TUT, TUT! MR. TUTT
THE BLOODHOUND
I
“Next!” The dejected file of prisoners beneath the glaring windows stiffened and limped forward. There were twelve of them—the same number as the minor prophets, the apostles, the tribes of Israel and the officers of King Solomon—a bullet-headed negro in a red sweater, charged with vivisection during a crap game, bringing up the rear. The line humped along beside the iron grating like a caterpillar, those behind butting forward those in front, turned the corner by the jury box and disgorged two prisoners before the bar of judgment. It was the first Monday in January—pleading day.
“Next!” repeated Phelan, the court captain, standing inside the rail, to McNamara, his whipper-in. “Lively now!”
McNamara turned to the head of the line.
“You two there! Step up here!”
Mr. Dougherty, the tiny, bald-headed clerk with the big mustaches that made him look like an animated mushroom, picked up the indictments on the top of the blue pile in front of him.
“Patrick Mooney and Daniel Mulligan,” he intoned as if officiating at the high altar of the cathedral, “you are jointly indicted for the crime of burglary in the third degree, grand larceny in the first degree, assault in the first degree, receiving stolen goods and carrying concealed weapons. How say you? Do you plead guilty or not guilty?”
Neither of the two made reply.
“Have you counsel?” sang Dougherty.
“Got a lawyer?” interpreted Captain Phelan.
There was a slight bustle on one of the nearer benches as a heavily built man with sideburns came forward.
“I appear for both defendants, Your Honor,” said he. “They plead not guilty. Will Your Honor set the case down for the twenty-first for trial?”
The judge nodded and made a note, and the stout lawyer turned away, about to resume his seat.
“Next!” shouted Phelan to the world at large. “Next!”
The taller of the two prisoners—a plug-ugly—wheeled from the rail and started on the return trip. The other did not stir. He was a much smaller man, hardly five feet six, and of a different make altogether. He might have been your plumber, or electrician, or the grocer’s clerk who takes your order at the side door; and though his demeanor was more timid than any of these it was, nevertheless, defiant—some spark of courage, or at least resolution, still surviving after his year in Sing Sing.
“Judge—Your Honor,” he said huskily, twisting his cap in his hands—“this man don’t represent me. I haven’t got any lawyer.”
Old Judge Watkins peered down from the dais at him over his reading glasses. He then looked after the retreating attorney.
“How’s this, Mr. Hogan?” he asked. “I thought you said that you appeared for both defendants.”
The attorney paused with a half smile.
“So I did, judge.”
“The prisoner Mooney says you do not represent him.”
“They’re indicted together—for the same offense, committed at the same time. The defendant Mulligan’s sister came to my office yesterday and retained me for both of ’em.”
“Judge—Your Honor,” repeated the man at the bar of justice stubbornly, “I don’t know this lawyer and I don’t know this man I’m indicted with. I never saw him before that night. I’m innocent, and I want a separate trial with my own lawyer.”
Captain Phelan hoisted a blue shoulder and grinned at Mr. Dougherty. It was the old game—the ancient grandstand play—of seizing this opportunity to make a vigorous denial of guilt in the presence of the panel of jurors newly assembled in court for a month’s service, in the hope that by so doing one might avoid going on the stand later at one’s trial, and so escape the disagreeable necessity of submitting to cross-examination upon one’s record and earlier history.
“I only got out of prison Saturday, Your Honor,” continued the prisoner Mooney, “after serving fourteen months—with an allowance off for good behavior. I’m in no hurry to get back either, believe me! Sunday night I was walking home, and this here defendant, Mulligan, came along with a bag and began talking to me. Just then a bull jumped out and drew his gun on us. He rapped for his side partner and they yanked us up to headquarters, and when they found out I’d been in stir they said I was due for another bit. Clubbed me, into the bargain! See that lump on my forehead? Then the first cop said he found a gun on me. It’s a plant, judge, I didn’t have one. What would I want with a gun, judge? What I want is a chance to earn an honest living!”
He made his plea doggedly, yet with obvious hopelessness, for he no longer had any faith in “the course of justice.”
Judge Watkins, sent down from Utica by his friend the governor to hold a special criminal trial term and so relieve the congestion in the Tombs Prison, beckoned to Mr. Dougherty, who elevated himself upon his glossy little tiptoes and held a whispered colloquy with His Honor across the edge of the dais. Behind the prisoner on the first row of benches a homely girl in a gray shawl, her broad honest face covered with a screen of freckles, leaned forward hungrily. She had waited for Mooney over a year; she would wait ten more if need be, or until they carried her out in a box feet first. She also had lost all faith in the supposed equality of the law. For Paddy had been railroaded because he had swatted Micky Morrison over in Fagan’s saloon, Micky being heir apparent of the lower East Side, a friend of Bloodhound O’Brien, the assistant district attorney, and honorary colonel of the Pearl Button Kids; while Paddy Mooney was a stationary fireman in an office building, without political affiliations, and not even a member of the union. This he now perceived to have been a grievous lapse, due, however, only to the reason that they had sought to bully him into it, and he wouldn’t be bullied.
