CHAPTER X
THE TRIAL
It was the morning of the day of the trial and I sat at my desk gettingthrough some routine duties in an entirely perfunctory way prior toattending the opening of the court.
It had been determined that I was not to participate in the conduct ofthe case in any way: indeed, there was little alternative left theDistrict Attorney in the matter after I had explained to him the courseI had been pursuing and my views on the subject.
He had not appeared much surprised by my disclosures and was probablynot unprepared for them, but he questioned me as to my opinions and Ithought seemed not unimpressed. In any event he acquiesced in my requestto be excused from participation and even added the assurance thatWinters should have every opportunity of defence.
At this moment, however, I did not feel confident. Look at the facts asI would, they presented very little to encourage. Nothing had changedsince Littell and I had paid our visit to the Tombs. Nothing new hadbeen discovered: indeed we had made little attempt in that direction,recognizing the almost certain futility of any effort in the limitedtime available, and in the meanwhile public opinion and the expressionof the press had been crystallizing into an abiding conviction of theprisoner's guilt.
I could not criticise the sentiment, for I recognized the strength ofthe State's case: and when I reviewed it, as I had done over and overagain, it seemed all but conclusive even to me. The defence hadabsolutely nothing to present against an array of hard facts, but someill-supported theories.
It was a quarter to ten o'clock, and I put away the work I had beenaffecting to attend to, and took my way to the court-house.
Only my official position gained me admission to the scene, and as itwas, an officer had to make a passage for me through the crowd that hadcollected in and about the building.
The Judge had not yet taken his place upon the bench, but the lawyers,clerks, bailiffs, and reporters were in their accustomed places withinthe rail which held back from the sacred precinct a throng of spectatorsso dense that it could not make room for one more.
If one had been disposed for it, a lesson in the nether nature of manmight have been studied in the faces of those pressing eagerly about therailing, alert with morbid curiosity.
In the crowd were both men and women and others little more thanchildren: many who had themselves figured in the prisoner's dock in thatsame court-room: many more who would be there, and all, or nearly all,of that waste class that make the criminals and the crimes of a greatcommunity.
Littell sat at the table of the defence quietly observing the sceneabout him, very likely engaged with thoughts such as had suggestedthemselves to me: but his face wore a more serious expression than washabitual to it, and there was a look of self-reliance and determinationin the brave eyes and about the firm mouth that inspired me again withsome confidence.
Winters had an able jurist and a dominating personality to guide hisfortunes and I felt there was a chance for him even against the odds.
At the table of the prosecution sat the District Attorney and the juniorhe had selected to assist him in my stead. They were good lawyers, andwould handle their case well I knew, but the work they were to engage inwas an old story to them,--a matter of almost daily routine,--and theywould therefore lack the concentrated interest and the nervous forcethat attend upon the defence.
There also, seated within the rail among the witnesses, were Van Bult,Davis, Belle Stanton, Mrs. Bunce, Miles, and Benton, and all the othersthat had already figured in the case.
I felt a strong inclination to take my seat beside Littell, for that waswhere my sympathies led me, but with only a glance in his direction, Itook the chair a bailiff pushed up for me to the table of theprosecution.
Then a door opened and closed at one side of the room, and the crier ina brisk tone ordered "Hats off!"
A moment later, as the Judge took his seat on the bench, the same voiceintoned: "Oyez! Oyez! The court is now in session!" and then the bustleof business took possession of the scene.
The Judge adjusted his collar and tried the points of some new pens; thelawyers sent the bailiffs hurrying for "authorities"; the clerks rustledthe pages of their dockets, and the reporters sprawled over their tableand scribbled copy.
Next a whispered conversation took place between the District Attorneyand the Judge, and a moment later, by the order of the clerk, theprisoner was brought out.
All faces were turned in his direction: the crowd of spectators swayingas each one struggled for a passing glance.
I looked at Winters as he was led in between two wardens. Fear wasdepicted in his face, and he shrank from the hostile and angry looksthat met him on all sides as with lowered head and eyes he made his wayto a place by his counsel.
It was hard to conceive how the appearance of that broken man could failto excite pity and there must have been some among the crowd who pitiedhim, even though they condemned: but the majority saw only a murdererand hated him.
It was the manifestation of that unreasoning brute instinct to tortureand kill dominant in the lower order of men, and which when encouragedby numbers and incited by the chance of a helpless victim, finds itsactive expression in a lynching.
