The Just And The Unjust (15 page)

Harry had wandered back to the defence's table. He spoke to George Stacey and looked at a memorandum. He made a gesture as though to dismiss the witness, and Mrs. Zollicoffer visibly relaxed. 'In short,' said Harry, looking at her with a smile, 'you want the jury to believe that your late husband was a salesman, or something like that—' He mimicked her voice genially. 'Only a cheap whisky salesman, and nothing else. Not that we know of.' His tone was now the very opposite of that harsh or brutal tone which he had risked for a moment, and which a jury so resents when it is used to a woman; but Harry none the less managed to insinuate derision, to invite her and everyone else to join him in contempt for the deceased. Harry had seen where and how to wound her without doing himself any damage; and, caught unguarded, Mrs. Zollicoffer burst out, 'That doesn't say those people ought to kill him, regardless what he did! That —'

'That's all, Madam,' Harry Wurts said. He bent his head to listen to something Howell was saying.

'Cheap but good,' Bunting said to Abner. 'Shall we —oh, let her go!' He stood up and said, 'You may step down, Mrs. Zollicoffer.'

Harry left the defence's table and went up to the bench. Sitting back, the Judge said, 'There will be a five-minute recess. The defendant Howell may be taken out.'

Everitt Weitzel came limping across to the Commonwealth's table and said, 'Your office called, Mr. Bunting. When you had time.'

'All right,' Bunting said.

Harry Wurts went into the Attorneys' Room, and Joe Jackman stood up and followed him. Abner took out a package of cigarettes and went after Joe.

'Not much of a house, this morning,' Joe said, yawning. He held a match for Abner and they stood together by the screened windows. Below them sounded a splash of water in the little cast iron fountain under the trees. Occasionally figures, coatless men, girls in thin dresses, moved slowly on the diagonal cement walks under the trees. 'Going to be a hot day,' Joe said. 'I'll bet it's ninety right now.'

'What happened to Harry?'

'In there,' Joe said, indicating the lavatory. 'He is taking a little something for that miserable morning-after feeling, or over-indulgence in stimulants. You missed it, last night. Dick Nyce made a pass at Annette; and there was quite a row down at the landing. Dotty didn't like it. I think everybody's had about enough of those barge parties.'

The lavatory door opened and Harry came out, 'A much-needed pause!' he said. 'Well, Ab, what did you think of your witness? She don't know nothing no time.'

'I don't think she had anything to do with his dope business. She doesn't have to tell you what she thinks.'

Joe said, 'What's the trouble with that little boy blue of yours, Wurts? Got the trots?'

'Jackman,' said Harry, 'if you had ever been spread over a table and given a good kidney massage, an idea not wholly repugnant to me, you would suffer from certain disorders for some time afterward.'

'Did he forget to suffer from them yesterday, or did you forget to remind him?'

'I don't blame you,' Harry said, 'you see the Commonwealth putting on these tear-jerking acts, that poor dear little widow-woman and all; and so you think everything's like that—'

The courtoom door opened and Nick Dowdy came in. 'About ready,' he said. 'Judge Irwin's just come on the bench, too.'

'Well, what the hell does he want?' said Harry: 'Why didn't you tell him that it isn't the function of this court to gratify the vulgar curiosity of typical sensation-mongers?' Harry was reviving. 'Just let me ask you,' he said, backing Nick against the wall of buckram-bound reports, 'has his Honour, the President Judge, read Mr. Wurts' concise and brilliant three thousand page brief submitted in the matter of Mat Moot, Max Moot, Manny Moot Junior, Mary Moot Moot, Mike Moot, Maurice Moot, and Muriel Moot by her next friend and brother Moe Moot, versus Moot and Moot, a corporation, action in assumpsit? I doubt it! I sincerely doubt it! Well, what's he idling around here for?'

Joe Jackman said to Abner, 'He's certainly feeling smart this morning. I don't know why the Judge didn't slap his ears down in there—'

'Now, you fellows,' Nick said, escaping from Harry. 'Defendant's back, I think. Judge Vredenburgh was looking around —'

Joe Jackman went out, and Harry said, 'What's he riding me for? Not that I wouldn't ride him, if I could; but it's hard riding only half a horse.'

