XXIX.
THE OPENING OF THE DEFENCE
Excellent! I smell a device. – Twelfth Night.
LATE that afternoon the prosecution rested. It had made out a case of great strength and seeming impregnability. Favorably as every one was disposed to regard the prisoner, the evidence against him was such that, to quote a man who was pretty free with his opinions in the lobby of the court-room: "Orcutt will have to wake up if he is going to clear his man in face of facts like these."
The moment, therefore, when this famous lawyer and distinguished advocate rose to open the defence, was one of great interest to more than the immediate actors in the scene. It was felt that hitherto he had rather idled with his case, and curiosity was awake to his future course. Indeed, in the minds of many the counsel for the prisoner was on trial as well as his client.
He rose with more of self-possession, quiet and reserved strength, than could be hoped for, and his look toward the Court and then to the jury tended to gain for him the confidence which up to this moment he seemed to be losing. Never a handsome man or even an imposing one, he had the advantage of always rising to the occasion, and whether pleading with a jury or arguing with opposing counsel, flashed with that unmistakable glitter of keen and ready intellect which, once observed in a man, marks him off from his less gifted fellows and makes him the cynosure of all eyes, however insignificant his height, features, or ordinary expression.
To-day he was even cooler, more brilliant, and more confident in his bearing than usual. Feelings, if feelings he possessed – and we who have seen him at his hearth can have no doubt on this subject, – had been set aside when he rose to his feet and turned his face upon the expectant crowd before him. To save his client seemed the one predominating impulse of his soul, and, as he drew himself up to speak, Mr. Byrd, who was watching him with the utmost eagerness and anticipation, felt that, despite appearances, despite evidence, despite probability itself, this man was going to win his case.
"May it please your Honor and Gentlemen of the Jury," he began, and those who looked at him could not but notice how the prisoner at his side lifted his head at this address, till it seemed as if the words issued from his lips instead of from those of his counsel, "I stand before you to-day not to argue with my learned opponent in reference to the evidence which he has brought out with so much ingenuity. I have a simpler duty than that to perform. I have to show you how, in spite of this evidence, in face of all this accumulated testimony showing the prisoner to have been in possession of both motive and opportunities for committing this crime, he is guiltless of it; that a physical impossibility stands in the way of his being the assailant of the Widow Clemmens, and that to whomever or whatsoever her death may be due, it neither was nor could have been the result of any blow struck by the prisoner's hand. In other words, we dispute, not the facts which have led the Prosecuting Attorney of this district, and perhaps others also, to infer guilt on the part of the prisoner," – here Mr. Orcutt cast a significant glance at the bench where the witnesses sat, – "but the inference itself. Something besides proof of motive and opportunity must be urged against this man in order to convict him of guilt. Nor is it sufficient to show he was on the scene of murder some time during the fatal morning when Mrs. Clemmens was attacked; you must prove he was there at the time the deadly blow was struck; for it is not with him as with so many against whom circumstantial evidence of guilt is brought. This man, gentlemen, has an answer for those who accuse him of crime – an answer, too, before which all the circumstantial evidence in the world cannot stand. Do you want to know what it is? Give me but a moment's attention and you shall hear."
