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.'