"Sir," replied the knave unabashed, "I am one of those who do make a living by their wits."  
John Felix, a dealer in automatic musical instruments in New York City, was swindled out of $50,000 on February 2d, 1905, by what is commonly known as the "wire-tapping" game. During the previous August a man calling himself by the name of Nelson had hired Room 46, in a building at 27 East Twenty-second Street, as a school for "wireless telegraphy." Later on he had installed over a dozen deal tables, each fitted with a complete set of ordinary telegraph instruments and connected with wires which, while apparently passing out of the windows, in reality plunged behind a desk into a small "dry" battery. Each table was fitted with a shaded electric drop-light, and the room was furnished with the ordinary paraphernalia of a telegraph office. The janitor never observed any activity in the "school." There seemed to be no pupils, and no one haunted the place except a short, ill-favored person who appeared monthly and paid the rent.
 
On the afternoon of February 1st, 1905, Mr. Felix was called to the telephone of his store and asked to make an appointment later in the afternoon, with a gentleman named Nelson who desired to submit to him a business proposition. Fifteen minutes afterward Mr. Nelson arrived in person and introduced himself as having met Felix at "Lou" Ludlam's gambling house. He then produced a copy of the Evening Telegram which contained an article to the effect that the Western union Telegraph Company was about to resume its "pool-room service,"—that is to say, to supply the pool rooms with the telegraphic returns of the various horse-races being run in different parts of the United States. The paper also contained, in connection with this item of news, a photograph which might, by a stretch of the imagination, have been taken to resemble Nelson himself.
 
Mr. Felix, who was a German gentleman of French sympathies, married to an American lady, had recently returned to America after a ten years' sojourn in Europe. He had had an extensive commercial career, was possessed of a considerable fortune, and had at length determined to settle in New York, where he could invest his money to advantage and at the same time conduct a conservative and harmonious business in musical instruments. Like the Teutons of old, dwelling among the forests of the Elbe, Mr. Felix knew the fascination of games of chance and he had heard the merry song of the wheel at both Hambourg and Monte Carlo. In Europe the pleasures of the gaming table had been comparatively inexpensive, but in New York for some unknown reason the fickle goddess had not favored him and he had lost upward of $51,000. "Zu viel!" as he himself expressed it. Being of a philosophic disposition, however, he had pocketed his losses and contented himself with the consoling thought that, whereas he might have lost all, he had in fact lost only a part. It might well have been that had not The Tempter appeared in the person of his afternoon visitor, he would have remained in status quo for the rest of his natural life. In the sunny window of his musical store, surrounded by zitherns, auto-harps, dulcimers, psalteries, sackbuts, and other instrument's of melody, the advent of Nelson produced the effect of a sudden and unexpected discord. Felix distrusted him from the very first.
 
The "proposition" was simplicity itself. It appeared that Mr. Nelson was in the employ of the Western union Telegraph Company, which had just opened a branch office for racing news at 27 East Twenty-second Street. This branch was under the superintendence of an old associate and intimate friend of Nelson's by the name of McPherson. Assuming that they could find some one with the requisite amount of cash, they could all make their everlasting fortunes by simply having McPherson withhold the news of some race from the pool rooms long enough to allow one of the others to place a large bet upon some horse which had in fact already won and was resting comfortably in the stable. Felix grasped the idea instantly. At the same time he had his suspicions of his visitor. It seemed peculiar that he, an inconspicuous citizen who had already lost $50,000 in gambling houses, should be selected as the recipient of such a momentous opportunity. Moreover, he knew very well that gentlemen in gambling houses were never introduced at all. He thought he detected the odor of a rodent. He naïvely inquired why, if all these things were so, Nelson and his friend were not already yet millionaires two or three times? The answer was at once forthcoming that they had been, but also had been robbed—unmercifully robbed, by one in whom they had had confidence and to whom they had entrusted their money.
 
"And now we are poor, penniless clerks!" sighed Nelson, "and if we should offer to make a big bet ourselves, the gamblers would be suspicious and probably refuse to place it."
 
"I think this looks like a schvindling game," said Felix shrewdly. So it did; so it was.
 
