Mr. Yollop was on the stand for half an hour longer. Counsel for the

defense was driving home to the jury the impression that Smilk was a

poor, half-starved wretch who had gone back to thieving after a

valiant but hopeless attempt to find work in order to support his

wife and children. He announced, in arguing an objection made by the

State, that it was his intention to prove by the man's wife that

Smilk was a good husband and was willing to work his fingers off for

his family, but that he had been ill and unable to find steady

employment.

Mrs. Champney testified at the afternoon session. She made a most

unfavorable impression on the jury. She got very angry at Smilk's

counsel and said such spiteful things to him and about his client

that the jury began to feel sorry for both of them.

Two detectives and three policemen in uniform testified that Smilk

was the picture of health and a desperate-looking character. Now

anybody who has ever served on a jury in a criminal case knows the

effect that the testimony of a police officer has on three

fourths--and frequently four fourths,--of the jurors. For some

unexplained,--though perhaps obvious reason,--the ordinary juror not

only hates a policeman but refuses to believe him on oath unless he

is supported by evidence of the most unassailable nature. The mere

fact that the five officers swore that Smilk was healthy and rugged

no doubt went a long way toward convincing the jury that the poor

fellow was a physical wreck and absolutely unable to defend himself

on the night of the alleged burglary.

Moreover, a skilled mind-reader would have discovered that Mr.

Yollop had not made a good impression on the jury. Almost to a man,

they discredited him because he was fastidious in appearance;

because he was known to be a successful and prosperous business man;

because he was trying to make them believe that he possessed the

unheard-of courage to tackle an armed burglar; and because he was a

milliner. As for Mrs. Champney, she was the embodiment of all that

the average citizen resents: a combination of wealth, refinement,

intelligence, arrogance and widowhood. Especially does he resent

opulent widowhood.

The State rested. Mrs. Smilk was the first witness called by the

defense. She told a harrowing tale of Smilk's unparalleled efforts

to obtain work; of his heart-breaking disappointments; of her own

loyal and cheerful struggle to provide for the children,--and for

her poor sick husband,--by slaving herself almost to death at all

sorts of jobs. Furthermore, she was positive that poor Cassius had

reformed, that he was determined to lead an honest, upright life;

all he needed was encouragement and the opportunity to show his

worth. True, he had been in State's Prison twice, but in both

instances it was the result of strong drink. Now that prohibition

had come and he could no longer be subjected to the evils and

temptations of that accursed thing generically known as rum, he was

sure to be a model citizen and husband. In fact, she declared, a

friend of the family,--a man very high up in city politics,--had

promised to secure for Cassius an appointment as an enforcement

officer in the great war that was being waged against prohibition.

This seemed to make such a hit with the jury that Smilk's lawyer

shrewdly decided not to press her to alter the preposition.

The cross-examination was brief.

The State: "How many children have you, Mrs. Smilk?"

Mrs. Smilk: "Seven."

The State: "The defendant is the father of all of them?"

Mrs. Smilk, with dignity: "Are you tryin' to insinuate that he

ain't?"

The State: "Not at all. Answer the question, please."

Mrs. Smilk: "Yes, he is."

The State: "When did you say you were married to the defendant?"

Mrs. Smilk: "October, 1906. I got my certificate here with me, if

you want to see it."

The State: "I would like to see it."

Counsel for Smilk, benignly: "The defense has no objection."

The State, after examining the document: "It is quite regular. With

the court's permission, I will submit the document to the jury."

The Court, to Smilk's counsel: "Do you desire to offer this document

in evidence?"

Counsel: "It had not occurred to us that it was necessary, but now

that a point is being made of it, I will ask that it be introduced

as evidence."

The State, passing the certificate to the court reporter for his

identification mark: "You have never been divorced from the

defendant, have you, Mrs. Smilk?"

Mrs. Smilk: "Of course not." Then nervously: "Excuse me, but do I

get my marriage certificate back? It's the only hold I got on--"

Counsel, hastily: "Certainly, certainly, Mrs. Smilk. You need have

no worry. It will be returned to you in due time."

The State, after reading the certificate aloud, hands it to the

foreman, and says: "The State admits the validity of this

certificate. There can be no question about it." Leans against the

table and patiently waits until the document has made the rounds.

