Gard was repeating the oath:
"'You and each of you do solemnly swear that you will well and truly try and true deliverance make in the cause now pending, wherein the State is plaintiff and Archie Koerner is defendant, s'elp you God.'"
Broadwell bowed, as if for the jury; Marriott almost expected him to say "Amen."
XIV
The next morning there were the same eager, impatient crowds, but there were yet other preliminaries; the case must now be stated to the jury. And Eades, speaking solemnly, told the jury of the pursuit of Archie and the death of Kouka, all of which had been repeated many times. He spoke of the importance of government, of the sacredness of human life, how heinous a sin it is to kill people, and how important it was to put Archie to death immediately in order that this truth might be better understood, how serious were the juror's duties, how disagreeable his own duties, and so forth. Then he began to describe the murder of Margaret Flanagan, but Marriott objected. They wrangled over this for some time, and, indeed, until Eades, assured that the jurors had been sufficiently reminded of the Flanagan murder, felt satisfied. Then Marriott stated the case for the defense, and finally, that afternoon, the trial began in earnest.
Bentley, following his elaborate system of arrangement, bustled about with a deputy at hand so that he could command him, pushed back the crowd, locked the doors, and thereafter admitted no one unless he wished to. The spectators filled the space outside the bar, and encroached on the space within, forming a dense, closely-packed circle in the center of which were the jury, the lawyers at their tables, Archie and Danner, the reporters, the old stenographer, and Glassford looking down from the bench. The spectators in a strained, nervous silence stared into the pit where the game was to be played, the game for which Eades and Marriott were nerving themselves, the game that had Archie's life for its colossal stake.
But as the afternoon wore on, expectations were not realized; the interest flagged. It was seen that the sensations would not come for days, the proceedings were to move slowly and with a vast and pompous deliberation to their unrevealed climax. Eades called as witnesses several laborers who had been of the crowd that pursued Archie and Curly down the tracks that morning. After them came Weber, the coroner, a fleshy man with red face and neck, who described the inquest, then his official physician, Doctor Zimmerman, a young man with a pointed beard, who wore three chains on his breast, one for the eye-glasses he was constantly readjusting, another for his clinical thermometer, and another for his watch. He gave the details of the post-mortem examination, described the dissection of Kouka's body, and identified the bullet.
The crowd pressed forward, trying to find some sensation in the ghastly relic. Eades gave the bullet to the nearest juryman, who examined it carefully and passed it on. It went from hand to hand of the jurymen, each rolled it in his palm, studied it with a look of wisdom; finally it returned to Eades. And the jurors leaned back in their chairs, convinced that Kouka was dead.
The next morning there were other laborers, other physicians, then railroad detectives, who identified the revolver. The day wore away, the atmosphere of the court-room became heavy and somnolent. As skilfully as he could, Eades drew from his witnesses their stories, avoiding all questions that might disclose facts to Archie's advantage, and Marriott battled with these hostile witnesses in long cross-examinations, seeking in vain for some flaw, some inconsistency. The tedium told on the nerves,–Eades and Marriott had several quarrels, exchanged insults, Glassford was petulant, the stolid jurymen exhaled breaths as heavy as snores. Another day came, and judge and lawyers began with steadier nerves, more impersonal and formal manners; they were able to maintain a studious courtesy, the proceedings had an institutional character, something above the human, but as the day advanced, as the struggle grew more intense, as the wrangling became more frequent, it was seen that they were but men, breaking down and giving way to those passions their calm and stately institution condemned and punished in other men.
And through it all Archie sat there silent, and, as the newspaper men scrupulously reported each day, unmoved. But Marriott could hear him breathe, and when occasionally he glanced at him, could see tiny drops of moisture glistening on his brow, could see the cords swelling in his neck, could even hear the gurgle in his throat as he tried to swallow. Archie rarely spoke; he glanced at the witnesses, now and then at the jurors, but most of all at Eades. Thus far, however, the testimony had been formal; there was yet no evidence of premeditation on Archie's part, and that was the vital thing.