By and by Felix put on his hat and, escorted by Nelson, paid a visit to the "branch office" at 27 East Twenty-second Street. Where once solitude had reigned supreme and the spider had spun his web amid the fast-gathering dust, all was now tumultuous activity. Fifteen busy operators in eye shades and shirt sleeves took the news hot from the humming wires and clicked it off to the waiting pool rooms.
 
"Scarecrow wins by a neck!" cried one, "Blackbird second!"
 
"Make the odds 5 to 3," shouted a short, ill-favored man, who sat at a desk puffing a large black cigar. The place buzzed like a beehive and ticked like a clockmaker's. It had an atmosphere of breathless excitement all its own. Felix watched and marvelled, wondering if dreams came true.
 
The short, ill-favored man strolled over and condescended to make Mr. Felix's acquaintance. An hour later the three of them were closeted among the zitherns. At the same moment the fifteen operators were ranged in a line in front, of a neighboring bar, their elbows simultaneously elevated at an angle of forty-five degrees.
 
Felix still had lingering doubts. Hadn't Mr. McPherson some little paper—a letter, a bill, a receipt or a check, to show that he was really in the employ of the Western union? No, said "Mac," but he had something better—the badge which he had received as the fastest operator among the company's employees. Felix wanted to see it, but "Mac" explained that it was locked up in the vault at the Farmers' Loan and Trust Co. To Felix this had a safe sound—"Farmers' Trust Co." Then matters began to move rapidly. It was arranged that Felix should go down in the morning and get $50,000 from his bankers, Seligman and Meyer. After that he was to meet Nelson at the store and go with him to the pool room where the big financiers played their money. McPherson was to remain at the "office" and telephone them the results of the races in advance. By nightfall they would be worth half a million.
 
"I hope you have a good large safe," remarked Nelson, tentatively. The three conspirators parted with mutual expressions of confidence and esteem.
 
Next morning Mr. Felix went to his bankers and procured $50,000 in five ten-thousand-dollar bills. The day passed very slowly. There was not even a flurry in zitherns. He waited impatiently for Nelson who was to come at five o'clock. At last Nelson arrived and they hurried to the Fifth Avenue Hotel where the coup was to take place.
 
And now another marvel. Wassermann Brothers' stock-brokering office, which closes at three hummed just as the "office" had done the evening before—and with the very same bees, although Felix did not recognize them. It was crowded with men who struggled violently with one another in their eagerness to force their bets into the hands of a benevolent-looking person, who, Felix was informed, was the "trusted cashier" of the establishment. And the sums were so large that even Felix gasped.
 
"Make that $40,000 on Coco!" cried a bald-headed "capper."
 
"Mr. Gates wants to double his bet on Jackstone,—make it $80,000!" shrieked another.
 
"Gentlemen! Gentlemen!" begged the "trusted cashier," "not quite so fast, if you please. One at a time."
 
"Sixty thousand on Hesper—for a place!" bawled one addressed as "Mr. Keene," while Messrs. "Ryan," "Whitney," "Belmont," "Sullivan," "McCarren," and "Murphy" all made handsome wagers.
 
From time to time a sporty-looking man standing beside a ticker, shouted the odds and read off the returns. Felix heard with straining ears:
 
"They're off!"
 
"Baby leads at the quarter."
 
"Susan is gaining!"
 
"They're on the stretch!"
 
"Satan wins by a nose—Peter second."
 
There was a deafening uproar, hats were tossed ceilingward, and great wads of money were passed out by the "trusted cashier" to indifferent millionaires. Felix wanted to rush in and bet at once on something—if he waited it might be too late. Was it necessary to be introduced to the cashier? No? Would he take the bet? All right, but—
 
At that moment a page elbowed his way among the money calling plaintively for "Felix! Mr. Felix." Shrinking at the thought of such publicity in such distinguished company, Felix caught the boy's arm and learned that he was wanted at the telephone booth in the hotel.
 
"It must be 'Mac,'" said Nelson. "Now don't make any mistake!" Felix promised to use the utmost care.
 
It was "Mac."
 
