"I wish we had, counselor!" assented the captain of the Hepplewhite

precinct mournfully. "But we thought he was a burglar. I guess he was,

at that--and it was Mr. Hepplewhite's house."

"I've heard that until I'm sick of it!" retorted Peckham.

"One thing is sure--if we turn him out now Tutt will sue us all for

false arrest and put the whole administration on the bum," snarled

O'Brien.

"But I didn't know the tramp would get Mr. Tutt to defend him,"

expostulated the captain. "Anyhow, ain't it a crime to go to sleep in

another man's bed?"

"If it ain't it ought to be!" declared his plain-clothes man

sententiously. "Can't you indict him for burglary?"

"You can indict all day; the thing is to convict!" snapped Peckham.

"It's up to you, O'Brien, to square this business so that the law is

vindicated--somehow It must be a crime to go into a house on Fifth

Avenue and use it as a hotel. Why, you can't cross the street faster

than a walk these days without committing a crime. Everything's a

crime."

"Sure thing," agreed the captain. "I never yet had any trouble finding a

crime to charge a man with, once I got the nippers on him."

"That's so," interjected the plain-clothes man. "Did you ever know it

was a crime to mismanage a steam boiler? Well, it is."

"Quite right," agreed Mr. Magnus, the indictment clerk. "The great

difficulty for the perfectly honest man nowadays is to avoid some act or

omission which the legislature has seen fit to make a crime without his

knowledge. Refilling a Sarsaparilla bottle, for instance, or getting up

a masquerade ball or going fishing or playing on Sunday or loitering

about a building to overhear what people are talking about inside--"

"That's no crime," protested the captain scornfully.

"Yes, it is too!" retorted Mr. Magnus, otherwise known to his fellows as

Caput, because of his supposed cerebral inflation. "Just like it is a

crime to have any kind of a show or procession on Sunday except a

funeral, in which case it's a crime to make a disbursing noise at it."

"What's a disbursing noise?" demanded O'Brien.

"I don't know," admitted Magnus. "But that's the law anyway. You can't

make a disbursing noise at a funeral on Sunday."

"Oh, hell!" ejaculated the captain. "Come to think of it, it's a crime

to spit. What man is safe?"

"It occurs to me," continued Mr. Magnus thoughtfully, "that it is a

crime under the law to build a house on another man's land; now I should

say that there was a close analogy between doing that and sleeping in

his bed."

"Hear! Hear!" commented O'Brien. "Caput Magnus, otherwise known as Big

Head, there is no doubt but that your fertile brain can easily devise a

way out of our present difficulty."

"Well, I've no time to waste on tramp cases," remarked District

Attorney Peckham. "I've something more important to attend to. Indict

this fellow and send him up quick. Charge him with everything in sight

and trust in the Lord. That's the only thing to be done. Don't bother me

about it, that's all!"

Meantime Mr. Hepplewhite became more and more agitated. Entirely against

his will and, so far as he could see, without any fault of his own, he

suddenly found himself the center of a violent and acrimonious

controversy respecting the fundamental and sacred rights of freemen

which threatened to disrupt society and extinguish the supremacy of the

dominant local political organization.

On the one hand he was acclaimed by the conservative pulpit and press as

a public-spirited citizen who had done exactly the right

thing--disinterestedly enforced the law regardless of his own

convenience and safety as a matter of principle and for the sake of the

community--a moral hero; on the other, though he was president of

several charitable organizations and at least one orphan asylum he was

execrated as a heartless brute, an oppressor of the poor, an octopus, a

soulless capitalist who fattened on the innocent and helpless and

who--Mr. Hepplewhite was a bachelor--probably if the truth could be

known lived a life of horrid depravity and crime.

Indeed there was a man named Tutt, of whom Mr. Hepplewhite had never

before heard, who publicly declared that he, Tutt, would show him,

Hepplewhite, up for what he was and make him pay with his body and his

blood, to say nothing of his money, for what he had done and caused to

be done. And so Mr. Hepplewhite became even more agitated, until he

dreamed of this Tutt as an enormous bird like the fabled roc, with a

malignant face and a huge hooked beak that some day would nip him in the

abdomen and fly, croaking, away with him. Mrs. Witherspoon had returned

to Aiken, and after the first flood of commiserations from his friends

on Lists Numbers One, Two, Three and Four he felt neglected, lonely and

rather fearful.

