Mrs. Mathusek distrusted the law and lawyers in the abstract

[Illustration: At that moment ... Mr. Tutt emerged from behind the jury box

and took his stand at Tony's side.]

By Advice of Counsel

Being Adventures of

the Celebrated Firm of

Tutt & Tutt

Attorneys & Counsellors at Law

By

Arthur Train

With Frontispiece

By Arthur William Brown

Published March, 1921

CONTENTS

THE SHYSTER

THE KID AND THE CAMEL

CONTEMPT OF COURT

BY ADVICE OF COUNSEL

"THAT SORT OF WOMAN"

YOU'RE ANOTHER!

BEYOND A REASONABLE DOUBT

The Shyster

Shyster, n. [Origin obscure.] One who does business trickily; a

person without professional honor: used chiefly of lawyers; as,

pettifoggers and shysters.--CENTURY DICTIONARY.

When Terry McGurk hove the brick through the window of Froelich's

butcher shop he did it casually, on general principles, and without any

idea of starting anything. He had strolled unexpectedly round the corner

from his dad's saloon, had seen the row going on between Froelich and

the gang of boys that after school hours used the street in front of the

shop as a ball ground, and had merely seized the opportunity to

vindicate his reputation as a desperado and put one over on the

Dutchman. The fact that he had on a red sweater was the barest

coincidence. Having observed the brick to be accurately pursuing its

proper trajectory he had ducked back round the corner again and

continued upon his way rejoicing. He had not even noticed Tony Mathusek,

who, having accidentally found himself in the midst of the mêlée, had

started to beat a retreat the instant of the crash, and had run plump

into the arms of Officer Delany of the Second. Unfortunately Tony too

was wearing a red sweater.

"I've got you, you young devil!" exulted Delany. "Here's one of 'em,

Froelich!"

"Dot's him! It was a feller mit a red sweater! Dot's the vun who done

it!" shrieked the butcher. "I vill make a gomblaint against him!"

"Come along, you! Quit yer kickin'!" ordered the cop, twisting Tony's

thin arm until he writhed. "You'll identify him, Froelich?"

"Sure! Didn't I see him mit my eyes? He's vun of dem rascals vot drives

all mine gustomers avay mit deir yelling and screaming. You fix it for

me, Bill."

"That's all right," the officer assured him. "I'll fix him good, I will!

It's the reformatory for him. Or, say, you can make a complaint for

malicious mischief."

"Sure! Dot's it! Malicious mischief!" assented the not over-intelligent

tradesman. "Ve'll get rid of him for good, eh?"

"Sure," assented Delany. "Come along, you!"

Tony Mathusek lifted a white face drawn with agony from his tortured

arm.

"Say, mister, you got the wrong feller! I didn't break the window. I was

just comin' from the house--"

"Aw, shut up!" sneered Delany. "Tell that to the judge!"

"Y' ain't goin' to take me to jail?" wailed Tony. "I wasn't with them

boys. I don't belong to that gang."

"Oh, so you belong to a gang, do ye? Well, we don't want no gangsters

round here!" cried the officer with adroit if unscrupulous sophistry.

"Come along now, and keep quiet or it'll be the worse for ye."

"Can't I tell my mother? She'll be lookin' for me. She's an old lady."

"Tell nuthin'. You come along!"

Tony saw all hope fade. He hadn't a chance--even to go to a decent

jail! He had heard all about the horrors of the reformatory. They

wouldn't even let your people visit you on Sundays! And his mother would

think he was run over or murdered. She would go crazy with worry. He

didn't mind on his own account, but his mother-- He loved the old

widowed mother who worked her fingers off to send him to school. And he

was the only one left, now that Peter had been killed in the war. It was

too much. With a sudden twist he tore out of his coat and dashed blindly

down the street. As well might a rabbit hope to escape the claws of a

wildcat. In three bounds Delany had him again, choking him until the

world turned black.

But this is not a story about police brutality, for most cops are not

brutal. Delany was an old-timer who believed in rough methods. He

belonged, happily, to a fast-vanishing system more in harmony with the

middle ages than with our present enlightened form of municipal

government. He remained what he was for the reason that farther up in

the official hierarchy there were others who looked to him, when it was

desirable, to deliver the goods--not necessarily cash--but to stand with

the bunch. These in turn were obligated on occasion, through

self-interest or mistaken loyalty to friend or party, to overlook

trifling irregularities, to use various sorts of pressure, or to forget

what they were asked to forget. There was a far-reaching web of

complicated relationships--official, political, matrimonial, commercial

and otherwise--which had a very practical effect upon the performance of

theoretical duty.

Delany was neither an idealist nor a philosopher. He was an empiricist,

with a touch of pragmatism--though he did not know it. He was "a

practical man." Even reform administrations have been known to advocate

a liberal enforcement of the laws. Can you blame Delany for being

practical when others so much greater than he have prided themselves

upon the same attribute of practicality? There were of course a lot of

things he simply had to do or get out of the force; at any rate, had he

not done them his life would have been intolerable. These consisted in

part of being deaf, dumb and blind when he was told to be so--a

comparatively easy matter. But there were other things that he had to

do, as a matter of fact, to show that he was all right, which were not

only more difficult, but expensive, and at times dangerous.

He had never been called upon to swear away an innocent man's liberty,

but more than once he had had to stand for a frame-up against a guilty

one. According to his cop-psychology, if his side partner saw something

it was practically the same as if he had seen it himself. That

phantasmagorical scintilla of evidence needed to bolster up a weak or

doubtful case could always be counted on if Delany was the officer who

had made the arrest. None of his cases were ever thrown out of court for

lack of evidence, but then, Delany never arrested anybody who wasn't

guilty!

