"My name is Crittenden Yollop. I am in the millinery business."

The State: "Where do you reside?"

Yollop: "418 Sagamore Terrace."

The State: "In an apartment?"

Yollop: "A little louder, if you please."

The State, raising its voice: "Repeat the question, Mr. Stenographer."

Stenographer, leaning forward a little: "'In an apartment?'"

Yollop: "Yes."

The State: "Were you living in this apartment on the 18th of December, 1919?"

Yollop: "I was."

The State: "Was that apartment entered by a burglar on the date mentioned?"

Yollop: "It was."

The State, casually: "Will you be so good as to glance around the court room and state whether you see and recognize the man who entered and robbed your apartment?"

Yollop, pointing: "Yes. That is the man."

The State: "You are sure about that?"

Yollop: "I beg pardon?"

The State, patiently: "Repeat the question, Mr. Stenographer."

Stenographer, patiently: "'You are sure about that?'"

Yollop: "Certainly."

The State: "Now, Mr. Yollop, I'm going to ask you to tell the jury, in your own words, exactly what occurred in your apartment on the morning of December 18th. Speak slowly and distinctly, and face the jury."

Mr. Yollop, assisted to some extent by the gentleman conducting the examination, related the story of the crime, dwelling with special earnestness upon the dastardly, brutal manner in which Smilk forced him, at the point of a revolver to bind and gag and otherwise maltreat the woman who had befriended him and whose jewels he was preparing to make off with when the police arrived. He carefully avoided any allusion to certain portions of the lengthy and illuminating dialogue that had taken place between him and Smilk; he said nothing of the unexampled behavior of the intruder in telephoning for the police, or the kindness revealed by him in suggesting a means for getting his captor's feet warm.

Smilk's lawyer, at the very outset of the cross-examination, clarified the air as to the nature of the defense he was going to put up for his client. After a few preliminary questions, he demanded sharply:

"Now, Mr. Yollop, didn't this defendant state to you that he had been unable to get work and that his wife and family were in such desperate straits that he was forced to commit a crime against the State in order to preserve them from actual starvation?"

Yollop: "He did not."

Counsel: "You are quite positive about that, are you?"

Yollop: "Yes."

Counsel: "Did he, at the time appear to be a robust, well-conditioned man,—that is to say, a man who looked strong enough to work and who had had sufficient nourishment to keep his body and soul together?"

Yollop: "He certainly did."

Counsel: "A big, rugged, healthy, desperate fellow, you would say?"

Yollop: "Yes."

Counsel: "Armed with a loaded revolver?"

Yollop: "Yes."

Counsel: "You would say that he was big enough and strong enough to pull a trigger, wouldn't you?"

Yollop: "I can't answer that question. I don't know how much strength it requires to pull a trigger."

Counsel: "Ahem! At any rate, he looked as though he was strong enough to pull a trigger?"

Yollop: "I dare say he could have pulled it."

Counsel: "And yet you would have the jury believe that this big, strong, well-nourished man, permitted you—By the by, how much do you weigh, Mr. Yollop!"

Yollop: "About 145 pounds, in my clothes."

Counsel: "You are six feet tall, I should say?"

Yollop: "Lacking a quarter of an inch."

Counsel: "Ahem! As I was saying, this strong, desperate man, armed with a revolver, allowed you to walk across the room and strike him in the face, causing him to crumple up and fall to the floor as if struck by a—well, someone like Jack Dempsey. Isn't that so?"

Yollop: "I never was so surprised in my life."

Counsel, thunderously: "Answer my question!"

Yollop: "Well, I hit him and he fell."

Counsel: "Do you regard yourself as an experienced boxer?"

Yollop: "No, I don't."

Counsel: "Are you what may be termed a powerful man, able to strike a powerful blow with the fist?"

Yollop: "I don't know. The defendant can answer that question better than I can."

Counsel, to the court: "Your honor, I appeal to you to direct this witness to answer my questions—"

The Court: "Confine your answers to the questions as they are put to you, Mr. Witness."

Counsel to Yollop: "Now see if you can answer this question, Mr. Yollop. You have described in direct examination that this defendant was a big, burly, rough looking man. You say you were surprised when he went down under your inexpert blow. Why were you surprised?"

Yollop: "I was surprised to find how easy it is to knock a man down."

Counsel. "I see. You had never knocked a man down before. Is that so?"

