He was, as Tutt put it, "a dangerous old cuss." O'Brien was

TUTT AND MR. TUTT

By Arthur Train

1919

CONTENTS

THE HUMAN ELEMENT

MOCK HEN AND MOCK TURTLE

SAMUEL AND DELILAH

THE DOG ANDREW

WILE _Versus_ GUILE

HEPPLEWHITE TRAMP

LALLAPALOOSA LIMITED

The Human Element

Although men flatter themselves with their great actions,

they are not so often the result of great design as of chance.

--LA ROCHEFOUCAULD.

"He says he killed him, and that's all there is about it!" said Tutt to

Mr. Tutt. "What are you going to do with a fellow like that?" The junior

partner of the celebrated firm of Tutt & Tutt, attorneys and counselors

at law, thrust his hands deep into the pockets of his yellow checked

breeches and, balancing himself upon the heels of his patent-leather

boots, gazed in a distressed, respectfully inquiring manner at his

distinguished associate.

"Yes," he repeated plaintively. "He don't make any bones about it at

all. 'Sure, I killed him!' says he. 'And I'd kill him again, the ----!'

I prefer not to quote his exact language. I've just come from the Tombs

and had quite a talk with Serafino in the counsel room, with a

gum-chewing keeper sitting in the corner watching me for fear I'd slip

his prisoner a saw file or a shotgun or a barrel of poison. I'm all in!

These murder cases drive me to drink, Mr. Tutt. I don't mind grand

larceny, forgery, assault or even manslaughter--but murder gets my goat!

And when you have a crazy Italian for a client who says he's glad he did

it and would like to do it again--please excuse me! It isn't law; it's

suicide!"

He drew out a silk handkerchief ornamented with the colors of the

Allies, and wiped his forehead despairingly.

"Oh," remarked Mr. Tutt with entire good nature. "He's glad he did it

and he's quite willing to be hanged!"

"That's it in a nutshell!" replied Tutt.

The senior partner of Tutt & Tutt ran his bony fingers through the lank

gray locks over his left eye and tilted ceilingward the stogy between

his thin lips. Then he leaned back in his antique swivel chair, locked

his hands behind his head, elevated his long legs luxuriously, and

crossed his feet upon the fourth volume of the American and English

Encyclopedia of Law, which lay open upon the desk at Champerty and

Maintenance. Even in this inelegant and relaxed posture he somehow

managed to maintain the air of picturesque dignity which always made his

tall, ungainly figure noticeable in any courtroom. Indubitably Mr.

Ephraim Tutt suggested a past generation, the suggestion being

accentuated by a slight pedantry of diction a trifle out of character

with the rushing age in which he saw fit to practise his time-honored

profession. "Cheer up, Tutt," said he, pushing a box of stogies toward

his partner with the toe of his congress boot. "Have a weed?"

Since in the office of Tutt & Tutt such an invitation like those of

royalty, was equivalent to a command, Tutt acquiesced.

"Thank you, Mr. Tutt," said Tutt, looking about vaguely for a match.

"That conscienceless brat of a Willie steals 'em all," growled Mr. Tutt.

"Ring the bell."

Tutt obeyed. He was a short, brisk little man with a pronounced

abdominal convexity, and he maintained toward his superior, though but a

few years his junior, a mingled attitude of awe, admiration and

affection such as a dickey bird might adopt toward a distinguished owl.

This attitude was shared by the entire office force. Inside the ground

glass of the outer door Ephraim Tutt was king. To Tutt the opinion of

Mr. Tutt upon any subject whatsoever was law, even if the courts might

have held to the contrary. To Tutt he was the eternal fount of wisdom,

culture and morality. Yet until Mr. Tutt finally elucidated his views

Tutt did not hesitate to hold conditional if temporary opinions of his

own. Briefly their relations were symbolized by the circumstance that

while Tutt always addressed his senior partner as "Mr. Tutt," the latter

accosted him simply as "Tutt." In a word there was only one Mr. Tutt in

the firm of Tutt & Tutt.

But so far as that went there was only one Tutt. On the theory that a

lily cannot be painted, the estate of one seemingly was as dignified as

that of the other. At any rate there never was and never had been any

confusion or ambiguity arising out of the matter since the day, twenty

years before, when Tutt had visited Mr. Tutt's law office in search of

employment. Mr. Tutt was just rising into fame as a police-court lawyer.

Tutt had only recently been admitted to the bar, having abandoned his

native city of Bangor, Maine, for the metropolis.

"And may I ask why you should come to me?" Mr. Tutt had demanded

severely from behind the stogy, which even at that early date had been

as much a part of his facial anatomy as his long ruminative nose. "Why

the devil should you come to me? I am nobody, sir--nobody! In this great

city certainly there are thousands far more qualified than I to further

your professional and financial advancement."

"Because," answered the inspired Tutt with modesty, "I feel that with

you I should be associated with a good name."

That had settled the matter. They bore no relationship to one another,

but they were the only Tutts in the city and there seemed to be a

certain propriety in their hanging together. Neither had regretted it

for a moment, and as the years passed they became indispensable to each

other. They were the necessary component parts of a harmonious legal

whole. Mr. Tutt was the brains and the voice, while Tutt was the eyes

and legs of a combination that at intervals--rare ones, it must be

confessed--made the law tremble, sometimes in fear and more often with

joy.