Of course he had to "give up" at intervals, depending on what

administration was in power, who his immediate superior was, and what

precinct he was attached to, but he was not a regular grafter by any

means. He was an occasional one merely; when he had to be. He did not

consider that he was being grafted on when expected to contribute to

chowders, picnics, benevolent associations, defense funds or wedding

presents for high police officials. Neither did he think that he was

taking graft because he amicably permitted Froelich to leave a

fourteen-pound rib roast every Saturday night at his brother-in-law's

flat. In the same way he regarded the bills slipped him by Grabinsky,

the bondsman, as well-earned commissions, and saw no reason why the

civilian clothes he ordered at the store shouldn't be paid for by some

mysterious friendly person--identity unknown--but shrewdly suspected to

be Mr. Joseph Simpkins, Mr. Hogan's runner. Weren't there to be any

cakes and ale in New York simply because a highbrow happened to be

mayor? Were human kindness, good nature and generosity all dead? Would

he have taken a ten-dollar bill--or even a hundred-dollar one--from

Simpkins when he was going to be a witness in one of Hogan's cases? Not

on your life! He wasn't no crook, he wasn't! He didn't have to be. He

was just a cog in an immense wheel of crookedness. When the wheel came

down on his cog he automatically did his part.

I perceive that the police are engaging too much of our attention. But

it is necessary to explain why Delany was so ready to arrest Tony

Mathusek, and why as he dragged him into the station house he beckoned

to Mr. Joey Simpkins, who was loitering outside in front of the deputy

sheriff's office, and whispered behind his hand, "All right. I've got

one for you!"

Then the machine began to work as automatically as a cash register. Tony

was arraigned at the bar, and, having given his age as sixteen years and

five days, charged with the "malicious destruction of property, to wit,

a plate-glass window of one Karl Froelich, of the value of one hundred

and fifty dollars." Mr. Joey Simpkins had shouldered his way through the

smelly push and taken his stand beside the bewildered and half-fainting

boy.

"It's all right, kid. Leave it to me," he said, encircling him with a

protecting arm. Then to the clerk: "Pleads not guilty."

The magistrate glanced over the complaint, in which Delany, to save

Froelich trouble, had sworn that he had seen Tony throw the brick.

Hadn't the butcher said he'd seen him? Besides, that let the Dutchman

out of a possible suit for false arrest. Then the magistrate looked down

at the cop himself.

"Do you know this boy?" he asked sharply.

"Sure, Yerroner. He's a gangster. Admitted it to me on the way over."

"Are you really over sixteen?" suddenly demanded the judge, who knew and

distrusted Delany, having repeatedly stated in open court that he

wouldn't hang a yellow dog on his testimony. The underfed, undersized

boy did not look more than fourteen.

"Yes, sir," said Tony. "I was sixteen last week."

"Got anybody to defend you?"

Tony looked at Simpkins inquiringly. He seemed a very kind gentleman.

"Mr. Hogan's case, judge," answered Joey. "Please make the bail as low

as you can."

Now this judge was a political accident, having been pitchforked into

office by the providence that sometimes watches over sailors, drunks and

third parties. Moreover, in spite of being a reformer he was nobody's

fool, and when the other reformers who were fools got promptly fired out

of office he had been reappointed by a supposedly crooked boss simply

because, as the boss said, he had made a hell of a good judge and they

needed somebody with brains here and there to throw a front.

Incidentally, he had a swell cousin on Fifth Avenue who had invited the

boss and his wife to dinner, by reason of which the soreheads who lost

out went round asking what kind of a note it was when a silk-stocking

crook could buy a nine-thousand-dollar job for a fifty-dollar dinner.

Anyhow, he was clean and clean-looking, kindly, humorous and wise above

his years--which were thirty-one. And Tony looked to him like a poor

runt, Simpkins and Delany were both rascals, Froelich wasn't in court,

and he sensed a nigger somewhere. He would have turned Tony out on the

run had he had any excuse. He hadn't, but he tried.

"Would you like an immediate hearing?" he asked Tony in an encouraging

tone.

"Mr. Hogan can't be here until to-morrow morning," interposed Simpkins.

"Besides, we shall want to produce witnesses. Make it to-morrow

afternoon, judge."

Judge Harrison leaned forward.

"Are you sure you wouldn't prefer to have the hearing now?" he inquired

with a smile at the trembling boy.

"Well, I want to get Froelich here--if you're going to proceed now,"

spoke up Delany. "And I'd like to look up this defendant's record at

headquarters."

Tony quailed. He feared and distrusted everybody, except the kind Mr.

Simpkins. He suspected that smooth judge of trying to railroad him.

"No! No!" he whispered to the lawyer. "I want my mother should be here;

and the janitor, he knows I was in my house. The rabbi, he will give me

a good character."

The judge heard and shrugged his bombazine-covered shoulders. It was no

use. The children of darkness were wiser in their generation than the

children of light.

"Five hundred dollars bail," he remarked shortly. "Officer, have your

witnesses ready to proceed to-morrow afternoon at two o'clock."

* * * * *

"Mr. Tutt," said Tutt with a depressed manner as he watched Willie

remove the screen and drag out the old gate-leg table for the firm's

daily five o'clock tea and conference in the senior partner's office,

"if a man called you a shyster what would you do about it?"

