"Danny Lowry in the Tombs!" cried Mr. Tutt. "What an outrage! Of course I'll do what I can for him. But first come inside and warm yourself. Miranda!" he shouted to the colored maid of all work. "Make us some hot toast and tea and bring it up to the library. Now, my dear, take off your shawl and sit down and tell me all about it."
So with her frayed kid shoes upturned on the fender, little Katie Lowry, confident that she had found an all-powerful friend in this queer long man who smoked such queer long cigars, sipping her tea only when she had to pause for breath, poured out the story of her grandfather's fight with poverty and misfortune, while her auditor's wrinkled face grew soft and hard by turns as he watched her through the gray clouds from his stogy. An hour later he left her at the door of her flat, happy and encouraged, with a twenty-dollar bill crumpled in her hand.
"But what do you expect me to do about it?" retorted District Attorney Peckham in his office next morning when Mr. Tutt had explained to him the perversion of justice to accomplish which the law had been invoked. "I'm sorry! No doubt he's a good feller. But he's guilty, isn't he? Admitted it in the police court, didn't he?"
"I expect you to temper justice with mercy," replied Mr. Tutt earnestly. "This old man's whole life has been devoted to relieving the sufferings of animals. He's a genuine Samaritan."
"That's like saying that a thief has done good with his plunder, isn't it?" commented Peckham. "Look here, Tutt, of course I hope you get your man off and all that, but if I personally threw the case out I'd have all the vets in the city on my neck. You see the motors have pretty nearly put 'em all out of business. There aren't enough sick horses to go round, so they've been conducting a sort of crusade. Tough luck—but the law is the law. And I have to enforce it—ostensibly, anyway."
"Very well," answered the old lawyer amiably but defiantly. "Then if you've got to enforce the law against a fine old chap like that I've got to do my darnedest to smash that law higher than a kite. And I'll tell you something, Peckham—which is that the human heart is a damn sight bigger than the human conscience."
Danny Lowry had lived for years in fear of the blow which had so suddenly struck him down, for there had never been any blinking of the obvious fact that in acting as an unlicensed veterinary he was brazenly violating the law. On the other hand, not being able to read or write, and having no technical knowledge of medicine, all his experience, all his skill, all his love of animals could avail him nothing so far as securing a license was concerned. He could not read an examination paper, but he could interpret the symptoms seen in a trembling neck and a lack-luster eye. Danny had no choice but to break the law or abandon the only career for which he had an aptitude, or by which he could hope to earn a living at his age. His crime was malum prohibitum, not malum in se, but it was, nevertheless, a violation of a most necessary law. Certainly none of us wish to be doctored by tyros or humbugs, or to have our animals treated by them. Only Danny was neither a tyro nor a humbug, and had he not been a lawbreaker the world would have been to some extent the loser.
Yet by all the canons of ethics and justice it was most improper for Mr. Tutt to hurry off to the Tombs and bail out old Danny Lowry, a self-confessed lawbreaker, giving his own bond and the house on Twenty-third Street as security. Still more so, as more unblushingly ostentatious, was his taking the criminal over to Pont's and giving him the very best dinner that Signor Faccini, proprietor of that celebrated hostelry, could purvey.
Hard cases are said to make bad law; I wonder if they make bad people. If "conscience makes cowards of us all" does human sympathy play ducks and drakes with conscience? Does it blind the eye of reason? Rather, does it not illumine and expose the fallacies of logic and the falsities of the syllogism? Do two and two make four in human polity as in mathematics? Sometimes it would not seem so.
Certainly you would have picked Mr. Bently Gibson, of The Gibson Woolen Mills, as a model juror. One look at him as a prospective talesman in a murder case and you would have unhesitatingly murmured, "The defense challenges peremptorily!" His broad forehead, large well-shaped nose, firm chin and clear calm eye evidenced his common sense, his conscientiousness and his uncompromising adherence to principle. His customs declarations were complete to the smallest item, his income-tax returns models of self-sacrifice, he was patriotic and civic, he belonged to the Welfare League and the Citizens' Union, and—I hesitate to confess it—he subscribed to the annual deficit of the Society for the Suppression of Sin. On the face of it, he was the kind of man the district attorney tries to select as foreman of a jury when he has to prosecute a woman who had kidnaped her own child out of a foundling asylum.