At first, speaking figuratively, Tutt merely carried Mr. Tutt's

bag--rode on his coat tails, as it were; but as time went on his

activity, ingenuity and industry made him indispensable and led to a

junior partnership. Tutt prepared the cases for Mr. Tutt to try. Both

were well versed in the law if they were not profound lawyers, but as

the origin of the firm was humble, their practise was of a miscellaneous

character.

"Never turn down a case," was Tutt's motto.

"Our duty as sworn officers of the judicial branch of the Government

renders it incumbent upon us to perform whatever services our clients'

exigencies demand," was Mr. Tutt's way of putting it.

In the end it amounted to exactly the same thing. As a result, in

addition to their own clientele, other members of the bar who found

themselves encumbered with matters which for one reason or another they

preferred not to handle formed the habit of turning them over to Tutt &

Tutt. A never-ending stream of peculiar cases flowed through the office,

each leaving behind it some residuum of golden dust, however small. The

stately or, as an unkind observer might have put it, the ramshackly form

of the senior partner was a constant figure in all the courts, from that

of the coroner on the one hand to the appellate tribunals upon the

other. It was immaterial to him what the case was about--whether it

dealt with the "next eventual estate" or the damages for a dog bite--so

long as he was paid and Tutt prepared it. Hence Tutt & Tutt prospered.

And as the law, like any other profession requires jacks-of-all-trades,

the firm acquired a certain peculiar professional standing of its own,

and enjoyed the good will of the bar as a whole.

They had the reputation of being sound lawyers if not overafflicted with

a sense of professional dignity, whose word was better than their bond,

yet who, faithful to their clients' interests knew no mercy and gave no

quarter. They took and pressed cases which other lawyers dared not touch

lest they should be defiled--and nobody seemed to think any the less of

them for so doing. They raised points that made the refinements of the

ancient schoolmen seem blunt in comparison. No respecters of persons,

they harried the rich and taunted the powerful, and would have as soon

jailed a bishop or a judge as a pickpocket if he deserved it. Between

them they knew more kinds of law than most of their professional

brethren, and as Mr. Tutt was a bookworm and a seeker after legal and

other lore their dusty old library was full of hidden treasures, which

on frequent occasions were unearthed to entertain the jury or delight

the bench. They were loyal friends, fearsome enemies, high chargers, and

maintained their unique position in spite of the fact that at one time

or another they had run close to the shadowy line which divides the

ethical from that which is not. Yet Mr. Tutt had brought disbarment

proceedings against many lawyers in his time and--what is more--had them

disbarred.

"Leave old Tutt alone," was held sage advice, and when other lawyers

desired to entertain the judiciary they were apt to invite Mr. Tutt to

be of the party. And Tutt gloried in the glories of Mr. Tutt.

"That's it!" repeated Tutt as he lit his stogy, which flared up like a

burning bush, the cub of a Willie having foraged successfully in the

outer office for a match. "He's willing to be hanged or damned or

anything else just for the sake of putting a bullet through the other

fellow!"

"What was the name of the unfortunate deceased?"

"Tomasso Crocedoro--a barber."

"That is almost a defense in itself," mused Mr. Tutt. "Anyhow, if I've

got to defend Angelo for shooting Tomasso you might as well give me a

short scenario of the melodrama. By the way, are we retained or assigned

by the court?"

"Assigned," chirped Tutt.

"So that all we'll get out of it is about enough to keep me in stogies

for a couple of months!"

"And--if he's convicted, as of course he will be--a good chance of

losing our reputation as successful trial counsel. Why not beg off?"

"Let me hear the story first," answered Mr. Tutt. "Angelo sounds like a

good sport. I have a mild affection for him already."

He reached into the lower compartment of his desk and lifted out a

tumbler and a bottle of malt extract, which he placed carefully at his

elbow. Then he leaned back again expectantly.

"It is a simple and naive story," began Tutt, seating himself in the

chair reserved for paying clients--that is to say, one which did not

have the two front legs sawed off an inch or so in order to make

lingering uncomfortable. "A plain, unvarnished tale. Our client is one

who makes an honest living by blacking shoes near the entrance to the

Brooklyn Bridge. He is one of several hundred original Tonys who conduct

shoe-shining emporiums."

"Emporia," corrected his partner, pouring out a tumbler of malt extract.

"He formed an attachment for a certain young lady," went on Tutt,

undisturbed, "who had previously had some sort of love affair with

Crocedoro, as a result of which her social standing had become slightly

impaired. In a word Tomasso jilted her. Angelo saw, pitied and loved

her, took her for better or for worse, and married her."

"For which," interjected Mr. Tutt, "he is entitled to everyone's

respect."

"Quite so!" agreed Tutt. "Now Tomasso, though not willing to marry the

girl himself, seems to have resented the idea of having anyone else do

so, and accordingly seized every opportunity which presented itself to

twit Angelo about the matter."

"Dog in the manger, so to speak," nodded Mr. Tutt.

"He not only jeered at Angelo for marrying Rosalina but he began to

hang about his discarded mistress again and scoff at her choice of a

husband. But Rosalina gave him the cold shoulder, with the result that

he became more and more insulting to Angelo. Finally one day our client

made up his mind not to stand it any longer, secured a revolver, sought

out Tomasso in his barber shop and put a bullet through his head. Now

however much you may sympathize with Angelo as a man and a husband there

isn't the slightest doubt that he killed Tomasso with every kind of

deliberation and premeditation."

