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The talesmen had been drawn from what Tutt & Tutt sardonically referred to as The Standing Army of the Gibbet—that is to say, from a panel composed entirely of experienced and substantial citizens, wise to all the tricks practiced at the criminal [12] bar since the days of Howe & Hummel down through those of Big Bill Fallon; a proper jury, who respected the sworn officers of the law, detested crime, distrusted all defense attorneys, and would do their duty as they saw it, irrespective of the consequences; a jury who, if necessary, would convict their own mothers; a jury, in short, to make any prosecutor’s heart sing for joy.

Mr. Tutt’s heart sank as he looked at them. Yet he must sow the seed of doubt—of reasonable doubt—in the jury’s minds before the conclusion of the testimony, or Vance Halloran, guilty or not guilty, would die.

He studied them shrewdly from under his shaggy eyebrows. A hard-boiled bunch, those importers, civil engineers, bankers, accountants, manufacturers and retired merchants. That Prussian-necked foreman, with his veined red face and waxed mustaches, was ready to convict already! The only countenance in which he could read a trace of sympathy was that of No. 7, a good-natured-looking man with a close-cropped mustache—“T. Jefferson Lee, landscape gardener.”

“There’s only one way to try this case, Bonnie,” whispered Mr. Tutt. “I’ve got to turn this courtroom into a monkey house. If I can get Babson’s goat and make O’Brion mad enough, I’ll have a fighting chance; otherwise not! Leave me absolutely alone. I’ve got to be a feeble old man struggling for justice against the irresistible forces of the law.”

“I get you, boss,” replied his henchman. “I’ll be sitting back there with the boys if you want me.”

Judge Babson tapped with his gavel, and O’Brion arose to make his opening speech. The jury, giving him their strict attention, were manifestly impressed. Brick by brick, the prosecution built up the wall of evidence that was to entomb the defendant. His witnesses more than substantiated his statement of what he intended to prove. Five testified that, from across the street they had heard a report and seen a flash at Halloran’s right side; three more swore to a quarrel between him and Kelly a month before the shooting; Judge Fitzpatrick that he had issued a pistol permit to Halloran; and two police officers that they had arrested him in his tracks and found a revolver about fifty feet down the alley, where he might easily have thrown it.

“I offer the gun in evidence,” said O’Brion, holding it up for the inspection of the jury.

“I object to its admission,” countered Mr. Tutt firmly, “without evidence that it belonged to my client.”

“That is a matter for the defense. You are free to prove that it is not Halloran’s gun, if you can do so.”

“Why not be fair for once, Mr. O’Brion?” the old man twitted him. “You know perfectly well that we have no resources to conduct an adequate investigation, whereas you have the entire detective force at your disposal. If this gun belongs to my client, it would seem up to you to prove it. I further object that the defendant has not been given time in which to prepare for trial. It would take us weeks, perhaps months, to trace the purchase of that pistol. This homicide was committed less than a fortnight ago. The indictment was returned the next day. The defendant was forced to plead ‘Not guilty’ forty-eight hours later. And here he is on trial! It is an exhibition of the most unseemly and unjust haste. I protest.”

Judge Babson tapped with his gavel.

“That will do! I shall admit the pistol in evidence. Mark it ‘People’s Exhibit A.’ Either side may argue as it sees fit upon the lack of evidence as to ownership.”

“And I except,” answered Mr. Tutt.

“The People rest,” announced O’Brion, glad at last to be through with his side of the case, for Mr. Tutt had been at him like a gadfly from the start.

“By cripes!” muttered Captain Gallagher. “If the old boy beats this, he’ll be a wonder!”

“Proceed with the defense.”

Mr. Tutt arose.

“Vance, take the stand.”

Halloran, realizing the odds against him, sat there, sullen and defiant, after taking the oath—a hopeless figure.

“You are the defendant in this action?”

“Sure I am.”

“Did you kill Michael Kelly?”

“I did not!”

“Did you have any motive to kill him?”

“No.”

“Where were you going when you heard this shot beside you?”

“I was on me way home to supper. It was the first anniversary of our wedding and——”

“One moment! I move the last part of the answer be stricken out!” interposed O’Brion. “It is irrelevant and immaterial.”

“Strike it out!” directed Babson, on the theory that the answer was technically unresponsive, although O’Brion had carelessly failed to base his objection on that ground.

It was the chance for which Mr. Tutt had been waiting, and he took it.

“Can it be irrelevant or immaterial that the defendant was on his way to celebrate his wedding anniversary when the alleged murder was committed?” he demanded, in a tone of indignation. “Would not any reasonable human being question whether the defendant would select that particular moment to commit a murder? I ask that, in fairness to the defendant, he be allowed to answer my question.”

