Mr. Brown eyed Mr. Tutt savagely. "What do you mean by that?"

"Didn't you tell this old gentleman beside me that you were a doctor of

medicine but not a doctor of veterinary medicine--and beg him to treat

your horse for that reason?"

"Sure I did. Certainly."

"Well, are you a licensed medical practitioner?"

"Look here! What's that got to do with it?" snarled Mr. Brown, looking

about for aid from the sleeping Hingman.

"The question is a proper one. Answer it," directed the judge.

"No, I'm not a licensed doctor."

"Well, didn't you treat Mr. Lowry?"

The jury by this time had caught the drift of the examination and were

listening with intent appreciation.

Mr. Brown leaned forward, a sickening smile of sneering superiority

curling about his yellow molars.

"Ah!" he cried. "That's where I have you, sir! I only pretended to treat

him. I didn't really. I only scribbled something on a piece of paper."

"You knew he couldn't read, of course?"

"Sure."

Mr. Tutt turned to the uplifted faces of the twelve. "So," he retorted,

pursing his wrinkled lips and placing his fingers together in that

attitude of piety which we frequently observe upon effigies of defunct

ecclesiastics--"so you did the very thing for which you threw this old

man at my side into jail--and for which he is now on trial! You lied to

him about being a doctor! You deceived him about giving him the medical

treatment he so much needed! And you arrested him after he had worked

for hours to relieve the sufferings of a sick animal. By the way, it was

a sick animal, wasn't it?"

"The sickest I could find," replied Brown airily.

"And he did relieve its sufferings, did he not?" continued Mr. Tutt

gently.

"Very likely. I wasn't particularly interested in that end of it."

Mr. Tutt's meager frame seemed suddenly to expand until he hung over the

witness chair like the genii who mushroomed so unexpectedly out of the

fisherman's bottle in the Arabian Nights Entertainments.

"You were not interested in ministering to a poor horse, so sick it

could hardly stand! You were only interested in imprisoning and

depriving of his only form of livelihood this old man whose heart was

not hardened like yours! May I ask at whose instance you went and lied

to him?"

"Mr. Tutt! Mr. Tutt!" interjected the octogenarian angel. "Your

examination is exceeding the bounds of judicial propriety."

Ephraim Tutt bowed low.

"A thousand pardons, Your Honor! My emotions swept me away! I most

humbly apologize! But when this witness so unblushingly confesses how he

played the scoundrel's part, aged case hardened practitioner as I am, my

heart cries out against such infamous treachery--"

Bang! went the judge's gavel.

"You are only making it worse!" declared the court severely. "Proceed

with your examination."

"Very well, Your Honor!" replied Mr. Tutt, his lips trembling with

well-simulated indignation. "Now, sir, who instigated this miserable

deception--I beg Your Honor's pardon! Who put you up to this game--I

mean, this course of conduct?"

"Nobody," replied Brown in a surly tone.

"Did you ever hear of the United Association of Veterinaries of the

Greater City of New York--sometimes referred to as The Horse Leeches'

Union?" asked Mr. Tutt insinuatingly.

Mr. Brown hesitated.

"I've heard of some such organization," he admitted. "But I never heard

it was called a Horse Leeches' Union."

"Didn't one of its officers come to you and say that unless something

was done to reduce competition they'd have to go out of business--owing

to the decrease in horses in New York?"

"I don't remember," answered Brown slowly. "One of 'em may have said

something of the sort to me. But that's my business!"

"Yes!" roared Mr. Tutt suddenly. "It's your business to pretend you're a

doctor when you're not, and you walk the streets a free man; and you

want to send my client to Sing Sing for the same offense! That is all! I

am done with you! Get down off the stand! Do not let me detain you from

the practise of your unlicensed profession!"

"Mr. Tutt!" again admonished His Honor as the lawyer threw himself

angrily into his chair. "This really won't do at all!"

"I beg Your Honor's pardon--a thousand times!" said Mr. Tutt in tones so

humble and sincere that he almost made the angel-faced baboon believe

him.