"If the case is as you say," replied Mr. Tutt, replacing the bottle and

tumbler within the lower drawer and flicking a stogy ash from his

waistcoat, "the honorable justice who handed it to us is no friend of

ours."

"He isn't," assented his partner. "It was Babson and he hates Italians.

Moreover, he stated in open court that he proposed to try the case

himself next Monday and that we must be ready without fail."

"So Babson did that to us!" growled Mr. Tutt. "Just like him. He'll pack

the jury and charge our innocent Angelo into the middle of hades."

"And O'Brien is the assistant district attorney in charge of the

prosecution," mildly added Tutt. "But what can we do? We're assigned,

we've got a guilty client, and we've got to defend him."

"Have you set Bonnie Doon looking up witnesses?" asked Mr. Tutt. "I

thought I saw him outside during the forenoon."

"Yes," replied Tutt. "But Bonnie says it's the toughest case he ever had

to handle in which to find any witnesses for the defense. There aren't

any. Besides, the girl bought the gun and gave it to Angelo the same

day."

"How do you know that?" demanded Mr. Tutt, frowning.

"Because she told me so herself," said Tutt. "She's outside if you want

to see her."

"I might as well give her what you call 'the once over,'" replied the

senior partner.

Tutt retired and presently returned half leading, half pushing a

shrinking young Italian woman, shabbily dressed but with the features of

one of Raphael's madonnas. She wore no hat and her hands and finger

nails were far from clean, but from the folds of her black shawl her

neck rose like a column of slightly discolored Carrara marble, upon

which her head with its coils of heavy hair was poised with the grace of

a sulky empress.

"Come in, my child, and sit down," said Mr. Tutt kindly. "No, not in

that one; in that one." He indicated the chair previously occupied by

his junior. "You can leave us, Tutt. I want to talk to this young lady

alone."

The girl sat sullenly with averted face, showing in her attitude her

instinctive feeling that all officers of the law, no matter upon which

side they were supposed to be, were one and all engaged in a mysterious

conspiracy of which she and her unfortunate Angelo were the victims. A

few words from the old lawyer and she began to feel more confidence,

however. No one, in fact, could help but realize at first glance Mr.

Tutt's warmth of heart. The lines of his sunken cheeks if left to

themselves automatically tended to draw together into a whimsical smile,

and it required a positive act of will upon his part to adopt the stern

and relentless look with which he was wont to glower down upon some

unfortunate witness in cross-examination.

Inside Mr. Tutt was a benign and rather mellow old fellow, with a dry

sense of humor and a very keen knowledge of his fellow men. He made a

good deal of money, but not having any wife or child upon which to

lavish it he spent it all either on books or surreptitiously in quixotic

gifts to friends or strangers whom he either secretly admired or whom he

believed to be in need of money. There were vague traditions in the

office of presents of bizarre and quite impossible clothes made to

office boys and stenographers; of ex-convicts reoutfitted and sent

rejoicing to foreign parts; of tramps gorged to repletion and then

pumped dry of their adventures in Mr. Tutt's comfortable, dingy old

library; of a fur coat suddenly clapped upon the rounded shoulders of

old Scraggs, the antiquated scrivener in the accountant's cage in the

outer office, whose alcoholic career, his employer alleged, was marked

by a trail of empty rum kegs, each one flying the white flag of

surrender.

And yet old Ephraim Tutt could on occasion be cold as chiseled steel,

and as hard. Any appeal from a child, a woman or an outcast always met

with his ready response; but for the rich, successful and those in power

he seemed to entertain a deep and enduring grudge. He would burn the

midnight oil with equal zest to block a crooked deal on the part of a

wealthy corporation or to devise a means to extricate some no less

crooked rascal from the clutches of the law, provided that the rascal

seemed the victim of hard luck, inheritance or environment. His

weather-beaten conscience was as elastic as his heart. Indeed when under

the expansive influence of a sufficient quantity of malt extract or

ancient brandy from the cellaret on his library desk he had sometimes

been heard to enunciate the theory that there was very little difference

between the people in jail and those who were not.

He would work weeks without compensation to argue the case of some

guilty rogue before the Court of Appeals, in order, as he said, to

"settle the law," when his only real object was to get the miserable

fellow out of jail and send him back to his wife and children. He went

through life with a twinkling eye and a quizzical smile, and when he did

wrong he did it--if such a thing is possible--in a way to make people

better. He was a dangerous adversary and judges were afraid of him, not

because he ever tricked or deceived them but because of the audacity and

novelty of his arguments which left them speechless. He had the

assurance that usually comes with age and with a lifelong knowledge of

human nature, yet apparently he had always been possessed of it.

Once a judge having assigned him to look out for the interests of a

lawyerless prisoner suggested that he take his new client into the

adjoining jury room and give him the best advice he could. Mr. Tutt was

gone so long that the judge became weary, and to find out what had

become of him sent an officer, who found the lawyer reading a newspaper

beside an open window, but no sign of the prisoner. In great excitement

the officer reported the situation to the judge, who ordered Mr. Tutt to

the bar.

"What has become of the prisoner?" demanded His Honor.

"I do not know," replied the lawyer calmly. "The window was open and I

suspect that he used it as a means of exit."

