THE TWELFTH JUROR
Tumultuously the session was resumed. At the door was a riot. There a
squad of police fought back surging nondescripts clamoring for
admission, fighting for entrance to the continuous show. A woman
fainted. Another had her gown torn off. One man retired with a
blackened eye.
During the recess Orr got for a moment with Sylvia and Mrs. Waldron.
"Aren't you hungry?" he asked.
Sylvia took his hand and pressed it. In her eyes was victory, in her
face delight. "I never knew before how Protean you are. You have won."
Orr tossed his head. "Not by a long shot. Besides, there is the jury.
Eleven look imbecile and the twelfth looks ill. There is no telling at
all what they will do or will not. But aren't you to eat anything?" He
turned to Mrs. Waldron. "Aren't you hungry?"
"Very," said the lady, "but I can't do a thing with Sylvia. I----"
She would have said more, but the jury had filed in. The judge was
entering, preceded by the cry "Hats off!"
Orr slipped back to his corner, to which Annandale, with his matinee
air and the keeper for usher, had already returned. For a moment Orr
bent to him, then to his associates but briefly. Bending again to
Annandale he told him to take the stand.
The move, wholly unexpected, unusual, almost exceptional in murder
cases, created an impression that was excellent, a sense of admiration
for the fearlessness of the defense. From the prosecution came low
growls of content. They were to be fed at last. In anticipation they
licked their chops.
But the excellence of the impression dwindled. In the direct,
Annandale denied, of course, that he had committed the murder, denied
that he had ever contemplated it, swearing that to the best of his
recollection he had made no threat at all.
"To the best of your recollection," Orr repeated after him. "Now
please tell me, had anything occurred that night to impair your memory
in any way?"
"Well--er--yes. Yes. I had been drinking."
"Had you any animosity toward the deceased?"
"Toward Loftus? None whatever. On the contrary, he was my best
friend."
Peacock jumped. "I ask that that be stricken out."
Quietly Orr continued: "Had you known Loftus long?"
"All my life."
"Was he a friend of yours?"
"An intimate friend."
Orr turned to Peacock. "Your witness."
Peacock jumped again. "You say that on the night of the murder you had
been drinking. Were you drunk?"
Paternally the Recorder looked over and down. "The witness need not
answer that unless----"
Annandale interrupted him. "I am much obliged to Your Honor, but
really I have nothing to conceal. I was drunk, deplorably so."
"Habit of yours, is it?" Peacock snapped.
Annandale took a monocle from a pocket, screwed it in his eye, looked
through it at Peacock, smiled at him, with an air of fathomless good
fellowship, answered: "Dear me, no. Is it one of yours?"
"Oho!" cried Peacock, pocketing the insult but pouncing at the point,
"you were drunk on this occasion only. Got drunk for it, did you?"
"No," Annandale blandly and confidentially replied. "You see, don't
you know, it was the day of the panic. I had dropped a good lot of
money--a good lot, I mean, for me--and, as the saying is, I tried to
drown my sorrows."
"But you found that they could swim, didn't you? Now, tell me, among
these sorrows was not the greatest the one to which your former butler
has testified, your late wife's desire for a divorce in order that she
might marry Loftus? Is it not a fact that she told you so, and that
you then said, 'I'll kill him, I'll kill Royal Loftus like the dog
that he is'?"
"I recall no such conversation."
"What, then, was the nature of the conversation that passed between
you and your wife on this particular evening?"
"I don't remember."
"The conversation and the threat to which your butler has sworn may
therefore have occurred without your now recalling it. Is that not
so?"
"Everything is possible, you know," Annandale answered with a phrase
unconsciously borrowed of Orr. "But I doubt it very much for the
reason----"
"Here," interrupted Peacock. "I don't want your doubts or your reasons
or your haha airs. I want answers from you, direct answers. Where did
you go and what did you do after your threat?"
To this Orr objected. A wrangle ensued. Orr was sustained. Peacock
reconstructed his question. Annandale answered that he had gone to
Miss Waldron's, but that he remembered nothing else.
"Is this yours?" Peacock suddenly asked, producing the pistol marked
exhibit A.
"Probably," said Annandale, looking, not at it, but at the ceiling.
"That's all."
