The Just And The Unjust Page 37

  Basso closed his eyes again and it was plain that Judge Vredenburgh observed his impudence. Judge Vredenbrugh said, 'When he was arraigned before us, Robert Basso elected to stand mute. That is, he refused to enter a plea. The prisoner's plea is the answer he makes to the clerk when the clerk after reading the bill of indictment to him in open court, asks him whether he pleads guilty or not guilty.

  'In a capital case, where life is or may be at stake, the law is tender of the prisoner. 'Judge Vredenburgh paused; and Basso could not have been quite so indifferent as he seemed, for he must have felt the terrible silence and his eyes opened. Judge Vredenbrugh said, 'If he does not know his rights, the law will inform him of them and sustain him in them. If the prisoner cannot or will not safeguard his own interests, the law will safeguard them for him. It will not allow him, by any act that the Court can nullify or neutralize, to put himself, his rights, or his interests in jeopardy greater than the jeopardy that a man who pleads properly and is tried by God and his country submits to. Therefore we directed that a plea of not guilty be entered for Robert Basso. That became his plea; and it was, and it is, in no way prejudiced by his refusal to plead for himself. He has the benefit of the presumption that he is an innocent man. You may infer nothing from his refusal to plead, or his failure to testify; and in making up your minds about his guilt or innocence you will ignore everything but the actual evidence presented to you.'

  The colour of repressed annoyance faded off Judge Vredenburgh's forehead. Glad to get back to an impersonal topic, he said, 'We will now consider the testimony. First of all, I wish to point out that it is your duty to remember it. You will not accept —'

  Abner, who could feel little interest in hearing that story all over again, looked at the jurors. He did not believe that Basso would get the benefit of being considered innocent. The habit of innocence, unjustly accused, is not to keep still. In its alarm and indignation, innocence cannot wait to answer. Silence showed a wish to conceal something, and no juror was going to suppose that the 'something' was innocence. Even the law, trying to maintain that fiction, was perhaps tender not so much of the prisoner as of the record that might go up on an appeal.

  Behind Abner, in the seats along the curving rail, there was a sound of smothered disturbance, and Abner, recovering the Judge's unattended last words, realized that they had been about Frederick Zollicoffer's body. Mrs. Zollicoffer, whose presence Abner had almost forgotten, sat beyond the centre aisle next to Mrs. Meade in her tipstaff's jacket and frilled collar. She had begun to cry and Mrs. Meade bent toward her to see whether she was going to require attention. Next to her, on the other side, William Zollicoffer gave her an awkward, heavy-handed pat.

  Judge Vredenburgh said, 'We come now to the testimony of Roy Leming. Leming was an accomplice of these men, and the testimony of an accomplice is not looked on in law as evidence of a high type. He is, to an extent, an impeached witness by reason of his own participation in the crime; and anything he says should be received with caution. If you are satisfied that some or all of his statements are truthful, you should, of course, accept them, even if they are uncorroborated. However, we will particularize only statements of his that did receive corroboration.'

  Leming, sitting below Hugh Erskine, shifted with embarrassment; and Abner was obliged to smile. No doubt Leming was genuinely hurt to hear his honour aspersed; and you could learn from Leming's look of protest the farcical nature of the ideas a man could entertain about himself.

  Judge Vredenburgh was saying,' — it was testified that Frederick Zollicoffer was made to sit on the floor in the back of the car, his back against the left-hand door, his face toward the right hand-door —'

  Harry Wurts lifted his eyes from the pad in front of him, held up his hand, and said, 'That is twisted, your Honour.'

  Judge Vredenburgh said, 'I would be glad to have you correct me.'

  'His back was against the right-hand door and he faced the left-hand door.'

  'That is right,' said Judge Vredenburgh. 'I recall now. Just the reverse of what we stated. The iron weights were in the car, and —'

  Bunting said to Abner,' Remind me to speak to Washburn, will you?' He had been looking over his shoulder. Looking, too, Abner saw that several members of the bar were sitting at the long table with Adelaide Maurer and Maynard Longstreet and two city reporters. Evan Washburn, slight and grey-headed, saw Abner looking at him and nodded. He was a lawyer who did not often appear in court. Abner said, 'Is he going to handle the lottery thing?'

  'I think so. That's what I want to see him about. With this out of the way, we can get on with that.'

  Judge Vredenburgh lifted off his glasses and set them on the desk before him. He turned his chair a little, looking more directly at the jury, and said, 'That is the testimony in general outline. If it is accepted as truthful, it would amount to proof of guilt, and of the grade or degree of guilt. According to statements made here in the stand, the defendants helped to kidnap Frederick Zollicoffer, they helped to keep him prisoner, they, together, took him out in the car and were there with him at the moment he was killed. If you believe the sum of these statements — that Frederick Zollicoffer was murdered by their fellow kidnapper, Bailey, while still in their power, then I say to you that you would be justified in returning, and the opinion of the Court is that you ought to return, a verdict of murder in the first degree.'

  Though it must long have been obvious to every listener that in applying the law to the facts this was bound to be the advice of the Court, the sound of it in words fell, too quiet to be the crack, like the hush of doom. The instant's silence was ended by a general light stir. Several members of the jury let their faces turn, looking at Basso's closed eyes and at Howell who sat rigid gazing at the bench. Judge Irwin lifted a hand and began to pinch the skin beneath his chin. In the light of his lamp, Joe Jackman cocked his head, the last word transcribed, his stylo poised awaiting the next one.