"Are you not aware that you are a party to an escape--a crime?" hotly

challenged the judge.

"I most respectfully deny the charge," returned Mr. Tutt.

"I told you to take the prisoner into that room and give him the best

advice you could."

"I did!" interjected the lawyer.

"Ah!" exclaimed the judge. "You admit it! What advice did you give him?"

"The law does not permit me to state that," answered Mr. Tutt in his

most dignified tones. "That is a privileged communication from the

inviolate obligation to preserve which only my client can release me--I

cannot betray a sacred trust. Yet I might quote Cervantes and remind

Your Honor that 'Fortune leaves always some door open to come at a

remedy!'"

Now as he gazed at the tear-stained cheeks of the girl-wife whose

husband had committed murder in defense of her self-respect, he vowed

that so far as he was able he would fight to save him. The more

desperate the case the more desperate her need of him--the greater the

duty and the greater his honor if successful.

"Believe that I am your friend, my dear!" he assured her. "You and I

must work together to set Angelo free."

"It's no use," she returned less defiantly. "He done it. He won't deny

it."

"But he is entitled to his defense," urged Mr. Tutt quietly.

"He won't make no defense."

"We must make one for him."

"There ain't none. He just went and killed him."

Mr. Tutt shrugged his shoulders.

"There is always a defense," he answered with conviction. "Anyhow we

can't let him be convicted without making an effort. Will they be able

to prove where he got the pistol?"

"He didn't get the pistol," retorted the girl with a glint in her black

eyes. "I got it. I'd ha' shot him myself if he hadn't. I said I was

goin' to, but he wouldn't let me."

"Dear, dear!" sighed Mr. Tutt. "What a case! Both of you trying to see

which could get hanged first!"

* * * * *

The inevitable day of Angelo's trial came. Upon the bench the Honorable

Mr. Justice Babson glowered down upon the cowering defendant flanked by

his distinguished counsel, Tutt & Tutt, and upon the two hundred good

and true talesmen who, "all other business laid aside," had been dragged

from the comfort of their homes and the important affairs of their

various livelihoods to pass upon the merits of the issue duly joined

between The People of the State of New York and Angelo Serafino,

charged with murder.

One by one as his name was called each took his seat in the witness

chair upon the _voir dire_ and perjured himself like a gentleman in

order to escape from service, shyly confessing to an ineradicable

prejudice against the entire Italian race and this defendant in

particular, and to an antipathy against capital punishment which, so

each unhesitatingly averred, would render him utterly incapable of

satisfactorily performing his functions if selected as a juryman. Hardly

one, however, but was routed by the Machiavellian Babson. Hardly one,

however ingenious his excuse--whether about to be married or immediately

become a father, whether engaged in a business deal involving millions

which required his instant and personal attention whether in the last

stages of illness or obligated to be present at the bedside of a dying

wife--but was browbeaten into helplessness and ordered back to take his

place amidst the waiting throng of recalcitrant citizens so disinclined

to do their part in elevating that system of trial by jury the failure

of which at other times they so loudly condemned.

This trifling preliminary having been concluded, the few jurymen who had

managed to wriggle through the judicial sieve were allowed to withdraw,

the balance of the calendar was adjourned, those spectators who were

standing up were ordered to sit down and those already sitting down were

ordered to sit somewhere else, the prisoners in the rear of the room

were sent back to the Tombs to await their fate upon some later day, the

reporters gathered rapaciously about the table just behind the

defendant, a corpulent Ganymede in the person of an aged court officer

bore tremblingly an opaque glass of yellow drinking water to the bench,

O'Brien the prosecutor blew his nose with a fanfare of trumpets, Mr.

Tutt smiled an ingratiating smile which seemed to clasp the whole world

to his bosom--and the real battle commenced; a game in which every card

in the pack had been stacked against the prisoner by an unscrupulous

pair of officials whose only aim was to maintain their record of

convictions of "murder in the first" and who laid their plans with

ingenuity and carried them out with skill and enthusiasm to habitual

success.

They were a grand little pair of convictors, were Babson and O'Brien,

and woe unto that man who was brought before them. It was even alleged

by the impious that when Babson was in doubt what to do or what O'Brien

wanted him to do the latter communicated the information to his

conspirator upon the bench by a system of preconcerted signals. But

indeed no such system was necessary, for the judge's part in the drama

was merely to sustain his colleague's objections and overrule those of

his opponent, after which he himself delivered the _coup de grace_ with

unerring insight and accuracy. When Babson got through charging a jury

the latter had always in fact been instructed in brutal and sneering

tones to convict the defendant or forever after to regard themselves as

disloyal citizens, oath violators and outcasts though the stenographic

record of his remarks would have led the reader thereof to suppose that

this same judge was a conscientious, tender-hearted merciful lover of

humanity, whose sensitive soul quivered at the mere thought of a prison

cell, and who meticulously sought to surround the defendant with every

protection the law could interpose against the imputation of guilt.

He was, as Tutt put it, "a dangerous old cuss." O'Brien was even worse.

He was a bull-necked, bullet-headed, pugnosed young ruffian with beery

eyes, who had an insatiable ambition and a still greater conceit, but

who had devised a blundering, innocent, helpless way of conducting

himself before a jury that deceived them into believing that his

inexperience required their help and his disinterestedness their loyal

support. Both of them were apparently fair-minded, honest public

servants; both in reality were subtly disingenuous to a degree beyond

ordinary comprehension, for years of practise had made them sensitive to

every whimsy of emotion and taught them how to play upon the psychology

of the jury as the careless zephyr softly draws its melody from the

aeolian harp. In a word they were a precious pair of crooks, who for

their own petty selfish ends played fast and loose with liberty, life

and death.

