The thirteenth juror : a tale out of court

Front matter

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Cornell University Law Library

THE GIFT OF

Contents

CHAPTER PAGE

i An Appearance 3 in Newly Discovered Evidence .... 28

IV The Top of the Calendar .... 41

CHAPTER I "They reckon ill who leave me out."

Emerson.

AS a matter of record, the Circuit Court adjourns twice a day during its stay at Belo. As a matter of fact, it never adjourns at all, for when the judge leaves the bench the proceedings are merely transferred from the floor of the court-house to the lobby of the Reeve House, where lawyers, witnesses, litigants, and jurors fraternize in continuous session until the reopening of the official tribunal. Indeed, that antiquated, if not ancient, hostelry — the Reeve House — is quite generally regarded by Fraser County in the light of an annex to the Court, and some even profess to believe that it is the more important forum of the two. Certainly the village cynic is not alone in championing it upon the ground that cases are really settled there, whereas in the Court they are merely kicked up the stairway of appeal. But public opinion in Belo rather frowns on remarks of that character, as Dick Poinder learned to his cost when he announced, after one of his exasperating experiences in Gedney's case, that the lobby dispensed justice and the Court dispensed with it. In fact, that travel-stained witticism was in some danger of being taken too seriously until the Bar laughed it away by subjecting its perpetrator to a mock trial for plagiarism during the hilarious wind-up of the Christmas term.

On the evening that the Resurrectionist first appeared upon the scene the lobby was sitting as a sort of Court of Appeal, reviewing the day's work just completed at the rival tribunal on the opposite side of the road. Every chair in the circle that ringed the huge stove was occupied; half a dozen unclaimed trunks had been dragged from a corner to serve as settees; the writing-table had been utilized as a gallery; even the proprietor's sanctum had been invaded and robbed of its solitary high stool, and Old Man Reeve, thus deprived of his favorite throne, had perched himself on the office desk, with his feet dangling over the front, from which post of vantage he seemed to be presiding over the assemblage with all the commanding calmness of a judge upon the bench. Old Man Reeve had undoubtedly once been young, but his youth probably antedated the period of the yellow, cracked, and fly-blown lithograph of the Bar of Fraser County, which had served as the sole ornament of the lobby since the early seventies. At all events, those who knew him at that distant day asserted that he was an old man then. But if he had aged prematurely, time had dealt kindly with him on the whole, for his round, clean-shaven face had suffered no change for many a season, and no one thought any more of his years than of the fact that he always wore low black shoes and white socks, and never condescended to a collar. His neighbors in Belo, it is true, reported that his vitality often seemed to wane during vacations, when the county seat relapsed into its normal role of a retired inland village; but each advent of the Court apparently gave him a new lease of life, and he invariably welcomed the returning Bench and Bar with all the vigor and heartiness of a man in the prime of life.

Certainly there was no keener observer in Fraser County than Peter Reeve as he sat on his improvised rostrum, pipe in hand, beaming a benediction on his assembled guests. He knew every man in the place and just what had brought him there; he could name every juror who had sat on any case of importance during the past thirty years, and give the inside history of his verdict; he was generally familiar with the claims of the litigants long before they reached the court-room ; and there were not many lawyers who could tell him anything he did not already know concerning the private affairs of their clients.

For instance, as he peered through the gathering haze of tobacco smoke, he knew exactly what was troubling the frail little man who, note-book in hand, was hovering on the outskirts of the wide circle surrounding the stove. David Gedney and

