By Advice of Counsel (Arthur Train)/Beyond a Reasonable Doubt
"For twelve honest men have decided the cause,
Who are judges alike of the fact and the laws."
—The Honest Jury.
"Lastly," says Stevenson in his Letter to a Young Gentleman Who Proposes to Embrace the Career of Art, "we come to those vocations which are at once decisive and precise; to the men who are born with the love of pigments, the passion of drawing, the gift of music, or the impulse to create with words, just as other and perhaps the same men are born with the love of hunting, or the sea, or horses, or the turning lathe. These are predestined; if a man love the labor of any trade, apart from any question of success or fame, the gods have called him."
Had anybody told Danny Lowry that the gods had called him he would have stigmatized his informant as a liar—yet they had. For apart from any question of success or fame he had loved horses from the day when as a baby he had first sprawled in the straw of his Uncle Mike Aherne's livery and hitching stable in Dublin City. He had grown up to the scrape and whiffle of the currycomb, breathing ammonia, cracking the skin of his infantile knuckles with harness soap. Out of the love that he bore for the beautiful dumb brutes grew an understanding that in time became almost uncanny. All the jockeys and hostlers said there was magic in the lad's hands. He could ride anything on hoofs with a slack rein; and the worst biter in the stable would take a bridle from him as it were an apple.
"Oft, now, I hear him talkin' to 'em, so I do." Mike Aherne was wont to say between spits. "An' they know what he says, I'm tellin' ye. He's a charmer, he is; like the Whisperin' Blacksmith. You've heard tell of him, belike? Well, Danny can spake to 'em widout even a whisper, so he can that!"
That was near seventy years agone, and now Danny was a shrunken little white-haired old wastrel who haunted Mulqueen's Livery over on Twenty-fourth Street near Tenth Avenue, disappearing in and out of the cellar and loft and stalls like a leprechaun haunts a hollow tree. Nobody knew where he had come from or where he lived except that he could always be found wherever there was a suffering animal, be it dog, cat or squirrel, and the rest of the time at Mulqueen's, with whom he had an understanding about the telephone. He was short, wiry, unshaven, with the legs of a jockey; and when he could get it he drank. That, however, was not why he had left Ireland, which had had something to do with Phoenix Park; nor was it the cause of the decline of his fortunes, which had been the coming of the motor.
Some day a story must be written called The Hitching Post, about those thousands of little cast-iron negro boys who stand so patiently on the green grass strips along village streets waiting to hold long-forgotten bridle reins. They lost their usefulness a decade or more ago, and so, by the same token and at the same time, did all that army of people who lived and moved and had their being by ministering to the needs of the horse. The gas engine was to them what the mechanical bobbin was to the spinners of Liverpool and Belfast. With the coming of the motor the race of coachmen, grooms and veterinaries began to perish from the earth. Among the last was Danny Lowry, at the very zenith of his fortunes an unofficial vet to most of the swell stables belonging to the carriage people of Fifth Avenue. One by one these stables had been converted into garages, and the broughams and C-spring victorias, the landaus and basket phaetons had been dragged to the auction room or shoved into dim corners to make room for snappy motors; and the horses Danny knew and loved so well had been sold or turned out to grass.
But there was nobody to turn Danny out to grass. He had to keep going. So he had drifted lower and lower, passing from the private stable to the trucking stable, and from the trucking stable to the last remaining decrepit boarding and liveries of the remote West Side. The tragedy of the horse is the tragedy of all who loved them. Danny was one of these tragedies, but he still picked up a precarious living by doing odd jobs at Mulqueen's and acting as a veterinary when called upon, and he could generally be found either loafing in the smelly little office or smoking his T D pipe on the steps outside.
He and Mr. Ephraim Tutt, the lawyer, who lived in the rickety old house with the tall windows and piazzas protected by railings of open ironwork round which twisted the stems of extinct wistarias, had long been friends. Many a summer evening the two old men had sat together and discoursed of famous jockeys and still more famous horses, of Epsom and Ascot, until Mr. Tutt's cellaret was empty and never a stogy left in the box at all. Probably no one save the odd lanky old attorney, who himself seemed to belong to a bygone era, knew the story of Danny's glorious past—how he had risen from his Uncle Aherne's livery in Dublin first to being paddock groom to Lord Ashburnham and then to jockey, finally to ride the Derby under the Farringdon gold and crimson, and to carry away Katherine Brady, the second housemaid, as Mrs. Lowry when he went back to Dublin with a goodly pile of money to take over his uncle's business; and how thereafter had come babies, and fever, and the epizootic, and hard times; and Danny, a heartbroken man, had fled from bereavement and pauperism and possibly from prison to seek his fortune in America. And then the motor! Lastly, now, a hand-to-mouth, furtive, ignorant old age, a struggle for bare existence and to keep the tiny flat going for his seventeen-year-old granddaughter, Katie, who kept house for him and of whose existence few, even of Danny's friends, were aware excepting Mr. Tutt.
There was, in fact, a striking parallel between these two old men, the one so ignorant, the other so essentially a man of culture, in that they were both humanitarians in a high sense. It is improbable that Ephraim Tutt was conscious of what drew him to Danny Lowry, but drawn he was; and the reason for it was that the fundamental mainspring of the life of each was love—in the case of the man of law for those of his fellow men who suffered through foolishness or poverty or weaknesses or misfortune; and in that of his more humble counterpart, whose limitations precluded his understanding of more endowed human beings, for the dumb animals, who must mutely suffer through the foolishness or poverty or weakness or misfortune of their owners and masters.
Danny had sat up all night with only a horse blanket drawn over his legs, taking care of a roan mare with the croup. The helpless thing had lain flat on her side in the straw struggling for breath, and Danny, his heart racked with pity, had sat in the stall beside her, every hour giving her steam and gently pouring his own secret mixture down her throat. Nobody but Danny cared what became of the mare, left there two weeks before by a stranger who had not returned for it; stolen, probably. Cramped, stiff with rheumatism, half dead from fatigue and suffering from a bad cough himself, he left the stable at eight o'clock next morning, hopeful that the miserable beast would pull through, and stepped round to Salvatore's lunch cart for a bowl of coffee and a hot dog. He was just lighting his pipe preparatory to going back to the stable when a stranger pulled up to the curb in a mud-splashed depot wagon.
"'Morning," he remarked pleasantly. "Can you tell me if Mulqueen's livery stable is anywhere about here?"
