The Just And The Unjust (53 page)

Bunting said, 'I never heard of kittens kidnapping a man and murdering him.'

The hall door opened, and Judge Vredenburgh walked in. 'Still hanging around?' he said. 'Annette was coming down for me, but she hasn't showed up.'

'Give you a lift, sir?' said Abner.

'No, thanks. I'll wait a few minutes longer.' He sat on the edge of the table and took out his pipe. 'Harry,' he said, 'do you think those men ought to get off?'

Harry said, 'When I take a case, sir, my client's cause is my cause. If he thinks he ought to get off, I think he ought to get off. Let the jury adjudicate! Moreover, in a capital case, where life is or may be at stake, the law is tender of the prisoner.'

Judge Vredenburgh, recognizing the quotation from his charge, drew his mouth down in acknowledgment of the joke. Harry said, 'And so am I, Judge; so am I'.

'I just want to know,' Judge Vredenburgh said, 'whether you honestly think those men ought to get off. Never mind the legal aspects. Just tell me.'

'Yes, sir,' said Harry, 'I do. I don't approve of capital punishment, myself; and any time it can be circumvented by due process of law, I am glad to help circumvent it.'

'By due process of law,' Judge Vredenburgh said. He smiled his tight, drawn-down smile. 'A judicious interpolation! I am glad to know about that.'

'I don't think you're quite fair, Judge.'

'No, that wasn't quite fair,' Judge Vredenburgh said. 'We're not speaking for the record now, so I don't mind saying that the action of the jury disgusted me. Now, will you feel hurt if I credit you with taking some part in bringing that action about?'

Harry said, 'I'm sorry it disgusted you, sir; but, yes, I would be glad to take the credit if I deserve it.' He paused. 'Since this is all off the record, I wonder if I might ask you why you think — when, under what circumstances, you think the death penalty ought to be imposed?'

Abner, who after all knew Harry much better than the Judge did, could tell in an instant that Harry was serious, that the question was meant respectfully; but Judge Vredenburgh looked hard at Harry for a moment. Casually, he glanced then at Abner and Bunting and George Stacey. They were more or less Harry's contemporaries and so spoke his language. The Judge was looking to see what they understood Harry to intend. Apparently satisfied, Judge Vredenburgh took out a match and relit his pipe.

'Since I've been on the bench,' he said, shaking out the match, 'I've had only two cases in which I was obliged to sentence men to death. You remember them, Marty. That Negro, Upson, who killed the woman he was living with because he thought she was putting a spell on him — invultuation, it was called. She made an image and stuck pins in it. We all had to take a course in the theory and practice of witchcraft; then, that Lumpkin boy. They were both some time ago. I've thought about both of them a good deal. You remember about Lumpkin, Marty?'

'Yes, sir,' said Bunting. 'The issue there was what constituted lying in wait. Waiting, watching, and secrecy must concur. We had a little trouble showing it.'

'Well, it was upheld,' Judge Vredenburgh said. 'I don't know whether you others remember it particularly or not. Ah, you and Harry must have been at college.'

'Where were you, George?' Harry said, 'in kindergarten?' Judge Vredenburgh said, 'This Lumpkin boy, in Warwick, killed a girl of eighteen who was a waitress in the station restaurant. Her name was Gladys something —'

'Edwards,' Bunting said.

'Yes, Edwards. Lumpkin looked in one evening and asked her to go to the movies with him when she got off. They'd been going together for some time. She refused, because she said she had another date. Her other date was this Krause — a married man; ran the Union Hotel. He was no good at all. The girl used to work for him at the hotel, and he got her into trouble there, but I guess he bought her out of it.

Lumpkin knew all about that. He was a good boy, perhaps not too bright; but bright enough to run this garage. It had been his father's, but his father died, and he'd been running it several years, making money, supporting his mother and some brothers. Another thing, and an important one, I think; he had a bad leg. He wasn't really a cripple, but he'd had infantile paralysis. He wasn't much on looks either. Most girls might not think he was a bargain; but this Gladys didn't have a very wide choice, either.'

'I don't think he was much of a bargain,' Bunting said.

'Perhaps not,' Judge Vredenburgh said. 'Well, he was angry when she wouldn't go with him. He went to the theatre that night — do you remember just how that was, Marty?'

