The star witness for the prosecution to prove that the instrument produced in the police court was the Bott violin was August M. Gemunder, and his testimony upon the trial before Recorder Goff is worthy of careful examination, since the jury considered it of great importance in reaching a verdict, even requesting that it should be re-read to them some hours after retiring to deliberate. Gemunder testified, in substance, that he belonged to a family which had been making violins for three generations and had himself been making them for twenty years, that he was familiar with Bott's Stradivarius, having seen it three times, and that he firmly believed a large part of the violin produced before the magistrate was the missing Bott—certainly the back and scroll. Moreover, he was able to describe the markings of the Bott violin even to the label inside it. It should be mentioned, however, that in the magistrate's court he had been called only to describe the Bott violin and not to identify the one produced as the Bott itself. He further swore that the violin now offered by the defense on the trial was not the one in evidence before the magistrate, but was one which he had sold some years before to one Charles Palm.
The defense, on the other hand, called among its witnesses John P. Frederick, a violin maker, who testified that he was familiar with the Bott Strad. and had seen it in 1873 at Bott's house, Grenecher Castle, in Germany; that he had repaired it in this country in 1885; that the instrument in court was not a Strad. nor even a good imitation of one, and, of course, was not the "Duke of Cambridge," but that it was the identical instrument produced before the magistrate, and one which he recognized as having been sent him for repair by Charles Palm in 1885.
Thus both sides agreed that the fiddle now offered in evidence was a bogus Strad. once belonging to a man named Palm, the only element of conflict being as to whether or not the violin which Flechter had offered for sale was the Palm instrument, or, in fact, Bott's famous "Duke of Cambridge."
All this technical testimony about violins and violin structure naturally bored the jury almost to extinction, and even the bitter personal encounters of counsel did not serve to relieve the dreariness of the trial. One oasis of humor in this desert of dry evidence gave them passing refreshment, when a picturesque witness for the defense, an instrument maker named Franz Bruckner, from South Germany, having been asked if the violin shown him was a Strad., replied, with a grunt of disgust: "Ach Himmel, nein!" Being then invited to describe all the characteristics of genuine Stradivarius workmanship, he tore his hair and, with an expression of utter hopelessness upon his wrinkled face, exclaimed despairingly to the interpreter:
"Doctor, if I gave you lessons in this every day for three weeks you would know no more than you do now!"—an answer which was probably true, and equally so of the jury who were shouldered with the almost impossible task of determining from this mass of conflicting opinion just where the truth really lay.
The chief witness for the defense was John J. Eller, who testified that he had been a musician for thirty years and a collector of violins; that the violin in court was the same one produced before the magistrate, and was not Bott's, but his own; that he had first seen it in the possession of Charles Palm in 1886 in his house in Eighth Street and St. Mark's Place, New York City, had borrowed it from Palm and played on it for two months in Seabright, and had finally purchased it from Palm in 1891, and continued to play in concerts upon it, until having been loaned by him to a music teacher named Perotti, in Twenty-third Street, it was stolen by the latter and sold to Flechter.
It appeared that Eller had at once brought suit against Flechter for the possession of the instrument, which suit, he asserted, he was still pressing in the courts, and he now declared that the violin was in exactly the same condition in every respect as when produced in the police court, although it had been changed in some respects since it had been stolen. It had originally been made of baked wood by one Dedier Nicholas (an instrument maker of the first half of the nineteenth century), and stamped with the maker's name, but this inscription was now covered by a Stradivarius label. Eller scornfully pointed out that no Strad. had ever been made of baked wood, and showed the jury certain pegs used by no other maker than Nicholas, and certain marks worn upon the instrument by his, the witness', own playing. He also exhibited the check with which he had paid for it.
In support of this evidence Charles Palm himself was called by the defense and identified the violin as one which he had bought some twelve years before for fifteen or twenty dollars and later sold to Eller. Upon the question of the identity of the instrument then lying before the jury this evidence was conclusive, but, of course, it did not satisfy the jury as to whether Flechter had tried to sell the Palm violin or Bott's violin to Durden. Unfortunately Eller's evidence threw a side light on the defence without which the trial might well have resulted in an acquittal.
Eller had sworn that he was still vigorously endeavoring to get the Palm violin back from Flechter. As contradicting him in this respect, and as tending to show that the suit had not only been compromised but that he and Flechter were engaged in trying to put off the Palm violin as a genuine Stradivarius and share the profit of the fraud, the prosecution introduced the following letter from the witness to his lawyer:
CLIFTON HOUSE, CHICAGO, ILLINOIS.
March 23, 1896.
Dear Counsellor: Received your letter just now. I have been expecting Mr. Flechter's lawyer would settle with you; he got nine hundred dollars for the violin and Mr. Meyer arranged with myself for the half, four hundred and fifty dollars, which he proposed himself and have been expecting a settlement on their part long ago. I have assisted Mr. Palmer, his able lawyer, with the best of my ability, and have covered Mr. Flechter's shortcomings of faking the violin to a Strad.
Yours most sincerely,
Metropolitan Opera Co., Chicago, Ill.
From this letter it was fairly inferable that although the defendant might be innocent of the precise crime with which he was charged, he was, nevertheless, upon his own evidence, guilty of having "faked" a cheap Nicholas violin into a Strad., and of having offered it for sale for the exorbitant price of five thousand dollars. This luckless piece of evidence undoubtedly influenced the jury to convict him.
It will be recalled that ten witnesses for the prosecution had sworn that the violin offered in evidence at the trial was not the one produced in the police court, as against the defendant's five who asserted that it was.
The testimony was all highly technical and confusing, and the jury probably relied more upon their general impressions of the credibility of the witnesses than upon anything else. It is likely that most of the testimony, on both sides, in regard to the identity of the violin was honestly given, for the question was one upon which a genuine divergence of opinion was easily possible.
Eller's letter from Chicago so affected the jury that they disregarded his testimony and reverted to that of August Gemunder, to whose evidence attention has already been called, and who swore that it was "The Duke of Cambridge" which Flechter had tried to sell to Durden. Alas for the fallibility of even the most honest of witnesses!
The case was ably argued by both sides, and every phase of this curious tangle of evidence given its due consideration. The defense very properly laid stress upon the fact that it would have been a ridiculous performance for Flechter to write the "Cave Dweller" letter and state therein that he was "a violin dealer or maker," thus pointing, unmistakably, to himself, and to further state that for one in his position to dispose of it would be difficult and dangerous. The only explanation for the "Cave Dweller" letter which they could offer, however, was that some one interested in procuring Flechter's downfall had caused it to be sent for that purpose. This might either be a business rival or some one connected with the prosecution.
While Palmer was summing up for the defense he noticed Assistant District Attorney Allen smiling and dramatically turning upon him, he shouted: "This is no laughing matter, Colonel Allen. It is a very serious matter whether this man is to be allowed to-night to go home and kiss his little ones, or whether he is to be cast into jail because you used your brains to concoct a theory against him."
Another consideration, which seemed deserving of weight, was that if Flechter did steal "The Duke of Cambridge" it would have been a piece of incredible folly and carelessness upon his part to leave it in such an exposed place as the safe of his store, where it could be found by the police or shown by the office-boy to any one who called.
Yet the positive identification of August Gemunder and the fatal disclosures of Eller, coupled with the vehement insistence of the prosecution, led the jury to resolve what doubt they had in the case against the prisoner, and, after deliberating eight or ten hours and being out all night, they returned a verdict of guilty. Flechter broke down and declared bitterly that he was the victim of a conspiracy upon the part of his enemies, assisted by a too credulous prosecuting attorney. Everybody admitted that it was an extraordinary case, but the press was consistent in its clamor against Flechter, and opinion generally was that he had been rightly convicted. On May 22nd he was sentenced to the penitentiary for twelve months, but, after being incarcerated in the Tombs for three weeks, he secured a certificate of reasonable doubt and a stay until his conviction could be reviewed on appeal. Then he gave bail and was released. But he had been in jail! Flechter will never forget that! And, for the time being at least, his reputation was gone, his family disgraced, and his business ruined.
A calm reading of the record of the trial suggests that the case abounded in doubts more or less reasonable, and that the Court might well have taken it from the jury on that account. But a printed page of questions and answers carries with it no more than a suggestion of the value of testimony the real significance of which lies in the manner in which it is given, the tone of the voice and the flash of the eye.
Once again Flechter sat at his desk in the window behind the great gilded fiddle. To him, as to its owner, the great Stradivarius had brought only sorrow. But for him the world had no pity. Surely the strains of this wonderful instrument must have had a "dying fall" even when played by the loving hand of old Jean Bott.
At last, after several years, in 1899, the case came up in the Appellate Division of the Supreme Court. Flechter had been led to believe that his conviction would undoubtedly be reversed and a new trial ordered, which would be tantamount to an acquittal, for it was hardly likely in such an event that a second trial would be considered advisable upon the same evidence. But to his great disappointment his conviction was sustained by a divided court, in which only two of the five justices voted for a new trial. Again Fortune had averted her face. If only one more judge had thought the evidence insufficient! The great gilded fiddle seemed to Flechter an omen of misfortune. Once more he gave bail, this time in five thousand dollars, and was set at liberty pending his appeal to the highest court in the State. Once more he took his seat in his office and tried to carry on his business.
