Criminal Psychology Part 11

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is particularly characteristic if a city is entered, especially at night, through a railroad terminal, and the locomotive is attached to the rear of the train. In the daily life the alteration of objects by locations is familiar. How different a landscape seems at night or in winter, although it has been observed hundreds of times during the day or in summer. It is good to look around frequently on the road, particularly at cross-roads, if the way back is to be kept in mind. Even the starting point may have a disturbing effect on the sense of place. For example, if you have traveled numerous times on the train from A to B, and for once you start your journey from C, which is beyond A, the familiar stretch from A to B looks quite different and may even become unrecognizable. The estimation of time may exercise considerable influence on such and similar local effects. Under most circ.u.mstances we tend, as is known, to reduce subjectively great time-spans, and hence, when more time than customary is required by an event, this becomes subjectively smaller, not only for the whole event but also for each of its parts. In this way what formerly seemed to extend through an apparently long period seems now to be compressed into a shorter one. Then everything appears too soon and adds to the foreign aspect of the matter.

The case is similar for time-differences. Uphues[1] cites an example: "If a person has not heard a bell or anything else for some time and then hears it again, the question whether the object existed in the interval does not arise. It is recognized again and that is enough." Certainly it is enough for us, but whether the thing is true, whether really the same phenomena or only similar ones have been noted, is another question rarely asked. If the man or the bell is the same that we now perceive anew, the inference is involuntarily drawn that they must have persisted, but we eliminate altogether the lapse of time and suppose unconsciously that the ent.i.ty in question must have been on the spot through the whole period. One needs only to observe how quickly witnesses tend to identify objects presented for identification: e. g. knives, letters, purses, etc. To receive for identification and to say yes, is often the work of an instant. The witness argues, quite unconsciously, in this fas.h.i.+on: "I have given the judge only one clew (perhaps different from the one in question), now here again is a clew, hence, it must be the one I gave him." That the matter may have changed, that there has been some confusion, that perhaps [1] Die Wahrnehmung und Empfinding. Leipzig 1888.

other witnesses have given similar things, is not at all considered. Here again we have to beware of confusing of ident.i.ties with agreements.



Finally, we must consider fatigue and other conditions of excitation. Everybody knows how things read late at night seem absolute nonsense, and become simple and obvious the next morning. In the same way, we may take a thing to be thus and so while tired in the evening, and in the morning see our notion to be a coa.r.s.e misunderstanding. Hoppe tells of a hospital interne who became so excited and tired through frequent calls that he heard the tick- tack of his watch as "Oh-doc-tor." A witness who has been subjected to a prolonged and fatiguing examination falls into a similar condition and knows at the end much less than at the beginning. Finally, he altogether misunderstands the questions put to him. The situation becomes still worse when the defendant has been so subjected to examination, and becomes involved, because of fatigue, etc., in the famous "contradictions." If "convincing contradictions" occur at the end of a long examination of a witness or a defendant, it is well to find out how long the examination took. If it took much time the contradictions mean little.

The same phenomena of fatigue may even lead to suspicion of negligence. Doctors, trained nurses, nursery maids, young mothers, etc., who became guilty of "negligence" of invalids and children have, in many instances, merely "misunderstood" because of great fatigue. It is for this reason that the numerous sad cases occur in which machine-tenders, switch-tenders, etc., are punished for negligence. If a man of this cla.s.s, year after year, serves twenty-three hours, then rests seven hours, then serves twenty-three hours again, etc., he is inevitably overtaken by fatigue and nervous relaxation in which signals, warnings, calls, etc., are simply misunderstood. Statistics tend to show that the largest number of accidents occur at the end of a period of service, i. e., at the time of greatest fatigue. But even if this were not the case some reference must be made to chronic fatigue. If a man gets only seven hours' rest after intense labor, part of the fatigue-elements must have remained. They acc.u.mulate in time, finally they summate, and exercise their influence even at the beginning of the service. Socialists complain justly about this matter. The most responsible positions are occupied by chronically fatigued individuals, and when nature extorts her rights we punish the helpless men.

The case is the same with people who have much to do with

money--tax, post, bank, and treasury officials, who are obliged to attend rigorously to monotonous work--the reception and distribution of money, easily grow tired. Men of experience in this profession have a.s.sured me that they often, when fatigued, take money, count it, sign a receipt and then--return the money to the person who brought it. Fortunately they recognize their mistake in the astonishment of the receiver. If, however, they do not recognize it, or the receiver is sly enough calmly to walk off with the money, if the sum is great and rest.i.tution not easily possible, and if, moreover, the official happens to be in the bad graces of his superiors, he does not have much chance in the prosecution for embezzlement, which is more likely than not to be begun against him.[1] Any affection, any stimulus, any fatigue may tend to make people pa.s.sive, and hence, less able to defend themselves.

A well known Berlin psychiatrist tells the following story: "When I was still an apprentice in an asylum, I always carried the keys of the cells with me. One day I went to the opera, and had a seat in the parquette. Between the acts I went into the corridor. On returning I made a mistake, and saw before me a door which had the same kind of lock as the cell-doors in the asylum, stuck my hand into my pocket, took out my key--which fitted, and found myself suddenly in a loge. Now would it not be possible in this way, purely by reflex action, to turn into a burglar?" Of course we should hardly believe a known burglar if he were to tell us such a story.

(e) The Lie. Section 108. (I) I. General Considerations.