Danny removed his pipe and spat politely.
"Sure," he replied, taking in the horse, which besides being lame and having a glaring spavin on its off hind leg was a mere bone bag fit only for the soap factory. "'Tis just forninst the corner. I'm after goin' there meself."
The stranger, a heavy-faced man with a thick neck, nodded.
"All right. You go along and I'll follow."
Mulqueen was not yet at the stable and Danny helped unharness the animal, which, as soon as relieved of the shafts, hung its head between its legs, evidently all in. The stranger handed Danny a cigar.
"I'm lookin' for a vet," said he. "My horse ought to have something done for him."
"I can well see that!" agreed Danny. "He needs a poultice and hot bandages. A bit of rest wouldn't do him no harm, neither."
"Well, I'm no vet," returned the stranger with an apologetic grin, "but it don't take much to know that he's a sick horse. I'm a doctor, myself, but not a horse doctor. Have you got one here?"
"Some calls me a horse doctor," modestly answered Danny. "I can treat a spavin and wind a bandage as well as the next. How long will you be leavin' him?"
"Oh, a day or two, I guess. Well, if you're a veterinary I leave him in your care. My name's Simon—Dr. Joseph R. Simon, of Hempstead, Long Island."
Danny worked all the morning over the horse, doing his best to make it comfortable. Indeed, before he had concluded his treatment the animal was probably more comfortable than he, for the night in the cold stall had given him a chill and when he left the stable to go home for lunch he was in a high fever. Doctor Simon was outside on the sidewalk talking to Mulqueen.
"Well, doctor," said he, "what did you find was the matter with my horse?"
"Spavin, lame in three legs, sore eyes, underfed," replied Danny, shivering. "Sure an' he's a sick animal."
"How much do I owe you?" inquired Doctor Simon.
Danny was about to answer that a couple of dollars would be all right when the thought occurred to him that here was an opportunity to secure medical treatment for himself.
"If you'll give me something to stop a fever we'll call it even," he suggested.
"That's easy!" returned Doctor Simon heartily. "Come into the office and I'll take your temperature and write you out a prescription."
So they sat down by the stove and the doctor took Danny's pulse and put a thermometer under his tongue, chatting amicably meanwhile, and when he had completed his examination he wrote something on a piece of paper.
"How long have you been practicing veterinary medicine?" he inquired.
"All my life," answered Danny truthfully. "But I don't get near so much to do as I used. These be hard times for those as have to do with horses."
He got up painfully.
"Well, now," said Doctor Simon, "I'd feel better if I paid you for treating my horse. Just put this five-dollar bill in your pocket. I guess you need it more than I do."
Danny shook his head. "That's all right!" he said weakly, for he was feeling very ill. "It's a stand-off."
"Oh, go ahead, take it!" urged Doctor Simon, shoving the bill into the pocket of Danny's overcoat. "By the way, have you got your card? I might be able to send a little business your way."
When his magic skill with horses was matter of common knowledge among the upper circle of Long Island grooms and coachmen Danny had had a few cards struck off by a friendly printer. A couple of fly-blown specimens still lingered in the drawer of Mulqueen's desk. Danny searched until he found one:
212 WEST 53D STREET
NEW YORK CITY
"Here, sor," said he, his head swimming, "that's my name, but the address is wrong."
Doctor Simon put it in his pocketbook.
"Thanks," he remarked. "Much obliged for fixing up my horse." Then in a businesslike manner, he threw back his coat and displayed a glittering badge. "Now," he added brusquely, "I must arrest you for practising veterinary medicine without a license. Just come along with me to the nearest police station."
When Mr. Tutt returned home that evening after attending one of the weekly sessions at the Colophon Club, where he had reluctantly contributed the sum of fifty-seven dollars to relieve the immediate needs of certain impecunious persons gathered there about a green-baize-covered table in a remote corner of the card room, he perceived by the light of an adjacent street lamp that someone was sitting upon the top of the steps leading to his front door.
"Are you Mr. Tutt?" inquired Katie Lowry, getting up and making a timid curtsy. "The great lawyer?"
"That is my name, child," he answered. "What do you want of me?"
She was but a wisp of a girl and her eyes shone like a cat's from under a gray shawl gathered over a pair of narrow, pinched shoulders.
"They've taken grandfather away to prison," she replied with a catch in her throat. "He didn't come in to lunch nor to supper, and when I went to the stable Mr. Mulqueen said a detective had arrested grandfather for doctoring horses without a license and he had pleaded guilty and they'd locked him up. I went to the police station, but they said he wasn't there any more, but that he was in the Tombs."
"Who is your grandfather?" demanded Mr. Tutt as he unlocked the door.
"Danny Lowry," she replied. "Oh, sir, won't you try to do something for him, sir? He thinks so much of you! He often has told me what a grand man you were and so kind, besides being such a clever lawyer and all the judges afraid of you!"
"Danny Lowry in the Tombs!" cried Mr. Tutt. "What an outrage! Of course I'll do what I can for him. But first come inside and warm yourself. Miranda!" he shouted to the colored maid of all work. "Make us some hot toast and tea and bring it up to the library. Now, my dear, take off your shawl and sit down and tell me all about it."
So with her frayed kid shoes upturned on the fender, little Katie Lowry, confident that she had found an all-powerful friend in this queer long man who smoked such queer long cigars, sipping her tea only when she had to pause for breath, poured out the story of her grandfather's fight with poverty and misfortune, while her auditor's wrinkled face grew soft and hard by turns as he watched her through the gray clouds from his stogy. An hour later he left her at the door of her flat, happy and encouraged, with a twenty-dollar bill crumpled in her hand.
"But what do you expect me to do about it?" retorted District Attorney Peckham in his office next morning when Mr. Tutt had explained to him the perversion of justice to accomplish which the law had been invoked. "I'm sorry! No doubt he's a good feller. But he's guilty, isn't he? Admitted it in the police court, didn't he?"
"I expect you to temper justice with mercy," replied Mr. Tutt earnestly. "This old man's whole life has been devoted to relieving the sufferings of animals. He's a genuine Samaritan."
"That's like saying that a thief has done good with his plunder, isn't it?" commented Peckham. "Look here, Tutt, of course I hope you get your man off and all that, but if I personally threw the case out I'd have all the vets in the city on my neck. You see the motors have pretty nearly put 'em all out of business. There aren't enough sick horses to go round, so they've been conducting a sort of crusade. Tough luck—but the law is the law. And I have to enforce it—ostensibly, anyway."