I should like to go on and describe the whole course of Danny Lowry's

trial item by item, witness by witness, and tell what Mr. Tutt did to

each. But I can't; there isn't room. I can only dwell upon the tactics

of Mr. Tutt long enough to state that at the conclusion of the case

against Daniel Lowry, wherein it was clearly, definitely and

convincingly established that Danny had been practising veterinary

medicine for a long time without the faintest legal right, the lawyer

rose and declared emphatically to the jury that his client was

absolutely, totally and unquestionably innocent, as they would see by

giving proper attention to the evidence he would produce--so that he

would not take up any more of their valuable time in talk.

And having made this opening statement with all the earnestness and

solemnity of which he was capable Mr. Tutt called to prove the

defendant's good reputation, first, Father Plunkett, the priest to whom

Danny made his monthly confession and who told the jury that he knew no

better man in all his parish; second, Mulqueen, who described Danny's

love of horses, his knowledge of them, his mysterious intuition

concerning their hidden ailments, which, being as they could not speak,

it was given to few to know, and how night after night he would sit up

with a sick or dying animal to relieve its pain without thought of

himself or of any earthly reward; then, man after man and woman after

woman from the neighborhood of West Twenty-third Street who gave Danny

the best of characters, including policemen, firemen, delicatessens,

hotel keepers, and Salvatore, the proprietor of the night lunch

frequented by Mr. Tutt.

And last of all little Katie Lowry. It was she who found the crack in

Bently's moral armor. For Eleanor his wife was of Irish ancestry and of

the colleen type, like Katie; and Bently had always played up to her

Irish side when courting her as a humorous short cut to a quasi

familiarity, for you may call a girl "acushla" and "Ellin darlint" when

otherwise you are fully aware, but for the Irish of it, she would have

to be referred to as Miss Dodworth. And this wisp of a girl with her big

black-fringed gray eyes peering up and out over her gray knitted shawl,

but for the holes in her white stockings and the fact that the alabaster

of her neck was a shade off color--faith, an' it might have been

Eleanor hersilf! It is obvious that any juryman who allows his mind to

be influenced by the mere fact that one of the witnesses for the defense

is a pretty woman--even if she recalls to him his wife or

sweet-heart--is a poor weakling, a silly ass.

Otherwise all a crook need do would be to hire a half dozen of

Ziegfeld's midnight beauties to testify for him by day; and the slender

darlings could work in double shifts and be whisked in auto busses from

roof garden to court room. Bently was no weakling, but Katie--perhaps

because it was the moment of apple blossoms and dogwood and the

anniversary of his wedding day--Katie got him. Kathleen Mavourneen, and

all! No man could have brought up a fatherless and motherless girl like

that and keep her so simple, frank and innocent unless there was

something fine about him. You see, highbrows and lowbrows are all alike

below the collar bone.

And here's the catch in it. Bently had told Eleanor that very morning

that none of the rogues would get by him, and he had meant it. None of

them ever had--in all his years of jury service. Time and again he had

been the one stubborn man to hang out all night for a verdict of guilty

against eleven outraged and indignant fellow talesmen who wanted to

acquit. But quite unconsciously he found himself saying that this old

fellow at the bar wasn't a rogue at all. If he was a criminal he was so

at most only in a Pickwickian sense. All the previous cases in which he

had sat had been for murder or arson, robbery or theft, burglary,

blackmail or some other outrageous offense against common morals or

decency. But here was a man who had never done anything but good in his

life, and was at the bar of justice charged with crime merely because

some cold-blooded mercenaries thought he was interfering with their

business! Bently was in a recalcitrant and indignant frame of mind

against the prosecution long before the defense began. The whole

proceeding seemed to him an outrageous farce. That wasn't what they were

there for at all! So swiftly does the acid of sympathy corrode and

weaken the stoutest conscience, the most logical of minds!

Mr. Tutt did not put Danny on the stand--why should he?--and the

octogenarian judge declared the case closed on both sides. Then

everybody made a speech, in which he told the jury to disregard

everything everybody else said.

Mr. Tutt spoke first. He thanked the gaping jury for their attention and

courtesy and kindness and intelligence and for taking the trouble to

listen to him. He told them what a wise and upright judge the old baboon

on the bench was; and what a sterling, honest, kindly chap the fat

assistant district attorney really was. They were the highest type of

public officers--but paid--he accentuated the "paid" very slightly--to

do their duty as they interpreted it. Now, Mr. Hingman would have to

claim that Danny Lowry was a criminal; whereas, thank heaven! they all

of them--every man of them--knew he was nothing of the kind!