But time had dragged on. People had forgotten all about Flechter and the lost Stradivarius, and when his conviction was affirmed little notice was taken of the fact. It was generally assumed that having been sentenced he was in jail.
Then something happened which once more dragged Flechter into the limelight. Editors rushed to their files and dusted the cobwebs off the issues containing the accounts of the trial. The sign of the gilded fiddle became the daily centre of a throng of excited musicians, lawyers and reporters. The lost Stradivarius—the great "Duke of Cambridge"—the nemesis of Bott and of Flechter—was found—by Flechter himself, as he claimed, on August 17, 1900. According to the dealer and his witnesses the amazing discovery occurred in this wise. A violin maker named Joseph Farr, who at one time had worked for Flechter and had testified in his behalf at the trial (to the effect that the instrument produced in the police court was not Bott's Stradivarius) saw by chance a very fine violin in the possession of a family named Springer in Brooklyn, and notified Flechter of the fact. The latter, who was always ready to purchase choice violins, after vainly trying for a long time to induce the Springers to bring it to New York, called with Farr upon Mrs. Springer and asked to examine it. To his utter astonishment she produced for his inspection Bott's long-lost Stradivarius. Hardly able to control his excitement Flechter immediately returned to New York and reported the discovery to the police, who instantly began a thorough examination of the circumstances surrounding its discovery.
The District Attorney's office and the Detective Bureau were at first highly suspicious of this opportune discovery on the part of a convicted felon of the precise evidence necessary to clear him, but it was soon demonstrated to their pretty general satisfaction that the famous Stradivarius had in fact been pawned in the shop of one Benjamin Fox on the very day and within an hour of the theft, together with its case and two bows, for the insignificant sum of four dollars. After the legal period of redemption had expired it had been put up at auction and bid in by the pawnbroker for a small advance over the sum for which it had been pawned. It lay exposed for purchase on Fox's shelf for some months, until, in December, 1895, a tailor named James Dooly visited the shop to redeem a silver watch. Being, at the same time, in funds, and able to satisfy his taste as a virtuoso, he felt the need of and bought a violin for ten dollars, but, Fox urging upon him the desirability of getting a good one while he was about it, was finally persuaded to purchase the Bott violin for twenty dollars in its stead. Dooly took it home, played upon it as the spirit moved, and whenever in need of ready money brought it back to Fox as security, always redeeming it in time to prevent its sale. One day, being at Mrs. Springer's, where he was accustomed to purchase tailor trimmings, he offered it to her for sale, and, as her son was taking violin lessons, induced her to buy it for thirty dollars. And in the house of the Springers it had quietly remained ever since, while lawyers and prosecutors wrangled and thundered and witnesses swore positively to the truth, the whole truth and nothing but the truth, to prove that Flechter stole the violin and tried to sell it to Durden.
On these facts, which did not seem to admit of contradiction, Recorder Goff ordered an oral examination of all the witnesses, the hearing of which, sandwiched in between the current trials in his court, dragged along for months, but which finally resulted in establishing to the Court's satisfaction that the violin discovered in the possession of the Springers was the genuine "Duke of Cambridge," and that it could not have been in Flechter's possession at the time he was arrested.
On July 7, 1902, eight years after Bott's death and the arrest and indictment of Flechter for the theft of the violin, a picturesque group assembled in the General Sessions. There was Flechter and his lawyer, Mrs. Springer and her son, the attorneys for the prosecution, and lastly old Mrs. Bott. The seals of the case were broken and the violin identified by the widow as that of her husband. The Springers waived all claim to the violin, and the Court dismissed the indictment against the defendant and ordered the Stradivarius to be delivered to Mrs. Bott, with these words:
"Mrs. Bott, it affords very great pleasure to the Court to give the violin to you. You have suffered many years of sorrow and trouble in regard to it."
"Eight years," sighed the old lady, clasping the violin in her arms.
"I wish you a great deal of pleasure in its possession," continued the Recorder.
Thus ended, as a matter of record, the case of The People against Flechter. For eight years the violin dealer and his family had endured the agony of disgrace, he had spent a fortune in his defense, and had nevertheless been convicted of a crime of which he was at last proved innocent.
Yet, there are those who, when the case is mentioned, shake their heads wisely, as if to say that the whole story of the lost Stradivarius has never been told.
The Last of the Wire-Tappers
"Sir," replied the knave unabashed, "I am one of those who do make a living by their wits."
John Felix, a dealer in automatic musical instruments in New York City, was swindled out of $50,000 on February 2d, 1905, by what is commonly known as the "wire-tapping" game. During the previous August a man calling himself by the name of Nelson had hired Room 46, in a building at 27 East Twenty-second Street, as a school for "wireless telegraphy." Later on he had installed over a dozen deal tables, each fitted with a complete set of ordinary telegraph instruments and connected with wires which, while apparently passing out of the windows, in reality plunged behind a desk into a small "dry" battery. Each table was fitted with a shaded electric drop-light, and the room was furnished with the ordinary paraphernalia of a telegraph office. The janitor never observed any activity in the "school." There seemed to be no pupils, and no one haunted the place except a short, ill-favored person who appeared monthly and paid the rent.
On the afternoon of February 1st, 1905, Mr. Felix was called to the telephone of his store and asked to make an appointment later in the afternoon, with a gentleman named Nelson who desired to submit to him a business proposition. Fifteen minutes afterward Mr. Nelson arrived in person and introduced himself as having met Felix at "Lou" Ludlam's gambling house. He then produced a copy of the Evening Telegram which contained an article to the effect that the Western Union Telegraph Company was about to resume its "pool-room service,"—that is to say, to supply the pool rooms with the telegraphic returns of the various horse-races being run in different parts of the United States. The paper also contained, in connection with this item of news, a photograph which might, by a stretch of the imagination, have been taken to resemble Nelson himself.
Mr. Felix, who was a German gentleman of French sympathies, married to an American lady, had recently returned to America after a ten years' sojourn in Europe. He had had an extensive commercial career, was possessed of a considerable fortune, and had at length determined to settle in New York, where he could invest his money to advantage and at the same time conduct a conservative and harmonious business in musical instruments. Like the Teutons of old, dwelling among the forests of the Elbe, Mr. Felix knew the fascination of games of chance and he had heard the merry song of the wheel at both Hambourg and Monte Carlo. In Europe the pleasures of the gaming table had been comparatively inexpensive, but in New York for some unknown reason the fickle goddess had not favored him and he had lost upward of $51,000. "Zu viel!" as he himself expressed it. Being of a philosophic disposition, however, he had pocketed his losses and contented himself with the consoling thought that, whereas he might have lost all, he had in fact lost only a part. It might well have been that had not The Tempter appeared in the person of his afternoon visitor, he would have remained in status quo for the rest of his natural life. In the sunny window of his musical store, surrounded by zitherns, auto-harps, dulcimers, psalteries, sackbuts, and other instrument's of melody, the advent of Nelson produced the effect of a sudden and unexpected discord. Felix distrusted him from the very first.
The "proposition" was simplicity itself. It appeared that Mr. Nelson was in the employ of the Western Union Telegraph Company, which had just opened a branch office for racing news at 27 East Twenty-second Street. This branch was under the superintendence of an old associate and intimate friend of Nelson's by the name of McPherson. Assuming that they could find some one with the requisite amount of cash, they could all make their everlasting fortunes by simply having McPherson withhold the news of some race from the pool rooms long enough to allow one of the others to place a large bet upon some horse which had in fact already won and was resting comfortably in the stable. Felix grasped the idea instantly. At the same time he had his suspicions of his visitor. It seemed peculiar that he, an inconspicuous citizen who had already lost $50,000 in gambling houses, should be selected as the recipient of such a momentous opportunity. Moreover, he knew very well that gentlemen in gambling houses were never introduced at all. He thought he detected the odor of a rodent. He naively inquired why, if all these things were so, Nelson and his friend were not already yet millionaires two or three times? The answer was at once forthcoming that they had been, but also had been robbed—unmercifully robbed, by one in whom they had had confidence and to whom they had entrusted their money.
"And now we are poor, penniless clerks!" sighed Nelson, "and if we should offer to make a big bet ourselves, the gamblers would be suspicious and probably refuse to place it."
"I think this looks like a schvindling game," said Felix shrewdly. So it did; so it was.
By and by Felix put on his hat and, escorted by Nelson, paid a visit to the "branch office" at 27 East Twenty-second Street. Where once solitude had reigned supreme and the spider had spun his web amid the fast-gathering dust, all was now tumultuous activity. Fifteen busy operators in eye shades and shirt sleeves took the news hot from the humming wires and clicked it off to the waiting pool rooms.
"Scarecrow wins by a neck!" cried one, "Blackbird second!"
"Make the odds 5 to 3," shouted a short, ill-favored man, who sat at a desk puffing a large black cigar. The place buzzed like a beehive and ticked like a clockmaker's. It had an atmosphere of breathless excitement all its own. Felix watched and marvelled, wondering if dreams came true.
The short, ill-favored man strolled over and condescended to make Mr. Felix's acquaintance. An hour later the three of them were closeted among the zitherns. At the same moment the fifteen operators were ranged in a line in front, of a neighboring bar, their elbows simultaneously elevated at an angle of forty-five degrees.
