IV

The obscure defendant charged with murder has little reason to

complain of the law’s delays. The morning following the arrest of

Victor Ancona, the newspapers published long sensational articles,

denounced him as a fiend, and convicted him. The grand jury, as it

happened, was in session. The preliminaries were soon arranged and

the case was railroaded into trial. The indictment contained a

great many counts, and charged the prisoner with the murder of Nina

San Croix by striking, stabbing, choking, poisoning, and so forth.

The trial had continued for three days and had appeared so

overwhelmingly one-sided that the spectators who were crowded in

the court room had grown to be violent and bitter partisans, to

such an extent that the police watched them closely. The attorneys

for the People were dramatic and denunciatory, and forced their

case with arrogant confidence. Mason, as counsel for the prisoner,

was indifferent and listless. Throughout the entire trial he had

sat almost motionless at the table, his gaunt form bent over, his

long legs drawn up under his chair, and his weary, heavy-muscled

face, with its restless eyes, fixed and staring out over the heads

of the jury, was like a tragic mask. The bar, and even the judge,

believed that the prisoner’s counsel had abandoned his case.

The evidence was all in and the People rested. It had been shown

that Nina San Croix had resided for many years in the house in

which the prisoner was arrested; that she had lived by herself,

with no other companion than an old negro servant; that her past

was unknown, and that she received no visitors, save the Mexican

sailor, who came to her house at long intervals. Nothing whatever

was shown tending to explain who the prisoner was or whence he had

come. It was shown that on Tuesday preceding the killing the

Archbishop had received a communication from Nina San Croix, in

which she said she desired to make a statement of the greatest

import, and asking for an audience. To this the Archbishop replied

that he would willingly grant her a hearing if she would come to

him at eleven o’clock on Friday morning. Two policemen testified

that about eight o’clock on the night of Thursday they had noticed

the prisoner slip into the gate of Nina San Croix’s residence and

go down to the side of the house, where he was admitted; that his

appearance and seeming haste had attracted their attention; that

they had concluded that it was some clandestine amour, and out of

curiosity had both slipped down to the house and endeavored to find

a position from which they could see into the room, but were unable

to do so, and were about to go back to the street when they heard a

woman’s voice cry out in, great anger: “I know that you love her

and that you want to get rid of me, but you shall not do it! You

murdered him, but you shall not murder me! I have all the evidence

to convict you of murdering him! The Archbishop will have it to-

morrow! They shall hang you! Do you hear me? They shall hang you

for this murder!” that thereupon one of the policemen proposed that

they should break into the house and see what was wrong, but the

other had urged that it was only the usual lovers’ quarrel and if

they should interfere they would find nothing upon which a charge

could be based and would only be laughed at by the chief; that they

had waited and listened for a time, but hearing nothing further had

gone back to the street and contented themselves with keeping a

strict watch on the house.

The People proved further, that on Thursday evening Nina San Croix

had given the old negro domestic a sum of money and dismissed her,

with the instruction that she was not to return until sent for.

The old woman testified that she had gone directly to the house of

her son, and later had discovered that she had forgotten some

articles of clothing which she needed; that thereupon she had

returned to the house and had gone up the back way to her room,—

this was about eight o’clock; that while there she had heard Nina

San Croix’s voice in great passion and remembered that she had used

the words stated by the policemen; that these sudden, violent cries

had frightened her greatly and she had bolted the door and been

afraid to leave the room; shortly thereafter, she had heard heavy

footsteps ascending the stairs, slowly and with great difficulty,

as though some one were carrying a heavy burden; that therefore her

fear had increased and that she had put out the light and hidden

under the bed. She remembered hearing the footsteps moving about

upstairs for many hours, how long she could not tell. Finally,

about half-past four in the morning, she crept out, opened the

door, slipped downstairs, and ran out into the street. There she

had found the policemen and requested them to search the house.

The two officers had gone to the house with the woman. She had

opened the door and they had had just time to step back into the

shadow when the prisoner entered. When arrested, Victor Ancona had

screamed with terror, and cried out, “It was no use! it was no use

to do it!”

The Chief of Police had come to the house and instituted a careful

search. In the room below, from which the cries had come, he found

a dress which was identified as belonging to Nina San Croix and

which she was wearing when last seen by the domestic, about six

o’clock that evening. This dress was covered with blood, and had a

slit about two inches long in the left side of the bosom, into

which the Mexican knife, found on the prisoner, fitted perfectly.

