The “Mysterious Stranger” Defense
“Now, Ellen,” said the attorney, “I want you to tell us precisely
why you called to me when you ran out of the house—why you said,
‘Save me, Colonel.’”
“I was scared,” replied the witness. “I didn’t know what was going
to happen to me.”
“You thought the same thing that had happened to the lawyer, Mr.
Collander, might also happen to you.”
“I don’t know, Colonel. I was scared.”
It was the third day of the criminal trial. Colonel Armant had put
the prisoner on the stand in her own defense. It seemed a desperate
hazard. A woman remains an experiment as a witness. The old experts
about the court room were pretty nearly a unit against the
experiment in this case. The prisoner was too much of an enigma; one
of those little, faded, blonde women, with a placid, inscrutable
face—capable of everything or of nothing, as one chose to assume it.
The big attorney went on.
“You did know that something had happened to Mr. Collander?”
“I heard the shots—yes, I knew something had happened to him.”
“Just a moment, on this feature,” continued the attorney. “You do
not agree with the chief of police about the number of shots fired;
you thought there were three shots; one, and then two together, or
almost together?”
The prosecuting attorney interrupted.
“If you are going to lead the witness, Colonel,” he said, “why don’t
you lead her to some purpose? Why don’t you lead her to say there
was only _one_ shot?”
The huge counsel for the prisoner put out his hand toward the
speaker, in the gesture of one who brushes aside a disturbing fly,
but he did not otherwise move in his chair. His whole body was in
repose. He spoke without moving a muscle.
“Now, Ellen,” he said, “the prosecuting attorney makes it a point
against you that you were expecting something to happen. What do you
say about that? You don’t deny it, do you?”
“Well, Colonel,” replied the witness, “I thought something might
happen to Mr. Collander. I thought it all along.”
“Then you did expect it?”
“Yes,” replied the witness, “I suppose you could say I did expect
it.”
The attorney rose.
“That brings us to another point made against you.”
He took up a weapon lying on the table before him. It was a
thirty-two-caliber cylinder revolver of the usual type.
“You can identify this weapon?” the attorney asked.
“It is the revolver that Mr. Collander kept in his bedroom.”
“Now, Ellen,” said the attorney, “the State has introduced testimony
to show that you took this pistol to the gunsmith, Mr. Parks, and
had him clean it and load it for you. That was on Tuesday, a week
before Mr. Collander’s death. The prosecuting attorney calls on me
to explain that incident on some theory, if I can, which will be
inconsistent with his theory that you thereby provided yourself with
a weapon in order to kill Mr. Collander.” He paused. “We are not
concerned with anybody’s theory, Ellen, but what is the truth about
it?”
“I was afraid, Colonel, just as I have said. I thought there ought
to be a pistol in the house that would shoot.”
The attorney paused a moment as in reflection; then he went on.
“That’s the second point the State makes against you. There is still
another; let us get them all together so we can tell the jury
precisely what they mean. The prosecuting attorney has shown, here,
by a number of witnesses, that you sometimes threatened the lawyer,
Mr. Collander; that you have been known to quarrel with him, and
that you have more than once said you would kill him. Now, isn’t
that true?”
The witness hesitated a moment. She looked vaguely about the court
room; presently her eyes rested on the floor.
“Yes,” she said, “it’s all true; but I was not the only person who
wanted to kill him.” She hesitated. “What I said was talk—just talk;
the other people who wanted to kill him meant it.”
The big attorney lifted his body with a little gesture.
“The fact is, Ellen, that you were always fond of him.”
The witness continued to look down at the floor.
“Yes,” she said, “too fond of him, Colonel.”
The attorney seemed to draw his big body together. He stood up
before his table.
“Now,” he went on, “let us get all the bad features of this case
together. You say other persons wished this man’s death. What makes
you say that, Ellen?”
“Well, Colonel,” replied the witness, “that’s pretty hard for me to
answer. Everybody knows that Mr. Collander had a lot of enemies, a
lot of people didn’t like him; a lot of people who had just as much
reason to threaten to kill him as I had, and they must have meant it
when I didn’t mean it.”
