laugh, at the time; and -that on other occasions when the defendant was with the deceased her -conduct towards him was always kindly and that she was kindly and -generously disposed towards the defendant and showed considerable interest -in him. - -Assuming that on the 27th day of March, 1914, at about quarter after seven -the defendant was observed on the street in Poland with some children, -with whom he had been seen at different times playing hide and seek and -tag and I spy, and that he caught hold of the toque of one of the little -girls and pulled it down over her face and that he poked another one of -the little girls in the back and that he called a girl by the name of -Grace Palmer, "Palmer House," and said, "Leonard is the proprietor, isn't -he?" and kept calling her Palmer House, and that he was snowballing the -girls, and that while he was engaged the deceased passed him on the street -and said, "Hello, Jean," and that he then joined her and shortly -afterwards was seen to come back with the deceased, going up the road -towards Buck Hill. That later in the same evening, at about ten minutes to -eight, he returned home, showing no trace of excitement or nervousness, -and that he received some books of wall paper to be delivered to a -neighbor and that he took these books and threw them so that they fell -with a noise on a neighbor's veranda and was seen running near the -railroad station and later returned home in the vicinity of eight o'clock, -showing no trace of any agitation, excitement, or nervousness. That he -took off his shoes, put on a pair of slippers, went to bed, and slept -quietly all night. That on the following morning he reported for work at -Sam Hutchinson's as usual, worked for about twenty minutes doing his -chores, ate his breakfast, and nothing unusual was observed about him. - -Assuming further that he was seen going along the railroad track in the -direction of Newport; that he met two men, one by the name of Smith, and -that he shouted, "Hello, Smithy"; that later he was spoken to by a man -named Sweet at Newport on the railroad track about four miles from Poland, -and that when Sweet caught up to him and asked him where he was going, he -said to Herkimer to see a moving picture show; that he had stolen a dollar -from his father; that he accompanied Sweet to Autenrith's store and while -there the murder of the deceased was talked about in his presence and that -he ate peanuts and smoked a cigarette and asked where they had found the -body and stated that he had gone to school to her; and subsequently was -taken back to Poland by one Frank Newman, and thereafter was turned over -to the Sheriff of Herkimer County and one of his deputies. - -Assuming that on the 26th day of March he asked an acquaintance by the -name of Morris Howe, a boy of fifteen years, if the deceased came to get -her mail nights, and said that he would get even with her; that on -Tuesday, March 24th, he told a man by the name of Estes Compo, with whom -he was working, that the deceased had tried to send him to school and that -if he had a revolver he would kill her, and asked this same man if he had -read of a murder down South, of a colored man killing a white girl and -laying it on the superintendent of a factory and that the man was -sentenced to the chair and the colored man confessed the crime; that on -the preceding night he had been in Compo's room, where he saw a revolver -and a knife, and on the following day he said if he had a revolver, he -would kill the deceased; that about a week before the 27th day of March, -while defendant was working for Sam Hutchinson, he told a boy he would -some day put an end to the deceased. - -Assuming that between the hours of seven and eight o'clock on the night of -March 27th, 1914, Miss Beecher was killed at a dark and lonely spot on the -Buck Hill road and that she had come to her death by being struck on the -head with a monkey wrench and had been cut repeatedly to the extent of -about 24 times with a knife in various parts of the body and that she was -dragged from the place where she was killed to a clump of willows near the -road and that her umbrella and hat were found the following morning in the -road and that by following the track where her body had been dragged over -the snow the body of the deceased was found. - -And assuming that on the morning of the 28th day when the defendant was -brought to Poland he was taken to a house of a Justice of the Peace and -was taken into a room by the Deputy Sheriff and told that he was -suspected and was accused of being a party to the crime. That after he was -completely stripped of his clothing he stated to the Deputy Sheriff that -he had gone to school to the deceased and had trouble with her at school -and wanted revenge and that he had met her the day before near the Post -Office and asked her to go up to his house and see his folks about having -him go to school again, and that the deceased told him that she would go -the next night. That the next night he did meet her near the hotel and she -said that she was ready to go up. They walked up the street, and when they -got near his father's house, the defendant told her that his father did -not live there, that they had moved up the hill, that he then stated in -detail how he committed the crime and disposed of the body and what he did -with the wrench and the knife. That he said, "You would not think any one -could do a job as quick as that." He said he supposed they would talk -insanity, but he was not any more insane than the Deputy Sheriff was, and -he did not want them to talk about it. - -He also said, "Gillette got the chair, didn't he?" and upon the Deputy -Sheriff replying, "Yes," the defendant said, "He had no reason to kill the -girl, but I did; I wanted revenge." - -That at the same time the defendant signed a sworn statement before the -Justice of the Peace, in which he stated that he went to school to Lida -Beecher, and had trouble with her and wanted revenge; that he was not -afraid, and when he got home, he was just as happy as he ever was, and did -not think anything about it, as he thought he had revenge; that at the -time he made these statements he was cool and quiet and spoke connectedly; -that he was not nervous or excited. - -Assuming that the defendant had not attended the Poland school since -February or March, 1913, and that while there he had studied under the -deceased for about one year, and that during this period the only -punishment he had received from the deceased was a seat facing the wall -with his back towards the other pupils, and was occasionally sent upstairs -to the Professor of the school for punishment. And that the deceased had -always manifested a friendly interest in him, was mild, kind, gentle, and -good to him. - -And further assume that when he left school, he was in the sixth grade. - -Assume that he had frequently been detected in telling lies, that he had -spoken of hatred of his father, that he manifested no affection towards -him, referring to his father as "Old Man" and "Him." That on the morning -of the 28th when he was being brought back to Poland by Newman, Newman -stated to him, "You have got something beside skipping out now staring you -in the face," to which he replied, "They can't give me but ten years"; he -used no words, when informed it might be a long time, that expressed fear -or fright; and when he was informed that he had murder staring him in the -face, he acted no different than ordinary. - -That less than a year before the birth of Charles, the first child, the -defendant's mother suffered from an attack of diphtheria, for which she -was treated by Dr. Quinlan. - -Further assume that in the summer of 1910, at Morehouseville, while -quarreling with a little boy named Arthur Jones, the defendant said he -would go up to his father's room and get his hunting knife and kill him. - -That while the defendant was at St. Vincent's Industrial School for -juvenile delinquency, at work in the laundry, he told Mr. Minor that if -his father didn't get him out in February, he would burn his father's -buildings when he got out. - -Now, doctor, assuming all these facts to have been proven in this case, -from your experience in the treatment of and knowledge of imbeciles and -idiots, from your skill and expert knowledge, can you express an opinion -concerning the mental condition of Jean Gianini at the time of the killing -of Lida Beecher, on the 27th day of March, 1914? - -By Mr. Thomas: If the Court please, I object to the question as improper -in form and that it concludes with assuming all these facts to have been -proven in this case, and that it is not an inquiry which can be properly -permitted to be put to the witness here. That, in addition, it does not -correctly state the evidence, and that especially this part of the -question is improper--"That she showed no grief, and her general condition -was such as he described at the time he was treating her," referring to -Dr. Weeks, and further it assumes incorrectly the time that the defendant -encountered Miss Beecher, near the Post Office on the 27th day of March, -1914, which is stated here to be about a quarter after seven. - -By Mr. Hirsch: What time do you say it was, Mr. Thomas? - -By Mr. Thomas: The proof varies from seven to seven six. And it is -incorrect in assuming facts not established upon the evidence, that he cut -her repeatedly to the extent of about twenty-four times with a knife; and -in those respects to which I have called your Honor's attention, the -question is improper, in that it assumes facts not proven, that it is -improper in form, and the concluding paragraph, with reference to which I -have called your Honor's attention, is improper and incompetent; and that -the question is incompetent in that it does not call upon the witness to -express an opinion as to the knowledge of the defendant of right and -wrong, or his knowledge of the nature and quality of the act in killing -the deceased. - -By Mr. McIntyre: That is a question, if your Honor please, which was -passed upon yesterday. - -By the Court: I suppose it is preliminary to some extent, as far as this -information is concerned. - -By Mr. McIntyre: It is precisely the same as yesterday, but the question -has had some additions. - -By the Court: Was that indicated by the last part of it? - -By Mr. McIntyre: Yes, sir. - -By Mr. Thomas: He should be asked, "Can you now form an opinion assuming -all these facts?"... - -_Q._ Now, Doctor, assuming all these facts contained in the hypothetical -question to have been established by evidence in this case, from your -experience in the treatment and knowledge of imbeciles and idiots, from -your knowledge and skill as an expert, can you express an opinion as to -the condition of Jean Gianini at the time of the killing of Lida Beecher -on the 27th day of March, 1914? - -Same objection - -By the Court: Objection overruled. He may answer. - -_A._ I can. - -_Q._ What is your opinion? - -Same objection. - -By the Court: I think it should conform now to the language of the -statute, shouldn't it? - -By Mr. McIntyre: Well, I have, your Honor; I first asked him if he could -express that opinion. Now if he doesn't express an opinion that comes -within the provisions within the statute, why then of course his opinion -is incompetent in this case. Now let's look at the code. Will you give me -the section, please? - -Section 1120. - -"Offense committed by an idiot or lunatic. An act done by a person who is -an idiot, imbecile, lunatic, or insane is not a crime. A person cannot be -tried, sentenced to any punishment, or punished for a crime while he is in -a state of idiocy, imbecility, lunacy or insanity, or is incapable of -understanding the proceeding or making his defense. A person is not -excused from criminal liability as an idiot, imbecile, lunatic, or insane -person except upon proof that at the time of the committing of the alleged -criminal act he was laboring under such a defect of reason as not to know -the nature and quality of the act he was doing or know the nature of the -act as wrong." - -By the Court: Well, now, my suggestion is why not embody that in your -question. - -By Mr. McIntyre: That is the second question, your Honor.... - -_Q._ I asked you what was your opinion concerning his mental condition. - -_A._ That he is an imbecile. - -_Q._ Now, Doctor, assuming that all the acts recited in the hypothetical -question to have been established by evidence, to be true, in conjunction -with the physical and mental examination made by you in the County Jail on -the 17th day of May this year,--from your experience and your knowledge of -imbeciles and idiots, in your opinion was Jean Gianini at the time of the -killing of Lida Beecher in such a mental condition as to know the nature -and quality of the act he was doing or that the act was wrong? - -By Mr. Thomas: I object to it as improper in form and copulative. - -Objection overruled. - -_Q._ Your opinion, Doctor? - -_A._ He was not in such condition. - - - - -APPENDIX B - -GIANINI CASE - -HYPOTHETICAL QUESTION PROPOUNDED BY THE PROSECUTION - - -_Q._ Doctor, kindly assume that the defendant had been a pupil taught by -Lida Beecher in the public school at Poland and harbored against her a -desire for revenge because she had punished him; that he stated to people -of his acquaintance that he would get even with her; that on Tuesday, -March 24th, 1914, he stated to a man with whom he was working that if he -had a revolver he would shoot her; that several days previously he had -this wrench, Ex. 45, in his possession and stated to a man who asked him -what he was going to do with it, that he had use for it; that he met Miss -Beecher, who was a young lady about twenty years old, five feet three -inches in height, weighing about 126 pounds, wearing upon the head this -cap, Ex. 26, and as an outer garment, this raincoat, Ex. 29 (showing to -witness), Wednesday, March 25th, 1914, about seven P.M. in the Post -Office at Poland, Post Office in the village of Poland, the location of -which is indicated on this map, Ex. 1, to which I now call your attention -(indicating); walked with her and Miss Clark, a teacher, from the Post -Office along Cold Brook Street to a point on the southerly side of the -street opposite the residence of James D. Countryman, the location of -which is also shown on the map at a point to which I now call your -attention (indicating), and that during that walk the defendant asked Miss -Beecher when she was coming up to see his father, and upon receiving the -answer that she did not know, said, "Aw, I don't believe you intend to -come at all; you will wait until summer time and go home and then it will -be too late"; that on the following evening, Thursday, he again met Miss -Beecher at or near the Post Office and asked her to go up to his house and -see his folks about going to school and she replied that she could not -that night, that she was going to prayer meeting, that she would go the -next night; that on the following day, Friday, he provided himself with -the knife, Ex. 48, for the occasion, and with the intention of killing -her, sharpened it for that purpose; that he met Miss Beecher about seven -P.M. on the evening of Friday, March 27th, near the Post Office and walked -with her along the south side of Cold Brook Street to the foot of Buck -Hill, which Buck Hill road is also shown on this map, a distance of 2006 -feet; that they then proceeded together along up Buck Hill, he getting her -to accompany him by telling her that his father lived up over the hill, -had moved up there two or three weeks before; that they went on part way -up the hill, and Miss Beecher hesitated and said it was farther up than -she thought it was, she did not think she would go any farther, and the -defendant said to her, "It is not but a little ways farther"; that when -they got to a point on the hill distant about 4198 feet from the Post -Office, she hesitated and said, "It is dark and I see no houses, no light, -don't think I will go any farther, will write your father a letter in -regard to this school matter"; that as she stopped he stepped back of her, -hit her on the head with this monkey wrench, Ex. 45, which weighs 2 pounds -7-15/16 ounces, which I now show to you, he at that time having as an -outer garment this coat, and wearing this shirt, Ex. 49, which I now show -to you; knocking her down, he hit her twice with it after she was down; -that when he first hit her with the wrench, she did not cry out but -moaned; that he then threw the wrench up over the fence on to the top of -the bank, about 35 feet; that it was so dark he could not see; took the -knife, Ex. 48, and as she was lying on the ground, hit her with it several -times to be sure to finish her, inflicting punctured wounds, one on the -back of the neck just below the hair line 3/4 of an inch in length, one on -the left side of the neck about 1/2 of an inch long, cutting a hole in the -external carotid artery 3 inches above the bifurcation of the common -carotid artery; that he then grabbed the body, which was face down, by the -right foot and dragged it across the road under a barbed-wire fence, down -the hill back of a bush to the swale; that he took hold of the right foot -because he did not want to get blood on his hands so that his finger -prints could be taken; that he ran immediately from the body to the Buck -Hill road and came out on to it a few rods nearer Poland than the point -where he dragged the body under the fence, ran down the road some -distance, and a team or sleigh came along and he stopped running and -waited until after that team got by him; that he reached his father's -house, which is shown on this map, Ex. 1, and the location of which I call -your attention to (indicating), at 7:30 and would have reached it sooner -if he had not fallen down four or five times on the way home; that he went -into the house and put the knife, off from which he had wiped the blood in -the snow, in the pantry drawer; that he was sent on an errand to the -house of Thomas Owens, on Cold Brook Street, which is also shown on this -map, Ex. 1, to the location of which I now call your attention -(indicating), to return some books of samples of wall paper, and to give -Mr. or Mrs. Owens a one-dollar bill and a soap order, to which it was -pinned; that he ran down the street, threw the books on to the veranda -floor near the kitchen door, ran down Cold Brook Street to South Main -Street, and tried to get the freight train which passed south on the M. & -M. railroad; that he ran back to his father's house and arrived there a -little after eight, took off his shoes, put on his slippers, read the -newspaper a little while, and went to bed; that he arose about six o'clock -the next morning; left his father's house, went to Sam Hutchinson's, by -whom he was employed, and whose residence is also shown on this Ex. 1, at -the location to which I now call your attention (indicating), went to the -barn, assisted in doing the chores, went in to breakfast, said nothing, -left there the coat, Ex. 41, which was then substantially in the same -condition as it is now, and to its condition, especially on the back, I -call your attention, and this being the coat which he wore the evening -before, which I now hand to you and call your attention to (indicating) -the condition of, put on another coat, and started down the railroad -track towards Herkimer, which is on the line of the New York Central and -Hudson River railroad, and some fourteen miles from Poland, intending then -to go away from Poland; that he was apprehended at Newport, a place -distant about four miles from Poland and between there and Herkimer, and -brought back in a cutter by Mr. Newman, whom he had known for several -years; that on the drive from Newport to Poland Newman asked him if he had -heard what happened at Poland, and defendant replied he hadn't; when asked -if he had seen anything of Miss Beecher the night before, said he had not; -when asked by Newman if he had heard that Miss Beecher was murdered or -killed, defendant said, "No," and on Newman's saying, "They are looking -for you for it," defendant said, "They can't give me but ten years, can -they?"; that as they drove into the village of Poland and turned from -South Main Street into Cold Brook Street, near the Post Office, there were -some rigs coming down the hill, and defendant said, "They are coming off -the hill with her now"; that in the afternoon of the same day he -voluntarily made, signed, and swore to the following statement with -reference to the matter.[3] - -State, Doctor, basing your reply upon the hypothesis stated in the -question, whether or not, in your opinion, the defendant, at the time he -struck Miss Beecher with the wrench, understood that he had no right to do -it? - -Mr. McIntyre: Don't answer. We object to the question in that it only -recites the revolting details of the alleged crime and that when the -question was being propounded to the witness upon the stand, counsel for -the State exhibited the knife, the wrench, the coat, the hat, and other -things in evidence in rather a dramatic way before the jury. - -We object to the question upon the ground that it does not contain all the -essential features in this case bearing upon the crime. - -We object to the question upon the ground that the hypothetical question -fails to include the condition of the defendant's mother at the time of -his birth; it fails to include the fact that the first child was an idiot -during his lifetime; it fails to disclose the conduct and deportment of -the defendant from the time of his birth down to the commission of this -crime. - -We submit respectfully that the hypothetical question is a garbled -statement of that which has transpired during this case and can have but -one effect--to bias and prejudice the minds of the jurors. And I submit -it is incompetent, immaterial and irrelevant and improper, in addition. - -The Court: Objection overruled. - -Mr. McIntyre: Exception, sir. - -_Q._ Have you got the conclusion, the concluding portion of my question in -mind? - -_A._ Would you repeat it? - -_Q._ Yes. State, Doctor, basing your reply upon the hypothesis stated in -the question, whether or not, in your opinion, the defendant, at the time -he struck Miss Beecher with the wrench, understood that he had no right to -do it. - -_A._ I cannot get any evidence from the facts recited there to enable me -to determine. - -_Q._ Well, can you determine from this question an opinion as an expert? - -_A._ No, I cannot. - - - - -APPENDIX C - -GIANINI CASE - -DEFENDANT'S REQUEST TO CHARGE - - -I - -Defendant requests your Honor to charge the jury that, in determining the -guilt or innocence of the defendant of the offense charged in the -indictment, the jury are to consider only the evidence of the case and are -to disregard any statement made during the course of the trial, by counsel -or the Court, and are not to be influenced or governed by any expression -of opinion or action of either the Court or counsel for defendant or the -people. - - -II - -Defendant requests your Honor to charge that the jury are not to be -influenced, in the consideration of this case, by any comment or -expression of opinion in the newspaper reports of this case, and they must -disregard any statement or comment contained in any such report, if same -has in any way been brought to their attention. - - -III - -Defendant requests your Honor to charge the jury that, in considering this -case, after its submission to them, the jury must proceed upon the -presumption that the accused, the defendant herein, is innocent of the -crime charged in the indictment and that it is necessary for the -commonwealth to overcome this presumption by evidence to convince them, -beyond a reasonable doubt, that the defendant is guilty of the crime -charged against him in the indictment. - - -IV - -Defendant requests your Honor to charge the jury that, in consideration of -this case, the jury are bound to act and proceed upon the presumption that -the accused is an innocent boy, and this presumption must continue -throughout the trial. - - -V - -Defendant requests your Honor to charge the jury that, the defendant being -charged with the crime of murder, the commonwealth is bound to prove -every and all the essential facts necessary to constitute this crime -beyond a reasonable doubt before the jury can convict the defendant of the -crime charged in the indictment. - - -VI - -Defendant requests your Honor to charge the jury that, upon the whole -case, if the commonwealth has failed to prove all of the facts beyond a -reasonable doubt, the defendant is entitled to be acquitted. - - -VII - -Defendant requests your Honor to charge the jury that the burden in this -case rests with the commonwealth, from the beginning to the end of the -trial, to establish, beyond a reasonable doubt, every fact essential to -the conviction of the defendant, and if the commonwealth has failed to -prove such charge beyond a reasonable doubt, the defendant is entitled to -an acquittal. - - -VIII - -Defendant requests your Honor to charge the jury that the unintentional -killing of a human being by another without motive, intent, premeditation, -is neither murder nor manslaughter. - - -IX - -Defendant requests your Honor to charge the jury that the questions of -deliberation and premeditation, intent and motive, are purely questions of -fact, to be determined by the jury from the evidence alone. - - -X - -Defendant requests your Honor to charge that if the jury cannot say, -beyond a reasonable doubt, that the defendant was sane at the time of the -commission of the act, and cannot say whether, at that time, he was sane -or insane, the defendant must be acquitted. - - -XI - -Defendant requests your Honor to charge the jury that if, at the time the -defendant committed the act charged against him, upon seeing the deceased, -he was thrown into a state of mind from which he was deprived of his -understanding, so as to be unaware of the nature and quality of the act he -committed, or so as to be unable to distinguish between right and wrong in -reference to that particular act at the time of its commission, this -defendant must be acquitted. - - -XII - -Defendant requests your Honor to charge the jury that, although sanity is -assured and presumed to be the normal and natural state of the human mind, -when imbecility is once shown to exist in a person, it is presumed to -exist and continue until the presumption is overcome by contrary or -repelling evidence proving sanity. - - -XIII - -Defendant requests your Honor to charge the jury that if defendant was -deprived of his reason at the time the act charged against him was -committed, and which resulted from a settled and well-established mental -alienation, or from the pressure and overpowering weight of circumstances -occurring before and at the time of the commission of said act, the said -defendant is legally irresponsible for it and must be acquitted. - - -XIV - -Defendant requests your Honor to charge the jury that if, at the time of -the commission of the act, the defendant was under the influence of a -diseased mind, and was really unconscious that he was committing a crime, -this defendant must be acquitted. - - -XV - -Defendant requests your Honor to charge the jury that the insanity of the -defendant need not be proven beyond a reasonable doubt. - - -XVI - -Defendant requests your Honor to charge that the jury, in considering this -case, are bound to act upon the presumption that the accused, the -defendant, is innocent, and should endeavor, if possible, to reconcile all -the circumstances of the case with that of innocence. - - -XVII - -Defendant requests your Honor to charge the jury that the burden of proof -rests with the commonwealth in this case, from the beginning to the end of -the trial, and the commonwealth are bound to prove that the defendant -committed the crime charged in the indictment beyond a reasonable doubt, -otherwise the defendant is entitled to be acquitted. - - -XVIII - -Defendant requests your Honor to charge that the jury must be satisfied -beyond a reasonable doubt, from the evidence of the case, of the sanity of -the defendant at the time of the commission of the act charged in the -indictment, and if the people fail to establish the sanity of the -defendant at the time of the commission of the act charged in the -indictment, this defendant cannot be convicted of any crime and is -entitled to an acquittal. - - -XIX - -Defendant requests your Honor to charge the jury that the law does not -require that the insanity, imbecility, or mental aberration which absolves -from crime should exist for any definite period, and only that it existed -at the moment when the act occurred. - - -XX - -Defendant requests your Honor to charge the jury that if the insanity, -imbecility, or mental aberration which absolves from crime operated at the -moment that the act was committed, that is sufficient in law to absolve -from guilt, and this defendant cannot be convicted of the offense charged -in the indictment, or any other offense. - - -XXI - -Defendant requests your Honor to charge the jury that the commonwealth -must satisfy the jury beyond all reasonable doubt, that, at the moment -the act alleged in the indictment was committed by the defendant, he had -reason, perception, and understanding sufficient to enable him to discern -right from wrong, and that if he had not, it is the duty of the jury to -acquit this defendant. - - -XXII - -Defendant requests your Honor to charge that if the jury believe that the -defendant did not suffer from any mental aberration which would absolve -him from punishment for the act charged in the indictment prior to the -commission of the act, or subsequent thereto, but that such state of -mental aberration did exist at the moment when the act occurred which the -defendant stands charged with, this defendant cannot be convicted of the -crime charged in the indictment, or any other crime, and must be -acquitted. - - -XXIII - -Defendant requests your Honor to charge the jury that if there is a -reasonable doubt in the minds of the jury as to whether the act charged in -the indictment was committed by the defendant while he was unable to -discern between right and wrong, or if the evidence is equally balanced -as to this, so that the jury cannot safely and conscientiously determine -whether the killing of the deceased was intentional, or was committed by -the defendant while he was unable to discern between right and wrong with -respect to the act, then this defendant is entitled to the benefit of that -doubt and entitled to an acquittal. - - -XXIV - -Defendant requests your Honor to charge the jury that if it finds that the -defendant is of a mental age of under twelve years, he is presumed to be -incapable of the commission of crime. (_Refused_) - - -XXV - -Defendant requests your Honor to charge the jury that if it finds that the -defendant is of a mental age of under twelve years, he is presumed to be -incapable of crime and that presumption is not removed by proof that he -had sufficient capacity to understand the act charged against him and know -its wrongfulness, except by evidence that satisfied the jury beyond a -reasonable doubt. (_Refused_) - - -XXVI - -Defendant requests your Honor to charge that if the jury finds that the -defendant is of a mental age of under twelve years, the evidence that he -understood the nature or quality of the act charged against him and knew -its wrongfulness must be strong and clear beyond a reasonable doubt. - - -XXVII - -Defendant requests your Honor to charge the jury that it must find that -the understanding of and the capacity for committing a crime is measured -not by the chronological years of the defendant, but by the strength of -the defendant's understanding and judgment. (_Refused_) - - -XXVIII - -Defendant requests your Honor to charge that if the jury find that the -defendant was of a mental age of under twelve years, he was incapable of -committing the crime charged in the indictment, unless the commonwealth -has made strong, clear, and convincing proof beyond a reasonable doubt -that the defendant was capable of discerning the difference between right -and wrong or knew the quality and nature of his act. (_Refused_) - - -XXIX - -Defendant requests your Honor to charge that the burden is upon the -commonwealth to show that the defendant has intelligence and maturity of -judgment sufficient to render him capable of harboring a criminal intent. - - -XXX - -Defendant requests your Honor to charge that if no motive has been -established for the crime, the jury must regard it as important in its -bearing upon the question of the defendant's mental condition at the time -of the commission of the act charged against him. - - -XXXI - -Defendant requests your Honor to charge the jury that if the commonwealth -have established merely a slight, trifling, and inconsequential motive for -the commission of the act charged in the indictment, they should regard it -as important and give it more consideration in connection with the -question of the defendant's mental condition. - - -XXXII - -Defendant requests your Honor to charge the jury that the commission of -the crime charged in the indictment by a child of tender years from its -very nature raises the question of abnormality of the defendant's mind and -in the absence of clear, strong, and convincing evidence on the part of -the commonwealth, it must conclude that the defendant's mental condition -was such that he did not understand the wrongfulness of his act or -understand the nature and quality of his act. - - -XXXIII - -Defendant requests your Honor to charge that evidence of the want of a -rational and reasonable motive on the part of the defendant for the -perpetration of the act charged in the indictment is to be considered by -the jury as strong corroboration of the fact of his mental -irresponsibility. - - -XXXIV - -Defendant requests your Honor to charge that the perpetration of the act -charged in the indictment without any apparent motive or object, but -against every motive which would appear to be naturally influential with -the defendant, that they must at once inquire whether or not the defendant -was of sound mind and take into consideration with the other evidence of -this case that he was not of sound mind, the absence of sufficient motive -must lead them to conclude that he was of unsound mind and could not -distinguish between right and wrong or know the nature and quality of his -act. - - -XXXV - -Defendant requests your Honor to charge that the absence of a clear and -convincing motive in itself is evidence of an unsound mind. - - -XXXVI - -Defendant requests your Honor to charge that if the defendant acted -without any reasonable or rational motive or object, but against every -motive and object, which it would appear should have been influential with -him, that fact in itself raises a presumption that the defendant was of -such unsound mind that he could not distinguish between right and wrong or -know the nature or quality of his act. - - -XXXVII - -Defendant requests your Honor to charge the jury that they have no right -to presume a motive from the mere commission of the crime and have no -right to speculate, guess, or surmise or supply any motive for the -commission of the act charged in the indictment. - - -XXXVIII - -Defendant requests your Honor to charge that the failure of the -commonwealth to call as witnesses Drs. Maybon and Palmer, who made -examinations of the defendant, to testify as to his mental condition, -raises the inference that if they had been called as witnesses, they would -have testified adversely to the commonwealth in respect to the defendant's -mental condition. - - -XXXIX - -Defendant requests your Honor to charge that from the failure of the -commonwealth to call as witnesses Drs. Maybon and Palmer, who examined the -defendant, the jury may infer that they would have testified that the -defendant was a high-grade imbecile who was laboring under such defect of -reason as not to know the nature and quality of the act of which he is -charged in the indictment or not to know the act was wrong at the time it -was committed. - - -XL - -Defendant requests your Honor to charge that from the failure of the -commonwealth to call as witnesses Drs. Maybon and Palmer, the jury may -infer that had they been called they would have testified unfavorably and -adversely to the commonwealth, especially in the absence of any -explanation made under oath as to why they were not called. - - -XLI - -Defendant requests your Honor to charge that if the jury acquit the -defendant on the ground of insanity, in that event the jury should specify -in its verdict that it acquits him on the ground of insanity. - - -XLII - -Defendant requests your Honor to charge that if the jury acquit the -defendant upon the ground of insanity, it will become the duty of the -Court to order him committed to a State Asylum. - - -XLIII - -Defendant requests your Honor to charge that if the jury acquit the -defendant on the ground of insanity, in this case such insanity will mean -imbecility, and that as imbecility cannot be cured, it will become the -duty of the Court to order him committed to a State Asylum for the rest of -his actual life. - - -XLIV - -Defendant requests your Honor to charge the jury that the denial of the -several motions made by defendant's counsel throughout the trial, and the -rulings of the Court upon objections, and refusals by the Court to charge -as requested, are not to be taken as any expression of opinion on the part -of the Court upon the facts of this case, but are only rulings upon the -law, about which the jury has nothing to do. - -NOTE. Requests XXIV, XXV, XXVII, and XXVIII, the Court refused to charge. - - - - - -INDEX - - - Abstract ideas, lack of, in morons, 98. - - Actions after crime, Gianini, 25, 27. - Pennington, 50-52. - Tronson, 76-78. - - Alcoholism, 110. - - - Barr, Dr. Martin W., statement of, 86. - - Beecher, Miss, annoyed by Gianini, 23. - - Binet tests, and school experience, 35, 38, 54. - use of, in Gianini case, 32-35. - in Pennington case, 53. - in Tronson case, 80. - - - Capital punishment, 101. - - Cause of Gianini's condition, 39-41. - - Causes of feeble-mindedness, 39. - - "Charity" in Binet tests, 34. - - Children, testimony of, 90. - actions of, 94. - suggestibility of, 63. - - Code quoted, 128. - - Colonization, 107. - - Confession, Gianini, 4, 9, 10. - Pennington, 44, 53. - Tronson, 67-80. - characteristic of imbeciles, 16, 29. - childishness of Pennington's, 55, 56. - not necessarily true, 17. - why Gianini made a, 15. - - Confessions compared, 83, 90-93. - - Courtroom, conduct in, 30, 67, 92. - - Coward, the imbecile, 23. - - Cretinism, 40. - - Crime, details of, Gianini, 122, 132. - Pennington, 47. - Tronson, 74. - - Criminal imbeciles, what should be done with, 102. - - Criminals, 50 per cent feeble-minded, 106. - - - Defense in case of, Gianini, 2, 5. - Pennington, 43. - Tronson, 66. - - Delinquencies, previous, of Gianini, 7, 37, 115, 116. - of Tronson, 68, 69, 82. - - Display, love of, 29. - - - Experts, qualifications of, 85. - - - Feeble-mindedness, causes of, 39, 106. - may be exterminated, 108. - - Feeble-mindedness in family, Gianini, 40. - Pennington, 87. - - Finger prints, 26. - - - Gianini, Jean, case of, 1-41. - actions after the deed, 25, 27. - attitude of Miss Beecher toward, 7, 119. - disregards counsel's warning, 30. - evidences of pride in deed, 16-19, 29, 123. - facts as established by testimony, 3. - incidents in life of, 113-125. - indifferent to crime, 10, 29, 120, 125. - interest in stories of crime, 26, 118, 121, 123. - mentality of, 13. - mother of, 40, 109-112. - previous delinquencies of, 7, 37, 115, 116. - stories about, 31, 113. - teased little children, 32, 116, 119. - threats made by, 121, 125, 131. - - Great White Way, 117. - - - Hypothetical question, defense, 109-126. - prosecution, 131-136. - - - Idiot, defined, 12. - - Imbecile, career of an, 54. - - Imbecility defined, 11. - not curable, 102. - - Imbecility, defense of, Gianini, 2, 5. - Pennington, 43. - Tronson, 66, 80. - - Imprisonment for life, 89, 101, 104. - - Indian, Gianini plays, 23. - - Insanity in relation to crime, 102. - - Instinct to kill, 105. - - Institution for feeble-minded, the logical place, 104. - - Intelligence, tests of, admitted into court, 2, 32-35, 53, 80. - - Interest in crime, Gianini's, 26, 118, 121, 123. - - - Jail, attitude in, Gianini, 30; - Pennington, 55. - examined in, Gianini, 29; - Pennington, 53, 56. - - Jealousy of March, 53. - - - Liberty of defendant not desired, 88, 103. - - - McIntyre, John F., 103. - - March, convicted, 43. - convicted upon Pennington's testimony, 90. - Pennington's relation to, 55, 56, 64. - - Masturbation, 117. - - Melancholia, 110-112. - - Mental defectiveness, inherited, 39, 106. - recognized early, 105. - - Mentality of, Gianini, 13. - Pennington, 53. - Tronson, 66. - - Money as motive, 57. - - Moron, defined, 11. - abstract ideas lacking in, 98. - - Mother of Gianini, 40, 109-113. - - Motive, Gianini's, 4, 20-25. - March's, 53. - Pennington's, 53, 56-60. - Tronson's, 76, 80. - - - Pennington, Roland, case of, 42-64. - actions after the deed, 52-53. - conduct at trial, 92. - confession, 44-53. - disregards lawyer's caution, 55. - mentality of, 53. - relation to March, 55, 56, 64. - testimony against March, 43, 90, 92. - trial, 43. - - Preparations for crime, Gianini, 6. - Pennington, 47. - Tronson, 70. - - Prevention, 82, 87, 104-108. - - Propagation, prevention of, 106-108. - - Psychologists, testimony of, 32, 53, 66. - - Punishment for criminal imbeciles, 88, 100-108. - - - Quality of an act, meaning of, 96. - - - St. Vincent's School, 7, 116. - - School, failure in, sign of mental defect, 37. - Gianini case, 35-37, 124. - Pennington case, 54. - Tronson case, 66. - - Segregation, 107. - - Sexual theory of Gianini's crime, 20. - - Society, duty of, 82. - protection for, 100. - - Speech development retarded, 113. - - State prison for the imbecile manslayer, 89, 104. - - Sterilization, 107. - - Stories about Gianini, - "Indian," 113. - "Soup and safety," 31. - "Strap oil," 32. - teased little children, 32, 113, 116, 119. - "Thief," 114. - - Suggestion, discussed, 61-63. - Pennington, victim of, 56-64. - - Superintendents as specialists, 88. - - - Testimony of, children, 90. - experts, 85. - Pennington against March, 43, 90, 92. - psychologists, 32, 53, 66. - witnesses, 3-8, 18, 31, 35-37. - - Trial, Gianini, 1, 30, 31. - Pennington, 43, 92. - Tronson, 66, 67. - - Tronson, Fred, case of, 65-82. - actions after the deed, 76-78. - confession of, 76-80. - mentality of, 66. - previous delinquencies of, 68, 69, 82. - - Types considered, of imbecility, 83. - of feeble-mindedness, 12-14. - - - Verdict, Gianini case, 1, 2. - Pennington case, 43. - Tronson case, 66. - - - Witnesses, children as, 90. - - Wrench asked about, 7. - - -Printed in the United States of America. - - - - -FOOTNOTES: - -[1] See prosecution's hypothetical question--Appendix, pp. 131-138. - -[2] See Gianini Case, Defendant's Request to Charge, Nos. XLII, XLIII, -Appendix, p. 153. - -[3] For statement see p. 9. - - - - - - -End of Project Gutenberg's The Criminal Imbecile, by Henry Herbert Goddard - -*** END OF THIS PROJECT GUTENBERG EBOOK THE CRIMINAL IMBECILE *** - -***** This file should be named 43064-8.txt or 43064-8.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/4/3/0/6/43064/ - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive.) - - -Updated editions will replace the previous one--the old editions -will be renamed. - -Creating the works from public domain print editions means that no -one owns a United States copyright in these works, so the Foundation -(and you!) can copy and distribute it in the United States without -permission and without paying copyright royalties. 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Thus, we do not necessarily -keep eBooks in compliance with any particular paper edition. - - -Most people start at our Web site which has the main PG search facility: - - http://www.gutenberg.org - -This Web site includes information about Project Gutenberg-tm, -including how to make donations to the Project Gutenberg Literary -Archive Foundation, how to help produce our new eBooks, and how to -subscribe to our email newsletter to hear about new eBooks. diff --git a/43064-8.zip b/43064-8.zip Binary files differdeleted file mode 100644 index ca67c70..0000000 --- a/43064-8.zip +++ /dev/null diff --git a/43064-h.zip b/43064-h.zip Binary files differdeleted file mode 100644 index f153319..0000000 --- a/43064-h.zip +++ /dev/null diff --git a/43064.txt b/43064.txt deleted file mode 100644 index 49dfc4f..0000000 --- a/43064.txt +++ /dev/null @@ -1,4251 +0,0 @@ -Project Gutenberg's The Criminal Imbecile, by Henry Herbert Goddard - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org/license - - -Title: The Criminal Imbecile - An Analysis of Three Remarkable Murder Cases - -Author: Henry Herbert Goddard - -Release Date: June 29, 2013 [EBook #43064] - -Language: English - -Character set encoding: ASCII - -*** START OF THIS PROJECT GUTENBERG EBOOK THE CRIMINAL IMBECILE *** - - - - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive.) - - - - - - - - - -THE CRIMINAL IMBECILE - - - - - THE MACMILLAN COMPANY - NEW YORK . BOSTON . CHICAGO . DALLAS - ATLANTA . SAN FRANCISCO - - MACMILLAN & CO., LIMITED - LONDON . BOMBAY . CALCUTTA - MELBOURNE - - THE MACMILLAN CO. OF CANADA, LTD. - TORONTO - - - - -[Illustration: JEAN GIANINI. - -(Upper picture taken in jail. Printed by permission of Zintsmaster and -Jones, Herkimer, N. Y., Photographers.)] - - - - - THE CRIMINAL IMBECILE - - AN ANALYSIS OF THREE - REMARKABLE MURDER CASES - - - BY HENRY HERBERT GODDARD - - DIRECTOR OF DEPARTMENT OF RESEARCH - VINELAND TRAINING SCHOOL - - - New York - THE MACMILLAN COMPANY - 1915 - _All rights reserved_ - - - - - COPYRIGHT, 1915, - BY THE MACMILLAN COMPANY. - - Set up and electrotyped. Published September, 1915. - - Norwood Press - J. S. Cushing Co.--Berwick & Smith Co. - Norwood, Mass., U.S.A. - - - - -PREFACE - - -This book is offered to the public in the belief that the three cases -herein described are typical of a large proportion of criminal cases and -that the analysis and discussion attempted will help to make clear -important points which are often misunderstood, points relative to the -criminal and to the imbecile. - -A clear conception of the nature of the imbecile and of his relation to -crime will inevitably result in a most desirable change in our criminal -procedure. - -It should be noted that we use "imbecile" in the legal sense which -includes the moron and often the idiot as scientifically classified. This -usage is justified since much of the literature still describes all mental -defectives as imbeciles, idiots, or feeble-minded--according to the -preference of the writers. - -These cases are unique in that they were the first court cases in which -the Binet-Simon tests were admitted in evidence, the mental status of -these persons under indictment being largely determined by this method. - -It happens, also, that these cases well illustrate three phases of the -workings of defective minds. Jean Gianini shows the criminal imbecile of -high grade and of loquacious type working by himself. Roland Pennington, -equally high grade but of a quiet, phlegmatic temperament, shows how a -defective mind works under suggestion. Finally, Tronson shows the crude -brutality of a somewhat lower grade defective. - -In the chapter on Responsibility we have tried to indicate the difference -between _verbal_ morality and deep-seated, appreciated, moral principle. A -child may have the former but the latter comes only with experience and -the age at least of the adolescent. - -We would remind the reader that in the confessions and the appendices we -have had at hand only stenographic reports. - -If this book shall help the lawyer to make a more successful defense of -the imbecile criminal, the judge to dispense justice to this much -misunderstood class of high grade imbeciles, and society in general to -realize its responsibility for the mental defective, it will have -fulfilled its mission. - -H. H. G. - - RESEARCH LABORATORY OF THE TRAINING SCHOOL - IN VINELAND, N. J. - - - - -CONTENTS - - - PAGE - - PREFACE v - - CHAPTER - - I. THE CASE OF JEAN GIANINI 1 - - II. THE CASE OF ROLAND PENNINGTON 42 - - III. THE CASE OF FRED TRONSON 65 - - IV. THE CRIMINAL IMBECILE 83 - - V. RESPONSIBILITY 94 - - VI. THE PUNISHMENT FOR CRIMINAL IMBECILES 100 - - - APPENDICES - - A. GIANINI CASE. HYPOTHETICAL QUESTION PROPOUNDED BY - THE DEFENSE 109 - - B. GIANINI CASE. HYPOTHETICAL QUESTION PROPOUNDED BY - THE PROSECUTION 131 - - C. GIANINI CASE. DEFENDANT'S REQUEST TO CHARGE 139 - - INDEX 155 - - - - -LIST OF ILLUSTRATIONS - - - JEAN GIANINI _Frontispiece_ - - FACING PAGE - - ROLAND PENNINGTON 42 - - FRED TRONSON 66 - - - - -THE CRIMINAL IMBECILE - - - - -CHAPTER I - -THE CASE OF JEAN GIANINI - - -"We find the defendant in this case not guilty as charged; we acquit the -defendant on the ground of criminal imbecility." - -Such was the verdict by the jury of the Supreme Court of Herkimer County, -New York, on May 28th, 1914, in the case of the people _vs._ Jean Gianini, -indicted for the murder of Lida Beecher, his former teacher. - -The prosecution and, at first at least, the majority of the citizens of -the community held that this had been a carefully planned, premeditated, -cold-blooded murder of the most atrocious character, committed with a -fiendishness seldom seen among human beings. It was, on the other hand, -claimed by the defense that the boy was an imbecile, that he had only the -intelligence of a ten-year-old child, that he did not know the nature and -quality of his act, and that he did not have any true realization of the -enormity of his crime. For some reason unaccountable to a great many -people, the jury accepted the view of the defense. - -Not infrequently have verdicts in murder trials been unacceptable to the -populace. In that respect this verdict is not an exceptional one, but from -other standpoints it is remarkable. Probably no verdict in modern times -has marked so great a step forward in society's treatment of the -wrongdoer. For the first time in history psychological tests of -intelligence have been admitted into court and the mentality of the -accused established on the basis of these facts. - -The value of this verdict cannot be overestimated. It establishes a new -standard in criminal procedure. It recognizes that _weakness_ of mind, as -an excuse for crime, is of the same importance as _disease_ of mind; puts -feeble-mindedness in the same category with insanity, and requires that it -like insanity be considered in all discussions of responsibility. When we -add the now accepted fact that the feeble-minded are at least as numerous -as the insane, we see the far-reaching significance of this standard set -by the Supreme Court of Herkimer County, New York. - -That the verdict has not been at once acceptable to the people is due to -the fact that the character and the limitations of the high-grade -imbecile are not understood. With a view to explaining this type of -defective, which the defendant so well illustrates, we propose in the -following pages to go over the history of this case, explaining the facts -in the light of present-day knowledge of the feeble-minded. - -The facts in the case as established by testimony:-- - -On the morning of March 28th, 1914, Henry Fitch, a farmer of Herkimer -County, accompanied by his son, started on his usual work to deliver milk. -At a point in the highway, approximately one mile from the village of -Poland, Mr. Fitch saw blood and signs of a struggle in the snow and slush -in the road; he also found an umbrella and a hat. A bloody path led out of -the road to a point some hundred and thirty feet away. Following the -tracks he found the body, which proved to be that of Lida Beecher, one of -the school-teachers in the village of Poland. She lay at full length on -her face, both arms under her. The body was removed to Sprague's -undertaking rooms in the village. - -On the same morning Jean Gianini, sixteen years old, left his father's -house on the edge of the village to go to the home of Sam Hutchinson, -where he was working and taking his meals. He had his breakfast, went to -the barn, and worked a short time. When Mr. Hutchinson went out a little -later, he could not find Jean. A Mr. Smith said he had seen him going down -the tracks toward Newport. William Taylor, the track foreman, said he -passed Jean near the bridge. Mr. Hutchinson then sent word to the boy's -father that he had gone. The father, supposing his son had run away as he -frequently did, telephoned to Newport asking that he be apprehended and -sent home. This was before anything was known of the crime. Peck Newman, -to whom the father telephoned, found Jean in a grocery store in Newport. -He had been apprehended at the depot. He was taken home and then to the -Justice of the Peace. Here he was stripped, presumably for the purpose of -discovering whether there was any blood upon his clothing or his body. -Although there is no evidence that any stains were found, yet he had no -sooner been stripped than he made a free and open confession. We shall -consider this confession in detail later. In substance he said that he -killed Miss Beecher to get revenge, because she had humiliated him in -school. He told in detail how he had accomplished this and what had been -his movements shortly before and after the deed. On the strength of this -confession and such corroborative evidence as could be obtained from -local witnesses the prosecution sought to convict this boy of murder in -the first degree. - -It was understood at first that the defense would attempt to prove that he -was insane. There did not seem to be much evidence of insanity and it did -not appear that the prosecution was in great fear of such a verdict. As a -matter of fact, the real defense was imbecility. It is probable that this -defense was less intelligible to people who knew Jean Gianini than that of -insanity would have been. To one familiar with imbecility, however, there -is no shadow of a doubt of the correctness of this diagnosis. The only -possible question in the mind of any such person would be whether a -defective of such high grade knew the nature and quality of his act and -knew that it was wrong, and was therefore responsible for his act. This -point the jury decided, and we shall attempt to show by a study of the -case that they decided correctly. - -Much of the confusion in the mind of the public and dissatisfaction with -the result in this case is due to a failure to understand the nature and -character of the imbecile. Most of the acts and the utterances of the -defendant, which seemed to many people to indicate his soundness of mind, -his premeditation and planning of the murder, are in reality so thoroughly -characteristic of the imbecile as to leave no doubt whatever of his low -mentality. - -We have already given all that is known of the circumstances except -certain details which Jean claimed in his confession, and certain acts and -utterances which were testified to by local witnesses. - -We may now examine these testimonies, reserving his confession for a later -discussion. So far as the crime itself is concerned but little testimony -was brought forward; so little, in fact, that without the boy's confession -he probably could never have been convicted of the deed. - -On the evening of the tragedy Jean was seen by several people walking up -the street toward his home in company with his victim. Two days before -this he had been heard to ask her when she was coming to see his father -about his returning to school; to this she had replied, that she "did not -know"; and he had answered, "Aw, I don't believe you intend to come at -all, you will wait until summer time, and go home and then it will be too -late." On the following evening he again asked her to go up to his house. -She said she could not go then, as she was going to prayer meeting, but -she would go the next night. He had also inquired of certain persons -whether she went to the Post Office in the evening. On one occasion he -had been seen with an old rusty wrench in his pocket and when asked what -he was doing with it, he had replied, "I have use for it." This was the -wrench with which he struck his victim the death-blow, according to his -confession. - -Previous to the tragedy he had told certain persons that he meant to get -even with Miss Beecher. The wrongs for which he claimed to have desired -revenge had occurred more than a year before the tragedy. For over a year -he had been out of school and had been working a part of that time. For -some months he had been an inmate of St. Vincent's School, to which -institution he was committed by a Justice of the Peace at the instigation -of his father because of his propensity to jump freight trains. - -The evidence was strongly against the idea that Miss Beecher had ever done -anything to injure him or anything which would reasonably cause resentment -in his mind. He had not gotten along well in his studies after going into -her room, had been more or less disorderly, and she, at the suggestion of -the principal, had seated him facing the wall with his back to the rest of -the school. She had occasionally sent him up to the principal, who had -sometimes flogged him. - -On the night of the deed Jean was seen walking up the street with Miss -Beecher at something after seven o'clock in the evening; before eight -o'clock he was at home in his father's house; there he was given an errand -to do and went down the street, returning shortly; spent some time in -reading and then went to bed. The next morning he was at his place of work -as already mentioned. The wrench which had been seen in his pocket was -found near the scene of the murder. These are the only known facts bearing -upon the case, previous to his own confession. For further items of -evidence see the hypothetical questions propounded by the prosecution and -by the defense--Appendix, pp. 109-138. - -The fact that he was the last person seen with her, that the monkey wrench -at one time seen in his pocket was found at the scene of the deed, that he -left his place of work and went down the railroad track toward Newport, -was sufficient to arouse suspicion. It is more than doubtful whether the -evidence could have resulted in an indictment by a grand jury, and -practically certain it never could have resulted in a conviction. The -absence of any real motive for the act would have been fatal to such an -attempt. The absence of evidence of a prearranged plan is also a serious -lack. It is true that, when we have the confession and the later -explanations, the presence of the monkey wrench in his pocket and his -words that he "had use for it" sound like a prearranged plan, and yet -there is no real evidence here. He might have had the monkey wrench for a -dozen purposes and have given the same answer. Perhaps his threat to get -even with her, his remark "that if he had a revolver he would shoot her," -may be considered more serious, but certainly no jury could convict him -merely on the basis of such statements. - -It is reasonably certain then that, had he not confessed, he never would -have been convicted even if he had been indicted. Let us now examine the -confession. - - _Gianini's Confession_: Jean Gianini, being duly sworn, deposes and - says he resides in the village of Poland and is sixteen years old; - deponent further says, "I went to school to Lida Beecher and had - trouble with her and wanted to get revenge. - - "I met her above the hotel and walked up the street with her up beyond - the stone quarry; she had been a coming to see my folks about school - and was a coming up to see them last night and I told her they lived - up the hill, and when we got up there on the left side of the road, I - hit her with a monkey wrench that I got out of my father's barn. I had - the wrench in my pocket when I went up. - - "After I had hit her about three times with the wrench, I hit her with - a knife several times, to be sure to finish her, and then I took her - over in the lot; I dragged her by the foot; and then I went home and - got there about 7:30. - - "The knife I stabbed her with was one that belonged to my father and I - took it home and put it in the pantry drawer. - - "I left the wrench somewhere near where I hit her. When I hit her - first, she did not scream but moaned. - - "She said she thought it was quite a ways and she did not see any - house. - - "I was not afraid when I got home; I was just as happy as I ever was - and didn't think anything about it as I thought I had revenge. - - "I make this statement voluntarily and under no fear or threat and - knowing the same may be used against me. - - "JEAN GIANINI. - - "Subscribed and sworn to before me this 28th day of March, 1914. - - "FRED MOORE, - "_Justice of the Peace of Town of Russia_." - -In its main points the confession must be accepted as true. To refuse to -accept it would be to admit at once without further proof that the boy -was crazy or an imbecile, since, if it were not true, it is inconceivable -that any normal person would claim to have done such a deed. It is -accepted then by all that Jean Gianini killed Lida Beecher on the night of -March 27th, 1914. There is no difference of opinion on that point. It is -now only a question of his responsibility. - -We may now review the facts and see what is the evidence: first, that he -is an imbecile; second, that being an imbecile, he did not know the nature -and quality of his act and that it was wrong. - -Is Jean Gianini an imbecile? What is an imbecile? We cannot expect to -agree upon the question of whether Jean is an imbecile until we agree upon -the definition of imbecile. There are various ways of designating this -type of individual. Imbecility, as used in law in this country, may be -defined as "the state of mental defect existing from birth or from an -early age, due to incomplete cerebral development, in consequence of which -the person affected is unable to perform his duties as a member of -society." The high-grade imbecile, such as the person under discussion, -feeble-minded as he is called in England, or the moron as we are coming to -call him in the United States, is one who is "capable of earning a living -under favorable circumstances, but is incapable from mental defect, -existing from birth or from an early age, (_a_) of competing on equal -terms with his normal fellows, or (_b_) of managing himself or his affairs -with ordinary prudence." These definitions were formulated by the Royal -College of Physicians of England, and accepted by the Royal Commission on -the Care and Control of the Feeble-minded. - -We may further designate this type of individual by saying that he has the -mentality of a normal child of from three to twelve years of age. These -age limits have been determined by examining thousands of the inmates of -institutions for the feeble-minded and comparing with normal children. The -inmates of the institutions are there because they were not capable of -managing their own affairs with ordinary prudence, because society has -discovered that they could not take care of themselves; they are -weak-minded; they must be cared for by the public. Careful examination of -such persons as have been determined by experience to be incapable of -managing themselves shows that they range in intelligence, as before -stated, from three to twelve years. There are practically none in these -institutions that have a mentality above twelve. Those under three are -called idiots. - -Considered from the standpoint of the growth and the development of the -child, we say that the imbecile is a case of arrested development; he has -stopped growing mentally, and has stopped previous to the age of twelve, -so that no matter what may be his actual age his mentality is that of a -child under twelve years. - -In the case of Jean Gianini, although he is sixteen years old, he has only -the mentality of a child of ten. Or, if a possible error of two years were -allowed, he would still have only the mentality of twelve and would be an -imbecile. As a matter of fact, there is probably nothing in the whole -career and history of Jean Gianini that is inconsistent with a mentality -under twelve; and on the other hand there are numbers of things in -evidence in connection with his crime that are so thoroughly typical of -high-grade imbeciles that any one with experience with this type of person -can have no doubt about it; but it is our purpose to show this by an -analysis of the case. We must first attempt to remove some of the -difficulties in the way of this view. - -First, why does it seem absurd to call Jean Gianini an imbecile? Mainly -because in the popular mind the term imbecile connotes only the low-grade -imbecile, the person who shows in every movement and action, if not in -his very face, that he is "lacking," is "not all there," is "not quite -right," or whatever may be the expression that we apply to those -unfortunate ones, of whom there are, sad to say, always one or more in -every community. - -Jean Gianini is not of that type; he is a _high-grade_ imbecile; he is of -the grade that is only recognized by those who are intimately familiar -with imbeciles of all types. He is only discovered when we make a close -comparison between him and normal boys of the various ages. We may perhaps -liken it to the question of tuberculosis: the average man never recognizes -a fellow being as suffering from consumption until he is afflicted with a -cough which does not yield to treatment, is constantly expectorating, gets -thin and pale, and has other marked outward symptoms; the average person -would not find more than one or two consumptives among a hundred persons; -the expert physician, however, experienced with tuberculosis, recognizes -many more by signs and symptoms which he can describe with great accuracy, -and when he is allowed to apply his physiological tests and his clinical -thermometer and his microscope, the number increases enormously, and he -assures us that every seventh person will die of tuberculosis. - -It is hard then for many people to accept the verdict that Jean Gianini -is an imbecile, largely because they do not realize what a high-grade -imbecile is. - -A second reason is found in the fact that we insist upon believing the -unbelievable. We view a crime like the one under discussion and say -frankly, "It is unbelievable that any reasoning, intelligent person could -commit such an atrocious act," and yet we believe that this boy did; we -believe that such a grade of villainy exists and that it can suddenly -appear in a boy who never before manifested anything approaching it. The -fact is, that our instinctive revulsion against such a thought is the -correct view. The fact that Jean Gianini committed such a crime is itself -the strongest kind of evidence that he is not a normal boy. But turning -from imbecility in the abstract, let us examine concrete instances in the -life of Jean Gianini, for we shall find there the best possible -illustrations of the characteristics of an imbecile. - -We may begin at the most dramatic point--the crime itself. Since we know -practically nothing of the crime except through his admissions, we will -begin with the confession. And first, why was there a confession? It is -safe to say that there is not a sensible man or boy the country over who, -knowing the facts in the case, would not say, "What a fool Jean was to -confess!" Nobody but an imbecile would have confessed under those -circumstances; they had no evidence against him, nor did they pretend they -had; he testifies that they told him that they thought he was guilty of -the crime; they did not pretend that they knew he was guilty; there were -no third-degree methods used; they had taken his clothing off and examined -him, but they had not found any blood or any evidence, and the clothing -had only just been removed when Jean began to tell his story. He had not -been promised any immunity if he should confess; in fact, he had been told -that anything that he said would be used against him, but still he -persisted in telling the whole story. But we do not have to rely upon the -fact that it looks foolish to us for him to have confessed, because we -have the fact, well known to all who have to deal with imbeciles, that it -is characteristic of them to do just this thing. They do not always -confess, it is true. It seems to depend largely upon how proud they are of -their deeds--and frequently the more atrocious these are, the prouder they -are of them. It is perfectly clear that such was the case with Jean. He -made some little attempt to get away, at least he made what appeared like -an attempt to get away; there really is no evidence that he was doing -anything more than he had done many times before, going away from home to -seek work elsewhere, with that _wanderlust_ which is also characteristic -of imbeciles. He walked down the railroad track toward Newport, not going -very fast, not taking any precautions to avoid being seen, and when met by -some one whom he knew, he came willingly back to Poland. - -There is the highest probability, perfectly clear to one who understands -imbeciles, that almost from the time the deed was done he had a strong -desire to tell somebody about it, to brag about it; but a certain -instinct, a certain feeling that he ought not to be caught, probably held -him back. But when at last he was taken back to Poland and into the -presence of the Deputy Sheriff; when his clothes had been removed and he -thought his story would get into the papers and he would become notorious; -then he began to talk. In spite of all the warnings and declarations that -he would suffer for it, he talked. At this point it is important to -remember that he is talking now to be heard; he is not confessing in order -to escape punishment, he is talking because he is proud of what he has -done; he wants to boast, wants to be talked about and written up, wants to -be notorious, a great criminal, as is evidenced in the course of the -trial. Remembering this, we _cannot believe all that he says in his -confession_. - -As already stated, in so far as it relates to the basal facts of the -crime, it is undoubtedly true; but when it comes to the finer details of -what he did, how he prepared, and what he claimed was his motive, we -greatly err if we accept everything he said. It is not in the sworn -confession, but it was in evidence that he said he sharpened the knife for -the purpose; the fact that he said he sharpened the knife for the purpose -should have no weight. It is precisely the kind of thing that he would put -in for effect. In fact all that he said after the deed as to arrangements -or plans or details must ever be questioned unless his statements can in -some way be corroborated, for this tendency to elaborate is so strong that -there is no possibility of putting any trust in his words. - -It is worthy of note that whereas the defense introduced many witnesses -who testified to Jean's sayings and actions that showed silliness and -indicated childish intelligence, the prosecution neither rebutted this nor -produced witnesses testifying to anything in his previous conduct that -gave evidence of good judgment or intelligence appropriate to his years, -or that he had any moral development that would be normal for his age.[1] - -The evidences of his pride in the deed are scattered throughout the -testimony. For example, at one time he said, referring to the deed, "You -would not think anybody could do a deed like that so quick, would you?" -When asked how he could get Miss Beecher to go so far up the hill in the -dark with him, he replied with a good deal of pride: "That's easy! I told -her my father was building a house up on the hill and we went up there." - -This leads us to another precaution which must be borne in mind in -considering this case. If Jean is an imbecile, then all our previous -conceptions must be changed, since the conclusions that we naturally draw -are based on the assumption that these facts relate to a normal man. To -illustrate: if Jean were a normal boy of sixteen, the fact that he -inquired as to the time of Lida Beecher's being at the Post Office, that -he talked with her the day before about her promise to go with him to see -his father, the fact that he went off with her that night, that when he -reached his father's house, he lied and said his father lived up over the -hill and led her up there, and then, as he said, struck her with the -monkey wrench, and so on, would all indicate premeditation and planning -and forethought; but the instant we conclude that Jean is an imbecile, -then these facts indicate nothing of the kind. It is not denied that such -may have been the case, or that it is impossible for an imbecile to carry -out such a plan. But it is claimed that there is no strong presumption -that such was the fact, because the result can be accounted for in another -way. Jean being an imbecile, _it is entirely possible that he had no -premeditation of murder at all_, that he not only did not grind that knife -for the purpose, but that he did not have the monkey wrench in his pocket -for the purpose. On the contrary, it is possible that as he walked up the -hill with Lida Beecher he had no more thought of killing her than of -committing suicide. Indeed, it is much more plausible from all we know of -imbeciles, and of boys of his physical development, that there was an -entirely different purpose. That purpose was probably sexual. The writer -is not alone in this thought. Hardly any of the persons with whom he has -talked of this crime has failed to ask the question, "Was there any sexual -offense in the matter?" The absence of any evidence of assault of this -character has been a surprise to many persons; but it again is no surprise -when we remember that Jean is an imbecile; we know also that he is a -masturbator. - -While the writer has no theory to put forth in regard to this crime, yet, -for the sake of clearness and as an illustration of the imbecile type, let -us assume a plausible hypothesis; that is to say, an hypothesis which may -fit the case and is entirely plausible from the standpoint of imbecility. - -Jean was sixteen years old, an age when sexual passion is strong. It is -the middle of the great adolescent period. The new physiological function -of sex is established, great psychic changes have occurred. The boy is -dreaming dreams, the imagination is active. In the normal boy this means -the evolution of ideals, ambitions, moral and religious ideas, attention -to dress and appearance, interest in the opposite sex. In the case of the -morally well-endowed boy, the sex impulses which have strengthened with -the development of the physical potency find their outlet in a kind of -vicarious functioning in the shape of polite and friendly association with -his girl friends, in chivalric attentions and devotions, with more or less -definite plans for future marriage and parenthood. In those with little or -no moral principle we see the impulse leaping over the social conventions -and attaining complete sexual gratification illegally. - -With the imbecile the case is different. The fires of sexual passion may -burn as vigorously as in the better endowed, but he lacks both the power -of control and the courage and ingenuity to overcome the social barriers. -He masturbates. This banks the fires somewhat and requires no courage. If -stimulated by association with girls, he makes crude and imbecilic plans -for conquest. Lacking moral development and ignorant of the more subtle -means of accomplishing his purpose, he may resort to violence in some one -of the many possible ways. Often he is not conscious of what it is that is -driving him and hence does not know where satisfaction lies. Under these -conditions his violence may show no outward signs of being sexual. It may -show every degree from rough horseplay with girls, such as pushing, -pulling, grabbing hat, cloak, or other articles of dress, bantering, -teasing, and other forms of personal contact, up to physical injury, -torture, and even murder. - -Volumes could be written--indeed volumes have been written--showing the -tremendous force of this sex impulse at this age, and the multifarious -ways in which it expresses itself--many of them not showing any of the -signs that are usually considered as indicating a sexual disturbance. That -is to say, such acts are, by the uninitiated, not considered sex acts at -all. One incident of this kind is in evidence. "At one time Jean took two -little girls to a piece of woods and started to take their clothes off, -and when asked why he did it, said he was going to play Indian and that -Indians were naked." Dismissing the possibility that his explanation was -invented to conceal a definitely conscious sexual impulse, let us admit -that he gave his real reason for the act. Still it is clear to all who are -familiar with sex psychology that the subconscious reason for playing -Indian in that way was a sexual one. The procedure also shows a lack of -judgment and appreciation of the proprieties which argues strongly for -mental deficiency--especially as he was then between ten and twelve years -old. (For further items the reader is referred to pp. 113-120 of the -Appendix, where the hypothetical questions have summed up the testimony.) - -The imbecile is a coward. Jean Gianini is an imbecile. Unconsciously -impelled by that strong instinct he seeks the company of Lida Beecher. As -a matter of fact her friend, Miss Clark, testified that Miss Beecher had -been annoyed at his attentions. He contrives an excuse to get her to come -up to his house; when he reaches the house, he makes another excuse to get -her to go farther, not, as generally believed, with the purpose of -murdering her; perhaps only blindly following that instinct of sex and -desiring to be in her company; more probably with the half-conscious -purpose of satisfying his passion if he could find a suitable -opportunity. They walk on; where they were going or how far they would -have walked no one will ever know, but there came a time when for some -reason her suspicions were aroused, or at least her common sense told her -that it was foolish to go farther. Of course we have nothing but Jean's -statement, which may be true or may be false; instead of the simple -statement that she thought she would go back as she saw no light, there -may, for all we know, have been a strong argument; he may have made -improper proposals which she resented; this led to blows with the fatal -result. We have no means of knowing what actually took place at that spot. -But even taking Jean's own account, when she remarked that "she thought -she would not go any further," he saw that his plan was frustrated. Then -he struck her with the monkey wrench which he happened to have in his -pocket--for what purpose no one knows. Having struck her once, it was easy -to strike the second and the third time. It was only natural for an -imbecile to keep at it,--"finish the job" as he expressed it. According to -the evidence he struck her with the knife approximately twenty-four times, -finally hitting the jugular vein in the neck, as a result of which she -probably bled to death. - -As already stated, the writer has no desire to advance this as _the -theory_ of the deed. But if Jean is an imbecile, this theory is fully as -good as that upon which the prosecution worked, and it eliminates entirely -all necessity for elaborate planning. Up to this point we have shown that -the fact of a confession and the character of the confession, both -difficult to explain on the basis that Jean is a normal boy of sixteen, -are entirely clear and perfectly characteristic of a high-grade imbecile. - -Let us look now at his actions immediately after the deed. It is in -evidence that Jean said he took the murdered girl by the foot because -there was no blood there and he did not want to get blood on his hands for -fear they would take his finger prints. Holding her by the foot, he -dragged her out of the road behind some bushes and left her in the snow. -He then went back into the road, making new tracks, which he made no -effort to cover. Nor did he make any effort to cover the old tracks or the -blood spots that were left along in the snow. Neither did he make any -attempt to hide the hat nor the umbrella nor the broken comb which were -left in the road; his care to take her by the foot where there was no -blood is cited as evidence of forethought and judgment; but what shall we -say of his failure to cover up his tracks when it was easy to have done -so! - -Again we must remind the reader that we have nothing but the boy's -testimony as to the fact that he took her by the foot or to explain why he -took her by the foot, but in accepting his testimony as true there is -nothing incompatible with high-grade imbecility. - -The one peculiar thing about Jean is that he has read more than most -imbeciles even of this high grade. But this peculiarity does not save him -from being an imbecile, since there are cases of imbeciles who have read -as much or even more than he. Furthermore, there is plenty of evidence in -the case that Jean's interest in reading has gone along the line, -childlike, of crime. The various experts who examined him told of his -talking about the case of the New York gunmen, of the Pomeroy case, of a -murder in the South, and possibly others. He inquired about Mahoney, the -would-be assassin of Mayor Mitchell. In connection with these crimes his -reading of finger prints had made the same impression upon him that it -would have upon any boy. He remembered what he had read and perhaps acted -upon it, at least talked about it when the opportunity came, and pretended -that he considered it in his action. - -It needs no argument to show that all the rest of his conduct in leaving -things as he did was imbecilic. Even many a high-grade imbecile would have -been much more thoughtful and more careful to cover up the tracks in the -snow. That Jean did not do so is in itself almost an unanswerable argument -that he was an imbecile. - -He then went home, and having washed the knife in the snow, put it in the -pantry drawer. No evidence was produced, so far as the writer knows, to -prove that this was the fact; we do not know whether the knife belonged in -the pantry drawer and he put it back, or whether it belonged in his pocket -and when he was through, he put it back in his pocket or put it somewhere -else. Again, assuming that he told the truth, he certainly ran the risk of -being questioned as to what he had been doing with the knife. He then went -on an errand, and, according to his statement, went down to the railroad, -hoping to jump a freight train. When he found the freight had gone, he -hurried back home. These actions according to the prosecution indicate -careful planning and a desire to get away; realizing the enormity of his -deed he wanted to get out of town. Surely no normal youth of sixteen would -have failed to get out of town even though he had missed the freight -train; but his conduct is perfectly characteristic of an imbecile. One -simple thought having failed to materialize, without planning further he -goes back home, acts as no one but an imbecile could under such -circumstances,--goes to bed, sleeps soundly, gets up the next morning, and -goes to work. Then he makes another effort to get away. But how crude an -effort it is. He walks quietly along the railroad track and, as already -stated, makes no attempt to hide, but passes the trackman and goes into -the station at Newport. When he meets a person from his own town, comes -promptly and quietly back home. Surely an act much more befitting an -imbecile than a normal boy of sixteen! - -The writer was asked upon the stand whether these incidents indicated to -his mind that Jean had intelligence and had planned this thing carefully. -The answer was emphatically, "No." At every turn they indicate an -imbecile. We could cite many instances of imbeciles in our institutions -who have done things of exactly the same character. Our high-grade boys -frequently plan to run away, and often their plans are much more -elaborately conceived and much better carried out than Jean's was. - -In speaking of the confession it may be noted also that not infrequently -our boys when they have made a plan to run away cannot keep it until they -can carry it out, but make a confession. They go to some attendant or -officer and, without any compulsion, actually tell of their plan. In this -way a great many times their purposes are frustrated. When two boys plan -to run away, it is rare indeed if they carry out their scheme; it is -almost certain that one of them will confess to somebody. - -Jean manifested throughout that love of display and notoriety, that -longing to be the center of observation and talk, which is so -characteristic of imbeciles. He asked the alienists who were examining him -if his picture would be in the paper and what the people were saying about -him. According to the testimony of the experts who examined him in jail, -every occasion on which he was examined was regarded by Jean with -pleasure, and his only thought apparently was that he was the center of -observation. Instead of showing some realization of his crime and that he -was exerting himself to make an appearance that would be favorable to his -case, all the evidence was of the opposite character. None of the -witnesses for the prosecution were able to hide the fact that he was -light-hearted and frivolous, and, in a word, "showing off," throughout -these various examinations. - -Throughout the whole time of the writer's examination of him Jean never -for one moment evidenced by word or action any thought as to how his -conduct or his answers to questions would affect his case. As was pointed -out by the defense, quite in keeping with his mentality was his statement -to the experts employed by the prosecution, that he had been told not to -talk, in spite of which he talked incessantly and told everything that -they wanted. The fact of the matter was that his desire to show off so far -overcame any thought of self-preservation that he talked and acted freely -in spite of his lawyer's caution that he should not answer questions. His -conduct in the court room throughout the trial was that of an imbecile, of -a child, who had no realization of the predicament that he was in and no -purpose to make a good appearance. He was in the limelight and he enjoyed -it. Even when the most gruesome details of his deed were being recited, he -evidenced no feeling of horror or sorrow or fear; on the contrary he was -indifferent, and frequently even laughed at the incidents that were -related. He showed no excitement after he got home that evening; he slept -well. His only comment on his prison cell, which to a normal person would -have been loathsome in the extreme, was that it was better than St. -Vincent's, where he had been at school. Even when the experts introduced -by his own counsel were examining him, and when, had he been intelligent, -he should have known that it was to his advantage to make the best -possible appearance, to give them every possible help, yet when his dinner -was brought into his cell, he could think of nothing but eating and -ignored the people who had been sent to help him. As one of the experts -testified, "As between soup and safety, Jean prefers soup." - -These facts and circumstances alone are enough to satisfy any person who -is familiar with the character of the inmates of our institutions for the -feeble-minded that Jean was an imbecile and really belonged in an -institution. But besides these circumstances several witnesses were -introduced who testified to the curious and childish actions of Jean in -his past history. Quite recently, he had tried to catch pigeons by putting -salt on their tails. The prosecuting attorney called attention to the fact -that almost every man remembers going through the same experience, but it -may be safely asserted that this is not done by any normal boy after the -age of twelve. It is a childish act, and indicates a mentality of less -than eleven. - -Peter Black, the village blacksmith, testified that some one sent Jean to -him one day for "strap oil"; that he carried out the joke by slapping -Jean with a strap, but was unable to make him see that the whole thing was -a joke. He teased and bullied the other children in a way that is -characteristic of the high-grade imbecile. Mrs. Anna Newman testified that -he was a restless boy, and that sometimes he would answer her questions -and sometimes not. Every superintendent of an institution for the -feeble-minded would instantly recognize these characteristics as common -among his inmates. The reader will find more of these incidents in the -Appendix, pp. 113-119. - -One of the unique features, so far as court procedure is concerned, was -the introduction into the case, of examinations by means of the -Binet-Simon Measuring Scale of Intelligence. The writer's examination of -Jean consisted largely of the use of these tests, and as a result he -estimated his mentality at approximately ten years of age. It was somewhat -difficult to estimate his mentality with the usual exactness since others -had already used the tests, and it was impossible to say how much Jean had -learned from his previous examinations. As a matter of fact, in some cases -at least, he had not profited by the experiences which should have helped -him greatly had he been a normal boy. For example, one of the tests is to -draw from memory a diagram which he has been allowed to study for ten -seconds. It is clear that if one were given this test two or three times, -at the last trial he should have a pretty good idea of it and be able to -draw it correctly. Although the writer's use of this test was in the last -of the series of those who tested him, yet he did not succeed in drawing -it. This is usually drawn by a child of ten years. When asked to repeat a -certain sentence, he replied, "Oh, I have been asked that a hundred -times." But in spite of the fact that he had heard it several times he -failed to remember it, and yet this sentence is generally remembered by a -child of twelve. - -This is not the place nor is it necessary to discuss the Binet tests -themselves. A word, however, may be said as to why the experts for the -prosecution did not get the same results with the tests that those of the -defense obtained. Also it seems necessary to make a brief explanation, -since the prosecuting attorney failed so markedly to understand the tests -in spite of the fact that he had had the instruction of one of his own -experts who used them. One of the prosecution's experts told the writer -that he did not ask Jean any questions except those in the twelve-year -list, and he "seemed to do those satisfactorily." There are two sources of -error in this. In the first place, Jean's failures were not only in the -twelve-year, but in the eleven and ten. Secondly, if Jean seemed to do the -twelve-year tests correctly, it could only have been because they were -wrongly used. The Binet Scale is not, as the prosecutor insisted on -stating, an "arbitrary system." It is not a set of questions to which -there are definite and fixed answers that are correct, and from which any -deviation is marked a failure. Nor is it a set of questions the answers to -which can be judged as to their correctness by the so-called "common -sense" of the investigator. To illustrate: Jean was asked to give the -definition of the word "charity"; he said, "Charity is giving." The -prosecuting attorney insisted that this was a correct answer, because, as -he said, "Charity _is_ giving." This is mere sophistry. It is not a -question as to whether "charity is giving" is a theoretically correct -answer to the question; the important point is, that such an answer is -_not the kind of answer that is given by twelve-year-old children_. This -has been proved by asking hundreds of twelve-year-old children to define -"charity." Practically 75 per cent of such children include not only the -idea of giving, but the other necessary idea of giving to some one who is -in need. The answer, "Charity is giving," is characteristic not of -twelve-year mentality, but of something under that,--ten or less. So -throughout the system the scale must not be judged by what seem correct or -incorrect answers to the inexperienced adult. The value of an answer can -only be known by knowing the character of answers that are given by -children of the various ages. The point is not always that this answer is -or is not technically correct, but that it is not the kind of answer which -a child of the specified age should give. Therefore, it indicates that he -is not of that age, but below it. This was the error into which the -prosecutor and his alienists had fallen in their use of the tests in the -case of Jean Gianini. - -Jean's school record was the serious stumblingblock to many persons who, -from the facts, notably those already cited, were inclined to think that -possibly he was an imbecile. To many of these persons that record seemed -to indicate a normal boy. The teachers and the principal testified that he -did his work well through the fifth grade and got excellent marks, even -getting 100 per cent in some studies. They lost sight, however, of the -fact that Jean was fourteen or fifteen years of age and in a grade which -he should have been in at eleven, namely, the fifth. - -As a matter of fact, Jean's school experience, when taken as a whole, is -most confirmatory of his imbecile grade. It was proved in court, but not -fully appreciated, that Jean got along well through the fifth grade, but -_when he went into the sixth grade, he failed_. - -Professor Robinson testified that when Jean was transferred to Miss -Beecher's room, his troubles began. The boy did not get along nearly so -well after the change and he dropped back in his studies. His teacher was -obliged to report him a number of times to the principal, who twice -whipped him with a piece of rubber hose. Failing to make his studies under -the new standard, he was made to occupy a special seat apart from the -other pupils, at the instance, if not the actual order, of Miss Beecher. - -The witness further testified that in the last days of his school life -Jean dropped, _to a very marked degree_, in his standing in his studies. -This falling off in Jean's ability was _attributed to his teacher_. As a -matter of fact, the falling off was due to the fact that Jean had _reached -his limit_ in the fifth grade. He attained to that height because of a -good memory, which is characteristic of many imbeciles and is in no way -indicative of normal intelligence. It is also very common for children of -this type to get through the fifth grade and fail in the sixth. They have -mentality enough to carry them to that point, but not farther. - -It is a satisfaction to realize that Jean's failure in school with Miss -Beecher is in no way due to the inefficiency of his unfortunate victim. It -was due simply and solely to the fact that Jean was an imbecile and had -reached his limit. These two facts of a good memory and of good school -work in a few school grades have deceived many people as to the -intelligence of a child. - -It should be remembered that many imbeciles do not show their defect until -at the age of eleven or twelve when they are in the fifth or sixth grade. - -One of the witnesses for the prosecution said that he considered that Jean -was normal and that his apparent backwardness was due to lack of -schooling. This is a common error in all such cases. If asked why a boy -should be backward through lack of schooling when he has been to school -and has had every opportunity to learn, it is common again to fall back -upon the idea that he has not studied. He has been a wild, wayward boy, -playing truant, more or less, and has never applied himself, therefore he -is behind his grade and is dull and backward. Again, while not denying -that there are children of perfectly normal intelligence who seem to be -misfits in school or who seem more interested in other things than in -their school work, or children who will not study because of dislike for -the teacher or for various other reasons, yet the reader must be reminded -that a study of the high-grade defective shows that he is continually -being confused with these very exceptional children who have the ability -but who do not study. In other words, when a boy does not get along in -school, even though it is evident that he does not study, the strong -probability is that he does not study because he has not mind enough to -appreciate the work, to understand it, hence to have that highest of all -incentives to work, success. The fact that the majority of boys do get -their lessons and get along well in school should be a strong argument -that there is something seriously wrong with those that do not succeed. - -It may further be asked: How does the fact that the boy has not succeeded -in school affect his examination by the Binet test? Experience has shown -that the test is affected but slightly. In other words, the mind develops -regardless of school and school training. As long as we ask only such -questions as call for a general intelligence and do not call for specific -school instruction we are reasonably independent of such instruction. As a -matter of fact, nearly all of the questions of the Binet Scale are free -from this objection. Some of them, it is true, are a little helped if the -child has been to school and correspondingly hard if the child has not -been to school; but, on the whole, they do not affect the final rating to -any serious extent. This has been proven repeatedly by normal children -who, on account of sickness or for other reasons, have not been to school, -and yet can pass the Binet tests for their own age. - -We must now turn to the question of cause. If we can account for Jean -Gianini's imbecility, it will be much easier to believe in it. Much has -been written on the subject of the causes of feeble-mindedness. Certain -fundamental principles have been agreed upon. It is now known that at -least 66 per cent of feeble-mindedness is hereditary; that is to say, the -individual is feeble-minded because he comes from stock in which -feeble-mindedness exists. There is another group in which there are -practically no other feeble-minded persons in the family or among the -ancestors so far as can be discovered, but there is, on the other hand, a -great deal of bad physical history; there may be epilepsy, alcoholism, -insanity, or other serious physical disturbances. Finally, we have a group -in which there is history of some accident, either to the child at the -time of birth or after birth, or to the mother previous to the birth of -the child. - -In Jean's case we have no history of accident or injury to the child -himself. The pedigree or family tree has not been worked up and we do not -know what there may be. It was in evidence that the grandfather was born -on the south side of the Alps; and there was some slight attempt to imply, -since cretinism is very common in that region, that possibly there was -some cretinous condition in the family. All this is not impossible; and if -it existed in the grandfather or even in the great-grandfather, such a -condition might reappear in the grandson in the form of imbecility; yet in -view of our present knowledge, or rather our lack of knowledge on this -subject, this line of argument is too vague to enable us to draw any -conclusions. - -The fact that the mother of Jean was insane and alcoholic justly had great -weight. Before her first child was born she broke down mentally and was -probably never "right" after that time. The first child lived to the age -of seven and from the description was clearly an idiot. The second child -is entirely normal. Jean, who is the third child, did not talk until he -was five years old. - -Our general studies have not yet gone far enough, and certainly our study -of this particular family is far from sufficient, to enable us to decide -whether this is a matter of heredity or whether we shall say that Jean's -condition as well as that of the first child is traceable directly to the -mother's insanity or to her alcoholism. - -For the present purpose, of course, it does not matter. We see in these -facts, whether we regard them as causes or merely as symptoms of a deeper -lying cause, sufficient reason for Jean's being an imbecile. There is -every reason to believe that Jean Gianini is an imbecile of high grade. -The next important question that arises is a legal one of whether, being -an imbecile of high grade, he knew the nature and quality of his act and -that it was wrong. - -Before discussing this let us consider two other cases--after which we may -discuss the general proposition of whether high-grade imbeciles know right -and wrong. - - - - -CHAPTER II - -THE CASE OF ROLAND PENNINGTON - - -On November 7th, 1913, Lewis S. Pinkerton, the manager of a certain farm -in Delaware County, Pennsylvania, suddenly disappeared. As it seemed -probable that he was the victim of foul play the detectives set to work -and in due time arrested George March, the dairyman on the farm, and -Roland Pennington, a farm laborer. Suspicion was directed to these two men -largely through the testimony of the woman who was supposed to be the -so-called common-law wife of March. At his trial it was shown that he had -another wife living, and consequently she did not even have that as a -claim upon him. This woman had heard groanings from the direction of the -barn, and later when March came into the house, had noticed blood on the -towel and on his clothing. - -The body of the lost man could not be found. After being taken to prison -March accused Pennington of the crime, admitting that after the deed was -done he assisted young Pennington in disposing of the body, because, as -he said, he was afraid that he himself would be accused of the crime. -Having made this admission, he took the officers to a wood some miles away -where the body had been buried in a rude, shallow grave. - -[Illustration: ROLAND PENNINGTON. - -(By permission of "Alienist and Neurologist.")] - -When Pennington was confronted with March's accusation, he too made a -confession, which, however, implicated March quite as much as himself. - -March was tried in Delaware County, and convicted of murder in the first -degree. The defense was, in accordance with the above statement, "that he -had nothing to do with the crime itself, merely assisted in disposing of -the body." - -Pennington's trial occurred in June, 1914, when he also was convicted of -murder in the first degree. The defense in this case was imbecility and -irresponsibility. Although the jury did not accept this view, the case is -a most interesting one from the standpoint of criminal imbecility. - -The story of the crime is probably best given in Pennington's own words, -since his confession has all the marks of truthfulness and was evidently -accepted by the jury in the March case. It was almost exclusively on the -strength of this testimony that March was convicted. - - _Statement of Roland Pennington as to the Pinkerton Homicide_ - - I, Roland Pennington, being duly sworn according to law depose as - follows:-- - - I went to work at the Wilson farm about October 7th; I boarded with - George March and his wife; George worked on the farm too; he was the - butter maker; from the time I went to the farm, George was always kind - and good to me; George had charge over me when Lew was not there; - George would loan me money when I wanted any, and several times took - me to Gradyville with him, when he would take me over to the hotel and - treat me to a drink; about a week or two after I went to the farm, - George had a fight with his wife at the dinner table; George told her - she was too intimate with Lew and a painter, who was working there; - she talked back to George and George threw things at her; after dinner - George told me that what he said to his wife was true; that was the - first I knew about George's trouble with his wife; after that George - talked to me about his wife all the time; once I told George I would - like to go West; one day George said he was going to take the painter - to law, and get some money from him, and if I would stick by him, he - would divide up with me and take me West. Afterwards he talked more - about Lew and his wife; one day he said if it didn't stop, he would - break up, sell the furniture, and go West, and that if I would save my - money to help out, he would take me with him; one day George's wife - was away all day, Lew was away that day too; they came home about the - same time; George told me afterwards that he accused his wife of being - with Lew; that night Lew came in the cow stable while George and I - were milking; they had some words, but I