Judge Watkins saw the tense look on the girl’s face, and guessed its significance. For an upstate judge he knew a good deal about the Big Burg. There are some people who suppose that after Jerome cleaned up the Red Light District and jailed a few policemen New York became whiter than snow, and has stayed so ever since! Yet wasn’t Boss Tweed nearly sent up after the greatest political house-cleaning ever staged by old Father Knickerbocker? Weren’t the Tammany Tiger’s ribs clearly visible for years? And would it not have died of starvation had it not been for the defeat of John Purroy Mitchel as recently as 1917? Has it changed its stripes? And after all, is a Republican cop—if there be such a thing—any different from a Tammany cop? Is not the nature of cops generic? Just as the nature of prosecutors is generic?
It is said somewhere by Frazer, in “The Golden Bough,” that mankind as a whole resembles the ocean, and that civilization, like the wind of heaven, merely ruffles the surface, leaving the depths untouched. So it is with municipal reforms. You can have torchlight processions galore and political-fusion love feasts and spasms of civic virtue, but cops will remain cops, and crooks will remain crooks, and out of the enmity between their respective seeds will spring all the evils of any sort of warfare—brutality and malign trickery and schrecklichkeit. This hateful contest between human rats and human ferrets rarely fails to contaminate or at any rate to harden most of those who take part in it. For the rat is fighting for life and the ferret is fighting for his living.
The danger to the young lawyer who out of a desire for public service seeks an appointment as an assistant district attorney, is that in the passion of the chase the conviction and punishment of some—to him—obviously guilty criminal may seem more important at the moment than the strict preservation of his own integrity or the unwavering maintenance of the principles of justice. Shall the murderer go free simply because some foolish law prohibits hearsay evidence or the proving of more than one offense at the same time? Should we not praise, rather than condemn, the young enthusiast who is willing to sacrifice his virtue, his ideals, his very soul in order that some ruffian may hang? Should we not pay tribute to one who is willing to be damned for the glory of God?
Judge Watkins looked searchingly around the court room until his eye came to rest in a far corner.
“I will assign Mr. Ephraim Tutt to the case,” said he, and at the summons the old lawyer arose from his seat and, stovepipe hat in hand, approached the bar.
At that moment the door was pushed violently open and Billy the Bloodhound, surrounded by his minions, entered. Ancient enemy faced ancient enemy.
II
It must not be presumed from the foregoing philosophic disquisition that we intend to lay any floral offering upon the bier of William Francis O’Brien’s moral reputation. Far from it! We desire to provide for him no apology, extenuation or excuse; and the reader may perhaps recall that he has hitherto at sundry times been described and figured in other pages as “the yellow dog of the district attorney’s office,” for that was exactly what he was—a legal bulldog or human bloodhound, as you may prefer. One who viewed it as his duty to his God, his country, and himself to convict by any means at his command every hapless defendant brought to the bar of justice.
Through his pertinacity, his resourcefulness, and his lack of scruple he had achieved great notoriety as a prosecutor. Lawyers feared him, defendants shuddered at the mere thought of facing his merciless cross-examination; for he was without consideration to the former or sympathy for the latter. He had no bowels or mercies. To achieve his end he astutely made use of a veneer of apparent honesty, of naïve enthusiasm, that often made him seem to juries merely a blunt, well-meaning blunderer. Yet there was no guile of serpent he did not possess, no venom not in his teeth.
Billy the Bloodhound, as he was called, was a more prominent figure in the Criminal Courts Building than District Attorney John Henry Peckham himself, who was content to have it so, since he shared the widespread belief that there had to be a crook in every law office, whether public or private. In fact, he found O’Brien more than a mere convenience, particularly because he could always count upon him for a conviction in any difficult case. As he used to say to his confidential friends: “If the Bloodhound hasn’t got the necessary evidence—he goes and gets it!”
Hence, because O’Brien was not only an asset but a valuable political go-between, the Honorable John Henry Peckham smothered his personal dislike for the dog and encouraged it to lick his hand. He also was forced to put up with his noise, and his overbearing and swashbuckling ways. For outside the court-room—as well also, to be accurate, sometimes inside it—Billy the Bloodhound was a swaggering, blustering sort of legal bravo—wherever he went preceded, surrounded, and followed by a cohort of sycophants, clerks, process servers, and police officers on special detail, who ran his errands, carried his books, bags, and papers, bought his theatre tickets, did his telephoning, acclaimed his coming and did him lip service—much as we may imagine some Roman senator of the same type to have been accompanied by his bodyguard of lictors who shoved the crowd aside at his approach. All this to Billy the Bloodhound was as the breath of his life, and he played the part, bellowing down the corridors, shouting from the elevators, kicking his slaves in the shins and then handing them out cigars, whispering out of the corner of his mouth about “the big fellow” and “the one next,” with so effective an air of mystery that he had everybody buffaloed; and the crowd all swore among themselves and to him that he was the greatest little man on earth.
He was thickset, bullet-headed, with closely cropped reddish hair and freckly sandy skin, and his short aquiline nose and square chin would have made the features of a cigar-store Indian—alas, poor redskin, he deserves an apology!—seem filled with the milk of human kindness.
Everybody feared and kowtowed to him. People who wanted favors of Peckham went first to placate O’Brien, who was supposed to have the boss in his pocket; cops and detectives sought to have him handle their cases; judges were apt to try to conciliate him as a coming man politically, and as possibly the next district attorney. Whenever a “star case,” a cause célèbre, or any matter attracting public attention came into the office, O’Brien sent to the chief clerk for the papers and grabbed it. He had even been known to send for the papers in a case already assigned to another assistant and grab that too. He gave out interviews to the papers, assumed the office of “acting district attorney” whenever Peckham absented himself, and likewise frequently when the latter was there, and constituted himself pretty much the whole show.