In a certain sense a large part of the criminalist's work is nothing more than a battle against lies. He has to discover the truth and must fight the opposite. He meets this opposite at every step. The accused, often one who has confessed completely, many of the witnesses, try to get advantage of him, and frequently he has to struggle with himself when he perceives that he is working in a direction which he can not completely justify. Utterly to vanquish the lie, particularly in our work, is of course, impossible, and to describe its nature exhaustively is to write a natural history of mankind. We must limit ourselves to the consideration of a definite number of means, great and small, which will make our work easier, [1] Cf. Lohsing in H. Gross's Archiv VII, 331.

will warn us of the presence of deception, and will prevent its playing a part. I have attempted to compile forms of it according to intent, and will here add a few words.[1]

That by the lie is meant the intentional deliverance of a conscious untruth for the purpose of deception is as familiar as the variety of opinion concerning the permissibility of so-called necessary lies, of the pious, of the pedagogic, and the conventional. We have to a.s.sume here the standpoint of absolute rigorism, and to say with Kant,[2] "The lie in its mere form is man's crime against his own nature, and is a vice which must make a man disreputable in his own eyes." We can not actually think of a single case in which we find any ground for lying. For we lawyers need have no pedagogical duties, nor are we compelled to teach people manners, and a situation in which we may save ourselves by lying is unthinkable. Of course, we will not speak all we know; indeed, a proper silence is a sign of a good criminalist, but we need never lie. The beginner must especially learn that the "good intention" to serve the case and the so-called excusing "eagerness to do one's duty," by which little lies are sometimes justified, have absolutely no worth. An incidental word as if the accomplice had confessed; an expression intending to convey that you know more than you do; a perversion of some earlier statement of the witness, and similar "permissible tricks," can not be cheaper than the cheapest things. Their use results only in one's own shame, and if they fail, the defense has the advantage. The lost ground can never be regained.[3]

Nor is it permissible to lie by gestures and actions any more than by words. These, indeed, are dangerous, because a movement of the hand, a reaching for the bell, a sudden rising, may be very effective under circ.u.mstances. They easily indicate that the judge knows more about the matter than he really does, or suggest that his information is greater, etc. They make the witness or defendant think that the judge is already certain about the nature of the case; that he has resolved upon important measures, and other such things. Now movements of this kind are not recorded, and in case the denial of blame is not serious, a young criminalist allows himself easily to be misled by his desire for efficiency. Even accident may help. When I was examining justice I had to hear the testimony of a rather weak-minded lad, who was suspected of having stolen and hidden a large sum of money. The lad firmly and cleverly denied [1] Cf. my Manual, "When the witness is unwilling to tell the truth."

[2] Kant : "ber ein vermeintliches Recht, aus Menschenliebe zu lgen."

[3] A sentence is here omitted. [Translator.]

his guilt. During the examination a comrade entered who had something official to tell me, and inasmuch as I was in the midst of dictation he wanted to wait until the end of the sentence. Happening to see two swords that had just been brought from a student duel, he took one in his hand and examined the hilt, the point and the blade. The defendant hardly saw this action before he got frightened, raised his hands, ran to the sword-examiner, crying "I confess, I confess! I took the money and hid it in the hollow hickory tree."

This event was rather funny. Another, however, led, I will not say to self-reproach, but to considerable disquiet on my part. A man was suspected of having killed his two small children. As the bodies were not found I undertook a careful search of his home, of the oven, of the cellar, the drains, etc. In the latter we found a great deal of animal entrails, apparently rabbits. As at the time of this discovery I had no notion of where they belonged, I took them, and in the meantime had them preserved in alcohol. The great gla.s.s receptacle which contained them stood on my writing table when I had the accused brought in to answer certain questions about one or two suspicious matters we had discovered. He looked anxiously at the gla.s.s, and said suddenly, "Since you have got it all, I must confess." Almost reflexly I asked, "Where are the corpses?" and he immediately answered that he had hidden them in the environs of the city, where they were found. Clearly, the gla.s.s containing the intestines had led him to the notion that the bodies were found and in part preserved here, and when I asked him where they were he did not observe how illogical the question would be if the bodies had really been found. The whole thing was a matter of accident, but I still have the feeling that the confession was not properly obtained; that I should have thought of the effect of the gla.s.s and should have provided against it before the accused was brought before me.

In the daily life such an open procedure is, of course, impossible, and if the circ.u.mstances were to be taken for what they seem we should frequently make mistakes. Everybody knows, e. g., how very few happy marriages there are. But how do we know it? Only because the fortune of close observation always indicates that the relation is in no way so happy as one would like it to be. And externally? Has anybody ever seen in even half-educated circles a street quarrel between husband and wife? How well-mannered they are in society, and how little they show their disinclination for

each other. And all this is a lie in word and deed, and when we have to deal with it in a criminal case we judge according to the purely external things that we and others have observed. Social reasons, deference for public opinion which must often be deceived, the feeling of duty toward children, not infrequently compel deception of the world. The number of fortunate marriages is mainly overestimated.[1]

We see the same thing with regard to property, the att.i.tude of parents and children, the relation between superiors and inferiors, even in the condition of health,--conduct in all these cases does not reveal the true state of affairs. One after another, people are fooled, until finally the world believes what it is told and the court hears the belief sworn to as absolute truth. It is, perhaps, not too much to say that we are far more deceived by appearances than by words. Public opinion should least of all impose on us. And yet it is through public opinion that we learn the external relations of the people who come before us. It is called vox populi and is really rot. The phrases, "they say," "everybody knows," "n.o.body doubts," "as most neighbors agree," and however else these seeds of dishonesty and slander may be designated--all these phrases must disappear from our papers and procedure. They indicate only appearances--only what people *wanted to have seen. They do not reveal the real and the hidden. Law too frequently makes normative use of the maxim that the bad world says it and the good one believes it. It even constructs its judgments thereby.

