Part 1 out of 4
TUTT AND MR. TUTT
By Arthur Train
THE HUMAN ELEMENT
MOCK HEN AND MOCK TURTLE
SAMUEL AND DELILAH
THE DOG ANDREW
WILE _Versus_ GUILE
The Human Element
Although men flatter themselves with their great actions,
they are not so often the result of great design as of chance.
"He says he killed him, and that's all there is about it!" said Tutt to
Mr. Tutt. "What are you going to do with a fellow like that?" The junior
partner of the celebrated firm of Tutt & Tutt, attorneys and counselors
at law, thrust his hands deep into the pockets of his yellow checked
breeches and, balancing himself upon the heels of his patent-leather
boots, gazed in a distressed, respectfully inquiring manner at his
"Yes," he repeated plaintively. "He don't make any bones about it at
all. 'Sure, I killed him!' says he. 'And I'd kill him again, the ----!'
I prefer not to quote his exact language. I've just come from the Tombs
and had quite a talk with Serafino in the counsel room, with a
gum-chewing keeper sitting in the corner watching me for fear I'd slip
his prisoner a saw file or a shotgun or a barrel of poison. I'm all in!
These murder cases drive me to drink, Mr. Tutt. I don't mind grand
larceny, forgery, assault or even manslaughter--but murder gets my goat!
And when you have a crazy Italian for a client who says he's glad he did
it and would like to do it again--please excuse me! It isn't law; it's
He drew out a silk handkerchief ornamented with the colors of the
Allies, and wiped his forehead despairingly.
"Oh," remarked Mr. Tutt with entire good nature. "He's glad he did it
and he's quite willing to be hanged!"
"That's it in a nutshell!" replied Tutt.
The senior partner of Tutt & Tutt ran his bony fingers through the lank
gray locks over his left eye and tilted ceilingward the stogy between
his thin lips. Then he leaned back in his antique swivel chair, locked
his hands behind his head, elevated his long legs luxuriously, and
crossed his feet upon the fourth volume of the American and English
Encyclopedia of Law, which lay open upon the desk at Champerty and
Maintenance. Even in this inelegant and relaxed posture he somehow
managed to maintain the air of picturesque dignity which always made his
tall, ungainly figure noticeable in any courtroom. Indubitably Mr.
Ephraim Tutt suggested a past generation, the suggestion being
accentuated by a slight pedantry of diction a trifle out of character
with the rushing age in which he saw fit to practise his time-honored
profession. "Cheer up, Tutt," said he, pushing a box of stogies toward
his partner with the toe of his congress boot. "Have a weed?"
Since in the office of Tutt & Tutt such an invitation like those of
royalty, was equivalent to a command, Tutt acquiesced.
"Thank you, Mr. Tutt," said Tutt, looking about vaguely for a match.
"That conscienceless brat of a Willie steals 'em all," growled Mr. Tutt.
"Ring the bell."
Tutt obeyed. He was a short, brisk little man with a pronounced
abdominal convexity, and he maintained toward his superior, though but a
few years his junior, a mingled attitude of awe, admiration and
affection such as a dickey bird might adopt toward a distinguished owl.
This attitude was shared by the entire office force. Inside the ground
glass of the outer door Ephraim Tutt was king. To Tutt the opinion of
Mr. Tutt upon any subject whatsoever was law, even if the courts might
have held to the contrary. To Tutt he was the eternal fount of wisdom,
culture and morality. Yet until Mr. Tutt finally elucidated his views
Tutt did not hesitate to hold conditional if temporary opinions of his
own. Briefly their relations were symbolized by the circumstance that
while Tutt always addressed his senior partner as "Mr. Tutt," the latter
accosted him simply as "Tutt." In a word there was only one Mr. Tutt in
the firm of Tutt & Tutt.
But so far as that went there was only one Tutt. On the theory that a
lily cannot be painted, the estate of one seemingly was as dignified as
that of the other. At any rate there never was and never had been any
confusion or ambiguity arising out of the matter since the day, twenty
years before, when Tutt had visited Mr. Tutt's law office in search of
employment. Mr. Tutt was just rising into fame as a police-court lawyer.
Tutt had only recently been admitted to the bar, having abandoned his
native city of Bangor, Maine, for the metropolis.
"And may I ask why you should come to me?" Mr. Tutt had demanded
severely from behind the stogy, which even at that early date had been
as much a part of his facial anatomy as his long ruminative nose. "Why
the devil should you come to me? I am nobody, sir--nobody! In this great
city certainly there are thousands far more qualified than I to further
your professional and financial advancement."
"Because," answered the inspired Tutt with modesty, "I feel that with
you I should be associated with a good name."
That had settled the matter. They bore no relationship to one another,
but they were the only Tutts in the city and there seemed to be a
certain propriety in their hanging together. Neither had regretted it
for a moment, and as the years passed they became indispensable to each
other. They were the necessary component parts of a harmonious legal
whole. Mr. Tutt was the brains and the voice, while Tutt was the eyes
and legs of a combination that at intervals--rare ones, it must be
confessed--made the law tremble, sometimes in fear and more often with
At first, speaking figuratively, Tutt merely carried Mr. Tutt's
bag--rode on his coat tails, as it were; but as time went on his
activity, ingenuity and industry made him indispensable and led to a
junior partnership. Tutt prepared the cases for Mr. Tutt to try. Both
were well versed in the law if they were not profound lawyers, but as
the origin of the firm was humble, their practise was of a miscellaneous
"Never turn down a case," was Tutt's motto.
"Our duty as sworn officers of the judicial branch of the Government
renders it incumbent upon us to perform whatever services our clients'
exigencies demand," was Mr. Tutt's way of putting it.
In the end it amounted to exactly the same thing. As a result, in
addition to their own clientele, other members of the bar who found
themselves encumbered with matters which for one reason or another they
preferred not to handle formed the habit of turning them over to Tutt &
Tutt. A never-ending stream of peculiar cases flowed through the office,
each leaving behind it some residuum of golden dust, however small. The
stately or, as an unkind observer might have put it, the ramshackly form
of the senior partner was a constant figure in all the courts, from that
of the coroner on the one hand to the appellate tribunals upon the
other. It was immaterial to him what the case was about--whether it
dealt with the "next eventual estate" or the damages for a dog bite--so
long as he was paid and Tutt prepared it. Hence Tutt & Tutt prospered.
And as the law, like any other profession requires jacks-of-all-trades,
the firm acquired a certain peculiar professional standing of its own,
and enjoyed the good will of the bar as a whole.
They had the reputation of being sound lawyers if not overafflicted with
a sense of professional dignity, whose word was better than their bond,
yet who, faithful to their clients' interests knew no mercy and gave no
quarter. They took and pressed cases which other lawyers dared not touch
lest they should be defiled--and nobody seemed to think any the less of
them for so doing. They raised points that made the refinements of the
ancient schoolmen seem blunt in comparison. No respecters of persons,
they harried the rich and taunted the powerful, and would have as soon
jailed a bishop or a judge as a pickpocket if he deserved it. Between
them they knew more kinds of law than most of their professional
brethren, and as Mr. Tutt was a bookworm and a seeker after legal and
other lore their dusty old library was full of hidden treasures, which
on frequent occasions were unearthed to entertain the jury or delight
the bench. They were loyal friends, fearsome enemies, high chargers, and
maintained their unique position in spite of the fact that at one time
or another they had run close to the shadowy line which divides the
ethical from that which is not. Yet Mr. Tutt had brought disbarment
proceedings against many lawyers in his time and--what is more--had them
"Leave old Tutt alone," was held sage advice, and when other lawyers
desired to entertain the judiciary they were apt to invite Mr. Tutt to
be of the party. And Tutt gloried in the glories of Mr. Tutt.
"That's it!" repeated Tutt as he lit his stogy, which flared up like a
burning bush, the cub of a Willie having foraged successfully in the
outer office for a match. "He's willing to be hanged or damned or
anything else just for the sake of putting a bullet through the other
"What was the name of the unfortunate deceased?"
"Tomasso Crocedoro--a barber."
"That is almost a defense in itself," mused Mr. Tutt. "Anyhow, if I've
got to defend Angelo for shooting Tomasso you might as well give me a
short scenario of the melodrama. By the way, are we retained or assigned
by the court?"
"Assigned," chirped Tutt.
"So that all we'll get out of it is about enough to keep me in stogies
for a couple of months!"
"And--if he's convicted, as of course he will be--a good chance of
losing our reputation as successful trial counsel. Why not beg off?"
"Let me hear the story first," answered Mr. Tutt. "Angelo sounds like a
good sport. I have a mild affection for him already."
He reached into the lower compartment of his desk and lifted out a
tumbler and a bottle of malt extract, which he placed carefully at his
elbow. Then he leaned back again expectantly.
"It is a simple and naive story," began Tutt, seating himself in the
chair reserved for paying clients--that is to say, one which did not
have the two front legs sawed off an inch or so in order to make
lingering uncomfortable. "A plain, unvarnished tale. Our client is one
who makes an honest living by blacking shoes near the entrance to the
Brooklyn Bridge. He is one of several hundred original Tonys who conduct
"Emporia," corrected his partner, pouring out a tumbler of malt extract.
"He formed an attachment for a certain young lady," went on Tutt,
undisturbed, "who had previously had some sort of love affair with
Crocedoro, as a result of which her social standing had become slightly
impaired. In a word Tomasso jilted her. Angelo saw, pitied and loved
her, took her for better or for worse, and married her."
"For which," interjected Mr. Tutt, "he is entitled to everyone's
"Quite so!" agreed Tutt. "Now Tomasso, though not willing to marry the
girl himself, seems to have resented the idea of having anyone else do
so, and accordingly seized every opportunity which presented itself to
twit Angelo about the matter."
"Dog in the manger, so to speak," nodded Mr. Tutt.