If one stood for him he wasn’t so bad, and if he hadn’t been a crook he might easily have been a power for good instead of a power for evil. It is not easy to overestimate that power, for he was the grand vizier of the most powerful public office-holder in the United States, not even excepting the President himself. He could make or break a cop or blast the reputation of any man in the community at will. This the Honorable William Francis O’Brien!
Alas “the law’s delay, the insolence of office, and the spurns that patient merit of the unworthy takes”! What price beside him, poor old Ephraim Tutt?
But wait! There is life in the old dog yet—old Tutt, we mean! So far Billy the Bloodhound has but opened the door and entered the court-room, and Mr. Tutt has but turned to gaze at him. Let us reserve our lamentations until we see what will happen when they meet. Will not the gods lend courage and strength to the kindly old lawyer, who never yet did aught but good, although mayhap he may have done it in queer ways? And who never retired wholly vanquished from the field of honorable battle?
So, heralds, your fanfares! And summon all to the lists to behold the contest between the Bloodhound and the Knight of the Stovepipe Hat. Blow, bugles, blow! Set the echoes of the forum ringing for the legal joust! Court officers, bawl your best, with “Oyez! Oyez!” and “Hear ye! Hear ye!” Pound the railings and shout the honest burghers out of their hats and into their seats, make them move up and on, close the windows, lock the door so that none may escape, and let all who have business in our Honorable Court now with due deference draw near, give your attention, and let Mr. Tutt be heard!
III
Billy the Bloodhound strutted into the inclosure in front of the dais, bowed to the judge and preened himself before the gaping crowd—the little czar, the Pooh-Bah, the high-cockalorum of the Sessions—as the old lawyer was in the act of consulting his new client. Something about Mr. Tutt inspired Paddy Mooney with instant confidence, and while the court waited he hastily explained to him the circumstances surrounding his arrest. He had no witnesses, he said; he was being framed and he wanted to be tried at once. O’Brien swaggered to the bar.
“Well,” he inquired roughly, “how do you plead? What are you going to do? You can’t talk there forever.”
Mr. Tutt smiled with the old-time courtesy he invoked when in his most dangerous mood.
“I am sorry to have unduly delayed the proceedings, Mr. O’Brien. We plead not guilty, and we ask an immediate trial.”
It was at this moment that the Devil, in the shape of Delaney the cop, leaned over the rail and plucked the Bloodhound’s sleeve.
“S-st, Mr. O’Brien! Put the screws on him and he’ll plead guilty. We’ve got him cold. Here’s the gun I took off him—loaded.”
He shoved the revolver into O’Brien’s hand, and the latter, always willing to oblige, slipped it into his pocket.
“Has he got a record?” he asked sideways.
“Sure! Just out of stir. Caught him with a valise full of stuff he took out of a cigar store. He’s an old-timer—Gas House Gang. If he won’t plead, stick him right on trial. It’s a pipe! A conviction sure!”
The Bloodhound nodded.
“Leave him to me! Here, you!”—addressing Mooney and Mr. Tutt together and as one—“plead guilty and I’ll give you attempted grand in the second.”
Mr. Tutt gravely shook his head.
“No,” he replied. “I cannot let an innocent man falsely admit under any conditions that he is guilty.”
O’Brien’s face hardened.
“Suit yourself!” he snapped back. “If he doesn’t he’ll get the limit.”
“Not unless he’s convicted!” murmured Mr. Tutt.
“Oh!” sneered his adversary. “You think you can get him off, do you? Don’t fool yourself! It’s a dead open-and-shut case. Will you or won’t you? If you won’t he’ll be on his way up the river by two o’clock.”
Mr. Tutt’s blood boiled and tingled.
“Mister District Attorney,” he said sternly, “may I ask if you have examined into the merits of this case?”
“I’ve seen the only witness there is!” retorted O’Brien. “This man is an ex-convict. His picture is in the gallery. So are his thumb tracks. He’s guilty all right, all right! He’s got no more chance than an icicle in Hades.”
“Have you talked to him? Have you heard his story? Have you questioned the officer who arrested him?” went on the old lawyer.
“I have not! And I don’t intend to!” answered O’Brien shortly. “He can tell his story on the stand—and if there’s anything to it the jury can acquit him.”
“What chance has he got to have the jury believe him if you bring out the fact that he has been in prison?” asked Mr. Tutt. “It will hopelessly prejudice them against him.”
“That’s why he’d better plead guilty!” grinned the Bloodhound.
“And you call that justice!” cried Mr. Tutt, his lips quivering. “Well, put him on trial—and be damned to you!”
“I will!” laughed O’Brien. “I’ll put him on trial in ten minutes—as soon as the pleas are over. And then”—he bent over past Mooney and leered into Mr. Tutt’s face—“and then be damned to you!”
As the court officer marched Mooney back to the pen a hand pulled Mr. Tutt by the coat tails. He turned and looked into the homely face of the girl in the shawl.