"Very well," answered the old lawyer amiably but defiantly. "Then if you've got to enforce the law against a fine old chap like that I've got to do my darnedest to smash that law higher than a kite. And I'll tell you something, Peckham—which is that the human heart is a damn sight bigger than the human conscience."
Danny Lowry had lived for years in fear of the blow which had so suddenly struck him down, for there had never been any blinking of the obvious fact that in acting as an unlicensed veterinary he was brazenly violating the law. On the other hand, not being able to read or write, and having no technical knowledge of medicine, all his experience, all his skill, all his love of animals could avail him nothing so far as securing a license was concerned. He could not read an examination paper, but he could interpret the symptoms seen in a trembling neck and a lack-luster eye. Danny had no choice but to break the law or abandon the only career for which he had an aptitude, or by which he could hope to earn a living at his age. His crime was malum prohibitum, not malum in se, but it was, nevertheless, a violation of a most necessary law. Certainly none of us wish to be doctored by tyros or humbugs, or to have our animals treated by them. Only Danny was neither a tyro nor a humbug, and had he not been a lawbreaker the world would have been to some extent the loser.
Yet by all the canons of ethics and justice it was most improper for Mr. Tutt to hurry off to the Tombs and bail out old Danny Lowry, a self-confessed lawbreaker, giving his own bond and the house on Twenty-third Street as security. Still more so, as more unblushingly ostentatious, was his taking the criminal over to Pont's and giving him the very best dinner that Signor Faccini, proprietor of that celebrated hostelry, could purvey.
Hard cases are said to make bad law; I wonder if they make bad people. If "conscience makes cowards of us all" does human sympathy play ducks and drakes with conscience? Does it blind the eye of reason? Rather, does it not illumine and expose the fallacies of logic and the falsities of the syllogism? Do two and two make four in human polity as in mathematics? Sometimes it would not seem so.
Certainly you would have picked Mr. Bently Gibson, of The Gibson Woolen Mills, as a model juror. One look at him as a prospective talesman in a murder case and you would have unhesitatingly murmured, "The defense challenges peremptorily!" His broad forehead, large well-shaped nose, firm chin and clear calm eye evidenced his common sense, his conscientiousness and his uncompromising adherence to principle. His customs declarations were complete to the smallest item, his income-tax returns models of self-sacrifice, he was patriotic and civic, he belonged to the Welfare League and the Citizens' Union, and—I hesitate to confess it—he subscribed to the annual deficit of the Society for the Suppression of Sin. On the face of it, he was the kind of man the district attorney tries to select as foreman of a jury when he has to prosecute a woman who had kidnaped her own child out of a foundling asylum.
The heelers and hangers-on of the criminal courts would have described him as a highbrow and as a holier-than-thou; perhaps he might in a moment of jocularity have even so described himself—for he had his human—perhaps I should have said, his weaker—side. Surely he seemed human enough when he kissed Eleanor good-by at the door of their country place on the Sound the morning he had been subpoenaed to serve as a juryman in Part Five of the General Sessions. He had planned to take a week's holiday that spring, and he had gone to infinite trouble to arrange his business in order to have it, for they had become engaged eleven years before at the moment when the apple blossoms and the dogwoods were at the height of their glory, even as they were now.
When, however, he found the brown subpoena at his office directing him to present himself for service the following Monday he simply gave a half sigh, half grunt of disgust, and let the longed-for vacation go; for one of his pet theories was that the jury system was the chief bulwark of the Constitution, the cornerstone of liberty. Had he only been disingenuous enough he need never have served on any jury, for no lawyer for the defense hearing him enlarge on what he considered the duties of a juryman to be, would ever have allowed him in the box. But when other chaps on the panel presented their excuses to the judge and managed to persuade him of the imperative needs of family or business, and slipped—grinning discreetly—out of the court room, he merely inaudibly called them welshers and pikers. No, he regarded jury service as a duty and a privilege, one not to be lightly avoided—the one common garden governmental function in which Uncle Sam expected every citizen to do his duty.
"I won't let any of the rogues get by me!" he shouted gaily to his wife over the back of the motor. "And anyhow I shan't be locked up all night. There aren't any murder cases on the calendar. I'll be out on the five-fifteen as usual."
Alas, poor Bently! Alas for human frailty and all those splendid visions in which he pictured himself as the anchor of the ship of justice, a prop and stay of the structure of democracy.
His train was a trifle late and the roll of the jury had already been called, and the perennial excuses heard, when he entered the court room; but the clerk, who knew him, nodded in a welcoming manner, checked him off as present and dropped his name card in the revolving wheel. It was a well-known scene to Bently, a veteran of fifteen years' service. Even the actors were familiar friends—the pink-faced judge with his snow-white whiskers, who at times suggested to Bently an octogenarian angel, and, at others, a certain ancient baboon once observed in the Primates cage at the Bronz Zoo; the harried, anxious little clerk with his paradoxically grandiloquent intonation; the comedy assistant district attorney with his wheezy voice emanating from a Falstaffian body, who suffered from a soporific malady and was accustomed to open a case and then let it take care of itself while he slumbered audibly beneath the dais; even Ephraim Tutt, the gaunt, benignly whimsical-looking attorney, in his rusty-black frock coat and loose-hanging tie; his rotund partner, whose birdlike briskness and fat paunch inevitably brought to mind a distended robin in specs; and the dégagé Bonnie Doon in his cut-in-at-the-waist checked suit—he knew them all of old.
"Well, call your first case, Mister District Attorney!" directed the judge, nodding encouragingly at Bently, well knowing that in him he had a staunch upholder of the law-as-it-is, who could be depended upon to bolster up his weaker or more sentimental brother talesmen into the proper convicting attitude of mind.
Then—as per the schedule in force for at least an epoch—good-natured, pot-bellied Tom Hingman, the oldest A.D.A. in the office, rose heavily, fumbled with his stubby fingers among the blue indictments on the table, drew one forth, panted a few times, gasped out "People against Daniel Lowry," and looked round in a pseudo-helpless way as if not knowing exactly what to do.
There was a slight stir, and from the back of the court room came forward a funny little bow-legged old man, carrying in both hands a funny little flat-topped derby hat, and took his seat timidly at the bar of justice beside Mr. Tutt, who smiled down at him affectionately and put his arm about the threadbare shoulders as if to protect him from the evils of the world. They made a quaint and far from unpleasing picture, thought Bently Gibson, the ideal juror, and he wondered what the poor old devil could be up for.