Both of them hated Mr. Tutt, who had more than once made them ridiculous

before the jury and shown them up before the Court of Appeals, and the

old lawyer recognized well the fact that these two legal wolves were in

revenge planning to tear him and his helpless client to pieces, having

first deliberately selected him as a victim and assigned him to

officiate at a ceremony which, however just so far as its consummation

might be concerned, was nothing less in its conduct than judicial

murder. Now they were laughing at him in their sleeves, for Mr. Tutt

enjoyed the reputation of never having defended a client who had been

convicted of murder, and that spotless reputation was about to be

annihilated forever.

Though the defense had thirty peremptory challenges Mr. Tutt well knew

that Babson would sustain the prosecutor's objections for bias until the

jury box would contain the twelve automata personally selected by

O'Brien in advance from what Tutt called "the army of the gibbet." Yet

the old war horse outwardly maintained a calm and genial exterior,

betraying none of the apprehension which in fact existed beneath his

mask of professional composure. The court officer rapped sharply for

silence.

"Are you quite ready to proceed with the case?" inquired the judge with

a courtesy in which was ill concealed a leer of triumph.

"Yes, Your Honor," responded Mr. Tutt in velvet tones.

"Call the first talesman!"

The fight was on, the professional duel between traditional enemies, in

which the stake--a human life--was in truth the thing of least concern,

had begun. Yet no casual observer would have suspected the actual

significance of what was going on or the part that envy, malice,

uncharitableness, greed, selfishness and ambition were playing in it. He

would have seen merely a partially filled courtroom flooded with

sunshine from high windows, an attentive and dignified judge in a black

silk robe sitting upon a dais below which a white-haired clerk drew

little slips of paper from a wheel and summoned jurymen to a service

which outwardly bore no suggestion of a tragedy.

He would have seen a somewhat unprepossessing assistant district

attorney lounging in front of the jury box, taking apparently no great

interest in the proceedings, and a worried-looking young Italian sitting

at the prisoner's table between a rubicund little man with a round red

face and a tall, grave, longish-haired lawyer with a frame not unlike

that of Abraham Lincoln, over whose wrinkled face played from time to

time the suggestion of a smile. Behind a balustrade were the reporters,

scribbling on rough sheets of yellow paper. Then came rows of benches,

upon the first of which, as near the jury box as possible, sat Rosalina

in a new bombazine dress and wearing a large imitation gold cross

furnished for the occasion out of the legal property room of Tutt &

Tutt. Occasionally she sobbed softly. The bulk of the spectators

consisted of rejected talesmen, witnesses, law clerks, professional

court loafers and women seeking emotional sensations which they had not

the courage or the means to satisfy otherwise. The courtroom was

comparatively quiet, the silence broken only by the droning voice of the

clerk and the lazy interplay of question and answer between talesman and

lawyer.

Yet beneath the humdrum, casual, almost indifferent manner in which the

proceedings seemed to be conducted each side was watching every move

made by the other with the tension of a tiger ready to spring upon its

prey. Babson and O'Brien were engaged in forcing upon the defense a jury

composed entirely of case-hardened convictors, while Tutt & Tutt were

fighting desperately to secure one so heterogeneous in character that

they could hope for a disagreement.

By recess thirty-seven talesmen had been examined without a foreman

having been selected, and Mr. Tutt had exhausted twenty-nine of his

thirty challenges, as against three for the prosecution. The court

reconvened and a new talesman was called, resembling in appearance a

professional hangman who for relaxation leaned toward the execution of

Italians. Mr. Tutt examined him for bias and every known form of

incompetency, but in vain--then challenged peremptorily. Thirty

challenges! He looked on Tutt with slightly raised eyebrows.

"Patrick Henry Walsh--to the witness chair, please, Mr. Walsh!" called

the clerk, drawing another slip from the box.

Mr. Walsh rose and came forward heavily, while Tutt & Tutt trembled. He

was the one man they were afraid of--an old-timer celebrated as a

bulwark of the prosecution, who could always be safely counted upon to

uphold the arms of the law, who regarded with reverence all officials

connected with the administration of justice, and from whose

composition all human emotions had been carefully excluded by the

Creator. He was a square-jawed, severe, heavily built person, with a

long relentless upper lip, cheeks ruddy from the open air; engaged in

the contracting business; and he had a brogue that would have charmed a

mavis off a tree. Mr. Tutt looked hopelessly at Tutt.

Babson and O'Brien had won.

Once more Mr. Tutt struggled against his fate. Was Mr. Walsh sure he had

no prejudices against Italians or foreigners generally? Quite. Did he

know anyone connected with the case? No. Had he any objection to the

infliction of capital punishment? None whatever. The defense had

exhausted all its challenges. Mr. Tutt turned to the prospective foreman

with an endearing smile.

"Mr. Walsh," said he in caressing tones, "you are precisely the type of

man in whom I feel the utmost confidence in submitting the fate of my

client. I believe that you will make an ideal foreman I hardly need to

ask you whether you will accord the defendant the benefit of every

reasonable doubt, and if you have such a doubt will acquit him."