“Oh, sir,” she begged, “for God’s sake don’t let them frame him! That brute Delaney was a witness against him on his first trial. He’s Morrison’s man. They’ve made up their minds to railroad him. Oh, sir! Save him! He’s a brave, good lad that never harmed anyone. I know you’re a big lawyer and don’t bother with the likes of us, but”—she lowered her voice to a whisper—“I’ve saved ninety dollars, and it’s yours if you get him off!”
Mr. Tutt patted her arm.
“All right! All right!” he said soothingly. “I’ll do my best, but not for your money! What’s your name, my girl?”
“Annie Murphy.”
“Do you know the man Paddy worked for before he was sent up?”
“Sure!”
“Go bring him here.”
The girl hurried away and Mr. Tutt walked back to his seat.
“If I ever get that fellow to rights,” he muttered, eying O’Brien as he swaggered at the rail, “may God have mercy on his soul!”
IV
In the good old mediæval days our Teutonic relatives had a jovial habit of strapping any particularly unruly serf beneath the belly of a wild horse and then hunting him to death with dogs. The serf in this pleasant game had very little chance, but at any rate he had a fair start, and the horse did not have a ball and chain attached to his leg. But in the coming course, in which the dogs of law would run down Paddy Mooney if they could, he was handicapped in two ways: first, he had a ball and chain on his leg in the shape of his prison record; and second, in addition to the hatred which O’Brien entertained for all defendants, and particularly for those who had served terms in prison, he was the object of the prosecutor’s special malignity because he was to be defended by Mr. Tutt, who on more than one celebrated occasion had shown the braggart up for what he was. To his ancient grudge, fed fat by years of successful opposition upon the old lawyer’s part, was now added the smart of present insult. His rage against Mooney for not being willing to plead guilty fanned his fury against Mr. Tutt, and his hatred of Mr. Tutt transformed his anger against Mooney to poisonous serpents. To be in any way foiled made him a madman.
“Come here!” he growled at Delaney as he dragged him into the corridor. “Give me the goods on this fellow! I’ll teach that sanctimonious old he-devil a lesson he won’t forget in a hurry!”
The heart of Delaney leaped within him. That was the bally boy! He would have another conviction to add to his scroll of honor, and maybe the D. A. would write the Commissioner a letter of commendation, praising his services in sending up Mooney for another bit! Anyhow, Micky Morrison wouldn’t forget it! Promotion dazzled him! He could have kissed O’Brien or licked his boots—which latter alternative most of us would have preferred.
“Listen here!” he said, fawning upon the prosecutor. “It’s a cinch. I caught this guy and another gun—Mulligan—wit’ a bag of goods. I gave ye the cannon I took off him already. Mulligan’ll turn state’s evidence for a suspended sentence. Everybody’s here! You’ll eat him alive!”
“All right! Tell Mulligan I’ll use him; and bring him up into one of the jury rooms and go over his story with him. I don’t want any slip-up now! I’m doing you a favor by trying this case myself.”
“I know you are, Mr. O’Brien! I know you are!” declared Delaney in those tones of unctuous adoration that were as parmacety to the inward bruises of the Bloodhound’s soul. “’Tis the next district attorney you’re going to be!”
“Then get busy! Get busy!” ordered O’Brien, stalking back toward the court room.
The reader might well be pardoned were he incredulous of what O’Brien and Delaney purposed to do. Fortunately such prosecutors are rare; but once in a generation—perhaps even more often—they arise; and against their villainy judges and lawyers are generally powerless, for their assassinations are hidden beneath the cloak of law and the pretense of public service. Little did the judge upon the bench wot of the proposed tragedy; had he done so he would have arisen and rent his official garments. But Mr. Tutt knew, and his heart turned faint within his old frock coat. O Justice, what crimes are sometimes committed in thy name!
V
The last disconsolate in the file of prisoners had pleaded not guilty and clumped back to the prison pen; the judge had listened to the manifold ingenious excuses urged upon him by talesmen reluctant to serve; the crowd in the court room had thinned; it was twelve o’clock; the holocaust was about to begin.
The Bloodhound arose and strolled to the district attorney’s table in front of the jury box.
“Have you any case to move, Mister District Attorney?” asked His Honor, and, at O’Brien’s nod, added to the clerk, “Fill the box, Mr. Dougherty.”
“Take your places, gentlemen,” called the latter, drawing twelve names rapidly from the wheel. “People against Mooney! Patrick Mooney, you are indicted for burglary in the third degree, grand larceny in the first degree, assault in the first degree, receiving stolen goods and carrying concealed weapons. If you desire to challenge any talesman you may do so now!” One almost expected to hear him continue “Or forever after hold your peace!”
But Mr. Tutt did not wish to challenge anybody, and smiled so genially at the double row of miscellaneous citizens, and with such an air of gratification declared “The jury is more than satisfactory,” that every man of them expanded his chest and lifted his chin a fraction of an inch, convinced that Mr. Tutt was a man of parts, and became his friend for life.
Then the Bloodhound summoned them to their duty of sending men to prison. The defendant, he told them, had been caught in possession of the proceeds of a burglary committed but a few moments before his arrest. He had a loaded pistol in his pocket, which he had sought to draw upon the officer, who luckily had reduced him to a timely submission. His fellow criminal would take the stand and testify against him. It was a cut-and-dried case, a routine affair; and they would have nothing to do but to convict. He called Delaney, whose immense blue bulk overflowed the witness chair; and the cop made good the prosecutor’s opening in every particular. He described Mooney’s attempted flight, his effort to pull his gun and how he had frustrated it by felling him with his night-stick. He then identified the gun which O’Brien produced from his pocket.