The elder lawyer sucked meditatively on the fag end of his stogy before

replying.

"Why not sue him?" Mr. Tutt inquired.

"But suppose he didn't have any money?" replied Tutt disgustedly.

"Then why not have him arrested?" continued Mr. Tutt. "It's libelous

_per se_ to call a lawyer a shyster."

"Even if he is one," supplemented Miss Minerva Wiggin ironically, as she

removed her paper cuffs preparatory to lighting the alcohol lamp under

the teakettle. "The greater the truth the greater the libel, you know!"

"And what do you mean by that?" sharply rejoined Tutt. "You don't--"

"No," replied the managing clerk of Tutt & Tutt. "I don't! Of course

not! And frankly, I don't know what a shyster is."

"Neither do I," admitted Tutt. "But it sounds opprobrious. Still, that

is a rather dangerous test. You remember that colored client of ours who

wanted us to bring an action against somebody for calling him an

Ethiopian!"

"There's nothing dishonorable in being an Ethiopian," asserted Miss

Wiggin.

"A shyster," said Mr. Tutt, reading from the Century Dictionary, "is

defined as 'one who does business trickily; a person without

professional honor; used chiefly of lawyers.'"

"Well?" snapped Tutt.

"Well?" echoed Miss Wiggin.

"H'm! Well!" concluded Mr. Tutt.

"I nominate for the first pedestal in our Hall of Legal Ill

Fame--Raphael B. Hogan," announced Tutt, complacently disregarding all

innuendoes.

"But he's a very elegant and gentlemanly person," objected Miss Wiggin

as she warmed the cups. "My idea of a shyster is a down-at-the-heels,

unshaved and generally disreputable-looking police-court

lawyer--preferably with a red nose--who murders the English

language--and who makes his living by preying upon the ignorant and

helpless."

"Like Finklestein?" suggested Tutt.

"Exactly!" agreed Miss Wiggin. "Like Finklestein."

"He's one of the most honorable men I know!" protested Mr. Tutt. "My

dear Minerva, you are making the great mistake--common, I confess, to a

large number of people--of associating dirt and crime. Now dirt may

breed crime, but crime doesn't necessarily breed dirt."

"You don't have to be shabby to prey upon the ignorant and helpless,"

argued Tutt. "Some of our most prosperous brethren are the worst sharks

out of Sing Sing."

"That is true!" she admitted, "but tell it not in Gath!"

"A shyster," began Mr. Tutt, unsuccessfully applying a forced draft to

his stogy and then throwing it away, "bears about the same relation to

an honest lawyer as a cad does to a gentleman. The fact that he's well

dressed, belongs to a good club and has his name in the Social Register

doesn't affect the situation. Clothes don't make men; they only make

opportunities."

"But why is it," persisted Miss Wiggin, "that we invariably associate

the idea of crime with that of 'poverty, hunger and dirt'?"

"That is easy to explain," asserted Mr. Tutt. "The criminal law

originally dealt only with crimes of violence--such as murder, rape and

assault. In the old days people didn't have any property in the modern

sense--except their land, their cattle or their weapons. They had no

bonds or stock or bank accounts. Now it is of course true that rough,

ignorant people are much more prone to violence of speech and action

than those of gentle breeding, and hence most of our crimes of violence

are committed by those whose lives are those of squalor. But"--and here

Mr. Tutt's voice rose indignantly--"our greatest mistake is to assume

that crimes of violence are the most dangerous to the state, for they

are not. They cause greater disturbance and perhaps more momentary

inconvenience, but they do not usually evince much moral turpitude.

After all, it does no great harm if one man punches another in the head,

or even in a fit of anger sticks a dagger in him. The police can easily

handle all that. The real danger to the community lies in the crimes of

duplicity--the cheats, frauds, false pretenses, tricks and devices,

flimflams--practised most successfully by well-dressed gentlemanly

crooks of polished manners."

By this time the kettle was boiling cheerfully, quite as if no such

thing as criminal law existed at all, and Miss Wiggin began to make the

tea.

"All the same," she ruminated, "people--particularly very poor

people--are often driven to crime by necessity."

"It's Nature's first law," contributed Tutt brightly.

Mr. Tutt uttered a snort of disgust.

"It may be Nature's first law, but it's about the weakest defense a

guilty man can offer. 'I couldn't help myself' has always been the

excuse for helping oneself!"

"Rather good--that!" approved Miss Wiggin. "Can you do it again?"

"The victim of circumstances is inevitably one who has made a victim of

someone else," blandly went on Mr. Tutt without hesitation.

"Ting-a-ling! Right on the bell!" she laughed.

"It's true!" he assured her seriously. "There are two defenses that are

played out--necessity and instigation. They've never been any good since

the Almighty overruled Adam's plea in confession and avoidance that a

certain female co-defendant took advantage of his hungry innocence and

put him up to it."

"No one could respect a man who tried to hide behind a woman's skirts!"

commented Tutt.

"Are you referring to Adam?" inquired his partner. "Anyhow, come to

think of it, the maxim is not that 'Necessity is the first law of

Nature,' but that 'Necessity knows no law.'"

"I'll bet you--" began Tutt. Then he paused, recalling a certain

celebrated wager which he had lost to Mr. Tutt upon the question of who

cut Samson's hair. "I bet you don't know who said it!" he concluded

lamely.

"If I recall correctly," ruminated Mr. Tutt, "Shakspere says in 'Julius

Caesar' that 'Nature must obey necessity'; while Rabelais says

'Necessity has no law'; but the quotation we familiarly use is

'Necessity knows no law except to conquer,' which is from Publilius

Syrus."