The heelers and hangers-on of the criminal courts would have described him as a highbrow and as a holier-than-thou; perhaps he might in a moment of jocularity have even so described himself—for he had his human—perhaps I should have said, his weaker—side. Surely he seemed human enough when he kissed Eleanor good-by at the door of their country place on the Sound the morning he had been subpoenaed to serve as a juryman in Part Five of the General Sessions. He had planned to take a week's holiday that spring, and he had gone to infinite trouble to arrange his business in order to have it, for they had become engaged eleven years before at the moment when the apple blossoms and the dogwoods were at the height of their glory, even as they were now.
When, however, he found the brown subpoena at his office directing him to present himself for service the following Monday he simply gave a half sigh, half grunt of disgust, and let the longed-for vacation go; for one of his pet theories was that the jury system was the chief bulwark of the Constitution, the cornerstone of liberty. Had he only been disingenuous enough he need never have served on any jury, for no lawyer for the defense hearing him enlarge on what he considered the duties of a juryman to be, would ever have allowed him in the box. But when other chaps on the panel presented their excuses to the judge and managed to persuade him of the imperative needs of family or business, and slipped—grinning discreetly—out of the court room, he merely inaudibly called them welshers and pikers. No, he regarded jury service as a duty and a privilege, one not to be lightly avoided—the one common garden governmental function in which Uncle Sam expected every citizen to do his duty.
"I won't let any of the rogues get by me!" he shouted gaily to his wife over the back of the motor. "And anyhow I shan't be locked up all night. There aren't any murder cases on the calendar. I'll be out on the five-fifteen as usual."
Alas, poor Bently! Alas for human frailty and all those splendid visions in which he pictured himself as the anchor of the ship of justice, a prop and stay of the structure of democracy.
His train was a trifle late and the roll of the jury had already been called, and the perennial excuses heard, when he entered the court room; but the clerk, who knew him, nodded in a welcoming manner, checked him off as present and dropped his name card in the revolving wheel. It was a well-known scene to Bently, a veteran of fifteen years' service. Even the actors were familiar friends—the pink-faced judge with his snow-white whiskers, who at times suggested to Bently an octogenarian angel, and, at others, a certain ancient baboon once observed in the Primates cage at the Bronz Zoo; the harried, anxious little clerk with his paradoxically grandiloquent intonation; the comedy assistant district attorney with his wheezy voice emanating from a Falstaffian body, who suffered from a soporific malady and was accustomed to open a case and then let it take care of itself while he slumbered audibly beneath the dais; even Ephraim Tutt, the gaunt, benignly whimsical-looking attorney, in his rusty-black frock coat and loose-hanging tie; his rotund partner, whose birdlike briskness and fat paunch inevitably brought to mind a distended robin in specs; and the dégagé Bonnie Doon in his cut-in-at-the-waist checked suit—he knew them all of old.
"Well, call your first case, Mister District Attorney!" directed the judge, nodding encouragingly at Bently, well knowing that in him he had a staunch upholder of the law-as-it-is, who could be depended upon to bolster up his weaker or more sentimental brother talesmen into the proper convicting attitude of mind.
Then—as per the schedule in force for at least an epoch—good-natured, pot-bellied Tom Hingman, the oldest A.D.A. in the office, rose heavily, fumbled with his stubby fingers among the blue indictments on the table, drew one forth, panted a few times, gasped out "People against Daniel Lowry," and looked round in a pseudo-helpless way as if not knowing exactly what to do.
There was a slight stir, and from the back of the court room came forward a funny little bow-legged old man, carrying in both hands a funny little flat-topped derby hat, and took his seat timidly at the bar of justice beside Mr. Tutt, who smiled down at him affectionately and put his arm about the threadbare shoulders as if to protect him from the evils of the world. They made a quaint and far from unpleasing picture, thought Bently Gibson, the ideal juror, and he wondered what the poor old devil could be up for.
A jury was impaneled, Bently among them; the balance of the panel was excused until two o'clock; the court room was cleared of loafers; the judge perused the indictment with a practised eye; Tom Hingman rose again, wheezed and grinned at the embattled jury; and the mill of justice began to grind.
