those secrets that are sacred to wife and motherhood? Can the law thus indirectly tear the seal of confidence from the Confessional? Mr. O'Brien, you go too far! There are some things that even you—brilliant as you are—may not trifle with."
A juryman nodded. The eleven others, being more intelligent, failed to understand what he was talking about.
"Mr. Tutt's objection is sound—if he wishes to press it," remarked the judge satirically. "You may step down, madam. The law will not compel a wife to testify against her husband. Have you any more witnesses, Mister District Attorney?"
"The People rest," said Mr. O'Brien. "The case is with the defense."
Mr. Tutt rose with solemnity.
"The court will, I suppose, grant me a moment or two to confer with my client?" he inquired. Babson bowed and the jury saw the lawyer lean across the defendant and engage his partner in what seemed to be a weighty deliberation.
"I killa him! I say so!" muttered Angelo feebly to Mr. Tutt.
"Shut up, you fool!" hissed Tutt, grabbing him by the leg. "Keep still or I'll wring your neck."
"If I could reach that old crook up on the bench I would twist his nose," remarked Mr. Tutt to Tutt with an air of consulting him about the Year Books. "And as for that criminal O'Brien, I'll get him yet!"
With great dignity Mr. Tutt then rose and again addressed the court:
"We have decided under all the circumstances of this most extraordinary case, Your Honor, not to put in any defense. I shall not call the defendant—"
"I killa him—" began Angelo, breaking loose from Tutt and struggling to his feet. It was a horrible movement. But Tutt clapped his hand over Angelo's mouth and forced him back into his seat.
"The defense rests," said Mr. Tutt, ignoring the interruption. "So far as we are concerned the case is closed."
"Both sides rest!" snapped Babson. "How long do you want to sum up?"
Mr. Tutt looked at the clock, which pointed to three. The regular hour of adjournment was at four. Delay was everything in a case like this. A juryman might die suddenly overnight or fall grievously ill; or some legal accident might occur which would necessitate declaring a mistrial. There is, always hope in a criminal case so long as the verdict has not actually been returned and the jury polled and discharged. If possible he must drag his summing up over until the following day. Something might happen.
"About two hours, Your Honor," he replied.
The jury stirred impatiently. It was clear that they regarded a two-hour speech from him under the circumstances as an imposition. But Babson wished to preserve the fiction of impartiality.
"Very well," said he. "You may sum up until four-thirty, and have half an hour more to-morrow morning. See that the doors are closed, Captain Phelan. We do not want any interruption while the summations are going on."
"All out that's goin' out! Everybody out that's got no business, with the court!" bellowed Captain Phelan.
Mr. Tutt with an ominous heightening of the pulse realized that the real ordeal was at last at hand, for the closing of the case had wrought in the old lawyer an instant metamorphosis. With the words "The defense rests" every suggestion of the mountebank, the actor or the shyster had vanished. The awful responsibility under which he labored; the overwhelming and damning evidence against his client; the terrible consequences of the least mistake that he might make; the fact that only the sword of his ability, and his alone, stood between Angelo and a hideous death by fire in the electric chair—sobered and chastened him. Had he been a praying man in that moment he would have prayed—but he was not.
For his client was foredoomed—foredoomed not only by justice but also by trickery and guile—and was being driven slowly but surely towards the judicial shambles. For what had he succeeded in adducing in his behalf? Nothing but the purely apocryphal speculation that the dead barber might have threatened Angelo with his razor and that the witnesses might possibly have drawn somewhat upon their imaginations in giving the details of their testimony. A sorry defense! Indeed, no defense at all. All the sorrier in that he had not even been able to get before the jury the purely sentimental excuses for the homicide, for he could only do this by calling Rosalina to the stand, which would have enabled the prosecution to cross-examine her in regard to the purchase of the pistol and the delivery of it to her husband—the strongest evidence of premeditation. Yet he must find some argument, some plea, some thread of reason upon which the jury might hang a disagreement or a verdict in a lesser degree.
With a shuffling of feet the last of the crowd pushed through the big oak doors and they were closed and locked. An officer brought a corroded tumbler of brackish water and placed it in front of Mr. Tutt. The judge leaned forward with malicious courtesy. The jury settled themselves and turned toward the lawyer attentively yet defiantly, hardening their hearts already against his expected appeals to sentiment. O'Brien, ostentatiously producing a cigarette, lounged out through the side door leading to the jury room and prison cells. The clerk began copying his records. The clock ticked loudly.
And Mr. Tutt rose and began going through the empty formality of attempting to discuss the evidence in such a way as to excuse or palliate Angelo's crime. For Angelo's guilt of murder in the first degree was so plain that it had never for one moment been in the slightest doubt. Whatever might be said for his act from the point of view of human emotion only made his motive and responsibility under the statues all the clearer. There was not even the unwritten law to appeal to. Yet there was fundamentally a genuine defense, a defense that could not be urged even by innuendo: the defense that no accused ought to be convicted upon any evidence whatever, no matter how conclusive in a trial conducted with essential though wholly concealed unfairness.
Such was the case of Angelo. No one could demonstrate it, no one could with safety even hint at it; any charge that the court was anything but impartial would prove a boomerang to the defense; and yet the facts remained that the whole proceeding from start to finish had been conducted unfairly and with illegality, that the jury had been duped and deceived, and that the pretense that the guilty Angelo had been given an impartial trial was a farce. Every word of the court had been an accusation, a sneer, an acceptance of the defendant's guilt as a matter of course, an abuse far more subversive of our theory of government than the mere acquittal of a single criminal, for it struck at the very foundations of that liberty which the fathers had sought the shores of the unknown continent to gain.
Unmistakably the proceedings had been conducted throughout upon the theory that the defendant must prove his innocence and that presumably he was a guilty man; and this as well as his own impression that the evidence was conclusive the judge had subtly conveyed to the jury in his tone of speaking, his ironical manner and his facial expression. Guilty or not Angelo was being railroaded. That was the real defense—the defense that could never be established even in any higher court, except perhaps in the highest court of all, which is not of earth.
And so Mr. Tutt, boiling with suppressed indignation weighed down with the sense of his responsibility, fully realizing his inability to say anything based on the evidence in behalf of his client, feeling twenty years older than he had during the verbal duel of the actual cross-examination, rose with a genial smile upon his puckered old face and with a careless air almost of gaiety, which seemed to indicate the utmost confidence and determination, and with a graceful compliment to his arch enemy upon the bench and the yellow dog who had hunted with him, assured the jury that the defendant had had the fairest of fair trials and that he, Mr. Tutt, would now proceed to demonstrate to their satisfaction his client's entire innocence; nay, would show them that he was a man not only guiltless of any wrong-doing but worthy of their
