Robin Hood
by
J. Walker McSpadden

in question knows it as such in the beginning but forgets it at the
end. Such false memories are numerous among barbarous peoples
and among raw, untrained, and childish minds. They see a simple
fact; the more they think of it the more they see in it; they magnify
and decorate it with environing circumstances, and finally, unite
all the details into a whole in memory. Then they are unable to
distinguish what is true from what is not. Most legends develop
in this way. A peasant assured Taine that he saw his sister's soul
on the day she died,--though it was really the light of a brandy
bottle in the sunset.

In conclusion, I want to cite a case I have already mentioned,
which seems to me significant. As student I visited during vacation
a village, one of whose young peasant inhabitants had gone to town
for the first time in his life. He was my vacation play-mate from
earliest childhood, and known to me as absolutely devoted to the
truth. When he returned from his visit, he told me of the wonders
of the city, the climax of which was the menagerie he had visited.
He described what he saw very well, but also said that he had seen
a battle between an anaconda and a lion. The serpent swallowed
the lion and then many Moors came and killed the serpent. As
was immediately to be inferred and as I verified on my return, this
battle was to be seen only on the advertising posters which are
hung in front of every menagerie. The lad's imagination had been
so excited by what he had seen that day that the real and the imagined
were thoroughly interfused. How often may this happen to our
witnesses!

If the notion of imagination is to be limited to the activity of
representation, we must class under it the premonitions and forewarnings
which are of influence not only among the uneducated.
Inasmuch as reliable observations, not put together a posteriori,
are lacking, nothing exact can be said about them. That innumerable
assertions and a semi-scientific literature about the matter exists,
is generally familiar. And it is undeniable that predictions, premonitions,
etc., may be very vivid, and have considerable somatic influence.
Thus, prophecy of approaching death, certain threats or
knowledge of the fact that an individual's death is being prayed for,
etc., may have deadly effect on excited people. The latter superstition
especially, has considerable influence. Praying for death, etc.,
is aboriginal. It has been traced historically into the twelfth century
and is made use of today. Twelve years ago I was told of a case
in which an old lady was killed because an enemy of hers had the

death-mass read for her. The old lady simply died of fright. In
some degree we must pay attention to even such apparently remote
questions.


(d) _Misunderstandings_.

Section 106. (I) Verbal Misunderstandings.[1]

Here too it is not possible to draw an absolutely definite boundary
between acoustic illusions and misunderstandings. Verbally we
may say that the former occur when the mistake, at least in its
main characteristic, is due to the aural mechanism. The latter is
intended when there is a mistake in the comprehension of a word or
of a sentence. In this case the ear has acted efficiently, but the mind
did not know how to handle what had been heard and so supplements
it by something else in connection with matter more or less senseless.
Hence, misunderstandings are so frequent with foreign words.
Compare the singing of immigrant school children, ``My can't three
teas of tea'' for ``My country 'tis of thee,'' or ``Pas de lieu Rhone
que nous'' with ``Paddle your own canoe.''[2]

The question of misunderstandings, their development and solution,
is of great importance legally, since not only witnesses but clerks
and secretaries are subject to them. If they are undiscovered they
lead to dangerous mistakes, and their discovery causes great trouble
in getting at the correct solution.[3] The determination of texts
requires not only effort but also psychological knowledge and the
capacity of putting one's self in the place of him who has committed
the error. To question him may often be impossible because of the
distance, and may be useless because he no longer knows what he
said or wanted to say. When we consider what a tremendous amount
of work classical philologists, etc., have to put into the determination
of the proper form of some misspelled word, we can guess how needful
it is to have the textual form of a protocol absolutely correct. The
innocence or guilt of a human being may depend upon a misspelled
syllable. Now, to determine the proper and correct character of
the text is as a rule difficult, and in most cases impossible. Whether
a witness or the secretary has misunderstood, makes no difference
in the nature of the work. Its importance remains unaffected, but
in the latter case the examining justice, in so far as he correctly


[1] Many omissions have been necessitated by the feet that no English equivalents
for the German examples could be found. [Translator.]