Yollop: "I had never even struck a man before."

Counsel: "And yet you found it singularly easy to deliver a blow on the jaw of an armed man with sufficient force to knock him down?"

Yollop: "I can only answer that question by saying that he went down when I struck him. I don't know how hard or how easy it is to knock a man down."

Counsel: "But you admit you were surprised?"

Yollop: "Yes. I was surprised."

Counsel, shaking his finger and speaking with something like malevolence in his voice and manner: "Don't you know, Mr. Yollop, that this man was so exhausted from lack of food that he was not only unable to defend himself from your assault but that the weakest blow—or even a gentle push with the open hand,—would have sent him sprawling?"

Yollop: "I don't know anything about that."

Counsel: "Wasn't he so weak that he could hardly walk across the room after he arose?"

Yollop: "Possibly. He was not too weak, however, to climb up two floors on a fire escape and pry open my window before I,—"

Counsel: "Now,—now,—now! Please answer my question?"

Yollop: "He complained of being dizzy. He held his hand to his jaw. That's all I can say."

Counsel: "You were pointing the revolver at him all the time, you have testified. Is that true?"

Yollop: "Yes."

Counsel: "If he had made an attempt to attack you, you would have shot him, wouldn't you?"

Yollop: "I would have shot AT him, I suppose."

Counsel, slowly, distinctly, dramatically: "In other words, you would have been strong enough to do the thing that he was unable to do,—pull a trigger."

Yollop: "I haven't said he was unable to pull a trigger."

Counsel: "Answer my question!"

The State, bouncing up: "We object to this question. It calls for a conclusion on the part of the witness that—"

The Court: "Objection sustained."

Counsel, glaring: "Exception." Then, after mopping his brow and consulting his notes: "Now, Mr. Yollop, you say you conversed with this defendant at some length while waiting for the police to arrive. Have you any recollection of this defendant telling you that he was driven to theft because he had been out of work for nearly three months?"

Yollop: "No."

Counsel: "Didn't he say something of the kind to you?"

Yollop: "He didn't say he had been out of WORK for three months."

Counsel, patiently: "Well, what did he say?"

Yollop: "He said he had been out of jail for three months."

Counsel, suddenly referring to his notes again: "Er—ahem!—By the way, Mr. Yollop, you don't hear very well, do you?"

Yollop: "I am quite deaf."

Counsel: "He might have said a great many things that you failed to hear,—especially if his voice was weak?"

Yollop: "I dare say he did."

Counsel, lifting his eyebrows significantly and nodding his head: "Ah-h-h! Didn't he tell you that he had a wife and several children?"

Yollop: "I don't recall that he said anything about several children. He said he had several wives."

Counsel, startled: "What's that?"

A bailiff, harshly addressing a woman in the front row of spectators: "Order! Order!"

The Woman in the front row: "The dirty liar!"

The State, sticking its hands in its pockets and strutting to and fro, smiling loftily: "Repeat the answer for the gentleman, Mr. Reporter."

Counsel: "Never mind,—never mind. I move that the answer be stricken out, your honor, and that you instruct the jury to disregard the supposedly facetious reply of the witness."

The Court, to Mr. Yollop: "Did this defendant say to you that he had several wives?"

Yollop, looking blandly at the jury until convinced by twelve expressions and the direction in which twenty four eyes were gazing that the court had spoken: "I beg pardon, your honor. Were you speaking to me?"

The Court, raising his voice: "Did he tell you that he had several wives?"

Yollop: "He did."

The Court: "Motion overruled. Proceed."

Counsel: "Exception. Now, Mr.—"

Child in the front row, still gazing intently at a very baldheaded man on the opposite side of the aisle: "I want my daddy! I want—"

The Court: "You must remove that child from the court room, madam. Officer, see that that child is removed. Remove all of them. You may remain here, madam, if you choose to do so, but the court cannot allow this trial to be—"

The Woman in the front row: "Please, your honor, if you will let me keep them here I'll promise to—"

The Court: "Officer, remove those children at once."

The Woman: "And what's more, he tells a dirty lie when he says—"

The Court: "Silence! You will have to leave the room also, madam. This is outrageous. Officer!"

The State, magnanimously: "May it please the court, the State has not the slightest objection to the lady and her children remaining in the court room, provided they do not interrupt these proceedings again."

The Court, melting a little: "Do you think you can keep those children quiet, madam, and refrain from audible comments yourself?"