Cross-examine!
Mr. Tutt asked but two questions:
“Do you know Micky Morrison?”
“I do.”
“Do you belong to the same club?”
“I do!” defiantly.
“That is all!” And the old lawyer waved him from the stand.
Then Mulligan was brought up from the pen and put in the chair, and swore that everything that Delaney had said was gospel. He admitted that he was a professional burglar, but allowed that on occasions a burglar could tell the truth, and that this was one of them; and he supplemented the cop’s story by describing in the most graphic detail how Mooney and he had planned and perpetrated the burglary of the cigar store; but, his imagination being limited and his general intelligence even more so, he made a sorry exhibition of himself under Mr. Tutt’s good-natured yet searching cross-examination. Indeed, he soon became so involved in contradictions as to Mooney’s part in the affair that no man in his senses would have convicted a dog of the larceny of a bone upon his testimony. One piece of evidence, however, remained unshaken—Delaney’s testimony that he had taken a loaded pistol from Mooney’s pocket; and Delaney had not been in any way discredited under cross-examination. Quickly O’Brien shifted his position. As a strategist he had no equal.
“If Your Honor please,” he said, “I do not feel that the jury should be permitted to convict the defendant of burglary or larceny on this character of testimony. The co-defendant Mulligan is an ex-convict, besides being confessedly guilty in this case, and his statements should not be received without stronger corroboration. I shall therefore ask Your Honor to withdraw from the consideration of the jury all the counts in the indictment except that for carrying concealed weapons.”
He spoke as if with an earnest hope for salvation—and the jury viewed him with approbation. The fox! He knew that Mooney could not meet the charge without taking the stand and admitting that he had been in prison, although had all the counts been left in the indictment the jury might well have been led to render a general verdict of acquittal, owing to the obvious unreliability of Mulligan’s testimony.
“The People rest,” said O’Brien.
The jury turned to the defense.
“Take the stand, Mr. Mooney,” directed Mr. Tutt, while the Bloodhound licked his lips.
Paddy Mooney felt his way round behind the jury box and to the witness chair. He knew that he was innocent, but he knew that he was going to be pilloried on cross-examination and utterly discredited. He was an ex-convict. That would be enough to send him up again. But unless he took the stand and denied that the weapon was his the jury would have no choice—would have to convict him. It was a slim chance but it was worth taking. No use giving up without a fight!
Doggedly under Mr. Tutt’s lead he denied everything that had been testified to against him, including that he had, or ever had had, a revolver. Mulligan had joined him, he swore, unsolicited, and when Delaney had appeared he had made no attempt whatever to escape. Why should he have? He had done nothing.
“Your witness!” said Mr. Tutt with a bow toward the jury box.
The Bloodhound crept toward the witness chair with the stealth of a panther about to spring. At three feet he sprang!
“Mister Mooney, have you ever been convicted of a crime?”
“Yes,” answered the defendant in a husky voice.
“Of what crime?”
“Assault.”
“Ah! And you say you are a peaceable sort of person?”
“Yes.”
“When did you get out of jail?”
“Last week.”
The jury looked at one another. The poison had begun to work. But the dose might be too small. O’Brien intended to take no chances. As he would have expressed it, he was going to “give him the gaff.” He beckoned Delaney to the rail.
“What have you got on him?” he asked. “Give it to me quick.”
“He’s an old-timer,” stammered the cop. “Gas House Gang. Cracked safes and done most everything.”
O’Brien knew he was lying, but he had a right to take an officer’s word for a thing like that.
“Go up to my office,” he ordered Delaney, “and bring me down Jones’ Professional Criminals of America.”
The cop hesitated.
“He ain’t in it!” he ventured.
“Did you hear what I said?” shouted O’Brien. “Go get it!”
While Delaney is waiting for the elevator to do his master’s bidding let it be explained that when a criminal, or anybody else, for that matter, goes upon the witness stand to testify, he may be asked upon cross-examination by the opposing counsel any fact as to himself or his past which may tend to discredit him, for if he be a rascal and unworthy of credence the jury are entitled to know it so as to be guided by that knowledge in the performance of their holy office. Now there are only two limitations upon this sacred right of cross-examination as to credit—the discretion of the presiding judge and the fact that if the matter inquired about is not directly connected with the issue involved the lawyer asking the question is bound by the witness’ answer and is not permitted to show in rebuttal that it is false.
Yet neither of these limitations amounts to anything, and the latter instead of being a handicap to a prosecutor really is an advantage; for often a lawyer asks a question from which the jury infers something which is not true and which the lawyer could not prove to be true if he were allowed to try to do so in rebuttal. For example: If a reputable prosecuting attorney should ask a colored defendant, charged with stealing A’s chickens on Friday, if it were not a fact that he had stolen B’s chickens on Saturday and the colored defendant denied it, the jury would doubtless accept the interrogation of the prosecutor as based on fact and assume that the luckless negro had stolen chickens from both A and B. Yet if the prosecutor were at liberty to prove that the negro was lying when the latter denied that he had stolen B’s poultry, he might find it exceedingly hard to do so. Thus the law’s restriction, which is apparently an advantage to the witness, particularly if he be a defendant accused of a crime, in reality works against him; just as the right to take the stand in fact compels every defendant to do so or suffer the penalty of refusal in the form of the jury’s natural assumption that he is afraid to do so because he is guilty. Of this great principle the Bloodhound now proposed to avail himself to the utter annihilation of Paddy Mooney and Mr. Tutt, both of whom he was resolved should plunge down into the abyss of discreditability.