[2] Cf. S. Freud: Psychopathologie des Alltagsleben

[3] Cited by James, Psychology, Buefer Course.

remembers what he has heard, may avoid error. The mistakes of
the secretaries may in any event be reduced to a minimum if all
protocols are read immediately, and not by the secretary but by the
examining judge himself. If the writer reads them he makes the
same mistakes, and only a very intelligent witness will perceive
them and call attention to them. Unless it so happens the mistake
remains.

I cite a few of the errors that I have observed. From a protocol
with the suspect: ``On the twelfth of the month I left Marie Tomizil''
(instead of, ``my domicile''). Instead of ``irrelevant,''--``her
elephant.'' Very often words are written in, which the dictator only
says by the way; e. g., ``come in,'' ``go on,'' ``hurry up,'' ``look
out,'' etc. If such words get into the text at all it is difficult to puzzle
out how they got in. How easily and frequently people misunderstand
is shown by the oath they take. Hardly a day passes on which
at least one witness does not say some absolute nonsense while
repeating it.

The discovery of such errors and the substitution of what is
correct brings us back to the old rule that the mere study of our own
cases can not teach us anything, since the field of view is too narrow,
the material too uniform, and the stimulation too light. Other
disciplines must be studied and examples from the daily life must
be sought. Goethe, in particular, can teach us here. In his little
monograph, ``Hr-, Schreib- and Druckfehler,'' he first tells
that he had discovered the most curious mistakes in hearing when he
reread dictated letters, mistakes which would have caused great
difficulty if not immediately looked after. The only means for the
solution of these errors is, he says, ``to read the matter aloud, get
thoroughly into its meaning and repeat the unintelligible word so
long that the right one occurs in the flow of speech. Nobody hears
all that he knows, nobody is conscious of all that he senses, is able
to imagine, or to think. Persons who have never been to school
tend to turn into German all Latin and Greek expressions. The
same thing happens just as much with words from foreign languages
whose pronunciation is unknown to the writer . . . and in dictation
it occurs that a hearer sets his inner inclination, passion, and need
in the place of the word he has heard, and substitutes for it the name
of some loved person, or some much desired good morsel.'' A better
device for the detection of errors than that suggested by Goethe
cannot be found, but the protocol or whatever else it may be must
be _*read_; otherwise nothing helps. Many mistakes are due, as

Mnsterberg points out, to the fact that the word is seen for just
an instant, and it is easy to misread a word so seen if some similar
word had been heard or seen just before. The most senseless corruptions
of text occur often, and it seems extraordinary how they
may be overlooked. Andresen points out that the reason for all
popular explanations is the consciousness of language which struggles
against allowing any name to be an empty sound, and still more,
strives to give each term a separate meaning and an indubitable
intelligibility. The human mind acts here instinctively and navely
without any reflection, and is determined by feeling or accident.
Then it makes all kinds of transformations of foreign words.

This fits with the analogous observation that a group of Catholic
patron saints depend for their character on their names. Santa
Clara makes clear vision, St. Lucy sounds like lucida, and is the
saint of the blind; St. Mamertus is analogous to mamma, the
feminine breast, and is the patron saint of nurses and nursing women.
Instructive substitutions are Jack Spear, for Shakespeare, Apolda
for Apollo; Great victory at le Mans, for Great victory at Lehmanns;
``plaster depot,'' for ``place de Repos.''

Andresen warns us against going too far in analysis. Exaggerations
are easy, particularly when we want to get at the source of a
misunderstanding because of the illegibility of the style. Our task
consists, first of all, in getting at the correctness of what has been
said or written, otherwise we have nothing whatever to go by. Only
when that is quite impossible may we assume misunderstandings
and seek them out. The procedure then must be necessarily linguistic
and psychological and requires the consultation of experts in both
fields. Certain instructive misunderstandings of the most obvious
sort occur when the half-educated drop their dialect, or thoroughly
educated people alter the dialectical expressions and try to translate
them into high German.

It is frequently important to understand the curious transposition
in meaning which foreign words get, e. g., commode, fidel, and
famos. A commode gentleman means in German, a pliable person;
and a fidel lad is not a loyal soul, but a merry, pleasure-
seeking one; famos--originally ``famous,''--means expensive or
pleasant.