Annandale got from the stand. Others succeeded him there, experts for
the defense, men who recited their qualities and degrees as though
they were eating truffles to the sound of trumpets. One after another
they testified that liquor can ablate memory partially, wholly; can
ablate it regarding events antecedent and subsequent to a rememorated
point between; can, moreover, leave the subject in a condition
apparently normal yet actually in a state of trance.
"Do you really regard these people as experts?" Peacock with pitying
contempt asked of Orr. Then at once in rebuttal were other experts,
equally pleased with themselves, humorously disposing of psychical
epilepsy, affecting to regard it as a medicolegal myth. Among the
spectators the usual jest circulated. The mendacious were subdivided
into liars, damned liars, expert witnesses. Yet there you were. But
not Orr. Tortuously he involved the deponents in helpful
contradictions, smiling at them, at Peacock and the jury, smiling
with an air of saying "You see what confounded idiots these imbeciles
are."
But the session was closing. One more witness remained to be called.
"Miss Waldron, will you take the stand?"
With the charming manner of the thoroughbred New York girl Sylvia
circled the room. It was refreshing to see her, refreshing to hear the
way in which she corroborated what Annandale had said.
"But," objected Peacock, "you had just gone from his house; what did
he go to yours for?"
"To restore a string of pearls."
"Did he repeat to you anything that he had said to his wife?"
"Had he attempted to I should have refused to listen."
"Was he drunk?"
"I cannot say. I have never seen anyone in that condition."
"Did he make any threats regarding Loftus?"
"A gentleman does not make threats."
"Miss Waldron, I will thank you to answer me directly. Did he or did
he not?"
"He did not."
"You swear to that?"
"I do."
It was perjury, of course. Yet if a girl may not perjure herself like
a lady for the man she loves things have come to a pretty pass. That
idea apparently struck Peacock.
"Prior to the defendant's marriage you were engaged to him, were you
not?"
"I was."
"Are you engaged to him now?"
Very prettily and gracefully, without embarrassment, rather with
pride, Sylvia answered: "I am."
"That's all," said Peacock. "The State rests." But as he said it he
looked at the jury and sighed, sighed audibly, much as were he adding,
"You may judge the value of her testimony from that."
The resting, however, was but figurative. In a moment the summing up
began, a summing which, at first passionless as algebra, dealt with
technical points.
"Gentlemen," said Peacock turning again to the jury, "the evidence in
this case is of the kind known to you perhaps as circumstantial.
Evidence of this nature can lead and often does lead to a conclusion
more satisfactory than direct evidence can produce. Circumstances
cannot lie any more than facts can. Unless we resort to them it is in
vain that we attempt to detect and to punish crime. Crime shuns the
light of day. It seeks darkness. It courts secrecy. The assassin
moves stealthily. He calls no witness to see him shoot his victim
down. If you wait for an eye-witness you grant impunity to crime. It
is true, and probably you will be so told by counsel for the defense,
that there are cases in which the innocent have been convicted. Yet if
men have been erroneously convicted on circumstantial evidence, so
have they been convicted on direct testimony also. That is not,
though, a reason for declining to accept such testimony. The
possibility of error exists alike. But because men may err do they
refuse to act? Because wheat may be blighted does the farmer refuse to
sow? No, gentlemen. Until we have means of knowledge beyond our
present faculties we must accept this kind of evidence or grant
practical immunity to crime."
The exordium concluded, Peacock warmed to his work. What he said he
seemed to literally tear from his mouth. It was an arraignment not
delivered but hurled, headlong, with the force and rush of a cavalry
charge. Before it Orr's points sank overwhelmed. To replace them with
others of his own Peacock made new ones, evolving them with a fire and
lucidity that was pyrotechnic. They were like bombs exploding before
the jury's eyes. He arraigned the defendant, arraigned the defense,
stampeded their tactics, denounced Annandale's manner, which he
declared to be that of a hardened criminal, and pictured him as a
jealous husband who, in accordance with a plot long premeditated, had
first lured his victim to his house, then following him thence had
murdered him in the darkness, but who now swore that he was drunk and
remembered nothing. "Assuming that he was drunk," Peacock shouted,
"his intoxication was a feigned disguise, assumed for the purpose and
legally an aggravation of his dastard crime."