Criminal--that old man? Mr. Tutt raised his eyes and his arms to heaven

in protest. Why, one look at him would create a reasonable doubt! But

the case against him failed absolutely for the following reasons:

Daniel Lowry had not practised veterinary medicine without a license in

taking care of Brown's sick horse, because he had not claimed to be a

veterinary; he had not been paid for his services; and because all he

had done was to help a suffering animal, as any man who called himself a

Christian and had a heart would have done, and as it was his duty to do.

Who "shall have an ass or an ox fallen into a pit"? and so on. It was in

Holy Writ! The highest law!

There was no evidence against Danny at all, because Brown was an

accomplice and his testimony was not corroborated; at any rate he was a

procurer and instigator of crime, an _agent provocateur_, a despicable

liar, hypocrite and violator of the very law he was paid to uphold; and

as he had held himself out as a physician to Danny Lowry everything that

passed between them was privileged as a confidential communication and

must be disregarded as if it had never been said.

Daniel Lowry was a man of the highest reputation, of such character that

he never had been guilty of an unkind or selfish act in his entire life,

much less commit crime; which alone, taken by itself, was quite enough

to interject and raise a reasonable doubt--upon which they must acquit.

Then Tom Hingman got up and grimaced and said he had known Mr. Tutt all

his professional life and he was a peach, but they mustn't believe what

he said or let him put anythin' over on 'em, for he was pretty slick

even if he was a fine old feller. Now the plain fact was, as they all

knew perfectly well, that this old boy had been caught with the goods.

It might be tough luck, but the law was the law and they were all there

to enforce it--much as they hated to do so--and there was nothing to it

but to convict and let the judge deal with the defendant with that mercy

and leniency and forbearance for which he was so justly famous. He

panted a few times and sat down.

Then the judge took his crack. He told the jury, in so many words, to

pay no attention to either the A.D.A. or to Mr. Tutt, and to listen only

to him, because he was the whole thing. The question was: Had the

defendant assumed to give medical treatment to Brown's horse, for any

kind of valuable consideration? In determining this they should consider

all the evidence, including the fact that the prisoner had claimed to be

a veterinary, had been paid for treating Brown's horse as such, had

pleaded guilty in the police court, and that none of the alleged facts

upon which the charge was based had been denied before them in present

trial.

As he said this the pink-and-white baboon looked at them steadily and

significantly for several seconds over his eyeglasses. They should

consider the business card which the defendant had given to the

complaining witness and in which he held himself out as a veterinary.

The testimony of the complainant stood uncontradicted. The complainant

was not an accomplice and his testimony did not have to be corroborated.

A decoy wasn't an accomplice. That was the law. Neither was what had

passed between the complainant and defendant privileged as a

confidential communication, because the complainant was not a physician.

That was all there was to that!

They should ask themselves what in fact the defendant had done if not

practise veterinary medicine without a license? It was not controverted

but that he had said he was a veterinary, administered medicine to a

sick horse, offered to compound payment for medical treatment for

himself, finally taken five dollars, and admitted his guilt before the

magistrate. If they had any reasonable doubt--and such a doubt might of

course be raised by evidence of previous good character--they would of

course give it to the defendant and acquit him, but such a doubt must be

no mere whim, guess or conjecture that the defendant might not after all

be guilty even if the evidence seemed so to demonstrate; it must be a

substantial doubt based on the evidence and such a one as would

influence them in the important matters of their own daily, domestic and

business lives. That was all there was to it! Let them take the case and

decide it! It should not take 'em very long. The question of how the

defendant should be punished, if at all, did not concern them. He would

take care of that. They might safely leave it to him! He bowed and

turned to his papers. The jury gathered up their coats and straggled

after Cap Phelan out of the court room.

"Y'd be all right, counselor," remarked the second court officer,

suspending momentarily the delights of mastication, "if 'twasn't fer

that son of a gun on the back row, Gibson! He's a bad one! I've known

him for years! He'd convict his own mother of petit larceny!"

"So? So?" murmured Mr. Tutt, producing a leather case the size of a

doctor's instrument bag from his inside pocket and removing a couple of

stogies therefrom. "Well, it's too late now to do anything about it. I'm

going out to stretch my legs and have a smoke."