"He not only jeered at Angelo for marrying Rosalina but he began to
hang about his discarded mistress again and scoff at her choice of a
husband. But Rosalina gave him the cold shoulder, with the result that
he became more and more insulting to Angelo. Finally one day our client
made up his mind not to stand it any longer, secured a revolver, sought
out Tomasso in his barber shop and put a bullet through his head. Now
however much you may sympathize with Angelo as a man and a husband there
isn't the slightest doubt that he killed Tomasso with every kind of
deliberation and premeditation."
"If the case is as you say," replied Mr. Tutt, replacing the bottle and
tumbler within the lower drawer and flicking a stogy ash from his
waistcoat, "the honorable justice who handed it to us is no friend of
"He isn't," assented his partner. "It was Babson and he hates Italians.
Moreover, he stated in open court that he proposed to try the case
himself next Monday and that we must be ready without fail."
"So Babson did that to us!" growled Mr. Tutt. "Just like him. He'll pack
the jury and charge our innocent Angelo into the middle of hades."
"And O'Brien is the assistant district attorney in charge of the
prosecution," mildly added Tutt. "But what can we do? We're assigned,
we've got a guilty client, and we've got to defend him."
"Have you set Bonnie Doon looking up witnesses?" asked Mr. Tutt. "I
thought I saw him outside during the forenoon."
"Yes," replied Tutt. "But Bonnie says it's the toughest case he ever had
to handle in which to find any witnesses for the defense. There aren't
any. Besides, the girl bought the gun and gave it to Angelo the same
"How do you know that?" demanded Mr. Tutt, frowning.
"Because she told me so herself," said Tutt. "She's outside if you want
to see her."
"I might as well give her what you call 'the once over,'" replied the
Tutt retired and presently returned half leading, half pushing a
shrinking young Italian woman, shabbily dressed but with the features of
one of Raphael's madonnas. She wore no hat and her hands and finger
nails were far from clean, but from the folds of her black shawl her
neck rose like a column of slightly discolored Carrara marble, upon
which her head with its coils of heavy hair was poised with the grace of
a sulky empress.
"Come in, my child, and sit down," said Mr. Tutt kindly. "No, not in
that one; in that one." He indicated the chair previously occupied by
his junior. "You can leave us, Tutt. I want to talk to this young lady
The girl sat sullenly with averted face, showing in her attitude her
instinctive feeling that all officers of the law, no matter upon which
side they were supposed to be, were one and all engaged in a mysterious
conspiracy of which she and her unfortunate Angelo were the victims. A
few words from the old lawyer and she began to feel more confidence,
however. No one, in fact, could help but realize at first glance Mr.
Tutt's warmth of heart. The lines of his sunken cheeks if left to
themselves automatically tended to draw together into a whimsical smile,
and it required a positive act of will upon his part to adopt the stern
and relentless look with which he was wont to glower down upon some
unfortunate witness in cross-examination.
Inside Mr. Tutt was a benign and rather mellow old fellow, with a dry
sense of humor and a very keen knowledge of his fellow men. He made a
good deal of money, but not having any wife or child upon which to
lavish it he spent it all either on books or surreptitiously in quixotic
gifts to friends or strangers whom he either secretly admired or whom he
believed to be in need of money. There were vague traditions in the
office of presents of bizarre and quite impossible clothes made to
office boys and stenographers; of ex-convicts reoutfitted and sent
rejoicing to foreign parts; of tramps gorged to repletion and then
pumped dry of their adventures in Mr. Tutt's comfortable, dingy old
library; of a fur coat suddenly clapped upon the rounded shoulders of
old Scraggs, the antiquated scrivener in the accountant's cage in the
outer office, whose alcoholic career, his employer alleged, was marked
by a trail of empty rum kegs, each one flying the white flag of
And yet old Ephraim Tutt could on occasion be cold as chiseled steel,
and as hard. Any appeal from a child, a woman or an outcast always met
with his ready response; but for the rich, successful and those in power
he seemed to entertain a deep and enduring grudge. He would burn the
midnight oil with equal zest to block a crooked deal on the part of a
wealthy corporation or to devise a means to extricate some no less
crooked rascal from the clutches of the law, provided that the rascal
seemed the victim of hard luck, inheritance or environment. His
weather-beaten conscience was as elastic as his heart. Indeed when under
the expansive influence of a sufficient quantity of malt extract or
ancient brandy from the cellaret on his library desk he had sometimes
been heard to enunciate the theory that there was very little difference
between the people in jail and those who were not.
He would work weeks without compensation to argue the case of some
guilty rogue before the Court of Appeals, in order, as he said, to
"settle the law," when his only real object was to get the miserable
fellow out of jail and send him back to his wife and children. He went
through life with a twinkling eye and a quizzical smile, and when he did
wrong he did it--if such a thing is possible--in a way to make people
better. He was a dangerous adversary and judges were afraid of him, not
because he ever tricked or deceived them but because of the audacity and
novelty of his arguments which left them speechless. He had the
assurance that usually comes with age and with a lifelong knowledge of
human nature, yet apparently he had always been possessed of it.
Once a judge having assigned him to look out for the interests of a
lawyerless prisoner suggested that he take his new client into the
adjoining jury room and give him the best advice he could. Mr. Tutt was
gone so long that the judge became weary, and to find out what had
become of him sent an officer, who found the lawyer reading a newspaper
beside an open window, but no sign of the prisoner. In great excitement
the officer reported the situation to the judge, who ordered Mr. Tutt to
"What has become of the prisoner?" demanded His Honor.
"I do not know," replied the lawyer calmly. "The window was open and I
suspect that he used it as a means of exit."
"Are you not aware that you are a party to an escape--a crime?" hotly
challenged the judge.
"I most respectfully deny the charge," returned Mr. Tutt.
"I told you to take the prisoner into that room and give him the best
advice you could."
"I did!" interjected the lawyer.
"Ah!" exclaimed the judge. "You admit it! What advice did you give him?"
"The law does not permit me to state that," answered Mr. Tutt in his
most dignified tones. "That is a privileged communication from the
inviolate obligation to preserve which only my client can release me--I
cannot betray a sacred trust. Yet I might quote Cervantes and remind
Your Honor that 'Fortune leaves always some door open to come at a
Now as he gazed at the tear-stained cheeks of the girl-wife whose
husband had committed murder in defense of her self-respect, he vowed
that so far as he was able he would fight to save him. The more
desperate the case the more desperate her need of him--the greater the
duty and the greater his honor if successful.
"Believe that I am your friend, my dear!" he assured her. "You and I
must work together to set Angelo free."
"It's no use," she returned less defiantly. "He done it. He won't deny
"But he is entitled to his defense," urged Mr. Tutt quietly.
"He won't make no defense."
"We must make one for him."
"There ain't none. He just went and killed him."
Mr. Tutt shrugged his shoulders.
"There is always a defense," he answered with conviction. "Anyhow we
can't let him be convicted without making an effort. Will they be able
to prove where he got the pistol?"
"He didn't get the pistol," retorted the girl with a glint in her black
eyes. "I got it. I'd ha' shot him myself if he hadn't. I said I was
goin' to, but he wouldn't let me."
"Dear, dear!" sighed Mr. Tutt. "What a case! Both of you trying to see
which could get hanged first!"
* * * * *
The inevitable day of Angelo's trial came. Upon the bench the Honorable
Mr. Justice Babson glowered down upon the cowering defendant flanked by
his distinguished counsel, Tutt & Tutt, and upon the two hundred good
and true talesmen who, "all other business laid aside," had been dragged
from the comfort of their homes and the important affairs of their
various livelihoods to pass upon the merits of the issue duly joined
between The People of the State of New York and Angelo Serafino,
charged with murder.
One by one as his name was called each took his seat in the witness
chair upon the _voir dire_ and perjured himself like a gentleman in
order to escape from service, shyly confessing to an ineradicable
prejudice against the entire Italian race and this defendant in
particular, and to an antipathy against capital punishment which, so
each unhesitatingly averred, would render him utterly incapable of
satisfactorily performing his functions if selected as a juryman. Hardly
one, however, but was routed by the Machiavellian Babson. Hardly one,
however ingenious his excuse--whether about to be married or immediately
become a father, whether engaged in a business deal involving millions
which required his instant and personal attention whether in the last
stages of illness or obligated to be present at the bedside of a dying
wife--but was browbeaten into helplessness and ordered back to take his
place amidst the waiting throng of recalcitrant citizens so disinclined
to do their part in elevating that system of trial by jury the failure
of which at other times they so loudly condemned.
This trifling preliminary having been concluded, the few jurymen who had
managed to wriggle through the judicial sieve were allowed to withdraw,
the balance of the calendar was adjourned, those spectators who were
standing up were ordered to sit down and those already sitting down were
ordered to sit somewhere else, the prisoners in the rear of the room
were sent back to the Tombs to await their fate upon some later day, the
reporters gathered rapaciously about the table just behind the
defendant, a corpulent Ganymede in the person of an aged court officer
bore tremblingly an opaque glass of yellow drinking water to the bench,
O'Brien the prosecutor blew his nose with a fanfare of trumpets, Mr.
Tutt smiled an ingratiating smile which seemed to clasp the whole world
to his bosom--and the real battle commenced; a game in which every card
in the pack had been stacked against the prisoner by an unscrupulous
pair of officials whose only aim was to maintain their record of
convictions of "murder in the first" and who laid their plans with
ingenuity and carried them out with skill and enthusiasm to habitual
They were a grand little pair of convictors, were Babson and O'Brien,
and woe unto that man who was brought before them. It was even alleged
by the impious that when Babson was in doubt what to do or what O'Brien
wanted him to do the latter communicated the information to his
conspirator upon the bench by a system of preconcerted signals. But
indeed no such system was necessary, for the judge's part in the drama
was merely to sustain his colleague's objections and overrule those of
his opponent, after which he himself delivered the _coup de grace_ with
unerring insight and accuracy. When Babson got through charging a jury
the latter had always in fact been instructed in brutal and sneering
tones to convict the defendant or forever after to regard themselves as
disloyal citizens, oath violators and outcasts though the stenographic
record of his remarks would have led the reader thereof to suppose that
this same judge was a conscientious, tender-hearted merciful lover of
humanity, whose sensitive soul quivered at the mere thought of a prison
cell, and who meticulously sought to surround the defendant with every
protection the law could interpose against the imputation of guilt.