For he knew that because he held a public office of large responsibility any question put by him to Mooney would be in the jury’s eyes tantamount to an accusation; particularly after he had evinced such an apparent fair-mindedness by asking the judge to quash the burglary, receiving and larceny counts in the indictment.
The issue now hung in the balance. A police officer had sworn to finding a loaded pistol on the prisoner, and a self-confessed crook had corroborated him; the defendant had vehemently denied it, although the force of his denial had been somewhat tempered by his admission of having been previously convicted of assault. In view of the judge’s admonition that the burden of proof would be on the prosecution to prove its case beyond a reasonable doubt, the jury might acquit. Something must be done. O’Brien did not hesitate. He would “smear” Mooney so that nobody would pay the slightest attention to his denials, however convincing under other circumstances they might have been. It would not be difficult. Any hint or suggestion that Mooney was a professional “gun”—the slightest innuendo to that effect, probably—would be enough; even if he didn’t look it. For look it he certainly did not, as he sat motionless on the witness chair—more like a clay statue than a man, his chalky face set and his narrow shoulders foursquare to the world—an impotent yet defiant creature, like a wild animal driven into a hole or fettered to a stake. Only when his eyes over Mr. Tutt’s shoulders met those of Annie Murphy did his stubborn expression soften. O’Brien caught the looks that passed between them and scowled. That sort of thing always had a bad effect on the jury. He must “can” it somehow. He strolled back to his place and faced Mooney again.
“You come from the Gas House district, don’t you?” he asked.
“No,” replied Mooney.
“Ever hear of the Gas House Gang?”
“Yes, but I’m not one of them.”
“Oh, you’re not, eh? I didn’t ask you that. Why did you hurry so to slip that in?”
“I object!” interposed Mr. Tutt. “Such a suggestion is improper and prejudicial.”
Judge Watkins, who despised technicalities, waved him aside.
“I will permit the question. The witness volunteered a statement. He may be examined upon it.”
Mr. Tutt subsided.
“Because,” retorted Mooney, “you were trying to make the jury think I was.”
“Maybe you’re right!” countered the Bloodhound with a grin at the jury box. “Now, how many times have you been convicted of crime in other States?”
“Never!” cried Mooney. “And you can’t prove it either.”
“Well, maybe I can’t prove it,” admitted O’Brien easily, “but,” he added insinuatingly, “I can inquire how many times you have committed burglaries—say, in New Jersey?”
Mooney’s jaws trembled and he grasped the arms of his chair so tight that his hands went white. He turned indignantly to the judge.
“Your Honor,” he protested, “has this man got the right”
“Answer the question!” admonished His Honor. “This is proper cross-examination.”
“Well?” sneered O’Brien.
“I never committed any burglary!”
“No burglaries! What kind of crimes, then, have you committed?”
“I never committed any crimes!”
Mooney thrust forward in his seat toward his torturer and clinched his jaws. It was all nuts for O’Brien.
“Oh!” he laughed. “You didn’t, eh? I thought you were just out of Sing Sing!”
“But I hadn’t committed any crime.”
“So you were innocent that time? Just as you claim to be now!”
“Delaney railroaded me for Mickey Morrison!”
The Bloodhound reddened with anger.
“Strike that out!” ordered Judge Watkins. “Don’t volunteer. Answer only the questions put to you. Were you innocent that time?”
“Yes—I was!” declared Mooney with such obvious sincerity that O’Brien wished he had not asked the question. So far he had not scored heavily, although his adversary was getting groggy. At that instant Delaney re-entered the room and approached the rail with a large book in his hand.
“S-st!” he whispered to O’Brien, handing over the book. “Ast him if last December he didn’t smash Sugar Grady’s nose down on Hudson Street wit’ a blackjack; an’, say, ast him if he wasn’t one o’ the bunch ’at beat up Inspector Boyle with brass knuckles over behind the engine-house.”
The Bloodhound’s eyes gleamed. Real stuff! He put the questions to Mooney, receiving with an indulgent grimace the latter’s emphatic denials, and the jury, who had seen his conference with the police officer, made sure that a desperate thug was seated before them, while Mr. Tutt, a satiric smile playing about his withered lips, vowed vengeance deep and dire upon the unscrupulous O’Brien.
But the Bloodhound, frenzied at the scent of human gore, was now resolved to rend Mooney limb from limb. With all the gleeful malice of a Spanish inquisitor about to tear out his victim’s beating heart with a pair of incandescent pincers, this charming understudy of Satan sauntered nonchalantly up to the witness and, holding the Professional Criminals of America so that the jury could plainly read the title, opened the book and running his finger down a page as if to mark the place—and looking up from time to time as he apparently read what he there had found—put to the hapless being in the moral death chair before him, as if solemnly declaring the accompanying accusation to be true, the following question:
“Did you not, on September 6, 1917, in company with Red Burke, alias the Roach; Tony Savelli, otherwise known as Tony the Greaser; and Dynamite Tom Meeghan, crack the safe of the American Railway Express at Rahway, New Jersey, and get away with six thousand dollars?”