And then one morning something happened that upset his equanimity

entirely. He had just started out for a walk in the park when a flashy

person who looked like an actor walked impudently up to him and handed

him a piece of paper in which was wrapped a silver half dollar. In a

word Mr. Hepplewhite was subpoenaed and the nervous excitement attendant

upon that operation nearly caused his collapse. For he was thereby

commanded to appear before the Court of General Sessions of the Peace

upon the following Monday at ten a.m. as a witness in a criminal action

prosecuted by the People of the State of New York against Hans Schmidt.

Moreover, the paper was a dirty-brown color and bore the awful name of

Tutt. He returned immediately to the house and telephoned for Mr.

Edgerton, his lawyer, who at once jumped into a taxi on the corner of

Wall and Broad Streets and hurried uptown.

"Edgerton," said Hepplewhite faintly as the lawyer entered his library,

"this whole unfortunate affair has almost made me sick. I had nothing to

do with the arrest of this man Schmidt. The police did everything. And

now I'm ordered to appear as a witness! Why, I hardly looked at the man.

I shouldn't know him if I saw him. Do I have to go to court?"

Mr. Edgerton smiled genially in a manner which he thought would

encourage Mr. Hepplewhite.

"I suppose you'll have to go to court. You can't help that, you know, if

you've been subpoenaed. But you can't testify to anything that I can

see. It's just a formality."

"Formality!" groaned his client. "Well, I supposed the arrest was just a

formality."

Mr. Edgerton smiled again rather unconvincingly.

"Well, you see, you can't always tell what will happen when you once

start something," he began.

"But I didn't start anything," answered Mr. Hepplewhite. "I had nothing

to say about it."

At that moment Bibby appeared in the doorway.

"Excuse me, sir," he said. "There is a young man outside who asked me to

tell you that he has a paper he wishes to serve on you--and would you

mind saving him the trouble of waiting for you to go out?"

"Another!" gagged Mr. Hepplewhite.

"Yes, sir! Thank you, sir," stammered Bibby.

Mr. Hepplewhite looked inquiringly at Mr. Edgerton and rose feebly.

"He'll get you sooner or later," declared the lawyer. "A man as well

known as you can't avoid process."

Mr. Hepplewhite bit his lips and went out into the hall.

Presently he returned carrying a legal-looking bunch of papers.

"Well, what is it this time?" asked Edgerton jocosely.

"It's a suit for false imprisonment for one hundred thousand dollars!"

choked Mr. Hepplewhite.

Mr. Edgerton looked shocked.

"Well, now you've got to convict him!" he declared.

"Convict him?" retorted Mr. Hepplewhite. "I don't want to convict him.

I'd gladly give a hundred thousand dollars to get out of the--the--darn

thing!"

Which was as near profanity as he had ever permitted himself to go.

* * * * *

Upon the following Monday Mr. Hepplewhite proceeded to court--flanked by

his distinguished counsel in frock coats and tall hats--simply because

he had been served with a dirty-brown subpoena by Tutt & Tutt; and his

distress was not lessened by the crowd of reporters who joined him at

the entrance of the Criminal Courts Building; or by the flashlight bomb

that was exploded in the corridor in order that the evening papers might

reproduce his picture on the front page. He had never been so much in

the public eye before, and he felt slightly defiled. For some curious

reason he had the feeling that he and not Schmidt was the actual

defendant charged with being guilty of something; nor was this

impression dispelled even by listening to the indictment by which the

Grand Jury charged Schmidt in eleven counts with burglary in the first,

second and third degrees and with the crime of entering his,

Hepplewhite's, house under circumstances not amounting to a burglary but

with intent to commit a felony, as follows:

"Therefore, to wit, on the eleventh day of January in the year of our

Lord one thousand nine hundred and nineteen in the night-time of the

said day at the ward, city and county aforesaid the dwelling house of

one John De Puyster Hepplewhite there situate, feloniously and

burglariously did break into and enter there being then and there a

human being in said dwelling house, with intent to commit some crime

therein, to wit, the goods, chattels, and personal property of the said

John De Puyster Hepplewhite, then and there being found, then and there

feloniously and burglariously to steal, take and carry away one silver

tea service of the value of five hundred dollars and one pair of opera

glasses of the value of five dollars each with force and arms----"

"But that silver tea service cost fifteen thousand dollars and weighs

eight hundred pounds!" whispered Mr. Hepplewhite.

"Order in the court!" shouted Captain Phelan, pounding upon the oak rail

of the bar, and Mr. Hepplewhite subsided.