It may be not unimportant to understand how names are altered.
Thus, I know a man who curiously enough was called Kammerdiener,
whose father was an immigrant Italian called Comadina, and I
know two old men, brothers, who lived in different parts of the

country, one of whom was called Joseph Waldhauser, the other Leopold
Balthasar. In the course of the generation the name had so completely
changed that it is impossible to say which is correct. Again,
a family bearing the name Theobald is of French origin and used
really to be called Du Val. In Steiermark, which had been over-run
with Turks two hundred years ago, there are many family names of
Turkish origin. Thus Hasenhrl may come from Hassan ri;
Salata from Saladin; Mullenbock, from Mullei Beg; Sullman from
Soliman.


Section 107. (2) _Other Misunderstandings_.

The quantitative method of modern psychophysics may lead to
an exact experimental determination of such false conceptions and
misunderstandings as those indicated above, but it is still too young
to have any practical value. It is vitiated by the fact that it requires
artificial conditions and that the results have reference to artificial
conditions. Wundt has tried to simplify apparatus, and to bring
experiment into connection with real life. But there is still a far
cry from the psychological laboratory to the business of life. With
regard to misunderstandings the case is certainly so. Most occur
when we do not hear distinctly what another person is saying and
supplement it with our own notions. Here the misunderstanding
is in no sense linguistic, for words do not receive a false meaning.
The misunderstanding lies in the failure to comprehend the sense
of what we have heard, and the substitution of incorrect interpretations.
Sometimes we may quite understand an orator without having
heard every word by simply adding these interpretations, but the
correctness of the additions is always questionable, and not only
nature and training, but momentary conditions and personal attitude,
make a considerable difference. The worst thing about the matter
is the fact that nobody is likely to be aware that he has made any
interpretations. Yet we do so not only in listening, but in looking.
I see on a roof in the distance four white balls about the nature of
which I am uncertain. While looking, I observe that one of the balls
stretches out head and tail, flaps its wings, etc., and I immediately
think, ``Oh, those are four pigeons.'' Now it may be true that they
are four pigeons, but what justification had I for such an interpretation
and generalization from the action of one pigeon? In this instance,
no doubt, it would have been difficult for me to make a mistake,
but there are many cases which are not so obvious and where the
interpretation is nevertheless made, and then the misunderstanding

is ready to hand. Once my wife and I saw from our seats in the car
a chimney-sweep who stood in a railroad station. As he bent over,
looking for a lost coin, my very myopic wife cried out, ``Look at
the beautiful Newfoundland dog.'' Now this is a conceivable illusion
for a short-sighted individual, but on what basis could my good
lady interpret what she saw into the judgment that it was a Newfoundland
dog, and a beautiful one at that? Taine illustrates a
similar process with the story of a child who asked why his mother
had put on a white dress. He was told that his mother was going
to a party and had to put on her holiday clothes for that purpose.
After that, whenever the child saw anybody in holiday attire, green
or red or any other color, it cried out,--``Oh, you have a white
dress on!'' We adults do exactly the same thing. As Meinong says
so well, we confuse identity with agreement. This proposition would
save us from a great many mistakes and misunderstandings if kept
in mind.

How frequently and hastily we build things out is shown by a
simple but psychologically important game. Ask anybody at hand
how the four and the six look on his watch, and let him draw it.
Everybody calmly draws, IV and VI, but if you look at your watch
you will find that the four looks so, IIII, and that there is no six.
This raises the involuntary question, ``Now what do we see when
we look at the watch if we do not see the figures?'' and the further
question, ``Do we make such beautiful mistakes with all things?''

I assert that only that has been reliably seen which has been
drawn. My father asked my drawing teacher to teach me not to
draw but to observe. And my teacher, instead of giving me copies,
followed the instruction by giving me first one domino, then two,
then three, one upon the other, then a match box, a book, a candlestick,
etc. And even today, I know accurately only those objects
in the household which I had drawn. Yet frequently we demand
of our witnesses minutely accurate descriptions of things they had
seen only once, and hastily at that.

And even if the thing has been seen frequently, local and temporal
problems may make great difficulties. With regard to the first
class of problems, Exner[1] cites the example of his journey from
Gmunden to Vienna in which, because of a sharp curve in the road,
he saw everything at Lambach reversed, although the whole stretch
of road was familiar to him. The railroad trains, the public buildings,
the rivers, all the notable places seemed to lie on the wrong side. This


[1] S. Exner: Entwurf, etc.

