The Just And The Unjust (9 page)

This sudden deviation into sense astonished Abner; but Marty was right; something clearly ought to be done about Earl Foulke. He said, 'Mr. Foulke, that may be all true; but do you know what misprision of felony is? Well, one thing it is, is a criminal neglect to bring to justice a man who commits a felony. Williams commits a felony, and you step in and persuade the only witness, for a consideration, not to testify against him, with the idea of preventing the case from coming to trial. Now, it doesn't matter why you did it. I'm pretty sure Marty could prosecute you for that —'

In law, of course, it was true that it didn't matter why Foulke did it. Foulke had probably told plenty of people in his time that ignorance of the law was no excuse; and just plain ignorance was no excuse either; and why should Earl Foulke be excused? Abner said vainly, 'Mr. Foulke, you had no business to do that —'

To rebuke a man who had been older than Abner was now when Abner was born was awkward; and, anyway, not Abner's business. What he had to do was report Foulke's action to Marty, and Marty would take care of it, all right; and without any such qualms. That Foulke, the old fool, meant well, that he had effected a probably just disposal of the Williams case, with no real harm to anyone, and much trouble saved the Commonwealth as well as Mr. and Mrs. Williams, would not weigh with Marty. Marty would say — and it was true; it was the truth that all experience confirmed; it was, in little, the exemplar of the greatest and hardest truth in the world: the good end never has justified, and never will justify, the wrong, bad, or merely expedient means — that the law, whatever it might be in this case, would have to take its course, and Foulke would have to take the consequences.

The long thought filled only part of a second. Abner leaned against the wall in the shadowed room, his eyes on the old photograph above the fireplace — the quaint stiff throng of dead attorneys, the dead be-whiskered judge, the gas fixtures on the bench, the tall spittoons conveniently placed, all the plain outmoded furnishings of the little courthouse pulled down more than half a century ago. George Stacey came out the lavatory door, saluted Abner ironically, and left the room. Abner said, 'Mr. Foulke, you understand that I haven't any authority to deal with this. But I'll tell you what I think you'd better do. Get hold of Williams and give him back his ten dollars. Tell him he's not discharged; he's still out on bail. I'll have to tell Marty why you called; so you'd better come up to his office about five this afternoon. You'll have to explain that you misunderstood your position and thought Williams was under your jurisdiction until the case came to trial. Don't say anything about what you told Mrs. Williams. Just say they came to you to-day and wanted to settle the matter.'

Abner paused, aware that if what Earl Foulke had done was misprision of felony, what he himself was doing might very well be called misprision of misdemeanour, at least. He said, 'This conversation is not in any way official. If you put a case to me, I can tell you what I think this office's attitude will probably be; but that's all. Then it's up to you. Do you understand that, Mr. Foulke?'

Earl Foulke said, 'I know Marty's got a grudge against me. Don't have to tell me that. He always has had. Well, if that's what you want me to do —'

Anticipating with some discomfort the old man's thanks, the well-intended but necessarily offensive thanks for his humanitarian gesture, but also for his not-wholly-straightforward decision to keep a counsel that was not his to keep, but Marty's; and which he could keep only because Marty trusted him, Abner had been ready to cut Foulke short. He did not want any thanks; but when he did not get any, that too was offensive; and more offensive still, was the crowning effrontery with which Foulke consented to oblige Abner by letting Abner save him. About to set Mr. Foulke right on that last point, about to say that Mr. Foulke was wrong if he thought Abner wanted him to do anything, or cared what he did, Abner could see suddenly that old Foulke, the old fool, was not in fact wrong at all. Who else but Abner volunteered to get Foulke out of his predicament? Abner himself was the only one who could make Abner suppress those worse than asinine, those definitely illegal, acts of telling Williams he had to plead guilty and telling Mrs. Williams that she must not give evidence; and if Abner did not do it because he wanted to, why did he do it?

Abner could find no satisfactory answer. He said curtly, 'Be there at five o'clock, Mr. Foulke.' He hung up and went into the courtroom.

Judge Vredenburgh sat back in his tall carved chair, holding his glasses patiently. His face looked tired in the reflected light of his reading lamp. Mrs. Meade had just brought Mrs. Zollicoffer in. The only available washroom was upstairs, off the women jurors' room, and getting there and back took some time. Mrs. Zollicoffer was still pale and red-eyed, and the trip did not appear to have done her any good.