Mr. Walsh gazed suspiciously at Mr. Tutt.

"Sure," he responded dryly, "Oi'll give him the benefit o' the doubt,

but if Oi think he's guilty Oi'll convict him."

Mr. Tutt shivered.

"Of course! Of course! That would be your duty! You are entirely

satisfactory, Mr. Walsh!"

"Mr. Walsh is more than satisfactory to the prosecution!" intoned

O'Brien.

"Be sworn, Mr. Walsh," directed the clerk; and the filling of the jury

box in the memorable case of People versus Serafino was begun.

"That chap doesn't like us," whispered Mr. Tutt to Tutt. "I laid it on a

bit too thick."

In fact, Mr. Walsh had already entered upon friendly relations with Mr.

O'Brien, and as the latter helped him arrange a place for his hat and

coat the foreman cast a look tinged with malevolence at the defendant

and his counsel, as if to say "You can't fool me. I know the kind of

tricks you fellows are all up to."

O'Brien could not repress a grin. The clerk drew forth another name.

"Mr. Tompkins--will you take the chair?"

Swiftly the jury was impaneled. O'Brien challenged everybody who did not

suit his fancy, while Tutt & Tutt sat helpless.

Ten minutes and the clerk called the roll, beginning with Mr. Walsh, and

they were solemnly sworn a true verdict to find, and settled themselves

to the task.

The mills of the gods had begun to grind, and Angelo was being dragged

to his fate as inexorably and as surely, with about as much chance of

escape, as a log that is being drawn slowly toward a buzz saw.

"You may open the case, Mr. O'Brien," announced Judge Babson, leaning

back and wiping his glasses.

Then surreptitiously he began to read his mail as his fellow conspirator

undertook to tell the jury what it was all about. One by one the

witnesses were called--the coroner's physician, the policeman who had

arrested Angelo outside the barber shop with the smoking pistol in his

hand, the assistant barber who had seen the shooting, the customer who

was being shaved. Each drove a spike into poor Angelo's legal coffin.

Mr. Tutt could not shake them. This evidence was plain. He had come into

the shop, accused Crocedoro of making his wife's life unbearable

and--shot him.

Yet Mr. Tutt did not lose any of his equanimity. With the tips of his

long fingers held lightly together in front of him, and swaying slightly

backward and forward upon the balls of his feet, he smiled benignly down

upon the customer and the barber's assistant as if these witnesses were

merely unfortunate in not being able to disclose to the jury all the

facts. His manner indicated that a mysterious and untold tragedy lay

behind what they had heard, a tragedy pregnant with primordial vital

passions, involving the most sacred of human relationships, which when

known would rouse the spirit of chivalry of the entire panel.

On cross-examination the barber testified that Angelo had said: "You

maka small of my wife long enough!"

"Ah!" murmured Mr. Tutt, waving an arm in the direction of Rosalina. Did

the witness recognize the defendant's young wife? The jury showed

interest and examined the sobbing Rosalina with approval. Yes, the

witness recognized her. Did the witness know to what incident or

incidents the defendant had referred by his remark--what the deceased

Crocedoro had done to Rosalina--if anything? No, the witness did not.

Mr. Tutt looked significantly at the row of faces in the jury box.

Then leaning forward he asked significantly: "Did you see Crocedoro

threaten the defendant with his razor?"

"I object!" shouted O'Brien, springing to his feet. "The question is

improper. There is no suggestion that Crocedoro did anything. The

defendant can testify to that if he wants to!"

"Oh, let him answer!" drawled the judge.

"No--" began the witness.

"Ah!" cried Mr. Tutt. "You did not see Crocedoro threaten the defendant

with his razor! That will do!"

But forewarned by this trifling experience, Mr. O'Brien induced the

customer, the next witness, to swear that Crocedoro had not in fact made

any move whatever with his razor toward Angelo, who had deliberately

raised his pistol and shot him.

Mr. Tutt rose to the cross-examination with the same urbanity as before.

Where was the witness standing? The witness said he wasn't standing.

Well, where was he sitting, then? In the chair.

"Ah!" exclaimed Mr. Tutt triumphantly. "Then you had your back to the

shooting!"

In a moment O'Brien had the witness practically rescued by the

explanation that he had seen the whole thing in the glass in front of

him. The firm of Tutt & Tutt uttered in chorus a groan of outraged

incredulity. Several jurymen were seen to wrinkle their foreheads in

meditation. Mr. Tutt had sown a tiny--infinitesimally tiny, to be

sure--seed of doubt, not as to the killing at all but as to the complete

veracity of the witness.

And then O'Brien made his coup.

"Rosalina Serafino--take the witness stand!" he ordered.

He would get from her own lips the admission that she bought the pistol

and gave it to Angelo!

But with an outburst of indignation that would have done credit to the

elder Booth Mr. Tutt was immediately on his feet protesting against the

outrage, the barbarity, the heartlessness, the illegality of making a

wife testify against her husband! His eyes flashed, his disordered locks

waved in picturesque synchronization with his impassioned gestures

Rosalina, her beautiful golden cross rising and falling hysterically

upon her bosom, took her seat in the witness chair like a frightened,

furtive creature of the woods, gazed for one brief instant upon the

twelve men in the jury box with those great black eyes of hers, and then

with burning cheeks buried her face in her handkerchief.

