The Just And The Unjust Page 36

  The jury might be — and looking at them, Abner saw that they, or several of them, were cruelly bored; but Bunting's moral ascendancy of fixed purpose and unsmiling resolve compelled their attention. Whether they liked it or not, they listened while he told them that there were no facts in conflict and no issue in doubt. The point for them was (a) nobody denied that Frederick Zollicoffer had been kidnapped, and while still in the custody of his kidnappers, killed; (b) nobody denied that Howell and Basso assisted in the kidnapping. That was all there was to it. If the jury believed that the evidence established this point (and what alternative was there?), let them bring in a verdict of first degree murder and assign the death penalty as by law provided.

  Bunting, his lips coming together firmly as he stopped speaking, looked at the jurors in a sharp, detached way to see if anybody did not understand. Because he never built his arguments to a high point, he was never in any danger of anti-climax, there was no effect to spoil. Bunting had concluded; but seeing some movement of mouth or expression of eye that did not satisfy him, he went drily on to conclude again.

  He said, 'In conclusion, Members of the Jury, I will remind you of what this evidence shows, at the same time, about the character of the defendants. In law, Basso's refusal to plead and testify isn't a sign of guilt; but it is a good indication that he is non-co-operative, that he feels contempt for the law and for society. Howell says now that he didn't want to see Zollicoffer killed; but his character as a criminal is such that we may reasonably doubt it. He did not want to get caught, yes; I am sure of that; and at the time, the surest way not to get caught must have seemed to dispose of Zollicoffer and hide his body where it could never be found. I think he assented for that reason. I think the effect of leniency on such characters would be to prove to them, and incidentally to the criminal circles of several large cities, that you can get away with murder. I don't think you would want to give notice to a lot of city criminals that if they come across the county line here and commit their crimes they will get off easy. For this reason, too, the Commonwealth asks you for a verdict that will leave no doubt that here the law is fully enforced.'

  He nodded briefly, nodded again to Judge Vredenburgh, and came over and sat down by Abner. He looked at his watch and said, 'Twenty-five minutes. That's not bad. See Jake?'

  Judge Vredenburgh said, 'We will now take a recess for five minutes; after which I will charge the jury.'

  Abner said, 'Jake and Jesse were there.'

  Harry Wurts got up and came over to the Commonwealth's table. 'Well, gents,' he said, 'want to bet? Too late! Offer withdrawn in toto.' George Stacey came over, too; and Harry said to him,' Go on, George; give him the works. Ask him what he meant by trying to prejudice the jury against your client.'

  Bunting said, 'I'd like to know what you meant by vindictive.'

  'I meant you,' Harry said. 'What else is it? What's the difference between you and them? I'll tell you. They never meant to kill anyone; but you set out with malice prepense to burn them. Say, if I wrote the laws, I'd require the prosecutor who asked the death penalty and the jury that voted it to attend the execution. Then you might know what you were talking about.'

  'I thought you did write the laws,' Bunting said. 'It certainly sounded like it, when you were giving them that stuff— there comes your man back; you'd better go hold his hand.'

  George had been standing with an indecisive smile, probably waiting for Harry to indicate what they ought to do next. Abner said, 'George, there's something I want to see you about. Going to have any time to-morrow?'

  'All day, I guess,' George said. 'I haven't got anything on.' Harry had started back to the defence's table. He stopped now and said. 'He wants to see you about being assistant district attorney and dog-robber in chief. Just say no. Why should you do all the dirty work?

  George blushed. He looked away in confusion, showing that he might not be averse to the idea, if by any chance he were going to be offered the job; but Harry and Harry's kidding had taught him useful lessons in wariness. He said stiffly, 'Any time you like, Ab'. Basso had come in with Hugh Erskine, and George went over and seated himself.

  Bunting looked at Abner and said, 'Are you going to run?'

  'Unless Jesse changes his mind.'

  'He doesn't change his mind,' Bunting said. 'Why didn't you tell me?'