Gedney implored other litigants to concede him the right of way on the jury calendar he had been friends since the day when the firm of Gedney & Son first started in business just across the State line, and he had seen that business expand and prosper until it began to threaten the gigantic Farm Supply Company with a competition as unwelcome as it was unprecedented. It was not surprising, therefore, that he was familiar with every detail of the bitter trade war that had followed, the upshot of which was a litigation which had crippled his friend's resources and was now menacing the very existence of his firm. For five terms — more than a year — he had applauded Gedney's dauntless struggle to bring his enemies to bay in the court-room, but thus far the Supply Company had managed to postpone the day of reckoning by the various shifts and evasions familiar to all the Bar, but particularly well known to its attorney, Mr. Artemus Peck, one of Fraser County's most expert defeaters of the law. Gedney had long since reached that dangerous period in the pursuit of justice when clients are neither laymen nor lawyers. In fact, Dick Poinder, his counsel, had been obliged to protest against his over-anxious interference time and again, reminding him that his business demanded his whole attention and that by neglecting it he was positively imperiling his cause. But Gedney, with his property all tied up and his credit exhausted, was beyond advice, and term after term he had haunted the lobby, note-book in hand, interviewing lawyers, buttonholing court clerks, imploring other litigants to concede him the right of way on the jury calendar, and generally working himself into a nervous condition bordering on insanity. Indeed, on this particular evening there was a really dangerous gleam in his tired eyes as he completed his tour of the room, and, sinking down on one of the crowded trunks, whispered to his nearest neighbor that he held the top of the calendar at last and that hell itself could n't prevent his case from being heard in the morning.

The young farmer to whom this enigmatical remark was addressed glanced apprehensively at the speaker and promptly vacated his seat on pretense of seeking a light for his cigar.

"Who 's the crazy old guy with the note-book, Pete?" he inquired as he reached the desk.

Old Man Reeve, listening to the tag end of a 10 story from his side of the circle, disregarded the question for a moment, and then striking a match on his trousers and shading the flame with his hands, proceeded to relight his pipe.

"Reckon your Paw 'd feel kinder set up, Eph, if he b'lieved you 'd ever be as crazy as Dave Gedney," he replied, between puffs.

The youth laughed uneasily and shot a swift glance at his recent neighbor.

"Gosh! Is that Gedney of Gedney & Son?" he exclaimed. "No wonder I didn't recognize him. He's changed something terrible, and as for talk—"

"You can't alwuz tell about a man by his talk, Eph," interrupted Reeve. "For instance, ef I sized you up by what you 've just let on as to Gedney, I 'd kinder suspect you wuz n't all intellect. . But maybe you 're a better judge er outsides, son," he continued, "and ef so, you can tell me what 's coming in at the door right now. Blamed ef I ever saw the like of it afore in Fraser County."

The individual to whom the old man thus called attention was certainly an unfamiliar type to the

ll denizens of the Reeve House, for all conversation had instantly ceased as he crossed the threshold, and every eye was centered upon him as he closed the door and stood looking inquiringly about him. Perhaps his huge stature, pompous bearing, massive head, and strong, hard face would have attracted more than a passing notice in any company, but it was not his face or his physique at which the habitues of the lobby stared in fascination. It was his high silk hat, his fur-lined, broadcloth overcoat, his chamois gloves, patent leather shoes, and mouse-gray spats that held them spellbound. But if the stranger was aware of the sensation he was creating he did not betray it as he leisurely unbuttoned his great-coat, and, shaking the powder of snow from its broad folds, glanced superciliously over the room. Then he strode directly to the desk and paused before its occupant.

Old Man Reeve did not stir from his perch as the visitor approached, but nodded a greeting and glanced through his big-rimmed spectacles at the card which was offered him. Then he looked up with a comical, questioning expression and, cocking his head, apparently invited explanation. The lobby strained its ears to catch some echo of the conversation that followed, but the newcomer spoke in low tones and the proprietor confined himself to monosyllables, accompanied with a wide-eyed stare of amused astonishment and punctuated by an occasional nod or shake of the head. As the dialogue continued, however, it was apparent that the visitor was becoming irritated, and finally, when he turned away with a muttered exclamation of disgust, and, striding across the room, banged the door behind him, a chorus of inquiry broke forth.

