Читать книгу Tut! Tut! Mr. Tutt - Arthur Train - Страница 8

The last disconsolate in the file of prisoners had pleaded not guilty and clumped back to the prison pen; the judge had listened to the manifold ingenious excuses urged upon him by talesmen reluctant to serve; the crowd 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 that the luckless negro had stolen chickens from both A and B. Yet if the prosecutor were at liberty to prove that the negro was lying when the latter denied that he had stolen B’s poultry, he might find it exceedingly hard to do so. Thus the law’s restriction, which is apparently an advantage to the witness, particularly if he be a defendant accused of a crime, in reality works against him; just as the right to take the stand in fact compels every defendant to do so or suffer the penalty of refusal in the form of the jury’s natural assumption that he is afraid to do so because he is guilty. Of this great principle the Bloodhound now proposed to avail himself to the utter annihilation of Paddy Mooney and Mr. Tutt, both of whom he was resolved should plunge down into the abyss of discreditability.

For he knew that because he held a public office of large responsibility any question put by him to Mooney would be in the jury’s eyes tantamount to an accusation; particularly after he had evinced such an apparent fair-mindedness by asking the judge to quash the burglary, receiving and larceny counts in the indictment.

The issue now hung in the balance. A police officer had sworn to finding a loaded pistol on the prisoner, and a self-confessed crook had corroborated him; the defendant had vehemently denied it, although the force of his denial had been somewhat tempered by his admission of having been previously convicted of assault. In view of the judge’s admonition that the burden of proof would be on the prosecution to prove its case beyond a reasonable doubt, the jury might acquit. Something must be done. O’Brien did not hesitate. He would “smear” Mooney so that nobody would pay the slightest attention to his denials, however convincing under other circumstances they might have been. It would not be difficult. Any hint or suggestion that Mooney was a professional “gun”—the slightest innuendo to that effect, probably—would be enough; even if he didn’t look it. For look it he certainly did not, as he sat motionless on the witness chair—more like a clay statue than a man, his chalky face set and his narrow shoulders foursquare to the world—an impotent yet defiant creature, like a wild animal driven into a hole or fettered to a stake. Only when his eyes over Mr. Tutt’s shoulders met those of Annie Murphy did his stubborn expression soften. O’Brien caught the looks that passed between them and scowled. That sort of thing always had a bad effect on the jury. He must “can” it somehow. He strolled back to his place and faced Mooney again.

“You come from the Gas House district, don’t you?” he asked.

“No,” replied Mooney.

“Ever hear of the Gas House Gang?”

“Yes, but I’m not one of them.”

“Oh, you’re not, eh? I didn’t ask you that. Why did you hurry so to slip that in?”

“I object!” interposed Mr. Tutt. “Such a suggestion is improper and prejudicial.”

Judge Watkins, who despised technicalities, waved him aside.

“I will permit the question. The witness volunteered a statement. He may be examined upon it.”

Mr. Tutt subsided.

“Because,” retorted Mooney, “you were trying to make the jury think I was.”

“Maybe you’re right!” countered the Bloodhound with a grin at the jury box. “Now, how many times have you been convicted of crime in other States?”

“Never!” cried Mooney. “And you can’t prove it either.”

“Well, maybe I can’t prove it,” admitted O’Brien easily, “but,” he added insinuatingly, “I can inquire how many times you have committed burglaries—say, in New Jersey?”

Mooney’s jaws trembled and he grasped the arms of his chair so tight that his hands went white. He turned indignantly to the judge.

“Your Honor,” he protested, “has this man got the right——”

“Answer the question!” admonished His Honor. “This is proper cross-examination.”

“Well?” sneered O’Brien.

“I never committed any burglary!”

“No burglaries! What kind of crimes, then, have you committed?”

“I never committed any crimes!”

Mooney thrust forward in his seat toward his torturer and clinched his jaws. It was all nuts for O’Brien.

“Oh!” he laughed. “You didn’t, eh? I thought you were just out of Sing Sing!”

“But I hadn’t committed any crime.”

“So you were innocent that time? Just as you claim to be now!”

“Delaney railroaded me for Mickey Morrison!”

The Bloodhound reddened with anger.