Expectation, which had been rising through this exordium, now stood at fever-point. Byrd and Hickory held their breaths, and even Miss Dare showed feeling through the icy restraint which had hitherto governed her secret anguish and suspense. Mr. Orcutt went on:
"First, however, as I have already said, the prisoner desires it to be understood that he has no intention of disputing the various facts which have been presented before you at this trial. He does not deny that he was in great need of money at the time of his aunt's death; that he came to Sibley to entreat her to advance to him certain sums he deemed necessary to the furtherance of his plans; that he came secretly and in the roundabout way you describe. Neither does he refuse to allow that his errand was also one of love, that he sought and obtained a private interview with the woman he wished to make his wife, in the place and at the time testified to; that the scraps of conversation which have been sworn to as having passed between them at this interview are true in as far as they go, and that he did place upon the finger of Miss Dare a diamond ring. Also, he admits that she took this ring off immediately upon receiving it, saying she could not accept it, at least not then, and that she entreated him to take it back, which he declined to do, though he cannot say she did not restore it in the manner she declares, for he remembers nothing of the ring after the moment he put her hand aside as she was offering it back to him. The prisoner also allows that he slept in the hut and remained in that especial region of the woods until near noon the next day; but, your Honor and Gentlemen of the Jury, what the prisoner does not allow and will not admit is that he struck the blow which eventually robbed Mrs. Clemmens of her life, and the proof which I propose to bring forward in support of this assertion is this:
"Mrs. Clemmens received the blow which led to her death at some time previously to three minutes past twelve o'clock on Tuesday, September 26th. This the prosecution has already proved. Now, what I propose to show is, that Mrs. Clemmens, however or whenever assailed, was still living and unhurt up to ten minutes before twelve on that same day. A witness, whom you must believe, saw her at that time and conversed with her, proving that the blow by which she came to her death must have occurred after that hour, that is, after ten minutes before noon. But, your Honor and Gentlemen of the Jury, the prosecution has already shown that the prisoner stepped on to the train at Monteith Quarry Station at twenty minutes past one of that same day, and has produced witnesses whose testimony positively proves that the road he took there from Mrs. Clemmens' house was the same he had traversed in his secret approach to it the day before – viz., the path through the woods; the only path, I may here state, that connects those two points with any thing like directness.
"But, Sirs, what the prosecution has not shown you, and what it now devolves upon me to show, is that this path which the prisoner is allowed to have taken is one which no man could traverse without encountering great difficulties and many hindrances to speed. It is not only a narrow path filled with various encumbrances in the way of brambles and rolling stones, but it is so flanked by an impenetrable undergrowth in some places, and by low, swampy ground in others, that no deviation from its course is possible, while to keep within it and follow its many turns and windings till it finally emerges upon the highway that leads to the Quarry Station would require many more minutes than those which elapsed between the time of the murder and the hour the prisoner made his appearance at the Quarry Station. In other words, I propose to introduce before you as witnesses two gentlemen from New York, both of whom are experts in all feats of pedestrianism, and who, having been over the road themselves, are in position to testify that the time necessary for a man to pass by means of this path from Mrs. Clemmens' house to the Quarry Station is, by a definite number of minutes, greater than that allowed to the prisoner by the evidence laid before you. If, therefore, you accept the testimony of the prosecution as true, and believe that the prisoner took the train for Buffalo, which he has been said to do, it follows, as a physical impossibility, for him to have been at Mrs. Clemmens' cottage, or anywhere else except on the road to the station, at the moment when the fatal blow was dealt.
"Your Honor, this is our answer to the terrible charge which has been made against the prisoner; it is simple, but it is effective, and upon it, as upon a rock, we found our defence."
And with a bow, Mr. Orcutt sat down, and, it being late in the day, the court adjourned.
XXX.
BYRD USES HIS PENCIL AGAIN
Ay, sir, you shall find me reasonable; if it be so, I shall do that that is reason. – Merry Wives of Windsor.
"BYRD, you look dazed."
"I am."
Hickory paused till they were well clear of the crowd that was pouring from the court-room; then he said:
"Well, what do you think of this as a defence?"
"I am beginning to think it is good," was the slow, almost hesitating, reply.
"Beginning to think?"
"Yes. At first it seemed puerile. I had such a steadfast belief in Mansell's guilt, I could not give much credit to any argument tending to shake me loose from my convictions. But the longer I think of it the more vividly I remember the difficulties of the road he had to take in his flight. I have travelled it myself, you remember, and I don't see how he could have got over the ground in ninety minutes."
Hickory's face assumed a somewhat quizzical expression.
"Byrd," said he, "whom were you looking at during the time Mr. Orcutt was making his speech?"
"At the speaker, of course."
"Bah!"
"Whom were you looking at?"
"At the person who would be likely to give me some return for my pains."
"The prisoner?"
"No."
"Whom, then?"
"Miss Dare."
Byrd shifted uneasily to the other side of his companion.
"And what did you discover from her, Hickory?" he asked.