He was, as Tutt put it, "a dangerous old cuss." O'Brien was even worse.
He was a bull-necked, bullet-headed, pugnosed young ruffian with beery
eyes, who had an insatiable ambition and a still greater conceit, but
who had devised a blundering, innocent, helpless way of conducting
himself before a jury that deceived them into believing that his
inexperience required their help and his disinterestedness their loyal
support. Both of them were apparently fair-minded, honest public
servants; both in reality were subtly disingenuous to a degree beyond
ordinary comprehension, for years of practise had made them sensitive to
every whimsy of emotion and taught them how to play upon the psychology
of the jury as the careless zephyr softly draws its melody from the
aeolian harp. In a word they were a precious pair of crooks, who for
their own petty selfish ends played fast and loose with liberty, life
Both of them hated Mr. Tutt, who had more than once made them ridiculous
before the jury and shown them up before the Court of Appeals, and the
old lawyer recognized well the fact that these two legal wolves were in
revenge planning to tear him and his helpless client to pieces, having
first deliberately selected him as a victim and assigned him to
officiate at a ceremony which, however just so far as its consummation
might be concerned, was nothing less in its conduct than judicial
murder. Now they were laughing at him in their sleeves, for Mr. Tutt
enjoyed the reputation of never having defended a client who had been
convicted of murder, and that spotless reputation was about to be
Though the defense had thirty peremptory challenges Mr. Tutt well knew
that Babson would sustain the prosecutor's objections for bias until the
jury box would contain the twelve automata personally selected by
O'Brien in advance from what Tutt called "the army of the gibbet." Yet
the old war horse outwardly maintained a calm and genial exterior,
betraying none of the apprehension which in fact existed beneath his
mask of professional composure. The court officer rapped sharply for
"Are you quite ready to proceed with the case?" inquired the judge with
a courtesy in which was ill concealed a leer of triumph.
"Yes, Your Honor," responded Mr. Tutt in velvet tones.
"Call the first talesman!"
The fight was on, the professional duel between traditional enemies, in
which the stake--a human life--was in truth the thing of least concern,
had begun. Yet no casual observer would have suspected the actual
significance of what was going on or the part that envy, malice,
uncharitableness, greed, selfishness and ambition were playing in it. He
would have seen merely a partially filled courtroom flooded with
sunshine from high windows, an attentive and dignified judge in a black
silk robe sitting upon a dais below which a white-haired clerk drew
little slips of paper from a wheel and summoned jurymen to a service
which outwardly bore no suggestion of a tragedy.
He would have seen a somewhat unprepossessing assistant district
attorney lounging in front of the jury box, taking apparently no great
interest in the proceedings, and a worried-looking young Italian sitting
at the prisoner's table between a rubicund little man with a round red
face and a tall, grave, longish-haired lawyer with a frame not unlike
that of Abraham Lincoln, over whose wrinkled face played from time to
time the suggestion of a smile. Behind a balustrade were the reporters,
scribbling on rough sheets of yellow paper. Then came rows of benches,
upon the first of which, as near the jury box as possible, sat Rosalina
in a new bombazine dress and wearing a large imitation gold cross
furnished for the occasion out of the legal property room of Tutt &
Tutt. Occasionally she sobbed softly. The bulk of the spectators
consisted of rejected talesmen, witnesses, law clerks, professional
court loafers and women seeking emotional sensations which they had not
the courage or the means to satisfy otherwise. The courtroom was
comparatively quiet, the silence broken only by the droning voice of the
clerk and the lazy interplay of question and answer between talesman and
Yet beneath the humdrum, casual, almost indifferent manner in which the
proceedings seemed to be conducted each side was watching every move
made by the other with the tension of a tiger ready to spring upon its
prey. Babson and O'Brien were engaged in forcing upon the defense a jury
composed entirely of case-hardened convictors, while Tutt & Tutt were
fighting desperately to secure one so heterogeneous in character that
they could hope for a disagreement.
By recess thirty-seven talesmen had been examined without a foreman
having been selected, and Mr. Tutt had exhausted twenty-nine of his
thirty challenges, as against three for the prosecution. The court
reconvened and a new talesman was called, resembling in appearance a
professional hangman who for relaxation leaned toward the execution of
Italians. Mr. Tutt examined him for bias and every known form of
incompetency, but in vain--then challenged peremptorily. Thirty
challenges! He looked on Tutt with slightly raised eyebrows.
"Patrick Henry Walsh--to the witness chair, please, Mr. Walsh!" called
the clerk, drawing another slip from the box.
Mr. Walsh rose and came forward heavily, while Tutt & Tutt trembled. He
was the one man they were afraid of--an old-timer celebrated as a
bulwark of the prosecution, who could always be safely counted upon to
uphold the arms of the law, who regarded with reverence all officials
connected with the administration of justice, and from whose
composition all human emotions had been carefully excluded by the
Creator. He was a square-jawed, severe, heavily built person, with a
long relentless upper lip, cheeks ruddy from the open air; engaged in
the contracting business; and he had a brogue that would have charmed a
mavis off a tree. Mr. Tutt looked hopelessly at Tutt.
Babson and O'Brien had won.
Once more Mr. Tutt struggled against his fate. Was Mr. Walsh sure he had
no prejudices against Italians or foreigners generally? Quite. Did he
know anyone connected with the case? No. Had he any objection to the
infliction of capital punishment? None whatever. The defense had
exhausted all its challenges. Mr. Tutt turned to the prospective foreman
with an endearing smile.
"Mr. Walsh," said he in caressing tones, "you are precisely the type of
man in whom I feel the utmost confidence in submitting the fate of my
client. I believe that you will make an ideal foreman I hardly need to
ask you whether you will accord the defendant the benefit of every
reasonable doubt, and if you have such a doubt will acquit him."
Mr. Walsh gazed suspiciously at Mr. Tutt.
"Sure," he responded dryly, "Oi'll give him the benefit o' the doubt,
but if Oi think he's guilty Oi'll convict him."
Mr. Tutt shivered.
"Of course! Of course! That would be your duty! You are entirely
satisfactory, Mr. Walsh!"
"Mr. Walsh is more than satisfactory to the prosecution!" intoned
"Be sworn, Mr. Walsh," directed the clerk; and the filling of the jury
box in the memorable case of People versus Serafino was begun.
"That chap doesn't like us," whispered Mr. Tutt to Tutt. "I laid it on a
bit too thick."
In fact, Mr. Walsh had already entered upon friendly relations with Mr.
O'Brien, and as the latter helped him arrange a place for his hat and
coat the foreman cast a look tinged with malevolence at the defendant
and his counsel, as if to say "You can't fool me. I know the kind of
tricks you fellows are all up to."
O'Brien could not repress a grin. The clerk drew forth another name.
"Mr. Tompkins--will you take the chair?"
Swiftly the jury was impaneled. O'Brien challenged everybody who did not
suit his fancy, while Tutt & Tutt sat helpless.
Ten minutes and the clerk called the roll, beginning with Mr. Walsh, and
they were solemnly sworn a true verdict to find, and settled themselves
to the task.
The mills of the gods had begun to grind, and Angelo was being dragged
to his fate as inexorably and as surely, with about as much chance of
escape, as a log that is being drawn slowly toward a buzz saw.
"You may open the case, Mr. O'Brien," announced Judge Babson, leaning
back and wiping his glasses.
Then surreptitiously he began to read his mail as his fellow conspirator
undertook to tell the jury what it was all about. One by one the
witnesses were called--the coroner's physician, the policeman who had
arrested Angelo outside the barber shop with the smoking pistol in his
hand, the assistant barber who had seen the shooting, the customer who
was being shaved. Each drove a spike into poor Angelo's legal coffin.
Mr. Tutt could not shake them. This evidence was plain. He had come into
the shop, accused Crocedoro of making his wife's life unbearable
Yet Mr. Tutt did not lose any of his equanimity. With the tips of his
long fingers held lightly together in front of him, and swaying slightly
backward and forward upon the balls of his feet, he smiled benignly down
upon the customer and the barber's assistant as if these witnesses were
merely unfortunate in not being able to disclose to the jury all the
facts. His manner indicated that a mysterious and untold tragedy lay
behind what they had heard, a tragedy pregnant with primordial vital
passions, involving the most sacred of human relationships, which when
known would rouse the spirit of chivalry of the entire panel.
On cross-examination the barber testified that Angelo had said: "You
maka small of my wife long enough!"
"Ah!" murmured Mr. Tutt, waving an arm in the direction of Rosalina. Did
the witness recognize the defendant's young wife? The jury showed
interest and examined the sobbing Rosalina with approval. Yes, the
witness recognized her. Did the witness know to what incident or
incidents the defendant had referred by his remark--what the deceased
Crocedoro had done to Rosalina--if anything? No, the witness did not.
Mr. Tutt looked significantly at the row of faces in the jury box.
Then leaning forward he asked significantly: "Did you see Crocedoro
threaten the defendant with his razor?"
"I object!" shouted O'Brien, springing to his feet. "The question is
improper. There is no suggestion that Crocedoro did anything. The
defendant can testify to that if he wants to!"
"Oh, let him answer!" drawled the judge.
"No--" began the witness.
"Ah!" cried Mr. Tutt. "You did not see Crocedoro threaten the defendant
with his razor! That will do!"
But forewarned by this trifling experience, Mr. O'Brien induced the
customer, the next witness, to swear that Crocedoro had not in fact made
any move whatever with his razor toward Angelo, who had deliberately
raised his pistol and shot him.
Mr. Tutt rose to the cross-examination with the same urbanity as before.