Now the mill of justice, at least in the General Sessions of New York County, grinds exceeding fine, so far as the number of convictions is concerned. Of those brought to the bar for trial few escape; for modern talesmen, being hard-headed men, regard the whole thing as a matter of business and try to get through with it as quickly and as efficiently as possible. The bombastic spread-eagle orator, the grandiloquent gas bag, the highfaluting stump speaker gain few verdicts and win small applause except from their clients. And district attorneys who ape the bloodhound in their mien and tactics win scant approval and less acquiescence from the bored gentlemen who are forced to listen to them. Nowadays—whatever may have been the case two generations ago—each side briefly states its claims and tries to win on points.
People were apt to wonder why each succeeding administration inevitably retained stuffy old Tom Hingman at seventy-five hundred dollars a year to handle the calendar in Part Five. Yet those on the inside knew why very well. It was because Tom long ago, in his prehistoric youth, had learned that the way to secure verdicts was to appear not to care a tinker's dam whether the jury found the defendant guilty or not. He pretended never to know anything about any case in advance, to be in complete ignorance as to who the witnesses might be and to what they were going to testify, and to be terribly sorry to have to prosecute the unfortunate at the bar, though he wasn't to blame for that any more than the jury were for having to find him guilty if proven to be so, which, it seemed to him, he had been clearly proven to be. I say Tom pretended all this, yet it was more than half true, for Tom was a kind-hearted old bird. But the point was that, whether true or not, it got convictions. The jury sucking it all up in its entirety felt sorrier for the simple-minded old softy of a Tom, which they believed him to be, than they did for the defendant, who they concluded was a good deal cleverer than the assistant district attorney.
In a word, it put them on their honor as public officers not to let the administration of justice suffer merely because the A.D.A. was too old and easy-going and generally slab-sided to be really on his job. Thus, they became prosecuting attorneys themselves—in all, thirteen to one. So Tom, having thus delegated his functions to the jury, calmly left it all to them and went to sleep, which was the best thing that he did. Worth seventy-five hundred a year? Rather, seventy-five thousand!
"Gentlemen of the jury," he began haltingly, "this defendant seems to have been indicted for the crime of practising medicine without a license—a misdemeanor. I don't see exactly how he gets into this court, which is supposed to try only felony cases, but I assume my old friend Tutt made a motion to transfer the case from the Special to the General Sessions on the theory that he would stand more chance with a jury than three—er—hardened judges. Well, maybe he will—I don't know! I gather from the papers that Mr. Lowry here, after holding himself out to be a properly licensed veterinary, treated a horse belonging to the complainant. It is not a very serious offense, and you and I have no great interest in the case, but of course the public has got to be protected from charlatans, and the only way to do it is to brand as guilty those who pretend they are duly licensed to practise medicine when they are not. If you had a sick baby, Mr. Foreman, and you saw a sign 'A.S. Smith, M.D., Children's Specialist,' you would want to be sure you were not going to hire a plumber, eh? You see! That's all there is to this case!"
"All there is to this case!" murmured Mr. Tutt audibly, raising his eyes ceilingward.
"Step up here, Mr. Brown."
Mr. Brown, the supposed Doctor Simon whose horse Danny had attended, seated himself complacently in the witness chair and bowed to the jury in a professional manner. He had, he told them, been a detective employed by the state board of health for over sixteen years. It was his duty to go round and arrest people who pretended to be licensed practitioners of medicine and assumed to doctor other people and animals. There were a lot of 'em, too; the jury would be surprised—
Mr. Tutt objected to their surprise and it was stricken out by order of the court.
"I'll strike out 'and there are a lot of 'em, too,' if you say so, Mr. Tutt," offered the court, smiling, but Mr. Tutt shook his head.
"No; let it stand!" said he significantly. "Let it stand!"
"Well, anyway," continued Mr. Brown, "this here defendant Lowry, as he calls himself, is well known—"
Objected to and struck out.
"Well, this here defendant makes a practise—"
"Strike it out! What did he do?" snapped the octogenarian baboon on the bench.
"I'm tellin' you, judge," protested Brown vigorously. "This here defendant—"
"You've said that three times!" retorted the baboon. "Get along, can't you? What did he do?"
"He treated my horse for spavin here in New York at 500 West 24th Street at my request on the twentieth of last March and I paid him five dollars. He said he was a licensed veterinary and he gave me his card. Here it is."