The answer, Abner thought, was that Harry still held, just as he had years ago on the occasion of their difference at law school, that one of the perquisites of being Harry Wurts was making fun of people, so no reasonable person ought to object; while, of course, Harry had every right to resent the manifest usurpation when one of his ordinary victims took to answering affront with affront. Harry would have to content himself with the fact that one of his affronts was usually equal in effectiveness to several of most other people's.

In the courtroom, Bunting stood at the bar, his elbow on the edge of Judge Vredenburgh's desk, while they talked. Abner stepped up beside him, and Judge Irwin nodded. Abner said, 'Good morning, sir.'

Bunting had already called Walter Cohen, who waited awkwardly in the witness stand; the swart skin of his round, big-nosed face shining, his right hand with a diamond ring on it, suspended, while Nick Dowdy withheld the Bible on which he was to swear, pending the outcome of Bunting's discussion. Judge Irwin whispered to Abner, 'How's your father?'

'Pretty well this morning, sir,' Abner said.

Judge Irwin nodded with a little nervous, smiling grimace. His nature was reserved and aloof — unless, perhaps, you were a member of his own generation — and it was difficult to imagine being familiar with him. Judge Irwin's attitude was strict; but, by the simple if uncommon practice of disciplining himself just as strictly as he disciplined other people, he aroused, even in a heavily sentenced prisoner, no special resentment. His air of virtue, instead of being hateful, had in it an austere sweetness. Judge Vredenburgh sat calm, full-blooded, the intelligent sensual man, irascible about what struck him as wrong or unfair, astute about the failings of human beings, dealing with facts and things as they were, with no special interest in why. Judge Irwin thought constantly of why.

They were about the same age, in their early sixties; but Judge Irwin looked a good deal older than Judge Vredenburgh. He had little flesh on his face, and his finely formed, entirely bare skull was fringed with an inch or two of grey hair along the base from ear to ear. On the bench, he sat intense and earnest, tightening and relaxing his lips, clearing his throat, sometimes plucking with his thin long hand at his chin. To see him and Judge Vredenburgh sitting together when, for instance, they both doubted a witness, marked the contrast. Judge Vredenburgh cocked a hard, incredulous eye, pouting slightly, sometimes even giving his head faint annoyed shakes; Judge Irwin bent his angular, anxious gaze on the witness as though he hoped, because he wished so hard that men would not deliberately perjure themselves, to make this man stop.

It would not be fair to say that Judge Irwin was less attentive to the facts than Judge Vredenburgh, for he ended by acting on them with precision, abstractly balancing the offence against what the statutes provided; but in a way he hated the facts. He hated them as symptoms of a disease of folly and unreason pandemic in the world, and constantly infecting and reinfecting his fellow men. A good example was Judge Irwin's notorious antipathy to liquor. He understood no better than Cassio why men should put an enemy in their mouths to steal away their brains; but it was that pandemic folly and unreason that he blamed, rather than the individual. He did not even favour trying to abolish liquor by law, since that proposed the absurdity of blaming the liquor and enhanced the principle, false among free men, of preventing a choice instead of punishing an abuse.

What Judge Irwin knew was what everyone with his experience knew: that if there were no such thing as liquor, half or even three-quarters of the work in each term of court would be eliminated. He was not fanatical about it; he did not suppose that a man who took a drink now and then, or even one who got drunk now and then, was a criminal. Undoubtedly he knew that his son liked a drink; and though he probably hoped that Mark never got as drunk as Mark had been last night, Judge Irwin would not be enraged if he found out — only, discouraged by the imprudence, the short-sightedness that defied common sense and invited danger in seeking so brief and miserable a pleasure.

Judge Vredenburgh sat back, and Bunting said to Nick Dowdy, 'All right, swear him.'

As they turned, Harry Wurts stood up and called out, 'Just a moment, please, your Honour! I'm going to ask for an offer of proof here with Cohen.'

'I thought so!' Bunting said to Abner. 'All right, Mr. Wurts. At side bar?'

'I don't care,' Harry said.

'Well, certainly I don't, either,' said Bunting. 'We expect to prove by this witness that on the night of April seventeenth he met a person outside a saloon near Milltown and talked with him. That he turned over to this person the sum of eight thousand dollars in bills of various denominations.'

Judge Vredenburgh said, 'Mr. Wurts, you stated that you did not care whether the offer was made in the presence of the jury or not. Do you want the whole offer to be made?'