Where was the witness standing? The witness said he wasn't standing.
Well, where was he sitting, then? In the chair.
"Ah!" exclaimed Mr. Tutt triumphantly. "Then you had your back to the
In a moment O'Brien had the witness practically rescued by the
explanation that he had seen the whole thing in the glass in front of
him. The firm of Tutt & Tutt uttered in chorus a groan of outraged
incredulity. Several jurymen were seen to wrinkle their foreheads in
meditation. Mr. Tutt had sown a tiny--infinitesimally tiny, to be
sure--seed of doubt, not as to the killing at all but as to the complete
veracity of the witness.
And then O'Brien made his coup.
"Rosalina Serafino--take the witness stand!" he ordered.
He would get from her own lips the admission that she bought the pistol
and gave it to Angelo!
But with an outburst of indignation that would have done credit to the
elder Booth Mr. Tutt was immediately on his feet protesting against the
outrage, the barbarity, the heartlessness, the illegality of making a
wife testify against her husband! His eyes flashed, his disordered locks
waved in picturesque synchronization with his impassioned gestures
Rosalina, her beautiful golden cross rising and falling hysterically
upon her bosom, took her seat in the witness chair like a frightened,
furtive creature of the woods, gazed for one brief instant upon the
twelve men in the jury box with those great black eyes of hers, and then
with burning cheeks buried her face in her handkerchief.
"I protest against this piece of cruelty!" cried Mr. Tutt in a voice
vibrating with indignation. "This is worthy of the Inquisition. Will not
even the cross upon her breast protect her from being compelled to
reveal 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
"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
"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
"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
"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
"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
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
With jokes not too unseemly for the occasion he overcame their
preliminary distrust and put them in a good humor. He gave a historical
dissertation upon the law governing homicide, on the constitutional
rights of American citizens, on the laws of naturalization, marriage,
and the domestic relations; waxed eloquent over Italy and the Italian
character, mentioned Cavour, Garibaldi and Mazzini in a way to imply
that Angelo was their lineal descendant; and quoted from D'Annunzio back
to Horace, Cicero and Plautus.
"Bunk! Nothing but bunk!" muttered Tutt, studying the twelve faces
before him. "And they all know it!"
But Mr. Tutt was nothing if not interesting. These prosaic citizens of
New York County, these saloon and hotel keepers, these contractors,
insurance agents and salesmen were learning something of history, of
philosophy, of art and beauty. They liked it. They felt they were
hearing something worth while, as indeed they were, and they forgot all
about Angelo and the unfortunate Crocedoro in their admiration for Mr.
Tutt, who had lifted them out of the dingy sordid courtroom into the
sunlight of the Golden Age. And as he led them through Greek and Roman
literature, through the early English poets, through Shakespeare and the
King James version, down to John Galsworthy and Rupert Brooke, he
brought something that was noble, fine and sweet into their grubby
materialistic lives; and at the same time the hand of the clock crept
steadily on until he and it reached Chateau-Thierry and half past four
"Bang!" went Babson's gavel just as Mr. Tutt was leading Mr. Walsh, Mr.
Tompkins and the others through the winding paths of the Argonne forests
with tin helmets on their heads in the struggle for liberty.
"You may conclude your address in the morning, Mr. Tutt," said the judge
with supreme unction. "Adjourn court!"
Gray depression weighed down Mr. Tutt's soul as he trudged homeward. He
had made a good speech, but it had had absolutely nothing to do with the
case, which the jury would perceive as soon as they thought it over. It
was a confession of defeat. Angelo would be convicted of murder in the
first degree and electrocuted, Rosalina would be a widow, and somehow he
would be in a measure responsible for it. The tragedy of human life
appalled him. He felt very old, as old as the dead-and-gone authors from
whom he had quoted with such remarkable facility. He belonged with them;
he was too old to practise his profession.
"Law, Mis' Tutt," expostulated Miranda, his ancient negro handmaiden, as
he pushed away the chop and mashed potato, and even his glass of claret,
untasted, in his old-fashioned dining room on West Twenty-third Street,
"you ain't got no appetite at all! You's sick, Mis' Tutt."
"No, no, Miranda!" he replied weakly. "I'm just getting old."
"You's mighty spry for an old man yit," she protested. "You kin make dem
lawyer men hop mighty high when you tries. Heh, heh! I reckon dey ain't
got nuffin' on my Mistah Tutt!"
Upstairs in his library Mr. Tutt strode up and down before the empty
grate, smoking stogy after stogy, trying to collect his thoughts and
devise something to say upon the morrow, but all his ideas had flown.
There wasn't anything to say. Yet he swore Angelo should not be offered
up as a victim upon the altar of unscrupulous ambition. The hours passed
and the old banjo clock above the mantel wheezed eleven, twelve; then
one, two. Still he paced up and down, up and down in a sort of trance.
The air of the library, blue with the smoke of countless stogies,
stifled and suffocated him. Moreover he discovered that he was hungry.
He descended to the pantry and salvaged a piece of pie, then unchained
the front door and stepped forth into the soft October night.
A full moon hung over the deserted streets of the sleeping city. In
divers places, widely scattered, the twelve good and true men were
snoring snugly in bed. To-morrow they would send Angelo to his death
without a quiver. He shuddered, striding on, he knew not whither, into
the night. His brain no longer worked. He had become a peripatetic
automaton self-dedicated to nocturnal perambulation.
With his pockets bulging with stogies and one glowing like a headlight
in advance of him he wandered in a sort of coma up Tenth Avenue, crossed
to the Riverside Drive, mounted Morningside Heights, descended again
through the rustling alleys of Central Park, and found himself at Fifth
Avenue and Fifty-ninth Street just as the dawn was paling the electric
lamps to a sickly yellow and the trees were casting strange unwonted
shadows in the wrong direction. He was utterly exhausted. He looked
eagerly for some place to sit down, but the doors of the hotels were
dark and tightly closed and it was too cold to remain without moving in
the open air.
Down Fifth Avenue he trudged, intending to go home and snatch a few
hours' sleep before court should open, but each block seemed miles in
length. Presently he approached the cathedral, whose twin spires were
tinted with reddish gold. The sky had become a bright blue. Suddenly all
the street lamps went out. He told himself that he had never realized
before the beauty of those two towers reaching up toward eternity,
typifying man's aspiration for the spiritual. He remembered having heard
that a cathedral was never closed, and looking toward the door he
perceived that it was open. With utmost difficulty he climbed the steps
and entered its dark shadows. A faint light emanated from the tops of
the stained-glass windows. Down below a candle burned on either side of
the altar while a flickering gleam shone from the red cup in the
sanctuary lamp. Worn out, drugged for lack of sleep, faint for want of
food, old Mr. Tutt sank down upon one of the rear seats by the door, and
resting his head upon his arms on the back of the bench in front of him
fell fast asleep.
He dreamed of a legal heaven, of a great wooden throne upon which sat
Babson in a black robe and below him twelve red-faced angels in a double
row with harps in their hands, chanting: "Guilty! Guilty! Guilty!" An
organ was playing somewhere, and there was a great noise of footsteps.
Then a bell twinkled and he raised his head and saw that the chancel was
full of lights and white-robed priests. It was broad daylight. Horrified
he looked at his watch, to find that it was ten minutes after ten. His
joints creaked as he pulled himself to his feet and his eyes were half
closed as he staggered down the steps and hailed a taxi.
"Criminal Courts Building--side door. And drive like hell!" he muttered
to the driver.
He reached it just as Judge Babson and his attendant were coming into
the courtroom and the crowd were making obeisance. Everybody else was in
his proper place.
"You may proceed, Mr. Tutt," said the judge after the roll of the jury
had been called.
But Mr. Tutt was in a daze, in no condition to think or speak. There was
a curious rustling in his ears and his sight was somewhat blurred. The
atmosphere of the courtroom seemed to him cold and hostile; the jury sat
with averted faces. He rose feebly and cleared his throat.
"Gentlemen of the jury," he began, "I--I think I covered everything I
had to say yesterday afternoon. I can only beseech you to realize the
full extent of your great responsibility and remind you that if you
entertain a reasonable doubt upon the evidence you are sworn to give the
benefit of it to the defendant."
He sank back in his chair and covered his eyes with his hands, while a
murmur ran along the benches of the courtroom. The old man had
collapsed--tough luck--the defendant was cooked! Swiftly O'Brien leaped
to his feet. There had been no defense. The case was as plain as a
pike-staff. There was only one thing for the jury to do--return a
verdict of murder in the first. It would not be pleasant, but that made
no difference! He read them the statute, applied it to the facts, and
shook his fist in their faces. They must convict--and convict of only
one thing--and nothing else--murder in the first degree. They gazed at
him like silly sheep, nodding their heads, doing everything but bleat.
Then Babson cleared his decks and rising in dignity expounded the law to
the sheep in a rich mellow voice, in which he impressed upon them the
necessity of preserving the integrity of the jury system and the
sanctity of human life. He pronounced an obituary of great beauty upon
the deceased barber--who could not, as he pointed out, speak for
himself, owing to the fact that he was in his grave. He venomously
excoriated the defendant who had deliberately planned to kill an
unarmed man peacefully conducting himself in his place of business, and
expressed the utmost confidence that he could rely upon the jury, whose
character he well knew, to perform their full duty no matter how
disagreeable that duty might be. The sheep nodded.
"You may retire, gentlemen."
Babson looked down at Mr. Tutt with a significant gleam in his eye. He
had driven in the knife to the hilt and twisted it round and round.
Angelo had almost as much chance as the proverbial celluloid cat. Mr.
Tutt felt actually sick. He did not look at the jury as they went out.
They would not be long--and he could hardly face the thought of their
return. Never in his long experience had he found himself in such a
desperate situation. Heretofore there had always been some argument,
some construction of the facts upon which he could make an appeal,
however fallacious or illogical.