"Now, Mrs. Similk, you are sure that you have not been divorced from

Smilk nor he from you?"

Mrs. Smilk, stoutly; "Course I'm sure."

The State: "You heard Mr. Yollop testify that your husband said he

had several wives. So far as you know that is not the case?"

Mrs. Smilk. "I don't think he ever said it to Mr. Yollop. I think

Mr. Yollop lied."

The State: "I see. Then you do not believe your husband could have

deceived you--I withdraw that, Mr. Reporter. You do not believe

that your husband is base enough to have married another woman,--or

women,--without first having obtained a legal divorce from you?"

Mrs. Smilk: "I wouldn't be up here testifying in his behalf if I

thought that, you bet. He ain't that kind of a man. If I thought he

was, I'd like to see him hung. I'd like to see--"

The State. "Never mind, Mrs. Smilk. We are not trying your husband

for bigamy. I think that is all, your honor."

Counsel for Smilk: "You may be excused, Mrs. Smilk. Take the stand,

Cassius."

Instead of obeying Cassius beckoned to him. Then followed a long,

whispered conference between lawyer and client, at the end of which

the former, visibly annoyed, declared that the defendant had decided

not to testify. The Court indicated that it was optional with the

prisoner and asked if the counsel desired to introduce any further

testimony. Counsel for the defense announced that his client's

decision had altered his plans and that he was forced to rest his

case. The Assistant District Attorney stated that he had two

witnesses to examine in rebuttal.

"Send for Mrs. Elsie Morton," he directed. "She is waiting in the

District Attorney's office, Mr. Bailiff."

To the amazement of every one, Cassius Smilk started up from his

chair, a wild look in his eye. He sat down instantly, however, but

it was evident that he had sustained a tremendous and unexpected

shock. Mr. Yollop who had purposely selected a seat in the front row

of spectators from which he could occasionally exchange mutual

glances of well-assumed repugnance with the rascal, caught Smilk's

eye as it followed the retiring bailiff. The faintest shadow of a

wink flickered for a second across that smileless, apparently

troubled optic. Mr. Yollop, who had been leaning forward in his

chair for the better part of the afternoon with one hand cupped

behind his ear and the other manipulating the disc in a vain but

determined effort to hear what was going on, suddenly relaxed into a

comfortable, satisfied attitude and smiled triumphantly. He knew

what was coming. And so did Smilk.

Mrs. Morton was a plump, bobbed-hair blond of thirty. She had moist

carmine lips, a very white nose, strawberry-hued cheek bones, an

alabaster chin and forehead, and pale, gray eyes surrounded by

blue-black rims tinged with crimson. She wore a fashionable

hat,--(Mr. Yollop noticed that at a glance)--a handsome greenish

cloth coat with a broad moleskin collar and cuffs of the same fur,

pearl gray stockings that were visible to the knees, and high gray

shoes that yawned rather shamelessly at the top despite the wearer's

doughtiest struggle with the laces. Her gloves, also were somewhat

over-crowded. She gave her name as Mrs. Elsie Broderick Morton,

married; occupation, ticket seller in a motion picture theater.

The State: "What is your husband's name and occupation?"

Witness: "Filbert Morton. So far as I know, he never had a regular

occupation."

The State: "When were you and Filbert Morton married?"

Witness: "June the fourteenth, 1916."

The State: "Are you living with your husband at present?"

Witness: "I am not."

The State: "Have you ever been divorced from him?"

Witness: "I have not."

The State: "How long is it since you and he lived together?"

Witness: "A little over three years."

The State: "Would you recognize him if you were to see him now?"

Witness: "I certainly would."

The State: "When did you see him last?"

Witness: "Day before yesterday."

The State: "Tell the jury where you saw him."

Witness: "Over in the Tombs."

The State: "Surreptitiously?"

Witness: "No, sir. With my own eyes."

The State: "I mean, you saw him without his being aware of the fact

that you were looking at him for the purpose of identification?"

Witness. "Yes, sir."

The State: "I will now ask you to look about this court room and

tell the jury whether you see the man known to you as Filbert

Morton?"

Witness, pointing to Smilk: "That's him over there."

The State: "You mean the prisoner at the bar, otherwise known as

Cassius Smilk?"

Witness. "Yes, sir. That's my husband."