"Is this Mr. Felix?—Yes? Well, be very careful now. I am going to give you the result of the third race which has already been run. I will hold back the news three minutes. This is merely to see if everything is working right. Don't make any bet. If I give you the winners correctly, you can put your money on the fourth race. The horse that won the last is Col. Starbottle—Don Juan is second. Now just step back and see if I am right."
 
Felix rushed back to the pool room. As he entered the man at the tape was calling out that "they" were off. In due course "they" reached the quarter and then the half. A terrific struggle was in progress between Col. Starbottle and Don Juan. First one was ahead and then the other. Finally they came thundering down to the stretch, Col. Starbottle winning by a neck. "Gates" won $90,000, and several others pocketed wads running anywhere from $20,000 to $60,000.
 
Felix hurried back to the telephone. "Mac" was at the other end.
 
"Now write this down," admonished McPherson; "we can't afford to have any mistake. Old Stone has just won the fourth race, with Calvert second. Play Old Stone to win at 5 to 1. We shall make $250,000—and Old Stone is safe in the stable all the time and his jockey is smoking a cigarette on the club house veranda. Good luck, old man."
 
Felix had some difficulty in getting near the "trusted cashier" so many financiers were betting on Calvert. Felix smiled to himself. He'd show them a thing or two.
 
Finally he managed to push his envelope containing the five ten-thousand-dollar bills into the "trusted cashier's" hand. The latter marked it "Old Stone, 5 to 1 to win!" and thrust it into his pocket. Then "Whitney" or somebody bet $70,000 on Calvert.
 
"They're off!" shouted the man at the tape.
 
How he lived while they tore around the course Felix never knew. Neck and neck Old Stone and Calvert passed the quarter, the half, and the three-quarter post, and with the crowd yelling like demons came hurtling down the stretch.
 
"Old Stone wins!" cried the "booster" at the tape in a voice husky with excitement. "Calvert a close second!" Felix nearly fainted. His head swam. He had won a quarter of a million. Then the voice of the "booster" made itself audible above the confusion.
 
"What! A mistake? Not possible!—Yes. Owing to some confusion at the finish, both jockies wearing the same colors, the official returns now read Calvert first; Old Stone second."
 
Among the zitherns Felix sat and wondered if he had been schvindled. He had not returned to Wassermann Brothers. Had he done so he would have found it empty five minutes after he had lost his money. The millionaires were already streaming hilariously into Sharkey's. "Gates" pledged "Belmont" and "Keene" pledged "Whitney." Each had earned five dollars by the sweat of his brow. The glorious army of wire-tappers had won another victory and their generals had consummated a campaign of months. Expenses (roughly), $600. Receipts, $50,000. Net profits, $48,400. Share of each, $16,133.
 
A day or two later Felix wandered down to Police Headquarters, and in the Rogue's Gallery identified the photograph of Nelson, whom he then discovered to be none other than William Crane, alias John Lawson, alias John Larsen, a well-known "wire-tapper," arrested some dozen times within a year or two for similar offences. McPherson turned out to be Christopher Tracy, alias Charles J. Tracy, alias Charles Tompkins, alias Topping, alias Toppin, etc., etc., arrested some eight or ten times for "wire-tapping." The "trusted cashier" materialized in the form of one Wyatt, alias, Fred Williams, etc., a "wire-tapper" and pal of "Chappie" Moran and "Larry" Summerfield. Detective Sergeants Fogarty and Mundy were at once detailed upon the case and arrested within a short time both Nelson and McPherson. The "trusted cashier" who had pocketed Felix's $50,000 has never been caught. It is said that he is running a first-class hostelry in a Western city. But that is another story.
 
When acting Inspector O'Brien ordered McPherson brought into his private room, the latter unhesitatingly admitted that the three of them had "trimmed" Felix of his $50,000, exactly as the latter had alleged. He stated that Wyatt (alias Williams) was the one who had taken in the money, that it was still in his possession, and still intact in its original form. He denied, however, any knowledge of Wyatt's whereabouts.
 