Felix still had lingering doubts. Hadn't Mr. McPherson some little paper—a letter, a bill, a receipt or a check, to show that he was really in the employ of the Western Union? No, said "Mac," but he had something better—the badge which he had received as the fastest operator among the company's employees. Felix wanted to see it, but "Mac" explained that it was locked up in the vault at the Farmers' Loan and Trust Co. To Felix this had a safe sound—"Farmers' Trust Co." Then matters began to move rapidly. It was arranged that Felix should go down in the morning and get $50,000 from his bankers, Seligman and Meyer. After that he was to meet Nelson at the store and go with him to the pool room where the big financiers played their money. McPherson was to remain at the "office" and telephone them the results of the races in advance. By nightfall they would be worth half a million.
"I hope you have a good large safe," remarked Nelson, tentatively. The three conspirators parted with mutual expressions of confidence and esteem.
Next morning Mr. Felix went to his bankers and procured $50,000 in five ten-thousand-dollar bills. The day passed very slowly. There was not even a flurry in zitherns. He waited impatiently for Nelson who was to come at five o'clock. At last Nelson arrived and they hurried to the Fifth Avenue Hotel where the coup was to take place.
And now another marvel. Wassermann Brothers' stock-brokering office, which closes at three hummed just as the "office" had done the evening before—and with the very same bees, although Felix did not recognize them. It was crowded with men who struggled violently with one another in their eagerness to force their bets into the hands of a benevolent-looking person, who, Felix was informed, was the "trusted cashier" of the establishment. And the sums were so large that even Felix gasped.
"Make that $40,000 on Coco!" cried a bald-headed "capper."
"Mr. Gates wants to double his bet on Jackstone,—make it $80,000!" shrieked another.
"Gentlemen! Gentlemen!" begged the "trusted cashier," "not quite so fast, if you please. One at a time."
"Sixty thousand on Hesper—for a place!" bawled one addressed as "Mr. Keene," while Messrs. "Ryan," "Whitney," "Belmont," "Sullivan," "McCarren," and "Murphy" all made handsome wagers.
From time to time a sporty-looking man standing beside a ticker, shouted the odds and read off the returns. Felix heard with straining ears:
"Baby leads at the quarter."
"Susan is gaining!"
"They're on the stretch!"
"Satan wins by a nose—Peter second."
There was a deafening uproar, hats were tossed ceilingward, and great wads of money were passed out by the "trusted cashier" to indifferent millionaires. Felix wanted to rush in and bet at once on something—if he waited it might be too late. Was it necessary to be introduced to the cashier? No? Would he take the bet? All right, but—
At that moment a page elbowed his way among the money calling plaintively for "Felix! Mr. Felix." Shrinking at the thought of such publicity in such distinguished company, Felix caught the boy's arm and learned that he was wanted at the telephone booth in the hotel.
"It must be 'Mac,'" said Nelson. "Now don't make any mistake!" Felix promised to use the utmost care.
It was "Mac."
"Is this Mr. Felix?—Yes? Well, be very careful now. I am going to give you the result of the third race which has already been run. I will hold back the news three minutes. This is merely to see if everything is working right. Don't make any bet. If I give you the winners correctly, you can put your money on the fourth race. The horse that won the last is Col. Starbottle—Don Juan is second. Now just step back and see if I am right."
Felix rushed back to the pool room. As he entered the man at the tape was calling out that "they" were off. In due course "they" reached the quarter and then the half. A terrific struggle was in progress between Col. Starbottle and Don Juan. First one was ahead and then the other. Finally they came thundering down to the stretch, Col. Starbottle winning by a neck. "Gates" won $90,000, and several others pocketed wads running anywhere from $20,000 to $60,000.
Felix hurried back to the telephone. "Mac" was at the other end.
"Now write this down," admonished McPherson; "we can't afford to have any mistake. Old Stone has just won the fourth race, with Calvert second. Play Old Stone to win at 5 to 1. We shall make $250,000—and Old Stone is safe in the stable all the time and his jockey is smoking a cigarette on the club house veranda. Good luck, old man."
Felix had some difficulty in getting near the "trusted cashier" so many financiers were betting on Calvert. Felix smiled to himself. He'd show them a thing or two.
Finally he managed to push his envelope containing the five ten-thousand-dollar bills into the "trusted cashier's" hand. The latter marked it "Old Stone, 5 to 1 to win!" and thrust it into his pocket. Then "Whitney" or somebody bet $70,000 on Calvert.
"They're off!" shouted the man at the tape.
How he lived while they tore around the course Felix never knew. Neck and neck Old Stone and Calvert passed the quarter, the half, and the three-quarter post, and with the crowd yelling like demons came hurtling down the stretch.
"Old Stone wins!" cried the "booster" at the tape in a voice husky with excitement. "Calvert a close second!" Felix nearly fainted. His head swam. He had won a quarter of a million. Then the voice of the "booster" made itself audible above the confusion.
"What! A mistake? Not possible!—Yes. Owing to some confusion at the finish, both jockies wearing the same colors, the official returns now read Calvert first; Old Stone second."
Among the zitherns Felix sat and wondered if he had been schvindled. He had not returned to Wassermann Brothers. Had he done so he would have found it empty five minutes after he had lost his money. The millionaires were already streaming hilariously into Sharkey's. "Gates" pledged "Belmont" and "Keene" pledged "Whitney." Each had earned five dollars by the sweat of his brow. The glorious army of wire-tappers had won another victory and their generals had consummated a campaign of months. Expenses (roughly), $600. Receipts, $50,000. Net profits, $48,400. Share of each, $16,133.
A day or two later Felix wandered down to Police Headquarters, and in the Rogue's Gallery identified the photograph of Nelson, whom he then discovered to be none other than William Crane, alias John Lawson, alias John Larsen, a well-known "wire-tapper," arrested some dozen times within a year or two for similar offences. McPherson turned out to be Christopher Tracy, alias Charles J. Tracy, alias Charles Tompkins, alias Topping, alias Toppin, etc., etc., arrested some eight or ten times for "wire-tapping." The "trusted cashier" materialized in the form of one Wyatt, alias, Fred Williams, etc., a "wire-tapper" and pal of "Chappie" Moran and "Larry" Summerfield. Detective Sergeants Fogarty and Mundy were at once detailed upon the case and arrested within a short time both Nelson and McPherson. The "trusted cashier" who had pocketed Felix's $50,000 has never been caught. It is said that he is running a first-class hostelry in a Western city. But that is another story.
When acting Inspector O'Brien ordered McPherson brought into his private room, the latter unhesitatingly admitted that the three of them had "trimmed" Felix of his $50,000, exactly as the latter had alleged. He stated that Wyatt (alias Williams) was the one who had taken in the money, that it was still in his possession, and still intact in its original form. He denied, however, any knowledge of Wyatt's whereabouts.
The reason for this indifference became apparent when the two prisoners were arraigned in the magistrate's court, and their counsel demanded their instant discharge on the ground that they had committed no crime for which they could be prosecuted. He cited an old New York case, McCord vs. The People, which seemed in a general way to sustain his contention, and which had been followed by another and much more recent decision. The People vs. Livingston. The first of these cases had gone to the Court of Appeals, and the general doctrine had been annunciated that where a person parts with his money for an unlawful or dishonest purpose, even though he is tricked into so doing by false pretences, a prosecution for the crime of larceny cannot be maintained.
[Footnote 2: 46 New York 470.]
[Footnote 3: 47 App. Div. 283.]
In the McCord case, the defendant had falsely pretended to the complainant, a man named Miller, that he was a police officer and held a warrant for his arrest. By these means he had induced Miller to give him a gold watch and a diamond ring as the price of his liberty. The conviction in this case was reversed on the ground that Miller parted with his property for an unlawful purpose; but there was a very strong dissenting opinion from Mr. Justice Peckham, now a member of the bench of the Supreme Court of the United States.
In the second case, that of Livingston, the complainant had been defrauded out of $500 by means of the "green goods" game; but this conviction was reversed by the Appellate Division of the Second Department on the authority of the McCord case. The opinion in this case was written by Mr. justice Cullen, now Chief Judge of the New York Court of Appeals, who says in conclusion:
"We very much regret being compelled to reverse this conviction. Even if the prosecutor intended to deal in counterfeit money, that is no reason why the appellant should go unwhipped of justice. We venture to suggest that it might be Well for the Legislature to alter the rule laid down in McCord vs. People."
Well might the judges regret being compelled to set a rogue at liberty simply because he had been ingenious enough to invent a fraud (very likely with the assistance of a shyster lawyer) which involved the additional turpitude of seducing another into a criminal conspiracy. Livingston was turned loose upon the community in spite of the fact that he had swindled a man out of $500 because he had incidentally led the latter to believe that in return he was to receive counterfeit money or "green goods," which might be put into circulation. Yet, because some years before, the Judges of the Court of Appeals had, in the McCord matter, adopted the rule followed in civil cases, to wit that as the complaining witness was himself in fault and did not come into court with clean hands he could have no standing before them, the Appellate Division in the next case felt obliged to follow them and to rule tantamount to saying that two wrongs could make a right and two knaves one honest man. It may seem a trifle unfair to put it in just this way, but when one realizes the iniquity of such a doctrine as applied to criminal cases, it is hard to speak softly. Thus the broad and general doctrine seemed to be established that so long as a thief could induce his victim to believe that it was to his advantage to enter into a dishonest transaction, he might defraud him to any extent in his power. Immediately there sprang into being hordes of swindlers, who, aided by adroit shyster lawyers, invented all sorts of schemes which involved some sort of dishonesty upon the part of the person to be defrauded. The "wire-tappers," of whom "Larry" Summerfield was the Napoleon, the "gold-brick" and "green-goods" men, and the "sick engineers" flocked to New York, which, under the unwitting protection of the Court of Appeals, became a veritable Mecca for persons of their ilk.