could not hear what they - said; George looked pretty mad and Lew was excited; George told me - afterwards that he had accused Lew of being with his wife and Lew - denied it; he also said it was as much as he could do to keep from - getting up and smashing Lew in the face. On several different times - when we were working together, George said that if Lew didn't stop - going with his wife, he would put a stop to it; George had charge over - me when Lew was not at the farm, and one time when I asked Lew for - some money to buy shoes, he would only give me two dollars, and gave - five dollars to George to buy shoes for me; after the first of - November, George said, "Lew hasn't paid me. I wonder why"; he said - this on two or three different occasions; on Thursday, November 6th, - George came to me and said, "Well, Rol, Lew paid me to-day." I said, - "Did he?" and he says, "Yes, he had a big bunch of money on him. Did - you ever see a thousand dollar bill?" I said, "No, I never saw one." - He says, "Well, neither did I. What figures ought a thousand dollar - bill have on it?" I says, "I don't know. A thousand is one and three - noughts after it." He says, "Well, I asked the Mrs. about it, and if - that's right he had one of them on him." This took place Thursday - afternoon about half past three in the stable. That night about - quarter after five while George and I were separating the milk down in - the milk house, George said, "How would you like to have that bunch of - money Lew's got on him?" I don't remember saying anything to that. - There was nothing more said about it that day. The next morning, - George and I were separating the milk down at the milk house before - breakfast, and George said, "Well, Lew will have that bunch of money - on him to-day. Let's get it." I said, "What do you mean?" He says, - "Why, do away with him." I says, "What? Kill him?" He says, "Yes." I - says, "No. I won't kill him." He says, "Well, you start it and I'll - finish it. I got a blackjack up at the house, I used one time myself - to knock a man in the head with out West, to get seventy-five dollars - from him to come East on." He said he was in a bank in the West and - saw this man get the money--the seventy-five dollars--and when the man - came out, he managed to get a ride with him, and while they were going - along the road, he hit the man in the head and knocked him out, and - went on his way. I didn't say anything. - - That afternoon, about three o'clock, George came to me in the milk - house, while we were getting the milk buckets and cans ready to take - to the barn, and handed me the blackjack and said, "Here's the - blackjack; you can do it with that." I put it in my pocket. We then - went to the barn. From then up to about five o'clock, while we were - working about the barn, George kept saying to me, "Don't lose your - nerve. The first chance you get after the workmen are gone, get him." - Several times he said, "Don't miss your chance--Don't forget." Lew was - away that afternoon. He came home while George and I were milking. - - After we finished milking, we took the milk down to the milk house; - then I went back to the barn to feed the horses. While I was feeding - them, George came up from the milk house to feed the calf. I generally - fed the calf. George seldom did it. In feeding the horse, I had to - carry hay around from the old horse stable to the new one. In going - around for some hay, I met George right outside the old horse stable - door. He said, "Lew will be around here pretty soon. You can get him - then." After I had finished feeding the horses, I took the fork over - to the old stable. As I was doing so, Lew went in the new stable. I - met George at the stable door when I came out from putting the fork - away. George said, "He's in the new horse stable; go get him." I went - in and told Lew there was a nail in the last stall next to the box - stall and that he had better look at it. He went up to look at it, and - while looking at the place I told him, I struck him on the head with - the blackjack. He turned part way around, threw up his arm, and said, - "Hey, what are you doing?" I struck at him some more; he rushed at me - and we clinched. This happened in the stall alongside a horse. After - we clinched we got out into the passageway, back of the horses. Lew - soon got the blackjack away from me. As we came out into the - passageway, I think I saw George near the door. He afterwards told me - he heard when I hit Lew first and that he came in, and that while Lew - and I were wrestling, Lew made a grab for him and knocked his glasses - off. Lew and I tussled quite a while up and down the passage back of - the horses; Lew was hollering all the time; I think we went down - once, got up again, and went down again, with Lew on top of me; then I - got on top of him. At about that time he called for George; George - must have gone out in the meantime, for when Lew called for him, I - remember the door being opened and George coming in. He came up and - asked Lew what was the matter, whether the horses kicked him. Lew - said, "Yes, yes, help me." George stooped over and whispered to me, - "Where is the blackjack?" I told him Lew had it. Lew then said, - "George, you are no kind of a man." Whether George got the blackjack - or not I don't know. He then went around by Lew's head and started - kicking. I had my hand on Lew's head and the first kick George made he - kicked my knuckles. I then left go of Lew and got up. While getting up - George was continuing to kick him in the head. After continuing to - kick him in the head after I got up, George went around and kicked and - stamped Lew in the side. Then he stopped--and said as though to - himself--"Which side is his heart on?" Then he started to kick him on - the other side. After a while he stopped. I don't remember whether he - said anything to me or not. Anyhow, George took him by the head and - shoulders and I by the feet and we carried him into the box stall. - Then George went up to the house for a lantern. I waited for him at - the stable door. He came down with the lantern and went in the box - stall, felt Lew's heart, and then stood up and stamped him some more; - then he searched him. - - In tussling with Lew I had gotten blood on my coat, pants, and shirt. - After George searched Lew, we left the stable, and I asked George - where the overalls were that the whitewasher had worn. George said he - thought they were up at the wagon house. We went there, but could not - find them. George did find an old pair of Lew's pants and a shirt. He - gave them to me and I put them on. While I was putting them on George - went in the house. I went in later, went to my room, put on another - coat, and went down to supper. George finished his supper first; got - up and told the Mrs. he was going to Gradyville after some sulphur for - the pigs. He then asked me if I wanted to go along with him. I said I - would. Then we went to the barn; George got two bags in the old horse - stable and put one inside the other. Then we went in the new horse - stable where Lew was. George set the lantern down and told me to take - hold of his arms and lift his head and shoulders. I did so, and George - slipped the two bags over Lew's head and body. Then George tied a - cloth around the neck overtop the bags. Then he told me to hitch the - horse Dick to the milk wagon. I did so. Then I returned to the new - horse stable. George then said we will carry him up to the wagon. I - had left it in front of the wagon house at the barn. George said, "We - had better take him up through the barn." George took him by the head - and shoulders and I by the feet. We carried him up through the barn. - When we got to the wagon, George got some bags and put them on the - floor of the wagon. Then we put the body in. Then we got a blanket and - threw it over the body. Then George got two shovels and a grubbing - hoe, and put them in the wagon. Then we drove away. - - After we got started George said we would bury the body in - Lauterback's woods. When we reached the road that he said led up to - that woods, he said it was too near home and kept on driving. After - driving for a long time we came to a pair of bars. He pulled up there - and said, "That wood over there looks pretty good." Then he drove on a - little piece further. Then he said we better go back to that woods. - Then we turned around and went back to the bars. George got out there, - handed me the lines, and he took down the bars. I drove in, he put in - the bars, and led the way, and I drove on across a field, till we came - to another pair of bars. He took them out and then led the way across - the fields to the woods. When we got there, George picked out a place; - said he thought it would be an all right place. Then we dug the grave. - Then we went back to the wagon, got the body, put it in the grave, and - covered it up. Then we returned home. - - That night George suggested that we clean up the marks in the morning. - The next morning we got up early and cleaned up the marks on the floor - and washed the walls. George said to make sure there would be no marks - on the wall it would be better to whitewash it. He said he would do - that and for me to go to other work, so I started to haul stone. - George also said to take my clothes to the milk house and burn them. I - did take them there on Saturday morning. George was there and I gave - them to him. He said he would burn them. On Saturday, George came to - me and gave me seven dollars and a watch and a ring which he got off - of Lew when he searched him. He told me he had only gotten fourteen - dollars and five cents and to pawn the watch and chuck the ring. I - threw the ring away and took the watch to Philadelphia and pawned it - at Carver Reeds on Market Street near Fifteenth Street for four - dollars. When I saw George the next morning, Sunday, I gave him the - pawn ticket and said I would give him two dollars when I got the - change. He said never mind that. - - (_Signed_) ROLAND PENNINGTON. - -Here again is a crime so abhorrent in its details that it is unbelievable. -There is no excuse for it, no adequate motive, no justification whatever -so far as the boy, Pennington, is concerned. - -For March, it is easy to believe, as the jury evidently did believe, that -he was actuated by what might be called an insane jealousy of the woman -with whom he was living. We are familiar with the lengths to which such -jealousy can lead a man. But why Pennington allowed himself to be made the -dupe of this jealous man cannot be explained; it is absolutely -incomprehensible on any theory that assumes that he is a normal boy of -nineteen years. - -It was in accordance with this feeling that some one raised the inquiry as -to whether the boy was possibly a mental defective. This question having -arisen, the writer was asked to examine him and give an opinion as to -whether or not he was normal. - -Accordingly the examination was made in the Delaware County jail in Media; -this showed that the boy had a mentality of about eleven years according -to the Binet Scale. He could not do any of the tests for age twelve and -failed on some of those in ten and eleven. This indicated an intelligence -scarcely up to eleven. - -Further examination by other methods, the circumstances of his life, his -appearance, and his school history, all tended to corroborate this view. -The boy was nineteen years old when he committed the crime; two years -before he had left Westtown Boarding School, after an attendance there of -two and a half years. When he entered the school, the teachers graded him -as of a capacity equivalent to the fifth grade in public school; he, -therefore, began sixth-grade work. He never got out of that grade. For two -and a half years he studied and tried to pass. He was absolutely unable to -do sixth-grade work. Sixth-grade work, it will be remembered, is about the -grade for a twelve-year-old normal boy; thus we have a striking agreement -between his school experience and his Binet tests. By the Binet test he is -eleven; in school he cannot do twelve-year work! - -Asked what he had done since he left the school, he said he had done "a -good many things." Asked where he had worked, he said he did not remember -all of the places. As a matter of fact, he had had exactly the career that -the high-grade imbecile usually has out in the world. He either gets -discharged from his positions because of incompetency or he leaves -because of his nomadic tendencies. The imbecile rarely stays long in a -place if free to move. - -In addition to the above, the reader will see many evidences of -childishness in his confession. He talks like a child; he alludes to -George March as a child would; he says, "He has charge over me"--"He was -kind and good to me; he used to take me to Gradyville," etc. Even -Pinkerton gave the money to March to buy shoes for Pennington. Again -Pennington says, "George said he was going West and he would _take me with -him_." One cannot imagine a nineteen-year-old youth, or even a -fifteen-year-old, talking in this way. By the time a boy reaches the -latter age, he is in his own mind the equal of anybody. He would not say, -"George took me." He would say, "We went." He would say, "I got along all -right with George," or some other expression whereby he would assert his -own manhood and not take the role of a child. - -While in jail he showed no realization of the seriousness of his -situation; showed no remorse for his deed; took no interest in his case. -For example, he was told by his lawyer not to allow himself to be examined -by any doctors without sending for his counsel; in spite of this warning -he allowed himself to be examined by four physicians at one time and by -two at another, and never mentioned the matter to his counsel even after -it was done. - -In the confession made to the prosecuting attorney one notices, as in the -one we have quoted, that he appears simple and innocent; answers the -questions often in terms of the questioner instead of by a simple "Yes" or -"No," which would be natural for a normal young man; he is uncertain and -hesitates; he says, "I think," in a great many cases where it was strongly -to his advantage to speak positively. - -After the deed was committed he _took no care to remove the evidence_; -everything that was done in that connection was done at the _suggestion of -George March_. All the way through this part of the confession it -reads--"He led, I followed," "I did as he told me." - -Having satisfied ourselves that Roland Pennington is a high-grade -imbecile, the next question is, even as an imbecile, why did he do this -deed. - -In the case of Jean Gianini we found that it was for revenge of a fancied -wrong, that is, according to his own statement. If not that, it may have -been a sexual matter. In this case neither motive applies, and we have -only two possible theories. The theory of the state was that it was for -robbery. Indeed, Roland himself seems to admit that this was the motive. -But this again is only a part of his imbecility. He was given a leading -question by the prosecution and was weak-minded enough to say, "Yes." - -As a matter of fact one finds it very hard to get any evidence from the -whole situation that he really was lead by cupidity. There is no evidence -of any elaborate plans in regard to money, either as to getting it or as -to what was to be done with it when he got it. March had talked about a -thousand-dollar bill, and asked Pennington how he would like to have "that -bunch of money." Pennington says he does not remember saying anything in -reply. This does not look as though it aroused any great emotion in him. -Later March said--referring to the money Pinkerton was supposed to have -"on him"--"Let's get it." Pennington asks, "What do you mean?" He is -clearly thinking less of the money than of what he begins to dimly -understand they are to do. When he understands that they are to kill him, -he says distinctly, "No. I won't kill him." Never again is the subject of -money mentioned. In all March's urging him to do the deed he never says, -"Remember the money," or alludes to money in any way. - -Perhaps we are begging the question. If Pennington were really intelligent -and shrewd, he would not say anything in his confession that would supply -a motive for the crime. Not only does the whole confession give ample -evidence that he was not sufficiently intelligent to protect himself in -this way, but the conclusion of the matter shows clearly that it was of -practically no importance to him. After the deed, March gave him seven -dollars! He said, "I thought there was more." That is all. He did not -insist or complain. He accepted it calmly and without protest. He even -proposed to give March half of the four dollars received for the pawned -watch. Imagine a nineteen-year-old boy with full consciousness and -responsibility killing a man for his money and being so complacent over -receiving seven dollars! The theory is not convincing. Even the -prosecution, whose whole case depended upon showing a motive, never -pretended that Pennington made any stir because the amount was so small. - -There is not the slightest evidence, external or internal, that the idea -of getting money played any part in Pennington's share of the crime. - -Why then did he consent to begin the matter which George was to finish? It -is clearly a case of suggestion. A suggestion, it is true, which never -would have worked with a normal nineteen-year-old youth. With this -weak-minded boy it is easily understandable. As we study the confession we -discover that George March, either consciously or more likely -unconsciously, used suggestion most adroitly. Undoubtedly he had learned, -through association with Roland for six weeks, that this boy was very -simple-minded and easily led. Having reasons of his own for desiring to -get rid of Lewis Pinkerton, he first suggests the matter of money, hoping -to appeal to Roland's cupidity. It will be noticed that he nowhere uses -the word "murder" or "kill"; even the mild expression, "Make away with -him," he uses only once. When Roland at one time almost takes fright and -asks, "Do you mean kill him?" and he admits that he does and Roland says -he won't do that, the older man lulls him to sleep by the suggestion, -"Well, you begin and I'll finish it." - -March tells a story about a blackjack; then he brings the blackjack and -gives it to Roland, saying nothing except, "You can do it with that." -Roland is so weak-minded that he takes the blackjack and puts it in his -pocket. When the right time comes and the opportunity is near at hand, -March stations himself at a convenient place where he will see Roland as -he goes back and forth at his work, and for some little time he -constantly coaxes and dogs him, pouring into his ears a stream of -suggestion such as, "You will have a chance pretty soon"; "Don't forget"; -"Don't lose your nerve"; "Now you can get him"; "Now nail him." - -It is an interesting little point, possibly only a coincidence but -nevertheless a perfectly natural imbecilic association, that the one -seemingly original thing that the boy did in connection with the matter -was to invent a little trick in regard to the nail in the stall. It is -quite likely that even this was suggested by George's previous expression, -"Nail him." - -Even the blow itself does not seem to have been given with normal vigor; -having every advantage,--the victim bending over, Roland being behind him -and with a blackjack which is capable of thoroughly stunning, if not -killing at one blow,--he apparently did not strike with force enough to -even produce unconsciousness. His victim was able to talk and to struggle -for some minutes, until March, the companion in crime, came up and, as he -expressed it, "finished him." - -As to motive, then, we conclude that the defendant had none. He was acting -upon the suggestion of George March. Even the poor mind that he had, which -under other circumstances might possibly have rebelled at such a -suggestion, was lulled to sleep by this man of better intelligence for -whom he had been working and who he had learned to think was "good and -kind" and on whose judgment he thought he could rely. - -Since the Pennington case is typical of the way weak minds work under -control of normal minds, it will be worth while to analyze somewhat more -fully this idea of _suggestion_. - -How does suggestion work? Why does it indicate a weak mind and how does it -affect our ideas of responsibility? Let us see. - -We have already seen that Roland Pennington was under the control of -another mind; we do not mean that he was actually hypnotized--a -nonsensical plea that is sometimes brought into court cases. Roland -Pennington was a victim of suggestion. An illustration will make this -clear. - -If I were to take a city man to a third-rail electric road and ask him to -stand on one rail and put his hand on the third rail, he would resist the -suggestion, because there would immediately come into his mind visions of -himself burned to a crisp or instantly killed. But suppose I take a man -who has come from the rural districts and who never heard of third rails. -He has lived, let us assume, in my house and worked under my direction a -month and has come to regard me as a friend. We have worked together and -talked together; I take him out and say, "Touch that third rail." Will he -resist the suggestion? Not at all. Why not? What is the difference between -the two men? The first has ideas about third rails. His past experience -has filled his mind and memory with thoughts and with knowledge which -instantly come to consciousness when I suggest touching the third rail. -The other man has no such experience. He has known me long enough to have -some faith in me. In fact from the very nature of things he is in the -habit of doing what I tell him. I tell him to do this, and he does it. - -Coming back to the first case, one perhaps can conceive that the city man -and I might come upon the third rail under such conditions that he was not -thinking of it. Instead of saying "third rail" to him I might say, "My! -that rail is hot" and he would almost instinctively put his hand upon it -to verify my remark. If he survived and could talk about it afterwards, he -would say, "Of course I ought to have known and did know that was the -third rail, but I did not think." That is the way suggestion works. - -To illustrate still further, we may speak of hypnotism itself. All of the -wonders that are produced under hypnosis are to be explained in exactly -this way. The subject is so nearly asleep that nothing gets into his -consciousness except the ideas suggested by the operator. Accordingly he -is utterly unable to resist any suggestion that is given him. - -Now coming nearer to our problem, children are naturally very suggestible -because they have not the experiences, the ideas. One may easily believe -that an eleven-year-old child could be induced to touch the third rail. -Furthermore, authority plays an enormous role with children. I might take -my ten-year-old boy out for a walk. He knows all about third rails and -would not touch one. But if I were to say to him, "Son, you can put your -hand on this, because there is no current on," he would probably obey -without question, because of his implicit trust in me. That confidence in -a superior, either in age, intelligence, or position, is one of the -characteristics of immature minds and one of the conditions that makes us -all suggestible. In the hypnotic terminology again, this is the being _en -rapport_. The hypnotized subject obeys the operator and no one else -because it is the operator with whom he is _en rapport_--in other words, -in whom he has confidence. - -Now let us come to the situation. It is perfectly clear that Roland -Pennington was under strong suggestion and that any vague concepts that he -might have had of the wrongfulness of murder or of killing a man were very -carefully allayed by the man who had the influence over him and who had -the motive for this homicide. - -The whole statement shows that Roland recognized George as a superior, as -one in authority over him and at the same time as a friend, as one on -whose word he could absolutely rely. It is a perfect picture of the child -following the man. - - - - -CHAPTER III - -THE CASE OF FRED TRONSON - - -Our third case is that of Fred Tronson of Portland, Oregon. What we know -of the history of Tronson is brief, but amply sufficient to prove that he -belongs to the group that we are considering. He had lived in Portland for -two years and in that time had held seven different positions as elevator -man. He was twenty-four years of age, when, in August, 1914, he met and -became infatuated with Emma Ulrich, a stenographer who worked in the same -establishment where he ran the elevator. He asked her to marry him, but -she refused. Later he was arrested for threatening her and was ordered to -leave town and not to annoy her any further. On November 16th of the same -year he waited for her outside of her home with two loaded revolvers. When -she stepped off the street car, he again asked her to marry him. She -became frightened and ran toward her home. He followed her, shooting as he -went. He followed her into her own house and there shot her down. On -Wednesday, December 9th, 1914, Tronson was tried and convicted of murder -in the second degree. Oregon having abolished the death penalty on -November 3d, only a second-degree verdict, which carries with it -imprisonment for life, could be returned. The trial was very brief, and -the jury returned within fifteen minutes. There was practically no -defense, except the claim on the part of Tronson's attorney that the man -was weak-minded and, therefore, in strict justice, should be placed in -custody, not in the penitentiary but in some other institution more suited -to his condition. He had been examined by two alienists and pronounced -sane, but of low mentality. He was also examined by a psychologist who -used a modification of the Binet tests, which showed him to have a -mentality of nine years. - -[Illustration: FRED TRONSON.] - -This rating obtained by the psychologist was confirmed in many ways. His -mother said he had never been able to hold a job more than two or three -months. He left school shortly before he was twenty, but we have no record -of what success he had or what grade he was in. His conduct at the trial -and before was that of an imbecile. When he was examined in the police -station, he seemed to be in constant fear that some one outside would do -him harm. When he had displayed uneasiness about an open window, the -detectives told how they closed it and sat between him and the window to -assure him that no one in the street would harm him. During the impaneling -of the jury and the taking of the testimony, Tronson sat slouching in his -chair, with sunken eyes, glaring at each witness, and with his mouth -hanging half open as though he barely understood what was going on. The -deep lines in his face and the dark circles beneath his eyes gave a vision -of sleepless nights and haunting memories. Like the other two imbeciles -whom we have discussed, he made a confession. The following is his -statement:-- - -Statement of Fred Tronson taken in the office of Detective Captain Baty on -Thursday, November 19th, 1914, in the presence of Deputy District -Attorneys John A. Collier and Thomas G. Ryan, Detectives Pat Moloney and -Tom Swennes. - -_Question._ What is your name? - -_Answer._ Fred Tronson. - -_Q._ How old are you? - -_A._ Twenty-four. - -_Q._ How long have you lived in Portland? - -_A._ One year and seven months. - -_Q._ What have you been doing? - -_A._ Running elevators. - -_Q._ Now, Fred, I am a deputy district attorney representing this state, -Mr. Ryan here is a deputy district attorney, and these other men are -officials and officers. You have been charged with a crime, and of course -you have your rights. You have a right to make a statement here to me if -you want to tell us what the facts are. You are not forced to make a -statement, but you may do so if you want to. There isn't any use of your -getting nervous, and there is nobody going to bother you here. You needn't -be afraid. You cannot be forced or compelled to make a statement, and any -statement you make must be voluntary. Do you want to make any statement -about this shooting affair? - -_A._ Yes. - -_Q._ You may go ahead and just tell me what happened, commencing at the -first of it, and tell me how it came about. - -_A._ Well, that time I accosted the girl in the street, it was last August -the 3d, I asked her if she would have me and she didn't give me any -satisfactory answer. She said she would wait outside at noon. In the -meantime she had me arrested. Of course I threatened to shoot myself if -she wouldn't have me. She says, "No, don't do that; I would rather have -you leave town," she says like that. She says, "I will write to you." She -says, "You are going to be a man, aren't you?" I said, "Yes, if I can't -have you." She said she would meet me out there at twelve, and before that -she phoned the police or the other girl up there, I don't know. - -_Q._ That was last August? - -_A._ Yes. - -_Q._ You were arrested on that charge? - -_A._ Yes. - -_Q._ What did they do with you? - -_A._ Well, they kept me here about a week and then let me go with the -understanding that I go out of town. Judge Stevenson says go out in the -harvest fields and take a good sweat and when you come back, look for some -other job and you will be all right. Come back in the fall. So I went out -next Monday and stayed a couple of days and couldn't get anything and came -back and waited about a week and stayed another week and then went to Hood -River, and picked apples and stayed up there about ten days and then came -back and I couldn't get anything. I was hoping the girl would kind of come -to me after awhile and I found after a few months that she wasn't, so I -thought I would get rid of her so somebody else wouldn't have her. - -_Q._ When did you make up your mind to do that? - -_A._ Last week. - -_Q._ After you made up your mind to do that, what did you do? - -_A._ I went off and got the guns. - -_Q._ Where did you get the guns? - -_A._ At Vancouver. - -_Q._ What kind of a gun was it? - -_A._ You got it there. That's the one I shot her with (pointing to a gun -on Captain Baty's desk just opposite Mr. Ryan), but I had another one, -too. - -(This gun, marked #5308 on gun itself and marked "Exhibit A--Ryan," was -thereupon handed to the prisoner.) - -_Q._ This gun marked "Exhibit A," here, is that the gun you shot her with? - -_A._ Yes. - -_Q._ Where did you get that gun? - -_A._ Vancouver. - -_Q._ For what purpose did you get it? What did you intend to do with it? - -_A._ I intended to shoot her. I intended to hold on to it, but in my -excitement I dropped it in the weeds there, I guess. - -_Q._ Where did you get the gun at Vancouver? Do you know the name of the -store? - -_A._ No, it was a hardware store. - -_Q._ How long before you did the shooting did you get this gun? - -_A._ About three hours, something like that. - -_Q._ Do I understand that you went to Vancouver and got this gun and then -came over to Portland, and did the shooting? - -_A._ Yes. - -_Q._ Where did you get this other gun? (Gun numbered 2506 was thereupon -marked "Exhibit B" by Mr. Ryan, and handed to Mr. Tronson.) - -_A._ This second-hand gun? - -_Q._ At a second-hand store? - -_A._ Yes. - -_Q._ Did you buy that at the same time you bought the other gun? - -_A._ Yes. - -_Q._ Where did you buy this gun? - -_A._ Well, I didn't want to buy them both at the same place. I thought -that they might get suspicious. I didn't want to get two five-dollar guns. -I bought that for three. - -_Q._ What did you have in mind when you bought this? - -_A._ Well, if one didn't work, the other would. - -_Q._ Do I understand you to say that you bought this to kill her with? - -_A._ Yes. - -_Q._ If the new gun didn't work, that would? - -_A._ Yes. - -_Q._ When you came over from Vancouver, did you have the guns loaded? - -_A._ No. - -_Q._ When did you first load the guns and prepare to do the shooting? - -_A._ Down there along the river some place. - -_Q._ Out in South Portland? - -_A._ Yes. - -_Q._ Did you load both of them? - -_A._ Yes. - -_Q._ You knew where Miss Ulrich lived, did you? - -_A._ Yes. - -_Q._ Had you ever visited at the house? - -_A._ No. - -_Q._ Had you ever kept company with her? - -_A._ Yes, I walked around the streets with her once in awhile. - -_Q._ You never went to her home? - -_A._ No. - -_Q._ Did you know her folks? - -_A._ No. - -_Q._ Where did you stay out there until she came along? - -_A._ I didn't get out there any too soon. I didn't stand round two -minutes. - -_Q._ What time did you leave town here to go out to the scene of the -shooting? - -_A._ I came right from Vancouver and went through. - -_Q._ What time did you get over to Portland from Vancouver? - -_A._ About five o'clock. - -_Q._ After you got over to Portland what car did you take then? - -_A._ I walked out. - -_Q._ Which way did you go out? - -_A._ First Street. - -_Q._ How far out First Street did you go? - -_A._ Until I struck some of those other streets down there, Front Street I -guess, Water or Corbett. - -_Q._ How long did you wait out there before you saw Miss Ulrich? - -_A._ I didn't wait at all, I just walked around the block and she got off -the car. - -_Q._ Did you see her get off the car? - -_A._ Yes. - -_Q._ What time was it when she got off the car? - -_A._ A little before six. - -_Q._ What car did she get off? - -_A._ North and South Portland. - -_Q._ Did you speak to her when she got off? - -_A._ Yes, I said, "Wait a minute." I wanted to talk to her, and asked her -for the last time; she started running, hollering. - -_Q._ Just what did you say to her? - -_A._ That's all I said to her. I wanted to talk to her and she started -running and hollered. - -_Q._ Did you have the gun in your hand at that time? - -_A._ No, in my pocket. - -_Q._ All loaded and ready for action? - -_A._ Yes. - -_Q._ How far was her house from the car? - -_A._ Not quite half a block. - -_Q._ Was there any one else got off the car at that place? - -_A._ No. - -_Q._ What did you do next? - -_A._ I followed her around the house. - -_Q._ Did she run around the house? - -_A._ Yes. - -_Q._ Did you run after her? - -_A._ Yes. - -_Q._ When did you commence shooting? - -_A._ Just before she went in the door. - -_Q._ What door did she go in? - -_A._ The back door. - -_Q._ How many shots did you fire? - -_A._ One before she went in. - -_Q._ How many after that? - -_A._ Four; I think there are only five in the gun. - -_Q._ Did you know that the last bullet struck her? - -_A._ I knew one must because she fell down after I began firing the other -bullets. She was in the bathroom; then she began to crunch down; then she -fell on her face like a board and struck her head on the floor. I thought -she must be dead or unconscious or something like that. I left then. I -took it for granted she was dead. - -_Q._ You didn't leave or didn't stop shooting until you thought she was -dead? - -_A._ No. - -_Q._ You went out there for the purpose of killing her if she didn't -accede to your wishes? - -_A._ Yes, I am sorry I had to do it. - -_Q._ Why did you feel that you had to do it? - -_A._ I didn't want anybody else to have her if I couldn't. I thought I -should have her. She told me once she liked me, and I didn't see any -reason for turning me down. I acted like a gentleman. I had given her one -present already. - -_Q._ After you thought she was dead and that you had completed your job, -where did you go? - -_A._ I ran down on Hamilton Street. - -_Q._ This gun that you used to do the shooting, was this gun (marked -"Exhibit A") the new gun numbered 5308 (handing it to him for inspection)? - -_A._ Yes. - -_Q._ Where did you go? - -_A._ I ran out of the way kind of on a trot down into Hawthorne Bridge and -then North on Union Avenue and caught the Vancouver car and went to -Vancouver. - -_Q._ Did you take both of these guns with you? - -_A._ No, just one. I dropped the other one. - -_Q._ Which one did you drop? - -_A._ The new gun. - -_Q._ That is, you dropped that after all the bullets were fired out? - -_A._ Yes. - -_Q._ After you got to Vancouver where did you go? - -_A._ I went to a picture show over there and stayed about half an hour, -and then I went to a rooming house. - -_Q._ Stayed all night in Vancouver? - -_A._ Yes. - -_Q._ Did you feel pretty nervous, knowing that you killed her? - -_A._ Yes, I sat up. I didn't sit up; I laid awake. I didn't sleep at all. - -_Q._ Where did you go when you left Vancouver? - -_A._ Went right out the next morning, went right out the Pacific Highway. - -_Q._ Why did you run away? - -_A._ Well, I wanted to get the papers and see if I had killed her and then -I was going back and shoot myself at the same place I shot her. I didn't -want them to get me until after I went around another way and shot myself -down there. - -_Q._ Did you intend to come back? - -_A._ Yes. - -_Q._ Did you read the papers at Vancouver? - -_A._ Yes. - -_Q._ Did you see in the papers that Miss Ulrich was dead? - -_A._ Yes. - -_Q._ Why did you keep going the other way? - -_A._ Well, I didn't want to come back this way and run into the police. I -was going around Seattle and Tacoma and cross over and come back around. - -_Q._ When you read in the papers that you had killed her, did you feel -satisfied? - -_A._ Well, yes, but I was afraid there would be bloodhounds after me, and -I would get shot down in the road. - -_Q._ You weren't worrying so much about her as you were afraid somebody -might do you an injury? - -_A._ Well, I didn't want them to get me until the job was completed and I -had shot myself. - -_Q._ Did you think there was somebody else interfering to keep her from -marrying you? - -_A._ I guess there was. - -_Q._ Did you have in mind to shoot any one else? - -_A._ No. - -_Q._ You knew she was engaged to marry another fellow? - -_A._ Yes. - -_Q._ Was that what made you decide to kill her? - -_A._ I thought she gave him up. Well in a way I did and in another way I -thought it was a bluff. - -_Q._ When did you make up your mind to get these guns--on the day of the -killing? - -_A._ Yes. - -_Q._ You knew at the time what you were doing,--what you were getting the -guns for? - -_A._ Yes. - -_Q._ You got the guns with the idea that if she refused to marry you why, -then, you would kill her? - -_A._ Yes. - -_Q._ You knew what you were doing at that time? - -_A._ Yes,--I don't think a man in his right mind would do it. - -_Q._ You knew that it was wrong to kill her, didn't you? - -_A._ Yes, but all I was thinking was about her. - -_Q._ You knew it would be wrong to kill her? - -_A._ That's what the law says. - -_Q._ You realized that fact at the time? - -_A._ Not as much as I do now. - -_Q._ You were in possession of your senses and you knew it was wrong to -kill her? - -_A._ Oh, yes, it was wrong to kill her--take her life. - -_Q._ You know it is wrong to take that which you cannot give, and you knew -at the time that you were doing wrong, and you knew that when you went -over there to get guns? - -_A._ I didn't take it very serious then like now. - -_Q._ Did you ever drink liquor to the extent of getting drunk? - -_A._ No. - -When this confession was read to the jury, Tronson leaned over and asked -the clergyman, "Well, what do you think of it?" When the verdict of the -jury was given, he did not understand what it meant and asked to be told. -When he was answered, he showed no appreciation of its significance, but -remarked that there wasn't so much of a crowd out as at the trial. - -This is the third case in which the Binet tests have been admitted in -evidence and the findings in accordance with these tests practically -accepted. No one seems to have denied that Tronson is an imbecile. He is -of lower grade than the other two that we have discussed, and enough lower -so that his defectiveness was much more apparent and easily admitted by -all of the judges. As will be noted, there was no reasonable motive for -the crime. In his own words: "She wouldn't marry me. That's why I killed -her--so that no one else could have her." In the case of Gianini we are -possibly dealing with the sex impulse, perhaps hardly recognized even by -the criminal himself. In Tronson's case we have that impulse definitely -recognized and asserting itself and, being uncontrolled, leading to an -action of the crudest and most savage kind. Under other conditions, it -would very likely have shown itself in a different way. If Tronson could -have gotten the girl off by herself, it is very probable that he would -have committed violence in the gratification of his sex impulse. But since -she refused to marry him and kept out of his reach, he shot her down in -order that "no one else could have her." - -It is unnecessary to discuss the case further. We need nothing more to -convince us that the diagnosis of imbecility was correct. It remains only -to point out two facts. First, that this man has been an imbecile at least -since he was twelve years of age, that he could have been recognized as an -imbecile and cared for, and thus this atrocious murder prevented. Second, -that there are hundreds of just such persons, now in their youth, who are -potential criminals. Unless their mental condition is recognized and they -are cared for in such a way as to make crime impossible, many of them will -repeat the career of Tronson. - -Fred Tronson is in prison for life. He will in all probability never be -pardoned. He will never have an opportunity to commit another murder. But -that does not restore the life of Emma Ulrich and it is small comfort to -her friends and relatives. It does not in the least remove the blot upon -society, which has allowed such a murder to be committed. Society should -have taken him in hand twelve years ago. It should be further noted that -Tronson had been before the Court at least once before he committed this -crime. At that time had the Judge realized that he was dealing with an -imbecile he might have sent the boy to an institution for the -feeble-minded instead of simply ordering him to leave the town. Shall we -learn the lesson and take care of the other Fred Tronsons who are now in -our public schools and on our streets? - - - - -CHAPTER IV - -THE CRIMINAL IMBECILE - - -From the description already given it will be seen that Roland Pennington -is very different from Jean Gianini. Both are imbeciles, but each is an -example of a special type. Gianini is of a nervous, impulsive, irritable, -loquacious type, fond of show and excitement, a braggart and a coward, -with an excellent memory, a great reader--particularly interested in -stories of excitement and crime. Pennington, on the contrary, is a slow, -dull, relatively stupid boy, of poor memory and slow perception. While -having made the fifth grade in school work, he has done it slowly and with -not so much success as in the case of Gianini. He is not so much given to -talk or to showing off; is somewhat addicted to drink and is exceptionally -fond of playing pool. - -Gianini's confession is colored by his desire to show off and shine in the -limelight; Pennington's, on the contrary, is a plain, unelaborated -statement of the facts. He is driven to his confession, not by his desire -to show off, but in self-defense. His colleague, March, is trying to throw -the entire responsibility upon him in order to escape from any -condemnation. In the face of this Pennington is prompted to tell his own -story. He is not intelligent enough to make up a plausible story which -would incriminate March and save himself. But in telling the facts as they -occurred he incriminates himself quite as much as March, so far as the -actual occurrences are concerned. His whole conduct, from the beginning of -the crime until his arrest, is that of a dull, stupid person. He does not -even wield the blackjack with intelligence, and after the man is killed by -his comrade, he takes no precaution to save himself from suspicion, to -dispose of the body or to clean up about the barn and remove the evidences -of a crime. And finally, when it comes to a statement of the case, he -apparently makes no attempt to shield himself, but acknowledges his part -in it, although that part was, as a matter of fact, so slight that a -little variation in his testimony would have thrown the entire burden upon -March and relieved him from any complicity in the matter. - -If the foregoing statement of the case is correct, we ask at once, how it -happened that the jury did not see it in this light, but instead brought -in a verdict of "Guilty in the first degree"? While there are many -elements in the answer, such as the demand of the public for revenge on -the murderer of the man who was more or less of a favorite; a hastily -drawn jury; a hurried trial, etc., the burden of the explanation falls -back upon the same condition which we discovered in the case of Gianini, -namely, the ignorance of the general public in regard to this type of -feeble-mindedness. Almost every one thinks that he knows an imbecile. We -have so long considered these high-grade cases as _normal but vicious_ -persons, that it is difficult to change the point of view suddenly and -realize that they are not responsible for their deeds. - -This failure to recognize the high-grade type of imbecile extended even to -the "experts" in the case; for whereas there were three who testified to -the feeble-mindedness of the prisoner, there were four or five who -testified to his normality. These were four general practitioners of -medicine, including the jail physician, and the fifth, a professor of -neurology and neuropathology. These gentlemen are all familiar with what -we should call the low-grade type of imbecile. They were perfectly correct -in declaring that Roland Pennington is not a low-grade imbecile. Not one -of them had had experience with the high-grade type. They were, -therefore, not qualified to pass upon a case of this kind. It was as -though four general practitioners had been brought in to decide a case of -obscure insanity. Every one of them could have testified that he had had -more or less to do with insane people, meaning persons who are maniacal or -strongly melancholic or katatonic, but what would be the value of the -testimony of such men in such a case, for instance, as that of Thaw? - -These men all thought they knew something about high-grade -feeble-mindedness. They all testified that Pennington was a normal man. -Compare this with the statement of Dr. Martin W. Barr, one of the foremost -authorities on feeble-mindedness in the United States--indeed, in the -world. Dr. Barr says (_Alienist and Neurologist_, November, 1914, page -367):-- - -"The courts simply do not go far enough back; they fail in that they do -not reach the inception--the root of the matter. They often punish without -careful investigation of the causes from which criminal instinct -springs--the environment, family history, inherited tendencies, physical -disability, and that susceptibility to suggestion which makes them the -ready tools of the vicious. - -"In the case of Roland Pennington, tried in Media last June, for aiding -in the murder of a man, it was proven that the boy, although almost twenty -in actual age, yet coming from a neurotic stock, with three first cousins -imbecile, had mentally only attained some 11 or 12 years; still he was -adjudged responsible, and murder in the first degree was the verdict. - -"Is it not a poor law that first permits a person to commit a crime, and -then punishes him for it, not recognizing that an ounce of prevention is -worth a pound of cure? - -"Pennington had sufficient intelligence to comprehend the enormity of the -deed, but, susceptible to suggestion in exaggerated degree, he had not -sufficient inhibition to resist the volitional act. - -"Early recognition of his mental defect and separation would have -protected him alike from tempter and temptation." - -It is unfortunate that Dr. Barr did not testify in the case, but his -assistant did testify and was understood to express Dr. Barr's views. - -It was unfortunate, indeed, that men who really knew so little about the -type of case before them were allowed to pass as experts and their opinion -allowed to carry more weight with the jury than the opinion of those who -have spent years in intimate association and study of the problem of -high-grade imbecility. It should be recognized that there are very few -persons who are expert with this type. The superintendents of our -institutions for the feeble-minded, after a few years of experience, have -a knowledge of this matter which far surpasses that of any physician who -has not had institution experience, however great a specialist he may be -in nerve diseases, in insanity or epilepsy. It is not enough to find out -that a physician has had some experience with imbeciles. The real problem -is: Has he had experience with this high-grade type? Is he able to pick -them out? Is his knowledge as well as his experience confined to the -medium and low grades, which every one meets? Failure to make this -distinction had much to do with the verdict in the case of Pennington. - -Another element in the result was the failure to make clear to the jury -the precise situation, the real point at issue. The defense in the case -had no desire to free Roland Pennington from all the consequences of his -deed. It was not a case of the electric chair or freedom. The imbecile, -especially one who has shown the tendency toward crime or willingness to -be led into crime, should never be at large where it is possible for him -again to go wrong. On the other hand, it is abhorrent to think of a child -(in mind) going to the electric chair for the deed which he committed -while under the influence of a superior intelligence, or while impelled by -the hidden forces of his nature over which he had no control on account of -his weak mind. It should have been made very clear to the jury that what -was wanted was to save the commonwealth the shame of officially putting to -death a person who had only a child's intelligence. In an ideal state such -a person should doubtless be kept in an institution for the feeble-minded -under a life commitment, unless his impulses are such that he proves to be -dangerous to the other inmates, in which case a different kind of -institution should be provided. Until we arrive at a condition where we -treat such persons ideally, one cannot object to the state prison for life -for the imbecile manslayer. This, unfortunately, was not made very clear -to the jury, and it seems probable that many of them thought that their -verdict was either to condemn him to the electric chair or to set him -free. Having only these alternatives, one can perhaps understand their -decision.[2] - -Another somewhat nice legal point was involved and brings up a matter -which calls for some discussion. As already stated, March had been -convicted largely upon the testimony of his accomplice, Roland Pennington. -If now the jury should acquit Roland Pennington on the ground of -imbecility, what would be the effect of such a decision upon Pennington's -testimony against March. Every one felt that March was guilty and -consciously guilty and should be punished to the extent of the law. To -bring in a verdict in the case of Pennington which would result in -annulling his testimony and thereby taking away the one sure means of -convicting March, was a serious matter. One may well believe that the jury -felt that it was safest to convict Pennington of murder in the first -degree and thus avoid raising this confusing question. - -As a matter of fact, although the question would undoubtedly have been -raised and attempts made to free March on the basis of Pennington's -feeble-minded testimony, yet such a procedure would not have been -warranted. - -Pennington, as we have claimed, is an imbecile with a mentality of about -eleven years. We have a right to judge him largely on the basis of an -eleven-year-old child. The testimony of eleven-year-old children is often -admitted into court, and many a person has been convicted on such -testimony. It is true that it is a somewhat moot question as to how much -credence should be placed in children's testimony. The real criterion in -such cases is the nature of the child, a matter which we have already -considered. A child may testify to simple facts, and may be relied upon -where he has no particular interest, where there cannot be shown any -tendency or desire on the part of the child to show off or to say -something for effect or to exercise childish imagination and invent a -large story for the sake of the pleasing sound. - -It is perfectly clear to any one who studies the confession of Pennington -that he must have told a straight-forward story. As already stated, he -would not have incriminated himself as he did if he had been falsifying. -He is not the type of person that runs on in an imaginary tale without -regard to the facts. In short, his testimony bears every evidence of being -entirely credible. - -On the other hand, as already pointed out, Gianini's testimony is -unreliable, because he was talking for effect. He is of the type that -loves show and notoriety. His testimony was only to be trusted where it -could be corroborated by facts or the testimony of others. - -Careful study of the testimony and the nature and the character of the -child will almost always enable one to decide very accurately as to how -much credence is to be placed in the evidence. In other words, the fact of -high-grade imbecility does not of itself make the child's testimony -acceptable or non-acceptable. It must be judged on its merits. We have in -these two cases excellent examples of the trustworthy and untrustworthy. - -The testimony of Pennington at the March trial was a most marvelous -performance. To those unfamiliar with high-grade imbecility, it was almost -unexplainable. Many thought that he must have been very carefully and -elaborately coached; that he had been told just what to say, and had -learned his lesson well. Those, however, who know the imbecile understood -perfectly what was happening. This eleven-year-old boy was telling a -plain, unelaborated tale. He was not intelligent enough to try to escape -himself, and so he had nothing to hide and, consequently, got into no -confusion. He answered, "Yes," "No," or, "I don't know" with a wisdom and -a consistency that was simply amazing, and, as said, could only be -explained on the understanding that he was telling the truth. No amount of -cross-examination confused him, no sudden coups of the lawyer for the -defense could entrap him. For example, when asked with considerable heat -on the part of the attorney why he had forgotten a certain point while he -remembered very vividly a certain other point, the witness made no attempt -to explain; simply remarked that he did not know. In truth, he did not -know. Any such psychological matter was as far beyond him as the heavens. -Without imagination, without ability to reason out the effect of his -answer on his own future, he could simply answer in the plainest kind of -"Yes" or "No" as he knew the facts. - -With these considerations, we pass on to consider the larger and more -difficult problem, "Can an imbecile of the mentality of eleven years know -the nature and quality of his acts and understand that it is wrong?" - - - - -CHAPTER V - -RESPONSIBILITY - - -All students of the psychology of childhood agree that not until the dawn -of adolescence does reasoning as such begin to show itself in the child -mind; that judgment and foresight and self-control, such as enable a -person to counteract his natural impulses and make himself fit into the -conventions of society, are practically unknown previous to this age. It -is true that many children are taught to say what the adult alone can feel -in connection with such matters. But as for having the real feeling and -the understanding of the situation, we seem to have no right to expect it -before the beginning of this adolescent period, from twelve to fifteen -years of age. Everything points to the correctness of the conclusion that -during this early period of pre-adolescence the child is a creature of -impulse and instinct and is controlled largely by counteracting one -instinct by another. For example, the instinct to love and obey a parent -impels the child to do what that parent says, when he tells him not to -yield to some impulse which would lead him into trouble according to the -canons of modern society. Without going further into a discussion of the -point, which would necessarily lead to many philosophical considerations, -the writer may express his conviction, born of a study both of normal -children and also of mental defectives of twelve years and under in -mentality, that persons of this mentality do not know much about right and -wrong. They act upon impulse and upon instinct, without very much thought. -Even the child of the best opportunity and the most elaborate training in -a good home may quite likely not know the wrongfulness of an act of -homicide in the sense of having a real feeling of that wrong. He can -doubtless, as already stated, _say_ that the thing is wrong, because he -has learned that this is the right thing to say. - -Let us turn now to the other part of the legal phrase, "Does such a person -know the nature and quality of his act?" If the writer understands these -terms, the first may be translated into the expression, "Does he know what -he is doing?" We take it that the expression originated in the attempt to -cover those cases where persons, either momentarily or permanently -deranged, literally do not know what they are doing. If this is correct, -then one cannot, as a rule, say that a high-grade imbecile does not know -what he is doing. He is not like the lunatic who acts blindly and is -probably no more responsible for his acts than a person walking in his -sleep. The imbecile is not in this condition. He has, so to speak, full -possession of all the mind that he has ever had and that, in the case of -these high-grade imbeciles or morons, is certainly sufficient to enable -him to know what he is doing. In the case of Jean Gianini, the writer -testified that in his opinion he knew what he was doing. He knew the -nature of his act. One cannot speak, it is true, with certainty in such -cases. It is entirely possible that, as already intimated, the situation -at first may have been a simple altercation or discussion which finally -got to a point where the anger of the boy was aroused to such an extent -that he acted without really knowing what he was doing. However, there is -no more argument for that theory than against it, and without definite -evidence on the question it is probably going too far afield to make any -such claims of immunity on that ground. We are frank to admit that the -probabilities are high that the boy knew the nature of his act. Did he -know the quality of his act? - -By the quality of a thing is meant that which distinguishes it from all -other things. This implies a complete and extensive knowledge of the thing -in question. To know the quality of an act--murder, for example--means to -know all of the elements, forms, or modes of being or action which seem to -make it distinct from all other acts. To know the quality of an act of -murder is to know that it is unjustifiable; it is to know that it differs -from the killing of a rat in that different consequences follow; that -human suffering is involved, both that of the victim and of the victim's -friends and associates. It is to know, at least in some vague way, that -human society could not exist if murder were the rule. To know the quality -of an act of murder is to know enough to be able to distinguish it from -justifiable homicide, from killing in war, not to mention more obvious -necessary distinctions. - -Did Jean Gianini know the quality of his act? On the stand, under -cross-examination, the writer was led to express the opinion that he did. -Later study of the problem and consideration of the circumstances leads to -the conclusion that this was erroneous. Such knowledge implies mental -capacity which is not possessed by a boy under twelve years of age. It -involves experience; it involves abstraction, which is notoriously lacking -in such persons. If there is one characteristic more noticeable than -another among the high-grade imbeciles or morons, it is their failure to -deal with abstract ideas; to draw generalizations from specific instances. - -Did Pennington know the quality of his act? There is not the slightest -evidence that he did. Indeed, in his case we may go farther and hold very -probably that he did not even know the nature of his act. It is easily -conceivable that he struck the man with the blackjack without knowing that -he was committing murder, without knowing that he might kill him. His -stupidity was clearly of such a character that it is a perfectly tenable -position that he thought he was to strike the man and stun him until they -could rob him and escape. - -Did Tronson know the nature and quality of his act? Using revolvers as he -did, it seems undeniable that he knew the nature. He was familiar with -revolvers; he knew what they would do. He, undoubtedly, knew that he was -killing Emma Ulrich. That he did not know the quality of his act is -equally certain. She would not marry him, he did not want her to marry any -one else, and he had no conception that he had no right to put her out of -the way so that she could not marry another if she would not marry him. - -Again, we might go further and deeper into the philosophy of the -question, the logic and ethics of it. But these few considerations seem -sufficient to make it of the highest probability that persons of a mental -age under twelve years, like the normal boys or girls of the same age, do -not know and cannot be expected to know the quality of their acts. And -this is sufficient, because the law requires no more than a reasonable -doubt, and there certainly is a very reasonable doubt as to whether such -persons know the quality of an act of murder and know that it is wrong. - - - - -CHAPTER VI - -THE PUNISHMENT FOR CRIMINAL IMBECILES - - -In the foregoing chapters we have discussed the problem involved in these -murders from the standpoint of the law in order to show that even under -the law, as it now exists, such persons are not guilty of murder in the -first degree. In the present chapter, we propose to discuss the matter -from another standpoint and from a different angle. It is not now a -question of responsibility or of some kind of justice to be satisfied. Let -us face the practical question of what is to be done in these cases. - -After all, what we want is protection for society. We cannot have innocent -people killed in accordance with the whim of the irresponsible. These -imbeciles have killed innocent members of society. What shall the living -do to prevent these particular persons from repeating the crime and to -prevent other imbeciles from ever committing such a crime? This, of -course, involves the whole problem of punishment or the treatment of the -wrongdoer. Upon one thing everybody is agreed--we must make it impossible -for these persons ever to do such a deed again. The surest way to -accomplish this is to destroy them. Dead men commit no crimes. Society -feels safe when a desperado is killed. If we can agree upon this solution, -the problem is easily solved and further discussion is unnecessary. But -society is not at one on this question. We are already seriously debating -the question whether any wrongdoer should ever be officially executed. -Indeed, many States have already decided that they should not be, and -imprisonment for life has replaced capital punishment. - -It is somewhat difficult to draw a line of distinction between the persons -involved in these crimes and the so-called responsible murderers. It -certainly is no great loss to society if Tronson is put out of the way. -The same is true in varying degrees of Gianini and Pennington. It may be -very successfully argued that the matter of responsibility is a fiction -and that all persons should be treated alike, either all executed or none -executed. Nevertheless, at the present time, we do draw the distinction, -and many feel that the person who has full power over his action, who -knows the nature and quality and wrongfulness of his act, should be -executed, while those who do not know should not be executed. - -If we take the latter view, the question still remains, What shall be done -with these criminal imbeciles? The alternative to capital punishment is -incarceration for life. Here at least we find a distinction between these -persons and the normal intelligent wrongdoers. Of all persons in the -world, the criminal imbecile should be placed in custody under conditions -that will forever make it impossible for him to repeat his offense. The -man who commits murder in a fit of insanity may recover from his insanity -and be a useful citizen for the rest of his life. The man who commits -murder under a strong impulse of anger or in calm meditation as the result -of perverted reasoning may recover normal reasoning and be a useful -citizen. This is not true of the imbecile. He will never recover; he will -never have more mind than he has now; he will never be free from the -danger of following the suggestion of some wicked person or of yielding to -his own inborn and uncontrolled impulses. It will never be safe for him to -be at large. This is so obvious that it is highly probable that the -imbecile once committed to life custody would never be released, and even -that there would never be any attempt at such release. When these facts -are understood, the public will undoubtedly be satisfied to have such -persons imprisoned for life or committed to an institution for mental -defectives, where they will be constantly guarded and prevented from doing -injury. - -This was well brought out in the case of at least two of the persons -described in this book. In the case of Jean Gianini, the lawyer made -emphatically plain that there was no desire on the part of the defense to -procure the complete liberty of the defendant. John F. McIntyre, the -counsel, stated clearly to the jury that he had no desire except to save -the boy from the electric chair, a punishment which he considered unjust. -He even went so far as to state that if at any time in the future efforts -should be made to secure the release of this defendant from any -institution to which he might be committed, he himself would make as -strenuous an effort to have the boy kept in custody as he was now making -to save him from the electric chair. Apparently this made a deep -impression upon the jury and went a long way toward helping them to return -the verdict that they did. On the other hand, in the case of Roland -Pennington this point was not made so clear, and the jury and the -prosecution did not realize that the defense only wished to save the boy -from execution and would be quite content with a verdict that would -result in his being incarcerated for life. An institution for -feeble-minded would seem at first glance to be the logical place to which -such a person should be committed. But no one need seriously object to -commitment to a penitentiary or a state prison. Perhaps, in view of the -fact that an imbecile has committed crime, that he has, as one may say, -begun a habit in that direction, the state prison is the proper place for -him, because here he can be absolutely controlled and saved from any -future acts of this kind. This is precisely what happened in Tronson's -case. - -We are learning in these days that the old adage, "An ounce of prevention -is worth a pound of cure," is something more than a witticism. These are -days of prevention--in medicine and in morals. The most important part of -our problem is yet to be discussed. It is true we must come to some -decision as to what is to be done with these persons who now infest -society and who, because of their imbecility which is unrecognized, may -become criminals. But vastly more important, because more far-reaching, is -the problem of how to prevent imbeciles from becoming criminals. We may -save the Gianinis and the Tronsons and the Penningtons from murdering any -more people, but how much better if we save them from killing anybody. No -one of these persons had, probably, any more instinct to kill than have -you or I. As children in years they were harmless and innocent. They could -have been cared for and led into paths of harmlessness if not of -usefulness. All of them could have been recognized as mental defectives -long before they arrived at the age when they committed crime. As dull and -backward children at school, they were at once suspicious characters. -Attention was called to them. Careful examination, such as is now -possible, would have revealed the fact that they were mental defectives -and as mental defectives were potential criminals. Then was the time that -they should have been carefully guarded and watched and saved from an -environment that would lead them to prey upon their fellows. If we wish to -save our teachers from the possibility of being murdered by their pupils -or our daughters from being killed by their wooers or business men from -being struck down by the blows of feeble-minded boys, we must be on the -watch for symptoms of feeble-mindedness in our school children. When such -symptoms are discovered, we must watch and guard such persons as carefully -as we do cases of leprosy or any other malignant disease. For fear that -some one should feel that these are rare and exceptional cases, let us -remind the reader that the best estimate and the result of the most -careful studies indicate that somewhere in the neighborhood of 50 per cent -of all criminals are feeble-minded. Whether this holds for murderers is -indeed not known. But many persons acquainted with feeble-mindedness -recognize from the newspaper descriptions of murders that many of the -murderers are feeble-minded. - -These facts certainly warrant us in taking seriously the problem of the -feeble-minded and the criminal imbecile. - -One thing more. Careful studies have shown beyond the peradventure of -doubt that at least two thirds of these mental defectives have inherited -their defect; in other words, that they belong to strains of the human -family whose intelligence lies below that which is required for the -performance of their duties as citizens. This points to a further -precaution necessary in looking toward the ultimate prevention of -feeble-mindedness and the solution of a large part of our prison problem, -and that is the prevention of the further propagation of this race of -defectives. If it is true--and there is every evidence that it is--that -children are daily being born of such a mentality that it requires the -attention and thought of an army of normal people to prevent their -growing up into criminal lives and that all of the best efforts can never -make them able to take their place in society as useful citizens, then it -certainly is our duty to see that such children are not born. How this is -to be accomplished has not yet been worked out in detail. The colonization -and segregation of all such people in institutions where they will not be -allowed to propagate is one solution that is proposed. The other is by -surgical interference, to render such people physically incapable of -propagating. Probably both these methods and still others must be utilized -to help solve this problem. - -The intelligence of men is often measured by the amount of foresight that -they have. The little child has little or none, as is also true of men of -low intelligence. There are men who can look forward and plan their -affairs for a few months in the future, others who can look forward a few -years, still others a lifetime, and a few who can look forward into the -coming generations. We shall demonstrate a high degree of intelligence if -we look not only to the amelioration of present conditions in our -prisons--which _must_ be done; not only to the removal to more suitable -environment of those persons who are unjustly confined because of their -irresponsibility--which ought to be done; if we not only see to it that -from now on persons who come before the court, either juvenile or adult, -are first studied to discover whether they are mentally responsible or -not, which is of utmost importance; but if we go still farther and put -forth efforts to determine how many and which of the children who are in -the public schools to-day are mentally defective and therefore need care; -and going still farther, if we have studies made and laws passed that -shall, as soon as possible, lead to the reduction in the birthrate of -these mentally defective individuals. A certain amount of -feeble-mindedness we must expect to have with us for long years to come, -because there will be sporadic cases and cases due to accident. But -feeble-mindedness as related to crime may be exterminated in a few -generations if we will but use our intelligence to attack this problem at -its root. - - - - -APPENDIX A - -GIANINI CASE - -HYPOTHETICAL QUESTION PROPOUNDED BY THE DEFENSE - - -Assuming the following circumstances to have been established by the -evidence in this case:-- - -That the defendant was on the 5th of December, 1897, born in the City of -New York; that his father was Charles A. Gianini, who also was born in -said city, and the paternal grandfather of the defendant was born in the -said city and the paternal great-grandfather of the defendant was born on -the south slope of the Alps in the republic of Switzerland. - -The defendant's mother was born in the City of New York, her maiden name -being Sara Cecelia McVey. That the defendant's mother was married to his -father when she was about twenty years of age; that prior or previous to -the said marriage she was bright, vivacious, stylish, and accomplished in -music; that shortly after her marriage she began to become untidy in her -appearance, morose, depressed, and indifferent. - -At the time of the birth of the first child (Charles), to-wit, on the 13th -day of November, 1891, about eleven months after her marriage, she was -suffering from melancholia as the evidence in this case discloses. - -Assuming that the child, Charles, lived to be but seven years of age and -during his lifetime did not learn to speak, but merely made guttural -sounds; that he did not walk, but moved about when seated on the floor, -pushing himself sidewise, and finally shortly before his death tottered -about. His death occurred when he was about seven years old. That he ate -gluttonously and his death was due to asphyxiation, choking due to taking -in trachea foreign matter while vomiting contents of an overloaded -stomach. - -Assuming that after the birth of Charles his mother's melancholia -continued, she became indifferent to her child, took no care of him, and -said that while she wanted to die, she was going to live forever; that she -also said she thought that her face was black and that she was a negress, -that she would not go into the street because she was black. - -Assuming, too, that she became addicted to the use of liquor, first lager -beer and subsequently whisky and brandy; that she made pledges, -administered by priests, only to be broken. That at times she would -brighten up, and during one of these periods, namely, July 12, 1894, a -second child, called Catherine, was born, which child still lives. - -Assuming that thereafter she began to drink again more than before; that -for eight months preceding the birth of the defendant she was drunk a -great many times, that she was found in a drunken stupor, that she was -brought home in a drunken condition by detectives, on which occasion she -had with her her second child Catherine. That about six months before the -birth of this defendant his mother was drunk, that the seventh month -before the birth of this defendant she was drinking, and on one occasion -threw her husband's books out of the window on an adjoining roof, during a -rain storm. And in the eighth month before the defendant's birth she drank -and the same condition prevailed. - -Assuming that from the June before the defendant was born, which was on -December 5, 1897, she was attended by Dr. Charles N. Weeks of New York -City, and he found her depressed, morose, and in a melancholic condition -most of the time, at times hysterical; that she would refuse to talk to -him, for one half a day at a time; that she would refuse to answer -questions, that she would pay no attention to questions, and that she was -also inclined to stare right past him; that she would weep; that she paid -no attention at all. At times the pupils of her eyes were dilated, at -times contracted, their expression at times was wild and sometimes vacant. -These conditions continued during the time Dr. Weeks was treating her. He -prescribed bromide for her liquor and the same condition continued after -the birth of the defendant. - -The general appearance of the defendant's mother was untidy, and these -conditions remained unchanged after defendant's birth. That when born the -defendant was poorly nourished, under weight, weighed about five pounds, -and was inclined to be emaciated; that at the time of the death of the -first born (Charlie), to-wit, on the 21st day of March, 1899, she was -again observed by Dr. Weeks, and then she was absolutely indifferent as to -the conditions so far as the boy was concerned; showed no grief, and her -general condition was such as he described at the time he was treating -her. - -And assuming that after the birth of the defendant he was a bottle-fed -baby, not nursed by his mother, and when about a year old placed in the -care of Mrs. Leigh, with whom he remained until he was about six years -old. That the defendant's mother died on June 3, 1899, in a Sanitarium, -known as St. Anne's Retreat in the City of New York, the cause of death -was meningitis, alcoholic heart failure. - -Assume that up to the time the defendant was five years of age he didn't -speak, and made sounds which resembled yells. Assume that about 1906 or -1907 the defendant's father took him from Mrs. Leigh's, he was then able -to talk and walk, and for several weeks he was taken care of by Mrs. -Hoberg and from there was taken to Lady Cliff Academy on the Hudson, where -he remained for one term. While there he usually appeared dirty, but -seemed to be making some progress. - -In 1907, assume when the defendant was ten years of age he went to live in -the Bronx, where he lived for two years and attended school during this -period. At one time he took two little girls to a piece of woods and -started to take their clothes off, and when asked why he did it, said he -was going to play Indian and that Indians were naked. - -On one Sunday afternoon he was observed in a group of children eating mud -pies, and the children were calling him "Loonie" and were telling him to -eat another one. - -During these two years that the defendant lived in the Bronx he was -observed to tease children. He would take a little boy's wagon and run -away with it. He would take his hat and throw it over a neighboring -fence. He would take the caps of girls and toss them over fences, pull -their curls, take away their hoops when they were rolling hoops, and take -the ball away when they were playing ball. He would do these things quite -often. On one afternoon he was brought home with a gash on his right -temple. It was bleeding and at least one inch in length. He stated that he -had received it from a fall from a stone wall while he was playing -"thief." On another occasion he chased a young girl who was stopping at -the house around the room with a table knife because she was trying to -correct him because he ran home from school without her. He did not -attempt anything against that girl again, although she remained in the -room the balance of the day. - -In 1910 defendant's father moved from the Bronx, to Poland, and brought -the defendant with him, and the defendant attended the Poland School which -he entered in April of 1910, and there remained until February or March, -1913. After leaving school defendant worked in a knitting mill in Newport -from about the first half of April until the second half of May, 1913, -when he ran away and went to Ilion. At Ilion he was found working by his -father and Mr. Frank Newman wiping dishes in the hotel. He was then taken -home. In the middle of August, 1913, the defendant again ran away, this -time to Albany, and stated that while he was there he had been shot at two -or three times by a policeman and was arrested. From Albany the defendant -again went to Ilion, where his father and Frank Newman again found him at -the same hotel, and when he saw them, he said that they were "swindlers." - -At another time the defendant ran away to Herkimer, in the summer of 1912, -and he stated that he had gone to the moving pictures. He said that he -went to the store, the Poland Union, and bought a can of beans and a bunch -of bananas for his trip to Herkimer. He left in the afternoon and did not -return until the following afternoon, when he said that he ate the bananas -going along the track before he ate the beans because he was afraid the -bananas would melt. He said he ate the beans at night, opening the can -with a nail, and ate them with a nail. - -On another occasion in Poland he chased his sister with a table knife -although she had not done anything to him. In the summer of 1910 the -defendant was at Morehouseville, and one day while there he was fishing at -the stream that passes in front of the Mountain Home, when the flies and -the punkies were biting very fiercely. He stood down there in his bare -legs and bare head fishing and the flies biting him until the blood ran -down his face and neck and legs. He was fishing there for fully an hour, -and when asked if the flies had bothered him, he said "No." - -In 1911, when the defendant's father's stepmother was in Poland, the -defendant was overheard to say to her, "Why didn't you marry my father, I -would like you better than this stepmother." - -When the defendant was fifteen years of age, in the month of September, -1913, the defendant's father had him committed to the St. Vincent's -Industrial School for juvenile delinquency, presided over by Christian -Brothers, where he remained for about six months, coming home in February. - -A few weeks before the commission of the alleged crime, he was observed to -be quarreling on Main Street in Poland with two very small children. - -At the age of sixteen years, in the early part of March, 1914, the -defendant was noticed playing with a toy railroad car and building some -tracks with some little irregular pieces of wood. He was also observed to -play tag with children apparently from two to four years younger than -himself. - -In the early part of 1912, the defendant's father observed that he was -practicing masturbation. - -The defendant's father thereupon slept in the same room with him in order -to watch him. The defendant continued this practice until the time he left -home in the spring or summer of 1913 and admitted that he did it -frequently. - -Assuming that on the 25th day of March, 1914, Mrs. Ethel Beecher and the -deceased Lida Beecher met the defendant at the Post Office in Poland, and -the defendant asked the deceased when she was coming to see his father, -and that she replied that she did not know, and the defendant said, -speaking impatiently, "Aw, I don't believe that you intend to come at all; -you will wait until the summer time and go home and then it will be too -late." That they spoke about school, and the deceased said to the -defendant that it would be better for him to wait until the beginning of -another term because he would be behind the other pupils in his work; that -on another occasion, on about the middle of February, 1914, the defendant -came on an errand to get yeast to the place where the deceased and Mrs. -Beecher were boarding and the defendant then said to them that he wanted -to get away from Poland, and would rather be in New York in the Great -White Way; that he thought he would like to act in moving pictures as he -did not like his home and he hated his father, and would not care to be a -"sod-buster"; that the deceased asked him whether he would like to return -to school, and he said that he would, but that his father would not let -him; that he never stole but once in his life and that was twenty-five -cents from a lady in New York, and she had given him twenty-five cents to -buy some candy and he bought the candy and ate it himself. On the same -visit the defendant asked Mrs. Ethel Beecher if there was a state prison -in Rochester, and she told him no; he wanted to know if there was not some -sort of a reform school there. She said that there used to be, but that -the reform school had removed to Industry, and he asked what the reform -school was like at Industry and she told him that the boys lived in -cottages under the care of a matron, a man and wife generally, and that -was as much as she knew about it. The defendant said he would like to be -there and asked her about the state prison at Auburn and different -prisons, what the sentence was and whether they had an electric chair or -whether they hung. The defendant told them that they worked awfully hard -at Sing Sing. The defendant also stated on that occasion that his father -used to thrash him for stealing apples that other men put him up to -stealing. - -Assuming at the time Mrs. Ethel Beecher and the deceased and the defendant -were talking together, that the deceased told the defendant that she -thought he would like to go in the country to work on a farm and asked him -why he did not continue his school work another year; and that her tone -was kindly and her whole deportment towards him on that occasion was such -as to incline one to believe that she desired to help him and to well -advise him; and that the defendant's conversation concerning prisons and -industrial schools was such that it caused them to laugh, at the time; and -that on other occasions when the defendant was with the deceased her -conduct towards him was always kindly and that she was kindly and -generously disposed towards the defendant and showed considerable interest -in him. - -Assuming that on the 27th day of March, 1914, at about quarter after seven -the defendant was observed on the street in Poland with some children, -with whom he had been seen at different times playing hide and seek and -tag and I spy, and that he caught hold of the toque of one of the little -girls and pulled it down over her face and that he poked another one of -the little girls in the back and that he called a girl by the name of -Grace Palmer, "Palmer House," and said, "Leonard is the proprietor, isn't -he?" and kept calling her Palmer House, and that he was snowballing the -girls, and that while he was engaged the deceased passed him on the street -and said, "Hello, Jean," and that he then joined her and shortly -afterwards was seen to come back with the deceased, going up the road -towards Buck Hill. That later in the same evening, at about ten minutes to -eight, he returned home, showing no trace of excitement or nervousness, -and that he received some books of wall paper to be delivered to a -neighbor and that he took these books and threw them so that they fell -with a noise on a neighbor's veranda and was seen running near the -railroad station and later returned home in the vicinity of eight o'clock, -showing no trace of any agitation, excitement, or nervousness. That he -took off his shoes, put on a pair of slippers, went to bed, and slept -quietly all night. That on the following morning he reported for work at -Sam Hutchinson's as usual, worked for about twenty minutes doing his -chores, ate his breakfast, and nothing unusual was observed about him. - -Assuming further that he was seen going along the railroad track in the -direction of Newport; that he met two men, one by the name of Smith, and -that he shouted, "Hello, Smithy"; that later he was spoken to by a man -named Sweet at Newport on the railroad track about four miles from Poland, -and that when Sweet caught up to him and asked him where he was going, he -said to Herkimer to see a moving picture show; that he had stolen a dollar -from his father; that he accompanied Sweet to Autenrith's store and while -there the murder of the deceased was talked about in his presence and that -he ate peanuts and smoked a cigarette and asked where they had found the -body and stated that he had gone to school to her; and subsequently was -taken back to Poland by one Frank Newman, and thereafter was turned over -to the Sheriff of Herkimer County and one of his deputies. - -Assuming that on the 26th day of March he asked an acquaintance by the -name of Morris Howe, a boy of fifteen years, if the deceased came to get -her mail nights, and said that he would get even with her; that on -Tuesday, March 24th, he told a man by the name of Estes Compo, with whom -he was working, that the deceased had tried to send him to school and that -if he had a revolver he would kill her, and asked this same man if he had -read of a murder down South, of a colored man killing a white girl and -laying it on the superintendent of a factory and that the man was -sentenced to the chair and the colored man confessed the crime; that on -the preceding night he had been in Compo's room, where he saw a revolver -and a knife, and on the following day he said if he had a revolver, he -would kill the deceased; that about a week before the 27th day of March, -while defendant was working for Sam Hutchinson, he told a boy he would -some day put an end to the deceased. - -Assuming that between the hours of seven and eight o'clock on the night of -March 27th, 1914, Miss Beecher was killed at a dark and lonely spot on the -Buck Hill road and that she had come to her death by being struck on the -head with a monkey wrench and had been cut repeatedly to the extent of -about 24 times with a knife in various parts of the body and that she was -dragged from the place where she was killed to a clump of willows near the -road and that her umbrella and hat were found the following morning in the -road and that by following the track where her body had been dragged over -the snow the body of the deceased was found. - -And assuming that on the morning of the 28th day when the defendant was -brought to Poland he was taken to a house of a Justice of the Peace and -was taken into a room by the Deputy Sheriff and told that he was -suspected and was accused of being a party to the crime. That after he was -completely stripped of his clothing he stated to the Deputy Sheriff that -he had gone to school to the deceased and had trouble with her at school -and wanted revenge and that he had met her the day before near the Post -Office and asked her to go up to his house and see his folks about having -him go to school again, and that the deceased told him that she would go -the next night. That the next night he did meet her near the hotel and she -said that she was ready to go up. They walked up the street, and when they -got near his father's house, the defendant told her that his father did -not live there, that they had moved up the hill, that he then stated in -detail how he committed the crime and disposed of the body and what he did -with the wrench and the knife. That he said, "You would not think any one -could do a job as quick as that." He said he supposed they would talk -insanity, but he was not any more insane than the Deputy Sheriff was, and -he did not want them to talk about it. - -He also said, "Gillette got the chair, didn't he?" and upon the Deputy -Sheriff replying, "Yes," the defendant said, "He had no reason to kill the -girl, but I did; I wanted revenge." - -That at the same time the defendant signed a sworn statement before the -Justice of the Peace, in which he stated that he went to school to Lida -Beecher, and had trouble with her and wanted revenge; that he was not -afraid, and when he got home, he was just as happy as he ever was, and did -not think anything about it, as he thought he had revenge; that at the -time he made these statements he was cool and quiet and spoke connectedly; -that he was not nervous or excited. - -Assuming that the defendant had not attended the Poland school since -February or March, 1913, and that while there he had studied under the -deceased for about one year, and that during this period the only -punishment he had received from the deceased was a seat facing the wall -with his back towards the other pupils, and was occasionally sent upstairs -to the Professor of the school for punishment. And that the deceased had -always manifested a friendly interest in him, was mild, kind, gentle, and -good to him. - -And further assume that when he left school, he was in the sixth grade. - -Assume that he had frequently been detected in telling lies, that he had -spoken of hatred of his father, that he manifested no affection towards -him, referring to his father as "Old Man" and "Him." That on the morning -of the 28th when he was being brought back to Poland by Newman, Newman -stated to him, "You have got something beside skipping out now staring you -in the face," to which he replied, "They can't give me but ten years"; he -used no words, when informed it might be a long time, that expressed fear -or fright; and when he was informed that he had murder staring him in the -face, he acted no different than ordinary. - -That less than a year before the birth of Charles, the first child, the -defendant's mother suffered from an attack of diphtheria, for which she -was treated by Dr. Quinlan. - -Further assume that in the summer of 1910, at Morehouseville, while -quarreling with a little boy named Arthur Jones, the defendant said he -would go up to his father's room and get his hunting knife and kill him. - -That while the defendant was at St. Vincent's Industrial School for -juvenile delinquency, at work in the laundry, he told Mr. Minor that if -his father didn't get him out in February, he would burn his father's -buildings when he got out. - -Now, doctor, assuming all these facts to have been proven in this case, -from your experience in the treatment of and knowledge of imbeciles and -idiots, from your skill and expert knowledge, can you express an opinion -concerning the mental condition of Jean Gianini at the time of the killing -of Lida Beecher, on the 27th day of March, 1914? - -By Mr. Thomas: If the Court please, I object to the question as improper -in form and that it concludes with assuming all these facts to have been -proven in this case, and that it is not an inquiry which can be properly -permitted to be put to the witness here. That, in addition, it does not -correctly state the evidence, and that especially this part of the -question is improper--"That she showed no grief, and her general condition -was such as he described at the time he was treating her," referring to -Dr. Weeks, and further it assumes incorrectly the time that the defendant -encountered Miss Beecher, near the Post Office on the 27th day of March, -1914, which is stated here to be about a quarter after seven. - -By Mr. Hirsch: What time do you say it was, Mr. Thomas? - -By Mr. Thomas: The proof varies from seven to seven six. And it is -incorrect in assuming facts not established upon the evidence, that he cut -her repeatedly to the extent of about twenty-four times with a knife; and -in those respects to which I have called your Honor's attention, the -question is improper, in that it assumes facts not proven, that it is -improper in form, and the concluding paragraph, with reference to which I -have called your Honor's attention, is improper and incompetent; and that -the question is incompetent in that it does not call upon the witness to -express an opinion as to the knowledge of the defendant of right and -wrong, or his knowledge of the nature and quality of the act in killing -the deceased. - -By Mr. McIntyre: That is a question, if your Honor please, which was -passed upon yesterday. - -By the Court: I suppose it is preliminary to some extent, as far as this -information is concerned. - -By Mr. McIntyre: It is precisely the same as yesterday, but the question -has had some additions. - -By the Court: Was that indicated by the last part of it? - -By Mr. McIntyre: Yes, sir. - -By Mr. Thomas: He should be asked, "Can you now form an opinion assuming -all these facts?"... - -_Q._ Now, Doctor, assuming all these facts contained in the hypothetical -question to have been established by evidence in this case, from your -experience in the treatment and knowledge of imbeciles and idiots, from -your knowledge and skill as an expert, can you express an opinion as to -the condition of Jean Gianini at the time of the killing of Lida Beecher -on the 27th day of March, 1914? - -Same objection - -By the Court: Objection overruled. He may answer. - -_A._ I can. - -_Q._ What is your opinion? - -Same objection. - -By the Court: I think it should conform now to the language of the -statute, shouldn't it? - -By Mr. McIntyre: Well, I have, your Honor; I first asked him if he could -express that opinion. Now if he doesn't express an opinion that comes -within the provisions within the statute, why then of course his opinion -is incompetent in this case. Now let's look at the code. Will you give me -the section, please? - -Section 1120. - -"Offense committed by an idiot or lunatic. An act done by a person who is -an idiot, imbecile, lunatic, or insane is not a crime. A person cannot be -tried, sentenced to any punishment, or punished for a crime while he is in -a state of idiocy, imbecility, lunacy or insanity, or is incapable of -understanding the proceeding or making his defense. A person is not -excused from criminal liability as an idiot, imbecile, lunatic, or insane -person except upon proof that at the time of the committing of the alleged -criminal act he was laboring under such a defect of reason as not to know -the nature and quality of the act he was doing or know the nature of the -act as wrong." - -By the Court: Well, now, my suggestion is why not embody that in your -question. - -By Mr. McIntyre: That is the second question, your Honor.... - -_Q._ I asked you what was your opinion concerning his mental condition. - -_A._ That he is an imbecile. - -_Q._ Now, Doctor, assuming that all the acts recited in the hypothetical -question to have been established by evidence, to be true, in conjunction -with the physical and mental examination made by you in the County Jail on -the 17th day of May this year,--from your experience and your knowledge of -imbeciles and idiots, in your opinion was Jean Gianini at the time of the -killing of Lida Beecher in such a mental condition as to know the nature -and quality of the act he was doing or that the act was wrong? - -By Mr. Thomas: I object to it as improper in form and copulative. - -Objection overruled. - -_Q._ Your opinion, Doctor? - -_A._ He was not in such condition. - - - - -APPENDIX B - -GIANINI CASE - -HYPOTHETICAL QUESTION PROPOUNDED BY THE PROSECUTION - - -_Q._ Doctor, kindly assume that the defendant had been a pupil taught by -Lida Beecher in the public school at Poland and harbored against her a -desire for revenge because she had punished him; that he stated to people -of his acquaintance that he would get even with her; that on Tuesday, -March 24th, 1914, he stated to a man with whom he was working that if he -had a revolver he would shoot her; that several days previously he had -this wrench, Ex. 45, in his possession and stated to a man who asked him -what he was going to do with it, that he had use for it; that he met Miss -Beecher, who was a young lady about twenty years old, five feet three -inches in height, weighing about 126 pounds, wearing upon the head this -cap, Ex. 26, and as an outer garment, this raincoat, Ex. 29 (showing to -witness), Wednesday, March 25th, 1914, about seven P.M. in the Post -Office at Poland, Post Office in the village of Poland, the location of -which is indicated on this map, Ex. 1, to which I now call your attention -(indicating); walked with her and Miss Clark, a teacher, from the Post -Office along Cold Brook Street to a point on the southerly side of the -street opposite the residence of James D. Countryman, the location of -which is also shown on the map at a point to which I now call your -attention (indicating), and that during that walk the defendant asked Miss -Beecher when she was coming up to see his father, and upon receiving the -answer that she did not know, said, "Aw, I don't believe you intend to -come at all; you will wait until summer time and go home and then it will -be too late"; that on the following evening, Thursday, he again met Miss -Beecher at or near the Post Office and asked her to go up to his house and -see his folks about going to school and she replied that she could not -that night, that she was going to prayer meeting, that she would go the -next night; that on the following day, Friday, he provided himself with -the knife, Ex. 48, for the occasion, and with the intention of killing -her, sharpened it for that purpose; that he met Miss Beecher about seven -P.M. on the evening of Friday, March 27th, near the Post Office and walked -with her along the south side of Cold Brook Street to the foot of Buck -Hill, which Buck Hill road is also shown on this map, a distance of 2006 -feet; that they then proceeded together along up Buck Hill, he getting her -to accompany him by telling her that his father lived up over the hill, -had moved up there two or three weeks before; that they went on part way -up the hill, and Miss Beecher hesitated and said it was farther up than -she thought it was, she did not think she would go any farther, and the -defendant said to her, "It is not but a little ways farther"; that when -they got to a point on the hill distant about 4198 feet from the Post -Office, she hesitated and said, "It is dark and I see no houses, no light, -don't think I will go any farther, will write your father a letter in -regard to this school matter"; that as she stopped he stepped back of her, -hit her on the head with this monkey wrench, Ex. 45, which weighs 2 pounds -7-15/16 ounces, which I now show to you, he at that time having as an -outer garment this coat, and wearing this shirt, Ex. 49, which I now show -to you; knocking her down, he hit her twice with it after she was down; -that when he first hit her with the wrench, she did not cry out but -moaned; that he then threw the wrench up over the fence on to the top of -the bank, about 35 feet; that it was so dark he could not see; took the -knife, Ex. 48, and as she was lying on the ground, hit her with it several -times to be sure to finish her, inflicting punctured wounds, one on the -back of the neck just below the hair line 3/4 of an inch in length, one on -the left side of the neck about 1/2 of an inch long, cutting a hole in the -external carotid artery 3 inches above the bifurcation of the common -carotid artery; that he then grabbed the body, which was face down, by the -right foot and dragged it across the road under a barbed-wire fence, down -the hill back of a bush to the swale; that he took hold of the right foot -because he did not want to get blood on his hands so that his finger -prints could be taken; that he ran immediately from the body to the Buck -Hill road and came out on to it a few rods nearer Poland than the point -where he dragged the body under the fence, ran down the road some -distance, and a team or sleigh came along and he stopped running and -waited until after that team got by him; that he reached his father's -house, which is shown on this map, Ex. 1, and the location of which I call -your attention to (indicating), at 7:30 and would have reached it sooner -if he had not fallen down four or five times on the way home; that he went -into the house and put the knife, off from which he had wiped the blood in -the snow, in the pantry drawer; that he was sent on an errand to the -house of Thomas Owens, on Cold Brook Street, which is also shown on this -map, Ex. 1, to the location of which I now call your attention -(indicating), to return some books of samples of wall paper, and to give -Mr. or Mrs. Owens a one-dollar bill and a soap order, to which it was -pinned; that he ran down the street, threw the books on to the veranda -floor near the kitchen door, ran down Cold Brook Street to South Main -Street, and tried to get the freight train which passed south on the M. & -M. railroad; that he ran back to his father's house and arrived there a -little after eight, took off his shoes, put on his slippers, read the -newspaper a little while, and went to bed; that he arose about six o'clock -the next morning; left his father's house, went to Sam Hutchinson's, by -whom he was employed, and whose residence is also shown on this Ex. 1, at -the location to which I now call your attention (indicating), went to the -barn, assisted in doing the chores, went in to breakfast, said nothing, -left there the coat, Ex. 41, which was then substantially in the same -condition as it is now, and to its condition, especially on the back, I -call your attention, and this being the coat which he wore the evening -before, which I now hand to you and call your attention to (indicating) -the condition of, put on another coat, and started down the railroad -track towards Herkimer, which is on the line of the New York Central and -Hudson River railroad, and some fourteen miles from Poland, intending then -to go away from Poland; that he was apprehended at Newport, a place -distant about four miles from Poland and between there and Herkimer, and -brought back in a cutter by Mr. Newman, whom he had known for several -years; that on the drive from Newport to Poland Newman asked him if he had -heard what happened at Poland, and defendant replied he hadn't; when asked -if he had seen anything of Miss Beecher the night before, said he had not; -when asked by Newman if he had heard that Miss Beecher was murdered or -killed, defendant said, "No," and on Newman's saying, "They are looking -for you for it," defendant said, "They can't give me but ten years, can -they?"; that as they drove into the village of Poland and turned from -South Main Street into Cold Brook Street, near the Post Office, there were -some rigs coming down the hill, and defendant said, "They are coming off -the hill with her now"; that in the afternoon of the same day he -voluntarily made, signed, and swore to the following statement with -reference to the matter.