Bunting stood by the Commonwealth's table. He said to Abner, 'What did he want?'

Abner said, 'He's coming up to see you at five. It's that Williams A and B case. He thought he could discharge him if Williams pleaded guilty. I told him he couldn't.'

Bunting nodded. Preoccupied, he said without intensity, 'I wish he'd go drop dead! Yes, your Honour. If Mrs. Zollicoffer feels able, we are ready.'

Abner sat down and Bunting went over to the witness stand. 'Now, Madam,' he said, 'after April sixth, the night of the kidnapping, did you receive any communications from your husband?'

The jurors shifted and settled, taking up again the burden of listening. There was a slight movement in the high ranges of spectators — three women making exaggerated efforts to be quiet while they gained the aisle. Judge Vredenburgh glanced toward them and they slunk quickly to the door.

Mrs. Zollicoffer said, 'Yes, sir. Two or three letters.'

'In your husband's handwriting?'

'Yes.'

'And after that date did you receive any telephone calls?' Harry Wurts stood up wearily. 'I'm sorry, your Honour,' he said, 'I don't want to interfere unnecessarily; but I will have to ask for an offer of proof from the Commonwealth. I want to know what they purpose to show by these letters and telephone calls.'

'I will say to Mr. Wurts,' said Bunting, 'that I don't intend to go into the subject matter of these letters and calls at the moment.'

'All right,' said Harry.

'Mrs. Zollicoffer, do you recall whether you received a telephone call on the night of April eleventh?'

'I don't recall the date; but I got calls.'

'Did the person who called you on the telephone give any identifying symbol or name?'

'Some man said I have got Fred —'

'No. Please listen to the question —'

Harry Wurts lifted his hand and said, 'I move that be stricken.' Judge Vredenburgh said, 'That may be stricken as not responsive.'

'Did any of the persons who talked to you give any names?' Mrs. Zollicoffer gazed at him, distraught, probably throwing her mind back in search of what she had said before, either in the office or to the grand jury. 'Just asking whether it was me, Marguerite,' she said.

'Just a moment,' Judge Vredenburgh said. 'You should answer yes or no.'

'No. I didn't know who that was.'

Bunting came back to the Commonwealth's table. To Abner, he said, 'I'll drop it. She isn't making any sense.'

'Want to ask her about Walter Cohen?'

'Well —' Bunting faced about and said, 'Mrs. Zollicoffer, do you know a man named Walter Cohen?'

Since Walter Cohen, her husband's partner or associate, had been sitting two seats away from her all day, she looked bewildered. Then she said, 'Yes, sir.'

'That's all,' Bunting said. 'Mr. Wurts?'

'No questions,' said Harry.

Howell, apparently not understanding the arrangement, put a hand on Harry's arm, his sickly face stricken; for he doubtless felt that in the important matter of his life everything ought to be gainsaid, every inch of the Commonwealth's course contested. Harry took the hand between two fingers, lifted it, and returned it to Howell's lap. George Stacey said something to Basso, who scowled and shrugged.

Judge Vredenburgh said to Mrs. Zollicoffer, 'That is all for now. You may return to your seat.' In answer, Mrs. Zollicoffer took out her handkerchief and began again to cry. 'Mrs. Meade,' said Judge Vredenburgh, 'come and get her, please.'

Back at the table, Bunting took up the bill of indictment and put it down again. He said to Abner, 'I don't want Cholendenko until I see what Harry does to-morrow. If the cross-examination is bad, we'd be more or less stuck with it —' he said to the bench, 'I don't know exactly what your Honour would like. The Commonwealth has no witness that could be briefly disposed of. It's quarter of five, and —' Judge Vredenburgh looked at the clock. 'Yes,' he said, 'I think that's enough. I think we will adjourn.' Nick Dowdy had turned his face up and the Judge nodded to him. Nick struck the block with his mallet. 'All persons take notice that this Court now stands adjourned until to-morrow morning, June the fifteenth, Wednesday —'

Judge Vredenburgh came down from the bench, going toward the door of his chambers. In the well of the court, he stopped, faced the jury getting to its feet, and said, 'You will bear in mind what was told you about discussion of the case. You understand what is meant by separation. You will now go to the hotel. You are in the bailiffs' charge, in the charge of Mr. Levering and Mr. Unruh, the tipstaffs who have been with you. In short, no one of you can go home until the trial is concluded. Somebody sometimes thinks he can, and so makes us a great deal of trouble. Good night.' Unhooking his robe, he went into his chambers.

