made a memorandum of this circumstance in the identification book at the Tombs, and is prepared to produce the book in court and give his evidence, should the occasion arise. All things considered, I felt justified in laying before Judge O'Sullivan the information I had gathered with regard to Schwitofsky. I found that the judge was cognizant of all the circumstances, if not of their bearing on each other.

"Schwitofsky was found guilty after a fair and impartial trial,' O'Sullivan told me, "and the sentence of 20 years is the lightest I could impose upon him."

Inspection of the papers in the Schwitofsky case in the clerk's office of the Court of General Sessions showed that the prisoner had himself brought certain conditions to the attention of the judge. I found two of his letters on file, in which he set forth the fact that his lawyers had not given proper attention to the case, and that the scars on his wrists that had helped to bring about his conviction were of long standing.

Unable to rid myself of the conviction that if two and two make four, the Dale burglar bore marks of his encounter with Harold, which were conspicuously missing from the wrists of Schwitofsky, I laid the matter before Police Commissioner Rhinelander Waldo. Mr. Waldo at once sent for Second Deputy Commissioner George S. Dougherty, who had only recently come into the department from the celebrated Pinkerton Agency and was then in charge of the detective bureau at police headquarters, and directed him to make a thorough investigation into all the circumstances surrounding Schwitofsky's arrest. A week later Dougherty had been unable to find any irregularities in the arrest and conviction of the little electrician, and Commissioner Waldo took the matter out of his hands and put it into those of Acting Captain August Kuhne, then at the head of the Brooklyn detective bureau, now

a full captain and in charge of the 166th precinct. Kuhne studied the matter for several days, and reported that Schwitofsky was guilty of the crimes charged and justly convicted. Neither Dougherty, Kuhne, nor any of their subordinates employed on the case, could see anything in my contention that, admitting the conditions set forth at Schwitofsky's trial, the Dale burglar must carry on his wrists marks of his encounter with the chauffeur.

Visiting Gelsky in the Elmira Reformatory, I had a half-hour talk with him in the presence of the head keeper of the institution, John D. Driscoll. Gelsky told a coherent story of his arrest and of being beaten and kicked by Detective Talt in the Fifty-seventh Street prison, in an effort that was successful to make him falsely identify Schwitofsky as the man who had accompanied him to Forty-fifth Street on the morning of January 19th and entered the tailor's shop. Gelsky declared that the real Dale burglar had left New York before Schwitofsky's arrest, and he voluntarily went on to relate that the fellow's left arm and wrist had been marked by huge "weals," made by a pistol he had in his sleeve during a struggle with a chauffeur.

When Gelsky had been taken back to his cell, I asked Driscoll what he thought of the boy's story.

"He's a tough citizen all right,' replied the head keeper, who has made a scientific study of juvenile delinquents, "but he was telling the truth that time."

Frank Harold, the chauffeur who stopped the Dale burglar and took the pistol away from him, scratching the other's wrists during the struggle, and whom I found acting as taxicab starter at the Union League Club, corroborated the story already told of the events in Forty-fifth Street on the morning of January 19th. "I let the man go," he said, "because of what he told me about Dale. After he had gone I opened

the revolver and found two blank cartridges in the chambers. I took them out, and when Detective Cousin came along half an hour later I gave him the pistol and the cartridges separately, and he took them away.

"I have often wondered why I was not called as a witness at Schwitofsky's trial," Harold remarked. "I spoke about the matter several times to Detective Browne, whom I used to see along Broadway before the trial, and expected to be subpoenaed."

Detective Cousin corroborates Harold's story about the pistol and the blank cartridges, and says that he handed them separately to the property clerk at police headquarters. Schwitofsky was indicted for making threats with a loaded pistol, however, which constituted assault in the first degree. No evidence was offered on this point at the trial, except that Dale in the course of his testimony said that he saw cartridges in the pistol when it was pointed at him.

I cited Schwitofsky's case to a veteran journalist, who has the reputation of knowing more about the inner workings of the police force than most of the men connected with the department. "Many detectives," he told me, "would consider themselves as acting quite within their sphere of duty in arresting your man whenever they came across him. He was an ex-convict, and doubtless a professional criminal in the minds of Kinsler and Duggan.

'As to the arrest in Harlem being a 'frame up,' that is quite possible. The detectives were out for a record, and if they could put a professional criminal behind the bars, and at the same time gain repute for themselves, they would probably consider that they were doing a public service in laying the criminal by the heels, regardless of the method of doing it. The same proposition goes with the Dale burglary, but under different conditions. Four detectives in this instance devote ten days to the apprehension of Gelsky and his partner. They get Gelsky, and he tells them

that the other offender is beyond their reach. It is not to their credit that he has escaped, and at least one of them knows of an exconvict, whom we will say he believes to be a dangerous man, who is at large in the community and who has threatened to disgrace two brother detectives. Why not put up a job on the ex-convict, thus not only obtaining credit for the arrest of the Dale burglar, but getting a dangerous criminal out of the way -and incidentally preventing his informing on their brethren?"