[3] - -State, Doctor, basing your reply upon the hypothesis stated in the -question, whether or not, in your opinion, the defendant, at the time he -struck Miss Beecher with the wrench, understood that he had no right to do -it? - -Mr. McIntyre: Don't answer. We object to the question in that it only -recites the revolting details of the alleged crime and that when the -question was being propounded to the witness upon the stand, counsel for -the State exhibited the knife, the wrench, the coat, the hat, and other -things in evidence in rather a dramatic way before the jury. - -We object to the question upon the ground that it does not contain all the -essential features in this case bearing upon the crime. - -We object to the question upon the ground that the hypothetical question -fails to include the condition of the defendant's mother at the time of -his birth; it fails to include the fact that the first child was an idiot -during his lifetime; it fails to disclose the conduct and deportment of -the defendant from the time of his birth down to the commission of this -crime. - -We submit respectfully that the hypothetical question is a garbled -statement of that which has transpired during this case and can have but -one effect--to bias and prejudice the minds of the jurors. And I submit -it is incompetent, immaterial and irrelevant and improper, in addition. - -The Court: Objection overruled. - -Mr. McIntyre: Exception, sir. - -_Q._ Have you got the conclusion, the concluding portion of my question in -mind? - -_A._ Would you repeat it? - -_Q._ Yes. State, Doctor, basing your reply upon the hypothesis stated in -the question, whether or not, in your opinion, the defendant, at the time -he struck Miss Beecher with the wrench, understood that he had no right to -do it. - -_A._ I cannot get any evidence from the facts recited there to enable me -to determine. - -_Q._ Well, can you determine from this question an opinion as an expert? - -_A._ No, I cannot. - - - - -APPENDIX C - -GIANINI CASE - -DEFENDANT'S REQUEST TO CHARGE - - -I - -Defendant requests your Honor to charge the jury that, in determining the -guilt or innocence of the defendant of the offense charged in the -indictment, the jury are to consider only the evidence of the case and are -to disregard any statement made during the course of the trial, by counsel -or the Court, and are not to be influenced or governed by any expression -of opinion or action of either the Court or counsel for defendant or the -people. - - -II - -Defendant requests your Honor to charge that the jury are not to be -influenced, in the consideration of this case, by any comment or -expression of opinion in the newspaper reports of this case, and they must -disregard any statement or comment contained in any such report, if same -has in any way been brought to their attention. - - -III - -Defendant requests your Honor to charge the jury that, in considering this -case, after its submission to them, the jury must proceed upon the -presumption that the accused, the defendant herein, is innocent of the -crime charged in the indictment and that it is necessary for the -commonwealth to overcome this presumption by evidence to convince them, -beyond a reasonable doubt, that the defendant is guilty of the crime -charged against him in the indictment. - - -IV - -Defendant requests your Honor to charge the jury that, in consideration of -this case, the jury are bound to act and proceed upon the presumption that -the accused is an innocent boy, and this presumption must continue -throughout the trial. - - -V - -Defendant requests your Honor to charge the jury that, the defendant being -charged with the crime of murder, the commonwealth is bound to prove -every and all the essential facts necessary to constitute this crime -beyond a reasonable doubt before the jury can convict the defendant of the -crime charged in the indictment. - - -VI - -Defendant requests your Honor to charge the jury that, upon the whole -case, if the commonwealth has failed to prove all of the facts beyond a -reasonable doubt, the defendant is entitled to be acquitted. - - -VII - -Defendant requests your Honor to charge the jury that the burden in this -case rests with the commonwealth, from the beginning to the end of the -trial, to establish, beyond a reasonable doubt, every fact essential to -the conviction of the defendant, and if the commonwealth has failed to -prove such charge beyond a reasonable doubt, the defendant is entitled to -an acquittal. - - -VIII - -Defendant requests your Honor to charge the jury that the unintentional -killing of a human being by another without motive, intent, premeditation, -is neither murder nor manslaughter. - - -IX - -Defendant requests your Honor to charge the jury that the questions of -deliberation and premeditation, intent and motive, are purely questions of -fact, to be determined by the jury from the evidence alone. - - -X - -Defendant requests your Honor to charge that if the jury cannot say, -beyond a reasonable doubt, that the defendant was sane at the time of the -commission of the act, and cannot say whether, at that time, he was sane -or insane, the defendant must be acquitted. - - -XI - -Defendant requests your Honor to charge the jury that if, at the time the -defendant committed the act charged against him, upon seeing the deceased, -he was thrown into a state of mind from which he was deprived of his -understanding, so as to be unaware of the nature and quality of the act he -committed, or so as to be unable to distinguish between right and wrong in -reference to that particular act at the time of its commission, this -defendant must be acquitted. - - -XII - -Defendant requests your Honor to charge the jury that, although sanity is -assured and presumed to be the normal and natural state of the human mind, -when imbecility is once shown to exist in a person, it is presumed to -exist and continue until the presumption is overcome by contrary or -repelling evidence proving sanity. - - -XIII - -Defendant requests your Honor to charge the jury that if defendant was -deprived of his reason at the time the act charged against him was -committed, and which resulted from a settled and well-established mental -alienation, or from the pressure and overpowering weight of circumstances -occurring before and at the time of the commission of said act, the said -defendant is legally irresponsible for it and must be acquitted. - - -XIV - -Defendant requests your Honor to charge the jury that if, at the time of -the commission of the act, the defendant was under the influence of a -diseased mind, and was really unconscious that he was committing a crime, -this defendant must be acquitted. - - -XV - -Defendant requests your Honor to charge the jury that the insanity of the -defendant need not be proven beyond a reasonable doubt. - - -XVI - -Defendant requests your Honor to charge that the jury, in considering this -case, are bound to act upon the presumption that the accused, the -defendant, is innocent, and should endeavor, if possible, to reconcile all -the circumstances of the case with that of innocence. - - -XVII - -Defendant requests your Honor to charge the jury that the burden of proof -rests with the commonwealth in this case, from the beginning to the end of -the trial, and the commonwealth are bound to prove that the defendant -committed the crime charged in the indictment beyond a reasonable doubt, -otherwise the defendant is entitled to be acquitted. - - -XVIII - -Defendant requests your Honor to charge that the jury must be satisfied -beyond a reasonable doubt, from the evidence of the case, of the sanity of -the defendant at the time of the commission of the act charged in the -indictment, and if the people fail to establish the sanity of the -defendant at the time of the commission of the act charged in the -indictment, this defendant cannot be convicted of any crime and is -entitled to an acquittal. - - -XIX - -Defendant requests your Honor to charge the jury that the law does not -require that the insanity, imbecility, or mental aberration which absolves -from crime should exist for any definite period, and only that it existed -at the moment when the act occurred. - - -XX - -Defendant requests your Honor to charge the jury that if the insanity, -imbecility, or mental aberration which absolves from crime operated at the -moment that the act was committed, that is sufficient in law to absolve -from guilt, and this defendant cannot be convicted of the offense charged -in the indictment, or any other offense. - - -XXI - -Defendant requests your Honor to charge the jury that the commonwealth -must satisfy the jury beyond all reasonable doubt, that, at the moment -the act alleged in the indictment was committed by the defendant, he had -reason, perception, and understanding sufficient to enable him to discern -right from wrong, and that if he had not, it is the duty of the jury to -acquit this defendant. - - -XXII - -Defendant requests your Honor to charge that if the jury believe that the -defendant did not suffer from any mental aberration which would absolve -him from punishment for the act charged in the indictment prior to the -commission of the act, or subsequent thereto, but that such state of -mental aberration did exist at the moment when the act occurred which the -defendant stands charged with, this defendant cannot be convicted of the -crime charged in the indictment, or any other crime, and must be -acquitted. - - -XXIII - -Defendant requests your Honor to charge the jury that if there is a -reasonable doubt in the minds of the jury as to whether the act charged in -the indictment was committed by the defendant while he was unable to -discern between right and wrong, or if the evidence is equally balanced -as to this, so that the jury cannot safely and conscientiously determine -whether the killing of the deceased was intentional, or was committed by -the defendant while he was unable to discern between right and wrong with -respect to the act, then this defendant is entitled to the benefit of that -doubt and entitled to an acquittal. - - -XXIV - -Defendant requests your Honor to charge the jury that if it finds that the -defendant is of a mental age of under twelve years, he is presumed to be -incapable of the commission of crime. (_Refused_) - - -XXV - -Defendant requests your Honor to charge the jury that if it finds that the -defendant is of a mental age of under twelve years, he is presumed to be -incapable of crime and that presumption is not removed by proof that he -had sufficient capacity to understand the act charged against him and know -its wrongfulness, except by evidence that satisfied the jury beyond a -reasonable doubt. (_Refused_) - - -XXVI - -Defendant requests your Honor to charge that if the jury finds that the -defendant is of a mental age of under twelve years, the evidence that he -understood the nature or quality of the act charged against him and knew -its wrongfulness must be strong and clear beyond a reasonable doubt. - - -XXVII - -Defendant requests your Honor to charge the jury that it must find that -the understanding of and the capacity for committing a crime is measured -not by the chronological years of the defendant, but by the strength of -the defendant's understanding and judgment. (_Refused_) - - -XXVIII - -Defendant requests your Honor to charge that if the jury find that the -defendant was of a mental age of under twelve years, he was incapable of -committing the crime charged in the indictment, unless the commonwealth -has made strong, clear, and convincing proof beyond a reasonable doubt -that the defendant was capable of discerning the difference between right -and wrong or knew the quality and nature of his act. (_Refused_) - - -XXIX - -Defendant requests your Honor to charge that the burden is upon the -commonwealth to show that the defendant has intelligence and maturity of -judgment sufficient to render him capable of harboring a criminal intent. - - -XXX - -Defendant requests your Honor to charge that if no motive has been -established for the crime, the jury must regard it as important in its -bearing upon the question of the defendant's mental condition at the time -of the commission of the act charged against him. - - -XXXI - -Defendant requests your Honor to charge the jury that if the commonwealth -have established merely a slight, trifling, and inconsequential motive for -the commission of the act charged in the indictment, they should regard it -as important and give it more consideration in connection with the -question of the defendant's mental condition. - - -XXXII - -Defendant requests your Honor to charge the jury that the commission of -the crime charged in the indictment by a child of tender years from its -very nature raises the question of abnormality of the defendant's mind and -in the absence of clear, strong, and convincing evidence on the part of -the commonwealth, it must conclude that the defendant's mental condition -was such that he did not understand the wrongfulness of his act or -understand the nature and quality of his act. - - -XXXIII - -Defendant requests your Honor to charge that evidence of the want of a -rational and reasonable motive on the part of the defendant for the -perpetration of the act charged in the indictment is to be considered by -the jury as strong corroboration of the fact of his mental -irresponsibility. - - -XXXIV - -Defendant requests your Honor to charge that the perpetration of the act -charged in the indictment without any apparent motive or object, but -against every motive which would appear to be naturally influential with -the defendant, that they must at once inquire whether or not the defendant -was of sound mind and take into consideration with the other evidence of -this case that he was not of sound mind, the absence of sufficient motive -must lead them to conclude that he was of unsound mind and could not -distinguish between right and wrong or know the nature and quality of his -act. - - -XXXV - -Defendant requests your Honor to charge that the absence of a clear and -convincing motive in itself is evidence of an unsound mind. - - -XXXVI - -Defendant requests your Honor to charge that if the defendant acted -without any reasonable or rational motive or object, but against every -motive and object, which it would appear should have been influential with -him, that fact in itself raises a presumption that the defendant was of -such unsound mind that he could not distinguish between right and wrong or -know the nature or quality of his act. - - -XXXVII - -Defendant requests your Honor to charge the jury that they have no right -to presume a motive from the mere commission of the crime and have no -right to speculate, guess, or surmise or supply any motive for the -commission of the act charged in the indictment. - - -XXXVIII - -Defendant requests your Honor to charge that the failure of the -commonwealth to call as witnesses Drs. Maybon and Palmer, who made -examinations of the defendant, to testify as to his mental condition, -raises the inference that if they had been called as witnesses, they would -have testified adversely to the commonwealth in respect to the defendant's -mental condition. - - -XXXIX - -Defendant requests your Honor to charge that from the failure of the -commonwealth to call as witnesses Drs. Maybon and Palmer, who examined the -defendant, the jury may infer that they would have testified that the -defendant was a high-grade imbecile who was laboring under such defect of -reason as not to know the nature and quality of the act of which he is -charged in the indictment or not to know the act was wrong at the time it -was committed. - - -XL - -Defendant requests your Honor to charge that from the failure of the -commonwealth to call as witnesses Drs. Maybon and Palmer, the jury may -infer that had they been called they would have testified unfavorably and -adversely to the commonwealth, especially in the absence of any -explanation made under oath as to why they were not called. - - -XLI - -Defendant requests your Honor to charge that if the jury acquit the -defendant on the ground of insanity, in that event the jury should specify -in its verdict that it acquits him on the ground of insanity. - - -XLII - -Defendant requests your Honor to charge that if the jury acquit the -defendant upon the ground of insanity, it will become the duty of the -Court to order him committed to a State Asylum. - - -XLIII - -Defendant requests your Honor to charge that if the jury acquit the -defendant on the ground of insanity, in this case such insanity will mean -imbecility, and that as imbecility cannot be cured, it will become the -duty of the Court to order him committed to a State Asylum for the rest of -his actual life. - - -XLIV - -Defendant requests your Honor to charge the jury that the denial of the -several motions made by defendant's counsel throughout the trial, and the -rulings of the Court upon objections, and refusals by the Court to charge -as requested, are not to be taken as any expression of opinion on the part -of the Court upon the facts of this case, but are only rulings upon the -law, about which the jury has nothing to do. - -NOTE. Requests XXIV, XXV, XXVII, and XXVIII, the Court refused to charge. - - - - - -INDEX - - - Abstract ideas, lack of, in morons, 98. - - Actions after crime, Gianini, 25, 27. - Pennington, 50-52. - Tronson, 76-78. - - Alcoholism, 110. - - - Barr, Dr. Martin W., statement of, 86. - - Beecher, Miss, annoyed by Gianini, 23. - - Binet tests, and school experience, 35, 38, 54. - use of, in Gianini case, 32-35. - in Pennington case, 53. - in Tronson case, 80. - - - Capital punishment, 101. - - Cause of Gianini's condition, 39-41. - - Causes of feeble-mindedness, 39. - - "Charity" in Binet tests, 34. - - Children, testimony of, 90. - actions of, 94. - suggestibility of, 63. - - Code quoted, 128. - - Colonization, 107. - - Confession, Gianini, 4, 9, 10. - Pennington, 44, 53. - Tronson, 67-80. - characteristic of imbeciles, 16, 29. - childishness of Pennington's, 55, 56. - not necessarily true, 17. - why Gianini made a, 15. - - Confessions compared, 83, 90-93. - - Courtroom, conduct in, 30, 67, 92. - - Coward, the imbecile, 23. - - Cretinism, 40. - - Crime, details of, Gianini, 122, 132. - Pennington, 47. - Tronson, 74. - - Criminal imbeciles, what should be done with, 102. - - Criminals, 50 per cent feeble-minded, 106. - - - Defense in case of, Gianini, 2, 5. - Pennington, 43. - Tronson, 66. - - Delinquencies, previous, of Gianini, 7, 37, 115, 116. - of Tronson, 68, 69, 82. - - Display, love of, 29. - - - Experts, qualifications of, 85. - - - Feeble-mindedness, causes of, 39, 106. - may be exterminated, 108. - - Feeble-mindedness in family, Gianini, 40. - Pennington, 87. - - Finger prints, 26. - - - Gianini, Jean, case of, 1-41. - actions after the deed, 25, 27. - attitude of Miss Beecher toward, 7, 119. - disregards counsel's warning, 30. - evidences of pride in deed, 16-19, 29, 123. - facts as established by testimony, 3. - incidents in life of, 113-125. - indifferent to crime, 10, 29, 120, 125. - interest in stories of crime, 26, 118, 121, 123. - mentality of, 13. - mother of, 40, 109-112. - previous delinquencies of, 7, 37, 115, 116. - stories about, 31, 113. - teased little children, 32, 116, 119. - threats made by, 121, 125, 131. - - Great White Way, 117. - - - Hypothetical question, defense, 109-126. - prosecution, 131-136. - - - Idiot, defined, 12. - - Imbecile, career of an, 54. - - Imbecility defined, 11. - not curable, 102. - - Imbecility, defense of, Gianini, 2, 5. - Pennington, 43. - Tronson, 66, 80. - - Imprisonment for life, 89, 101, 104. - - Indian, Gianini plays, 23. - - Insanity in relation to crime, 102. - - Instinct to kill, 105. - - Institution for feeble-minded, the logical place, 104. - - Intelligence, tests of, admitted into court, 2, 32-35, 53, 80. - - Interest in crime, Gianini's, 26, 118, 121, 123. - - - Jail, attitude in, Gianini, 30; - Pennington, 55. - examined in, Gianini, 29; - Pennington, 53, 56. - - Jealousy of March, 53. - - - Liberty of defendant not desired, 88, 103. - - - McIntyre, John F., 103. - - March, convicted, 43. - convicted upon Pennington's testimony, 90. - Pennington's relation to, 55, 56, 64. - - Masturbation, 117. - - Melancholia, 110-112. - - Mental defectiveness, inherited, 39, 106. - recognized early, 105. - - Mentality of, Gianini, 13. - Pennington, 53. - Tronson, 66. - - Money as motive, 57. - - Moron, defined, 11. - abstract ideas lacking in, 98. - - Mother of Gianini, 40, 109-113. - - Motive, Gianini's, 4, 20-25. - March's, 53. - Pennington's, 53, 56-60. - Tronson's, 76, 80. - - - Pennington, Roland, case of, 42-64. - actions after the deed, 52-53. - conduct at trial, 92. - confession, 44-53. - disregards lawyer's caution, 55. - mentality of, 53. - relation to March, 55, 56, 64. - testimony against March, 43, 90, 92. - trial, 43. - - Preparations for crime, Gianini, 6. - Pennington, 47. - Tronson, 70. - - Prevention, 82, 87, 104-108. - - Propagation, prevention of, 106-108. - - Psychologists, testimony of, 32, 53, 66. - - Punishment for criminal imbeciles, 88, 100-108. - - - Quality of an act, meaning of, 96. - - - St. Vincent's School, 7, 116. - - School, failure in, sign of mental defect, 37. - Gianini case, 35-37, 124. - Pennington case, 54. - Tronson case, 66. - - Segregation, 107. - - Sexual theory of Gianini's crime, 20. - - Society, duty of, 82. - protection for, 100. - - Speech development retarded, 113. - - State prison for the imbecile manslayer, 89, 104. - - Sterilization, 107. - - Stories about Gianini, - "Indian," 113. - "Soup and safety," 31. - "Strap oil," 32. - teased little children, 32, 113, 116, 119. - "Thief," 114. - - Suggestion, discussed, 61-63. - Pennington, victim of, 56-64. - - Superintendents as specialists, 88. - - - Testimony of, children, 90. - experts, 85. - Pennington against March, 43, 90, 92. - psychologists, 32, 53, 66. - witnesses, 3-8, 18, 31, 35-37. - - Trial, Gianini, 1, 30, 31. - Pennington, 43, 92. - Tronson, 66, 67. - - Tronson, Fred, case of, 65-82. - actions after the deed, 76-78. - confession of, 76-80. - mentality of, 66. - previous delinquencies of, 68, 69, 82. - - Types considered, of imbecility, 83. - of feeble-mindedness, 12-14. - - - Verdict, Gianini case, 1, 2. - Pennington case, 43. - Tronson case, 66. - - - Witnesses, children as, 90. - - Wrench asked about, 7. - - -Printed in the United States of America. - - - - -FOOTNOTES: - -[1] See prosecution's hypothetical question--Appendix, pp. 131-138. - -[2] See Gianini Case, Defendant's Request to Charge, Nos. XLII, XLIII, -Appendix, p. 153. - -[3] For statement see p. 9. - - - - - - -End of Project Gutenberg's The Criminal Imbecile, by Henry Herbert Goddard - -*** END OF THIS PROJECT GUTENBERG EBOOK THE CRIMINAL IMBECILE *** - -***** This file should be named 43064.txt or 43064.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/4/3/0/6/43064/ - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive.) - - -Updated editions will replace the previous one--the old editions -will be renamed. - -Creating the works from public domain print editions means that no -one owns a United States copyright in these works, so the Foundation -(and you!) can copy and distribute it in the United States without -permission and without paying copyright royalties. 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You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org/license - - -Title: The Criminal Imbecile - An Analysis of Three Remarkable Murder Cases - -Author: Henry Herbert Goddard - -Release Date: June 29, 2013 [EBook #43064] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK THE CRIMINAL IMBECILE *** - - - - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive.) - - - - - - - - - -THE CRIMINAL IMBECILE - - - - - THE MACMILLAN COMPANY - NEW YORK BOSTON CHICAGO DALLAS - ATLANTA SAN FRANCISCO - - MACMILLAN & CO., LIMITED - LONDON BOMBAY CALCUTTA - MELBOURNE - - THE MACMILLAN CO. OF CANADA, LTD. - TORONTO - - - - -[Illustration: JEAN GIANINI. - -(Upper picture taken in jail. Printed by permission of Zintsmaster and -Jones, Herkimer, N. Y., Photographers.)] - - - - - THE CRIMINAL IMBECILE - - AN ANALYSIS OF THREE - REMARKABLE MURDER CASES - - - BY HENRY HERBERT GODDARD - - DIRECTOR OF DEPARTMENT OF RESEARCH - VINELAND TRAINING SCHOOL - - - New York - THE MACMILLAN COMPANY - 1915 - _All rights reserved_ - - - - - COPYRIGHT, 1915, - BY THE MACMILLAN COMPANY. - - Set up and electrotyped. Published September, 1915. - - Norwood Press - J. S. Cushing Co.--Berwick & Smith Co. - Norwood, Mass., U.S.A. - - - - -PREFACE - - -This book is offered to the public in the belief that the three cases -herein described are typical of a large proportion of criminal cases and -that the analysis and discussion attempted will help to make clear -important points which are often misunderstood, points relative to the -criminal and to the imbecile. - -A clear conception of the nature of the imbecile and of his relation to -crime will inevitably result in a most desirable change in our criminal -procedure. - -It should be noted that we use "imbecile" in the legal sense which -includes the moron and often the idiot as scientifically classified. This -usage is justified since much of the literature still describes all mental -defectives as imbeciles, idiots, or feeble-minded--according to the -preference of the writers. - -These cases are unique in that they were the first court cases in which -the Binet-Simon tests were admitted in evidence, the mental status of -these persons under indictment being largely determined by this method. - -It happens, also, that these cases well illustrate three phases of the -workings of defective minds. Jean Gianini shows the criminal imbecile of -high grade and of loquacious type working by himself. Roland Pennington, -equally high grade but of a quiet, phlegmatic temperament, shows how a -defective mind works under suggestion. Finally, Tronson shows the crude -brutality of a somewhat lower grade defective. - -In the chapter on Responsibility we have tried to indicate the difference -between _verbal_ morality and deep-seated, appreciated, moral principle. A -child may have the former but the latter comes only with experience and -the age at least of the adolescent. - -We would remind the reader that in the confessions and the appendices we -have had at hand only stenographic reports. - -If this book shall help the lawyer to make a more successful defense of -the imbecile criminal, the judge to dispense justice to this much -misunderstood class of high grade imbeciles, and society in general to -realize its responsibility for the mental defective, it will have -fulfilled its mission. - -H. H. G. - - RESEARCH LABORATORY OF THE TRAINING SCHOOL - IN VINELAND, N. J. - - - - -CONTENTS - - - PAGE - - PREFACE v - - CHAPTER - - I. THE CASE OF JEAN GIANINI 1 - - II. THE CASE OF ROLAND PENNINGTON 42 - - III. THE CASE OF FRED TRONSON 65 - - IV. THE CRIMINAL IMBECILE 83 - - V. RESPONSIBILITY 94 - - VI. THE PUNISHMENT FOR CRIMINAL IMBECILES 100 - - - APPENDICES - - A. GIANINI CASE. HYPOTHETICAL QUESTION PROPOUNDED BY - THE DEFENSE 109 - - B. GIANINI CASE. HYPOTHETICAL QUESTION PROPOUNDED BY - THE PROSECUTION 131 - - C. GIANINI CASE. DEFENDANT'S REQUEST TO CHARGE 139 - - INDEX 155 - - - - -LIST OF ILLUSTRATIONS - - - JEAN GIANINI _Frontispiece_ - - FACING PAGE - - ROLAND PENNINGTON 42 - - FRED TRONSON 66 - - - - -THE CRIMINAL IMBECILE - - - - -CHAPTER I - -THE CASE OF JEAN GIANINI - - -"We find the defendant in this case not guilty as charged; we acquit the -defendant on the ground of criminal imbecility." - -Such was the verdict by the jury of the Supreme Court of Herkimer County, -New York, on May 28th, 1914, in the case of the people _vs._ Jean Gianini, -indicted for the murder of Lida Beecher, his former teacher. - -The prosecution and, at first at least, the majority of the citizens of -the community held that this had been a carefully planned, premeditated, -cold-blooded murder of the most atrocious character, committed with a -fiendishness seldom seen among human beings. It was, on the other hand, -claimed by the defense that the boy was an imbecile, that he had only the -intelligence of a ten-year-old child, that he did not know the nature and -quality of his act, and that he did not have any true realization of the -enormity of his crime. For some reason unaccountable to a great many -people, the jury accepted the view of the defense. - -Not infrequently have verdicts in murder trials been unacceptable to the -populace. In that respect this verdict is not an exceptional one, but from -other standpoints it is remarkable. Probably no verdict in modern times -has marked so great a step forward in society's treatment of the -wrongdoer. For the first time in history psychological tests of -intelligence have been admitted into court and the mentality of the -accused established on the basis of these facts. - -The value of this verdict cannot be overestimated. It establishes a new -standard in criminal procedure. It recognizes that _weakness_ of mind, as -an excuse for crime, is of the same importance as _disease_ of mind; puts -feeble-mindedness in the same category with insanity, and requires that it -like insanity be considered in all discussions of responsibility. When we -add the now accepted fact that the feeble-minded are at least as numerous -as the insane, we see the far-reaching significance of this standard set -by the Supreme Court of Herkimer County, New York. - -That the verdict has not been at once acceptable to the people is due to -the fact that the character and the limitations of the high-grade -imbecile are not understood. With a view to explaining this type of -defective, which the defendant so well illustrates, we propose in the -following pages to go over the history of this case, explaining the facts -in the light of present-day knowledge of the feeble-minded. - -The facts in the case as established by testimony:-- - -On the morning of March 28th, 1914, Henry Fitch, a farmer of Herkimer -County, accompanied by his son, started on his usual work to deliver milk. -At a point in the highway, approximately one mile from the village of -Poland, Mr. Fitch saw blood and signs of a struggle in the snow and slush -in the road; he also found an umbrella and a hat. A bloody path led out of -the road to a point some hundred and thirty feet away. Following the -tracks he found the body, which proved to be that of Lida Beecher, one of -the school-teachers in the village of Poland. She lay at full length on -her face, both arms under her. The body was removed to Sprague's -undertaking rooms in the village. - -On the same morning Jean Gianini, sixteen years old, left his father's -house on the edge of the village to go to the home of Sam Hutchinson, -where he was working and taking his meals. He had his breakfast, went to -the barn, and worked a short time. When Mr. Hutchinson went out a little -later, he could not find Jean. A Mr. Smith said he had seen him going down -the tracks toward Newport. William Taylor, the track foreman, said he -passed Jean near the bridge. Mr. Hutchinson then sent word to the boy's -father that he had gone. The father, supposing his son had run away as he -frequently did, telephoned to Newport asking that he be apprehended and -sent home. This was before anything was known of the crime. Peck Newman, -to whom the father telephoned, found Jean in a grocery store in Newport. -He had been apprehended at the depot. He was taken home and then to the -Justice of the Peace. Here he was stripped, presumably for the purpose of -discovering whether there was any blood upon his clothing or his body. -Although there is no evidence that any stains were found, yet he had no -sooner been stripped than he made a free and open confession. We shall -consider this confession in detail later. In substance he said that he -killed Miss Beecher to get revenge, because she had humiliated him in -school. He told in detail how he had accomplished this and what had been -his movements shortly before and after the deed. On the strength of this -confession and such corroborative evidence as could be obtained from -local witnesses the prosecution sought to convict this boy of murder in -the first degree. - -It was understood at first that the defense would attempt to prove that he -was insane. There did not seem to be much evidence of insanity and it did -not appear that the prosecution was in great fear of such a verdict. As a -matter of fact, the real defense was imbecility. It is probable that this -defense was less intelligible to people who knew Jean Gianini than that of -insanity would have been. To one familiar with imbecility, however, there -is no shadow of a doubt of the correctness of this diagnosis. The only -possible question in the mind of any such person would be whether a -defective of such high grade knew the nature and quality of his act and -knew that it was wrong, and was therefore responsible for his act. This -point the jury decided, and we shall attempt to show by a study of the -case that they decided correctly. - -Much of the confusion in the mind of the public and dissatisfaction with -the result in this case is due to a failure to understand the nature and -character of the imbecile. Most of the acts and the utterances of the -defendant, which seemed to many people to indicate his soundness of mind, -his premeditation and planning of the murder, are in reality so thoroughly -characteristic of the imbecile as to leave no doubt whatever of his low -mentality. - -We have already given all that is known of the circumstances except -certain details which Jean claimed in his confession, and certain acts and -utterances which were testified to by local witnesses. - -We may now examine these testimonies, reserving his confession for a later -discussion. So far as the crime itself is concerned but little testimony -was brought forward; so little, in fact, that without the boy's confession -he probably could never have been convicted of the deed. - -On the evening of the tragedy Jean was seen by several people walking up -the street toward his home in company with his victim. Two days before -this he had been heard to ask her when she was coming to see his father -about his returning to school; to this she had replied, that she "did not -know"; and he had answered, "Aw, I don't believe you intend to come at -all, you will wait until summer time, and go home and then it will be too -late." On the following evening he again asked her to go up to his house. -She said she could not go then, as she was going to prayer meeting, but -she would go the next night. He had also inquired of certain persons -whether she went to the Post Office in the evening. On one occasion he -had been seen with an old rusty wrench in his pocket and when asked what -he was doing with it, he had replied, "I have use for it." This was the -wrench with which he struck his victim the death-blow, according to his -confession. - -Previous to the tragedy he had told certain persons that he meant to get -even with Miss Beecher. The wrongs for which he claimed to have desired -revenge had occurred more than a year before the tragedy. For over a year -he had been out of school and had been working a part of that time. For -some months he had been an inmate of St. Vincent's School, to which -institution he was committed by a Justice of the Peace at the instigation -of his father because of his propensity to jump freight trains. - -The evidence was strongly against the idea that Miss Beecher had ever done -anything to injure him or anything which would reasonably cause resentment -in his mind. He had not gotten along well in his studies after going into -her room, had been more or less disorderly, and she, at the suggestion of -the principal, had seated him facing the wall with his back to the rest of -the school. She had occasionally sent him up to the principal, who had -sometimes flogged him. - -On the night of the deed Jean was seen walking up the street with Miss -Beecher at something after seven o'clock in the evening; before eight -o'clock he was at home in his father's house; there he was given an errand -to do and went down the street, returning shortly; spent some time in -reading and then went to bed. The next morning he was at his place of work -as already mentioned. The wrench which had been seen in his pocket was -found near the scene of the murder. These are the only known facts bearing -upon the case, previous to his own confession. For further items of -evidence see the hypothetical questions propounded by the prosecution and -by the defense--Appendix, pp. 109-138. - -The fact that he was the last person seen with her, that the monkey wrench -at one time seen in his pocket was found at the scene of the deed, that he -left his place of work and went down the railroad track toward Newport, -was sufficient to arouse suspicion. It is more than doubtful whether the -evidence could have resulted in an indictment by a grand jury, and -practically certain it never could have resulted in a conviction. The -absence of any real motive for the act would have been fatal to such an -attempt. The absence of evidence of a prearranged plan is also a serious -lack. It is true that, when we have the confession and the later -explanations, the presence of the monkey wrench in his pocket and his -words that he "had use for it" sound like a prearranged plan, and yet -there is no real evidence here. He might have had the monkey wrench for a -dozen purposes and have given the same answer. Perhaps his threat to get -even with her, his remark "that if he had a revolver he would shoot her," -may be considered more serious, but certainly no jury could convict him -merely on the basis of such statements. - -It is reasonably certain then that, had he not confessed, he never would -have been convicted even if he had been indicted. Let us now examine the -confession. - - _Gianini's Confession_: Jean Gianini, being duly sworn, deposes and - says he resides in the village of Poland and is sixteen years old; - deponent further says, "I went to school to Lida Beecher and had - trouble with her and wanted to get revenge. - - "I met her above the hotel and walked up the street with her up beyond - the stone quarry; she had been a coming to see my folks about school - and was a coming up to see them last night and I told her they lived - up the hill, and when we got up there on the left side of the road, I - hit her with a monkey wrench that I got out of my father's barn. I had - the wrench in my pocket when I went up. - - "After I had hit her about three times with the wrench, I hit her with - a knife several times, to be sure to finish her, and then I took her - over in the lot; I dragged her by the foot; and then I went home and - got there about 7:30. - - "The knife I stabbed her with was one that belonged to my father and I - took it home and put it in the pantry drawer. - - "I left the wrench somewhere near where I hit her. When I hit her - first, she did not scream but moaned. - - "She said she thought it was quite a ways and she did not see any - house. - - "I was not afraid when I got home; I was just as happy as I ever was - and didn't think anything about it as I thought I had revenge. - - "I make this statement voluntarily and under no fear or threat and - knowing the same may be used against me. - - "JEAN GIANINI. - - "Subscribed and sworn to before me this 28th day of March, 1914. - - "FRED MOORE, - "_Justice of the Peace of Town of Russia_." - -In its main points the confession must be accepted as true. To refuse to -accept it would be to admit at once without further proof that the boy -was crazy or an imbecile, since, if it were not true, it is inconceivable -that any normal person would claim to have done such a deed. It is -accepted then by all that Jean Gianini killed Lida Beecher on the night of -March 27th, 1914. There is no difference of opinion on that point. It is -now only a question of his responsibility. - -We may now review the facts and see what is the evidence: first, that he -is an imbecile; second, that being an imbecile, he did not know the nature -and quality of his act and that it was wrong. - -Is Jean Gianini an imbecile? What is an imbecile? We cannot expect to -agree upon the question of whether Jean is an imbecile until we agree upon -the definition of imbecile. There are various ways of designating this -type of individual. Imbecility, as used in law in this country, may be -defined as "the state of mental defect existing from birth or from an -early age, due to incomplete cerebral development, in consequence of which -the person affected is unable to perform his duties as a member of -society." The high-grade imbecile, such as the person under discussion, -feeble-minded as he is called in England, or the moron as we are coming to -call him in the United States, is one who is "capable of earning a living -under favorable circumstances, but is incapable from mental defect, -existing from birth or from an early age, (_a_) of competing on equal -terms with his normal fellows, or (_b_) of managing himself or his affairs -with ordinary prudence." These definitions were formulated by the Royal -College of Physicians of England, and accepted by the Royal Commission on -the Care and Control of the Feeble-minded. - -We may further designate this type of individual by saying that he has the -mentality of a normal child of from three to twelve years of age. These -age limits have been determined by examining thousands of the inmates of -institutions for the feeble-minded and comparing with normal children. The -inmates of the institutions are there because they were not capable of -managing their own affairs with ordinary prudence, because society has -discovered that they could not take care of themselves; they are -weak-minded; they must be cared for by the public. Careful examination of -such persons as have been determined by experience to be incapable of -managing themselves shows that they range in intelligence, as before -stated, from three to twelve years. There are practically none in these -institutions that have a mentality above twelve. Those under three are -called idiots. - -Considered from the standpoint of the growth and the development of the -child, we say that the imbecile is a case of arrested development; he has -stopped growing mentally, and has stopped previous to the age of twelve, -so that no matter what may be his actual age his mentality is that of a -child under twelve years. - -In the case of Jean Gianini, although he is sixteen years old, he has only -the mentality of a child of ten. Or, if a possible error of two years were -allowed, he would still have only the mentality of twelve and would be an -imbecile. As a matter of fact, there is probably nothing in the whole -career and history of Jean Gianini that is inconsistent with a mentality -under twelve; and on the other hand there are numbers of things in -evidence in connection with his crime that are so thoroughly typical of -high-grade imbeciles that any one with experience with this type of person -can have no doubt about it; but it is our purpose to show this by an -analysis of the case. We must first attempt to remove some of the -difficulties in the way of this view. - -First, why does it seem absurd to call Jean Gianini an imbecile? Mainly -because in the popular mind the term imbecile connotes only the low-grade -imbecile, the person who shows in every movement and action, if not in -his very face, that he is "lacking," is "not all there," is "not quite -right," or whatever may be the expression that we apply to those -unfortunate ones, of whom there are, sad to say, always one or more in -every community. - -Jean Gianini is not of that type; he is a _high-grade_ imbecile; he is of -the grade that is only recognized by those who are intimately familiar -with imbeciles of all types. He is only discovered when we make a close -comparison between him and normal boys of the various ages. We may perhaps -liken it to the question of tuberculosis: the average man never recognizes -a fellow being as suffering from consumption until he is afflicted with a -cough which does not yield to treatment, is constantly expectorating, gets -thin and pale, and has other marked outward symptoms; the average person -would not find more than one or two consumptives among a hundred persons; -the expert physician, however, experienced with tuberculosis, recognizes -many more by signs and symptoms which he can describe with great accuracy, -and when he is allowed to apply his physiological tests and his clinical -thermometer and his microscope, the number increases enormously, and he -assures us that every seventh person will die of tuberculosis. - -It is hard then for many people to accept the verdict that Jean Gianini -is an imbecile, largely because they do not realize what a high-grade -imbecile is. - -A second reason is found in the fact that we insist upon believing the -unbelievable. We view a crime like the one under discussion and say -frankly, "It is unbelievable that any reasoning, intelligent person could -commit such an atrocious act," and yet we believe that this boy did; we -believe that such a grade of villainy exists and that it can suddenly -appear in a boy who never before manifested anything approaching it. The -fact is, that our instinctive revulsion against such a thought is the -correct view. The fact that Jean Gianini committed such a crime is itself -the strongest kind of evidence that he is not a normal boy. But turning -from imbecility in the abstract, let us examine concrete instances in the -life of Jean Gianini, for we shall find there the best possible -illustrations of the characteristics of an imbecile. - -We may begin at the most dramatic point--the crime itself. Since we know -practically nothing of the crime except through his admissions, we will -begin with the confession. And first, why was there a confession? It is -safe to say that there is not a sensible man or boy the country over who, -knowing the facts in the case, would not say, "What a fool Jean was to -confess!" Nobody but an imbecile would have confessed under those -circumstances; they had no evidence against him, nor did they pretend they -had; he testifies that they told him that they thought he was guilty of -the crime; they did not pretend that they knew he was guilty; there were -no third-degree methods used; they had taken his clothing off and examined -him, but they had not found any blood or any evidence, and the clothing -had only just been removed when Jean began to tell his story. He had not -been promised any immunity if he should confess; in fact, he had been told -that anything that he said would be used against him, but still he -persisted in telling the whole story. But we do not have to rely upon the -fact that it looks foolish to us for him to have confessed, because we -have the fact, well known to all who have to deal with imbeciles, that it -is characteristic of them to do just this thing. They do not always -confess, it is true. It seems to depend largely upon how proud they are of -their deeds--and frequently the more atrocious these are, the prouder they -are of them. It is perfectly clear that such was the case with Jean. He -made some little attempt to get away, at least he made what appeared like -an attempt to get away; there really is no evidence that he was doing -anything more than he had done many times before, going away from home to -seek work elsewhere, with that _wanderlust_ which is also characteristic -of imbeciles. He walked down the railroad track toward Newport, not going -very fast, not taking any precautions to avoid being seen, and when met by -some one whom he knew, he came willingly back to Poland. - -There is the highest probability, perfectly clear to one who understands -imbeciles, that almost from the time the deed was done he had a strong -desire to tell somebody about it, to brag about it; but a certain -instinct, a certain feeling that he ought not to be caught, probably held -him back. But when at last he was taken back to Poland and into the -presence of the Deputy Sheriff; when his clothes had been removed and he -thought his story would get into the papers and he would become notorious; -then he began to talk. In spite of all the warnings and declarations that -he would suffer for it, he talked. At this point it is important to -remember that he is talking now to be heard; he is not confessing in order -to escape punishment, he is talking because he is proud of what he has -done; he wants to boast, wants to be talked about and written up, wants to -be notorious, a great criminal, as is evidenced in the course of the -trial. Remembering this, we _cannot believe all that he says in his -confession_. - -As already stated, in so far as it relates to the basal facts of the -crime, it is undoubtedly true; but when it comes to the finer details of -what he did, how he prepared, and what he claimed was his motive, we -greatly err if we accept everything he said. It is not in the sworn -confession, but it was in evidence that he said he sharpened the knife for -the purpose; the fact that he said he sharpened the knife for the purpose -should have no weight. It is precisely the kind of thing that he would put -in for effect. In fact all that he said after the deed as to arrangements -or plans or details must ever be questioned unless his statements can in -some way be corroborated, for this tendency to elaborate is so strong that -there is no possibility of putting any trust in his words. - -It is worthy of note that whereas the defense introduced many witnesses -who testified to Jean's sayings and actions that showed silliness and -indicated childish intelligence, the prosecution neither rebutted this nor -produced witnesses testifying to anything in his previous conduct that -gave evidence of good judgment or intelligence appropriate to his years, -or that he had any moral development that would be normal for his age.[1] - -The evidences of his pride in the deed are scattered throughout the -testimony. For example, at one time he said, referring to the deed, "You -would not think anybody could do a deed like that so quick, would you?" -When asked how he could get Miss Beecher to go so far up the hill in the -dark with him, he replied with a good deal of pride: "That's easy! I told -her my father was building a house up on the hill and we went up there." - -This leads us to another precaution which must be borne in mind in -considering this case. If Jean is an imbecile, then all our previous -conceptions must be changed, since the conclusions that we naturally draw -are based on the assumption that these facts relate to a normal man. To -illustrate: if Jean were a normal boy of sixteen, the fact that he -inquired as to the time of Lida Beecher's being at the Post Office, that -he talked with her the day before about her promise to go with him to see -his father, the fact that he went off with her that night, that when he -reached his father's house, he lied and said his father lived up over the -hill and led her up there, and then, as he said, struck her with the -monkey wrench, and so on, would all indicate premeditation and planning -and forethought; but the instant we conclude that Jean is an imbecile, -then these facts indicate nothing of the kind. It is not denied that such -may have been the case, or that it is impossible for an imbecile to carry -out such a plan. But it is claimed that there is no strong presumption -that such was the fact, because the result can be accounted for in another -way. Jean being an imbecile, _it is entirely possible that he had no -premeditation of murder at all_, that he not only did not grind that knife -for the purpose, but that he did not have the monkey wrench in his pocket -for the purpose. On the contrary, it is possible that as he walked up the -hill with Lida Beecher he had no more thought of killing her than of -committing suicide. Indeed, it is much more plausible from all we know of -imbeciles, and of boys of his physical development, that there was an -entirely different purpose. That purpose was probably sexual. The writer -is not alone in this thought. Hardly any of the persons with whom he has -talked of this crime has failed to ask the question, "Was there any sexual -offense in the matter?" The absence of any evidence of assault of this -character has been a surprise to many persons; but it again is no surprise -when we remember that Jean is an imbecile; we know also that he is a -masturbator. - -While the writer has no theory to put forth in regard to this crime, yet, -for the sake of clearness and as an illustration of the imbecile type, let -us assume a plausible hypothesis; that is to say, an hypothesis which may -fit the case and is entirely plausible from the standpoint of imbecility. - -Jean was sixteen years old, an age when sexual passion is strong. It is -the middle of the great adolescent period. The new physiological function -of sex is established, great psychic changes have occurred. The boy is -dreaming dreams, the imagination is active. In the normal boy this means -the evolution of ideals, ambitions, moral and religious ideas, attention -to dress and appearance, interest in the opposite sex. In the case of the -morally well-endowed boy, the sex impulses which have strengthened with -the development of the physical potency find their outlet in a kind of -vicarious functioning in the shape of polite and friendly association with -his girl friends, in chivalric attentions and devotions, with more or less -definite plans for future marriage and parenthood. In those with little or -no moral principle we see the impulse leaping over the social conventions -and attaining complete sexual gratification illegally. - -With the imbecile the case is different. The fires of sexual passion may -burn as vigorously as in the better endowed, but he lacks both the power -of control and the courage and ingenuity to overcome the social barriers. -He masturbates. This banks the fires somewhat and requires no courage. If -stimulated by association with girls, he makes crude and imbecilic plans -for conquest. Lacking moral development and ignorant of the more subtle -means of accomplishing his purpose, he may resort to violence in some one -of the many possible ways. Often he is not conscious of what it is that is -driving him and hence does not know where satisfaction lies. Under these -conditions his violence may show no outward signs of being sexual. It may -show every degree from rough horseplay with girls, such as pushing, -pulling, grabbing hat, cloak, or other articles of dress, bantering, -teasing, and other forms of personal contact, up to physical injury, -torture, and even murder. - -Volumes could be written--indeed volumes have been written--showing the -tremendous force of this sex impulse at this age, and the multifarious -ways in which it expresses itself--many of them not showing any of the -signs that are usually considered as indicating a sexual disturbance. That -is to say, such acts are, by the uninitiated, not considered sex acts at -all. One incident of this kind is in evidence. "At one time Jean took two -little girls to a piece of woods and started to take their clothes off, -and when asked why he did it, said he was going to play Indian and that -Indians were naked." Dismissing the possibility that his explanation was -invented to conceal a definitely conscious sexual impulse, let us admit -that he gave his real reason for the act. Still it is clear to all who are -familiar with sex psychology that the subconscious reason for playing -Indian in that way was a sexual one. The procedure also shows a lack of -judgment and appreciation of the proprieties which argues strongly for -mental deficiency--especially as he was then between ten and twelve years -old. (For further items the reader is referred to pp. 113-120 of the -Appendix, where the hypothetical questions have summed up the testimony.) - -The imbecile is a coward. Jean Gianini is an imbecile. Unconsciously -impelled by that strong instinct he seeks the company of Lida Beecher. As -a matter of fact her friend, Miss Clark, testified that Miss Beecher had -been annoyed at his attentions. He contrives an excuse to get her to come -up to his house; when he reaches the house, he makes another excuse to get -her to go farther, not, as generally believed, with the purpose of -murdering her; perhaps only blindly following that instinct of sex and -desiring to be in her company; more probably with the half-conscious -purpose of satisfying his passion if he could find a suitable -opportunity. They walk on; where they were going or how far they would -have walked no one will ever know, but there came a time when for some -reason her suspicions were aroused, or at least her common sense told her -that it was foolish to go farther. Of course we have nothing but Jean's -statement, which may be true or may be false; instead of the simple -statement that she thought she would go back as she saw no light, there -may, for all we know, have been a strong argument; he may have made -improper proposals which she resented; this led to blows with the fatal -result. We have no means of knowing what actually took place at that spot. -But even taking Jean's own account, when she remarked that "she thought -she would not go any further," he saw that his plan was frustrated. Then -he struck her with the monkey wrench which he happened to have in his -pocket--for what purpose no one knows. Having struck her once, it was easy -to strike the second and the third time. It was only natural for an -imbecile to keep at it,--"finish the job" as he expressed it. According to -the evidence he struck her with the knife approximately twenty-four times, -finally hitting the jugular vein in the neck, as a result of which she -probably bled to death. - -As already stated, the writer has no desire to advance this as _the -theory_ of the deed. But if Jean is an imbecile, this theory is fully as -good as that upon which the prosecution worked, and it eliminates entirely -all necessity for elaborate planning. Up to this point we have shown that -the fact of a confession and the character of the confession, both -difficult to explain on the basis that Jean is a normal boy of sixteen, -are entirely clear and perfectly characteristic of a high-grade imbecile. - -Let us look now at his actions immediately after the deed. It is in -evidence that Jean said he took the murdered girl by the foot because -there was no blood there and he did not want to get blood on his hands for -fear they would take his finger prints. Holding her by the foot, he -dragged her out of the road behind some bushes and left her in the snow. -He then went back into the road, making new tracks, which he made no -effort to cover. Nor did he make any effort to cover the old tracks or the -blood spots that were left along in the snow. Neither did he make any -attempt to hide the hat nor the umbrella nor the broken comb which were -left in the road; his care to take her by the foot where there was no -blood is cited as evidence of forethought and judgment; but what shall we -say of his failure to cover up his tracks when it was easy to have done -so! - -Again we must remind the reader that we have nothing but the boy's -testimony as to the fact that he took her by the foot or to explain why he -took her by the foot, but in accepting his testimony as true there is -nothing incompatible with high-grade imbecility. - -The one peculiar thing about Jean is that he has read more than most -imbeciles even of this high grade. But this peculiarity does not save him -from being an imbecile, since there are cases of imbeciles who have read -as much or even more than he. Furthermore, there is plenty of evidence in -the case that Jean's interest in reading has gone along the line, -childlike, of crime. The various experts who examined him told of his -talking about the case of the New York gunmen, of the Pomeroy case, of a -murder in the South, and possibly others. He inquired about Mahoney, the -would-be assassin of Mayor Mitchell. In connection with these crimes his -reading of finger prints had made the same impression upon him that it -would have upon any boy. He remembered what he had read and perhaps acted -upon it, at least talked about it when the opportunity came, and pretended -that he considered it in his action. - -It needs no argument to show that all the rest of his conduct in leaving -things as he did was imbecilic. Even many a high-grade imbecile would have -been much more thoughtful and more careful to cover up the tracks in the -snow. That Jean did not do so is in itself almost an unanswerable argument -that he was an imbecile. - -He then went home, and having washed the knife in the snow, put it in the -pantry drawer. No evidence was produced, so far as the writer knows, to -prove that this was the fact; we do not know whether the knife belonged in -the pantry drawer and he put it back, or whether it belonged in his pocket -and when he was through, he put it back in his pocket or put it somewhere -else. Again, assuming that he told the truth, he certainly ran the risk of -being questioned as to what he had been doing with the knife. He then went -on an errand, and, according to his statement, went down to the railroad, -hoping to jump a freight train. When he found the freight had gone, he -hurried back home. These actions according to the prosecution indicate -careful planning and a desire to get away; realizing the enormity of his -deed he wanted to get out of town. Surely no normal youth of sixteen would -have failed to get out of town even though he had missed the freight -train; but his conduct is perfectly characteristic of an imbecile. One -simple thought having failed to materialize, without planning further he -goes back home, acts as no one but an imbecile could under such -circumstances,--goes to bed, sleeps soundly, gets up the next morning, and -goes to work. Then he makes another effort to get away. But how crude an -effort it is. He walks quietly along the railroad track and, as already -stated, makes no attempt to hide, but passes the trackman and goes into -the station at Newport. When he meets a person from his own town, comes -promptly and quietly back home. Surely an act much more befitting an -imbecile than a normal boy of sixteen! - -The writer was asked upon the stand whether these incidents indicated to -his mind that Jean had intelligence and had planned this thing carefully. -The answer was emphatically, "No." At every turn they indicate an -imbecile. We could cite many instances of imbeciles in our institutions -who have done things of exactly the same character. Our high-grade boys -frequently plan to run away, and often their plans are much more -elaborately conceived and much better carried out than Jean's was. - -In speaking of the confession it may be noted also that not infrequently -our boys when they have made a plan to run away cannot keep it until they -can carry it out, but make a confession. They go to some attendant or -officer and, without any compulsion, actually tell of their plan. In this -way a great many times their purposes are frustrated. When two boys plan -to run away, it is rare indeed if they carry out their scheme; it is -almost certain that one of them will confess to somebody. - -Jean manifested throughout that love of display and notoriety, that -longing to be the center of observation and talk, which is so -characteristic of imbeciles. He asked the alienists who were examining him -if his picture would be in the paper and what the people were saying about -him. According to the testimony of the experts who examined him in jail, -every occasion on which he was examined was regarded by Jean with -pleasure, and his only thought apparently was that he was the center of -observation. Instead of showing some realization of his crime and that he -was exerting himself to make an appearance that would be favorable to his -case, all the evidence was of the opposite character. None of the -witnesses for the prosecution were able to hide the fact that he was -light-hearted and frivolous, and, in a word, "showing off," throughout -these various examinations. - -Throughout the whole time of the writer's examination of him Jean never -for one moment evidenced by word or action any thought as to how his -conduct or his answers to questions would affect his case. As was pointed -out by the defense, quite in keeping with his mentality was his statement -to the experts employed by the prosecution, that he had been told not to -talk, in spite of which he talked incessantly and told everything that -they wanted. The fact of the matter was that his desire to show off so far -overcame any thought of self-preservation that he talked and acted freely -in spite of his lawyer's caution that he should not answer questions. His -conduct in the court room throughout the trial was that of an imbecile, of -a child, who had no realization of the predicament that he was in and no -purpose to make a good appearance. He was in the limelight and he enjoyed -it. Even when the most gruesome details of his deed were being recited, he -evidenced no feeling of horror or sorrow or fear; on the contrary he was -indifferent, and frequently even laughed at the incidents that were -related. He showed no excitement after he got home that evening; he slept -well. His only comment on his prison cell, which to a normal person would -have been loathsome in the extreme, was that it was better than St. -Vincent's, where he had been at school. Even when the experts introduced -by his own counsel were examining him, and when, had he been intelligent, -he should have known that it was to his advantage to make the best -possible appearance, to give them every possible help, yet when his dinner -was brought into his cell, he could think of nothing but eating and -ignored the people who had been sent to help him. As one of the experts -testified, "As between soup and safety, Jean prefers soup." - -These facts and circumstances alone are enough to satisfy any person who -is familiar with the character of the inmates of our institutions for the -feeble-minded that Jean was an imbecile and really belonged in an -institution. But besides these circumstances several witnesses were -introduced who testified to the curious and childish actions of Jean in -his past history. Quite recently, he had tried to catch pigeons by putting -salt on their tails. The prosecuting attorney called attention to the fact -that almost every man remembers going through the same experience, but it -may be safely asserted that this is not done by any normal boy after the -age of twelve. It is a childish act, and indicates a mentality of less -than eleven. - -Peter Black, the village blacksmith, testified that some one sent Jean to -him one day for "strap oil"; that he carried out the joke by slapping -Jean with a strap, but was unable to make him see that the whole thing was -a joke. He teased and bullied the other children in a way that is -characteristic of the high-grade imbecile. Mrs. Anna Newman testified that -he was a restless boy, and that sometimes he would answer her questions -and sometimes not. Every superintendent of an institution for the -feeble-minded would instantly recognize these characteristics as common -among his inmates. The reader will find more of these incidents in the -Appendix, pp. 113-119. - -One of the unique features, so far as court procedure is concerned, was -the introduction into the case, of examinations by means of the -Binet-Simon Measuring Scale of Intelligence. The writer's examination of -Jean consisted largely of the use of these tests, and as a result he -estimated his mentality at approximately ten years of age. It was somewhat -difficult to estimate his mentality with the usual exactness since others -had already used the tests, and it was impossible to say how much Jean had -learned from his previous examinations. As a matter of fact, in some cases -at least, he had not profited by the experiences which should have helped -him greatly had he been a normal boy. For example, one of the tests is to -draw from memory a diagram which he has been allowed to study for ten -seconds. It is clear that if one were given this test two or three times, -at the last trial he should have a pretty good idea of it and be able to -draw it correctly. Although the writer's use of this test was in the last -of the series of those who tested him, yet he did not succeed in drawing -it. This is usually drawn by a child of ten years. When asked to repeat a -certain sentence, he replied, "Oh, I have been asked that a hundred -times." But in spite of the fact that he had heard it several times he -failed to remember it, and yet this sentence is generally remembered by a -child of twelve. - -This is not the place nor is it necessary to discuss the Binet tests -themselves. A word, however, may be said as to why the experts for the -prosecution did not get the same results with the tests that those of the -defense obtained. Also it seems necessary to make a brief explanation, -since the prosecuting attorney failed so markedly to understand the tests -in spite of the fact that he had had the instruction of one of his own -experts who used them. One of the prosecution's experts told the writer -that he did not ask Jean any questions except those in the twelve-year -list, and he "seemed to do those satisfactorily." There are two sources of -error in this. In the first place, Jean's failures were not only in the -twelve-year, but in the eleven and ten. Secondly, if Jean seemed to do the -twelve-year tests correctly, it could only have been because they were -wrongly used. The Binet Scale is not, as the prosecutor insisted on -stating, an "arbitrary system." It is not a set of questions to which -there are definite and fixed answers that are correct, and from which any -deviation is marked a failure. Nor is it a set of questions the answers to -which can be judged as to their correctness by the so-called "common -sense" of the investigator. To illustrate: Jean was asked to give the -definition of the word "charity"; he said, "Charity is giving." The -prosecuting attorney insisted that this was a correct answer, because, as -he said, "Charity _is_ giving." This is mere sophistry. It is not a -question as to whether "charity is giving" is a theoretically correct -answer to the question; the important point is, that such an answer is -_not the kind of answer that is given by twelve-year-old children_. This -has been proved by asking hundreds of twelve-year-old children to define -"charity." Practically 75 per cent of such children include not only the -idea of giving, but the other necessary idea of giving to some one who is -in need. The answer, "Charity is giving," is characteristic not of -twelve-year mentality, but of something under that,--ten or less. So -throughout the system the scale must not be judged by what seem correct or -incorrect answers to the inexperienced adult. The value of an answer can -only be known by knowing the character of answers that are given by -children of the various ages. The point is not always that this answer is -or is not technically correct, but that it is not the kind of answer which -a child of the specified age should give. Therefore, it indicates that he -is not of that age, but below it. This was the error into which the -prosecutor and his alienists had fallen in their use of the tests in the -case of Jean Gianini. - -Jean's school record was the serious stumblingblock to many persons who, -from the facts, notably those already cited, were inclined to think that -possibly he was an imbecile. To many of these persons that record seemed -to indicate a normal boy. The teachers and the principal testified that he -did his work well through the fifth grade and got excellent marks, even -getting 100 per cent in some studies. They lost sight, however, of the -fact that Jean was fourteen or fifteen years of age and in a grade which -he should have been in at eleven, namely, the fifth. - -As a matter of fact, Jean's school experience, when taken as a whole, is -most confirmatory of his imbecile grade. It was proved in court, but not -fully appreciated, that Jean got along well through the fifth grade, but -_when he went into the sixth grade, he failed_. - -Professor Robinson testified that when Jean was transferred to Miss -Beecher's room, his troubles began. The boy did not get along nearly so -well after the change and he dropped back in his studies. His teacher was -obliged to report him a number of times to the principal, who twice -whipped him with a piece of rubber hose. Failing to make his studies under -the new standard, he was made to occupy a special seat apart from the -other pupils, at the instance, if not the actual order, of Miss Beecher. - -The witness further testified that in the last days of his school life -Jean dropped, _to a very marked degree_, in his standing in his studies. -This falling off in Jean's ability was _attributed to his teacher_. As a -matter of fact, the falling off was due to the fact that Jean had _reached -his limit_ in the fifth grade. He attained to that height because of a -good memory, which is characteristic of many imbeciles and is in no way -indicative of normal intelligence. It is also very common for children of -this type to get through the fifth grade and fail in the sixth. They have -mentality enough to carry them to that point, but not farther. - -It is a satisfaction to realize that Jean's failure in school with Miss -Beecher is in no way due to the inefficiency of his unfortunate victim. It -was due simply and solely to the fact that Jean was an imbecile and had -reached his limit. These two facts of a good memory and of good school -work in a few school grades have deceived many people as to the -intelligence of a child. - -It should be remembered that many imbeciles do not show their defect until -at the age of eleven or twelve when they are in the fifth or sixth grade. - -One of the witnesses for the prosecution said that he considered that Jean -was normal and that his apparent backwardness was due to lack of -schooling. This is a common error in all such cases. If asked why a boy -should be backward through lack of schooling when he has been to school -and has had every opportunity to learn, it is common again to fall back -upon the idea that he has not studied. He has been a wild, wayward boy, -playing truant, more or less, and has never applied himself, therefore he -is behind his grade and is dull and backward. Again, while not denying -that there are children of perfectly normal intelligence who seem to be -misfits in school or who seem more interested in other things than in -their school work, or children who will not study because of dislike for -the teacher or for various other reasons, yet the reader must be reminded -that a study of the high-grade defective shows that he is continually -being confused with these very exceptional children who have the ability -but who do not study. In other words, when a boy does not get along in -school, even though it is evident that he does not study, the strong -probability is that he does not study because he has not mind enough to -appreciate the work, to understand it, hence to have that highest of all -incentives to work, success. The fact that the majority of boys do get -their lessons and get along well in school should be a strong argument -that there is something seriously wrong with those that do not succeed. - -It may further be asked: How does the fact that the boy has not succeeded -in school affect his examination by the Binet test? Experience has shown -that the test is affected but slightly. In other words, the mind develops -regardless of school and school training. As long as we ask only such -questions as call for a general intelligence and do not call for specific -school instruction we are reasonably independent of such instruction. As a -matter of fact, nearly all of the questions of the Binet Scale are free -from this objection. Some of them, it is true, are a little helped if the -child has been to school and correspondingly hard if the child has not -been to school; but, on the whole, they do not affect the final rating to -any serious extent. This has been proven repeatedly by normal children -who, on account of sickness or for other reasons, have not been to school, -and yet can pass the Binet tests for their own age. - -We must now turn to the question of cause. If we can account for Jean -Gianini's imbecility, it will be much easier to believe in it. Much has -been written on the subject of the causes of feeble-mindedness. Certain -fundamental principles have been agreed upon. It is now known that at -least 66 per cent of feeble-mindedness is hereditary; that is to say, the -individual is feeble-minded because he comes from stock in which -feeble-mindedness exists. There is another group in which there are -practically no other feeble-minded persons in the family or among the -ancestors so far as can be discovered, but there is, on the other hand, a -great deal of bad physical history; there may be epilepsy, alcoholism, -insanity, or other serious physical disturbances. Finally, we have a group -in which there is history of some accident, either to the child at the -time of birth or after birth, or to the mother previous to the birth of -the child. - -In Jean's case we have no history of accident or injury to the child -himself. The pedigree or family tree has not been worked up and we do not -know what there may be. It was in evidence that the grandfather was born -on the south side of the Alps; and there was some slight attempt to imply, -since cretinism is very common in that region, that possibly there was -some cretinous condition in the family. All this is not impossible; and if -it existed in the grandfather or even in the great-grandfather, such a -condition might reappear in the grandson in the form of imbecility; yet in -view of our present knowledge, or rather our lack of knowledge on this -subject, this line of argument is too vague to enable us to draw any -conclusions. - -The fact that the mother of Jean was insane and alcoholic justly had great -weight. Before her first child was born she broke down mentally and was -probably never "right" after that time. The first child lived to the age -of seven and from the description was clearly an idiot. The second child -is entirely normal. Jean, who is the third child, did not talk until he -was five years old. - -Our general studies have not yet gone far enough, and certainly our study -of this particular family is far from sufficient, to enable us to decide -whether this is a matter of heredity or whether we shall say that Jean's -condition as well as that of the first child is traceable directly to the -mother's insanity or to her alcoholism. - -For the present purpose, of course, it does not matter. We see in these -facts, whether we regard them as causes or merely as symptoms of a deeper -lying cause, sufficient reason for Jean's being an imbecile. There is -every reason to believe that Jean Gianini is an imbecile of high grade. -The next important question that arises is a legal one of whether, being -an imbecile of high grade, he knew the nature and quality of his act and -that it was wrong. - -Before discussing this let us consider two other cases--after which we may -discuss the general proposition of whether high-grade imbeciles know right -and wrong. - - - - -CHAPTER II - -THE CASE OF ROLAND PENNINGTON - - -On November 7th, 1913, Lewis S. Pinkerton, the manager of a certain farm -in Delaware County, Pennsylvania, suddenly disappeared. As it seemed -probable that he was the victim of foul play the detectives set to work -and in due time arrested George March, the dairyman on the farm, and -Roland Pennington, a farm laborer. Suspicion was directed to these two men -largely through the testimony of the woman who was supposed to be the -so-called common-law wife of March. At his trial it was shown that he had -another wife living, and consequently she did not even have that as a -claim upon him. This woman had heard groanings from the direction of the -barn, and later when March came into the house, had noticed blood on the -towel and on his clothing. - -The body of the lost man could not be found. After being taken to prison -March accused Pennington of the crime, admitting that after the deed was -done he assisted young Pennington in disposing of the body, because, as -he said, he was afraid that he himself would be accused of the crime. -Having made this admission, he took the officers to a wood some miles away -where the body had been buried in a rude, shallow grave. - -[Illustration: ROLAND PENNINGTON. - -(By permission of "Alienist and Neurologist.")] - -When Pennington was confronted with March's accusation, he too made a -confession, which, however, implicated March quite as much as himself. - -March was tried in Delaware County, and convicted of murder in the first -degree. The defense was, in accordance with the above statement, "that he -had nothing to do with the crime itself, merely assisted in disposing of -the body." - -Pennington's trial occurred in June, 1914, when he also was convicted of -murder in the first degree. The defense in this case was imbecility and -irresponsibility. Although the jury did not accept this view, the case is -a most interesting one from the standpoint of criminal imbecility. - -The story of the crime is probably best given in Pennington's own words, -since his confession has all the marks of truthfulness and was evidently -accepted by the jury in the March case. It was almost exclusively on the -strength of this testimony that March was convicted. - - _Statement of Roland Pennington as to the Pinkerton Homicide_ - - I, Roland Pennington, being duly sworn according to law depose as - follows:-- - - I went to work at the Wilson farm about October 7th; I boarded with - George March and his wife; George worked on the farm too; he was the - butter maker; from the time I went to the farm, George was always kind - and good to me; George had charge over me when Lew was not there; - George would loan me money when I wanted any, and several times took - me to Gradyville with him, when he would take me over to the hotel and - treat me to a drink; about a week or two after I went to the farm, - George had a fight with his wife at the dinner table; George told her - she was too intimate with Lew and a painter, who was working there; - she talked back to George and George threw things at her; after dinner - George told me that what he said to his wife was true; that was the - first I knew about George's trouble with his wife; after that George - talked to me about his wife all the time; once I told George I would - like to go West; one day George said he was going to take the painter - to law, and get some money from him, and if I would stick by him, he - would divide up with me and take me West. Afterwards he talked more - about Lew and his wife; one day he said if it didn't stop, he would - break up, sell the furniture, and go West, and that if I would save my - money to help out, he would take me with him; one day George's wife - was away all day, Lew was away that day too; they came home about the - same time; George told me afterwards that he accused his wife of being - with Lew; that night Lew came in the cow stable while George and I - were milking; they had some words, but I could not hear what they - said; George looked pretty mad and Lew was excited; George told me - afterwards that he had accused Lew of being with his wife and Lew - denied it; he also said it was as much as he could do to keep from - getting up and smashing Lew in the face. On several different times - when we were working together, George said that if Lew didn't stop - going with his wife, he would put a stop to it; George had charge over - me when Lew was not at the farm, and one time when I asked Lew for - some money to buy shoes, he would only give me two dollars, and gave - five dollars to George to buy shoes for me; after the first of - November, George said, "Lew hasn't paid me. I wonder why"; he said - this on two or three different occasions; on Thursday, November 6th, - George came to me and said, "Well, Rol, Lew paid me to-day." I said, - "Did he?" and he says, "Yes, he had a big bunch of money on him. Did - you ever see a thousand dollar bill?" I said, "No, I never saw one." - He says, "Well, neither did I. What figures ought a thousand dollar - bill have on it?" I says, "I don't know. A thousand is one and three - noughts after it." He says, "Well, I asked the Mrs. about it, and if - that's right he had one of them on him." This took place Thursday - afternoon about half past three in the stable. That night about - quarter after five while George and I were separating the milk down in - the milk house, George said, "How would you like to have that bunch of - money Lew's got on him?" I don't remember saying anything to that. - There was nothing more said about it that day. The next morning, - George and I were separating the milk down at the milk house before - breakfast, and George said, "Well, Lew will have that bunch of money - on him to-day. Let's get it." I said, "What do you mean?" He says, - "Why, do away with him." I says, "What? Kill him?" He says, "Yes." I - says, "No. I won't kill him." He says, "Well, you start it and I'll - finish it. I got a blackjack up at the house, I used one time myself - to knock a man in the head with out West, to get seventy-five dollars - from him to come East on." He said he was in a bank in the West and - saw this man get the money--the seventy-five dollars--and when the man - came out, he managed to get a ride with him, and while they were going - along the road, he hit the man in the head and knocked him out, and - went on his way. I didn't say anything. - - That afternoon, about three o'clock, George came to me in the milk - house, while we were getting the milk buckets and cans ready to take - to the barn, and handed me the blackjack and said, "Here's the - blackjack; you can do it with that." I put it in my pocket. We then - went to the barn. From then up to about five o'clock, while we were - working about the barn, George kept saying to me, "Don't lose your - nerve. The first chance you get after the workmen are gone, get him." - Several times he said, "Don't miss your chance--Don't forget." Lew was - away that afternoon. He came home while George and I were milking. - - After we finished milking, we took the milk down to the milk house; - then I went back to the barn to feed the horses. While I was feeding - them, George came up from the milk house to feed the calf. I generally - fed the calf. George seldom did it. In feeding the horse, I had to - carry hay around from the old horse stable to the new one. In going - around for some hay, I met George right outside the old horse stable - door. He said, "Lew will be around here pretty soon. You can get him - then." After I had finished feeding the horses, I took the fork over - to the old stable. As I was doing so, Lew went in the new stable. I - met George at the stable door when I came out from putting the fork - away. George said, "He's in the new horse stable; go get him." I went - in and told Lew there was a nail in the last stall next to the box - stall and that he had better look at it. He went up to look at it, and - while looking at the place I told him, I struck him on the head with - the blackjack. He turned part way around, threw up his arm, and said, - "Hey, what are you doing?" I struck at him some more; he rushed at me - and we clinched. This happened in the stall alongside a horse. After - we clinched we got out into the passageway, back of the horses. Lew - soon got the blackjack away from me. As we came out into the - passageway, I think I saw George near the door. He afterwards told me - he heard when I hit Lew first and that he came in, and that while Lew - and I were wrestling, Lew made a grab for him and knocked his glasses - off. Lew and I tussled quite a while up and down the passage back of - the horses; Lew was hollering all the time; I think we went down - once, got up again, and went down again, with Lew on top of me; then I - got on top of him. At about that time he called for George; George - must have gone out in the meantime, for when Lew called for him, I - remember the door being opened and George coming in. He came up and - asked Lew what was the matter, whether the horses kicked him. Lew - said, "Yes, yes, help me." George stooped over and whispered to me, - "Where is the blackjack?" I told him Lew had it. Lew then said, - "George, you are no kind of a man." Whether George got the blackjack - or not I don't know. He then went around by Lew's head and started - kicking. I had my hand on Lew's head and the first kick George made he - kicked my knuckles. I then left go of Lew and got up. While getting up - George was continuing to kick him in the head. After continuing to - kick him in the head after I got up, George went around and kicked and - stamped Lew in the side. Then he stopped--and said as though to - himself--"Which side is his heart on?" Then he started to kick him on - the other side. After a while he stopped. I don't remember whether he - said anything to me or not. Anyhow, George took him by the head and - shoulders and I by the feet and we carried him into the box stall. - Then George went up to the house for a lantern. I waited for him at - the stable door. He came down with the lantern and went in the box - stall, felt Lew's heart, and then stood up and stamped him some more; - then he searched him. - - In tussling with Lew I had gotten blood on my coat, pants, and shirt. - After George searched Lew, we left the stable, and I asked George - where the overalls were that the whitewasher had worn. George said he - thought they were up at the wagon house. We went there, but could not - find them. George did find an old pair of Lew's pants and a shirt. He - gave them to me and I put them on. While I was putting them on George - went in the house. I went in later, went to my room, put on another - coat, and went down to supper. George finished his supper first; got - up and told the Mrs. he was going to Gradyville after some sulphur for - the pigs. He then asked me if I wanted to go along with him. I said I - would. Then we went to the barn; George got two bags in the old horse - stable and put one inside the other. Then we went in the new horse - stable where Lew was. George set the lantern down and told me to take - hold of his arms and lift his head and shoulders. I did so, and George - slipped the two bags over Lew's head and body. Then George tied a - cloth around the neck overtop the bags. Then he told me to hitch the - horse Dick to the milk wagon. I did so. Then I returned to the new - horse stable. George then said we will carry him up to the wagon. I - had left it in front of the wagon house at the barn. George said, "We - had better take him up through the barn." George took him by the head - and shoulders and I by the feet. We carried him up through the barn. - When we got to the wagon, George got some bags and put them on the - floor of the wagon. Then we put the body in. Then we got a blanket and - threw it over the body. Then George got two shovels and a grubbing - hoe, and put them in the wagon. Then we drove away. - - After we got started George said we would bury the body in - Lauterback's woods. When we reached the road that he said led up to - that woods, he said it was too near home and kept on driving. After - driving for a long time we came to a pair of bars. He pulled up there - and said, "That wood over there looks pretty good." Then he drove on a - little piece further. Then he said we better go back to that woods. - Then we turned around and went back to the bars. George got out there, - handed me the lines, and he took down the bars. I drove in, he put in - the bars, and led the way, and I drove on across a field, till we came - to another pair of bars. He took them out and then led the way across - the fields to the woods. When we got there, George picked out a place; - said he thought it would be an all right place. Then we dug the grave. - Then we went back to the wagon, got the body, put it in the grave, and - covered it up. Then we returned home. - - That night George suggested that we clean up the marks in the morning. - The next morning we got up early and cleaned up the marks on the floor - and washed the walls. George said to make sure there would be no marks - on the wall it would be better to whitewash it. He said he would do - that and for me to go to other work, so I started to haul stone. - George also said to take my clothes to the milk house and burn them. I - did take them there on Saturday morning. George was there and I gave - them to him. He said he would burn them. On Saturday, George came to - me and gave me seven dollars and a watch and a ring which he got off - of Lew when he searched him. He told me he had only gotten fourteen - dollars and five cents and to pawn the watch and chuck the ring. I - threw the ring away and took the watch to Philadelphia and pawned it - at Carver Reeds on Market Street near Fifteenth Street for four - dollars. When I saw George the next morning, Sunday, I gave him the - pawn ticket and said I would give him two dollars when I got the - change. He said never mind that. - - (_Signed_) ROLAND PENNINGTON. - -Here again is a crime so abhorrent in its details that it is unbelievable. -There is no excuse for it, no adequate motive, no justification whatever -so far as the boy, Pennington, is concerned. - -For March, it is easy to believe, as the jury evidently did believe, that -he was actuated by what might be called an insane jealousy of the woman -with whom he was living. We are familiar with the lengths to which such -jealousy can lead a man. But why Pennington allowed himself to be made the -dupe of this jealous man cannot be explained; it is absolutely -incomprehensible on any theory that assumes that he is a normal boy of -nineteen years. - -It was in accordance with this feeling that some one raised the inquiry as -to whether the boy was possibly a mental defective. This question having -arisen, the writer was asked to examine him and give an opinion as to -whether or not he was normal. - -Accordingly the examination was made in the Delaware County jail in Media; -this showed that the boy had a mentality of about eleven years according -to the Binet Scale. He could not do any of the tests for age twelve and -failed on some of those in ten and eleven. This indicated an intelligence -scarcely up to eleven. - -Further examination by other methods, the circumstances of his life, his -appearance, and his school history, all tended to corroborate this view. -The boy was nineteen years old when he committed the crime; two years -before he had left Westtown Boarding School, after an attendance there of -two and a half years. When he entered the school, the teachers graded him -as of a capacity equivalent to the fifth grade in public school; he, -therefore, began sixth-grade work. He never got out of that grade. For two -and a half years he studied and tried to pass. He was absolutely unable to -do sixth-grade work. Sixth-grade work, it will be remembered, is about the -grade for a twelve-year-old normal boy; thus we have a striking agreement -between his school experience and his Binet tests. By the Binet test he is -eleven; in school he cannot do twelve-year work! - -Asked what he had done since he left the school, he said he had done "a -good many things." Asked where he had worked, he said he did not remember -all of the places. As a matter of fact, he had had exactly the career that -the high-grade imbecile usually has out in the world. He either gets -discharged from his positions because of incompetency or he leaves -because of his nomadic tendencies. The imbecile rarely stays long in a -place if free to move. - -In addition to the above, the reader will see many evidences of -childishness in his confession. He talks like a child; he alludes to -George March as a child would; he says, "He has charge over me"--"He was -kind and good to me; he used to take me to Gradyville," etc. Even -Pinkerton gave the money to March to buy shoes for Pennington. Again -Pennington says, "George said he was going West and he would _take me with -him_." One cannot imagine a nineteen-year-old youth, or even a -fifteen-year-old, talking in this way. By the time a boy reaches the -latter age, he is in his own mind the equal of anybody. He would not say, -"George took me." He would say, "We went." He would say, "I got along all -right with George," or some other expression whereby he would assert his -own manhood and not take the rle of a child. - -While in jail he showed no realization of the seriousness of his -situation; showed no remorse for his deed; took no interest in his case. -For example, he was told by his lawyer not to allow himself to be examined -by any doctors without sending for his counsel; in spite of this warning -he allowed himself to be examined by four physicians at one time and by -two at another, and never mentioned the matter to his counsel even after -it was done. - -In the confession made to the prosecuting attorney one notices, as in the -one we have quoted, that he appears simple and innocent; answers the -questions often in terms of the questioner instead of by a simple "Yes" or -"No," which would be natural for a normal young man; he is uncertain and -hesitates; he says, "I think," in a great many cases where it was strongly -to his advantage to speak positively. - -After the deed was committed he _took no care to remove the evidence_; -everything that was done in that connection was done at the _suggestion of -George March_. All the way through this part of the confession it -reads--"He led, I followed," "I did as he told me." - -Having satisfied ourselves that Roland Pennington is a high-grade -imbecile, the next question is, even as an imbecile, why did he do this -deed. - -In the case of Jean Gianini we found that it was for revenge of a fancied -wrong, that is, according to his own statement. If not that, it may have -been a sexual matter. In this case neither motive applies, and we have -only two possible theories. The theory of the state was that it was for -robbery. Indeed, Roland himself seems to admit that this was the motive. -But this again is only a part of his imbecility. He was given a leading -question by the prosecution and was weak-minded enough to say, "Yes." - -As a matter of fact one finds it very hard to get any evidence from the -whole situation that he really was lead by cupidity. There is no evidence -of any elaborate plans in regard to money, either as to getting it or as -to what was to be done with it when he got it. March had talked about a -thousand-dollar bill, and asked Pennington how he would like to have "that -bunch of money." Pennington says he does not remember saying anything in -reply. This does not look as though it aroused any great emotion in him. -Later March said--referring to the money Pinkerton was supposed to have -"on him"--"Let's get it." Pennington asks, "What do you mean?" He is -clearly thinking less of the money than of what he begins to dimly -understand they are to do. When he understands that they are to kill him, -he says distinctly, "No. I won't kill him." Never again is the subject of -money mentioned. In all March's urging him to do the deed he never says, -"Remember the money," or alludes to money in any way. - -Perhaps we are begging the question. If Pennington were really intelligent -and shrewd, he would not say anything in his confession that would supply -a motive for the crime. Not only does the whole confession give ample -evidence that he was not sufficiently intelligent to protect himself in -this way, but the conclusion of the matter shows clearly that it was of -practically no importance to him. After the deed, March gave him seven -dollars! He said, "I thought there was more." That is all. He did not -insist or complain. He accepted it calmly and without protest. He even -proposed to give March half of the four dollars received for the pawned -watch. Imagine a nineteen-year-old boy with full consciousness and -responsibility killing a man for his money and being so complacent over -receiving seven dollars! The theory is not convincing. Even the -prosecution, whose whole case depended upon showing a motive, never -pretended that Pennington made any stir because the amount was so small. - -There is not the slightest evidence, external or internal, that the idea -of getting money played any part in Pennington's share of the crime. - -Why then did he consent to begin the matter which George was to finish? It -is clearly a case of suggestion. A suggestion, it is true, which never -would have worked with a normal nineteen-year-old youth. With this -weak-minded boy it is easily understandable. As we study the confession we -discover that George March, either consciously or more likely -unconsciously, used suggestion most adroitly. Undoubtedly he had learned, -through association with Roland for six weeks, that this boy was very -simple-minded and easily led. Having reasons of his own for desiring to -get rid of Lewis Pinkerton, he first suggests the matter of money, hoping -to appeal to Roland's cupidity. It will be noticed that he nowhere uses -the word "murder" or "kill"; even the mild expression, "Make away with -him," he uses only once. When Roland at one time almost takes fright and -asks, "Do you mean kill him?" and he admits that he does and Roland says -he won't do that, the older man lulls him to sleep by the suggestion, -"Well, you begin and I'll finish it." - -March tells a story about a blackjack; then he brings the blackjack and -gives it to Roland, saying nothing except, "You can do it with that." -Roland is so weak-minded that he takes the blackjack and puts it in his -pocket. When the right time comes and the opportunity is near at hand, -March stations himself at a convenient place where he will see Roland as -he goes back and forth at his work, and for some little time he -constantly coaxes and dogs him, pouring into his ears a stream of -suggestion such as, "You will have a chance pretty soon"; "Don't forget"; -"Don't lose your nerve"; "Now you can get him"; "Now nail him." - -It is an interesting little point, possibly only a coincidence but -nevertheless a perfectly natural imbecilic association, that the one -seemingly original thing that the boy did in connection with the matter -was to invent a little trick in regard to the nail in the stall. It is -quite likely that even this was suggested by George's previous expression, -"Nail him." - -Even the blow itself does not seem to have been given with normal vigor; -having every advantage,--the victim bending over, Roland being behind him -and with a blackjack which is capable of thoroughly stunning, if not -killing at one blow,--he apparently did not strike with force enough to -even produce unconsciousness. His victim was able to talk and to struggle -for some minutes, until March, the companion in crime, came up and, as he -expressed it, "finished him." - -As to motive, then, we conclude that the defendant had none. He was