"What's the matter, Pete? . . . Didn't his nibs like our looks'? . . . Who 's his Royal Highness, old man 1 ? . . . Say, Pete, do you charge extra for shows like that? . . . Why didn't you tell us you knew the Prince of Monte Cristo, Grandpa? . . . That was n't any common Prince, Mr. Reeve. That was a New York chauffeur! . . . No, it wasn't! It was a soap advertisement. What 's his brand, Pete?"

Old Man Reeve glanced at the card in his hand and smilingly shook his head at the storm of questions.

"You kin search me, boys," he answered. "He did n't tell me what he wuz, but only what he wanted. Bet you 'd never guess what it wuz, though. A suit of rooms and a bath !"

A roar of laughter greeted this announcement, in which the host of the Reeve House joined so heartily that he was obliged to remove his spectacles and wipe the moisture from his eyes.

"He allowed," he continued, chuckling, "that he telegraphed for that suit day afore yesterday, and was madder than hops when I told him we did n't have anything but lawsuits ready for him. I 'm going to have that telegram framed ef Bill Watson ever gits time to send it over from the depot. Reckon it 'd kinder give a stylish tone to the House, eh, boys'?"

"Where 's he gone, Pete?" inquired Brundage, the State's Attorney.

"I sent him down to Miss Prescott's. She turned one of her bay windows into a bathroom last summer, and maybe she kin fix him up.

He '11 be in hot water, though, if he puts on any airs with Ellen. O Lordy, yes!"

"What alias is the Great Mogul using just at present"?" drawled Poinder, tipping back his chair against one of the columns supporting the lobby ceiling.

"This bit of pasteboard is labeled 'Wallace Dunham,' " responded the old man.

Poinder's chair bumped the floor as he leaned eagerly toward the speaker.

"Wallace Dunham!" he exclaimed. "Not Wallace Dunham, the Resurrectionist 1 ? Yes, by George, it is ! I knew I 'd seen his face before."

Chapter II

"All thieves who could my fees afford Relied on my orations, And many a burglar I 've restored To his friends and his relations."

Gilbert.

THE group around the wood stove stared silently at the speaker.

"What did you say the gentleman was, Dick?" inquired Brundage after a pause. "An Insurrectionist?"

"No, the 'Resurrectionist.' At least that s what they used to call him in the city fifteen or twenty years ago."

"Is he a minister 1 ?"

"No," whispered Hixon, the enfant terrible of the Bar. "He 7 s the undertaker that s s going to bury Gedney after the trial to-morrow. Eh, Poinder?"

The lawyer frowned and cast an anxious glance at his client's careworn face.

"Shut up, Hixon," muttered Brundage. "That 's a rotten kind of joking. Did you say your friend was a minister, Dick 1 ?"

"No, indeed," returned Poinder, smilingly. "He 's a lawyer with a practice as big as a Trust. What the dickens is he doing in Belo, I wonder?"

"Why do you call him the Resurrectionist?"

"Oh, that *s just a nickname. His specialty is reviving cases that are generally considered dead and done for. At least that 's what he made his reputation on, and it was well earned, too, for I once knew him to bring a dead man back to life."

"Oh, come now ! That 's too much, even for the Munchausen of the lobby," protested a voice from the other side of the circle, and Poinder, glancing in that direction, observed that his opponent Artemus Peck had risen.

"Well, it may be too much for you, my dear Baron," he drawled. "You 're the best judge of that. But truth is stranger than even your fictions, as I can show you if you '11 wait a minute."

"Sorry I can't stay, but I 've never had any reason to doubt the strangeness of your truths, Poinder. Come on, Bob, if you 're coming."

Hixon rose as Peck passed out of the front door, and for some moments after he had followed his friend the lobby was uncomfortably quiet. There was always too much bitterness in Poinder's and Peck's repartee for the Bar of Fraser County. It invariably smacked of a family quarrel disagreeably embarrassing to all within earshot, but Old Man Reeve usually came to the rescue, as he did on this occasion.

"Go on and tell us about your Revivalist, Mr. Poinder," he suggested.