“Ellen,” said the attorney, “let us try to be a little more precise
about this. You say that there were persons who wished to kill the
lawyer, Collander; that you thought he was in danger, and that you
had this weapon cleaned and loaded so he would have some means of
defending himself.”
The prosecuting attorney interrupted.
“Just a moment, Colonel,” he said. “The witness hasn’t said anything
of the sort.”
The attorney made an irrelevant gesture.
“Perhaps not entirely in those words,” he said, “but it is the
substance and intent of the answers. I shall permit her to reply for
herself. What do you say about that, Ellen?”
The witness answered at once.
“That’s it,” she said, “that’s exactly it. I thought Mr. Collander
was in danger of being killed, and I thought he ought to have a
pistol that was loaded and would shoot. That’s why I took it to Mr.
Parks.”
The big attorney nodded in assent.
“Now, what made you think that the decedent was in danger of his
life? You must have had some reason for it?”
“Well,” said the witness, “people were always coming to see Mr.
Collander. I have often heard him in a quarrel with people who came
in to see him. His study opens out on the porch; they sometimes came
to the porch and knocked on the door.”
“They didn’t always knock on the door, did they?” inquired the
attorney. “Sometimes they called him?”
The witness looked at the lawyer as though she did not precisely
follow his question.
“Yes,” she said, “sometimes they called him.”
“And then they would be standing down on the ground,” continued the
attorney. “The porch before the door is narrow; that would put them
below Mr. Collander if he were standing in the door.”
“Yes, sir,” said the witness, “the ground is lower than the porch;
anybody standing on the ground would be below Mr. Collander.”
Again the prosecuting attorney interrupted.
“What’s that go to do with it?” he said. “Are you going to drag in
the ‘mysterious stranger’ defense?”
The big lawyer swung around on his feet.
“Your Honor,” he said, addressing the judge, “I object to this
expression. It is an unfair expression. It has no place in a
judicial trial of which the sole object is to arrive at the truth.
The prosecuting attorney has no right to undertake to prejudice the
prisoner before the jury. That is an ungenerous expression. If the
prisoner did not kill Mr. Collander, some one else did kill him, and
if we don’t know, precisely, who that other person was we cannot
dismiss him as mythical, as a ‘mysterious stranger,’ as though he
were a figment of the imagination.”
The judge did not reply. He was accustomed to these passages between
the attorneys, staged always for effect, and he took no part in them
if he could avoid it.
The prosecuting attorney replied with ill-concealed irony.
“If the prisoner did not kill him!” he echoed.
“Quite so,” replied the Colonel, “and for your benefit, sir, I will
say that I propose to show, in a moment, that she not only did not
kill him, but that she could not have killed him.”
The prosecuting attorney made a vague gesture in the air with his
extended fingers. The aspect of irony remained.
“Go to it,” he said.
“Now, Ellen,” continued the attorney, “what made you think there was
some one outside of the house on the ground below the porch who
called Mr. Collander to the door?”
The prosecuting attorney was on his feet before the sentence was
ended.
“Your Honor,” he said, “this thing is ridiculous. Colonel Armant has
started in at the end of this case to set up one of the old stock
defenses. Your Honor knows ’em; everybody knows ’em; they are the
last resort of the guilty; the ‘alibi’ and the ‘mysterious
stranger.’ He could not use the alibi because everybody saw this
woman on the spot. Not even Colonel Armant with all his acuteness
could get in an alibi. As it happened, Robert McNagel, the chief of
police, was out at the engine house just below Collander’s
residence. Colonel Armant was there; they were sitting in the engine
house when they heard the shots. McNagel ran with the Colonel to
Collander’s house; they were the first persons on the ground.
McNagel was there when the woman ran out of the house and when she
shouted, ‘Save me, Colonel.’ He went after her and brought her back,
so the alibi had to be given up. The only thing left is the
‘mysterious stranger.’”
The prosecuting attorney laughed.