acting -upon the suggestion of George March. Even the poor mind that he had, which -under other circumstances might possibly have rebelled at such a -suggestion, was lulled to sleep by this man of better intelligence for -whom he had been working and who he had learned to think was "good and -kind" and on whose judgment he thought he could rely. - -Since the Pennington case is typical of the way weak minds work under -control of normal minds, it will be worth while to analyze somewhat more -fully this idea of _suggestion_. - -How does suggestion work? Why does it indicate a weak mind and how does it -affect our ideas of responsibility? Let us see. - -We have already seen that Roland Pennington was under the control of -another mind; we do not mean that he was actually hypnotized--a -nonsensical plea that is sometimes brought into court cases. Roland -Pennington was a victim of suggestion. An illustration will make this -clear. - -If I were to take a city man to a third-rail electric road and ask him to -stand on one rail and put his hand on the third rail, he would resist the -suggestion, because there would immediately come into his mind visions of -himself burned to a crisp or instantly killed. But suppose I take a man -who has come from the rural districts and who never heard of third rails. -He has lived, let us assume, in my house and worked under my direction a -month and has come to regard me as a friend. We have worked together and -talked together; I take him out and say, "Touch that third rail." Will he -resist the suggestion? Not at all. Why not? What is the difference between -the two men? The first has ideas about third rails. His past experience -has filled his mind and memory with thoughts and with knowledge which -instantly come to consciousness when I suggest touching the third rail. -The other man has no such experience. He has known me long enough to have -some faith in me. In fact from the very nature of things he is in the -habit of doing what I tell him. I tell him to do this, and he does it. - -Coming back to the first case, one perhaps can conceive that the city man -and I might come upon the third rail under such conditions that he was not -thinking of it. Instead of saying "third rail" to him I might say, "My! -that rail is hot" and he would almost instinctively put his hand upon it -to verify my remark. If he survived and could talk about it afterwards, he -would say, "Of course I ought to have known and did know that was the -third rail, but I did not think." That is the way suggestion works. - -To illustrate still further, we may speak of hypnotism itself. All of the -wonders that are produced under hypnosis are to be explained in exactly -this way. The subject is so nearly asleep that nothing gets into his -consciousness except the ideas suggested by the operator. Accordingly he -is utterly unable to resist any suggestion that is given him. - -Now coming nearer to our problem, children are naturally very suggestible -because they have not the experiences, the ideas. One may easily believe -that an eleven-year-old child could be induced to touch the third rail. -Furthermore, authority plays an enormous rle with children. I might take -my ten-year-old boy out for a walk. He knows all about third rails and -would not touch one. But if I were to say to him, "Son, you can put your -hand on this, because there is no current on," he would probably obey -without question, because of his implicit trust in me. That confidence in -a superior, either in age, intelligence, or position, is one of the -characteristics of immature minds and one of the conditions that makes us -all suggestible. In the hypnotic terminology again, this is the being _en -rapport_. The hypnotized subject obeys the operator and no one else -because it is the operator with whom he is _en rapport_--in other words, -in whom he has confidence. - -Now let us come to the situation. It is perfectly clear that Roland -Pennington was under strong suggestion and that any vague concepts that he -might have had of the wrongfulness of murder or of killing a man were very -carefully allayed by the man who had the influence over him and who had -the motive for this homicide. - -The whole statement shows that Roland recognized George as a superior, as -one in authority over him and at the same time as a friend, as one on -whose word he could absolutely rely. It is a perfect picture of the child -following the man. - - - - -CHAPTER III - -THE CASE OF FRED TRONSON - - -Our third case is that of Fred Tronson of Portland, Oregon. What we know -of the history of Tronson is brief, but amply sufficient to prove that he -belongs to the group that we are considering. He had lived in Portland for -two years and in that time had held seven different positions as elevator -man. He was twenty-four years of age, when, in August, 1914, he met and -became infatuated with Emma Ulrich, a stenographer who worked in the same -establishment where he ran the elevator. He asked her to marry him, but -she refused. Later he was arrested for threatening her and was ordered to -leave town and not to annoy her any further. On November 16th of the same -year he waited for her outside of her home with two loaded revolvers. When -she stepped off the street car, he again asked her to marry him. She -became frightened and ran toward her home. He followed her, shooting as he -went. He followed her into her own house and there shot her down. On -Wednesday, December 9th, 1914, Tronson was tried and convicted of murder -in the second degree. Oregon having abolished the death penalty on -November 3d, only a second-degree verdict, which carries with it -imprisonment for life, could be returned. The trial was very brief, and -the jury returned within fifteen minutes. There was practically no -defense, except the claim on the part of Tronson's attorney that the man -was weak-minded and, therefore, in strict justice, should be placed in -custody, not in the penitentiary but in some other institution more suited -to his condition. He had been examined by two alienists and pronounced -sane, but of low mentality. He was also examined by a psychologist who -used a modification of the Binet tests, which showed him to have a -mentality of nine years. - -[Illustration: FRED TRONSON.] - -This rating obtained by the psychologist was confirmed in many ways. His -mother said he had never been able to hold a job more than two or three -months. He left school shortly before he was twenty, but we have no record -of what success he had or what grade he was in. His conduct at the trial -and before was that of an imbecile. When he was examined in the police -station, he seemed to be in constant fear that some one outside would do -him harm. When he had displayed uneasiness about an open window, the -detectives told how they closed it and sat between him and the window to -assure him that no one in the street would harm him. During the impaneling -of the jury and the taking of the testimony, Tronson sat slouching in his -chair, with sunken eyes, glaring at each witness, and with his mouth -hanging half open as though he barely understood what was going on. The -deep lines in his face and the dark circles beneath his eyes gave a vision -of sleepless nights and haunting memories. Like the other two imbeciles -whom we have discussed, he made a confession. The following is his -statement:-- - -Statement of Fred Tronson taken in the office of Detective Captain Baty on -Thursday, November 19th, 1914, in the presence of Deputy District -Attorneys John A. Collier and Thomas G. Ryan, Detectives Pat Moloney and -Tom Swennes. - -_Question._ What is your name? - -_Answer._ Fred Tronson. - -_Q._ How old are you? - -_A._ Twenty-four. - -_Q._ How long have you lived in Portland? - -_A._ One year and seven months. - -_Q._ What have you been doing? - -_A._ Running elevators. - -_Q._ Now, Fred, I am a deputy district attorney representing this state, -Mr. Ryan here is a deputy district attorney, and these other men are -officials and officers. You have been charged with a crime, and of course -you have your rights. You have a right to make a statement here to me if -you want to tell us what the facts are. You are not forced to make a -statement, but you may do so if you want to. There isn't any use of your -getting nervous, and there is nobody going to bother you here. You needn't -be afraid. You cannot be forced or compelled to make a statement, and any -statement you make must be voluntary. Do you want to make any statement -about this shooting affair? - -_A._ Yes. - -_Q._ You may go ahead and just tell me what happened, commencing at the -first of it, and tell me how it came about. - -_A._ Well, that time I accosted the girl in the street, it was last August -the 3d, I asked her if she would have me and she didn't give me any -satisfactory answer. She said she would wait outside at noon. In the -meantime she had me arrested. Of course I threatened to shoot myself if -she wouldn't have me. She says, "No, don't do that; I would rather have -you leave town," she says like that. She says, "I will write to you." She -says, "You are going to be a man, aren't you?" I said, "Yes, if I can't -have you." She said she would meet me out there at twelve, and before that -she phoned the police or the other girl up there, I don't know. - -_Q._ That was last August? - -_A._ Yes. - -_Q._ You were arrested on that charge? - -_A._ Yes. - -_Q._ What did they do with you? - -_A._ Well, they kept me here about a week and then let me go with the -understanding that I go out of town. Judge Stevenson says go out in the -harvest fields and take a good sweat and when you come back, look for some -other job and you will be all right. Come back in the fall. So I went out -next Monday and stayed a couple of days and couldn't get anything and came -back and waited about a week and stayed another week and then went to Hood -River, and picked apples and stayed up there about ten days and then came -back and I couldn't get anything. I was hoping the girl would kind of come -to me after awhile and I found after a few months that she wasn't, so I -thought I would get rid of her so somebody else wouldn't have her. - -_Q._ When did you make up your mind to do that? - -_A._ Last week. - -_Q._ After you made up your mind to do that, what did you do? - -_A._ I went off and got the guns. - -_Q._ Where did you get the guns? - -_A._ At Vancouver. - -_Q._ What kind of a gun was it? - -_A._ You got it there. That's the one I shot her with (pointing to a gun -on Captain Baty's desk just opposite Mr. Ryan), but I had another one, -too. - -(This gun, marked #5308 on gun itself and marked "Exhibit A--Ryan," was -thereupon handed to the prisoner.) - -_Q._ This gun marked "Exhibit A," here, is that the gun you shot her with? - -_A._ Yes. - -_Q._ Where did you get that gun? - -_A._ Vancouver. - -_Q._ For what purpose did you get it? What did you intend to do with it? - -_A._ I intended to shoot her. I intended to hold on to it, but in my -excitement I dropped it in the weeds there, I guess. - -_Q._ Where did you get the gun at Vancouver? Do you know the name of the -store? - -_A._ No, it was a hardware store. - -_Q._ How long before you did the shooting did you get this gun? - -_A._ About three hours, something like that. - -_Q._ Do I understand that you went to Vancouver and got this gun and then -came over to Portland, and did the shooting? - -_A._ Yes. - -_Q._ Where did you get this other gun? (Gun numbered 2506 was thereupon -marked "Exhibit B" by Mr. Ryan, and handed to Mr. Tronson.) - -_A._ This second-hand gun? - -_Q._ At a second-hand store? - -_A._ Yes. - -_Q._ Did you buy that at the same time you bought the other gun? - -_A._ Yes. - -_Q._ Where did you buy this gun? - -_A._ Well, I didn't want to buy them both at the same place. I thought -that they might get suspicious. I didn't want to get two five-dollar guns. -I bought that for three. - -_Q._ What did you have in mind when you bought this? - -_A._ Well, if one didn't work, the other would. - -_Q._ Do I understand you to say that you bought this to kill her with? - -_A._ Yes. - -_Q._ If the new gun didn't work, that would? - -_A._ Yes. - -_Q._ When you came over from Vancouver, did you have the guns loaded? - -_A._ No. - -_Q._ When did you first load the guns and prepare to do the shooting? - -_A._ Down there along the river some place. - -_Q._ Out in South Portland? - -_A._ Yes. - -_Q._ Did you load both of them? - -_A._ Yes. - -_Q._ You knew where Miss Ulrich lived, did you? - -_A._ Yes. - -_Q._ Had you ever visited at the house? - -_A._ No. - -_Q._ Had you ever kept company with her? - -_A._ Yes, I walked around the streets with her once in awhile. - -_Q._ You never went to her home? - -_A._ No. - -_Q._ Did you know her folks? - -_A._ No. - -_Q._ Where did you stay out there until she came along? - -_A._ I didn't get out there any too soon. I didn't stand round two -minutes. - -_Q._ What time did you leave town here to go out to the scene of the -shooting? - -_A._ I came right from Vancouver and went through. - -_Q._ What time did you get over to Portland from Vancouver? - -_A._ About five o'clock. - -_Q._ After you got over to Portland what car did you take then? - -_A._ I walked out. - -_Q._ Which way did you go out? - -_A._ First Street. - -_Q._ How far out First Street did you go? - -_A._ Until I struck some of those other streets down there, Front Street I -guess, Water or Corbett. - -_Q._ How long did you wait out there before you saw Miss Ulrich? - -_A._ I didn't wait at all, I just walked around the block and she got off -the car. - -_Q._ Did you see her get off the car? - -_A._ Yes. - -_Q._ What time was it when she got off the car? - -_A._ A little before six. - -_Q._ What car did she get off? - -_A._ North and South Portland. - -_Q._ Did you speak to her when she got off? - -_A._ Yes, I said, "Wait a minute." I wanted to talk to her, and asked her -for the last time; she started running, hollering. - -_Q._ Just what did you say to her? - -_A._ That's all I said to her. I wanted to talk to her and she started -running and hollered. - -_Q._ Did you have the gun in your hand at that time? - -_A._ No, in my pocket. - -_Q._ All loaded and ready for action? - -_A._ Yes. - -_Q._ How far was her house from the car? - -_A._ Not quite half a block. - -_Q._ Was there any one else got off the car at that place? - -_A._ No. - -_Q._ What did you do next? - -_A._ I followed her around the house. - -_Q._ Did she run around the house? - -_A._ Yes. - -_Q._ Did you run after her? - -_A._ Yes. - -_Q._ When did you commence shooting? - -_A._ Just before she went in the door. - -_Q._ What door did she go in? - -_A._ The back door. - -_Q._ How many shots did you fire? - -_A._ One before she went in. - -_Q._ How many after that? - -_A._ Four; I think there are only five in the gun. - -_Q._ Did you know that the last bullet struck her? - -_A._ I knew one must because she fell down after I began firing the other -bullets. She was in the bathroom; then she began to crunch down; then she -fell on her face like a board and struck her head on the floor. I thought -she must be dead or unconscious or something like that. I left then. I -took it for granted she was dead. - -_Q._ You didn't leave or didn't stop shooting until you thought she was -dead? - -_A._ No. - -_Q._ You went out there for the purpose of killing her if she didn't -accede to your wishes? - -_A._ Yes, I am sorry I had to do it. - -_Q._ Why did you feel that you had to do it? - -_A._ I didn't want anybody else to have her if I couldn't. I thought I -should have her. She told me once she liked me, and I didn't see any -reason for turning me down. I acted like a gentleman. I had given her one -present already. - -_Q._ After you thought she was dead and that you had completed your job, -where did you go? - -_A._ I ran down on Hamilton Street. - -_Q._ This gun that you used to do the shooting, was this gun (marked -"Exhibit A") the new gun numbered 5308 (handing it to him for inspection)? - -_A._ Yes. - -_Q._ Where did you go? - -_A._ I ran out of the way kind of on a trot down into Hawthorne Bridge and -then North on Union Avenue and caught the Vancouver car and went to -Vancouver. - -_Q._ Did you take both of these guns with you? - -_A._ No, just one. I dropped the other one. - -_Q._ Which one did you drop? - -_A._ The new gun. - -_Q._ That is, you dropped that after all the bullets were fired out? - -_A._ Yes. - -_Q._ After you got to Vancouver where did you go? - -_A._ I went to a picture show over there and stayed about half an hour, -and then I went to a rooming house. - -_Q._ Stayed all night in Vancouver? - -_A._ Yes. - -_Q._ Did you feel pretty nervous, knowing that you killed her? - -_A._ Yes, I sat up. I didn't sit up; I laid awake. I didn't sleep at all. - -_Q._ Where did you go when you left Vancouver? - -_A._ Went right out the next morning, went right out the Pacific Highway. - -_Q._ Why did you run away? - -_A._ Well, I wanted to get the papers and see if I had killed her and then -I was going back and shoot myself at the same place I shot her. I didn't -want them to get me until after I went around another way and shot myself -down there. - -_Q._ Did you intend to come back? - -_A._ Yes. - -_Q._ Did you read the papers at Vancouver? - -_A._ Yes. - -_Q._ Did you see in the papers that Miss Ulrich was dead? - -_A._ Yes. - -_Q._ Why did you keep going the other way? - -_A._ Well, I didn't want to come back this way and run into the police. I -was going around Seattle and Tacoma and cross over and come back around. - -_Q._ When you read in the papers that you had killed her, did you feel -satisfied? - -_A._ Well, yes, but I was afraid there would be bloodhounds after me, and -I would get shot down in the road. - -_Q._ You weren't worrying so much about her as you were afraid somebody -might do you an injury? - -_A._ Well, I didn't want them to get me until the job was completed and I -had shot myself. - -_Q._ Did you think there was somebody else interfering to keep her from -marrying you? - -_A._ I guess there was. - -_Q._ Did you have in mind to shoot any one else? - -_A._ No. - -_Q._ You knew she was engaged to marry another fellow? - -_A._ Yes. - -_Q._ Was that what made you decide to kill her? - -_A._ I thought she gave him up. Well in a way I did and in another way I -thought it was a bluff. - -_Q._ When did you make up your mind to get these guns--on the day of the -killing? - -_A._ Yes. - -_Q._ You knew at the time what you were doing,--what you were getting the -guns for? - -_A._ Yes. - -_Q._ You got the guns with the idea that if she refused to marry you why, -then, you would kill her? - -_A._ Yes. - -_Q._ You knew what you were doing at that time? - -_A._ Yes,--I don't think a man in his right mind would do it. - -_Q._ You knew that it was wrong to kill her, didn't you? - -_A._ Yes, but all I was thinking was about her. - -_Q._ You knew it would be wrong to kill her? - -_A._ That's what the law says. - -_Q._ You realized that fact at the time? - -_A._ Not as much as I do now. - -_Q._ You were in possession of your senses and you knew it was wrong to -kill her? - -_A._ Oh, yes, it was wrong to kill her--take her life. - -_Q._ You know it is wrong to take that which you cannot give, and you knew -at the time that you were doing wrong, and you knew that when you went -over there to get guns? - -_A._ I didn't take it very serious then like now. - -_Q._ Did you ever drink liquor to the extent of getting drunk? - -_A._ No. - -When this confession was read to the jury, Tronson leaned over and asked -the clergyman, "Well, what do you think of it?" When the verdict of the -jury was given, he did not understand what it meant and asked to be told. -When he was answered, he showed no appreciation of its significance, but -remarked that there wasn't so much of a crowd out as at the trial. - -This is the third case in which the Binet tests have been admitted in -evidence and the findings in accordance with these tests practically -accepted. No one seems to have denied that Tronson is an imbecile. He is -of lower grade than the other two that we have discussed, and enough lower -so that his defectiveness was much more apparent and easily admitted by -all of the judges. As will be noted, there was no reasonable motive for -the crime. In his own words: "She wouldn't marry me. That's why I killed -her--so that no one else could have her." In the case of Gianini we are -possibly dealing with the sex impulse, perhaps hardly recognized even by -the criminal himself. In Tronson's case we have that impulse definitely -recognized and asserting itself and, being uncontrolled, leading to an -action of the crudest and most savage kind. Under other conditions, it -would very likely have shown itself in a different way. If Tronson could -have gotten the girl off by herself, it is very probable that he would -have committed violence in the gratification of his sex impulse. But since -she refused to marry him and kept out of his reach, he shot her down in -order that "no one else could have her." - -It is unnecessary to discuss the case further. We need nothing more to -convince us that the diagnosis of imbecility was correct. It remains only -to point out two facts. First, that this man has been an imbecile at least -since he was twelve years of age, that he could have been recognized as an -imbecile and cared for, and thus this atrocious murder prevented. Second, -that there are hundreds of just such persons, now in their youth, who are -potential criminals. Unless their mental condition is recognized and they -are cared for in such a way as to make crime impossible, many of them will -repeat the career of Tronson. - -Fred Tronson is in prison for life. He will in all probability never be -pardoned. He will never have an opportunity to commit another murder. But -that does not restore the life of Emma Ulrich and it is small comfort to -her friends and relatives. It does not in the least remove the blot upon -society, which has allowed such a murder to be committed. Society should -have taken him in hand twelve years ago. It should be further noted that -Tronson had been before the Court at least once before he committed this -crime. At that time had the Judge realized that he was dealing with an -imbecile he might have sent the boy to an institution for the -feeble-minded instead of simply ordering him to leave the town. Shall we -learn the lesson and take care of the other Fred Tronsons who are now in -our public schools and on our streets? - - - - -CHAPTER IV - -THE CRIMINAL IMBECILE - - -From the description already given it will be seen that Roland Pennington -is very different from Jean Gianini. Both are imbeciles, but each is an -example of a special type. Gianini is of a nervous, impulsive, irritable, -loquacious type, fond of show and excitement, a braggart and a coward, -with an excellent memory, a great reader--particularly interested in -stories of excitement and crime. Pennington, on the contrary, is a slow, -dull, relatively stupid boy, of poor memory and slow perception. While -having made the fifth grade in school work, he has done it slowly and with -not so much success as in the case of Gianini. He is not so much given to -talk or to showing off; is somewhat addicted to drink and is exceptionally -fond of playing pool. - -Gianini's confession is colored by his desire to show off and shine in the -limelight; Pennington's, on the contrary, is a plain, unelaborated -statement of the facts. He is driven to his confession, not by his desire -to show off, but in self-defense. His colleague, March, is trying to throw -the entire responsibility upon him in order to escape from any -condemnation. In the face of this Pennington is prompted to tell his own -story. He is not intelligent enough to make up a plausible story which -would incriminate March and save himself. But in telling the facts as they -occurred he incriminates himself quite as much as March, so far as the -actual occurrences are concerned. His whole conduct, from the beginning of -the crime until his arrest, is that of a dull, stupid person. He does not -even wield the blackjack with intelligence, and after the man is killed by -his comrade, he takes no precaution to save himself from suspicion, to -dispose of the body or to clean up about the barn and remove the evidences -of a crime. And finally, when it comes to a statement of the case, he -apparently makes no attempt to shield himself, but acknowledges his part -in it, although that part was, as a matter of fact, so slight that a -little variation in his testimony would have thrown the entire burden upon -March and relieved him from any complicity in the matter. - -If the foregoing statement of the case is correct, we ask at once, how it -happened that the jury did not see it in this light, but instead brought -in a verdict of "Guilty in the first degree"? While there are many -elements in the answer, such as the demand of the public for revenge on -the murderer of the man who was more or less of a favorite; a hastily -drawn jury; a hurried trial, etc., the burden of the explanation falls -back upon the same condition which we discovered in the case of Gianini, -namely, the ignorance of the general public in regard to this type of -feeble-mindedness. Almost every one thinks that he knows an imbecile. We -have so long considered these high-grade cases as _normal but vicious_ -persons, that it is difficult to change the point of view suddenly and -realize that they are not responsible for their deeds. - -This failure to recognize the high-grade type of imbecile extended even to -the "experts" in the case; for whereas there were three who testified to -the feeble-mindedness of the prisoner, there were four or five who -testified to his normality. These were four general practitioners of -medicine, including the jail physician, and the fifth, a professor of -neurology and neuropathology. These gentlemen are all familiar with what -we should call the low-grade type of imbecile. They were perfectly correct -in declaring that Roland Pennington is not a low-grade imbecile. Not one -of them had had experience with the high-grade type. They were, -therefore, not qualified to pass upon a case of this kind. It was as -though four general practitioners had been brought in to decide a case of -obscure insanity. Every one of them could have testified that he had had -more or less to do with insane people, meaning persons who are maniacal or -strongly melancholic or katatonic, but what would be the value of the -testimony of such men in such a case, for instance, as that of Thaw? - -These men all thought they knew something about high-grade -feeble-mindedness. They all testified that Pennington was a normal man. -Compare this with the statement of Dr. Martin W. Barr, one of the foremost -authorities on feeble-mindedness in the United States--indeed, in the -world. Dr. Barr says (_Alienist and Neurologist_, November, 1914, page -367):-- - -"The courts simply do not go far enough back; they fail in that they do -not reach the inception--the root of the matter. They often punish without -careful investigation of the causes from which criminal instinct -springs--the environment, family history, inherited tendencies, physical -disability, and that susceptibility to suggestion which makes them the -ready tools of the vicious. - -"In the case of Roland Pennington, tried in Media last June, for aiding -in the murder of a man, it was proven that the boy, although almost twenty -in actual age, yet coming from a neurotic stock, with three first cousins -imbecile, had mentally only attained some 11 or 12 years; still he was -adjudged responsible, and murder in the first degree was the verdict. - -"Is it not a poor law that first permits a person to commit a crime, and -then punishes him for it, not recognizing that an ounce of prevention is -worth a pound of cure? - -"Pennington had sufficient intelligence to comprehend the enormity of the -deed, but, susceptible to suggestion in exaggerated degree, he had not -sufficient inhibition to resist the volitional act. - -"Early recognition of his mental defect and separation would have -protected him alike from tempter and temptation." - -It is unfortunate that Dr. Barr did not testify in the case, but his -assistant did testify and was understood to express Dr. Barr's views. - -It was unfortunate, indeed, that men who really knew so little about the -type of case before them were allowed to pass as experts and their opinion -allowed to carry more weight with the jury than the opinion of those who -have spent years in intimate association and study of the problem of -high-grade imbecility. It should be recognized that there are very few -persons who are expert with this type. The superintendents of our -institutions for the feeble-minded, after a few years of experience, have -a knowledge of this matter which far surpasses that of any physician who -has not had institution experience, however great a specialist he may be -in nerve diseases, in insanity or epilepsy. It is not enough to find out -that a physician has had some experience with imbeciles. The real problem -is: Has he had experience with this high-grade type? Is he able to pick -them out? Is his knowledge as well as his experience confined to the -medium and low grades, which every one meets? Failure to make this -distinction had much to do with the verdict in the case of Pennington. - -Another element in the result was the failure to make clear to the jury -the precise situation, the real point at issue. The defense in the case -had no desire to free Roland Pennington from all the consequences of his -deed. It was not a case of the electric chair or freedom. The imbecile, -especially one who has shown the tendency toward crime or willingness to -be led into crime, should never be at large where it is possible for him -again to go wrong. On the other hand, it is abhorrent to think of a child -(in mind) going to the electric chair for the deed which he committed -while under the influence of a superior intelligence, or while impelled by -the hidden forces of his nature over which he had no control on account of -his weak mind. It should have been made very clear to the jury that what -was wanted was to save the commonwealth the shame of officially putting to -death a person who had only a child's intelligence. In an ideal state such -a person should doubtless be kept in an institution for the feeble-minded -under a life commitment, unless his impulses are such that he proves to be -dangerous to the other inmates, in which case a different kind of -institution should be provided. Until we arrive at a condition where we -treat such persons ideally, one cannot object to the state prison for life -for the imbecile manslayer. This, unfortunately, was not made very clear -to the jury, and it seems probable that many of them thought that their -verdict was either to condemn him to the electric chair or to set him -free. Having only these alternatives, one can perhaps understand their -decision.[2] - -Another somewhat nice legal point was involved and brings up a matter -which calls for some discussion. As already stated, March had been -convicted largely upon the testimony of his accomplice, Roland Pennington. -If now the jury should acquit Roland Pennington on the ground of -imbecility, what would be the effect of such a decision upon Pennington's -testimony against March. Every one felt that March was guilty and -consciously guilty and should be punished to the extent of the law. To -bring in a verdict in the case of Pennington which would result in -annulling his testimony and thereby taking away the one sure means of -convicting March, was a serious matter. One may well believe that the jury -felt that it was safest to convict Pennington of murder in the first -degree and thus avoid raising this confusing question. - -As a matter of fact, although the question would undoubtedly have been -raised and attempts made to free March on the basis of Pennington's -feeble-minded testimony, yet such a procedure would not have been -warranted. - -Pennington, as we have claimed, is an imbecile with a mentality of about -eleven years. We have a right to judge him largely on the basis of an -eleven-year-old child. The testimony of eleven-year-old children is often -admitted into court, and many a person has been convicted on such -testimony. It is true that it is a somewhat moot question as to how much -credence should be placed in children's testimony. The real criterion in -such cases is the nature of the child, a matter which we have already -considered. A child may testify to simple facts, and may be relied upon -where he has no particular interest, where there cannot be shown any -tendency or desire on the part of the child to show off or to say -something for effect or to exercise childish imagination and invent a -large story for the sake of the pleasing sound. - -It is perfectly clear to any one who studies the confession of Pennington -that he must have told a straight-forward story. As already stated, he -would not have incriminated himself as he did if he had been falsifying. -He is not the type of person that runs on in an imaginary tale without -regard to the facts. In short, his testimony bears every evidence of being -entirely credible. - -On the other hand, as already pointed out, Gianini's testimony is -unreliable, because he was talking for effect. He is of the type that -loves show and notoriety. His testimony was only to be trusted where it -could be corroborated by facts or the testimony of others. - -Careful study of the testimony and the nature and the character of the -child will almost always enable one to decide very accurately as to how -much credence is to be placed in the evidence. In other words, the fact of -high-grade imbecility does not of itself make the child's testimony -acceptable or non-acceptable. It must be judged on its merits. We have in -these two cases excellent examples of the trustworthy and untrustworthy. - -The testimony of Pennington at the March trial was a most marvelous -performance. To those unfamiliar with high-grade imbecility, it was almost -unexplainable. Many thought that he must have been very carefully and -elaborately coached; that he had been told just what to say, and had -learned his lesson well. Those, however, who know the imbecile understood -perfectly what was happening. This eleven-year-old boy was telling a -plain, unelaborated tale. He was not intelligent enough to try to escape -himself, and so he had nothing to hide and, consequently, got into no -confusion. He answered, "Yes," "No," or, "I don't know" with a wisdom and -a consistency that was simply amazing, and, as said, could only be -explained on the understanding that he was telling the truth. No amount of -cross-examination confused him, no sudden coups of the lawyer for the -defense could entrap him. For example, when asked with considerable heat -on the part of the attorney why he had forgotten a certain point while he -remembered very vividly a certain other point, the witness made no attempt -to explain; simply remarked that he did not know. In truth, he did not -know. Any such psychological matter was as far beyond him as the heavens. -Without imagination, without ability to reason out the effect of his -answer on his own future, he could simply answer in the plainest kind of -"Yes" or "No" as he knew the facts. - -With these considerations, we pass on to consider the larger and more -difficult problem, "Can an imbecile of the mentality of eleven years know -the nature and quality of his acts and understand that it is wrong?" - - - - -CHAPTER V - -RESPONSIBILITY - - -All students of the psychology of childhood agree that not until the dawn -of adolescence does reasoning as such begin to show itself in the child -mind; that judgment and foresight and self-control, such as enable a -person to counteract his natural impulses and make himself fit into the -conventions of society, are practically unknown previous to this age. It -is true that many children are taught to say what the adult alone can feel -in connection with such matters. But as for having the real feeling and -the understanding of the situation, we seem to have no right to expect it -before the beginning of this adolescent period, from twelve to fifteen -years of age. Everything points to the correctness of the conclusion that -during this early period of pre-adolescence the child is a creature of -impulse and instinct and is controlled largely by counteracting one -instinct by another. For example, the instinct to love and obey a parent -impels the child to do what that parent says, when he tells him not to -yield to some impulse which would lead him into trouble according to the -canons of modern society. Without going further into a discussion of the -point, which would necessarily lead to many philosophical considerations, -the writer may express his conviction, born of a study both of normal -children and also of mental defectives of twelve years and under in -mentality, that persons of this mentality do not know much about right and -wrong. They act upon impulse and upon instinct, without very much thought. -Even the child of the best opportunity and the most elaborate training in -a good home may quite likely not know the wrongfulness of an act of -homicide in the sense of having a real feeling of that wrong. He can -doubtless, as already stated, _say_ that the thing is wrong, because he -has learned that this is the right thing to say. - -Let us turn now to the other part of the legal phrase, "Does such a person -know the nature and quality of his act?" If the writer understands these -terms, the first may be translated into the expression, "Does he know what -he is doing?" We take it that the expression originated in the attempt to -cover those cases where persons, either momentarily or permanently -deranged, literally do not know what they are doing. If this is correct, -then one cannot, as a rule, say that a high-grade imbecile does not know -what he is doing. He is not like the lunatic who acts blindly and is -probably no more responsible for his acts than a person walking in his -sleep. The imbecile is not in this condition. He has, so to speak, full -possession of all the mind that he has ever had and that, in the case of -these high-grade imbeciles or morons, is certainly sufficient to enable -him to know what he is doing. In the case of Jean Gianini, the writer -testified that in his opinion he knew what he was doing. He knew the -nature of his act. One cannot speak, it is true, with certainty in such -cases. It is entirely possible that, as already intimated, the situation -at first may have been a simple altercation or discussion which finally -got to a point where the anger of the boy was aroused to such an extent -that he acted without really knowing what he was doing. However, there is -no more argument for that theory than against it, and without definite -evidence on the question it is probably going too far afield to make any -such claims of immunity on that ground. We are frank to admit that the -probabilities are high that the boy knew the nature of his act. Did he -know the quality of his act? - -By the quality of a thing is meant that which distinguishes it from all -other things. This implies a complete and extensive knowledge of the thing -in question. To know the quality of an act--murder, for example--means to -know all of the elements, forms, or modes of being or action which seem to -make it distinct from all other acts. To know the quality of an act of -murder is to know that it is unjustifiable; it is to know that it differs -from the killing of a rat in that different consequences follow; that -human suffering is involved, both that of the victim and of the victim's -friends and associates. It is to know, at least in some vague way, that -human society could not exist if murder were the rule. To know the quality -of an act of murder is to know enough to be able to distinguish it from -justifiable homicide, from killing in war, not to mention more obvious -necessary distinctions. - -Did Jean Gianini know the quality of his act? On the stand, under -cross-examination, the writer was led to express the opinion that he did. -Later study of the problem and consideration of the circumstances leads to -the conclusion that this was erroneous. Such knowledge implies mental -capacity which is not possessed by a boy under twelve years of age. It -involves experience; it involves abstraction, which is notoriously lacking -in such persons. If there is one characteristic more noticeable than -another among the high-grade imbeciles or morons, it is their failure to -deal with abstract ideas; to draw generalizations from specific instances. - -Did Pennington know the quality of his act? There is not the slightest -evidence that he did. Indeed, in his case we may go farther and hold very -probably that he did not even know the nature of his act. It is easily -conceivable that he struck the man with the blackjack without knowing that -he was committing murder, without knowing that he might kill him. His -stupidity was clearly of such a character that it is a perfectly tenable -position that he thought he was to strike the man and stun him until they -could rob him and escape. - -Did Tronson know the nature and quality of his act? Using revolvers as he -did, it seems undeniable that he knew the nature. He was familiar with -revolvers; he knew what they would do. He, undoubtedly, knew that he was -killing Emma Ulrich. That he did not know the quality of his act is -equally certain. She would not marry him, he did not want her to marry any -one else, and he had no conception that he had no right to put her out of -the way so that she could not marry another if she would not marry him. - -Again, we might go further and deeper into the philosophy of the -question, the logic and ethics of it. But these few considerations seem -sufficient to make it of the highest probability that persons of a mental -age under twelve years, like the normal boys or girls of the same age, do -not know and cannot be expected to know the quality of their acts. And -this is sufficient, because the law requires no more than a reasonable -doubt, and there certainly is a very reasonable doubt as to whether such -persons know the quality of an act of murder and know that it is wrong. - - - - -CHAPTER VI - -THE PUNISHMENT FOR CRIMINAL IMBECILES - - -In the foregoing chapters we have discussed the problem involved in these -murders from the standpoint of the law in order to show that even under -the law, as it now exists, such persons are not guilty of murder in the -first degree. In the present chapter, we propose to discuss the matter -from another standpoint and from a different angle. It is not now a -question of responsibility or of some kind of justice to be satisfied. Let -us face the practical question of what is to be done in these cases. - -After all, what we want is protection for society. We cannot have innocent -people killed in accordance with the whim of the irresponsible. These -imbeciles have killed innocent members of society. What shall the living -do to prevent these particular persons from repeating the crime and to -prevent other imbeciles from ever committing such a crime? This, of -course, involves the whole problem of punishment or the treatment of the -wrongdoer. Upon one thing everybody is agreed--we must make it impossible -for these persons ever to do such a deed again. The surest way to -accomplish this is to destroy them. Dead men commit no crimes. Society -feels safe when a desperado is killed. If we can agree upon this solution, -the problem is easily solved and further discussion is unnecessary. But -society is not at one on this question. We are already seriously debating -the question whether any wrongdoer should ever be officially executed. -Indeed, many States have already decided that they should not be, and -imprisonment for life has replaced capital punishment. - -It is somewhat difficult to draw a line of distinction between the persons -involved in these crimes and the so-called responsible murderers. It -certainly is no great loss to society if Tronson is put out of the way. -The same is true in varying degrees of Gianini and Pennington. It may be -very successfully argued that the matter of responsibility is a fiction -and that all persons should be treated alike, either all executed or none -executed. Nevertheless, at the present time, we do draw the distinction, -and many feel that the person who has full power over his action, who -knows the nature and quality and wrongfulness of his act, should be -executed, while those who do not know should not be executed. - -If we take the latter view, the question still remains, What shall be done -with these criminal imbeciles? The alternative to capital punishment is -incarceration for life. Here at least we find a distinction between these -persons and the normal intelligent wrongdoers. Of all persons in the -world, the criminal imbecile should be placed in custody under conditions -that will forever make it impossible for him to repeat his offense. The -man who commits murder in a fit of insanity may recover from his insanity -and be a useful citizen for the rest of his life. The man who commits -murder under a strong impulse of anger or in calm meditation as the result -of perverted reasoning may recover normal reasoning and be a useful -citizen. This is not true of the imbecile. He will never recover; he will -never have more mind than he has now; he will never be free from the -danger of following the suggestion of some wicked person or of yielding to -his own inborn and uncontrolled impulses. It will never be safe for him to -be at large. This is so obvious that it is highly probable that the -imbecile once committed to life custody would never be released, and even -that there would never be any attempt at such release. When these facts -are understood, the public will undoubtedly be satisfied to have such -persons imprisoned for life or committed to an institution for mental -defectives, where they will be constantly guarded and prevented from doing -injury. - -This was well brought out in the case of at least two of the persons -described in this book. In the case of Jean Gianini, the lawyer made -emphatically plain that there was no desire on the part of the defense to -procure the complete liberty of the defendant. John F. McIntyre, the -counsel, stated clearly to the jury that he had no desire except to save -the boy from the electric chair, a punishment which he considered unjust. -He even went so far as to state that if at any time in the future efforts -should be made to secure the release of this defendant from any -institution to which he might be committed, he himself would make as -strenuous an effort to have the boy kept in custody as he was now making -to save him from the electric chair. Apparently this made a deep -impression upon the jury and went a long way toward helping them to return -the verdict that they did. On the other hand, in the case of Roland -Pennington this point was not made so clear, and the jury and the -prosecution did not realize that the defense only wished to save the boy -from execution and would be quite content with a verdict that would -result in his being incarcerated for life. An institution for -feeble-minded would seem at first glance to be the logical place to which -such a person should be committed. But no one need seriously object to -commitment to a penitentiary or a state prison. Perhaps, in view of the -fact that an imbecile has committed crime, that he has, as one may say, -begun a habit in that direction, the state prison is the proper place for -him, because here he can be absolutely controlled and saved from any -future acts of this kind. This is precisely what happened in Tronson's -case. - -We are learning in these days that the old adage, "An ounce of prevention -is worth a pound of cure," is something more than a witticism. These are -days of prevention--in medicine and in morals. The most important part of -our problem is yet to be discussed. It is true we must come to some -decision as to what is to be done with these persons who now infest -society and who, because of their imbecility which is unrecognized, may -become criminals. But vastly more important, because more far-reaching, is -the problem of how to prevent imbeciles from becoming criminals. We may -save the Gianinis and the Tronsons and the Penningtons from murdering any -more people, but how much better if we save them from killing anybody. No -one of these persons had, probably, any more instinct to kill than have -you or I. As children in years they were harmless and innocent. They could -have been cared for and led into paths of harmlessness if not of -usefulness. All of them could have been recognized as mental defectives -long before they arrived at the age when they committed crime. As dull and -backward children at school, they were at once suspicious characters. -Attention was called to them. Careful examination, such as is now -possible, would have revealed the fact that they were mental defectives -and as mental defectives were potential criminals. Then was the time that -they should have been carefully guarded and watched and saved from an -environment that would lead them to prey upon their fellows. If we wish to -save our teachers from the possibility of being murdered by their pupils -or our daughters from being killed by their wooers or business men from -being struck down by the blows of feeble-minded boys, we must be on the -watch for symptoms of feeble-mindedness in our school children. When such -symptoms are discovered, we must watch and guard such persons as carefully -as we do cases of leprosy or any other malignant disease. For fear that -some one should feel that these are rare and exceptional cases, let us -remind the reader that the best estimate and the result of the most -careful studies indicate that somewhere in the neighborhood of 50 per cent -of all criminals are feeble-minded. Whether this holds for murderers is -indeed not known. But many persons acquainted with feeble-mindedness -recognize from the newspaper descriptions of murders that many of the -murderers are feeble-minded. - -These facts certainly warrant us in taking seriously the problem of the -feeble-minded and the criminal imbecile. - -One thing more. Careful studies have shown beyond the peradventure of -doubt that at least two thirds of these mental defectives have inherited -their defect; in other words, that they belong to strains of the human -family whose intelligence lies below that which is required for the -performance of their duties as citizens. This points to a further -precaution necessary in looking toward the ultimate prevention of -feeble-mindedness and the solution of a large part of our prison problem, -and that is the prevention of the further propagation of this race of -defectives. If it is true--and there is every evidence that it is--that -children are daily being born of such a mentality that it requires the -attention and thought of an army of normal people to prevent their -growing up into criminal lives and that all of the best efforts can never -make them able to take their place in society as useful citizens, then it -certainly is our duty to see that such children are not born. How this is -to be accomplished has not yet been worked out in detail. The colonization -and segregation of all such people in institutions where they will not be -allowed to propagate is one solution that is proposed. The other is by -surgical interference, to render such people physically incapable of -propagating. Probably both these methods and still others must be utilized -to help solve this problem. - -The intelligence of men is often measured by the amount of foresight that -they have. The little child has little or none, as is also true of men of -low intelligence. There are men who can look forward and plan their -affairs for a few months in the future, others who can look forward a few -years, still others a lifetime, and a few who can look forward into the -coming generations. We shall demonstrate a high degree of intelligence if -we look not only to the amelioration of present conditions in our -prisons--which _must_ be done; not only to the removal to more suitable -environment of those persons who are unjustly confined because of their -irresponsibility--which ought to be done; if we not only see to it that -from now on persons who come before the court, either juvenile or adult, -are first studied to discover whether they are mentally responsible or -not, which is of utmost importance; but if we go still farther and put -forth efforts to determine how many and which of the children who are in -the public schools to-day are mentally defective and therefore need care; -and going still farther, if we have studies made and laws passed that -shall, as soon as possible, lead to the reduction in the birthrate of -these mentally defective individuals. A certain amount of -feeble-mindedness we must expect to have with us for long years to come, -because there will be sporadic cases and cases due to accident. But -feeble-mindedness as related to crime may be exterminated in a few -generations if we will but use our intelligence to attack this problem at -its root. - - - - -APPENDIX A - -GIANINI CASE - -HYPOTHETICAL QUESTION PROPOUNDED BY THE DEFENSE - - -Assuming the following circumstances to have been established by the -evidence in this case:-- - -That the defendant was on the 5th of December, 1897, born in the City of -New York; that his father was Charles A. Gianini, who also was born in -said city, and the paternal grandfather of the defendant was born in the -said city and the paternal great-grandfather of the defendant was born on -the south slope of the Alps in the republic of Switzerland. - -The defendant's mother was born in the City of New York, her maiden name -being Sara Cecelia McVey. That the defendant's mother was married to his -father when she was about twenty years of age; that prior or previous to -the said marriage she was bright, vivacious, stylish, and accomplished in -music; that shortly after her marriage she began to become untidy in her -appearance, morose, depressed, and indifferent. - -At the time of the birth of the first child (Charles), to-wit, on the 13th -day of November, 1891, about eleven months after her marriage, she was -suffering from melancholia as the evidence in this case discloses. - -Assuming that the child, Charles, lived to be but seven years of age and -during his lifetime did not learn to speak, but merely made guttural -sounds; that he did not walk, but moved about when seated on the floor, -pushing himself sidewise, and finally shortly before his death tottered -about. His death occurred when he was about seven years old. That he ate -gluttonously and his death was due to asphyxiation, choking due to taking -in trachea foreign matter while vomiting contents of an overloaded -stomach. - -Assuming that after the birth of Charles his mother's melancholia -continued, she became indifferent to her child, took no care of him, and -said that while she wanted to die, she was going to live forever; that she -also said she thought that her face was black and that she was a negress, -that she would not go into the street because she was black. - -Assuming, too, that she became addicted to the use of liquor, first lager -beer and subsequently whisky and brandy; that she made pledges, -administered by priests, only to be broken. That at times she would -brighten up, and during one of these periods, namely, July 12, 1894, a -second child, called Catherine, was born, which child still lives. - -Assuming that thereafter she began to drink again more than before; that -for eight months preceding the birth of the defendant she was drunk a -great many times, that she was found in a drunken stupor, that she was -brought home in a drunken condition by detectives, on which occasion she -had with her her second child Catherine. That about six months before the -birth of this defendant his mother was drunk, that the seventh month -before the birth of this defendant she was drinking, and on one occasion -threw her husband's books out of the window on an adjoining roof, during a -rain storm. And in the eighth month before the defendant's birth she drank -and the same condition prevailed. - -Assuming that from the June before the defendant was born, which was on -December 5, 1897, she was attended by Dr. Charles N. Weeks of New York -City, and he found her depressed, morose, and in a melancholic condition -most of the time, at times hysterical; that she would refuse to talk to -him, for one half a day at a time; that she would refuse to answer -questions, that she would pay no attention to questions, and that she was -also inclined to stare right past him; that she would weep; that she paid -no attention at all. At times the pupils of her eyes were dilated, at -times contracted, their expression at times was wild and sometimes vacant. -These conditions continued during the time Dr. Weeks was treating her. He -prescribed bromide for her liquor and the same condition continued after -the birth of the defendant. - -The general appearance of the defendant's mother was untidy, and these -conditions remained unchanged after defendant's birth. That when born the -defendant was poorly nourished, under weight, weighed about five pounds, -and was inclined to be emaciated; that at the time of the death of the -first born (Charlie), to-wit, on the 21st day of March, 1899, she was -again observed by Dr. Weeks, and then she was absolutely indifferent as to -the conditions so far as the boy was concerned; showed no grief, and her -general condition was such as he described at the time he was treating -her. - -And assuming that after the birth of the defendant he was a bottle-fed -baby, not nursed by his mother, and when about a year old placed in the -care of Mrs. Leigh, with whom he remained until he was about six years -old. That the defendant's mother died on June 3, 1899, in a Sanitarium, -known as St. Anne's Retreat in the City of New York, the cause of death -was meningitis, alcoholic heart failure. - -Assume that up to the time the defendant was five years of age he didn't -speak, and made sounds which resembled yells. Assume that about 1906 or -1907 the defendant's father took him from Mrs. Leigh's, he was then able -to talk and walk, and for several weeks he was taken care of by Mrs. -Hoberg and from there was taken to Lady Cliff Academy on the Hudson, where -he remained for one term. While there he usually appeared dirty, but -seemed to be making some progress. - -In 1907, assume when the defendant was ten years of age he went to live in -the Bronx, where he lived for two years and attended school during this -period. At one time he took two little girls to a piece of woods and -started to take their clothes off, and when asked why he did it, said he -was going to play Indian and that Indians were naked. - -On one Sunday afternoon he was observed in a group of children eating mud -pies, and the children were calling him "Loonie" and were telling him to -eat another one. - -During these two years that the defendant lived in the Bronx he was -observed to tease children. He would take a little boy's wagon and run -away with it. He would take his hat and throw it over a neighboring -fence. He would take the caps of girls and toss them over fences, pull -their curls, take away their hoops when they were rolling hoops, and take -the ball away when they were playing ball. He would do these things quite -often. On one afternoon he was brought home with a gash on his right -temple. It was bleeding and at least one inch in length. He stated that he -had received it from a fall from a stone wall while he was playing -"thief." On another occasion he chased a young girl who was stopping at -the house around the room with a table knife because she was trying to -correct him because he ran home from school without her. He did not -attempt anything against that girl again, although she remained in the -room the balance of the day. - -In 1910 defendant's father moved from the Bronx, to Poland, and brought -the defendant with him, and the defendant attended the Poland School which -he entered in April of 1910, and there remained until February or March, -1913. After leaving school defendant worked in a knitting mill in Newport -from about the first half of April until the second half of May, 1913, -when he ran away and went to Ilion. At Ilion he was found working by his -father and Mr. Frank Newman wiping dishes in the hotel. He was then taken -home. In the middle of August, 1913, the defendant again ran away, this -time to Albany, and stated that while he was there he had been shot at two -or three times by a policeman and was arrested. From Albany the defendant -again went to Ilion, where his father and Frank Newman again found him at -the same hotel, and when he saw them, he said that they were "swindlers." - -At another time the defendant ran away to Herkimer, in the summer of 1912, -and he stated that he had gone to the moving pictures. He said that he -went to the store, the Poland Union, and bought a can of beans and a bunch -of bananas for his trip to Herkimer. He left in the afternoon and did not -return until the following afternoon, when he said that he ate the bananas -going along the track before he ate the beans because he was afraid the -bananas would melt. He said he ate the beans at night, opening the can -with a nail, and ate them with a nail. - -On another occasion in Poland he chased his sister with a table knife -although she had not done anything to him. In the summer of 1910 the -defendant was at Morehouseville, and one day while there he was fishing at -the stream that passes in front of the Mountain Home, when the flies and -the punkies were biting very fiercely. He stood down there in his bare -legs and bare head fishing and the flies biting him until the blood ran -down his face and neck and legs. He was fishing there for fully an hour, -and when asked if the flies had bothered him, he said "No." - -In 1911, when the defendant's father's stepmother was in Poland, the -defendant was overheard to say to her, "Why didn't you marry my father, I -would like you better than this stepmother." - -When the defendant was fifteen years of age, in the month of September, -1913, the defendant's father had him committed to the St. Vincent's -Industrial School for juvenile delinquency, presided over by Christian -Brothers, where he remained for about six months, coming home in February. - -A few weeks before the commission of the alleged crime, he was observed to -be quarreling on Main Street in Poland with two very small children. - -At the age of sixteen years, in the early part of March, 1914, the -defendant was noticed playing with a toy railroad car and building some -tracks with some little irregular pieces of wood. He was also observed to -play tag with children apparently from two to four years younger than -himself. - -In the early part of 1912, the defendant's father observed that he was -practicing masturbation. - -The defendant's father thereupon slept in the same room with him in order -to watch him. The defendant continued this practice until the time he left -home in the spring or summer of 1913 and admitted that he did it -frequently. - -Assuming that on the 25th day of March, 1914, Mrs. Ethel Beecher and the -deceased Lida Beecher met the defendant at the Post Office in Poland, and -the defendant asked the deceased when she was coming to see his father, -and that she replied that she did not know, and the defendant said, -speaking impatiently, "Aw, I don't believe that you intend to come at all; -you will wait until the summer time and go home and then it will be too -late." That they spoke about school, and the deceased said to the -defendant that it would be better for him to wait until the beginning of -another term because he would be behind the other pupils in his work; that -on another occasion, on about the middle of February, 1914, the defendant -came on an errand to get yeast to the place where the deceased and Mrs. -Beecher were boarding and the defendant then said to them that he wanted -to get away from Poland, and would rather be in New York in the Great -White Way; that he thought he would like to act in moving pictures as he -did not like his home and he hated his father, and would not care to be a -"sod-buster"; that the deceased asked him whether he would like to return -to school, and he said that he would, but that his father would not let -him; that he never stole but once in his life and that was twenty-five -cents from a lady in New York, and she had given him twenty-five cents to -buy some candy and he bought the candy and ate it himself. On the same -visit the defendant asked Mrs. Ethel Beecher if there was a state prison -in Rochester, and she told him no; he wanted to know if there was not some -sort of a reform school there. She said that there used to be, but that -the reform school had removed to Industry, and he asked what the reform -school was like at Industry and she told him that the boys lived in -cottages under the care of a matron, a man and wife generally, and that -was as much as she knew about it. The defendant said he would like to be -there and asked her about the state prison at Auburn and different -prisons, what the sentence was and whether they had an electric chair or -whether they hung. The defendant told them that they worked awfully hard -at Sing Sing. The defendant also stated on that occasion that his father -used to thrash him for stealing apples that other men put him up to -stealing. - -Assuming at the time Mrs. Ethel Beecher and the deceased and the defendant -were talking together, that the deceased told the defendant that she -thought he would like to go in the country to work on a farm and asked him -why he did not continue his school work another year; and that her tone -was kindly and her whole deportment towards him on that occasion was such -as to incline one to believe that she desired to help him and to well -advise him; and that the defendant's conversation concerning prisons and -industrial schools was such that it caused them to laugh, at the time; and -that on other occasions when the defendant was with the deceased her -conduct towards him was always kindly and that she was kindly and -generously disposed towards the defendant and showed considerable interest -in him. - -Assuming that on the 27th day of March, 1914, at about quarter after seven -the defendant was observed on the street in Poland with some children, -with whom he had been seen at different times playing hide and seek and -tag and I spy, and that he caught hold of the toque of one of the little -girls and pulled it down over her face and that he poked another one of -the little girls in the back and that he called a girl by the name of -Grace Palmer, "Palmer House," and said, "Leonard is the proprietor, isn't -he?" and kept calling her Palmer House, and that he was snowballing the -girls, and that while he was engaged the deceased passed him on the street -and said, "Hello, Jean," and that he then joined her and shortly -afterwards was seen to come back with the deceased, going up the road -towards Buck Hill. That later in the same evening, at about ten minutes to -eight, he returned home, showing no trace of excitement or nervousness, -and that he received some books of wall paper to be delivered to a -neighbor and that he took these books and threw them so that they fell -with a noise on a neighbor's veranda and was seen running near the -railroad station and later returned home in the vicinity of eight o'clock, -showing no trace of any agitation, excitement, or nervousness. That he -took off his shoes, put on a pair of slippers, went to bed, and slept -quietly all night. That on the following morning he reported for work at -Sam Hutchinson's as usual, worked for about twenty minutes doing his -chores, ate his breakfast, and nothing unusual was observed about him. - -Assuming further that he was seen going along the railroad track in the -direction of Newport; that he met two men, one by the name of Smith, and -that he shouted, "Hello, Smithy"; that later he was spoken to by a man -named Sweet at Newport on the railroad track about four miles from Poland, -and that when Sweet caught up to him and asked him where he was going, he -said to Herkimer to see a moving picture show; that he had stolen a dollar -from his father; that he accompanied Sweet to Autenrith's store and while -there the murder of the deceased was talked about in his presence and that -he ate peanuts and smoked a cigarette and asked where they had found the -body and stated that he had gone to school to her; and subsequently was -taken back to Poland by one Frank Newman, and thereafter was turned over -to the Sheriff of Herkimer County and one of his deputies. - -Assuming that on the 26th day of March he asked an acquaintance by the -name of Morris Howe, a boy of fifteen years, if the deceased came to get -her mail nights, and said that he would get even with her; that on -Tuesday, March 24th, he told a man by the name of Estes Compo, with whom -he was working, that the deceased had tried to send him to school and that -if he had a revolver he would kill her, and asked this same man if he had -read of a murder down South, of a colored man killing a white girl and -laying it on the superintendent of a factory and that the man was -sentenced to the chair and the colored man confessed the crime; that on -the preceding night he had been in Compo's room, where he saw a revolver -and a knife, and on the following day he said if he had a revolver, he -would kill the deceased; that about a week before the 27th day of March, -while defendant was working for Sam Hutchinson, he told a boy he would -some day put an end to the deceased. - -Assuming that between the hours of seven and eight o'clock on the night of -March 27th, 1914, Miss Beecher was killed at a dark and lonely spot on the -Buck Hill road and that she had come to her death by being struck on the -head with a monkey wrench and had been cut repeatedly to the extent of -about 24 times with a knife in various parts of the body and that she was -dragged from the place where she was killed to a clump of willows near the -road and that her umbrella and hat were found the following morning in the -road and that by following the track where her body had been dragged over -the snow the body of the deceased was found. - -And assuming that on the morning of the 28th day when the defendant was -brought to Poland he was taken to a house of a Justice of the Peace and -was taken into a room by the Deputy Sheriff and told that he was -suspected and was accused of being a party to the crime. That after he was -completely stripped of his clothing he stated to the Deputy Sheriff that -he had gone to school to the deceased and had trouble with her at school -and wanted revenge and that he had met her the day before near the Post -Office and asked her to go up to his house and see his folks about having -him go to school again, and that the deceased told him that she would go -the next night. That the next night he did meet her near the hotel and she -said that she was ready to go up. They walked up the street, and when they -got near his father's house, the defendant told her that his father did -not live there, that they had moved up the hill, that he then stated in -detail how he committed the crime and disposed of the body and what he did -with the wrench and the knife. That he said, "You would not think any one -could do a job as quick as that." He said he supposed they would talk -insanity, but he was not any more insane than the Deputy Sheriff was, and -he did not want them to talk about it. - -He also said, "Gillette got the chair, didn't he?" and upon the Deputy -Sheriff replying, "Yes," the defendant said, "He had no reason to kill the -girl, but I did; I wanted revenge." - -That at the same time the defendant signed a sworn statement before the -Justice of the Peace, in which he stated that he went to school to Lida -Beecher, and had trouble with her and wanted revenge; that he was not -afraid, and when he got home, he was just as happy as he ever was, and did -not think anything about it, as he thought he had revenge; that at the -time he made these statements he was cool and quiet and spoke connectedly; -that he was not nervous or excited. - -Assuming that the defendant had not attended the Poland school since -February or March, 1913, and that while there he had studied under the -deceased for about one year, and that during this period the only -punishment he had received from the deceased was a seat facing the wall -with his back towards the other pupils, and was occasionally sent upstairs -to the Professor of the school for punishment. And that the deceased had -always manifested a friendly interest in him, was mild, kind, gentle, and -good to him. - -And further assume that when he left school, he was in the sixth grade. - -Assume that he had frequently been detected in telling lies, that he had -spoken of hatred of his father, that he manifested no affection towards -him, referring to his father as "Old Man" and "Him." That on the morning -of the 28th when he was being brought back to Poland by Newman, Newman -stated to him, "You have got something beside skipping out now staring you -in the face," to which he replied, "They can't give me but ten years"; he -used no words, when informed it might be a long time, that expressed fear -or fright; and when he was informed that he had murder staring him in the -face, he acted no different than ordinary. - -That less than a year before the birth of Charles, the first child, the -defendant's mother suffered from an attack of diphtheria, for which she -was treated by Dr. Quinlan. - -Further assume that in the summer of 1910, at Morehouseville, while -quarreling with a little boy named Arthur Jones, the defendant said he -would go up to his father's room and get his hunting knife and kill him. - -That while the defendant was at St. Vincent's Industrial School for -juvenile delinquency, at work in the laundry, he told Mr. Minor that if -his father didn't get him out in February, he would burn his father's -buildings when he got out. - -Now, doctor, assuming all these facts to have been proven in this case, -from your experience in the treatment of and knowledge of imbeciles and -idiots, from your skill and expert knowledge, can you express an opinion -concerning the mental condition of Jean Gianini at the time of the killing -of Lida Beecher, on the 27th day of March, 1914? - -By Mr. Thomas: If the Court please, I object to the question as improper -in form and that it concludes with assuming all these facts to have been -proven in this case, and that it is not an inquiry which can be properly -permitted to be put to the witness here. That, in addition, it does not -correctly state the evidence, and that especially this part of the -question is improper--"That she showed no grief, and her general condition -was such as he described at the time he was treating her," referring to -Dr. Weeks, and further it assumes incorrectly the time that the defendant -encountered Miss Beecher, near the Post Office on the 27th day of March, -1914, which is stated here to be about a quarter after seven. - -By Mr. Hirsch: What time do you say it was, Mr. Thomas? - -By Mr. Thomas: The proof varies from seven to seven six. And it is -incorrect in assuming facts not established upon the evidence, that he cut -her repeatedly to the extent of about twenty-four times with a knife; and -in those respects to which I have called your Honor's attention, the -question is improper, in that it assumes facts not proven, that it is -improper in form, and the concluding paragraph, with reference to which I -have called your Honor's attention, is improper and incompetent; and that -the question is incompetent in that it does not call upon the witness to -express an opinion as to the knowledge of the defendant of right and -wrong, or his knowledge of the nature and quality of the act in killing -the deceased. - -By Mr. McIntyre: That is a question, if your Honor please, which was -passed upon yesterday. - -By the Court: I suppose it is preliminary to some extent, as far as this -information is concerned. - -By Mr. McIntyre: It is precisely the same as yesterday, but the question -has had some additions. - -By the Court: Was that indicated by the last part of it? - -By Mr. McIntyre: Yes, sir. - -By Mr. Thomas: He should be asked, "Can you now form an opinion assuming -all these facts?"... - -_Q._ Now, Doctor, assuming all these facts contained in the hypothetical -question to have been established by evidence in this case, from your -experience in the treatment and knowledge of imbeciles and idiots, from -your knowledge and skill as an expert, can you express an opinion as to -the condition of Jean Gianini at the time of the killing of Lida Beecher -on the 27th day of March, 1914? - -Same objection - -By the Court: Objection overruled. He may answer. - -_A._ I can. - -_Q._ What is your opinion? - -Same objection. - -By the Court: I think it should conform now to the language of the -statute, shouldn't it? - -By Mr. McIntyre: Well, I have, your Honor; I first asked him if he could -express that opinion. Now if he doesn't express an opinion that comes -within the provisions within the statute, why then of course his opinion -is incompetent in this case. Now let's look at the code. Will you give me -the section, please? - -Section 1120. - -"Offense committed by an idiot or lunatic. An act done by a person who is -an idiot, imbecile, lunatic, or insane is not a crime. A person cannot be -tried, sentenced to any punishment, or punished for a crime while he is in -a state of idiocy, imbecility, lunacy or insanity, or is incapable of -understanding the proceeding or making his defense. A person is not -excused from criminal liability as an idiot, imbecile, lunatic, or insane -person except upon proof that at the time of the committing of the alleged -criminal act he was laboring under such a defect of reason as not to know -the nature and quality of the act he was doing or know the nature of the -act as wrong." - -By the Court: Well, now, my suggestion is why not embody that in your -question. - -By Mr. McIntyre: That is the second question, your Honor.... - -_Q._ I asked you what was your opinion concerning his mental condition. - -_A._ That he is an imbecile. - -_Q._ Now, Doctor, assuming that all the acts recited in the hypothetical -question to have been established by evidence, to be true, in conjunction -with the physical and mental examination made by you in the County Jail on -the 17th day of May this year,--from your experience and your knowledge of -imbeciles and idiots, in your opinion was Jean Gianini at the time of the -killing of Lida Beecher in such a mental condition as to know the nature -and quality of the act he was doing or that the act was wrong? - -By Mr. Thomas: I object to it as improper in form and copulative. - -Objection overruled. - -_Q._ Your opinion, Doctor? - -_A._ He was not in such condition. - - - - -APPENDIX B - -GIANINI CASE - -HYPOTHETICAL QUESTION PROPOUNDED BY THE PROSECUTION - - -_Q._ Doctor, kindly assume that the defendant had been a pupil taught by -Lida Beecher in the public school at Poland and harbored against her a -desire for revenge because she had punished him; that he stated to people -of his acquaintance that he would get even with her; that on Tuesday, -March 24th, 1914, he stated to a man with whom he was working that if he -had a revolver he would shoot her; that several days previously he had -this wrench, Ex. 45, in his possession and stated to a man who asked him -what he was going to do with it, that he had use for it; that he met Miss -Beecher, who was a young lady about twenty years old, five feet three -inches in height, weighing about 126 pounds, wearing upon the head this -cap, Ex. 26, and as an outer garment, this raincoat, Ex. 29 (showing to -witness), Wednesday, March 25th, 1914, about seven P.M. in the Post -Office at Poland, Post Office in the village of Poland, the location of -which is indicated on this map, Ex. 1, to which I now call your attention -(indicating); walked with her and Miss Clark, a teacher, from the Post -Office along Cold Brook Street to a point on the southerly side of the -street opposite the residence of James D. Countryman, the location of -which is also shown on the map at a point to which I now call your -attention (indicating), and that during that walk the defendant asked Miss -Beecher when she was coming up to see his father, and upon receiving the -answer that she did not know, said, "Aw, I don't believe you intend to -come at all; you will wait until summer time and go home and then it will -be too late"; that on the following evening, Thursday, he again met Miss -Beecher at or near the Post Office and asked her to go up to his house and -see his folks about going to school and she replied that she could not -that night, that she was going to prayer meeting, that she would go the -next night; that on the following day, Friday, he provided himself with -the knife, Ex. 48, for the occasion, and with the intention of killing -her, sharpened it for that purpose; that he met Miss Beecher about seven -P.M. on the evening of Friday, March 27th, near the Post Office and walked -with her along the south side of Cold Brook Street to the foot of Buck -Hill, which Buck Hill road is also shown on this map, a distance of 2006 -feet; that they then proceeded together along up Buck Hill, he getting her -to accompany him by telling her that his father lived up over the hill, -had moved up there two or three weeks before; that they went on part way -up the hill, and Miss Beecher hesitated and said it was farther up than -she thought it was, she did not think she would go any farther, and the -defendant said to her, "It is not but a little ways farther"; that when -they got to a point on the hill distant about 4198 feet from the Post -Office, she hesitated and said, "It is dark and I see no houses, no light, -don't think I will go any farther, will write your father a letter in -regard to this school matter"; that as she stopped he stepped back of her, -hit her on the head with this monkey wrench, Ex. 45, which weighs 2 pounds -7-15/16 ounces, which I now show to you, he at that time having as an -outer garment this coat, and wearing this shirt, Ex. 49, which I now show -to you; knocking her down, he hit her twice with it after she was down; -that when he first hit her with the wrench, she did not cry out but -moaned; that he then threw the wrench up over the fence on to the top of -the bank, about 35 feet; that it was so dark he could not see; took the -knife, Ex. 48, and as she was lying on the ground, hit her with it several -times to be sure to finish her, inflicting punctured wounds, one on the -back of the neck just below the hair line 3/4 of an inch in length, one on -the left side of the neck about 1/2 of an inch long, cutting a hole in the -external carotid artery 3 inches above the bifurcation of the common -carotid artery; that he then grabbed the body, which was face down, by the -right foot and dragged it across the road under a barbed-wire fence, down -the hill back of a bush to the swale; that he took hold of the right foot -because he did not want to get blood on his hands so that his finger -prints could be taken; that he ran immediately from the body to the Buck -Hill road and came out on to it a few rods nearer Poland than the point -where he dragged the body under the fence, ran down the road some -distance, and a team or sleigh came along and he stopped running and -waited until after that team got by him; that he reached his father's -house, which is shown on this map, Ex. 1, and the location of which I call -your attention to (indicating), at 7:30 and would have reached it sooner -if he had not fallen down four or five times on the way home; that he went -into the house and put the knife, off from which he had wiped the blood in -the snow, in the pantry drawer; that he was sent on an errand to the -house of Thomas Owens, on Cold Brook Street, which is also shown on this -map, Ex. 1, to the location of which I now call your attention -(indicating), to return some books of samples of wall paper, and to give -Mr. or Mrs. Owens a one-dollar bill and a soap order, to which it was -pinned; that he ran down the street, threw the books on to the veranda -floor near the kitchen door, ran down Cold Brook Street to South Main -Street, and tried to get the freight train which passed south on the M. & -M. railroad; that he ran back to his father's house and arrived there a -little after eight, took off his shoes, put on his slippers, read the -newspaper a little while, and went to bed; that he arose about six o'clock -the next morning; left his father's house, went to Sam Hutchinson's, by -whom he was employed, and whose residence is also shown on this Ex. 1, at -the location to which I now call your attention (indicating), went to the -barn, assisted in doing the chores, went in to breakfast, said nothing, -left there the coat, Ex. 41, which was then substantially in the same -condition as it is now, and to its condition, especially on the back, I -call your attention, and this being the coat which he wore the evening -before, which I now hand to you and call your attention to (indicating) -the condition of, put on another coat, and started down the railroad -track towards Herkimer, which is on the line of the New York Central and -Hudson River railroad, and some fourteen miles from Poland, intending then -to go away from Poland; that he was apprehended at Newport, a place -distant about four miles from Poland and between there and Herkimer, and -brought back in a cutter by Mr. Newman, whom he had known for several -years; that on the drive from Newport to Poland Newman asked him if he had -heard what happened at Poland, and defendant replied he hadn't; when asked -if he had seen anything of Miss Beecher the night before, said he had not; -when asked by Newman if he had heard that Miss Beecher was murdered or -killed, defendant said, "No," and on Newman's saying, "They are looking -for you for it," defendant said, "They can't give me but ten years, can -they?"; that as they drove into the village of Poland and turned from -South Main Street into Cold Brook Street, near the Post Office, there were -some rigs coming down the hill, and defendant said, "They are coming off -the hill with her now"; that in the afternoon of the same day he -voluntarily made, signed, and swore to the following statement with -reference to the matter.[3] - -State, Doctor, basing your reply upon the hypothesis stated in the -question, whether or not, in your opinion, the defendant, at the time he -struck Miss Beecher with the wrench, understood that he had no right to do -it? - -Mr. McIntyre: Don't answer. We object to the question in that it only -recites the revolting details of the alleged crime and that when the -question was being propounded to the witness upon the stand, counsel for -the State exhibited the knife, the wrench, the coat, the hat, and other -things in evidence in rather a dramatic way before the jury. - -We object to the question upon the ground that it does not contain all the -essential features in this case bearing upon the crime. - -We object to the question upon the ground that the hypothetical question -fails to include the condition of the defendant's mother at the time of -his birth; it fails to include the fact that the first child was an idiot -during his lifetime; it fails to disclose the conduct and deportment of -the defendant from the time of his birth down to the commission of this -crime. - -We submit respectfully that the hypothetical question is a garbled -statement of that which has transpired during this case and can have but -one effect--to bias and prejudice the minds of the jurors. And I submit -it is incompetent, immaterial and irrelevant and improper, in addition. - -The Court: Objection overruled. - -Mr. McIntyre: Exception, sir. - -_Q._ Have you got the conclusion, the concluding portion of my question in -mind? - -_A._ Would you repeat it? - -_Q._ Yes. State, Doctor, basing your reply upon the hypothesis stated in -the question, whether or not, in your opinion, the defendant, at the time -he struck Miss Beecher with the wrench, understood that he had no right to -do it. - -_A._ I cannot get any evidence from the facts recited there to enable me -to determine. - -_Q._ Well, can you determine from this question an opinion as an expert? - -_A._ No, I cannot. - - - - -APPENDIX C - -GIANINI CASE - -DEFENDANT'S REQUEST TO CHARGE - - -I - -Defendant requests your Honor to charge the jury that, in determining the -guilt or innocence of the defendant of the offense charged in the -indictment, the jury are to consider only the evidence of the case and are -to disregard any statement made during the course of the trial, by counsel -or the Court, and are not to be influenced or governed by any expression -of opinion or action of either the Court or counsel for defendant or the -people. - - -II - -Defendant requests your Honor to charge that the jury are not to be -influenced, in the consideration of this case, by any comment or -expression of opinion in the newspaper reports of this case, and they must -disregard any statement or comment contained in any such report, if same -has in any way been brought to their attention. - - -III - -Defendant requests your Honor to charge the jury that, in considering this -case, after its submission to them, the jury must proceed upon the -presumption that the accused, the defendant herein, is innocent of the -crime charged in the indictment and that it is necessary for the -commonwealth to overcome this presumption by evidence to convince them, -beyond a reasonable doubt, that the defendant is guilty of the crime -charged against him in the indictment. - - -IV - -Defendant requests your Honor to charge the jury that, in consideration of -this case, the jury are bound to act and proceed upon the presumption that -the accused is an innocent boy, and this presumption must continue -throughout the trial. - - -V - -Defendant requests your Honor to charge the jury that, the defendant being -charged with the crime of murder, the commonwealth is bound to prove -every and all the essential facts necessary to constitute this crime -beyond a reasonable doubt before the jury can convict the defendant of the -crime charged in the indictment. - - -VI - -Defendant requests your Honor to charge the jury that, upon the whole -case, if the commonwealth has failed to prove all of the facts beyond a -reasonable doubt, the defendant is entitled to be acquitted. - - -VII - -Defendant requests your Honor to charge the jury that the burden in this -case rests with the commonwealth, from the beginning to the end of the -trial, to establish, beyond a reasonable doubt, every fact essential to -the conviction of the defendant, and if the commonwealth has failed to -prove such charge beyond a reasonable doubt, the defendant is entitled to -an acquittal. - - -VIII - -Defendant requests your Honor to charge the jury that the unintentional -killing of a human being by another without motive, intent, premeditation, -is neither murder nor manslaughter. - - -IX - -Defendant requests your Honor to charge the jury that the questions of -deliberation and premeditation, intent and motive, are purely questions of -fact, to be determined by the jury from the evidence alone. - - -X - -Defendant requests your Honor to charge that if the jury cannot say, -beyond a reasonable doubt, that the defendant was sane at the time of the -commission of the act, and cannot say whether, at that time, he was sane -or insane, the defendant must be acquitted. - - -XI - -Defendant requests your Honor to charge the jury that if, at the time the -defendant committed the act charged against him, upon seeing the deceased, -he was thrown into a state of mind from which he was deprived of his -understanding, so as to be unaware of the nature and quality of the act he -committed, or so as to be unable to distinguish between right and wrong in -reference to that particular act at the time of its commission, this -defendant must be acquitted. - - -XII - -Defendant requests your Honor to charge the jury that, although sanity is -assured and presumed to be the normal and natural state of the human mind, -when imbecility is once shown to exist in a person, it is presumed to -exist and continue until the presumption is overcome by contrary or -repelling evidence proving sanity. - - -XIII - -Defendant requests your Honor to charge the jury that if defendant was -deprived of his reason at the time the act charged against him was -committed, and which resulted from a settled and well-established mental -alienation, or from the pressure and overpowering weight of circumstances -occurring before and at the time of the commission of said act, the said -defendant is legally irresponsible for it and must be acquitted. - - -XIV - -Defendant requests your Honor to charge the jury that if, at the time of -the commission of the act, the defendant was under the influence of a -diseased mind, and was really unconscious that he was committing a crime, -this defendant must be acquitted. - - -XV - -Defendant requests your Honor to charge the jury that the insanity of the -defendant need not be proven beyond a reasonable doubt. - - -XVI - -Defendant requests your Honor to charge that the jury, in considering this -case, are bound to act upon the presumption that the accused, the -defendant, is innocent, and should endeavor, if possible, to reconcile all -the circumstances of the case with that of innocence. - - -XVII - -Defendant requests your Honor to charge the jury that the burden of proof -rests with the commonwealth in this case, from the beginning to the end of -the trial, and the commonwealth are bound to prove that the defendant -committed the crime charged in the indictment beyond a reasonable doubt, -otherwise the defendant is entitled to be acquitted. - - -XVIII - -Defendant requests your Honor to charge that the jury must be satisfied -beyond a reasonable doubt, from the evidence of the case, of the sanity of -the defendant at the time of the commission of the act charged in the -indictment, and if the people fail to establish the sanity of the -defendant at the time of the commission of the act charged in the -indictment, this defendant cannot be convicted of any crime and is -entitled to an acquittal. - - -XIX - -Defendant requests your Honor to charge the jury that the law does not -require that the insanity, imbecility, or mental aberration which absolves -from crime should exist for any definite period, and only that it existed -at the moment when the act occurred. - - -XX - -Defendant requests your Honor to charge the jury that if the insanity, -imbecility, or mental aberration which absolves from crime operated at the -moment that the act was committed, that is sufficient in law to absolve -from guilt, and this defendant cannot be convicted of the offense charged -in the indictment, or any other offense. - - -XXI - -Defendant requests your Honor to charge the jury that the commonwealth -must satisfy the jury beyond all reasonable doubt, that, at the moment -the act alleged in the indictment was committed by the defendant, he had -reason, perception, and understanding sufficient to enable him to discern -right from wrong, and that if he had not, it is the duty of the jury to -acquit this defendant. - - -XXII - -Defendant requests your Honor to charge that if the jury believe that the -defendant did not suffer from any mental aberration which would absolve -him from punishment for the act charged in the indictment prior to the -commission of the act, or subsequent thereto, but that such state of -mental aberration did exist at the moment when the act occurred which the -defendant stands charged with, this defendant cannot be convicted of the -crime charged in the indictment, or any other crime, and must be -acquitted. - - -XXIII - -Defendant requests your Honor to charge the jury that if there is a -reasonable doubt in the minds of the jury as to whether the act charged in -the indictment was committed by the defendant while he was unable to -discern between right and wrong, or if the evidence is equally balanced -as to this, so that the jury cannot safely and conscientiously determine -whether the killing of the deceased was intentional, or was committed by -the defendant while he was unable to discern between right and wrong with -respect to the act, then this defendant is entitled to the benefit of that -doubt and entitled to an acquittal. - - -XXIV - -Defendant requests your Honor to charge the jury that if it finds that the -defendant is of a mental age of under twelve years, he is presumed to be -incapable of the commission of crime. (_Refused_) - - -XXV - -Defendant requests your Honor to charge the jury that if it finds that the -defendant is of a mental age of under twelve years, he is presumed to be -incapable of crime and that presumption is not removed by proof that he -had sufficient capacity to understand the act charged against him and know -its wrongfulness, except by evidence that satisfied the jury beyond a -reasonable doubt. (_Refused_) - - -XXVI - -Defendant requests your Honor to charge that if the jury finds that the -defendant is of a mental age of under twelve years, the evidence that he -understood the nature or quality of the act charged against him and knew -its wrongfulness must be strong and clear beyond a reasonable doubt. - - -XXVII - -Defendant requests your Honor to charge the jury that it must find that -the understanding of and the capacity for committing a crime is measured -not by the chronological years of the defendant, but by the strength of -the defendant's understanding and judgment. (_Refused_) - - -XXVIII - -Defendant requests your Honor to charge that if the jury find that the -defendant was of a mental age of under twelve years, he was incapable of -committing the crime charged in the indictment, unless the commonwealth -has made strong, clear, and convincing proof beyond a reasonable doubt -that the defendant was capable of discerning the difference between right -and wrong or knew the quality and nature of his act. (_Refused_) - - -XXIX - -Defendant requests your Honor to charge that the burden is upon the -commonwealth to show that the defendant has intelligence and maturity of -judgment sufficient to render him capable of harboring a criminal intent. - - -XXX - -Defendant requests your Honor to charge that if no motive has been -established for the crime, the jury must regard it as important in its -bearing upon the question of the defendant's mental condition at the time -of the commission of the act charged against him. - - -XXXI - -Defendant requests your Honor to charge the jury that if the commonwealth -have established merely a slight, trifling, and inconsequential motive for -the commission of the act charged in the indictment, they should regard it -as important and give it more consideration in connection with the -question of the defendant's mental condition. - - -XXXII - -Defendant requests your Honor to charge the jury that the commission of -the crime charged in the indictment by a child of tender years from its -very nature raises the question of abnormality of the defendant's mind and -in the absence of clear, strong, and convincing evidence on the part of -the commonwealth, it must conclude that the defendant's mental condition -was such that he did not understand the wrongfulness of his act or -understand the nature and quality of his act. - - -XXXIII - -Defendant requests your Honor to charge that evidence of the want of a -rational and reasonable motive on the part of the defendant for the -perpetration of the act charged in the indictment is to be considered by -the jury as strong corroboration of the fact of his mental -irresponsibility. - - -XXXIV - -Defendant requests your Honor to charge that the perpetration of the act -charged in the indictment without any apparent motive or object, but -against every motive which would appear to be naturally influential with -the defendant, that they must at once inquire whether or not the defendant -was of sound mind and take into consideration with the other evidence of -this case that he was not of sound mind, the absence of sufficient motive -must lead them to conclude that he was of unsound mind and could not -distinguish between right and wrong or know the nature and quality of his -act. - - -XXXV - -Defendant requests your Honor to charge that the absence of a clear and -convincing motive in itself is evidence of an unsound mind. - - -XXXVI - -Defendant requests your Honor to charge that if the defendant acted -without any reasonable or rational motive or object, but against every -motive and object, which it would appear should have been influential with -him, that fact in itself raises a presumption that the defendant was of -such unsound mind that he could not distinguish between right and wrong or -know the nature or quality of his act. - - -XXXVII - -Defendant requests your Honor to charge the jury that they have no right -to presume a motive from the mere commission of the crime and have no -right to speculate, guess, or surmise or supply any motive for the -commission of the act charged in the indictment. - - -XXXVIII - -Defendant requests your Honor to charge that the failure of the -commonwealth to call as witnesses Drs. Maybon and Palmer, who made -examinations of the defendant, to testify as to his mental condition, -raises the inference that if they had been called as witnesses, they would -have testified adversely to the commonwealth in respect to the defendant's -mental condition. - - -XXXIX - -Defendant requests your Honor to charge that from the failure of the -commonwealth to call as witnesses Drs. Maybon and Palmer, who examined the -defendant, the jury may infer that they would have testified that the -defendant was a high-grade imbecile who was laboring under such defect of -reason as not to know the nature and quality of the act of which he is -charged in the indictment or not to know the act was wrong at the time it -was committed. - - -XL - -Defendant requests your Honor to charge that from the failure of the -commonwealth to call as witnesses Drs. Maybon and Palmer, the jury may -infer that had they been called they would have testified unfavorably and -adversely to the commonwealth, especially in the absence of any -explanation made under oath as to why they were not called. - - -XLI - -Defendant requests your Honor to charge that if the jury acquit the -defendant on the ground of insanity, in that event the jury should specify -in its verdict that it acquits him on the ground of insanity. - - -XLII - -Defendant requests your Honor to charge that if the jury acquit the -defendant upon the ground of insanity, it will become the duty of the -Court to order him committed to a State Asylum. - - -XLIII - -Defendant requests your Honor to charge that if the jury acquit the -defendant on the ground of insanity, in this case such insanity will mean -imbecility, and that as imbecility cannot be cured, it will become the -duty of the Court to order him committed to a State Asylum for the rest of -his actual life. - - -XLIV - -Defendant requests your Honor to charge the jury that the denial of the -several motions made by defendant's counsel throughout the trial, and the -rulings of the Court upon objections, and refusals by the Court to charge -as requested, are not to be taken as any expression of opinion on the part -of the Court upon the facts of this case, but are only rulings upon the -law, about which the jury has nothing to do. - -NOTE. Requests XXIV, XXV, XXVII, and XXVIII, the Court refused to charge. - - - - - -INDEX - - - Abstract ideas, lack of, in morons, 98. - - Actions after crime, Gianini, 25, 27. - Pennington, 50-52. - Tronson, 76-78. - - Alcoholism, 110. - - - Barr, Dr. Martin W., statement of, 86. - - Beecher, Miss, annoyed by Gianini, 23. - - Binet tests, and school experience, 35, 38, 54. - use of, in Gianini case, 32-35. - in Pennington case, 53. - in Tronson case, 80. - - - Capital punishment, 101. - - Cause of Gianini's condition, 39-41. - - Causes of feeble-mindedness, 39. - - "Charity" in Binet tests, 34. - - Children, testimony of, 90. - actions of, 94. - suggestibility of, 63. - - Code quoted, 128. - - Colonization, 107. - - Confession, Gianini, 4, 9, 10. - Pennington, 44, 53. - Tronson, 67-80. - characteristic of imbeciles, 16, 29. - childishness of Pennington's, 55, 56. - not necessarily true, 17. - why Gianini made a, 15. - - Confessions compared, 83, 90-93. - - Courtroom, conduct in, 30, 67, 92. - - Coward, the imbecile, 23. - - Cretinism, 40. - - Crime, details of, Gianini, 122, 132. - Pennington, 47. - Tronson, 74. - - Criminal imbeciles, what should be done with, 102. - - Criminals, 50 per cent feeble-minded, 106. - - - Defense in case of, Gianini, 2, 5. - Pennington, 43. - Tronson, 66. - - Delinquencies, previous, of Gianini, 7, 37, 115, 116. - of Tronson, 68, 69, 82. - - Display, love of, 29. - - - Experts, qualifications of, 85. - - - Feeble-mindedness, causes of, 39, 106. - may be exterminated, 108. - - Feeble-mindedness in family, Gianini, 40. - Pennington, 87. - - Finger prints, 26. - - - Gianini, Jean, case of, 1-41. - actions after the deed, 25, 27. - attitude of Miss Beecher toward, 7, 119. - disregards counsel's warning, 30. - evidences of pride in deed, 16-19, 29, 123. - facts as established by testimony, 3. - incidents in life of, 113-125. - indifferent to crime, 10, 29, 120, 125. - interest in stories of crime, 26, 118, 121, 123. - mentality of, 13. - mother of, 40, 109-112. - previous delinquencies of, 7, 37, 115, 116. - stories about, 31, 113. - teased little children, 32, 116, 119. - threats made by, 121, 125, 131. - - Great White Way, 117. - - - Hypothetical question, defense, 109-126. - prosecution, 131-136. - - - Idiot, defined, 12. - - Imbecile, career of an, 54. - - Imbecility defined, 11. - not curable, 102. - - Imbecility, defense of, Gianini, 2, 5. - Pennington, 43. - Tronson, 66, 80. - - Imprisonment for life, 89, 101, 104. - - Indian, Gianini plays, 23. - - Insanity in relation to crime, 102. - - Instinct to kill, 105. - - Institution for feeble-minded, the logical place, 104. - - Intelligence, tests of, admitted into court, 2, 32-35, 53, 80. - - Interest in crime, Gianini's, 26, 118, 121, 123. - - - Jail, attitude in, Gianini, 30; - Pennington, 55. - examined in, Gianini, 29; - Pennington, 53, 56. - - Jealousy of March, 53. - - - Liberty of defendant not desired, 88, 103. - - - McIntyre, John F., 103. - - March, convicted, 43. - convicted upon Pennington's testimony, 90. - Pennington's relation to, 55, 56, 64. - - Masturbation, 117. - - Melancholia, 110-112. - - Mental defectiveness, inherited, 39, 106. - recognized early, 105. - - Mentality of, Gianini, 13. - Pennington, 53. - Tronson, 66. - - Money as motive, 57. - - Moron, defined, 11. - abstract ideas lacking in, 98. - - Mother of Gianini, 40, 109-113. - - Motive, Gianini's, 4, 20-25. - March's, 53. - Pennington's, 53, 56-60. - Tronson's, 76, 80. - - - Pennington, Roland, case of, 42-64. - actions after the deed, 52-53. - conduct at trial, 92. - confession, 44-53. - disregards lawyer's caution, 55. - mentality of, 53. - relation to March, 55, 56, 64. - testimony against March, 43, 90, 92. - trial, 43. - - Preparations for crime, Gianini, 6. - Pennington, 47. - Tronson, 70. - - Prevention, 82, 87, 104-108. - - Propagation, prevention of, 106-108. - - Psychologists, testimony of, 32, 53, 66. - - Punishment for criminal imbeciles, 88, 100-108. - - - Quality of an act, meaning of, 96. - - - St. Vincent's School, 7, 116. - - School, failure in, sign of mental defect, 37. - Gianini case, 35-37, 124. - Pennington case, 54. - Tronson case, 66. - - Segregation, 107. - - Sexual theory of Gianini's crime, 20. - - Society, duty of, 82. - protection for, 100. - - Speech development retarded, 113. - - State prison for the imbecile manslayer, 89, 104. - - Sterilization, 107. - - Stories about Gianini, - "Indian," 113. - "Soup and safety," 31. - "Strap oil," 32. - teased little children, 32, 113, 116, 119. - "Thief," 114. - - Suggestion, discussed, 61-63. - Pennington, victim of, 56-64. - - Superintendents as specialists, 88. - - - Testimony of, children, 90. - experts, 85. - Pennington against March, 43, 90, 92. - psychologists, 32, 53, 66. - witnesses, 3-8, 18, 31, 35-37. - - Trial, Gianini, 1, 30, 31. - Pennington, 43, 92. - Tronson, 66, 67. - - Tronson, Fred, case of, 65-82. - actions after the deed, 76-78. - confession of, 76-80. - mentality of, 66. - previous delinquencies of, 68, 69, 82. - - Types considered, of imbecility, 83. - of feeble-mindedness, 12-14. - - - Verdict, Gianini case, 1, 2. - Pennington case, 43. - Tronson case, 66. - - - Witnesses, children as, 90. - - Wrench asked about, 7. - - -Printed in the United States of America. - - - - -FOOTNOTES: - -[1] See prosecution's hypothetical question--Appendix, pp. 131-138. - -[2] See Gianini Case, Defendant's Request to Charge, Nos. XLII, XLIII, -Appendix, p. 153. - -[3] For statement see p. 9. - - - - - - -End of Project Gutenberg's The Criminal Imbecile, by Henry Herbert Goddard - -*** END OF THIS PROJECT GUTENBERG EBOOK THE CRIMINAL IMBECILE *** - -***** This file should be named 43064-8.txt or 43064-8.