These articles were introduced in evidence, and it was shown that

the slit would be exactly over the heart of the wearer, and that

such a wound would certainly result in death. There was much blood

on one of the chairs and on the floor. There was also blood on the

prisoner’s coat and the leg of his trousers, and the heavy Mexican

knife was also bloody. The blood was shown by the experts to be

human blood.

The body of the woman was not found, and the most rigid and

tireless search failed to develop the slightest trace of the

corpse, or the manner of its disposal. The body of the woman had

disappeared as completely as though it had vanished into the air.

When counsel announced that he had closed for the People, the judge

turned and looked gravely down at Mason. “Sir,” he said, “the

evidence for the defense may now be introduced.”

Randolph Mason arose slowly and faced the judge.

“If your Honor please,” he said, speaking slowly and distinctly,

“the defendant has no evidence to offer.” He paused while a murmur

of astonishment ran over the court room. “But, if your Honor

please,” he continued, “I move that the jury be directed to find

the prisoner not guilty.”

The crowd stirred. The counsel for the People smiled. The judge

looked sharply at the speaker over his glasses. “On what ground?”

he said curtly.

“On the ground,” replied Mason, “that the corpus delicti has not

been proven.”

“Ah!” said the judge, for once losing his judicial gravity. Mason

sat down abruptly. The senior counsel for the prosecution was on

his feet in a moment.

“What!” he said, “the gentleman bases his motion on a failure to

establish the corpus delicti? Does he jest, or has he forgotten

the evidence? The term ‘corpus delicti’ is technical, and means

the body of the crime, or the substantial fact that a crime has

been committed. Does anyone doubt it in this case? It is true

that no one actually saw the prisoner kill the decedent, and that

he has so successfully hidden the body that it has not been found,

but the powerful chain of circumstances, clear and close-linked,

proving motive, the criminal agency, and the criminal act, is

overwhelming.

“The victim in this case is on the eve of making a statement that

would prove fatal to the prisoner. The night before the statement

is to be made he goes to her residence. They quarrel. Her voice

is heard, raised high in the greatest passion, denouncing him, and

charging that he is a murderer, that she has the evidence and will

reveal it, that he shall be hanged, and that he shall not be rid of

her. Here is the motive for the crime, clear as light. Are not

the bloody knife, the bloody dress, the bloody clothes of the

prisoner, unimpeachable witnesses to the criminal act? The

criminal agency of the prisoner has not the shadow of a possibility

to obscure it. His motive is gigantic. The blood on him, and his

despair when arrested, cry ‘Murder! murder!’ with a thousand

tongues.

“Men may lie, but circumstances cannot. The thousand hopes and

fears and passions of men may delude, or bias the witness. Yet it

is beyond the human mind to conceive that a clear, complete chain

of concatenated circumstances can be in error. Hence it is that

the greatest jurists have declared that such evidence, being rarely

liable to delusion or fraud, is safest and most powerful. The

machinery of human justice cannot guard against the remote and

improbable doubt. The inference is persistent in the affairs of

men. It is the only means by which the human mind reaches the

truth. If you forbid the jury to exercise it, you bid them work

after first striking off their hands. Rule out the irresistible

inference, and the end of justice is come in this land; and you may

as well leave the spider to weave his web through the abandoned

court room.”

The attorney stopped, looked down at Mason with a pompous sneer,

and retired to his place at the table. The judge sat thoughtful

and motionless. The jurymen leaned forward in their seats.

“If your Honor please,” said Mason, rising, “this is a matter of

law, plain, clear, and so well settled in the State of New York

that even counsel for the People should know it. The question

before your Honor is simple. If the corpus delicti, the body of

the crime, has been proven, as required by the laws of the

commonwealth, then this case should go to the jury. If not, then

it is the duty of this Court to direct the jury to find the

prisoner not guilty. There is here no room for judicial

discretion. Your Honor has but to recall and apply the rigid rule

announced by our courts prescribing distinctly how the corpus

delicti in murder must be proven.

“The prisoner here stands charged with the highest crime. The law

demands, first, that the crime, as a fact, be established. The

fact that the victim is indeed dead must first be made certain

before anyone can be convicted for her killing, because, so long as

there remains the remotest doubt as to the death, there can be no

certainty as to the criminal agent, although the circumstantial

evidence indicating the guilt of the accused may be positive,

complete, and utterly irresistible. In murder, the corpus delicti,

or body of the crime, is composed of two elements:

“Death, as a result.

“The criminal agency of another as the means.