He leaned back and closed his eyes. The judge was chatting with O'Brien,
the court officers were betting with the reporters as to the length of
time in which it would take the twelve to agree upon a verdict of murder
in the first. The funeral rites were all concluded except for the final
commitment of the corpse to mother earth.
And then without warning Angelo suddenly rose and addressed the court in
a defiant shriek.
"I killa that man!" he cried wildly. "He maka small of my wife! He no
good! He bad egg! I killa him once--I killa him again!"
"So!" exclaimed Babson with biting sarcasm. "You want to make a
confession? You hope for mercy, do you? Well, Mr. Tutt, what do you wish
to do under the circumstances? Shall I recall the jury and reopen the
case by consent?"
Mr. Tutt rose trembling to his feet.
"The case is closed, Your Honor," he replied. "I will consent to a
mistrial and offer a plea of guilty of manslaughter. I cannot agree to
reopen the case. I cannot let the defendant go upon the stand."
The spectators and reporters were pressing forward to the bar, anxious
lest they should lose a single word of the colloquy. Angelo remained
standing, looking eagerly at O'Brien, who returned his gaze with a grin
like that of a hyena.
"I killa him!" Angelo repeated. "You killa me if you want."
"Sit down!" thundered the judge. "Enough of this! The law does not
permit me to accept a plea to murder in the first degree, and my
conscience and my sense of duty to the public will permit me to accept
no other. I will go to my chambers to await the verdict of the jury.
Take the prisoner downstairs to the prison pen."
He swept from the bench in his silken robes. Angelo was led away. The
crowd in the courtroom slowly dispersed. Mr. Tutt, escorted by Tutt,
went out in the corridor to smoke.
"Ye got a raw deal, counselor," remarked Captain Phelan, amiably
accepting a stogy. "Nothing but an act of Providence c'd save that
Eyetalian from the chair. An' him guilty at that!"
An hour passed; then another. At half after four a rumor flew along the
corridors that the jury in the Serafino case had reached a verdict and
were coming in. A messenger scurried to the judge's chambers. Phelan
descended the iron stairs to bring up the prisoner, while Tutt to
prevent a scene invented an excuse by which he lured Rosalina to the
first floor of the building. The crowd suddenly reassembled out of
nowhere and poured into the courtroom. The reporters gathered
expectantly round their table. The judge entered, his robes, gathered in
"Bring in the jury," he said sharply. "Arraign the prisoner at the bar."
Mr. Tutt took his place beside his client at the railing, while the
jury, carrying their coats and hats, filed slowly in. Their faces were
set and relentless. They looked neither to the right nor to the left.
O'Brien sauntered over and seated himself nonchalantly with his back to
the court, studying their faces. Yes, he told himself, they were a
regular set of hangmen--he couldn't have picked a tougher bunch if he'd
had his choice of the whole panel.
The clerk called the roll, and Messrs. Walsh, Tompkins, _et al._, stated
that they were all present.
"Gentlemen of the jury, have you agreed upon a verdict?" inquired the
"We have!" replied Mr. Walsh sternly.
"How say you? Do you find the defendant guilty or not guilty?"
Mr. Tutt gripped the balustrade in front of him with one hand and put
his other arm round Angelo. He felt that now in truth murder was being
"We find the defendant not guilty," said Mr. Walsh defiantly.
There was a momentary silence of incredulity. Then Babson and O'Brien
shouted simultaneously: "What!"
"We find the defendant not guilty," repeated Mr. Walsh stubbornly.
"I demand that the jury be polled!" cried the crestfallen O'Brien, his
And then the twelve reiterated severally that that was their verdict and
that they hearkened unto it as it stood recorded and that they were
entirely satisfied with it.
"You are discharged!" said Babson in icy tones. "Strike the names of
these men from the list of jurors--as incompetent. Haven't you any other
charge on which you can try this defendant?"
"No, Your Honor," answered O'Brien grimly. "He didn't take the stand, so
we can't try him for perjury; and there isn't any other indictment
Judge Babson turned ferociously upon Mr. Tutt:
"This acquittal is a blot upon the administration of criminal justice; a
disgrace to the city! It is an unconscionable verdict; a reflection upon
the intelligence of the jury! The defendant is discharged. This court is
The crowd surged round Angelo and bore him away, bewildered. The judge
and prosecutor hurried from the room. Alone Mr. Tutt stood at the bar,
trying to grasp the full meaning of what had occurred.
He no longer felt tired; he experienced an exultation such as he had
never known before. Some miracle had happened! What was it?
Unexpectedly the lawyer felt a rough warm hand clasped over his own upon
the rail and heard the voice of Mr. Walsh with its rich brogue saying:
"At first we couldn't see that there was much to be said for your side
of the case, Mr. Tutt; but when Oi stepped into the cathedral on me way
down to court this morning and spied you prayin' there for guidance I
knew you wouldn't be defendin' him unless he was innocent, and so we
decided to give him the benefit of the doubt."
Mock Hen and Mock Turtle
"Oh, East is East and West is West, and never the
twain shall meet."
--BALLAD OF EAST AND WEST.
"But the law of the jungle is jungle law only, and the
law of the pack is only for the pack."
--OTHER SAYINGS OF SHERE KHAN.
A half turn from the clattering hubbub of Chatham Square and you are in
Chinatown, slipping, within ten feet, through an invisible wall, from
the glitter of the gin palace and the pawn-shop to the sinister shadows
of irregular streets and blind alleys, where yellow men pad swiftly
along greasy asphalt beneath windows glinting with ivory, bronze and
lacquer; through which float the scents of aloes and of incense and all
the subtle suggestion of the East.
No one better than the Chink himself realizes the commercial value of
the taboo, the bizarre and the unclean. Nightly the rubber-neck car
swinging gayly with lanterns stops before the imitation joss house, the
spurious opium joint and tortuous passage to the fake fan-tan and faro
game, with a farewell call at Hong Joy Fah's Oriental restaurant and the
well-stocked novelty store of Wing, Hen & Co. The visitors see what they
expect to see, for the Chinaman always gives his public exactly what it
But a dollar does not show you Chinatown. To some the ivories will
always be but crudely carven bone, the jades the potter's sham, the musk
and aloes the product of a soap factory, the joss but a cigar-store
Indian, and the Oriental dainties of Hong Fah the scrappings of a Yankee
grocery store. Yet behind the shoddy tinsel of Doyers and Pell Streets,
as behind Alice's looking-glass, there is another Chinatown--a strange,
inhuman, Oriental world, not necessarily of trapdoors and stifled
screams, but one moved by influences undreamed of in our banal
philosophies. Hearken then to the story of the avenging of Wah Sing.
_'Tis a tale was undoubtedly true
In the reign of the Emperor Hwang_.
In the murky cellar of a Pell Street tenement seventeen Chinamen sat
cross-legged in a circle round an octagonal teakwood table. To an
Occidental they would have appeared to differ in no detail except that
of a varying degree of fatness. An oil lamp flickered before a joss near
by, and the place reeked with the odor of starch, sweat, tobacco, rice
whisky and the incense that rose ceilingward in thin, shaking columns
from two bowls of Tibetan soapstone. An obese Chinaman with a walnutlike
countenance in which cunning and melancholy were equally commingled was
speaking monotonously through long, rat-tailed mustaches, while the
others listened with impassive decorum. It was a special meeting of the
Hip Leong Tong, held in their private clubrooms at the Great Shanghai
Tea Company, and conducted according to rule.
"Therefore," said Wong Get, "as a matter of honor it is necessary that
our brother be avenged and that no chances be taken. A much too long
time has already elapsed. I have written the letter and will read it."
He fumbled in his sleeve and drew forth a roll of brown paper covered
with heavy Chinese characters unwinding it from a strip of bamboo.
_To the Honorable Members of the On Gee Tong:_
Whereas it has pleased you to take the life of our beloved
friend and relative Wah Sing, it is with greatest courtesy
and the utmost regret that we inform you that it is
necessary for us likewise to remove one of your esteemed
society, and that we shall proceed thereto without delay.
Due warning being thus honorably given I subscribe
myself with profound appreciation,
For the Hip Leong Tong,
He ceased reading and there was a perfunctory grunt of approval from
round the circle. Then he turned to the official soothsayer and directed
him to ascertain whether the time were propitious. The latter tossed
into the air a handful of painted ivory sticks, carefully studied their
arrangement when fallen, and nodded gravely.
"The omens are favorable, O honorable one!"
"Then there is nothing left but the choice of our representatives,"
continued Wong Get. "Pass the fateful box, O Fong Hen."
Fong Hen, a slender young Chinaman, the official slipper, or messenger,
of the society, rose and, lifting a lacquered gold box from the table,
passed it solemnly to each member.
"This time there will be four," said Wong Get.
Each in turn averted his eyes and removed from the box a small sliver of
ivory. At the conclusion of the ceremony the four who had drawn red
tokens rose. Wong Get addressed them.
"Mock Hen, Mock Ding, Long Get, Sui Sing--to you it is confided to
avenge the murder of our brother Wah Sing. Fail not in your purpose!"
And the four answered unemotionally: "Those to whom it is confided will
Then pivoting silently upon their heels they passed out of the cellar.
Wong Get glanced round the table.
"If there is no further business the society will disperse after the
Fong Hen placed thirteen tiny glasses upon the table and filled them
with rice whisky scented with aniseed and a dash of powdered ginger. At
a signal from Wong Get the thirteen Chinamen lifted the glasses and
"The meeting is adjourned," said he.
* * * * *
Eighty years before, in a Cantonese rabbit warren two yellow men had
fought over a white woman, and one had killed the other. They had
belonged to different societies, or tongs. The associates of the
murdered man had avenged his death by slitting the throat of one of the
members of the other organization, and these in turn had retaliated thus
establishing a vendetta which became part and parcel of the lives of
certain families, as naturally and unavoidably as birth, love and death.
As regularly as the solstice they alternated in picking each other off.