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/4/3/0/6/43064/ - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive.) - - -Updated editions will replace the previous one--the old editions -will be renamed. - -Creating the works from public domain print editions means that no -one owns a United States copyright in these works, so the Foundation -(and you!) can copy and distribute it in the United States without -permission and without paying copyright royalties. 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You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org/license - - -Title: The Criminal Imbecile - An Analysis of Three Remarkable Murder Cases - -Author: Henry Herbert Goddard - -Release Date: June 29, 2013 [EBook #43064] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK THE CRIMINAL IMBECILE *** - - - - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive.) - - - - - - -</pre> - - - - -<p class="figcenter"><img src="images/cover.jpg" alt="" /></p> - -<p> </p><p> </p> - -<h1><small>THE CRIMINAL IMBECILE</small></h1> - -<p> </p><p> </p> -<p class="center"><img src="images/printer.jpg" alt="" /><br /> -THE MACMILLAN COMPANY<br /> -<small>NEW YORK · BOSTON · CHICAGO · DALLAS<br /> -ATLANTA · SAN FRANCISCO</small><br /> -<br /> -MACMILLAN & CO., <span class="smcap">Limited</span><br /> -<small>LONDON · BOMBAY · CALCUTTA<br /> -MELBOURNE</small><br /> -<br /> -THE MACMILLAN CO. OF CANADA, <span class="smcap">Ltd.</span><br /> -<small>TORONTO</small></p> - - -<p> </p><p><a name="frontis" id="frontis"></a> </p> -<p class="figcenter"><img src="images/frontis.jpg" alt="" /></p> -<p class="center"><span class="smcap">Jean Gianini.</span><br /> -(Upper picture taken in jail. Printed by permission of Zintsmaster<br />and Jones, Herkimer, N. Y., Photographers.)</p> - - - -<p> </p><p> </p> -<p class="center"><span class="giant">THE<br /> -CRIMINAL IMBECILE</span></p> -<p class="center"><span class="large">AN ANALYSIS OF THREE<br /> -REMARKABLE MURDER CASES</span></p> -<p> </p> -<p class="center"><small>BY</small><br /> -<span class="large">HENRY HERBERT GODDARD</span><br /> -<small>DIRECTOR OF DEPARTMENT OF RESEARCH<br /> -VINELAND TRAINING SCHOOL</small></p> -<p> </p> -<p class="center">New York<br /> -THE MACMILLAN COMPANY<br /> -1915<br /> -<i>All rights reserved</i></p> - - -<p> </p><p> </p> -<p class="center"><span class="smcap">Copyright</span>, 1915,<br /> -<span class="smcap">By</span> THE MACMILLAN COMPANY.<br /> -<br /> -Set up and electrotyped. Published September, 1915.</p> -<p> </p> -<p class="center">Norwood Press<br /> -J. S. Cushing Co.—Berwick & Smith Co.<br /> -Norwood, Mass., U.S.A.</p> - - -<p> </p><p> </p> -<hr style="width: 50%;" /> -<p><span class="pagenum"><a name="Page_v" id="Page_v">[Pg v]</a></span></p> -<h2>PREFACE</h2> - - -<p>This book is offered to the public in the belief that the three cases -herein described are typical of a large proportion of criminal cases and -that the analysis and discussion attempted will help to make clear -important points which are often misunderstood, points relative to the -criminal and to the imbecile.</p> - -<p>A clear conception of the nature of the imbecile and of his relation to -crime will inevitably result in a most desirable change in our criminal -procedure.</p> - -<p>It should be noted that we use “imbecile” in the legal sense which -includes the moron and often the idiot as scientifically classified. This -usage is justified since much of the literature still describes all mental -defectives as imbeciles, idiots, or feeble-minded—according to the -preference of the writers.</p> - -<p>These cases are unique in that they were the first court cases in which -the Binet-Simon tests were admitted in evidence, the mental status of -these persons under indictment being largely determined by this method.</p> - -<p><span class="pagenum"><a name="Page_vi" id="Page_vi">[Pg vi]</a></span>It happens, also, that these cases well illustrate three phases of the -workings of defective minds. Jean Gianini shows the criminal imbecile of -high grade and of loquacious type working by himself. Roland Pennington, -equally high grade but of a quiet, phlegmatic temperament, shows how a -defective mind works under suggestion. Finally, Tronson shows the crude -brutality of a somewhat lower grade defective.</p> - -<p>In the chapter on Responsibility we have tried to indicate the difference -between <i>verbal</i> morality and deep-seated, appreciated, moral principle. A -child may have the former but the latter comes only with experience and -the age at least of the adolescent.</p> - -<p>We would remind the reader that in the confessions and the appendices we -have had at hand only stenographic reports.</p> - -<p>If this book shall help the lawyer to make a more successful defense of -the imbecile criminal, the judge to dispense justice to this much -misunderstood class of high grade imbeciles, and society in general to -realize its responsibility for the mental defective, it will have -fulfilled its mission.</p> - -<p><span style="margin-left: 2em;">H. H. G.</span></p> - -<p><span class="smcap">Research Laboratory of the Training School<br /> -<span style="margin-left: 6em;">in Vineland, N. J.</span></span></p> - - -<p> </p><p> </p> -<hr style="width: 50%;" /> -<p><span class="pagenum"><a name="Page_vii" id="Page_vii">[Pg vii]</a></span></p> -<h2>CONTENTS</h2> - -<table border="0" cellpadding="0" cellspacing="5" summary="table"> -<tr><td colspan="2"> </td> - <td align="right"><small>PAGE</small></td></tr> -<tr><td> </td> - <td><span class="smcap">Preface</span></td> - <td align="right"><a href="#Page_v">v</a></td></tr> -<tr><td colspan="2"><small>CHAPTER</small></td></tr> -<tr><td align="right"><a href="#CHAPTER_I">I.</a></td> - <td><span class="smcap">The Case of Jean Gianini</span></td> - <td align="right"><a href="#Page_1">1</a></td></tr> -<tr><td> </td></tr> -<tr><td align="right"><a href="#CHAPTER_II">II.</a></td> - <td><span class="smcap">The Case of Roland Pennington</span></td> - <td align="right"><a href="#Page_42">42</a></td></tr> -<tr><td> </td></tr> -<tr><td align="right"><a href="#CHAPTER_III">III.</a></td> - <td><span class="smcap">The Case of Fred Tronson</span></td> - <td align="right"><a href="#Page_65">65</a></td></tr> -<tr><td> </td></tr> -<tr><td align="right"><a href="#CHAPTER_IV">IV.</a></td> - <td><span class="smcap">The Criminal Imbecile</span></td> - <td align="right"><a href="#Page_83">83</a></td></tr> -<tr><td> </td></tr> -<tr><td align="right"><a href="#CHAPTER_V">V.</a></td> - <td><span class="smcap">Responsibility</span></td> - <td align="right"><a href="#Page_94">94</a></td></tr> -<tr><td> </td></tr> -<tr><td align="right"><a href="#CHAPTER_VI">VI.</a></td> - <td><span class="smcap">The Punishment for Criminal Imbeciles</span></td> - <td align="right"><a href="#Page_100">100</a></td></tr> -<tr><td> </td></tr> -<tr><td colspan="2" align="center">APPENDICES</td></tr> -<tr><td align="right"><a href="#APPENDIX_A">A.</a></td> - <td><span class="smcap">Gianini Case. Hypothetical Question Propounded by the Defense</span></td> - <td align="right"><a href="#Page_109">109</a></td></tr> -<tr><td align="right"><a href="#APPENDIX_B">B.</a></td> - <td><span class="smcap">Gianini Case. Hypothetical Question Propounded by the Prosecution</span></td> - <td align="right"><a href="#Page_131">131</a></td></tr> -<tr><td align="right"><a href="#APPENDIX_C">C.</a></td> - <td><span class="smcap">Gianini Case. Defendant’s Request to Charge</span></td> - <td align="right"><a href="#Page_139">139</a></td></tr> -<tr><td> </td> - <td><span class="smcap">Index</span></td> - <td align="right"><a href="#Page_155">155</a></td></tr></table> - -<p><span class="pagenum"><a name="Page_viii" id="Page_viii">[Pg viii]</a></span></p> - - -<p> </p><p> </p> -<hr style="width: 50%;" /> -<p><span class="pagenum"><a name="Page_ix" id="Page_ix">[Pg ix]</a></span></p> -<h2>LIST OF ILLUSTRATIONS</h2> - -<table border="0" cellpadding="0" cellspacing="5" summary="table"> -<tr><td><span class="smcap">Jean Gianini</span></td> - <td><span class="spacer"> </span></td> - <td align="right"><a href="#frontis"><i>Frontispiece</i></a></td></tr> -<tr><td colspan="2"> </td><td align="right"><small>FACING PAGE</small></td></tr> -<tr><td><span class="smcap">Roland Pennington</span></td> - <td> </td> - <td align="right"><a href="#Page_43">42</a></td></tr> -<tr><td><span class="smcap">Fred Tronson</span></td> - <td> </td> - <td align="right"><a href="#Page_66">66</a></td></tr></table> - - - -<p> </p><p> </p> -<hr style="width: 50%;" /> -<p><span class="pagenum"><a name="Page_1" id="Page_1">[Pg 1]</a></span></p> -<p class="center"><span class="huge">THE CRIMINAL IMBECILE</span></p> - -<p> </p> -<h2><a name="CHAPTER_I" id="CHAPTER_I"></a>CHAPTER I</h2> -<p class="title">THE CASE OF JEAN GIANINI</p> - - -<p>“We find the defendant in this case not guilty as charged; we acquit the -defendant on the ground of criminal imbecility.”</p> - -<p>Such was the verdict by the jury of the Supreme Court of Herkimer County, -New York, on May 28th, 1914, in the case of the people <i>vs.</i> Jean Gianini, -indicted for the murder of Lida Beecher, his former teacher.</p> - -<p>The prosecution and, at first at least, the majority of the citizens of -the community held that this had been a carefully planned, premeditated, -cold-blooded murder of the most atrocious character, committed with a -fiendishness seldom seen among human beings. It was, on the other hand, -claimed by the defense that the boy was an imbecile, that he had only the -intelligence of a ten-year-old child, that he did not know the nature and -quality of his act, and that he did not have any<span class="pagenum"><a name="Page_2" id="Page_2">[Pg 2]</a></span> true realization of the -enormity of his crime. For some reason unaccountable to a great many -people, the jury accepted the view of the defense.</p> - -<p>Not infrequently have verdicts in murder trials been unacceptable to the -populace. In that respect this verdict is not an exceptional one, but from -other standpoints it is remarkable. Probably no verdict in modern times -has marked so great a step forward in society’s treatment of the -wrongdoer. For the first time in history psychological tests of -intelligence have been admitted into court and the mentality of the -accused established on the basis of these facts.</p> - -<p>The value of this verdict cannot be overestimated. It establishes a new -standard in criminal procedure. It recognizes that <i>weakness</i> of mind, as -an excuse for crime, is of the same importance as <i>disease</i> of mind; puts -feeble-mindedness in the same category with insanity, and requires that it -like insanity be considered in all discussions of responsibility. When we -add the now accepted fact that the feeble-minded are at least as numerous -as the insane, we see the far-reaching significance of this standard set -by the Supreme Court of Herkimer County, New York.</p> - -<p>That the verdict has not been at once acceptable to the people is due to -the fact that the character and<span class="pagenum"><a name="Page_3" id="Page_3">[Pg 3]</a></span> the limitations of the high-grade -imbecile are not understood. With a view to explaining this type of -defective, which the defendant so well illustrates, we propose in the -following pages to go over the history of this case, explaining the facts -in the light of present-day knowledge of the feeble-minded.</p> - -<p>The facts in the case as established by testimony:—</p> - -<p>On the morning of March 28th, 1914, Henry Fitch, a farmer of Herkimer -County, accompanied by his son, started on his usual work to deliver milk. -At a point in the highway, approximately one mile from the village of -Poland, Mr. Fitch saw blood and signs of a struggle in the snow and slush -in the road; he also found an umbrella and a hat. A bloody path led out of -the road to a point some hundred and thirty feet away. Following the -tracks he found the body, which proved to be that of Lida Beecher, one of -the school-teachers in the village of Poland. She lay at full length on -her face, both arms under her. The body was removed to Sprague’s -undertaking rooms in the village.</p> - -<p>On the same morning Jean Gianini, sixteen years old, left his father’s -house on the edge of the village to go to the home of Sam Hutchinson, -where he was working and taking his meals. He had his breakfast,<span class="pagenum"><a name="Page_4" id="Page_4">[Pg 4]</a></span> went to -the barn, and worked a short time. When Mr. Hutchinson went out a little -later, he could not find Jean. A Mr. Smith said he had seen him going down -the tracks toward Newport. William Taylor, the track foreman, said he -passed Jean near the bridge. Mr. Hutchinson then sent word to the boy’s -father that he had gone. The father, supposing his son had run away as he -frequently did, telephoned to Newport asking that he be apprehended and -sent home. This was before anything was known of the crime. Peck Newman, -to whom the father telephoned, found Jean in a grocery store in Newport. -He had been apprehended at the depot. He was taken home and then to the -Justice of the Peace. Here he was stripped, presumably for the purpose of -discovering whether there was any blood upon his clothing or his body. -Although there is no evidence that any stains were found, yet he had no -sooner been stripped than he made a free and open confession. We shall -consider this confession in detail later. In substance he said that he -killed Miss Beecher to get revenge, because she had humiliated him in -school. He told in detail how he had accomplished this and what had been -his movements shortly before and after the deed. On the strength of this -confession and such corroborative evidence as could be<span class="pagenum"><a name="Page_5" id="Page_5">[Pg 5]</a></span> obtained from -local witnesses the prosecution sought to convict this boy of murder in -the first degree.</p> - -<p>It was understood at first that the defense would attempt to prove that he -was insane. There did not seem to be much evidence of insanity and it did -not appear that the prosecution was in great fear of such a verdict. As a -matter of fact, the real defense was imbecility. It is probable that this -defense was less intelligible to people who knew Jean Gianini than that of -insanity would have been. To one familiar with imbecility, however, there -is no shadow of a doubt of the correctness of this diagnosis. The only -possible question in the mind of any such person would be whether a -defective of such high grade knew the nature and quality of his act and -knew that it was wrong, and was therefore responsible for his act. This -point the jury decided, and we shall attempt to show by a study of the -case that they decided correctly.</p> - -<p>Much of the confusion in the mind of the public and dissatisfaction with -the result in this case is due to a failure to understand the nature and -character of the imbecile. Most of the acts and the utterances of the -defendant, which seemed to many people to indicate his soundness of mind, -his premeditation and planning of the murder, are in reality so thoroughly -characteristic<span class="pagenum"><a name="Page_6" id="Page_6">[Pg 6]</a></span> of the imbecile as to leave no doubt whatever of his low -mentality.</p> - -<p>We have already given all that is known of the circumstances except -certain details which Jean claimed in his confession, and certain acts and -utterances which were testified to by local witnesses.</p> - -<p>We may now examine these testimonies, reserving his confession for a later -discussion. So far as the crime itself is concerned but little testimony -was brought forward; so little, in fact, that without the boy’s confession -he probably could never have been convicted of the deed.</p> - -<p>On the evening of the tragedy Jean was seen by several people walking up -the street toward his home in company with his victim. Two days before -this he had been heard to ask her when she was coming to see his father -about his returning to school; to this she had replied, that she “did not -know”; and he had answered, “Aw, I don’t believe you intend to come at -all, you will wait until summer time, and go home and then it will be too -late.” On the following evening he again asked her to go up to his house. -She said she could not go then, as she was going to prayer meeting, but -she would go the next night. He had also inquired of certain persons -whether she went to the Post Office<span class="pagenum"><a name="Page_7" id="Page_7">[Pg 7]</a></span> in the evening. On one occasion he -had been seen with an old rusty wrench in his pocket and when asked what -he was doing with it, he had replied, “I have use for it.” This was the -wrench with which he struck his victim the death-blow, according to his -confession.</p> - -<p>Previous to the tragedy he had told certain persons that he meant to get -even with Miss Beecher. The wrongs for which he claimed to have desired -revenge had occurred more than a year before the tragedy. For over a year -he had been out of school and had been working a part of that time. For -some months he had been an inmate of St. Vincent’s School, to which -institution he was committed by a Justice of the Peace at the instigation -of his father because of his propensity to jump freight trains.</p> - -<p>The evidence was strongly against the idea that Miss Beecher had ever done -anything to injure him or anything which would reasonably cause resentment -in his mind. He had not gotten along well in his studies after going into -her room, had been more or less disorderly, and she, at the suggestion of -the principal, had seated him facing the wall with his back to the rest of -the school. She had occasionally sent him up to the principal, who had -sometimes flogged him.</p> - -<p>On the night of the deed Jean was seen walking up<span class="pagenum"><a name="Page_8" id="Page_8">[Pg 8]</a></span> the street with Miss -Beecher at something after seven o’clock in the evening; before eight -o’clock he was at home in his father’s house; there he was given an errand -to do and went down the street, returning shortly; spent some time in -reading and then went to bed. The next morning he was at his place of work -as already mentioned. The wrench which had been seen in his pocket was -found near the scene of the murder. These are the only known facts bearing -upon the case, previous to his own confession. For further items of -evidence see the hypothetical questions propounded by the prosecution and -by the defense—Appendix, pp. 109-138.</p> - -<p>The fact that he was the last person seen with her, that the monkey wrench -at one time seen in his pocket was found at the scene of the deed, that he -left his place of work and went down the railroad track toward Newport, -was sufficient to arouse suspicion. It is more than doubtful whether the -evidence could have resulted in an indictment by a grand jury, and -practically certain it never could have resulted in a conviction. The -absence of any real motive for the act would have been fatal to such an -attempt. The absence of evidence of a prearranged plan is also a serious -lack. It is true that, when we have the confession and the later -explanations, the presence of the monkey wrench in<span class="pagenum"><a name="Page_9" id="Page_9">[Pg 9]</a></span> his pocket and his -words that he “had use for it” sound like a prearranged plan, and yet -there is no real evidence here. He might have had the monkey wrench for a -dozen purposes and have given the same answer. Perhaps his threat to get -even with her, his remark “that if he had a revolver he would shoot her,” -may be considered more serious, but certainly no jury could convict him -merely on the basis of such statements.</p> - -<p>It is reasonably certain then that, had he not confessed, he never would -have been convicted even if he had been indicted. Let us now examine the -confession.</p> - -<div class="blockquot"><p><i>Gianini’s Confession</i>: Jean Gianini, being duly sworn, deposes and -says he resides in the village of Poland and is sixteen years old; -deponent further says, “I went to school to Lida Beecher and had -trouble with her and wanted to get revenge.</p> - -<p>“I met her above the hotel and walked up the street with her up beyond -the stone quarry; she had been a coming to see my folks about school -and was a coming up to see them last night and I told her they lived -up the hill, and when we got up there on the left side of the road, I -hit her with a monkey wrench that I got out of my father’s barn. I had -the wrench in my pocket when I went up.</p> - -<p><span class="pagenum"><a name="Page_10" id="Page_10">[Pg 10]</a></span>“After I had hit her about three times with the wrench, I hit her with -a knife several times, to be sure to finish her, and then I took her -over in the lot; I dragged her by the foot; and then I went home and -got there about 7:30.</p> - -<p>“The knife I stabbed her with was one that belonged to my father and I -took it home and put it in the pantry drawer.</p> - -<p>“I left the wrench somewhere near where I hit her. When I hit her -first, she did not scream but moaned.</p> - -<p>“She said she thought it was quite a ways and she did not see any -house.</p> - -<p>“I was not afraid when I got home; I was just as happy as I ever was -and didn’t think anything about it as I thought I had revenge.</p> - -<p>“I make this statement voluntarily and under no fear or threat and -knowing the same may be used against me.</p> - -<p><span style="margin-left: 2em;">“<span class="smcap">Jean Gianini.</span></span></p> - -<p>“Subscribed and sworn to before me this 28th day of March, 1914.</p> - -<p><span style="margin-left: 2em;">“<span class="smcap">Fred Moore</span>,</span><br /> -<span style="margin-left: 4em;">“<i>Justice of the Peace of Town of Russia</i>.”</span></p></div> - -<p>In its main points the confession must be accepted as true. To refuse to -accept it would be to admit at<span class="pagenum"><a name="Page_11" id="Page_11">[Pg 11]</a></span> once without further proof that the boy -was crazy or an imbecile, since, if it were not true, it is inconceivable -that any normal person would claim to have done such a deed. It is -accepted then by all that Jean Gianini killed Lida Beecher on the night of -March 27th, 1914. There is no difference of opinion on that point. It is -now only a question of his responsibility.</p> - -<p>We may now review the facts and see what is the evidence: first, that he -is an imbecile; second, that being an imbecile, he did not know the nature -and quality of his act and that it was wrong.</p> - -<p>Is Jean Gianini an imbecile? What is an imbecile? We cannot expect to -agree upon the question of whether Jean is an imbecile until we agree upon -the definition of imbecile. There are various ways of designating this -type of individual. Imbecility, as used in law in this country, may be -defined as “the state of mental defect existing from birth or from an -early age, due to incomplete cerebral development, in consequence of which -the person affected is unable to perform his duties as a member of -society.” The high-grade imbecile, such as the person under discussion, -feeble-minded as he is called in England, or the moron as we are coming to -call him in the United States, is one who is “capable of earning a living -under favorable<span class="pagenum"><a name="Page_12" id="Page_12">[Pg 12]</a></span> circumstances, but is incapable from mental defect, -existing from birth or from an early age, (<i>a</i>) of competing on equal -terms with his normal fellows, or (<i>b</i>) of managing himself or his affairs -with ordinary prudence.” These definitions were formulated by the Royal -College of Physicians of England, and accepted by the Royal Commission on -the Care and Control of the Feeble-minded.</p> - -<p>We may further designate this type of individual by saying that he has the -mentality of a normal child of from three to twelve years of age. These -age limits have been determined by examining thousands of the inmates of -institutions for the feeble-minded and comparing with normal children. The -inmates of the institutions are there because they were not capable of -managing their own affairs with ordinary prudence, because society has -discovered that they could not take care of themselves; they are -weak-minded; they must be cared for by the public. Careful examination of -such persons as have been determined by experience to be incapable of -managing themselves shows that they range in intelligence, as before -stated, from three to twelve years. There are practically none in these -institutions that have a mentality above twelve. Those under three are -called idiots.</p> - -<p><span class="pagenum"><a name="Page_13" id="Page_13">[Pg 13]</a></span>Considered from the standpoint of the growth and the development of the -child, we say that the imbecile is a case of arrested development; he has -stopped growing mentally, and has stopped previous to the age of twelve, -so that no matter what may be his actual age his mentality is that of a -child under twelve years.</p> - -<p>In the case of Jean Gianini, although he is sixteen years old, he has only -the mentality of a child of ten. Or, if a possible error of two years were -allowed, he would still have only the mentality of twelve and would be an -imbecile. As a matter of fact, there is probably nothing in the whole -career and history of Jean Gianini that is inconsistent with a mentality -under twelve; and on the other hand there are numbers of things in -evidence in connection with his crime that are so thoroughly typical of -high-grade imbeciles that any one with experience with this type of person -can have no doubt about it; but it is our purpose to show this by an -analysis of the case. We must first attempt to remove some of the -difficulties in the way of this view.</p> - -<p>First, why does it seem absurd to call Jean Gianini an imbecile? Mainly -because in the popular mind the term imbecile connotes only the low-grade -imbecile, the person who shows in every movement and action, if not<span class="pagenum"><a name="Page_14" id="Page_14">[Pg 14]</a></span> in -his very face, that he is “lacking,” is “not all there,” is “not quite -right,” or whatever may be the expression that we apply to those -unfortunate ones, of whom there are, sad to say, always one or more in -every community.</p> - -<p>Jean Gianini is not of that type; he is a <i>high-grade</i> imbecile; he is of -the grade that is only recognized by those who are intimately familiar -with imbeciles of all types. He is only discovered when we make a close -comparison between him and normal boys of the various ages. We may perhaps -liken it to the question of tuberculosis: the average man never recognizes -a fellow being as suffering from consumption until he is afflicted with a -cough which does not yield to treatment, is constantly expectorating, gets -thin and pale, and has other marked outward symptoms; the average person -would not find more than one or two consumptives among a hundred persons; -the expert physician, however, experienced with tuberculosis, recognizes -many more by signs and symptoms which he can describe with great accuracy, -and when he is allowed to apply his physiological tests and his clinical -thermometer and his microscope, the number increases enormously, and he -assures us that every seventh person will die of tuberculosis.</p> - -<p>It is hard then for many people to accept the<span class="pagenum"><a name="Page_15" id="Page_15">[Pg 15]</a></span> verdict that Jean Gianini -is an imbecile, largely because they do not realize what a high-grade -imbecile is.</p> - -<p>A second reason is found in the fact that we insist upon believing the -unbelievable. We view a crime like the one under discussion and say -frankly, “It is unbelievable that any reasoning, intelligent person could -commit such an atrocious act,” and yet we believe that this boy did; we -believe that such a grade of villainy exists and that it can suddenly -appear in a boy who never before manifested anything approaching it. The -fact is, that our instinctive revulsion against such a thought is the -correct view. The fact that Jean Gianini committed such a crime is itself -the strongest kind of evidence that he is not a normal boy. But turning -from imbecility in the abstract, let us examine concrete instances in the -life of Jean Gianini, for we shall find there the best possible -illustrations of the characteristics of an imbecile.</p> - -<p>We may begin at the most dramatic point—the crime itself. Since we know -practically nothing of the crime except through his admissions, we will -begin with the confession. And first, why was there a confession? It is -safe to say that there is not a sensible man or boy the country over who, -knowing the facts in the case, would not say, “What a fool Jean was to<span class="pagenum"><a name="Page_16" id="Page_16">[Pg 16]</a></span> -confess!” Nobody but an imbecile would have confessed under those -circumstances; they had no evidence against him, nor did they pretend they -had; he testifies that they told him that they thought he was guilty of -the crime; they did not pretend that they knew he was guilty; there were -no third-degree methods used; they had taken his clothing off and examined -him, but they had not found any blood or any evidence, and the clothing -had only just been removed when Jean began to tell his story. He had not -been promised any immunity if he should confess; in fact, he had been told -that anything that he said would be used against him, but still he -persisted in telling the whole story. But we do not have to rely upon the -fact that it looks foolish to us for him to have confessed, because we -have the fact, well known to all who have to deal with imbeciles, that it -is characteristic of them to do just this thing. They do not always -confess, it is true. It seems to depend largely upon how proud they are of -their deeds—and frequently the more atrocious these are, the prouder they -are of them. It is perfectly clear that such was the case with Jean. He -made some little attempt to get away, at least he made what appeared like -an attempt to get away; there really is no evidence that he was doing -anything more than he had done many<span class="pagenum"><a name="Page_17" id="Page_17">[Pg 17]</a></span> times before, going away from home to -seek work elsewhere, with that <i>wanderlust</i> which is also characteristic -of imbeciles. He walked down the railroad track toward Newport, not going -very fast, not taking any precautions to avoid being seen, and when met by -some one whom he knew, he came willingly back to Poland.</p> - -<p>There is the highest probability, perfectly clear to one who understands -imbeciles, that almost from the time the deed was done he had a strong -desire to tell somebody about it, to brag about it; but a certain -instinct, a certain feeling that he ought not to be caught, probably held -him back. But when at last he was taken back to Poland and into the -presence of the Deputy Sheriff; when his clothes had been removed and he -thought his story would get into the papers and he would become notorious; -then he began to talk. In spite of all the warnings and declarations that -he would suffer for it, he talked. At this point it is important to -remember that he is talking now to be heard; he is not confessing in order -to escape punishment, he is talking because he is proud of what he has -done; he wants to boast, wants to be talked about and written up, wants to -be notorious, a great criminal, as is evidenced in the course of the -trial. Remembering this, we <i>cannot believe all that he says in his -confession</i>.</p> - -<p><span class="pagenum"><a name="Page_18" id="Page_18">[Pg 18]</a></span>As already stated, in so far as it relates to the basal facts of the -crime, it is undoubtedly true; but when it comes to the finer details of -what he did, how he prepared, and what he claimed was his motive, we -greatly err if we accept everything he said. It is not in the sworn -confession, but it was in evidence that he said he sharpened the knife for -the purpose; the fact that he said he sharpened the knife for the purpose -should have no weight. It is precisely the kind of thing that he would put -in for effect. In fact all that he said after the deed as to arrangements -or plans or details must ever be questioned unless his statements can in -some way be corroborated, for this tendency to elaborate is so strong that -there is no possibility of putting any trust in his words.</p> - -<p>It is worthy of note that whereas the defense introduced many witnesses -who testified to Jean’s sayings and actions that showed silliness and -indicated childish intelligence, the prosecution neither rebutted this nor -produced witnesses testifying to anything in his previous conduct that -gave evidence of good judgment or intelligence appropriate to his years, -or that he had any moral development that would be normal for his age.<small><a name="f1.1" id="f1.1" href="#f1">[1]</a></small></p> - -<p>The evidences of his pride in the deed are scattered<span class="pagenum"><a name="Page_19" id="Page_19">[Pg 19]</a></span> throughout the -testimony. For example, at one time he said, referring to the deed, “You -would not think anybody could do a deed like that so quick, would you?” -When asked how he could get Miss Beecher to go so far up the hill in the -dark with him, he replied with a good deal of pride: “That’s easy! I told -her my father was building a house up on the hill and we went up there.”</p> - -<p>This leads us to another precaution which must be borne in mind in -considering this case. If Jean is an imbecile, then all our previous -conceptions must be changed, since the conclusions that we naturally draw -are based on the assumption that these facts relate to a normal man. To -illustrate: if Jean were a normal boy of sixteen, the fact that he -inquired as to the time of Lida Beecher’s being at the Post Office, that -he talked with her the day before about her promise to go with him to see -his father, the fact that he went off with her that night, that when he -reached his father’s house, he lied and said his father lived up over the -hill and led her up there, and then, as he said, struck her with the -monkey wrench, and so on, would all indicate premeditation and planning -and forethought; but the instant we conclude that Jean is an imbecile, -then these facts indicate nothing of the kind. It is not denied that such<span class="pagenum"><a name="Page_20" id="Page_20">[Pg 20]</a></span> -may have been the case, or that it is impossible for an imbecile to carry -out such a plan. But it is claimed that there is no strong presumption -that such was the fact, because the result can be accounted for in another -way. Jean being an imbecile, <i>it is entirely possible that he had no -premeditation of murder at all</i>, that he not only did not grind that knife -for the purpose, but that he did not have the monkey wrench in his pocket -for the purpose. On the contrary, it is possible that as he walked up the -hill with Lida Beecher he had no more thought of killing her than of -committing suicide. Indeed, it is much more plausible from all we know of -imbeciles, and of boys of his physical development, that there was an -entirely different purpose. That purpose was probably sexual. The writer -is not alone in this thought. Hardly any of the persons with whom he has -talked of this crime has failed to ask the question, “Was there any sexual -offense in the matter?” The absence of any evidence of assault of this -character has been a surprise to many persons; but it again is no surprise -when we remember that Jean is an imbecile; we know also that he is a -masturbator.</p> - -<p>While the writer has no theory to put forth in regard to this crime, yet, -for the sake of clearness and as an illustration of the imbecile type, let -us assume a plausible<span class="pagenum"><a name="Page_21" id="Page_21">[Pg 21]</a></span> hypothesis; that is to say, an hypothesis which may -fit the case and is entirely plausible from the standpoint of imbecility.</p> - -<p>Jean was sixteen years old, an age when sexual passion is strong. It is -the middle of the great adolescent period. The new physiological function -of sex is established, great psychic changes have occurred. The boy is -dreaming dreams, the imagination is active. In the normal boy this means -the evolution of ideals, ambitions, moral and religious ideas, attention -to dress and appearance, interest in the opposite sex. In the case of the -morally well-endowed boy, the sex impulses which have strengthened with -the development of the physical potency find their outlet in a kind of -vicarious functioning in the shape of polite and friendly association with -his girl friends, in chivalric attentions and devotions, with more or less -definite plans for future marriage and parenthood. In those with little or -no moral principle we see the impulse leaping over the social conventions -and attaining complete sexual gratification illegally.</p> - -<p>With the imbecile the case is different. The fires of sexual passion may -burn as vigorously as in the better endowed, but he lacks both the power -of control and the courage and ingenuity to overcome the social<span class="pagenum"><a name="Page_22" id="Page_22">[Pg 22]</a></span> barriers. -He masturbates. This banks the fires somewhat and requires no courage. If -stimulated by association with girls, he makes crude and imbecilic plans -for conquest. Lacking moral development and ignorant of the more subtle -means of accomplishing his purpose, he may resort to violence in some one -of the many possible ways. Often he is not conscious of what it is that is -driving him and hence does not know where satisfaction lies. Under these -conditions his violence may show no outward signs of being sexual. It may -show every degree from rough horseplay with girls, such as pushing, -pulling, grabbing hat, cloak, or other articles of dress, bantering, -teasing, and other forms of personal contact, up to physical injury, -torture, and even murder.</p> - -<p>Volumes could be written—indeed volumes have been written—showing the -tremendous force of this sex impulse at this age, and the multifarious -ways in which it expresses itself—many of them not showing any of the -signs that are usually considered as indicating a sexual disturbance. That -is to say, such acts are, by the uninitiated, not considered sex acts at -all. One incident of this kind is in evidence. “At one time Jean took two -little girls to a piece of woods and started to take their clothes off, -and when asked why he did it,<span class="pagenum"><a name="Page_23" id="Page_23">[Pg 23]</a></span> said he was going to play Indian and that -Indians were naked.” Dismissing the possibility that his explanation was -invented to conceal a definitely conscious sexual impulse, let us admit -that he gave his real reason for the act. Still it is clear to all who are -familiar with sex psychology that the subconscious reason for playing -Indian in that way was a sexual one. The procedure also shows a lack of -judgment and appreciation of the proprieties which argues strongly for -mental deficiency—especially as he was then between ten and twelve years -old. (For further items the reader is referred to pp. 113-120 of the -Appendix, where the hypothetical questions have summed up the testimony.)</p> - -<p>The imbecile is a coward. Jean Gianini is an imbecile. Unconsciously -impelled by that strong instinct he seeks the company of Lida Beecher. As -a matter of fact her friend, Miss Clark, testified that Miss Beecher had -been annoyed at his attentions. He contrives an excuse to get her to come -up to his house; when he reaches the house, he makes another excuse to get -her to go farther, not, as generally believed, with the purpose of -murdering her; perhaps only blindly following that instinct of sex and -desiring to be in her company; more probably with the half-conscious -purpose of satisfying his passion if he could<span class="pagenum"><a name="Page_24" id="Page_24">[Pg 24]</a></span> find a suitable -opportunity. They walk on; where they were going or how far they would -have walked no one will ever know, but there came a time when for some -reason her suspicions were aroused, or at least her common sense told her -that it was foolish to go farther. Of course we have nothing but Jean’s -statement, which may be true or may be false; instead of the simple -statement that she thought she would go back as she saw no light, there -may, for all we know, have been a strong argument; he may have made -improper proposals which she resented; this led to blows with the fatal -result. We have no means of knowing what actually took place at that spot. -But even taking Jean’s own account, when she remarked that “she thought -she would not go any further,” he saw that his plan was frustrated. Then -he struck her with the monkey wrench which he happened to have in his -pocket—for what purpose no one knows. Having struck her once, it was easy -to strike the second and the third time. It was only natural for an -imbecile to keep at it,—“finish the job” as he expressed it. According to -the evidence he struck her with the knife approximately twenty-four times, -finally hitting the jugular vein in the neck, as a result of which she -probably bled to death.</p> - -<p><span class="pagenum"><a name="Page_25" id="Page_25">[Pg 25]</a></span>As already stated, the writer has no desire to advance this as <i>the -theory</i> of the deed. But if Jean is an imbecile, this theory is fully as -good as that upon which the prosecution worked, and it eliminates entirely -all necessity for elaborate planning. Up to this point we have shown that -the fact of a confession and the character of the confession, both -difficult to explain on the basis that Jean is a normal boy of sixteen, -are entirely clear and perfectly characteristic of a high-grade imbecile.</p> - -<p>Let us look now at his actions immediately after the deed. It is in -evidence that Jean said he took the murdered girl by the foot because -there was no blood there and he did not want to get blood on his hands for -fear they would take his finger prints. Holding her by the foot, he -dragged her out of the road behind some bushes and left her in the snow. -He then went back into the road, making new tracks, which he made no -effort to cover. Nor did he make any effort to cover the old tracks or the -blood spots that were left along in the snow. Neither did he make any -attempt to hide the hat nor the umbrella nor the broken comb which were -left in the road; his care to take her by the foot where there was no -blood is cited as evidence of forethought and judgment; but what shall we -say<span class="pagenum"><a name="Page_26" id="Page_26">[Pg 26]</a></span> of his failure to cover up his tracks when it was easy to have done -so!</p> - -<p>Again we must remind the reader that we have nothing but the boy’s -testimony as to the fact that he took her by the foot or to explain why he -took her by the foot, but in accepting his testimony as true there is -nothing incompatible with high-grade imbecility.</p> - -<p>The one peculiar thing about Jean is that he has read more than most -imbeciles even of this high grade. But this peculiarity does not save him -from being an imbecile, since there are cases of imbeciles who have read -as much or even more than he. Furthermore, there is plenty of evidence in -the case that Jean’s interest in reading has gone along the line, -childlike, of crime. The various experts who examined him told of his -talking about the case of the New York gunmen, of the Pomeroy case, of a -murder in the South, and possibly others. He inquired about Mahoney, the -would-be assassin of Mayor Mitchell. In connection with these crimes his -reading of finger prints had made the same impression upon him that it -would have upon any boy. He remembered what he had read and perhaps acted -upon it, at least talked about it when the opportunity came, and pretended -that he considered it in his action.</p> - -<p><span class="pagenum"><a name="Page_27" id="Page_27">[Pg 27]</a></span>It needs no argument to show that all the rest of his conduct in leaving -things as he did was imbecilic. Even many a high-grade imbecile would have -been much more thoughtful and more careful to cover up the tracks in the -snow. That Jean did not do so is in itself almost an unanswerable argument -that he was an imbecile.</p> - -<p>He then went home, and having washed the knife in the snow, put it in the -pantry drawer. No evidence was produced, so far as the writer knows, to -prove that this was the fact; we do not know whether the knife belonged in -the pantry drawer and he put it back, or whether it belonged in his pocket -and when he was through, he put it back in his pocket or put it somewhere -else. Again, assuming that he told the truth, he certainly ran the risk of -being questioned as to what he had been doing with the knife. He then went -on an errand, and, according to his statement, went down to the railroad, -hoping to jump a freight train. When he found the freight had gone, he -hurried back home. These actions according to the prosecution indicate -careful planning and a desire to get away; realizing the enormity of his -deed he wanted to get out of town. Surely no normal youth of sixteen would -have failed to get out of town even though he had missed the freight -train; but his<span class="pagenum"><a name="Page_28" id="Page_28">[Pg 28]</a></span> conduct is perfectly characteristic of an imbecile. One -simple thought having failed to materialize, without planning further he -goes back home, acts as no one but an imbecile could under such -circumstances,—goes to bed, sleeps soundly, gets up the next morning, and -goes to work. Then he makes another effort to get away. But how crude an -effort it is. He walks quietly along the railroad track and, as already -stated, makes no attempt to hide, but passes the trackman and goes into -the station at Newport. When he meets a person from his own town, comes -promptly and quietly back home. Surely an act much more befitting an -imbecile than a normal boy of sixteen!</p> - -<p>The writer was asked upon the stand whether these incidents indicated to -his mind that Jean had intelligence and had planned this thing carefully. -The answer was emphatically, “No.” At every turn they indicate an -imbecile. We could cite many instances of imbeciles in our institutions -who have done things of exactly the same character. Our high-grade boys -frequently plan to run away, and often their plans are much more -elaborately conceived and much better carried out than Jean’s was.</p> - -<p>In speaking of the confession it may be noted also that not infrequently -our boys when they have made a<span class="pagenum"><a name="Page_29" id="Page_29">[Pg 29]</a></span> plan to run away cannot keep it until they -can carry it out, but make a confession. They go to some attendant or -officer and, without any compulsion, actually tell of their plan. In this -way a great many times their purposes are frustrated. When two boys plan -to run away, it is rare indeed if they carry out their scheme; it is -almost certain that one of them will confess to somebody.</p> - -<p>Jean manifested throughout that love of display and notoriety, that -longing to be the center of observation and talk, which is so -characteristic of imbeciles. He asked the alienists who were examining him -if his picture would be in the paper and what the people were saying about -him. According to the testimony of the experts who examined him in jail, -every occasion on which he was examined was regarded by Jean with -pleasure, and his only thought apparently was that he was the center of -observation. Instead of showing some realization of his crime and that he -was exerting himself to make an appearance that would be favorable to his -case, all the evidence was of the opposite character. None of the -witnesses for the prosecution were able to hide the fact that he was -light-hearted and frivolous, and, in a word, “showing off,” throughout -these various examinations.</p> - -<p><span class="pagenum"><a name="Page_30" id="Page_30">[Pg 30]</a></span>Throughout the whole time of the writer’s examination of him Jean never -for one moment evidenced by word or action any thought as to how his -conduct or his answers to questions would affect his case. As was pointed -out by the defense, quite in keeping with his mentality was his statement -to the experts employed by the prosecution, that he had been told not to -talk, in spite of which he talked incessantly and told everything that -they wanted. The fact of the matter was that his desire to show off so far -overcame any thought of self-preservation that he talked and acted freely -in spite of his lawyer’s caution that he should not answer questions. His -conduct in the court room throughout the trial was that of an imbecile, of -a child, who had no realization of the predicament that he was in and no -purpose to make a good appearance. He was in the limelight and he enjoyed -it. Even when the most gruesome details of his deed were being recited, he -evidenced no feeling of horror or sorrow or fear; on the contrary he was -indifferent, and frequently even laughed at the incidents that were -related. He showed no excitement after he got home that evening; he slept -well. His only comment on his prison cell, which to a normal person would -have been loathsome in the extreme, was that it was better than St. -Vincent’s, where he had been at<span class="pagenum"><a name="Page_31" id="Page_31">[Pg 31]</a></span> school. Even when the experts introduced -by his own counsel were examining him, and when, had he been intelligent, -he should have known that it was to his advantage to make the best -possible appearance, to give them every possible help, yet when his dinner -was brought into his cell, he could think of nothing but eating and -ignored the people who had been sent to help him. As one of the experts -testified, “As between soup and safety, Jean prefers soup.”</p> - -<p>These facts and circumstances alone are enough to satisfy any person who -is familiar with the character of the inmates of our institutions for the -feeble-minded that Jean was an imbecile and really belonged in an -institution. But besides these circumstances several witnesses were -introduced who testified to the curious and childish actions of Jean in -his past history. Quite recently, he had tried to catch pigeons by putting -salt on their tails. The prosecuting attorney called attention to the fact -that almost every man remembers going through the same experience, but it -may be safely asserted that this is not done by any normal boy after the -age of twelve. It is a childish act, and indicates a mentality of less -than eleven.</p> - -<p>Peter Black, the village blacksmith, testified that some one sent Jean to -him one day for “strap oil”;<span class="pagenum"><a name="Page_32" id="Page_32">[Pg 32]</a></span> that he carried out the joke by slapping -Jean with a strap, but was unable to make him see that the whole thing was -a joke. He teased and bullied the other children in a way that is -characteristic of the high-grade imbecile. Mrs. Anna Newman testified that -he was a restless boy, and that sometimes he would answer her questions -and sometimes not. Every superintendent of an institution for the -feeble-minded would instantly recognize these characteristics as common -among his inmates. The reader will find more of these incidents in the -Appendix, pp. 113-119.</p> - -<p>One of the unique features, so far as court procedure is concerned, was -the introduction into the case, of examinations by means of the -Binet-Simon Measuring Scale of Intelligence. The writer’s examination of -Jean consisted largely of the use of these tests, and as a result he -estimated his mentality at approximately ten years of age. It was somewhat -difficult to estimate his mentality with the usual exactness since others -had already used the tests, and it was impossible to say how much Jean had -learned from his previous examinations. As a matter of fact, in some cases -at least, he had not profited by the experiences which should have helped -him greatly had he been a normal boy. For example, one of the tests is to -draw from memory a diagram which<span class="pagenum"><a name="Page_33" id="Page_33">[Pg 33]</a></span> he has been allowed to study for ten -seconds. It is clear that if one were given this test two or three times, -at the last trial he should have a pretty good idea of it and be able to -draw it correctly. Although the writer’s use of this test was in the last -of the series of those who tested him, yet he did not succeed in drawing -it. This is usually drawn by a child of ten years. When asked to repeat a -certain sentence, he replied, “Oh, I have been asked that a hundred -times.” But in spite of the fact that he had heard it several times he -failed to remember it, and yet this sentence is generally remembered by a -child of twelve.</p> - -<p>This is not the place nor is it necessary to discuss the Binet tests -themselves. A word, however, may be said as to why the experts for the -prosecution did not get the same results with the tests that those of the -defense obtained. Also it seems necessary to make a brief explanation, -since the prosecuting attorney failed so markedly to understand the tests -in spite of the fact that he had had the instruction of one of his own -experts who used them. One of the prosecution’s experts told the writer -that he did not ask Jean any questions except those in the twelve-year -list, and he “seemed to do those satisfactorily.” There are two sources of -error in this. In the first place, Jean’s<span class="pagenum"><a name="Page_34" id="Page_34">[Pg 34]</a></span> failures were not only in the -twelve-year, but in the eleven and ten. Secondly, if Jean seemed to do the -twelve-year tests correctly, it could only have been because they were -wrongly used. The Binet Scale is not, as the prosecutor insisted on -stating, an “arbitrary system.” It is not a set of questions to which - -there are definite and fixed answers that are correct, and from which any -deviation is marked a failure. Nor is it a set of questions the answers to -which can be judged as to their correctness by the so-called “common -sense” of the investigator. To illustrate: Jean was asked to give the -definition of the word “charity”; he said, “Charity is giving.” The -prosecuting attorney insisted that this was a correct answer, because, as -he said, “Charity <i>is</i> giving.” This is mere sophistry. It is not a -question as to whether “charity is giving” is a theoretically correct -answer to the question; the important point is, that such an answer is -<i>not the kind of answer that is given by twelve-year-old children</i>. This -has been proved by asking hundreds of twelve-year-old children to define -“charity.” Practically 75 per cent of such children include not only the -idea of giving, but the other necessary idea of giving to some one who is -in need. The answer, “Charity is giving,” is characteristic not of -twelve-year mentality, but of something<span class="pagenum"><a name="Page_35" id="Page_35">[Pg 35]</a></span> under that,—ten or less. So -throughout the system the scale must not be judged by what seem correct or -incorrect answers to the inexperienced adult. The value of an answer can -only be known by knowing the character of answers that are given by -children of the various ages. The point is not always that this answer is -or is not technically correct, but that it is not the kind of answer which -a child of the specified age should give. Therefore, it indicates that he -is not of that age, but below it. This was the error into which the -prosecutor and his alienists had fallen in their use of the tests in the -case of Jean Gianini.</p> - -<p>Jean’s school record was the serious stumblingblock to many persons who, -from the facts, notably those already cited, were inclined to think that -possibly he was an imbecile. To many of these persons that record seemed -to indicate a normal boy. The teachers and the principal testified that he -did his work well through the fifth grade and got excellent marks, even -getting 100 per cent in some studies. They lost sight, however, of the -fact that Jean was fourteen or fifteen years of age and in a grade which -he should have been in at eleven, namely, the fifth.</p> - -<p>As a matter of fact, Jean’s school experience, when taken as a whole, is -most confirmatory of his imbecile<span class="pagenum"><a name="Page_36" id="Page_36">[Pg 36]</a></span> grade. It was proved in court, but not -fully appreciated, that Jean got along well through the fifth grade, but -<i>when he went into the sixth grade, he failed</i>.</p> - -<p>Professor Robinson testified that when Jean was transferred to Miss -Beecher’s room, his troubles began. The boy did not get along nearly so -well after the change and he dropped back in his studies. His teacher was -obliged to report him a number of times to the principal, who twice -whipped him with a piece of rubber hose. Failing to make his studies under -the new standard, he was made to occupy a special seat apart from the -other pupils, at the instance, if not the actual order, of Miss Beecher.</p> - -<p>The witness further testified that in the last days of his school life -Jean dropped, <i>to a very marked degree</i>, in his standing in his studies. -This falling off in Jean’s ability was <i>attributed to his teacher</i>. As a -matter of fact, the falling off was due to the fact that Jean had <i>reached -his limit</i> in the fifth grade. He attained to that height because of a -good memory, which is characteristic of many imbeciles and is in no way -indicative of normal intelligence. It is also very common for children of -this type to get through the fifth grade and fail in the sixth. They have -mentality enough to carry them to that point, but not farther.</p> - -<p><span class="pagenum"><a name="Page_37" id="Page_37">[Pg 37]</a></span>It is a satisfaction to realize that Jean’s failure in school with Miss -Beecher is in no way due to the inefficiency of his unfortunate victim. It -was due simply and solely to the fact that Jean was an imbecile and had -reached his limit. These two facts of a good memory and of good school -work in a few school grades have deceived many people as to the -intelligence of a child.</p> - -<p>It should be remembered that many imbeciles do not show their defect until -at the age of eleven or twelve when they are in the fifth or sixth grade.</p> - -<p>One of the witnesses for the prosecution said that he considered that Jean -was normal and that his apparent backwardness was due to lack of -schooling. This is a common error in all such cases. If asked why a boy -should be backward through lack of schooling when he has been to school -and has had every opportunity to learn, it is common again to fall back -upon the idea that he has not studied. He has been a wild, wayward boy, -playing truant, more or less, and has never applied himself, therefore he -is behind his grade and is dull and backward. Again, while not denying -that there are children of perfectly normal intelligence who seem to be -misfits in school or who seem more interested in other things than in -their school work, or children who will not study because of dislike for -the teacher or for<span class="pagenum"><a name="Page_38" id="Page_38">[Pg 38]</a></span> various other reasons, yet the reader must be reminded -that a study of the high-grade defective shows that he is continually -being confused with these very exceptional children who have the ability -but who do not study. In other words, when a boy does not get along in -school, even though it is evident that he does not study, the strong -probability is that he does not study because he has not mind enough to -appreciate the work, to understand it, hence to have that highest of all -incentives to work, success. The fact that the majority of boys do get -their lessons and get along well in school should be a strong argument -that there is something seriously wrong with those that do not succeed.</p> - -<p>It may further be asked: How does the fact that the boy has not succeeded -in school affect his examination by the Binet test? Experience has shown -that the test is affected but slightly. In other words, the mind develops -regardless of school and school training. As long as we ask only such -questions as call for a general intelligence and do not call for specific -school instruction we are reasonably independent of such instruction. As a -matter of fact, nearly all of the questions of the Binet Scale are free -from this objection. Some of them, it is true, are a little helped if the -child has been to school and correspondingly hard if<span class="pagenum"><a name="Page_39" id="Page_39">[Pg 39]</a></span> the child has not -been to school; but, on the whole, they do not affect the final rating to -any serious extent. This has been proven repeatedly by normal children -who, on account of sickness or for other reasons, have not been to school, -and yet can pass the Binet tests for their own age.</p> - -<p>We must now turn to the question of cause. If we can account for Jean -Gianini’s imbecility, it will be much easier to believe in it. Much has -been written on the subject of the causes of feeble-mindedness. Certain -fundamental principles have been agreed upon. It is now known that at -least 66 per cent of feeble-mindedness is hereditary; that is to say, the -individual is feeble-minded because he comes from stock in which -feeble-mindedness exists. There is another group in which there are -practically no other feeble-minded persons in the family or among the -ancestors so far as can be discovered, but there is, on the other hand, a -great deal of bad physical history; there may be epilepsy, alcoholism, -insanity, or other serious physical disturbances. Finally, we have a group -in which there is history of some accident, either to the child at the -time of birth or after birth, or to the mother previous to the birth of -the child.</p> - -<p>In Jean’s case we have no history of accident or<span class="pagenum"><a name="Page_40" id="Page_40">[Pg 40]</a></span> injury to the child -himself. The pedigree or family tree has not been worked up and we do not -know what there may be. It was in evidence that the grandfather was born -on the south side of the Alps; and there was some slight attempt to imply, -since cretinism is very common in that region, that possibly there was -some cretinous condition in the family. All this is not impossible; and if -it existed in the grandfather or even in the great-grandfather, such a -condition might reappear in the grandson in the form of imbecility; yet in -view of our present knowledge, or rather our lack of knowledge on this -subject, this line of argument is too vague to enable us to draw any -conclusions.</p> - -<p>The fact that the mother of Jean was insane and alcoholic justly had great -weight. Before her first child was born she broke down mentally and was -probably never “right” after that time. The first child lived to the age -of seven and from the description was clearly an idiot. The second child -is entirely normal. Jean, who is the third child, did not talk until he -was five years old.</p> - -<p>Our general studies have not yet gone far enough, and certainly our study -of this particular family is far from sufficient, to enable us to decide -whether this is a<span class="pagenum"><a name="Page_41" id="Page_41">[Pg 41]</a></span> matter of heredity or whether we shall say that Jean’s -condition as well as that of the first child is traceable directly to the -mother’s insanity or to her alcoholism.</p> - -<p>For the present purpose, of course, it does not matter. We see in these -facts, whether we regard them as causes or merely as symptoms of a deeper -lying cause, sufficient reason for Jean’s being an imbecile. There is -every reason to believe that Jean Gianini is an imbecile of high grade. -The next important question that arises is a legal one of whether, being -an imbecile of high grade, he knew the nature and quality of his act and -that it was wrong.</p> - -<p>Before discussing this let us consider two other cases—after which we may -discuss the general proposition of whether high-grade imbeciles know right -and wrong.</p> - - - -<p> </p><p> </p> -<hr style="width: 50%;" /> -<p><span class="pagenum"><a name="Page_42" id="Page_42">[Pg 42]</a></span></p> -<h2><a name="CHAPTER_II" id="CHAPTER_II"></a>CHAPTER II</h2> -<p class="title">THE CASE OF ROLAND PENNINGTON</p> - - -<p>On November 7th, 1913, Lewis S. Pinkerton, the manager of a certain farm -in Delaware County, Pennsylvania, suddenly disappeared. As it seemed -probable that he was the victim of foul play the detectives set to work -and in due time arrested George March, the dairyman on the farm, and -Roland Pennington, a farm laborer. Suspicion was directed to these two men -largely through the testimony of the woman who was supposed to be the -so-called common-law wife of March. At his trial it was shown that he had -another wife living, and consequently she did not even have that as a -claim upon him. This woman had heard groanings from the direction of the -barn, and later when March came into the house, had noticed blood on the -towel and on his clothing.</p> - -<p>The body of the lost man could not be found. After being taken to prison -March accused Pennington of the crime, admitting that after the deed was -done he <span class="pagenum"><a name="Page_43" id="Page_43">[Pg 43]</a></span>assisted young Pennington in disposing of the body, because, as -he said, he was afraid that he himself would be accused of the crime. -Having made this admission, he took the officers to a wood some miles away -where the body had been buried in a rude, shallow grave.</p> - -<p> </p> -<table border="0" cellpadding="0" cellspacing="5" summary="table"> -<tr><td align="center"><img src="images/img1.jpg" alt="" /></td> - <td><span class="spacer"> </span></td> - <td align="center"><img src="images/img2.jpg" alt="" /></td></tr></table> -<p class="center"><span class="smcap">Roland Pennington.</span><br /> -(By permission of “Alienist and Neurologist.”)</p> -<p> </p> - -<p>When Pennington was confronted with March’s accusation, he too made a -confession, which, however, implicated March quite as much as himself.</p> - -<p>March was tried in Delaware County, and convicted of murder in the first -degree. The defense was, in accordance with the above statement, “that he -had nothing to do with the crime itself, merely assisted in disposing of -the body.”</p> - -<p>Pennington’s trial occurred in June, 1914, when he also was convicted of -murder in the first degree. The defense in this case was imbecility and -irresponsibility. Although the jury did not accept this view, the case is -a most interesting one from the standpoint of criminal imbecility.</p> - -<p>The story of the crime is probably best given in Pennington’s own words, -since his confession has all the marks of truthfulness and was evidently -accepted by the jury in the March case. It was almost exclusively on the -strength of this testimony that March was convicted.</p> - -<div class="blockquot"> -<p class="center"><span class="pagenum"><a name="Page_44" id="Page_44">[Pg 44]</a></span><i>Statement of Roland Pennington as to the Pinkerton Homicide</i></p> - -<p>I, Roland Pennington, being duly sworn according to law depose as -follows:—</p> - -<p>I went to work at the Wilson farm about October 7th; I boarded with -George March and his wife; George worked on the farm too; he was the -butter maker; from the time I went to the farm, George was always kind -and good to me; George had charge over me when Lew was not there; -George would loan me money when I wanted any, and several times took -me to Gradyville with him, when he would take me over to the hotel and -treat me to a drink; about a week or two after I went to the farm, -George had a fight with his wife at the dinner table; George told her -she was too intimate with Lew and a painter, who was working there; -she talked back to George and George threw things at her; after dinner -George told me that what he said to his wife was true; that was the -first I knew about George’s trouble with his wife; after that George -talked to me about his wife all the time; once I told George I would -like to go West; one day George said he was going to take the painter -to law, and get some money from him, and if I would stick by him, he<span class="pagenum"><a name="Page_45" id="Page_45">[Pg 45]</a></span> -would divide up with me and take me West. Afterwards he talked more -about Lew and his wife; one day he said if it didn’t stop, he would -break up, sell the furniture, and go West, and that if I would save my -money to help out, he would take me with him; one day George’s wife -was away all day, Lew was away that day too; they came home about the -same time; George told me afterwards that he accused his wife of being -with Lew; that night Lew came in the cow stable while George and I -were milking; they had some words, but I could not hear what they -said; George looked pretty mad and Lew was excited; George told me -afterwards that he had accused Lew of being with his wife and Lew -denied it; he also said it was as much as he could do to keep from -getting up and smashing Lew in the face. On several different times -when we were working together, George said that if Lew didn’t stop -going with his wife, he would put a stop to it; George had charge over -me when Lew was not at the farm, and one time when I asked Lew for -some money to buy shoes, he would only give me two dollars, and gave -five dollars to George to buy shoes for me; after the first of -November, George said, “Lew hasn’t paid me. I wonder why”; he said -this on two or three different occasions; on Thursday,<span class="pagenum"><a name="Page_46" id="Page_46">[Pg 46]</a></span> November 6th, -George came to me and said, “Well, Rol, Lew paid me to-day.” I said, -“Did he?” and he says, “Yes, he had a big bunch of money on him. Did -you ever see a thousand dollar bill?” I said, “No, I never saw one.” -He says, “Well, neither did I. What figures ought a thousand dollar -bill have on it?” I says, “I don’t know. A thousand is one and three -noughts after it.” He says, “Well, I asked the Mrs. about it, and if -that’s right he had one of them on him.” This took place Thursday -afternoon about half past three in the stable. That night about -quarter after five while George and I were separating the milk down in -the milk house, George said, “How would you like to have that bunch of -money Lew’s got on him?” I don’t remember saying anything to that. -There was nothing more said about it that day. The next morning, -George and I were separating the milk down at the milk house before -breakfast, and George said, “Well, Lew will have that bunch of money -on him to-day. Let’s get it.” I said, “What do you mean?” He says, -“Why, do away with him.” I says, “What? Kill him?” He says, “Yes.” I -says, “No. I won’t kill him.” He says, “Well, you start it and I’ll -finish it. I got a blackjack up at the house, I used one time myself -to knock a man in the head with out West, to<span class="pagenum"><a name="Page_47" id="Page_47">[Pg 47]</a></span> get seventy-five dollars -from him to come East on.” He said he was in a bank in the West and -saw this man get the money—the seventy-five dollars—and when the man -came out, he managed to get a ride with him, and while they were going -along the road, he hit the man in the head and knocked him out, and -went on his way. I didn’t say anything.</p> - -<p>That afternoon, about three o’clock, George came to me in the milk -house, while we were getting the milk buckets and cans ready to take -to the barn, and handed me the blackjack and said, “Here’s the -blackjack; you can do it with that.” I put it in my pocket. We then -went to the barn. From then up to about five o’clock, while we were -working about the barn, George kept saying to me, “Don’t lose your -nerve. The first chance you get after the workmen are gone, get him.” -Several times he said, “Don’t miss your chance—Don’t forget.” Lew was -away that afternoon. He came home while George and I were milking.</p> - -<p>After we finished milking, we took the milk down to the milk house; -then I went back to the barn to feed the horses. While I was feeding -them, George came up from the milk house to feed the calf. I generally -fed the calf. George seldom did it. In feeding the horse, I had to -carry hay around from the old horse<span class="pagenum"><a name="Page_48" id="Page_48">[Pg 48]</a></span> stable to the new one. In going -around for some hay, I met George right outside the old horse stable -door. He said, “Lew will be around here pretty soon. You can get him -then.” After I had finished feeding the horses, I took the fork over -to the old stable. As I was doing so, Lew went in the new stable. I -met George at the stable door when I came out from putting the fork -away. George said, “He’s in the new horse stable; go get him.” I went -in and told Lew there was a nail in the last stall next to the box -stall and that he had better look at it. He went up to look at it, and -while looking at the place I told him, I struck him on the head with -the blackjack. He turned part way around, threw up his arm, and said, -“Hey, what are you doing?” I struck at him some more; he rushed at me -and we clinched. This happened in the stall alongside a horse. After -we clinched we got out into the passageway, back of the horses. Lew -soon got the blackjack away from me. As we came out into the -passageway, I think I saw George near the door. He afterwards told me -he heard when I hit Lew first and that he came in, and that while Lew -and I were wrestling, Lew made a grab for him and knocked his glasses -off. Lew and I tussled quite a while up and down the passage back of -the horses; Lew was hollering all the time; I think<span class="pagenum"><a name="Page_49" id="Page_49">[Pg 49]</a></span> we went down -once, got up again, and went down again, with Lew on top of me; then I -got on top of him. At about that time he called for George; George -must have gone out in the meantime, for when Lew called for him, I -remember the door being opened and George coming in. He came up and -asked Lew what was the matter, whether the horses kicked him. Lew -said, “Yes, yes, help me.” George stooped over and whispered to me, -“Where is the blackjack?” I told him Lew had it. Lew then said, -“George, you are no kind of a man.” Whether George got the blackjack -or not I don’t know. He then went around by Lew’s head and started -kicking. I had my hand on Lew’s head and the first kick George made he -kicked my knuckles. I then left go of Lew and got up. While getting up -George was continuing to kick him in the head. After continuing to -kick him in the head after I got up, George went around and kicked and -stamped Lew in the side. Then he stopped—and said as though to -himself—“Which side is his heart on?” Then he started to kick him on -the other side. After a while he stopped. I don’t remember whether he -said anything to me or not. Anyhow, George took him by the head and -shoulders and I by the feet and we carried him into the box stall. -Then George went<span class="pagenum"><a name="Page_50" id="Page_50">[Pg 50]</a></span> up to the house for a lantern. I waited for him at -the stable door. He came down with the lantern and went in the box -stall, felt Lew’s heart, and then stood up and stamped him some more; -then he searched him.</p> - -<p>In tussling with Lew I had gotten blood on my coat, pants, and shirt. -After George searched Lew, we left the stable, and I asked George -where the overalls were that the whitewasher had worn. George said he -thought they were up at the wagon house. We went there, but could not -find them. George did find an old pair of Lew’s pants and a shirt. He -gave them to me and I put them on. While I was putting them on George -went in the house. I went in later, went to my room, put on another -coat, and went down to supper. George finished his supper first; got -up and told the Mrs. he was going to Gradyville after some sulphur for -the pigs. He then asked me if I wanted to go along with him. I said I -would. Then we went to the barn; George got two bags in the old horse -stable and put one inside the other. Then we went in the new horse -stable where Lew was. George set the lantern down and told me to take -hold of his arms and lift his head and shoulders. I did so, and George -slipped the two bags over Lew’s head and body. Then George tied a<span class="pagenum"><a name="Page_51" id="Page_51">[Pg 51]</a></span> -cloth around the neck overtop the bags. Then he told me to hitch the -horse Dick to the milk wagon. I did so. Then I returned to the new -horse stable. George then said we will carry him up to the wagon. I -had left it in front of the wagon house at the barn. George said, “We -had better take him up through the barn.” George took him by the head -and shoulders and I by the feet. We carried him up through the barn. -When we got to the wagon, George got some bags and put them on the -floor of the wagon. Then we put the body in. Then we got a blanket and -threw it over the body. Then George got two shovels and a grubbing -hoe, and put them in the wagon. Then we drove away.</p> - -<p>After we got started George said we would bury the body in -Lauterback’s woods. When we reached the road that he said led up to -that woods, he said it was too near home and kept on driving. After -driving for a long time we came to a pair of bars. He pulled up there -and said, “That wood over there looks pretty good.” Then he drove on a -little piece further. Then he said we better go back to that woods. -Then we turned around and went back to the bars. George got out there, -handed me the lines, and he took down the bars. I drove in, he put in -the bars, and led the way, and I drove on across a field, till we came -to another pair of<span class="pagenum"><a name="Page_52" id="Page_52">[Pg 52]</a></span> bars. He took them out and then led the way across -the fields to the woods. When we got there, George picked out a place; -said he thought it would be an all right place. Then we dug the grave. -Then we went back to the wagon, got the body, put it in the grave, and -covered it up. Then we returned home.</p> - -<p>That night George suggested that we clean up the marks in the morning. -The next morning we got up early and cleaned up the marks on the floor -and washed the walls. George said to make sure there would be no marks -on the wall it would be better to whitewash it. He said he would do -that and for me to go to other work, so I started to haul stone. -George also said to take my clothes to the milk house and burn them. I -did take them there on Saturday morning. George was there and I gave -them to him. He said he would burn them. On Saturday, George came to -me and gave me seven dollars and a watch and a ring which he got off -of Lew when he searched him. He told me he had only gotten fourteen -dollars and five cents and to pawn the watch and chuck the ring. I -threw the ring away and took the watch to Philadelphia and pawned it -at Carver Reeds on Market Street near Fifteenth Street for four -dollars. When I saw George the next morning, Sunday, I gave him the -pawn ticket and said<span class="pagenum"><a name="Page_53" id="Page_53">[Pg 53]</a></span> I would give him two dollars when I got the -change. He said never mind that.</p> - -<p><span style="margin-left: 2em;">(<i>Signed</i>) <span class="smcap">Roland Pennington</span>.</span></p></div> - -<p>Here again is a crime so abhorrent in its details that it is unbelievable. -There is no excuse for it, no adequate motive, no justification whatever -so far as the boy, Pennington, is concerned.</p> - -<p>For March, it is easy to believe, as the jury evidently did believe, that -he was actuated by what might be called an insane jealousy of the woman -with whom he was living. We are familiar with the lengths to which such -jealousy can lead a man. But why Pennington allowed himself to be made the -dupe of this jealous man cannot be explained; it is absolutely -incomprehensible on any theory that assumes that he is a normal boy of -nineteen years.</p> - -<p>It was in accordance with this feeling that some one raised the inquiry as -to whether the boy was possibly a mental defective. This question having -arisen, the writer was asked to examine him and give an opinion as to -whether or not he was normal.</p> - -<p>Accordingly the examination was made in the Delaware County jail in Media; -this showed that the boy had a mentality of about eleven years according -to the Binet Scale. He could not do any of the tests for age<span class="pagenum"><a name="Page_54" id="Page_54">[Pg 54]</a></span> twelve and -failed on some of those in ten and eleven. This indicated an intelligence -scarcely up to eleven.</p> - -<p>Further examination by other methods, the circumstances of his life, his -appearance, and his school history, all tended to corroborate this view. -The boy was nineteen years old when he committed the crime; two years -before he had left Westtown Boarding School, after an attendance there of -two and a half years. When he entered the school, the teachers graded him -as of a capacity equivalent to the fifth grade in public school; he, -therefore, began sixth-grade work. He never got out of that grade. For two -and a half years he studied and tried to pass. He was absolutely unable to -do sixth-grade work. Sixth-grade work, it will be remembered, is about the -grade for a twelve-year-old normal boy; thus we have a striking agreement -between his school experience and his Binet tests. By the Binet test he is -eleven; in school he cannot do twelve-year work!</p> - -<p>Asked what he had done since he left the school, he said he had done “a -good many things.” Asked where he had worked, he said he did not remember -all of the places. As a matter of fact, he had had exactly the career that -the high-grade imbecile usually has out in the world. He either gets -discharged from his positions<span class="pagenum"><a name="Page_55" id="Page_55">[Pg 55]</a></span> because of incompetency or he leaves -because of his nomadic tendencies. The imbecile rarely stays long in a -place if free to move.</p> - -<p>In addition to the above, the reader will see many evidences of -childishness in his confession. He talks like a child; he alludes to -George March as a child would; he says, “He has charge over me”—“He was -kind and good to me; he used to take me to Gradyville,” etc. Even -Pinkerton gave the money to March to buy shoes for Pennington. Again -Pennington says, “George said he was going West and he would <i>take me with -him</i>.” One cannot imagine a nineteen-year-old youth, or even a -fifteen-year-old, talking in this way. By the time a boy reaches the -latter age, he is in his own mind the equal of anybody. He would not say, -“George took me.” He would say, “We went.” He would say, “I got along all -right with George,” or some other expression whereby he would assert his -own manhood and not take the rôle of a child.</p> - -<p>While in jail he showed no realization of the seriousness of his -situation; showed no remorse for his deed; took no interest in his case. -For example, he was told by his lawyer not to allow himself to be examined -by any doctors without sending for his counsel; in spite<span class="pagenum"><a name="Page_56" id="Page_56">[Pg 56]</a></span> of this warning -he allowed himself to be examined by four physicians at one time and by -two at another, and never mentioned the matter to his counsel even after -it was done.</p> - -<p>In the confession made to the prosecuting attorney one notices, as in the -one we have quoted, that he appears simple and innocent; answers the -questions often in terms of the questioner instead of by a simple “Yes” or -“No,” which would be natural for a normal young man; he is uncertain and -hesitates; he says, “I think,” in a great many cases where it was strongly -to his advantage to speak positively.</p> - -<p>After the deed was committed he <i>took no care to remove the evidence</i>; -everything that was done in that connection was done at the <i>suggestion of -George March</i>. All the way through this part of the confession it -reads—“He led, I followed,” “I did as he told me.”</p> - -<p>Having satisfied ourselves that Roland Pennington is a high-grade -imbecile, the next question is, even as an imbecile, why did he do this -deed.</p> - -<p>In the case of Jean Gianini we found that it was for revenge of a fancied -wrong, that is, according to his own statement. If not that, it may have -been a sexual matter. In this case neither motive applies, and we have -only two possible theories. The theory of the state was<span class="pagenum"><a name="Page_57" id="Page_57">[Pg 57]</a></span> that it was for -robbery. Indeed, Roland himself seems to admit that this was the motive. -But this again is only a part of his imbecility. He was given a leading -question by the prosecution and was weak-minded enough to say, “Yes.”</p> - -<p>As a matter of fact one finds it very hard to get any evidence from the -whole situation that he really was lead by cupidity. There is no evidence -of any elaborate plans in regard to money, either as to getting it or as -to what was to be done with it when he got it. March had talked about a -thousand-dollar bill, and asked Pennington how he would like to have “that -bunch of money.” Pennington says he does not remember saying anything in -reply. This does not look as though it aroused any great emotion in him. -Later March said—referring to the money Pinkerton was supposed to have -“on him”—“Let’s get it.” Pennington asks, “What do you mean?” He is -clearly thinking less of the money than of what he begins to dimly -understand they are to do. When he understands that they are to kill him, -he says distinctly, “No. I won’t kill him.” Never again is the subject of -money mentioned. In all March’s urging him to do the deed he never says, -“Remember the money,” or alludes to money in any way.</p> - -<p><span class="pagenum"><a name="Page_58" id="Page_58">[Pg 58]</a></span>Perhaps we are begging the question. If Pennington were really intelligent -and shrewd, he would not say anything in his confession that would supply -a motive for the crime. Not only does the whole confession give ample -evidence that he was not sufficiently intelligent to protect himself in -this way, but the conclusion of the matter shows clearly that it was of -practically no importance to him. After the deed, March gave him seven -dollars! He said, “I thought there was more.” That is all. He did not -insist or complain. He accepted it calmly and without protest. He even -proposed to give March half of the four dollars received for the pawned -watch. Imagine a nineteen-year-old boy with full consciousness and -responsibility killing a man for his money and being so complacent over -receiving seven dollars! The theory is not convincing. Even the -prosecution, whose whole case depended upon showing a motive, never -pretended that Pennington made any stir because the amount was so small.</p> - -<p>There is not the slightest evidence, external or internal, that the idea -of getting money played any part in Pennington’s share of the crime.</p> - -<p>Why then did he consent to begin the matter which George was to finish? It -is clearly a case of suggestion. A suggestion, it is true, which never -would have worked<span class="pagenum"><a name="Page_59" id="Page_59">[Pg 59]</a></span> with a normal nineteen-year-old youth. With this -weak-minded boy it is easily understandable. As we study the confession we -discover that George March, either consciously or more likely -unconsciously, used suggestion most adroitly. Undoubtedly he had learned, -through association with Roland for six weeks, that this boy was very -simple-minded and easily led. Having reasons of his own for desiring to -get rid of Lewis Pinkerton, he first suggests the matter of money, hoping -to appeal to Roland’s cupidity. It will be noticed that he nowhere uses -the word “murder” or “kill”; even the mild expression, “Make away with -him,” he uses only once. When Roland at one time almost takes fright and -asks, “Do you mean kill him?” and he admits that he does and Roland says -he won’t do that, the older man lulls him to sleep by the suggestion, -“Well, you begin and I’ll finish it.”</p> - -<p>March tells a story about a blackjack; then he brings the blackjack and -gives it to Roland, saying nothing except, “You can do it with that.” -Roland is so weak-minded that he takes the blackjack and puts it in his -pocket. When the right time comes and the opportunity is near at hand, -March stations himself at a convenient place where he will see Roland as -he goes back and forth at his work, and for some little<span class="pagenum"><a name="Page_60" id="Page_60">[Pg 60]</a></span> time he -constantly coaxes and dogs him, pouring into his ears a stream of -suggestion such as, “You will have a chance pretty soon”; “Don’t forget”; -“Don’t lose your nerve”; “Now you can get him”; “Now nail him.”</p> - -<p>It is an interesting little point, possibly only a coincidence but -nevertheless a perfectly natural imbecilic association, that the one -seemingly original thing that the boy did in connection with the matter -was to invent a little trick in regard to the nail in the stall. It is -quite likely that even this was suggested by George’s previous expression, -“Nail him.”</p> - -<p>Even the blow itself does not seem to have been given with normal vigor; -having every advantage,—the victim bending over, Roland being behind him -and with a blackjack which is capable of thoroughly stunning, if not -killing at one blow,—he apparently did not strike with force enough to -even produce unconsciousness. His victim was able to talk and to struggle -for some minutes, until March, the companion in crime, came up and, as he -expressed it, “finished him.”</p> - -<p>As to motive, then, we conclude that the defendant had none. He was acting -upon the suggestion of George March. Even the poor mind that he had, which -under other circumstances might possibly have<span class="pagenum"><a name="Page_61" id="Page_61">[Pg 61]</a></span> rebelled at such a -suggestion, was lulled to sleep by this man of better intelligence for -whom he had been working and who he had learned to think was “good and -kind” and on whose judgment he thought he could rely.</p> - -<p>Since the Pennington case is typical of the way weak minds work under -control of normal minds, it will be worth while to analyze somewhat more -fully this idea of <i>suggestion</i>.</p> - -<p>How does suggestion work? Why does it indicate a weak mind and how does it -affect our ideas of responsibility? Let us see.</p> - -<p>We have already seen that Roland Pennington was under the control of -another mind; we do not mean that he was actually hypnotized—a -nonsensical plea that is sometimes brought into court cases. Roland -Pennington was a victim of suggestion. An illustration will make this -clear.</p> - -<p>If I were to take a city man to a third-rail electric road and ask him to -stand on one rail and put his hand on the third rail, he would resist the -suggestion, because there would immediately come into his mind visions of -himself burned to a crisp or instantly killed. But suppose I take a man -who has come from the rural districts and who never heard of third rails. -He has<span class="pagenum"><a name="Page_62" id="Page_62">[Pg 62]</a></span> lived, let us assume, in my house and worked under my direction a -month and has come to regard me as a friend. We have worked together and -talked together; I take him out and say, “Touch that third rail.” Will he -resist the suggestion? Not at all. Why not? What is the difference between -the two men? The first has ideas about third rails. His past experience -has filled his mind and memory with thoughts and with knowledge which -instantly come to consciousness when I suggest touching the third rail. -The other man has no such experience. He has known me long enough to have -some faith in me. In fact from the very nature of things he is in the -habit of doing what I tell him. I tell him to do this, and he does it.</p> - -<p>Coming back to the first case, one perhaps can conceive that the city man -and I might come upon the third rail under such conditions that he was not -thinking of it. Instead of saying “third rail” to him I might say, “My! -that rail is hot” and he would almost instinctively put his hand upon it -to verify my remark. If he survived and could talk about it afterwards, he -would say, “Of course I ought to have known and did know that was the -third rail, but I did not think.” That is the way suggestion works.</p> - -<p>To illustrate still further, we may speak of hypnotism<span class="pagenum"><a name="Page_63" id="Page_63">[Pg 63]</a></span> itself. All of the -wonders that are produced under hypnosis are to be explained in exactly -this way. The subject is so nearly asleep that nothing gets into his -consciousness except the ideas suggested by the operator. Accordingly he -is utterly unable to resist any suggestion that is given him.</p> - -<p>Now coming nearer to our problem, children are naturally very suggestible -because they have not the experiences, the ideas. One may easily believe -that an eleven-year-old child could be induced to touch the third rail. -Furthermore, authority plays an enormous rôle with children. I might take -my ten-year-old boy out for a walk. He knows all about third rails and -would not touch one. But if I were to say to him, “Son, you can put your -hand on this, because there is no current on,” he would probably obey -without question, because of his implicit trust in me. That confidence in -a superior, either in age, intelligence, or position, is one of the -characteristics of immature minds and one of the conditions that makes us -all suggestible. In the hypnotic terminology again, this is the being <i>en -rapport</i>. The hypnotized subject obeys the operator and no one else -because it is the operator with whom he is <i>en rapport</i>—in other words, -in whom he has confidence.</p> - -<p><span class="pagenum"><a name="Page_64" id="Page_64">[Pg 64]</a></span>Now let us come to the situation. It is perfectly clear that Roland -Pennington was under strong suggestion and that any vague concepts that he -might have had of the wrongfulness of murder or of killing a man were very -carefully allayed by the man who had the influence over him and who had -the motive for this homicide.</p> - -<p>The whole statement shows that Roland recognized George as a superior, as -one in authority over him and at the same time as a friend, as one on -whose word he could absolutely rely. It is a perfect picture of the child -following the man.</p> - - - -<p> </p><p> </p> -<hr style="width: 50%;" /> -<p><span class="pagenum"><a name="Page_65" id="Page_65">[Pg 65]</a></span></p> -<h2><a name="CHAPTER_III" id="CHAPTER_III"></a>CHAPTER III</h2> -<p class="title">THE CASE OF FRED TRONSON</p> - - -<p>Our third case is that of Fred Tronson of Portland, Oregon. What we know -of the history of Tronson is brief, but amply sufficient to prove that he -belongs to the group that we are considering. He had lived in Portland for -two years and in that time had held seven different positions as elevator -man. He was twenty-four years of age, when, in August, 1914, he met and -became infatuated with Emma Ulrich, a stenographer who worked in the same -establishment where he ran the elevator. He asked her to marry him, but -she refused. Later he was arrested for threatening her and was ordered to -leave town and not to annoy her any further. On November 16th of the same -year he waited for her outside of her home with two loaded revolvers. When -she stepped off the street car, he again asked her to marry him. She -became frightened and ran toward her home. He followed her, shooting as he -went. He followed her into her own house and there shot her<span class="pagenum"><a name="Page_66" id="Page_66">[Pg 66]</a></span> down. On -Wednesday, December 9th, 1914, Tronson was tried and convicted of murder -in the second degree. Oregon having abolished the death penalty on -November 3d, only a second-degree verdict, which carries with it -imprisonment for life, could be returned. The trial was very brief, and -the jury returned within fifteen minutes. There was practically no -defense, except the claim on the part of Tronson’s attorney that the man -was weak-minded and, therefore, in strict justice, should be placed in -custody, not in the penitentiary but in some other institution more suited -to his condition. He had been examined by two alienists and pronounced -sane, but of low mentality. He was also examined by a psychologist who -used a modification of the Binet tests, which showed him to have a -mentality of nine years.</p> - -<p> </p> -<table border="0" cellpadding="0" cellspacing="5" summary="table"> -<tr><td align="center"><img src="images/img3.jpg" alt="" /></td> - <td><span class="spacer"> </span></td> - <td align="center"><img src="images/img4.jpg" alt="" /></td></tr></table> -<p class="center"><span class="smcap">Fred Tronson.</span></p> -<p> </p> - -<p>This rating obtained by the psychologist was confirmed in many ways. His -mother said he had never been able to hold a job more than two or three -months. He left school shortly before he was twenty, but we have no record -of what success he had or what grade he was in. His conduct at the trial -and before was that of an imbecile. When he was examined in the police -station, he seemed to be in constant fear that some one outside would do -him harm. When he had displayed <span class="pagenum"><a name="Page_67" id="Page_67">[Pg 67]</a></span>uneasiness about an open window, the -detectives told how they closed it and sat between him and the window to -assure him that no one in the street would harm him. During the impaneling -of the jury and the taking of the testimony, Tronson sat slouching in his -chair, with sunken eyes, glaring at each witness, and with his mouth -hanging half open as though he barely understood what was going on. The -deep lines in his face and the dark circles beneath his eyes gave a vision -of sleepless nights and haunting memories. Like the other two imbeciles -whom we have discussed, he made a confession. The following is his -statement:—</p> - -<p class="hang">Statement of Fred Tronson taken in the office of Detective Captain -Baty on Thursday, November 19th, 1914, in the presence of Deputy -District Attorneys John A. Collier and Thomas G. Ryan, Detectives Pat -Moloney and Tom Swennes.</p> - -<p><i>Question.</i> What is your name?</p> - -<p><i>Answer.</i> Fred Tronson.</p> - -<p><i>Q.</i> How old are you?</p> - -<p><i>A.</i> Twenty-four.</p> - -<p><i>Q.</i> How long have you lived in Portland?</p> - -<p><i>A.</i> One year and seven months.</p> - -<p><i>Q.</i> What have you been doing?</p> - -<p><i>A.</i> Running elevators.</p> - -<p><span class="pagenum"><a name="Page_68" id="Page_68">[Pg 68]</a></span><i>Q.</i> Now, Fred, I am a deputy district attorney representing this state, -Mr. Ryan here is a deputy district attorney, and these other men are -officials and officers. You have been charged with a crime, and of course -you have your rights. You have a right to make a statement here to me if -you want to tell us what the facts are. You are not forced to make a -statement, but you may do so if you want to. There isn’t any use of your -getting nervous, and there is nobody going to bother you here. You needn’t -be afraid. You cannot be forced or compelled to make a statement, and any -statement you make must be voluntary. Do you want to make any statement -about this shooting affair?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> You may go ahead and just tell me what happened, commencing at the -first of it, and tell me how it came about.</p> - -<p><i>A.