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 circumstances 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 entity 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 fashion: ``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 identities 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 coarse
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 class, 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
accumulate 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 assured 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 restitution 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 passive, 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 assume 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 circumstances. 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 glass 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 glass, 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
glass 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 glass 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 circumstances 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 attitude 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,'' ``nobody 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
attitudes. 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 assertor of his innocence finally begins
to believe in it a little, or altogether. And lying witnesses still
more frequently begin to hold their assertions 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 kontrre Sexualempfindung. Berlin 1893.

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 assume 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 passes,
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. Ncke: Zeugenaussage in Akohol. Gross's Archiv. XIII, 177 and H.
Gross, I 337.

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
circumstances the consciousness of even mentally disturbed people
and idiots becomes remarkably clear, and very often astonishing
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 passed 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 class of people who can not be shown to be in any
sense diseased, and who still lie in such a fashion that they can not
be well. The development of such lies may probably be best assigned
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 prostitutes 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
sex, perhaps to perversity or impotence, or exaggerated sexual 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 assistance. 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 attitude 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 attitudes 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 asserted 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 assertions immediately, but after one or two nights
have passed. 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 refreshing
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 classify 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 constitutes 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 Trume und Schlaf. Wundt's
Philosophische Studien V, 1889.

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 circumstances--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 circumstance 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 fashion; 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
assistance of red light, to which they assign hypnotic power. They
claim that with a lantern with red glass 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 asserted 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 circumstances 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 friendships of slight
intoxication. These would not have occurred if the drunkard had
been sober, and yet nobody 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 pass the drunkard's lair and if he should think
that a burglar is in his house and should wound the passer-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 pronunciation 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 circumstances, 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.
Nobody 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 attitude 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 glass 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 fashion. 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 circumstance can
intensify and spread this irritability. Such circumstances 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 friendship.
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 passions 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 circumstances. He acts, therefore,
as he might if the memories of his circumstances 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
passion 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 passions, 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 quantity
of drink is indifferent. Apart from the fact that we know nothing
about the quantity 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 quantities 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 glass of wine, especially
when they are angry, frightened, or otherwise excited, and there are
weak old people who can carry unbelievable quantities. In short,
the question of quantity is altogether foolish. The appearance and
constitution of an individual offers as little ground for inference as
quantity. The knowledge of a man's regular attitude toward the
consumption of alcohol is a safer guide. Hellenbach asserts 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
pass 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 pass 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 quantity 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 class are mistaken about their own identity.
These things are believed like many another thing, when told by a
friend, but never under any circumstances 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 attitude 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 attitude 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 assigned 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. Errinerungsflsehung im Berehthold-
Prozess. Leipzig 1897.

[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.

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SERIALS

(o. p.) Indicates that the journal is known to have ceased publication.
* Indicates that the journal is continued from the date given.
UNITED STATES.
(o.p.) Criminal Law Magazine. Jersey City, Vols. I-XVIII, 1890-1896,
Medico-Legal Journal. ed. Bell, C. New York, 1884.*
(o.p.) Psychological and Medico-Legal Journal. New York, 1874-1875.

AUSTRIA.
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FRANCE.
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logic criminelle et des sciences penales). Founded Laccassagne, Gar-
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GERMANY.
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ed. Liszt, F. von. Berlin, 1888 * (irregular-, new ser., Vol. V, 1908.)
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Bresler, J. Halle, 1905 * (irregular; Vol. VI, 1908).
Monatsschrift ffir Kriminalpsychologie und Strafrechtsreform. ed., Aschaf-
fenburg, Moss, von Lilienthal, and von Liszt. Heidelberg, 1904.*
Zeitschrift far angewandte Psychologie und psychologische Sammelforschung
(continuation of Beitriige zur Psychologie der Aussage). ed. Stern,
L. W., and Lipmann. 0. Leipzig, 1907.*
(o.p.) Zeitschrift fiir Criminal-Anthropologie, Gefiingniswissenchaft und
Prostitutionswesen. ed. Wenge, W. I vol., Berlin, 1897.