The Woman: "Yes, sir. I'm sure I can."

The Court: "It is not my desire to be harsh with you, madam, but if this occurs again I shall have you ejected from the room. Proceed."

Counsel: "Now, Mr. Yollop, you have testified that you bound and gagged your sister at the direction and command of this defendant and that he rifled the apartment at will, keeping you covered with a revolver. You also have stated that you laid the pistol on the desk, within his reach, when you believed the police to be at the door. Why, did you do that?"

Yollop: "Because I did not think that I needed it any longer."

Counsel, sarcastically: "Oho! so that was the reason, eh?"

Yollop: "Well, I was glad to be rid of it. I was dreading all the time that it might go off accidentally. They frequently do."

Counsel: "I see. Now, isn't it a fact, Mr. Yollop, that you laid the revolver down to go to the assistance of this defendant who was in a fainting condition?"

Yollop: "No, it isn't. He was all right."

Counsel: "Don't you know that you laid it down because you were convinced in you own mind that he was physically unable to take advantage of it? That he was in no condition to use it?"

Yollop: "No."

Counsel, with a pitying look at the jury: "He was still the big, strong, able-bodied man that you had knocked down with your brawny fist, eh?"

Yollop, mildly: "He may have been a little sleepy. I was."

A Bailiff: "Order! ORDER!"

Counsel, severely: "Now, Mr. Yollop, will you tell this jury why, after you had found it so simple to knock the defendant down and disarm him earlier in the evening, you failed to repeat the experiment when he had you covered the second time?"

Yollop: "The first time I acted on the spur of the moment, and under stress of great excitement. I had had time to collect my wits by the time he gained possession of the revolver. I wasn't as foolhardy as I was at the beginning. I was afraid he would shoot me if I tackled him again."

Counsel: "Isn't it a fact that he appeared much stronger and not so weak and listless as when you first encountered him?"

Yollop: "I didn't notice any change in him."

Counsel: "Didn't you testify awhile ago that while he was sitting at your desk, under cover of the gun, he ate a whole box of chocolate creams,—at your generous invitation?"

Yollop: "Yes. He ate them, all right."

Counsel: "Wouldn't you, as an intelligent man, assume that a pound of chocolates might have the effect of restoring to a half-starved man a portion of his waning strength,—at least a sufficient amount to encourage him to put up some kind of a fight against you?"

The State: "We object. The question calls for a conclusion on the part of the witness, who does not even pretend to be an expert or an authority on pathological—"

Counsel: "But he DOES pretend to be an intelligent man, doesn't he? I submit, your honor, that the question is proper and I—"

The Court: "Objection sustained. The witness may state that the defendant ate a box of chocolate creams. He cannot give an opinion as to the effect the chocolates may or may not have had on him."

Counsel: "Exception."

Mr. Yollop was on the stand for half an hour longer. Counsel for the defense was driving home to the jury the impression that Smilk was a poor, half-starved wretch who had gone back to thieving after a valiant but hopeless attempt to find work in order to support his wife and children. He announced, in arguing an objection made by the State, that it was his intention to prove by the man's wife that Smilk was a good husband and was willing to work his fingers off for his family, but that he had been ill and unable to find steady employment.

Mrs. Champney testified at the afternoon session. She made a most unfavorable impression on the jury. She got very angry at Smilk's counsel and said such spiteful things to him and about his client that the jury began to feel sorry for both of them.

Two detectives and three policemen in uniform testified that Smilk was the picture of health and a desperate-looking character. Now anybody who has ever served on a jury in a criminal case knows the effect that the testimony of a police officer has on three fourths— and frequently four fourths,—of the jurors. For some unexplained,—though perhaps obvious reason,—the ordinary juror not only hates a policeman but refuses to believe him on oath unless he is supported by evidence of the most unassailable nature. The mere fact that the five officers swore that Smilk was healthy and rugged no doubt went a long way toward convincing the jury that the poor fellow was a physical wreck and absolutely unable to defend himself on the night of the alleged burglary.

Moreover, a skilled mind-reader would have discovered that Mr. Yollop had not made a good impression on the jury. Almost to a man, they discredited him because he was fastidious in appearance; because he was known to be a successful and prosperous business man; because he was trying to make them believe that he possessed the unheard-of courage to tackle an armed burglar; and because he was a milliner. As for Mrs. Champney, she was the embodiment of all that the average citizen resents: a combination of wealth, refinement, intelligence, arrogance and widowhood. Especially does he resent opulent widowhood.