"Two things. First, that she knew no more than the rest of us what the defence was going to be. Secondly, that she regarded it as a piece of great cleverness on the part of Orcutt, but that she didn't believe in it anymore – well, any more than I do."
"Hickory!"
"Yes, sir! Miss Dare is a smart woman, and a resolute one, and could have baffled the penetration of all concerned if she had only remembered to try. But she forgot that others might be more interested in making out what was going on in her mind at this critical moment than in watching the speaker or noting the effect of his words upon the court. In fact, she was too eager herself to hear what he had to say to remember her rôle, I fancy."
"But, I don't see – " began Byrd.
"Wait," interrupted the other. "You believe Miss Dare loves Craik Mansell?"
"Most certainly," was the gloomy response.
"Very well, then. If she had known what the defence was going to be she would have been acutely alive to the effect it was going to have upon the jury. That would have been her first thought and her only thought all the time Mr. Orcutt was speaking, and she would have sat with her eyes fixed upon the men upon whose acceptance or non-acceptance of the truth of this argument her lover's life ultimately depended. But no; her gaze, like yours, remained fixed upon Mr. Orcutt, and she scarcely breathed or stirred till he had fully revealed what his argument was going to be. Then – "
"Well, then?"
"Instead of flashing with the joy of relief which any devoted woman would experience who sees in this argument a proof of her lover's innocence, she merely dropped her eyes and resumed her old mask of impassiveness."
"From all of which you gather – "
"That her feelings were not those of relief, but doubt. In other words, that the knowledge she possesses is of a character which laughs to scorn any such subterfuge of defence as Orcutt advances."
"Hickory," ventured Byrd, after a long silence, "it is time we understood each other. What is your secret thought in relation to Miss Dare?"
"My secret thought? Well," drawled the other, looking away, "I think she knows more about this crime than she has yet chosen to reveal."
"More than she evinced to-day in her testimony?"
"Yes."
"I should like to know why you think so. What special reasons have you for drawing any such conclusions?"
"Well, one reason is, that she was no more shaken by the plausible argument advanced by Mr. Orcutt. If her knowledge of the crime was limited to what she acknowledged in her testimony, and her conclusions as to Mansell's guilt were really founded upon such facts as she gave us in court to-day, why didn't she grasp at the possibility of her lover's innocence which was held out to her by his counsel? No facts that she had testified to, not even the fact of his ring having been found on the scene of murder, could stand before the proof that he left the region of Mrs. Clemmens' house before the moment of assault; yet, while evincing interest in the argument, and some confidence in it, too, as one that would be likely to satisfy the jury, she gave no tokens of being surprised by it into a reconsideration of her own conclusions, as must have happened if she told the truth, the whole truth, and nothing but the truth, when she was on the stand to-day."
"I see," remarked Byrd, "that you are presuming to understand Miss Dare after all."
Hickory smiled.
"You call this woman a mystery," proceeded Byrd; "hint at great possibilities of acting on her part, and yet in a moment, as it were, profess yourself the reader of her inmost thoughts, and the interpreter of looks and expressions she has manifestly assumed to hide those thoughts."
Hickory's smile broadened into a laugh.
"Just so," he cried. "One's imbecility has to stop somewhere." Then, as he saw Byrd look grave, added: "I haven't a single fact at my command that isn't shared by you. My conclusions are different, that is all."
Horace Byrd did not answer. Perhaps if Hickory could have sounded his thoughts he would have discovered that their conclusions were not so far apart as he imagined.
"Hickory," Byrd at last demanded, "what do you propose to do with your conclusions?"
"I propose to wait and see if Mr. Orcutt proves his case. If he don't, I have nothing more to say; but if he does, I think I shall call the attention of Mr. Ferris to one question he has omitted to ask Miss Dare."
"And what is that?"
"Where she was on the morning of Mrs. Clemmens' murder. You remember you took some interest in that question yourself a while ago."
"But – "
"Not that I think any thing will come of it, only my conscience will be set at rest."
"Hickory," – Byrd's face had quite altered now – "where do you think Miss Dare was at that time?"
"Where do I think she was?" repeated Hickory.
"Well, I will tell you. I think she was not in Professor Darling's observatory."