"Well, why didn't you say so before?" remarked the judge more amiably. "Let me see the card. All right! Anything more, Mr. Hingman?"
But Mr. Hingman had long before this subsided into his chair and was emitting sounds like those from a saxophone.
"That is plain, simple testimony, Mr. Tutt," remarked the judge. "Go ahead and cross-examine."
Ephraim Tutt slowly unjointed himself, the quintessence of affability, though Mr. Brown clearly held him under suspicion.
"How long have you earned your living, my dear sir, by going round arresting people?"
"Sixteen years."
"Under what name—your own?"
"I use any name I feel like."
Mr. Tutt nodded appreciatively.
"Let us see, then. You go about pretending to be somebody you are not?"
"Put it that way, if you choose."
"And pretending to be what you are not?"
Mr. Brown eyed Mr. Tutt savagely. "What do you mean by that?"
"Didn't you tell this old gentleman beside me that you were a doctor of medicine but not a doctor of veterinary medicine—and beg him to treat your horse for that reason?"
"Sure I did. Certainly."
"Well, are you a licensed medical practitioner?"
"Look here! What's that got to do with it?" snarled Mr. Brown, looking about for aid from the sleeping Hingman.
"The question is a proper one. Answer it," directed the judge.
"No, I'm not a licensed doctor."
"Well, didn't you treat Mr. Lowry?"
The jury by this time had caught the drift of the examination and were listening with intent appreciation.
Mr. Brown leaned forward, a sickening smile of sneering superiority curling about his yellow molars.
"Ah!" he cried. "That's where I have you, sir! I only pretended to treat him. I didn't really. I only scribbled something on a piece of paper."
"You knew he couldn't read, of course?"
"Sure."
Mr. Tutt turned to the uplifted faces of the twelve. "So," he retorted, pursing his wrinkled lips and placing his fingers together in that attitude of piety which we frequently observe upon effigies of defunct ecclesiastics—"so you did the very thing for which you threw this old man at my side into jail—and for which he is now on trial! You lied to him about being a doctor! You deceived him about giving him the medical treatment he so much needed! And you arrested him after he had worked for hours to relieve the sufferings of a sick animal. By the way, it was a sick animal, wasn't it?"
"The sickest I could find," replied Brown airily.
"And he did relieve its sufferings, did he not?" continued Mr. Tutt gently.
"Very likely. I wasn't particularly interested in that end of it."
Mr. Tutt's meager frame seemed suddenly to expand until he hung over the witness chair like the genii who mushroomed so unexpectedly out of the fisherman's bottle in the Arabian Nights Entertainments.
"You were not interested in ministering to a poor horse, so sick it could hardly stand! You were only interested in imprisoning and depriving of his only form of livelihood this old man whose heart was not hardened like yours! May I ask at whose instance you went and lied to him?"
"Mr. Tutt! Mr. Tutt!" interjected the octogenarian angel. "Your examination is exceeding the bounds of judicial propriety."
Ephraim Tutt bowed low.
"A thousand pardons, Your Honor! My emotions swept me away! I most humbly apologize! But when this witness so unblushingly confesses how he played the scoundrel's part, aged case hardened practitioner as I am, my heart cries out against such infamous treachery—"
Bang! went the judge's gavel.
"You are only making it worse!" declared the court severely. "Proceed with your examination."
"Very well, Your Honor!" replied Mr. Tutt, his lips trembling with well-simulated indignation. "Now, sir, who instigated this miserable deception—I beg Your Honor's pardon! Who put you up to this game—I mean, this course of conduct?"
"Nobody," replied Brown in a surly tone.
"Did you ever hear of the United Association of Veterinaries of the Greater City of New York—sometimes referred to as The Horse Leeches' Union?" asked Mr. Tutt insinuatingly.
Mr. Brown hesitated.
"I've heard of some such organization," he admitted. "But I never heard it was called a Horse Leeches' Union."
"Didn't one of its officers come to you and say that unless something was done to reduce competition they'd have to go out of business—owing to the decrease in horses in New York?"
"I don't remember," answered Brown slowly. "One of 'em may have said something of the sort to me. But that's my business!"