The State rested. Mrs. Smilk was the first witness called by the defense. She told a harrowing tale of Smilk's unparalleled efforts to obtain work; of his heart-breaking disappointments; of her own loyal and cheerful struggle to provide for the children,—and for her poor sick husband,—by slaving herself almost to death at all sorts of jobs. Futhermore, she was positive that poor Cassius had reformed, that he was determined to lead an honest, upright life; all he needed was encouragement and the opportunity to show his worth. True, he had been in State's Prison twice, but in both instances it was the result of strong drink. Now that prohibition had come and he could no longer be subjected to the evils and temptations of that accursed thing generically known as rum, he was sure to be a model citizen and husband. In fact, she declared, a friend of the family,—a man very high up in city politics,—had promised to secure for Cassius an appointment as an enforcement officer in the great war that was being waged against prohibition. This seemed to make such a hit with the jury that Smilk's lawyer shrewdly decided not to press her to alter the preposition.

The cross-examination was brief.

The State: "How many children have you, Mrs. Smilk?"

Mrs. Smilk: "Seven."

The State: "The defendant is the father of all of them?"

Mrs. Smilk, with dignity: "Are you tryin' to insinuate that he ain't?"

The State: "Not at all. Answer the question, please."

Mrs. Smilk: "Yes, he is."

The State: "When did you say you were married to the defendant?"

Mrs. Smilk: "October, 1906. I got my certificate here with me, if you want to see it."

The State: "I would like to see it."

Counsel for Smilk, benignly: "The defense has no objection."

The State, after examining the document: "It is quite regular. With the court's permission, I will submit the document to the jury."

The Court, to Smilk's counsel: "Do you desire to offer this document in evidence?"

Counsel: "It had not occurred to us that it was necessary, but now that a point is being made of it, I will ask that it be introduced as evidence."

The State, passing the certificate to the court reporter for his identification mark: "You have never been divorced from the defendant, have you, Mrs. Smilk?"

Mrs. Smilk: "Of course not." Then nervously: "Excuse me, but do I get my marriage certificate back? It's the only hold I got on—"

Counsel, hastily: "Certainly, certainly, Mrs. Smilk. You need have no worry. It will be returned to you in due time."

The State, after reading the certificate aloud, hands it to the foreman, and says: "The State admits the validity of this certificate. There can be no question about it." Leans against the table and patiently waits until the document has made the rounds. "Now, Mrs. Similk, you are sure that you have not been divorced from Smilk nor he from you?"

Mrs. Smilk, stoutly; "Course I'm sure."

The State: "You heard Mr. Yollop testify that your husband said he had several wives. So far as you know that is not the case?"

Mrs. Smilk. "I don't think he ever said it to Mr. Yollop. I think Mr. Yollop lied."

The State: "I see. Then you do not believe your husband could have deceived you—I withdraw that, Mr. Reporter. You do not believe that your husband is base enough to have married another woman,—or women,—without first having obtained a legal divorce from you?"

Mrs. Smilk: "I wouldn't be up here testifying in his behalf if I thought that, you bet. He ain't that kind of a man. If I thought he was, I'd like to see him hung. I'd like to see—"

The State. "Never mind, Mrs. Smilk. We are not trying your husband for bigamy. I think that is all, your honor."

Counsel for Smilk: "You may be excused, Mrs. Smilk. Take the stand, Cassius."

Instead of obeying Cassius beckoned to him. Then followed a long, whispered conference between lawyer and client, at the end of which the former, visibly annoyed, declared that the defendant had decided not to testify. The Court indicated that it was optional with the prisoner and asked if the counsel desired to introduce any further testimony. Counsel for the defense announced that his client's decision had altered his plans and that he was forced to rest his case. The Assistant District Attorney stated that he had two witnesses to examine in rebuttal.

"Send for Mrs. Elsie Morton," he directed. "She is waiting in the District Attorney's office, Mr. Bailiff."