XV
And yet Marriott knew better than to hope. As he walked to the court-house Monday morning, he wondered how he was to get through the week. He looked on those he met as the strangely happy and favored beings of another world, and envied them keenly, even the ragged outcasts shoveling the newly-fallen snow from the sidewalks. And there in the upper corridor was that hated crowd, that seemed to be in league with Eades, Glassford, the jury, the police, the whole machinery of the state, to kill Archie, to stamp his identity out of the world. Just then the crowd gyrated in precipitated interest, and he saw Bentley and Danner bringing Archie down the hall, all three stamping the snow from their boots. And he saw another figure, new to him, but one that instantly filled him with strange foreboding. Why, he could not tell, but this was the effect of the figure that shambled down the corridor. The man was alone, a tall gaunt form in rough gray clothes, with a long gray face, walking in loose gangling strides, flinging his huge feet one after the other, leaving moist tracks behind him. A hickory cane dangled by its crook from his left arm, he slowly smoked a cigar, taking it from his mouth occasionally with an uncouth gesture. As he swung along in his awkward, spraddling gait, his frame somehow conveyed paradoxically an impression of strength. It seemed that at any moment this man was in danger of coming apart and collapsing–until Marriott caught his restless eye.
Archie had seen him the instant he entered the corridor. Marriott detected Archie's recognition, and he looked intently for some inkling of the meaning. The man, in the same instant, saw Archie, stopped, took his cigar from his lips, spat, and said in a peculiar, soft voice:
"Why, Archie, my boy."
This incident deepened Marriott's foreboding. A few moments later, as the bailiff was opening court, the man entered with a familiar and accustomed air, and Bentley got a chair and made him comfortable so that he might enjoy the trial.
"Who's that man?" Marriott whispered to Archie.
"That? That's old Jimmy Ball, the deputy warden at the pen."
"What do you suppose–"
"He's here to knock, that's what. He's here to rap ag'in me, the old–"
Archie applied his ugly epithet with an expression of intensest hatred, and glared at Ball. Now and then Archie repeated the epithet under his breath, trying each time to strengthen it with some new oath.
But Marriott just then had no time to learn the significance of this strange presence. Eades was calling a witness.
"Detective Quinn!"
Quinn came in after the usual delay, walking with the policeman's swagger even after years on the detective force. He came in with his heavy shoulders set well back, and his head held high, but his eyes had the fixed stare of self-consciousness. Taking the oath, he ascended the witness-stand, leaned over, placed his hat against the side of the chair, and then, crossing one fat thigh over the other, held it in position with his hand. On his finger flashed a diamond, another diamond sparkled on his shirt-front.
"Pipe the rocks!" whispered Archie. "Know where he got 'em? Jane nicked a sucker and Quinn made her give 'em to him for not rapping."
Marriott impatiently waved Archie into silence; like all clients he was constantly leaning over at critical moments of the trial to say immaterial things, and, besides, his hot moist breath directly in Marriott's ear was very unpleasant.
Eades led Quinn through the preliminaries of his examination, and then in a tone that indicated an approach to significant parts of the testimony, he said:
"You may now state, Mr. Quinn, when you next saw the defendant."
Quinn threw back his head, fingered his close-cropped red mustache, and reflected as if he had not thought of the subject for a long time. He was conscious that he was thus far the most important witness of the trial. He relished the sensation, and, knowing how damaging his testimony would be, he felt a crude satisfaction. Presently he spoke, his voice vibrating like a guitar string in the tense atmosphere.
"The Friday morning before the Flanagan murder."
"Where did you meet him?"
"In Kentucky Street near Cherokee."
"Was he alone, or was some one with him?"
"Another man was with him."
"Who was that other man–if you know?"
"He was an old-timer; they call him Dad."
"What do you mean by an 'old-timer'?"
"An old-time thief–an ex-convict."
"Very well. Now tell the jury what you did–if anything."
"Well, I knowed Koerner was just back from the pen, and we got to talking."
"What did he say?"
"Oh, I don't just remember. We chewed the rag a little."
Eades scowled and hitched up his chair.
"Did he say anything about Kouka?"
"Hold on!" Marriott shouted. "We object! You know perfectly well you can't lead the witness."
"Well, don't get excited," said Eades, as if he never got excited himself; as he had not, indeed, in that instance, his lawyer's ruse having so well served its purpose. "I'll withdraw the question." He thought a moment and then asked:
"What further, if anything, was said?"
"Oh," said Quinn, who had understood. "Well, he asked me where Kouka was. You see he had it in for Kouka."
"No!" cried Marriott. "Not that."
"Just tell what he said about Kouka," Eades continued.
"I was trying to," said Quinn, as if hurt by Marriott's interruption. "Ever since Kouka sent him up for–"
"Now look here!" Marriott cried, "this has gone far enough. Mr. Eades knows–"
"Oh, proceed, gentlemen," said Glassford wearily, as if he were far above any such petty differences, and the spectators laughed, relishing these little passages between the lawyers.
"Mr. Quinn," said Eades in a low, almost confidential tone, "confine yourself to the questions, please. Answer the last question."
Quinn, flashing surly and reproachful glances at Marriott, replied:
"Well, he asked about Kouka, where he was and all that, and he said, says he, 'I'm going to get him!'"