The State: "You are sure about that?"

Witness: "Of course, I am. I wouldn't be likely to make any mistake

about a man I'd lived with for nearly six months, would I? I've got

my marriage certificate here with me, if you want to see it."

Mrs. Smilk, in the first row, venomously addressing Mr. Smilk: "So

that's what you was up to when you was out for six months and never

come near me once, you dirty--"

All bailiffs in unison: "Silence! Order in the court!"

The State, presently: "Was he a good, kind, devoted husband to you,

Mrs. Morton?"

Witness: "Well, if you mean did he provide me with clothes and

jewels and gewgaws and all such, yes. He was always bringing me home

rings and bracelets and necklaces and things. But if you mean did he

ever give me any money to buy food with and keep the flat going, no.

I slaved my head off to get grub for him all the time we were living

together."

The State: "Did he ever mistreat you?"

Witness: "Oh, once in a while he used to give me a rap in the eye,

or a kick in the slats, or something like that, but on the whole he

was pretty sensible."

The State: "Sensible? In what way?"

Witness: "I mean he was sensible enough not to punch his meal ticket

too often."

It is not necessary to go any farther into the direct examination of

Mrs. Elsie Morton, nor into the half-hearted efforts of Smilk's

disgusted lawyer to shake her in cross-examination. Nor is it

necessary to introduce here the testimony of Mrs. Jennie Finchley,

who succeeded her on the stand. It appears that Jennie was married

in 1914 when Smilk was out for three months. She supported him for

several months in 1916,--up to the time he packed up and left her on

the morning of the fourteenth of June, that year. As Herbert

Finchley he not only managed to live comfortably off the proceeds of

her delicatessen, but in leaving her he took with him nine hundred

dollars that she had saved out of the business despite his

gormandizing.

CHAPTER SIX

Despite the fact that the jury was out just a few minutes short of

seven hours, it finally came in with a verdict "guilty as charged."

Twice the devoted twelve returned to the court room for further

instructions from the judge. Once they wanted to know if it was

possible to convict the prisoner for bigamy instead of burglary, and

the other time it was to have certain portions of Mr. Yollop's

testimony read to them. Immediately upon retiring an amicable and

friendly discussion took place in the crowded, stuffy little jury

room. Eight men lighted black cigars, two lighted their pipes, one

joyously, almost ravenously resorted to a package of "Lucky

Strikes," while the twelfth man announced that he did not smoke. He

had been obliged to give it up because of blood pressure or

something like that.

The foreman, or Juror No. 1, was an insurance agent. He was a man of

fifty and he knew how to talk. His voice was loud, firm, overriding

and unconquerable; his manner suave, tolerant, persuasive. The

bailiff, after obtaining each man's telephone number and the message

he wished to have sent to his home (if any), informed the jurors

that he would be waiting just outside if they wanted him and then

departed, locking the door behind him; whereupon the foreman looked

at his watch and announced that it was twenty minutes to four. This

statement resulted in the first disagreement. No two watches were

alike. Some little time was consumed in proving that all twelve of

them were right and at the same time wrong, paradoxical as it may

sound. After the question of the hour had been disposed of, the

foreman suggested that an informal ballot be taken for the purpose

of ascertaining the views of the gentlemen as to the guilt or the

innocence of the defendant. The result of this so-called informal

ballot was nine for conviction, three for acquittal.

"Now we know where we stand," explained the foreman. "In view of the

fact that nine of us are for conviction and only three for acquittal

it seems to me that it is up to the minority to give their reasons

for not agreeing with the majority. I see by your ballot,

Mr.--er--Mr. Sandusky, that you are in favor of acquitting--"

"My name is I. M. Pushkin," interrupted Juror No. 7. "I wrote it

plain enough, didn't I?"

"The initials confused me," explained the foreman. "Well, let's hear

why you think he ought to be acquitted."

"I know what it is to be hungry, that's why. I see the time when I

first come to this country when I didn't have nothing to eat for

two-three days at a time, and ever'body tellin' me to go to hell out

of here when I ask for a job or when I tell 'em I ain't had nothing

to eat since yesterday morning and won't they please to help a poor

feller what ain't had nothing to eat since yesterday morning, and--"

Six or seven voices interrupted him. It was Juror No. 4, salesman,

who finally succeeded in getting a detached question to him.