Branches of the Hip Leong and On Gee tongs sprang up in San Francisco
and New York--and the feud was transferred with them to Chatham Square,
a feud imposing a sacred obligation rooted in blood, honor and religion
upon every member, who rather than fail to carry it out would have
knotted a yellow silken cord under his left ear and swung himself gently
off a table into eternal sleep.
Young Mock Hen, one of the four avengers, had created a distinct place
for himself in Chinatown by making a careful study of New York
psychology. He was a good-looking Chink, smooth-faced, tall and supple;
he knew very well how to capitalize his attractiveness. By day he
attended Columbia University as a special student in applied
electricity, keeping a convenient eye meanwhile on three coolies whom he
employed to run The College Laundry on Morningside Heights. By night he
vicariously operated a chop-suey palace on Seventh Avenue, where
congregated the worst elements of the Tenderloin. But his heart was in
the gambling den which he maintained in Doyers Street, and where anyone
who knew the knock could have a shell of hop for the asking, once Mock
had given him the once-over through the little sliding panel.
Mock was a Christian Chinaman. That is to say, purely for business
reasons--for what he got out of it and the standing that it gave him--he
attended the Rising Star Mission and also frequented Hudson House, the
social settlement where Miss Fanny Duryea taught him to play ping-pong
and other exciting parlor games, and read to him from books adapted to
an American child of ten. He was a great favorite at both places, for he
was sweet-tempered and wore an expression of heaven-born innocence. He
had even been to church with Miss Duryea, temporarily absenting himself
for that purpose of a Sunday morning from the steam-heated flat
where--unknown to her, of course--he lived with his white wife, Emma
Pratt, a lady of highly miscellaneous antecedents.
Except when engaged in transacting legal or oilier business with the
municipal, sociologic or religious world--at which times his vocabulary
consisted only of the most rudimentary pidgin--Mock spoke a fluent and
even vernacular English learned at night school. Incidentally he was the
head of the syndicate which controlled and dispensed the loo, faro,
fan-tan and other gambling privileges of Chinatown.
* * * * *
Detective Mooney, of the Second, detailed to make good District Attorney
Peckham's boast that there had never been so little trouble with the
foreign element since the administration--of which he was an
ornament--came into office, saw Quong Lee emerge from his doorway in
Doyers Street just before four o'clock the following Thursday and slip
silently along under the shadow of the eaves toward Ah Fong's
grocery--and instantly sensed something peculiar in the Chink's walk.
"Hello, Quong!" he called, interposing himself. "Where you goin'?"
Quong paused with a deprecating gesture of widely spread open palms.
"'Lo yourself!" replied blandly. "Me go buy li'l' glocery."
Mooney ran his hands over the rotund body, frisking him for a possible
"For the love of Mike!" he exclaimed, tearing open Quong's blouse. "What
sort of an undershirt is that?" Quong grinned broadly as the detective
lifted the suit of double-chain mail which swayed heavily under his blue
blouse from his shoulders to his knees.
"So-ho!" continued the plain-clothes man. "Trouble brewin', eh?"
He knew already that something was doing in the tongs from his
lobby-gow, Wing Foo.
"Must weigh eighty pounds!" he whistled. "I'd like to see the pill that
would go through that!" It was, in fact, a medieval corselet of finest
steel mesh, capable of turning an elephant bullet.
"Go'long!" ordered Mooney finally. "I guess you're safe!"
He turned back in the direction of Chatham Square, while Quong resumed
his tortoiselike perambulation toward Ah Fong's. Pell and Doyers Streets
were deserted save for an Italian woman carrying a baby, and were
pervaded by an unnatural and suspicious silence. Most of the shutters on
the lower windows were down. Ah Fong's subsequent story of what happened
was simple, and briefly to the effect that Quong, having entered his
shop and priced various litchi nuts and pickled starfruit, had purchased
some powdered lizard and, with the package in his left hand, had opened
the door to go out. As he stood there with his right hand upon the knob
and facing the afternoon sun four shadows fell aslant the window and a
man whom he positively identified as Sui Sing emptied a bag of
powder--afterward proved to be red pepper--upon Quong's face; then
another, Long Get, made a thrust at him with a knife, the effect of
which he did not observe, as almost at the same instant Mock Hen felled
him with a blow upon the head with an iron bar, while a fourth, Mock
Ding, fired four shots at his crumpling body with a revolver one of
which glanced off and fractured a very costly Chien Lung vase and ruined
four boxes of mandarin-blossom tea. In his excitement he ducked behind
the counter, and when sufficiently revived he crawled forth to find what
had once been Quong lying across the threshold, the murderers gone, and
the Italian woman prostrate and shrieking with a hip splintered by a
stray bullet. On the sidewalk outside the window lay the remnants of the
bag of pepper, a knife broken short off at the handle, a heavy bar of
soft iron slightly bent, and a partially emptied forty-four-caliber
revolver. Quong's suit of mail had effectually protected him from the
knife thrust and the revolver shots, but his skull was crushed beyond
repair. Thus was the murder of Wah Sing avenged in due and proper form.
Detective Mooney, distant not more than two hundred feet, rushed back to
the corner at the sound of the first shot--just in time to catch a side
glimpse of Mock Hen as he raced across Pell Street and disappeared into
the cellar of the Great Shanghai Tea Company. The Italian woman was
filling the air with her outcries, but the detective did not pause in
his hurtling pursuit. He was too late, however. The cellar door
withstood all his efforts to break it open.
Bull Neck Burke, the wrestler, who tied Zabisko once on the stage of the
old Grand Opera House in 1913, had been promenading with Mollie Malone,
of the Champagne Girls and Gay Burlesquers Company. Both heard the
fusillade and saw Mock--a streak of flying blue--pass within a few feet
"God!" ejaculated Mollie. "Sure as shootin', that's Mock Hen--and he's
"It's Mock all right!" agreed Bull Neck. "That puts us in as witnesses
or strike me!" And he looked at his watch--four one.
"Here, Burke, put your shoulder to this!" shouted Mooney from the cellar
steps. "Now then!"
The two of them threw their combined weight against it, the lock flew
open and they fell forward into the darkness. Three doors leading in
different directions met the glare of Mooney's match. But the fugitive
had a start of at least four minutes, which was three and a half more
than he required.
* * * * *
Mock Hen took the left-hand of the three doors and crept along a passage
opening into an empty opium parlor back of the Hip Leong clubroom.
Diving beneath one of the bunks he inserted his body between the lower
planking at the back and the cellar wall, wormed his way some twelve
feet, raised a trap and emerged into a tunnel by means of which and
others he eventually reached the end of the block and the rooms of his
friend Hong Sue.
Here he changed from the Oriental costume according to Chinese etiquette
necessary to the homicide, into a nobby suit of American clothes, put on
a false mustache, and walked boldly down Park Row, while just behind
him Doyers and Pell Streets swarmed with bluecoats and excited
Hudson House, the social settlement presided over by Miss Fanny and
affected for business reasons by Mock Hen, was a mile and a half away.
But Mock took his time. Twenty-five full minutes elapsed before he
leisurely climbed the steps and slipped into the big reading room. There
was no one there and Mock deftly turned back the hand of the automatic
clock over the platform to three-fifty-five. Then he began to whistle.
Presently Miss Fanny entered from the rear room, her face lighting with
pleasure at the sight of her pet convert.
"Good afternoon, Mock Hen! You are early to-day."
Mock took her hand and stroked it affectionately.
"I go Fulton Mark' buy li'l' terrapin. Stop in on way to see dear Miss
They stood thus for a moment, and while they did so the clock struck
"I go now!" said Mock suddenly. "Four o'clock already."
"It's early," answered Miss Fanny. "Won't you stay a little while?"
"I go now," he repeated with resolution. "Good-by li'l' teacher!"
She watched until his lithe figure passed through the door, and
presently returned to the back room. Mock waited outside until she had
Then he changed back the clock.
* * * * *
"We've got you, you blarsted heathen!" cried Mooney hoarsely as he and
two others from the Central Office threw themselves upon Mock Hen on the
landing outside the door of his flat. "Look out, Murtha. Pipe that thing
under his arm!"
"It's a bloody turtle!" gasped Murtha, shuddering
"What's the matter, boys?" inquired Mock. "Leggo my arm, can't yer?
What'd yer want, anyway?"
"We want you, you yellow skunk!" retorted Mooney. "Open that door!
"Sure!" answered Mock amiably. "Come on in! What's bitin' yer?"
He unlocked the door and threw it open.
"Take a chair," he invited them. "Have a cigar? You there, Emma?"
Emma Pratt, clad in a wrapper and lying on the big double brass bedstead
in the rear room, raised herself on one elbow.
"Yep!" she called through the passage. "Got the bird?"
Mock looked at Murtha, who was carrying the terrapin.
"Sure!" he called back. "Sit down, boys. What'd yer want? Can't yer
tell a feller?"
"We want you for croaking Quong Lee!" snapped Mooney. "Where have you
"Fulton Market--and Hudson House. I left here quarter of four. I haven't
seen Quong Lee. Where was he killed?"
Mooney laughed sardonically.
"That'll do for you, Mock! Your alibi ain't worth a damn this time. I
saw you myself."
"You saw someone else," Mock assured him politely. "I haven't been in
"Say, what yer doin' wit' my Chink?" demanded Emma, appearing in the
doorway. "He was sittin' here wit' me all the afternoon, until about
just before four I sent him over to Fulton Market to buy a bird. Who's
been croaked, eh?"
"Aw, cut it out, Emma!" replied Mooney. "That old stuff won't go here.
Your Chink's goin' to the chair. Murtha, look through the place while we
put Mock in the wagon. Hell!" he added under his breath. "Won't this
make Peckham sick!"