"From who?" cried Tutt in ungrammatical surprise.

"Never mind!" soothed Miss Wiggin. "Anyway, it wasn't Raphael B. Hogan."

"Who certainly completely satisfies your definition so far as preying

upon the ignorant and helpless is concerned," said Mr. Tutt. "That man

is a human hyena--worse than a highwayman."

"Yet he's a swell dresser," interjected Tutt. "Owns his house and lives

in amity with his wife."

"Doubtless he's a loyal husband and a devoted father," agreed Mr. Tutt.

"But so, very likely, is the hyena. Certainly Hogan hasn't got the

excuse of necessity for doing what he does."

"Don't you suppose he has to give up good and plenty to somebody?"

demanded Tutt. "Cops and prison keepers and bondsmen and under sheriffs,

and all kinds of crooked petty officials. I should worry!"

_"Great fleas have little fleas upon their backs to bite 'em,

And little fleas have lesser fleas, and so ad infinitum,"_

quoted Miss Wiggin reminiscently.

"A flea has to be a flea," continued Tutt. "He, or it, can't be anything

else, but Hogan doesn't have to be a lawyer. He could be an honest man

if he chose."

"He? Not on your life! He couldn't be honest if he tried!" roared Mr.

Tutt. "He's just a carnivorous animal! A man eater! They talk about

scratching a Russian and finding a Tartar; I'd hate to scratch some of

our legal brethren."

"So would I!" assented Tutt. "I guess you're right, Mr. Tutt.

Christianity and the Golden Rule are all right in the upper social

circles, but off Fifth Avenue there's the same sort of struggle for

existence that goes on in the animal world. A man may be all sweetness

and light to his wife and children and go to church on Sundays; he may

even play pretty fair with his own gang; but outside of his home and

social circle he's a ravening wolf; at least Raphael B. Hogan is!"

* * * * *

The subject of the foregoing entirely accidental conversation was at

that moment standing contemplatively in his office window smoking an

excellent cigar preparatory to returning to the bosom of his family.

Raphael B. Hogan believed in taking life easily. He was accustomed to

say that outside office hours his time belonged to his wife and

children; and several times a week he made it his habit on the way home

to supper to stop at the florist's or the toy shop and bear away with

him inexpensive tokens of his love and affection. On the desk behind

him, over which in the course of each month passed a lot of very tainted

money, stood a large photograph of Mrs. Hogan, and another of the three

little Hogans in ornamented silver frames, and his face would soften

tenderly at the sight of their self-conscious faces, even at a moment

when he might be relieving a widowed seamstress of her entire

savings-bank account. After five o'clock this hyena purred at his wife

and licked his cubs; the rest of the time he knew no mercy.

But he concealed his cruelty and his avarice under a mask of benignity.

He was fat, jolly and sympathetic, and his smile was the smile of a

warm-hearted humanitarian. The milk of human kindness oozed from his

every pore. In fact, he was always grumbling about the amount of work he

had to do for nothing. He was a genial, generous host; unostentatiously

conspicuous in the local religious life of his denomination; in court a

model of obsequious urbanity, deferential to the judges before whom he

appeared and courteous to all with whom he was thrown in contact. A

good-natured, easy-going, simple-minded fat man; deliberate, slow of

speech, well-meaning, with honesty sticking out all over him, you would

have said; one in whom the widow and the orphan would have found a

staunch protector and an unselfish friend. And now, having thus subtly

connoted the character of our villain, let us proceed with our

narrative.

The telephone buzzed on the wall set beside him.

"That you, chief?" came the voice of Simpkins.

"Yep."

"Got one off Delany."

"What is it?"

"Kid smashed a window--malicious mischief. Held for examination

to-morrow at two. Five hundred bail."

"Any sugar?"

"Don't know. Says his father's dead and mother earns seventeen a week in

a sweatshop and sends him to school. Got some insurance. I'm going right

round there now."

"Well," replied Hogan, "don't scare her by taking too much off her at

first. I suppose there's evidence to hold him?"

"Sure. Delany says he saw it."

"All right. But go easy! Good night."

"Leave that to me, chief!" assured Simpkins. "See you to-morrow."

It will be observed that in this professional interchange nothing at all

was said regarding the possibility of establishing Tony's innocence, but

that on the contrary Mr. Simpkins' mind was concentrated upon his

mother's ability to pay. This was the only really important

consideration to either of them. But Hogan did not worry, because he

knew that Simpkins would skilfully entangle Mrs. Mathusek in such a web

of apprehension that rather than face her fears she would if necessary

go out and steal the money. So Mr. Raphael B. Hogan hung up the receiver

and with his heart full of gentle sympathy for all mankind walked slowly

home, pausing to get some roses for Mrs. Hogan and to buy a box for

Daddy Long Legs at the Strand, for whenever he got a new case he always

made it the occasion for a family party, and he wanted the children to

benefit by passing an evening under the sweet influence of Miss

Pickford.

Now just at the moment that his employer was buying the roses Mr.