“I have ruled upon the objection. You may have an exception,” replied Babson, doing the best he could.

Mr. Tutt fingered a piece of paper.

“I offer in evidence the certificate of marriage of Vance Halloran and Nora O’Conner, dated April 21, 1936.”

O’Brion sprang to his feet.

“Object!”

“Excluded!”

“Exception!”

Tit-tat-Tutt! It was beginning to get messy. O’Brion had stated no ground of objection, and Babson, who was easily confused, supposed vaguely that he was adhering to a ruling he had, in fact, never made.

The jury were puzzled. They could not know either that O’Brion, realizing the point to be the only dangerous feature of the defense, had determined that the evidence must be kept out, even at the risk of a reversal in the higher courts, or that the dignified Babson was in reality a dunderhead.

Mr. Tutt waved the certificate threateningly at the judge.

“I cannot believe that Your Honor, after proper consideration, will exclude so vital a bit of testimony. I——”

His Honor flushed uncomfortably.

“I shall not change my ruling! I do not care to hear further argument.”

“But I have a right to be heard!” challenged Mr. Tutt. “I am responsible for the life of this defendant! I insist——”

Bang! went the gavel. “Sit down, sir!”

The old lawyer genuflected slightly, then bobbed up again.

“I rise to make an objection!”

“Your objection is overruled! Sit down!”

“I desire to state the grounds of my objection.”

“I do not care to hear them,” snapped Babson, making his first tactical slip. “I shall not give you the opportunity to make speeches out of order, for their effect upon the jury.”

Mr. Tutt drew himself up to his full height.

“I object to Your Honor’s remarks as prejudicial and uncalled for!” he thundered.

“Sit down, sir!”

“I also object to your Honor’s tone and manner as hostile and showing obvious bias. This isn’t a Nazi court!”

Bang! Bang! “Sit down! Unless you wish to be committed for contempt!”

Mr. Tutt looked toward the jury and shrugged hopelessly. No. 7 had slightly raised his eyebrows.

“I have no desire to be committed for contempt, but whatever course Your Honor sees fit to pursue, I must protect my client. I except to Your Honor’s ruling and to Your Honor’s threats!”

He sat down, leaving poor Babson in a dither of rage. A judge had to protect the dignity of his own court, didn’t he? He couldn’t let himself be insulted, could he?

From his seat upon the dais, he looked appealingly at the prosecutor, but O’Brion, blaming Babson for having lost his self-control, promptly lost his own. The judge should have put old Tutt in his place once and for all! The jury must be shown that this was no tea party, but a murder trial!

This he proceeded to do in his cross-examination of the defendant. Halloran was, at best, not quick-witted, and now, before he could get out his full answers, O’Brion worried, tore and twisted them into seeming contradictions. The effect was as if Carnera had been bound to a post, with Bomber Louis left free to slug him in the face as he would. And after O’Brion had got through with his bear-baiting, Babson, who had once himself been a prosecutor, could not refrain from taking a hand and showing by his questions that he regarded Halloran’s explanation of the loss of his revolver as fantastic.

Indeed, when the defendant climbed down and stumbled back to his seat, Mr. Tutt’s worst fears had been realized. True or not, no jury would ever believe his story!

“Nora, please take the stand.”

Hugging her baby, Mrs. Halloran came timidly forward. O’Brion, flushed with victory, proceeded to put his foot in it. “Sob stuff!” he croaked, for the benefit of the jury.

Mr. Tutt saw an expression of disapproval flit across the face of No. 7 and took courage.

“You are the wife of the defendant?”

“Yes, sir.”

“Tell us, Nora, the date upon which you were married to Vance Halloran.”

O’Brion, still gambling on the overwhelming proof of guilt to swamp technical errors, leaped up. Babson, now wholly lost, simply followed his lead.

“Object!”

“Sustained.”

“Does Your Honor deny to this woman the right to show that her child was born in lawful wedlock!”

“That is not an issue in this case,” sneered O’Brion. “It is immaterial whose this child is, or whether it was borrowed for the occasion!”

Mr. Tutt turned furiously on the prosecutor.

“Such remarks are unconscionable and highly prejudicial to the defendant! I ask the court to declare a mistrial.”

“Motion denied,” retorted Babson, still smarting under the lash of Mr. Tutt’s reference to a Nazi court of justice.

“I take an exception,” said Mr. Tutt.... “That is all, Nora!”

“Wait a moment!” ordered O’Brion. “You say your flat was burglarized and that six dollars and a bracelet were taken?”