“Strike that out!” ordered Judge Watkins. “Don’t volunteer. Answer only the questions put to you. Were you innocent that time?”

“Yes—I was!” declared Mooney with such obvious sincerity that O’Brien wished he had not asked the question. So far he had not scored heavily, although his adversary was getting groggy. At that instant Delaney re-entered the room and approached the rail with a large book in his hand.

“S-st!” he whispered to O’Brien, handing over the book. “Ast him if last December he didn’t smash Sugar Grady’s nose down on Hudson Street wit’ a blackjack; an’, say, ast him if he wasn’t one o’ the bunch ’at beat up Inspector Boyle with brass knuckles over behind the engine-house.”

The Bloodhound’s eyes gleamed. Real stuff! He put the questions to Mooney, receiving with an indulgent grimace the latter’s emphatic denials, and the jury, who had seen his conference with the police officer, made sure that a desperate thug was seated before them, while Mr. Tutt, a satiric smile playing about his withered lips, vowed vengeance deep and dire upon the unscrupulous O’Brien.

But the Bloodhound, frenzied at the scent of human gore, was now resolved to rend Mooney limb from limb. With all the gleeful malice of a Spanish inquisitor about to tear out his victim’s beating heart with a pair of incandescent pincers, this charming understudy of Satan sauntered nonchalantly up to the witness and, holding the Professional Criminals of America so that the jury could plainly read the title, opened the book and running his finger down a page as if to mark the place—and looking up from time to time as he apparently read what he there had found—put to the hapless being in the moral death chair before him, as if solemnly declaring the accompanying accusation to be true, the following question:

“Did you not, on September 6, 1917, in company with Red Burke, alias the Roach; Tony Savelli, otherwise known as Tony the Greaser; and Dynamite Tom Meeghan, crack the safe of the American Railway Express at Rahway, New Jersey, and get away with six thousand dollars?”

There was no doubt about O’Brien’s having caught the jury now. Just as John Hancock signed his name to the Declaration of Independence so large that no one need use spectacles to read it, so Paddy Mooney screamed his outraged denial so loud that even the dead might well have heard him.

“It’s a lie!” he yelled, jumping up and shaking his fist at O’Brien. “I never knew any such people. And I never was in Rahway.”

“So you say!” the Bloodhound taunted him. “But don’t you know that both the Roach and the Greaser testified at their trials that you were there?”

“Wait a moment!” interpolated Judge Watkins. “Do not answer until your counsel has time to object. Mr. Tutt, do you object to the question? If you do I will exclude it.”

But Mr. Tutt gravely shook his head.

“I prefer to have him answer it,” he said.

“I know nothing about it at all!” protested Mooney. Once more he turned to the bench. “Your Honor,” he cried, “he’s framin’ me! I——”

Judge Watkins banged his gavel.

“You will have your chance to explain on the redirect,” he remarked coldly, for he, too, was now convinced that the witness was a desperate criminal.

“That is all!” declared O’Brien, as with an air of triumph he threw the book ostentatiously on the table in front of the jury box. The defendant was cooked. That question about Red Burke had done the trick, driven the last nail into the lid of his coffin. He sank gloatingly into his chair. He had ’em on the run. The jury could convict without leaving the box. There was nothing left for old Tutt to do but try to extract additional denials from his already discredited client.

But the old lawyer made no such move. Instead he remarked:

“Mr. Mooney, you were asked whether you had not been previously convicted of assault, and you replied in the affirmative. I now ask you whom you were charged with assaulting?”

“Micky Morrison.”

“Who arrested you for the alleged offense?”

“Officer Delaney.”

“You mean this same officer who has just sworn that he found a pistol in your pocket?”

“Yes, sir.”

Mr. Tutt drew in his lips.

“That is all!” said he, without further attempt to rehabilitate his client. Then as Mooney left the stand Mr. Tutt addressed Judge Watkins:

“If Your Honor please, I had intended calling a character witness—a former employer—in behalf of the defendant, but what has transpired would seem to make any such testimony immaterial.” He hesitated for an instant, and to O’Brien came the sudden thought that the old lawyer might be going to throw up the sponge and plead his client guilty after all. But to his astonishment he heard Mr. Tutt say: “There is one thing, however, to which I invite the court’s attention. The prosecutor has produced a loaded pistol here which he claims was found in my client’s possession. It is the basis of the charge against him. Yet the district attorney for some reason best known to himself has not offered it in evidence. Unless this is done, in view of the fact that the pistol has been exhibited to the jury, I shall ask for a dismissal.”

