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By Advice of Counsel by Arthur Train

Part 5 out of 5

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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

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

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

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

"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

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

"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

"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

"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

"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

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

"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

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

"Gentlemen! Gentlemen!" protested Bently. "Let us discuss this matter

"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

"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

"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

"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

"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."

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