* * * * *
Mr. Ephraim Tutt just finished his morning mail when he was informed
that Mr. Wong Get desired an interview. Though the old lawyer did not
formally represent the Hip Leong Tong he was frequently retained by its
individual members, who held him in high esteem, for they had always
found him loyal to their interests and as much a stickler for honor as
themselves. Moreover, between him and Wong Get there existed a curious
sympathy as if in some previous state of existence Wong Get might have
been Mr. Tutt, and Mr. Tutt Wong Get. Perhaps, however, it was merely
because both were rather weary, sad and worldly wise.
Wong Get did not come alone. He was accompanied by two other Hip Leongs,
the three forming the law committee appointed to retain the best
available counsel to defend Mock Hen. In his expansive frock coat and
bowler hat Wong might easily have excited mirth had it not been for the
extreme dignity of his demeanor. They were there, he stated, to request
Mr. Tutt to protect the interests of Mock Hen, and they were prepared to
pay a cash retainer and sign a written contract binding themselves to a
balance--so much if Mock should be convicted; so much if acquitted; so
much if he should die in the course of the trial without having been
either convicted or acquitted. It was, said Wong Get gently, a matter of
grave importance and they would be glad to give Mr. Tutt time to think
it over and decide upon his terms. Suppose, then, that they should
return at noon? With this understanding, accordingly, they departed.
"There's no point in skinning a Chink just because he is a Chink," said
the junior Tutt when his partner had explained the situation to him.
"But it isn't the highest-class practise and they ought to pay well."
"What do you call well?" inquired Mr. Tutt.
"Oh, a thousand dollars down, a couple more if he's convicted, and five
altogether if he's acquitted."
"Do you think they can raise that amount of money?"
"I think so," answered Tutt. "It might be a good deal for an individual
Chink to cough up on his own account, but this is a cooeperative affair.
Mock Hen didn't kill Quong Lee to get anything out of it for himself,
but to save the face of his society."
"He didn't kill him at all!" declared Mr. Tutt, hardly moving a muscle
of his face.
"Well, you know what I mean!" said Tutt.
"He wasn't there," insisted Mr. Tutt. "He was way over in Fulton Market
buying a terrapin."
"That is what, if I were district attorney, I should call a Mock Hen
with a mockturtle defense!" grunted Tutt.
Mr. Tutt chuckled.
"I shall have to get that off myself at the beginning of the case, or it
might convict him," he remarked. "But he wasn't there--unless the jury
find that he was."
"In which case he will--or shall--have been there--whatever the verb
is," agreed Tutt. "Anyhow they'll tax every laundry and chop-suey palace
from the Bronx to the Battery to pay us."
"I'd hate to take our fee in bird's-nest soup, shark's fin,
bamboo-shoots salad and ya ko main," mused Mr. Tutt.
"Or in ivory chopsticks, oolong tea, imitation jade, litchi nuts and
preserved leeches!" groaned Tutt. "Be sure and get the thousand down; it
may be all the cash we'll ever see!"
Promptly at twelve the law committee of the Hip Leong Tong returned to
the office of Tutt & Tutt. With them came a venerable Chinaman in native
costume, his wrinkled face as inscrutable as that of a snapping turtle.
The others took chairs, but this high dignitary preferred to sit upon
his heels on the floor, creating something of the impression of an
ancient slant-eyed Buddha.
Wong Get translated for his benefit the arrangement proposed by Mr.
Tutt, after which there was a long pause while His Eminence remained
immovable, without even the flicker of an eyelid. Then he delivered
himself in an interminable series of gargles and gurgles, supplemented
by a few cough-like hisses, while Wong Get translated with rapid
dexterity, running verbally in and out among his words like a carriage
dog between the wheels of a vehicle.
It was, declared Buddha, an affair of great moment touching upon and
appertaining to the private honor of the Duck, the Wong, the Fong, the
Long, the Sui and various other families, both in America and China. The
life of one of their members was at stake. Their face required that the
proceedings should be as dignified as possible. The price named by Mr.
Tutt was quite inadequate.
Mr. Tutt, repressing a smile, passed a box of stogies. What amount, he
inquired through Wong Get, would satisfy the face of the Duck family? A
somewhat lengthy discussion ensued. Then Buddha rendered his decision.
The honor of the Ducks, Longs and Fongs would not be satisfied unless
Mr. Tutt received five thousand dollars down, five more if Mock Hen was
convicted, three more if he died before the conclusion of the trial, and
twenty thousand if he was acquitted.
Mr. Tutt, assuming an equal impassivity, pondered upon the matter for
about an inch of stogy and then informed the committee that the terms
were eminently satisfactory. Buddha thereupon removed from the folds of
his tunic a gigantic roll of soiled bills of all denominations and
carefully counting out five thousand dollars placed it upon the table.
"H'm!" remarked Tutt when he learned of the proceeding. "_His_ face is
* * * * *
"Look here," expostulated District Attorney Peckham in his office to Mr.
Tutt a month later. "What's the use of our both wasting a couple of
weeks trying a Chinaman who is bound to be convicted? Your time's too
valuable for that sort of thing, and so is mine. We've got three white
witnesses that saw him do it, and a couple of dozen Chinks besides. He
doesn't stand a chance; but just because he is a Chink, and to get the
case out of the way, I'll let you plead him to murder in the second
degree. What do you say?"
He tried to conceal his anxiety by nervously lighting a cigar. He would
have given a year's salary to have Mock Hen safely up the river, even on
a conviction for manslaughter in the third, for the newspapers were
making his life a burden with their constant references to the seeming
inability of the police department and district attorney's office to
prevent the recurrence of feud killings in the Chinatown districts. What
use was it, they demanded, to maintain the expensive machinery of
criminal justice if the tongs went gayly on shooting each other up and
incidentally taking the lives of innocent bystanders? Wasn't the law
intended to cover Chinamen as much as Italians, Poles, Greeks and
niggers? And now that one of these murdering Celestials had been caught
red-handed it was up to the D.A. to go to it, convict him, and send him
to the chair! They did not express themselves precisely that way, but
that was the gist of it. But Peckham knew that it was one thing to catch
a Chinaman, even red-handed, and another to convict him. And so did Mr.
The old lawyer smiled blandly--after the fashion of the Hip Leong Tong.
Of course, he admitted, it would be much simpler to dispose of the case
as Mr. Peckham suggested, but his client was insistent upon his
innocence and seemed to have an excellent alibi. He regretted,
therefore, that he had no choice except to go to trial.
"Then," groaned Peckham, "we may as well take the winter for it. After
this there's going to be a closed season on Chinamen in New York City!"
Now though it was true that Mock Hen insisted upon his innocence, he had
not insisted upon it to Mr. Tutt, for the latter had not seen him. In
fact, the old lawyer, recognizing what the law did not, namely that a
system devised for the trial and punishment of Occidentals is totally
inadequate to cope with the Oriental, calmly went about his affairs,
intrusting to Mr. Bonnie Doon of his office the task of interviewing the
witnesses furnished by Wong Get. There was but one issue for the jury to
pass upon. Quong Lee was dead and his honorable soul was with his
illustrious ancestors. He had died from a single blow upon the head,
delivered with an iron bar, there present, to be in evidence, marked
"Exhibit A." Mock Hen was alleged to have done the deed. Had he? There
would be nothing for Mr. Tutt to do but to cross-examine the witnesses
and then call such as could testify to Mock's alibi. So he made no
preparation at all and dismissed the case from his mind. He had hardly
seen a dozen Chinamen in his life--outside of a laundry.
* * * * *
On the morning set for the trial Mr. Tutt, having been delayed by an
accident in the Subway, entered the Criminal Courts Building only a
moment or two before the call of the calendar. Somewhat preoccupied, he
did not notice the numerous Chinamen who dawdled about the entrance or
the half dozen who crowded with him into the elevator, but when Pat the
elevator man called, "Second floor!--Part One to your right!--Part Two
to the left!" and he stepped out into the marble-floored corridor that
ran round the inside of the building, he was confronted with an unusual
and somewhat ominous spectacle.
The entire hallway on two sides of the building was lined with
Chinamen! They sat there motionless as blue-coated images, faces front,
their hands in their laps, their legs crossed beneath them. If anyone
appeared in the offing a couple of hundred pairs of glinting eyes
shifted automatically and followed him until he disappeared, but
otherwise no muscle quivered.
"Say," growled Hogan, Judge Bender's private attendant, who was the
first to run the gantlet, "those Chinks are enough to give you the
Willies! Their eyes scared me to death, sticking me through the back!"
Even dignified Judge Bender himself as he stalked along the hall,
preceded by two police officers, was not immune from a slight feeling of
uncanniness, and he instinctively drew his robe round his legs that it
might not come into contact with those curious slippers with felt soles
that protruded across the marble slabs.
"Eyes right!" They had picked him up the instant he stepped out of the
private elevator--the four hundred of them. If he turned and looked they
were seemingly not watching him, but if he dropped his glance they swung
back in a single moment and focused themselves upon him. And every one
of them probably had a gun hidden somewhere in his baggy pants! The
judge confessed to not liking these foreign homicide cases. You never
could tell what might happen or when somebody was going to get the death
sign. There was Judge Deasy--he had the whole front of his house blown
clean out by a bomb! That had been a close call! And these Chinks--with
their secret oaths and rituals--they'd think nothing at all of jabbing a
knife into you. He didn't fancy it at all and, as he hurried along,
supremely conscious of the deadly cumulative effect of those beady eyes,
he fancied it less and less. What was there to prevent one of them from
getting right up in court and putting a bullet through you? He shivered,
recalling the recent assassination of a judge upon the bench by a Hindu
whom he had sentenced. When he reached his robing room he sent for
"See here, captain," he directed sharply, "I want you to keep all those
Chinamen out in the corridor; understand?"
"I've got to let some of 'em in, judge," urged Phelan. "You've got to
have an interpreter--and there's a Chinese lawyer associated with Tutt &
Tutt--and of course Mr. O'Brien has to have a couple of 'em so's he'll
know what's going on. Y' see, judge, the On Gee Tong is helping the
prosecution against the Hip Leongs, so both sides has to be more or less
"Well, make sure none of 'em is armed," ordered Judge Bender. "I don't
like these cases."