Beneath, in the unlovely street, an organ was tossing a jig. The jolts
of it mounted to the court, fusing with Peacock's voice, adding their
vulgarity to his own, and it was to the wretchedness of them that he
said at last: "My duty is done."
He had scored points by the dozen. In as many seconds Orr had their
heads off by half.
"Harris, gentlemen, is the rock of the People's case. His hand
fashioned it. Without him it crumbles. Let me array for you Harris
against Harris."
Leisurely Orr began, showing the man's hand for what it was, not dirty
and disreputable merely, but discredited.
"Apart from that hand where is the promised evidence? Where is it?
Where is that evidence? Gentlemen, not a bit of evidence have you had,
not a molecule, not a minim, not a mite. At best or at worst any
evidence producible against this defendant would be circumstantial. In
telling you the value of such testimony the District Attorney has been
good enough to leave it to me to explain that testimony of this
character must, to be conclusive, exclude every other reasonable
hypothesis. The District Attorney has further told you that
circumstances cannot lie. Of all his statements that one and that one
alone is correct. Circumstances cannot lie. But witnesses can. It is
from them that circumstances are obtained. And though they furnish a
million circumstances, what are these circumstances worth if they
themselves are unsound? How unsound that reptile Harris is, you have,
I believe, been enabled to judge. But even otherwise, even though the
testimony of that saurian seem to you probable, I may remind you that
the most probable things often prove false, for the reason that if
they were exempt from falsity they would cease to be probable; they
would be certain.
"Now what certainty has the District Attorney brought you? Instead of
excluding every other reasonable hypothesis, he has opened the door to
a dozen hypotheses infinitely more reasonable than his own. Except
that the obligatory instrument does not appear to have been found, he
has adduced nothing to show that the deceased did not commit suicide.
He has adduced nothing to show that he was not robbed. The caretaker
has testified that he was away from the park ten or fifteen minutes.
The policeman who returned with him has testified that when he got
there the gate was open. In the interim anyone may have entered, gone
through the suicide, bagged his pistol for further booty and away.
"No, the District Attorney has not excluded these hypotheses, he has
confined himself to picturing this defendant as a husband jealous of
the deceased. But assuming that he was, how many other husbands may
not have been jealous of him also? The bullet in evidence, the bullet
extracted from the brain of the deceased, is one which, from a
calculation of its lands and grooves, may or may not have come from a
thirty-two calibre pistol. Anyway a thirty-two calibre pistol is among
the exhibits. But how many more such pistols are there in this great
city? The ownership of one is not a proof of crime. Nor is the fact
that the body of the deceased was found in front of this defendant's
residence proof either. On the contrary. The park wherein it lay is a
parallelogram, and a body in it would be practically in front of every
other house in the square. How many jealous husbands reside in these
houses I am not competent to say, but I am competent to tell you that
the prosecution might just as well have arraigned any other resident
there as this defendant; yes, and better, were it not for Harris."
Orr paused. "Reptile," he cried. "Knave, fraud, thief, liar----"
But the Court admonished him that his time was up. Without a murmur,
in the middle of a sentence, he sat down. It was another point that he
had scored.
"Gentlemen----"
The Recorder's charge to the jury followed, a charge clear,
undeclamatory, without literature or bias, in which they were
instructed regarding the law and left to determine the facts.
The jury filed out. The Recorder evaporated. Annandale sauntered away.
Into adjacent corridors the great room emptied itself.
Orr, stationing associates on guard, went over to Sylvia, urging her
to go.
But Sylvia refused at first to budge. The jury, she declared, would be
back in five minutes.
"It may be five hours," said Orr. "You had far better go home. No?
Well then I will take you to my offices and have something brought
in."
"Is it far?" Sylvia warily asked. But presently she assented,
stipulating however that Annandale should be brought there the moment
he was freed.
Orr tossed his head. "That may not be for years, until after an
appeal. I have not an idea what the jury will do. But I know one
thing: the last of the lot, the twelfth, looked at me during my
summing up with something that was a cross between a sneer and a
scowl."
"Yes," Mrs. Waldron interjected, "I noticed him. But it seemed to me
that he was not listening. It seemed to me that he was in pain. But
do, Sylvia, let us go. It is cruel of you. I am starving."
In Orr's neighborly offices shortly the lady was fed. Sylvia too ate
something. Orr himself would have bolted a bite, but he had to hurry
away, though promising as he did so everything that Sylvia asked,
promising to stand on his head if she wished it.