Yet as he sat there between his lawyers listening to all the

extraordinary things that the Grand Jury evidently had believed Schmidt

intended to do, the suspicion began gradually to steal over him that

something was not entirely right somewhere. Why, it was ridiculous to

charge the man with trying to carry off a silver service weighing nearly

half a ton when he simply had gone to bed and fallen asleep. Still,

perhaps that was the law.

However, when the assistant district attorney opened the People's case

to the jury Mr. Hepplewhite began to feel much more at ease. Indeed

O'Brien made it very plain that the defendant had been guilty of a very

grievous--he pronounced it "gree-vious"--offense in forcing his way into

another man's private house. It might or might not be burglary--that

would depend upon the testimony--but in any event it was a criminal,

illegal entry and he should ask for a conviction. A man's house was his

castle and--to quote from that most famous of orators and

statesmen--Edmund Burke--"the wind might enter, the rain might enter,

but the King of England might not enter!" Thus Schmidt could not enter

the house of Hepplewhite without making himself amenable to the law.

Hepplewhite was filled with admiration for Mr. O'Brien, and his drooping

spirits reared their wilted heads as the prosecutor called Bibby to the

stand and elicited from him the salient features of the case. The jury

was vastly interested in the butler personally, as well as his account

rendered in the choicest cockney of how he had discovered Schmidt in his

master's bed. O'Brien bowed to Mr. Tutt and told him that he might

cross-examine.

And then it was that Mr. Hepplewhite discovered why he had been haunted

by that mysterious feeling of guilt; for by some occult and subtle

method of suggestion on the part of Mr. Tutt, the case, instead of

being a trial of Schmidt, resolved itself into an attack upon Mr.

Hepplewhite and his retainers and upon the corrupt minions of the law

who had violated every principle of justice, decency and morality in

order to accomplish the unscrupulous purposes of a merciless

aristocrat--meaning him. With biting sarcasm, Mr. Tutt forced from the

writhing Bibby the admission that the prisoner was sound asleep in the

pink silk fastnesses of the Bouguereau Room when he was discovered that

he made no attempt to escape, that he did not assault anybody and that

he had appeared comatose from exhaustion; that there was no sign of a

break anywhere, and that the pair of opera glasses "worth five dollars

_apiece_"--Tutt invited the court's attention to this ingenuous

phraseology of Mr. Caput Magnus, as a literary curiosity--were a figment

of the imagination.

In a word Mr. Tutt rolled Bibby up and threw him away, while his master

shuddered at the open disclosure of his trusted major-domo's vulgarity,

mendacity and general lack of sportsmanship. Somehow all at once the

case began to break up and go all to pot. The jury got laughing at

Bibby, the footmen and the cops as Mr. Tutt painted for their

edification the scene following the arrival of Mrs. Witherspoon, when

Schmidt was discovered asleep, as Mr. Tutt put it, like Goldilocks in

the Little, Small, Wee Bear's bed.

Stocking was the next witness, and he fared no better than had Bibby.

O'Brien, catching the judge's eye, made a wry face and imperceptibly

lowered his left lid--on the side away from the jury, thus officially

indicating that, of course, the case was a lemon but that there was

nothing that could be done except to try it out to the bitter end.

Then he rose and called out unexpectedly: "Mr. John De Puyster

Hepplewhite--take the stand!"

It was entirely unexpected. No one had suggested that he would be called

for the prosecution. Possibly O'Brien was actuated by a slight touch of

malice; possibly he wanted to be able, if the case was lost, to accuse

Hepplewhite of losing it on his own testimony. But at any rate he

certainly had no anticipation of what the ultimate consequence of his

act would be.

Mr. Hepplewhite suddenly felt as though his entire intestinal mechanism

had been removed. But he had no time to take counsel of his fears.

Everybody in the courtroom turned with one accord and looked at him. He

rose, feeling as one who dreams; that he is naked in the midst of a

multitude. He shrank back hesitating, but hostile hands reached out and

pushed him forward. Cringing, he slunk to the witness chair, and for the

first time faced the sardonic eyes of the terrible Tutt, his adversary

who looked scornfully from Hepplewhite to the jury and then from the

jury back to Hepplewhite as if to say: "Look at him! Call you this a

man?"

"You are the Mr. Hepplewhite who has been referred to in the testimony

as the owner of the house in which the defendant was found?" inquired

O'Brien.

"Yes--yes," answered Mr. Hepplewhite deprecatingly.

"The first witness--Bibby--is in your employ?"

"Yes--yes."

"Did you have a silver tea set of the value of--er--at least five

hundred dollars in the house?"