"I protest against this piece of cruelty!" cried Mr. Tutt in a voice

vibrating with indignation. "This is worthy of the Inquisition. Will not

even the cross upon her breast protect her from being compelled to

reveal those secrets that are sacred to wife and motherhood? Can the law

thus indirectly tear the seal of confidence from the Confessional? Mr.

O'Brien, you go too far! There are some things that even you--brilliant

as you are--may not trifle with."

A juryman nodded. The eleven others, being more intelligent, failed to

understand what he was talking about.

"Mr. Tutt's objection is sound--if he wishes to press it," remarked the

judge satirically. "You may step down, madam. The law will not compel a

wife to testify against her husband. Have you any more witnesses, Mister

District Attorney?"

"The People rest," said Mr. O'Brien. "The case is with the defense."

Mr. Tutt rose with solemnity.

"The court will, I suppose, grant me a moment or two to confer with my

client?" he inquired. Babson bowed and the jury saw the lawyer lean

across the defendant and engage his partner in what seemed to be a

weighty deliberation.

"I killa him! I say so!" muttered Angelo feebly to Mr. Tutt.

"Shut up, you fool!" hissed Tutt, grabbing him by the leg. "Keep still

or I'll wring your neck."

"If I could reach that old crook up on the bench I would twist his

nose," remarked Mr. Tutt to Tutt with an air of consulting him about the

Year Books. "And as for that criminal O'Brien, I'll get him yet!"

With great dignity Mr. Tutt then rose and again addressed the court:

"We have decided under all the circumstances of this most extraordinary

case, Your Honor, not to put in any defense. I shall not call the

defendant--"

"I killa him--" began Angelo, breaking loose from Tutt and struggling

to his feet. It was a horrible movement. But Tutt clapped his hand over

Angelo's mouth and forced him back into his seat.

"The defense rests," said Mr. Tutt, ignoring the interruption. "So far

as we are concerned the case is closed."

"Both sides rest!" snapped Babson. "How long do you want to sum up?"

Mr. Tutt looked at the clock, which pointed to three. The regular hour

of adjournment was at four. Delay was everything in a case like this. A

juryman might die suddenly overnight or fall grievously ill; or some

legal accident might occur which would necessitate declaring a mistrial.

There is, always hope in a criminal case so long as the verdict has not

actually been returned and the jury polled and discharged. If possible

he must drag his summing up over until the following day. Something

might happen.

"About two hours, Your Honor," he replied.

The jury stirred impatiently. It was clear that they regarded a two-hour

speech from him under the circumstances as an imposition. But Babson

wished to preserve the fiction of impartiality.

"Very well," said he. "You may sum up until four-thirty, and have half

an hour more to-morrow morning. See that the doors are closed, Captain

Phelan. We do not want any interruption while the summations are going

on."

"All out that's goin' out! Everybody out that's got no business, with

the court!" bellowed Captain Phelan.

Mr. Tutt with an ominous heightening of the pulse realized that the real

ordeal was at last at hand, for the closing of the case had wrought in

the old lawyer an instant metamorphosis. With the words "The defense

rests" every suggestion of the mountebank, the actor or the shyster had

vanished. The awful responsibility under which he labored; the

overwhelming and damning evidence against his client; the terrible

consequences of the least mistake that he might make; the fact that only

the sword of his ability, and his alone, stood between Angelo and a

hideous death by fire in the electric chair--sobered and chastened him.

Had he been a praying man in that moment he would have prayed--but he

was not.

For his client was foredoomed--foredoomed not only by justice but also

by trickery and guile--and was being driven slowly but surely towards

the judicial shambles. For what had he succeeded in adducing in his

behalf? Nothing but the purely apocryphal speculation that the dead

barber might have threatened Angelo with his razor and that the

witnesses might possibly have drawn somewhat upon their imaginations in

giving the details of their testimony. A sorry defense! Indeed, no

defense at all. All the sorrier in that he had not even been able to get

before the jury the purely sentimental excuses for the homicide, for he

could only do this by calling Rosalina to the stand, which would have

enabled the prosecution to cross-examine her in regard to the purchase

of the pistol and the delivery of it to her husband--the strongest

evidence of premeditation. Yet he must find some argument, some plea,

some thread of reason upon which the jury might hang a disagreement or a

verdict in a lesser degree.

With a shuffling of feet the last of the crowd pushed through the big

oak doors and they were closed and locked. An officer brought a corroded

tumbler of brackish water and placed it in front of Mr. Tutt. The judge

leaned forward with malicious courtesy. The jury settled themselves and

turned toward the lawyer attentively yet defiantly, hardening their

hearts already against his expected appeals to sentiment. O'Brien,

ostentatiously producing a cigarette, lounged out through the side door

leading to the jury room and prison cells. The clerk began copying his

records. The clock ticked loudly.

And Mr. Tutt rose and began going through the empty formality of

attempting to discuss the evidence in such a way as to excuse or

palliate Angelo's crime. For Angelo's guilt of murder in the first

degree was so plain that it had never for one moment been in the

slightest doubt. Whatever might be said for his act from the point of

view of human emotion only made his motive and responsibility under the

statues all the clearer. There was not even the unwritten law to appeal

to. Yet there was fundamentally a genuine defense, a defense that could

not be urged even by innuendo: the defense that no accused ought to be

convicted upon any evidence whatever, no matter how conclusive in a

trial conducted with essential though wholly concealed unfairness.