When Winters had taken his place, the clerk read the indictment onarraignment and then put the usual question: "Are you guilty or notguilty?" to which the answer, in a low voice, was, "Not guilty!"
Next followed the selection of a jury. This task proved less difficultthan usual in such cases, mainly because Littell showed no dispositionto captious challenges, seeming only desirous of securing the servicesof intelligent men.
In a little more than two hours therefore, the twelve men were in theirplaces and had been sworn, and as I looked over the jury, I felt thatLittell had obtained his object, for its personnel was above theaverage.
The opening address of the junior for the State, which followed after arecess, was a clear and a concise statement of the facts, free fromargument and dispassionate as it should be.
Upon its conclusion the State proceeded to offer its testimony. Witnessafter witness was called in rapid succession. First the technicalrequirements of the case were established: the death of the deceased,the character of the wound, the nature of the instrument used, and thenother similar formal details; and thus in categorical questions andanswers that were uninteresting, but essential, the first day'sproceedings drew to a close.
During each examination Littell had been an attentive listener, but hadportrayed no special concern and had rarely interrupted. He was too gooda lawyer to lessen his prestige with the jury by indulging in aimlesscross-questions of witnesses who had simply told the truth aboutundisputed facts. When he did cross-examine at all in such cases it wasbut briefly and with no attempt to break down the witness, but rather todevelop more fully the facts and possibilities of the case, and theresult of his questions in each instance had been to throw additionallight upon the subject and to help the jury to its better understanding.
After adjournment I stood with others an interested observer of a shortconversation the lawyer was holding with his client. Whatever thesubstance of it might have been, it was such as to bring a smile to theface of the prisoner as he turned away with his guards to go back to hisprison.
Littell looked after him thoughtfully for a moment before he gatheredtogether his papers and himself prepared to leave. As he did so I joinedhim, anticipating that we should have an evening in each other'ssociety; but it was not to be, for I found him in a mood stern andtaciturn and disinclined to talk about the case, and so after severalineffectual attempts at conversation I left him.
My evening--spent alone therefore--was a dull one and the night long,and I was glad to find myself again at the trial table on the followingmorning. Here, all about me, the surroundings were unchanged in any wayand it was hard to realize that there had been an interval of emptinessand silence within those walls.
As soon as court opened the State called Benton to the stand, and thenthe real
battle of the trial began. He presented a different subject forthe handling of the defence, for he not only testified to importantmatters, but he was the first witness to show any bias, and Littell gavemore marked attention to his testimony. Under lengthy examination thewitness told his story to the smallest particular, including the taleshe had brought to me about the visits of the defendant to White's house,his demands upon him for money, and his assertions of his right to themoney left by his father, and he also threw out some hints of threatsand quarrels--all tending as much by insinuation as fact to castsuspicion upon the prisoner.
After the State had extracted all it could from him, he was turned overto Littell, and then the wisdom of that lawyer's previous course wasdemonstrated, for when, instead of waiving the witness from the stand orasking a few indifferent questions as he had done on other occasions, heturned and faced him preparatory to full cross-examination, both Judgeand jury showed a newly awakened interest.
Littell allowed a few minutes to elapse while he scrutinized thewitness, before he put his first question, and it was apparent to methat the delay was trying to Benton, who was already in a nervous state,for he moved restlessly and directed his gaze anxiously to the lawyer.
At length Littell began his cross-examination, and after taking himcategorically over each item in his testimony, pinning him definitely ineach instance as to time and place and separating fact from conjecture,he asked him pointedly if he had told the Coroner's jury as he had thisone that Winters was in the habit of visiting White; or that he demandedmoney of him, or that he claimed White's money to have been by righthis.
The witness admitted that he had not told them any of these things.
"Why did you not?" Littell continued.
Benton seemed embarrassed, but at length said he supposed he had notdone so because he did not think of them at the time.
Littell waited patiently till the answer was forthcoming, and thencontinued:
"Now tell the jury was not the real reason you did not tell these thingsat that time because it had not then occurred to you that suspicionwould attach to Winters?"
"Yes," he admitted, after some hesitation, "I expect that was thereason."
"And," continued Littell, "when you found later that suspicion hadattached to Winters, and that he was arrested for the murder, did younot then tell these things because you thought they would strengthen thecase against him?"
"Yes," he replied, "I think they are evidence against him."