O’Brien rose languidly to his feet.

“The merest oversight, Your Honor. Here is the pistol. I offer it in evidence.”

“I object,” said Mr. Tutt—“unless it appears on the record from whose custody it is produced, how it got there, and that it is in the same condition as when received.”

“Mr. Tutt is technically correct,” nodded His Honor.

The Bloodhound’s lips curled.

“I got it from Officer Delaney this morning, and have had it in my pocket all the time. It is exactly as I received it. Does that satisfy you?”

“Not unless you so testify upon the stand,” answered the old lawyer, looking fixedly at O’Brien, who experienced a curiously sickening sensation.

“If Mr. Tutt insists you will have to be sworn,” ruled His Honor. “But it is a rather unusual demand for any lawyer to make under the circumstances.”

“This is a rather unusual case,” retorted Mr. Tutt, unperturbed.

O’Brien shifted his feet uneasily. He did not like the idea of facing Mr. Tutt from the witness chair—not in the least! Still—there was no help for it. With the pistol in his hand he ascended the stand, took the oath and without sitting down repeated in a rather shaky voice what he had just said.

“Have you any cross-examination?” asked Judge Watkins.

“I have,” replied Mr. Tutt amid a sudden silence. What could the old codger be up to?

“You are one of the public prosecutors of this county?” he asked quietly.

“I am,” shot back the Bloodhound.

“And you are sworn to uphold the law?”

“Yes.”

“To prosecute those of whose guilt you are satisfied through the introduction of legal evidence in a legal manner?”

“Of course.” O’Brien’s uneasiness was growing, But Mr. Tutt’s next question momentarily allayed his anxiety while arousing his irritation.

“Where were you born?”

“New York City.”

Judge Watkins frowned at the questioner. This procedure was not at all according to Hoyle.

“Gas House section?”

One of the jury sniggered. His Honor raised his hand in gentle admonition.

“Is this relevant, Mr. Tutt? I do not wish to criticise, but your question seems rather trivial.”

Mr. Tutt bowed.

“This is cross-examination,” he replied. “However, I will withdraw it. Do you know one Micky Morrison, Mr. O’Brien?”

“Yes,” scowled the Bloodhound.

“How much did you pay him for your appointment as assistant district attorney?”

O’Brien turned first red, then white. Judge Watkins brought down his gavel.

“That will do!” he remarked. “The jury will disregard the question!”

“If Your Honor please,” replied Mr. Tutt quietly, “I have as much right to attack this witness’ credibility as he had to attack that of my client. I press the question in another form:

“Did you not pay six thousand dollars to Michael McGurk to be delivered to Micky Morrison in consideration for his securing your appointment as assistant district attorney?”

“I did not!” shouted O’Brien. “And you know it! Your Honor, are you going to permit me to be insulted in this way?”

But a puzzled if not actually bewildered look had settled upon the learned justice’s countenance. To coin a distinctly new phrase there was “a far-away look” in his gray eyes.

“Do you know Red Burke, alias the Roach; Tony Savelli, otherwise known as the Greaser; and Dynamite Tom Meeghan?”

“Mr. Tutt,” expostulated Judge Watkins, “you may have a technical right to test the witness’ credibility, but the matter is within my discretion and——”

“That is the precise question he asked my client,” replied Mr. Tutt coolly. “What is sauce for the goose should be sauce for the gander.”

“He may answer your question if you press it,” acquiesced His Honor. “But there must be a limit to this sort of thing.”

“Only a few more questions, Your Honor. Mr. O’Brien, have you ever been convicted of crime?”

“No!” valiantly answered the prosecutor, now gray as a ghost, for he saw his doom advancing upon him.

“Have you ever committed one?”

O’Brien choked.

“I won’t force you to answer that!” threw in Mr. Tutt gallantly.