A jury was impaneled, Bently among them; the balance of the panel was excused until two o'clock; the court room was cleared of loafers; the judge perused the indictment with a practised eye; Tom Hingman rose again, wheezed and grinned at the embattled jury; and the mill of justice began to grind.
Now the mill of justice, at least in the General Sessions of New York County, grinds exceeding fine, so far as the number of convictions is concerned. Of those brought to the bar for trial few escape; for modern talesmen, being hard-headed men, regard the whole thing as a matter of business and try to get through with it as quickly and as efficiently as possible. The bombastic spread-eagle orator, the grandiloquent gas bag, the highfaluting stump speaker gain few verdicts and win small applause except from their clients. And district attorneys who ape the bloodhound in their mien and tactics win scant approval and less acquiescence from the bored gentlemen who are forced to listen to them. Nowadays—whatever may have been the case two generations ago—each side briefly states its claims and tries to win on points.
People were apt to wonder why each succeeding administration inevitably retained stuffy old Tom Hingman at seventy-five hundred dollars a year to handle the calendar in Part Five. Yet those on the inside knew why very well. It was because Tom long ago, in his prehistoric youth, had learned that the way to secure verdicts was to appear not to care a tinker's dam whether the jury found the defendant guilty or not. He pretended never to know anything about any case in advance, to be in complete ignorance as to who the witnesses might be and to what they were going to testify, and to be terribly sorry to have to prosecute the unfortunate at the bar, though he wasn't to blame for that any more than the jury were for having to find him guilty if proven to be so, which, it seemed to him, he had been clearly proven to be. I say Tom pretended all this, yet it was more than half true, for Tom was a kind-hearted old bird. But the point was that, whether true or not, it got convictions. The jury sucking it all up in its entirety felt sorrier for the simple-minded old softy of a Tom, which they believed him to be, than they did for the defendant, who they concluded was a good deal cleverer than the assistant district attorney.
In a word, it put them on their honor as public officers not to let the administration of justice suffer merely because the A.D.A. was too old and easy-going and generally slab-sided to be really on his job. Thus, they became prosecuting attorneys themselves—in all, thirteen to one. So Tom, having thus delegated his functions to the jury, calmly left it all to them and went to sleep, which was the best thing that he did. Worth seventy-five hundred a year? Rather, seventy-five thousand!
"Gentlemen of the jury," he began haltingly, "this defendant seems to have been indicted for the crime of practising medicine without a license—a misdemeanor. I don't see exactly how he gets into this court, which is supposed to try only felony cases, but I assume my old friend Tutt made a motion to transfer the case from the Special to the General Sessions on the theory that he would stand more chance with a jury than three—er—hardened judges. Well, maybe he will—I don't know! I gather from the papers that Mr. Lowry here, after holding himself out to be a properly licensed veterinary, treated a horse belonging to the complainant. It is not a very serious offense, and you and I have no great interest in the case, but of course the public has got to be protected from charlatans, and the only way to do it is to brand as guilty those who pretend they are duly licensed to practise medicine when they are not. If you had a sick baby, Mr. Foreman, and you saw a sign 'A.S. Smith, M.D., Children's Specialist,' you would want to be sure you were not going to hire a plumber, eh? You see! That's all there is to this case!"
"All there is to this case!" murmured Mr. Tutt audibly, raising his eyes ceilingward.
"Step up here, Mr. Brown."
Mr. Brown, the supposed Doctor Simon whose horse Danny had attended, seated himself complacently in the witness chair and bowed to the jury in a professional manner. He had, he told them, been a detective employed by the state board of health for over sixteen years. It was his duty to go round and arrest people who pretended to be licensed practitioners of medicine and assumed to doctor other people and animals. There were a lot of 'em, too; the jury would be surprised—
Mr. Tutt objected to their surprise and it was stricken out by order of the court.
"I'll strike out 'and there are a lot of 'em, too,' if you say so, Mr. Tutt," offered the court, smiling, but Mr. Tutt shook his head.
"No; let it stand!" said he significantly. "Let it stand!"
"Well, anyway," continued Mr. Brown, "this here defendant Lowry, as he calls himself, is well known—"
Objected to and struck out.
"Well, this here defendant makes a practise—"
"Strike it out! What did he do?" snapped the octogenarian baboon on the bench.
"I'm tellin' you, judge," protested Brown vigorously. "This here defendant—"
"You've said that three times!" retorted the baboon. "Get along, can't you? What did he do?"
"He treated my horse for spavin here in New York at 500 West 24th Street at my request on the twentieth of last March and I paid him five dollars. He said he was a licensed veterinary and he gave me his card. Here it is."
"Well, why didn't you say so before?" remarked the judge more amiably. "Let me see the card. All right! Anything more, Mr. Hingman?"
But Mr. Hingman had long before this subsided into his chair and was emitting sounds like those from a saxophone.
"That is plain, simple testimony, Mr. Tutt," remarked the judge. "Go ahead and cross-examine."
Ephraim Tutt slowly unjointed himself, the quintessence of affability, though Mr. Brown clearly held him under suspicion.
"How long have you earned your living, my dear sir, by going round arresting people?"
"Under what name—your own?"
"I use any name I feel like."
Mr. Tutt nodded appreciatively.
"Let us see, then. You go about pretending to be somebody you are not?"
"Put it that way, if you choose."
"And pretending to be what you are not?"
Mr. Brown eyed Mr. Tutt savagely. "What do you mean by that?"
"Didn't you tell this old gentleman beside me that you were a doctor of medicine but not a doctor of veterinary medicine—and beg him to treat your horse for that reason?"
"Sure I did. Certainly."
"Well, are you a licensed medical practitioner?"
"Look here! What's that got to do with it?" snarled Mr. Brown, looking about for aid from the sleeping Hingman.
"The question is a proper one. Answer it," directed the judge.
"No, I'm not a licensed doctor."
"Well, didn't you treat Mr. Lowry?"
The jury by this time had caught the drift of the examination and were listening with intent appreciation.
Mr. Brown leaned forward, a sickening smile of sneering superiority curling about his yellow molars.
"Ah!" he cried. "That's where I have you, sir! I only pretended to treat him. I didn't really. I only scribbled something on a piece of paper."