The reason for this indifference became apparent when the two prisoners were arraigned in the magistrate's court, and their counsel demanded their instant discharge on the ground that they had committed no crime for which they could be prosecuted. He cited an old New York case, McCord vs. The People,[2] which seemed in a general way to sustain his contention, and which had been followed by another and much more recent decision. The People vs. Livingston.[3] The first of these cases had gone to the Court of Appeals, and the general doctrine had been annunciated that where a person parts with his money for an unlawful or dishonest purpose, even though he is tricked into so doing by false pretences, a prosecution for the crime of larceny cannot be maintained.
 
[2] 46 New York 470.
 
[3] 47 App. Div. 283.
 
In the McCord case, the defendant had falsely pretended to the complainant, a man named Miller, that he was a police officer and held a warrant for his arrest. By these means he had induced Miller to give him a gold watch and a diamond ring as the price of his liberty. The conviction in this case was reversed on the ground that Miller parted with his property for an unlawful purpose; but there was a very strong dissenting opinion from Mr. Justice Peckham, now a member of the bench of the Supreme Court of the United States.
 
In the second case, that of Livingston, the complainant had been defrauded out of $500 by means of the "green goods" game; but this conviction was reversed by the Appellate Division of the Second Department on the authority of the McCord case. The opinion in this case was written by Mr. justice Cullen, now Chief Judge of the New York Court of Appeals, who says in conclusion:
 
"We very much regret being compelled to reverse this conviction. Even if the prosecutor intended to deal in counterfeit money, that is no reason why the appellant should go unwhipped of justice. We venture to suggest that it might be Well for the Legislature to alter the rule laid down in McCord vs. People."
 
Well might the judges regret being compelled to set a rogue at liberty simply because he had been ingenious enough to invent a fraud (very likely with the assistance of a shyster lawyer) which involved the additional turpitude of seducing another into a criminal conspiracy. Livingston was turned loose upon the community in spite of the fact that he had swindled a man out of $500 because he had incidentally led the latter to believe that in return he was to receive counterfeit money or "green goods," which might be put into circulation. Yet, because some years before, the Judges of the Court of Appeals had, in the McCord matter, adopted the rule followed in civil cases, to wit that as the complaining witness was himself in fault and did not come into court with clean hands he could have no standing before them, the Appellate Division in the next case felt obliged to follow them and to rule tantamount to saying that two wrongs could make a right and two knaves one honest man. It may seem a trifle unfair to put it in just this way, but when one realizes the iniquity of such a doctrine as applied to criminal cases, it is hard to speak softly. Thus the broad and general doctrine seemed to be established that so long as a thief could induce his victim to believe that it was to his advantage to enter into a dishonest transaction, he might defraud him to any extent in his power. Immediately there sprang into being hordes of swindlers, who, aided by adroit shyster lawyers, invented all sorts of schemes which involved some sort of dishonesty upon the part of the person to be defrauded. The "wire-tappers," of whom "Larry" Summerfield was the Napoleon, the "gold-brick" and "green-goods" men, and the "sick engineers" flocked to New York, which, under the unwitting protection of the Court of Appeals, became a veritable Mecca for persons of their ilk.
 
To readers unfamiliar with the cast of mind of professional criminals it will be almost impossible to appreciate with what bold insouciance these vultures now hovered over the metropolitan barnyard. Had not the Court of Appeals itself recognized their profession? They had nothing to fear. The law was on their side. They walked the streets flaunting their immunity in the very face of the police. "Wire-tapping" became an industry, a legalized industry with which the authorities might interfere at their peril. Indeed, there is one instance in which a "wire-tapper" successfully prosecuted his victim (after he had trimmed him) upon a charge of grand larceny arising out of the same transaction. One crook bred another every time he made a victim, and the disease of crime, the most infectious of all distempers, ate its way unchecked into the body politic. Broadway was thronged by a prosperous gentry, the aristocracy and elite of knavery, who dressed resplendently, flourished like the green bay-tree, and spent their (or rather their victims') money with the lavish hand of one of Dumas's gentlemen.
 
But the evil did not stop there. Seeing that their brothers prospered in New York, and neither being learned in the law nor gifted with the power of nice discrimination between rogueries, all the other knaves in the country took it for granted that they had at last found the Elysian fields and came trooping here by hundreds to ply their various trades. The McCord case stood out like a cabalistic sign upon a gate-post telling all the rascals who passed that way that the city was full of honest folk waiting to be turned into rogues and "trimmed."
 
