THE TRIAL
It was the morning of the day of the trial and I sat at my desk getting
through some routine duties in an entirely perfunctory way prior to
attending the opening of the court.
It had been determined that I was not to participate in the conduct of
the case in any way: indeed, there was little alternative left the
District Attorney in the matter after I had explained to him the course
I had been pursuing and my views on the subject.
He had not appeared much surprised by my disclosures and was probably
not unprepared for them, but he questioned me as to my opinions and I
thought seemed not unimpressed. In any event he acquiesced in my request
to be excused from participation and even added the assurance that
Winters should have every opportunity of defence.
At this moment, however, I did not feel confident. Look at the facts as
I would, they presented very little to encourage. Nothing had changed
since Littell and I had paid our visit to the Tombs. Nothing new had
been discovered: indeed we had made little attempt in that direction,
recognizing the almost certain futility of any effort in the limited
time available, and in the meanwhile public opinion and the expression
of the press had been crystallizing into an abiding conviction of the
prisoner's guilt.
I could not criticise the sentiment, for I recognized the strength of
the State's case: and when I reviewed it, as I had done over and over
again, it seemed all but conclusive even to me. The defence had
absolutely nothing to present against an array of hard facts, but some
ill-supported theories.
It was a quarter to ten o'clock, and I put away the work I had been
affecting to attend to, and took my way to the court-house.
Only my official position gained me admission to the scene, and as it
was, an officer had to make a passage for me through the crowd that had
collected in and about the building.
The Judge had not yet taken his place upon the bench, but the lawyers,
clerks, bailiffs, and reporters were in their accustomed places within
the rail which held back from the sacred precinct a throng of spectators
so dense that it could not make room for one more.
If one had been disposed for it, a lesson in the nether nature of man
might have been studied in the faces of those pressing eagerly about the
railing, alert with morbid curiosity.
In the crowd were both men and women and others little more than
children: many who had themselves figured in the prisoner's dock in that
same court-room: many more who would be there, and all, or nearly all,
of that waste class that make the criminals and the crimes of a great
community.
Littell sat at the table of the defence quietly observing the scene
about him, very likely engaged with thoughts such as had suggested
themselves to me: but his face wore a more serious expression than was
habitual to it, and there was a look of self-reliance and determination
in the brave eyes and about the firm mouth that inspired me again with
some confidence.
Winters had an able jurist and a dominating personality to guide his
fortunes and I felt there was a chance for him even against the odds.
At the table of the prosecution sat the District Attorney and the junior
he had selected to assist him in my stead. They were good lawyers, and
would handle their case well I knew, but the work they were to engage in
was an old story to them,--a matter of almost daily routine,--and they
would therefore lack the concentrated interest and the nervous force
that attend upon the defence.
There also, seated within the rail among the witnesses, were Van Bult,
Davis, Belle Stanton, Mrs. Bunce, Miles, and Benton, and all the others
that had already figured in the case.
I felt a strong inclination to take my seat beside Littell, for that was
where my sympathies led me, but with only a glance in his direction, I
took the chair a bailiff pushed up for me to the table of the
prosecution.
Then a door opened and closed at one side of the room, and the crier in
a brisk tone ordered "Hats off!"
A moment later, as the Judge took his seat on the bench, the same voice
intoned: "Oyez! Oyez! The court is now in session!" and then the bustle
of business took possession of the scene.
The Judge adjusted his collar and tried the points of some new pens; the
lawyers sent the bailiffs hurrying for "authorities"; the clerks rustled
the pages of their dockets, and the reporters sprawled over their table
and scribbled copy.
Next a whispered conversation took place between the District Attorney
and the Judge, and a moment later, by the order of the clerk, the
prisoner was brought out.
All faces were turned in his direction: the crowd of spectators swaying
as each one struggled for a passing glance.
I looked at Winters as he was led in between two wardens. Fear was
depicted in his face, and he shrank from the hostile and angry looks
that met him on all sides as with lowered head and eyes he made his way
to a place by his counsel.
It was hard to conceive how the appearance of that broken man could fail
to excite pity and there must have been some among the crowd who pitied
him, even though they condemned: but the majority saw only a murderer
and hated him.
It was the manifestation of that unreasoning brute instinct to torture
and kill dominant in the lower order of men, and which when encouraged
by numbers and incited by the chance of a helpless victim, finds its
active expression in a lynching.