“Colonel Armant has to get something to make a defense out of. We
have shown that this woman had a motive for killing Collander. It is
the oldest motive in the world. She lived there as housekeeper. I
don’t say that other persons did not want to kill him. I have not
undertaken to mislead the court about him. Everybody knows our
brother Collander was a pretty gay old dog who took a lot of chances
on somebody killing him, no doubt. And somebody did kill him, but it
was not a ‘mysterious stranger.’ We have shown who it was. It was
the person who had a motive to kill him, the opportunity to kill
him, and who not only threatened to do it, but who had prepared a
weapon with which to do it. Here are the elements that the law
requires; time, place, opportunity, motive and conduct. Why, she as
good as said it when McNagel ran after her to bring her back into
the house. It was lucky McNagel was on the ground.”
The big attorney made an explosive assent.
“It is lucky,” he said, “that McNagel was on the ground. It’s the
very luckiest thing that ever happened.”
He turned about toward the prosecuting attorney, now returning to
his chair.
“It is true,” he said, “I was sitting in the engine house with
McNagel when we heard the shots. He ran with me and we were the
first persons on the ground. And that reminds me, I want to ask
McNagel a question or two just here.”
He looked around. The chief of police was sitting in a chair inside
the rail, just behind the prosecuting attorney.
He made a motion as though about to rise.
“Don’t get up,” said the lawyer. “You can answer where you are. Now,
Bobby,” he said, “we heard two shots close together. They were very
close together, were they not?”
“Yes, Colonel,” replied the chief of police, “the two shots were
fired in rapid succession.”
“But there was interval enough,” said the lawyer, “for us to be
certain that there were two shots.”
“That’s right, Colonel,” replied the chief, “they were close
together, but there were two shots; and that was confirmed by the
fact that the pistol on the floor had been twice discharged; there
were two empty cartridges in it when we picked it up. It had been
fired twice.”
“Just a moment, Bobby,” the lawyer interrupted. “I want to be
absolutely certain about this; there could be no mistake about the
fact that you heard two shots; isn’t that true?”
“Yes, it’s true,” said the chief, “we heard two shots, there
couldn’t be any mistake about it.”
“Sometimes,” said the colonel, “it happens that shots are fired so
close together that they make one report. I mean several shots may
be fired so rapidly that at a little distance one hears but one
report, or so confuses all of the reports that they appear to make
but one; isn’t that true?”
“Yes, it’s true,” replied the chief of police. “It happened when
Jones was killed over at the power plant, and it happened in our
fight with the Lett burglars; I could not say how many times the man
had shot at me. I thought he shot at me three times, but he must
have shot at me five or six times, for every chamber in his pistol
was empty.”
“Ah!” said the colonel. “Now, Bobby, that’s just exactly what I
wanted to find out. Sometimes shots are fired so close together that
the most experienced person—a competent person like yourself—could
not say whether there was one report or several reports.”
The chief of police took hold of the lapels of his coat in either
hand and looked at the attorney.
“You have got it right, Colonel. But you are not trying to make out
that only one shot was fired on the night Collander was killed, are
you?”
The lawyer’s face took on an expression of immense surprise.
“Oh, Bobby,” he said, “of course not. What I particularly wish to
establish, make certain, is that there were two shots close
together; but certainly two shots. Now, isn’t that absolutely the
fact, Bobby? There may have been more shots fired, simultaneously
with these—there may have been three shots or four shots—but beyond
question, beyond doubt, there were at least two. We heard them; you
heard two shots; isn’t that right, Bobby?”
“That’s right,” replied the chief of police, “there were two, sure.”
“Bobby,” continued the lawyer, “you are chief of police; you and I
were the first persons on the ground. You know more about this than
anybody else, and your statement about it is worth more than the
statements of all other persons put together; now, listen to me
carefully and correct me if I make any mistake. Isn’t this what
happened? You and I, and some of the boys, were sitting in the
engine house; we were talking; I was telling you about the Baker
case—strangest case in the world—when we heard these shots; one
right after the other. I do not know how many, but two certainly.