"And why should you wish to give evidence against him? Do you think himguilty?" was the next question.
This was a little further than Benton was willing to go, and he answeredthat he did not know.
"Well," said Littell; "let us see if we cannot find out what you reallydo know about it; you probably have more knowledge of the conditionssurrounding the case than has any one else."
And then, by further interrogation, he elicited the fact that the frontdoor of the house was fastened and required a latch-key to open it whenBenton arrived the morning of the murder, and also that while he hadfrequently admitted Winters to the house, he had never known him topossess a key to the premises.
"And how, then, do you think he got in on this night?" Littellcontinued.
Benton probably recalled his unsuccessful attempt to explain thisproblem to me on another occasion, for he made no effort to do so now,merely acknowledging lamely that he did not understand how he hadobtained admission.
"And yet," continued Littell, "you have said everything you could to thejury to make it appear that Winters was White's murderer."
Benton did not attempt to answer this charge and seemed anxious to evadefurther questions, but Littell showed no disposition to let him off, butleaving his seat took his stand at Benton's elbow and continued hisquestions at close range, emphasizing each one:
"As a matter of fact, don't you know, or at least are you not satisfied,that Winters had no key to White's house?" he asked.
Accustomed to render obedience to Littell, and by this time thoroughlycowed, Benton was no longer capable of resistance, and assentedobediently to the question.
"And do you not know also," Littell continued, "that whoever securedaccess to White's room that night and killed him, had, in allprobability, a key to the house?" and again Benton assented.
"Then it hardly seems likely that Winters was that man, does it?" heconcluded,--and the witness had nothing to answer.
Littell next questioned him about White's habits and his relations withother men, and extracted the admission that for some time before hisdeath White had seemed worried and had talked vaguely about some troubleand some person.
"Do you know what that trouble was?" he was asked.
"I do not," he answered.
Littell hesitated as if doubtful of the expediency of pressing hisquestions further on this line, till the Judge, observing it, himselfasked the witness if he knew who the person was; but the witness repliedthat he did not, adding, however, as an afterthought, that it might havebeen Winters. At this Littell took a vigorous hand again.
"Do you believe it was Winters?" he asked sharply.
"I don't know," he was answered evasively.
"But was not Mr. White always very candid in speaking to you aboutWinters?" Littell insisted.
"Yes," he replied; "he was."
"Then if it had been Winters, do you not think he would have spoken ofhim by name?" and Littell's tone was almost angry.
"Yes," Benton answered reluctantly.
"Then you do not believe it was Winters?" Littell concluded.
"No, I do not," he admitted finally.
Next Littell secured from Miles the torn piece of a letter we had foundin White's sitting-room, and with the consent of the State submitted itto the witness and had him read its broken sentences to the jury, andafter he had done so, asked him if he had any idea to what it referredor for whom it was intended, but the witness denied any knowledge on thesubject.
The defence having concluded, the prosecution endeavored upon re-directexamination to restore the force of the direct testimony, but withoutmuch success; the damage was done, and the witness was no longer capableof assisting in its repair.
Littell had scored, and that on the first occasion on which he had takenany serious part in the proceedings, and it must be, I thought, that thejury would now await his words with even increased interest. Hecontinued sparing of them, however, permitting witness afterwitness--Van Bult and Davis among them--to leave the stand withoutcross-examination or with only a few casual questions.
Nothing new was developed until Belle Stanton was cross-examined. Herdirect testimony had been a mere repetition of that which she had givenbefore the Coroner's jury, but Littell,--regardless of the strictlimitations of cross-examination--directed his questions to the matterof White's supposed trouble, of which it seemed possible she might havesome knowledge, and his course was justified by the results.
She corroborated Benton's testimony as to White's disturbed mentalcondition and went so far as to testify that he cherished some bitterfeeling towards some one. She said that this much she had learned fromhis own lips and was sure of, and also that his feeling in the matterwas becoming daily more acute, but she denied having any knowledge ofits cause, or of the identity of the person. She, too, when shown theletter, was unable to say for whom it was intended, but she expressedthe opinion that its contents were suggestive of some of the thingsWhite had said when talking of his trouble. Nothing more definite thanthis could be obtained from her, as she disclaimed recollection of anyexact words used by him, and said it was all only an impression she hadgathered almost unconsciously from disconnected remarks which he haddropped at different times. "He had been drinking a good deal before hisdeath," she added in explanation, "and was not always quite himself";and Littell, having attained his object of enforcing upon the attentionof the jury these apparent secrets in White's life, did not pursue thecross-examination further.
