[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!"
* * * * *