You and I ran up to the Collander residence which stands just across
the street from the engine house. As we went in, the prisoner here,
Ellen, ran out, and as she ran out she shouted ‘Save me, Colonel.’
You ran after her to catch her and I went on into the house. By that
time Scalley, on the route out here, had come up; you turned the
woman over to him and came back. I was standing in the door that led
into Collander’s study.”
The Colonel stopped. He looked intently at the chief of police.
“Now, Bobby,” he said, “you won’t mind if I say that I have always
taken a great deal of interest in you. When you were first appointed
I tried to give you the benefit of my experience. I pointed out what
ought to be done when a crime was discovered. You are a capable man,
Bobby; you saw what I meant and you have profited by it. You know
what to do when you get on the scene of a crime. You know how
important it is that every precaution shall be taken to preserve the
scene of a criminal act, in every detail, precisely as it happened
when the crime was discovered; isn’t that so, Bobby?”
“Yes, it’s so. I don’t deny that you put me on to a lot of things
and, also, I have learned some for myself. Anyhow, that’s right. The
first thing to do is to see that everything stays just the way it
is.”
“Precisely!” replied the attorney. “Now, Bobby, isn’t it true that
Collander was lying on the floor dead, that his pistol was lying on
the floor beside him—two chambers in it empty—and all doors and
windows were closed? There were bookcases around the room with glass
doors; these were all closed. Now, the first thing you did, Bobby,
was to take every precaution to see that all articles in the room
should remain precisely as they were found; you put seals on all
doors and windows, on all drawers of the tables, and on the doors of
the bookcases, so that they would remain closed precisely as they
were found. You also carefully chalked on the floor the position of
the articles that had to be removed—such, for example, as the weapon
and the decedent’s body; isn’t that precisely true?”
“Yes, it’s true, Colonel, that’s what I did.”
“Now,” said the lawyer, “from the appearance of the table in that
room was it not evident that Collander was at work on a brief—there
was a pad on the table before him, and the papers in the case of the
Bridge Company against the Western Railroad? We know that he was at
work on this brief because the case was coming on for a hearing, and
because his notes on the pad were in ink and the ink was not dry;
isn’t that true?”
“Yes,” replied the chief of police, “that’s true.”
“Every paragraph written on the pad,” the attorney continued, “was
part of an opinion from a U. S. Report. It was half of a long
syllabus of the opinion; he had it about half written out. As I say,
the ink was not yet dry on it; it still blurred a little when one
rubbed one’s finger on it. Now, we see what the man was doing. He
was sitting at the table copying this syllabus when he was
interrupted; isn’t that true, Bobby?”
“It must have been that way,” said the chief of police. “Collander
must have been sitting there when the thing began.”
The Colonel continued.
“Collander was killed by a bullet that entered the chest and ranged
upward. It was found against the shoulder blade, so flattened that
no one could say precisely the caliber of the bullet; isn’t that
true?”
The prosecuting attorney interrupted.
“There’s nothing in that, Colonel,” he said. “The surgeons say that
the bulk of the bullet was about the size of a thirty-two caliber;
there was the pistol on the floor from which it had been fired.”
The big attorney made a gesture with his hand. “Let us adhere
precisely to the truth,” he said, “and the truth is that the bullet
was so battered that no one can say accurately what caliber it was.
Doctor Hull says that he thinks it was a thirty-two, but he also
says that he does not know.”
The prosecuting attorney persisted.
“But there on the floor was the pistol from which two bullets had
been fired.”
“Ah!” said the attorney. “Now, we have got to the very point by
which the innocence of this prisoner is established. If two bullets
were fired in that room, with the doors and windows closed, and one
of them killed Collander, where did the other one go that did not
kill him?”
He turned to the chief of police. He advanced toward him. His voice
became low—became confidential—as of one who discusses a secret,
covert, hidden matter with another.
“Now, Bobby,” he said, “I directed you to go over that room from top
to bottom carefully, every inch of it, precisely as it stood after
you had sealed the doors and windows. For what purpose? To
determine, Bobby, what became of that other bullet. A bullet cannot
vanish. It cannot disappear. It has to hit something. Did you find
what it hit?”