Not infrequently the uttered lies must be supported by actions. It is well-known that we seem merry, angry, or friendly only when we excite these feelings by certain gestures, imitations and physical att.i.tudes. Anger is not easily simulated with an unclenched fist, immovable feet, and uncontracted brow. These gestures are required for the appearance of real anger. And how very real it becomes, and how very real all other emotions become because of the appropriate gestures and actions, is familiar. We learn, hence, that the earnest a.s.sertor of his innocence finally begins to believe in it a little, or altogether. And lying witnesses still more frequently begin to hold their a.s.sertions to be true. As these people do not show the common marks of the lie their treatment is extraordinarily difficult.

It is, perhaps, right to accuse our age of especial inclination for that far-reaching lie which makes its perpetrator believe in his own [1] A. Moll: Die kontr

creation. Kiefer[1] cites examples of such "self-deceiving liars." What drives one to despair is the fact that these people are such clever liars that they make a game of the business. It is a piece of luck that these lies, like every lie, betray themselves by the characteristic intensity with which they seek to a.s.sume the appearance of truth. This important mark of the lie can not be too clearly indicated. The number and vigor of lies must show that we more frequently fail to think of their possibility than if they did not exist at all. A long time ago I read an apparently simple story which has helped me frequently in my criminalistic work. Karl was dining with his parents and two cousins, and after dinner said at school, "There were fourteen of us at table to-day." "How is it possible?" "Karl has lied again." How frequently does an event seem inexplicable, mysterious, puzzling. But if you think that here perhaps, "Karl has lied again," you may be led to more accurate observation and hence, to the discovery of some hiatus by means of which the whole affair may be cleared up.

But frequently contradictions are still more simply explained by the fact that they are not contradictions, and by the fact that we see them as such through inadequate comprehension of what has been said, and ignorance of the conditions. We often pay too much attention to lies and contradictions. There is the prejudice that the accused is really the criminal, and that moves us to give unjustified reasons for little accidental facts, which lead afterwards to apparent contradictions. This habit is very old.

If we inquire when the lie has least influence on mankind we find it to be under emotional stress, especially during anger, joy, fear, and on the death-bed.[2] We all know of various cases in which a man, angry at the betrayal of an accomplice, happy over approaching release, or terrified by the likelihood of arrest, etc., suddenly declares, "Now I am going to tell the truth." And this is a typical form which introduces the subsequent confession. As a rule the resolution to tell the truth does not last long. If the emotion pa.s.ses, the confession is regretted, and much thought is given to the withdrawal of a part of the confession. If the protocols concerning the matter are very long this regret is easily observable toward the end.

That it is not easy to lie during intoxication is well known.[3] What [1] E. Kiefer: Die Lge u. der Irrtum vor Gericht. Beiblatt der "Magdeburgischen Zeitung," Nos. 17, 18, 19. 1895 [2] Cf. "Manual," "Die Aussage Sterbender."

[3] Cf. N

is said on the death-bed may always, especially if the confessor is positively religious, be taken to be true. It is known that under such circ.u.mstances the consciousness of even mentally disturbed people and idiots becomes remarkably clear, and very often astonis.h.i.+ng illuminations result. If the mind of the dying be already clouded it is never difficult to determine the fact, inasmuch as particularly such confessions are distinguished by the great simplicity and clearness of the very few words used.

Section 109.(2) The Pathoformic lie.

As in many other forms of human expression, there is a stage in the telling of lies where the normal condition has pa.s.sed and the diseased one has not yet begun. The extreme limit on the one side is the harmless story-teller, the hunter, the tourist, the student, the lieutenant,--all of whom boast a little; on the other side there is the completely insane paralytic who tells about his millions and his monstrous achievements. The characteristic pseudologia phantastica, the lie of advanced hysteria, in which people write anonymous letters and send messages to themselves, to their servants, to high officials and to clergy, in order to cast suspicion on them, are all diseased. The characteristic lie of the epileptics, and perhaps also, the lies of people who are close to the idiocy of old age, mixes up what has been experienced, read and told, and represents it as the experience of the speaker.[1]

Still there is a cla.s.s of people who can not be shown to be in any sense diseased, and who still lie in such a fas.h.i.+on that they can not be well. The development of such lies may probably be best a.s.signed to progressive habituation. People who commit these falsehoods may be people of talent, and, as Goethe says of himself, may have "desire to fabulate." Most of them are people, I will not say who are desirous of honor, but who are still so endowed that they would be glad to play some grand part and are eager to push their own personality into the foreground. If they do not succeed in the daily life, they try to convince themselves and others by progressively broader stories that they really hold a prominent position. I had and still have opportunity to study accurately several well-developed types of these people. They not only have in common the fact that they lie, they also have common themes. They tell how important [1] Delbrck: De pathologische Lge, etc. Stuttgart 1891. "Manual," "Das pathoforme Lgen.

personages asked their advice, sought their company and honored them. They suggest their great influence, are eager to grant their patronage and protection, suggest their great intimacy with persons of high position, exaggerate when they speak of their property, their achievements, and their work, and broadly deny all events in which they are set at a disadvantage. The thing by which they are to be distinguished from ordinary "story-tellers," and which defines what is essentially pathoformic in them, is the fact that they lie without considering that the untrue is discovered immediately, or very soon. Thus they will tell somebody that he has to thank their patronage for this or that, although the person in question knows the case to be absolutely different. Or again, they tell somebody of an achievement of theirs and the man happens to have been closely concerned with that particular work and is able to estimate properly their relation to it. Again they promise things which the auditor knows they can not perform, and they boast of their wealth although at least one auditor knows its amount accurately. If their stories are objected to they have some extraordinarily unskilful explanation, which again indicates the pathoformic character of their minds. Their lies most resemble those of pregnant women, or women lying-in, also that particular form of lie which prost.i.tutes seem typically addicted to, and which are cited by Carlier, Lombroso, Ferrero, as representative of them, and as a professional mark of identification. I also suspect that the essentially pathoformic lie has some relation to s.e.x, perhaps to perversity or impotence, or exaggerated s.e.xual impulse. And I believe that it occurs more frequently than is supposed, although it is easily known in even its slightly developed stages. I once believed that the pathoformic lie was not of great importance in our work, because on the one hand, it is most complete and distinct when it deals with the person of the speaker, and on the other it is so characteristic that it must be recognized without fail by anybody who has had the slightest experience with it. But since, I have noticed that the pathoformic lie plays an enormous part in the work of the criminalist and deserves full consideration.