To the amazement of every one, Cassius Smilk started up from his chair, a wild look in his eye. He sat down instantly, however, but it was evident that he had sustained a tremendous and unexpected shock. Mr. Yollop who had purposely selected a seat in the front row of spectators from which he could occasionally exchange mutual glances of well-assumed repugnance with the rascal, caught Smilk's eye as it followed the retiring bailiff. The faintest shadow of a wink flickered for a second across that smileless, apparently troubled optic. Mr. Yollop, who had been leaning forward in his chair for the better part of the afternoon with one hand cupped behind his ear and the other manipulating the disc in a vain but determined effort to hear what was going on, suddenly relaxed into a comfortable, satisfied attitude and smiled triumphantly. He knew what was coming. And so did Smilk.

Mrs. Morton was a plump, bobbed-hair blond of thirty. She had moist carmine lips, a very white nose, strawberry-hued cheek bones, an alabaster chin and forehead, and pale, gray eyes surrounded by blue-black rims tinged with crimson. She wore a fashionable hat,—(Mr. Yollop noticed that at a glance)—a handsome greenish cloth coat with a broad moleskin collar and cuffs of the same fur, pearl gray stockings that were visible to the knees, and high gray shoes that yawned rather shamelessly at the top despite the wearer's doughtiest struggle with the laces. Her gloves, also were somewhat over-crowded. She gave her name as Mrs. Elsie Broderick Morton, married; occupation, ticket seller in a motion picture theater.

The State: "What is your husband's name and occupation?"

Witness: "Filbert Morton. So far as I know, he never had a regular occupation."

The State: "When were you and Filbert Morton married?"

Witness: "June the fourteenth, 1916."

The State: "Are you living with your husband at present?"

Witness: "I am not."

The State: "Have you ever been divorced from him?"

Witness: "I have not."

The State: "How long is it since you and he lived together?"

Witness: "A little over three years."

The State: "Would you recognize him if you were to see him now?"

Witness: "I certainly would."

The State: "When did you see him last?"

Witness: "Day before yesterday."

The State: "Tell the jury where you saw him."

Witness: "Over in the Tombs."

The State: "Surreptitiously?"

Witness: "No, sir. With my own eyes."

The State: "I mean, you saw him without his being aware of the fact that you were looking at him for the purpose of identification?"

Witness. "Yes, sir."

The State: "I will now ask you to look about this court room and tell the jury whether you see the man known to you as Filbert Morton?"

Witness, pointing to Smilk: "That's him over there."

The State: "You mean the prisoner at the bar, otherwise known as Cassius Smilk?"

Witness. "Yes, sir. That's my husband."

The State: "You are sure about that?"

Witness: "Of course, I am. I wouldn't be likely to make any mistake about a man I'd lived with for nearly six months, would I? I've got my marriage certificate here with me, if you want to see it."

Mrs. Smilk, in the first row, venomously addressing Mr. Smilk: "So that's what you was up to when you was out for six months and never come near me once, you dirty—"

All bailiffs in unison: "Silence! Order in the court!"

The State, presently: "Was he a good, kind, devoted husband to you, Mrs. Morton?"

Witness: "Well, if you mean did he provide me with clothes and jewels and gewgaws and all such, yes. He was always bringing me home rings and bracelets and necklaces and things. But if you mean did he ever give me any money to buy food with and keep the flat going, no. I slaved my head off to get grub for him all the time we were living together."

The State: "Did he ever mistreat you?"

Witness: "Oh, once in a while he used to give me a rap in the eye, or a kick in the slats, or something like that, but on the whole he was pretty sensible."

The State: "Sensible? In what way?"

Witness: "I mean he was sensible enough not to punch his meal ticket too often."

It is not necessary to go any farther into the direct examination of Mrs. Elsie Morton, nor into the half-hearted efforts of Smilk's disgusted lawyer to shake her in cross-examination. Nor is it necessary to introduce here the testimony of Mrs. Jennie Finchley, who succeeded her on the stand. It appears that Jennie was married in 1914 when Smilk was out for three months. She supported him for several months in 1916,—up to the time he packed up and left her on the morning of the fourteenth of June, that year. As Herbert Finchley he not only managed to live comfortably off the proceeds of her delicatessen, but in leaving her he took with him nine hundred dollars that she had saved out of the business despite his gormandizing.