To readers unfamiliar with the cast of mind of professional criminals it will be almost impossible to appreciate with what bold insouciance these vultures now hovered over the metropolitan barnyard. Had not the Court of Appeals itself recognized their profession? They had nothing to fear. The law was on their side. They walked the streets flaunting their immunity in the very face of the police. "Wire-tapping" became an industry, a legalized industry with which the authorities might interfere at their peril. Indeed, there is one instance in which a "wire-tapper" successfully prosecuted his victim (after he had trimmed him) upon a charge of grand larceny arising out of the same transaction. One crook bred another every time he made a victim, and the disease of crime, the most infectious of all distempers, ate its way unchecked into the body politic. Broadway was thronged by a prosperous gentry, the aristocracy and elite of knavery, who dressed resplendently, flourished like the green bay-tree, and spent their (or rather their victims') money with the lavish hand of one of Dumas's gentlemen.
But the evil did not stop there. Seeing that their brothers prospered in New York, and neither being learned in the law nor gifted with the power of nice discrimination between rogueries, all the other knaves in the country took it for granted that they had at last found the Elysian fields and came trooping here by hundreds to ply their various trades. The McCord case stood out like a cabalistic sign upon a gate-post telling all the rascals who passed that way that the city was full of honest folk waiting to be turned into rogues and "trimmed."
"And presently we did pass a narrow lane, and at the mouth espied a written stone, telling beggars by a word like a wee pitchfork to go that way."
The tip went abroad that the city was "good graft" for everybody, and in the train of the "wire-tappers" thronged the "flimflammer," "confidence man," "booster," "capper" and every sort of affiliated crook, recalling Charles Reade's account in "The Cloister and the Hearth" of Gerard in Lorraine among their kin of another period:
With them and all they had, 'twas lightly come and lightly go; and when we left them my master said to me, "This is thy first lesson, but to-night we shall be at Hansburgh. Come with me to the 'rotboss' there, and I'll show thee all our folk and their lays, and especially 'the lossners,' 'the dutzers,' 'the schleppers,' 'the gickisses,' 'the schwanfelders,' whom in England we call 'shivering Jemmies,' 'the suentregers,' 'the schwiegers,' 'the joners,' 'the sessel-degers,' 'the gennscherers,' in France 'marcandiers a rifodes,' 'the veranerins,' 'the stabulers,' with a few foreigners like ourselves, such as 'pietres,' 'francmitoux,' 'polissons,' 'malingreux,' 'traters,' 'rufflers,' 'whipjacks,' 'dommerars,' 'glymmerars,' 'jarkmen,' 'patricos,' 'swadders,' 'autem morts,' 'walking morts,'—" "Enow!" cried I, stopping him, "art as gleesome as the evil one a counting of his imps. I'll jot down in my tablet all these caitiffs and their accursed names: for knowledge is knowledge. But go among them alive or dead, that will I not with my good will."
And a large part of it was due simply to the fact that seven learned men upon seven comfortable chairs in the city of Albany had said, many years ago, that "neither the law or public policy designs the protection of rogues in their dealings with each other, or to insure fair dealing and truthfulness as between each other, in their dishonest practices."
The reason that the "wire-tapping" game was supposed to come within the scope of the McCord case was this: it deluded the victim into the belief that he was going to cheat the pool room by placing a bet upon a "sure thing." Secondarily it involved, as the dupe supposed, the theft or disclosure of messages which were being transmitted over the lines of a telegraph company—a misdemeanor. Hence, it was argued, the victim was as much a thief as the proposer of the scheme, had parted with his money for a dishonest purpose, did not come into court with "clean hands," and no prosecution could be sustained, no matter whether he had been led to give up his money by means of false pretences or not.
While "wire-tapping" differed technically from the precise frauds committed by McCord and Livingston, it nevertheless closely resembled those swindlers in general character and came clearly within the doctrine that the law was not designed to protect "rogues in their dealings with each other."
No genuine attempt had ever been made to prosecute one of these gentry until the catastrophe which deprived Felix of his $50,000. The "wire-tappers" rolled in money. Indeed, the fraternity were so liberal with their "rolls" that they became friendly with certain police officials and intimately affiliated with various politicians of influence, a friend of one of whom went on Summerfield's bond, when the latter was being prosecuted for the "sick-engineer" frauds to the extent of $30,000. They regularly went to Europe in the summer season and could be seen at all the race-courses and gambling resorts of the Continent. It is amusing to chronicle in this connection that just prior to McPherson's arrest—that is to say during the summer vacation of 1904—he crossed the Atlantic on the same steamer with an assistant district attorney of New York county, who failed to recognize his ship companion and found him an entertaining and agreeable comrade.
The trial came on before Judge Warren W. Foster in Part 3 of the General Sessions on February 27th, 1906. A special panel quickly supplied a jury, which, after hearing the evidence, returned in short order a verdict of guilty. As Judge Foster believed the McCord case to be still the law of the State, he, of his own motion, and with commendable independence, immediately arrested judgment. The People thereupon appealed, the Court of Appeals sustained Judge Foster, and the defendant was discharged. It is, however, satisfactory to record that the Legislature at its next session amended the penal code in such a way as to entirely deprive the wire-tappers and their kind of the erstwhile protection which they had enjoyed under the law.
The Franklin Syndicate
When Robert A. Ammon, a member of the New York bar, was convicted, after a long trial, on the 17th of June, 1903, of receiving stolen goods, he had, in the parlance of his class, been "due" for a long time. The stolen property in question was the sum of thirty thousand five hundred dollars in greenbacks, part of the loot of the notorious "Franklin Syndicate," devised and engineered by William F. Miller, who later became the catspaw of his legal adviser, the subject of this history.
Ammon stood at the bar and listened complacently to his sentence of not less than four years at hard labor in Sing Sing. A sneer curved his lips as, after nodding curtly to his lawyer, he turned to be led away by the court attendant. The fortune snatched from his client had procured for him the most adroit of counsel, the most exhaustive of trials. He knew that nothing had been left undone to enable him to evade the consequences of his crime, and he was cynically content.
For years "Bob" Ammon had been a familiar figure in the Wall Street district of New York. Although the legal adviser of swindlers and confidence men, he was a type of American whose energies, if turned in a less dubious direction, might well have brought him honorable distinction. Tall, strong as a bull, bluff, good-natured, reckless and of iron nerve, he would have given good account of himself as an Indian fighter or frontiersman. His fine presence, his great vitality, his coarse humor, his confidence and bravado, had won for him many friends of a certain kind and engendered a feeling among the public that somehow, although the associate and adviser of criminals, he was outside the law, to the circumventing of which his energies were directed. Unfortunately his experiences with the law had bred in him a contempt for it which ultimately caused his downfall.
"The reporters arc bothering you, are they?" he had said to Miller in his office. "Hang them! Send them to me. I'll talk to them!"
And talk to them he did. He could talk a police inspector or a city magistrate into a state of vacuous credulity, and needless to say he was to his clients as a god knowing both good and evil, as well as how to eschew the one and avoid the other. Miller hated, loathed and feared him, yet freely entrusted his liberty, and all he had risked his liberty to gain, to this strange and powerful personality which held him enthralled by the mere exercise of a physical superiority.
The "Franklin Syndicate" had collapsed amid the astonished outcries of its thousands of victims, on November 24th, 1899, when, under the advice and with the assistance of Ammon, its organizer, "520 per cent. Miller," had fled to Canada. It was nearly four years later, in June, 1903, that Ammon, arraigned at the bar of justice as a criminal, heard Assistant District Attorney Nott call William F. Miller, convict, to the stand to testify against him. A curious contrast they presented as they faced one another; the emaciated youth of twenty-five, the hand of Death already tightly fastened upon his meagre frame, coughing, hollow-cheeked, insignificant, flat-nosed, almost repulsive, who dragged himself to the witness chair, and the swaggering athlete who glared at him from the bar surrounded by his cordon of able counsel. As Ammon fixed his penetrating gaze upon his former client, Miller turned pale and dropped his eyes. Then the prosecutor, realizing the danger of letting the old hypnotic power return, even for an instant, quickly stepped between them. Miller raised his eyes and smiled, and those who heard knew that this miserable creature had been through the fire and come forth to speak true things.
The trial of Ammon involved practically the reproving of the case against Miller, for which the latter had been convicted and sentenced to ten years in State's prison, whence he now issued like one from the tomb to point the skeleton, incriminating finger at his betrayer. But the case began by the convict-witness testifying that the whole business was a miserable fraud from start to finish, carried on and guided by the advice of the defendant. He told how he, a mere boy of twenty-one, burdened with a sick wife and baby, unfitted by training or ability for any sort of lucrative employment, a hanger-on of bucket shops and, in his palmiest days, a speculator in tiny lots of feebly margined stocks, finding himself without means of support, conceived the alluring idea of soliciting funds for investment, promising enormous interest, and paying this interest out of the principal intrusted to him. For a time he preyed only upon his friends, claiming "inside information" of large "deals" and paying ten per cent. per week on the money received out of his latest deposits.