“Have you any basis for that question?” demanded His Honor sharply.

Mr. Tutt smiled first at the jury and then at Judge Watkins.

“Your Honor,” he replied in his most engaging manner, “you and I perhaps belong to a generation which has old-fashioned ideas of honor. I admit that I have had no basis for any of the questions which I have just asked the witness. Honor demands that I should do so; yet, in a sense, honor demanded that I should ask them, although I might later have to disown their sincerity. But, sir”—and his old voice rose high and vibrant—“but, sir, I do not abandon my attack upon this witness’ credibility. I have but one more question to ask of him, and upon his answer I stake my client’s liberty. Let this witness but answer any way he may see fit—yes or no, I care not which—give any reply at all that may be officially recorded here, and not hereafter be disputed or denied by him—and these twelve men may return a verdict against my client.”

Something in the old lawyer’s tone drew the jury as one man toward the front of the box. Judge Watkins was gazing intently at Mr. Tutt. The faces in the court-room surged up and down like ocean waves beneath O’Brien’s smarting eyes. He was gaffed himself.

“Sir!” thundered Mr. Tutt, pointing an accusing finger at the miserable apology for a man now cowering upon the stand. “Sir! When you took this book in your hand”—he lifted Jones’ Professional Criminals from where it lay upon the table—“and pretended to read from its pages, were you reading something that was printed there or not? YES—OR NO?”

In the silence all could distinctly hear the ticking of the clock upon the rear wall of the court-room.

“Tick-tock! Tick-tock! Tick-tock! Yes—no! Yes—no! Yes—no!” it went.

O’Brien squirmed, looked down at the rocking floor, and turned faint.

“Tick-tock! Tick-tock!” alternated the clock.

“Yes—no! Yes—no!” answered O’Brien’s pulse.

Everything was going black and white, and great pulpy gray spiders seemed grabbing at him from the circumambient air. If he put the thing through and answered “Yes”—insisted that he had been reading from the book, that old gray wolf down there would put the book in evidence and prove him a perjurer, send him up! A band of sweat oozed from beneath his red skull-cap of hair. Yet if he answered “No”—admitted that he had made the whole thing up—that there was not a word in the book about Mooney at all—it would be nearly as bad!

In his agony he almost clutched the flimsy legal straw of refusing to answer on the ground that his reply might tend to degrade or incriminate him! But this would leave him in an even worse position. No, he must answer!

“Tick—tock! Yes—no! Tick—tock! Yes—no! Which—what!”

He moistened his parched lips and swallowed twice. He coughed—for time; and fumbled for his handkerchief. After all, he had done nothing that was not strictly legal. He had not charged that Mooney was a professional crook; he had only asked him the question. That didn’t commit him to anything! You could ask what you chose and you were bound by the witness’ answer. A gleam like sunrise flashed across his seething brain. Ah, that would save him, perhaps! Old Tutt would be bound by his answer. And then he saw himself tricked again! Yes, Tutt might be bound in the case at bar—although his muddy mind wasn’t quite sure whether he would be or not—but he himself would be forever bound by the written record. He could never get rid of the millstone that his yes or no—no matter which he uttered—would hang about his neck! Old Tutt, like the Old Man of the Sea, would forever be upon his back!

“No,” he muttered at last in a woolly voice, so low and thick as to be hardly audible. “I was not—reading from the book.”

He bowed his head as if awaiting the headsman’s stroke. A hiss—a score of hisses—writhed through the air toward him from the benches. Captain Phelan made no attempt to stop them.

“You mean——” began Judge Watkins incredulously. Then with a look of disgust he turned his back upon O’Brien.

“Ye snake!” This time the tense sibilant was that of a woman.

Mr. Tutt gazed at the jury. The Lord had delivered his enemy into his hands.

“Now, gentlemen,” he said with a deprecating smile, “you may convict my client if you will.”

There was a moment’s puzzled silence, broken by the foreman.

“The hell we will!” he suddenly exploded. “The fellow we want to convict is O’Brien!”

And in the flurry of involuntary applause which followed, the ancient Dougherty was heard to murmur:

“Hearken unto your verdict as it stands recorded. You say the defendant is not guilty—and so say ye all!”