CHAPTER SIX



Despite the fact that the jury was out just a few minutes short of seven hours, it finally came in with a verdict "guilty as charged." Twice the devoted twelve returned to the court room for further instructions from the judge. Once they wanted to know if it was possible to convict the prisoner for bigamy instead of burglary, and the other time it was to have certain portions of Mr. Yollop's testimony read to them. Immediately upon retiring an amicable and friendly discussion took place in the crowded, stuffy little jury room. Eight men lighted black cigars, two lighted their pipes, one joyously, almost ravenously resorted to a package of "Lucky Strikes," while the twelfth man announced that he did not smoke. He had been obliged to give it up because of blood pressure or something like that.

The foreman, or Juror No. 1, was an insurance agent. He was a man of fifty and he knew how to talk. His voice was loud, firm, overriding and unconquerable; his manner suave, tolerant, persuasive. The bailiff, after obtaining each man's telephone number and the message he wished to have sent to his home (if any), informed the jurors that he would be waiting just outside if they wanted him and then departed, locking the door behind him; whereupon the foreman looked at his watch and announced that it was twenty minutes to four. This statement resulted in the first disagreement. No two watches were alike. Some little time was consumed in proving that all twelve of them were right and at the same time wrong, paradoxical as it may sound. After the question of the hour had been disposed of, the foreman suggested that an informal ballot be taken for the purpose of ascertaining the views of the gentlemen as to the guilt or the innocence of the defendant. The result of this so-called informal ballot was nine for conviction, three for acquittal.

"Now we know where we stand," explained the foreman. "In view of the fact that nine of us are for conviction and only three for acquittal it seems to me that it is up to the minority to give their reasons for not agreeing with the majority. I see by your ballot, Mr.—er —Mr. Sandusky, that you are in favor of acquitting—"

"My name is I. M. Pushkin," interrupted Juror No. 7. "I wrote it plain enough, didn't I?"

"The initials confused me," explained the foreman. "Well, let's hear why you think he ought to be acquitted."

"I know what it is to be hungry, that's why. I see the time when I first come to this country when I didn't have nothing to eat for two-three days at a time, and ever'body tellin' me to go to hell out of here when I ask for a job or when I tell 'em I ain't had nothing to eat since yesterday morning and won't they please to help a poor feller what ain't had nothing to eat since yesterday morning, and—"

Six or seven voices interrupted him. It was Juror No. 4, salesman, who finally succeeded in getting a detached question to him.

"As I was saying, where do you get any evidence that he WAS hungry?"

"I guess you wasn't paying much attention to the evidence," retorted Mr. Pushkin. "Didn't you hear that lawyer say, over and over yet, how he was almost starved to death? Didn't—Wait a minute!—didn't you hear him say to that deaf witness that the prisoner fell down like a log when he push him in the face? Just push him,—nothing else. Didn't you hear that?"

"Sure I heard it. We all heard it. But what EVIDENCE is there?"

"Evidence? My gracious, ain't that enough? Ain't one man's word as good as another's? And say, let me ask you this: Is there any evidence that he wasn't almost starved to death! Well! Humph! I guess not. There ain't a single witness that says he wasn't hungry— not one, I tell you. You can't—"

"Didn't all them policemen swear that he was as husky as—"

"Say, you can't believe a policeman about anything. It's their business. That's what their job is. I know all about those fellers. Why, long time ago when I first come to this country, I told a hundred policeman I was almost starved to death and say, do you think they believed me? You bet they didn't. They told me to get a move on, get the hell out of this, beat it,—you bet I know all about them fellers. I—"

The foreman interrupted Mr. Pushkin.

"So you want to acquit the defendant because his lawyer said he was hungry,—is that it?"

"I don't blame nobody for stealing when he is almost starved to death and got a wife and children almost starved to death too because he cannot get a job yet. You bet I don't. I don't—"

"Well, of all the damned—"

"Can you beat this for—"

"I've heard a lot of—"

The foreman rapped vigorously with an inkwell, splashing the fluid over his fingers and quite a considerable area of table-top.

"Gentlemen! Gentlemen! Let us talk this thing over quietly and calmly. Mr. Pushkin seems to have a wrong conception as to what constitutes evidence. Now, let me have the floor for a few minutes, and I'll try to explain to him what constitutes evidence."

One hour and twenty minutes later Mr. Pushkin admitted that he DID have a wrong conception as to what constitutes evidence, but still maintained that he hated like sin to convict a man who had tried so hard to get work and couldn't.