Surely the history of civilization is a history of credulity. Miller prospered. His earlier friend-customers who had hesitatingly taken his receipt for ten dollars, and thereafter had received one dollar every Monday morning, repeated the operation and returned in ever-increasing numbers. From having his office "in his hat," he took an upper room in a small two-story house at 144 Floyd Street, Brooklyn—an humble tenement, destined to be the scene of one of the most extraordinary exhibitions of man's cupidity and foolishness in modern times. At first he had tramped round, like a pedler, delivering the dividends himself and soliciting more, but soon he hired a boy. This was in February, 1899. Business increased. The golden flood began to appear in an attenuated but constant rivulet. He hired four more employees and the whole top floor of the house. The golden rivulet became a steady stream. From a "panhandler" he rolled in ready thousands. The future opened into magnificent auriferous distances. He began to call himself "The Franklin Syndicate," and to advertise that "the way to wealth is as plain as the road to the market." He copied the real brokers and scattered circulars and "weekly letters" over the country, exciting the rural mind in distant Manitoba and Louisiana.
There was an instantaneous response. His mail required the exclusive attention of several clerks. The stream of gold became a rushing torrent. Every Monday morning the Floyd Street house was crowded with depositors who drew their interest, added to it, deposited it again, and went upon their way rejoicing. Nobody was going to have to work any more. The out-of-town customers received checks for their interest drawn upon "The Franklin Syndicate," together with printed receipts for their deposits, all signed "William F. Miller," by means of a rubber stamp. No human hand could have signed them all without writer's cramp. The rubber stamp was Miller's official signature. Then with a mighty roar the torrent burst into a deluge. The Floyd Street quarters were besieged by a clamoring multitude fighting to see which of them could give up his money first, and there had to be a special delivery for Miller's mail. He rented the whole house and hired fifty clerks. You could deposit your money almost anywhere, from the parlor to the pantry, the clothes closet or the bath-room. Fridays the public stormed the house en masse, since the money must be deposited on that day to draw interest for the following week. The crush was so enormous that the stoop broke down. Imagine it! In quiet Brooklyn! People struggling to get up the steps to cram their money into Miller's pockets! There he sat, behind a desk, at the top of the stoop, solemnly taking the money thrown down before him and handing out little pink and green stamped receipts in exchange. There was no place to put the money, so it was shoved on to the floor behind him. Friday afternoons Miller and his clerks waded through it, knee high. There was no pretense of bookkeeping. Simply in self-defense Miller issued in October a pronunciamento that he could not in justice to his business, consent to receive less than fifty dollars at one time. Theoretically, there was no reason why the thing should not have gone on practically forever, Miller and everybody else becoming richer and richer. So long as the golden stream swelled five times each year everybody would be happy. How could anybody fail to be happy who saw so much money lying around loose everywhere?
But the business had increased to such an extent that Miller began to distrust his own capacity to handle it. He therefore secured a partner in the person of one Edward Schlessinger, and with him went to Charlestown, Mass., for the purpose of opening another office, in charge of which they placed a man named Louis Powers. History repeated itself. Powers shipped the deposits to Miller every day or two by express. Was there ever such a plethora of easy money?
But Schlessinger was no Miller. He decided that he must have a third of the profits (Heaven knows how they computed them!) and have them, moreover, each day in cash. Hence there was a daily accounting, part of the receipts being laid aside to pay off interest checks and interest, and the balance divided. Schlessinger carried his off in a bag; Miller took the rest, cash, money orders and checks, and deposited it in a real bank. How the money poured in may be realized from the fact that the excess of receipts over disbursements for the month ending November 16th was four hundred and thirty thousand dollars.
Hitherto Miller had been the central figure. Col. Robert A. Ammon now became the deus ex machina. Miller's advertising had become so extensive that he had been forced to retain a professional agent, one Rudolph Guenther, to supervise it, and when the newspapers began to make unpleasant comments, Guenther took Miller to Ammon's office in the Bennett Building in Nassau Street. Ammon accepted a hundred dollars from Miller, listened to his account of the business and examined copies of the circulars. When he was handed one of the printed receipts he said they were "incriminating." Miller must try to get them back. He advised (as many another learned counsellor has done) incorporating the business, since by this means stock could be sold and exchanged for the incriminating receipts. He explained the mistakes of the "Dean crowd," but showed how he had been able to safeguard them in spite of the fact that they had foolishly insisted on holding the stock in their company themselves instead of making their customers the stockholders. Nevertheless "you do not see any of the Dean people in jail," boasted Ammon. From now on Miller and he were in frequent consultation, and Ammon took steps to incorporate, procuring for that purpose from Wells, Fargo & Co. a certificate of deposit for one hundred thousand dollars. Occasionally he would visit Floyd Street to see how things were going. Miller became a mere puppet; Ammon twitched the wire.
It was now well on in November, and the press of both Boston and New York was filled with scathing attacks upon the Syndicate. The reporters became so inquisitive as to be annoying to the peaceful Miller. "Send the reporters over to me!" directed Ammon.
The Post (of Boston) said the whole thing was a miserable swindle. Ammon, accompanied by Miller, carrying a satchel which contained fifty thousand dollars in greenbacks, went to Boston, visited the offices of the Post, and pitched into the editor.
"The business is all right; you must give us a fair deal!"
The pair also visited Watts, the chief of police.
"You keep your mouth shut," said Ammon to Miller. "I'll do all the talking." He showed Watts the bag of money, and demanded what he had meant by calling the enterprise a "green goods business." If the thing wasn't all right, did Watts suppose that he, Col. Robert A. Ammon, would be connected with it? The chief backed down, and explained that he had jokingly referred to the color of one of the receipts—which happened to be green.
In spite of Ammon's confidence, however, there was an uneasy feeling in the air, and it was decided to put an advertisement in the Post offering to allow any customer who so desired to withdraw his deposit, without notice, upon the following Saturday. This announcement did not have precisely the anticipated effect, and Saturday saw a large crowd of victims eager to withdraw their money from the Boston office of the Franklin Syndicate. Powers paid the "Pauls," of Boston, out of the bag brought on by Miller containing the deposits of the "Peters," of Brooklyn. Meantime, Ammon addressed the throng, incidentally blackguarding a Post reporter before the crowd, telling them that his paper was a "yellow paper, had never amounted to anything, and never would." Some timid souls took courage and redeposited their money. The run continued one day and cost Ammon and Miller about twenty-eight thousand dollars. Ammon took five thousand dollars cash as a fee out of the bag, and the pair returned to New York. But confidence had been temporarily restored.
The beginning of the end, however, was now in sight—at least for the keen vision of Bob Ammon. He advised stimulating deposits and laying hands on all the money possible before the crash came. Accordingly Miller sent a telegram (collect) to all depositors:
We have inside information of a big transaction, to begin Saturday or Monday morning. Big profits. Remit at once so as to receive the profits.
WILLIAM F. MILLER,
A thousand or so were returned, the depositors having refused to pay the charges. The rest of the customers in large measure responded. But the game was nearly up. There were scare-heads in the papers. Miller saw detectives on every corner, and, like a rat leaving a sinking ship, Schlessinger scuttled away for the last time with a bag of money on the evening of Tuesday, November 21st, 1899. The rest of the deposits were crammed into Miller's desk and left there over night.
The next morning Miller returned to Floyd Street and spent that day in the usual routine, and also on Thursday remained until about twelve o'clock noon, when he placed thirty thousand five hundred dollars in bills in a satchel and started for Ammon's office, where he found Schlessinger—likewise with a satchel.
"The jig's up," announced Schlessinger.
"Billy, I think you'll have to make a run for it," said Ammon. "The best thing for you is to go to Canada."
It still remained to secure the money, which Miller had deposited in the banks, in such a way that the customers could not get hold of it. Ammon explained how that could easily be done. The money should be all turned over to him, and none of the creditors would ever see it again. He did not deem it necessary to suggest that neither would Miller. Accordingly the two, the lawyer and the client, went to the office of Wells, Fargo & Co., Ammon obligingly carrying the satchel containing the thirty thousand five hundred dollars. Here Ammon deposited the contents to his own account, as well as the certificate of deposit for one hundred thousand dollars previously mentioned, and a check for ten thousand dollars, representing the balance of Miller's loot. In addition to this he received an order for forty thousand dollars United States Government bonds, which were on deposit with Wells, Fargo & Co., and later, through Miller's father, sixty-five thousand dollars in bonds of the New York Central Railroad and the United States Government. Thus Ammon secured from his dupe the sum of two hundred and forty-five thousand five hundred dollars, the actual market value of the securities bringing the amount up to two hundred and fifty thousand five hundred dollars, besides whatever sums he had been paid by Miller for legal services, which could not have been less than ten or fifteen thousand dollars. The character of the gentleman is well illustrated by the fact that later when paying Mrs. Miller her miserable pittance of five dollars per week, he explained to her that "he was giving her that out of his own money, and that her husband owed him."