"Yes!" roared Mr. Tutt suddenly. "It's your business to pretend you're a doctor when you're not, and you walk the streets a free man; and you want to send my client to Sing Sing for the same offense! That is all! I am done with you! Get down off the stand! Do not let me detain you from the practise of your unlicensed profession!"
"Mr. Tutt!" again admonished His Honor as the lawyer threw himself angrily into his chair. "This really won't do at all!"
"I beg Your Honor's pardon—a thousand times!" said Mr. Tutt in tones so humble and sincere that he almost made the angel-faced baboon believe him.
I should like to go on and describe the whole course of Danny Lowry's trial item by item, witness by witness, and tell what Mr. Tutt did to each. But I can't; there isn't room. I can only dwell upon the tactics of Mr. Tutt long enough to state that at the conclusion of the case against Daniel Lowry, wherein it was clearly, definitely and convincingly established that Danny had been practising veterinary medicine for a long time without the faintest legal right, the lawyer rose and declared emphatically to the jury that his client was absolutely, totally and unquestionably innocent, as they would see by giving proper attention to the evidence he would produce—so that he would not take up any more of their valuable time in talk.
And having made this opening statement with all the earnestness and solemnity of which he was capable Mr. Tutt called to prove the defendant's good reputation, first, Father Plunkett, the priest to whom Danny made his monthly confession and who told the jury that he knew no better man in all his parish; second, Mulqueen, who described Danny's love of horses, his knowledge of them, his mysterious intuition concerning their hidden ailments, which, being as they could not speak, it was given to few to know, and how night after night he would sit up with a sick or dying animal to relieve its pain without thought of himself or of any earthly reward; then, man after man and woman after woman from the neighborhood of West Twenty-third Street who gave Danny the best of characters, including policemen, firemen, delicatessens, hotel keepers, and Salvatore, the proprietor of the night lunch frequented by Mr. Tutt.
And last of all little Katie Lowry. It was she who found the crack in Bently's moral armor. For Eleanor his wife was of Irish ancestry and of the colleen type, like Katie; and Bently had always played up to her Irish side when courting her as a humorous short cut to a quasi familiarity, for you may call a girl "acushla" and "Ellin darlint" when otherwise you are fully aware, but for the Irish of it, she would have to be referred to as Miss Dodworth. And this wisp of a girl with her big black-fringed gray eyes peering up and out over her gray knitted shawl, but for the holes in her white stockings and the fact that the alabaster of her neck was a shade off color—faith, an' it might have been Eleanor hersilf! It is obvious that any juryman who allows his mind to be influenced by the mere fact that one of the witnesses for the defense is a pretty woman—even if she recalls to him his wife or sweet-heart—is a poor weakling, a silly ass.
Otherwise all a crook need do would be to hire a half dozen of Ziegfeld's midnight beauties to testify for him by day; and the slender darlings could work in double shifts and be whisked in auto busses from roof garden to court room. Bently was no weakling, but Katie—perhaps because it was the moment of apple blossoms and dogwood and the anniversary of his wedding day—Katie got him. Kathleen Mavourneen, and all! No man could have brought up a fatherless and motherless girl like that and keep her so simple, frank and innocent unless there was something fine about him. You see, highbrows and lowbrows are all alike below the collar bone.
And here's the catch in it. Bently had told Eleanor that very morning that none of the rogues would get by him, and he had meant it. None of them ever had—in all his years of jury service. Time and again he had been the one stubborn man to hang out all night for a verdict of guilty against eleven outraged and indignant fellow talesmen who wanted to acquit. But quite unconsciously he found himself saying that this old fellow at the bar wasn't a rogue at all. If he was a criminal he was so at most only in a Pickwickian sense. All the previous cases in which he had sat had been for murder or arson, robbery or theft, burglary, blackmail or some other outrageous offense against common morals or decency. But here was a man who had never done anything but good in his life, and was at the bar of justice charged with crime merely because some cold-blooded mercenaries thought he was interfering with their business! Bently was in a recalcitrant and indignant frame of mind against the prosecution long before the defense began. The whole proceeding seemed to him an outrageous farce. That wasn't what they were there for at all! So swiftly does the acid of sympathy corrode and weaken the stoutest conscience, the most logical of minds!