"You knew he couldn't read, of course?"
Mr. Tutt turned to the uplifted faces of the twelve. "So," he retorted, pursing his wrinkled lips and placing his fingers together in that attitude of piety which we frequently observe upon effigies of defunct ecclesiastics—"so you did the very thing for which you threw this old man at my side into jail—and for which he is now on trial! You lied to him about being a doctor! You deceived him about giving him the medical treatment he so much needed! And you arrested him after he had worked for hours to relieve the sufferings of a sick animal. By the way, it was a sick animal, wasn't it?"
"The sickest I could find," replied Brown airily.
"And he did relieve its sufferings, did he not?" continued Mr. Tutt gently.
"Very likely. I wasn't particularly interested in that end of it."
Mr. Tutt's meager frame seemed suddenly to expand until he hung over the witness chair like the genii who mushroomed so unexpectedly out of the fisherman's bottle in the Arabian Nights Entertainments.
"You were not interested in ministering to a poor horse, so sick it could hardly stand! You were only interested in imprisoning and depriving of his only form of livelihood this old man whose heart was not hardened like yours! May I ask at whose instance you went and lied to him?"
"Mr. Tutt! Mr. Tutt!" interjected the octogenarian angel. "Your examination is exceeding the bounds of judicial propriety."
Ephraim Tutt bowed low.
"A thousand pardons, Your Honor! My emotions swept me away! I most humbly apologize! But when this witness so unblushingly confesses how he played the scoundrel's part, aged case hardened practitioner as I am, my heart cries out against such infamous treachery—"
Bang! went the judge's gavel.
"You are only making it worse!" declared the court severely. "Proceed with your examination."
"Very well, Your Honor!" replied Mr. Tutt, his lips trembling with well-simulated indignation. "Now, sir, who instigated this miserable deception—I beg Your Honor's pardon! Who put you up to this game—I mean, this course of conduct?"
"Nobody," replied Brown in a surly tone.
"Did you ever hear of the United Association of Veterinaries of the Greater City of New York—sometimes referred to as The Horse Leeches' Union?" asked Mr. Tutt insinuatingly.
Mr. Brown hesitated.
"I've heard of some such organization," he admitted. "But I never heard it was called a Horse Leeches' Union."
"Didn't one of its officers come to you and say that unless something was done to reduce competition they'd have to go out of business—owing to the decrease in horses in New York?"
"I don't remember," answered Brown slowly. "One of 'em may have said something of the sort to me. But that's my business!"
"Yes!" roared Mr. Tutt suddenly. "It's your business to pretend you're a doctor when you're not, and you walk the streets a free man; and you want to send my client to Sing Sing for the same offense! That is all! I am done with you! Get down off the stand! Do not let me detain you from the practise of your unlicensed profession!"
"Mr. Tutt!" again admonished His Honor as the lawyer threw himself angrily into his chair. "This really won't do at all!"
"I beg Your Honor's pardon—a thousand times!" said Mr. Tutt in tones so humble and sincere that he almost made the angel-faced baboon believe him.
I should like to go on and describe the whole course of Danny Lowry's trial item by item, witness by witness, and tell what Mr. Tutt did to each. But I can't; there isn't room. I can only dwell upon the tactics of Mr. Tutt long enough to state that at the conclusion of the case against Daniel Lowry, wherein it was clearly, definitely and convincingly established that Danny had been practising veterinary medicine for a long time without the faintest legal right, the lawyer rose and declared emphatically to the jury that his client was absolutely, totally and unquestionably innocent, as they would see by giving proper attention to the evidence he would produce—so that he would not take up any more of their valuable time in talk.
And having made this opening statement with all the earnestness and solemnity of which he was capable Mr. Tutt called to prove the defendant's good reputation, first, Father Plunkett, the priest to whom Danny made his monthly confession and who told the jury that he knew no better man in all his parish; second, Mulqueen, who described Danny's love of horses, his knowledge of them, his mysterious intuition concerning their hidden ailments, which, being as they could not speak, it was given to few to know, and how night after night he would sit up with a sick or dying animal to relieve its pain without thought of himself or of any earthly reward; then, man after man and woman after woman from the neighborhood of West Twenty-third Street who gave Danny the best of characters, including policemen, firemen, delicatessens, hotel keepers, and Salvatore, the proprietor of the night lunch frequented by Mr. Tutt.
And last of all little Katie Lowry. It was she who found the crack in Bently's moral armor. For Eleanor his wife was of Irish ancestry and of the colleen type, like Katie; and Bently had always played up to her Irish side when courting her as a humorous short cut to a quasi familiarity, for you may call a girl "acushla" and "Ellin darlint" when otherwise you are fully aware, but for the Irish of it, she would have to be referred to as Miss Dodworth. And this wisp of a girl with her big black-fringed gray eyes peering up and out over her gray knitted shawl, but for the holes in her white stockings and the fact that the alabaster of her neck was a shade off color—faith, an' it might have been Eleanor hersilf! It is obvious that any juryman who allows his mind to be influenced by the mere fact that one of the witnesses for the defense is a pretty woman—even if she recalls to him his wife or sweet-heart—is a poor weakling, a silly ass.
Otherwise all a crook need do would be to hire a half dozen of Ziegfeld's midnight beauties to testify for him by day; and the slender darlings could work in double shifts and be whisked in auto busses from roof garden to court room. Bently was no weakling, but Katie—perhaps because it was the moment of apple blossoms and dogwood and the anniversary of his wedding day—Katie got him. Kathleen Mavourneen, and all! No man could have brought up a fatherless and motherless girl like that and keep her so simple, frank and innocent unless there was something fine about him. You see, highbrows and lowbrows are all alike below the collar bone.
And here's the catch in it. Bently had told Eleanor that very morning that none of the rogues would get by him, and he had meant it. None of them ever had—in all his years of jury service. Time and again he had been the one stubborn man to hang out all night for a verdict of guilty against eleven outraged and indignant fellow talesmen who wanted to acquit. But quite unconsciously he found himself saying that this old fellow at the bar wasn't a rogue at all. If he was a criminal he was so at most only in a Pickwickian sense. All the previous cases in which he had sat had been for murder or arson, robbery or theft, burglary, blackmail or some other outrageous offense against common morals or decency. But here was a man who had never done anything but good in his life, and was at the bar of justice charged with crime merely because some cold-blooded mercenaries thought he was interfering with their business! Bently was in a recalcitrant and indignant frame of mind against the prosecution long before the defense began. The whole proceeding seemed to him an outrageous farce. That wasn't what they were there for at all! So swiftly does the acid of sympathy corrode and weaken the stoutest conscience, the most logical of minds!