"It was worth fifteen thousand," corrected Mr. Hepplewhite.

"Oh! Now, have you been served by the defendant's attorneys with a

summons and complaint in an action for false arrest in which damages are

claimed in the sum of one hundred thousand dollars?"

"I object!" shouted Mr. Tutt. "It is wholly irrelevant."

"I think it shows the importance of the result of this trial to the

witness," argued O'Brien perfunctorily. "It shows this case isn't any

joke--even if some people seem to think it is."

"Objection sustained," ruled the court. "The question is irrelevant. The

jury is supposed to know that every case is important to those

concerned--to the defendant as well as to those who charge him with

crime."

O'Brien bowed.

"That's all. You may examine, Mr. Tutt."

The old lawyer slowly unfolded his tall frame and gazed quizzically down

upon the shivering Hepplewhite.

"You have been sued by my client for one hundred thousand dollars,

haven't you?" he demanded.

"Object!" shot out O'Brien.

"Overruled," snapped the court. "It is a proper question for

cross-examination. It may show motive."

Mr. Hepplewhite sat helplessly until the shooting was over.

"Answer the question!" suddenly shouted Mr. Tutt.

"But I thought--" he began.

"Don't think!" retorted the court sarcastically. "The time to think has

gone by. Answer!"

"I don't know what the question is," stammered Mr. Hepplewhite,

thoroughly frightened.

"Lord! Lord!" groaned O'Brien in plain hearing of the jury.

Mr. Tutt sighed sympathetically in mock resignation.

"My dear sir," he began in icy tones, "when you had my client arrested

and charged with being a burglar, had you made any personal inquiry as

to the facts?"

"I didn't have him arrested!" protested the witness.

"You deny that you ordered Bibby to charge the defendant with burglary?"

roared Mr. Tutt. "Take care! You know there is such a crime as perjury,

do you not?"

"No--I mean yes," stuttered Mr. Hepplewhite abjectly. "That is, I've

heard about perjury--but the police attended to everything for me."

"Aha!" cried Mr. Tutt, snorting angrily like the war horse depicted in

the Book of Job. "The police 'attended' to my client for you, did they?

What do you mean--for you? Did you pay them for their little attention?"

"I always send them something on Christmas," said Mr. Hepplewhite. "Just

like the postmen."

Mr. Tutt looked significantly at the jury, while a titter ran round the

court room.

"Well," he continued with patient irony, "what we wish to know is

whether these friends of yours whom you so kindly remember at Christmas

dragged the helpless man away from your house, threw him into jail and

charged him with burglary by your authority?"

"I didn't think anything about it," asserted Hepplewhite "Really I

didn't. I assumed that they knew what to do under such circumstances. I

didn't suppose they needed any authority from me."

Mr. Tutt eyed sideways the twelve jurymen.

"Trying to get out of it, are you? Attempting to avoid responsibility?

Are you thinking of what your position will be if the defendant is

acquitted--with an action against you for one hundred thousand dollars?"

Ashamed, terrified, humiliated, Mr. Hepplewhite almost burst into tears.

He had suffered a complete moral disintegration--did not know where to

turn for help or sympathy. The whole world seemed to have risen against

him. He opened his mouth to reply, but the words would not come. He

looked appealingly at the judge, but the judge coldly ignored him. The

whole room seemed crowded with a multitude of leering eyes. Why had God

made him a rich man? Why was he compelled to suffer those terrible

indignities? He was not responsible for what had been done--why then,

was he being treated so abominably?

"I don't want this man punished!" he suddenly broke out in fervent

expostulation. "I have nothing against him. I don't believe he intended

to do any wrong. And I hope the jury will acquit him!"

"Oho!" whistled Mr. Tutt exultantly, while O'Brien gazed at Hepplewhite

in stupefaction. _Was_ this a man?

"So you admit that the charge against my client is without foundation?"

insisted Mr. Tutt.

Hepplewhite nodded weakly.

"I don't know rightly what the charge is--but I don't think he meant any

harm," he faltered.

"Then why did you have the police put him under arrest and hale him

away?" challenged Mr. Tutt ferociously.

"I supposed they had to--if he came into my house," said Mr.

Hepplewhite. Then he added shamefacedly: "I know it sounds silly--but

frankly I did not know that I had anything to say in the matter. If your

client has been injured by my fault or mistake I will gladly reimburse

him as handsomely as you wish."

O'Brien gasped. Then he made a funnel of his hands and whispered toward

the bench: "Take it away, for heaven's sake!"