  'I didn't know until just now. We didn't settle it last night. And what do you mean, he doesn't change his mind? He changed something; because Jake said he was ready to plead Mason guilty. They weren't ready yesterday.'

  'Look, Ab,' Bunting said, 'Jesse very likely would do what he could for Mason; but he won't do what he can't. I suppose he asked Jake not to make a fuss.' He picked up a pencil and began to bounce it lightly on its rubber eraser. 'There's such a thing as give and take,' he said. 'Did you mention Mason to him last night?'

  'I may have said —'

  'Yes. Well, don't get cocky about it; but he made up his mind long ago that he wanted you on the primary ballot. It's not the easiest thing in the world to get up a ticket. He didn't change his mind. He just decided that if you were worrying yourself about some idea you had about Mason well, that could be fixed. That's give.'

  'Yes.' said Aber, 'and what's take?'

  'Take's when you tell him you'll run.' Bunting paused and held the pencil poised. 'If he does something for you, you do something for him.' He gave Abner his faint, tight-lipped smile. 'Only, I wouldn't try to stick him on the deal, if I were you. A lot of people have tried to stick Jesse. Nobody I ever heard of ever did, except maybe Jared Wacker, and that wasn't politics.'

  'This isn't any deal,' said Abner. He knew that his tone was huffy and he tried to modify it by laughing. 'He doesn't have to give me anything.'

  'That's right. He doesn't. Just keep that in mind. But I guess you want him to.'

  'What do you mean, I want him to?'

  'For crying out loud!' Bunting said. 'Nobody's making you be district attorney. If you run, it must be because you want to. If you went into the primaries and tried to get the nomination on your own, do you know what you'd get? About twenty write-ins. If you ran as an independent, do you know what you'd get? You'd get the pants licked off you. Now, why don't you act your age? This isn't the college debating society election where you vote for the other fellow to show how modest you are. You may be the best man for the job, and I think you are; but nobody's going to bring it to you on a platter.'

  'I know,' said Abner, 'but do you mind very much if I still don't like the way it's run? What right has Jesse to decide who's going to be what? Does he own the county?'

  Bunting said, 'Standing off and saying you don't like the way things are run is kid stuff — any kid can work out a programme of more ice cream and less school and free movies and him telling people what to do instead of people always telling him —'

  Abner said, 'I don't want any more ice cream, thanks.'

  'Maybe you don't; but what you're saying is the same damn thing. If things were run according to your ideas instead of the way they are run, it would be much better. Who says so? Why you say so! That's what the dopes, the Communists and so on, all the boys who never grew up, say. Who's going to be better for it? Their fellow-men? Horse feathers! I don't say some of them don't hope so; but the only thing they can be sure of is that it would be better for them.'

  In Cambridge Abner had seen a few people who said they were Communists. Naturally they had not bothered to explain their ideas to Abner. If they had, he would not have known what to say; they seemed queer and set apart, like poets, or homosexuals, so that it was hard to think of them as real people. He did not pretend to understand them, and he would admit that they all seemed to have something wrong with them; but on the other hand, Marty had probably never seen a Communist, so how did he come to know so much about them? Abner said, 'So you say.'

  'What I say is,' Bunting said, 'until you have some responsibility, do something besides kick, or try to heave in a few monkey wrenches, you aren't goin
g to know what you're talking about. Sure, one way to get rid of the rats is burn down the barn! That's brilliant. Wait until it's been up to you for a few years, until you've had to decide, until you've seen how a few of those brilliant ideas turn out. Wait until you have to do the work instead of the talking. Then you may begin to know something, not just think you know.' He pulled open the table drawer before him and tossed the pencil into it.

  'I never claimed to know much of anything,' Abner said.

  Bunting looked past him to the door of the Judge's chambers. Judge Irwin was coming out, drawing his robe together over his blue serge suit. He carried his bald head and distinguished thin face bent forward, moving in nervous haste; but he was soon brought to a halt by two state policemen. They had left their seats at the end of the row and stood talking together in such a position that they blocked Judge Irwin's route to the bench steps. Judge Irwin pulled up, hesitating with the quaint but pleasant delicacy of a shy man.