“Yes, sir.”

“Did you tell your husband about it?”

“Naturally.”

“Did he in turn, tell you that his gun had been stolen?”

The witness lowered her eyes.

“No.”

O’Brion exultantly faced the jury.

“That is all!”

Mr. Tutt shivered in spite of himself. As far as the facts went, she had done more harm than good. What a case! He had no other witnesses, save those as to character! Impressively as he could he called Father O’Conner, the parish priest; Murphy, the boss truckman of the Star; Schwartz, the butcher; Lefkowitz, the tailor; Tibberman, the undertaker; and Donovan, a retired policeman—all of whom swore that Vance Halloran’s reputation for honesty and truthfulness, peace and quiet, was good. O’Brion did not so much as glance at them, indicating by his manner that anyone—even a murderer—could obtain character witnesses for the asking.

“The defense rests.”

“The People rest.”

“Go to the jury!”

Mr. Tutt, with shoulders hunched, walked slowly to the front of the box.

“Mr. Foreman and gentlemen of the jury,” he began quietly enough, “the New York Code of Criminal Procedure was enacted for the purpose of insuring to every defendant accused of crime a fair and impartial trial under the established rules of evidence—a right asserted by the signers of our Declaration of Independence and guaranteed to us under the Constitution of the United States. The personal safety of each and every one of you depends upon the preservation of the inviolability of due legal process, uninfluenced by any sort of pressure, official or unofficial——”

“One moment! I object!” interrupted O’Brion. “This harangue has nothing to do with the case!”

Babson took the hint. He had a feeling that things were not going just right and that, somehow or other, the old man was putting something over on him. The jury must not get the idea that Mr. Tutt was running the show.

“Confine yourself to the evidence, counselor.”

“Does Your Honor mean to suggest that I may not comment upon the constitutional guaranties under which this and every other defendant must be legally tried?”

“I merely said to confine yourself to the evidence.”

“I surely have the right to explain the rights for which our forefathers fought and died.”

“I will take care of all that!”

“I conceive it my duty to take care of it myself.”

Judge Babson drew in his lips.

“Proceed, counselor.”

Mr. Tutt turned again to the jury.

“Gentlemen, you are the sole judges of the evidence. While His Honor may comment upon the testimony, even he cannot substitute himself for you in determining what that testimony may or may not establish.”

Babson was narrowing his eyes.

“Much more, then, is it beyond the right of the district attorney to attempt to sway your judgment by innuendo, unfair emphasis, false construction or by official pressure.”

Bang! went the gavel. “That will be enough. It is within my judicial discretion to limit the speeches of counsel. Get off generalities. Come down to business.”

“Very good, Your Honor.... Then, gentlemen, if I am to come down to my business, let me but point out to you that the much-heralded fact that this defendant was indicted and brought to trial in the record time of fourteen days is not evidence of his guilt, nor the obvious intention of Mr. O’Brion to exclude every fact favorable to our side of the case and to attempt, by securing a conviction at any cost, to advance his own political fortunes.”

“I object!” bawled O’Brion.

“The galled jade will wince!” Mr. Tutt taunted him.

“Stop!” exclaimed the miserable Babson. “I will permit no more of this! The jury will pay no attention to statements of counsel.”

“If the court will not allow me to sum up my case in my own way——”

“You may, but within proper bounds!”

Mr. Tutt’s face froze.

“I cannot tell what Your Honor may regard as proper bounds,” he answered sternly. “Under the circumstances, I refuse to sum up this case, let the consequences be what they will!”

He sat down and bowed his face in his hands. Jury, spectators, court officers held their breath. Nothing like this had ever occurred in their experience.

Babson, not knowing what to do, decided to do nothing. Swallowing his wrath, he said: “Were this not a crucial moment in an important trial, I would deal with this incident in summary fashion. As it is, I shall not do anything which might prejudice the defendant’s interests. If his counsel does not see fit to go on—whatever his reasons may be—you may proceed with your summation, Mr. District Attorney.”

Caught off guard by being thus thrown unexpectedly into action, O’Brion hesitated as to what course to pursue. Curse the old shyster! He’d thrown a nut into the whole legal machinery; had managed to put both Babson and himself in the wrong! Should he try to laugh him out of court, explain that the old fellow’s outbursts of indignation were all put on—the last attempt of a desperate man to confuse the issue? If he did, the jury might get the impression that he was trying to justify himself. Probably that was just what old Tutt hoped for. No, he had a perfect case, and neither Babson nor he had anything to apologize for in the way it had been conducted. He must not let Mr. Tutt’s red herring lure him off Halloran’s trail. He had no time for finesse. He’d simply give Halloran the works.