ITALY
Archivio di psichiatria, scienze penale, ed antropologia criminale (formerly
entitled, Archivio di psichiatria, neuropathologgia, antropologia criminale,
e medicina legale). Dir., Lombroso, C., Garofalo, B. R., and Ferri,
E.; ed. Andenino. Torino, 1880.*

SOUTH AMERICA
Archivos de criminologia, medicina legal y psiquiatria. ed. Ramos e In-
gegnieros, J. Buenos Aires, 1902.*

Criminologia moderna. ed. Gori, P. Buenos Aires, 1899.*



APPENDIX B.

_Works on Psychology of General Interest_.

ANGELL, JAMES R. Psychology. New York. H. Holt & Co. 1904.

BALDWIN, J. M. Handbook of Psychology. New York, 1891.
BELL, SIR CHARLES. The Hand - Its Mechanism and Vital Endowments.
Philadelphia, 1835.
BINET, A. Le fatigue intellectuelle. Paris, 1898.
BOURDON, B. L'expression des �motions et des tendances dan le langage.
Paris, 1892.

CHAMBERLAIN, ALEXANDER FRANCIS. The Child: a study in the evolu-
tion of man. London, 1907.
COWLES, E. The Mental Symptoms of Fatigue. New York, 1893.

DEWEY, JOHN. Psychology. 3d ed. New York.

EBBINGHAUS, H. Psychology. An Elementary Text-book (translated by
Max Meyer). Boston, 1908.

FREUD, S. Zur psychopathologie, des alltagslebens, etc. 2' aufl., Berlin,
1907.
-Die Traumdeutung.

HALL, G. STANLEY. Youth; its Educative Regimen and Hygiene. New
York, 1907.

JAMES, W. The Principles of Psychology. 2 vols. New York, 1890.
JANET, PIERRE. Lautomatisme psychologique. Paris, 1889.
The Major Symptoms of Hysteria. N. Y., 1907.
JAsTRow, J. The Subconscious.
JONES, E. E. The Influence of Bodily Posture on Mental Activities. N. Y.,
1907.
JUDD, C. ff. Psychology. N. Y., 1907.

KING6 IRVING. The Psychology of Child-development. Chicago, 1904.
91d ed

MACDONALD, A. Abnormal Man. Washington, 1893 (United States Bureau
of Education Circular of Information, 1893, No. 4).
AIANASEINE, MARIYA. Sleep, its physiology, pathology, hygiene and psy-
chology. London, 1908.

MARSH, H. D. The Diurnal Course of Efficiency. N. Y., 1906.
MERCIER, CHARLES A. Psychology, normal and morbid. London, 1901.
MOORE, C. C. A treatise on facts or the weight and value of Evidence.
2 vols. Northport, 1908.
Mosso, A. Fatigue. (Tr. by Margaret Drummond and W. B. Drummond.)
N. Y. and London, 1906.

NORSWORTHY, NAOMI. The psychology of mentally deficient children.
N. Y., 1906.

OFFNER, MAX. Das Geddchtnis, etc. Berlin, 1909.

PAULHAN, F. La fonction de la memoire et le souvenirs affectif. Paris, 1904.
PILLSBURY, W. B. Attention. New York, 1908.

RIBOT, T. The Psychology of the Emotions. London, 1897.

SCOTT, W. D. The Psychology of Public Speaking. Phil., 1907.
SIDis, B. The Psychology of Suggestion. N. Y., 1898.
SIGHELr, Scipio. La foule criminelle: essai de psychologie collective.
Paris, 1901.
STOUT, G. F. Manual of Psychology. London, 1907.

TARDE, G. L'opinion et la foule. 2d �d. Paris, 1904.
TITCHENIOR, E. B. Lectures on the Elementary Psychology of Feeling and
Attention. N. Y., 1908.
A Text-book of Psychology. N. Y., 1909. (New ed. with additions.)

WELLS, FREDERIC L. Linguistic Lapses. With especial reference to the
perception of linguistic sounds. N. Y., 1906.



INDEX.

A

ABERCROMBIE, 216, 274.

Accompaniments, imitative, of action,
48.

Accuracy, psychological, and require-
ments of law, 107.

Affection, and passion, in judges, 417;
in witnesses, 418; and hatred, 418.

