The Just And The Unjust Read online

  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 do
es 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.

  This was as ridiculous as Mrs. Zollicoffer's claim that she did not know her husband's business; and, in fact, both lies were probably Walter Cohen's. Probably he had told Marguerite to say nothing about Fred's business, no matter what happened. From Leming, and from Howell's confession, Bunting knew that it was Basso who received the money, and Basso himself had told Leming that he knew Walter Cohen recognized him. Walter Cohen would know that Bunting knew; but he had doubtless also made sure that Bunting could not or would not do anything about it. Probably Cohen judged accurately the importance to the Commonwealth's case of his identifying Basso. Bunting could show that money, to the same amount as Cohen paid a mysterious stranger, had been brought on the same evening to the bungalow and divided by the kidnappers. Bunting had all he really needed. No jury was going to suppose that by a coincidence other people had gone out that night carrying bundles of bills to pay ransoms at the same spot; and there, by mistake, met one or more other kidnappers coming to get it, with the result that Cohen gave his money to the wrong person, not Basso; while Basso took his money from the wrong person, not Cohen. All the circumstances identified Basso; and Cohen could rightly conclude that Bunting would not bother to make any determined or dangerous attack on his own witness — compelling Cohen to identify Basso was not worth it. Cohen was left free to play his own game, moyed by who-knew-what anfractuosities of honour among thieves, or fears of a man who could never call the police, or hopes of keeping the confidence of his business associates. Since Harry and George did not want the identification made, either, Harry had no reason to ask questions.

  The Commonwealth's next witness would be Roy Leming, and Abner laid out the folders. This was important; and Abner would have liked it better if Bunting were going to handle Leming. Probably Bunting would have liked it better, too; but Leming, a nervous man, was more afraid of Bunting than Abner. Perhaps because Abner was younger than Leming, Leming shook and stammered less when he could address himself to Abner. Though Bunting seemed to feel no misgivings about leaving the most important witness to his assistant, and this both pleased and (as it might have been meant to) heartened Abner, Abner could not say that he felt no misgivings of his own.

  For one thing, Mr. Servadei was present. Servadei was an insignificant little grey-haired man, and his part in the proceedings appeared only that of an interested observer. Nevertheless, Abner wished that when the matter of Leming's turning state's evidence was settled, Servadei had seen fit to withdraw and go about his business. From his firm's standpoint Servadei's time must be valuable; and Abner could not help wondering just what figure went down in Servadei's day book for each hour spent here doing absolutely nothing.

  Of course, Servadei's waiting might be innocently explained. Servadei might want to see Harry handle this tough case so as to get a line, for his firm's information and possible future need, on a criminal lawyer in this county. The chances of such a need arising were not likely to be great, or not great enough to make such a purpose certain and shut out entirely the possibility that Servadei was there to preside over the pulling of a fast one. Once started in that direction, disquieting thoughts multiplied. The business of Servadei's firm was getting criminals off. Why should they advise a client of theirs to give testimony that would probably get two criminals electrocuted?

  Without Leming's testimony the Commonwealth could hardly hope to convict Basso, and might not convict Howell; and there sat Servadei; and how easily he could slip Leming a word, a threat from those hidden parts of Leming's criminal past, a promise to help him in ways that the Commonwealth could not anticipate. Such a plan might even tie up with Basso's standing mute; and though Abner did not see how, it was always possible that he and Bunting would find out how in good time. Abner shrank to imagine the upset — Bunting's sudden angry realization as he arose to interrupt Abner and request permission to cross-examine; Bunting's biting, but if Leming lied firmly, vain attack; the eventual ignominious entry of a nolle prosequi, or the Court's necessary charge that there was no evidence against Basso.

  Servadei, finding Abner's eye on him, bowed civilly; and Abner, obliged to nod back, looked away in confusion and gave his attention to the witness on the stand.

  Bunting said to Walter Cohen, 'Does either of them look like the man you saw?'

  'I object to the cross-examination of this witness,' Harry Wurts said.

  The tactic of constant obstruction was a boring one to Harry, whose type of mind was the type that demurs, that admits all you claim, and in a flash, taking a new direction where you are entirely unprepared, shows that for one reason or another there is no case. He tilted back in his chair, smiling at Bunting, and added, 'The witness has said with (he utmost positiveness that they don't look like the man he saw.'

  Judge Vredenburgh shook his head. 'Exception noted,' he said.

  Bunting said, 'Does either of them look like the man you saw that night?' Abner saw that he was venting his annoyance —a thing Bunting sometimes did when it could not make much difference to his case. Bunting was grimly going to force Cohen to anatomize his lie.

  'I can't say they do,' Cohen answered. He was probably not altogether easy. The careful way in which he was being obliged to perjure himself might make him wonder if, all unknowing, he was putting his foot in it. He gave Bunting a placatory, almost entreating look. He tried a rueful smile, as though to say that he only wished he could help.

  Bunting said, dry and grim, 'I ask you to look particularly at the defendant, Robert Basso.'

  Crossing and uncrossing his legs, joining his fleshy hands together, Cohen said, 'I don't know that particular gentleman, sir.'

  'Just a moment!' Abner could see Bunting's silent ejaculation : You damned liar! 'Did you ever know him?'

  'No, sir.'

  'I ask you whether or not —' Bunting turned to the
defence's table. 'Do you mind having Basso stand up?'

  George Stacey looked at Harry, and Harry said, 'No. Stand up, Basso!'

  For a moment it seemed doubtful if Basso would obey. Maybe he saw then that he could do the Commonwealth more despite by agreeing than by refusing. He got slowly to his feet and turned his black, rarely blinking eyes on Cohen in the stand.

  Bunting said, 'I ask you whether or not the man that you saw was about the size and weight — height and weight, of Robert Basso, this defendant?'

  Cohen went through his excruciating dumb-show of anxiety to please. He tilted his head. He looked critically at Basso. He narrowed his eyes to weigh and measure him. Then he shook his head and said regretfully to Bunting, 'To the best of my recollection, you understand, he may have been a slight bit taller and a slight bit heavier. I say about one hundred and seventy-five pounds —'

  Abner let his eyes go around. Beyond Servadei and Leming, Hugh Erskine sat in the raised chair at the end of the row. His slight elevation let him overlook his charges and Hugh from time to time gave them a glance. He then subsided, his solid slab-cheeked face in dignified repose, his long-lipped big mouth shut in a firm line. Brown hair was thinning on the crown of his big head. Hugh's deep-set mild brown eyes encountered Abner's gaze, and he closed one in a slow amiable wink. On Hugh's broad chest, pinned to the left suspender strap, Abner could see, shining in the shadow of the coat hanging open, the silver, eagle-crowned high sheriff's badge.