Piling papers together, Bunting said to Abner, 'Now, what about Foulke?'

'He ought to be over at your office.'

'I suppose I'll have to give him hell. Going on the barge party?'

'I thought I was,' Abner said.

'Well, go ahead. It's all right.'

'We've got plenty of time, Marty. I'll go over with you.'

'I have to speak to the Judge. Do you want to go right over?'

'Not me,' said Abner. 'I'll wait for you.' He took up his brief case and went into the Attorneys' Room.

Joe Jackman was seated in the old leather chair by the window reading the afternoon's copy of the
Examiner
. Looking at Abner over the top of it, he said, 'I see where Mr. Coates, the assistant district attorney, in a clear and forceful opening speech for the Commonwealth said that it was a long time between drinks —'

The door opened and Harry Wurts, preceded by his loud voice chanting, 'Loyal and true, Calumet Club, to you —' came in. He added, 'Drinks! That's the word I was trying to think of! Now for the barge party, and the drinks that cheer, and thank God, inebriate! Go put your white pants on, Ab. Court's over.'

'It may be for you,' Abner said. 'We've got a date with Mr. Foulke. 'Not old Lawless; not my old pal, Squire Necessity?' said Harry. 'Say, did I tell you about the time he had in Zeb Smith — you remember him —for a certain offence; scilicet, a crime against nature; scilicet: sodomy with a goat —'

'You did,' said Jackman, 'about twelve times.'

'Just for that, I won't tell you,' Harry said. 'Well, teach him some law, if you can. And don't worry about the party, if you can't make it. I'll take care of Bonnie for you. I'll tell you what she said to-morrow.'

'That will be swell,' said Abner. 'About eleven o'clock, don't forget to fall overboard.'

'I don't like your inference!' said Harry. 'Say, do you know the legal distinction there? It's time you did. A witness who swears that he saw a woman walking with a man pushing a baby carriage with a baby in it is stating an alleged fact. If he concludes that the baby belongs to the woman and the man doing the work is her husband, that is inference; but if he concludes further that the woman's husband is the father of the woman's baby, he soars into realms of pure conjecture. All for to-day, students.' The door swung closed after him. 'Quite a card!' said Joe Jackman. 'Really, aren't you going?'

'Sure. We may be a little late. We can catch the barge down the line, somewhere.'

'O.K. Be seeing you.'

THREE

1

IN the year 1825 certain leading citizens of Childerstown — the Judge of the Court of Common Pleas, several lawyers, the doctor, the master of the Childerstown Academy — joined together to form for their self-improvement a reading circle or society, which they called the Calumet Club, They accumulated a library and they kept it first in a rented room, and then in a house on East Court Street purchased with a bequest. Other bequests gave them a small endowment. Women were admitted in the '60s, and the female members devoted themselves to charitable enterprises, particularly the care of unmarried mothers.

Some of the charitable work was still carried on; but as time passed, the library was given to the Public Library, and the self-improvement part of it was limited to sponsoring an occasional lecture or concert, and the club's real function became the social one of giving two dances during the winter. These were called cotillions; and though the idea was found too pretentious to be put in plain terms, and anyone (a reporter for the
Examiner
, for instance) who did put it in plain terms caused a laugh, the cotillions were, in fact, coming-out parties. When the daughters of members were old enough to go to them, they were old enough to be married.

Of the four thousand odd inhabitants of Childerstown, about a hundred belonged to the Calumet Club. About thirty-eight hundred had not the least desire to belong, and if they thought about it at all, laughed not merely at the pretentious sound of calling the dances coming-out parties, but at the idea itself, with its suggestion that the course of nature waited on formal Calumet Club recognition. That left a few people who did have a desire to belong, but had not been asked. Since they considered themselves plenty good enough in all basic or important qualifications they spoke bitterly of those hoity-toity snobs. Calumet Club members thought the accusation of snobbishness absurd. Qualifications for membership were ordinary respectability and education, and some interest in the avowed objects of the club. You did not have to have money, and your grandfather did not have to have been a member. It was not their fault that most of the members were in fact children or grandchildren of former members. It was not their fault that respectability and education so often went with an adequate income. If people with means but no grandparents were congenial they were invited to join; if people with grandparents unfortunately lost their means they would certainly not be invited to resign. Since giving parties was now the club's principal activity it would be silly to have members who did not fit in. That was all there was to it.