"That is all!" remarked Mr. Tutt with deep sarcasm, making an elaborate

bow in the direction of Mr. Hepplewhite. "Thank you for your excellent

intentions!"

A snicker followed Mr. Hepplewhite as he dragged himself back to his

seat among the spectators.

He felt as though he had passed through a clothes wringer. Dimly he

heard Mr. Tutt addressing the court.

"And I move, Your Honor," the lawyer was paying, "that you take the

counts for burglary in the first, second and third degrees away from the

jury on the ground that there has been a complete failure of proof that

my client broke into the house of this man Hepplewhite either by night

or by day, or that he assaulted anybody or stole anything there, or ever

intended to."

"Motion granted," agreed the judge. "I quite agree with you, Mr. Tutt.

There is no evidence here of any breaking. In fact, the inferences are

all the other way."

"I further move that you take from the consideration of the jury the

remaining count of illegally entering the house with intent to commit a

crime and direct the jury to acquit the defendant for lack of evidence,"

continued Mr. Tutt.

"But what was your client doing in the house?" inquired the judge. "He

had no particular business in it, had he?"

"That does not make his presence a crime, Your Honor," retorted the

lawyer. "A man is not guilty of a felony who falls asleep on my haycock.

Why should he be if he falls asleep in my bed?"

The judge smiled.

"We have no illegal entry statute with respect to fields or meadows, Mr.

Tutt," he remarked good-naturedly. "No, I shall be obliged to let the

jury decide whether this defendant went into that house for an honest

or dishonest purpose. It is clearly a proper question for them to pass

upon. Proceed with your case."

Now when, as in the case of the Hepplewhite Tramp, the chief witness for

the prosecution throws up his hands and offers to repay the defendant

for the wrong he has done him, naturally it is all over but the

shouting.

"There is no need for me to call the defendant," Mr. Tutt told the

court, "in view of the admissions made by the last witness. I am ready

to proceed with the summing up."

"As you deem wise," answered the judge. "Proceed then."

Through a blur of sight and sound Mr. Hepplewhite dimly heard Mr. Tutt

addressing the jury and saw them lean forward to catch his every word.

Beside him Mr. Edgerton was saying protestingly: "May I ask why you made

those fool statements on the witness stand?"

"Because I didn't want an innocent man convicted," returned Mr.

Hepplewhite tartly.

"Well, you'll get your wish!" sniffed his lawyer. "And you'll get soaked

for about twenty thousand dollars for false arrest!"

"I don't care," retorted the client. "And what's more I hope Mr. Tutt

gets a substantial fee out of it. He strikes me as a lawyer who knows

his business!"

The oldest and fattest court officers, men so old and fat that they

remembered the trial of Boss Tweed and the days when Delancey Nicoll was

the White Hope of the Brownstone Court House--declared Mr. Tutt's

summation was the greatest that ever they heard. For the shrewd old

lawyer had an artist's hand with which he played upon the keyboard of

the jury and knew just when to pull out the stops of the _vox humana_ of

pathos and the grand diapason of indignation and defiance. So he began

by tickling their sense of humor with an ironic description of afternoon

tea at Mr. Hepplewhite's, with Bibby and Stocking as chief actors, until

all twelve shook with suppressed laughter and the judge was forced to

hide his face behind the _Law Journal_; ridiculed the idea of a criminal

who wanted to commit a crime calmly going to sleep in a pink silk bed in

broad daylight; and then brought tears to their eyes as he pictured the

wretched homeless tramp, sick, footsore and starving, who, drawn by the

need of food and warmth to this silk nest of luxury, was clubbed,

arrested and jailed simply because he had violated the supposed sanctity

of a rich man's home.

The jury watched him as intently as a dog watches a piece of meat held

over its nose. They smiled with him, they wept with him, they glared at

Mr. Hepplewhite and they gazed in a friendly way at Schmidt, whom Mr.

Tutt had bailed out just before the trial. The very stars in their

courses seemed warring for Tutt & Tutt. In the words of Phelan: "There

was nothing to it!"

"Thank God," concluded Mr. Tutt eloquently, "that in this land of

liberty in which we are privileged to dwell no man can be convicted of a

crime except by a jury of his peers--a right sacred under our

Constitution and inherited from Magna Charta, that foundation stone of

English liberty, in which the barons forced King John to declare that

'No freeman shall be taken, or imprisoned, or disseized, or outlawed, or

exiled, or in any way harmed ... save by the lawful judgment of his

peers or by the law of the land.'

Tutt and Mr. Tutt · 第 12 / 15 段