Mr. Tutt did not put Danny on the stand—why should he?—and the octogenarian judge declared the case closed on both sides. Then everybody made a speech, in which he told the jury to disregard everything everybody else said.
Mr. Tutt spoke first. He thanked the gaping jury for their attention and courtesy and kindness and intelligence and for taking the trouble to listen to him. He told them what a wise and upright judge the old baboon on the bench was; and what a sterling, honest, kindly chap the fat assistant district attorney really was. They were the highest type of public officers—but paid—he accentuated the "paid" very slightly—to do their duty as they interpreted it. Now, Mr. Hingman would have to claim that Danny Lowry was a criminal; whereas, thank heaven! they all of them—every man of them—knew he was nothing of the kind! Criminal—that old man? Mr. Tutt raised his eyes and his arms to heaven in protest. Why, one look at him would create a reasonable doubt! But the case against him failed absolutely for the following reasons:
Daniel Lowry had not practised veterinary medicine without a license in taking care of Brown's sick horse, because he had not claimed to be a veterinary; he had not been paid for his services; and because all he had done was to help a suffering animal, as any man who called himself a Christian and had a heart would have done, and as it was his duty to do. Who "shall have an ass or an ox fallen into a pit"? and so on. It was in Holy Writ! The highest law!
There was no evidence against Danny at all, because Brown was an accomplice and his testimony was not corroborated; at any rate he was a procurer and instigator of crime, an agent provocateur, a despicable liar, hypocrite and violator of the very law he was paid to uphold; and as he had held himself out as a physician to Danny Lowry everything that passed between them was privileged as a confidential communication and must be disregarded as if it had never been said.
Daniel Lowry was a man of the highest reputation, of such character that he never had been guilty of an unkind or selfish act in his entire life, much less commit crime; which alone, taken by itself, was quite enough to interject and raise a reasonable doubt—upon which they must acquit.
Then Tom Hingman got up and grimaced and said he had known Mr. Tutt all his professional life and he was a peach, but they mustn't believe what he said or let him put anythin' over on 'em, for he was pretty slick even if he was a fine old feller. Now the plain fact was, as they all knew perfectly well, that this old boy had been caught with the goods. It might be tough luck, but the law was the law and they were all there to enforce it—much as they hated to do so—and there was nothing to it but to convict and let the judge deal with the defendant with that mercy and leniency and forbearance for which he was so justly famous. He panted a few times and sat down.
Then the judge took his crack. He told the jury, in so many words, to pay no attention to either the A.D.A. or to Mr. Tutt, and to listen only to him, because he was the whole thing. The question was: Had the defendant assumed to give medical treatment to Brown's horse, for any kind of valuable consideration? In determining this they should consider all the evidence, including the fact that the prisoner had claimed to be a veterinary, had been paid for treating Brown's horse as such, had pleaded guilty in the police court, and that none of the alleged facts upon which the charge was based had been denied before them in present trial.
As he said this the pink-and-white baboon looked at them steadily and significantly for several seconds over his eyeglasses. They should consider the business card which the defendant had given to the complaining witness and in which he held himself out as a veterinary. The testimony of the complainant stood uncontradicted. The complainant was not an accomplice and his testimony did not have to be corroborated. A decoy wasn't an accomplice. That was the law. Neither was what had passed between the complainant and defendant privileged as a confidential communication, because the complainant was not a physician. That was all there was to that!
They should ask themselves what in fact the defendant had done if not practise veterinary medicine without a license? It was not controverted but that he had said he was a veterinary, administered medicine to a sick horse, offered to compound payment for medical treatment for himself, finally taken five dollars, and admitted his guilt before the magistrate. If they had any reasonable doubt—and such a doubt might of course be raised by evidence of previous good character—they would of course give it to the defendant and acquit him, but such a doubt must be no mere whim, guess or conjecture that the defendant might not after all be guilty even if the evidence seemed so to demonstrate; it must be a substantial doubt based on the evidence and such a one as would influence them in the important matters of their own daily, domestic and business lives. That was all there was to it! Let them take the case and decide it! It should not take 'em very long. The question of how the defendant should be punished, if at all, did not concern them. He would take care of that. They might safely leave it to him! He bowed and turned to his papers. The jury gathered up their coats and straggled after Cap Phelan out of the court room.
"Y'd be all right, counselor," remarked the second court officer, suspending momentarily the delights of mastication, "if 'twasn't fer that son of a gun on the back row, Gibson! He's a bad one! I've known him for years! He'd convict his own mother of petit larceny!"
"So? So?" murmured Mr. Tutt, producing a leather case the size of a doctor's instrument bag from his inside pocket and removing a couple of stogies therefrom. "Well, it's too late now to do anything about it. I'm going out to stretch my legs and have a smoke."
Mr. Tutt loitered into the corridor, stepped unostentatiously behind a pillar, slipped into the adjoining court room—which happened to be empty—and thence back into the passage upon which the jury rooms opened. He found Cap Phelan standing before one of these with a finger to his lips.
"Pst! They're at it a-ready!" whispered Phelan as Mr. Tutt slipped him a stogy.
The transom above was open and through it drifted out a faint blue cloud. A great hubbub was going on inside. Suddenly above it a harsh voice rang out: "That ain't a reasonable doubt! I tell you, that ain't a reasonable doubt! Aw, you give me a pain, you do!"
"I've got 'em!" grinned Mr. Tutt contentedly. "Phelan, bring me a chair!"
Now right here is where this story begins—only here.
"Vell, gen'l'muns," said the foreman, who was a glove merchant and looked like Sam Bernard, as they took their seats round the battered oak table. "Vot you say? Shall we disguss or take a vote?"
"Let's take a smoke!" amended a real-estate broker. "No use goin' back right off and getting stuck onto another damn case! Where's that cuspidor?"
"Speakin' of veterinaries," chuckled a man with three rolls of fat on his neck, "did y'ever hear the story of the negro and the mule with the cough?"
None of them apparently ever had, so the stout brother told all about how—ha, ha!—the mule coughed first.