When Winters had taken his place, the clerk read the indictment on
arraignment and then put the usual question: "Are you guilty or not
guilty?" to which the answer, in a low voice, was, "Not guilty!"
Next followed the selection of a jury. This task proved less difficult
than usual in such cases, mainly because Littell showed no disposition
to captious challenges, seeming only desirous of securing the services
of intelligent men.
In a little more than two hours therefore, the twelve men were in their
places and had been sworn, and as I looked over the jury, I felt that
Littell had obtained his object, for its personnel was above the
average.
The opening address of the junior for the State, which followed after a
recess, was a clear and a concise statement of the facts, free from
argument and dispassionate as it should be.
Upon its conclusion the State proceeded to offer its testimony. Witness
after witness was called in rapid succession. First the technical
requirements of the case were established: the death of the deceased,
the character of the wound, the nature of the instrument used, and then
other similar formal details; and thus in categorical questions and
answers that were uninteresting, but essential, the first day's
proceedings drew to a close.
During each examination Littell had been an attentive listener, but had
portrayed no special concern and had rarely interrupted. He was too good
a lawyer to lessen his prestige with the jury by indulging in aimless
cross-questions of witnesses who had simply told the truth about
undisputed facts. When he did cross-examine at all in such cases it was
but briefly and with no attempt to break down the witness, but rather to
develop more fully the facts and possibilities of the case, and the
result of his questions in each instance had been to throw additional
light upon the subject and to help the jury to its better understanding.
After adjournment I stood with others an interested observer of a short
conversation the lawyer was holding with his client. Whatever the
substance of it might have been, it was such as to bring a smile to the
face of the prisoner as he turned away with his guards to go back to his
prison.
Littell looked after him thoughtfully for a moment before he gathered
together his papers and himself prepared to leave. As he did so I joined
him, anticipating that we should have an evening in each other's
society; but it was not to be, for I found him in a mood stern and
taciturn and disinclined to talk about the case, and so after several
ineffectual attempts at conversation I left him.
My evening--spent alone therefore--was a dull one and the night long,
and I was glad to find myself again at the trial table on the following
morning. Here, all about me, the surroundings were unchanged in any way
and it was hard to realize that there had been an interval of emptiness
and silence within those walls.
As soon as court opened the State called Benton to the stand, and then
the real battle of the trial began. He presented a different subject for
the handling of the defence, for he not only testified to important
matters, but he was the first witness to show any bias, and Littell gave
more marked attention to his testimony. Under lengthy examination the
witness told his story to the smallest particular, including the tales
he had brought to me about the visits of the defendant to White's house,
his demands upon him for money, and his assertions of his right to the
money left by his father, and he also threw out some hints of threats
and quarrels--all tending as much by insinuation as fact to cast
suspicion upon the prisoner.
After the State had extracted all it could from him, he was turned over
to Littell, and then the wisdom of that lawyer's previous course was
demonstrated, for when, instead of waiving the witness from the stand or
asking a few indifferent questions as he had done on other occasions, he
turned and faced him preparatory to full cross-examination, both Judge
and jury showed a newly awakened interest.
Littell allowed a few minutes to elapse while he scrutinized the
witness, before he put his first question, and it was apparent to me
that the delay was trying to Benton, who was already in a nervous state,
for he moved restlessly and directed his gaze anxiously to the lawyer.
At length Littell began his cross-examination, and after taking him
categorically over each item in his testimony, pinning him definitely in
each instance as to time and place and separating fact from conjecture,
he asked him pointedly if he had told the Coroner's jury as he had this
one that Winters was in the habit of visiting White; or that he demanded
money of him, or that he claimed White's money to have been by right
his.
The witness admitted that he had not told them any of these things.
"Why did you not?" Littell continued.
Benton seemed embarrassed, but at length said he supposed he had not
done so because he did not think of them at the time.
Littell waited patiently till the answer was forthcoming, and then
continued:
"Now tell the jury was not the real reason you did not tell these things
at that time because it had not then occurred to you that suspicion
would attach to Winters?"
"Yes," he admitted, after some hesitation, "I expect that was the
reason."
"And," continued Littell, "when you found later that suspicion had
attached to Winters, and that he was arrested for the murder, did you
not then tell these things because you thought they would strengthen the
case against him?"
"Yes," he replied, "I think they are evidence against him."
