Tutt and Mr. Tutt - Arthur Train
Though the defense had thirty peremptory challenges Mr. Tutt well knew
that Babson would sustain the prosecutor's objections for bias until the
jury box would contain the twelve automata personally selected by
O'Brien in advance from what Tutt called "the army of the gibbet." Yet
the old war horse outwardly maintained a calm and genial exterior,
betraying none of the apprehension which in fact existed beneath his
mask of professional composure. The court officer rapped sharply for
silence.
"Are you quite ready to proceed with the case?" inquired the judge with
a courtesy in which was ill concealed a leer of triumph.
"Yes, Your Honor," responded Mr. Tutt in velvet tones.
"Call the first talesman!"
The fight was on, the professional duel between traditional enemies, in
which the stake--a human life--was in truth the thing of least concern,
had begun. Yet no casual observer would have suspected the actual
significance of what was going on or the part that envy, malice,
uncharitableness, greed, selfishness and ambition were playing in it. He
would have seen merely a partially filled courtroom flooded with
sunshine from high windows, an attentive and dignified judge in a black
silk robe sitting upon a dais below which a white-haired clerk drew
little slips of paper from a wheel and summoned jurymen to a service
which outwardly bore no suggestion of a tragedy.
He would have seen a somewhat unprepossessing assistant district
attorney lounging in front of the jury box, taking apparently no great
interest in the proceedings, and a worried-looking young Italian sitting
at the prisoner's table between a rubicund little man with a round red
face and a tall, grave, longish-haired lawyer with a frame not unlike
that of Abraham Lincoln, over whose wrinkled face played from time to
time the suggestion of a smile. Behind a balustrade were the reporters,
scribbling on rough sheets of yellow paper. Then came rows of benches,
upon the first of which, as near the jury box as possible, sat Rosalina
in a new bombazine dress and wearing a large imitation gold cross
furnished for the occasion out of the legal property room of Tutt &
Tutt. Occasionally she sobbed softly. The bulk of the spectators
consisted of rejected talesmen, witnesses, law clerks, professional
court loafers and women seeking emotional sensations which they had not
the courage or the means to satisfy otherwise. The courtroom was
comparatively quiet, the silence broken only by the droning voice of the
clerk and the lazy interplay of question and answer between talesman and
lawyer.
Yet beneath the humdrum, casual, almost indifferent manner in which the
proceedings seemed to be conducted each side was watching every move
made by the other with the tension of a tiger ready to spring upon its
prey. Babson and O'Brien were engaged in forcing upon the defense a jury
composed entirely of case-hardened convictors, while Tutt & Tutt were
fighting desperately to secure one so heterogeneous in character that
they could hope for a disagreement.
By recess thirty-seven talesmen had been examined without a foreman
having been selected, and Mr. Tutt had exhausted twenty-nine of his
thirty challenges, as against three for the prosecution. The court
reconvened and a new talesman was called, resembling in appearance a
professional hangman who for relaxation leaned toward the execution of
Italians. Mr. Tutt examined him for bias and every known form of
incompetency, but in vain--then challenged peremptorily. Thirty
challenges! He looked on Tutt with slightly raised eyebrows.
"Patrick Henry Walsh--to the witness chair, please, Mr. Walsh!" called
the clerk, drawing another slip from the box.
Mr. Walsh rose and came forward heavily, while Tutt & Tutt trembled. He
was the one man they were afraid of--an old-timer celebrated as a
bulwark of the prosecution, who could always be safely counted upon to
uphold the arms of the law, who regarded with reverence all officials
connected with the administration of justice, and from whose
composition all human emotions had been carefully excluded by the
Creator. He was a square-jawed, severe, heavily built person, with a
long relentless upper lip, cheeks ruddy from the open air; engaged in
the contracting business; and he had a brogue that would have charmed a
mavis off a tree. Mr. Tutt looked hopelessly at Tutt.
Babson and O'Brien had won.
Once more Mr. Tutt struggled against his fate. Was Mr. Walsh sure he had
no prejudices against Italians or foreigners generally? Quite. Did he
know anyone connected with the case? No. Had he any objection to the
infliction of capital punishment? None whatever. The defense had
exhausted all its challenges. Mr. Tutt turned to the prospective foreman
with an endearing smile.
"Mr. Walsh," said he in caressing tones, "you are precisely the type of
man in whom I feel the utmost confidence in submitting the fate of my
client. I believe that you will make an ideal foreman I hardly need to
ask you whether you will accord the defendant the benefit of every
reasonable doubt, and if you have such a doubt will acquit him."
Mr. Walsh gazed suspiciously at Mr. Tutt.
"Sure," he responded dryly, "Oi'll give him the benefit o' the doubt,
but if Oi think he's guilty Oi'll convict him."
Mr. Tutt shivered.
"Of course! Of course! That would be your duty! You are entirely
satisfactory, Mr. Walsh!"