</i> Well, that time I accosted the girl in the street, it was last August -the 3d, I asked her if she would have me and she didn’t give me any -satisfactory answer. She said she would wait outside at noon. In the -meantime she had me arrested. Of course I threatened to shoot myself if -she wouldn’t have me. She says, “No, don’t do that; I would rather have -you leave town,”<span class="pagenum"><a name="Page_69" id="Page_69">[Pg 69]</a></span> she says like that. She says, “I will write to you.” She -says, “You are going to be a man, aren’t you?” I said, “Yes, if I can’t -have you.” She said she would meet me out there at twelve, and before that -she phoned the police or the other girl up there, I don’t know.</p> - -<p><i>Q.</i> That was last August?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> You were arrested on that charge?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> What did they do with you?</p> - -<p><i>A.</i> Well, they kept me here about a week and then let me go with the -understanding that I go out of town. Judge Stevenson says go out in the -harvest fields and take a good sweat and when you come back, look for some -other job and you will be all right. Come back in the fall. So I went out -next Monday and stayed a couple of days and couldn’t get anything and came -back and waited about a week and stayed another week and then went to Hood -River, and picked apples and stayed up there about ten days and then came -back and I couldn’t get anything. I was hoping the girl would kind of come -to me after awhile and I found after a few months that she wasn’t, so I -thought I would get rid of her so somebody else wouldn’t have her.</p> - -<p><span class="pagenum"><a name="Page_70" id="Page_70">[Pg 70]</a></span><i>Q.</i> When did you make up your mind to do that?</p> - -<p><i>A.</i> Last week.</p> - -<p><i>Q.</i> After you made up your mind to do that, what did you do?</p> - -<p><i>A.</i> I went off and got the guns.</p> - -<p><i>Q.</i> Where did you get the guns?</p> - -<p><i>A.</i> At Vancouver.</p> - -<p><i>Q.</i> What kind of a gun was it?</p> - -<p><i>A.</i> You got it there. That’s the one I shot her with (pointing to a gun -on Captain Baty’s desk just opposite Mr. Ryan), but I had another one, -too.</p> - -<p>(This gun, marked #5308 on gun itself and marked “Exhibit A—Ryan,” was -thereupon handed to the prisoner.)</p> - -<p><i>Q.</i> This gun marked “Exhibit A,” here, is that the gun you shot her with?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> Where did you get that gun?</p> - -<p><i>A.</i> Vancouver.</p> - -<p><i>Q.</i> For what purpose did you get it? What did you intend to do with it?</p> - -<p><i>A.</i> I intended to shoot her. I intended to hold on to it, but in my -excitement I dropped it in the weeds there, I guess.</p> - -<p><span class="pagenum"><a name="Page_71" id="Page_71">[Pg 71]</a></span><i>Q.</i> Where did you get the gun at Vancouver? Do you know the name of the -store?</p> - -<p><i>A.</i> No, it was a hardware store.</p> - -<p><i>Q.</i> How long before you did the shooting did you get this gun?</p> - -<p><i>A.</i> About three hours, something like that.</p> - -<p><i>Q.</i> Do I understand that you went to Vancouver and got this gun and then -came over to Portland, and did the shooting?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> Where did you get this other gun? (Gun numbered 2506 was thereupon -marked “Exhibit B” by Mr. Ryan, and handed to Mr. Tronson.)</p> - -<p><i>A.</i> This second-hand gun?</p> - -<p><i>Q.</i> At a second-hand store?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> Did you buy that at the same time you bought the other gun?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> Where did you buy this gun?</p> - -<p><i>A.</i> Well, I didn’t want to buy them both at the same place. I thought -that they might get suspicious. I didn’t want to get two five-dollar guns. -I bought that for three.</p> - -<p><i>Q.</i> What did you have in mind when you bought this?</p> - -<p><span class="pagenum"><a name="Page_72" id="Page_72">[Pg 72]</a></span><i>A.</i> Well, if one didn’t work, the other would.</p> - -<p><i>Q.</i> Do I understand you to say that you bought this to kill her with?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> If the new gun didn’t work, that would?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> When you came over from Vancouver, did you have the guns loaded?</p> - -<p><i>A.</i> No.</p> - -<p><i>Q.</i> When did you first load the guns and prepare to do the shooting?</p> - -<p><i>A.</i> Down there along the river some place.</p> - -<p><i>Q.</i> Out in South Portland?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> Did you load both of them?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> You knew where Miss Ulrich lived, did you?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> Had you ever visited at the house?</p> - -<p><i>A.</i> No.</p> - -<p><i>Q.</i> Had you ever kept company with her?</p> - -<p><i>A.</i> Yes, I walked around the streets with her once in awhile.</p> - -<p><i>Q.</i> You never went to her home?</p> - -<p><i>A.</i> No.</p> - -<p><span class="pagenum"><a name="Page_73" id="Page_73">[Pg 73]</a></span><i>Q.</i> Did you know her folks?</p> - -<p><i>A.</i> No.</p> - -<p><i>Q.</i> Where did you stay out there until she came along?</p> - -<p><i>A.</i> I didn’t get out there any too soon. I didn’t stand round two -minutes.</p> - -<p><i>Q.</i> What time did you leave town here to go out to the scene of the -shooting?</p> - -<p><i>A.</i> I came right from Vancouver and went through.</p> - -<p><i>Q.</i> What time did you get over to Portland from Vancouver?</p> - -<p><i>A.</i> About five o’clock.</p> - -<p><i>Q.</i> After you got over to Portland what car did you take then?</p> - -<p><i>A.</i> I walked out.</p> - -<p><i>Q.</i> Which way did you go out?</p> - -<p><i>A.</i> First Street.</p> - -<p><i>Q.</i> How far out First Street did you go?</p> - -<p><i>A.</i> Until I struck some of those other streets down there, Front Street I -guess, Water or Corbett.</p> - -<p><i>Q.</i> How long did you wait out there before you saw Miss Ulrich?</p> - -<p><i>A.</i> I didn’t wait at all, I just walked around the block and she got off -the car.</p> - -<p><i>Q.</i> Did you see her get off the car?</p> - -<p><span class="pagenum"><a name="Page_74" id="Page_74">[Pg 74]</a></span><i>A.</i> Yes.</p> - -<p><i>Q.</i> What time was it when she got off the car?</p> - -<p><i>A.</i> A little before six.</p> - -<p><i>Q.</i> What car did she get off?</p> - -<p><i>A.</i> North and South Portland.</p> - -<p><i>Q.</i> Did you speak to her when she got off?</p> - -<p><i>A.</i> Yes, I said, “Wait a minute.” I wanted to talk to her, and asked her -for the last time; she started running, hollering.</p> - -<p><i>Q.</i> Just what did you say to her?</p> - -<p><i>A.</i> That’s all I said to her. I wanted to talk to her and she started -running and hollered.</p> - -<p><i>Q.</i> Did you have the gun in your hand at that time?</p> - -<p><i>A.</i> No, in my pocket.</p> - -<p><i>Q.</i> All loaded and ready for action?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> How far was her house from the car?</p> - -<p><i>A.</i> Not quite half a block.</p> - -<p><i>Q.</i> Was there any one else got off the car at that place?</p> - -<p><i>A.</i> No.</p> - -<p><i>Q.</i> What did you do next?</p> - -<p><i>A.</i> I followed her around the house.</p> - -<p><i>Q.</i> Did she run around the house?</p> - -<p><span class="pagenum"><a name="Page_75" id="Page_75">[Pg 75]</a></span><i>A.</i> Yes.</p> - -<p><i>Q.</i> Did you run after her?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> When did you commence shooting?</p> - -<p><i>A.</i> Just before she went in the door.</p> - -<p><i>Q.</i> What door did she go in?</p> - -<p><i>A.</i> The back door.</p> - -<p><i>Q.</i> How many shots did you fire?</p> - -<p><i>A.</i> One before she went in.</p> - -<p><i>Q.</i> How many after that?</p> - -<p><i>A.</i> Four; I think there are only five in the gun.</p> - -<p><i>Q.</i> Did you know that the last bullet struck her?</p> - -<p><i>A.</i> I knew one must because she fell down after I began firing the other -bullets. She was in the bathroom; then she began to crunch down; then she -fell on her face like a board and struck her head on the floor. I thought -she must be dead or unconscious or something like that. I left then. I -took it for granted she was dead.</p> - -<p><i>Q.</i> You didn’t leave or didn’t stop shooting until you thought she was -dead?</p> - -<p><i>A.</i> No.</p> - -<p><i>Q.</i> You went out there for the purpose of killing her if she didn’t -accede to your wishes?</p> - -<p><i>A.</i> Yes, I am sorry I had to do it.</p> - -<p><span class="pagenum"><a name="Page_76" id="Page_76">[Pg 76]</a></span><i>Q.</i> Why did you feel that you had to do it?</p> - -<p><i>A.</i> I didn’t want anybody else to have her if I couldn’t. I thought I -should have her. She told me once she liked me, and I didn’t see any -reason for turning me down. I acted like a gentleman. I had given her one -present already.</p> - -<p><i>Q.</i> After you thought she was dead and that you had completed your job, -where did you go?</p> - -<p><i>A.</i> I ran down on Hamilton Street.</p> - -<p><i>Q.</i> This gun that you used to do the shooting, was this gun (marked -“Exhibit A”) the new gun numbered 5308 (handing it to him for inspection)?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> Where did you go?</p> - -<p><i>A.</i> I ran out of the way kind of on a trot down into Hawthorne Bridge and -then North on Union Avenue and caught the Vancouver car and went to -Vancouver.</p> - -<p><i>Q.</i> Did you take both of these guns with you?</p> - -<p><i>A.</i> No, just one. I dropped the other one.</p> - -<p><i>Q.</i> Which one did you drop?</p> - -<p><i>A.</i> The new gun.</p> - -<p><i>Q.</i> That is, you dropped that after all the bullets were fired out?</p> - -<p><i>A.</i> Yes.</p> - -<p><span class="pagenum"><a name="Page_77" id="Page_77">[Pg 77]</a></span><i>Q.</i> After you got to Vancouver where did you go?</p> - -<p><i>A.</i> I went to a picture show over there and stayed about half an hour, -and then I went to a rooming house.</p> - -<p><i>Q.</i> Stayed all night in Vancouver?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> Did you feel pretty nervous, knowing that you killed her?</p> - -<p><i>A.</i> Yes, I sat up. I didn’t sit up; I laid awake. I didn’t sleep at all.</p> - -<p><i>Q.</i> Where did you go when you left Vancouver?</p> - -<p><i>A.</i> Went right out the next morning, went right out the Pacific Highway.</p> - -<p><i>Q.</i> Why did you run away?</p> - -<p><i>A.</i> Well, I wanted to get the papers and see if I had killed her and then -I was going back and shoot myself at the same place I shot her. I didn’t -want them to get me until after I went around another way and shot myself -down there.</p> - -<p><i>Q.</i> Did you intend to come back?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> Did you read the papers at Vancouver?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> Did you see in the papers that Miss Ulrich was dead?</p> - -<p><i>A.</i> Yes.</p> - -<p><span class="pagenum"><a name="Page_78" id="Page_78">[Pg 78]</a></span><i>Q.</i> Why did you keep going the other way?</p> - -<p><i>A.</i> Well, I didn’t want to come back this way and run into the police. I -was going around Seattle and Tacoma and cross over and come back around.</p> - -<p><i>Q.</i> When you read in the papers that you had killed her, did you feel -satisfied?</p> - -<p><i>A.</i> Well, yes, but I was afraid there would be bloodhounds after me, and -I would get shot down in the road.</p> - -<p><i>Q.</i> You weren’t worrying so much about her as you were afraid somebody -might do you an injury?</p> - -<p><i>A.</i> Well, I didn’t want them to get me until the job was completed and I -had shot myself.</p> - -<p><i>Q.</i> Did you think there was somebody else interfering to keep her from -marrying you?</p> - -<p><i>A.</i> I guess there was.</p> - -<p><i>Q.</i> Did you have in mind to shoot any one else?</p> - -<p><i>A.</i> No.</p> - -<p><i>Q.</i> You knew she was engaged to marry another fellow?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> Was that what made you decide to kill her?</p> - -<p><i>A.</i> I thought she gave him up. Well in a way I did and in another way I -thought it was a bluff.</p> - -<p><i>Q.</i> When did you make up your mind to get these guns—on the day of the -killing?</p> - -<p><span class="pagenum"><a name="Page_79" id="Page_79">[Pg 79]</a></span><i>A.</i> Yes.</p> - -<p><i>Q.</i> You knew at the time what you were doing,—what you were getting the -guns for?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> You got the guns with the idea that if she refused to marry you why, -then, you would kill her?</p> - -<p><i>A.</i> Yes.</p> - -<p><i>Q.</i> You knew what you were doing at that time?</p> - -<p><i>A.</i> Yes,—I don’t think a man in his right mind would do it.</p> - -<p><i>Q.</i> You knew that it was wrong to kill her, didn’t you?</p> - -<p><i>A.</i> Yes, but all I was thinking was about her.</p> - -<p><i>Q.</i> You knew it would be wrong to kill her?</p> - -<p><i>A.</i> That’s what the law says.</p> - -<p><i>Q.</i> You realized that fact at the time?</p> - -<p><i>A.</i> Not as much as I do now.</p> - -<p><i>Q.</i> You were in possession of your senses and you knew it was wrong to -kill her?</p> - -<p><i>A.</i> Oh, yes, it was wrong to kill her—take her life.</p> - -<p><i>Q.</i> You know it is wrong to take that which you cannot give, and you knew -at the time that you were doing wrong, and you knew that when you went -over there to get guns?</p> - -<p><i>A.</i> I didn’t take it very serious then like now.</p> - -<p><span class="pagenum"><a name="Page_80" id="Page_80">[Pg 80]</a></span><i>Q.</i> Did you ever drink liquor to the extent of getting drunk?</p> - -<p><i>A.</i> No.</p> - -<p>When this confession was read to the jury, Tronson leaned over and asked -the clergyman, “Well, what do you think of it?” When the verdict of the -jury was given, he did not understand what it meant and asked to be told. -When he was answered, he showed no appreciation of its significance, but -remarked that there wasn’t so much of a crowd out as at the trial.</p> - -<p>This is the third case in which the Binet tests have been admitted in -evidence and the findings in accordance with these tests practically -accepted. No one seems to have denied that Tronson is an imbecile. He is -of lower grade than the other two that we have discussed, and enough lower -so that his defectiveness was much more apparent and easily admitted by -all of the judges. As will be noted, there was no reasonable motive for -the crime. In his own words: “She wouldn’t marry me. That’s why I killed -her—so that no one else could have her.” In the case of Gianini we are -possibly dealing with the sex impulse, perhaps hardly recognized even by -the criminal himself. In Tronson’s case we have that impulse definitely -recognized and asserting itself and, being uncontrolled, leading to an<span class="pagenum"><a name="Page_81" id="Page_81">[Pg 81]</a></span> -action of the crudest and most savage kind. Under other conditions, it -would very likely have shown itself in a different way. If Tronson could -have gotten the girl off by herself, it is very probable that he would -have committed violence in the gratification of his sex impulse. But since -she refused to marry him and kept out of his reach, he shot her down in -order that “no one else could have her.”</p> - -<p>It is unnecessary to discuss the case further. We need nothing more to -convince us that the diagnosis of imbecility was correct. It remains only -to point out two facts. First, that this man has been an imbecile at least -since he was twelve years of age, that he could have been recognized as an -imbecile and cared for, and thus this atrocious murder prevented. Second, -that there are hundreds of just such persons, now in their youth, who are -potential criminals. Unless their mental condition is recognized and they -are cared for in such a way as to make crime impossible, many of them will -repeat the career of Tronson.</p> - -<p>Fred Tronson is in prison for life. He will in all probability never be -pardoned. He will never have an opportunity to commit another murder. But -that does not restore the life of Emma Ulrich and it is small comfort to -her friends and relatives. It does not in<span class="pagenum"><a name="Page_82" id="Page_82">[Pg 82]</a></span> the least remove the blot upon -society, which has allowed such a murder to be committed. Society should -have taken him in hand twelve years ago. It should be further noted that -Tronson had been before the Court at least once before he committed this -crime. At that time had the Judge realized that he was dealing with an -imbecile he might have sent the boy to an institution for the -feeble-minded instead of simply ordering him to leave the town. Shall we -learn the lesson and take care of the other Fred Tronsons who are now in -our public schools and on our streets?</p> - - - -<p> </p><p> </p> -<hr style="width: 50%;" /> -<p><span class="pagenum"><a name="Page_83" id="Page_83">[Pg 83]</a></span></p> -<h2><a name="CHAPTER_IV" id="CHAPTER_IV"></a>CHAPTER IV</h2> -<p class="title">THE CRIMINAL IMBECILE</p> - - -<p>From the description already given it will be seen that Roland Pennington -is very different from Jean Gianini. Both are imbeciles, but each is an -example of a special type. Gianini is of a nervous, impulsive, irritable, -loquacious type, fond of show and excitement, a braggart and a coward, -with an excellent memory, a great reader—particularly interested in -stories of excitement and crime. Pennington, on the contrary, is a slow, -dull, relatively stupid boy, of poor memory and slow perception. While -having made the fifth grade in school work, he has done it slowly and with -not so much success as in the case of Gianini. He is not so much given to -talk or to showing off; is somewhat addicted to drink and is exceptionally -fond of playing pool.</p> - -<p>Gianini’s confession is colored by his desire to show off and shine in the -limelight; Pennington’s, on the contrary, is a plain, unelaborated -statement of the facts.<span class="pagenum"><a name="Page_84" id="Page_84">[Pg 84]</a></span> He is driven to his confession, not by his desire -to show off, but in self-defense. His colleague, March, is trying to throw -the entire responsibility upon him in order to escape from any -condemnation. In the face of this Pennington is prompted to tell his own -story. He is not intelligent enough to make up a plausible story which -would incriminate March and save himself. But in telling the facts as they -occurred he incriminates himself quite as much as March, so far as the -actual occurrences are concerned. His whole conduct, from the beginning of -the crime until his arrest, is that of a dull, stupid person. He does not -even wield the blackjack with intelligence, and after the man is killed by -his comrade, he takes no precaution to save himself from suspicion, to -dispose of the body or to clean up about the barn and remove the evidences -of a crime. And finally, when it comes to a statement of the case, he -apparently makes no attempt to shield himself, but acknowledges his part -in it, although that part was, as a matter of fact, so slight that a -little variation in his testimony would have thrown the entire burden upon -March and relieved him from any complicity in the matter.</p> - -<p>If the foregoing statement of the case is correct, we ask at once, how it -happened that the jury did not see<span class="pagenum"><a name="Page_85" id="Page_85">[Pg 85]</a></span> it in this light, but instead brought -in a verdict of “Guilty in the first degree”? While there are many -elements in the answer, such as the demand of the public for revenge on -the murderer of the man who was more or less of a favorite; a hastily -drawn jury; a hurried trial, etc., the burden of the explanation falls -back upon the same condition which we discovered in the case of Gianini, -namely, the ignorance of the general public in regard to this type of -feeble-mindedness. Almost every one thinks that he knows an imbecile. We -have so long considered these high-grade cases as <i>normal but vicious</i> -persons, that it is difficult to change the point of view suddenly and -realize that they are not responsible for their deeds.</p> - -<p>This failure to recognize the high-grade type of imbecile extended even to -the “experts” in the case; for whereas there were three who testified to -the feeble-mindedness of the prisoner, there were four or five who -testified to his normality. These were four general practitioners of -medicine, including the jail physician, and the fifth, a professor of -neurology and neuropathology. These gentlemen are all familiar with what -we should call the low-grade type of imbecile. They were perfectly correct -in declaring that Roland Pennington is not a low-grade imbecile. Not one -of<span class="pagenum"><a name="Page_86" id="Page_86">[Pg 86]</a></span> them had had experience with the high-grade type. They were, -therefore, not qualified to pass upon a case of this kind. It was as -though four general practitioners had been brought in to decide a case of -obscure insanity. Every one of them could have testified that he had had -more or less to do with insane people, meaning persons who are maniacal or -strongly melancholic or katatonic, but what would be the value of the -testimony of such men in such a case, for instance, as that of Thaw?</p> - -<p>These men all thought they knew something about high-grade -feeble-mindedness. They all testified that Pennington was a normal man. -Compare this with the statement of Dr. Martin W. Barr, one of the foremost -authorities on feeble-mindedness in the United States—indeed, in the -world. Dr. Barr says (<i>Alienist and Neurologist</i>, November, 1914, page -367):—</p> - -<p>“The courts simply do not go far enough back; they fail in that they do -not reach the inception—the root of the matter. They often punish without -careful investigation of the causes from which criminal instinct -springs—the environment, family history, inherited tendencies, physical -disability, and that susceptibility to suggestion which makes them the -ready tools of the vicious.</p> - -<p>“In the case of Roland Pennington, tried in Media<span class="pagenum"><a name="Page_87" id="Page_87">[Pg 87]</a></span> last June, for aiding -in the murder of a man, it was proven that the boy, although almost twenty -in actual age, yet coming from a neurotic stock, with three first cousins -imbecile, had mentally only attained some 11 or 12 years; still he was -adjudged responsible, and murder in the first degree was the verdict.</p> - -<p>“Is it not a poor law that first permits a person to commit a crime, and -then punishes him for it, not recognizing that an ounce of prevention is -worth a pound of cure?</p> - -<p>“Pennington had sufficient intelligence to comprehend the enormity of the -deed, but, susceptible to suggestion in exaggerated degree, he had not -sufficient inhibition to resist the volitional act.</p> - -<p>“Early recognition of his mental defect and separation would have -protected him alike from tempter and temptation.”</p> - -<p>It is unfortunate that Dr. Barr did not testify in the case, but his -assistant did testify and was understood to express Dr. Barr’s views.</p> - -<p>It was unfortunate, indeed, that men who really knew so little about the -type of case before them were allowed to pass as experts and their opinion -allowed to carry more weight with the jury than the opinion of those who -have spent years in intimate association<span class="pagenum"><a name="Page_88" id="Page_88">[Pg 88]</a></span> and study of the problem of -high-grade imbecility. It should be recognized that there are very few -persons who are expert with this type. The superintendents of our -institutions for the feeble-minded, after a few years of experience, have -a knowledge of this matter which far surpasses that of any physician who -has not had institution experience, however great a specialist he may be -in nerve diseases, in insanity or epilepsy. It is not enough to find out -that a physician has had some experience with imbeciles. The real problem -is: Has he had experience with this high-grade type? Is he able to pick -them out? Is his knowledge as well as his experience confined to the -medium and low grades, which every one meets? Failure to make this -distinction had much to do with the verdict in the case of Pennington.</p> - -<p>Another element in the result was the failure to make clear to the jury -the precise situation, the real point at issue. The defense in the case -had no desire to free Roland Pennington from all the consequences of his -deed. It was not a case of the electric chair or freedom. The imbecile, -especially one who has shown the tendency toward crime or willingness to -be led into crime, should never be at large where it is possible for him -again to go wrong. On the other hand, it is<span class="pagenum"><a name="Page_89" id="Page_89">[Pg 89]</a></span> abhorrent to think of a child -(in mind) going to the electric chair for the deed which he committed -while under the influence of a superior intelligence, or while impelled by -the hidden forces of his nature over which he had no control on account of -his weak mind. It should have been made very clear to the jury that what -was wanted was to save the commonwealth the shame of officially putting to -death a person who had only a child’s intelligence. In an ideal state such -a person should doubtless be kept in an institution for the feeble-minded -under a life commitment, unless his impulses are such that he proves to be -dangerous to the other inmates, in which case a different kind of -institution should be provided. Until we arrive at a condition where we -treat such persons ideally, one cannot object to the state prison for life -for the imbecile manslayer. This, unfortunately, was not made very clear -to the jury, and it seems probable that many of them thought that their -verdict was either to condemn him to the electric chair or to set him -free. Having only these alternatives, one can perhaps understand their -decision.<small><a name="f2.1" id="f2.1" href="#f2">[2]</a></small></p> - -<p>Another somewhat nice legal point was involved and<span class="pagenum"><a name="Page_90" id="Page_90">[Pg 90]</a></span> brings up a matter -which calls for some discussion. As already stated, March had been -convicted largely upon the testimony of his accomplice, Roland Pennington. -If now the jury should acquit Roland Pennington on the ground of -imbecility, what would be the effect of such a decision upon Pennington’s -testimony against March. Every one felt that March was guilty and -consciously guilty and should be punished to the extent of the law. To -bring in a verdict in the case of Pennington which would result in -annulling his testimony and thereby taking away the one sure means of -convicting March, was a serious matter. One may well believe that the jury -felt that it was safest to convict Pennington of murder in the first -degree and thus avoid raising this confusing question.</p> - -<p>As a matter of fact, although the question would undoubtedly have been -raised and attempts made to free March on the basis of Pennington’s -feeble-minded testimony, yet such a procedure would not have been -warranted.</p> - -<p>Pennington, as we have claimed, is an imbecile with a mentality of about -eleven years. We have a right to judge him largely on the basis of an -eleven-year-old child. The testimony of eleven-year-old children is often -admitted into court, and many a person has<span class="pagenum"><a name="Page_91" id="Page_91">[Pg 91]</a></span> been convicted on such -testimony. It is true that it is a somewhat moot question as to how much -credence should be placed in children’s testimony. The real criterion in -such cases is the nature of the child, a matter which we have already -considered. A child may testify to simple facts, and may be relied upon -where he has no particular interest, where there cannot be shown any -tendency or desire on the part of the child to show off or to say -something for effect or to exercise childish imagination and invent a -large story for the sake of the pleasing sound.</p> - -<p>It is perfectly clear to any one who studies the confession of Pennington -that he must have told a straight-forward story. As already stated, he -would not have incriminated himself as he did if he had been falsifying. -He is not the type of person that runs on in an imaginary tale without -regard to the facts. In short, his testimony bears every evidence of being -entirely credible.</p> - -<p>On the other hand, as already pointed out, Gianini’s testimony is -unreliable, because he was talking for effect. He is of the type that -loves show and notoriety. His testimony was only to be trusted where it -could be corroborated by facts or the testimony of others.</p> - -<p>Careful study of the testimony and the nature and the character of the -child will almost always enable one<span class="pagenum"><a name="Page_92" id="Page_92">[Pg 92]</a></span> to decide very accurately as to how -much credence is to be placed in the evidence. In other words, the fact of -high-grade imbecility does not of itself make the child’s testimony -acceptable or non-acceptable. It must be judged on its merits. We have in -these two cases excellent examples of the trustworthy and untrustworthy.</p> - -<p>The testimony of Pennington at the March trial was a most marvelous -performance. To those unfamiliar with high-grade imbecility, it was almost -unexplainable. Many thought that he must have been very carefully and -elaborately coached; that he had been told just what to say, and had -learned his lesson well. Those, however, who know the imbecile understood -perfectly what was happening. This eleven-year-old boy was telling a -plain, unelaborated tale. He was not intelligent enough to try to escape -himself, and so he had nothing to hide and, consequently, got into no -confusion. He answered, “Yes,” “No,” or, “I don’t know” with a wisdom and -a consistency that was simply amazing, and, as said, could only be -explained on the understanding that he was telling the truth. No amount of -cross-examination confused him, no sudden coups of the lawyer for the -defense could entrap him. For example, when asked with considerable heat -on<span class="pagenum"><a name="Page_93" id="Page_93">[Pg 93]</a></span> the part of the attorney why he had forgotten a certain point while he -remembered very vividly a certain other point, the witness made no attempt -to explain; simply remarked that he did not know. In truth, he did not -know. Any such psychological matter was as far beyond him as the heavens. -Without imagination, without ability to reason out the effect of his -answer on his own future, he could simply answer in the plainest kind of -“Yes” or “No” as he knew the facts.</p> - -<p>With these considerations, we pass on to consider the larger and more -difficult problem, “Can an imbecile of the mentality of eleven years know -the nature and quality of his acts and understand that it is wrong?”</p> - - - -<p> </p><p> </p> -<hr style="width: 50%;" /> -<p><span class="pagenum"><a name="Page_94" id="Page_94">[Pg 94]</a></span></p> -<h2><a name="CHAPTER_V" id="CHAPTER_V"></a>CHAPTER V</h2> -<p class="title">RESPONSIBILITY</p> - - -<p>All students of the psychology of childhood agree that not until the dawn -of adolescence does reasoning as such begin to show itself in the child -mind; that judgment and foresight and self-control, such as enable a - -person to counteract his natural impulses and make himself fit into the -conventions of society, are practically unknown previous to this age. It -is true that many children are taught to say what the adult alone can feel -in connection with such matters. But as for having the real feeling and -the understanding of the situation, we seem to have no right to expect it -before the beginning of this adolescent period, from twelve to fifteen -years of age. Everything points to the correctness of the conclusion that -during this early period of pre-adolescence the child is a creature of -impulse and instinct and is controlled largely by counteracting one -instinct by another. For example, the instinct to love and obey a parent -impels the child to<span class="pagenum"><a name="Page_95" id="Page_95">[Pg 95]</a></span> do what that parent says, when he tells him not to -yield to some impulse which would lead him into trouble according to the -canons of modern society. Without going further into a discussion of the -point, which would necessarily lead to many philosophical considerations, -the writer may express his conviction, born of a study both of normal -children and also of mental defectives of twelve years and under in -mentality, that persons of this mentality do not know much about right and -wrong. They act upon impulse and upon instinct, without very much thought. -Even the child of the best opportunity and the most elaborate training in -a good home may quite likely not know the wrongfulness of an act of -homicide in the sense of having a real feeling of that wrong. He can -doubtless, as already stated, <i>say</i> that the thing is wrong, because he -has learned that this is the right thing to say.</p> - -<p>Let us turn now to the other part of the legal phrase, “Does such a person -know the nature and quality of his act?” If the writer understands these -terms, the first may be translated into the expression, “Does he know what -he is doing?” We take it that the expression originated in the attempt to -cover those cases where persons, either momentarily or permanently -deranged, literally do not know what they are doing. If this is<span class="pagenum"><a name="Page_96" id="Page_96">[Pg 96]</a></span> correct, -then one cannot, as a rule, say that a high-grade imbecile does not know -what he is doing. He is not like the lunatic who acts blindly and is -probably no more responsible for his acts than a person walking in his -sleep. The imbecile is not in this condition. He has, so to speak, full -possession of all the mind that he has ever had and that, in the case of -these high-grade imbeciles or morons, is certainly sufficient to enable -him to know what he is doing. In the case of Jean Gianini, the writer -testified that in his opinion he knew what he was doing. He knew the -nature of his act. One cannot speak, it is true, with certainty in such -cases. It is entirely possible that, as already intimated, the situation -at first may have been a simple altercation or discussion which finally -got to a point where the anger of the boy was aroused to such an extent -that he acted without really knowing what he was doing. However, there is -no more argument for that theory than against it, and without definite -evidence on the question it is probably going too far afield to make any -such claims of immunity on that ground. We are frank to admit that the -probabilities are high that the boy knew the nature of his act. Did he -know the quality of his act?</p> - -<p>By the quality of a thing is meant that which<span class="pagenum"><a name="Page_97" id="Page_97">[Pg 97]</a></span> distinguishes it from all -other things. This implies a complete and extensive knowledge of the thing -in question. To know the quality of an act—murder, for example—means to -know all of the elements, forms, or modes of being or action which seem to -make it distinct from all other acts. To know the quality of an act of -murder is to know that it is unjustifiable; it is to know that it differs -from the killing of a rat in that different consequences follow; that -human suffering is involved, both that of the victim and of the victim’s -friends and associates. It is to know, at least in some vague way, that -human society could not exist if murder were the rule. To know the quality -of an act of murder is to know enough to be able to distinguish it from -justifiable homicide, from killing in war, not to mention more obvious -necessary distinctions.</p> - -<p>Did Jean Gianini know the quality of his act? On the stand, under -cross-examination, the writer was led to express the opinion that he did. -Later study of the problem and consideration of the circumstances leads to -the conclusion that this was erroneous. Such knowledge implies mental -capacity which is not possessed by a boy under twelve years of age. It -involves experience; it involves abstraction, which is notoriously lacking -in such persons. If there is one characteristic<span class="pagenum"><a name="Page_98" id="Page_98">[Pg 98]</a></span> more noticeable than -another among the high-grade imbeciles or morons, it is their failure to -deal with abstract ideas; to draw generalizations from specific instances.</p> - -<p>Did Pennington know the quality of his act? There is not the slightest -evidence that he did. Indeed, in his case we may go farther and hold very -probably that he did not even know the nature of his act. It is easily -conceivable that he struck the man with the blackjack without knowing that -he was committing murder, without knowing that he might kill him. His -stupidity was clearly of such a character that it is a perfectly tenable -position that he thought he was to strike the man and stun him until they -could rob him and escape.</p> - -<p>Did Tronson know the nature and quality of his act? Using revolvers as he -did, it seems undeniable that he knew the nature. He was familiar with -revolvers; he knew what they would do. He, undoubtedly, knew that he was -killing Emma Ulrich. That he did not know the quality of his act is -equally certain. She would not marry him, he did not want her to marry any -one else, and he had no conception that he had no right to put her out of -the way so that she could not marry another if she would not marry him.</p> - -<p>Again, we might go further and deeper into the<span class="pagenum"><a name="Page_99" id="Page_99">[Pg 99]</a></span> philosophy of the -question, the logic and ethics of it. But these few considerations seem -sufficient to make it of the highest probability that persons of a mental -age under twelve years, like the normal boys or girls of the same age, do -not know and cannot be expected to know the quality of their acts. And -this is sufficient, because the law requires no more than a reasonable -doubt, and there certainly is a very reasonable doubt as to whether such -persons know the quality of an act of murder and know that it is wrong.</p> - - - -<p> </p><p> </p> -<hr style="width: 50%;" /> -<p><span class="pagenum"><a name="Page_100" id="Page_100">[Pg 100]</a></span></p> -<h2><a name="CHAPTER_VI" id="CHAPTER_VI"></a>CHAPTER VI</h2> -<p class="title">THE PUNISHMENT FOR CRIMINAL IMBECILES</p> - - -<p>In the foregoing chapters we have discussed the problem involved in these -murders from the standpoint of the law in order to show that even under -the law, as it now exists, such persons are not guilty of murder in the -first degree. In the present chapter, we propose to discuss the matter -from another standpoint and from a different angle. It is not now a -question of responsibility or of some kind of justice to be satisfied. Let -us face the practical question of what is to be done in these cases.</p> - -<p>After all, what we want is protection for society. We cannot have innocent -people killed in accordance with the whim of the irresponsible. These -imbeciles have killed innocent members of society. What shall the living -do to prevent these particular persons from repeating the crime and to -prevent other imbeciles from ever committing such a crime? This, of -course, involves the whole problem of punishment or the treatment<span class="pagenum"><a name="Page_101" id="Page_101">[Pg 101]</a></span> of the -wrongdoer. Upon one thing everybody is agreed—we must make it impossible -for these persons ever to do such a deed again. The surest way to -accomplish this is to destroy them. Dead men commit no crimes. Society -feels safe when a desperado is killed. If we can agree upon this solution, -the problem is easily solved and further discussion is unnecessary. But -society is not at one on this question. We are already seriously debating -the question whether any wrongdoer should ever be officially executed. -Indeed, many States have already decided that they should not be, and -imprisonment for life has replaced capital punishment.</p> - -<p>It is somewhat difficult to draw a line of distinction between the persons -involved in these crimes and the so-called responsible murderers. It -certainly is no great loss to society if Tronson is put out of the way. -The same is true in varying degrees of Gianini and Pennington. It may be -very successfully argued that the matter of responsibility is a fiction -and that all persons should be treated alike, either all executed or none -executed. Nevertheless, at the present time, we do draw the distinction, -and many feel that the person who has full power over his action, who -knows the nature and quality and wrongfulness of his act, should<span class="pagenum"><a name="Page_102" id="Page_102">[Pg 102]</a></span> be -executed, while those who do not know should not be executed.</p> - -<p>If we take the latter view, the question still remains, What shall be done -with these criminal imbeciles? The alternative to capital punishment is -incarceration for life. Here at least we find a distinction between these -persons and the normal intelligent wrongdoers. Of all persons in the -world, the criminal imbecile should be placed in custody under conditions -that will forever make it impossible for him to repeat his offense. The -man who commits murder in a fit of insanity may recover from his insanity -and be a useful citizen for the rest of his life. The man who commits -murder under a strong impulse of anger or in calm meditation as the result -of perverted reasoning may recover normal reasoning and be a useful -citizen. This is not true of the imbecile. He will never recover; he will -never have more mind than he has now; he will never be free from the -danger of following the suggestion of some wicked person or of yielding to -his own inborn and uncontrolled impulses. It will never be safe for him to -be at large. This is so obvious that it is highly probable that the -imbecile once committed to life custody would never be released, and even -that there would never be any attempt at such release. When these facts -are<span class="pagenum"><a name="Page_103" id="Page_103">[Pg 103]</a></span> understood, the public will undoubtedly be satisfied to have such -persons imprisoned for life or committed to an institution for mental -defectives, where they will be constantly guarded and prevented from doing -injury.</p> - -<p>This was well brought out in the case of at least two of the persons -described in this book. In the case of Jean Gianini, the lawyer made -emphatically plain that there was no desire on the part of the defense to -procure the complete liberty of the defendant. John F. McIntyre, the -counsel, stated clearly to the jury that he had no desire except to save -the boy from the electric chair, a punishment which he considered unjust. -He even went so far as to state that if at any time in the future efforts -should be made to secure the release of this defendant from any -institution to which he might be committed, he himself would make as -strenuous an effort to have the boy kept in custody as he was now making -to save him from the electric chair. Apparently this made a deep -impression upon the jury and went a long way toward helping them to return -the verdict that they did. On the other hand, in the case of Roland -Pennington this point was not made so clear, and the jury and the -prosecution did not realize that the defense only wished to save the boy -from execution and would be quite content with a verdict<span class="pagenum"><a name="Page_104" id="Page_104">[Pg 104]</a></span> that would -result in his being incarcerated for life. An institution for -feeble-minded would seem at first glance to be the logical place to which -such a person should be committed. But no one need seriously object to -commitment to a penitentiary or a state prison. Perhaps, in view of the -fact that an imbecile has committed crime, that he has, as one may say, -begun a habit in that direction, the state prison is the proper place for -him, because here he can be absolutely controlled and saved from any -future acts of this kind. This is precisely what happened in Tronson’s -case.</p> - -<p>We are learning in these days that the old adage, “An ounce of prevention -is worth a pound of cure,” is something more than a witticism. These are -days of prevention—in medicine and in morals. The most important part of -our problem is yet to be discussed. It is true we must come to some -decision as to what is to be done with these persons who now infest -society and who, because of their imbecility which is unrecognized, may -become criminals. But vastly more important, because more far-reaching, is -the problem of how to prevent imbeciles from becoming criminals. We may -save the Gianinis and the Tronsons and the Penningtons from murdering any -more people, but how much better if we save them from killing anybody.<span class="pagenum"><a name="Page_105" id="Page_105">[Pg 105]</a></span> No -one of these persons had, probably, any more instinct to kill than have -you or I. As children in years they were harmless and innocent. They could -have been cared for and led into paths of harmlessness if not of -usefulness. All of them could have been recognized as mental defectives -long before they arrived at the age when they committed crime. As dull and -backward children at school, they were at once suspicious characters. -Attention was called to them. Careful examination, such as is now -possible, would have revealed the fact that they were mental defectives -and as mental defectives were potential criminals. Then was the time that -they should have been carefully guarded and watched and saved from an -environment that would lead them to prey upon their fellows. If we wish to -save our teachers from the possibility of being murdered by their pupils -or our daughters from being killed by their wooers or business men from -being struck down by the blows of feeble-minded boys, we must be on the -watch for symptoms of feeble-mindedness in our school children. When such -symptoms are discovered, we must watch and guard such persons as carefully -as we do cases of leprosy or any other malignant disease. For fear that -some one should feel that these are rare and exceptional cases, let us -remind<span class="pagenum"><a name="Page_106" id="Page_106">[Pg 106]</a></span> the reader that the best estimate and the result of the most -careful studies indicate that somewhere in the neighborhood of 50 per cent -of all criminals are feeble-minded. Whether this holds for murderers is -indeed not known. But many persons acquainted with feeble-mindedness -recognize from the newspaper descriptions of murders that many of the -murderers are feeble-minded.</p> - -<p>These facts certainly warrant us in taking seriously the problem of the -feeble-minded and the criminal imbecile.</p> - -<p>One thing more. Careful studies have shown beyond the peradventure of -doubt that at least two thirds of these mental defectives have inherited -their defect; in other words, that they belong to strains of the human -family whose intelligence lies below that which is required for the -performance of their duties as citizens. This points to a further -precaution necessary in looking toward the ultimate prevention of -feeble-mindedness and the solution of a large part of our prison problem, -and that is the prevention of the further propagation of this race of -defectives. If it is true—and there is every evidence that it is—that -children are daily being born of such a mentality that it requires the -attention and thought of an army of<span class="pagenum"><a name="Page_107" id="Page_107">[Pg 107]</a></span> normal people to prevent their -growing up into criminal lives and that all of the best efforts can never -make them able to take their place in society as useful citizens, then it -certainly is our duty to see that such children are not born. How this is -to be accomplished has not yet been worked out in detail. The colonization -and segregation of all such people in institutions where they will not be -allowed to propagate is one solution that is proposed. The other is by -surgical interference, to render such people physically incapable of -propagating. Probably both these methods and still others must be utilized -to help solve this problem.</p> - -<p>The intelligence of men is often measured by the amount of foresight that -they have. The little child has little or none, as is also true of men of -low intelligence. There are men who can look forward and plan their -affairs for a few months in the future, others who can look forward a few -years, still others a lifetime, and a few who can look forward into the -coming generations. We shall demonstrate a high degree of intelligence if -we look not only to the amelioration of present conditions in our -prisons—which <i>must</i> be done; not only to the removal to more suitable -environment of those persons who are unjustly confined because of their -irresponsibility—which ought to be done; if<span class="pagenum"><a name="Page_108" id="Page_108">[Pg 108]</a></span> we not only see to it that -from now on persons who come before the court, either juvenile or adult, -are first studied to discover whether they are mentally responsible or -not, which is of utmost importance; but if we go still farther and put -forth efforts to determine how many and which of the children who are in -the public schools to-day are mentally defective and therefore need care; -and going still farther, if we have studies made and laws passed that -shall, as soon as possible, lead to the reduction in the birthrate of -these mentally defective individuals. A certain amount of -feeble-mindedness we must expect to have with us for long years to come, -because there will be sporadic cases and cases due to accident. But -feeble-mindedness as related to crime may be exterminated in a few -generations if we will but use our intelligence to attack this problem at -its root.</p> - - - -<p> </p><p> </p> -<hr style="width: 50%;" /> -<p><span class="pagenum"><a name="Page_109" id="Page_109">[Pg 109]</a></span></p> -<h2><a name="APPENDIX_A" id="APPENDIX_A"></a>APPENDIX A</h2> -<p class="title">GIANINI CASE</p> -<p class="center">HYPOTHETICAL QUESTION PROPOUNDED BY THE DEFENSE</p> - - -<p>Assuming the following circumstances to have been established by the -evidence in this case:—</p> - -<p>That the defendant was on the 5th of December, 1897, born in the City of -New York; that his father was Charles A. Gianini, who also was born in -said city, and the paternal grandfather of the defendant was born in the -said city and the paternal great-grandfather of the defendant was born on -the south slope of the Alps in the republic of Switzerland.</p> - -<p>The defendant’s mother was born in the City of New York, her maiden name -being Sara Cecelia McVey. That the defendant’s mother was married to his -father when she was about twenty years of age; that prior or previous to -the said marriage she was bright, vivacious, stylish, and accomplished in -music; that shortly after her marriage she began to become untidy in her -appearance, morose, depressed, and indifferent.</p> - -<p><span class="pagenum"><a name="Page_110" id="Page_110">[Pg 110]</a></span>At the time of the birth of the first child (Charles), to-wit, on the 13th -day of November, 1891, about eleven months after her marriage, she was -suffering from melancholia as the evidence in this case discloses.</p> - -<p>Assuming that the child, Charles, lived to be but seven years of age and -during his lifetime did not learn to speak, but merely made guttural -sounds; that he did not walk, but moved about when seated on the floor, -pushing himself sidewise, and finally shortly before his death tottered -about. His death occurred when he was about seven years old. That he ate -gluttonously and his death was due to asphyxiation, choking due to taking -in trachea foreign matter while vomiting contents of an overloaded -stomach.</p> - -<p>Assuming that after the birth of Charles his mother’s melancholia -continued, she became indifferent to her child, took no care of him, and -said that while she wanted to die, she was going to live forever; that she -also said she thought that her face was black and that she was a negress, -that she would not go into the street because she was black.</p> - -<p>Assuming, too, that she became addicted to the use of liquor, first lager -beer and subsequently whisky and brandy; that she made pledges, -administered by priests, only to be broken. That at times she would -brighten<span class="pagenum"><a name="Page_111" id="Page_111">[Pg 111]</a></span> up, and during one of these periods, namely, July 12, 1894, a -second child, called Catherine, was born, which child still lives.</p> - -<p>Assuming that thereafter she began to drink again more than before; that -for eight months preceding the birth of the defendant she was drunk a -great many times, that she was found in a drunken stupor, that she was -brought home in a drunken condition by detectives, on which occasion she -had with her her second child Catherine. That about six months before the -birth of this defendant his mother was drunk, that the seventh month -before the birth of this defendant she was drinking, and on one occasion -threw her husband’s books out of the window on an adjoining roof, during a -rain storm. And in the eighth month before the defendant’s birth she drank -and the same condition prevailed.</p> - -<p>Assuming that from the June before the defendant was born, which was on -December 5, 1897, she was attended by Dr. Charles N. Weeks of New York -City, and he found her depressed, morose, and in a melancholic condition -most of the time, at times hysterical; that she would refuse to talk to -him, for one half a day at a time; that she would refuse to answer -questions, that she would pay no attention to questions,<span class="pagenum"><a name="Page_112" id="Page_112">[Pg 112]</a></span> and that she was -also inclined to stare right past him; that she would weep; that she paid -no attention at all. At times the pupils of her eyes were dilated, at -times contracted, their expression at times was wild and sometimes vacant. -These conditions continued during the time Dr. Weeks was treating her. He -prescribed bromide for her liquor and the same condition continued after -the birth of the defendant.</p> - -<p>The general appearance of the defendant’s mother was untidy, and these -conditions remained unchanged after defendant’s birth. That when born the -defendant was poorly nourished, under weight, weighed about five pounds, -and was inclined to be emaciated; that at the time of the death of the -first born (Charlie), to-wit, on the 21st day of March, 1899, she was -again observed by Dr. Weeks, and then she was absolutely indifferent as to -the conditions so far as the boy was concerned; showed no grief, and her -general condition was such as he described at the time he was treating -her.</p> - -<p>And assuming that after the birth of the defendant he was a bottle-fed -baby, not nursed by his mother, and when about a year old placed in the -care of Mrs. Leigh, with whom he remained until he was about six years -old. That the defendant’s mother died on June 3, 1899, in a Sanitarium, -known as St. Anne’s Retreat in<span class="pagenum"><a name="Page_113" id="Page_113">[Pg 113]</a></span> the City of New York, the cause of death -was meningitis, alcoholic heart failure.</p> - -<p>Assume that up to the time the defendant was five years of age he didn’t -speak, and made sounds which resembled yells. Assume that about 1906 or -1907 the defendant’s father took him from Mrs. Leigh’s, he was then able -to talk and walk, and for several weeks he was taken care of by Mrs. -Hoberg and from there was taken to Lady Cliff Academy on the Hudson, where -he remained for one term. While there he usually appeared dirty, but -seemed to be making some progress.</p> - -<p>In 1907, assume when the defendant was ten years of age he went to live in -the Bronx, where he lived for two years and attended school during this -period. At one time he took two little girls to a piece of woods and -started to take their clothes off, and when asked why he did it, said he -was going to play Indian and that Indians were naked.</p> - -<p>On one Sunday afternoon he was observed in a group of children eating mud -pies, and the children were calling him “Loonie” and were telling him to -eat another one.</p> - -<p>During these two years that the defendant lived in the Bronx he was -observed to tease children. He would take a little boy’s wagon and run -away with it.<span class="pagenum"><a name="Page_114" id="Page_114">[Pg 114]</a></span> He would take his hat and throw it over a neighboring -fence. He would take the caps of girls and toss them over fences, pull -their curls, take away their hoops when they were rolling hoops, and take -the ball away when they were playing ball. He would do these things quite -often. On one afternoon he was brought home with a gash on his right -temple. It was bleeding and at least one inch in length. He stated that he -had received it from a fall from a stone wall while he was playing -“thief.” On another occasion he chased a young girl who was stopping at -the house around the room with a table knife because she was trying to -correct him because he ran home from school without her. He did not -attempt anything against that girl again, although she remained in the -room the balance of the day.</p> - -<p>In 1910 defendant’s father moved from the Bronx, to Poland, and brought -the defendant with him, and the defendant attended the Poland School which -he entered in April of 1910, and there remained until February or March, -1913. After leaving school defendant worked in a knitting mill in Newport -from about the first half of April until the second half of May, 1913, -when he ran away and went to Ilion. At Ilion he was found working by his -father and Mr. Frank<span class="pagenum"><a name="Page_115" id="Page_115">[Pg 115]</a></span> Newman wiping dishes in the hotel. He was then taken -home. In the middle of August, 1913, the defendant again ran away, this -time to Albany, and stated that while he was there he had been shot at two -or three times by a policeman and was arrested. From Albany the defendant -again went to Ilion, where his father and Frank Newman again found him at -the same hotel, and when he saw them, he said that they were “swindlers.”</p> - -<p>At another time the defendant ran away to Herkimer, in the summer of 1912, -and he stated that he had gone to the moving pictures. He said that he -went to the store, the Poland Union, and bought a can of beans and a bunch -of bananas for his trip to Herkimer. He left in the afternoon and did not -return until the following afternoon, when he said that he ate the bananas -going along the track before he ate the beans because he was afraid the -bananas would melt. He said he ate the beans at night, opening the can -with a nail, and ate them with a nail.</p> - -<p>On another occasion in Poland he chased his sister with a table knife -although she had not done anything to him. In the summer of 1910 the -defendant was at Morehouseville, and one day while there he was fishing at -the stream that passes in front of the Mountain<span class="pagenum"><a name="Page_116" id="Page_116">[Pg 116]</a></span> Home, when the flies and -the punkies were biting very fiercely. He stood down there in his bare -legs and bare head fishing and the flies biting him until the blood ran -down his face and neck and legs. He was fishing there for fully an hour, -and when asked if the flies had bothered him, he said “No.”</p> - -<p>In 1911, when the defendant’s father’s stepmother was in Poland, the -defendant was overheard to say to her, “Why didn’t you marry my father, I -would like you better than this stepmother.”</p> - -<p>When the defendant was fifteen years of age, in the month of September, -1913, the defendant’s father had him committed to the St. Vincent’s -Industrial School for juvenile delinquency, presided over by Christian -Brothers, where he remained for about six months, coming home in February.</p> - -<p>A few weeks before the commission of the alleged crime, he was observed to -be quarreling on Main Street in Poland with two very small children.</p> - -<p>At the age of sixteen years, in the early part of March, 1914, the -defendant was noticed playing with a toy railroad car and building some -tracks with some little irregular pieces of wood. He was also observed to -play tag with children apparently from two to four years younger than -himself.</p> - -<p><span class="pagenum"><a name="Page_117" id="Page_117">[Pg 117]</a></span>In the early part of 1912, the defendant’s father observed that he was -practicing masturbation.</p> - -<p>The defendant’s father thereupon slept in the same room with him in order -to watch him. The defendant continued this practice until the time he left -home in the spring or summer of 1913 and admitted that he did it -frequently.</p> - -<p>Assuming that on the 25th day of March, 1914, Mrs. Ethel Beecher and the -deceased Lida Beecher met the defendant at the Post Office in Poland, and -the defendant asked the deceased when she was coming to see his father, -and that she replied that she did not know, and the defendant said, -speaking impatiently, “Aw, I don’t believe that you intend to come at all; -you will wait until the summer time and go home and then it will be too -late.” That they spoke about school, and the deceased said to the -defendant that it would be better for him to wait until the beginning of -another term because he would be behind the other pupils in his work; that -on another occasion, on about the middle of February, 1914, the defendant -came on an errand to get yeast to the place where the deceased and Mrs. -Beecher were boarding and the defendant then said to them that he wanted -to get away from Poland, and would rather be in New York in the Great -White<span class="pagenum"><a name="Page_118" id="Page_118">[Pg 118]</a></span> Way; that he thought he would like to act in moving pictures as he -did not like his home and he hated his father, and would not care to be a -“sod-buster”; that the deceased asked him whether he would like to return -to school, and he said that he would, but that his father would not let -him; that he never stole but once in his life and that was twenty-five -cents from a lady in New York, and she had given him twenty-five cents to -buy some candy and he bought the candy and ate it himself. On the same -visit the defendant asked Mrs. Ethel Beecher if there was a state prison -in Rochester, and she told him no; he wanted to know if there was not some -sort of a reform school there. She said that there used to be, but that -the reform school had removed to Industry, and he asked what the reform -school was like at Industry and she told him that the boys lived in -cottages under the care of a matron, a man and wife generally, and that -was as much as she knew about it. The defendant said he would like to be -there and asked her about the state prison at Auburn and different -prisons, what the sentence was and whether they had an electric chair or -whether they hung. The defendant told them that they worked awfully hard -at Sing Sing. The defendant also stated on that occasion that his father -used to thrash him<span class="pagenum"><a name="Page_119" id="Page_119">[Pg 119]</a></span> for stealing apples that other men put him up to -stealing.</p> - -<p>Assuming at the time Mrs. Ethel Beecher and the deceased and the defendant -were talking together, that the deceased told the defendant that she -thought he would like to go in the country to work on a farm and asked him -why he did not continue his school work another year; and that her tone -was kindly and her whole deportment towards him on that occasion was such -as to incline one to believe that she desired to help him and to well -advise him; and that the defendant’s conversation concerning prisons and -industrial schools was such that it caused them to laugh, at the time; and -that on other occasions when the defendant was with the deceased her -conduct towards him was always kindly and that she was kindly and -generously disposed towards the defendant and showed considerable interest -in him.</p> - -<p>Assuming that on the 27th day of March, 1914, at about quarter after seven -the defendant was observed on the street in Poland with some children, -with whom he had been seen at different times playing hide and seek and -tag and I spy, and that he caught hold of the toque of one of the little -girls and pulled it down over her face and that he poked<span class="pagenum"><a name="Page_120" id="Page_120">[Pg 120]</a></span> another one of -the little girls in the back and that he called a girl by the name of -Grace Palmer, “Palmer House,” and said, “Leonard is the proprietor, isn’t -he?” and kept calling her Palmer House, and that he was snowballing the -girls, and that while he was engaged the deceased passed him on the street -and said, “Hello, Jean,” and that he then joined her and shortly -afterwards was seen to come back with the deceased, going up the road -towards Buck Hill. That later in the same evening, at about ten minutes to -eight, he returned home, showing no trace of excitement or nervousness, -and that he received some books of wall paper to be delivered to a -neighbor and that he took these books and threw them so that they fell -with a noise on a neighbor’s veranda and was seen running near the -railroad station and later returned home in the vicinity of eight o’clock, -showing no trace of any agitation, excitement, or nervousness. That he -took off his shoes, put on a pair of slippers, went to bed, and slept -quietly all night. That on the following morning he reported for work at -Sam Hutchinson’s as usual, worked for about twenty minutes doing his -chores, ate his breakfast, and nothing unusual was observed about him.</p> - -<p>Assuming further that he was seen going along the railroad track in the -direction of Newport; that he met<span class="pagenum"><a name="Page_121" id="Page_121">[Pg 121]</a></span> two men, one by the name of Smith, and -that he shouted, “Hello, Smithy”; that later he was spoken to by a man -named Sweet at Newport on the railroad track about four miles from Poland, -and that when Sweet caught up to him and asked him where he was going, he -said to Herkimer to see a moving picture show; that he had stolen a dollar -from his father; that he accompanied Sweet to Autenrith’s store and while -there the murder of the deceased was talked about in his presence and that -he ate peanuts and smoked a cigarette and asked where they had found the -body and stated that he had gone to school to her; and subsequently was -taken back to Poland by one Frank Newman, and thereafter was turned over -to the Sheriff of Herkimer County and one of his deputies.</p> - -<p>Assuming that on the 26th day of March he asked an acquaintance by the -name of Morris Howe, a boy of fifteen years, if the deceased came to get -her mail nights, and said that he would get even with her; that on -Tuesday, March 24th, he told a man by the name of Estes Compo, with whom -he was working, that the deceased had tried to send him to school and that -if he had a revolver he would kill her, and asked this same man if he had -read of a murder down South, of a colored man killing a white girl and -laying it on the<span class="pagenum"><a name="Page_122" id="Page_122">[Pg 122]</a></span> superintendent of a factory and that the man was -sentenced to the chair and the colored man confessed the crime; that on -the preceding night he had been in Compo’s room, where he saw a revolver -and a knife, and on the following day he said if he had a revolver, he -would kill the deceased; that about a week before the 27th day of March, -while defendant was working for Sam Hutchinson, he told a boy he would -some day put an end to the deceased.</p> - -<p>Assuming that between the hours of seven and eight o’clock on the night of -March 27th, 1914, Miss Beecher was killed at a dark and lonely spot on the -Buck Hill road and that she had come to her death by being struck on the -head with a monkey wrench and had been cut repeatedly to the extent of -about 24 times with a knife in various parts of the body and that she was -dragged from the place where she was killed to a clump of willows near the -road and that her umbrella and hat were found the following morning in the -road and that by following the track where her body had been dragged over -the snow the body of the deceased was found.</p> - -<p>And assuming that on the morning of the 28th day when the defendant was -brought to Poland he was taken to a house of a Justice of the Peace and -was taken into a room by the Deputy Sheriff and told that<span class="pagenum"><a name="Page_123" id="Page_123">[Pg 123]</a></span> he was -suspected and was accused of being a party to the crime. That after he was -completely stripped of his clothing he stated to the Deputy Sheriff that -he had gone to school to the deceased and had trouble with her at school -and wanted revenge and that he had met her the day before near the Post -Office and asked her to go up to his house and see his folks about having -him go to school again, and that the deceased told him that she would go -the next night. That the next night he did meet her near the hotel and she -said that she was ready to go up. They walked up the street, and when they -got near his father’s house, the defendant told her that his father did -not live there, that they had moved up the hill, that he then stated in -detail how he committed the crime and disposed of the body and what he did -with the wrench and the knife. That he said, “You would not think any one -could do a job as quick as that.” He said he supposed they would talk -insanity, but he was not any more insane than the Deputy Sheriff was, and -he did not want them to talk about it.</p> - -<p>He also said, “Gillette got the chair, didn’t he?” and upon the Deputy -Sheriff replying, “Yes,” the defendant said, “He had no reason to kill the -girl, but I did; I wanted revenge.”</p> - -<p>That at the same time the defendant signed a sworn<span class="pagenum"><a name="Page_124" id="Page_124">[Pg 124]</a></span> statement before the -Justice of the Peace, in which he stated that he went to school to Lida -Beecher, and had trouble with her and wanted revenge; that he was not -afraid, and when he got home, he was just as happy as he ever was, and did -not think anything about it, as he thought he had revenge; that at the -time he made these statements he was cool and quiet and spoke connectedly; -that he was not nervous or excited.</p> - -<p>Assuming that the defendant had not attended the Poland school since -February or March, 1913, and that while there he had studied under the -deceased for about one year, and that during this period the only -punishment he had received from the deceased was a seat facing the wall -with his back towards the other pupils, and was occasionally sent upstairs -to the Professor of the school for punishment. And that the deceased had -always manifested a friendly interest in him, was mild, kind, gentle, and -good to him.</p> - -<p>And further assume that when he left school, he was in the sixth grade.</p> - -<p>Assume that he had frequently been detected in telling lies, that he had -spoken of hatred of his father, that he manifested no affection towards -him, referring to his father as “Old Man” and “Him.” That on the morning -of the 28th when he was being brought<span class="pagenum"><a name="Page_125" id="Page_125">[Pg 125]</a></span> back to Poland by Newman, Newman -stated to him, “You have got something beside skipping out now staring you -in the face,” to which he replied, “They can’t give me but ten years”; he -used no words, when informed it might be a long time, that expressed fear -or fright; and when he was informed that he had murder staring him in the -face, he acted no different than ordinary.</p> - -<p>That less than a year before the birth of Charles, the first child, the -defendant’s mother suffered from an attack of diphtheria, for which she -was treated by Dr. Quinlan.</p> - -<p>Further assume that in the summer of 1910, at Morehouseville, while -quarreling with a little boy named Arthur Jones, the defendant said he -would go up to his father’s room and get his hunting knife and kill him.</p> - -<p>That while the defendant was at St. Vincent’s Industrial School for -juvenile delinquency, at work in the laundry, he told Mr. Minor that if -his father didn’t get him out in February, he would burn his father’s -buildings when he got out.</p> - -<p>Now, doctor, assuming all these facts to have been proven in this case, -from your experience in the treatment of and knowledge of imbeciles and -idiots,<span class="pagenum"><a name="Page_126" id="Page_126">[Pg 126]</a></span> from your skill and expert knowledge, can you express an opinion -concerning the mental condition of Jean Gianini at the time of the killing -of Lida Beecher, on the 27th day of March, 1914?</p> - -<p class="hang">By Mr. Thomas: If the Court please, I object to the question as -improper in form and that it concludes with assuming all these facts -to have been proven in this case, and that it is not an inquiry which -can be properly permitted to be put to the witness here. That, in -addition, it does not correctly state the evidence, and that -especially this part of the question is improper—“That she showed no -grief, and her general condition was such as he described at the time -he was treating her,” referring to Dr. Weeks, and further it assumes -incorrectly the time that the defendant encountered Miss Beecher, near -the Post Office on the 27th day of March, 1914, which is stated here -to be about a quarter after seven.</p> - -<p class="hang">By Mr. Hirsch: What time do you say it was, Mr. Thomas?</p> - -<p><span class="pagenum"><a name="Page_127" id="Page_127">[Pg 127]</a></span></p> - -<p class="hang">By Mr. Thomas: The proof varies from seven to seven six. And it is -incorrect in assuming facts not established upon the evidence, that he -cut her repeatedly to the extent of about twenty-four times with a -knife; and in those respects to which I have called your Honor’s -attention, the question is improper, in that it assumes facts not -proven, that it is improper in form, and the concluding paragraph, -with reference to which I have called your Honor’s attention, is -improper and incompetent; and that the question is incompetent in that -it does not call upon the witness to express an opinion as to the -knowledge of the defendant of right and wrong, or his knowledge of the -nature and quality of the act in killing the deceased.</p> - -<p class="hang">By Mr. McIntyre: That is a question, if your Honor please, which was -passed upon yesterday.</p> - -<p class="hang">By the Court: I suppose it is preliminary to some extent, as far as -this information is concerned.</p> - -<p class="hang">By Mr. McIntyre: It is precisely the same as yesterday, but the -question has had some additions.</p> - -<p class="hang">By the Court: Was that indicated by the last part of it?</p> - -<p class="hang">By Mr. McIntyre: Yes, sir.</p> - -<p class="hang">By Mr. Thomas: He should be asked, “Can you now form an opinion -assuming all these facts?”...</p> - -<p><i>Q.</i> Now, Doctor, assuming all these facts contained in the hypothetical -question to have been established by evidence in this case, from your -experience in the treatment and knowledge of imbeciles and idiots,<span class="pagenum"><a name="Page_128" id="Page_128">[Pg 128]</a></span> from -your knowledge and skill as an expert, can you express an opinion as to -the condition of Jean Gianini at the time of the killing of Lida Beecher -on the 27th day of March, 1914?</p> - -<p class="center">Same objection</p> - -<p class="hang">By the Court: Objection overruled. He may answer.</p> - -<p><i>A.</i> I can.</p> - -<p><i>Q.</i> What is your opinion?</p> - -<p class="center">Same objection.</p> - -<p class="hang">By the Court: I think it should conform now to the language of the -statute, shouldn’t it?</p> - -<p class="hang">By Mr. McIntyre: Well, I have, your Honor; I first asked him if he -could express that opinion. Now if he doesn’t express an opinion that -comes within the provisions within the statute, why then of course his -opinion is incompetent in this case. Now let’s look at the code. Will -you give me the section, please?</p> - -<p class="center">Section 1120.</p> - -<p>“Offense committed by an idiot or lunatic. An act done by a person who -is an idiot, imbecile, lunatic, or insane is not a crime. A person -cannot be tried, sentenced to any punishment, or punished for a crime -while he is in a state of idiocy, imbecility, lunacy or insanity, or -is incapable of understanding the proceeding<span class="pagenum"><a name="Page_129" id="Page_129">[Pg 129]</a></span> or making his defense. A -person is not excused from criminal liability as an idiot, imbecile, -lunatic, or insane person except upon proof that at the time of the -committing of the alleged criminal act he was laboring under such a -defect of reason as not to know the nature and quality of the act he -was doing or know the nature of the act as wrong.”</p> - -<p class="hang">By the Court: Well, now, my suggestion is why not embody that in your -question.</p> - -<p class="hang">By Mr. McIntyre: That is the second question, your Honor....</p> - -<p><i>Q.</i> I asked you what was your opinion concerning his mental condition.</p> - -<p><i>A.</i> That he is an imbecile.</p> - -<p><i>Q.</i> Now, Doctor, assuming that all the acts recited in the hypothetical -question to have been established by evidence, to be true, in conjunction -with the physical and mental examination made by you in the County Jail on -the 17th day of May this year,—from your experience and your knowledge of -imbeciles and idiots, in your opinion was Jean Gianini at the time of the -killing of Lida Beecher in such a mental condition as to know the nature -and quality of the act he was doing or that the act was wrong?</p> - -<p><span class="pagenum"><a name="Page_130" id="Page_130">[Pg 130]</a></span></p> - -<p class="hang">By Mr. Thomas: I object to it as improper in form and copulative.</p> - -<p class="center">Objection overruled.</p> - -<p><i>Q.</i> Your opinion, Doctor?</p> - -<p><i>A.</i> He was not in such condition.</p> - - - -<p> </p><p> </p> -<hr style="width: 50%;" /> -<p><span class="pagenum"><a name="Page_131" id="Page_131">[Pg 131]</a></span></p> -<h2><a name="APPENDIX_B" id="APPENDIX_B"></a>APPENDIX B</h2> -<p class="title">GIANINI CASE</p> -<p class="center">HYPOTHETICAL QUESTION PROPOUNDED BY THE PROSECUTION</p> - - -<p><i>Q.</i> Doctor, kindly assume that the defendant had been a pupil taught by -Lida Beecher in the public school at Poland and harbored against her a -desire for revenge because she had punished him; that he stated to people -of his acquaintance that he would get even with her; that on Tuesday, -March 24th, 1914, he stated to a man with whom he was working that if he -had a revolver he would shoot her; that several days previously he had -this wrench, Ex. 45, in his possession and stated to a man who asked him -what he was going to do with it, that he had use for it; that he met Miss -Beecher, who was a young lady about twenty years old, five feet three -inches in height, weighing about 126 pounds, wearing upon the head this -cap, Ex. 26, and as an outer garment, this raincoat, Ex. 29 (showing to -witness), Wednesday, March 25th, 1914, about<span class="pagenum"><a name="Page_132" id="Page_132">[Pg 132]</a></span> seven <span class="smcaplc">P.M.</span> in the Post -Office at Poland, Post Office in the village of Poland, the location of -which is indicated on this map, Ex. 1, to which I now call your attention -(indicating); walked with her and Miss Clark, a teacher, from the Post -Office along Cold Brook Street to a point on the southerly side of the -street opposite the residence of James D. Countryman, the location of -which is also shown on the map at a point to which I now call your -attention (indicating), and that during that walk the defendant asked Miss -Beecher when she was coming up to see his father, and upon receiving the -answer that she did not know, said, “Aw, I don’t believe you intend to -come at all; you will wait until summer time and go home and then it will -be too late”; that on the following evening, Thursday, he again met Miss -Beecher at or near the Post Office and asked her to go up to his house and -see his folks about going to school and she replied that she could not -that night, that she was going to prayer meeting, that she would go the -next night; that on the following day, Friday, he provided himself with -the knife, Ex. 48, for the occasion, and with the intention of killing -her, sharpened it for that purpose; that he met Miss Beecher about seven -<span class="smcaplc">P.M.</span> on the evening of Friday, March 27th, near the Post Office and walked -with her along<span class="pagenum"><a name="Page_133" id="Page_133">[Pg 133]</a></span> the south side of Cold Brook Street to the foot of Buck -Hill, which Buck Hill road is also shown on this map, a distance of 2006 -feet; that they then proceeded together along up Buck Hill, he getting her -to accompany him by telling her that his father lived up over the hill, -had moved up there two or three weeks before; that they went on part way -up the hill, and Miss Beecher hesitated and said it was farther up than -she thought it was, she did not think she would go any farther, and the -defendant said to her, “It is not but a little ways farther”; that when -they got to a point on the hill distant about 4198 feet from the Post -Office, she hesitated and said, “It is dark and I see no houses, no light, -don’t think I will go any farther, will write your father a letter in -regard to this school matter”; that as she stopped he stepped back of her, -hit her on the head with this monkey wrench, Ex. 45, which weighs 2 pounds -7<span style="font-size: 0.8em;"><sup>15</sup></span>⁄<span style="font-size: 0.6em;">16</span> ounces, which I now show to you, he at that time having as an -outer garment this coat, and wearing this shirt, Ex. 49, which I now show -to you; knocking her down, he hit her twice with it after she was down; -that when he first hit her with the wrench, she did not cry out but -moaned; that he then threw the wrench up over the fence on to the top of -the bank, about 35 feet; that it was so dark he<span class="pagenum"><a name="Page_134" id="Page_134">[Pg 134]</a></span> could not see; took the -knife, Ex. 48, and as she was lying on the ground, hit her with it several -times to be sure to finish her, inflicting punctured wounds, one on the -back of the neck just below the hair line ¾ of an inch in length, one on -the left side of the neck about ½ of an inch long, cutting a hole in the -external carotid artery 3 inches above the bifurcation of the common -carotid artery; that he then grabbed the body, which was face down, by the -right foot and dragged it across the road under a barbed-wire fence, down -the hill back of a bush to the swale; that he took hold of the right foot -because he did not want to get blood on his hands so that his finger -prints could be taken; that he ran immediately from the body to the Buck -Hill road and came out on to it a few rods nearer Poland than the point -where he dragged the body under the fence, ran down the road some -distance, and a team or sleigh came along and he stopped running and -waited until after that team got by him; that he reached his father’s -house, which is shown on this map, Ex. 1, and the location of which I call -your attention to (indicating), at 7:30 and would have reached it sooner -if he had not fallen down four or five times on the way home; that he went -into the house and put the knife, off from which he had wiped the blood in -the snow, in the pantry<span class="pagenum"><a name="Page_135" id="Page_135">[Pg 135]</a></span> drawer; that he was sent on an errand to the -house of Thomas Owens, on Cold Brook Street, which is also shown on this -map, Ex. 1, to the location of which I now call your attention -(indicating), to return some books of samples of wall paper, and to give -Mr. or Mrs. Owens a one-dollar bill and a soap order, to which it was -pinned; that he ran down the street, threw the books on to the veranda -floor near the kitchen door, ran down Cold Brook Street to South Main -Street, and tried to get the freight train which passed south on the M. & -M. railroad; that he ran back to his father’s house and arrived there a -little after eight, took off his shoes, put on his slippers, read the -newspaper a little while, and went to bed; that he arose about six o’clock -the next morning; left his father’s house, went to Sam Hutchinson’s, by -whom he was employed, and whose residence is also shown on this Ex. 1, at -the location to which I now call your attention (indicating), went to the -barn, assisted in doing the chores, went in to breakfast, said nothing, -left there the coat, Ex. 41, which was then substantially in the same -condition as it is now, and to its condition, especially on the back, I -call your attention, and this being the coat which he wore the evening -before, which I now hand to you and call your attention to (indicating) -the condition of, put on<span class="pagenum"><a name="Page_136" id="Page_136">[Pg 136]</a></span> another coat, and started down the railroad -track towards Herkimer, which is on the line of the New York Central and -Hudson River railroad, and some fourteen miles from Poland, intending then -to go away from Poland; that he was apprehended at Newport, a place -distant about four miles from Poland and between there and Herkimer, and -brought back in a cutter by Mr. Newman, whom he had known for several -years; that on the drive from Newport to Poland Newman asked him if he had -heard what happened at Poland, and defendant replied he hadn’t; when asked -if he had seen anything of Miss Beecher the night before, said he had not; -when asked by Newman if he had heard that Miss Beecher was murdered or -killed, defendant said, “No,” and on Newman’s saying, “They are looking -for you for it,” defendant said, “They can’t give me but ten years, can -they?”; that as they drove into the village of Poland and turned from -South Main Street into Cold Brook Street, near the Post Office, there were -some rigs coming down the hill, and defendant said, “They are coming off -the hill with her now”; that in the afternoon of the same day he -voluntarily made, signed, and swore to the following statement with -reference to the matter.<small><a name="f3.1" id="f3.1" href="#f3">[3]</a></small></p> - -<p><span class="pagenum"><a name="Page_137" id="Page_137">[Pg 137]</a></span>State, Doctor, basing your reply upon the hypothesis stated in the -question, whether or not, in your opinion, the defendant, at the time he -struck Miss Beecher with the wrench, understood that he had no right to do -it?</p> - -<p class="hang">Mr. McIntyre: Don’t answer. We object to the question in that it only -recites the revolting details of the alleged crime and that when the -question was being propounded to the witness upon the stand, counsel -for the State exhibited the knife, the wrench, the coat, the hat, and -other things in evidence in rather a dramatic way before the jury.</p> - -<p class="hang">We object to the question upon the ground that it does not contain all -the essential features in this case bearing upon the crime.</p> - -<p class="hang">We object to the question upon the ground that the hypothetical -question fails to include the condition of the defendant’s mother at -the time of his birth; it fails to include the fact that the first -child was an idiot during his lifetime; it fails to disclose the -conduct and deportment of the defendant from the time of his birth -down to the commission of this crime.</p> - -<p class="hang">We submit respectfully that the hypothetical question is a garbled -statement of that which has transpired during this case and can have -but one effect—to bias and prejudice the minds of the jurors. And I -submit it is incompetent, immaterial and irrelevant and improper, in -addition.</p> - -<p><span class="pagenum"><a name="Page_138" id="Page_138">[Pg 138]</a></span></p> - -<p class="hang">The Court: Objection overruled.</p> - -<p class="hang">Mr. McIntyre: Exception, sir.</p> - -<p><i>Q.</i> Have you got the conclusion, the concluding portion of my question in -mind?</p> - -<p><i>A.</i> Would you repeat it?</p> - -<p><i>Q.</i> Yes. State, Doctor, basing your reply upon the hypothesis stated in -the question, whether or not, in your opinion, the defendant, at the time -he struck Miss Beecher with the wrench, understood that he had no right to -do it.</p> - -<p><i>A.</i> I cannot get any evidence from the facts recited there to enable me -to determine.</p> - -<p><i>Q.</i> Well, can you determine from this question an opinion as an expert?</p> - -<p><i>A.</i> No, I cannot.</p> - - - -<p> </p><p> </p> -<hr style="width: 50%;" /> -<p><span class="pagenum"><a name="Page_139" id="Page_139">[Pg 139]</a></span></p> -<h2><a name="APPENDIX_C" id="APPENDIX_C"></a>APPENDIX C</h2> -<p class="title">GIANINI CASE</p> -<p class="title">DEFENDANT’S REQUEST TO CHARGE</p> - - -<p> </p> -<p class="center">I</p> - -<p>Defendant requests your Honor to charge the jury that, in determining the -guilt or innocence of the defendant of the offense charged in the -indictment, the jury are to consider only the evidence of the case and are -to disregard any statement made during the course of the trial, by counsel -or the Court, and are not to be influenced or governed by any expression -of opinion or action of either the Court or counsel for defendant or the -people.</p> - - -<p> </p> -<p class="center">II</p> - -<p>Defendant requests your Honor to charge that the jury are not to be -influenced, in the consideration of this case, by any comment or -expression of opinion in the newspaper reports of this case, and they must -disregard any statement or comment contained in any<span class="pagenum"><a name="Page_140" id="Page_140">[Pg 140]</a></span> such report, if same -has in any way been brought to their attention.</p> - - -<p> </p> -<p class="center">III</p> - -<p>Defendant requests your Honor to charge the jury that, in considering this -case, after its submission to them, the jury must proceed upon the -presumption that the accused, the defendant herein, is innocent of the -crime charged in the indictment and that it is necessary for the -commonwealth to overcome this presumption by evidence to convince them, -beyond a reasonable doubt, that the defendant is guilty of the crime -charged against him in the indictment.</p> - - -<p> </p> -<p class="center">IV</p> - -<p>Defendant requests your Honor to charge the jury that, in consideration of -this case, the jury are bound to act and proceed upon the presumption that -the accused is an innocent boy, and this presumption must continue -throughout the trial.</p> - - -<p> </p> -<p class="center">V</p> - -<p>Defendant requests your Honor to charge the jury that, the defendant being -charged with the crime of murder, the commonwealth is bound to prove -every<span class="pagenum"><a name="Page_141" id="Page_141">[Pg 141]</a></span> and all the essential facts necessary to constitute this crime -beyond a reasonable doubt before the jury can convict the defendant of the -crime charged in the indictment.</p> - - -<p> </p> -<p class="center">VI</p> - -<p>Defendant requests your Honor to charge the jury that, upon the whole -case, if the commonwealth has failed to prove all of the facts beyond a -reasonable doubt, the defendant is entitled to be acquitted.</p> - - -<p> </p> -<p class="center">VII</p> - -<p>Defendant requests your Honor to charge the jury that the burden in this -case rests with the commonwealth, from the beginning to the end of the -trial, to establish, beyond a reasonable doubt, every fact essential to -the conviction of the defendant, and if the commonwealth has failed to -prove such charge beyond a reasonable doubt, the defendant is entitled to -an acquittal.</p> - - -<p> </p> -<p class="center">VIII</p> - -<p>Defendant requests your Honor to charge the jury that the unintentional -killing of a human being by another without motive, intent, premeditation, -is neither murder nor manslaughter.</p> - - -<p> <span class="pagenum"><a name="Page_142" id="Page_142">[Pg 142]</a></span></p> -<p class="center">IX</p> - -<p>Defendant requests your Honor to charge the jury that the questions of -deliberation and premeditation, intent and motive, are purely questions of -fact, to be determined by the jury from the evidence alone.</p> - - -<p> </p> -<p class="center">X</p> - -<p>Defendant requests your Honor to charge that if the jury cannot say, -beyond a reasonable doubt, that the defendant was sane at the time of the -commission of the act, and cannot say whether, at that time, he was sane -or insane, the defendant must be acquitted.</p> - - -<p> </p> -<p class="center">XI</p> - -<p>Defendant requests your Honor to charge the jury that if, at the time the -defendant committed the act charged against him, upon seeing the deceased, -he was thrown into a state of mind from which he was deprived of his -understanding, so as to be unaware of the nature and quality of the act he -committed, or so as to be unable to distinguish between right and wrong in -reference to that particular act at the time of its commission, this -defendant must be acquitted.</p> - - -<p> <span class="pagenum"><a name="Page_143" id="Page_143">[Pg 143]</a></span></p> -<p class="center">XII</p> - -<p>Defendant requests your Honor to charge the jury that, although sanity is -assured and presumed to be the normal and natural state of the human mind, -when imbecility is once shown to exist in a person, it is presumed to -exist and continue until the presumption is overcome by contrary or -repelling evidence proving sanity.</p> - - -<p> </p> -<p class="center">XIII</p> - -<p>Defendant requests your Honor to charge the jury that if defendant was -deprived of his reason at the time the act charged against him was -committed, and which resulted from a settled and well-established mental -alienation, or from the pressure and overpowering weight of circumstances -occurring before and at the time of the commission of said act, the said -defendant is legally irresponsible for it and must be acquitted.</p> - - -<p> </p> -<p class="center">XIV</p> - -<p>Defendant requests your Honor to charge the jury that if, at the time of -the commission of the act, the defendant was under the influence of a -diseased mind, and was really unconscious that he was committing a crime, -this defendant must be acquitted.</p> - - -<p> <span class="pagenum"><a name="Page_144" id="Page_144">[Pg 144]</a></span></p> -<p class="center">XV</p> - -<p>Defendant requests your Honor to charge the jury that the insanity of the -defendant need not be proven beyond a reasonable doubt.</p> - - -<p> </p> -<p class="center">XVI</p> - -<p>Defendant requests your Honor to charge that the jury, in considering this -case, are bound to act upon the presumption that the accused, the -defendant, is innocent, and should endeavor, if possible, to reconcile all -the circumstances of the case with that of innocence.</p> - - -<p> </p> -<p class="center">XVII</p> - -<p>Defendant requests your Honor to charge the jury that the burden of proof -rests with the commonwealth in this case, from the beginning to the end of -the trial, and the commonwealth are bound to prove that the defendant -committed the crime charged in the indictment beyond a reasonable doubt, -otherwise the defendant is entitled to be acquitted.</p> - - -<p> </p> -<p class="center">XVIII</p> - -<p>Defendant requests your Honor to charge that the jury must be satisfied -beyond a reasonable doubt, from the evidence of the case, of the sanity of -the defendant<span class="pagenum"><a name="Page_145" id="Page_145">[Pg 145]</a></span> at the time of the commission of the act charged in the -indictment, and if the people fail to establish the sanity of the -defendant at the time of the commission of the act charged in the -indictment, this defendant cannot be convicted of any crime and is -entitled to an acquittal.</p> - - -<p> </p> -<p class="center">XIX</p> - -<p>Defendant requests your Honor to charge the jury that the law does not -require that the insanity, imbecility, or mental aberration which absolves -from crime should exist for any definite period, and only that it existed -at the moment when the act occurred.</p> - - -<p> </p> -<p class="center">XX</p> - -<p>Defendant requests your Honor to charge the jury that if the insanity, -imbecility, or mental aberration which absolves from crime operated at the -moment that the act was committed, that is sufficient in law to absolve -from guilt, and this defendant cannot be convicted of the offense charged -in the indictment, or any other offense.</p> - - -<p> </p> -<p class="center">XXI</p> - -<p>Defendant requests your Honor to charge the jury that the commonwealth -must satisfy the jury beyond<span class="pagenum"><a name="Page_146" id="Page_146">[Pg 146]</a></span> all reasonable doubt, that, at the moment -the act alleged in the indictment was committed by the defendant, he had -reason, perception, and understanding sufficient to enable him to discern -right from wrong, and that if he had not, it is the duty of the jury to -acquit this defendant.</p> - - -<p> </p> -<p class="center">XXII</p> - -<p>Defendant requests your Honor to charge that if the jury believe that the -defendant did not suffer from any mental aberration which would absolve -him from punishment for the act charged in the indictment prior to the -commission of the act, or subsequent thereto, but that such state of -mental aberration did exist at the moment when the act occurred which the -defendant stands charged with, this defendant cannot be convicted of the -crime charged in the indictment, or any other crime, and must be -acquitted.</p> - - -<p> </p> -<p class="center">XXIII</p> - -<p>Defendant requests your Honor to charge the jury that if there is a -reasonable doubt in the minds of the jury as to whether the act charged in -the indictment was committed by the defendant while he was unable to -discern between right and wrong, or if the evidence is<span class="pagenum"><a name="Page_147" id="Page_147">[Pg 147]</a></span> equally balanced -as to this, so that the jury cannot safely and conscientiously determine -whether the killing of the deceased was intentional, or was committed by -the defendant while he was unable to discern between right and wrong with -respect to the act, then this defendant is entitled to the benefit of that -doubt and entitled to an acquittal.</p> - - -<p> </p> -<p class="center">XXIV</p> - -<p>Defendant requests your Honor to charge the jury that if it finds that the -defendant is of a mental age of under twelve years, he is presumed to be -incapable of the commission of crime.</p> - -<p class="right">(<i>Refused</i>)</p> - - -<p> </p> -<p class="center">XXV</p> - -<p>Defendant requests your Honor to charge the jury that if it finds that the -defendant is of a mental age of under twelve years, he is presumed to be -incapable of crime and that presumption is not removed by proof that he -had sufficient capacity to understand the act charged against him and know -its wrongfulness, except by evidence that satisfied the jury beyond a -reasonable doubt.</p> - -<p class="right">(<i>Refused</i>)</p> - - -<p> <span class="pagenum"><a name="Page_148" id="Page_148">[Pg 148]</a></span></p> -<p class="center">XXVI</p> - -<p>Defendant requests your Honor to charge that if the jury finds that the -defendant is of a mental age of under twelve years, the evidence that he -understood the nature or quality of the act charged against him and knew -its wrongfulness must be strong and clear beyond a reasonable doubt.</p> - - -<p> </p> -<p class="center">XXVII</p> - -<p>Defendant requests your Honor to charge the jury that it must find that -the understanding of and the capacity for committing a crime is measured -not by the chronological years of the defendant, but by the strength of -the defendant’s understanding and judgment.</p> - -<p class="right">(<i>Refused</i>)</p> - - -<p> </p> -<p class="center">XXVIII</p> - -<p>Defendant requests your Honor to charge that if the jury find that the -defendant was of a mental age of under twelve years, he was incapable of -committing the crime charged in the indictment, unless the commonwealth -has made strong, clear, and convincing proof beyond a reasonable doubt -that the defendant was capable of discerning the difference between right -and wrong or knew the quality and nature of his act.</p> - -<p class="right">(<i>Refused</i>)</p> - - -<p> <span class="pagenum"><a name="Page_149" id="Page_149">[Pg 149]</a></span></p> -<p class="center">XXIX</p> - -<p>Defendant requests your Honor to charge that the burden is upon the -commonwealth to show that the defendant has intelligence and maturity of -judgment sufficient to render him capable of harboring a criminal intent.</p> - - -<p> </p> -<p class="center">XXX</p> - -<p>Defendant requests your Honor to charge that if no motive has been -established for the crime, the jury must regard it as important in its -bearing upon the question of the defendant’s mental condition at the time -of the commission of the act charged against him.</p> - - -<p> </p> -<p class="center">XXXI</p> - -<p>Defendant requests your Honor to charge the jury that if the commonwealth -have established merely a slight, trifling, and inconsequential motive for -the commission of the act charged in the indictment, they should regard it -as important and give it more consideration in connection with the -question of the defendant’s mental condition.</p> - - -<p> </p> -<p class="center">XXXII</p> - -<p>Defendant requests your Honor to charge the jury that the commission of -the crime charged in the indictment<span class="pagenum"><a name="Page_150" id="Page_150">[Pg 150]</a></span> by a child of tender years from its -very nature raises the question of abnormality of the defendant’s mind and -in the absence of clear, strong, and convincing evidence on the part of -the commonwealth, it must conclude that the defendant’s mental condition -was such that he did not understand the wrongfulness of his act or -understand the nature and quality of his act.</p> - - -<p> </p> -<p class="center">XXXIII</p> - -<p>Defendant requests your Honor to charge that evidence of the want of a -rational and reasonable motive on the part of the defendant for the -perpetration of the act charged in the indictment is to be considered by -the jury as strong corroboration of the fact of his mental -irresponsibility.</p> - - -<p> </p> -<p class="center">XXXIV</p> - -<p>Defendant requests your Honor to charge that the perpetration of the act -charged in the indictment without any apparent motive or object, but -against every motive which would appear to be naturally influential with -the defendant, that they must at once inquire whether or not the defendant -was of sound mind and take into consideration with the other evidence of -this case that he was not of sound mind, the absence of<span class="pagenum"><a name="Page_151" id="Page_151">[Pg 151]</a></span> sufficient motive -must lead them to conclude that he was of unsound mind and could not -distinguish between right and wrong or know the nature and quality of his -act.</p> - - -<p> </p> -<p class="center">XXXV</p> - -<p>Defendant requests your Honor to charge that the absence of a clear and -convincing motive in itself is evidence of an unsound mind.</p> - - -<p> </p> -<p class="center">XXXVI</p> - -<p>Defendant requests your Honor to charge that if the defendant acted -without any reasonable or rational motive or object, but against every -motive and object, which it would appear should have been influential with -him, that fact in itself raises a presumption that the defendant was of -such unsound mind that he could not distinguish between right and wrong or -know the nature or quality of his act.</p> - - -<p> </p> -<p class="center">XXXVII</p> - -<p>Defendant requests your Honor to charge the jury that they have no right -to presume a motive from the mere commission of the crime and have no -right to speculate, guess, or surmise or supply any motive for the -commission of the act charged in the indictment.