The non-smoking gentleman was one of the three who comprised the minority. He was a mild little chap with weak eyes and the sniffles. By profession he was a clock maker. He said he believed that the defendant was unquestionably guilty of bigamy and that the State had erred in charging him with burglary. He was perfectly willing to send the man up for bigamy because, according to the evidence, it took precedence over the crime alleged to have been committed in December, 1919. In other words, he explained, Smilk had committed bigamy some years prior to the burglary of Mr. Yollop's apartment and he believed in taking things in their regular order. Of course, he went on to say, he would be governed by the opinion of the judge if it were possible under the circumstances to obtain it. He did not think it would be legal to put the burglary charge ahead of the bigamy charge, but if the judge so ordered he would submit, notwithstanding his conviction that it would be unconstitutional. Several gentlemen wanted to know what the constitution had to do with it, and he, becoming somewhat exasperated, declared that the present jury system is a joke, an absolute joke.

"Well, it's just such men as you that make it a joke," growled Juror No. 12.

"Gentlemen! Gentlemen!" admonished the foreman. "Let us have no recriminations, please. It occurs to me that we ought to send a note to the court, asking for instructions on this point."

The note was written and despatched in care of the glowering bailiff, who, it seems, had an engagement to go to the movies that evening and couldn't believe his ears when he ascertained that the boobs had not yet agreed upon a verdict in what he regarded as the clearest case that had ever come under his notice.

In the meantime, the third juror explained his vote for acquittal. He was a large, heavy-jowled man with sandy mustache and a vacancy among his upper teeth into which a pipe-stem fitted neatly. He was the superintendent of an apartment building in Lenox Avenue.

"I think it's a frame-up," he said, pausing to use the bicuspid vacancy for the purpose of expectoration. "That's what I think it is. Now I'm in a position as superintendent of a flat building to know a lot about what goes on among the bachelor tenants. I ain't sayin' that the prisoner didn't go to Mr. What's-His-Name's flat without an invitation. You bet your life he wasn't expected, if my guess is correct. I tell you what I think,—and my opinion ought to be worth a lot, lemme tell you,—I think there's something back of all this that wasn't brought out in the trial. Now here's something I bet not one of you fellers has thought about. What evidence is there that this Chancy woman is that deaf man's sister? Not a blamed word of evidence, except their own statement. She ain't his sister any more than I am. Did you ever see two people that looked less like they was related to each other? You bet you didn't. Now I got a hunch that the prisoner follered her to that guy's apartment. What for, I don't know. Maybe for blackmail. He got onto what was goin' on, and makes up his mind to rake in a nice bunch of hush-money. That's been done a couple of times in the apartment buildin' I'm superintendent of. A feller I had workin' for me as a porter cleaned up five or six hundred dollars that way, he told me. This robbery business sounds mighty fishy to me. Now I'm only tellin' you the way the thing looks to me. I don't think that woman is Wollop's sister any more than she is mine. It's a frame-up, the whole thing is. Look at the way this Wollop says he tied her up and all that. Humph!—Can't you fellers see through this whole business? He tied her up so's the police would find her tied up, that's what he done. The chances are she's some woman customer of his that's got stuck on him, tryin' hats and all that,—and maybe gettin' all the hats she wants for nothin',—and this feller Smilk he gets onto the game and goes out for a little money. See what I mean?"

So loud and so furious was the discussion that followed the extraordinary deductions of Juror No. 9, that the bailiff had to rap half a dozen times before he could make himself heard. Finally the foreman, purple in the face, called out through the haze of smoke:

"Come in!"

"The judge says for you to come into the court room for instructions," announced the officer. "Never mind your hats and coats. No cigars, gents. Leave 'em here. They'll be safe. Come on, now. It's nearly time to go to supper."

The judge informed the jury that they could not find the man guilty of bigamy and curtly ordered them back to their room for further deliberation. They took another ballot before going out to supper at a nearby restaurant, guarded by six bailiffs, who warned them not to discuss the case while outside the jury room. The second ballot, by the way, was eight for conviction, four for acquittal. Juror No. 5 had come over to the minority. He said there was something in the theory of Juror No. 9.

There was a very positive disagreement concerning the meal they were about to partake of. The foreman spoke of it as dinner and was openly sneered at by eleven gentlemen who had never called it anything but supper. The little clockmaker, having been overruled by the judge, was in a nasty temper. He accused the foreman of being a republican. He said no democrat ever called it dinner. It wasn't democratic.