"I remember that story now," remarked one of the jury reminiscently while the fat man glared at him. "If I had my way all these veterinaries would be in jail! They're a dangerous lot. I had a second cousin once who'd paid a hundred dollars—a hundred dollars!—for a horse and it got the colic. So he called in a veterinary and it died."
"Well, the vet didn't kill it, did he?" inquired the fat man scornfully.
"My cousin always claimed he did!" replied the other solemnly. "There was some mistake about what he gave the horse—wood alcohol or something—I forget what it was. Anyhow, I think they're all a dangerous lot. They all ought to be locked up. I move to convict!"
"But neither of these fellers is a veterinary!" retorted a sad-looking gentleman in black. "The charge is that one of 'em pretended to be—but wasn't. So if he wasn't how could you convict him of being a veterinary?"
"Well, if he had been I'd have convicted him all right," asserted the first. "They're dangerous—like all these clairvoyants and soothsayers."
"Will somebody tell me?" requested a tall man who had been looking intently out of the window, "whether a veterinary is the same thing as a veterinarian? I always supposed a veterinarian was a sort of religion, like a Unitarian. Veteran means old—I thought it was some old form of religion; or a feller who didn't believe in eatin' meat."
"Lead that nut out!" shouted somebody. "Let's get busy. The question is: Did this old guy pretend he was a horse doctor when he wasn't? I say he did."
"Let's take a vote," suggested Bently.
"Vell, let's understand vat we're doin'," admonished the foreman. "Do you gen'l'muns all understand that we're tryin' to convict this feller for doctoring a horse without a prescription?"
"You mean a license, don't you?" inquired Bently.
"Sure—a license. All right! Let's get a vote."
The first ballot resulted in seven for acquittal, four for conviction, and one blank—Bently's.
"I don't know who the fellers are that voted for acquittal!" suddenly announced a juror with a red face. "But I know this Brown personally, and he's all right. You can rely on him absolutely. He goes to the same place as me in the summer—Cottage Point. If any of you gentlemen want a good quiet place—"
"Any mosquitoes?" inquired an unknown irreverently.
"No more'n anywheres else near New York."
They took another ballot and found that the juryman who knew Brown had brought over two others to conviction, so that the jury was now evenly divided, Bently voting irresponsibly for acquittal.
"Look here!" proposed the man in black. "Let's argue this out. Suppose I put the various propositions and you vote on 'em each separately."
"Shoot ahead!" adjured somebody.
"Now, first, all who think this defendant claimed to be a veterinary say aye."
"Wait a minute!" interposed the tall man, who was still standing by the window. "Maybe I am a nut. But I wish someone would explain to me which is the defender. I thought Mr. Tutt was the defender."
"Oh, my Lord!" groaned a flabby salesman in a pink tie. "Defend-ant—a-n-t—remember your ant! He's the man we're trying! The other one is the complainant!"
"The only one that had any complaint was the horse", protested the tall man. "But I understand now—we're tryin' the defendant. I've never served on a jury before. Now, what's the question?"
"Did the defendant—ant—claim to be a licensed veterinary—when he wasn't?"
"Now wait a second," objected the tall man again. "I want to get this straight. Is it the point that if this old man pretended he was a horse doctor when he wasn't he has to go to jail?"
"But the other man pretended he was a doctor."
"But he was trying to trick the defendant."
"But the first feller wasn't a doctor any more than the other feller. Why not convict the first feller?"
There was a chorus of groans from about the table.
"You ought not to be here at all!" remarked the salesman acidly. "You're simple-minded, you are! You keep still now and vote with the majority, or we'll tell the judge on you!"
The tall man subsided.
"Vell," suddenly interjected the foreman, "he admitted he was guilty in the bolice gourt."
"Sure!" "That's so!" "Pass the box again!" came from all hands.
When the foreman had counted the ballots Bently was horrified to discover that ten jurors now thought the defendant guilty, and only two believed him innocent.
"May I suggest," said he earnestly, "that perhaps this old man did not understand in the magistrate's court the elements that went to make up the offense charged against him? He merely stood ready to admit freely whatever the facts were. His opinion on the purely legal question of his own guilt was not of much value. Anyhow, his subsequent plea of not guilty to the indictment neutralizes the significance of the original plea."
There was a murmur of surprise and admiration from Bently's companions.
"That's true, too!" declared the salesman. "I never thought of that! You're some talker—you are, I must say! But how about that business card?"
"It seems to me," argued Bently, "that the card plays no particular part in this case. In the first place the question before us is not whether Lowry ever did—in the past—hold himself out as a veterinary, but whether he did so on the day alleged in the indictment. The fact that he gave the detective a card which he had had printed perhaps years before only tends to show that at some time or other he may have pretended to be a licensed veterinary. And you will recall, gentlemen, that the testimony is merely that he said to the detective in reference to the card: 'That is my name.' He did not say anything to him about being a veterinary."
This somewhat disingenuous argument created a profound impression.
"Say, now you've said something!" declared the salesman. "You'd oughta been a lawyer yourself. Let's take another vote."
Curiously enough Bently's argument seemed to have had a revolutionary effect, for the jury now stood ten to two for acquittal. He began to feel encouraged. If ever there was a case— Then he heard an altercation going on fiercely between the salesman and Brown's summer friend, the latter insisting loudly that the detective was a perfect gentleman and entirely all right.
"Nobody questions Mr. Brown's entire honesty," interposed Bently hastily, in a friendly way. "The question before us is the sufficiency of the evidence. Upon this, it seems to me, there is what might fairly be called a reasonable doubt."
"And you have to give that to the defendant—it's the law!" shouted the salesman in fury.
It was at this point that Mr. Tutt and Phelan had taken up their positions outside the door, and the friend of Brown had told the salesman that he gave him a pain; that his doubt wasn't a reasonable doubt.
"Gentlemen! Gentlemen!" protested Bently. "Let us discuss this matter calmly."
"But I'm a reasonable man!" shouted the salesman. "And so, if I have any doubt, my doubt is bound to be reasonable."
"You—a reasonable man?" sneered Brown's friend. "You're nothin' but a damn fool!"
"I am, am I?" yelled the salesman, starting to remove his coat. "I'll show you—"
"Oh, cut it out!" expostulated the fat man complacently. "Settle all that afterward! We ain't interested."
"Vell, take annoder vote," mildly suggested the foreman.