After-images, 442.

Aged, memory of, 272.

Aim, of applied psychology of states
of mind, 3.

ALEMBERT, 172.

ALFIERI, 393.

ALTMANN, 481.

Amnesia, retrograde, 274.

Analogy, 144; danger of, 145, 147;
justification of, 146.

ANDRESEN, 469.

Anger, 286; as motive, 72; against
object, 71; against self, 75.

ANGELL, 187.
Apriorism, 127.
ARISTOTLE, 101, 160, 165, 188, 254,
271, 302.
ARNHEim, 210.

Arrest, influence of, 67.

Association, 254; difficulties of, 255;
physical expression of, 256.

Assumption, 148, 149.

Astonishment, described, 92; causes
of, 93; significant in law, 93.

Attention, effect of, 40; and the sub-
conscious, 248.

Attitude, intellectual, varieties of,
376; emotional, 377; of indiffer-
ence, 378; influence of bodily con-
ditions on~ 380.

&ttraction, feeling of, 286.

AUBERT, 169, 191, 199, 202, 203, 205,
206, 225, 247, 428.

AUERBACH, 192.

Authority, 242.
Autodidacts, 393.
Avocation, and error, 65.

B
BAER, 85, 415.
BAiTS, 5.
BAIN, 75.
BALDwiN, 364.
BALZAC, 102, 342, 353.
BAZERQUE, 272.
BECHTEREw, 245.
BECKER, 302.
BELL, 44, 84, 1-01.
BEN DAVID, 67.
BENEDICT, 410.
BENEKE, 223, 229, 330.
BERGSON, 43, 76,
BERKELmy, 260.
BERNARD, 125.
BERNHARDr, 72.
BERNSTEIN, 191, 200, 434.
BERGQUIST, 192.
BERILLON, 492.
BERZi, 79.
BEZOLD, 211.
BINET, 367.
Blank, expression of the eyes, 98.
BLEULER, 2.
Blind spot, 207.
BLUMR8DER, 77.
Blushing, 50; how prevented, 51;
evidential value, 52; relation to age,
artificial, 53.
BOCCACCIO, 29.
Bois-REYMOND, 182, 227, 282, 411Y
463.
BOLTON, 271.
BOLTZMANN, 124.
BONr1GLI, 2.
BoRgE, 85.

BORST, 227, 377.

BOURDIN, 368.
BoURDON, 259.
Boys, as witnesses, 366.
BRAUN, 320.
Brief, and jury, 164.
Brightness and clearness, 199.
BROussAis, 369.
Brow, contraction of, 97.
BUCKLE, 410.

C
Captivation of visual capacity, 439.
CARIAER, 480.
CARPENTER, 453.
CARUS, 24, 84, 101.
CATTELL, 231, 259.
Causal principle, as method, 118; mis-
takes in inference of, 119; nexus of,
and observation, 120; and habit,
126.
Causation, law of, neglected, 5.
Cause, similarity to effect, 121; and
impulse, 121; danger of argument
from, 123,; and immediately pre-
ceding condition, 123; not apriori,
126.
Chance, 159; and law, 161; theory of,
160.
Change, in effect, 12.
Character, correlated with crime, 55;
and promises, 58; and religion, 387;
and laughter, 396.
Character-units, somatic, 69.
Child-murder, 358.
Children, 364; as subjects of, phys-
iognomies, 87; justice in, 365;
sexual differences, 366; as wit-
nesses, 366; in city and country, 367;
senses of, 367; representation in,
368; time-sense of, 368; practical
and unpractical, 369; delinquency
of, 371; egoism of, 371; memory
of, 270.
CHOULANT, 1.
CicERo, 165, 265.
Circumstances, irrelevant to proof, 114.
CLAPAREDE, 49, 50, 227.
Classes, the conscienceless, 17.