"Resurrectionist, Pete," corrected the lawyer. "Revivalist is much too mild a term. Well, maybe some of you remember that I served my legal apprenticeship in the office of the State's Attorney in the big city more years ago than I like to confess. Anyway, it was there I first met Wallace Dunham. He was n't so fat and prosperous as he is now, and he did n't despise criminal business when it knocked at his door. But he never was the kind of fellow that practises for love or fame, so I was astonished when he appeared as the counsel for Buck Denslow, who had neither money nor friends. Buck was just a common ruffian who had betrayed one of his gang to the police and then shot another pal who discovered his treachery and threatened to expose it. He was caught red-handed, and I suppose it was because the case was absolutely indefensible that its prosecution was intrusted to me, for I was nothing but a novice at the time. Well, I venture to say that no tyro at the Bar ever received as rough an initiation into the ways of the law as came to me out of the case of the People vs. Denslow from the moment Wallace Dunham appeared upon the scene.

"He began proceedings by moving to set aside the indictment on the ground that it did not state that Denslow's victim, Ben Limond, was a human being, and that no one could be indicted for murder unless he had killed a human being. As a matter of fact, Limond was more of a brute than a man, and at first I regarded Dunham's point as a joke. Anyhow, I never dreamed that the courts would listen to it. . . . Did you say they wouldn't, Corning? All right, my boy! I'll give you verse and chapter for that case and you can follow it as I did, all the way up to the highest tribunal in the State. You '11 do it quicker than I did, however, for by the time the last court disposed of his arguments Dunham had consumed the best part of a year, and all this time his client had been enjoying the hospitality of one of our most comfortable jails — a fact which was beginning to attract the attention of the press. Of course, I was n't to blame for that, but I had no desire to be criticized, and I pressed the case to trial with the utmost vigor. Indeed, I rushed it so furiously into court that Dunham nearly broke my heart when he tripped me with a dictionary."

"Tripped you with a dictionary!" interrupted Corning. "That 's a joke, is n't it 1 ?"

"Indeed it was no joke. The day before the case was set for trial Dunham called at my office to advise me — out of professional courtesy, he said — that there was an error in that part of the indictment which described Limond's wound as being in his breast. 'Well, it was in his breast,'

I asserted. No mistake about that. 'But not in his b-r-e-s-t,' he persisted, showing me the mistake in typewriting the word. I laughed, but he retorted by pulling down one of the law reports from my shelves and pointing to a decision that declared that such misspelling in an indictment rendered it fatally defective. . . . Maybe you think there is no such case, Corning? Oh! You have seen that one, have you? Well, I did n't thank Dunham for showing it to me. The old fox merely wanted to save himself the trouble of drawing up motion papers, and knew this pretended courtesy would serve him equally well. And it did. I consulted with my chief, of course, but he decided it was n't safe to proceed in the face of that decision, and we began our proceedings all over again.

"By this time you can readily believe that I had grown somewhat wary, and I tell you every / was crossed and every i dotted before my new papers were filed. Indeed, they must have been pretty well drawn, for Dunham was plainly worried, and he fairly deluged me with motions to inspect the minutes of the grand jury, to change the place of trial, to determine the sanity of the prisoner, to stay the trial pending the arrival of missing witnesses, to do anything and everything that would delay the proceedings or free his man by hook or crook. I 've got the documents that were printed at the State's expense in the various appeals before a jury was even as much as summoned in Denslow's case, and I give you my word they fill two volumes, each as big as an unabridged dictionary.

"But we got to trial at last, and though the case was simplicity itself, I prepared it with the utmost care. Not too carefully, however, for Dunham poured exceptions into the record in a steady stream, and strung out the testimony day after day until he accumulated such a mass of stuff that two assistants of mine had to work nearly a month with the stenographers' notes when it became necessary to print the paper-s^pn appeal. . . . Oh, yes, of course I convicted Denslow. But that is n't the point of my yarn. You don't suppose I 'd bore you fellows if I 'd nothing more to offer than the old, old story of the law's delays. As a matter of fact, I convicted Buck four times.