Simpkins entered the apartment of Mrs. Mathusek and informed her of

Tony's arrest and incarceration. He was very sympathetic about it, very

gentle, this dapper little man with the pale gray eyes and inquisitive,

tapirlike nose; and after the first moment of shock Mrs. Mathusek took

courage and begged the gentleman to sit down. There are always two

vultures hanging over the poor--death and the law; but of the two the

law is the lesser evil. The former is a calamity; the latter is a

misfortune. The one is final, hopeless, irretrievable; from the other

there may perhaps be an escape. She knew Tony was a good boy; was sure

his arrest was a mistake, and that when the judge heard the evidence he

would let Tony go. Life had dealt hardly with her and made her an old

woman at thirty-four, really old, not only in body but in spirit, just

as in the middle ages the rigor of existence made even kings old at

thirty-five. What do the rich know of age? The women of the poor have a

day of spring, a year or two of summer, and a lifetime of autumn and

winter.

Mrs. Mathusek distrusted the law and lawyers in the abstract, but Mr.

Simpkins' appearance was so reassuring that he almost counteracted in

her mind the distress of Tony's misfortune. He was clearly a gentleman,

and she had a reverential regard for the gentry. What gentlefolk said

was to be accepted as true. In addition this particular gentleman was

learned in the law and skilled in getting unfortunate people out of

trouble. Now, though Mr. Simpkins possessed undoubtedly this latter

qualification, it was also true that he was equally skilled in getting

people into it. If he ultimately doubled their joys and halved their

sorrows he inevitably first doubled their sorrows and halved their

savings. Like the witch in Macbeth: "Double, double toil and trouble."

His aims were childishly simple: First, to find out how much money his

victim had, and then to get it.

His methods were no more complicated than his aims and had weathered the

test of generations of experience. So:

"Of course Tony must be bailed out," he said gently. "You don't want him

to spend the night in jail."

"Jail! Oh, no! How much is the bail?" cried Tony's mother.

"Only five hundred dollars." His pale gray eyes were watching her for

the slightest sign of suspicion.

"Five hundred dollars! Eoi! Eoi! It is a fortune! Where can I get five

hundred dollars?" She burst into tears. "I have saved only one hundred

and sixty!"

Mr. Simpkins pursed his lips. Then there was nothing for it! He reached

for his hat. Mrs. Mathusek wrung her hands. Couldn't the gentleman go

bail for Tony? He was such a dear, kind, good gentleman! She searched

his face hungrily. Mr. Simpkins falteringly admitted that he did not

possess five hundred dollars.

"But--" he hesitated.

"Yes!"

"But--" she echoed, seizing his sleeve and dragging him back.

Mr. Simpkins thought that they could hire somebody to go bail; no, in

that case there would be no money to pay the great lawyer whom they must

at once engage to defend her son--Mr. Hogan, one who had the pull and

called all the judges by their first names. He would not usually go into

court for less than five hundred dollars, but Mr. Simpkins said he would

explain the circumstances to him and could almost promise Mrs. Mathusek

that he would persuade him to do it this once for one hundred and fifty.

So well did he act his part that Tony's mother had to force him to take

the money, which she unsewed from inside the ticking of her mattress.

Then he conducted her to the station house to show her how comfortable

Tony really was and how much better it was to let him stay in jail one

night and make sure of his being turned out the next afternoon by giving

the money to Mr. Hogan, than to use it for getting bail for him and

leave him lawyerless and at the mercy of his accusers. When Mrs.

Mathusek saw the cell Tony was in she became even more frightened than

she had been at first. But by that time she had already given the money

to Simpkins.

Second thoughts are ofttimes best. Most crooks are eventually caught

through their having, from long immunity, grown careless and yielded to

impulse. Once he had signed the complaint in which he swore that he had

seen Tony throw the brick, Delany had undergone a change of heart. Being

an experienced policeman he was sensitive to official atmosphere, and he

had developed a hunch that Judge Harrison was leery of the case. The

more he thought of it the less he liked the way the son-of-a-gun had

acted, the way he'd tried to get Mathusek to ask for an immediate

hearing. Why had he ever been such a fool as to sign the complaint

himself? It had been ridiculous--just because he was mad at the boy for

trying to get away and wanted to make things easy for Froelich. If he

went on the stand the next afternoon he'd have to make up all sorts of

fancy details, and Hogan would have his skin neatly tacked to the barn

doors for keeps. Thereafter, no matter what happened, he'd never be able

to change his testimony. After all, it would be easy enough to abandon

the charge at the present point. It was a genuine case of cold feet. He

scented trouble. He wanted to renig while the renigging was good. What

in hell had Froelich ever done for him, anyhow? A few measly pieces of

roast!

When Hogan returned home that evening with the little Hogans from the

movies he found the cop waiting for him outside his door.

"Look here," Delany whispered, "I'm going to can this here Mathusek

window case. I'm going to fall down flat on my identification and give

you a walkout. So go easy on me--and sort of help me along, see?"

"The hell you are!" retorted Hogan indignantly. "Then where do I come

in, eh? Why don't you come through?"

"But I've got him wrong!" pleaded Delany. "You don't want me to put my

neck in a sling, do you, so as you can make a few dollars? Look at all

the money I've sent your way. Have a heart, Rafe!"

"Bull!" sneered the Honorable Rafe. "A man's gotta live! You saw him do

it! You've sworn to it, haven't you?"

"I made a mistake."

"How'll that sound to the commissioner? An' to Judge Harrison? No, no!

Nothin' doin'! If you start anything like that I'll roast the life out

of you!"

Delany spat as near Hogan's foot as he elegantly could.

"You're a hell of a feller, you are!" he growled, and turned his back on

him as upon Satan.

* * * * *

The brick that Terry McGurk hurled as a matter of principle through

Froelich's window produced almost as momentous consequences as the want

of the horseshoe nail did in Franklin's famous maxim. It is the unknown

element in every transaction that makes for danger.