There still remained, however, the chance of getting a few dollars more and Ammon advised Miller "to try to get Friday's receipts, which were the heaviest day's business." Acting on this suggestion, Miller returned to Floyd Street the next morning at about half past nine, finding a great crowd of people waiting outside. About one o'clock he started to go home, but discovering that he was being followed by a man whom he took to be a detective, he boarded a street car, dodged through a drug store and a Chinese laundry, finally made the elevated railroad, with his pursuer at his heels, and eventually reached the lawyer's office about two o'clock in the afternoon. Word was received almost immediately over the telephone that Miller had been indicted in Kings County for conspiracy to defraud, and Ammon stated that the one thing for Miller to do was to go away. Miller replied that he did not want to go unless he could take his wife and baby with him, but Ammon assured him that he would send them to Canada later in charge of his own wife. Under this promise Miller agreed to go, and Ammon procured a man named Enright to take Miller to Canada, saying that "he was an ex-detective and could get him out of the way." Ammon further promised to forward to Miller whatever money he might need to retain lawyers for him in Montreal. Thereupon Miller exchanged hats with some one in Ammon's office and started for Canada in the custody of the lawyer's representative.
How the wily colonel must have chuckled as poor Miller trotted down the stairs like a sheep leaving his fleece behind him. A golden fleece indeed! Did ever a lawyer have such a piece of luck? Here was a little fellow who had invented a brilliant scheme to get away with other people's money and had carried it through successfully—more than successfully, beyond the dreams of even the most avaricious criminal, and then, richer than Midas, had handed over the whole jolly fortune to another for the other's asking, without even taking a scrap of paper to show for it. More than that, he had then voluntarily extinguished himself. Had Ammon not chuckled he would not have been Bob Ammon. The money was stolen, to be sure, but Ammon's skirts were clear. There was nothing to show that the two hundred and forty-five thousand dollars he had received was stolen money. There was only one man—a discredited felon, who could hint that the money was even "tainted," and he was safely over the border, in a foreign jurisdiction, not in the custody of the police, but of Ammon himself, to be kept there (as Mr. Robert C. Taylor so aptly phrased it in arguing Ammon's case on appeal) "on waiting orders. Ammon had Miller on a string, and as soon as Ammon (for his own sake) was compelled either to produce Miller or to run the risk of indictment, he pulled the string and brought Miller back into the jurisdiction."
Needless to say great was the ado made over the disappearance of the promoter of the Franklin Syndicate, and the authorities of King's County speedily let it become known that justice required that some one should be punished for the colossal fraud which had been perpetrated. The grand jury of the county started a general investigation. Public indignation was stirred to the point of ebullition. In the midst of the rumpus, there came a knock on the office door of the Hon. John F. Clark, District Attorney of King's County, and Col. Robert A. Ammon announced himself. The two men were entire strangers to each other but this did not prevent Ammon, with his inimitable assurance, from addressing the District Attorney by his first name.
"How are you, John?" he inquired nonchalantly, "what can I do for you?"
Mr. Clark repressed his natural inclination to kick the insolent fellow forcibly out of his office, invited him to be seated and rang for a stenographer. Ammon asserted his anxiety to assist the District Attorney by every means in his power, but denied knowing the whereabouts of Miller, alleging that he was simply acting as his counsel. Mr. Clark replied that in Miller's absence the grand jury might take the view that Ammon himself was the principal. At this Ammon calmly assured his host that as far as he was concerned he was ready to go before the grand jury at any time.
"That is just what I want," returned Mr. Clark, "the grand jury is in session. Come over."
Ammon arose with a smile and accompanied the District Attorney towards the door of the grand jury room. Just outside he suddenly placed his hand to his head as if recollecting something.
"One moment," he exclaimed. "I forgot that I have an engagement. I will come over to-morrow."
"Ah!" retorted Mr. Clark, "I do not think you will be here to-morrow."
Two weeks later Miller was safely ensconced without bail in Raymond Street jail.
Schlessinger, who got away with one hundred and seventy-five thousand dollars in cash, fled to Europe where he lived high, frequenting the race tracks and gaming tables until he was called to his final account a year or two ago. The money which he took has never been traced. Miller was tried, convicted and sent to Sing Sing. The Appellate Division of the Supreme Court then reversed his conviction, but later, on appeal to the Court of Appeals, it was sustained.
Of the enormous sums turned over to Ammon Miller received nothing save the money necessary for his support in Montreal, for the lawyers who defended him, and five dollars per week for his wife and child up to the time he turned State's evidence. It is interesting to note that among the counsel representing Miller upon his trial was Ammon himself. Miller's wife and child were not sent to Montreal by Ammon, nor did the latter secure bail for his client at any time during his different periods of incarceration. The colonel knew very well that it was a choice between himself and Miller and took no steps which might necessitate the election falling upon himself.
The conviction of Miller, with his sentence to ten years in State's prison did not, however, prevent the indictment of Ammon for receiving stolen money in New York County, although the chance that he would ever have to suffer for his crime seemed small indeed. The reader must bear in mind that up to the time of Ammon's trial Miller had never admitted his guilt; that he was still absolutely, and apparently irrevocably, under Ammon's sinister influence, keeping in constant communication with him and implicitly obeying his instructions while in prison; and that Miller's wife and child were dependent upon Ammon for their daily bread. No wonder Ammon strode the streets confident that his creature would never betray him.
"Now, Billy, you don't want to be shooting off your mouth up here," was his parting injunction to his dupe on his final visit to Sing Sing before he became a guest there himself at the expense of the People.
Miller followed his orders to the letter, and the stipend was increased to the munificent sum of forty dollars per month.
Meantime the case against Ammon languished and the District Attorney of New York County was at his wits' end to devise a means to procure the evidence to convict him. To do this it would be necessary to establish affirmatively that the thirty thousand five hundred dollars received by Ammon from Miller and deposited with Wells, Fargo & Co. was the identical money stolen by Miller from the victims of the Franklin Syndicate. It was easy enough to prove that Miller stole hundreds of thousands of dollars, that Ammon received hundreds of thousands, but you had to prove that the same money stolen by Miller passed to the hands of Ammon. Only one man in the world, as Ammon had foreseen, could supply this last necessary link in the chain of evidence and he was a convict—and mute.
It now became the task of the District Attorney to induce Miller to confess the truth and take the stand against Ammon. He had been in prison a considerable time and his health was such as to necessitate his being transferred to the hospital ward. Several of the District Attorney's assistants visited him at various times at Sing Sing in the hope of being able to persuade him to turn State's evidence, but all their efforts were in vain. Miller refused absolutely to say anything that would tend to implicate Ammon.
At last the District Attorney himself, accompanied by Mr. Nott, who later prosecuted Ammon, made a special trip to Sing Sing to see what could be done. They found Miller lying upon his prison pallet, his harsh cough and blazing eyes speaking only too patently of his condition. At first Mr. Nott tried to engage him in conversation while the District Attorney occupied himself with other business in another part of the ward, but it was easily apparent that Miller would say nothing. The District Attorney then approached the bed where Miller was lying and inquired if it were true that he declined to say anything which might tend to incriminate Ammon. After some hesitation Miller replied that, even if he should testify against his old accomplice, there was nothing to show that he would be pardoned, and that he would not talk unless he had actually in his hands some paper or writing which would guarantee that if he did so he would be set free.
The spectacle of a convicted felon haggling with an officer of the law over the terms upon which he would consent to avail himself of an opportunity to make the only reparation still possible angered the District Attorney, and, turning fiercely upon the prisoner, he arraigned him in scathing terms, stating that he was a miserable swindler and thief, who had robbed thousands of poor people of all the money they had in the world, that he showed himself devoid of every spark of decency or repentance by refusing to assist the law in punishing his confederate and assisting his victims in getting back what was left of the money, and that he, the District Attorney, felt himself humiliated in having consented to come there to visit and talk with such a heartless and depraved specimen of humanity. The District Attorney then turned his back upon Miller, whose eyes filled with tears, but who made no response.
A few moments later the convict asked permission to speak to the District Attorney alone. With some reluctance the latter granted the request and the others drew away.
"Mr. District Attorney," said the wretched man in a trembling voice, with the tears still suffusing his eyes, "I am a thief; I did rob all those poor people, and I am heartily sorry for it. I would gladly die, if by doing so I could pay them back. But I haven't a single cent of all the money that I stole and the only thing that stands between my wife and baby and starvation is my keeping silence. If I did what you ask, the only money they have to live on would be stopped. I can't see them starve, glad as I would be to do what I can now to make up for the wrong I have done."
The District Attorney's own eyes were not entirely dry as he held out his hand to Miller.
"Miller," he replied, "I have done you a great injustice. I honor you for the position you have taken. Were I in your place I should probably act exactly as you are doing. I cannot promise you a pardon if you testify against Ammon. I cannot even promise that your wife will receive forty dollars a month, for the money in my charge cannot be used for such a purpose; all I can assure you of is that, should you decide to help me, a full and fair statement of all you may have done will be sent to the Governor with a request that he act favorably upon any application for a pardon which you may make. The choice must be your own. Whatever you decide to do, you have my respect and sympathy. Think well over the matter. Do not decide at once; wait for a day or two, and I will return to New York and you can send me word."
The next day Miller sent word that he had determined to tell the truth and take the stand, whatever the consequences to himself and his family might be. He was immediately transferred to the Tombs Prison in New York City, where he made a complete and full confession, not only assisting in every way in securing evidence for the prosecution of Ammon, but aiding his trustee in bankruptcy to determine the whereabouts of some sixty thousand dollars of the stolen money, which but for him would never have been recovered. At the same time Ammon was re-arrested upon a bench warrant, and his bail sufficiently increased to render his appearance for trial probable. As Miller had foreseen, the monthly payment to his wife instantly stopped.