There was no doubt about O’Brien’s having caught the jury now. Just as John Hancock signed his name to the Declaration of Independence so large that no one need use spectacles to read it, so Paddy Mooney screamed his outraged denial so loud that even the dead might well have heard him.
“It’s a lie!” he yelled, jumping up and shaking his fist at O’Brien. “I never knew any such people. And I never was in Rahway.”
“So you say!” the Bloodhound taunted him. “But don’t you know that both the Roach and the Greaser testified at their trials that you were there?”
“Wait a moment!” interpolated Judge Watkins. “Do not answer until your counsel has time to object. Mr. Tutt, do you object to the question? If you do I will exclude it.”
But Mr. Tutt gravely shook his head.
“I prefer to have him answer it,” he said.
“I know nothing about it at all!” protested Mooney. Once more he turned to the bench. “Your Honor,” he cried, “he’s framin’ me! I”
Judge Watkins banged his gavel.
“You will have your chance to explain on the redirect,” he remarked coldly, for he, too, was now convinced that the witness was a desperate criminal.
“That is all!” declared O’Brien, as with an air of triumph he threw the book ostentatiously on the table in front of the jury box. The defendant was cooked. That question about Red Burke had done the trick, driven the last nail into the lid of his coffin. He sank gloatingly into his chair. He had ’em on the run. The jury could convict without leaving the box. There was nothing left for old Tutt to do but try to extract additional denials from his already discredited client.
But the old lawyer made no such move. Instead he remarked:
“Mr. Mooney, you were asked whether you had not been previously convicted of assault, and you replied in the affirmative. I now ask you whom you were charged with assaulting?”
“Micky Morrison.”
“Who arrested you for the alleged offense?”
“Officer Delaney.”
“You mean this same officer who has just sworn that he found a pistol in your pocket?”
“Yes, sir.”
Mr. Tutt drew in his lips.
“That is all!” said he, without further attempt to rehabilitate his client. Then as Mooney left the stand Mr. Tutt addressed Judge Watkins:
“If Your Honor please, I had intended calling a character witness—a former employer—in behalf of the defendant, but what has transpired would seem to make any such testimony immaterial.” He hesitated for an instant, and to O’Brien came the sudden thought that the old lawyer might be going to throw up the sponge and plead his client guilty after all. But to his astonishment he heard Mr. Tutt say: “There is one thing, however, to which I invite the court’s attention. The prosecutor has produced a loaded pistol here which he claims was found in my client’s possession. It is the basis of the charge against him. Yet the district attorney for some reason best known to himself has not offered it in evidence. Unless this is done, in view of the fact that the pistol has been exhibited to the jury, I shall ask for a dismissal.”
O’Brien rose languidly to his feet.
“The merest oversight, Your Honor. Here is the pistol. I offer it in evidence.”
“I object,” said Mr. Tutt—“unless it appears on the record from whose custody it is produced, how it got there, and that it is in the same condition as when received.”
“Mr. Tutt is technically correct,” nodded His Honor.
The Bloodhound’s lips curled.
“I got it from Officer Delaney this morning, and have had it in my pocket all the time. It is exactly as I received it. Does that satisfy you?”
“Not unless you so testify upon the stand,” answered the old lawyer, looking fixedly at O’Brien, who experienced a curiously sickening sensation.
“If Mr. Tutt insists you will have to be sworn,” ruled His Honor. “But it is a rather unusual demand for any lawyer to make under the circumstances.”
“This is a rather unusual case,” retorted Mr. Tutt, unperturbed.
O’Brien shifted his feet uneasily. He did not like the idea of facing Mr. Tutt from the witness chair—not in the least! Still—there was no help for it. With the pistol in his hand he ascended the stand, took the oath and without sitting down repeated in a rather shaky voice what he had just said.
“Have you any cross-examination?” asked Judge Watkins.
“I have,” replied Mr. Tutt amid a sudden silence. What could the old codger be up to?
“You are one of the public prosecutors of this county?” he asked quietly.
“I am,” shot back the Bloodhound.
“And you are sworn to uphold the law?”
“Yes.”
“To prosecute those of whose guilt you are satisfied through the introduction of legal evidence in a legal manner?”
“Of course.” O’Brien’s uneasiness was growing, But Mr. Tutt’s next question momentarily allayed his anxiety while arousing his irritation.
“Where were you born?”
“New York City.”
Judge Watkins frowned at the questioner. This procedure was not at all according to Hoyle.
“Gas House section?”
One of the jury sniggered. His Honor raised his hand in gentle admonition.
“Is this relevant, Mr. Tutt? I do not wish to criticise, but your question seems rather trivial.”
Mr. Tutt bowed.
“This is cross-examination,” he replied. “However, I will withdraw it. Do you know one Micky Morrison, Mr. O’Brien?”
“Yes,” scowled the Bloodhound.
“How much did you pay him for your appointment as assistant district attorney?”
O’Brien turned first red, then white. Judge Watkins brought down his gavel.
“That will do!” he remarked. “The jury will disregard the question!”
“If Your Honor please,” replied Mr. Tutt quietly, “I have as much right to attack this witness’ credibility as he had to attack that of my client. I press the question in another form:
“Did you not pay six thousand dollars to Michael McGurk to be delivered to Micky Morrison in consideration for his securing your appointment as assistant district attorney?”