I had looked for him to question he
r regarding the presence of theulster at her house but he did not do so, and I concluded he wassatisfied that it would be to no purpose.
I was amused when Mrs. Bunce testified by the promptness with which sheacted upon the advice given her by Miles; in her anxiety to do so evenvolunteering the information that she had found three fifty-dollar billsin the pocket of the ulster; otherwise her testimony did not differ fromthat formerly given. Littell, however, insisted upon knowing in whatcondition she found the money, upon which she said that it wascarelessly stuffed in an outside pocket, and agreed to his furthersuggestion that part of it might readily have fallen out.
Of the night-officer, when he had given his damaging testimony againstthe prisoner, Littell asked first if Winters had the ulster, or anybundle that could have contained it, when he saw him come out of thevestibule; to which the witness gave a positive negative.
He then cross-examined him as to the reliability of his identificationof the man he saw clad in the ulster as Arthur White.
In reply to successive questions, it developed that the officer'sobservation of the man had been made from the opposite side of a dimlylighted street upon a dark night; that he wore the collar of the coatturned up and the vizor of the cap pulled down, that he was in the actof raising an umbrella, and that he walked rapidly, showing no signs ofintoxication.
The witness insisted, however, in spite of these facts and with everysign of sincerity, that he was confident of his identification, and itseemed very uncertain if much doubt as to it had been created with thejury.
Detective Miles was the last witness to be called by the State. He wasallowed to give his testimony in his own way, which he didconscientiously and in detail, neither omitting or coloring anythingthat could have bearing upon the case.
He identified the torn letter which had been shown to Benton and MissStanton and told of its discovery in White's rooms. It being admittedthat it was in the handwriting of White, it was put formally in evidenceat the request of the defence, and was then submitted to the jurorsamong whom it was passed from hand to hand with evident interest.
Littell, upon cross-examination, brought out the fact that the apparel,including the shoes, worn by White on the night of his death showed noevidence of exposure to the weather, and following it up by adroitly putquestions as to the condition of his overshoes and umbrella, suggestedthe improbability of his having been out that night, and prepared theway for his theory that it had been some one else whom the officer hadseen clad in the cap and ulster.
Littell knew that he had a favorably disposed witness in Miles and madethe most of the opportunity, but there was so little that the detectiveknew of his own knowledge that it was not of great advantage.
Upon the conclusion of his evidence, the prosecution closed itstestimony, and it being then late in the afternoon, the Judge, afterconsultation with the lawyers, adjourned court till the following day.
After the adjournment I had opportunity to hear expressions of opinionfrom various members of the bar who had been spectators at the trial andwho like myself lingered on the scene for awhile, and I found that whilethey all agreed that the prosecution had made out its case, there stillexisted a strong feeling of curiosity regarding the line of defence tobe pursued.
It was plain an alibi was out of the question, for while Winters'sidentification by the night-officer was not fully positive, thesubsequent possession by him, on the night of the murder, of one of themissing bills confirmed its correctness beyond any possibility ofreasonable dispute.
It was the unanimous opinion, however, that some plausible explanationof his possession of that bill must be forthcoming if the defenceentertained any hope of an acquittal, and there were many conjectures asto what the explanation was to be. I could not but be entertained, inspite of my perturbed state of mind, by the unconscious assumption onthe part of all who joined in the discussion that the explanation whenit should be forthcoming, would evidence in its ingenuity the clevernessof the defence.
So confident was the general opinion of the prisoner's guilt, that itwas not even suggested there might be a true explanation available, nordid it seem to occur to any one of them that Littell, with the highprofessional reputation he possessed, might be unwilling to endorse byhis advocacy any other sort. Having accepted the case, they assumedapparently that he would make the most of it, whatever its character ormerit might be.
This mental attitude of prejudgment was calculated to work injustice tothe defence, because, as I knew, Littell believed in the innocence ofhis client, and his evidence and his arguments would be conscientiouslypresented and would represent his convictions and should therefore bereceived with some measure of credence and respect. To anticipate inthem but subterfuge and chicanery was eminently unfair and I feltdisposed to take issue then and there with my brother lawyers; but whenI reflected that after all it would be the jurors who would decide thecase and not those about me I restrained my impulse and went my way insilence.