'Well, no.' Harry scratched his head. 'If he's going to make a Complete offer, I would ask that it be made at side bar. What I want is for the Commonwealth to show how this man Cohen's testimony can be material. Of course, if to show that, he has to trot out all the —'

'I can't be expected to guess what you mean,' Bunting said. 'I supposed you wanted —'

Judge Vredenburgh said, 'Yes; the offer should be sufficient to show the relation. Come up, Mr. Wurts. Come up, Mr. Stacey. This concerns you, too.'

Abner came up with Bunting and they stood close together under the bench. Bunting continued, 'This money was brought for the purpose of securing the release of Frederick Zollicoffer. To be followed by further evidence that on that same night Robert Basso, one of these defendants, brought into the presence of Roy Leming, the defendant not now on trial, but to be called as Commonwealth's witness, the sum of eight thousand dollars; which money Basso, at that time and later, stated to Commonwealth's witness was obtained by him and Howell from Cohen, now on the stand, who was paying it for the release of his associate and business partner, Fred Zollicoffer. To be followed by further testimony corroborative in admissions by the defendant, Stanley Howell.'

'Yes,' said Harry. 'Well, for the defendant, Howell, I object to the offer.' He turned to the bench. 'Your Honours will understand —'

Judge Irwin said with his thin, pleasant smile, 'I'm not sitting, Mr. Wurts. I am present, but I am not participating.'

'None the less,' said Harry, inclining his head, 'I think the point will be as apparent to your Honour, as to his Honour, Judge Vredenburgh. The offer is immaterial and irrelevant as to the offence charged here; namely, that of murder. All this is evidence of a separate and distinct offence; namely kidnapping, holding for ransom.'

Judge Vredenburgh said, 'Is this evidence to show that the money had anything to do with the kidnapping?'

'Yes,' said Bunting, 'naturally, your Honour. The Commonwealth offers to prove that this identical money was divided among the kidnappers.'

Judge Vredenburgh said, 'Mr. Wurts seems to want to know whether your offer relates the kidnapping to the murder for which the defendants are on trial.'

'Oh, yes,' Bunting said. 'We intend to prove that the killing was carried out as an integral part of the kidnapping, in the course of the perpetration of it.'

'Well,' said George Stacey, 'in that respect there's no averment in the indictment.'

George had made the discovery — Abner remembered making it himself — that a natural impulse to defer to the impressive, seemingly never-to-be-equalled experience of his elders, like Bunting and Harry Wurts, while often politic in a younger man, was not always necessary. George said, 'The indictment merely charges an unlawful and felonious killing amounting to murder in the first degree. It does not set forth that the killing was in perpetration of any other felony.'

'It doesn't need to,' Abner said, smiling. 'Any killing in perpetration of the felony of kidnapping is unlawful and felonious and amounts to murder in the first degree.'

Bunting said, 'I think you'd better give his Honour some authority for your statement, Mr. Stacey.'

With all eyes on him, George said, 'I am familiar with the law that holds an indictment sufficient that simply charges a defendant with first degree murder.' Abner could see that George had still to learn not to be afraid that, if he did not say everything, people would think that he did not know everything. The measure of his inexperience was in his error of anticipating objections. George said, 'It is true that such indictments need not set forth as to the manner, or means, or instrumentality with which the crime was committed; but the law can certainly not be so elastic as to include other crimes, other felonies; and if these defendants are going to be charged with committing a different felony —' He threw out a hand. 'Well, I don't think Mr. Bunting can do that.'

'That's the whole point, your Honour,' said Harry Wurts. 'We object to this offer because the kidnapping was over, completed, finished, with the payment of the ransom money. As Mr. Stacey so well said, this isn't the crime these defendants are on trial for. It was not in perpetration of a felony that this killing was done. That was all over.'

Judge Vredenburgh turned his head and spoke to Judge Irwin. 'No,' he said, turning back. 'We will overrule you. You may have your exceptions. Let's get on with it.'

Abner went back to his seat. Walter Cohen ought not to take, very long; and Abner doubted if Harry would cross-examine, when Harry discovered (as he was bound to, if he didn't know already) that Cohen was going to lie out of helping the Commonwealth. Cohen was very willing to testify about handing over the sum of money for Frederick Zollicoffer's release; and he expressed himself as eager to see Fred's assassins pay for their crime, but he was full of nice scruples. He explained in Bunting's office, and again (to Bunting's helpless annoyance) before the grand jury, that he meant, of course, the actual assassins. He could not positively identify the person to whom he handed the money.