  One of the troopers, hearing or sensing a movement behind him, glanced over his shoulder. His companion looked, too; and they stepped away in confusion, apologizing. Judge Irwin smiled in gentle embarrassment. Abner could hear him say, 'Thank you —' as though it were their courtroom, not his. 'I thought I would come in and hear the charge.'

  Still more confused, one of the troopers said, 'Yes, sir. Sorry, sir.'

  'Well, you'll learn!' Bunting said, looking back to Abner. 'God, how you'll learn!'

  Judge Irwin passed along the bench quickly and took his seat. Bunting said, 'We'd better shut up. I guess Vredenburgh's ready.'

  5

  Judge Vredenburgh said, 'Members of the Jury: in this bill of indictment the two defendants on trial before you are charged, together with Roy Leming, with murder. It is averred that they did kill and murder within this county one Frederick Zollicoffer.'

  He paused, tilting his head to rest a moment against the high carved back of the chair, his eyes focusing on something far off which he seemed to look at with a stoical severity. He said, 'Two only of the defendants named in the bill are on trial before you, because there has been a severance or separation of the defendants for the purposes of this trial. Therefore, your duties in this case relate only to Stanley Howell and Robert Basso.'

  He cleared his throat, looked at the desk before him, and then directly at the jurors. 'You have listened patiently and closely to the testimony for three days. You have indicated by your attention that you know the seriousness of your task. You were picked after a painstaking examination of many members of the panel in order that both sides might be satisfied that each of you was intelligent and unprejudiced. You have noticed, no doubt, how you have been guarded and perhaps restricted. This surveillance was not at the whim of the Court. The law requires it. The law is solicitous that the defendants shall have a fair trial, and also that the Commonwealth's case shall be fairly and impartially heard apd tried.'

  Abner tipped his chair, easing himself to a more comfortable angle. He looked past the defence's table to Warren Lyall, who sat in the tipstaff's seat behind. Next to Warren was Mrs. O'Hara, and next to her sat Susie Smalley, one thin leg thrown over the other under the skimpy skirt. She seemed to be staring blankly at the back of Howell's head. John Clark sat next to her. His air was calm and pompous. Dewey Smith was next to him, and Dewey was thoughtfully picking his nose. With an expression so like John Clark's that it could be seen to be what it was — the professional expression—Mr. Servadei looked at the Judge, polite and reflective. Between him and Hugh Erskine sat Leming. Leming was uneasy; and Abner supposed that he would go on being uneasy as long as Howell and Basso lived.

  Judge Vredenburgh said, 'The distinguishing mark of murder is malice aforethought. This is not malice in its ordinary meaning alone, a particular ill-will, a spite or grudge. Malice is a legal term, implying much more. It means wickedness of disposition, hardness of heart, cruelty, carelessness of consequence, and a mind without regard for social duty. Of possible kinds of murder, the Act of Assembly provides as follows: "Murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or in attempting to perpetrate, any arson, rape, robbery, burglary, or kidnapping, shall be deemed murder in the first degree; and all other kinds of murder shall be deemed murder in the second degree"

  Judge Vredenburgh looked up from his desk. 'You will notice that under this Act, murder in the first degree may be by poison or lying in wait. There is no evidence of such means in this case. Or it may be any wilful, deliberate, premeditated killing. It may equally well be any and all killing, whether premeditated or not, done in the perpetration of those felonies named.

  'In the kind of murder described as wilful, deliberate and premeditated the intention to kill is the essence of the offence. Therefore, if an intention to kill exists, it is wilful. If the circumstances evince a mind fully conscious of its own purpose, it is deliberate. If sufficient time is afforded for the mind to formulate a plan of action, it is premeditated. No particular period of time is fixed by law as sufficient. It may be very short. It must be long enough for the intent to form, for the means or instrument to be selected, and for the design to be carried into execution.'