“It is the fixed and immutable law of this State, laid down in the

leading case of Ruloff v. The People, and binding upon this Court,

that both components of the corpus delicti shall not be established

by circumstantial evidence. There must be direct proof of one or

the other of these two component elements of the corpus delicti.

If one is proven by direct evidence, the other may be presumed; but

both shall not be presumed from circumstances, no matter how

powerful, how cogent, or how completely overwhelming the

circumstances may be. In other words, no man can be convicted of

murder in the State of New York, unless the body of the victim be

found and identified, or there be direct proof that the prisoner

did some act adequate to produce death, and did it in such a manner

as to account for the disappearance of the body.”

The face of the judge cleared and grew hard. The members of the

bar were attentive and alert; they were beginning to see the legal

escape open up. The audience were puzzled; they did not yet

understand. Mason turned to the counsel for the People. His ugly

face was bitter with contempt.

“For three days,” he said, “I have been tortured by this useless

and expensive farce. If counsel for the People had been other than

play-actors, they would have known in the beginning that Victor

Ancona could not be convicted for murder, unless he were confronted

in this court room with a living witness, who had looked into the

dead face of Nina San Croix; or, if not that, a living witness who

had seen him drive the dagger into her bosom.

“I care not if the circumstantial evidence in this case were so

strong and irresistible as to be overpowering; if the judge on the

bench, if the jury, if every man within sound of my voice, were

convinced of the guilt of the prisoner to the degree of certainty

that is absolute; if the circumstantial evidence left in the mind

no shadow of the remotest improbable doubt; yet, in the absence of

the eyewitness, this prisoner cannot be punished, and this Court

must compel the jury to acquit him.”

The audience now understood, and they were dumfounded. Surely this

was not the law. They had been taught that the law was common

sense, and this,—this was anything else.

Mason saw it all, and grinned. “In its tenderness,” he sneered,

“the law shields the innocent. The good law of New York reaches

out its hand and lifts the prisoner out of the clutches of the

fierce jury that would hang him.”

Mason sat down. The room was silent. The jurymen looked at each

other in amazement. The counsel for the People arose. His face

was white with anger, and incredulous.

“Your Honor,” he said, “this doctrine is monstrous. Can it be said

that, in order to evade punishment, the murderer has only to hide

or destroy the body of the victim, or sink it into the sea? Then,

if he is not seen to kill, the law is powerless and the murderer

can snap his finger in the face of retributive justice. If this is

the law, then the law for the highest crime is a dead letter. The

great commonwealth winks at murder and invites every man to kill

his enemy, provided he kill him in secret and hide him. I repeat,

your Honor,”—the man’s voice was now loud and angry and rang

through the court room—“that this doctrine is monstrous!”

“So said Best, and Story, and many another,” muttered Mason, “and

the law remained.”

“The Court,” said the judge, abruptly, “desires no further

argument.”

The counsel for the People resumed his seat. His face lighted up

with triumph. The Court was going to sustain him.

The judge turned and looked down at the jury. He was grave, and

spoke with deliberate emphasis.

“Gentlemen of the jury,” he said, “the rule of Lord Hale obtains in

this State and is binding upon me. It is the law as stated by

counsel for the prisoner: that to warrant conviction of murder

there must be direct proof either of the death, as of the finding

and identification of the corpse, or of criminal violence adequate

to produce death, and exerted in such a manner as to account for

the disappearance of the body; and it is only when there is direct

proof of the one that the other can be established by

circumstantial evidence. This is the law, and cannot now be

departed from. I do not presume to explain its wisdom. Chief-

Justice Johnson has observed, in the leading case, that it may have

its probable foundation in the idea that where direct proof is

absent as to both the fact of the death and of criminal violence

capable of producing death, no evidence can rise to the degree of

moral certainty that the individual is dead by criminal

intervention, or even lead by direct inference to this result; and

that, where the fact of death is not certainly ascertained, all

inculpatory circumstantial evidence wants the key necessary for its

satisfactory interpretation, and cannot be depended on to furnish

more than probable results. It may be, also, that such a rule has

some reference to the dangerous possibility that a general

preconception of guilt, or a general excitement of popular feeling,

may creep in to supply the place of evidence, if, upon other than

direct proof of death or a cause of death, a jury are permitted to

pronounce a prisoner guilty.

