"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."