Clearness, and brightness, 199; in-
fluences of background on, 199.
Color, 204; existence of, 205; disap-
pearance of in darkness, 206.
COMBE, 487.
Comparison, influence of bodily con-
ditions on, 381; and inference,
170.
Conceit, causes guarded statement, 8;
caused by sexuality, 325; influence
of, on knowledge, 328.
Conception, 221; basis of, 225; sub-
jective nature of, 225; influenced
by environment and training, 228;
feminine, 333.
Concomitants, accidental, and cause,
127.
CONDILLAC, 188.
Conditions, influence of on language,
291; constantification of, 11.
Confession, 31; and secrets, 31; mo-
tives of, 32, 109, 114; begins judge's
work, 33; not proof, 33, uses of, 34;
suggestive influence of, 36; how
offset, 36; truth of, 114; partial,
110; accusing, 112; reliability of,
114.
Connection, logical, and experience,
142.
Consequences, and knowledge, 184.
Conservatism, of woman, 340.
Constantification, of conditions, 11.
Contact, reaction-time to, 218.
Contraction, of brow, 97; significance
of, 98.
Contradiction, insurance against, 7.
Conviction, self-developed, 68.
COPERNICUS, 222, 223.
CoRRE, 2, 307.
Correctness, formal vs. material, 4;
influence of effort on, 142.
COTTA, 84.
COURNOT, 153.
CRAMER, 427, 492.
Crime, objective, 3; and desire, 68;
and need, 57; and woman, 310.
Criminalist, 2.
Crooks, underestimated, 428.

Cruelty, related to bloodthirstiness,
etc., 77; and sex, 77; and epilepsy,
78; feminine, 355.
Custom, influence of on visual per-
ception, 203.

D
DALLEMAGNE, 2.
``Dark'' perceptions, 228.
Darkness, vision in, 204.
DARWIN, 44, 46, 51, 73, 74, 76, 84, 87,
88, 90, 92, 99, 104, 237, 287, 330,
410, 411.
Deafness, 211.
DEBIERRE, 410.
Defiance, 94.
Deformity, evil results of maltreating,
70.
DEuN, 213.
DEKTEREw, 416.
DELB0EuF, 433.
DELBRi'TCK, 479.
Delinquency, juvenile, 369; influence
of puberty on, 370; exaggerated ac-
counts of, 370.
Deprivation, 95.
Derision, 95.
DESCARTES, 188.
Desire, 67; and crime, 68.
DESPINE, 411.
DEssoiR, 492.
Dialect, 293.
DiERL, 21, 259.
DiETz, 436.
Dilettantes, 393.
1)imension, third, and image, 235.
Discursiveness, help against, 19.
Dishonesty, in women, 341; causes
hypocrisy, 343.
Dispositions, 234; and habit, 408.
Distribution, equal, and probability,
133.
Disturbance, factors of, 21.
DOM,'ER, 192, 260, 403.
Dream, 481.
Dress, 82, 83.
DRILL, 410.
Drink, quantity of, 490.

DRORISCH, 180, 269, 282, 283, 374.
DRUCKER, 492.
Drugs, influence of on sense of touch,
215.
Duality, of causal problem, 118.
DUCHENNE, 85.
Duplication and imitation, 415.
Dying, memory of the, 274.

E
EBBINGHAUS, 259, 260, 262, 265, 271.
ECKARTSHAUSEN, 1.
Education; by examples, necessary, 24;
dangers of, 386; of jury, 24; one-
sided, in witnesses, 392.
Effect, 11.
Effort, influence of on correctness, 142.
Ego, influence of dual nature of, 252.
Egoism, potent in law, 25; important
in examination, 26; criterion of ve-
racity, 28; of children, 371; of
foolishness, 401; and prejudice, 413.
ELLIS, 2.
Eloquence, of judge, 163; and jury,
164; of pleaders, 164.
Emotionalism of woman, 359.
Emotions, 283; effect of, 100; grada-
tions in, 284; how to judge, 287.
ENGEL, 85.
Ennui as submerged sexuality, 324.
Envy, 419.
EPICURUS 160.
ERDMANN: 232, 248, 396, 399, 400.
Error, and avocation, 65; how ex-
cluded, 13.
Esprit de corps, 64; and evidence, 65.
ESSER, 102, 405.
Estimation, of optical magnitudes, 428.
EULENBERG, 421.
Events, psychical, and physical pro-
cesses, 42.
Evidence, conditions of taking, 7;
method of taking, 7; effect of per-
suasive, 36.
Examples, education by, necessary, 24;
dangers of, 251.
Excellences characterize, 252.
Exceptions and rules, 134, 135.