LITMIR.BIZ

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adjournment was at four. Delay was everything in a case like this. A juryman might die suddenly overnight or fall grievously ill; or some legal accident might occur which would necessitate declaring a mistrial. There is, always hope in a criminal case so long as the verdict has not actually been returned and the jury polled and discharged. If possible he must drag his summing up over until the following day. Something might happen.

      "About two hours, Your Honor," he replied.

      The jury stirred impatiently. It was clear that they regarded a two-hour speech from him under the circumstances as an imposition. But Babson wished to preserve the fiction of impartiality.

      "Very well," said he. "You may sum up until four-thirty, and have half an hour more to-morrow morning. See that the doors are closed, Captain Phelan. We do not want any interruption while the summations are going on."

      "All out that's goin' out! Everybody out that's got no business, with the court!" bellowed Captain Phelan.

      Mr. Tutt with an ominous heightening of the pulse realized that the real ordeal was at last at hand, for the closing of the case had wrought in the old lawyer an instant metamorphosis. With the words "The defense rests" every suggestion of the mountebank, the actor or the shyster had vanished. The awful responsibility under which he labored; the overwhelming and damning evidence against his client; the terrible consequences of the least mistake that he might make; the fact that only the sword of his ability, and his alone, stood between Angelo and a hideous death by fire in the electric chair—sobered and chastened him. Had he been a praying man in that moment he would have prayed—but he was not.

      For his client was foredoomed—foredoomed not only by justice but also by trickery and guile—and was being driven slowly but surely towards the judicial shambles. For what had he succeeded in adducing in his behalf? Nothing but the purely apocryphal speculation that the dead barber might have threatened Angelo with his razor and that the witnesses might possibly have drawn somewhat upon their imaginations in giving the details of their testimony. A sorry defense! Indeed, no defense at all. All the sorrier in that he had not even been able to get before the jury the purely sentimental excuses for the homicide, for he could only do this by calling Rosalina to the stand, which would have enabled the prosecution to cross-examine her in regard to the purchase of the pistol and the delivery of it to her husband—the strongest evidence of premeditation. Yet he must find some argument, some plea, some thread of reason upon which the jury might hang a disagreement or a verdict in a lesser degree.

      With a shuffling of feet the last of the crowd pushed through the big oak doors and they were closed and locked. An officer brought a corroded tumbler of brackish water and placed it in front of Mr. Tutt. The judge leaned forward with malicious courtesy. The jury settled themselves and turned toward the lawyer attentively yet defiantly, hardening their hearts already against his expected appeals to sentiment. O'Brien, ostentatiously producing a cigarette, lounged out through the side door leading to the jury room and prison cells. The clerk began copying his records. The clock ticked loudly.

      And Mr. Tutt rose and began going through the empty formality of attempting to discuss the evidence in such a way as to excuse or palliate Angelo's crime. For Angelo's guilt of murder in the first degree was so plain that it had never for one moment been in the slightest doubt. Whatever might be said for his act from the point of view of human emotion only made his motive and responsibility under the statues all the clearer. There was not even the unwritten law to appeal to. Yet there was fundamentally a genuine defense, a defense that could not be urged even by innuendo: the defense that no accused ought to be convicted upon any evidence whatever, no matter how conclusive in a trial conducted with essential though wholly concealed unfairness.

      Such was the case of Angelo. No one could demonstrate it, no one could with safety even hint at it; any charge that the court was anything but impartial would prove a boomerang to the defense; and yet the facts remained that the whole proceeding from start to finish had been conducted unfairly and with illegality, that the jury had been duped and deceived, and that the pretense that the guilty Angelo had been given an impartial trial was a farce. Every word of the court had been an accusation, a sneer, an acceptance of the defendant's guilt as a matter of course, an abuse far more subversive of our theory of government than the mere acquittal of a single criminal, for it struck at the very foundations of that liberty which the fathers had sought the shores of the unknown continent to gain.

      Unmistakably the proceedings had been conducted throughout upon the theory that the defendant must prove his innocence and that presumably he was a guilty man; and this as well as his own impression that the evidence was conclusive the judge had subtly conveyed to the jury in his tone of speaking, his ironical manner and his facial expression. Guilty or not Angelo was being railroaded. That was the real defense—the defense that could never be established even in any higher court, except perhaps in the highest court of all, which is not of earth.

      And so Mr. Tutt, boiling with suppressed indignation weighed down with the sense of his responsibility, fully realizing his inability to say anything based on the evidence in behalf of his client, feeling twenty years older than he had during the verbal duel of the actual cross-examination, rose with a genial smile upon his puckered old face and with a careless air almost of gaiety, which seemed to indicate the utmost confidence and determination, and with a graceful compliment to his arch enemy upon the bench and the yellow dog who had hunted with him, assured the jury that the defendant had had the fairest of fair trials and that he, Mr. Tutt, would now proceed to demonstrate to their satisfaction his client's entire innocence; nay, would show them that he was a man not only guiltless of any wrong-doing but worthy of their hearty commendation.

      With jokes not too unseemly for the occasion he overcame their preliminary distrust and put them in a good humor. He gave a historical dissertation upon the law governing homicide, on the constitutional rights of American citizens, on the laws of naturalization, marriage, and the domestic relations; waxed eloquent over Italy and the Italian character, mentioned Cavour, Garibaldi and Mazzini in a way to imply that Angelo was their lineal descendant; and quoted from D'Annunzio back to Horace, Cicero and Plautus.

      "Bunk! Nothing but bunk!" muttered Tutt, studying the twelve faces before him. "And they all know it!"

      But Mr. Tutt was nothing if not interesting. These prosaic citizens of New York County, these saloon and hotel keepers, these contractors, insurance agents and salesmen were learning something of history, of philosophy, of art and beauty. They liked it. They felt they were hearing something worth while, as indeed they were, and they forgot all about Angelo and the unfortunate Crocedoro in their admiration for Mr. Tutt, who had lifted them out of the dingy sordid courtroom into the sunlight of the Golden Age. And as he led them through Greek and Roman literature, through the early English poets, through Shakespeare and the King James version, down to John Galsworthy and Rupert Brooke, he brought something that was noble, fine and sweet into their grubby materialistic lives; and at the same time the hand of the clock crept steadily on until he and it reached Château-Thierry and half past four together.

      "Bang!" went Babson's gavel just as Mr. Tutt was leading Mr. Walsh, Mr. Tompkins and the others through the winding paths of the Argonne forests with tin helmets on their heads in the struggle for liberty.

      "You may conclude your address in the morning, Mr. Tutt," said the judge with supreme unction. "Adjourn court!"

      Gray depression weighed down Mr. Tutt's soul as he trudged homeward. He had made a good speech, but it had had absolutely nothing to do with the case, which the jury would perceive as soon as they thought it over. It was a confession of defeat. Angelo would be convicted of murder in the first degree and electrocuted, Rosalina would be a widow, and somehow he would be in a measure responsible for it. The tragedy of human life appalled him. He felt very old, as old as the dead-and-gone authors from whom he had quoted with such remarkable facility. He belonged with them; he was too old to practise his profession.

      "Law, Mis' Tutt," expostulated Miranda, his ancient negro handmaiden, as he pushed away the chop and mashed potato, and even his glass of claret, untasted, in his old-fashioned dining room on West Twenty-third Street, "you ain't got no appetite at all! You's sick, Mis' Tutt."

      "No, no, Miranda!" he replied weakly. "I'm just getting old."

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