The jury was listening intently. Even Glassford cocked his head.
"I asked him what he meant, and he said he had it in for Kouka and was going to croak him."
Archie had been leaning forward, his eyes fixed in an incredulous stare, his face had turned red, then white, and now he said, almost audibly:
"Well, listen to that, will you!"
"Sh!" said Marriott.
Archie dropped back, and Marriott heard him muttering under his breath, marveling at Quinn's effrontery.
"Tell the jury what further, if anything, was said," Eades was saying.
"Nothing much," said Quinn; "that was about all."
"What did you do after that?"
"I placed him under arrest."
"Why?"
"Well, I didn't think it was safe for him to be around–feeling that way."
"If he ain't the limit!" Marriott heard Archie exclaim, and he began his whispered curses and objurgations again. In his excitement and impotent rage, Marriott was exceedingly irritable, and again he commanded Archie to be still.
Eades paused in his examination, bit his lip, and winked rapidly as he thought. The atmosphere of the trial showed that a critical moment had come. Marriott, watching Eades out of the corner of his eye, had quietly, almost surreptitiously moved back from the table, and he sat now on the edge of the chair. The jurymen were glancing from Eades to Marriott, then at Quinn, with curious, puzzled expressions.
"Mr. Quinn," said Eades, looking up, "when did you next see Koerner–if at all?"
"On the next Tuesday after that."
"Where?"
"In the C. and M. railroad yards."
"Who was with you, if any one?"
"Detectives Kouka, and Officers Delaney and O'Brien, of the railroad, and Officers Flaherty, Nunnally, O'Toole and Finn–besides a lot of citizens. I don't–"
"That will suffice. And how came you–but first–" Eades interrupted himself. Marriott was still watching him narrowly, and Eades, it seemed, was postponing a question he feared to ask. "First, tell me–tell the jury–where Koerner was, and who, if anybody, was with him?"
"Well, sir, this here fellow they call Curly–Jackson's his name–he's a thief–a yegg man as they call 'em–he was with him; they was running and we was chasing 'em."
"And why were you chasing them?"
"We had orders."
"From whom?"
"Inspector McFee."
"What were those orders?"
"Well, sir, there had been a report of that Flanagan job–"
"Stop!" Marriott shouted. "We object."
"One moment, Mr. Quinn," said Eades, with an effect of quieting Marriott as much as of staying Quinn. Marriott had risen and was leaning over the table. Eades hesitated, realizing that the question on his lips would precipitate one of the great conflicts of the trial. He was in grave doubt of the propriety of this question; he had been considering it for weeks, not only in its legal but in its moral aspect. He had been unable to convince himself that Archie had been concerned in the murder of Margaret Flanagan; he had been uncertain of his ability to show premeditation in the killing of Kouka. He knew that he could not legally convict Archie of murdering the woman, and he knew he could not convict him of murdering the detective unless he took advantage of the feeling that had been aroused by the Flanagan tragedy. Furthermore, if he failed to convict Archie, the public would not understand, but would doubt and criticize him, and his reputation would suffer. And he hesitated, afraid of his case, afraid of himself. The moments were flying, a change even then was taking place, a subtle doubt was being instilled in the minds of the crowd, of the jurymen even. He hesitated another moment, and then to justify himself in his own mind, he said:
"Mr. Quinn, don't answer the question I am about to ask until the court tells you to do so." He paused, and then: "I'll ask you, Mr. Quinn, to tell the jury when you first heard the report of the murder of Margaret Flanagan."
"Object!"
Marriott sprang to his feet, his eyes blazing, his figure tense with protest.
"I object! We might as well fight this thing out right here."
"What is your objection?" asked Glassford.
"Just this, your Honor," Marriott replied. "The question, if allowed, would involve another homicide, for which this defendant is not on trial. It is not competent at this stage of the case to show specifically or generally other offenses with which this defendant has been charged or of which he is suspected. It would be competent, if ever, only as showing reputation, and the reputation of the defendant has not yet been put in evidence. Further, if answered in its present form, the evidence would be hearsay."
Eades had been idly turning a lead-pencil end for end on the table, and now with a smile he slowly got to his feet.
"If the Court please," he began, "Mr. Marriott evidently does not understand; we are not seeking to show the defendant's reputation, or that he is charged with or suspected of any other crime. What we are trying to show is that these officers, Detective Quinn and the deceased, were merely performing a duty when they attempted to arrest Koerner, that they were acting under orders. What we offer to show is this: Margaret Flanagan had been murdered and the officers had reasonable grounds to believe that Koerner–"
"Now see here!" cried Marriott. "That isn't fair, and you know it. You are trying to influence the jury, and I'm surprised that a lawyer of your ability and standing should resort to tactics so unprofessional–"
Eades colored and was about to reply, but Marriott would not yield.