"As I was saying, where do you get any evidence that he WAS hungry?"

"I guess you wasn't paying much attention to the evidence," retorted

Mr. Pushkin. "Didn't you hear that lawyer say, over and over yet,

how he was almost starved to death? Didn't--Wait a minute!--didn't

you hear him say to that deaf witness that the prisoner fell down

like a log when he push him in the face? Just push him,--nothing

else. Didn't you hear that?"

"Sure I heard it. We all heard it. But what EVIDENCE is there?"

"Evidence? My gracious, ain't that enough? Ain't one man's word as

good as another's? And say, let me ask you this: Is there any

evidence that he wasn't almost starved to death! Well! Humph! I

guess not. There ain't a single witness that says he wasn't

hungry--not one, I tell you. You can't--"

"Didn't all them policemen swear that he was as husky as--"

"Say, you can't believe a policeman about anything. It's their

business. That's what their job is. I know all about those fellers.

Why, long time ago when I first come to this country, I told a

hundred policeman I was almost starved to death and say, do you

think they believed me? You bet they didn't. They told me to get a

move on, get the hell out of this, beat it,--you bet I know all

about them fellers. I--"

The foreman interrupted Mr. Pushkin.

"So you want to acquit the defendant because his lawyer said he was

hungry,--is that it?"

"I don't blame nobody for stealing when he is almost starved to

death and got a wife and children almost starved to death too

because he cannot get a job yet. You bet I don't. I don't--"

"Well, of all the damned--"

"Can you beat this for--"

"I've heard a lot of--"

The foreman rapped vigorously with an inkwell, splashing the fluid

over his fingers and quite a considerable area of table-top.

"Gentlemen! Gentlemen! Let us talk this thing over quietly and

calmly. Mr. Pushkin seems to have a wrong conception as to what

constitutes evidence. Now, let me have the floor for a few minutes,

and I'll try to explain to him what constitutes evidence."

One hour and twenty minutes later Mr. Pushkin admitted that he DID

have a wrong conception as to what constitutes evidence, but still

maintained that he hated like sin to convict a man who had tried so

hard to get work and couldn't.

The non-smoking gentleman was one of the three who comprised the

minority. He was a mild little chap with weak eyes and the sniffles.

By profession he was a clock maker. He said he believed that the

defendant was unquestionably guilty of bigamy and that the State had

erred in charging him with burglary. He was perfectly willing to

send the man up for bigamy because, according to the evidence, it

took precedence over the crime alleged to have been committed in

December, 1919. In other words, he explained, Smilk had committed

bigamy some years prior to the burglary of Mr. Yollop's apartment

and he believed in taking things in their regular order. Of course,

he went on to say, he would be governed by the opinion of the judge

if it were possible under the circumstances to obtain it. He did not

think it would be legal to put the burglary charge ahead of the

bigamy charge, but if the judge so ordered he would submit,

notwithstanding his conviction that it would be unconstitutional.

Several gentlemen wanted to know what the constitution had to do

with it, and he, becoming somewhat exasperated, declared that the

present jury system is a joke, an absolute joke.

"Well, it's just such men as you that make it a joke," growled Juror

No. 12.

"Gentlemen! Gentlemen!" admonished the foreman. "Let us have no

recriminations, please. It occurs to me that we ought to send a note

to the court, asking for instructions on this point."

The note was written and despatched in care of the glowering

bailiff, who, it seems, had an engagement to go to the movies that

evening and couldn't believe his ears when he ascertained that the

boobs had not yet agreed upon a verdict in what he regarded as the

clearest case that had ever come under his notice.

In the meantime, the third juror explained his vote for acquittal.

He was a large, heavy-jowled man with sandy mustache and a vacancy

among his upper teeth into which a pipe-stem fitted neatly. He was

the superintendent of an apartment building in Lenox Avenue.