Schwitofsky was convicted in the Dale case largely on the evidence of the tailor and his three female servants, who testified that he was the man each of them saw for a few minutes in a semidark hall, and afterward running and fighting in the street and recognized ten days afterward.... Had the real criminal been captured and convicted of the offense actually committed at Dale's house on January 19th, he would probably, as a first offender, have been committed to the State Reformatory at Elmira for a thirteenmonth term. Schwitofsky, by reason of his previous record, a part of which at least was manufactured for him, receives what is practically a life sentence, for he is of frail physique and cannot live long in prison.

Mr. Rosenberg argued the motion for a new trial on Tuesday January 2d before Judge O'Sullivan. The motion was opposed by Assistant District Attorney McCormick,

whom I had shown the evidence disproving Schwitofsky's guilt some time before, and who had been so much impressed by it then that he told me he would make no objection to the granting of a new trial. Judge O'Sullivan was disinclined to grant Mr. Rosenberg's motion, on the ground that the new evidence might have been produced at the original trial. He finally accepted Mr. Rosenberg's brief, however, and gave Mr. McCormick a week to submit one in opposition.

Mr. Presiding Justice PLEASANTS delivered the opinion of the Court. This action, commenced by appellee on March 14, 1894, was tried on the 5th of the following December, and resulted in a verdict and judgment for plaintiff for $111.70. Defendant appealed. The declaration was in assumpsit on indebitatus. counts for money had and received, money loaned, work and labor, and interest, and the pleas were nonassumpsit, payment, set-off, and accord and satisfaction. The claim was for money due plaintiff on a note he left with the defendant in January, 1893, which he collected on March 7, 1894, and refused to pay over the proceeds on plaintiff's demand. It is conceded that the judgment is correct, unless the defendant by a preponderance of the evidence proved the set-off claimed, which was $100 and interest from August 2, 1892.

Appellant was a farmer living in Champaign county. Appellee was a farm laborer and well borer, and worked for appellant at different times for different periods ranging from days to months. They were on very friendly terms. On August 1, 1892, appellee came to appellant's house to assist him in haying. He finished his job and left in the evening of the next day. Appellant testified that on July 30th he drew from Ford County Bank at Paxton $125 in three bills of $100, $20, and $5; spent the smaller bills, excepting some change, in Paxton, on that day, and took home the residue in his pocket book the $100 bill on one side and the change on the other; that in the afternoon of August 2d, while appellee and he were working alone in the haymow, he wrapped his knife, watch, and pocket book, closed, in his handkerchief, and so placed them under one of the braces in the mow. At quitting time in the evening he went to get them,

and

found the pocketbook unclasped on the side containing the changewhich seemed to be all there put it in his pocket. While at the supper table, but after appellee had eaten and gone, the question how it came to be so unclasped suddenly arose in his mind, and on taking it out of his pocket and looking on the other side found it empty. He I went to the barn to look for the money, but did not find it.

He at once suspected appellee, because he was the only other person in the mow that afternoon (except a young girl who worked there and came up for fifteen or twenty minutes "to talk a little and gas"). But he said nothing about it to anybody, thinking he would hear of appellee's using it. He hired him for two months of the following winter for the purpose of watching him, and treated him as before, but discovered nothing to confirm his suspicion. Appellee appeared to be friendly as he had ever been. It was during that period of his employment that the appellee left with him $55 in money, one note for $110 and another for $90, and had a balance due him on a horse trade of $5. In February, 1894, appellant first heard that soon after the money was missed, appellee was seen by several persons at different times to have in his possession a $100 bill, and thereupon charged him with having taken it from his (appellant's) pocketbook; which appellee defiantly denied. After

several talks between them appellant returned the money and uncollected note, and paid him the balance due on the horse trade and a part of the proceeds of the note he had collected, but retained the amount of the missing bill and interest thereon from the day it was missed; and refusing to pay that, this suit was brought. The only ultimate question of fact in the case

was whether appellee got the $100 bill as charged; upon which the burden of proof to establish the affirmative was upon appellant.

Not one of the circumstances relied on, except that of his being. with appellant in the haymow, so far as they were claimed to be significant, was certainly shown, even by the witnesses for appellant, and were all (except the one stated) positively denied by appellee, whose denial was more or less supported by reasonable probabilities and natural inference from their testimony.