The usual effect produced upon a jury by the testimony of a convict accomplice is one of distrust or open incredulity. Every word of Miller's story, however, carried with it the impression of absolute truth. As he proceeded, in spite of the sneers of the defence, an extraordinary wave of sympathy for the man swept over the court-room, and the jury listened with close attention to his graphic account of the rise and fall of the outrageous conspiracy which had attempted to shield its alluring offer of instant wealth behind the name of America's most practical philosopher, whose only receipt for the same end had been frugality and industry. Supported as Miller was by the corroborative testimony of other witnesses and by the certificates of deposit which Ammon had, with his customary bravado, made out in his own handwriting, no room was left for even the slightest doubt, not only that the money had been stolen but that Ammon had received it. Indeed so plain was the proposition that the defence never for an instant contemplated the possibility of putting Ammon upon the stand in his own behalf. It was in truth an extraordinary case, for the principal element in the proof was made out by the evidence of the thief himself that he was a thief. Miller had been tried and convicted of the very larceny to which he now testified, and, although in the eyes of the law no principle of res adjudicata could apply in Ammon's case, it was a logical conclusion that if the evidence upon the first trial was repeated, the necessary element of larceny would be effectually established. Hence, in point of fact, Miller's testimony upon the question of whether the money had been stolen was entirely unnecessary, and the efforts of the defence were directed simply to making out Miller such a miscreant upon his own testimony that perforce the jury could not accept his evidence when it reached the point of implicating Ammon. All their attempts in this direction, however, only roused increased sympathy for the witness and hostility toward their own client, and made the jury the more ready to believe that Ammon had been the only one in the end to profit by the transaction.
Briefly, the two points urged by the defence were:
(1) That Ammon was acting only as Miller's counsel, and hence was immune, and,
(2) That there was no adequate legal evidence that the thirty thousand five hundred dollars which Ammon had deposited, as shown by the deposit slip, was the identical money stolen from the victims of the Franklin syndicate. As bearing upon this they urged that the stolen money had in fact been deposited by Miller himself, and so had lost the character of stolen money before it was turned over to the defendant, and that Miller's story being that of an accomplice required absolute corroboration in every detail.
The point that Ammon was acting only as a lawyer was quickly disposed of by Judge Newburger.
"Something has been said by counsel," he remarked in his charge to the jury, "to the effect that the defendant, as a lawyer, had a perfect right to advise Miller, but I know of no rule of law that will permit counsel to advise how a crime can be committed."
As to the identity of the money, the Court charged that it made no difference which person performed the physical act of placing the cash in the hands of the receiving teller of the bank, so long as it was deposited to Ammon's credit.
On the question of what corroboration of Miller's story was necessary, Judge Ingraham, in the Appellate Division, expressed great doubt as to whether in the eyes of the law Miller, the thief, could be regarded as an accomplice of Ammon in receiving the stolen money at all, and stated that even if he could be so regarded, there was more than abundant corroboration of his testimony.
Ammon's conviction was affirmed throughout the courts, including the Court of Appeals, and the defendant himself is now engaged in serving out his necessarily inadequate sentence—necessarily inadequate, since under the laws of the State of New York, the receiver of stolen goods, however great his moral obliquity may be, and however great the amount stolen, can only receive half the punishment which may be meted out to the thief himself, "receiving" being punishable by only five years or less in State's prison, while grand larceny is punishable by ten years.
Yet who was the greater criminal—the weak, ignorant, poverty-stricken clerk, or the shrewd, experienced lawyer who preyed upon his client and through him upon the community at large?
The confession of Miller, in the face of what the consequences of his course might mean to his wife and child, was an act of moral courage. The price he had to pay is known to himself alone. But the horrors of life in prison for the "squealer" were thoroughly familiar to him when he elected to do what he could to atone for his crime. In fact Ammon had not neglected to picture them vividly to him and to stigmatize an erstwhile client of his.
"Everything looks good," he wrote to Miller in Sing Sing, in reporting the affirmance of Goslin's conviction, "especially since the squealer is getting his just deserts."
With no certain knowledge of a future pardon Miller went back to prison cheerfully to face all the nameless tortures inflicted upon those who help the State—the absolute black silence of convict excommunication, the blows and kicks inflicted without opportunity for retaliation or complaint, the hostility of guards and keepers, the suffering of abject poverty, keener in a prison house than on any other foot of earth.
It is interesting to observe that Miller's original purpose had been to secure money to speculate with—for he had been bitten deep by the tarantula of Wall Street, and his early experiences had led him to believe that he could beat the market if only he had sufficient margin. This margin he set out to secure. Then when he saw how easy it was to get money for the asking, he dropped the idea of speculation and simply became a banker. He did make one bona-fide attempt, but the stock went down, he sold out and netted a small loss. Had Miller actually continued to speculate it is doubtful whether he could have been convicted for any crime, since it was for that purpose that the money was entrusted to him. He might have lost it all in the Street and gone scot free. As it was, in failing to gamble with it, he became guilty of embezzlement.
Ammon arrived in Sing Sing with a degree of eclat. He found numerous old friends and clients among the inmates. He brought a social position which had its value. Money, too, is no less desirable there than elsewhere, and Ammon had plenty of it.
In due course, but not until he had served more than half his sentence (less commutation), Miller a broken man, received his pardon, and went back to his wife and child. When Governor Higgins performed this act of executive clemency, many honest folk in Brooklyn and elsewhere loudly expressed their indignation. District Attorney Jerome did not escape their blame. Was this contemptible thief, this meanest of all mean swindlers, who had stolen hundreds of thousands to be turned loose on the community before he had served half his sentence? It was an outrage! A disgrace to civilization! Reader, how say you?
A Study in Finance
"He that maketh haste to be rich shall not be innocent." —PROVERBS 28:20.
The victim of moral overstrain is the central figure in many novels and countless magazine stories. In most of them he finally repents him fully of his sins past and returns to his former or to some equally desirable position, to lead a new and better life. The dangers and temptations of the "Street" are, however, too real and terrible to be studied other than in actuality, and the fall of hundreds of previously honest young men owing to easily remedied conditions should teach its lesson, not only to their comrades, but to their employers as well. The ball and chain, quite as often as repentance and forgiveness, ends their experience.
No young man takes a position in a banking-house with the deliberate intention of becoming an embezzler. He knows precisely, as well as does the reader, that if he listens to the whisper of temptation he is lost—and so does his employer. Yet the employer, who would hold himself remiss if he allowed his little boy to have the run of the jam-closet and then discovered that the latter's lips bore evidence of petty larceny, or would regard himself as almost criminally negligent if he placed a priceless pearl necklace where an ignorant chimney-sweep might fall under the hypnotism of its shimmer, will calmly allow a condition of things in his own brokerage or banking office where a fifteen-dollars-a-week clerk may have free access to a million dollars' worth of negotiable securities, and even encourage the latter by occasional "sure" tips to take a flyer in the market.
It is a deplorable fact that the officers of certain companies occasionally "unload" undesirable securities upon their employees, and, in order to boom or create a "movement" in a certain stock, will induce the persons under their control to purchase it. It would be a rare case in which a clerk who valued his situation would refuse to take a few shares in an enterprise which the head of the firm was fathering. Of course, such occurrences are the exceptions, but there are plenty of houses not far from Wall Street where the partners know that their clerks and messengers are "playing the market," and exert not the slightest influence to stop them. When these men find that they and their customers, and not the clerks and messengers, are paying the loss accounts of the latter, they are very much distressed, and tell the District Attorney, with regret, that only by sending such wicked and treacherous persons to State's prison can similar dishonesty be prevented.
Not long ago the writer became acquainted with a young man who, as loan clerk in a trust company, had misappropriated a large amount of securities and had pleaded guilty to the crime of grand larceny in the first degree. He was awaiting sentence, and in connection therewith it became necessary to examine into the conditions prevailing generally in the financial district. His story is already public property, for the case attracted wide attention in the daily press; but, inasmuch as the writer's object is to point a moral rather than adorn a tale, the culprit's name and the name of the company with which he was connected need not be given.
He is now serving a term in State's prison and is, the writer believes, sincerely repentant and determined to make a man of himself upon his release. For present purposes let him be called John Smith. He was born in New York City, in surroundings rather better than the average. His family were persons of good education and his home was a comfortable and happy one. From childhood he received thorough religious instruction and was always a straightforward, honest and obedient boy. His father, having concluded from observation that the shortest route to success lay in financial enterprise, secured a place in a broker's office for his son after the latter's graduation from the high school. John began at the bottom and gradually worked up to the position of assistant loan clerk in a big trust company. This took fifteen years of hard work.