"I say that such tactics are unworthy of counsel; they would be unworthy of the veriest pettifogger!"
Eades flushed angrily.
"Do you mean to charge–" he challenged.
"Gentlemen, gentlemen!" Glassford warned them. "Address yourselves to the Court."
Eades and Marriott exchanged angry and menacing glances. The jury looked on with a passivity that passed very well for gravity. At the risk of incurring the jurors' displeasure, Marriott asked that they be excused while the question was debated, and Glassford sent them from the room.
The legal argument began. Marriott had countless precedents to justify Glassford's ruling in his favor, just as Eades had countless precedents to justify Glassford's ruling in his favor, but to the spectators it all seemed useless, tedious and silly. A murder had been committed, they thought, and hence it was necessary that some one be killed; and there sat Archie Koerner–why wait and waste all this time? why not proceed at once to the tragic dénouement and decree his death?
Glassford, maintaining a gravity, and as if he were considering all the cases Marriott and Eades were citing, and weighing them nicely one against the other, listened to the arguments all day, gazing out of the window at the scene so familiar to him. Across the street, in an upper room of a house, was a window he had been interested in for months. A woman now and then hovered near it, and Glassford had long been tantalized by his inability to see clearly what she was doing.
The next morning Glassford announced his decision. It was to the effect that the State would be permitted to show only that a felony had been committed, and that the officers had had grounds for believing that Archie had committed it; but as to details of that murder, or whether Archie had committed it, or who had committed it–that should all be excluded. This was looked upon as a victory for the defense, and, at Marriott's request, Glassford told the jurors that they were not to consider anything that had been said about the Flanagan murder or Archie's connection with it. All this, he told them, they were to dismiss from their minds and not to be influenced by it in the least. The jurymen paid Glassford an exaggerated, almost servile attention, and when he had done, several of them nodded. And all were glad that they were to hear nothing more of the Flanagan murder, for, during the long hours of their exclusion from the court-room, they had talked of nothing but the Flanagan murder, had recalled all of its details, and argued and disputed about it, until they had tired of it, and then had gone on to recall other murders that had been committed in the county, and finally, other murders of which they had heard and read.
Quinn, in telling again the story the jurors had heard so many times in court, and had read in the newspapers, frequently referred to the Flanagan murder, until Marriott wearied of the effort to prevent him. He knew that it was useless to cross-examine Quinn, useless to attempt to impress on the crystallized minds of the jurymen the facts as they had occurred. The jurymen were not listening; they were looking at the ceiling, or leaning their heads on their hands, enduring the proceedings as patiently as they could, as patiently as Eades or Quinn or Glassford. And Marriott reflected on the inadequacy of every means of communication between human beings. How was he to make them understand? How was he to get them to assume, if for an instant only, his point of view? Here they were in a court of justice, an institution that had been evolved, by the pressure of economic and social forces, through slow, toiling ages; the witnesses were sworn to tell "the truth, the whole truth, and nothing but the truth," and yet, such was man's puerility and impotence, such was the imperfection of his means of conveying ideas, that the whole truth could not possibly be told–a thousand elements and incidents must be omitted; the moods, for instance, of Archie when he talked to Quinn or to Kouka, the expressions on their faces, the light in their eyes, indications far more potent than mere words, words that might be lightly, trivially, innocently spoken one day and under one set of circumstances, but which, on some other day and under other circumstances, would take on a terrible, blasting, tragic significance. Above all, that intangible thing, the atmosphere of the occasion–this could by no possibility be reproduced even though Quinn made every effort to be honest. And how much greater the impossibility when Quinn was willing to be disingenuous, to allow the prejudices and the passions of his hearers to reflect on his words their own sentiments, so that the hatred in the hearts of this this jury, these prosecutors, might seem to be a hatred, instead, in Archie's breast! Realizing the impossibility, Marriott felt again the strong, occult influences that opposed him, and had scarcely the strength to cross-examine Quinn. And yet he must make the effort, and for two long hours he battled with Quinn, set his wits and his will against him, but it was all hopeless. For he was not opposing Quinn's mind alone, he was opposing the collective mind of this crowd behind him, and that larger crowd in the city outside.
"Anything further, Mr. Marriott?" asked Glassford.
Marriott had a momentary rage at this impersonation of the vengeful state sitting before him, and exclaimed with disgust:
"Oh, I guess not."