</p> - - -<p> <span class="pagenum"><a name="Page_152" id="Page_152">[Pg 152]</a></span></p> -<p class="center">XXXVIII</p> - -<p>Defendant requests your Honor to charge that the failure of the -commonwealth to call as witnesses Drs. Maybon and Palmer, who made -examinations of the defendant, to testify as to his mental condition, -raises the inference that if they had been called as witnesses, they would -have testified adversely to the commonwealth in respect to the defendant’s -mental condition.</p> - - -<p> </p> -<p class="center">XXXIX</p> - -<p>Defendant requests your Honor to charge that from the failure of the -commonwealth to call as witnesses Drs. Maybon and Palmer, who examined the -defendant, the jury may infer that they would have testified that the -defendant was a high-grade imbecile who was laboring under such defect of -reason as not to know the nature and quality of the act of which he is -charged in the indictment or not to know the act was wrong at the time it -was committed.</p> - - -<p> </p> -<p class="center">XL</p> - -<p>Defendant requests your Honor to charge that from the failure of the -commonwealth to call as witnesses Drs. Maybon and Palmer, the jury may -infer that had<span class="pagenum"><a name="Page_153" id="Page_153">[Pg 153]</a></span> they been called they would have testified unfavorably and -adversely to the commonwealth, especially in the absence of any -explanation made under oath as to why they were not called.</p> - - -<p> </p> -<p class="center">XLI</p> - -<p>Defendant requests your Honor to charge that if the jury acquit the -defendant on the ground of insanity, in that event the jury should specify -in its verdict that it acquits him on the ground of insanity.</p> - - -<p> </p> -<p class="center">XLII</p> - -<p>Defendant requests your Honor to charge that if the jury acquit the -defendant upon the ground of insanity, it will become the duty of the -Court to order him committed to a State Asylum.</p> - - -<p> </p> -<p class="center">XLIII</p> - -<p>Defendant requests your Honor to charge that if the jury acquit the -defendant on the ground of insanity, in this case such insanity will mean -imbecility, and that as imbecility cannot be cured, it will become the -duty of the Court to order him committed to a State Asylum for the rest of -his actual life.</p> - - -<p> <span class="pagenum"><a name="Page_154" id="Page_154">[Pg 154]</a></span></p> -<p class="center">XLIV</p> - -<p>Defendant requests your Honor to charge the jury that the denial of the -several motions made by defendant’s counsel throughout the trial, and the -rulings of the Court upon objections, and refusals by the Court to charge -as requested, are not to be taken as any expression of opinion on the part -of the Court upon the facts of this case, but are only rulings upon the -law, about which the jury has nothing to do.</p> - -<p class="blockquot"><span class="smcap">Note.</span> Requests XXIV, XXV, XXVII, and XXVIII, the Court refused to charge.</p> - - - -<p> </p><p> </p> -<hr style="width: 50%;" /> -<p><span class="pagenum"><a name="Page_155" id="Page_155">[Pg 155]</a></span></p> -<h2>INDEX</h2> - - -<p> -Abstract ideas, lack of, in morons, <a href="#Page_98">98</a>.<br /> -<br /> -Actions after crime, Gianini, <a href="#Page_25">25</a>, <a href="#Page_27">27</a>.<br /> -<span style="margin-left: 1em;">Pennington, <a href="#Page_50">50-52</a>.</span><br /> -<span style="margin-left: 1em;">Tronson, <a href="#Page_76">76-78</a>.</span><br /> -<br /> -Alcoholism, <a href="#Page_110">110</a>.<br /> -<br /> -<br /> -Barr, Dr. Martin W., statement of, <a href="#Page_86">86</a>.<br /> -<br /> -Beecher, Miss, annoyed by Gianini, <a href="#Page_23">23</a>.<br /> -<br /> -Binet tests, and school experience, <a href="#Page_35">35</a>, <a href="#Page_38">38</a>, <a href="#Page_54">54</a>.<br /> -<span style="margin-left: 1em;">use of, in Gianini case, <a href="#Page_32">32-35</a>.</span><br /> -<span style="margin-left: 1em;">in Pennington case, <a href="#Page_53">53</a>.</span><br /> -<span style="margin-left: 1em;">in Tronson case, <a href="#Page_80">80</a>.</span><br /> -<br /> -<br /> -Capital punishment, <a href="#Page_101">101</a>.<br /> -<br /> -Cause of Gianini’s condition, <a href="#Page_39">39-41</a>.<br /> -<br /> -Causes of feeble-mindedness, <a href="#Page_39">39</a>.<br /> -<br /> -“Charity” in Binet tests, <a href="#Page_34">34</a>.<br /> -<br /> -Children, testimony of, <a href="#Page_90">90</a>.<br /> -<span style="margin-left: 1em;">actions of, <a href="#Page_94">94</a>.</span><br /> -<span style="margin-left: 1em;">suggestibility of, <a href="#Page_63">63</a>.</span><br /> -<br /> -Code quoted, <a href="#Page_128">128</a>.<br /> -<br /> -Colonization, <a href="#Page_107">107</a>.<br /> -<br /> -Confession, Gianini, <a href="#Page_4">4</a>, <a href="#Page_9">9</a>, <a href="#Page_10">10</a>.<br /> -<span style="margin-left: 1em;">Pennington, <a href="#Page_44">44</a>, <a href="#Page_53">53</a>.</span><br /> -<span style="margin-left: 1em;">Tronson, <a href="#Page_67">67-80</a>.</span><br /> -<span style="margin-left: 1em;">characteristic of imbeciles, <a href="#Page_16">16</a>, <a href="#Page_29">29</a>.</span><br /> -<span style="margin-left: 1em;">childishness of Pennington’s, <a href="#Page_55">55</a>, <a href="#Page_56">56</a>.</span><br /> -<span style="margin-left: 1em;">not necessarily true, <a href="#Page_17">17</a>.</span><br /> -<span style="margin-left: 1em;">why Gianini made a, <a href="#Page_15">15</a>.</span><br /> -<br /> -Confessions compared, <a href="#Page_83">83</a>, <a href="#Page_90">90-93</a>.<br /> -<br /> -Courtroom, conduct in, <a href="#Page_30">30</a>, <a href="#Page_67">67</a>, <a href="#Page_92">92</a>.<br /> -<br /> -Coward, the imbecile, <a href="#Page_23">23</a>.<br /> -<br /> -Cretinism, <a href="#Page_40">40</a>.<br /> -<br /> -Crime, details of, Gianini, <a href="#Page_122">122</a>, <a href="#Page_132">132</a>.<br /> -<span style="margin-left: 1em;">Pennington, <a href="#Page_47">47</a>.</span><br /> -<span style="margin-left: 1em;">Tronson, <a href="#Page_74">74</a>.</span><br /> -<br /> -Criminal imbeciles, what should be done with, <a href="#Page_102">102</a>.<br /> -<br /> -Criminals, 50 per cent feeble-minded, <a href="#Page_106">106</a>.<br /> -<br /> -<br /> -Defense in case of, Gianini, <a href="#Page_2">2</a>, <a href="#Page_5">5</a>.<br /> -<span style="margin-left: 1em;">Pennington, <a href="#Page_43">43</a>.</span><br /> -<span style="margin-left: 1em;">Tronson, <a href="#Page_66">66</a>.</span><br /> -<br /> -Delinquencies, previous, of Gianini, <a href="#Page_7">7</a>, <a href="#Page_37">37</a>, <a href="#Page_115">115</a>, <a href="#Page_116">116</a>.<br /> -<span style="margin-left: 1em;">of Tronson, <a href="#Page_68">68</a>, <a href="#Page_69">69</a>, <a href="#Page_82">82</a>.</span><br /> -<br /> -Display, love of, <a href="#Page_29">29</a>.<br /> -<br /> -<br /> -Experts, qualifications of, <a href="#Page_85">85</a>.<br /> -<br /> -<br /> -Feeble-mindedness, causes of, <a href="#Page_39">39</a>, <a href="#Page_106">106</a>.<br /> -<span style="margin-left: 1em;">may be exterminated, <a href="#Page_108">108</a>.</span><br /> -<br /> -Feeble-mindedness in family, Gianini, <a href="#Page_40">40</a>.<br /> -<span style="margin-left: 1em;">Pennington, <a href="#Page_87">87</a>.</span><br /> -<br /> -Finger prints, <a href="#Page_26">26</a>.<br /> -<br /> -<br /> -Gianini, Jean, case of, <a href="#Page_1">1-41</a>.<br /> -<span style="margin-left: 1em;">actions after the deed, <a href="#Page_25">25</a>, <a href="#Page_27">27</a>.</span><br /> -<span style="margin-left: 1em;">attitude of Miss Beecher toward, <a href="#Page_7">7</a>, <a href="#Page_119">119</a>.</span><br /> -<span style="margin-left: 1em;">disregards counsel’s warning, <a href="#Page_30">30</a>.</span><br /> -<span style="margin-left: 1em;">evidences of pride in deed, <a href="#Page_16">16-19</a>, <a href="#Page_29">29</a>, <a href="#Page_123">123</a>.</span><br /> -<span style="margin-left: 1em;">facts as established by testimony, <a href="#Page_3">3</a>.</span><br /> -<span style="margin-left: 1em;">incidents in life of, <a href="#Page_113">113-125</a>.</span><br /> -<span style="margin-left: 1em;">indifferent to crime, <a href="#Page_10">10</a>, <a href="#Page_29">29</a>, <a href="#Page_120">120</a>, <a href="#Page_125">125</a>.</span><br /> -<span style="margin-left: 1em;">interest in stories of crime, <a href="#Page_26">26</a>, <a href="#Page_118">118</a>, <a href="#Page_121">121</a>, <a href="#Page_123">123</a>.</span><br /> -<span style="margin-left: 1em;">mentality of, <a href="#Page_13">13</a>.</span><br /> -<span style="margin-left: 1em;">mother of, <a href="#Page_40">40</a>, <a href="#Page_109">109-112</a>.</span><br /> -<span style="margin-left: 1em;">previous delinquencies of, <a href="#Page_7">7</a>, <a href="#Page_37">37</a>, <a href="#Page_115">115</a>, <a href="#Page_116">116</a>.</span><br /> -<span style="margin-left: 1em;">stories about, <a href="#Page_31">31</a>, <a href="#Page_113">113</a>.</span><br /> -<span style="margin-left: 1em;">teased little children, <a href="#Page_32">32</a>, <a href="#Page_116">116</a>, <a href="#Page_119">119</a>.</span><br /> -<span style="margin-left: 1em;">threats made by, <a href="#Page_121">121</a>, <a href="#Page_125">125</a>, <a href="#Page_131">131</a>.</span><br /> -<br /> -Great White Way, <a href="#Page_117">117</a>.<br /> -<br /> -<br /> -Hypothetical question, defense, <a href="#Page_109">109-126</a>.<br /> -<span style="margin-left: 1em;">prosecution, <a href="#Page_131">131-136</a>.</span><br /> -<span class="pagenum"><a name="Page_156" id="Page_156">[Pg 156]</a></span><br /> -<br /> -Idiot, defined, <a href="#Page_12">12</a>.<br /> -<br /> -Imbecile, career of an, <a href="#Page_54">54</a>.<br /> -<br /> -Imbecility defined, <a href="#Page_11">11</a>.<br /> -<span style="margin-left: 1em;">not curable, <a href="#Page_102">102</a>.</span><br /> -<br /> -Imbecility, defense of, Gianini, <a href="#Page_2">2</a>, <a href="#Page_5">5</a>.<br /> -<span style="margin-left: 1em;">Pennington, <a href="#Page_43">43</a>.</span><br /> -<span style="margin-left: 1em;">Tronson, <a href="#Page_66">66</a>, <a href="#Page_80">80</a>.</span><br /> -<br /> -Imprisonment for life, <a href="#Page_89">89</a>, <a href="#Page_101">101</a>, <a href="#Page_104">104</a>.<br /> -<br /> -Indian, Gianini plays, <a href="#Page_23">23</a>.<br /> -<br /> -Insanity in relation to crime, <a href="#Page_102">102</a>.<br /> -<br /> -Instinct to kill, <a href="#Page_105">105</a>.<br /> -<br /> -Institution for feeble-minded, the logical place, <a href="#Page_104">104</a>.<br /> -<br /> -Intelligence, tests of, admitted into court, <a href="#Page_2">2</a>, <a href="#Page_32">32-35</a>, <a href="#Page_53">53</a>, <a href="#Page_80">80</a>.<br /> -<br /> -Interest in crime, Gianini’s, <a href="#Page_26">26</a>, <a href="#Page_118">118</a>, <a href="#Page_121">121</a>, <a href="#Page_123">123</a>.<br /> -<br /> -<br /> -Jail, attitude in, Gianini, <a href="#Page_30">30</a>;<br /> -<span style="margin-left: 2em;">Pennington, <a href="#Page_55">55</a>.</span><br /> -<span style="margin-left: 1em;">examined in, Gianini, <a href="#Page_29">29</a>;</span><br /> -<span style="margin-left: 2em;">Pennington, <a href="#Page_53">53</a>, <a href="#Page_56">56</a>.</span><br /> -<br /> -Jealousy of March, <a href="#Page_53">53</a>.<br /> -<br /> -<br /> -Liberty of defendant not desired, <a href="#Page_88">88</a>, <a href="#Page_103">103</a>.<br /> -<br /> -<br /> -McIntyre, John F., <a href="#Page_103">103</a>.<br /> -<br /> -March, convicted, <a href="#Page_43">43</a>.<br /> -<span style="margin-left: 1em;">convicted upon Pennington’s testimony, <a href="#Page_90">90</a>.</span><br /> -<span style="margin-left: 1em;">Pennington’s relation to, <a href="#Page_55">55</a>, <a href="#Page_56">56</a>, <a href="#Page_64">64</a>.</span><br /> -<br /> -Masturbation, <a href="#Page_117">117</a>.<br /> -<br /> -Melancholia, <a href="#Page_110">110-112</a>.<br /> -<br /> -Mental defectiveness, inherited, <a href="#Page_39">39</a>, <a href="#Page_106">106</a>.<br /> -<span style="margin-left: 1em;">recognized early, <a href="#Page_105">105</a>.</span><br /> -<br /> -Mentality of, Gianini, <a href="#Page_13">13</a>.<br /> -<span style="margin-left: 1em;">Pennington, <a href="#Page_53">53</a>.</span><br /> -<span style="margin-left: 1em;">Tronson, <a href="#Page_66">66</a>.</span><br /> -<br /> -Money as motive, <a href="#Page_57">57</a>.<br /> -<br /> -Moron, defined, <a href="#Page_11">11</a>.<br /> -<span style="margin-left: 1em;">abstract ideas lacking in, <a href="#Page_98">98</a>.</span><br /> -<br /> -Mother of Gianini, <a href="#Page_40">40</a>, <a href="#Page_109">109-113</a>.<br /> -<br /> -Motive, Gianini’s, <a href="#Page_4">4</a>, <a href="#Page_20">20-25</a>.<br /> -<span style="margin-left: 1em;">March’s, <a href="#Page_53">53</a>.</span><br /> -<span style="margin-left: 1em;">Pennington’s, <a href="#Page_53">53</a>, <a href="#Page_56">56-60</a>.</span><br /> -<span style="margin-left: 1em;">Tronson’s, <a href="#Page_76">76</a>, <a href="#Page_80">80</a>.</span><br /> -<br /> -<br /> -Pennington, Roland, case of, <a href="#Page_42">42-64</a>.<br /> -<span style="margin-left: 1em;">actions after the deed, <a href="#Page_52">52-53</a>.</span><br /> -<span style="margin-left: 1em;">conduct at trial, <a href="#Page_92">92</a>.</span><br /> -<span style="margin-left: 1em;">confession, <a href="#Page_44">44-53</a>.</span><br /> -<span style="margin-left: 1em;">disregards lawyer’s caution, <a href="#Page_55">55</a>.</span><br /> -<span style="margin-left: 1em;">mentality of, <a href="#Page_53">53</a>.</span><br /> -<span style="margin-left: 1em;">relation to March, <a href="#Page_55">55</a>, <a href="#Page_56">56</a>, <a href="#Page_64">64</a>.</span><br /> -<span style="margin-left: 1em;">testimony against March, <a href="#Page_43">43</a>, <a href="#Page_90">90</a>, <a href="#Page_92">92</a>.</span><br /> -<span style="margin-left: 1em;">trial, <a href="#Page_43">43</a>.</span><br /> -<br /> -Preparations for crime, Gianini, <a href="#Page_6">6</a>.<br /> -<span style="margin-left: 1em;">Pennington, <a href="#Page_47">47</a>.</span><br /> -<span style="margin-left: 1em;">Tronson, <a href="#Page_70">70</a>.</span><br /> -<br /> -Prevention, <a href="#Page_82">82</a>, <a href="#Page_87">87</a>, <a href="#Page_104">104-108</a>.<br /> -<br /> -Propagation, prevention of, <a href="#Page_106">106-108</a>.<br /> -<br /> -Psychologists, testimony of, <a href="#Page_32">32</a>, <a href="#Page_53">53</a>, <a href="#Page_66">66</a>.<br /> -<br /> -Punishment for criminal imbeciles, <a href="#Page_88">88</a>, <a href="#Page_100">100-108</a>.<br /> -<br /> -<br /> -Quality of an act, meaning of, <a href="#Page_96">96</a>.<br /> -<br /> -<br /> -St. Vincent’s School, <a href="#Page_7">7</a>, <a href="#Page_116">116</a>.<br /> -<br /> -School, failure in, sign of mental defect, <a href="#Page_37">37</a>.<br /> -<span style="margin-left: 1em;">Gianini case, <a href="#Page_35">35-37</a>, <a href="#Page_124">124</a>.</span><br /> -<span style="margin-left: 1em;">Pennington case, <a href="#Page_54">54</a>.</span><br /> -<span style="margin-left: 1em;">Tronson case, <a href="#Page_66">66</a>.</span><br /> -<br /> -Segregation, <a href="#Page_107">107</a>.<br /> -<br /> -Sexual theory of Gianini’s crime, <a href="#Page_20">20</a>.<br /> -<br /> -Society, duty of, <a href="#Page_82">82</a>.<br /> -<span style="margin-left: 1em;">protection for, <a href="#Page_100">100</a>.</span><br /> -<br /> -Speech development retarded, <a href="#Page_113">113</a>.<br /> -<br /> -State prison for the imbecile manslayer, <a href="#Page_89">89</a>, <a href="#Page_104">104</a>.<br /> -<br /> -Sterilization, <a href="#Page_107">107</a>.<br /> -<br /> -Stories about Gianini,<br /> -<span style="margin-left: 1em;">“Indian,” <a href="#Page_113">113</a>.</span><br /> -<span style="margin-left: 1em;">“Soup and safety,” <a href="#Page_31">31</a>.</span><br /> -<span style="margin-left: 1em;">“Strap oil,” <a href="#Page_32">32</a>.</span><br /> -<span style="margin-left: 1em;">teased little children, <a href="#Page_32">32</a>, <a href="#Page_113">113</a>, <a href="#Page_116">116</a>, <a href="#Page_119">119</a>.</span><br /> -<span style="margin-left: 1em;">“Thief,” <a href="#Page_114">114</a>.</span><br /> -<br /> -Suggestion, discussed, <a href="#Page_61">61-63</a>.<br /> -<span style="margin-left: 1em;">Pennington, victim of, <a href="#Page_56">56-64</a>.</span><br /> -<br /> -Superintendents as specialists, <a href="#Page_88">88</a>.<br /> -<br /> -<br /> -Testimony of, children, <a href="#Page_90">90</a>.<br /> -<span style="margin-left: 1em;">experts, <a href="#Page_85">85</a>.</span><br /> -<span style="margin-left: 1em;">Pennington against March, <a href="#Page_43">43</a>, <a href="#Page_90">90</a>, <a href="#Page_92">92</a>.</span><br /> -<span style="margin-left: 1em;">psychologists, <a href="#Page_32">32</a>, <a href="#Page_53">53</a>, <a href="#Page_66">66</a>.</span><br /> -<span class="pagenum"><a name="Page_157" id="Page_157">[Pg 157]</a></span><span style="margin-left: 1em;">witnesses, <a href="#Page_3">3-8</a>, <a href="#Page_18">18</a>, <a href="#Page_31">31</a>, <a href="#Page_35">35-37</a>.</span><br /> -<br /> -Trial, Gianini, <a href="#Page_1">1</a>, <a href="#Page_30">30</a>, <a href="#Page_31">31</a>.<br /> -<span style="margin-left: 1em;">Pennington, <a href="#Page_43">43</a>, <a href="#Page_92">92</a>.</span><br /> -<span style="margin-left: 1em;">Tronson, <a href="#Page_66">66</a>, <a href="#Page_67">67</a>.</span><br /> -<br /> -Tronson, Fred, case of, <a href="#Page_65">65-82</a>.<br /> -<span style="margin-left: 1em;">actions after the deed, <a href="#Page_76">76-78</a>.</span><br /> -<span style="margin-left: 1em;">confession of, <a href="#Page_76">76-80</a>.</span><br /> -<span style="margin-left: 1em;">mentality of, <a href="#Page_66">66</a>.</span><br /> -<span style="margin-left: 1em;">previous delinquencies of, <a href="#Page_68">68</a>, <a href="#Page_69">69</a>, <a href="#Page_82">82</a>.</span><br /> -<br /> -Types considered, of imbecility, <a href="#Page_83">83</a>.<br /> -<span style="margin-left: 1em;">of feeble-mindedness, <a href="#Page_12">12-14</a>.</span><br /> -<br /> -<br /> -Verdict, Gianini case, <a href="#Page_1">1</a>, <a href="#Page_2">2</a>.<br /> -<span style="margin-left: 1em;">Pennington case, <a href="#Page_43">43</a>.</span><br /> -<span style="margin-left: 1em;">Tronson case, <a href="#Page_66">66</a>.</span><br /> -<br /> -<br /> -Witnesses, children as, <a href="#Page_90">90</a>.<br /> -<br /> -Wrench asked about, <a href="#Page_7">7</a>.<br /> -</p> - - -<p> </p> -<p class="center">Printed in the United States of America.</p> - - - -<p> </p><p> </p> -<hr style="width: 50%;" /> -<p><b>Footnotes:</b></p> - -<p><a name="f1" id="f1" href="#f1.1">[1]</a> See prosecution’s hypothetical question—Appendix, <a href="#Page_131">pp. 131-138</a>.</p> - -<p><a name="f2" id="f2" href="#f2.1">[2]</a> See Gianini Case, Defendant’s Request to Charge, Nos. XLII, XLIII, Appendix, <a href="#Page_153">p. 153</a>.</p> - -<p><a name="f3" id="f3" href="#f3.1">[3]</a> For statement see <a href="#Page_9">p. 9</a>.</p> - - - - - - - - - -<pre> - - - - - -End of Project Gutenberg's The Criminal Imbecile, by Henry Herbert Goddard - -*** END OF THIS PROJECT GUTENBERG EBOOK THE CRIMINAL IMBECILE *** - -***** This file should be named 43064-h.htm or 43064-h.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/4/3/0/6/43064/ - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive.) - - -Updated editions will replace the previous one--the old editions -will be renamed. - -Creating the works from public domain print editions means that no -one owns a United States copyright in these works, so the Foundation -(and you!) can copy and distribute it in the United States without -permission and without paying copyright royalties. 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You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org/license - - -Title: The Criminal Imbecile - An Analysis of Three Remarkable Murder Cases - -Author: Henry Herbert Goddard - -Release Date: June 29, 2013 [EBook #43064] - -Language: English - -Character set encoding: ASCII - -*** START OF THIS PROJECT GUTENBERG EBOOK THE CRIMINAL IMBECILE *** - - - - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive.) - - - - - - - - - -THE CRIMINAL IMBECILE - - - - - THE MACMILLAN COMPANY - NEW YORK . BOSTON . CHICAGO . DALLAS - ATLANTA . SAN FRANCISCO - - MACMILLAN & CO., LIMITED - LONDON . BOMBAY . CALCUTTA - MELBOURNE - - THE MACMILLAN CO. OF CANADA, LTD. - TORONTO - - - - -[Illustration: JEAN GIANINI. - -(Upper picture taken in jail. Printed by permission of Zintsmaster and -Jones, Herkimer, N. Y., Photographers.)] - - - - - THE CRIMINAL IMBECILE - - AN ANALYSIS OF THREE - REMARKABLE MURDER CASES - - - BY HENRY HERBERT GODDARD - - DIRECTOR OF DEPARTMENT OF RESEARCH - VINELAND TRAINING SCHOOL - - - New York - THE MACMILLAN COMPANY - 1915 - _All rights reserved_ - - - - - COPYRIGHT, 1915, - BY THE MACMILLAN COMPANY. - - Set up and electrotyped. Published September, 1915. - - Norwood Press - J. S. Cushing Co.--Berwick & Smith Co. - Norwood, Mass., U.S.A. - - - - -PREFACE - - -This book is offered to the public in the belief that the three cases -herein described are typical of a large proportion of criminal cases and -that the analysis and discussion attempted will help to make clear -important points which are often misunderstood, points relative to the -criminal and to the imbecile. - -A clear conception of the nature of the imbecile and of his relation to -crime will inevitably result in a most desirable change in our criminal -procedure. - -It should be noted that we use "imbecile" in the legal sense which -includes the moron and often the idiot as scientifically classified. This -usage is justified since much of the literature still describes all mental -defectives as imbeciles, idiots, or feeble-minded--according to the -preference of the writers. - -These cases are unique in that they were the first court cases in which -the Binet-Simon tests were admitted in evidence, the mental status of -these persons under indictment being largely determined by this method. - -It happens, also, that these cases well illustrate three phases of the -workings of defective minds. Jean Gianini shows the criminal imbecile of -high grade and of loquacious type working by himself. Roland Pennington, -equally high grade but of a quiet, phlegmatic temperament, shows how a -defective mind works under suggestion. Finally, Tronson shows the crude -brutality of a somewhat lower grade defective. - -In the chapter on Responsibility we have tried to indicate the difference -between _verbal_ morality and deep-seated, appreciated, moral principle. A -child may have the former but the latter comes only with experience and -the age at least of the adolescent. - -We would remind the reader that in the confessions and the appendices we -have had at hand only stenographic reports. - -If this book shall help the lawyer to make a more successful defense of -the imbecile criminal, the judge to dispense justice to this much -misunderstood class of high grade imbeciles, and society in general to -realize its responsibility for the mental defective, it will have -fulfilled its mission. - -H. H. G. - - RESEARCH LABORATORY OF THE TRAINING SCHOOL - IN VINELAND, N. J. - - - - -CONTENTS - - - PAGE - - PREFACE v - - CHAPTER - - I. THE CASE OF JEAN GIANINI 1 - - II. THE CASE OF ROLAND PENNINGTON 42 - - III. THE CASE OF FRED TRONSON 65 - - IV. THE CRIMINAL IMBECILE 83 - - V. RESPONSIBILITY 94 - - VI. THE PUNISHMENT FOR CRIMINAL IMBECILES 100 - - - APPENDICES - - A. GIANINI CASE. HYPOTHETICAL QUESTION PROPOUNDED BY - THE DEFENSE 109 - - B. GIANINI CASE. HYPOTHETICAL QUESTION PROPOUNDED BY - THE PROSECUTION 131 - - C. GIANINI CASE. DEFENDANT'S REQUEST TO CHARGE 139 - - INDEX 155 - - - - -LIST OF ILLUSTRATIONS - - - JEAN GIANINI _Frontispiece_ - - FACING PAGE - - ROLAND PENNINGTON 42 - - FRED TRONSON 66 - - - - -THE CRIMINAL IMBECILE - - - - -CHAPTER I - -THE CASE OF JEAN GIANINI - - -"We find the defendant in this case not guilty as charged; we acquit the -defendant on the ground of criminal imbecility." - -Such was the verdict by the jury of the Supreme Court of Herkimer County, -New York, on May 28th, 1914, in the case of the people _vs._ Jean Gianini, -indicted for the murder of Lida Beecher, his former teacher. - -The prosecution and, at first at least, the majority of the citizens of -the community held that this had been a carefully planned, premeditated, -cold-blooded murder of the most atrocious character, committed with a -fiendishness seldom seen among human beings. It was, on the other hand, -claimed by the defense that the boy was an imbecile, that he had only the -intelligence of a ten-year-old child, that he did not know the nature and -quality of his act, and that he did not have any true realization of the -enormity of his crime. For some reason unaccountable to a great many -people, the jury accepted the view of the defense. - -Not infrequently have verdicts in murder trials been unacceptable to the -populace. In that respect this verdict is not an exceptional one, but from -other standpoints it is remarkable. Probably no verdict in modern times -has marked so great a step forward in society's treatment of the -wrongdoer. For the first time in history psychological tests of -intelligence have been admitted into court and the mentality of the -accused established on the basis of these facts. - -The value of this verdict cannot be overestimated. It establishes a new -standard in criminal procedure. It recognizes that _weakness_ of mind, as -an excuse for crime, is of the same importance as _disease_ of mind; puts -feeble-mindedness in the same category with insanity, and requires that it -like insanity be considered in all discussions of responsibility. When we -add the now accepted fact that the feeble-minded are at least as numerous -as the insane, we see the far-reaching significance of this standard set -by the Supreme Court of Herkimer County, New York. - -That the verdict has not been at once acceptable to the people is due to -the fact that the character and the limitations of the high-grade -imbecile are not understood. With a view to explaining this type of -defective, which the defendant so well illustrates, we propose in the -following pages to go over the history of this case, explaining the facts -in the light of present-day knowledge of the feeble-minded. - -The facts in the case as established by testimony:-- - -On the morning of March 28th, 1914, Henry Fitch, a farmer of Herkimer -County, accompanied by his son, started on his usual work to deliver milk. -At a point in the highway, approximately one mile from the village of -Poland, Mr. Fitch saw blood and signs of a struggle in the snow and slush -in the road; he also found an umbrella and a hat. A bloody path led out of -the road to a point some hundred and thirty feet away. Following the -tracks he found the body, which proved to be that of Lida Beecher, one of -the school-teachers in the village of Poland. She lay at full length on -her face, both arms under her. The body was removed to Sprague's -undertaking rooms in the village. - -On the same morning Jean Gianini, sixteen years old, left his father's -house on the edge of the village to go to the home of Sam Hutchinson, -where he was working and taking his meals. He had his breakfast, went to -the barn, and worked a short time. When Mr. Hutchinson went out a little -later, he could not find Jean. A Mr. Smith said he had seen him going down -the tracks toward Newport. William Taylor, the track foreman, said he -passed Jean near the bridge. Mr. Hutchinson then sent word to the boy's -father that he had gone. The father, supposing his son had run away as he -frequently did, telephoned to Newport asking that he be apprehended and -sent home. This was before anything was known of the crime. Peck Newman, -to whom the father telephoned, found Jean in a grocery store in Newport. -He had been apprehended at the depot. He was taken home and then to the -Justice of the Peace. Here he was stripped, presumably for the purpose of -discovering whether there was any blood upon his clothing or his body. -Although there is no evidence that any stains were found, yet he had no -sooner been stripped than he made a free and open confession. We shall -consider this confession in detail later. In substance he said that he -killed Miss Beecher to get revenge, because she had humiliated him in -school. He told in detail how he had accomplished this and what had been -his movements shortly before and after the deed. On the strength of this -confession and such corroborative evidence as could be obtained from -local witnesses the prosecution sought to convict this boy of murder in -the first degree. - -It was understood at first that the defense would attempt to prove that he -was insane. There did not seem to be much evidence of insanity and it did -not appear that the prosecution was in great fear of such a verdict. As a -matter of fact, the real defense was imbecility. It is probable that this -defense was less intelligible to people who knew Jean Gianini than that of -insanity would have been. To one familiar with imbecility, however, there -is no shadow of a doubt of the correctness of this diagnosis. The only -possible question in the mind of any such person would be whether a -defective of such high grade knew the nature and quality of his act and -knew that it was wrong, and was therefore responsible for his act. This -point the jury decided, and we shall attempt to show by a study of the -case that they decided correctly. - -Much of the confusion in the mind of the public and dissatisfaction with -the result in this case is due to a failure to understand the nature and -character of the imbecile. Most of the acts and the utterances of the -defendant, which seemed to many people to indicate his soundness of mind, -his premeditation and planning of the murder, are in reality so thoroughly -characteristic of the imbecile as to leave no doubt whatever of his low -mentality. - -We have already given all that is known of the circumstances except -certain details which Jean claimed in his confession, and certain acts and -utterances which were testified to by local witnesses. - -We may now examine these testimonies, reserving his confession for a later -discussion. So far as the crime itself is concerned but little testimony -was brought forward; so little, in fact, that without the boy's confession -he probably could never have been convicted of the deed. - -On the evening of the tragedy Jean was seen by several people walking up -the street toward his home in company with his victim. Two days before -this he had been heard to ask her when she was coming to see his father -about his returning to school; to this she had replied, that she "did not -know"; and he had answered, "Aw, I don't believe you intend to come at -all, you will wait until summer time, and go home and then it will be too -late." On the following evening he again asked her to go up to his house. -She said she could not go then, as she was going to prayer meeting, but -she would go the next night. He had also inquired of certain persons -whether she went to the Post Office in the evening. On one occasion he -had been seen with an old rusty wrench in his pocket and when asked what -he was doing with it, he had replied, "I have use for it." This was the -wrench with which he struck his victim the death-blow, according to his -confession. - -Previous to the tragedy he had told certain persons that he meant to get -even with Miss Beecher. The wrongs for which he claimed to have desired -revenge had occurred more than a year before the tragedy. For over a year -he had been out of school and had been working a part of that time. For -some months he had been an inmate of St. Vincent's School, to which -institution he was committed by a Justice of the Peace at the instigation -of his father because of his propensity to jump freight trains. - -The evidence was strongly against the idea that Miss Beecher had ever done -anything to injure him or anything which would reasonably cause resentment -in his mind. He had not gotten along well in his studies after going into -her room, had been more or less disorderly, and she, at the suggestion of -the principal, had seated him facing the wall with his back to the rest of -the school. She had occasionally sent him up to the principal, who had -sometimes flogged him. - -On the night of the deed Jean was seen walking up the street with Miss -Beecher at something after seven o'clock in the evening; before eight -o'clock he was at home in his father's house; there he was given an errand -to do and went down the street, returning shortly; spent some time in -reading and then went to bed. The next morning he was at his place of work -as already mentioned. The wrench which had been seen in his pocket was -found near the scene of the murder. These are the only known facts bearing -upon the case, previous to his own confession. For further items of -evidence see the hypothetical questions propounded by the prosecution and -by the defense--Appendix, pp. 109-138. - -The fact that he was the last person seen with her, that the monkey wrench -at one time seen in his pocket was found at the scene of the deed, that he -left his place of work and went down the railroad track toward Newport, -was sufficient to arouse suspicion. It is more than doubtful whether the -evidence could have resulted in an indictment by a grand jury, and -practically certain it never could have resulted in a conviction. The -absence of any real motive for the act would have been fatal to such an -attempt. The absence of evidence of a prearranged plan is also a serious -lack. It is true that, when we have the confession and the later -explanations, the presence of the monkey wrench in his pocket and his -words that he "had use for it" sound like a prearranged plan, and yet -there is no real evidence here. He might have had the monkey wrench for a -dozen purposes and have given the same answer. Perhaps his threat to get -even with her, his remark "that if he had a revolver he would shoot her," -may be considered more serious, but certainly no jury could convict him -merely on the basis of such statements. - -It is reasonably certain then that, had he not confessed, he never would -have been convicted even if he had been indicted. Let us now examine the -confession. - - _Gianini's Confession_: Jean Gianini, being duly sworn, deposes and - says he resides in the village of Poland and is sixteen years old; - deponent further says, "I went to school to Lida Beecher and had - trouble with her and wanted to get revenge. - - "I met her above the hotel and walked up the street with her up beyond - the stone quarry; she had been a coming to see my folks about school - and was a coming up to see them last night and I told her they lived - up the hill, and when we got up there on the left side of the road, I - hit her with a monkey wrench that I got out of my father's barn. I had - the wrench in my pocket when I went up. - - "After I had hit her about three times with the wrench, I hit her with - a knife several times, to be sure to finish her, and then I took her - over in the lot; I dragged her by the foot; and then I went home and - got there about 7:30. - - "The knife I stabbed her with was one that belonged to my father and I - took it home and put it in the pantry drawer. - - "I left the wrench somewhere near where I hit her. When I hit her - first, she did not scream but moaned. - - "She said she thought it was quite a ways and she did not see any - house. - - "I was not afraid when I got home; I was just as happy as I ever was - and didn't think anything about it as I thought I had revenge. - - "I make this statement voluntarily and under no fear or threat and - knowing the same may be used against me. - - "JEAN GIANINI. - - "Subscribed and sworn to before me this 28th day of March, 1914. - - "FRED MOORE, - "_Justice of the Peace of Town of Russia_." - -In its main points the confession must be accepted as true. To refuse to -accept it would be to admit at once without further proof that the boy -was crazy or an imbecile, since, if it were not true, it is inconceivable -that any normal person would claim to have done such a deed. It is -accepted then by all that Jean Gianini killed Lida Beecher on the night of -March 27th, 1914. There is no difference of opinion on that point. It is -now only a question of his responsibility. - -We may now review the facts and see what is the evidence: first, that he -is an imbecile; second, that being an imbecile, he did not know the nature -and quality of his act and that it was wrong. - -Is Jean Gianini an imbecile? What is an imbecile? We cannot expect to -agree upon the question of whether Jean is an imbecile until we agree upon -the definition of imbecile. There are various ways of designating this -type of individual. Imbecility, as used in law in this country, may be -defined as "the state of mental defect existing from birth or from an -early age, due to incomplete cerebral development, in consequence of which -the person affected is unable to perform his duties as a member of -society." The high-grade imbecile, such as the person under discussion, -feeble-minded as he is called in England, or the moron as we are coming to -call him in the United States, is one who is "capable of earning a living -under favorable circumstances, but is incapable from mental defect, -existing from birth or from an early age, (_a_) of competing on equal -terms with his normal fellows, or (_b_) of managing himself or his affairs -with ordinary prudence." These definitions were formulated by the Royal -College of Physicians of England, and accepted by the Royal Commission on -the Care and Control of the Feeble-minded. - -We may further designate this type of individual by saying that he has the -mentality of a normal child of from three to twelve years of age. These -age limits have been determined by examining thousands of the inmates of -institutions for the feeble-minded and comparing with normal children. The -inmates of the institutions are there because they were not capable of -managing their own affairs with ordinary prudence, because society has -discovered that they could not take care of themselves; they are -weak-minded; they must be cared for by the public. Careful examination of -such persons as have been determined by experience to be incapable of -managing themselves shows that they range in intelligence, as before -stated, from three to twelve years. There are practically none in these -institutions that have a mentality above twelve. Those under three are -called idiots. - -Considered from the standpoint of the growth and the development of the -child, we say that the imbecile is a case of arrested development; he has -stopped growing mentally, and has stopped previous to the age of twelve, -so that no matter what may be his actual age his mentality is that of a -child under twelve years. - -In the case of Jean Gianini, although he is sixteen years old, he has only -the mentality of a child of ten. Or, if a possible error of two years were -allowed, he would still have only the mentality of twelve and would be an -imbecile. As a matter of fact, there is probably nothing in the whole -career and history of Jean Gianini that is inconsistent with a mentality -under twelve; and on the other hand there are numbers of things in -evidence in connection with his crime that are so thoroughly typical of -high-grade imbeciles that any one with experience with this type of person -can have no doubt about it; but it is our purpose to show this by an -analysis of the case. We must first attempt to remove some of the -difficulties in the way of this view. - -First, why does it seem absurd to call Jean Gianini an imbecile? Mainly -because in the popular mind the term imbecile connotes only the low-grade -imbecile, the person who shows in every movement and action, if not in -his very face, that he is "lacking," is "not all there," is "not quite -right," or whatever may be the expression that we apply to those -unfortunate ones, of whom there are, sad to say, always one or more in -every community. - -Jean Gianini is not of that type; he is a _high-grade_ imbecile; he is of -the grade that is only recognized by those who are intimately familiar -with imbeciles of all types. He is only discovered when we make a close -comparison between him and normal boys of the various ages. We may perhaps -liken it to the question of tuberculosis: the average man never recognizes -a fellow being as suffering from consumption until he is afflicted with a -cough which does not yield to treatment, is constantly expectorating, gets -thin and pale, and has other marked outward symptoms; the average person -would not find more than one or two consumptives among a hundred persons; -the expert physician, however, experienced with tuberculosis, recognizes -many more by signs and symptoms which he can describe with great accuracy, -and when he is allowed to apply his physiological tests and his clinical -thermometer and his microscope, the number increases enormously, and he -assures us that every seventh person will die of tuberculosis. - -It is hard then for many people to accept the verdict that Jean Gianini -is an imbecile, largely because they do not realize what a high-grade -imbecile is. - -A second reason is found in the fact that we insist upon believing the -unbelievable. We view a crime like the one under discussion and say -frankly, "It is unbelievable that any reasoning, intelligent person could -commit such an atrocious act," and yet we believe that this boy did; we -believe that such a grade of villainy exists and that it can suddenly -appear in a boy who never before manifested anything approaching it. The -fact is, that our instinctive revulsion against such a thought is the -correct view. The fact that Jean Gianini committed such a crime is itself -the strongest kind of evidence that he is not a normal boy. But turning -from imbecility in the abstract, let us examine concrete instances in the -life of Jean Gianini, for we shall find there the best possible -illustrations of the characteristics of an imbecile. - -We may begin at the most dramatic point--the crime itself. Since we know -practically nothing of the crime except through his admissions, we will -begin with the confession. And first, why was there a confession? It is -safe to say that there is not a sensible man or boy the country over who, -knowing the facts in the case, would not say, "What a fool Jean was to -confess!" Nobody but an imbecile would have confessed under those -circumstances; they had no evidence against him, nor did they pretend they -had; he testifies that they told him that they thought he was guilty of -the crime; they did not pretend that they knew he was guilty; there were -no third-degree methods used; they had taken his clothing off and examined -him, but they had not found any blood or any evidence, and the clothing -had only just been removed when Jean began to tell his story. He had not -been promised any immunity if he should confess; in fact, he had been told -that anything that he said would be used against him, but still he -persisted in telling the whole story. But we do not have to rely upon the -fact that it looks foolish to us for him to have confessed, because we -have the fact, well known to all who have to deal with imbeciles, that it -is characteristic of them to do just this thing. They do not always -confess, it is true. It seems to depend largely upon how proud they are of -their deeds--and frequently the more atrocious these are, the prouder they -are of them. It is perfectly clear that such was the case with Jean. He -made some little attempt to get away, at least he made what appeared like -an attempt to get away; there really is no evidence that he was doing -anything more than he had done many times before, going away from home to -seek work elsewhere, with that _wanderlust_ which is also characteristic -of imbeciles. He walked down the railroad track toward Newport, not going -very fast, not taking any precautions to avoid being seen, and when met by -some one whom he knew, he came willingly back to Poland. - -There is the highest probability, perfectly clear to one who understands -imbeciles, that almost from the time the deed was done he had a strong -desire to tell somebody about it, to brag about it; but a certain -instinct, a certain feeling that he ought not to be caught, probably held -him back. But when at last he was taken back to Poland and into the -presence of the Deputy Sheriff; when his clothes had been removed and he -thought his story would get into the papers and he would become notorious; -then he began to talk. In spite of all the warnings and declarations that -he would suffer for it, he talked. At this point it is important to -remember that he is talking now to be heard; he is not confessing in order -to escape punishment, he is talking because he is proud of what he has -done; he wants to boast, wants to be talked about and written up, wants to -be notorious, a great criminal, as is evidenced in the course of the -trial. Remembering this, we _cannot believe all that he says in his -confession_. - -As already stated, in so far as it relates to the basal facts of the -crime, it is undoubtedly true; but when it comes to the finer details of -what he did, how he prepared, and what he claimed was his motive, we -greatly err if we accept everything he said. It is not in the sworn -confession, but it was in evidence that he said he sharpened the knife for -the purpose; the fact that he said he sharpened the knife for the purpose -should have no weight. It is precisely the kind of thing that he would put -in for effect. In fact all that he said after the deed as to arrangements -or plans or details must ever be questioned unless his statements can in -some way be corroborated, for this tendency to elaborate is so strong that -there is no possibility of putting any trust in his words. - -It is worthy of note that whereas the defense introduced many witnesses -who testified to Jean's sayings and actions that showed silliness and -indicated childish intelligence, the prosecution neither rebutted this nor -produced witnesses testifying to anything in his previous conduct that -gave evidence of good judgment or intelligence appropriate to his years, -or that he had any moral development that would be normal for his age.[1] - -The evidences of his pride in the deed are scattered throughout the -testimony. For example, at one time he said, referring to the deed, "You -would not think anybody could do a deed like that so quick, would you?" -When asked how he could get Miss Beecher to go so far up the hill in the -dark with him, he replied with a good deal of pride: "That's easy! I told -her my father was building a house up on the hill and we went up there." - -This leads us to another precaution which must be borne in mind in -considering this case. If Jean is an imbecile, then all our previous -conceptions must be changed, since the conclusions that we naturally draw -are based on the assumption that these facts relate to a normal man. To -illustrate: if Jean were a normal boy of sixteen, the fact that he -inquired as to the time of Lida Beecher's being at the Post Office, that -he talked with her the day before about her promise to go with him to see -his father, the fact that he went off with her that night, that when he -reached his father's house, he lied and said his father lived up over the -hill and led her up there, and then, as he said, struck her with the -monkey wrench, and so on, would all indicate premeditation and planning -and forethought; but the instant we conclude that Jean is an imbecile, -then these facts indicate nothing of the kind. It is not denied that such -may have been the case, or that it is impossible for an imbecile to carry -out such a plan. But it is claimed that there is no strong presumption -that such was the fact, because the result can be accounted for in another -way. Jean being an imbecile, _it is entirely possible that he had no -premeditation of murder at all_, that he not only did not grind that knife -for the purpose, but that he did not have the monkey wrench in his pocket -for the purpose. On the contrary, it is possible that as he walked up the -hill with Lida Beecher he had no more thought of killing her than of -committing suicide. Indeed, it is much more plausible from all we know of -imbeciles, and of boys of his physical development, that there was an -entirely different purpose. That purpose was probably sexual. The writer -is not alone in this thought. Hardly any of the persons with whom he has -talked of this crime has failed to ask the question, "Was there any sexual -offense in the matter?" The absence of any evidence of assault of this -character has been a surprise to many persons; but it again is no surprise -when we remember that Jean is an imbecile; we know also that he is a -masturbator. - -While the writer has no theory to put forth in regard to this crime, yet, -for the sake of clearness and as an illustration of the imbecile type, let -us assume a plausible hypothesis; that is to say, an hypothesis which may -fit the case and is entirely plausible from the standpoint of imbecility. - -Jean was sixteen years old, an age when sexual passion is strong. It is -the middle of the great adolescent period. The new physiological function -of sex is established, great psychic changes have occurred. The boy is -dreaming dreams, the imagination is active. In the normal boy this means -the evolution of ideals, ambitions, moral and religious ideas, attention -to dress and appearance, interest in the opposite sex. In the case of the -morally well-endowed boy, the sex impulses which have strengthened with -the development of the physical potency find their outlet in a kind of -vicarious functioning in the shape of polite and friendly association with -his girl friends, in chivalric attentions and devotions, with more or less -definite plans for future marriage and parenthood. In those with little or -no moral principle we see the impulse leaping over the social conventions -and attaining complete sexual gratification illegally. - -With the imbecile the case is different. The fires of sexual passion may -burn as vigorously as in the better endowed, but he lacks both the power -of control and the courage and ingenuity to overcome the social barriers. -He masturbates. This banks the fires somewhat and requires no courage. If -stimulated by association with girls, he makes crude and imbecilic plans -for conquest. Lacking moral development and ignorant of the more subtle -means of accomplishing his purpose, he may resort to violence in some one -of the many possible ways. Often he is not conscious of what it is that is -driving him and hence does not know where satisfaction lies. Under these -conditions his violence may show no outward signs of being sexual. It may -show every degree from rough horseplay with girls, such as pushing, -pulling, grabbing hat, cloak, or other articles of dress, bantering, -teasing, and other forms of personal contact, up to physical injury, -torture, and even murder. - -Volumes could be written--indeed volumes have been written--showing the -tremendous force of this sex impulse at this age, and the multifarious -ways in which it expresses itself--many of them not showing any of the -signs that are usually considered as indicating a sexual disturbance. That -is to say, such acts are, by the uninitiated, not considered sex acts at -all. One incident of this kind is in evidence. "At one time Jean took two -little girls to a piece of woods and started to take their clothes off, -and when asked why he did it, said he was going to play Indian and that -Indians were naked." Dismissing the possibility that his explanation was -invented to conceal a definitely conscious sexual impulse, let us admit -that he gave his real reason for the act. Still it is clear to all who are -familiar with sex psychology that the subconscious reason for playing -Indian in that way was a sexual one. The procedure also shows a lack of -judgment and appreciation of the proprieties which argues strongly for -mental deficiency--especially as he was then between ten and twelve years -old. (For further items the reader is referred to pp. 113-120 of the -Appendix, where the hypothetical questions have summed up the testimony.) - -The imbecile is a coward. Jean Gianini is an imbecile. Unconsciously -impelled by that strong instinct he seeks the company of Lida Beecher. As -a matter of fact her friend, Miss Clark, testified that Miss Beecher had -been annoyed at his attentions. He contrives an excuse to get her to come -up to his house; when he reaches the house, he makes another excuse to get -her to go farther, not, as generally believed, with the purpose of -murdering her; perhaps only blindly following that instinct of sex and -desiring to be in her company; more probably with the half-conscious -purpose of satisfying his passion if he could find a suitable -opportunity. They walk on; where they were going or how far they would -have walked no one will ever know, but there came a time when for some -reason her suspicions were aroused, or at least her common sense told her -that it was foolish to go farther. Of course we have nothing but Jean's -statement, which may be true or may be false; instead of the simple -statement that she thought she would go back as she saw no light, there -may, for all we know, have been a strong argument; he may have made -improper proposals which she resented; this led to blows with the fatal -result. We have no means of knowing what actually took place at that spot. -But even taking Jean's own account, when she remarked that "she thought -she would not go any further," he saw that his plan was frustrated. Then -he struck her with the monkey wrench which he happened to have in his -pocket--for what purpose no one knows. Having struck her once, it was easy -to strike the second and the third time. It was only natural for an -imbecile to keep at it,--"finish the job" as he expressed it. According to -the evidence he struck her with the knife approximately twenty-four times, -finally hitting the jugular vein in the neck, as a result of which she -probably bled to death. - -As already stated, the writer has no desire to advance this as _the -theory_ of the deed. But if Jean is an imbecile, this theory is fully as -good as that upon which the prosecution worked, and it eliminates entirely -all necessity for elaborate planning. Up to this point we have shown that -the fact of a confession and the character of the confession, both -difficult to explain on the basis that Jean is a normal boy of sixteen, -are entirely clear and perfectly characteristic of a high-grade imbecile. - -Let us look now at his actions immediately after the deed. It is in -evidence that Jean said he took the murdered girl by the foot because -there was no blood there and he did not want to get blood on his hands for -fear they would take his finger prints. Holding her by the foot, he -dragged her out of the road behind some bushes and left her in the snow. -He then went back into the road, making new tracks, which he made no -effort to cover. Nor did he make any effort to cover the old tracks or the -blood spots that were left along in the snow. Neither did he make any -attempt to hide the hat nor the umbrella nor the broken comb which were -left in the road; his care to take her by the foot where there was no -blood is cited as evidence of forethought and judgment; but what shall we -say of his failure to cover up his tracks when it was easy to have done -so! - -Again we must remind the reader that we have nothing but the boy's -testimony as to the fact that he took her by the foot or to explain why he -took her by the foot, but in accepting his testimony as true there is -nothing incompatible with high-grade imbecility. - -The one peculiar thing about Jean is that he has read more than most -imbeciles even of this high grade. But this peculiarity does not save him -from being an imbecile, since there are cases of imbeciles who have read -as much or even more than he. Furthermore, there is plenty of evidence in -the case that Jean's interest in reading has gone along the line, -childlike, of crime. The various experts who examined him told of his -talking about the case of the New York gunmen, of the Pomeroy case, of a -murder in the South, and possibly others. He inquired about Mahoney, the -would-be assassin of Mayor Mitchell. In connection with these crimes his -reading of finger prints had made the same impression upon him that it -would have upon any boy. He remembered what he had read and perhaps acted -upon it, at least talked about it when the opportunity came, and pretended -that he considered it in his action. - -It needs no argument to show that all the rest of his conduct in leaving -things as he did was imbecilic. Even many a high-grade imbecile would have -been much more thoughtful and more careful to cover up the tracks in the -snow. That Jean did not do so is in itself almost an unanswerable argument -that he was an imbecile. - -He then went home, and having washed the knife in the snow, put it in the -pantry drawer. No evidence was produced, so far as the writer knows, to -prove that this was the fact; we do not know whether the knife belonged in -the pantry drawer and he put it back, or whether it belonged in his pocket -and when he was through, he put it back in his pocket or put it somewhere -else. Again, assuming that he told the truth, he certainly ran the risk of -being questioned as to what he had been doing with the knife. He then went -on an errand, and, according to his statement, went down to the railroad, -hoping to jump a freight train. When he found the freight had gone, he -hurried back home. These actions according to the prosecution indicate -careful planning and a desire to get away; realizing the enormity of his -deed he wanted to get out of town. Surely no normal youth of sixteen would -have failed to get out of town even though he had missed the freight -train; but his conduct is perfectly characteristic of an imbecile. One -simple thought having failed to materialize, without planning further he -goes back home, acts as no one but an imbecile could under such -circumstances,--goes to bed, sleeps soundly, gets up the next morning, and -goes to work. Then he makes another effort to get away. But how crude an -effort it is. He walks quietly along the railroad track and, as already -stated, makes no attempt to hide, but passes the trackman and goes into -the station at Newport. When he meets a person from his own town, comes -promptly and quietly back home. Surely an act much more befitting an -imbecile than a normal boy of sixteen! - -The writer was asked upon the stand whether these incidents indicated to -his mind that Jean had intelligence and had planned this thing carefully. -The answer was emphatically, "No." At every turn they indicate an -imbecile. We could cite many instances of imbeciles in our institutions -who have done things of exactly the same character. Our high-grade boys -frequently plan to run away, and often their plans are much more -elaborately conceived and much better carried out than Jean's was. - -In speaking of the confession it may be noted also that not infrequently -our boys when they have made a plan to run away cannot keep it until they -can carry it out, but make a confession. They go to some attendant or -officer and, without any compulsion, actually tell of their plan. In this -way a great many times their purposes are frustrated. When two boys plan -to run away, it is rare indeed if they carry out their scheme; it is -almost certain that one of them will confess to somebody. - -Jean manifested throughout that love of display and notoriety, that -longing to be the center of observation and talk, which is so -characteristic of imbeciles. He asked the alienists who were examining him -if his picture would be in the paper and what the people were saying about -him. According to the testimony of the experts who examined him in jail, -every occasion on which he was examined was regarded by Jean with -pleasure, and his only thought apparently was that he was the center of -observation. Instead of showing some realization of his crime and that he -was exerting himself to make an appearance that would be favorable to his -case, all the evidence was of the opposite character. None of the -witnesses for the prosecution were able to hide the fact that he was -light-hearted and frivolous, and, in a word, "showing off," throughout -these various examinations. - -Throughout the whole time of the writer's examination of him Jean never -for one moment evidenced by word or action any thought as to how his -conduct or his answers to questions would affect his case. As was pointed -out by the defense, quite in keeping with his mentality was his statement -to the experts employed by the prosecution, that he had been told not to -talk, in spite of which he talked incessantly and told everything that -they wanted. The fact of the matter was that his desire to show off so far -overcame any thought of self-preservation that he talked and acted freely -in spite of his lawyer's caution that he should not answer questions. His -conduct in the court room throughout the trial was that of an imbecile, of -a child, who had no realization of the predicament that he was in and no -purpose to make a good appearance. He was in the limelight and he enjoyed -it. Even when the most gruesome details of his deed were being recited, he -evidenced no feeling of horror or sorrow or fear; on the contrary he was -indifferent, and frequently even laughed at the incidents that were -related. He showed no excitement after he got home that evening; he slept -well. His only comment on his prison cell, which to a normal person would -have been loathsome in the extreme, was that it was better than St. -Vincent's, where he had been at school. Even when the experts introduced -by his own counsel were examining him, and when, had he been intelligent, -he should have known that it was to his advantage to make the best -possible appearance, to give them every possible help, yet when his dinner -was brought into his cell, he could think of nothing but eating and -ignored the people who had been sent to help him. As one of the experts -testified, "As between soup and safety, Jean prefers soup." - -These facts and circumstances alone are enough to satisfy any person who -is familiar with the character of the inmates of our institutions for the -feeble-minded that Jean was an imbecile and really belonged in an -institution. But besides these circumstances several witnesses were -introduced who testified to the curious and childish actions of Jean in -his past history. Quite recently, he had tried to catch pigeons by putting -salt on their tails. The prosecuting attorney called attention to the fact -that almost every man remembers going through the same experience, but it -may be safely asserted that this is not done by any normal boy after the -age of twelve. It is a childish act, and indicates a mentality of less -than eleven. - -Peter Black, the village blacksmith, testified that some one sent Jean to -him one day for "strap oil"; that he carried out the joke by slapping -Jean with a strap, but was unable to make him see that the whole thing was -a joke. He teased and bullied the other children in a way that is -characteristic of the high-grade imbecile. Mrs. Anna Newman testified that -he was a restless boy, and that sometimes he would answer her questions -and sometimes not. Every superintendent of an institution for the -feeble-minded would instantly recognize these characteristics as common -among his inmates. The reader will find more of these incidents in the -Appendix, pp. 113-119. - -One of the unique features, so far as court procedure is concerned, was -the introduction into the case, of examinations by means of the -Binet-Simon Measuring Scale of Intelligence. The writer's examination of -Jean consisted largely of the use of these tests, and as a result he -estimated his mentality at approximately ten years of age. It was somewhat -difficult to estimate his mentality with the usual exactness since others -had already used the tests, and it was impossible to say how much Jean had -learned from his previous examinations. As a matter of fact, in some cases -at least, he had not profited by the experiences which should have helped -him greatly had he been a normal boy. For example, one of the tests is to -draw from memory a diagram which he has been allowed to study for ten -seconds. It is clear that if one were given this test two or three times, -at the last trial he should have a pretty good idea of it and be able to -draw it correctly. Although the writer's use of this test was in the last -of the series of those who tested him, yet he did not succeed in drawing -it. This is usually drawn by a child of ten years. When asked to repeat a -certain sentence, he replied, "Oh, I have been asked that a hundred -times." But in spite of the fact that he had heard it several times he -failed to remember it, and yet this sentence is generally remembered by a -child of twelve. - -This is not the place nor is it necessary to discuss the Binet tests -themselves. A word, however, may be said as to why the experts for the -prosecution did not get the same results with the tests that those of the -defense obtained. Also it seems necessary to make a brief explanation, -since the prosecuting attorney failed so markedly to understand the tests -in spite of the fact that he had had the instruction of one of his own -experts who used them. One of the prosecution's experts told the writer -that he did not ask Jean any questions except those in the twelve-year -list, and he "seemed to do those satisfactorily." There are two sources of -error in this. In the first place, Jean's failures were not only in the -twelve-year, but in the eleven and ten. Secondly, if Jean seemed to do the -twelve-year tests correctly, it could only have been because they were -wrongly used. The Binet Scale is not, as the prosecutor insisted on -stating, an "arbitrary system." It is not a set of questions to which -there are definite and fixed answers that are correct, and from which any -deviation is marked a failure. Nor is it a set of questions the answers to -which can be judged as to their correctness by the so-called "common -sense" of the investigator. To illustrate: Jean was asked to give the -definition of the word "charity"; he said, "Charity is giving." The -prosecuting attorney insisted that this was a correct answer, because, as -he said, "Charity _is_ giving." This is mere sophistry. It is not a -question as to whether "charity is giving" is a theoretically correct -answer to the question; the important point is, that such an answer is -_not the kind of answer that is given by twelve-year-old children_. This -has been proved by asking hundreds of twelve-year-old children to define -"charity." Practically 75 per cent of such children include not only the -idea of giving, but the other necessary idea of giving to some one who is -in need. The answer, "Charity is giving," is characteristic not of -twelve-year mentality, but of something under that,--ten or less. So -throughout the system the scale must not be judged by what seem correct or -incorrect answers to the inexperienced adult. The value of an answer can -only be known by knowing the character of answers that are given by -children of the various ages. The point is not always that this answer is -or is not technically correct, but that it is not the kind of answer which -a child of the specified age should give. Therefore, it indicates that he -is not of that age, but below it. This was the error into which the -prosecutor and his alienists had fallen in their use of the tests in the -case of Jean Gianini. - -Jean's school record was the serious stumblingblock to many persons who, -from the facts, notably those already cited, were inclined to think that -possibly he was an imbecile. To many of these persons that record seemed -to indicate a normal boy. The teachers and the principal testified that he -did his work well through the fifth grade and got excellent marks, even -getting 100 per cent in some studies. They lost sight, however, of the -fact that Jean was fourteen or fifteen years of age and in a grade which -he should have been in at eleven, namely, the fifth. - -As a matter of fact, Jean's school experience, when taken as a whole, is -most confirmatory of his imbecile grade. It was proved in court, but not -fully appreciated, that Jean got along well through the fifth grade, but -_when he went into the sixth grade, he failed_. - -Professor Robinson testified that when Jean was transferred to Miss -Beecher's room, his troubles began. The boy did not get along nearly so -well after the change and he dropped back in his studies. His teacher was -obliged to report him a number of times to the principal, who twice -whipped him with a piece of rubber hose. Failing to make his studies under -the new standard, he was made to occupy a special seat apart from the -other pupils, at the instance, if not the actual order, of Miss Beecher. - -The witness further testified that in the last days of his school life -Jean dropped, _to a very marked degree_, in his standing in his studies. -This falling off in Jean's ability was _attributed to his teacher_. As a -matter of fact, the falling off was due to the fact that Jean had _reached -his limit_ in the fifth grade. He attained to that height because of a -good memory, which is characteristic of many imbeciles and is in no way -indicative of normal intelligence. It is also very common for children of -this type to get through the fifth grade and fail in the sixth. They have -mentality enough to carry them to that point, but not farther. - -It is a satisfaction to realize that Jean's failure in school with Miss -Beecher is in no way due to the inefficiency of his unfortunate victim. It -was due simply and solely to the fact that Jean was an imbecile and had -reached his limit. These two facts of a good memory and of good school -work in a few school grades have deceived many people as to the -intelligence of a child. - -It should be remembered that many imbeciles do not show their defect until -at the age of eleven or twelve when they are in the fifth or sixth grade. - -One of the witnesses for the prosecution said that he considered that Jean -was normal and that his apparent backwardness was due to lack of -schooling. This is a common error in all such cases. If asked why a boy -should be backward through lack of schooling when he has been to school -and has had every opportunity to learn, it is common again to fall back -upon the idea that he has not studied. He has been a wild, wayward boy, -playing truant, more or less, and has never applied himself, therefore he -is behind his grade and is dull and backward. Again, while not denying -that there are children of perfectly normal intelligence who seem to be -misfits in school or who seem more interested in other things than in -their school work, or children who will not study because of dislike for -the teacher or for various other reasons, yet the reader must be reminded -that a study of the high-grade defective shows that he is continually -being confused with these very exceptional children who have the ability -but who do not study. In other words, when a boy does not get along in -school, even though it is evident that he does not study, the strong -probability is that he does not study because he has not mind enough to -appreciate the work, to understand it, hence to have that highest of all -incentives to work, success. The fact that the majority of boys do get -their lessons and get along well in school should be a strong argument -that there is something seriously wrong with those that do not succeed. - -It may further be asked: How does the fact that the boy has not succeeded -in school affect his examination by the Binet test? Experience has shown -that the test is affected but slightly. In other words, the mind develops -regardless of school and school training. As long as we ask only such -questions as call for a general intelligence and do not call for specific -school instruction we are reasonably independent of such instruction. As a -matter of fact, nearly all of the questions of the Binet Scale are free -from this objection. Some of them, it is true, are a little helped if the -child has been to school and correspondingly hard if the child has not -been to school; but, on the whole, they do not affect the final rating to -any serious extent. This has been proven repeatedly by normal children -who, on account of sickness or for other reasons, have not been to school, -and yet can pass the Binet tests for their own age. - -We must now turn to the question of cause. If we can account for Jean -Gianini's imbecility, it will be much easier to believe in it. Much has -been written on the subject of the causes of feeble-mindedness. Certain -fundamental principles have been agreed upon. It is now known that at -least 66 per cent of feeble-mindedness is hereditary; that is to say, the -individual is feeble-minded because he comes from stock in which -feeble-mindedness exists. There is another group in which there are -practically no other feeble-minded persons in the family or among the -ancestors so far as can be discovered, but there is, on the other hand, a -great deal of bad physical history; there may be epilepsy, alcoholism, -insanity, or other serious physical disturbances. Finally, we have a group -in which there is history of some accident, either to the child at the -time of birth or after birth, or to the mother previous to the birth of -the child. - -In Jean's case we have no history of accident or injury to the child -himself. The pedigree or family tree has not been worked up and we do not -know what there may be. It was in evidence that the grandfather was born -on the south side of the Alps; and there was some slight attempt to imply, -since cretinism is very common in that region, that possibly there was -some cretinous condition in the family. All this is not impossible; and if -it existed in the grandfather or even in the great-grandfather, such a -condition might reappear in the grandson in the form of imbecility; yet in -view of our present knowledge, or rather our lack of knowledge on this -subject, this line of argument is too vague to enable us to draw any -conclusions. - -The fact that the mother of Jean was insane and alcoholic justly had great -weight. Before her first child was born she broke down mentally and was -probably never "right" after that time. The first child lived to the age -of seven and from the description was clearly an idiot. The second child -is entirely normal. Jean, who is the third child, did not talk until he -was five years old. - -Our general studies have not yet gone far enough, and certainly our study -of this particular family is far from sufficient, to enable us to decide -whether this is a matter of heredity or whether we shall say that Jean's -condition as well as that of the first child is traceable directly to the -mother's insanity or to her alcoholism. - -For the present purpose, of course, it does not matter. We see in these -facts, whether we regard them as causes or merely as symptoms of a deeper -lying cause, sufficient reason for Jean's being an imbecile. There is -every reason to believe that Jean Gianini is an imbecile of high grade. -The next important question that arises is a legal one of whether, being -an imbecile of high grade, he knew the nature and quality of his act and -that it was wrong. - -Before discussing this let us consider two other cases--after which we may -discuss the general proposition of whether high-grade imbeciles know right -and wrong. - - - - -CHAPTER II - -THE CASE OF ROLAND PENNINGTON - - -On November 7th, 1913, Lewis S. Pinkerton, the manager of a certain farm -in Delaware County, Pennsylvania, suddenly disappeared. As it seemed -probable that he was the victim of foul play the detectives set to work -and in due time arrested George March, the dairyman on the farm, and -Roland Pennington, a farm laborer. Suspicion was directed to these two men -largely through the testimony of the woman who was supposed to be the -so-called common-law wife of March. At his trial it was shown that he had -another wife living, and consequently she did not even have that as a -claim upon him. This woman had heard groanings from the direction of the -barn, and later when March came into the house, had noticed blood on the -towel and on his clothing. - -The body of the lost man could not be found. After being taken to prison -March accused Pennington of the crime, admitting that after the deed was -done he assisted young Pennington in disposing of the body, because, as -he said, he was afraid that he himself would be accused of the crime. -Having made this admission, he took the officers to a wood some miles away -where the body had been buried in a rude, shallow grave. - -[Illustration: ROLAND PENNINGTON. - -(By permission of "Alienist and Neurologist.")] - -When Pennington was confronted with March's accusation, he too made a -confession, which, however, implicated March quite as much as himself. - -March was tried in Delaware County, and convicted of murder in the first -degree. The defense was, in accordance with the above statement, "that he -had nothing to do with the crime itself, merely assisted in disposing of -the body." - -Pennington's trial occurred in June, 1914, when he also was convicted of -murder in the first degree. The defense in this case was imbecility and -irresponsibility. Although the jury did not accept this view, the case is -a most interesting one from the standpoint of criminal imbecility. - -The story of the crime is probably best given in Pennington's own words, -since his confession has all the marks of truthfulness and was evidently -accepted by the jury in the March case. It was almost exclusively on the -strength of this testimony that March was convicted. - - _Statement of Roland Pennington as to the Pinkerton Homicide_ - - I, Roland Pennington, being duly sworn according to law depose as - follows:-- - - I went to work at the Wilson farm about October 7th; I boarded with - George March and his wife; George worked on the farm too; he was the - butter maker; from the time I went to the farm, George was always kind - and good to me; George had charge over me when Lew was not there; - George would loan me money when I wanted any, and several times took - me to Gradyville with him, when he would take me over to the hotel and - treat me to a drink; about a week or two after I went to the farm, - George had a fight with his wife at the dinner table; George told her - she was too intimate with Lew and a painter, who was working there; - she talked back to George and George threw things at her; after dinner - George told me that what he said to his wife was true; that was the - first I knew about George's trouble with his wife; after that George - talked to me about his wife all the time; once I told George I would - like to go West; one day George said he was going to take the painter - to law, and get some money from him, and if I would stick by him, he - would divide up with me and take me West. Afterwards he talked more - about Lew and his wife; one day he said if it didn't stop, he would - break up, sell the furniture, and go West, and that if I would save my - money to help out, he would take me with him; one day George's wife - was away all day, Lew was away that day too; they came home about the - same time; George told me afterwards that he accused his wife of being - with Lew; that night Lew came in the cow stable while George and I - were milking; they had some words, but I could not hear what they - said; George looked pretty mad and Lew was excited; George told me - afterwards that he had accused Lew of being with his wife and Lew - denied it; he also said it was as much as he could do to keep from - getting up and smashing Lew in the face. On several different times - when we were working together, George said that if Lew didn't stop - going with his wife, he would put a stop to it; George had charge over - me when Lew was not at the farm, and one time when I asked Lew for - some money to buy shoes, he would only give me two dollars, and gave - five dollars to George to buy shoes for me; after the first of - November, George said, "Lew hasn't paid me. I wonder why"; he said - this on two or three different occasions; on Thursday, November 6th, - George came to me and said, "Well, Rol, Lew paid me to-day." I said, - "Did he?" and he says, "Yes, he had a big bunch of money on him. Did - you ever see a thousand dollar bill?" I said, "No, I never saw one." - He says, "Well, neither did I. What figures ought a thousand dollar - bill have on it?" I says, "I don't know. A thousand is one and three - noughts after it." He says, "Well, I asked the Mrs. about it, and if - that's right he had one of them on him." This took place Thursday - afternoon about half past three in the stable. That night about - quarter after five while George and I were separating the milk down in - the milk house, George said, "How would you like to have that bunch of - money Lew's got on him?" I don't remember saying anything to that. - There was nothing more said about it that day. The next morning, - George and I were separating the milk down at the milk house before - breakfast, and George said, "Well, Lew will have that bunch of money - on him to-day. Let's get it." I said, "What do you mean?" He says, - "Why, do away with him." I says, "What? Kill him?" He says, "Yes." I - says, "No. I won't kill him." He says, "Well, you start it and I'll - finish it. I got a blackjack up at the house, I used one time myself - to knock a man in the head with out West, to get seventy-five dollars - from him to come East on." He said he was in a bank in the West and - saw this man get the money--the seventy-five dollars--and when the man - came out, he managed to get a ride with him, and while they were going - along the road, he hit the man in the head and knocked him out, and - went on his way. I didn't say anything. - - That afternoon, about three o'clock, George came to me in the milk - house, while we were getting the milk buckets and cans ready to take - to the barn, and handed me the blackjack and said, "Here's the - blackjack; you can do it with that." I put it in my pocket. We then - went to the barn. From then up to about five o'clock, while we were - working about the barn, George kept saying to me, "Don't lose your - nerve. The first chance you get after the workmen are gone, get him." - Several times he said, "Don't miss your chance--Don't forget." Lew was - away that afternoon. He came home while George and I were milking. - - After we finished milking, we took the milk down to the milk house; - then I went back to the barn to feed the horses. While I was feeding - them, George came up from the milk house to feed the calf. I generally - fed the calf. George seldom did it. In feeding the horse, I had to - carry hay around from the old horse stable to the new one. In going - around for some hay, I met George right outside the old horse stable - door. He said, "Lew will be around here pretty soon. You can get him - then." After I had finished feeding the horses, I took the fork over - to the old stable. As I was doing so, Lew went in the new stable. I - met George at the stable door when I came out from putting the fork - away. George said, "He's in the new horse stable; go get him." I went - in and told Lew there was a nail in the last stall next to the box - stall and that he had better look at it. He went up to look at it, and - while looking at the place I told him, I struck him on the head with - the blackjack. He turned part way around, threw up his arm, and said, - "Hey, what are you doing?" I struck at him some more; he rushed at me - and we clinched. This happened in the stall alongside a horse. After - we clinched we got out into the passageway, back of the horses. Lew - soon got the blackjack away from me. As we came out into the - passageway, I think I saw George near the door. He afterwards told me - he heard when I hit Lew first and that he came in, and that while Lew - and I were wrestling, Lew made a grab for him and knocked his glasses - off. Lew and I tussled quite a while up and down the passage back of - the horses; Lew was hollering all the time; I think we went down - once, got up again, and went down again, with Lew on top of me; then I - got on top of him. At about that time he called for George; George - must have gone out in the meantime, for when Lew called for him, I - remember the door being opened and George coming in. He came up and - asked Lew what was the matter, whether the horses kicked him. Lew - said, "Yes, yes, help me." George stooped over and whispered to me, - "Where is the blackjack?" I told him Lew had it. Lew then said, - "George, you are no kind of a man." Whether George got the blackjack - or not I don't know. He then went around by Lew's head and started - kicking. I had my hand on Lew's head and the first kick George made he - kicked my knuckles. I then left go of Lew and got up. While getting up - George was continuing to kick him in the head. After continuing to - kick him in the head after I got up, George went around and kicked and - stamped Lew in the side. Then he stopped--and said as though to - himself--"Which side is his heart on?" Then he started to kick him on - the other side. After a while he stopped. I don't remember whether he - said anything to me or not. Anyhow, George took him by the head and - shoulders and I by the feet and we carried him into the box stall. - Then George went up to the house for a lantern. I waited for him at - the stable door. He came down with the lantern and went in the box - stall, felt Lew's heart, and then stood up and stamped him some more; - then he searched him. - - In tussling with Lew I had gotten blood on my coat, pants, and shirt. - After George searched Lew, we left the stable, and I asked George - where the overalls were that the whitewasher had worn. George said he - thought they were up at the wagon house. We went there, but could not - find them. George did find an old pair of Lew's pants and a shirt. He - gave them to me and I put them on. While I was putting them on George - went in the house. I went in later, went to my room, put on another - coat, and went down to supper. George finished his supper first; got - up and told the Mrs. he was going to Gradyville after some sulphur for - the pigs. He then asked me if I wanted to go along with him. I said I - would. Then we went to the barn; George got two bags in the old horse - stable and put one inside the other. Then we went in the new horse - stable where Lew was. George set the lantern down and told me to take - hold of his arms and lift his head and shoulders. I did so, and George - slipped the two bags over Lew's head and body. Then George tied a - cloth around the neck overtop the bags. Then he told me to hitch the - horse Dick to the milk wagon. I did so. Then I returned to the new - horse stable. George then said we will carry him up to the wagon. I - had left it in front of the wagon house at the barn. George said, "We - had better take him up through the barn." George took him by the head - and shoulders and I by the feet. We carried him up through the barn. - When we got to the wagon, George got some bags and put them on the - floor of the wagon. Then we put the body in. Then we got a blanket and - threw it over the body. Then George got two shovels and a grubbing - hoe, and put them in the wagon. Then we drove away. - - After we got started George said we would bury the body in - Lauterback's woods. When we reached the road that he said led up to - that woods, he said it was too near home and kept on driving. After - driving for a long time we came to a pair of bars. He pulled up there - and said, "That wood over there looks pretty good." Then he drove on a - little piece further. Then he said we better go back to that woods. - Then we turned around and went back to the bars. George got out there, - handed me the lines, and he took down the bars. I drove in, he put in - the bars, and led the way, and I drove on across a field, till we came - to another pair of bars. He took them out and then led the way across - the fields to the woods. When we got there, George picked out a place; - said he thought it would be an all right place. Then we dug the grave. - Then we went back to the wagon, got the body, put it in the grave, and - covered it up. Then we returned home. - - That night George suggested that we clean up the marks in the morning. - The next morning we got up early and cleaned up the marks on the floor - and washed the walls. George said to make sure there would be no marks - on the wall it would be better to whitewash it. He said he would do - that and for me to go to other work, so I started to haul stone. - George also said to take my clothes to the milk house and burn them. I - did take them there on Saturday morning. George was there and I gave - them to him. He said he would burn them. On Saturday, George came to - me and gave me seven dollars and a watch and a ring which he got off - of Lew when he searched him. He told me he had only gotten fourteen - dollars and five cents and to pawn the watch and chuck the ring. I - threw the ring away and took the watch to Philadelphia and pawned it - at Carver Reeds on Market Street near Fifteenth Street for four - dollars. When I saw George the next morning, Sunday, I gave him the - pawn ticket and said I would give him two dollars when I got the - change. He said never mind that. - - (_Signed_) ROLAND PENNINGTON. - -Here again is a crime so abhorrent in its details that it is unbelievable. -There is no excuse for it, no adequate motive, no justification whatever -so far as the boy, Pennington, is concerned. - -For March, it is easy to believe, as the jury evidently did believe, that -he was actuated by what might be called an insane jealousy of the woman -with whom he was living. We are familiar with the lengths to which such -jealousy can lead a man. But why Pennington allowed himself to be made the -dupe of this jealous man cannot be explained; it is absolutely -incomprehensible on any theory that assumes that he is a normal boy of -nineteen years. - -It was in accordance with this feeling that some one raised the inquiry as -to whether the boy was possibly a mental defective. This question having -arisen, the writer was asked to examine him and give an opinion as to -whether or not he was normal. - -Accordingly the examination was made in the Delaware County jail in Media; -this showed that the boy had a mentality of about eleven years according -to the Binet Scale. He could not do any of the tests for age twelve and -failed on some of those in ten and eleven. This indicated an intelligence -scarcely up to eleven. - -Further examination by other methods, the circumstances of his life, his -appearance, and his school history, all tended to corroborate this view. -The boy was nineteen years old when he committed the crime; two years -before he had left Westtown Boarding School, after an attendance there of -two and a half years. When he entered the school, the teachers graded him -as of a capacity equivalent to the fifth grade in public school; he, -therefore, began sixth-grade work. He never got out of that grade. For two -and a half years he studied and tried to pass. He was absolutely unable to -do sixth-grade work. Sixth-grade work, it will be remembered, is about the -grade for a twelve-year-old normal boy; thus we have a striking agreement -between his school experience and his Binet tests. By the Binet test he is -eleven; in school he cannot do twelve-year work! - -Asked what he had done since he left the school, he said he had done "a -good many things." Asked where he had worked, he said he did not remember -all of the places. As a matter of fact, he had had exactly the career that -the high-grade imbecile usually has out in the world. He either gets -discharged from his positions because of incompetency or he leaves -because of his nomadic tendencies. The imbecile rarely stays long in a -place if free to move. - -In addition to the above, the reader will see many evidences of -childishness in his confession. He talks like a child; he alludes to -George March as a child would; he says, "He has charge over me"--"He was -kind and good to me; he used to take me to Gradyville," etc. Even -Pinkerton gave the money to March to buy shoes for Pennington. Again -Pennington says, "George said he was going West and he would _take me with -him_." One cannot imagine a nineteen-year-old youth, or even a -fifteen-year-old, talking in this way. By the time a boy reaches the -latter age, he is in his own mind the equal of anybody. He would not say, -"George took me." He would say, "We went." He would say, "I got along all -right with George," or some other expression whereby he would assert his -own manhood and not take the role of a child. - -While in jail he showed no realization of the seriousness of his -situation; showed no remorse for his deed; took no interest in his case. -For example, he was told by his lawyer not to allow himself to be examined -by any doctors without sending for his counsel; in spite of this warning -he allowed himself to be examined by four physicians at one time and by -two at another, and never mentioned the matter to his counsel even after -it was done. - -In the confession made to the prosecuting attorney one notices, as in the -one we have quoted, that he appears simple and innocent; answers the -questions often in terms of the questioner instead of by a simple "Yes" or -"No," which would be natural for a normal young man; he is uncertain and -hesitates; he says, "I think," in a great many cases where it was strongly -to his advantage to speak positively. - -After the deed was committed he _took no care to remove the evidence_; -everything that was done in that connection was done at the _suggestion of -George March_. All the way through this part of the confession it -reads--"He led, I followed," "I did as he told me." - -Having satisfied ourselves that Roland Pennington is a high-grade -imbecile, the next question is, even as an imbecile, why did he do this -deed. - -In the case of Jean Gianini we found that it was for revenge of a fancied -wrong, that is, according to his own statement. If not that, it may have -been a sexual matter. In this case neither motive applies, and we have -only two possible theories. The theory of the state was that it was for -robbery. Indeed, Roland himself seems to admit that this was the motive. -But this again is only a part of his imbecility. He was given a leading -question by the prosecution and was weak-minded enough to say, "Yes." - -As a matter of fact one finds it very hard to get any evidence from the -whole situation that he really was lead by cupidity. There is no evidence -of any elaborate plans in regard to money, either as to getting it or as -to what was to be done with it when he got it. March had talked about a -thousand-dollar bill, and asked Pennington how he would like to have "that -bunch of money." Pennington says he does not remember saying anything in -reply. This does not look as though it aroused any great emotion in him. -Later March said--referring to the money Pinkerton was supposed to have -"on him"--"Let's get it." Pennington asks, "What do you mean?" He is -clearly thinking less of the money than of what he begins to dimly -understand they are to do. When he understands that they are to kill him, -he says distinctly, "No. I won't kill him." Never again is the subject of -money mentioned. In all March's urging him to do the deed he never says, -"Remember the money," or alludes to money in any way. - -Perhaps we are begging the question. If Pennington were really intelligent -and shrewd, he would not say anything in his confession that would supply -a motive for the crime. Not only does the whole confession give ample -evidence that he was not sufficiently intelligent to protect himself in -this way, but the conclusion of the matter shows clearly that it was of -practically no importance to him. After the deed, March gave him seven -dollars! He said, "I thought there was more." That is all. He did not -insist or complain. He accepted it calmly and without protest. He even -proposed to give March half of the four dollars received for the pawned -watch. Imagine a nineteen-year-old boy with full consciousness and -responsibility killing a man for his money and being so complacent over -receiving seven dollars! The theory is not convincing. Even the -prosecution, whose whole case depended upon showing a motive, never -pretended that Pennington made any stir because the amount was so small. - -There is not the slightest evidence, external or internal, that the idea -of getting money played any part in Pennington's share of the crime. - -Why then did he consent to begin the matter which George was to finish? It -is clearly a case of suggestion. A suggestion, it is true, which never -would have worked with a normal nineteen-year-old youth. With this -weak-minded boy it is easily understandable. As we study the confession we -discover that George March, either consciously or more likely -unconsciously, used suggestion most adroitly. Undoubtedly he had learned, -through association with Roland for six weeks, that this boy was very -simple-minded and easily led. Having reasons of his own for desiring to -get rid of Lewis Pinkerton, he first suggests the matter of money, hoping -to appeal to Roland's cupidity. It will be noticed that he nowhere uses -the word "murder" or "kill"; even the mild expression, "Make away with -him," he uses only once. When Roland at one time almost takes fright and -asks, "Do you mean kill him?" and he admits that he does and Roland says -he won't do that, the older man lulls him to sleep by the suggestion, -"Well, you begin and I'll finish it." - -March tells a story about a blackjack; then he brings the blackjack and -gives it to Roland, saying nothing except, "You can do it with that." -Roland is so weak-minded that he takes the blackjack and puts it in his -pocket. When the right time comes and the opportunity is near at hand, -March stations himself at a convenient place where he will see Roland as -he goes back and forth at his work, and for some little time he -constantly coaxes and dogs him, pouring into his ears a stream of -suggestion such as, "You will have a chance pretty soon"; "Don't forget"; -"Don't lose your nerve"; "Now you can get him"; "Now nail him." - -It is an interesting little point, possibly only a coincidence but -nevertheless a perfectly natural imbecilic association, that the one -seemingly original thing that the boy did in connection with the matter -was to invent a little trick in regard to the nail in the stall. It is -quite likely that even this was suggested by George's previous expression, -"Nail him." - -Even the blow itself does not seem to have been given with normal vigor; -having every advantage,--the victim bending over, Roland being behind him -and with a blackjack which is capable of thoroughly stunning, if not -killing at one blow,--he apparently did not strike with force enough to -even produce unconsciousness. His victim was able to talk and to struggle -for some minutes, until March, the companion in crime, came up and, as he -expressed it, "finished him." - -As to motive, then, we conclude that the defendant had none. He was acting -upon the suggestion of George March. Even the poor mind that he had, which -under other circumstances might possibly have rebelled at such a -suggestion, was lulled to sleep by this man of better intelligence for -whom he had been working and who he had learned to think was "good and -kind" and on whose judgment he thought he could rely. - -Since the Pennington case is typical of the way weak minds work under -control of normal minds, it will be worth while to analyze somewhat more -fully this idea of _suggestion_. - -How does suggestion work? Why does it indicate a weak mind and how does it -affect our ideas of responsibility? Let us see. - -We have already seen that Roland Pennington was under the control of -another mind; we do not mean that he was actually hypnotized--a -nonsensical plea that is sometimes brought into court cases. Roland -Pennington was a victim of suggestion. An illustration will make this -clear. - -If I were to take a city man to a third-rail electric road and ask him to -stand on one rail and put his hand on the third rail, he would resist the -suggestion, because there would immediately come into his mind visions of -himself burned to a crisp or instantly killed. But suppose I take a man -who has come from the rural districts and who never heard of third rails. -He has lived, let us assume, in my house and worked under my direction a -month and has come to regard me as a friend. We have worked together and -talked together; I take him out and say, "Touch that third rail." Will he -resist the suggestion? Not at all. Why not? What is the difference between -the two men? The first has ideas about third rails. His past experience -has filled his mind and memory with thoughts and with knowledge which -instantly come to consciousness when I suggest touching the third rail. -The other man has no such experience. He has known me long enough to have -some faith in me. In fact from the very nature of things he is in the -habit of doing what I tell him. I tell him to do this, and he does it. - -Coming back to the first case, one perhaps can conceive that the city man -and I might come upon the third rail under such conditions that he was not -thinking of it. Instead of saying "third rail" to him I might say, "My! -that rail is hot" and he would almost instinctively put his hand upon it -to verify my remark. If he survived and could talk about it afterwards, he -would say, "Of course I ought to have known and did know that was the -third rail, but I did not think." That is the way suggestion works. - -To illustrate still further, we may speak of hypnotism itself. All of the -wonders that are produced under hypnosis are to be explained in exactly -this way. The subject is so nearly asleep that nothing gets into his -consciousness except the ideas suggested by the operator. Accordingly he -is utterly unable to resist any suggestion that is given him. - -Now coming nearer to our problem, children are naturally very suggestible -because they have not the experiences, the ideas. One may easily believe -that an eleven-year-old child could be induced to touch the third rail. -Furthermore, authority plays an enormous role with children. I might take -my ten-year-old boy out for a walk. He knows all about third rails and -would not touch one. But if I were to say to him, "Son, you can put your -hand on this, because there is no current on," he would probably obey -without question, because of his implicit trust in me. That confidence in -a superior, either in age, intelligence, or position, is one of the -characteristics of immature minds and one of the conditions that makes us -all suggestible. In the hypnotic terminology again, this is the being _en -rapport_. The hypnotized subject obeys the operator and no one else -because it is the operator with whom he is _en rapport_--in other words, -in whom he has confidence. - -Now let us come to the situation. It is perfectly clear that Roland -Pennington was under strong suggestion and that any vague concepts that he -might have had of the wrongfulness of murder or of killing a man were very -carefully allayed by the man who had the influence over him and who had -the motive for this homicide. - -The whole statement shows that Roland recognized George as a superior, as -one in authority over him and at the same time as a friend, as one on -whose word he could absolutely rely. It is a perfect picture of the child -following the man. - - - - -CHAPTER III - -THE CASE OF FRED TRONSON - - -Our third case is that of Fred Tronson of Portland, Oregon. What we know -of the history of Tronson is brief, but amply sufficient to prove that he -belongs to the group that we are considering. He had lived in Portland for -two years and in that time had held seven different positions as elevator -man. He was twenty-four years of age, when, in August, 1914, he met and -became infatuated with Emma Ulrich, a stenographer who worked in the same -establishment where he ran the elevator. He asked her to marry him, but -she refused. Later he was arrested for threatening her and was ordered to -leave town and not to annoy her any further. On November 16th of the same -year he waited for her outside