This time it stood eleven to one for acquittal. All concentrated upon the friend of Brown, over whose face had settled a look of grim determination. But a similar expression occupied the features of Mr. Bently Gibson, erstwhile the exponent of the-law-as-it-is, the bulwark of the jury system, now adrift upon the ship of justice, blindly determined that no matter what—law or no law, principles or no principles—that old man was going to be acquitted.
"My friend," he remarked solemnly, taking the floor, "of course you want to do justice in this case. We have nothing against Mr. Brown at all. He is doubtless a very honest and efficient officer. But surely the good character of this defendant may well create a reasonable doubt—and the rest of us feel that it does."
"Sure! 'Course it does!" came from all sides. Mr. Brown's red-faced friend having escaped the salesman's wrath began to show somewhat less aggressiveness.
"I don't care a damn about Brown!" he assured them. "He can go to hell for all of me! But I don't see how you can acquit this feller when the evidence is uncontradicted that he told Brown he was a veterinary and treated his horse. I'd be violating my oath if I voted for acquittal after that testimony. I ain't going to commit perjury for nobody! I'd like to oblige you gentlemen, too, and vote your way, but I just can't with that evidence stickin' in my crop. If it wasn't for that—"
"He could 'a' treated the horse without doing it as a veterinary, just as Mr. Tutt said!" interjected the tall man.
"Good for you!" said the salesman, fully restored to equanimity. "You're gettin' intelligent. Serve on a few more juries—"
"But he said he was a veterinary," insisted Brown's friend. "How could he have treated the horse as anything else but as a veterinary when he said he was treating him as a veterinary?"
"Maybe he just thought he was doing it as a veterinary", commented the gloom in black. "He may have tried to do it as a veterinary and failed. In that case he didn't do it as a veterinary but just as a plain man. Get me?"
"No, I don't!" snorted the red-faced one. "That's all bull. He said he was a vet and he treated the horse as a vet and got five dollars for it."
"How do you know he did?" unexpectedly asked Bently.
"Because he said so himself. That was part of the conversation between Brown and Lowry," declared the obstinate summer friend of Brown. "If it wasn't for that—"
"If it wasn't for that you'd acquit?" demanded Bently sharply.
"Yes. Sure I would!"
"Then I say you should disregard all that conversation because it was a privileged communication between a doctor—Brown—and his patient—Lowry!" declared Bently heatedly.
"But the judge said it wasn't privileged!" retorted the other.
"Mr. Tutt said it was, though," shot back the salesman.
"Well, the judge said—"
"Let's go in and find out who said what," proposed the tall man. "I'd like to know myself. I don't remember who said anything any longer."
So they filed back into court.
"Your Honor," stuttered the foreman, licking his lips in embarrassment, "some of the gen'l'muns vant to inguire veder the gonversation between Mr. Brown and Mr. Lowry is privileged or veder we haf to belief it?"
The judge, who had evidently expected that the return of the jury was for the purpose of declaring the defendant guilty, scowled.
"The rule is," said he wearily, "that conversations between a doctor and his patient are privileged and cannot be testified to without the consent of the patient. If Brown had been a doctor—which he is not—it is possible that I might have sustained Mr. Tutt's objection on the ground and struck out the conversation. But he only pretended to be a doctor, and no privilege exists under those circumstances even if in some cases it seems to work a hardship upon the one who is deceived. The conversation in this instance is part of the record. You may retire."
But Bently, with a light upon his countenance such as theretofore had ne'er been seen on sea or land, suddenly held up his hand.
"One question, Your Honor. If Brown had been a doctor you would have excluded the testimony?"
The aged angel raised his eyebrows deprecatingly.
"Perhaps; I might have considered the suggestion."
"Thank you," said Bently, and they all traipsed out.
"That cooks him!" whispered Phelan to Mr. Tutt at the keyhole.
"Wait and see! Wait and see!" muttered the lawyer. "We're not dead yet."
Once back in their room the jury took another vote. Eleven to one again. Then Bently rose.
"Gentlemen," he cried, "I think I have the key to this case."
They all gazed at him expectantly.
"We are obliged by law to give every reasonable doubt to the defendant. Now the only obstacle to our acquitting this poor old man is the fact that there is in evidence a conversation in which Lowry is claimed to have said that he was a veterinary and had been acting as such all his life. Mr. Tutt says that that conversation is privileged and should be disregarded because it was a confidential communication between a doctor and a patient. The judge says it is not privileged for the reason that Mr. Brown was not in fact a doctor—but he says further that if Brown were a doctor we should have to disregard that part of the evidence—which would, as we all agree, leave us free to acquit.
"Now then, how do we know Brown is not a doctor? He says he isn't; but he lied about everything else he told Lowry, and he may have been lying about that too. And if he lied to Lowry he may have been lying to us here to-day. I say that there is a reasonable doubt right there as to whether Brown is really a doctor or not. Such a doubt belongs to the defendant. He is entitled to it and it is our duty to acquit him!"
"Hear! Hear!" "That's so!" "Bully for you!" "What yer got to say now, eh?" "Take a vote!" "Pass the box!" resounded through the transom amid a tremendous scuffling of feet and scraping of chairs.
"Phelan!" gasped Mr. Tutt. "Who shall ever again have the temerity to suggest that the jury system is not the greatest of our institutions?"
"Pst!" answered Cap. "Listen! Sh-h. By God! They've acquitted him!"
"So you caught the five-fifteen after all!" was Eleanor's greeting as the model juror jumped off the train. "I was terribly afraid you wouldn't! I hope you didn't let any rascal get away from you?"
"No!" He laughed as he leaped into the motor beside her. "Not a rascal! And I've got a surprise for you! I'm going to have my vacation after all!"
"Really!" she cried, delighted. "You clever boy! How did you manage it?"
"Well," he answered a little shamefacedly as he lit a cigarette, "the fact is that when the jury I was on returned their verdict this afternoon the judge said he wouldn't require our services any longer."
It was at about the same moment that two other good and true friends stood at the foot of the steps leading up to Mr. Tutt's ramshackle front door.
"Sorr!" Danny was saying in a trembling voice, the tears in his faded eyes. "Sorr! I would go to jail a hundred years and more, so I would, could I but hear again what they all said of me! Sure, I niver knew I was any account at all, at all! And them sayin' what a fine man I was, an' all! God bless ye, sorr! And whin ye stand, sorr, at the bar of heaven before God, the Judge, and the jury of all his holy angels, if there be none else to defend ye, sure old Danny Lowry'll be there to do that same."