"I think it's a frame-up," he said, pausing to use the bicuspid

vacancy for the purpose of expectoration. "That's what I think it

is. Now I'm in a position as superintendent of a flat building to

know a lot about what goes on among the bachelor tenants. I ain't

sayin' that the prisoner didn't go to Mr. What's-His-Name's flat

without an invitation. You bet your life he wasn't expected, if my

guess is correct. I tell you what I think,--and my opinion ought to

be worth a lot, lemme tell you,--I think there's something back of

all this that wasn't brought out in the trial. Now here's something

I bet not one of you fellers has thought about. What evidence is

there that this Chancy woman is that deaf man's sister? Not a blamed

word of evidence, except their own statement. She ain't his sister

any more than I am. Did you ever see two people that looked less

like they was related to each other? You bet you didn't. Now I got a

hunch that the prisoner follered her to that guy's apartment. What

for, I don't know. Maybe for blackmail. He got onto what was goin'

on, and makes up his mind to rake in a nice bunch of hush-money.

That's been done a couple of times in the apartment buildin' I'm

superintendent of. A feller I had workin' for me as a porter cleaned

up five or six hundred dollars that way, he told me. This robbery

business sounds mighty fishy to me. Now I'm only tellin' you the way

the thing looks to me. I don't think that woman is Wollop's sister

any more than she is mine. It's a frame-up, the whole thing is. Look

at the way this Wollop says he tied her up and all that.

Humph!--Can't you fellers see through this whole business? He tied

her up so's the police would find her tied up, that's what he done.

The chances are she's some woman customer of his that's got stuck on

him, tryin' hats and all that,--and maybe gettin' all the hats she

wants for nothin',--and this feller Smilk he gets onto the game and

goes out for a little money. See what I mean?"

So loud and so furious was the discussion that followed the

extraordinary deductions of Juror No. 9, that the bailiff had to rap

half a dozen times before he could make himself heard. Finally the

foreman, purple in the face, called out through the haze of smoke:

"Come in!"

"The judge says for you to come into the court room for

instructions," announced the officer. "Never mind your hats and

coats. No cigars, gents. Leave 'em here. They'll be safe. Come on,

now. It's nearly time to go to supper."

The judge informed the jury that they could not find the man guilty

of bigamy and curtly ordered them back to their room for further

deliberation. They took another ballot before going out to supper at

a nearby restaurant, guarded by six bailiffs, who warned them not to

discuss the case while outside the jury room. The second ballot, by

the way, was eight for conviction, four for acquittal. Juror No. 5

had come over to the minority. He said there was something in the

theory of Juror No. 9.

There was a very positive disagreement concerning the meal they were

about to partake of. The foreman spoke of it as dinner and was

openly sneered at by eleven gentlemen who had never called it

anything but supper. The little clockmaker, having been overruled by

the judge, was in a nasty temper. He accused the foreman of being a

republican. He said no democrat ever called it dinner. It wasn't

democratic.

Upon their return to the jury room after a meal on which there was

complete agreement and which brought out considerable talk about the

penuriousness of the County of New York, they settled down to a

prolonged and profound discussion of their differences. It soon

developed that all but two of the jurors had been favorably inclined

toward the defendant up to the time the State introduced the

unexpected wives. They had regarded him as a poor unfortunate,

driven to crime by adversity, and after a fashion the victim of an

arrogant and soulless police system, aided and abetted by the

District Attorney's minions, a contemptible robber in the person of

a dealer in women's hats, and a bejeweled snob who insulted their

intelligence by trying to convince them that her confidence had been

misplaced. But the two wives settled it. Smilk was a rascal. He

ought to be hung.

"But," argued No. 9, "how the devil do we know that them women ARE

his wives. Their evidence ain't supported, is it?"

"Didn't they have certificates?" demanded another hotly.

"Sure. But that don't prove that he was the man, does it?"

"And didn't the prisoner jump up and yell: 'My God, it's all off!

You've got me cold! You've got me dead to rights,'" cried another.

"Oh, there's no use arguin' with you guys," roared No. 9,

disgustedly.

Later on they returned to the court room to have certain parts of

Mr. Yollop's testimony read to them. After this a ballot was taken,

and the only man for acquittal was the clock-maker. At twenty

minutes to eleven he succumbed, not to argument or persuasion or

reason but to a chill February draft that blew in through the open

window above his head. He couldn't get away from it. The others

wouldn't let him. They got him up in a corner and he couldn't break

through. He told them he was getting pneumonia, that the draft would

be the death of him, that he'd take back what he said about the

smoke almost suffocating him,--still they surrounded him, and argued

with him, and called him things he didn't feel physically able to

call them, and at last he voted guilty.

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