Upon their return to the jury room after a meal on which there was complete agreement and which brought out considerable talk about the penuriousness of the County of New York, they settled down to a prolonged and profound discussion of their differences. It soon developed that all but two of the jurors had been favorably inclined toward the defendant up to the time the State introduced the unexpected wives. They had regarded him as a poor unfortunate, driven to crime by adversity, and after a fashion the victim of an arrogant and soulless police system, aided and abetted by the District Attorney's minions, a contemptible robber in the person of a dealer in women's hats, and a bejeweled snob who insulted their intelligence by trying to convince them that her confidence had been misplaced. But the two wives settled it. Smilk was a rascal. He ought to be hung.

"But," argued No. 9, "how the devil do we know that them women ARE his wives. Their evidence ain't supported, is it?"

"Didn't they have certificates?" demanded another hotly.

"Sure. But that don't prove that he was the man, does it?"

"And didn't the prisoner jump up and yell: 'My God, it's all off! You've got me cold! You've got me dead to rights,'" cried another.

"Oh, there's no use arguin' with you guys," roared No. 9, disgustedly.

Later on they returned to the court room to have certain parts of Mr. Yollop's testimony read to them. After this a ballot was taken, and the only man for acquittal was the clock-maker. At twenty minutes to eleven he succumbed, not to argument or persuasion or reason but to a chill February draft that blew in through the open window above his head. He couldn't get away from it. The others wouldn't let him. They got him up in a corner and he couldn't break through. He told them he was getting pneumonia, that the draft would be the death of him, that he'd take back what he said about the smoke almost suffocating him,—still they surrounded him, and argued with him, and called him things he didn't feel physically able to call them, and at last he voted guilty.

Smilk, haggard with worry,—for he had come to think, as the hours went by without a verdict, that there would be a disagreement or, worse than that, an acquittal, in which case he would have to face the charge of bigamy that the district attorney had more than intimated,—Smilk slouched dejectedly into the court room a few minutes before eleven o'clock and went through the familiar process of facing the jury while the jury faced him. He straightened up eagerly when the verdict was read. He took a long, deep breath. His eyes brightened,—they almost twinkled,—as they searched the room in quest of Mr. Yollop. He was disappointed to find that the gentle milliner was not there to hear the good news.

The judge sentenced him to twenty years imprisonment at hard labor, and he went back to his cell in the Tombs, a triumphant, vindicated champion of the laws of his State, a doughty warrior carrying the banner of justice up to the very guns of sentiment.

Mr. Yollop received a friendly letter from him some two months after his return to Sing Sing. He found it early one morning on his library table, sealed but minus the stamp that the government exacts for safe and conscientious delivery. Mr. Yollop's stenographer, being more or less finicky about English as it should be written, even by thieves, is responsible for the transcript in which it is here presented:

DEAR FRIEND—

I hope this finds you in the best of health. I am back on the job and very glad to be so. It is very gay up here and I am getting fat also. Regular hours is doing it, and no worry I suppose. I wish to inform you that the movies have improved considerable since I was here before and our baseball team is much better. Also the concerts and so on. Grub also up to standard. I never eat better grub at the Ritz-Carlton. Which is no lie either. Well, Mr. Yollop, before closing I want to say you done me a mighty good turn when you thought of them two wives of mine. If it had not been for them two women I guess it would have been all off with me. I wish you would drop in here to see me if you are ever up this way so as I can thank you in person. Which reminds me. There is some talk among the boys that a movement is on foot to have a regular fancy dress ball up here once a month. Some kind of a benevolent society is working on it they say. Big orchestra, eats from Delmonico's and a crowd of girls from the smart set to dance with us. So as we won't get out of practice, I suppose. Soon as I hear when the first dance is to be I will let you know and maybe you will come up to be present. I will introduce you to a lot of swell dames and maybe you can drum up a nice trade among them on account of their all being fashionable and needing a good many hats. It must be great to be in a business like yours, where nobody cares how many times you rob them just so you leave them enough money to buy shoes with, because if you ask me they ain't wearing much of anything but hats and shoes these days. Well, I guess I will close, Mr. Yollop. With kind regards from yours truly, I remain

Yours truly, C. SMILK.

P. S.—I forgot to mention that this letter was left in your library by a pal of mine who dropped in last night while you was asleep, unless he got nabbed like a darned fool before he got a chance to do this friendly little errand for me. He dropped in to get that wad of bills I left there some time ago. If you get this letter he got the roll.

THE END