'He went to see who she was there with; and when they put the lights on at the intermission, he saw them — Krause was pawing her over in the back row. They didn't see him. So he went out.'

'Yes,' said Judge Vredenburgh, 'he left. He went by his garage and picked up a little twenty-two-calibre revolver he had there, and then went over to the house where she boarded and waited for her, sitting on the porch. I think he thought Krause would be coming home with her. However, as it happened, she came home alone. There was a reason for that.'

'What?' said Harry.

Bunting said, 'It was testified that she was having her menstrual period.'

'Quite right,' said Judge Vredenburgh, 'there are no secFets from the law. Well, when she found him sitting on the porch, she told him to get out, that she was in love with Krause and didn't want to see any more of him. He got up and pulled out the revolver and shot her twice in the neck. She died a couple of days later.'

'Yes,' said Bunting, 'but you left out one important thing, sir. There were these two fellows, a fellow working for him and a friend of his, at the garage when he stopped to get the gun; and he told them he was going to go over and wait until Gladys came home and kill her. They thought he was kidding.'

'If they hadn't had reason to think so, why wouldn't they either have tried to stop him, or notified the police?' Judge Vredenburgh asked. 'I think the truth is he was kidding, at least in the sense that he'd made similar wild threats before; and these boys who knew him well knew he never meant them. It's not uncommon in a person with a physical handicap, particularly if he's not a highly intelligent type.'

Bunting said, 'The event didn't seem to prove that he was kidding.'

'It didn't seem to,' Judge Vredenburgh said. 'The evidence was certainly against him. His actions certainly seemed to constitute laying in wait, and that meant first degree murder. Pete Van Zant was defending him, you remember; and while he did his best, I'm not sure — well, I'm not sure that Peter made his client's cause quite as much his own cause as you say you do, Harry. Lumpkin didn't show up well on the stand, and the jury didn't like his looks. They brought in first degree murder with the death penalty. There were no grounds for a new trial. I had to sentence him, and so I did. The appeal was denied and he was executed.'

Judge Vredenburgh tried his pipe. It had gone out, so he emptied it, knocking it gently against the ash tray. 'That boy never should have been executed,' he said. 'I don't mean that it could be called a real miscarriage of justice. He was guilty of killing the girl, all right. There was no possible question of his being put to death for something he hadn't done. But I don't think he did it with design and premeditation. I think he got the gun with the idea of threatening Krause with it — he was a little fellow and Krause was about as big a man as I ever saw. I think the things she said drove him to a kind of frenzy, and without any premeditation whatsoever, he shot her. I don't know how far Marty can accept that, but it's my firm belief.'

Bunting said, 'I can believe that if she had been nice to him, nothing would have happened. Sure, he was upset; but I don't think it ever has been held that a man can't act deliberately, with design and premeditation, just because he was probably resentful at the time. He really may not act deliberately; maybe he really is temporarily insane; but he isn't entitled to that assumption. The Commonwealth never has to prove that the defendant is sane.'

'Wrong,' said Harry Wurts.

'What do you mean, wrong? Insanity must be proven by the defendant by a fair preponderance.'

'Watch that word "never". It snaps back and hits you in the eye. If the defendant in a murder case pleads guilty, it is always on the Commonwealth to show that the defendant was sane at the time of committing the crime. Am I right, sir?'

The corners of Judge Vredenburgh's mouth drew down, his eyes glinting an instant at Bunting. 'I would have to look it up if I were to rule,' he said, 'but for the present purpose, I would say undoubtedly. The burden of proving all essential elements would be on the Commonwealth.'

Bunting said, 'Well, it certainly couldn't happen often.'

'All right,' said Harry, 'all right. If you 're now trying to prove that when you say "never", you mean "not often", you've proved it. And when you're licked, why can't you just admit it? You're interrupting his Honour.'

'No, he's not,' Judge Vredenburgh said. 'That was all I was going to say. I'm not satisfied that Lumpkin was guilty of first degree murder. I think degrees of murder are made to meet exactly such cases. If the law had left me free, I would have given him twenty years. And in the Upson case, the Negro, I would have done the same. That black man was killing in what he thought was self-defence. Neither of them was vicious; one was foolish and emotional; the other was simple and superstitious. Putting them to death was not the answer.'