Such was the case of Angelo. No one could demonstrate it, no one could

with safety even hint at it; any charge that the court was anything but

impartial would prove a boomerang to the defense; and yet the facts

remained that the whole proceeding from start to finish had been

conducted unfairly and with illegality, that the jury had been duped and

deceived, and that the pretense that the guilty Angelo had been given an

impartial trial was a farce. Every word of the court had been an

accusation, a sneer, an acceptance of the defendant's guilt as a matter

of course, an abuse far more subversive of our theory of government than

the mere acquittal of a single criminal, for it struck at the very

foundations of that liberty which the fathers had sought the shores of

the unknown continent to gain.

Unmistakably the proceedings had been conducted throughout upon the

theory that the defendant must prove his innocence and that presumably

he was a guilty man; and this as well as his own impression that the

evidence was conclusive the judge had subtly conveyed to the jury in his

tone of speaking, his ironical manner and his facial expression. Guilty

or not Angelo was being railroaded. That was the real defense--the

defense that could never be established even in any higher court, except

perhaps in the highest court of all, which is not of earth.

And so Mr. Tutt, boiling with suppressed indignation weighed down with

the sense of his responsibility, fully realizing his inability to say

anything based on the evidence in behalf of his client, feeling twenty

years older than he had during the verbal duel of the actual

cross-examination, rose with a genial smile upon his puckered old face

and with a careless air almost of gaiety, which seemed to indicate the

utmost confidence and determination, and with a graceful compliment to

his arch enemy upon the bench and the yellow dog who had hunted with

him, assured the jury that the defendant had had the fairest of fair

trials and that he, Mr. Tutt, would now proceed to demonstrate to their

satisfaction his client's entire innocence; nay, would show them that he

was a man not only guiltless of any wrong-doing but worthy of their

hearty commendation.

With jokes not too unseemly for the occasion he overcame their

preliminary distrust and put them in a good humor. He gave a historical

dissertation upon the law governing homicide, on the constitutional

rights of American citizens, on the laws of naturalization, marriage,

and the domestic relations; waxed eloquent over Italy and the Italian

character, mentioned Cavour, Garibaldi and Mazzini in a way to imply

that Angelo was their lineal descendant; and quoted from D'Annunzio back

to Horace, Cicero and Plautus.

"Bunk! Nothing but bunk!" muttered Tutt, studying the twelve faces

before him. "And they all know it!"

But Mr. Tutt was nothing if not interesting. These prosaic citizens of

New York County, these saloon and hotel keepers, these contractors,

insurance agents and salesmen were learning something of history, of

philosophy, of art and beauty. They liked it. They felt they were

hearing something worth while, as indeed they were, and they forgot all

about Angelo and the unfortunate Crocedoro in their admiration for Mr.

Tutt, who had lifted them out of the dingy sordid courtroom into the

sunlight of the Golden Age. And as he led them through Greek and Roman

literature, through the early English poets, through Shakespeare and the

King James version, down to John Galsworthy and Rupert Brooke, he

brought something that was noble, fine and sweet into their grubby

materialistic lives; and at the same time the hand of the clock crept

steadily on until he and it reached Château-Thierry and half past four

together.

"Bang!" went Babson's gavel just as Mr. Tutt was leading Mr. Walsh, Mr.

Tompkins and the others through the winding paths of the Argonne forests

with tin helmets on their heads in the struggle for liberty.

"You may conclude your address in the morning, Mr. Tutt," said the judge

with supreme unction. "Adjourn court!"

Gray depression weighed down Mr. Tutt's soul as he trudged homeward. He

had made a good speech, but it had had absolutely nothing to do with the

case, which the jury would perceive as soon as they thought it over. It

was a confession of defeat. Angelo would be convicted of murder in the

first degree and electrocuted, Rosalina would be a widow, and somehow he

would be in a measure responsible for it. The tragedy of human life

appalled him. He felt very old, as old as the dead-and-gone authors from

whom he had quoted with such remarkable facility. He belonged with them;

he was too old to practise his profession.

"Law, Mis' Tutt," expostulated Miranda, his ancient negro handmaiden, as

he pushed away the chop and mashed potato, and even his glass of claret,

untasted, in his old-fashioned dining room on West Twenty-third Street,

"you ain't got no appetite at all! You's sick, Mis' Tutt."

"No, no, Miranda!" he replied weakly. "I'm just getting old."

"You's mighty spry for an old man yit," she protested. "You kin make dem

lawyer men hop mighty high when you tries. Heh, heh! I reckon dey ain't

got nuffin' on my Mistah Tutt!"

Upstairs in his library Mr. Tutt strode up and down before the empty

grate, smoking stogy after stogy, trying to collect his thoughts and

devise something to say upon the morrow, but all his ideas had flown.

There wasn't anything to say. Yet he swore Angelo should not be offered

up as a victim upon the altar of unscrupulous ambition. The hours passed

and the old banjo clock above the mantel wheezed eleven, twelve; then

one, two. Still he paced up and down, up and down in a sort of trance.

The air of the library, blue with the smoke of countless stogies,

stifled and suffocated him. Moreover he discovered that he was hungry.

He descended to the pantry and salvaged a piece of pie, then unchained

the front door and stepped forth into the soft October night.

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