TOPIC IV.

ISOLATED SPECIAL CONDITIONS.

Section 110. (a) Sleep and Dream.

If a phenomenon occurs frequently, its frequency must have a certain relation to its importance to the criminalist. Hence, sleep

and dream must in any event be of great influence upon our task. As we rarely hear them mentioned, we have underestimated their significance. The literature dealing with them is comparatively rich.[1]

The physician is to be called in not only when we are dealing with conditions of sleep and dream which are in the least diseased, i. e., abnormally intense sleepiness, sleep-walking, hallucinatory dreams, etc., but also when the physiological side of sleep and dream are in question, e. g., the need of sleep, the effect of insomnia, of normal sleepiness, etc. The criminalist must study also these things in order to know the kind of situation he is facing and when he is to call in the physician for a.s.sistance. Ignorance of the matter means spoiling a case by unskilful interrogation and neglect of the most important things. At the very least, it makes the work essentially more difficult.

But in many cases the criminalist must act alone since in those cases there is neither disease nor a physiological condition by way of explanation but merely a simple fact of the daily life which any educated layman must deal with for himself. Suppose, e. g., we are studying the influence of a dream upon our emotions. It has been shown that frequently one may spend a whole day under the influence of a dream, that one's att.i.tude is happy and merry as if something pleasant had been learned, or one is cross, afraid, excited, as if something unhappy had happened. The reason and source of these att.i.tudes is frequently a pleasant or unpleasant dream, and sometimes this may be at work subconsciously and unremembered. We have already shown that so-called errors of memory are to a large extent attributable to dreams.[2]

This effect of the dream may be of significance in women, excitable men, and especially in children. There are children who consider their dreams as real experiences, and women who are unable to distinguish between dreams and real experience, while the senile and aged can not distinguish dreams and memories because their memories and the power to distinguish have become weakened.[3]

I know of an eight-year-old child who after dinner had gone looking for chestnuts with a man. In the evening it came home happy but woke up in tears and confessed that the man in question had [1] Cf. S. Freud: Traumdeutung. Leipzig 1900 (for the complete bibliography). B. Sidis: An Experimental Study of Sleep: Journal of Abnormal Psychology.

[2] Maudsley. Physiology and Pathology of the Mind.

[3] Cf. Altmann in H. Gross's Archiv. I, 261.

raped it. Another case concerns a great burglary which had caused its victims considerable excitement. The second day after the event the ten or twelve-year-old daughter of the victim a.s.serted with certainty that she had recognized the son of a neighbor among the thieves. In both cases there were serious legal steps taken against the suspects, and in both cases the children finally admitted, after much thinking, that they had possibly dreamed the whole matter of their complaints.

The character-mark of such cases is the fact that the children do not make their a.s.sertions immediately, but after one or two nights have pa.s.sed. Hence, whenever this occurs one must entertain at least the suspicion that reality and dreams have been confused.

Similarly, Taine narrates that Baillarger once dreamed that he had been made director of a certain journal, and believed it so definitely that he told it to a number of people. Then there is the familiar dream of Julius Scaliger. Leibnitz writes that Scaliger had praised in verse the famous men of Verona. In dream he saw a certain Brugnolus who complained that he had been forgotten. Later Scaliger's son Joseph discovered that there really had been a Brugnolus who had distinguished himself as grammarian and critic. Obviously Scaliger senior had once known, and had completely forgotten about him. In this case the dream had been just a refres.h.i.+ng of the memory. Such a dream may be of importance, but is unreliable and must be dealt with carefully.

To get at a point of departure concerning the nature of the sleep and the dreams of any given person, we may cla.s.sify them with reference to the following propositions:[1] 1. The vividness of dreams increases with their frequency. 2. The lighter the sleep the more frequent the dreams. 3. Women sleep less profoundly than men and hence dream more. 4. With increasing age dreams become rarer and sleep less profound. b. Who sleeps lightly needs less sleep. 6. The feminine need of sleep is greater. I might add with regard to the last point that the fact that women are better able to endure nursing children or invalids const.i.tutes only an apparent contradiction of this point. The need of sleep is not decreased, but the goodwill and the joy of sacrifice is greater in woman than in man.

The extraordinary things people do in half-dream and in sleep are numerously exemplified by Jessen. Most of them are taken from the older literature, but are quite reliable. A comparison indicates [1] F. Heerwazen Statistische Untersuchung ber Tr

that such somnambulistic conduct occurs most frequently among the younger, more powerful, over-strained people, who, e. g., have not slept for two successive nights, and then have been awakened from deep sleep. It is remarkable that they often act intelligently under such circ.u.mstances--that the physician writes the proper prescription or the factory superintendent gives the proper orders, but neither knows anything about it later on. Criminalistically their significance lies on the one hand in the fact that they can be investigated with regard to their correctness; and on the other that they occur to people who had no reason to falsify. If a defendant tells about some such experience, we lack the means and the power to make an accurate examination of the matter, and tend for this reason to disbelieve him. Moreover, his very position throws doubt upon his statements. But this is just the ground for a careful study of similar occurrences in trustworthy people.[1] All authorities agree that actions during sleepiness[2] occur almost always in the first deep sleep, disturbed by dreams, of over-fatigued, strong individuals.