"Do you think she was in the glade back of Widow Clemmens' house?"
"Now you ask me conundrums."
"Hickory!" Byrd spoke almost violently, "Mr. Orcutt shall not prove his case."
"No?"
"I will make the run over the ground supposed to have been taken by Mansell in his flight, and show in my own proper person that it can be done in the time specified."
Hickory's eye, which had taken a rapid survey of his companion's form during the utterance of the above, darkened, then he slowly shook his head.
"You couldn't," he rejoined laconically. "Too little staying power; you'd give out before you got clear of the woods. Better delegate the job to me."
"To you?"
"Yes. I'm of the make to stand long runs; besides I am no novice at athletic sports of any kind. More than one race has owed its interest to the efforts of your humble servant. 'Tis my pet amusement, you see, as off-hand drawing is yours, and is likely to be of as much use to me, eh?"
"Hickory, you are chaffing me."
"Think so? Do you see that five-barred gate over there? Well, now keep your eye on the top rail and see if I clear it without a graze or not."
"Stop!" exclaimed Mr. Byrd, "don't make a fool of yourself in the public street. I'll believe you if you say you understand such things."
"Well, I do, and what is more, I'm an adept at them. If I can't make that run in the time requisite to show that Mansell could have committed the murder, and yet arrive at the station the moment he did, I don't know of a chap who can."
"Hickory, do you mean to say you will make this run?"
"Yes."
"With a conscientious effort to prove that Orcutt's scheme of defence is false?"
"Yes."
"When?"
"To-morrow."
"While we are in court?"
"Yes."
Byrd turned square around, gave Hickory a look and offered his hand.
"You are a good fellow," he declared, "May luck go with you."
Hickory suddenly became unusually thoughtful.
"A little while ago," he reflected, "this fellow's sympathies were all with Mansell; now he would risk my limbs and neck to have the man proved guilty. He does not wish Miss Dare to be questioned again, I see."
"Hickory," resumed Byrd, a few minutes later, "Orcutt has not rested the defence upon this one point without being very sure of its being unassailable."
"I know that."
"He has had more than one expert make that run during the weeks that have elapsed since the murder. It has been tested to the uttermost."
"I know that."
"If you succeed then in doing what none of these others have, it must be by dint of a better understanding of the route you have to take and the difficulties you will have to overcome. Now, do you understand the route?"
"I think so."
"You will have to start from the widow's door, you know?"
"Certain."
"Cross the bog, enter the woods, skirt the hut – but I won't go into details. The best way to prove you know exactly what you have to do is to see if you can describe the route yourself. Come into my room, old fellow, and let us see if you can give me a sufficiently exact account of the ground you will have to pass over, for me to draw up a chart by it. An hour spent with paper and pencil to-night may save you from an uncertainty to-morrow that would lose you a good ten minutes."
"Good! that's an idea; let's try it," rejoined Hickory.
And being by this time at the hotel, they went in. In another moment they were shut up in Mr. Byrd's room, with a large sheet of foolscap before them.
"Now," cried Horace, taking up a pencil, "begin with your description, and I will follow with my drawing."
"Very well," replied Hickory, setting himself forward in a way to watch his colleague's pencil. "I leave the widow's house by the dining-room door – a square for the house, Byrd, well down in the left-hand corner of the paper, and a dotted line for the path I take, – run down the yard to the fence, leap it, cross the bog, and make straight for the woods."
"Very good," commented Byrd, sketching rapidly as the other spoke.
"Having taken care to enter where the trees are thinnest, I find a path along which I rush in a bee-line till I come to the glade – an ellipse for the glade, Byrd, with a dot in it for the hut. Merely stopping to dash into the hut and out again – "
"Wait!" put in Byrd, pausing with his pencil in mid-air; "what did you want to go into the hut for?"
"To get the bag which I propose to leave there to-night."
"Bag?"
"Yes; Mansell carried a bag, didn't he? Don't you remember what the station-master said about the curious portmanteau the fellow had in his hand when he came to the station?"
"Yes, but – "
"Byrd, if I run that fellow to his death it must be fairly. A man with an awkward bag in his hand cannot run like a man without one. So I handicap myself in the same way he did, do you see?"