"And why should you wish to give evidence against him? Do you think him
guilty?" was the next question.
This was a little further than Benton was willing to go, and he answered
that he did not know.
"Well," said Littell; "let us see if we cannot find out what you really
do know about it; you probably have more knowledge of the conditions
surrounding the case than has any one else."
And then, by further interrogation, he elicited the fact that the front
door of the house was fastened and required a latch-key to open it when
Benton arrived the morning of the murder, and also that while he had
frequently admitted Winters to the house, he had never known him to
possess a key to the premises.
"And how, then, do you think he got in on this night?" Littell
continued.
Benton probably recalled his unsuccessful attempt to explain this
problem to me on another occasion, for he made no effort to do so now,
merely acknowledging lamely that he did not understand how he had
obtained admission.
"And yet," continued Littell, "you have said everything you could to the
jury to make it appear that Winters was White's murderer."
Benton did not attempt to answer this charge and seemed anxious to evade
further questions, but Littell showed no disposition to let him off, but
leaving his seat took his stand at Benton's elbow and continued his
questions at close range, emphasizing each one:
"As a matter of fact, don't you know, or at least are you not satisfied,
that Winters had no key to White's house?" he asked.
Accustomed to render obedience to Littell, and by this time thoroughly
cowed, Benton was no longer capable of resistance, and assented
obediently to the question.
"And do you not know also," Littell continued, "that whoever secured
access to White's room that night and killed him, had, in all
probability, a key to the house?" and again Benton assented.
"Then it hardly seems likely that Winters was that man, does it?" he
concluded,--and the witness had nothing to answer.
Littell next questioned him about White's habits and his relations with
other men, and extracted the admission that for some time before his
death White had seemed worried and had talked vaguely about some trouble
and some person.
"Do you know what that trouble was?" he was asked.
"I do not," he answered.
Littell hesitated as if doubtful of the expediency of pressing his
questions further on this line, till the Judge, observing it, himself
asked the witness if he knew who the person was; but the witness replied
that he did not, adding, however, as an afterthought, that it might have
been Winters. At this Littell took a vigorous hand again.
"Do you believe it was Winters?" he asked sharply.
"I don't know," he was answered evasively.
"But was not Mr. White always very candid in speaking to you about
Winters?" Littell insisted.
"Yes," he replied; "he was."
"Then if it had been Winters, do you not think he would have spoken of
him by name?" and Littell's tone was almost angry.
"Yes," Benton answered reluctantly.
"Then you do not believe it was Winters?" Littell concluded.
"No, I do not," he admitted finally.
Next Littell secured from Miles the torn piece of a letter we had found
in White's sitting-room, and with the consent of the State submitted it
to the witness and had him read its broken sentences to the jury, and
after he had done so, asked him if he had any idea to what it referred
or for whom it was intended, but the witness denied any knowledge on the
subject.
The defence having concluded, the prosecution endeavored upon re-direct
examination to restore the force of the direct testimony, but without
much success; the damage was done, and the witness was no longer capable
of assisting in its repair.
Littell had scored, and that on the first occasion on which he had taken
any serious part in the proceedings, and it must be, I thought, that the
jury would now await his words with even increased interest. He
continued sparing of them, however, permitting witness after
witness--Van Bult and Davis among them--to leave the stand without
cross-examination or with only a few casual questions.
Nothing new was developed until Belle Stanton was cross-examined. Her
direct testimony had been a mere repetition of that which she had given
before the Coroner's jury, but Littell,--regardless of the strict
limitations of cross-examination--directed his questions to the matter
of White's supposed trouble, of which it seemed possible she might have
some knowledge, and his course was justified by the results.
She corroborated Benton's testimony as to White's disturbed mental
condition and went so far as to testify that he cherished some bitter
feeling towards some one. She said that this much she had learned from
his own lips and was sure of, and also that his feeling in the matter
was becoming daily more acute, but she denied having any knowledge of
its cause, or of the identity of the person. She, too, when shown the
letter, was unable to say for whom it was intended, but she expressed
the opinion that its contents were suggestive of some of the things
White had said when talking of his trouble. Nothing more definite than
this could be obtained from her, as she disclaimed recollection of any
exact words used by him, and said it was all only an impression she had
gathered almost unconsciously from disconnected remarks which he had
dropped at different times. "He had been drinking a good deal before his
death," she added in explanation, "and was not always quite himself";
and Littell, having attained his object of enforcing upon the attention
of the jury these apparent secrets in White's life, did not pursue the
cross-examination further.