He did it in masterly style. With jaw outthrust and arms flailing the air, he delivered a spread-eagle oration that held the jury spellbound, tore the defense to tatters, excoriated Mr. Tutt and finally pictured the weeping widow and bereaved children of the deceased and demanded vengeance upon the murderer. The blood of Michael Kelly “called to them from the ground! Whoso sheddeth man’s blood, by man shall his blood be shed!” and all the rest of it, and then some more, until, as old Gallagher remarked, the walls of the courtroom were “plastered with blood and guts.”

He even, in his enthusiasm, bettered his usual peroration: “You have sworn a true deliverance to make. You have no choice. The only honest deliverance in this case will be a verdict of murder in the first degree. As the representative of the People, I demand it. If you fail to return it, you will have violated your oaths, betrayed the confidence of your fellow citizens, stamped yourselves as either craven or corrupt and made yourselves a laughingstock in the community.”

Mr. O’Brion sank back into his chair. Instantly, Mr. Tutt’s tall form shot up.

“I object to the remarks of the district attorney as highly prejudicial to the rights of the defendant. So far from it being obligatory on this jury to return a verdict of guilty merely because he orders them to do so, it will be their duty to weigh the evidence conscientiously and, if they have a reasonable doubt of the defendant’s guilt, to acquit him. In so doing, they will be fulfilling the obligation of their oaths and vindicating the confidence of their fellow citizens. Such a verdict will not stamp them as cowards or bribe takers, but as honorable, fair-minded men. I ask Your Honor so to instruct the jury.”

Judge Babson did not disregard O’Brion’s gesture of protest. It would not do to let the jury gain the impression that the prosecutor’s summation had exceeded the bounds of propriety.

“Mr. Tutt,” he replied severely, “your objection to the district attorney’s remarks is uncalled for. He has a perfect right—nay, it is his duty!—to present the People’s side of this case to the jury and ask them to accept his interpretations of the evidence—namely, that the defendant has been guilty of deliberate premeditated murder—just as it is yours to try to persuade them that he has not. I will now charge the jury.”

“Are there any requests?” he asked, when the charge was concluded.

Mr. Tutt leaned toward Bonnie Doon.

“All set?” he asked behind his hand.

“Okay, chief!”

“All right then. Go to it. It’s a desperate chance, but we’ve nothing else.”

As Bonnie slipped out of the court-room, the old lawyer arose. Looking straight at No. 7, he said: “I ask Your Honor to charge that if, in the jury’s opinion, the defendant has not received a fair trial, it is their duty to acquit him.”

There was no sound save the ticking of the clock upon the rear wall. The veins in Babson’s forehead swelled and his neck reddened.

“I decline so to charge. I am the sole judge as to whether or not the defendant has had a fair trial. Your request is a reflection upon the Court.”

Mr. Tutt gazed at the unfortunate Babson as if he were a worm.

“I except to the refusal to charge as requested. I ask Your Honor to charge the jury that it is more important to preserve the integrity of the administration of criminal justice than that a particular defendant be convicted or acquitted.”

The muscles of Babson’s jaws twitched. “I decline to charge in the language requested. It is no part of my duty to instruct the jury in metaphysical generalities.”

Then Mr. Tutt, his eyes lifted to the Goddess of Justice above the dais, cried: “I ask Your Honor to charge further, in the language of the Declaration of Independence, that ‘all men ... are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it.’ That—in the words of Thomas Jefferson—‘rebellion to tyrants is obedience to God.’”

Smash! went Babson’s gavel. “Sit down! The jury will entirely disregard this stump speech of counsel!”

Mr. Tutt did not sit down. On the contrary, he raised his voice: “I accuse this court of bias, intimidation and unjudicial conduct. I charge the district attorney with prejudicial and unfair methods. In a word, I allege that my client is being railroaded to the electric chair.”

“Sit down, sir!” shouted Babson. “Or I shall declare you in contempt of this court!”

“I have nothing but contempt for this court!” coolly replied Mr. Tutt.

“In that case, I shall order the sheriff to place you under arrest and to remove you from the courtroom.”

O’Brion shook his head warningly toward the bench. That would be going too far.

“Or rather, under the circumstances,” temporized Babson, “I order you to appear before me tomorrow morning to show cause why you should not be fined five hundred dollars for contempt.”

“I shall appear, Your Honor,” answered the Old Man resolutely. “And if this defendant be convicted of murder, may his blood be upon your head.”

Mastering his fury, Babson turned to the men in the box: “The jury will retire!”