The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1869-03-18
Professional Criminals.

Lord Kimberley, will mark a com mpletely new
era In our criminal Jurisprudence. We have
reason to believe that it will aim at two OBJ
lects never before seriously contem plated by
Pariiament. The first of these objects is to
throw upon persons reasonably suspected of
crime the burden of proving their Innocence
In certain cases. The second is the object of
restricting, under certain circumstances, the
wide discretion as to the amount of punish
ment to be- awarded which is at present vested
In the judges, and of ompelling them after
certain number of convictions to pass heavy
sentences of penal servitude Each of these
objects ie, we think, a good one, subie ect
always to certain limitations which are impe-
ratively required by the peculiar manner in
which the law of this country has been
framed.
With regard to the burden of proof we have
always felt that by laying it on parsons reason
ably suspected of being criminals, 1t would bs
possible to bring to justice upon very short
notice almost every mau known to the police
to be professional criminal. The only diff
culties in doing so are two. In the first place
there is the difficulty of defining the class who
are to be brought under the operation of the
Mw; and in the second place there is the diff
entity of deciding what to do with the profess
si0Dal criminal when you have got him. The
fact that each of these questions does present
a real difficulty is no reason for not proceed
ing with the measure, but it is highly desira-
BILE to discover, If possible, the nature and
limits of the difficulties in question, in order
to see what is the best way OF dealing with
them. With pect to the definition OF the
class who are to be called upon when required
to prove their innocence by showing that they
have some honest means of making living,
there can be little doubt that the Legislature
will be asked to resort to the test of previous
convictions for felony.
1t will probably be proposed that after a
second or third con nviction for felony, perhaps
within specified period, certain consequences
shall follow in respect to the liability of the
person to be compelled to prove his innocence
In defense of this it will be said that no other
test can be taken, and this, no doubt, is true.
But 1t must at the same tune be admitted that
the test is lamentably defective, and that the
defect is not the less serious because, prscti-
cally speaking, it may be incapable of being
remedied without very extensive alterations in
the whole framework of the criminal law. II
has frequently been pointed out that the cri-
minal law of this country is unfavorably dis
tinguished from almost every other system OF
criminal law by the fact that it has nothing
like rational classification of crimes. The
words "felOny" and "misdemeanor," which
are intended to supply such a classification,
are wretchedly defective.
The fact that man has been convicted of
felony may indicate that he has committed an
offense of the most triAing kind. The fact
that he has been convicted of misdemeanor
may prove that he is professional criminal.
Suppose, for instance, it was proved in rela-
tion to one man that he had systematically
passed bad coin or obtained goods by false
pretenses, and of another tnat on one occa-
sien he had stolen few pounds of mutton,
which would be the greater criminal and the
more suspicious person? Yet to obtain goods
by false pretenses is misdemeanor, and so
nnoat n the Offausaa 10 whioh ba
mitted against the coinage, while the most
petty theft is felony. This proves that 1t
is exceedingly unfortunate that such a test as
previous convictions for felony must be taken
because no other can be devised. Not only,
however, is this unfortunate, but there is a
further misfortune in the difficulty OF distin-
gushing between crime. 1t is one thing to
look at statistical tables giving returns Of the
number of persons repeatedly convicted for
felonies, and another thing to sit in courts Of
Justice and see the criminals and hear the
witnesses who give an account OF their crimes.
There is something very ominous, no doubt,
d. in the expression "previous conviction" but
in many instances previous conviction for
felony indicates very little. The police and
the governors of prisons pride themselves
naturally and properly on keeping their ac-
counts with great accuracy, and previous con-
victions are continually returned in cases
where the facts took place many years before,
and were exceedingly tr,aing. We have
known instances of previous convictions which
have been brought forward twenty years after
their occurrence for isolated otfenses of very
little importance. The practical inference
iG0m these imperfecti0ns in the legal classif-
cation of crime and in the classification of par
ticular crimes, appears to us to be that it would
be great mistake to lay down rules of great
rigidity as to the consequence OF previous
convictions. To say, for Instance, that il
every case Of a previous conviction
of felony such and such consequences
should follow as to the liability o
the person convicted to police supervi
sion, and as to the burden of provini
that he was getting a livelihood by homes
means, would surely be iDjudici0us. The Law
being so i'll arranged -as 1t is, and the fact
admitting of such an infinite amount Of varia
ton, it would surely be right and natural Il
leave q great deal to the discretion OF thu
Judge, and to enable him to make it part of hi
sentence, il that course appeared to him to b.
advisable, that the prisoner should be liabl
TO police superintendence for so many years
Given particular case, with the special fact
connected with it, there is no great difficult
in deciding whether II is to be regarded as al
isolated oifense or as an indication Of somethln
worse: bat If the law once lays down an IL
flexible rule for all peYsons who bring them
selves within the legal dehnition OF felony, !
will infallibly infiict great deal OF hardship
and injustice. 49,,
THESE remarks apply even more forcibly b
any proposal which may be made TO enforc
the appiioation OF q minimum punishment I
certain Glasses Of offenders. Minimum pux
ishments are always to be avoided. No SKI
in definition which can be employed, exceI
in a very few and very peculiar cases, WI WI