The chief of police moved in his chair. His figure lost some aspect
of its assurance. He became perplexed. His voice took on a sort of
apology. He looked at the judge, at the prosecuting attorney, at the
jury.
“I have to tell the truth about it,” he said finally. “I couldn’t
find where that other bullet hit. I never could find it.”
“You went over everything in the room, didn’t you?” continued the
Colonel. “You went over it with Doctor Hull and with Scalley. You
went over every inch of it.”
“Yes,” replied the chief of police, “we went over every inch of it.”
“And you didn’t find the mark of the bullet?”
The chief of police addressed the judge.
“No, your Honor, we couldn’t find it. It’s a mystery what became of
that other bullet. The person who shot at Collander must have missed
him the first time because only one bullet hit him and there were
two shots fired. I heard ’em, and there were two empty cartridges in
the pistol. Whoever killed him must have shot at him and missed him.
But if they did, that bullet had to hit something in the room; and
it never hit anything in the room!”
“Ah!” The attorney’s voice returned to its normal volume. “You
couldn’t be mistaken about that, Bobby?”
“No,” the chief of police answered, “there can’t be any mistake
about it. I went over it too carefully, too many times; there’s no
bullet mark in that room.”
He said it with an energy of final decision that dismissed the
question conclusively.
The court room was now awake. The packed audience leaned forward. It
had now a deep, new interest; the interest of a doubt; the interest
of a mystery.
Colonel Armant closed his case at this point.
He had, now, the two elements for which every attorney labors in a
desperate criminal defense; a doubt and an involving mystery. The
doubt he would build up in his argument, and for the mystery he had
the solution ready.
But he was too wise, too greatly a master of effect, to disclose
that solution before the proper dramatic moment. He had no intention
to permit the attorney for the State to discount his explanation in
the opening speech to the jury.
It was after that, when in his argument he had prepared the way,
when his defense had been carefully built up, and the state of
feeling in the court room—tense and expectant as before a closed
door, that he uncovered the solution, like one who, with a
magnificent gesture, flings that closed door open.
McNagel could find no bullet mark in the room, because there had
been no shot in the room.
The assassin, on that night, had called Collander to the door; he
had gone with his own pistol in his hand. And there with the door
open, looking out on to the porch, the shooting had occurred.
It had been an instantaneous duel.
Collander had fired twice and the assassin simultaneously with the
last report of the pistol. It was this third shot that the prisoner
had distinguished.
How clear it was!
Collander was fearful of this thing. He was looking for it to
happen; and so he went to the door with the weapon in his hand, and
he fired on the instant the menace appeared.
The lawyer reënacted the dramatic scene; the man feeling the impact
of the bullet, sprang back, closing the door, then he staggered, the
pistol fell out of his hand, he tried to reach his chair, but the
wound was mortal, and he lurched, falling behind it, as they had
found him.
The confirmatory facts were now conspicuous; no mark of a bullet in
the room, and the range of the bullet upward from the assassin
standing on the ground below the decedent!
It was an impressive piece of tragic acting. And under its vivid
dominance the jury believed themselves to look on at the very act of
murder. They saw the thing as it had happened, and the stamp of the
attorney’s vigor impressed it as with a die.
No array of subsequent argument could dislodge it.
Not guilty, was the verdict within an hour.
* * * * *
Colonel Armant and the now vindicated prisoner went out of the court
room, down the steps and into his office in the basement of the
court house.
The woman sank relaxed into a chair.
“Colonel,” she said, “you saved me to-day!”
The lawyer looked at her in surprise.
“Why no,” he replied, “I didn’t save you to-day!”
His voice descended into its long dwindling whine.
“I saved you, Ellen, when you asked me to save you. While McNagel
ran to fetch you I put back into the bookcase the law book from
which Collander was copying out the citation for his brief—the law
book that he held up before him to ward off your first shot—the
bullet-hole is in the cover of it.
“Ellen,” he said, “if you had fired down over that book the second
time instead of up under it, as you did, I don’t know how in hell I
could have managed to clear you!”