"I don't know that the details of that long game of 'last ta^ would interest you, but some of them were a bit out of the ordinary. After the first verdict the appellate court ordered a new trial because of a technical objection which Dunham had interposed to the method of drawing jurors. It was a perfectly absurd quibble, but there was no help for it, so I put him on trial again, and, avoiding the previous pitfall, obtained another conviction. Did it stand? It did not. The jury had agreed late at night, and the judge had ordered them to render a sealed verdict which the foreman had recorded in due form, except that he had written that the prisoner was guilty of murder in the first decree instead of the first degree. That was Dunham's chance, and, with the aid of his old reliable dictionary and the learned reviewing court, his client received a new lease of life and another new trial.

"New trials for old was the order of the day with me now, so I was rather surprised to get through two appeals after the next conviction without mishap. But the Court of last resort came to Denslow's rescue just in the nick of time with an opinion declaring that the judge who sentenced the prisoner had erred in failing to ask him the formal question as to whether or not he knew of any reason why sentence should not be pronounced against him. ... I '11 show you that masterpiece of judicial erudition some day, if you have n't already come across it in the books.

"Well, practice makes perfect, and the next time I brought my man before a jury I sustained his conviction through all the courts, and the day set for his execution was just five years after the commission of his crime, which up to that date had cost the State nearly twenty thousand dollars."

"I know another case that took even longer than that," observed one of the audience, as Poinder paused.

"Of course you do," he admitted. "The law books of this country are filled with them. But you won't find the climax of this case in the records, my friend."

"Don't get alarmed, Bigelow," admonished 26

Foster, addressing the interrupter. "This story does n't infringe on any of yours. Did n't you hear Dick say there was a point to it? Go on, Poinder."

Chapter III

"I would rather be eaten to death with rust than be scoured to nothing by perpetual motion."

Henry IV.

*T)ERHAPS I needn't tell you that long be- A fore I convicted his client for the fourth time Dunham and I had become pretty bitter enemies," continued Poinder as the laughter subsided. "I don't believe I 'd spoken a word to him outside the court-room for three years, and my office associates, who had begun by joking me about the case, had ended by sympathizing with me and sharing my feeling toward the Resurrectionist. The final decision of our highest courts was accordingly welcomed as an office triumph, and I was congratulated accordingly. But the congratulations were premature.

"It was about this time that electrocution was substituted for hanging in our State, and Dunham appealed to the Supreme Court of the United States on the ground that the new law violated the Constitution. No one supposed that that tribunal would interfere, and, as a matter of fact, it made such short work of the contention that Denslow merely gained a few months' respite. There was then only one move left for his counsel, and of course he took it by petitioning the Governor for clemency on behalf of his client. But I knew that if the Executive interfered to save that coldblooded murderer he might as well sign a commutation in blank for all assassins, and I had no fear of the result. Nevertheless, it was not until I filed away his brief memorandum denying the petition that I regarded the case of People vs. Denslow as officially closed, and felt justified in dismissing it from my mind."

"I should think you 'd have nicknamed Dunham the Obstructionist instead of the Resurrectionist," observed Foster.

"Well, we might," resumed Poinder, "if he 'd displayed nothing more than commonplace jugglery with the law. But though Denslow was, figuratively speaking, at the end of his rope, his lawyer was n't, and a few days before the date set for Buck's execution this was impressed on my mind in a really startling fashion.

"I had arrived at my office somewhat earlier in the morning than usual, and was surprised to find a visitor already waiting for me in the anteroom, who introduced himself as Dr. Emile Atwood. He 's dead now — God rest his soul ! — but that was n't his right name, and I 'm not going to tell you what it really was. Naturally, the name he used suggested nothing to me, but he appeared to be a highly intelligent, cultured gentleman, and I begged him to state his business, which he did by remarking that he had called to talk about the case of Buck Denslow.