“I did not!” shouted O’Brien. “And you know it! Your Honor, are you going to permit me to be insulted in this way?”
But a puzzled if not actually bewildered look had settled upon the learned justice’s countenance. To coin a distinctly new phrase there was “a far-away look” in his gray eyes.
“Do you know Red Burke, alias the Roach; Tony Savelli, otherwise known as the Greaser; and Dynamite Tom Meeghan?”
“Mr. Tutt,” expostulated Judge Watkins, “you may have a technical right to test the witness’ credibility, but the matter is within my discretion and”
“That is the precise question he asked my client,” replied Mr. Tutt coolly. “What is sauce for the goose should be sauce for the gander.”
“He may answer your question if you press it,” acquiesced His Honor. “But there must be a limit to this sort of thing.”
“Only a few more questions, Your Honor. Mr. O’Brien, have you ever been convicted of crime?”
“No!” valiantly answered the prosecutor, now gray as a ghost, for he saw his doom advancing upon him.
“Have you ever committed one?”
O’Brien choked.
“I won’t force you to answer that!” threw in Mr. Tutt gallantly.
“Have you any basis for that question?” demanded His Honor sharply.
Mr. Tutt smiled first at the jury and then at Judge Watkins.
“Your Honor,” he replied in his most engaging manner, “you and I perhaps belong to a generation which has old-fashioned ideas of honor. I admit that I have had no basis for any of the questions which I have just asked the witness. Honor demands that I should do so; yet, in a sense, honor demanded that I should ask them, although I might later have to disown their sincerity. But, sir”—and his old voice rose high and vibrant—“but, sir, I do not abandon my attack upon this witness’ credibility. I have but one more question to ask of him, and upon his answer I stake my client’s liberty. Let this witness but answer any way he may see fit—yes or no, I care not which—give any reply at all that may be officially recorded here, and not hereafter be disputed or denied by him—and these twelve men may return a verdict against my client.”
Something in the old lawyer’s tone drew the jury as one man toward the front of the box. Judge Watkins was gazing intently at Mr. Tutt. The faces in the court-room surged up and down like ocean waves beneath O’Brien’s smarting eyes. He was gaffed himself.
“Sir!” thundered Mr. Tutt, pointing an accusing finger at the miserable apology for a man now cowering upon the stand. “Sir! When you took this book in your hand”—he lifted Jones’ Professional Criminals from where it lay upon the table—“and pretended to read from its pages, were you reading something that was printed there or not? YES—OR NO?”
In the silence all could distinctly hear the ticking of the clock upon the rear wall of the court-room.
“Tick-tock! Tick-tock! Tick-tock! Yes—no! Yes—no! Yes—no!” it went.
O’Brien squirmed, looked down at the rocking floor, and turned faint.
“Tick-tock! Tick-tock!” alternated the clock.
“Yes—no! Yes—no!” answered O’Brien’s pulse.
Everything was going black and white, and great pulpy gray spiders seemed grabbing at him from the circumambient air. If he put the thing through and answered “Yes”—insisted that he had been reading from the book, that old gray wolf down there would put the book in evidence and prove him a perjurer, send him up! A band of sweat oozed from beneath his red skull-cap of hair. Yet if he answered “No”—admitted that he had made the whole thing up—that there was not a word in the book about Mooney at all—it would be nearly as bad!
In his agony he almost clutched the flimsy legal straw of refusing to answer on the ground that his reply might tend to degrade or incriminate him! But this would leave him in an even worse position. No, he must answer!
“Tick—tock! Yes—no! Tick—tock! Yes—no! Which—what!”
He moistened his parched lips and swallowed twice. He coughed—for time; and fumbled for his handkerchief. After all, he had done nothing that was not strictly legal. He had not charged that Mooney was a professional crook; he had only asked him the question. That didn’t commit him to anything! You could ask what you chose and you were bound by the witness’ answer. A gleam like sunrise flashed across his seething brain. Ah, that would save him, perhaps! Old Tutt would be bound by his answer. And then he saw himself tricked again! Yes, Tutt might be bound in the case at bar—although his muddy mind wasn’t quite sure whether he would be or not—but he himself would be forever bound by the written record. He could never get rid of the millstone that his yes or no—no matter which he uttered—would hang about his neck! Old Tutt, like the Old Man of the Sea, would forever be upon his back!
“No,” he muttered at last in a woolly voice, so low and thick as to be hardly audible. “I was not—reading from the book.”
He bowed his head as if awaiting the headsman’s stroke. A hiss—a score of hisses—writhed through the air toward him from the benches. Captain Phelan made no attempt to stop them.
“You mean” began Judge Watkins incredulously. Then with a look of disgust he turned his back upon O’Brien.
“Ye snake!” This time the tense sibilant was that of a woman.
Mr. Tutt gazed at the jury. The Lord had delivered his enemy into his hands.
“Now, gentlemen,” he said with a deprecating smile, “you may convict my client if you will.”
There was a moment’s puzzled silence, broken by the foreman.
“The hell we will!” he suddenly exploded. “The fellow we want to convict is O’Brien!”
And in the flurry of involuntary applause which followed, the ancient Dougherty was heard to murmur:
“Hearken unto your verdict as it stands recorded. You say the defendant is not guilty—and so say ye all!”