Mr. Tutt loitered into the corridor, stepped unostentatiously behind a

pillar, slipped into the adjoining court room--which happened to be

empty--and thence back into the passage upon which the jury rooms

opened. He found Cap Phelan standing before one of these with a finger

to his lips.

"Pst! They're at it a-ready!" whispered Phelan as Mr. Tutt slipped him a

stogy.

The transom above was open and through it drifted out a faint blue

cloud. A great hubbub was going on inside. Suddenly above it a harsh

voice rang out: "That ain't a reasonable doubt! I tell you, that ain't a

reasonable doubt! Aw, you give me a pain, you do!"

"I've got 'em!" grinned Mr. Tutt contentedly. "Phelan, bring me a

chair!"

Now right here is where this story begins--only here.

"Vell, gen'l'muns," said the foreman, who was a glove merchant and

looked like Sam Bernard, as they took their seats round the battered oak

table. "Vot you say? Shall we disguss or take a vote?"

"Let's take a smoke!" amended a real-estate broker. "No use goin' back

right off and getting stuck onto another damn case! Where's that

cuspidor?"

"Speakin' of veterinaries," chuckled a man with three rolls of fat on

his neck, "did y'ever hear the story of the negro and the mule with the

cough?"

None of them apparently ever had, so the stout brother told all about

how--ha, ha!--the mule coughed first.

"I remember that story now," remarked one of the jury reminiscently

while the fat man glared at him. "If I had my way all these veterinaries

would be in jail! They're a dangerous lot. I had a second cousin once

who'd paid a hundred dollars--a hundred dollars!--for a horse and it

got the colic. So he called in a veterinary and it died."

"Well, the vet didn't kill it, did he?" inquired the fat man scornfully.

"My cousin always claimed he did!" replied the other solemnly. "There

was some mistake about what he gave the horse--wood alcohol or

something--I forget what it was. Anyhow, I think they're all a dangerous

lot. They all ought to be locked up. I move to convict!"

"But neither of these fellers is a veterinary!" retorted a sad-looking

gentleman in black. "The charge is that one of 'em pretended to be--but

wasn't. So if he wasn't how could you convict him of being a

veterinary?"

"Well, if he had been I'd have convicted him all right," asserted the

first. "They're dangerous--like all these clairvoyants and soothsayers."

"Will somebody tell me?" requested a tall man who had been looking

intently out of the window, "whether a veterinary is the same thing as a

veterinarian? I always supposed a veterinarian was a sort of religion,

like a Unitarian. Veteran means old--I thought it was some old form of

religion; or a feller who didn't believe in eatin' meat."

"Lead that nut out!" shouted somebody. "Let's get busy. The question is:

Did this old guy pretend he was a horse doctor when he wasn't? I say he

did."

"Let's take a vote," suggested Bently.

"Vell, let's understand vat we're doin'," admonished the foreman. "Do

you gen'l'muns all understand that we're tryin' to convict this feller

for doctoring a horse without a prescription?"

"You mean a license, don't you?" inquired Bently.

"Sure--a license. All right! Let's get a vote."

The first ballot resulted in seven for acquittal, four for conviction,

and one blank--Bently's.

"I don't know who the fellers are that voted for acquittal!" suddenly

announced a juror with a red face. "But I know this Brown personally,

and he's all right. You can rely on him absolutely. He goes to the same

place as me in the summer--Cottage Point. If any of you gentlemen want a

good quiet place--"

"Any mosquitoes?" inquired an unknown irreverently.

"No more'n anywheres else near New York."

They took another ballot and found that the juryman who knew Brown had

brought over two others to conviction, so that the jury was now evenly

divided, Bently voting irresponsibly for acquittal.

"Look here!" proposed the man in black. "Let's argue this out. Suppose I

put the various propositions and you vote on 'em each separately."

"Shoot ahead!" adjured somebody.

"Now, first, all who think this defendant claimed to be a veterinary say

aye."

"Wait a minute!" interposed the tall man, who was still standing by the

window. "Maybe I am a nut. But I wish someone would explain to me which

is the defender. I thought Mr. Tutt was the defender."

"Oh, my Lord!" groaned a flabby salesman in a pink tie.

"Defend-ant--a-n-t--remember your ant! He's the man we're trying! The

other one is the complainant!"

"The only one that had any complaint was the horse", protested the tall

man. "But I understand now--we're tryin' the defendant. I've never

served on a jury before. Now, what's the question?"