An important circ.u.mstance is the phenomenon cited by Jessen and others--the capacity of some people to fall calmly asleep in spite of tremendous excitement. Thus, Napoleon fell into deep sleep during the most critical moment at Leipzig. This capacity is sometimes cited as evidence of innocence. But it is not convincing.

We have yet to mention the peculiar illusions of the phenomena of movement which occur just before falling asleep. Panum tells how he once inhaled ether, and then observed, lying in bed, how the pictures on the wall went further and further back, came forward and withdrew, again and again. Similar things happen to sleepy people. Thus, the preacher in church seems progressively to withdraw and return. The criminalistic significance of such illusions may be in the observation of movements by people who are falling asleep, e. g., of thieves who seemed to be approaching the witnesses' beds, though standing still.

That sleeping people may be influenced in definite ways is indubitable. Cases are mentioned in which sleepers could be made to believe any story; they would dream of it, and later on believe it. There is in this connection the story of the officer who acquired the love of a young girl in this fas.h.i.+on; the girl had shown definite distaste for him at first, but after he had told her during her sleep, [1] P. Jessen: Versuch einer wissenschaftlichen Begrndung der Psychologie. Berlin 1885.

[2] Cf. H. Gross's Archiv. XIII 161, XIV 189.

in her mother's presence, of his love and loyalty, she began in the course of time to return it. It is a fact that certain of our burglars believe similar things, and carry them out in most cases with the a.s.sistance of red light, to which they a.s.sign hypnotic power. They claim that with a lantern with red gla.s.s they are able to do anything in the room containing a sleeping individual, and can intensify his sleep by letting the red light fall on his face, and speaking to him softly. Curiously enough this is corroborated by a custom of our mountain lads. They cover a lantern with a red cloth and go with it to the window of a sleeping girl. It is a.s.serted that when the red light falls on the latter's face and it is suggested to her softly to go along, she does so. Then a pointed stone is placed in the girl's way, she steps on it, it wakes her up, and the crude practical joke is finished. It would be interesting, at least, to get some scientific information concerning these cited effects of red light upon sleeping people.

O. Mnnigshoff and F. Piesbergen[1] have thrown some light on the profoundness of sleep--why, e. g., a person hears a thing today and not at another time; why one is awakened and another not; why one is apparently deaf to very loud noise, etc. These authorities found that the profundity of sleep culminates in the third quarter of the second hour. Sleep intensifies and grows deeper until the second quarter of the second hour. In the second and third quarters of that hour, the intensification is rapid and significant, and then it decreases just as rapidly, until the second quarter of the third hour. At that point sleep becomes less and less profound until morning, in the second half of the fifth hour. At this moment the intensity of sleep begins again to increase, but in contrast with the first increase is very light and takes a long time. Sleep, then, reaches its culmination in one hour out of five and a half; from that culmination- point it decreases until it reaches the general level of sleep.

Section III. (b) Intoxication.

Apart from the pathological conditions of intoxication, especially the great intolerance toward alcohol,[2] which are the proper subjects for the physician, there is a large group of the stigmata of intoxication which are so various that they require a more accurate study than usual of their causes and effects. As a rule, people are [1] Zeitschrift f. Biologie, Neue Folge, Band I.

[2] Cf. H. Gross's Archiv. XIII, 177.

satisfied to determine the degree of intoxication by the answers to a few stereotyped questions: Did the man wabble while walking? Was he able to run? Could he talk coherently? Did he know his name? Did he recognize you? Did he show great strength? An affirmative answer to these questions from two witnesses has been enough to convict a man.[1]

As a rule, this conviction is justified, and it is proper to say that if a person is still sufficiently in control of himself to do all these things he must be considered capable of understanding the difference between right and wrong. But this is not always the case. I do not say that irrationality through drink must always obtain when the drunkard is unable to remember what happened while he was drunk. His inability is not determinative, because the circ.u.mstances following a deed have no reflex effect. Even if after the deed a person is ignorant of what he has done it is still possible that he was aware of its nature while committing it, and this possibility is the determinative factor. But the knowledge of what is being done does not in itself make the doer responsible, for if the drunkard beats the policeman he knows that he is fighting somebody; he could not do so without knowing it, and what excuses him is the fact that while he was drunk, he was not aware that he was fighting a policeman, that so far as he is capable of judgment at all, he judges himself to be opposed to some illegal enemy, against whom he must defend himself.

If it be said in opposition that a drunkard is not responsible if he does, when drunk, what he would not do when sober, this again would be an exaggeration. Why, is shown by the many insults, the many revelations of secrets, the many new friends.h.i.+ps of slight intoxication. These would not have occurred if the drunkard had been sober, and yet n.o.body would say that they had occurred during a state of irresponsibility.

Hence, we can say only that intoxication excuses when an action either follows directly and solely as the reflex expression of an impulse, or when the drunkard is so confused about the nature of his object that he thinks himself justified in his conduct. Hence, the legal expressions (e. g., "complete drunkenness" of Austrian criminal law, and "unconsciousness" of the German imperial criminal statute book) will in practice be pushed one degree higher up than ordinary usage intends. For complete intoxication or drunkenness into loss of consciousness usually means that condition in which the individual lies stiff on the ground. But in this condition he can not do anything, [1] H. Gross's Archiv. II, 107.

and is incapable of committing a crime. It must follow that the statutes could not have been thinking of this, but of the condition in which the individual is still active and able to commit crimes by the use of his limbs, but absolutely without the control of those limbs.

If we compare innumerable stories that are told, with verbal reliability, about drunkards, or those that are readable in daily papers, police news, and in legal texts, we find groups in which a drunkard makes his bed on a wintry night on a snow bank, undresses himself, carefully folds his clothes beside him, and runs away at the approach of a policeman, climbs over a fence and runs so fast that he can not be caught. Such a man certainly has not only the use of his organs, but also uses them with comparative correctness in undressing, folding his clothes, and in running away. If now somebody should pa.s.s the drunkard's lair and if he should think that a burglar is in his house and should wound the pa.s.ser-by, who would believe the drunkard when he tells this story?