of her home with two loaded revolvers. When -she stepped off the street car, he again asked her to marry him. She -became frightened and ran toward her home. He followed her, shooting as he -went. He followed her into her own house and there shot her down. On -Wednesday, December 9th, 1914, Tronson was tried and convicted of murder -in the second degree. Oregon having abolished the death penalty on -November 3d, only a second-degree verdict, which carries with it -imprisonment for life, could be returned. The trial was very brief, and -the jury returned within fifteen minutes. There was practically no -defense, except the claim on the part of Tronson's attorney that the man -was weak-minded and, therefore, in strict justice, should be placed in -custody, not in the penitentiary but in some other institution more suited -to his condition. He had been examined by two alienists and pronounced -sane, but of low mentality. He was also examined by a psychologist who -used a modification of the Binet tests, which showed him to have a -mentality of nine years. - -[Illustration: FRED TRONSON.] - -This rating obtained by the psychologist was confirmed in many ways. His -mother said he had never been able to hold a job more than two or three -months. He left school shortly before he was twenty, but we have no record -of what success he had or what grade he was in. His conduct at the trial -and before was that of an imbecile. When he was examined in the police -station, he seemed to be in constant fear that some one outside would do -him harm. When he had displayed uneasiness about an open window, the -detectives told how they closed it and sat between him and the window to -assure him that no one in the street would harm him. During the impaneling -of the jury and the taking of the testimony, Tronson sat slouching in his -chair, with sunken eyes, glaring at each witness, and with his mouth -hanging half open as though he barely understood what was going on. The -deep lines in his face and the dark circles beneath his eyes gave a vision -of sleepless nights and haunting memories. Like the other two imbeciles -whom we have discussed, he made a confession. The following is his -statement:-- - -Statement of Fred Tronson taken in the office of Detective Captain Baty on -Thursday, November 19th, 1914, in the presence of Deputy District -Attorneys John A. Collier and Thomas G. Ryan, Detectives Pat Moloney and -Tom Swennes. - -_Question._ What is your name? - -_Answer._ Fred Tronson. - -_Q._ How old are you? - -_A._ Twenty-four. - -_Q._ How long have you lived in Portland? - -_A._ One year and seven months. - -_Q._ What have you been doing? - -_A._ Running elevators. - -_Q._ Now, Fred, I am a deputy district attorney representing this state, -Mr. Ryan here is a deputy district attorney, and these other men are -officials and officers. You have been charged with a crime, and of course -you have your rights. You have a right to make a statement here to me if -you want to tell us what the facts are. You are not forced to make a -statement, but you may do so if you want to. There isn't any use of your -getting nervous, and there is nobody going to bother you here. You needn't -be afraid. You cannot be forced or compelled to make a statement, and any -statement you make must be voluntary. Do you want to make any statement -about this shooting affair? - -_A._ Yes. - -_Q._ You may go ahead and just tell me what happened, commencing at the -first of it, and tell me how it came about. - -_A._ Well, that time I accosted the girl in the street, it was last August -the 3d, I asked her if she would have me and she didn't give me any -satisfactory answer. She said she would wait outside at noon. In the -meantime she had me arrested. Of course I threatened to shoot myself if -she wouldn't have me. She says, "No, don't do that; I would rather have -you leave town," she says like that. She says, "I will write to you." She -says, "You are going to be a man, aren't you?" I said, "Yes, if I can't -have you." She said she would meet me out there at twelve, and before that -she phoned the police or the other girl up there, I don't know. - -_Q._ That was last August? - -_A._ Yes. - -_Q._ You were arrested on that charge? - -_A._ Yes. - -_Q._ What did they do with you? - -_A._ Well, they kept me here about a week and then let me go with the -understanding that I go out of town. Judge Stevenson says go out in the -harvest fields and take a good sweat and when you come back, look for some -other job and you will be all right. Come back in the fall. So I went out -next Monday and stayed a couple of days and couldn't get anything and came -back and waited about a week and stayed another week and then went to Hood -River, and picked apples and stayed up there about ten days and then came -back and I couldn't get anything. I was hoping the girl would kind of come -to me after awhile and I found after a few months that she wasn't, so I -thought I would get rid of her so somebody else wouldn't have her. - -_Q._ When did you make up your mind to do that? - -_A._ Last week. - -_Q._ After you made up your mind to do that, what did you do? - -_A._ I went off and got the guns. - -_Q._ Where did you get the guns? - -_A._ At Vancouver. - -_Q._ What kind of a gun was it? - -_A._ You got it there. That's the one I shot her with (pointing to a gun -on Captain Baty's desk just opposite Mr. Ryan), but I had another one, -too. - -(This gun, marked #5308 on gun itself and marked "Exhibit A--Ryan," was -thereupon handed to the prisoner.) - -_Q._ This gun marked "Exhibit A," here, is that the gun you shot her with? - -_A._ Yes. - -_Q._ Where did you get that gun? - -_A._ Vancouver. - -_Q._ For what purpose did you get it? What did you intend to do with it? - -_A._ I intended to shoot her. I intended to hold on to it, but in my -excitement I dropped it in the weeds there, I guess. - -_Q._ Where did you get the gun at Vancouver? Do you know the name of the -store? - -_A._ No, it was a hardware store. - -_Q._ How long before you did the shooting did you get this gun? - -_A._ About three hours, something like that. - -_Q._ Do I understand that you went to Vancouver and got this gun and then -came over to Portland, and did the shooting? - -_A._ Yes. - -_Q._ Where did you get this other gun? (Gun numbered 2506 was thereupon -marked "Exhibit B" by Mr. Ryan, and handed to Mr. Tronson.) - -_A._ This second-hand gun? - -_Q._ At a second-hand store? - -_A._ Yes. - -_Q._ Did you buy that at the same time you bought the other gun? - -_A._ Yes. - -_Q._ Where did you buy this gun? - -_A._ Well, I didn't want to buy them both at the same place. I thought -that they might get suspicious. I didn't want to get two five-dollar guns. -I bought that for three. - -_Q._ What did you have in mind when you bought this? - -_A._ Well, if one didn't work, the other would. - -_Q._ Do I understand you to say that you bought this to kill her with? - -_A._ Yes. - -_Q._ If the new gun didn't work, that would? - -_A._ Yes. - -_Q._ When you came over from Vancouver, did you have the guns loaded? - -_A._ No. - -_Q._ When did you first load the guns and prepare to do the shooting? - -_A._ Down there along the river some place. - -_Q._ Out in South Portland? - -_A._ Yes. - -_Q._ Did you load both of them? - -_A._ Yes. - -_Q._ You knew where Miss Ulrich lived, did you? - -_A._ Yes. - -_Q._ Had you ever visited at the house? - -_A._ No. - -_Q._ Had you ever kept company with her? - -_A._ Yes, I walked around the streets with her once in awhile. - -_Q._ You never went to her home? - -_A._ No. - -_Q._ Did you know her folks? - -_A._ No. - -_Q._ Where did you stay out there until she came along? - -_A._ I didn't get out there any too soon. I didn't stand round two -minutes. - -_Q._ What time did you leave town here to go out to the scene of the -shooting? - -_A._ I came right from Vancouver and went through. - -_Q._ What time did you get over to Portland from Vancouver? - -_A._ About five o'clock. - -_Q._ After you got over to Portland what car did you take then? - -_A._ I walked out. - -_Q._ Which way did you go out? - -_A._ First Street. - -_Q._ How far out First Street did you go? - -_A._ Until I struck some of those other streets down there, Front Street I -guess, Water or Corbett. - -_Q._ How long did you wait out there before you saw Miss Ulrich? - -_A._ I didn't wait at all, I just walked around the block and she got off -the car. - -_Q._ Did you see her get off the car? - -_A._ Yes. - -_Q._ What time was it when she got off the car? - -_A._ A little before six. - -_Q._ What car did she get off? - -_A._ North and South Portland. - -_Q._ Did you speak to her when she got off? - -_A._ Yes, I said, "Wait a minute." I wanted to talk to her, and asked her -for the last time; she started running, hollering. - -_Q._ Just what did you say to her? - -_A._ That's all I said to her. I wanted to talk to her and she started -running and hollered. - -_Q._ Did you have the gun in your hand at that time? - -_A._ No, in my pocket. - -_Q._ All loaded and ready for action? - -_A._ Yes. - -_Q._ How far was her house from the car? - -_A._ Not quite half a block. - -_Q._ Was there any one else got off the car at that place? - -_A._ No. - -_Q._ What did you do next? - -_A._ I followed her around the house. - -_Q._ Did she run around the house? - -_A._ Yes. - -_Q._ Did you run after her? - -_A._ Yes. - -_Q._ When did you commence shooting? - -_A._ Just before she went in the door. - -_Q._ What door did she go in? - -_A._ The back door. - -_Q._ How many shots did you fire? - -_A._ One before she went in. - -_Q._ How many after that? - -_A._ Four; I think there are only five in the gun. - -_Q._ Did you know that the last bullet struck her? - -_A._ I knew one must because she fell down after I began firing the other -bullets. She was in the bathroom; then she began to crunch down; then she -fell on her face like a board and struck her head on the floor. I thought -she must be dead or unconscious or something like that. I left then. I -took it for granted she was dead. - -_Q._ You didn't leave or didn't stop shooting until you thought she was -dead? - -_A._ No. - -_Q._ You went out there for the purpose of killing her if she didn't -accede to your wishes? - -_A._ Yes, I am sorry I had to do it. - -_Q._ Why did you feel that you had to do it? - -_A._ I didn't want anybody else to have her if I couldn't. I thought I -should have her. She told me once she liked me, and I didn't see any -reason for turning me down. I acted like a gentleman. I had given her one -present already. - -_Q._ After you thought she was dead and that you had completed your job, -where did you go? - -_A._ I ran down on Hamilton Street. - -_Q._ This gun that you used to do the shooting, was this gun (marked -"Exhibit A") the new gun numbered 5308 (handing it to him for inspection)? - -_A._ Yes. - -_Q._ Where did you go? - -_A._ I ran out of the way kind of on a trot down into Hawthorne Bridge and -then North on Union Avenue and caught the Vancouver car and went to -Vancouver. - -_Q._ Did you take both of these guns with you? - -_A._ No, just one. I dropped the other one. - -_Q._ Which one did you drop? - -_A._ The new gun. - -_Q._ That is, you dropped that after all the bullets were fired out? - -_A._ Yes. - -_Q._ After you got to Vancouver where did you go? - -_A._ I went to a picture show over there and stayed about half an hour, -and then I went to a rooming house. - -_Q._ Stayed all night in Vancouver? - -_A._ Yes. - -_Q._ Did you feel pretty nervous, knowing that you killed her? - -_A._ Yes, I sat up. I didn't sit up; I laid awake. I didn't sleep at all. - -_Q._ Where did you go when you left Vancouver? - -_A._ Went right out the next morning, went right out the Pacific Highway. - -_Q._ Why did you run away? - -_A._ Well, I wanted to get the papers and see if I had killed her and then -I was going back and shoot myself at the same place I shot her. I didn't -want them to get me until after I went around another way and shot myself -down there. - -_Q._ Did you intend to come back? - -_A._ Yes. - -_Q._ Did you read the papers at Vancouver? - -_A._ Yes. - -_Q._ Did you see in the papers that Miss Ulrich was dead? - -_A._ Yes. - -_Q._ Why did you keep going the other way? - -_A._ Well, I didn't want to come back this way and run into the police. I -was going around Seattle and Tacoma and cross over and come back around. - -_Q._ When you read in the papers that you had killed her, did you feel -satisfied? - -_A._ Well, yes, but I was afraid there would be bloodhounds after me, and -I would get shot down in the road. - -_Q._ You weren't worrying so much about her as you were afraid somebody -might do you an injury? - -_A._ Well, I didn't want them to get me until the job was completed and I -had shot myself. - -_Q._ Did you think there was somebody else interfering to keep her from -marrying you? - -_A._ I guess there was. - -_Q._ Did you have in mind to shoot any one else? - -_A._ No. - -_Q._ You knew she was engaged to marry another fellow? - -_A._ Yes. - -_Q._ Was that what made you decide to kill her? - -_A._ I thought she gave him up. Well in a way I did and in another way I -thought it was a bluff. - -_Q._ When did you make up your mind to get these guns--on the day of the -killing? - -_A._ Yes. - -_Q._ You knew at the time what you were doing,--what you were getting the -guns for? - -_A._ Yes. - -_Q._ You got the guns with the idea that if she refused to marry you why, -then, you would kill her? - -_A._ Yes. - -_Q._ You knew what you were doing at that time? - -_A._ Yes,--I don't think a man in his right mind would do it. - -_Q._ You knew that it was wrong to kill her, didn't you? - -_A._ Yes, but all I was thinking was about her. - -_Q._ You knew it would be wrong to kill her? - -_A._ That's what the law says. - -_Q._ You realized that fact at the time? - -_A._ Not as much as I do now. - -_Q._ You were in possession of your senses and you knew it was wrong to -kill her? - -_A._ Oh, yes, it was wrong to kill her--take her life. - -_Q._ You know it is wrong to take that which you cannot give, and you knew -at the time that you were doing wrong, and you knew that when you went -over there to get guns? - -_A._ I didn't take it very serious then like now. - -_Q._ Did you ever drink liquor to the extent of getting drunk? - -_A._ No. - -When this confession was read to the jury, Tronson leaned over and asked -the clergyman, "Well, what do you think of it?" When the verdict of the -jury was given, he did not understand what it meant and asked to be told. -When he was answered, he showed no appreciation of its significance, but -remarked that there wasn't so much of a crowd out as at the trial. - -This is the third case in which the Binet tests have been admitted in -evidence and the findings in accordance with these tests practically -accepted. No one seems to have denied that Tronson is an imbecile. He is -of lower grade than the other two that we have discussed, and enough lower -so that his defectiveness was much more apparent and easily admitted by -all of the judges. As will be noted, there was no reasonable motive for -the crime. In his own words: "She wouldn't marry me. That's why I killed -her--so that no one else could have her." In the case of Gianini we are -possibly dealing with the sex impulse, perhaps hardly recognized even by -the criminal himself. In Tronson's case we have that impulse definitely -recognized and asserting itself and, being uncontrolled, leading to an -action of the crudest and most savage kind. Under other conditions, it -would very likely have shown itself in a different way. If Tronson could -have gotten the girl off by herself, it is very probable that he would -have committed violence in the gratification of his sex impulse. But since -she refused to marry him and kept out of his reach, he shot her down in -order that "no one else could have her." - -It is unnecessary to discuss the case further. We need nothing more to -convince us that the diagnosis of imbecility was correct. It remains only -to point out two facts. First, that this man has been an imbecile at least -since he was twelve years of age, that he could have been recognized as an -imbecile and cared for, and thus this atrocious murder prevented. Second, -that there are hundreds of just such persons, now in their youth, who are -potential criminals. Unless their mental condition is recognized and they -are cared for in such a way as to make crime impossible, many of them will -repeat the career of Tronson. - -Fred Tronson is in prison for life. He will in all probability never be -pardoned. He will never have an opportunity to commit another murder. But -that does not restore the life of Emma Ulrich and it is small comfort to -her friends and relatives. It does not in the least remove the blot upon -society, which has allowed such a murder to be committed. Society should -have taken him in hand twelve years ago. It should be further noted that -Tronson had been before the Court at least once before he committed this -crime. At that time had the Judge realized that he was dealing with an -imbecile he might have sent the boy to an institution for the -feeble-minded instead of simply ordering him to leave the town. Shall we -learn the lesson and take care of the other Fred Tronsons who are now in -our public schools and on our streets? - - - - -CHAPTER IV - -THE CRIMINAL IMBECILE - - -From the description already given it will be seen that Roland Pennington -is very different from Jean Gianini. Both are imbeciles, but each is an -example of a special type. Gianini is of a nervous, impulsive, irritable, -loquacious type, fond of show and excitement, a braggart and a coward, -with an excellent memory, a great reader--particularly interested in -stories of excitement and crime. Pennington, on the contrary, is a slow, -dull, relatively stupid boy, of poor memory and slow perception. While -having made the fifth grade in school work, he has done it slowly and with -not so much success as in the case of Gianini. He is not so much given to -talk or to showing off; is somewhat addicted to drink and is exceptionally -fond of playing pool. - -Gianini's confession is colored by his desire to show off and shine in the -limelight; Pennington's, on the contrary, is a plain, unelaborated -statement of the facts. He is driven to his confession, not by his desire -to show off, but in self-defense. His colleague, March, is trying to throw -the entire responsibility upon him in order to escape from any -condemnation. In the face of this Pennington is prompted to tell his own -story. He is not intelligent enough to make up a plausible story which -would incriminate March and save himself. But in telling the facts as they -occurred he incriminates himself quite as much as March, so far as the -actual occurrences are concerned. His whole conduct, from the beginning of -the crime until his arrest, is that of a dull, stupid person. He does not -even wield the blackjack with intelligence, and after the man is killed by -his comrade, he takes no precaution to save himself from suspicion, to -dispose of the body or to clean up about the barn and remove the evidences -of a crime. And finally, when it comes to a statement of the case, he -apparently makes no attempt to shield himself, but acknowledges his part -in it, although that part was, as a matter of fact, so slight that a -little variation in his testimony would have thrown the entire burden upon -March and relieved him from any complicity in the matter. - -If the foregoing statement of the case is correct, we ask at once, how it -happened that the jury did not see it in this light, but instead brought -in a verdict of "Guilty in the first degree"? While there are many -elements in the answer, such as the demand of the public for revenge on -the murderer of the man who was more or less of a favorite; a hastily -drawn jury; a hurried trial, etc., the burden of the explanation falls -back upon the same condition which we discovered in the case of Gianini, -namely, the ignorance of the general public in regard to this type of -feeble-mindedness. Almost every one thinks that he knows an imbecile. We -have so long considered these high-grade cases as _normal but vicious_ -persons, that it is difficult to change the point of view suddenly and -realize that they are not responsible for their deeds. - -This failure to recognize the high-grade type of imbecile extended even to -the "experts" in the case; for whereas there were three who testified to -the feeble-mindedness of the prisoner, there were four or five who -testified to his normality. These were four general practitioners of -medicine, including the jail physician, and the fifth, a professor of -neurology and neuropathology. These gentlemen are all familiar with what -we should call the low-grade type of imbecile. They were perfectly correct -in declaring that Roland Pennington is not a low-grade imbecile. Not one -of them had had experience with the high-grade type. They were, -therefore, not qualified to pass upon a case of this kind. It was as -though four general practitioners had been brought in to decide a case of -obscure insanity. Every one of them could have testified that he had had -more or less to do with insane people, meaning persons who are maniacal or -strongly melancholic or katatonic, but what would be the value of the -testimony of such men in such a case, for instance, as that of Thaw? - -These men all thought they knew something about high-grade -feeble-mindedness. They all testified that Pennington was a normal man. -Compare this with the statement of Dr. Martin W. Barr, one of the foremost -authorities on feeble-mindedness in the United States--indeed, in the -world. Dr. Barr says (_Alienist and Neurologist_, November, 1914, page -367):-- - -"The courts simply do not go far enough back; they fail in that they do -not reach the inception--the root of the matter. They often punish without -careful investigation of the causes from which criminal instinct -springs--the environment, family history, inherited tendencies, physical -disability, and that susceptibility to suggestion which makes them the -ready tools of the vicious. - -"In the case of Roland Pennington, tried in Media last June, for aiding -in the murder of a man, it was proven that the boy, although almost twenty -in actual age, yet coming from a neurotic stock, with three first cousins -imbecile, had mentally only attained some 11 or 12 years; still he was -adjudged responsible, and murder in the first degree was the verdict. - -"Is it not a poor law that first permits a person to commit a crime, and -then punishes him for it, not recognizing that an ounce of prevention is -worth a pound of cure? - -"Pennington had sufficient intelligence to comprehend the enormity of the -deed, but, susceptible to suggestion in exaggerated degree, he had not -sufficient inhibition to resist the volitional act. - -"Early recognition of his mental defect and separation would have -protected him alike from tempter and temptation." - -It is unfortunate that Dr. Barr did not testify in the case, but his -assistant did testify and was understood to express Dr. Barr's views. - -It was unfortunate, indeed, that men who really knew so little about the -type of case before them were allowed to pass as experts and their opinion -allowed to carry more weight with the jury than the opinion of those who -have spent years in intimate association and study of the problem of -high-grade imbecility. It should be recognized that there are very few -persons who are expert with this type. The superintendents of our -institutions for the feeble-minded, after a few years of experience, have -a knowledge of this matter which far surpasses that of any physician who -has not had institution experience, however great a specialist he may be -in nerve diseases, in insanity or epilepsy. It is not enough to find out -that a physician has had some experience with imbeciles. The real problem -is: Has he had experience with this high-grade type? Is he able to pick -them out? Is his knowledge as well as his experience confined to the -medium and low grades, which every one meets? Failure to make this -distinction had much to do with the verdict in the case of Pennington. - -Another element in the result was the failure to make clear to the jury -the precise situation, the real point at issue. The defense in the case -had no desire to free Roland Pennington from all the consequences of his -deed. It was not a case of the electric chair or freedom. The imbecile, -especially one who has shown the tendency toward crime or willingness to -be led into crime, should never be at large where it is possible for him -again to go wrong. On the other hand, it is abhorrent to think of a child -(in mind) going to the electric chair for the deed which he committed -while under the influence of a superior intelligence, or while impelled by -the hidden forces of his nature over which he had no control on account of -his weak mind. It should have been made very clear to the jury that what -was wanted was to save the commonwealth the shame of officially putting to -death a person who had only a child's intelligence. In an ideal state such -a person should doubtless be kept in an institution for the feeble-minded -under a life commitment, unless his impulses are such that he proves to be -dangerous to the other inmates, in which case a different kind of -institution should be provided. Until we arrive at a condition where we -treat such persons ideally, one cannot object to the state prison for life -for the imbecile manslayer. This, unfortunately, was not made very clear -to the jury, and it seems probable that many of them thought that their -verdict was either to condemn him to the electric chair or to set him -free. Having only these alternatives, one can perhaps understand their -decision.[2] - -Another somewhat nice legal point was involved and brings up a matter -which calls for some discussion. As already stated, March had been -convicted largely upon the testimony of his accomplice, Roland Pennington. -If now the jury should acquit Roland Pennington on the ground of -imbecility, what would be the effect of such a decision upon Pennington's -testimony against March. Every one felt that March was guilty and -consciously guilty and should be punished to the extent of the law. To -bring in a verdict in the case of Pennington which would result in -annulling his testimony and thereby taking away the one sure means of -convicting March, was a serious matter. One may well believe that the jury -felt that it was safest to convict Pennington of murder in the first -degree and thus avoid raising this confusing question. - -As a matter of fact, although the question would undoubtedly have been -raised and attempts made to free March on the basis of Pennington's -feeble-minded testimony, yet such a procedure would not have been -warranted. - -Pennington, as we have claimed, is an imbecile with a mentality of about -eleven years. We have a right to judge him largely on the basis of an -eleven-year-old child. The testimony of eleven-year-old children is often -admitted into court, and many a person has been convicted on such -testimony. It is true that it is a somewhat moot question as to how much -credence should be placed in children's testimony. The real criterion in -such cases is the nature of the child, a matter which we have already -considered. A child may testify to simple facts, and may be relied upon -where he has no particular interest, where there cannot be shown any -tendency or desire on the part of the child to show off or to say -something for effect or to exercise childish imagination and invent a -large story for the sake of the pleasing sound. - -It is perfectly clear to any one who studies the confession of Pennington -that he must have told a straight-forward story. As already stated, he -would not have incriminated himself as he did if he had been falsifying. -He is not the type of person that runs on in an imaginary tale without -regard to the facts. In short, his testimony bears every evidence of being -entirely credible. - -On the other hand, as already pointed out, Gianini's testimony is -unreliable, because he was talking for effect. He is of the type that -loves show and notoriety. His testimony was only to be trusted where it -could be corroborated by facts or the testimony of others. - -Careful study of the testimony and the nature and the character of the -child will almost always enable one to decide very accurately as to how -much credence is to be placed in the evidence. In other words, the fact of -high-grade imbecility does not of itself make the child's testimony -acceptable or non-acceptable. It must be judged on its merits. We have in -these two cases excellent examples of the trustworthy and untrustworthy. - -The testimony of Pennington at the March trial was a most marvelous -performance. To those unfamiliar with high-grade imbecility, it was almost -unexplainable. Many thought that he must have been very carefully and -elaborately coached; that he had been told just what to say, and had -learned his lesson well. Those, however, who know the imbecile understood -perfectly what was happening. This eleven-year-old boy was telling a -plain, unelaborated tale. He was not intelligent enough to try to escape -himself, and so he had nothing to hide and, consequently, got into no -confusion. He answered, "Yes," "No," or, "I don't know" with a wisdom and -a consistency that was simply amazing, and, as said, could only be -explained on the understanding that he was telling the truth. No amount of -cross-examination confused him, no sudden coups of the lawyer for the -defense could entrap him. For example, when asked with considerable heat -on the part of the attorney why he had forgotten a certain point while he -remembered very vividly a certain other point, the witness made no attempt -to explain; simply remarked that he did not know. In truth, he did not -know. Any such psychological matter was as far beyond him as the heavens. -Without imagination, without ability to reason out the effect of his -answer on his own future, he could simply answer in the plainest kind of -"Yes" or "No" as he knew the facts. - -With these considerations, we pass on to consider the larger and more -difficult problem, "Can an imbecile of the mentality of eleven years know -the nature and quality of his acts and understand that it is wrong?" - - - - -CHAPTER V - -RESPONSIBILITY - - -All students of the psychology of childhood agree that not until the dawn -of adolescence does reasoning as such begin to show itself in the child -mind; that judgment and foresight and self-control, such as enable a -person to counteract his natural impulses and make himself fit into the -conventions of society, are practically unknown previous to this age. It -is true that many children are taught to say what the adult alone can feel -in connection with such matters. But as for having the real feeling and -the understanding of the situation, we seem to have no right to expect it -before the beginning of this adolescent period, from twelve to fifteen -years of age. Everything points to the correctness of the conclusion that -during this early period of pre-adolescence the child is a creature of -impulse and instinct and is controlled largely by counteracting one -instinct by another. For example, the instinct to love and obey a parent -impels the child to do what that parent says, when he tells him not to -yield to some impulse which would lead him into trouble according to the -canons of modern society. Without going further into a discussion of the -point, which would necessarily lead to many philosophical considerations, -the writer may express his conviction, born of a study both of normal -children and also of mental defectives of twelve years and under in -mentality, that persons of this mentality do not know much about right and -wrong. They act upon impulse and upon instinct, without very much thought. -Even the child of the best opportunity and the most elaborate training in -a good home may quite likely not know the wrongfulness of an act of -homicide in the sense of having a real feeling of that wrong. He can -doubtless, as already stated, _say_ that the thing is wrong, because he -has learned that this is the right thing to say. - -Let us turn now to the other part of the legal phrase, "Does such a person -know the nature and quality of his act?" If the writer understands these -terms, the first may be translated into the expression, "Does he know what -he is doing?" We take it that the expression originated in the attempt to -cover those cases where persons, either momentarily or permanently -deranged, literally do not know what they are doing. If this is correct, -then one cannot, as a rule, say that a high-grade imbecile does not know -what he is doing. He is not like the lunatic who acts blindly and is -probably no more responsible for his acts than a person walking in his -sleep. The imbecile is not in this condition. He has, so to speak, full -possession of all the mind that he has ever had and that, in the case of -these high-grade imbeciles or morons, is certainly sufficient to enable -him to know what he is doing. In the case of Jean Gianini, the writer -testified that in his opinion he knew what he was doing. He knew the -nature of his act. One cannot speak, it is true, with certainty in such -cases. It is entirely possible that, as already intimated, the situation -at first may have been a simple altercation or discussion which finally -got to a point where the anger of the boy was aroused to such an extent -that he acted without really knowing what he was doing. However, there is -no more argument for that theory than against it, and without definite -evidence on the question it is probably going too far afield to make any -such claims of immunity on that ground. We are frank to admit that the -probabilities are high that the boy knew the nature of his act. Did he -know the quality of his act? - -By the quality of a thing is meant that which distinguishes it from all -other things. This implies a complete and extensive knowledge of the thing -in question. To know the quality of an act--murder, for example--means to -know all of the elements, forms, or modes of being or action which seem to -make it distinct from all other acts. To know the quality of an act of -murder is to know that it is unjustifiable; it is to know that it differs -from the killing of a rat in that different consequences follow; that -human suffering is involved, both that of the victim and of the victim's -friends and associates. It is to know, at least in some vague way, that -human society could not exist if murder were the rule. To know the quality -of an act of murder is to know enough to be able to distinguish it from -justifiable homicide, from killing in war, not to mention more obvious -necessary distinctions. - -Did Jean Gianini know the quality of his act? On the stand, under -cross-examination, the writer was led to express the opinion that he did. -Later study of the problem and consideration of the circumstances leads to -the conclusion that this was erroneous. Such knowledge implies mental -capacity which is not possessed by a boy under twelve years of age. It -involves experience; it involves abstraction, which is notoriously lacking -in such persons. If there is one characteristic more noticeable than -another among the high-grade imbeciles or morons, it is their failure to -deal with abstract ideas; to draw generalizations from specific instances. - -Did Pennington know the quality of his act? There is not the slightest -evidence that he did. Indeed, in his case we may go farther and hold very -probably that he did not even know the nature of his act. It is easily -conceivable that he struck the man with the blackjack without knowing that -he was committing murder, without knowing that he might kill him. His -stupidity was clearly of such a character that it is a perfectly tenable -position that he thought he was to strike the man and stun him until they -could rob him and escape. - -Did Tronson know the nature and quality of his act? Using revolvers as he -did, it seems undeniable that he knew the nature. He was familiar with -revolvers; he knew what they would do. He, undoubtedly, knew that he was -killing Emma Ulrich. That he did not know the quality of his act is -equally certain. She would not marry him, he did not want her to marry any -one else, and he had no conception that he had no right to put her out of -the way so that she could not marry another if she would not marry him. - -Again, we might go further and deeper into the philosophy of the -question, the logic and ethics of it. But these few considerations seem -sufficient to make it of the highest probability that persons of a mental -age under twelve years, like the normal boys or girls of the same age, do -not know and cannot be expected to know the quality of their acts. And -this is sufficient, because the law requires no more than a reasonable -doubt, and there certainly is a very reasonable doubt as to whether such -persons know the quality of an act of murder and know that it is wrong. - - - - -CHAPTER VI - -THE PUNISHMENT FOR CRIMINAL IMBECILES - - -In the foregoing chapters we have discussed the problem involved in these -murders from the standpoint of the law in order to show that even under -the law, as it now exists, such persons are not guilty of murder in the -first degree. In the present chapter, we propose to discuss the matter -from another standpoint and from a different angle. It is not now a -question of responsibility or of some kind of justice to be satisfied. Let -us face the practical question of what is to be done in these cases. - -After all, what we want is protection for society. We cannot have innocent -people killed in accordance with the whim of the irresponsible. These -imbeciles have killed innocent members of society. What shall the living -do to prevent these particular persons from repeating the crime and to -prevent other imbeciles from ever committing such a crime? This, of -course, involves the whole problem of punishment or the treatment of the -wrongdoer. Upon one thing everybody is agreed--we must make it impossible -for these persons ever to do such a deed again. The surest way to -accomplish this is to destroy them. Dead men commit no crimes. Society -feels safe when a desperado is killed. If we can agree upon this solution, -the problem is easily solved and further discussion is unnecessary. But -society is not at one on this question. We are already seriously debating -the question whether any wrongdoer should ever be officially executed. -Indeed, many States have already decided that they should not be, and -imprisonment for life has replaced capital punishment. - -It is somewhat difficult to draw a line of distinction between the persons -involved in these crimes and the so-called responsible murderers. It -certainly is no great loss to society if Tronson is put out of the way. -The same is true in varying degrees of Gianini and Pennington. It may be -very successfully argued that the matter of responsibility is a fiction -and that all persons should be treated alike, either all executed or none -executed. Nevertheless, at the present time, we do draw the distinction, -and many feel that the person who has full power over his action, who -knows the nature and quality and wrongfulness of his act, should be -executed, while those who do not know should not be executed. - -If we take the latter view, the question still remains, What shall be done -with these criminal imbeciles? The alternative to capital punishment is -incarceration for life. Here at least we find a distinction between these -persons and the normal intelligent wrongdoers. Of all persons in the -world, the criminal imbecile should be placed in custody under conditions -that will forever make it impossible for him to repeat his offense. The -man who commits murder in a fit of insanity may recover from his insanity -and be a useful citizen for the rest of his life. The man who commits -murder under a strong impulse of anger or in calm meditation as the result -of perverted reasoning may recover normal reasoning and be a useful -citizen. This is not true of the imbecile. He will never recover; he will -never have more mind than he has now; he will never be free from the -danger of following the suggestion of some wicked person or of yielding to -his own inborn and uncontrolled impulses. It will never be safe for him to -be at large. This is so obvious that it is highly probable that the -imbecile once committed to life custody would never be released, and even -that there would never be any attempt at such release. When these facts -are understood, the public will undoubtedly be satisfied to have such -persons imprisoned for life or committed to an institution for mental -defectives, where they will be constantly guarded and prevented from doing -injury. - -This was well brought out in the case of at least two of the persons -described in this book. In the case of Jean Gianini, the lawyer made -emphatically plain that there was no desire on the part of the defense to -procure the complete liberty of the defendant. John F. McIntyre, the -counsel, stated clearly to the jury that he had no desire except to save -the boy from the electric chair, a punishment which he considered unjust. -He even went so far as to state that if at any time in the future efforts -should be made to secure the release of this defendant from any -institution to which he might be committed, he himself would make as -strenuous an effort to have the boy kept in custody as he was now making -to save him from the electric chair. Apparently this made a deep -impression upon the jury and went a long way toward helping them to return -the verdict that they did. On the other hand, in the case of Roland -Pennington this point was not made so clear, and the jury and the -prosecution did not realize that the defense only wished to save the boy -from execution and would be quite content with a verdict that would -result in his being incarcerated for life. An institution for -feeble-minded would seem at first glance to be the logical place to which -such a person should be committed. But no one need seriously object to -commitment to a penitentiary or a state prison. Perhaps, in view of the -fact that an imbecile has committed crime, that he has, as one may say, -begun a habit in that direction, the state prison is the proper place for -him, because here he can be absolutely controlled and saved from any -future acts of this kind. This is precisely what happened in Tronson's -case. - -We are learning in these days that the old adage, "An ounce of prevention -is worth a pound of cure," is something more than a witticism. These are -days of prevention--in medicine and in morals. The most important part of -our problem is yet to be discussed. It is true we must come to some -decision as to what is to be done with these persons who now infest -society and who, because of their imbecility which is unrecognized, may -become criminals. But vastly more important, because more far-reaching, is -the problem of how to prevent imbeciles from becoming criminals. We may -save the Gianinis and the Tronsons and the Penningtons from murdering any -more people, but how much better if we save them from killing anybody. No -one of these persons had, probably, any more instinct to kill than have -you or I. As children in years they were harmless and innocent. They could -have been cared for and led into paths of harmlessness if not of -usefulness. All of them could have been recognized as mental defectives -long before they arrived at the age when they committed crime. As dull and -backward children at school, they were at once suspicious characters. -Attention was called to them. Careful examination, such as is now -possible, would have revealed the fact that they were mental defectives -and as mental defectives were potential criminals. Then was the time that -they should have been carefully guarded and watched and saved from an -environment that would lead them to prey upon their fellows. If we wish to -save our teachers from the possibility of being murdered by their pupils -or our daughters from being killed by their wooers or business men from -being struck down by the blows of feeble-minded boys, we must be on the -watch for symptoms of feeble-mindedness in our school children. When such -symptoms are discovered, we must watch and guard such persons as carefully -as we do cases of leprosy or any other malignant disease. For fear that -some one should feel that these are rare and exceptional cases, let us -remind the reader that the best estimate and the result of the most -careful studies indicate that somewhere in the neighborhood of 50 per cent -of all criminals are feeble-minded. Whether this holds for murderers is -indeed not known. But many persons acquainted with feeble-mindedness -recognize from the newspaper descriptions of murders that many of the -murderers are feeble-minded. - -These facts certainly warrant us in taking seriously the problem of the -feeble-minded and the criminal imbecile. - -One thing more. Careful studies have shown beyond the peradventure of -doubt that at least two thirds of these mental defectives have inherited -their defect; in other words, that they belong to strains of the human -family whose intelligence lies below that which is required for the -performance of their duties as citizens. This points to a further -precaution necessary in looking toward the ultimate prevention of -feeble-mindedness and the solution of a large part of our prison problem, -and that is the prevention of the further propagation of this race of -defectives. If it is true--and there is every evidence that it is--that -children are daily being born of such a mentality that it requires the -attention and thought of an army of normal people to prevent their -growing up into criminal lives and that all of the best efforts can never -make them able to take their place in society as useful citizens, then it -certainly is our duty to see that such children are not born. How this is -to be accomplished has not yet been worked out in detail. The colonization -and segregation of all such people in institutions where they will not be -allowed to propagate is one solution that is proposed. The other is by -surgical interference, to render such people physically incapable of -propagating. Probably both these methods and still others must be utilized -to help solve this problem. - -The intelligence of men is often measured by the amount of foresight that -they have. The little child has little or none, as is also true of men of -low intelligence. There are men who can look forward and plan their -affairs for a few months in the future, others who can look forward a few -years, still others a lifetime, and a few who can look forward into the -coming generations. We shall demonstrate a high degree of intelligence if -we look not only to the amelioration of present conditions in our -prisons--which _must_ be done; not only to the removal to more suitable -environment of those persons who are unjustly confined because of their -irresponsibility--which ought to be done; if we not only see to it that -from now on persons who come before the court, either juvenile or adult, -are first studied to discover whether they are mentally responsible or -not, which is of utmost importance; but if we go still farther and put -forth efforts to determine how many and which of the children who are in -the public schools to-day are mentally defective and therefore need care; -and going still farther, if we have studies made and laws passed that -shall, as soon as possible, lead to the reduction in the birthrate of -these mentally defective individuals. A certain amount of -feeble-mindedness we must expect to have with us for long years to come, -because there will be sporadic cases and cases due to accident. But -feeble-mindedness as related to crime may be exterminated in a few -generations if we will but use our intelligence to attack this problem at -its root. - - - - -APPENDIX A - -GIANINI CASE - -HYPOTHETICAL QUESTION PROPOUNDED BY THE DEFENSE - - -Assuming the following circumstances to have been established by the -evidence in this case:-- - -That the defendant was on the 5th of December, 1897, born in the City of -New York; that his father was Charles A. Gianini, who also was born in -said city, and the paternal grandfather of the defendant was born in the -said city and the paternal great-grandfather of the defendant was born on -the south slope of the Alps in the republic of Switzerland. - -The defendant's mother was born in the City of New York, her maiden name -being Sara Cecelia McVey. That the defendant's mother was married to his -father when she was about twenty years of age; that prior or previous to -the said marriage she was bright, vivacious, stylish, and accomplished in -music; that shortly after her marriage she began to become untidy in her -appearance, morose, depressed, and indifferent. - -At the time of the birth of the first child (Charles), to-wit, on the 13th -day of November, 1891, about eleven months after her marriage, she was -suffering from melancholia as the evidence in this case discloses. - -Assuming that the child, Charles, lived to be but seven years of age and -during his lifetime did not learn to speak, but merely made guttural -sounds; that he did not walk, but moved about when seated on the floor, -pushing himself sidewise, and finally shortly before his death tottered -about. His death occurred when he was about seven years old. That he ate -gluttonously and his death was due to asphyxiation, choking due to taking -in trachea foreign matter while vomiting contents of an overloaded -stomach. - -Assuming that after the birth of Charles his mother's melancholia -continued, she became indifferent to her child, took no care of him, and -said that while she wanted to die, she was going to live forever; that she -also said she thought that her face was black and that she was a negress, -that she would not go into the street because she was black. - -Assuming, too, that she became addicted to the use of liquor, first lager -beer and subsequently whisky and brandy; that she made pledges, -administered by priests, only to be broken. That at times she would -brighten up, and during one of these periods, namely, July 12, 1894, a -second child, called Catherine, was born, which child still lives. - -Assuming that thereafter she began to drink again more than before; that -for eight months preceding the birth of the defendant she was drunk a -great many times, that she was found in a drunken stupor, that she was -brought home in a drunken condition by detectives, on which occasion she -had with her her second child Catherine. That about six months before the -birth of this defendant his mother was drunk, that the seventh month -before the birth of this defendant she was drinking, and on one occasion -threw her husband's books out of the window on an adjoining roof, during a -rain storm. And in the eighth month before the defendant's birth she drank -and the same condition prevailed. - -Assuming that from the June before the defendant was born, which was on -December 5, 1897, she was attended by Dr. Charles N. Weeks of New York -City, and he found her depressed, morose, and in a melancholic condition -most of the time, at times hysterical; that she would refuse to talk to -him, for one half a day at a time; that she would refuse to answer -questions, that she would pay no attention to questions, and that she was -also inclined to stare right past him; that she would weep; that she paid -no attention at all. At times the pupils of her eyes were dilated, at -times contracted, their expression at times was wild and sometimes vacant. -These conditions continued during the time Dr. Weeks was treating her. He -prescribed bromide for her liquor and the same condition continued after -the birth of the defendant. - -The general appearance of the defendant's mother was untidy, and these -conditions remained unchanged after defendant's birth. That when born the -defendant was poorly nourished, under weight, weighed about five pounds, -and was inclined to be emaciated; that at the time of the death of the -first born (Charlie), to-wit, on the 21st day of March, 1899, she was -again observed by Dr. Weeks, and then she was absolutely indifferent as to -the conditions so far as the boy was concerned; showed no grief, and her -general condition was such as he described at the time he was treating -her. - -And assuming that after the birth of the defendant he was a bottle-fed -baby, not nursed by his mother, and when about a year old placed in the -care of Mrs. Leigh, with whom he remained until he was about six years -old. That the defendant's mother died on June 3, 1899, in a Sanitarium, -known as St. Anne's Retreat in the City of New York, the cause of death -was meningitis, alcoholic heart failure. - -Assume that up to the time the defendant was five years of age he didn't -speak, and made sounds which resembled yells. Assume that about 1906 or -1907 the defendant's father took him from Mrs. Leigh's, he was then able -to talk and walk, and for several weeks he was taken care of by Mrs. -Hoberg and from there was taken to Lady Cliff Academy on the Hudson, where -he remained for one term. While there he usually appeared dirty, but -seemed to be making some progress. - -In 1907, assume when the defendant was ten years of age he went to live in -the Bronx, where he lived for two years and attended school during this -period. At one time he took two little girls to a piece of woods and -started to take their clothes off, and when asked why he did it, said he -was going to play Indian and that Indians were naked. - -On one Sunday afternoon he was observed in a group of children eating mud -pies, and the children were calling him "Loonie" and were telling him to -eat another one. - -During these two years that the defendant lived in the Bronx he was -observed to tease children. He would take a little boy's wagon and run -away with it. He would take his hat and throw it over a neighboring -fence. He would take the caps of girls and toss them over fences, pull -their curls, take away their hoops when they were rolling hoops, and take -the ball away when they were playing ball. He would do these things quite -often. On one afternoon he was brought home with a gash on his right -temple. It was bleeding and at least one inch in length. He stated that he -had received it from a fall from a stone wall while he was playing -"thief." On another occasion he chased a young girl who was stopping at -the house around the room with a table knife because she was trying to -correct him because he ran home from school without her. He did not -attempt anything against that girl again, although she remained in the -room the balance of the day. - -In 1910 defendant's father moved from the Bronx, to Poland, and brought -the defendant with him, and the defendant attended the Poland School which -he entered in April of 1910, and there remained until February or March, -1913. After leaving school defendant worked in a knitting mill in Newport -from about the first half of April until the second half of May, 1913, -when he ran away and went to Ilion. At Ilion he was found working by his -father and Mr. Frank Newman wiping dishes in the hotel. He was then taken -home. In the middle of August, 1913, the defendant again ran away, this -time to Albany, and stated that while he was there he had been shot at two -or three times by a policeman and was arrested. From Albany the defendant -again went to Ilion, where his father and Frank Newman again found him at -the same hotel, and when he saw them, he said that they were "swindlers." - -At another time the defendant ran away to Herkimer, in the summer of 1912, -and he stated that he had gone to the moving pictures. He said that he -went to the store, the Poland Union, and bought a can of beans and a bunch -of bananas for his trip to Herkimer. He left in the afternoon and did not -return until the following afternoon, when he said that he ate the bananas -going along the track before he ate the beans because he was afraid the -bananas would melt. He said he ate the beans at night, opening the can -with a nail, and ate them with a nail. - -On another occasion in Poland he chased his sister with a table knife -although she had not done anything to him. In the summer of 1910 the -defendant was at Morehouseville, and one day while there he was fishing at -the stream that passes in front of the Mountain Home, when the flies and -the punkies were biting very fiercely. He stood down there in his bare -legs and bare head fishing and the flies biting him until the blood ran -down his face and neck and legs. He was fishing there for fully an hour, -and when asked if the flies had bothered him, he said "No." - -In 1911, when the defendant's father's stepmother was in Poland, the -defendant was overheard to say to her, "Why didn't you marry my father, I -would like you better than this stepmother." - -When the defendant was fifteen years of age, in the month of September, -1913, the defendant's father had him committed to the St. Vincent's -Industrial School for juvenile delinquency, presided over by Christian -Brothers, where he remained for about six months, coming home in February. - -A few weeks before the commission of the alleged crime, he was observed to -be quarreling on Main Street in Poland with two very small children. - -At the age of sixteen years, in the early part of March, 1914, the -defendant was noticed playing with a toy railroad car and building some -tracks with some little irregular pieces of wood. He was also observed to -play tag with children apparently from two to four years younger than -himself. - -In the early part of 1912, the defendant's father observed that he was -practicing masturbation. - -The defendant's father thereupon slept in the same room with him in order -to watch him. The defendant continued this practice until the time he left -home in the spring or summer of 1913 and admitted that he did it -frequently. - -Assuming that on the 25th day of March, 1914, Mrs. Ethel Beecher and the -deceased Lida Beecher met the defendant at the Post Office in Poland, and -the defendant asked the deceased when she was coming to see his father, -and that she replied that she did not know, and the defendant said, -speaking impatiently, "Aw, I don't believe that you intend to come at all; -you will wait until the summer time and go home and then it will be too -late." That they spoke about school, and the deceased said to the -defendant that it would be better for him to wait until the beginning of -another term because he would be behind the other pupils in his work; that -on another occasion, on about the middle of February, 1914, the defendant -came on an errand to get yeast to the place where the deceased and Mrs. -Beecher were boarding and the defendant then said to them that he wanted -to get away from Poland, and would rather be in New York in the Great -White Way; that he thought he would like to act in moving pictures as he -did not like his home and he hated his father, and would not care to be a -"sod-buster"; that the deceased asked him whether he would like to return -to school, and he said that he would, but that his father would not let -him; that he never stole but once in his life and that was twenty-five -cents from a lady in New York, and she had given him twenty-five cents to -buy some candy and he bought the candy and ate it himself. On the same -visit the defendant asked Mrs. Ethel Beecher if there was a state prison -in Rochester, and she told him no; he wanted to know if there was not some -sort of a reform school there. She said that there used to be, but that -the reform school had removed to Industry, and he asked what the reform -school was like at Industry and she told him that the boys lived in -cottages under the care of a matron, a man and wife generally, and that -was as much as she knew about it. The defendant said he would like to be -there and asked her about the state prison at Auburn and different -prisons, what the sentence was and whether they had an electric chair or -whether they hung. The defendant told them that they worked awfully hard -at Sing Sing. The defendant also stated on that occasion that his father -used to thrash him for stealing apples that other men put him up to -stealing. - -Assuming at the time Mrs. Ethel Beecher and the deceased and the defendant -were talking together, that the deceased told the defendant that she -thought he would like to go in the country to work on a farm and asked him -why he did not continue his school work another year; and that her tone -was kindly and her whole deportment towards him on that occasion was such -as to incline one to believe that she desired to help him and to well -advise him; and that the defendant's conversation concerning prisons and -industrial schools was such that it caused them to laugh, at the time; and -that on other occasions when the defendant was with the deceased her -conduct towards him was always kindly and that she was kindly and -generously disposed towards the defendant and showed considerable interest -in him. - -Assuming that on the 27th day of March, 1914, at about quarter after seven -the defendant was observed on the street in Poland with some children, -with whom he had been seen at different times playing hide and seek and -tag and I spy, and that he caught hold of the toque of one of the little -girls and pulled it down over her face and that he poked another one of -the little girls in the back and that he called a girl by the name of -Grace Palmer, "Palmer House," and said, "Leonard is the proprietor, isn't -he?" and kept calling her Palmer House, and that he was snowballing the -girls, and that while he was engaged the deceased passed him on the street -and said, "Hello, Jean," and that he then joined her and shortly -afterwards was seen to come back with the deceased, going up the road -towards Buck Hill. That later in the same evening, at about ten minutes to -eight, he returned home, showing no trace of excitement or nervousness, -and that he received some books of wall paper to be delivered to a -neighbor and that he took these books and threw them so that they fell -with a noise on a neighbor's veranda and was seen running near the -railroad station and later returned home in the vicinity of eight o'clock, -showing no trace of any agitation, excitement, or nervousness. That he -took off his shoes, put on a pair of slippers, went to bed, and slept -quietly all night. That on the following morning he reported for work at -Sam Hutchinson's as usual, worked for about twenty minutes doing his -chores, ate his breakfast, and nothing unusual was observed about him. - -Assuming further that he was seen going along the railroad track in the -direction of Newport; that he met two men, one by the name of Smith, and -that he shouted, "Hello, Smithy"; that later he was spoken to by a man -named Sweet at Newport on the railroad track about four miles from Poland, -and that when Sweet caught up to him and asked him where he was going, he -said to Herkimer to see a moving picture show; that he had stolen a dollar -from his father; that he accompanied Sweet to Autenrith's store and while -there the murder of the deceased was talked about in his presence and that -he ate peanuts and smoked a cigarette and asked where they had found the -body and stated that he had gone to school to her; and subsequently was -taken back to Poland by one Frank Newman, and thereafter was turned over -to the Sheriff of Herkimer County and one of his deputies. - -Assuming that on the 26th day of March he asked an acquaintance by the -name of Morris Howe, a boy of fifteen years, if the deceased came to get -her mail nights, and said that he would get even with her; that on -Tuesday, March 24th, he told a man by the name of Estes Compo, with whom -he was working, that the deceased had tried to send him to school and that -if he had a revolver he would kill her, and asked this same man if he had -read of a murder down South, of a colored man killing a white girl and -laying it on the superintendent of a factory and that the man was -sentenced to the chair and the colored man confessed the crime; that on -the preceding night he had been in Compo's room, where he saw a revolver -and a knife, and on the following day he said if he had a revolver, he -would kill the deceased; that about a week before the 27th day of March, -while defendant was working for Sam Hutchinson, he told a boy he would -some day put an end to the deceased. - -Assuming that between the hours of seven and eight o'clock on the night of -March 27th, 1914, Miss Beecher was killed at a dark and lonely spot on the -Buck Hill road and that she had come to her death by being struck on the -head with a monkey wrench and had been cut repeatedly to the extent of -about 24 times with a knife in various parts of the body and that she was -dragged from the place where she was killed to a clump of willows near the -road and that her umbrella and hat were found the following morning in the -road and that by following the track where her body had been dragged over -the snow the body of the deceased was found. - -And assuming that on the morning of the 28th day when the defendant was -brought to Poland he was taken to a house of a Justice of the Peace and -was taken into a room by the Deputy Sheriff and told that he was -suspected and was accused of being a party to the crime. That after he was -completely stripped of his clothing he stated to the Deputy Sheriff that -he had gone to school to the deceased and had trouble with her at school -and wanted revenge and that he had met her the day before near the Post -Office and asked her to go up to his house and see his folks about having -him go to school again, and that the deceased told him that she would go -the next night. That the next night he did meet her near the hotel and she -said that she was ready to go up. They walked up the street, and when they -got near his father's house, the defendant told her that his father did -not live there, that they had moved up the hill, that he then stated in -detail how he committed the crime and disposed of the body and what he did -with the wrench and the knife. That he said, "You would not think any one -could do a job as quick as that." He said he supposed they would talk -insanity, but he was not any more insane than the Deputy Sheriff was, and -he did not want them to talk about it. - -He also said, "Gillette got the chair, didn't he?" and upon the Deputy -Sheriff replying, "Yes," the defendant said, "He had no reason to kill the -girl, but I did; I wanted revenge." - -That at the same time the defendant signed a sworn statement before the -Justice of the Peace, in which he stated that he went to school to Lida -Beecher, and had trouble with her and wanted revenge; that he was not -afraid, and when he got home, he was just as happy as he ever was, and did -not think anything about it, as he thought he had revenge; that at the -time he made these statements he was cool and quiet and spoke connectedly; -that he was not nervous or excited. - -Assuming that the defendant had not attended the Poland school since -February or March, 1913, and that while there he had studied under the -deceased for about one year, and that during this period the only -punishment he had received from the deceased was a seat facing the wall -with his back towards the other pupils, and was occasionally sent upstairs -to the Professor of the school for punishment. And that the deceased had -always manifested a friendly interest in him, was mild, kind, gentle, and -good to him. - -And further assume that when he left school, he was in the sixth grade. - -Assume that he had frequently been detected in telling lies, that he had -spoken of hatred of his father, that he manifested no affection towards -him, referring to his father as "Old Man" and "Him." That on the morning -of the 28th when he was being brought back to Poland by Newman, Newman -stated to him, "You have got something beside skipping out now staring you -in the face," to which he replied, "They can't give me but ten years"; he -used no words, when informed it might be a long time, that expressed fear -or fright; and when he was informed that he had murder staring him in the -face, he acted no different than ordinary. - -That less than a year before the birth of Charles, the first child, the -defendant's mother suffered from an attack of diphtheria, for which she -was treated by Dr. Quinlan. - -Further assume that in the summer of 1910, at Morehouseville, while -quarreling with a little boy named Arthur Jones, the defendant said he -would go up to his father's room and get his hunting knife and kill him. - -That while the defendant was at St. Vincent's Industrial School for -juvenile delinquency, at work in the laundry, he told Mr. Minor that if -his father didn't get him out in February, he would burn his father's -buildings when he got out. - -Now, doctor, assuming all these facts to have been proven in this case, -from your experience in the treatment of and knowledge of imbeciles and -idiots, from your skill and expert knowledge, can you express an opinion -concerning the mental condition of Jean Gianini at the time of the killing -of Lida Beecher, on the 27th day of March, 1914? - -By Mr. Thomas: If the Court please, I object to the question as improper -in form and that it concludes with assuming all these facts to have been -proven in this case, and that it is not an inquiry which can be properly -permitted to be put to the witness here. That, in addition, it does not -correctly state the evidence, and that especially this part of the -question is improper--"That she showed no grief, and her general condition -was such as he described at the time he was treating her," referring to -Dr. Weeks, and further it assumes incorrectly the time that the defendant -encountered Miss Beecher, near the Post Office on the 27th day of March, -1914, which is stated here to be about a quarter after seven. - -By Mr. Hirsch: What time do you say it was, Mr. Thomas? - -By Mr. Thomas: The proof varies from seven to seven six. And it is -incorrect in assuming facts not established upon the evidence, that he cut -her repeatedly to the extent of about twenty-four times with a knife; and -in those respects to which I have called your Honor's attention, the -question is improper, in that it assumes facts not proven, that it is -improper in form, and the concluding paragraph, with reference to which I -have called your Honor's attention, is improper and incompetent; and that -the question is incompetent in that it does not call upon the witness to -express an opinion as to the knowledge of the defendant of right and -wrong, or his knowledge of the nature and quality of the act in killing -the deceased. - -By Mr. McIntyre: That is a question, if your Honor please, which was -passed upon yesterday. - -By the Court: I suppose it is preliminary to some extent, as far as this -information is concerned. - -By Mr. McIntyre: It is precisely the same as yesterday, but the question -has had some additions. - -By the Court: Was that indicated by the last part of it? - -By Mr. McIntyre: Yes, sir. - -By Mr. Thomas: He should be asked, "Can you now form an opinion assuming -all these facts?"... - -_Q._ Now, Doctor, assuming all these facts contained in the hypothetical -question to have been established by evidence in this case, from your -experience in the treatment and knowledge of imbeciles and idiots, from -your knowledge and skill as an expert, can you express an opinion as to -the condition of Jean Gianini at the time of the killing of Lida Beecher -on the 27th day of March, 1914? - -Same objection - -By the Court: Objection overruled. He may answer. - -_A._ I can. - -_Q._ What is your opinion? - -Same objection. - -By the Court: I think it should conform now to the language of the -statute, shouldn't it? - -By Mr. McIntyre: Well, I have, your Honor; I first asked him if he could -express that opinion. Now if he doesn't express an opinion that comes -within the provisions within the statute, why then of course his opinion -is incompetent in this case. Now let's look at the code. Will you give me -the section, please? - -Section 1120. - -"Offense committed by an idiot or lunatic. An act done by a person who is -an idiot, imbecile, lunatic, or insane is not a crime. A person cannot be -tried, sentenced to any punishment, or punished for a crime while he is in -a state of idiocy, imbecility, lunacy or insanity, or is incapable of -understanding the proceeding or making his defense. A person is not -excused from criminal liability as an idiot, imbecile, lunatic, or insane -person except upon proof that at the time of the committing of the alleged -criminal act he was laboring under such a defect of reason as not to know -the nature and quality of the act he was doing or know the nature of the -act as wrong." - -By the Court: Well, now, my suggestion is why not embody that in your -question. - -By Mr. McIntyre: That is the second question, your Honor.... - -_Q._ I asked you what was your opinion concerning his mental condition. - -_A._ That he is an imbecile. - -_Q._ Now, Doctor, assuming that all the acts recited in the hypothetical -question to have been established by evidence, to be true, in conjunction -with the physical and mental examination made by you in the County Jail on -the 17th day of May this year,--from your experience and your knowledge of -imbeciles and idiots, in your opinion was Jean Gianini at the time of the -killing of Lida Beecher in such a mental condition as to know the nature -and quality of the act he was doing or that the act was wrong? - -By Mr. Thomas: I object to it as improper in form and copulative. - -Objection overruled. - -_Q._ Your opinion, Doctor? - -_A._ He was not in such condition. - - - - -APPENDIX B - -GIANINI CASE - -HYPOTHETICAL QUESTION PROPOUNDED BY THE PROSECUTION - - -_Q._ Doctor, kindly assume that the defendant had been a pupil taught by -Lida Beecher in the public school at Poland and harbored against her a -desire for revenge because she had punished him; that he stated to people -of his acquaintance that he would get even with her; that on Tuesday, -March 24th, 1914, he stated to a man with whom he was working that if he -had a revolver he would shoot her; that several days previously he had -this wrench, Ex. 45, in his possession and stated to a man who asked him -what he was going to do with it, that he had use for it; that he met Miss -Beecher, who was a young lady about twenty years old, five feet three -inches in height, weighing about 126 pounds, wearing upon the head this -cap, Ex. 26, and as an outer garment, this raincoat, Ex. 29 (showing to -witness), Wednesday, March 25th, 1914, about seven P.M. in the Post -Office at Poland, Post Office in the village of Poland, the location of -which is indicated on this map, Ex. 1, to which I now call your attention -(indicating); walked with her and Miss Clark, a teacher, from the Post -Office along Cold Brook Street to a point on the southerly side of the -street opposite the residence of James D. Countryman, the location of -which is also shown on the map at a point to which I now call your -attention (indicating), and that during that walk the defendant asked Miss -Beecher when she was coming up to see his father, and upon receiving the -answer that she did not know, said, "Aw, I don't believe you intend to -come at all; you will wait until summer time and go home and then it will -be too late"; that on the following evening, Thursday, he again met Miss -Beecher at or near the Post Office and asked her to go up to his house and -see his folks about going to school and she replied that she could not -that night, that she was going to prayer meeting, that she would go the -next night; that on the following day, Friday, he provided himself with -the knife, Ex. 48, for the occasion, and with the intention of killing -her, sharpened it for that purpose; that he met Miss Beecher about seven -P.M. on the evening of Friday, March 27th, near the Post Office and walked -with her along the south side of Cold Brook Street to the foot of Buck -Hill, which Buck Hill road is also shown on this map, a distance of 2006 -feet; that they then proceeded together along up Buck Hill, he getting her -to accompany him by telling her that his father lived up over the hill, -had moved up there two or three weeks before; that they went on part way -up the hill, and Miss Beecher hesitated and said it was farther up than -she thought it was, she did not think she would go any farther, and the -defendant said to her, "It is not but a little ways farther"; that when -they got to a point on the hill distant about 4198 feet from the Post -Office, she hesitated and said, "It is dark and I see no houses, no light, -don't think I will go any farther, will write your father a letter in -regard to this school matter"; that as she stopped he stepped back of her, -hit her on the head with this monkey wrench, Ex. 45, which weighs 2 pounds -7-15/16 ounces, which I now show to you, he at that time having as an -outer garment this coat, and wearing this shirt, Ex. 49, which I now show -to you; knocking her down, he hit her twice with it after she was down; -that when he first hit her with the wrench, she did not cry out but -moaned; that he then threw the wrench up over the fence on to the top of -the bank, about 35 feet; that it was so dark he could not see; took the -knife, Ex. 48, and as she was lying on the ground, hit her with it several -times to be sure to finish her, inflicting punctured wounds, one on the -back of the neck just below the hair line 3/4 of an inch in length, one on -the left side of the neck about 1/2 of an inch long, cutting a hole in the -external carotid artery 3 inches above the bifurcation of the common -carotid artery; that he then grabbed the body, which was face down, by the -right foot and dragged it across the road under a barbed-wire fence, down -the hill back of a bush to the swale; that he took hold of the right foot -because he did not want to get blood on his hands so that his finger -prints could be taken; that he ran immediately from the body to the Buck -Hill road and came out on to it a few rods nearer Poland than the point -where he dragged the body under the fence, ran down the road some -distance, and a team or sleigh came along and he stopped running and -waited until after that team got by him; that he reached his father's -house, which is shown on this map, Ex. 1, and the location of which I call -your attention to (indicating), at 7:30 and would have reached it sooner -if he had not fallen down four or five times on the way home; that he went -into the house and put the knife, off from which he had wiped the blood in -the snow, in the pantry drawer; that he was sent on an errand to the -house of Thomas Owens, on Cold Brook Street, which is also shown on this -map, Ex. 1, to the location of which I now call your attention -(indicating), to return some books of samples of wall paper, and to give -Mr. or Mrs. Owens a one-dollar bill and a soap order, to which it was -pinned; that he ran down the street, threw the books on to the veranda -floor near the kitchen door, ran down Cold Brook Street to South Main -Street, and tried to get the freight train which passed south on the M. & -M. railroad; that he ran back to his father's house and arrived there a -little after eight, took off his shoes, put on his slippers, read the -newspaper a little while, and went to bed; that he arose about six o'clock -the next morning; left his father's house, went to Sam Hutchinson's, by -whom he was employed, and whose residence is also shown on this Ex. 1, at -the location to which I now call your attention (indicating), went to the -barn, assisted in doing the chores, went in to breakfast, said nothing, -left there the coat, Ex. 41, which was then substantially in the same -condition as it is now, and to its condition, especially on the back, I -call your attention, and this being the coat which he wore the evening -before, which I now hand to you and call your attention to (indicating) -the condition of, put on another coat, and started down the railroad -track towards Herkimer, which is on the line of the New York Central and -Hudson River railroad, and some fourteen miles from Poland, intending then -to go away from Poland; that he was apprehended at Newport, a place -distant about four miles from Poland and between there and Herkimer, and -brought back in a cutter by Mr. Newman, whom he had known for several -years; that on the drive from Newport to Poland Newman asked him if he had -heard what happened at Poland, and defendant replied he hadn't; when asked -if he had seen anything of Miss Beecher the night before, said he had not; -when asked by Newman if he had heard that Miss Beecher was murdered or -killed, defendant said, "No," and on Newman's saying, "They are looking -for you for it," defendant said, "They can't give me but ten years, can -they?"; that as they drove into the village of Poland and turned from -South Main Street into Cold Brook Street, near the Post Office, there were -some rigs coming down the hill, and defendant said, "They are coming off -the hill with her now"; that in the afternoon of the same day he -voluntarily made, signed, and swore to the following statement with -reference to the matter.[3] - -State, Doctor, basing your reply upon the hypothesis stated in the -question, whether or not, in your opinion, the defendant, at the time he -struck Miss Beecher with the wrench, understood that he had no right to do -it? - -Mr. McIntyre: Don't answer. We object to the question in that it only -recites the revolting details of the alleged crime and that when the -question was being propounded to the witness upon the stand, counsel for -the State exhibited the knife, the wrench, the coat, the hat, and other -things in evidence in rather a dramatic way before the jury. - -We object to the question upon the ground that it does not contain all the -essential features in this case bearing upon the crime. - -We object to the question upon the ground that the hypothetical question -fails to include the condition of the defendant's mother at the time of -his birth; it fails to include the fact that the first child was an idiot -during his lifetime; it fails to disclose the conduct and deportment of -the defendant from the time of his birth down to the commission of this -crime. - -We submit respectfully that the hypothetical question is a garbled -statement of that which has transpired during this case and can have but -one effect--to bias and prejudice the minds of the jurors. And I submit -it is incompetent, immaterial and irrelevant and improper, in addition. - -The Court: Objection overruled. - -Mr. McIntyre: Exception, sir. - -_Q._ Have you got the conclusion, the concluding portion of my question in -mind? - -_A._ Would you repeat it? - -_Q._ Yes. State, Doctor, basing your reply upon the hypothesis stated in -the question, whether or not, in your opinion, the defendant, at the time -he struck Miss Beecher with the wrench, understood that he had no right to -do it. - -_A._ I cannot get any evidence from the facts recited there to enable me -to determine. - -_Q._ Well, can you determine from this question an opinion as an expert? - -_A._ No, I cannot. - - - - -APPENDIX C - -GIANINI CASE - -DEFENDANT'S REQUEST TO CHARGE - - -I - -Defendant requests your Honor to charge the jury that, in determining the -guilt or innocence of the defendant of the offense charged in the -indictment, the jury are to consider only the evidence of the case and are -to disregard any statement made during the course of the trial, by counsel -or the Court, and are not to be influenced or governed by any expression -of opinion or action of either the Court or counsel for defendant or the -people. - - -II - -Defendant requests your Honor to charge that the jury are not to be -influenced, in the consideration of this case, by any comment or -expression of opinion in the newspaper reports of this case, and they must -disregard any statement or comment contained in any such report, if same -has in any way been brought to their attention. - - -III - -Defendant requests your Honor to charge the jury that, in considering this -case, after its submission to them, the jury must proceed upon the -presumption that the accused, the defendant herein, is innocent of the -crime charged in the indictment and that it is necessary for the -commonwealth to overcome this presumption by evidence to convince them, -beyond a reasonable doubt, that the defendant is guilty of the crime -charged against him in the indictment. - - -IV - -Defendant requests your Honor to charge the jury that, in consideration of -this case, the jury are bound to act and proceed upon the presumption that -the accused is an innocent boy, and this presumption must continue -throughout the trial. - - -V - -Defendant requests your Honor to charge the jury that, the defendant being -charged with the crime of murder, the commonwealth is bound to prove -every and all the essential facts necessary to constitute this crime -beyond a reasonable doubt before the jury can convict the defendant of the -crime charged in the indictment. - - -VI - -Defendant requests your Honor to charge the jury that, upon the whole -case, if the commonwealth has failed to prove all of the facts beyond a -reasonable doubt, the defendant is entitled to be acquitted. - - -VII - -Defendant requests your Honor to charge the jury that the burden in this -case rests with the commonwealth, from the beginning to the end of the -trial, to establish, beyond a reasonable doubt, every fact essential to -the conviction of the defendant, and if the commonwealth has failed to -prove such charge beyond a reasonable doubt, the defendant is entitled to -an acquittal. - - -VIII - -Defendant requests your Honor to charge the jury that the unintentional -killing of a human being by another without motive, intent, premeditation, -is neither murder nor manslaughter. - - -IX - -Defendant requests your Honor to charge the jury that the questions of -deliberation and premeditation, intent and motive, are purely questions of -fact, to be determined by the jury from the evidence alone. - - -X - -Defendant requests your Honor to charge that if the jury cannot say, -beyond a reasonable doubt, that the defendant was sane at the time of the -commission of the act, and cannot say whether, at that time, he was sane -or insane, the defendant must be acquitted. - - -XI - -Defendant requests your Honor to charge the jury that if, at the time the -defendant committed the act charged against him, upon seeing the deceased, -he was thrown into a state of mind from which he was deprived of his -understanding, so as to be unaware of the nature and quality of the act he -committed, or so as to be unable to distinguish between right and wrong in -reference to that particular act at the time of its commission, this -defendant must be acquitted. - - -XII - -Defendant requests your Honor to charge the jury that, although sanity is -assured and presumed to be the normal and natural state of the human mind, -when imbecility is once shown to exist in a person, it is presumed to -exist and continue until the presumption is overcome by contrary or -repelling evidence proving sanity. - - -XIII - -Defendant requests your Honor to charge the jury that if defendant was -deprived of his reason at the time the act charged against him was -committed, and which resulted from a settled and well-established mental -alienation, or from the pressure and overpowering weight of circumstances -occurring before and at the time of the commission of said act, the said -defendant is legally irresponsible for it and must be acquitted. - - -XIV - -Defendant requests your Honor to charge the jury that if, at the time of -the commission of the act, the defendant was under the influence of a -diseased mind, and was really unconscious that he was committing a crime, -this defendant must be acquitted. - - -XV - -Defendant requests your Honor to charge the jury that the insanity of the -defendant need not be proven beyond a reasonable doubt. - - -XVI - -Defendant requests your Honor to charge that the jury, in considering this -case, are bound to act upon the presumption that the accused, the -defendant, is innocent, and should endeavor, if possible, to reconcile all -the circumstances of the case with that of innocence. - - -XVII - -Defendant requests your Honor to charge the jury that the burden of proof -rests with the commonwealth in this case, from the beginning to the end of -the trial, and the commonwealth are bound to prove that the defendant -committed the crime charged in the indictment beyond a reasonable doubt, -otherwise the defendant is entitled to be acquitted. - - -XVIII - -Defendant requests your Honor to charge that the jury must be satisfied -beyond a reasonable doubt, from the evidence of the case, of the sanity of -the defendant at the time of the commission of the act charged in the -indictment, and if the people fail to establish the sanity of the -defendant at the time of the commission of the act charged in the -indictment, this defendant cannot be convicted of any crime and is -entitled to an acquittal. - - -XIX - -Defendant requests your Honor to charge the jury that the law does not -require that the insanity, imbecility, or mental aberration which absolves -from crime should exist for any definite period, and only that it existed -at the moment when the act occurred. - - -XX - -Defendant requests your Honor to charge the jury that if the insanity, -imbecility, or mental aberration which absolves from crime operated at the -moment that the act was committed, that is sufficient in law to absolve -from guilt, and this defendant cannot be convicted of the offense charged -in the indictment, or any other offense. - - -XXI - -Defendant requests your Honor to charge the jury that the commonwealth -must satisfy the jury beyond all reasonable doubt, that, at the moment -the act alleged in the indictment was committed by the defendant, he had -reason, perception, and understanding sufficient to enable him to discern -right from wrong, and that if he had not, it is the duty of the jury to -acquit this defendant. - - -XXII - -Defendant requests your Honor to charge that if the jury believe that the -defendant did not suffer from any mental aberration which would absolve -him from punishment for the act charged in the indictment prior to the -commission of the act, or subsequent thereto, but that such state of -mental aberration did exist at the moment when the act occurred which the -defendant stands charged with, this defendant cannot be convicted of the -crime charged in the indictment, or any other crime, and must be -acquitted. - - -XXIII - -Defendant requests your Honor to charge the jury that if there is a -reasonable doubt in the minds of the jury as to whether the act charged in -the indictment was committed by the defendant while he was unable to -discern between right and wrong, or if the evidence is equally balanced -as to this, so that the jury cannot safely and conscientiously determine -whether the killing of the deceased was intentional, or was committed by -the defendant while he was unable to discern between right and wrong with -respect to the act, then this defendant is entitled to the benefit of that -doubt and entitled to an acquittal. - - -XXIV - -Defendant requests your Honor to charge the jury that if it finds that the -defendant is of a mental age of under twelve years, he is presumed to be -incapable of the commission of crime. (_Refused_) - - -XXV - -Defendant requests your Honor to charge the jury that if it finds that the -defendant is of a mental age of under twelve years, he is presumed to be -incapable of crime and that presumption is not removed by proof that he -had sufficient capacity to understand the act charged against him and know -its wrongfulness, except by evidence that satisfied the jury beyond a -reasonable doubt. (_Refused_) - - -XXVI - -Defendant requests your Honor to charge that if the jury finds that the -defendant is of a mental age of under twelve years, the evidence that he -understood the nature or quality of the act charged against him and knew -its wrongfulness must be strong and clear beyond a reasonable doubt. - - -XXVII - -Defendant requests your Honor to charge the jury that it must find that -the understanding of and the capacity for committing a crime is measured -not by the chronological years of the defendant, but by the strength of -the defendant's understanding and judgment. (_Refused_) - - -XXVIII - -Defendant requests your Honor to charge that if the jury find that the -defendant was of a mental age of under twelve years, he was incapable of -committing the crime charged in the indictment, unless the commonwealth -has made strong, clear, and convincing proof beyond a reasonable doubt -that the defendant was capable of discerning the difference between right -and wrong or knew the quality and nature of his act. (_Refused_) - - -XXIX - -Defendant requests your Honor to charge that the burden is upon the -commonwealth to show that the defendant has intelligence and maturity of -judgment sufficient to render him capable of harboring a criminal intent. - - -XXX - -Defendant requests your Honor to charge that if no motive has been -established for the crime, the jury must regard it as important in its -bearing upon the question of the defendant's mental condition at the time -of the commission of the act charged against him. - - -XXXI - -Defendant requests your Honor to charge the jury that if the commonwealth -have established merely a slight, trifling, and inconsequential motive for -the commission of the act charged in the indictment, they should regard it -as important and give it more consideration in connection with the -question of the defendant's mental condition. - - -XXXII - -Defendant requests your Honor to charge the jury that the commission of -the crime charged in the indictment by a child of tender years from its -very nature raises the question of abnormality of the defendant's mind and -in the absence of clear, strong, and convincing evidence on the part of -the commonwealth, it must conclude that the defendant's mental condition -was such that he did not understand the wrongfulness of his act or -understand the nature and quality of his act. - - -XXXIII - -Defendant requests your Honor to charge that evidence of the want of a -rational and reasonable motive on the part of the defendant for the -perpetration of the act charged in the indictment is to be considered by -the jury as strong corroboration of the fact of his mental -irresponsibility. - - -XXXIV - -Defendant requests your Honor to charge that the perpetration of the act -charged in the indictment without any apparent motive or object, but -against every motive which would appear to be naturally influential with -the defendant, that they must at once inquire whether or not the defendant -was of sound mind and take into consideration with the other evidence of -this case that he was not of sound mind, the absence of sufficient motive -must lead them to conclude that he was of unsound mind and could not -distinguish between right and wrong or know the nature and quality of his -act. - - -XXXV - -Defendant requests your Honor to charge that the absence of a clear and -convincing motive in itself is evidence of an unsound mind. - - -XXXVI - -Defendant requests your Honor to charge that if the defendant acted -without any reasonable or rational motive or object, but against every -motive and object, which it would appear should have been influential with -him, that fact in itself raises a presumption that the defendant was of -such unsound mind that he could not distinguish between right and wrong or -know the nature or quality of his act. - - -XXXVII - -Defendant requests your Honor to charge the jury that they have no right -to presume a motive from the mere commission of the crime and have no -right to speculate, guess, or surmise or supply any motive for the -commission of the act charged in the indictment. - - -XXXVIII - -Defendant requests your Honor to charge that the failure of the -commonwealth to call as witnesses Drs. Maybon and Palmer, who made -examinations of the defendant, to testify as to his mental condition, -raises the inference that if they had been called as witnesses, they would -have testified adversely to the commonwealth in respect to the defendant's -mental condition. - - -XXXIX - -Defendant requests your Honor to charge that from the failure of the -commonwealth to call as witnesses Drs. Maybon and Palmer, who examined the -defendant, the jury may infer that they would have testified that the -defendant was a high-grade imbecile who was laboring under such defect of -reason as not to know the nature and quality of the act of which he is -charged in the indictment or not to know the act was wrong at the time it -was committed. - - -XL - -Defendant requests your Honor to charge that from the failure of the -commonwealth to call as witnesses Drs. Maybon and Palmer, the jury may -infer that had they been called they would have testified unfavorably and -adversely to the commonwealth, especially in the absence of any -explanation made under oath as to why they were not called. - - -XLI - -Defendant requests your Honor to charge that if the jury acquit the -defendant on the ground of insanity, in that event the jury should specify -in its verdict that it acquits him on the ground of insanity. - - -XLII - -Defendant requests your Honor to charge that if the jury acquit the -defendant upon the ground of insanity, it will become the duty of the -Court to order him committed to a State Asylum. - - -XLIII - -Defendant requests your Honor to charge that if the jury acquit the -defendant on the ground of insanity, in this case such insanity will mean -imbecility, and that as imbecility cannot be cured, it will become the -duty of the Court to order him committed to a State Asylum for the rest of -his actual life. - - -XLIV - -Defendant requests your Honor to charge the jury that the denial of the -several motions made by defendant's counsel throughout the trial, and the -rulings of the Court upon objections, and refusals by the Court to charge -as requested, are not to be taken as any expression of opinion on the part -of the Court upon the facts of this case, but are only rulings upon the -law, about which the jury has nothing to do. - -NOTE. Requests XXIV, XXV, XXVII, and XXVIII, the Court refused to charge. - - - - - -INDEX - - - Abstract ideas, lack of, in morons, 98. - - Actions after crime, Gianini, 25, 27. - Pennington, 50-52. - Tronson, 76-78. - - Alcoholism, 110. - - - Barr, Dr. Martin W., statement of, 86. - - Beecher, Miss, annoyed by Gianini, 23. - - Binet tests, and school experience, 35, 38, 54. - use of, in Gianini case, 32-35. - in Pennington case, 53. - in Tronson case, 80. - - - Capital punishment, 101. - - Cause of Gianini's condition, 39-41. - - Causes of feeble-mindedness, 39. - - "Charity" in Binet tests, 34. - - Children, testimony of, 90. - actions of, 94. - suggestibility of, 63. - - Code quoted, 128. - - Colonization, 107. - - Confession, Gianini, 4, 9, 10. - Pennington, 44, 53. - Tronson, 67-80. - characteristic of imbeciles, 16, 29. - childishness of Pennington's, 55, 56. - not necessarily true, 17. - why Gianini made a, 15. - - Confessions compared, 83, 90-93. - - Courtroom, conduct in, 30, 67, 92. - - Coward, the imbecile, 23. - - Cretinism, 40. - - Crime, details of, Gianini, 122, 132. - Pennington, 47. - Tronson, 74. - - Criminal imbeciles, what should be done with, 102. - - Criminals, 50 per cent feeble-minded, 106. - - - Defense in case of, Gianini, 2, 5. - Pennington, 43. - Tronson, 66. - - Delinquencies, previous, of Gianini, 7, 37, 115, 116. - of Tronson, 68, 69, 82. - - Display, love of, 29. - - - Experts, qualifications of, 85. - - - Feeble-mindedness, causes of, 39, 106. - may be exterminated, 108. - - Feeble-mindedness in family, Gianini, 40. - Pennington, 87. - - Finger prints, 26. - - - Gianini, Jean, case of, 1-41. - actions after the deed, 25, 27. - attitude of Miss Beecher toward, 7, 119. - disregards counsel's warning, 30. - evidences of pride in deed, 16-19, 29, 123. - facts as established by testimony, 3. - incidents in life of, 113-125. - indifferent to crime, 10, 29, 120, 125. - interest in stories of crime, 26, 118, 121, 123. - mentality of, 13. - mother of, 40, 109-112. - previous delinquencies of, 7, 37, 115, 116. - stories about, 31, 113. - teased little children, 32, 116, 119. - threats made by, 121, 125, 131. - - Great White Way, 117. - - - Hypothetical question, defense, 109-126. - prosecution, 131-136. - - - Idiot, defined, 12. - - Imbecile, career of an, 54. - - Imbecility defined, 11. - not curable, 102. - - Imbecility, defense of, Gianini, 2, 5. - Pennington, 43. - Tronson, 66, 80. - - Imprisonment for life, 89, 101, 104. - - Indian, Gianini plays, 23. - - Insanity in relation to crime, 102. - - Instinct to kill, 105. - - Institution for feeble-minded, the logical place, 104. - - Intelligence, tests of, admitted into court, 2, 32-35, 53, 80. - - Interest in crime, Gianini's, 26, 118, 121, 123. - - - Jail, attitude in, Gianini, 30; - Pennington, 55. - examined in, Gianini, 29; - Pennington, 53, 56. - - Jealousy of March, 53. - - - Liberty of defendant not desired, 88, 103. - - - McIntyre, John F., 103. - - March, convicted, 43. - convicted upon Pennington's testimony, 90. - Pennington's relation to, 55, 56, 64. - - Masturbation, 117. - - Melancholia, 110-112. - - Mental defectiveness, inherited, 39, 106. - recognized early, 105. - - Mentality of, Gianini, 13. - Pennington, 53. - Tronson, 66. - - Money as motive, 57. - - Moron, defined, 11. - abstract ideas lacking in, 98. - - Mother of Gianini, 40, 109-113. - - Motive, Gianini's, 4, 20-25. - March's, 53. - Pennington's, 53, 56-60. - Tronson's, 76, 80. - - - Pennington, Roland, case of, 42-64. - actions after the deed, 52-53. - conduct at trial, 92. - confession, 44-53. - disregards lawyer's caution, 55. - mentality of, 53. - relation to March, 55, 56, 64. - testimony against March, 43, 90, 92. - trial, 43. - - Preparations for crime, Gianini, 6. - Pennington, 47. - Tronson, 70. - - Prevention, 82, 87, 104-108. - - Propagation, prevention of, 106-108. - - Psychologists, testimony of, 32, 53, 66. - - Punishment for criminal imbeciles, 88, 100-108. - - - Quality of an act, meaning of, 96. - - - St. Vincent's School, 7, 116. - - School, failure in, sign of mental defect, 37. - Gianini case, 35-37, 124. - Pennington case, 54. - Tronson case, 66. - - Segregation, 107. - - Sexual theory of Gianini's crime, 20. - - Society, duty of, 82. - protection for, 100. - - Speech development retarded, 113. - - State prison for the imbecile manslayer, 89, 104. - - Sterilization, 107. - - Stories about Gianini, - "Indian," 113. - "Soup and safety," 31. - "Strap oil," 32. - teased little children, 32, 113, 116, 119. - "Thief," 114. - - Suggestion, discussed, 61-63. - Pennington, victim of, 56-64. - - Superintendents as specialists, 88. - - - Testimony of, children, 90. - experts, 85. - Pennington against March, 43, 90, 92. - psychologists, 32, 53, 66. - witnesses, 3-8, 18, 31, 35-37. - - Trial, Gianini, 1, 30, 31. - Pennington, 43, 92. - Tronson, 66, 67. - - Tronson, Fred, case of, 65-82. - actions after the deed, 76-78. - confession of, 76-80. - mentality of, 66. - previous delinquencies of, 68, 69, 82. - - Types considered, of imbecility, 83. - of feeble-mindedness, 12-14. - - - Verdict, Gianini case, 1, 2. - Pennington case, 43. - Tronson case, 66. - - - Witnesses, children as, 90. - - Wrench asked about, 7. - - -Printed in the United States of America. - - - - -FOOTNOTES: - -[1] See prosecution's hypothetical question--Appendix, pp. 131-138. - -[2] See Gianini Case, Defendant's Request to Charge, Nos. XLII, XLIII, -Appendix, p. 153. - -[3] For statement see p. 9. - - - - - - -End of Project Gutenberg's The Criminal Imbecile, by Henry Herbert Goddard - -*** END OF THIS PROJECT GUTENBERG EBOOK THE CRIMINAL IMBECILE *** - -***** This file should be named 43064.txt or 43064.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/4/3/0/6/43064/ - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive.) - - -Updated editions will replace the previous one--the old editions -will be renamed. - -Creating the works from public domain print editions means that no -one owns a United States copyright in these works, so the Foundation -(and you!) can copy and distribute it in the United States without -permission and without paying copyright royalties. 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