Once back in the court he found it still empty. In the corridors
reporters and idlers lounged, speculating on the verdict, prophesying
that the deliberations of the jury would be brief. But time limped. An
hour passed, two hours, three. Enervated and empty Orr went down and
out to a little restaurant across the street. Presently it was
reported that the jury were coming in. Orr hurried back, but however
he hurried, he was late. The court had refilled. As he entered he
heard someone say:
"Not guilty."
Abruptly the room hummed like a wasps' nest. There were raps for
order, commands for silence, threatened punishments for contempt.
The hubbub subsided, the Recorder thanked and dismissed the jury. He
turned to Peacock. "Are there any further charges against the
prisoner?"
"There are none, Your Honor."
The Recorder nodded at Annandale. "You are discharged."
Orr tried to get at him. But at that moment the crowd interfered. In
making a circuit to reach Annandale, he found himself among the
departing jury. They had all left the box, all save the twelfth, who
apparently had stumbled.
About them reporters circled. The foreman was relating that they had
been practically unanimous for conviction, but that one of them, the
twelfth, had insisted so obstinately on the poverty of the evidence
that with him finally they had voted to acquit.
"But where is he?" the foreman interrupted himself to ask. "Where is
the twelfth juror? Where is Durand?"
Then only was it seen that he was still in the box, crouching there,
his face ashen where it was not violet, a hand held to his side.
In a moment he was surrounded. To those nearest he looked and gasped.
"Give him some brandy," a reporter suggested. But now into the little
group Peacock had forced his way. Orr edged nearer.
The juror gasped again. "I am dying," he groaned. "It is my heart.
Send for a priest. I killed him. I am the man."
Skeptically Peacock sniffed. "You killed whom?"
"He is delirious," the reporter exclaimed.
"I killed him," Durand repeated.
"But whom? And why?" Peacock, bending a bit, impressed in spite of
himself, inquired.
Slowly, laboriously, painfully at that, Durand from a pocket drew a
picture.
"Curse him," he muttered. "There he is. He disgraced my _perle_, my
daughter Marie, but she wrote me where to find him and I did; I found
him in the park and I shot him there, through the head, through the
h-head," he stammered and clutched at his heart.
From his hand the picture had slipped. Orr edged closer, stooped for
it, recovered it, then in heightening wonder stared. The picture was a
colored photograph that displayed the chiseled features, wonderful
eyes and thin black mustache of one whom he had known. Above it was
written "Marie's Husband."
"It is Loftus," he exclaimed.
Peacock wheeled. "Loftus," he cried. Instantly to question further, he
turned to the juror again.
But even as he turned he saw that the trial was over. Spasmodically
the man's mouth had twitched, his head had fallen; before a higher
court he had gone.
Peacock, the marvel of it upon him, turned anew to Orr. Foes while the
battle was raging, the two men now were like the commandants of
opposing forces who, the conflict ended, meet and embrace.
Peacock rubbed his eyes. "What this confession means, Orr, you as well
as I appreciate." Instinctively his voice had sunk into that undertone
which Death, when it comes, exacts. "Yes," he continued, "Annandale is
not merely acquitted, he is cleared. For that, believe me, I am glad.
As for Loftus, he got from that dead father only what he deserved."
To this Orr, about whom the marvel of it all still also clung,
assented. "Justice," he replied, "is rarely human, but sometimes it is
divine."
He would have said more perhaps, but Annandale was approaching.
Obviously the latter was as yet wholly unaware of this new climax to
his case. He was looking doubtfully around.
"I can't find my hat," he announced. Then at once, detecting the
unusual in the attitude of those that stood about, his eyes followed
theirs to the box from which court officers, long trained to the
lugubrious, swiftly and silently were removing the corpse.
A keeper appeared. In his hand was the hat. Annandale took it, his
eyes still following the body that was being removed.
"There," said Orr abruptly, "there is the man that killed Loftus. But
come," he added. "Sylvia is waiting. Good-bye, Peacock. We have both
had a lesson in presumptive proof."
Astonishment lifted Annandale visibly like a flash. "What!" he
exclaimed. "What! What's all this?"
Then Orr, a hand on his arm, led him away, and as they passed from the
General Sessions, told him what had occurred.