Now the judge, being recently elected and unfamiliar with the situation,
did not realize that nothing could have been farther from the Oriental
mind or intention than an attack upon the officers engaged in the
administration of local justice, whom they regarded merely as nuisances.
What these Chinamen supremely desired was to be allowed to settle their
own affairs in their own historic and traditional way--the way of the
revolver, the silken cord, the knife and the iron bar. Once enmeshed in
Anglo-Saxon juridical procedure, to be sure, they were not averse to
letting it run its course on the bare chance that it might automatically
accomplish their revenge. But they distrusted it, being brought up
according to a much more effective system--one which when it wanted to
punish anybody simply reached out, grabbed him by the pigtail, yanked
him to his knees and sliced off his head. This so-called American
justice was all talk--words, words, words! From their point of view
judges, jurymen and prosecutors were useless pawns in life's game of
chess. Perhaps they are! Who knows!
When Judge Bender entered the court room it was, in spite of his
injunction, full of blue blouses. A special panel of two hundred
talesmen filled the first half dozen rows of benches, the others being
occupied by witnesses both Chinese and white, policemen and the
miscellaneous human flotsam and jetsam that always manages somehow or
other to find its way to a murder trial. Inside the rail O'Brien, the
assistant district attorney, was busy in conversation with three cueless
Chinamen in American clothes. At the bar sat Mock Hen with Mr. Tutt
beside him, flanked by Wong Get, Tutt, Bonnie Doon and Buddha.
The judge beckoned Mr. Tutt and O'Brien to the front of the bench.
"Is there any chance of disposing of this case by a plea?" he inquired.
O'Brien looked expectantly at Mr. Tutt, who shook his head. The judge
shrugged his shoulders.
"Well, how long is it going to take?"
"About six weeks," answered the old lawyer quietly.
"What!" ejaculated judge and prosecutor in unison.
"A day or two less, perhaps," affirmed Mr. Tutt, "but, likely as not,
"I shall cut it down as much as I can," announced the judge, appalled at
the prospect. "I shall not permit this trial to be dragged out
"Nothing would please me better, Your Honor," said Mr. Tutt with the
shadow of a smile. "Shall we proceed to select the jury?"
The accuracy of Mr. Tutt's prophecy as to the probable length of the
trial was partially demonstrated when it developed that most of the
talesmen had a pronounced antipathy to Chinese murder cases, and a
deep-rooted prejudice against the race as a whole. In fact, a certain
subconscious influence affecting most of them was formulated by the
thirty-ninth talesman to be rejected, who, in a moment of resentment,
burst forth, "I don't mind trying decent American criminals, but I hold
it isn't any part of a citizen's duty to try Chinamen!" and was promptly
struck off the jury list.
"I say, chief," disgustedly declared O'Brien to Peckham at the noon
recess as they clinked glasses over the bar at Pont's, "you've handed me
a ripe, juicy Messina all right! I won't be able to get a jury. We've
been at it since ten o'clock and we haven't lured a single sucker into
"What's the matter?" inquired the D.A. apprehensively.
"I can't quite make out," answered O'Brien. "But most of 'em seem to
have a sort of idea that to kill a Chinaman ain't a crime but a virtue!"
"Well, don't tell anybody," whispered Peckham, "but I'm somewhat of that
way of thinking myself. Set 'em up again, John!"
However, by invoking the utmost celerity a jury was at last selected and
sworn at the end of the nineteenth day of the trial. As a jury O'Brien
confidentially admitted to Peckham it wasn't much! But what could you
expect of a bunch who were willing to swear that they hadn't any
prejudice against a Chink and would as soon acquit him as a white man?
The truth was that they were all gentlemen who, having lost their jobs,
were willing to swear to anything that would bring them in two dollars a
day. The more days the better! And it is historic fact that during the
sixty-nine days of Mock Hen's prosecution not one of them protested at
being kept away from his wife and children, his business or his
pleasure. On the contrary they all slumbered peacefully from ten until
four--and when the trial ended, on the whole they rather regretted that
it was over, the only genuine opinion regarding the case being that the
Chinks were all as funny as hell and that Mr. Tutt was a bully old boy.
The evidence respecting the death of the unfortunate Quong Lee made
little impression upon them. Seemingly they regarded the story much as
they did that of Elisha and the bears or Bel and the dragon--as a sort
of apocryphal narrative which they were required to listen to, but in no
wise bound to believe. They were much interested in Quong's suit of
chain mail, however, and from time to time awoke to enjoy the various
verbal encounters between the judge and Mr. Tutt. As factors in the
proceedings they did not count, except to receive their two dollars per
diem, board, lodging and hack fare.
The trial of Mock Hen being conducted in a foreign language, the first
judicial step was the swearing of an interpreter. The On Gees had
promptly produced one, whom O'Brien told the court was a very learned
man; a graduate of the Imperial University at Peking, and a Son of the
Sacred Dragon. Be that as it may, he was not prepossessing in his
appearance and Mr. Tutt assured Judge Bender that far from being what
the district attorney pretended, the man was a well-known gambler, who
made his living largely by blackmail. He might be a son of a dragon or
he might not; anyway he was a son of Belial. An interpreter was the
conduit through which all the evidence must pass. If the official were
biased or corrupt the testimony would be distorted, colored or
Now he--Mr. Tutt--had an interpreter, the well-known Dr. Hong Su,
against whom nothing could be said, and upon whose fat head rested no
imputation of partiality; a graduate of Harvard, a writer of note, a--
O'Brien sprang to his feet: "My interpreter says your interpreter is an
opium smuggler, that he murdered his aunt in Hong Kong, that he isn't a
doctor at all, and that he never graduated from anything except a
chop-suey joint," he interjected.
"This is outrageous!" cried Mr. Tutt, palpably shocked at such language.
"Gentlemen! Gentlemen!" groaned Judge Bender. "What am I to do? I don't
know anything about these men. One looks to me about the same as the
other. The court has no time to inquire into their antecedents. They may
both be learned scholars or they may each be what the other says he
is--I don't know. But we've got to begin to try this case sometime."
It was finally agreed that in order that there might be no possible
question of partiality there should be two interpreters--one for the
prosecution and one for the defense. Both accordingly were sworn and the
first witness, Ah Fong, was called.
"Ask him if he understands the nature of an oath," directed O'Brien.
The interpreter for the state turned to Ah Fong and said something
sweetly to him in multitudinous words.
Instantly Doctor Su rose indignantly. The other interpreter was not
putting the question at all, but telling the witness what to say.
Moreover, the other interpreter belonged to the On Gee Tong. He stood
waving his arms and gobbling like an infuriated turkey while his
adversary replied in similar fashion.
"This won't do!" snapped the judge. "This trial will degenerate into
nothing but a cat fight if we are not careful." Then a bright idea
suggested itself to his Occidental mind. "Suppose I appoint an official
umpire to say which of the other two interpreters is correct--and let
them decide who he shall be?"
This proposition was received with grunts of satisfaction by the two
antagonists, who conferred together with astonishing amiability and
almost immediately conducted into the court room a tall, emaciated
Chinaman who they alleged was entirely satisfactory to both of them. He
was accordingly sworn as a third interpreter, and the trial began again.
It was observed that thereafter there was no dispute whatever regarding
the accuracy of the testimony, and as each interpreter was paid for his
services at the rate of ten dollars a day it was rumored that the whole
affair had been arranged by agreement between the two societies, which
divided the money, amounting to some eighteen hundred dollars, between
them. But, as O'Brien afterward asked Peckham, "How in thunder could you
The court's troubles had, however, only begun. Ah Fong was a
whimsical-looking person, who gave an impression of desiring to make
himself generally agreeable. He was, of course, the star witness--if a
Chinaman can ever be a star witness--and presumably had been carefully
schooled as to the manner in which he should give his testimony. He and
he alone had seen the whole tragedy from beginning to end. He it was, if
anybody, who would tuck Mock Hen comfortably into his coffin.
The problem of the interpreters having been solved Fong settled himself
comfortably in the witness chair, crossed his hands upon his stomach and
looked complacently at Mock Hen.
"Well, now let's get along," adjured His Honor. "Swear the witness."
Mr. Tutt immediately rose.
"If the court please," said he, "I object to the swearing of the witness
unless it is made to appear that he will regard himself as bound by the
oath as administered. Now this man is a Chinaman. I should like to ask
him a preliminary question or two."
"That seems fair, Mr. O'Brien," agreed the court. "Do you see any reason
why Mr. Tutt shouldn't interrogate the witness?"
"Oh, let me qualify my own witness!" retorted O'Brien fretfully. "Ah
Fong, will you respect the oath to testify truthfully, about to be
administered to you?"
The interpreter delivered a broadside of Chinese at Ah Fong, who
listened attentively and replied at equal length. Then the interpreter
went at him again, and again Ah Fong affably responded. It was
The two muttered and chortled at each other until O'Brien, losing
patience, jumped up and called out: "What's all this? Can't you ask him
a simple question and get a simple answer? This isn't a debating
The interpreter held up his hand, indicating that the prosecutor should
"_Ah-ya-ya-oo-aroo-yung-ung-loy-a-a-ya oo-chu-a-oy-ah-ohay-tching_!" he
oo-aha-oy-ou-ungaroo--yah-yah-yah!_" replied Ah Fong.
"Thank heaven, that's over!" sighed O'Brien.
The interpreter drew himself up to his full height.
"He says yes," he declared dramatically.
"It's the longest yes I ever heard!" audibly remarked the foreman, who
was feeling his oats.
"Does not that satisfy you?" inquired the court of Mr. Tutt.
"I am sorry to say it does not!" replied the latter. "Mr. O'Brien has
simply asked whether he will keep his oath. His reply sheds no light on
whether his religious belief is such that it would obligate him to
respect an oath."
"Well, ask him yourself!" snorted O'Brien.