The morning after the catastrophe Mr. Froelich promptly made application

to the casualty company with which he had insured his window for

reimbursement for his damage. Just as promptly the company's lawyer

appeared at the butcher shop and ascertained that the miscreant who had

done the foul deed had been arrested and was to be brought into court

that afternoon. This lawyer, whose salary depended indirectly upon the

success which attended his efforts to secure the conviction and

punishment of those who had cost his company money, immediately camped

upon the trails of both Froelich and Delany. It was up to them, he said,

to have the doer of wanton mischief sent away. If they didn't cooperate

he would most certainly ascertain why. Now insurance companies are

powerful corporations. They can do favors, and contrariwise they can

make trouble, and Lawyer Asche was hot under the collar about that

window. Had he ever heard of the place he would have likened it to the

destruction of Coucy-le-Château by the Huns.

This, for Delany, put an entirely new aspect upon the affair. It was one

thing to ditch a case and another to run up against Nathan Asche. He had

sworn to the complaint and if he didn't make good on the witness stand

Asche would get his hide. Then he bethought him that if only Froelich

was sufficiently emphatic in his testimony a little uncertainty on his

own part might be excused.

In the meantime, however, two things had happened to curdle Froelich's

enthusiasm. First, his claim against the Tornado Casualty Company had

been approved, and second, he had been informed on credible authority

that they had got the wrong boy. Now he had sincerely thought that he

had seen Tony throw the brick--he had certainly seen a boy in a red

sweater do something--but he realized also that he had been excited and

more or less bewildered at the time; and his informant--Mrs. Sussman,

the wife of the cigar dealer--alleged positively that it had been thrown

by a strange kid who appeared suddenly from round the corner and as

suddenly ran away in the direction whence he had come.

Froelich perceived that he had probably been mistaken, and being

relatively honest--and being also about to get his money--and not

wishing to bear false witness, particularly if he might later be sued

for false imprisonment, he decided to duck and pass the buck to Delany,

who was definitely committed. He was shrewd enough, however, not to give

his real reason to the policeman, but put it on the ground of being so

confused that he couldn't remember. This left Delany responsible for

everything.

"But you said that that was the feller!" argued the cop, who had gone to

urge Froelich to assume the onus of the charge. "And now you want to

leave me holdin' the bag!"

"Vell, you said yourself you seen him, didn't you?" replied the German.

"An' you svore to it. I didn't svear to noddings."

"Aw, you!" roared the enraged cop, and hastened to interview Mr. Asche.

Aping a broad humanitarianism he suggested to Asche that if Mrs.

Mathusek would pay for the window they could afford to let up on the

boy. He did it so ingeniously that he got Asche to go round there, only

to find that she had no money, all given to Simpkins. Gee, what a

mix-up!

It is quite possible that even under these circumstances Delany might

still have availed himself of what in law is called a _locus

poenitentiae_ had it not been that the mix-up was rendered still more

mixed by the surreptitious appearance in the case of Mr. Michael McGurk,

the father of the actual brick artist, who had learned that the cop was

getting wabbly and was entertaining the preposterous possibility of

withdrawing the charge against the innocent Mathusek, to the imminent

danger of his own offspring. In no uncertain terms the saloon keeper

intimated to the now embarrassed guardian of the public peace that if he

pulled anything like that he would have him thrown off the force, to say

nothing of other and darker possibilities connected with the morgue.

All of which gave Delany decided pause.

Hogan, for his own reasons, had meanwhile reached an independent

conclusion as to how he could circumvent Delany's contemplated

treachery. If, he decided, the cop should go back on his identification

of the criminal he foresaw Tony's discharge in the magistrate's court,

and no more money. The only sure way, therefore, to prevent Tony's

escape would be by not giving Delany the chance to change his testimony;

and by waiving examination before the magistrate and consenting

voluntarily to having his client held for the action of the grand jury,

in which event Tony would be sent to the Tombs and there would be plenty

of time for Simpkins to get an assignment of Mrs. Mathusek's insurance

money before the grand jury kicked out the case. This also had the

additional advantage of preventing any funny business on the part of

Judge Harrison.

Delany was still undecided what he was going to do when the case was

called at two o'clock. It is conceivable that he might still have tried

to rectify his error by telling something near the truth, in spite of

Hogan, Asche and McGurk, but the opportunity was denied him.

At two o'clock Tony, a mere chip tossed aimlessly hither and yon by

eddies and cross currents, the only person in this melodrama of motive

whose interests were not being considered by anybody, was arraigned at

the bar and, without being consulted in the matter, heard Mr. Hogan, the

fat, kindly lawyer whom his mother had retained to defend him, tell the

judge that they were going to waive examination and consent to be held

for the action of the grand jury.

"You see how it is, judge," Hogan simpered. "You'd have no choice but to

hold my client on the officer's testimony. The easiest way is to waive

examination and let the grand jury throw the case out of the window!"

Delany heard this announcement with intense relief, for it let him out.

It would relieve him from the dangerous necessity of testifying before

Judge Harrison and he could later spill the case before the grand jury

when called before that august body. Moreover, he could tip off the

district attorney in charge of the indictment bureau that the case was a

lemon, and the latter would probably throw it out on his own motion. The

D.A.'s office didn't want any more rotten cases to prosecute than it

could help. It seemed his one best bet, the only way to get his feet out

of the flypaper. What a mess for a few pieces of rotten beef!