“In this case the body has not been found and there is no direct

proof of criminal agency on the part of the prisoner, although the

chain of circumstantial evidence is complete and irresistible in

the highest degree. Nevertheless, it is all circumstantial

evidence, and under the laws of New York the prisoner cannot be

punished. I have no right of discretion. The law does not permit

a conviction in this case, although every one of us may be morally

certain of the prisoner’s guilt. I am, therefore, gentlemen of the

jury, compelled to direct you to find the prisoner not guilty.”

“Judge,” interrupted the foreman, jumping up in the box, “we cannot

find that verdict under our oath; we know that this man is guilty.”

“Sir,” said the judge, “this is a matter of law in which the wishes

of the jury cannot be considered. The clerk will write a verdict

of not guilty, which you, as foreman, will sign.”

The spectators broke out into a threatening murmur that began to

grow and gather volume. The judge rapped on his desk and ordered

the bailiffs promptly to suppress any demonstration on the part of

the audience. Then he directed the foreman to sign the verdict

prepared by the clerk. When this was done he turned to Victor

Ancona; his face was hard and there was a cold glitter in his eyes.

“Prisoner at the bar,” he said, “you have been put to trial before

this tribunal on a charge of cold-blooded and atrocious murder.

The evidence produced against you was of such powerful and

overwhelming character that it seems to have left no doubt in the

minds of the jury, nor indeed in the mind of any person present in

this court room.

“Had the question of your guilt been submitted to these twelve

arbiters, a conviction would certainly have resulted and the death

penalty would have been imposed. But the law, rigid, passionless,

even-eyed, has thrust in between you and the wrath of your fellows

and saved you from it. I do not cry out against the impotency of

the law; it is perhaps as wise as imperfect humanity could make it.

I deplore, rather, the genius of evil men who, by cunning design,

are enabled to slip through the fingers of this law. I have no

word of censure or admonition for you, Victor Ancona. The law of

New York compels me to acquit you. I am only its mouthpiece, with

my individual wishes throttled. I speak only those things which

the law directs I shall speak.

“You are now at liberty to leave this court room, not guiltless of

the crime of murder, perhaps, but at least rid of its punishment.

The eyes of men may see Cain’s mark on your brow, but the eyes of

the Law are blind to it.”

When the audience fully realized what the judge had said they were

amazed and silent. They knew as well as men could know, that

Victor Ancona was guilty of murder, and yet he was now going out of

the court room free. Could it happen that the law protected only

against the blundering rogue? They had heard always of the boasted

completeness of the law which magistrates from time immemorial had

labored to perfect, and now when the skillful villain sought to

evade it, they saw how weak a thing it was.

V

The wedding march of Lohengrin floated out from the Episcopal

Church of St. Mark, clear and sweet, and perhaps heavy with its

paradox of warning. The theater of this coming contract before

high heaven was a wilderness of roses worth the taxes of a county.

The high caste of Manhattan, by the grace of the check book, were

present, clothed in Parisian purple and fine linen, cunningly and

marvelously wrought.

Over in her private pew, ablaze with jewels, and decked with

fabrics from the deft hand of many a weaver, sat Mrs. Miriam

Steuvisant as imperious and self-complacent as a queen. To her it

was all a kind of triumphal procession, proclaiming her ability as

a general. With her were a choice few of the genus homo, which

obtains at the five-o’clock teas, instituted, say the sages, for

the purpose of sprinkling the holy water of Lethe.

“Czarina,” whispered Reggie Du Puyster, leaning forward, “I salute

you. The ceremony sub jugum is superb.”

“Walcott is an excellent fellow,” answered Mrs. Steuvisant; “not a

vice, you know, Reggie.”

“Aye, Empress,” put in the others, “a purist taken in the net. The

clean-skirted one has come to the altar. Vive la vertu!”

Samuel Walcott, still sunburned from his cruise, stood before the

chancel with the only daughter of the blue blooded St. Clairs. His

face was clear and honest and his voice firm. This was life and

not romance. The lid of the sepulcher had closed and he had

slipped from under it. And now, and ever after, the hand red with

murder was clean as any.

The minister raised his voice, proclaiming the holy union before

God, and this twain, half pure, half foul, now by divine ordinance

one flesh, bowed down before it. No blood cried from the ground.

The sunlight of high noon streamed down through the window panes

like a benediction.

Back in the pew of Mrs. Miriam Steuvisant, Reggie Du Puyster turned

down his thumb. “Habet!” he said.

From “The Strange Schemes of Randolph Mason,” by Melville Davisson

Post. Copyright, 1896, by G. P. Putnam’s Sons.