"Mr. Walsh is more than satisfactory to the prosecution!" intoned
O'Brien.
"Be sworn, Mr. Walsh," directed the clerk; and the filling of the jury
box in the memorable case of People versus Serafino was begun.
"That chap doesn't like us," whispered Mr. Tutt to Tutt. "I laid it on a
bit too thick."
In fact, Mr. Walsh had already entered upon friendly relations with Mr.
O'Brien, and as the latter helped him arrange a place for his hat and
coat the foreman cast a look tinged with malevolence at the defendant
and his counsel, as if to say "You can't fool me. I know the kind of
tricks you fellows are all up to."
O'Brien could not repress a grin. The clerk drew forth another name.
"Mr. Tompkins--will you take the chair?"
Swiftly the jury was impaneled. O'Brien challenged everybody who did not
suit his fancy, while Tutt & Tutt sat helpless.
Ten minutes and the clerk called the roll, beginning with Mr. Walsh, and
they were solemnly sworn a true verdict to find, and settled themselves
to the task.
The mills of the gods had begun to grind, and Angelo was being dragged
to his fate as inexorably and as surely, with about as much chance of
escape, as a log that is being drawn slowly toward a buzz saw.
"You may open the case, Mr. O'Brien," announced Judge Babson, leaning
back and wiping his glasses.
Then surreptitiously he began to read his mail as his fellow conspirator
undertook to tell the jury what it was all about. One by one the
witnesses were called--the coroner's physician, the policeman who had
arrested Angelo outside the barber shop with the smoking pistol in his
hand, the assistant barber who had seen the shooting, the customer who
was being shaved. Each drove a spike into poor Angelo's legal coffin.
Mr. Tutt could not shake them. This evidence was plain. He had come into
the shop, accused Crocedoro of making his wife's life unbearable
and--shot him.
Yet Mr. Tutt did not lose any of his equanimity. With the tips of his
long fingers held lightly together in front of him, and swaying slightly
backward and forward upon the balls of his feet, he smiled benignly down
upon the customer and the barber's assistant as if these witnesses were
merely unfortunate in not being able to disclose to the jury all the
facts. His manner indicated that a mysterious and untold tragedy lay
behind what they had heard, a tragedy pregnant with primordial vital
passions, involving the most sacred of human relationships, which when
known would rouse the spirit of chivalry of the entire panel.
On cross-examination the barber testified that Angelo had said: "You
maka small of my wife long enough!"
"Ah!" murmured Mr. Tutt, waving an arm in the direction of Rosalina. Did
the witness recognize the defendant's young wife? The jury showed
interest and examined the sobbing Rosalina with approval. Yes, the
witness recognized her. Did the witness know to what incident or
incidents the defendant had referred by his remark--what the deceased
Crocedoro had done to Rosalina--if anything? No, the witness did not.
Mr. Tutt looked significantly at the row of faces in the jury box.
Then leaning forward he asked significantly: "Did you see Crocedoro
threaten the defendant with his razor?"
"I object!" shouted O'Brien, springing to his feet. "The question is
improper. There is no suggestion that Crocedoro did anything. The
defendant can testify to that if he wants to!"
"Oh, let him answer!" drawled the judge.
"No--" began the witness.
"Ah!" cried Mr. Tutt. "You did not see Crocedoro threaten the defendant
with his razor! That will do!"
But forewarned by this trifling experience, Mr. O'Brien induced the
customer, the next witness, to swear that Crocedoro had not in fact made
any move whatever with his razor toward Angelo, who had deliberately
raised his pistol and shot him.
Mr. Tutt rose to the cross-examination with the same urbanity as before.
Where was the witness standing? The witness said he wasn't standing.
Well, where was he sitting, then? In the chair.
"Ah!" exclaimed Mr. Tutt triumphantly. "Then you had your back to the
shooting!"
In a moment O'Brien had the witness practically rescued by the
explanation that he had seen the whole thing in the glass in front of
him. The firm of Tutt & Tutt uttered in chorus a groan of outraged
incredulity. Several jurymen were seen to wrinkle their foreheads in
meditation. Mr. Tutt had sown a tiny--infinitesimally tiny, to be
sure--seed of doubt, not as to the killing at all but as to the complete
veracity of the witness.
And then O'Brien made his coup.
"Rosalina Serafino--take the witness stand!" he ordered.
He would get from her own lips the admission that she bought the pistol
and gave it to Angelo!
But with an outburst of indignation that would have done credit to the
elder Booth Mr. Tutt was immediately on his feet protesting against the
outrage, the barbarity, the heartlessness, the illegality of making a
wife testify against her husband! His eyes flashed, his disordered locks
waved in picturesque synchronization with his impassioned gestures
Rosalina, her beautiful golden cross rising and falling hysterically
upon her bosom, took her seat in the witness chair like a frightened,
furtive creature of the woods, gazed for one brief instant upon the
twelve men in the jury box with those great black eyes of hers, and then
with burning cheeks buried her face in her handkerchief.