"You understand what is being done, do you?" inquired the keen-faced

judge sharply. "You understand this means that unless you give bail you

will have to stay in jail until the grand jury dismisses the case or

finds an indictment against you?"

Underneath the cornice of the judge's dais Hogan patted his arm, and

Tony, glancing for encouragement at the big friendly face above him,

whispered "Yes."

So Tony went to the Tombs and was lodged in a cell next door to Soko the

Monk, who had nearly beaten a Chinaman to death with a pair of brass

knuckles, from whom he learned much that was exciting if not edifying.

Now, as Delany was wont to say for years thereafter, that damn Mathusek

case just went bad on him. He had believed that in the comparative

secrecy of the inquisitorial chamber he could easily pretend that he had

originally made an honest mistake and was no longer positive of the

defendant's identity, in which case when the grand jury threw out the

case nobody would ever know the reason and no chickens would come home

to roost on him.

But when the cop visited the office of Deputy Assistant District

Attorney Caput Magnus the next morning, to inform him that this here

window-breaking case was a Messina, he found Mr. Nathan Asche already

solidly there present, engaged in advising Mr. Magnus most emphatically

to the exact contrary. Indeed the attorney was rhetorical in his

insistence that this destruction of the property of law-abiding

taxpayers must stop.

Mr. Asche was not a party to be trifled with. He was a rectangular

person whom nothing could budge, and his very rectangularity bespoke his

stubborn rectitude. His shoulders were massive and square, his chin and

mouth were square, his burnsides were square cut, and he had a square

head and wore a square-topped derby. He looked like the family portrait

of Uncle Amos Hardscrabble. When he sat down he remained until he had

said his say. It was a misfortunate meeting for Delany, for Asche nailed

him upon the spot and made him repeat to Caput Magnus the story of how

he had seen Tony throw the brick and then, for some fool reason, not

being satisfied to let it go at that, he insisted on calling in a

stenographer and having Delany swear to the yarn in affidavit form! This

entirely spoiled any chance the policeman might otherwise have had of

changing his testimony. He now had no choice but to go on and swear the

case through before the grand jury--which he did.

Even so, that distinguished body of twenty-three representative citizens

was not disposed to take the matter very seriously. Having heard what

Delany had to say--and he made it good and strong under the

circumstances--several of them remarked disgustedly that they did not

understand why the district attorney saw fit to waste their valuable

time with trivial cases of that sort. Boys would play ball and boys

would throw balls round; if not balls, then stones. They were about to

dismiss by an almost unanimous vote, when the case went bad again. The

foreman, a distinguished person in braided broadcloth, rose and

announced that he was very much interested to learn their views upon

this subject as he was the president of a casualty company, and he

wished them to understand that thousands--if not hundreds of

thousands--of dollars' worth of plate-glass windows were wantonly broken

by young toughs, every year, for which his and other insurance companies

had to recoup the owners. In fact, he alleged heatedly, window breaking

was a sign of peculiar viciousness. Incipient criminals usually started

their infamous careers that way; you could read that in any book on

penology. An example ought to be made. He'd bet this feller who threw

the brick was a gangster.

So his twenty-two fellow grand jurymen politely permitted him to recall

Officer Delany and ask him: "Say, officer, isn't it a fact--just tell us

frankly now--if this feller Mathusek isn't a gangster?"

"Sure, he's a gangster. He was blowin' about it to me after I arrested

him," swore Delany without hesitation.

The foreman swept the circle with a triumphant eye.

"What'd I tell you?" he demanded. "All in favor of indicting said Tony

Mathusek for malicious destruction of property signify in the usual

manner. Cont'riminded? It's a vote. Ring the bell, Simmons, and bring on

the next case."

So Tony was indicted by the People of the State of New York for a

felony, and a learned judge of the General Sessions set his bail at

fifteen hundred dollars; and Hogan had his victim where he wanted him

and where he could keep him until he had bled his mother white of all

she had or might ever hope to have in this world.

Everybody was satisfied--Hogan, Simpkins, Asche, McGurk, even Delany,

because the fleas upon his back were satisfied and he was planning

ultimately to get rid of the whole damn tangle by having the indictment

quietly dismissed when nobody was looking, by his friend O'Brien, to

whom the case had been sent for trial. And everything being as it should

be, and Tony being locked safely up in a cell, Mr. Joey Simpkins set

himself to the task of extorting three hundred and fifty dollars more

from Mrs. Mathusek upon the plea that the great Mr. Hogan could not

possibly conduct the case before a jury for less.

Now the relations of Mr. Assistant District Attorney O'Brien and the

Hon. Raphael B. Hogan were distinctly friendly. At any rate, whenever

Mr. Hogan asked for an adjournment in Mr. O'Brien's court he usually got

it without conspicuous difficulty, and that is what occurred on the five

several occasions that the case of The People versus Antonio Mathusek

came up on the trial calendar during the month following Tony's

incarceration, on each of which Mr. Hogan with unctuous suavity rose and

humbly requested that the case be put over at his client's earnest

request in order that counsel might have adequate time in which to

subpoena witnesses and prepare for a defense.

And each day Simpkins, who now assumed a threatening and fearsome

demeanor toward Mrs. Mathusek, visited the heartsick woman in her flat

and told her that Tony could and would rot in the Tombs until such time

as she procured three hundred and fifty dollars. The first week she

assigned her life-insurance money; the second she pawned the furniture;

until at last she owed Hogan only sixty-five dollars. At intervals Hogan

told Tony that he was trying to force the district attorney to try the

case, but that the latter was insisting on delay.

