LITMIR.BIZ

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in the court room had thinned; it was twelve o’clock; the holocaust was about to begin.

      The Bloodhound arose and strolled to the district attorney’s table in front of the jury box.

      “Have you any case to move, Mister District Attorney?” asked His Honor, and, at O’Brien’s nod, added to the clerk, “Fill the box, Mr. Dougherty.”

      “Take your places, gentlemen,” called the latter, drawing twelve names rapidly from the wheel. “People against Mooney! Patrick Mooney, you are indicted for burglary in the third degree, grand larceny in the first degree, assault in the first degree, receiving stolen goods and carrying concealed weapons. If you desire to challenge any talesman you may do so now!” One almost expected to hear him continue “Or forever after hold your peace!”

      But Mr. Tutt did not wish to challenge anybody, and smiled so genially at the double row of miscellaneous citizens, and with such an air of gratification declared “The jury is more than satisfactory,” that every man of them expanded his chest and lifted his chin a fraction of an inch, convinced that Mr. Tutt was a man of parts, and became his friend for life.

      Then the Bloodhound summoned them to their duty of sending men to prison. The defendant, he told them, had been caught in possession of the proceeds of a burglary committed but a few moments before his arrest. He had a loaded pistol in his pocket, which he had sought to draw upon the officer, who luckily had reduced him to a timely submission. His fellow criminal would take the stand and testify against him. It was a cut-and-dried case, a routine affair; and they would have nothing to do but to convict. He called Delaney, whose immense blue bulk overflowed the witness chair; and the cop made good the prosecutor’s opening in every particular. He described Mooney’s attempted flight, his effort to pull his gun and how he had frustrated it by felling him with his night-stick. He then identified the gun which O’Brien produced from his pocket.

      Cross-examine!

      Mr. Tutt asked but two questions:

      “Do you know Micky Morrison?”

      “I do.”

      “Do you belong to the same club?”

      “I do!” defiantly.

      “That is all!” And the old lawyer waved him from the stand.

      Then Mulligan was brought up from the pen and put in the chair, and swore that everything that Delaney had said was gospel. He admitted that he was a professional burglar, but allowed that on occasions a burglar could tell the truth, and that this was one of them; and he supplemented the cop’s story by describing in the most graphic detail how Mooney and he had planned and perpetrated the burglary of the cigar store; but, his imagination being limited and his general intelligence even more so, he made a sorry exhibition of himself under Mr. Tutt’s good-natured yet searching cross-examination. Indeed, he soon became so involved in contradictions as to Mooney’s part in the affair that no man in his senses would have convicted a dog of the larceny of a bone upon his testimony. One piece of evidence, however, remained unshaken—Delaney’s testimony that he had taken a loaded pistol from Mooney’s pocket; and Delaney had not been in any way discredited under cross-examination. Quickly O’Brien shifted his position. As a strategist he had no equal.

      “If Your Honor please,” he said, “I do not feel that the jury should be permitted to convict the defendant of burglary or larceny on this character of testimony. The co-defendant Mulligan is an ex-convict, besides being confessedly guilty in this case, and his statements should not be received without stronger corroboration. I shall therefore ask Your Honor to withdraw from the consideration of the jury all the counts in the indictment except that for carrying concealed weapons.”

      He spoke as if with an earnest hope for salvation—and the jury viewed him with approbation. The fox! He knew that Mooney could not meet the charge without taking the stand and admitting that he had been in prison, although had all the counts been left in the indictment the jury might well have been led to render a general verdict of acquittal, owing to the obvious unreliability of Mulligan’s testimony.

      “The People rest,” said O’Brien.

      The jury turned to the defense.

      “Take the stand, Mr. Mooney,” directed Mr. Tutt, while the Bloodhound licked his lips.

      Paddy Mooney felt his way round behind the jury box and to the witness chair. He knew that he was innocent, but he knew that he was going to be pilloried on cross-examination and utterly discredited. He was an ex-convict. That would be enough to send him up again. But unless he took the stand and denied that the weapon was his the jury would have no choice—would have to convict him. It was a slim chance but it was worth taking. No use giving up without a fight!

      Doggedly under Mr. Tutt’s lead he denied everything that had been testified to against him, including that he had, or ever had had, a revolver. Mulligan had joined him, he swore, unsolicited, and when Delaney had appeared he had made no attempt whatever to escape. Why should he have? He had done nothing.

      “Your witness!” said Mr. Tutt with a bow toward the jury box.

      The Bloodhound crept toward the witness chair with the stealth of a panther about to spring. At three feet he sprang!

      “Mister Mooney, have you ever been convicted of a crime?”

      “Yes,” answered the defendant in a husky voice.

      “Of what crime?”

      “Assault.”

      “Ah! And you say you are a peaceable sort of person?”

      “Yes.”

      “When did you get out of jail?”

      “Last week.”

      The jury looked at one another. The poison had begun to work. But the dose might be too small. O’Brien intended to take no chances. As he would have expressed it, he was going to “give him the gaff.” He beckoned Delaney to the rail.

      “What have you got on him?” he asked. “Give it to me quick.”

      “He’s an old-timer,” stammered the cop. “Gas House Gang. Cracked safes and done most everything.”

      O’Brien knew he was lying, but he had a right to take an officer’s word for a thing like that.

      “Go up to my office,” he ordered Delaney, “and bring me down Jones’ Professional Criminals of America.”

      The cop hesitated.

      “He ain’t in it!” he ventured.

      “Did you hear what I said?” shouted O’Brien. “Go get it!”

      While Delaney is waiting for the elevator to do his master’s bidding let it be explained that when a criminal, or anybody else, for that matter, goes upon the witness stand to testify, he may be asked upon cross-examination by the opposing counsel any fact as to himself or his past which may tend to discredit him, for if he be a rascal and unworthy of credence the jury are entitled to know it so as to be guided by that knowledge in the performance of their holy office. Now there are only two limitations upon this sacred right of cross-examination as to credit—the discretion of the presiding judge and the fact that if the matter inquired about is not directly connected with the issue involved the lawyer asking the question is bound by the witness’ answer and is not permitted to show in rebuttal that it is false.

      Yet neither of these limitations amounts to anything, and the latter instead of being a handicap to a prosecutor really is an advantage; for often a lawyer asks a question from which the jury infers something which is not true and which the lawyer could not prove to be true if he were allowed to try to do so in rebuttal. For example: If a reputable prosecuting attorney should ask a colored defendant, charged with stealing A’s chickens on Friday, if it were not a fact that he had stolen B’s chickens on Saturday and the colored defendant denied it, the jury would doubtless accept the interrogation of the prosecutor as based on fact and assume

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