  Bunting murmured to Abner, 'Hope he doesn't get too highfalutin for them. Know what evince means?'

  'And so do they,' said Abner. Judge Vredenburgh's style, especially when he had worked on it, was better than the legal average. The Judge talked the way he looked — severe, somewhat curt, short with liars and people who wasted his time; his even-handed sense of justice sometimes overborne, or nearly overborne, by his well-known little crotchets; his sharp observation and good sense supplying him material from which he occasionally (he was no joking judge) struck out a flash of quick, rather grumpy, humour. Abner preferred Vredenburgh's charges to Judge Irwin's.

  Just the same, the charge was to the jury, and Judge Irwin, whose habit was to ramble along, repeating himself, saying it the long way, impressed on the jury the things they should know. The circumlocutions gave his hearers time to take in a point, mull over it a moment so that it left an impression; and then, without the worried feeling that they had meanwhile missed something, they found the next point before them. Judge Irwin, though talking all the time, contrived not to say anything until they were ready and waiting.

  Judge Vredenburgh said, 'All felonious homicides and intentional killings are presumed by the law to be murder in the second degree. This is a presumption apart from and not to be confused with the invariable presumption that all defendants are innocent. The Court instructs you so to presume, here as in every criminal case. The burden of proving guilt is and remains on the Commonwealth throughout the trial. In the case of murder, the Commonwealth must also prove that the murder amounts to more than murder in the second degree. For the purpose of so proving, the Commonwealth has offered testimony along two lines: first, that the killing was wilful, deliberate, and premeditated on the part of the person or persons alleged to have shot Frederick Zollicoffer, which is to say also on the part of those who were present, knowingly helping, aiding and abetting the act. Second, that the felonious killing of Frederick Zollicoffer was perpetrated in the course of committing a kidnapping in which the defendants are alleged to have taken part. If the Commonwealth has established these contentions, or either of them, beyond your reasonable doubt, then these defendants, or either of them, would be guilty of murder in the first degree.'

  Judge Vredenburgh took a sip of water from the paper cup standing in a holder on his desk. He turned a sheet of his manuscript. In the courtroom there was a corresponding little stir and pause. At the defence's table Stanley Howell put his head toward Harry and made an anxious inquiry. Basso's head was bent, his eyes closed. He was either asleep or giving a good imitation of sleep. Behind them, Susie still stared, her mouth open a little.

  Judge Vredenburgh drew a breath and leaned forward, his elbow on the
desk, his chin on his hand. He said: 'Most of you are probably familiar with the term; but the Court will now define reasonable doubt as it is understood in the law. Reasonable doubt is a doubt that arises out of the evidence or lack of evidence. It is such a doubt as would make a reasonable man in the conduct of his own affairs and in a matter of importance to him, pull up, hesitate, and seriously consider whether the thing he thinks of doing is right and wise. It must, however, be a real and substantial doubt; not, for instance, the idle reflection that nothing is perfectly certain in this life. It is a doubt that bases itself on serious gaps or loopholes in the evidence; that persists actively and positively. It is the doubt of a man who has heard and considered all the contentions of the prosecution, and yet who is not satisfied that the defendant must have done what he is charged with doing.

  'If you feel such a doubt about the guilt of these defendants it is your duty to give them the benefit of your doubt and to acquit them, or that one of them that the doubt touches. If, on the other hand, you find no good ground for doubt, if what you have heard results in your abiding conviction of their guilt, it is equally your duty to convict both or either of them.'

  Judge Vredenburgh looked at the defence's table where Basso still sat with his head bent and eyes closed. Judge Vredenburgh compressed his lips; and George, watching him, moved an elbow, jogging Basso's arm. Basso's eyes came open and Judge Vredenburgh said, 'Before referring to the testimony and your duties toward it, the Court deems it proper to instruct you on the status of the defendant, Robert Basso —'