Three witnesses testified to as many occasions on which he exhibited a paper that looked like a $100 bill. — The first was on August 17th, 1892, a fortnight after the one in question was missed. It was on a farm only three or four miles from that of appellant, where they were assisting in threshing. He and Snider were pitching in the field. He says Snider had some paper money there, among which was a $100 bill; that it was not an advertisement, but genuine money; that he looked at it and had it in his hands; just looked over it as Snider showed it to him, as he would any other money, and that it was genuine money, at least he would take it for that. He did not say he looked at the back of it. He couldn't tell what bank it was on, nor whether it was a bank bill, a greenback, or a gold or silver certificate. He told Snider at the time that he was a fool for carrying his money around in that way. The next was about the same time, between the 10th and 21st of the month, at a camp meeting in Sugar Grove, nine and a half miles southeast of Paxton. The witness was running a huckster's stand there. He says that Snider, whom he had known very well for seven or eight years, came up to his stand and pulling out what he took to be a $100 bill said he wanted to smoke and wanted witness to change the bill. Snider laid it out flat. Witness did

not have it in his hands nor see its back; couldn't tell "what issue or what sort of an issue it was," but from what he saw he took it to be a good bill. The third occasion was on Monday, the 27th of the same month. The witness (Martin) was in a buggy, going northwest to Paxton, and when within a mile and a half or two miles of it, met Snider going in the opposite direction in a wagon with well tools on it. He had been to town. When they met they stopped and had some talk about how they were getting along and how much money they were making. They had been well acquainted for eight or nine years, worked and been much together. Witness had been interested in the huckster stand above referred to and was telling how much they had made on it. Snider doubted it and said, "I will bet you a $100, you didn't make near that much." Witness replied in a joking way, "Oh, well, you haven't got a $100"; to which Snider answered, "I will just show you that I have," and pulled out and showed witness what to him appeared, and he believed to be, a $100 bill. It was folded up when he took it out of his pocket, but he unfolded it and showed both sides of it. The witness said, "Of course I thought it strange that Snider had a $100 bill loose in his pocket, but didn't think very much about it."

"of

Mr. Shaw, cashier of the First National Bank at Paxton, testified that he knew appellee by sight; that on the 27th day of August, 1892, he received from him at the bank a deposit of $115; that he "presumed" it was in bills of different denominations, and was the impression" that he had one large bill, a $100 bill, but "would not be positive about that." He said, "to the best of my recollection he had some two or three or four bills, and I think one was for $100. I don't know that I was particularly impressed at the time. It was a common thing to happen.

We have a large number of depositors, five or six hundred. I can only say that part of this deposit was a $100 bill, as my best impression." He could not say how many people made deposits that day; supposed the usual number; nor tell who deposited on that day, or within a week of it, but by the books, nor testify as to the denomination of the bills deposited unless it was specified in the deposit slip, or was an unusual amount, or there was some special circumstance to make him remember it. His attention was first called to it by appellant, and only about a week before the trial, which was considerably more than two years after the transaction.

It is worthy of notice that the deposit was made on the same day that appellee, going away from Paxton with tools for well boring, met his friend, the witness Martin, and showed him what he took to be a $100 bill. Martin said their talk was brief; that appellee was working for some one and seemed to be in a hurry to go on. The time of day at which the deposit was made or the meeting took place was not shown, but the strong probability from the circumstances is that the deposit was made before appellee left Paxton. Banks usually closed long before the day's work of a farm laborer or a well borer ended.

He

would hardly have gone on to the place of his job, quit work during working hours and returned to Paxton before the bank closed. It is not pretended that there were more than one $100 bill, or one likeness of it in evidence. If he had previously deposited such bill, he couldn't have shown it to Martin, and if he had such, it was altogether probable he would have deposited it with the others, rather than carry it about loose in his pocket. Hence the almost irresistible conclusions are that he did not deposit it, and also that what he did show to Martin was not such; and if not, then it is

equally probable that what he showed to the other witnesses was not a genuine bill. Appellee, who alone certainly knew the facts, positively testified, that although he saw the handkerchief placed as stated, he did not touch it; did not deposit nor show to anybody a genuine $100 bill, and never had one; that what he had and showed was not a bank bill, nor paper really representing money of any kind, nor a counterfeit of any, but an advertisement, such as is often seen, in the likeness of such, and so clear an imitation as might deceive anybody who only looked at it, without handling or examining it; that he had carried it in his pocket a long time, forgotten of whom or how he obtained it, paid no particular attention to it and couldn't describe it at all minutely; had shown it occasionally to the young men in the neighborhood, for their astonishment and his own amusement, so handling and exhibiting it as to prevent their "catching on," and finally gave it to Eddie Henry, a grandson of Mr. and Mrs. Strayner, with whom he (appellee) made his home during much of the time. They testified that they saw it she in his possession at several times in the summer of 1892, and both in that of the little boy, who also testified that appellee gave it to him and that after keeping it a week or so he lost it.

The actual possession by appellee of a genuine $100 bill, after appellant's was missed, was the vital question in the case. Is it at all strange that the jury found the fact not proved by this evidence? It did not appear that appellant ever saw it after he put it in his pocketbook, nor to what extent, if any, it was exposed to loss before he missed it. If appellee took it he must have done so almost under the eyes of its owner, with whom he was working, in a little space, all the afternoon. His opportunity was hardly as good as that of the