In point of fact, O'Brien had never looked at the papers, much less made

any effort to prepare the case; if he had he would have found that there

was no case at all. And Delany's mind became at peace because he

perceived that at the proper psychological moment he could go to O'Brien

and whisper: "Say, Mr. O'Brien, that Mathusek case. It's a turn-out!

Better recommend it for dismissal," and O'Brien would do so for the

simple reason that he never did any more work than he was actually

compelled to do.

But as chance would have it, three times out of the five, Mr. Ephraim

Tutt happened to be in court when Mr. Hogan rose and made his request

for an adjournment; and he remembered it because the offense charged was

such an odd one--breaking a window.

Delany's simple plan was again defeated by Nemesis, who pursued him in

the shape of the rectangular Mr. Asche, and who shouldered himself into

O'Brien's office during the fifth week of Tony's imprisonment and wanted

to know why in hell he didn't try that Mathusek case and get rid of it.

The assistant district attorney had just been called down by his

official boss and being still sore was glad of a chance to take it out

on someone else.

"D'you think I've nothin' better to do than try your damned old

window-busting cases?" he sneered. "Who ever had the idea of indicting a

boy for that sort of thing, anyhow?"

"That is no way to talk," answered Mr. Asche with firmness. "You're paid

to prosecute whatever cases are sent to you. This is one of 'em. There's

been too much delay. Our president will be annoyed."

"Oh, he will, will he?" retorted O'Brien, nevertheless, coming to the

instant decision that he had best find some other excuse than mere

disinclination. "If he gets too shirty I'll tell him the case came in

here without any preparation and being in the nature of a private

prosecution we've been waiting for you to earn your fee. How'll you like

that, eh?"

Mr. Asche became discolored.

"H'm!" he replied softly. "So that is it, is it? You won't have that

excuse very long, even if you could get away with it now. I'll have a

trial brief and affidavits from all the witnesses ready for you in

forty-eight hours."

"All right, old top!" nodded O'Brien carelessly. "We always strive to

please!"

So Mr. Asche got busy, while the very same day Mr. Hogan asked for and

obtained another adjournment.

Some people resemble animals; others have a geometrical aspect. In each

class the similarity tends to indicate character. The fox-faced man is

apt to be sly, the triangular man is likely to be a lump. So Mr. Asche,

being rectilinear, was on the square; just as Mr. Hogan, being soft and

round, was slippery and hard to hold. Three days passed, during which

Mrs. Mathusek grew haggard and desperate. She was saving at the rate of

two dollars a day, and at that rate she would be able to buy Tony a

trial in five weeks more. She had exhausted her possibilities as a

borrower. The indictment slept in O'Brien's tin file. Nobody but Tony,

his mother and Hogan remembered that there was any such case, except Mr.

Asche, who one afternoon appeared unexpectedly in the offices of Tutt &

Tutt, the senior partner of which celebrated law firm happened to be

advisory counsel to the Tornado Casualty Company.

"I just want you to look at these papers, Mr. Tutt," Mr. Asche said, and

his jaw looked squarer than ever.

Mr. Tutt was reclining as usual in his swivel chair, his feet crossed

upon the top of his ancient mahogany desk.

"Take a stog!" he remarked without getting up, and indicating with the

toe of one Congress-booted foot the box which lay open adjacent to the

Code of Criminal Procedure. "What's your misery?"

"Hell's at work!" returned Mr. Asche, solemnly handing over a sheaf of

affidavits. "I never smoke."

Mr. Tutt somewhat reluctantly altered his position from the horizontal

to the vertical and reached for a fresh stogy. Then his eye caught the

name of Raphael B. Hogan.

"What the devil is this?" he cried.

"It's the devil himself!" answered Mr. Asche with sudden vehemence.

"Tutt, Tutt! Come in here!" shouted the head of the firm. "Mine enemy

hath been delivered into mine hands!"

"Hey? What?" inquired Tutt, popping across the threshold. "Who--I

mean--"

"Raphael B. Hogan!"

"The devil!" ejaculated Tutt.

"You've said it!" declared Mr. Asche devoutly.

* * * * *

That evening under cover of darkness Mr. Ephraim Tutt descended from a

dilapidated taxi at the corner adjacent to Froelich's butcher shop, and

several hours later was whisked uptown again to the brownstone dwelling

occupied by the Hon. Simeon Watkins, the venerable white-haired judge

then presiding in Part I of the General Sessions, where he remained

until what may be described either as a very late or a very early hour,

and where during the final period of his intercourse he and that

distinguished member of the judiciary emptied an ancient bottle

containing a sparkling rose-colored liquid of great artistic beauty.

Then Mr. Tutt returned to his own library at the house on Twenty-third

Street and paced up and down before the antiquated open grate, inhaling

quantities of what Mr. Bonnie Doon irreverently called "hay smoke," and

pondering deeply upon the evils that men do to one another, until the

dawn peered through the windows and he bethought him of the all-night

lunch stand round the corner on Tenth Avenue, and there sought

refreshment.

"Salvatore," he remarked to the smiling son of the olive groves who

tended that bar of innocence, "the worst crook in the world is the man

who does evil for mere money."

"_Si, Signor Tutti_," answered Salvatore with Latin perspicacity. "You

gotta one, eh? You giva him hell?"

"_Si! Si!_" replied Mr. Tutt cheerily. "Even so! And of a truth,

moreover! Give me another hot dog and a cup of bilge water!"

* * * * *

By Advice of Counsel · 第 1 / 16 段