"And presently we did pass a narrow lane, and at the mouth espied a written stone, telling beggars by a word like a wee pitchfork to go that way."
 
The tip went abroad that the city was "good graft" for everybody, and in the train of the "wire-tappers" thronged the "flimflammer," "confidence man," "booster," "capper" and every sort of affiliated crook, recalling Charles Reade's account in "The Cloister and the Hearth" of Gerard in Lorraine among their kin of another period:
 
With them and all they had, 'twas lightly come and lightly go; and when we left them my master said to me, "This is thy first lesson, but to-night we shall be at Hansburgh. Come with me to the 'rotboss' there, and I'll show thee all our folk and their lays, and especially 'the lossners,' 'the dutzers,' 'the schleppers,' 'the gickisses,' 'the schwanfelders,' whom in England we call 'shivering Jemmies,' 'the süntregers,' 'the schwiegers,' 'the joners,' 'the sessel-degers,' 'the gennscherers,' in France 'marcandiers a rifodés,' 'the veranerins,' 'the stabulers,' with a few foreigners like ourselves, such as 'pietres,' 'francmitoux,' 'polissons,' 'malingreux,' 'traters,' 'rufflers,' 'whipjacks,' 'dommerars,' 'glymmerars,' 'jarkmen,' 'patricos,' 'swadders,' 'autem morts,' 'walking morts,'—" "Enow!" cried I, stopping him, "art as gleesome as the evil one a counting of his imps. I'll jot down in my tablet all these caitiffs and their accursed names: for knowledge is knowledge. But go among them alive or dead, that will I not with my good will."
 
And a large part of it was due simply to the fact that seven learned men upon seven comfortable chairs in the city of Albany had said, many years ago, that "neither the law or public policy designs the protection of rogues in their dealings with each other, or to insure fair dealing and truthfulness as between each other, in their dishonest practices."
 
The reason that the "wire-tapping" game was supposed to come within the scope of the McCord case was this: it deluded the victim into the belief that he was going to cheat the pool room by placing a bet upon a "sure thing." Secondarily it involved, as the dupe supposed, the theft or disclosure of messages which were being transmitted over the lines of a telegraph company—a misdemeanor. Hence, it was argued, the victim was as much a thief as the proposer of the scheme, had parted with his money for a dishonest purpose, did not come into court with "clean hands," and no prosecution could be sustained, no matter whether he had been led to give up his money by means of false pretences or not.
 
While "wire-tapping" differed technically from the precise frauds committed by McCord and Livingston, it nevertheless closely resembled those swindlers in general character and came clearly within the doctrine that the law was not designed to protect "rogues in their dealings with each other."
 
No genuine attempt had ever been made to prosecute one of these gentry until the catastrophe which deprived Felix of his $50,000. The "wire-tappers" rolled in money. Indeed, the fraternity were so liberal with their "rolls" that they became friendly with certain police officials and intimately affiliated with various politicians of influence, a friend of one of whom went on Summerfield's bond, when the latter was being prosecuted for the "sick-engineer" frauds to the extent of $30,000. They regularly went to Europe in the summer season and could be seen at all the race-courses and gambling resorts of the Continent. It is amusing to chronicle in this connection that just prior to McPherson's arrest—that is to say during the summer vacation of 1904—he crossed the Atlantic on the same steamer with an assistant district attorney of New York county, who failed to recognize his ship companion and found him an entertaining and agreeable comrade.
 
The trial came on before Judge Warren W. Foster in Part 3 of the General Sessions on February 27th, 1906. A special panel quickly supplied a jury, which, after hearing the evidence, returned in short order a verdict of guilty. As Judge Foster believed the McCord case to be still the law of the State, he, of his own motion, and with commendable independence, immediately arrested judgment. The People thereupon appealed, the Court of Appeals sustained Judge Foster, and the defendant was discharged. It is, however, satisfactory to record that the Legislature at its next session amended the penal code in such a way as to entirely deprive the wire-tappers and their kind of the erstwhile protection which they had enjoyed under the law.