From the day that he started in filling inkwells and cleaning out ticker baskets, he saw fortunes made and lost in a twinkling. He learned that the chief business of a broker is acting as go-between for persons who are trying to sell what they do not own to others who have not the money to pay for what they buy. And he saw hundreds of such persons grow rich on these fictitious transactions. He also saw others "wiped out," but they cheerfully went through bankruptcy and began again, many of them achieving wealth on their second or third attempt. He was earning five dollars a week and getting his lunch at a "vegetarian health restaurant" for fifteen cents. The broker, for whom he ran errands, gave away thirty-five-cent cigars to his customers and had an elaborate luncheon served in the office daily to a dozen or more of the elect. John knew one boy of about his own age, who, having made a successful turn, began as a trader and cleaned up a hundred thousand dollars in a rising market the first year. That was better than the cleaning up John was used to. But he was a sensible boy and had made up his mind to succeed in a legitimate fashion. Gradually he saved a few hundred dollars and, acting on the knowledge he had gained in his business, bought two or three shares in a security which quickly advanced in value and almost doubled his money. The next time as well fortune favored him, and he soon had a comfortable nest-egg—enough to warrant his feeling reasonably secure in the event of accident or sickness.
He had worked faithfully, had given great satisfaction to his employers, and presently had a clerical position in a prominent trust company offered to him. It seemed an advance. The salary was larger, even if absurdly small, and he gladly accepted the place.
Shortly after this he had his first experience in real finance. The president of the company sent for him—the reader will remember that this is a true story—and the boy entered his private office and came into the august presence of the magnate. This man is to-day what is commonly known as a "power" in Wall Street.
"My boy," said the president, "you have been doing very well. I have noticed the excellence of your work. I want to commend you."
"Thank you, sir," said John modestly, expecting to hear that his salary was to be raised.
"Yes," continued the great man. "And I want you to have an interest in the business."
The blood rushed to John's head and face. "Thank you very much," he gasped.
"I have allotted you five shares in the trust company," said the president. "If you take them up and carry them you will feel that you have a real connection with the house and it will net you a handsome return. Have you any money?"
It so happened that at this time John's savings were invested in a few bonds of an old and conservatively managed railroad. His heart fell. He didn't want to buy any bank stock.
"No," he answered. "My salary is small enough and I need it all. I don't save any money."
"Oh, well," said the magnate, "I will try and fix it up for you. I will arrange for a loan with the —— Bank on the stock. Remember, I'm doing this to help you. That is all. You may go back to your books."
Next day John was informed that he had bought five shares of —— Trust Company stock in the neighborhood of three hundred, and he signed a note for one thousand four hundred and twenty-five dollars, and indorsed the stock over to the bank from which the money had been borrowed for him. The stock almost immediately dropped over fifty points. John paid the interest on the note out of his salary, and the dividends, as fast as they were declared, went to extinguish the body of the loan. Some time afterward he learned that he had bought the stock from the magnate himself. He never received any benefit from it, for the stock was sold to cover the note, and John was obliged to make up the difference. He also discovered that ten or fifteen other employees had been given a similar opportunity by their generous employer at about the same time. John, in prison, says it was a scheme to keep fifty or a hundred shares where it could easily be controlled by the president, without risk to himself, in case of need. Of course, he may be wrong. At any rate, he feels bitterly now toward the big men who are at large while he is in jail.
John continued to keep up with the acquaintances formed during his years in the broker's office, many of whom had started little businesses of their own and had done well. Part of their stock-in-trade was to appear prosperous and they took John out to lunch, and told him what a fine fellow he was, and gave him sure tips. But John had grown "wise." He had had all the chances of that sort he wanted, and from a bigger man than any of them. He ate their lunches and invited them in return. Then he economized for a day or two to even up. He was not prosperous himself, but he did not accept favors without repaying them.
One thing he observed and noted carefully—every man he knew who had begun a brokerage business and kept sober, who attended to business and did not speculate, made money and plenty of it. He knew one young firm which cleared up fifteen thousand in commissions at the end of the second year. That looked good to him, and he knew, besides, that he was sober and attended to business. He made inquiries and learned that one could start in, if one were modest in one's pretensions, for two thousand five hundred dollars. That would pay office rent and keep things going until the commissions began to come in. He started to look around for some other young man who could put up the money in consideration of John's contributing the experience. But all the men he knew had experience without money.
Then by chance he met a young fellow of bright and agreeable personality whom we shall call Prescott. The latter was five or six years older than John, had had a large experience in brokerage houses in another city, and had come to New York to promote the interests of a certain copper company. John had progressed and was now assistant loan clerk of one of the biggest trust companies in the city, which also happened to be transfer agent for the copper company. Thus John had constantly to handle its certificates. Prescott said it was a wonderful thing—that some of the keenest men in the Street were in it, and, although it was a curb stock, strongly advised his new friend to buy all he could of it. He assured John that, although he was admittedly interested in booming the stock, he was confident that before long it would sell at four times its present quotation.
Meantime the stock, which had been listed at 2-1/4, began to go rapidly up. Word went around the trust company that it was a great purchase anywhere below 10, and John, as well as the other boys employed in the company, got together what money he could and began to buy it. It continued to go up—they had unconsciously assisted it in its ascent—and they bought more. John purchased seventy-five shares—all the way up to 8 and 9. One of his friends took eight hundred. Then it dropped out of sight. They hadn't time to get out, and John, in prison, has his yet. But he still had faith in Prescott, for he liked him and believed in his business capacity.
The stock "operation" over, Prescott began to prospect for something new, and suggested to John that they form a brokerage house under the latter's name. John was to be president at "a fixed salary." It sounded very grand. His duties at the trust company began to seem picayune. Moreover, his loss in copper had depressed him and he wanted to recoup, if he could. But how to get the two thousand five hundred dollars necessary to start in business? Prescott pleaded poverty, yet talked constantly of the ease with which a fortune might be made if they could only once "get in right." It was a period of increased dividends, of stock-jobbing operations of enormous magnitude, of "fifty-point movements," when the lucky purchaser of only a hundred shares of some inconspicuous railroad sometimes found that he could sell out next week with five thousand dollars' profit. The air seemed full of money. It appeared to rain banknotes and stock certificates.
In the "loan cage" at the trust company John handled daily millions in securities, a great part of which were negotiable. When almost everybody was so rich he wondered why any one remained poor. Two or three men of his own age gave up their jobs in other concerns and became traders, while another opened an office of his own. John was told that they had acted on "good information," had bought a few hundred shares of Union Pacific, and were now comfortably fixed. He would have been glad to buy, but copper had left him without anything to buy with.
One day Prescott took him out to lunch and confided to him that one of the big speculators had tipped him off to buy cotton, since there was going to be a failure in the crop. It was practically a sure thing. Two thousand dollars' margin would buy enough cotton to start them in business, even if the rise was only a very small one.
"Why don't you borrow a couple of bonds?" asked Prescott.
"Borrow from whom?" inquired John.
"Why, from some customer of the trust company."
"No one would lend them to me," answered John.
"Well, borrow them, anyhow. They would never know about it, and you could put them back as soon as we closed the account," suggested Prescott.
John was shocked, and said so.
"You are easy," said his comrade. "Don't you know that the trust companies do it themselves all the time? The presidents of the railroads use the holdings of their companies as collateral. Even the banks use their deposits for trading. Didn't old —— dump a lot of rotten stuff on you? Why don't you get even? Let me tell you something. Fully one-half of the men who are now successful financiers got their start by putting up as margin securities deposited with them. No one ever knew the difference, and now they are on their feet. If you took two bonds overnight you might put them back in the morning. Every one does it. It's part of the game."
"But suppose we lost?" asked John.
"You can't," said Prescott. "Cotton is sure to go up. It's throwing away the chance of your life."
John said he couldn't do such a thing, but when he returned to the office the cashier told him that a merger had been planned between their company and another—a larger one. John knew what that meant well enough—half the clerks would lose their positions. He was getting thirty-five dollars a week, had married a young wife, and, as he had told the magnate, he "needed it all." That night as he put the securities from the "loan cage" back in the vault the bonds burned his fingers. They were lying around loose, no good to anybody, and only two of them, overnight maybe, would make him independent of salaries and mergers—a free man and his own master.
The vault was in the basement just below the loan cage. It was some twenty feet long and ten wide. There were three tiers of boxes with double combination doors. In the extreme left-hand corner was the "loan box." Near it were two other boxes in which the securities of certain customers on deposit were kept. John had individual access to the loan box and the two others—one of which contained the collateral which secured loans that were practically permanent. He thus had within his control negotiable bonds of over a million dollars in value. The securities were in piles, strapped with rubber bands, and bore slips on which were written the names of the owners. Every morning John carried up all these piles to the loan cage—except the securities on deposit. At the end of the day he carried all back himself and tossed them into the boxes. When the interest coupons on the deposited bonds had to be cut he carried these, also, upstairs. At night the vault was secured by two doors, one with a combination lock and the other with a time lock. It was as safe as human ingenuity could make it. By day it had only a steel-wire gate which could be opened with a key. No attendant was stationed at the door. If John wanted to get in, all he had to do was to ask the person who had the key to open it. The reason John had the combination to these different boxes was in order to save the loan clerk the trouble of going downstairs to get the collateral himself.
Next day when John went out to lunch he put two bonds belonging to a customer in his pocket. He did not intend to steal them or even to borrow them. It was done almost automatically. His will seemed subjugated to the idea that they were to all intents and purposes his bonds to do as he liked with. He wanted the feeling of bonds-in-his-pocket. As he walked along the street to the restaurant, it seemed quite natural that they should be there. They were nearly as safe with him as lying around loose in the cage or chucked into a box in the vault. Prescott joined him, full of his new idea that cotton was going to jump overnight.