In the street there is frequent opportunity of observing some of the arrests of drunkards who fight with fists and feet and teeth, and often have to be taken to the police station in a wheel-barrow. Now if the man has had the misfortune of recognizing the policeman in his first opposition, and of giving his own name properly, we say that he has "shown definite signs of responsibility," and we sentence him. But in most cases it was merely the instantaneous illumination of his cindery mind (which was, perhaps, stimulated to the recognition of the policeman and the p.r.o.nunciation of his name by the latter's rather bearish remarks) which then dies away as swiftly as it rose, and is followed by instinctive self-defense. Anybody who has frequently observed how utterly senseless is the battle of a drunkard with the overwhelming power of three or four or more people, and how he continues to struggle, even when wholly or completely conquered, must feel convinced that such a man is no longer responsible.

In the same way we must never forget that the prosecution of some very habitual activity is in no sense evidence of responsibility. Especially when some action has very fine-drawn limits, and the actor knows that a false grip will result in questionable consequences, the habitual movement will be made instinctively. The soldier will properly carry out his obligations of service, the coachman drive home, unharness, and look after the horses, even the locomotive engineer will complete his difficult task without a break--then, however, they fall and sleep their drunkenness off. Now, if something intervenes unexpectedly during the performance of this ha-

bitual activity, especially some opposition, some superfluous cajolement, correction, or similar thing, the intoxicated actor is thrown completely out of gear, and can not be restored to it, nor is he able properly to oppose this obstacle. Hence he acts against it reflexly, and in most cases explosively.

It may be perceived that such a drunkard works unconsciously having been thrown out of gear by some sudden remark, he is unable to complete what he is trying to do, and this develops a despairing expression of emotion for which he is decidedly not responsible. A countless number of popular maxims indicate the popular opinion that it is best to get out of the way of a drunkard, never to help him, because he can best look after himself. The public seems to know this very well, theoretically, but in practice no wife applies this theory when her drunken husband comes home; in practice the policeman looks after the drunkard, in practice the peasant and the master quarrel with the drunken servant and the apprentice,--and then everybody wonders when suddenly superiors are hurt, maimed, and otherwise opposed.

The best evidence for the certain but very definite routine in which the drunkard moves, is the example cited by Combe[1] concerning the porter who, while drunk, had wrongly delivered a packet. Later on he could not think where he had brought it, but as by chance he got drunk again, he fetched the packet, and brought it to its proper destination. This process indicates that the "in vino veritas" depends not merely on speech, but on action, and that this coming to the surface of what is really thought is the reason for so many insults offered during intoxication. Such phenomena are best studied at the beginning of narcosis, in which all the conditions of intoxication come together in a much briefer period of time, and hence appear much more clearly. How involuntarily the inmost thought breaks through under such circ.u.mstances, is shown by an occurrence in a surgical clinic. An old peasant was to have been subjected to a not dangerous but rare operation. The famous surgeon of the University had one student after another make a diagnosis, and asked one student after another what kind of an operation he would perform. The peasant misunderstood it altogether, and as he was half stupefied he cried out involuntarily: "The old donkey is asking one loafer after another what to do. n.o.body knows anything, and yet they are going to operate on me."

[1] Andrew Combe: Observations on Mental Derangement. Edinburgh 1841.

Things that are thought are expressed just as involuntarily during intoxication, and thus the insults, etc., are accomplished.

What is never believed, but yet may be true, is the defence of a prisoner that intoxication led him to steal. I know of a talented, kindly, and thoroughly honorable young man, who during slight intoxication steals everything he can lay his hands on. His drunkenness is so light that he can remove with complete skill his comrades' cigarette cases, pocket handkerchiefs, and worst of all, their latchkeys. At the same time, he is still drunk enough to have great difficulty in remembering, the next day, who the owners of these things are. Now suppose a thief told such a story in court!

I cite from the excellent account of Hoffbauer,[1] the development of intoxication: "At first the consumption of liquor intensifies the feeling of physical health, or increases that health. It appears to have a proportionately similar effect upon the powers of the mind. Ideas move easily, expression is smoother and more adequate. The condition and emotional att.i.tude are such that one might very well always wish for one's self and one's friends. Until this point no intoxication is visible. The flow of ideas only increases and becomes more intense. Excellent, appropriate notions occur to one, but there is effort to restrain the irregular flow of thought. This state is visible in the effort which must be used to carry on any rather involved story. The ideas flow too rapidly to be easily ordered according to the requirements of the story. At this point the beginning of intoxication is already perceptible. In its development the flow of ideas becomes continually stronger, the senses lose their ordinary sharpness, and as these fail the imagination grows stronger. The drinker's language is now, at least in particular expressions and turns of speech, more voluminous and poetical, and rather louder than is natural. The former indicates an intensification of imaginative power, and the latter a dulling of the senses which becomes more and more obvious in the development of the intoxication. For the drinker speaks louder because he hears his words less clearly than before, and judges the hearing of his auditors by his own, although the vividness and the more rapid flow of ideas induced by intoxication have a share in this. Soon the dulling of the senses becomes still more obvious. For example, it is seen that a person who is so drunk that he confuses otherwise well-known companions, even if only for a minute, thinks he puts his gla.s.s softly on the table, [1] J. C. Hoffbauer: Die Psychologie in ihren Hauptanwendungen auf die Rechtspflege. Halle 1823.

although it falls to the ground. And then there are still other forms of physical helplessness to be perceived. From his speech it may be judged that the connection between his ideas has significantly decreased: although still very vivid, they are now like luminous sparks that appear and disappear. This vividness of ideas, or their rapid flow, gives the inebriate's desires an unmanageable intensity which reason can no longer control. He follows them instantaneously if some accident does not turn him aside. His physical helplessness becomes now obvious in stammering, in a wabbly gait, etc., until finally he falls into a deep sleep in which physical and intellectual repair begin.