Mr. Tutt did not put Danny on the stand—why should he?—and the octogenarian judge declared the case closed on both sides. Then everybody made a speech, in which he told the jury to disregard everything everybody else said.
Mr. Tutt spoke first. He thanked the gaping jury for their attention and courtesy and kindness and intelligence and for taking the trouble to listen to him. He told them what a wise and upright judge the old baboon on the bench was; and what a sterling, honest, kindly chap the fat assistant district attorney really was. They were the highest type of public officers—but paid—he accentuated the "paid" very slightly—to do their duty as they interpreted it. Now, Mr. Hingman would have to claim that Danny Lowry was a criminal; whereas, thank heaven! they all of them—every man of them—knew he was nothing of the kind! Criminal—that old man? Mr. Tutt raised his eyes and his arms to heaven in protest. Why, one look at him would create a reasonable doubt! But the case against him failed absolutely for the following reasons:
Daniel Lowry had not practised veterinary medicine without a license in taking care of Brown's sick horse, because he had not claimed to be a veterinary; he had not been paid for his services; and because all he had done was to help a suffering animal, as any man who called himself a Christian and had a heart would have done, and as it was his duty to do. Who "shall have an ass or an ox fallen into a pit"? and so on. It was in Holy Writ! The highest law!
There was no evidence against Danny at all, because Brown was an accomplice and his testimony was not corroborated; at any rate he was a procurer and instigator of crime, an agent provocateur, a despicable liar, hypocrite and violator of the very law he was paid to uphold; and as he had held himself out as a physician to Danny Lowry everything that passed between them was privileged as a confidential communication and must be disregarded as if it had never been said.
Daniel Lowry was a man of the highest reputation, of such character that he never had been guilty of an unkind or selfish act in his entire life, much less commit crime; which alone, taken by itself, was quite enough to interject and raise a reasonable doubt—upon which they must acquit.
Then Tom Hingman got up and grimaced and said he had known Mr. Tutt all his professional life and he was a peach, but they mustn't believe what he said or let him put anythin' over on 'em, for he was pretty slick even if he was a fine old feller. Now the plain fact was, as they all knew perfectly well, that this old boy had been caught with the goods. It might be tough luck, but the law was the law and they were all there to enforce it—much as they hated to do so—and there was nothing to it but to convict and let the judge deal with the defendant with that mercy and leniency and forbearance for which he was so justly famous. He panted a few times and sat down.
Then the judge took his crack. He told the jury, in so many words, to pay no attention to either the A.D.A. or to Mr. Tutt, and to listen only to him, because he was the whole thing. The question was: Had the defendant assumed to give medical treatment to Brown's horse, for any kind of valuable consideration? In determining this they should consider all the evidence, including the fact that the prisoner had claimed to be a veterinary, had been paid for treating Brown's horse as such, had pleaded guilty in the police court, and that none of the alleged facts upon which the charge was based had been denied before them in present trial.
As he said this the pink-and-white baboon looked at them steadily and significantly for several seconds over his eyeglasses. They should consider the business card which the defendant had given to the complaining witness and in which he held himself out as a veterinary. The testimony of the complainant stood uncontradicted. The complainant was not an accomplice and his testimony did not have to be corroborated. A decoy wasn't an accomplice. That was the law. Neither was what had passed between the complainant and defendant privileged as a confidential communication, because the complainant was not a physician. That was all there was to that!
They should ask themselves what in fact the defendant had done if not practise veterinary medicine without a license? It was not controverted but that he had said he was a veterinary, administered medicine to a sick horse, offered to compound payment for medical treatment for himself, finally taken five dollars, and admitted his guilt before the magistrate. If they had any reasonable doubt—and such a doubt might of course be raised by evidence of previous good character—they would of course give it to the defendant and acquit him, but such a doubt must be no mere whim, guess or conjecture that the defendant might not after all be guilty even if the evidence seemed so to demonstrate; it must be a substantial doubt based on the evidence and such a one as would influence them in the important matters of their own daily, domestic and business lives. That was all there was to it! Let them take the case and decide it! It should not take 'em very long. The question of how the defendant should be punished, if at all, did not concern them. He would take care of that. They might safely leave it to him! He bowed and turned to his papers. The jury gathered up their coats and straggled after Cap Phelan out of the court room.