"Did the defendant--ant--claim to be a licensed veterinary--when he

wasn't?"

"Now wait a second," objected the tall man again. "I want to get this

straight. Is it the point that if this old man pretended he was a horse

doctor when he wasn't he has to go to jail?"

"Sure."

"But the other man pretended he was a doctor."

"But he was trying to trick the defendant."

"But the first feller wasn't a doctor any more than the other feller.

Why not convict the first feller?"

There was a chorus of groans from about the table.

"You ought not to be here at all!" remarked the salesman acidly. "You're

simple-minded, you are! You keep still now and vote with the majority,

or we'll tell the judge on you!"

The tall man subsided.

"Vell," suddenly interjected the foreman, "he admitted he was guilty in

the bolice gourt."

"Sure!" "That's so!" "Pass the box again!" came from all hands.

When the foreman had counted the ballots Bently was horrified to

discover that ten jurors now thought the defendant guilty, and only two

believed him innocent.

"May I suggest," said he earnestly, "that perhaps this old man did not

understand in the magistrate's court the elements that went to make up

the offense charged against him? He merely stood ready to admit freely

whatever the facts were. His opinion on the purely legal question of his

own guilt was not of much value. Anyhow, his subsequent plea of not

guilty to the indictment neutralizes the significance of the original

plea."

There was a murmur of surprise and admiration from Bently's companions.

"That's true, too!" declared the salesman. "I never thought of that!

You're some talker--you are, I must say! But how about that business

card?"

"It seems to me," argued Bently, "that the card plays no particular part

in this case. In the first place the question before us is not whether

Lowry ever did--in the past--hold himself out as a veterinary, but

whether he did so on the day alleged in the indictment. The fact that he

gave the detective a card which he had had printed perhaps years before

only tends to show that at some time or other he may have pretended to

be a licensed veterinary. And you will recall, gentlemen, that the

testimony is merely that he said to the detective in reference to the

card: 'That is my name.' He did not say anything to him about being a

veterinary."

This somewhat disingenuous argument created a profound impression.

"Say, now you've said something!" declared the salesman. "You'd oughta

been a lawyer yourself. Let's take another vote."

Curiously enough Bently's argument seemed to have had a revolutionary

effect, for the jury now stood ten to two for acquittal. He began to

feel encouraged. If ever there was a case-- Then he heard an altercation

going on fiercely between the salesman and Brown's summer friend, the

latter insisting loudly that the detective was a perfect gentleman and

entirely all right.

"Nobody questions Mr. Brown's entire honesty," interposed Bently

hastily, in a friendly way. "The question before us is the sufficiency

of the evidence. Upon this, it seems to me, there is what might fairly

be called a reasonable doubt."

"And you have to give that to the defendant--it's the law!" shouted the

salesman in fury.

It was at this point that Mr. Tutt and Phelan had taken up their

positions outside the door, and the friend of Brown had told the

salesman that he gave him a pain; that his doubt wasn't a reasonable

doubt.

"Gentlemen! Gentlemen!" protested Bently. "Let us discuss this matter

calmly."

"But I'm a reasonable man!" shouted the salesman. "And so, if I have any

doubt, my doubt is bound to be reasonable."

"You--a reasonable man?" sneered Brown's friend. "You're nothin' but a

damn fool!"

"I am, am I?" yelled the salesman, starting to remove his coat. "I'll

show you--"

"Oh, cut it out!" expostulated the fat man complacently. "Settle all

that afterward! We ain't interested."

"Vell, take annoder vote," mildly suggested the foreman.

This time it stood eleven to one for acquittal. All concentrated upon

the friend of Brown, over whose face had settled a look of grim

determination. But a similar expression occupied the features of Mr.

Bently Gibson, erstwhile the exponent of the-law-as-it-is, the bulwark

of the jury system, now adrift upon the ship of justice, blindly

determined that no matter what--law or no law, principles or no

principles--that old man was going to be acquitted.

"My friend," he remarked solemnly, taking the floor, "of course you want

to do justice in this case. We have nothing against Mr. Brown at all. He

is doubtless a very honest and efficient officer. But surely the good

character of this defendant may well create a reasonable doubt--and the

rest of us feel that it does."

By Advice of Counsel · 第 15 / 16 段