"If the conditions of intoxication were to be divided into periods, we should have the following: In the first period of intoxication ideas have only an extraordinary degree of vividness. The rule of the understanding over actions is not altogether suppressed, so that the drunken fellow is fully conscious of his external relations and is aware of what is going on within and about him. But the rapid flow of ideas hinders careful reflection and leads to an intensified excitability, particularly to those emotional expressions which are characterized by the more rapid flow; This is due to the familiar psychological law according to which one emotional condition leads into another as it is more like that other in tone. Anger and merriment, hence, show themselves more and more among uneducated people who are not habituated to the limitation of their emotional expression by reference to the forms of the world of fas.h.i.+on. Without this control, every stimulation intensifies the emotion, since every natural expression adds to its vividness. The irritability taken in itself is at this stage less dominant, inasmuch as the drinker is at the same time satisfied with himself, and the self-satisfaction makes the irritability endurable. Only some accidental circ.u.mstance can intensify and spread this irritability. Such circ.u.mstances intensify the drunkard s liveliness and lead to the outbreak of merriment approximating upon hilarity, then to a verbal quarrel, which need not yet be a real quarrel and may be conducted in all friends.h.i.+p. It seems that in most cases the irritability is excited through the fact that the drunkard's self-satisfaction speedily lapses, or that he is disturbed in doing things about which he is conceited. Now so long as the intoxication does not exceed this stage, its effects and the outbreaks of its pa.s.sions may be suppressed. The drinker is here still self-possessed and is not likely to lose control of himself unless he is progressively excited thereto.

"In the next period of intoxication, the drunkard still has his senses, although, all in all, they are considerably weaker than usual, and he is somewhat beside himself. Memory and understanding have quite left him. Hence, he acts as if the present moment were the only one, the idea of the consequences of his actions having no effect upon him because he no longer sees the connection between the two. And since his whole past has disappeared from his mind he can not consider his more remote circ.u.mstances. He acts, therefore, as he might if the memories of his circ.u.mstances and ideas of the consequences of his actions did not control his conduct, and lead him to rule himself. The slightest excitation may awaken all his strongest pa.s.sion which then carry him away. Again, the slightest excuse may turn him from what he has in mind. In this condition he is much more dangerous to himself and others because he is impelled not only by the irresistible force of his pa.s.sions, but because, also, he rarely knows what he is doing and must be considered a pure fool.

"In the last period, the drunkard has so lost his senses that he has no more idea of his external environment."

With regard to particular conditions, it may be held that the quant.i.ty of drink is indifferent. Apart from the fact that we know nothing about the quant.i.ty of alcohol a man has taken when we hear merely about so and so many liters of wine or so and so much brandy, the influence of quant.i.ties is individual, and no general rule whatever can be laid down. As a matter of fact, there are young and powerful men who may become quite foolish on half a gla.s.s of wine, especially when they are angry, frightened, or otherwise excited, and there are weak old people who can carry unbelievable quant.i.ties. In short, the question of quant.i.ty is altogether foolish. The appearance and const.i.tution of an individual offers as little ground for inference as quant.i.ty. The knowledge of a man's regular att.i.tude toward the consumption of alcohol is a safer guide. h.e.l.lenbach a.s.serts that wine has always the same influence on the same individual; one always becomes more loquacious, another more silent, a third more sad, a fourth merrier. And up to a certain limit this is true, but there is always the question of what the limit is, inasmuch as many individuals pa.s.s through different emotional conditions at different stages. It often happens that a person in the first stage who wants to "embrace the world and kiss everybody," may change his mood and become dangerous. Thus, anybody who has seen him several times in the first stage may make the mistake of believing that he

can not pa.s.s it. In this direction explanations must be made very carefully if they are not to be false and deceptive.

It is important, also, to know how a man drinks. It is known that a small quant.i.ty of wine can intoxicate if it is soaked up with bread which is repeatedly dipped into the wine. Wine drunk in the cellar works with similar vigor if one laughs, is merry, is vexed, while drinking, or if a large variety of drinks is taken, or if they are taken on an empty stomach. For the various effects of alcohol, and for its effects on the same person under different conditions, see Mnsterberg's "Beitrage zur Experimentellen Psychologie," Heft IV.

The effect of alcohol on memory is remarkable in so far as it often happens that many people lose their memory only with respect to a single very narrow sphere. Many are able to remember everything except their names, others everything except their residence, still others everything except the fact that they are married, and yet others every person except their friends (though they know all the policemen), and the last cla.s.s are mistaken about their own ident.i.ty. These things are believed like many another thing, when told by a friend, but never under any circ.u.mstances when the defendant tells them in the court room.

Section 112. (c) Suggestion.

The problems of hypnotism and suggestion are too old to permit the mere mention of a few books, and are too new to permit the interpretation of the enormous literature. In my "Manual for Examining Judges," I have already indicated the relation of the subject to criminal law, and the proper att.i.tude of criminalists to it. Here we have only to bear in mind the problem of characteristic suggestion; the influence of the judge on the witnesses, the witnesses upon each other, the conditions upon the witnesses. And this influence, not through persuasion, imagination, citation, but through those still unexplained remote effects which may be best compared with "determining." Suggestion is as widespread as language. We receive suggestions through the stories of friends, through the examples of strangers, through our physical condition, through our food, through our small and large experiences. Our simplest actions may be due to suggestion and the whole world may appear subject to the suggestion of a single individual. As Emerson says somewhere, nature carries out a task by creating a genius for its accomplishment; if you follow the genius you will see what the world cares about.