Harry said, 'I just wonder whether it's ever the answer.' It occurred to Abner that Harry, like Leming, like Howell, like (according to the testimony) the murderer, Bailey, and no doubt like everyone, had a great hankering for the approval of the just. When they thought that men or circumstances impugned them, they all hastened to show their high ethical considerations, whether in betraying their friends, or killing that destroyer of souls, Frederick Zollicoffer, or cajoling a jury. Ought Harry to be blamed for loving mercy? 'Yes,' said Harry, 'but have we a moral right to —'

'Ah! Don't ask me that! Harry, when I sit in this court, the Sixth Commandment is no part of my cognizance, whatever you may feel inclined to tell a jury. My power to hear and decide comes from the Assembly. My authority for sentencing a man to death is the act made and provided.' He smiled sharply. 'It has been held that death is not cruel in the meaning of cruel and unusual in the Constitution. That is the end of it as far as my official action is concerned. About my personal feeling, I've tried to answer. I can't discuss the present case. On your motion, it's still subjudice. I'd have to rule on your written submissions, if you ever make them. But I may say —'

There was a tap on the door and it opened enough to show Annette, on tiptoe, her head to one side, an expression of mock or humorous awe on her face. Made pretty by a liveliness Abner had never noticed in her before, Annette went through a pantomime, pointing at her father's back, at herself, and then, presumably home. Her eyes were on Harry in silent, smiling appeal. Harry's answering smile was so genial that Abner stared at him. While an idea new to Abner, it was not by any means an impossible one.

Judge Vredenburgh said, 'Yes, yes, I know you're there. Finally! I've been waiting half an hour.'

Annette said, 'Mother wanted me to take some things to the Ormsbees'. Well, I'm here now, aren't I?'

'All right, my dear. No; you mustn't come in. This is a kind of male preserve —'

'Oh, goodness!' Annette said. She gave them a general dazzling smile and closed the door.

'Well, gentlemen,' Judge Vredenburgh said. He put his pipe away. 'Now, I won't have to say what I may say.' He yawned. 'Well, it's over; and I'm glad of it. Good night.'

'Good night, sir,' they said together.

The door closed after him, and Bunting said, 'Let's go.'

They went in silence through the dark courtroom, and up the aisle to the lights of the hall. Their footsteps sounded suddenly loud, echoing on the marble paving. They came out by the front door on to the steps, facing, through the trees, the bright moon, just past full.

George Stacey said, 'Don't they lock this place up?'

'Mat and Ted Bosenbury are still playing checkers in there,' Bunting said. He stood on the top step, looking at the moon and the fountain of three entwined dolphins spouting up water to patter in the little bowl.

'How sweet the moonlight sleeps on yonder bank!' Harry Wurts said. 'Childerstown Bank and Trust Company, in fact; Member of the Federal Reserve System. Well, gents, thanks for a wonderful time.'

Bending his face to a spurt of light, Harry relit the cigar Mr. Clark had given him. 'Pleasant dreams!' He walked down the steps and strolled away, flourishing the cigar, his linen-clad figure growing dimmer in the dusk of moonlight and street light under the big trees. His voice floated lazily back, singing: 'Adieu, adieu, kind friends, adieu; yes, adieu ...'

Bunting said, 'Maybe he feels better now about that friend of yours in New York.'

They stood silent a moment. George Stacey said then, 'You want to see me to-morrow, Ab?'

'Yes,' said Abner. 'As a matter of fact, what I wanted to talk to you about was whether you'd be interested in being my assistant, if I were elected district attorney in the fall. You'll want to think it over. I don't have to know right away. If you would, I'd like to have you. We'll leave it at that.'

George said, 'I certainly will think it over.' Even in the moonlight his face was warm and radiant. 'Only, gosh, Ab., to be frank with you, I don't know whether I have enough experience. I mean, whether I'd be any use to you —'

'Well, you think about it,' Abner said. He was unexpectedly made aware of the pleasure of patronage. It was, he saw, a fairly pure pleasure. If it made him feel good to be able to give what was plainly so much wanted, the good feeling was at least in part the good feeling of being able to adjust the fallings-out of a too impersonal and regardless chance so that the deserving got some of their deserts. It would be a pleasure that Jesse Gearhart had felt often; the one real pleasure, when all was said and done, of power.