"Yes."
"Very well, then; I rush into the hut, pick up the bag, carry it out, and dash immediately into the woods at the opening behind the hut. – What are you doing?"
"Just putting in a few landmarks," explained Byrd, who had run his pencil off in an opposite direction. "See, that is the path to West Side which I followed in my first expedition through the woods – the path, too, which Miss Dare took when she came to the hut at the time of the fearful thunderstorm. And wait, let me put in Professor Darling's house, too, and the ridge from which you can see Mrs. Clemmens' cottage. It will help us to understand – "
"What?" cried Hickory, with quick suspiciousness, as the other paused.
But Byrd, impatiently shaking his head, answered:
"The whole situation, of course." Then, pointing hastily back to the hut, exclaimed: "So you have entered the woods again at this place? Very well; what then?"
"Well, then," resumed Hickory, "I make my way along the path I find there – run it at right angles to the one leading up to the glade – till I come to a stony ledge covered with blackberry bushes. (A very cleverly drawn blackberry patch that, Byrd.) Here I fear I shall have to pause."
"Why?"
"Because, deuce take me if I can remember where the path runs after that."
"But I can. A big hemlock-tree stands just at the point where the woods open again. Make for that and you will be all right."
"Good enough; but it's mighty rough travelling over that ledge, and I shall have to go at a foot's pace. The stones are slippery as glass, and a fall would scarcely be conducive to the final success of my scheme."
"I will make the path serpentine."
"That will be highly expressive."
"And now, what next?"
"The Foresters' Road, Byrd, upon which I ought to come about this time. Run it due east and west – not that I have surveyed the ground, but it looks more natural so – and let the dotted line traverse it toward the right, for that is the direction in which I shall go."
"It's done," said Byrd.
"Well, description fails me now. All I know is, I come out on a hillside running straight down to the river-bank and that the highway is visible beyond, leading directly to the station; but the way to get to it – "
"I will show you," interposed Byrd, mapping out the station and the intervening river with a few quick strokes of his dexterous pencil. "You see this point where you issue from the woods? Very good; it is, as you say, on a hillside overlooking the river. Well, it seems unfortunate, but there is no way of crossing that river at this point. The falls above and below make it no place for boats, and you will have to go back along its banks for some little distance before you come to a bridge. But there is no use in hesitating or looking about for a shorter path. The woods just here are encumbered with a mass of tangled undergrowth which make them simply impassable except as you keep in the road, while the river curves so frequently and with so much abruptness – see, I will endeavor to give you some notion of it here – that you would only waste time in attempting to make any short cuts. But, once over the bridge – "
"I have only to foot it," burst in Hickory, taking up the sketch which the other had now completed, and glancing at it with a dubious eye. "Do you know, Byrd," he remarked in another moment, "that it strikes me Mansell did not take this roundabout road to the station?"
"Why?"
"Because it is so roundabout, and he is such a clearheaded fellow. Couldn't he have got there by some shorter cut?"
"No. Don't you remember how Orcutt cross-examined the station-master about the appearance which Mansell presented when he came upon the platform, and how that person was forced to acknowledge that, although the prisoner looked heated and exhausted, his clothes were neither muddied nor torn? Now, I did not think of it at the time, but this was done by Orcutt to prove that Mansell did take the road I have jotted down here, since any other would have carried him through swamps knee-deep with mud, or amongst stones and briers which would have put him in a state of disorder totally unfitting him for travel."
"That is so," acquiesced Hickory, after a moment's thought. "Mansell must be kept in the path. Well, well, we will see to-morrow if wit and a swift foot can make any thing out of this problem."
"Wit? Hickory, it will be wit and not a swift foot. Or luck, maybe I should call it, or rather providence. If a wagon should be going along the highway, now – "
"Let me alone for availing myself of it," laughed Hickory. "Wagon! I would jump on the back of a mule sooner than lose the chance of gaining a minute on these experts whose testimony we are to hear to-morrow. Don't lose confidence in old Hickory yet. He's the boy for this job if he isn't for any other."
And so the matter was settled.