" 'Good Lord !' I exclaimed. 'I thought I was through with that case. Well, what about it?"

" 'I want to ask you,' he inquired, 'if there is still any chance of a reprieve or commutation of Denslow's sentence?'

" 'Certainly not,' I replied. 'He ought to have paid the penalty of his crime five years ago. He and his lawyer have cost the State nearly twenty thousand dollars already, and I think it 's about, time they stopped cheating the law at the public's expense.'

" 'The defense has been quite as costly,' he observed, reflectively.

" 'Nonsense !' I retorted. 'Denslow has n't a cent and Dunham has spent comparatively little.'

" 'He 's spent nothing,' he replied. 'But still, if it is any satisfaction to the State to know it, the defense has been costly. I know it, because I supplied the funds myself.'

"There was a time in my professional career when that reply would have astonished me, but I had long since schooled myself against surprise.

" 'I see,' I responded, quietly. 'You thought Buck innocent 1 ?'

" 'On the contrary,' he replied with equal calmness, 'I knew he was guilty. A more contemptible murderer never lived.'

" 'Then why, in the name of common sense, my dear sir, did you spend money to defend him?' I demanded.

" 'Merely to appease my conscience,' he replied. 'I killed Ben Limond myself.'

"All my years of training were not proof against the exclamation of incredulity that escaped me. And yet there was something in the doctor's hard, matter-of-fact tone — something in the way he looked at me as he removed his glasses and calmly polished the lenses in his handkerchief — which convinced me that he believed he was speaking the truth.

" 'You must be out of your mind !' I asserted. 'Denslow and nobody but Denslow killed Limond. There were two eye-witnesses of the murder. No less than four juries have convicted the man of that crime. What in the world do you mean by saying you are guilty of it?'

"The doctor readjusted his glasses and settled back in his chair.

" 'I have no wish to be melodramatic,' he observed, dispassionately. 'I hate all posing of that sort, and the facts are very simple.'

"I did not trust myself to speak, but merely nodded approvingly.

" 'Limond was brought to the Emergency Hos- 32 pital where I was the visiting surgeon immediately after Denslow shot him,' he explained, in the cold professional tone of statement. 'He was not dead, but I saw at a glance that his wound was probably fatal. However, the proper thing to do was to attempt an operation, and he was put under ether at once. It seemed a hopeless task, but as I worked the thought crossed my mind that here was a magnificent opportunity for an experiment I had long desired to make in an operation of this kind but had never quite dared risk. There was no time to debate the question of professional ethics or legal responsibility — the temptation was overwhelming, and I simply could not resist it. All I wanted to do I could effect very quickly. Moreover, Denslow was virtually moribund, and my greatest fear was that he would die before I could make my experiment. . . . Well, he must have been even nearer death than I supposed, for his life went out under my instrument like a candle under one's thumb and finger.'

"The doctor paused and snapped his fingers together.

" 'Just like that,' he commented, musingly. 33

"I stared at the speaker with unfeigned amazement, wondering whether I had to deal with a lunatic or a sane man. He speedily resolved my doubts, however.

" 'At the time I felt no compunction whatsoever for my act,' he continued. 'Limond might have lived anywhere from an hour to a day had I not interfered, but no longer. I did not, in any real sense, feel guilty of his death. Indeed, what I did was such a slight matter that the coroner entirely overlooked it, and it was not until a few weeks later, when an operation successfully performed on a similar case showed me just where I had made my mistake, that I gave the matter any further thought. Then, of course, I began to be disturbed by the situation. Perhaps I would have done better had I sought the advice of some lawyer. But I did not. I thought the whole thing out for myself. If I confessed exactly what had happened at the hospital, I fancied that I might be indicted as a criminal and I knew my reputation would be ruined, and I was just on the threshold of a highly successful career. Had there been the slightest doubt of Denslow's guilt