This multiple use of the word "suggestion" has destroyed its early intent. That made it equivalent to the term "suggestive question." The older criminalists had a notion of the truth, and have rigorously limited the putting of suggestive questions. At the same time, Mittermaier knew that the questioner was frequently unable to avoid them and that many questions had to suggest their answers. If, for example, a man wants to know whether A had made a certain statement in the course of a long conversation, he must ask, for good or evil, "Has A said that ... ?"

Mittermaier's att.i.tude toward the problem shows that he had already seen twenty-five years ago that suggestive questions of this sort are the most harmless, and that the difficulty really lies in the fact that witnesses, experts, and judges are subject, especially in great and important cases, to the influence of public opinion, of newspapers, of their own experiences, and finally, of their own fancies, and hence give testimony and give judgments in a way less guided by the truth than by these influences.

This difficulty has been made clear by the Berchthold murder- trial in Mnchen, in which the excellent psychiatrists Schrenck- Notzing and Grashey had their hands full in answering and avoiding questions about witnesses under the influence of suggestion.[1] The development of this trial showed us the enormous influence of suggestion on witnesses, and again, how contradictory are the opinions concerning the determination of its value--whether it is to be determined by the physician or by the judge, and finally, how little we know about suggestion anyway. Everything is a.s.signed to suggestion. In spite of the great literature we still have too little material, too few observations, and no scientifically certain inferences. Tempting as it is to study the influence of suggestion upon our criminalistic work, it is best to wait and to give our attention mainly to observation, study, and the collection of material.[2]

[1] Schrenck-Notzing: ber Suggestion u. Errinerungsf

[2] 51. Dessoir Bibliographie des modernen Hypnotismus. Berlin 1890. W. Hirsch: Die Mensehliche Verantwortlie it u. die moderne Suggestionslehre. Berlin 1896. L. Drucker: Die Suggestion u. Ihre forense Bedeutung. Vienna 1S93. A. Cramer. Gerichtliche Psychiatrie. Jena 1897. Berillon Les faux temoignages suggrs. Rev. de l'hypnot. VI, 203. C. de Lagrave: L'autosuggestion naturelle. Rev de I hypnot. XIV, 257. B. Sidis: The Psychology of Suggestion.

{The remainder of this etext is "raw" OCR output!!} APPENDIX A.

Bibliography including texts more easily within the reach of English readers.

ABBOTT, A. Brief for the Trial of Criminal Causes. New York, 1889 2d ed., Rochester, 1902. ABBOTT, B. V. Judgell and Jury. New York, 1880. ANTONINI, G. Studi di psicopatologia forense. 1901. ARCHER, T. The Pauper, the Thief and the Convict; Sketches of Names, Haunts and Habits. London, 1865, ARNOLD, G. F. Psychology applied to Legal Evidence and other Con- structions of Law. New York & Calcutta, 1906. AsCHAFFENBURG, G. Das Verbrechen und seine Bekimpfung; Kriminal- psychologie fr Mediziner, Juristen und Soziologen; ein Beitrag zur Reform der Strafgesetzgebung. Heidelberg, 1903; 9.d ed., 1906. ASCHAFFENBURG, G., SCHULTZE, E., and WALLENBERG. Handbuch der gerichtlichen Psychiatrie. Berlin, 1901.

BATTAGLIA. La dinamica del delitto. Napoli, 1886. BECK, T. R. and J. B. Elements of Medical Jurisprudence. 5th ed. Phila- delphia, 1835. 7th ed., 1838. 10th ed., 1850. 11th ed., 1860. 12th ed., 1863. BEGGS, T. Extent and Causes of Juvenile Depravity. London, 1849. BELL, J. S. The Use and Abuse of Expert Testimony. Philadelphia, 1879. BENEKE, H. F. Gefiingnisstudien -mit besonderer Berficksichtigung der Seelsorge im. Untersuchungsgefdngnis, Hamburg, 1903, BEST, W. M. Law of Evidence. Ist ed., London, 1849. 9d ed., 1855. 3d ed., 1860. 4th ed., 1866. 5th ed., by Russell, 1870. 6th ed., by Russell, 1875. 7th ed., by Lely, 1882. 8th ed., by Lely, 1893. BEVILL, R. Homicide and Larceny. London, 1799. BIDWELL, G. Forging his own Chains; the story of George Bidwell. Is9l. BILLIOD, E. Wie Man stiehlt und mordet. Leipzig, 1906. BLACKET, J. Social Diseases and Suggested Remedies. Stockwell, 1905. BLASHFIELD, D. C. Instructions to Juries, Civil and Criminal. St. Paul, 1902. BOONE, A. B. Increase of Crime and its Cause. Boston, 1872. BRAGG, J. (ed. Ardill, G. E.). Confessions of a Thief. Sydney, N. S. W., 189-. BRESLER. Greisenalter und Kriminalitht. Halle, 1907. BROWN. The Dark Side of the Trial by Jury. London, 1859. BROWNE, H. C. B. Medical Jurisprudence of Insanity. 2d ed., San Fran- cisco, 1875. BUCHANAN, W. Juvenile Offenders. Remarks on the causes and state of juvenile crime in the metropolis; with hints for preventing its increase. London,1867.

BUCHNET. The Relation of Madness to Crime. New York, 1884. BUCKHAM, T. R. Insanity considered in its medico-legal relations. Phila- delphia, 1883. BUCKNILL, J. C. Criminal Lunacy, Phil., 1856. BUCKNILL, J. C. and TuKE, D. H. Psychological Medicine. 3d ed., London,1874. BURRILL, A. M. Circ.u.mstantial Evidence. New York, 1868.

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