"I protest against this piece of cruelty!" cried Mr. Tutt in a voice
vibrating with indignation. "This is worthy of the Inquisition. Will not
even the cross upon her breast protect her from being compelled to
reveal those secrets that are sacred to wife and motherhood? Can the law
thus indirectly tear the seal of confidence from the Confessional? Mr.
O'Brien, you go too far! There are some things that even you--brilliant
as you are--may not trifle with."
A juryman nodded. The eleven others, being more intelligent, failed to
understand what he was talking about.
"Mr. Tutt's objection is sound--if he wishes to press it," remarked the
judge satirically. "You may step down, madam. The law will not compel a
wife to testify against her husband. Have you any more witnesses, Mister
District Attorney?"
"The People rest," said Mr. O'Brien. "The case is with the defense."
Mr. Tutt rose with solemnity.
"The court will, I suppose, grant me a moment or two to confer with my
client?" he inquired. Babson bowed and the jury saw the lawyer lean
across the defendant and engage his partner in what seemed to be a
weighty deliberation.
"I killa him! I say so!" muttered Angelo feebly to Mr. Tutt.
"Shut up, you fool!" hissed Tutt, grabbing him by the leg. "Keep still
or I'll wring your neck."
"If I could reach that old crook up on the bench I would twist his
nose," remarked Mr. Tutt to Tutt with an air of consulting him about the
Year Books. "And as for that criminal O'Brien, I'll get him yet!"
With great dignity Mr. Tutt then rose and again addressed the court:
"We have decided under all the circumstances of this most extraordinary
case, Your Honor, not to put in any defense. I shall not call the
defendant--"
"I killa him--" began Angelo, breaking loose from Tutt and struggling
to his feet. It was a horrible movement. But Tutt clapped his hand over
Angelo's mouth and forced him back into his seat.
"The defense rests," said Mr. Tutt, ignoring the interruption. "So far
as we are concerned the case is closed."
"Both sides rest!" snapped Babson. "How long do you want to sum up?"
Mr. Tutt looked at the clock, which pointed to three. The regular hour
of 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 Chateau-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."
"You's mighty spry for an old man yit," she protested. "You kin make dem
lawyer men hop mighty high when you tries. Heh, heh! I reckon dey ain't
got nuffin' on my Mistah Tutt!"
Upstairs in his library Mr. Tutt strode up and down before the empty
grate, smoking stogy after stogy, trying to collect his thoughts and
devise something to say upon the morrow, but all his ideas had flown.
There wasn't anything to say. Yet he swore Angelo should not be offered
up as a victim upon the altar of unscrupulous ambition. The hours passed
and the old banjo clock above the mantel wheezed eleven, twelve; then
one, two. Still he paced up and down, up and down in a sort of trance.
The air of the library, blue with the smoke of countless stogies,
stifled and suffocated him. Moreover he discovered that he was hungry.
He descended to the pantry and salvaged a piece of pie, then unchained
the front door and stepped forth into the soft October night.
A full moon hung over the deserted streets of the sleeping city. In
divers places, widely scattered, the twelve good and true men were
snoring snugly in bed. To-morrow they would send Angelo to his death
without a quiver. He shuddered, striding on, he knew not whither, into
the night. His brain no longer worked. He had become a peripatetic
automaton self-dedicated to nocturnal perambulation.
With his pockets bulging with stogies and one glowing like a headlight
in advance of him he wandered in a sort of coma up Tenth Avenue, crossed
to the Riverside Drive, mounted Morningside Heights, descended again
through the rustling alleys of Central Park, and found himself at Fifth
Avenue and Fifty-ninth Street just as the dawn was paling the electric
lamps to a sickly yellow and the trees were casting strange unwonted
shadows in the wrong direction. He was utterly exhausted. He looked
eagerly for some place to sit down, but the doors of the hotels were
dark and tightly closed and it was too cold to remain without moving in
the open air.
Down Fifth Avenue he trudged, intending to go home and snatch a few
hours' sleep before court should open, but each block seemed miles in
length. Presently he approached the cathedral, whose twin spires were
tinted with reddish gold. The sky had become a bright blue. Suddenly all
the street lamps went out. He told himself that he had never realized
before the beauty of those two towers reaching up toward eternity,
typifying man's aspiration for the spiritual. He remembered having heard
that a cathedral was never closed, and looking toward the door he
perceived that it was open. With utmost difficulty he climbed the steps
and entered its dark shadows. A faint light emanated from the tops of
the stained-glass windows. Down below a candle burned on either side of
the altar while a flickering gleam shone from the red cup in the
sanctuary lamp. Worn out, drugged for lack of sleep, faint for want of
food, old Mr. Tutt sank down upon one of the rear seats by the door, and
resting his head upon his arms on the back of the bench in front of him
fell fast asleep.