I had looked for him to question her regarding the presence of the
ulster at her house but he did not do so, and I concluded he was
satisfied that it would be to no purpose.
I was amused when Mrs. Bunce testified by the promptness with which she
acted upon the advice given her by Miles; in her anxiety to do so even
volunteering the information that she had found three fifty-dollar bills
in the pocket of the ulster; otherwise her testimony did not differ from
that formerly given. Littell, however, insisted upon knowing in what
condition she found the money, upon which she said that it was
carelessly stuffed in an outside pocket, and agreed to his further
suggestion that part of it might readily have fallen out.
Of the night-officer, when he had given his damaging testimony against
the prisoner, Littell asked first if Winters had the ulster, or any
bundle that could have contained it, when he saw him come out of the
vestibule; to which the witness gave a positive negative.
He then cross-examined him as to the reliability of his identification
of the man he saw clad in the ulster as Arthur White.
In reply to successive questions, it developed that the officer's
observation of the man had been made from the opposite side of a dimly
lighted street upon a dark night; that he wore the collar of the coat
turned up and the vizor of the cap pulled down, that he was in the act
of raising an umbrella, and that he walked rapidly, showing no signs of
intoxication.
The witness insisted, however, in spite of these facts and with every
sign of sincerity, that he was confident of his identification, and it
seemed very uncertain if much doubt as to it had been created with the
jury.
Detective Miles was the last witness to be called by the State. He was
allowed to give his testimony in his own way, which he did
conscientiously and in detail, neither omitting or coloring anything
that could have bearing upon the case.
He identified the torn letter which had been shown to Benton and Miss
Stanton and told of its discovery in White's rooms. It being admitted
that it was in the handwriting of White, it was put formally in evidence
at the request of the defence, and was then submitted to the jurors
among whom it was passed from hand to hand with evident interest.
Littell, upon cross-examination, brought out the fact that the apparel,
including the shoes, worn by White on the night of his death showed no
evidence of exposure to the weather, and following it up by adroitly put
questions as to the condition of his overshoes and umbrella, suggested
the improbability of his having been out that night, and prepared the
way for his theory that it had been some one else whom the officer had
seen clad in the cap and ulster.
Littell knew that he had a favorably disposed witness in Miles and made
the most of the opportunity, but there was so little that the detective
knew of his own knowledge that it was not of great advantage.
Upon the conclusion of his evidence, the prosecution closed its
testimony, and it being then late in the afternoon, the Judge, after
consultation with the lawyers, adjourned court till the following day.
After the adjournment I had opportunity to hear expressions of opinion
from various members of the bar who had been spectators at the trial and
who like myself lingered on the scene for awhile, and I found that while
they all agreed that the prosecution had made out its case, there still
existed a strong feeling of curiosity regarding the line of defence to
be pursued.
It was plain an alibi was out of the question, for while Winters's
identification by the night-officer was not fully positive, the
subsequent possession by him, on the night of the murder, of one of the
missing bills confirmed its correctness beyond any possibility of
reasonable dispute.
It was the unanimous opinion, however, that some plausible explanation
of his possession of that bill must be forthcoming if the defence
entertained any hope of an acquittal, and there were many conjectures as
to what the explanation was to be. I could not but be entertained, in
spite of my perturbed state of mind, by the unconscious assumption on
the part of all who joined in the discussion that the explanation when
it should be forthcoming, would evidence in its ingenuity the cleverness
of the defence.
So confident was the general opinion of the prisoner's guilt, that it
was not even suggested there might be a true explanation available, nor
did it seem to occur to any one of them that Littell, with the high
professional reputation he possessed, might be unwilling to endorse by
his advocacy any other sort. Having accepted the case, they assumed
apparently that he would make the most of it, whatever its character or
merit might be.
This mental attitude of prejudgment was calculated to work injustice to
the defence, because, as I knew, Littell believed in the innocence of
his client, and his evidence and his arguments would be conscientiously
presented and would represent his convictions and should therefore be
received with some measure of credence and respect. To anticipate in
them but subterfuge and chicanery was eminently unfair and I felt
disposed to take issue then and there with my brother lawyers; but when
I reflected that after all it would be the jurors who would decide the
case and not those about me I restrained my impulse and went my way in
silence.