  Judge Vredenburgh said, 'It is necessary for us to call your attention to the matter of Howell's confession. Against one of the defendants, Stanley Howell, the Commonwealth offers an alleged written confession. This confession states that Howell made and signed it of his own free will, and without force, coercion, or inducement being used to secure it. The defendant Howell admits that he signed this confession, but testified on the stand that it was not voluntary, but extorted from him by beating and abuse. Therefore you are posed with a query: was this confession free, as the Commonwealth's testimony maintained; or was it forced, as the defence claims? That the defendant may have been questioned closely and frequently —'

  Looking straight across at them, Abner considered the faces of the jurors as, presumably, they attempted to form that opinion now required of them — Louis Blandy, Genevieve Shute, Old Man Daniels (and his friend, God). The truth was, it would never cross your mind to ask the opinion of any one of them on a matter of importance. Old Man Daniels was a plain fool. Blandy, since his bakery business was a going concern, must have practical sense; but would you ask his advice about anything, except perhaps how to adulterate breadstuffs to the nice point at which the product would be not so bad that nobody would buy, yet not so foolishly good that money was thrown away on it? Genevieve Shute had the face of a silly middle-aged woman, and one look was enough to warn you that, though a great talker, she had learned in forty odd years of life nothing about anything. Perry Vandermost, in the back row, was a house painter. All Abner knew about him was that he was not one of the 'good' painters in Childerstown, the ones people who insisted on a first class job waited to get. Except by looking at the slips on Marty's card, Abner could not even be sure what the rest of the names were—there was a farmer or two; a younger woman; and one man, probably the fat one, had said he was a salesman —

  Judge Vredenburgh's voice sank into silence, and rousing himself, Abner looked at him. The Judge pushed aside his manuscript, snapped out the reading light and leaned back, resting his hands flat on the desk. He said, 'I will recapit
ulate. This is the application of the law. You have two theories to consider in reaching your conclusion about the possible guilt of the defendants. First, whether the killing of Frederick Zollicoffer was wilful, deliberate, and premeditated. Second, whether the murder was committed in perpetration of the felony of kidnapping. If you find, on either one of these theories, that they are guilty, it is sufficient to convict them of murder in the first degree. We say to you that in the opinion of the Court, if you find these defendants or either of them guilty of murder in the first degree, then the death penalty would be the just and proper punishment. However, by the Act of Assembly, you will determine that point, and you are not bound by the opinion of the Court.'

  Looking down at the defence's table, Judge Vredenburgh said, 'Before we take up points submitted for charge, do counsel wish any further instructions on any of the aforesaid matters?'

  Harry Wurts said, 'No, sir.'

  'Mr. District Attorney?'

  'Nothing further, sir.'

  Judge Vredenburgh said, 'The defendants have submitted several points for charge to the jury.' He snapped on his reading light and leaned forward. 'The first of which is refused; and therefore not read. The second' — he paused, pursing his lips — 'is refused; and therefore not read. The third was fully covered in the general charge, and is therefore not read.'

  A copy of Harry's points lay on the table before him and Abner looked at them. The third was that Howell's confession was evidence only against Howell. The fourth was: 'If the jury find from the evidence that Frederick Zollicoffer was not killed in the perpetration of a kidnapping, they cannot return a verdict of murder in the first degree.' Most of the ten items were innocuous and could be dismissed as unnecessary; but Judge Vredenburgh was prepared to find one or two of them less innocuous than they looked, being in fact framed as artfully as possible with the hope of catching him in a moment's oversight or inattention so that he would refuse what technically must be affirmed and give Harry the lucky break of a reversible error.

  Judge Vredenburgh said slowly, 'The fourth point is refused and therefore not read. The fifth point is covered in the general charge and would be mere repetition. The sixth point' —Judge Vredenburgh smiled and looked at Harry, letting Harry see that he was not blind to dangerous ground; but he wanted Harry to wonder a moment — 'is as follows', he continued. 'If the jury believe that the defendants were unarmed at the time of the killing of Frederick Zollicoffer, and had such a fear of Bailey that they were unable to form a deliberate intent, the verdict cannot be first degree murder.' He paused and added, 'Affirmed as stated. But of course if the jury find that the defendants took part in the kidnapping, the Act of Assembly holds that deliberate intent in the killing does not have to be shown. Seventh point; refused as stated. Eighth and ninth points were fully covered in the general charge. Tenth point' — the corners of his mouth drew down —'is refused and therefore not read.'

  Looking at the carbon copy, Abner saw that the tenth point was: 'Under all the evidence the verdict must be not guilty.'

  Judge Vredenbrugh snapped out the light again. He said, 'Members of the Jury, we will say a word more as to the form of your verdict. Your verdict in this case may be not guilty as to both defendants, or it may be not guilty as to one defendant. Your verdict may be guilty of murder in the first degree as to both defendants, or it may be guilty of murder in the first degree as to one defendant, and a different verdict as to the other defendant. Your verdict may be guilty of murder in the second degree as to both defendants, or as to one defendant, with a different verdict as to the other.

  'In short, you will render for each defendant an independent verdict. Both may be the same; but you will, in arriving at them, consider them separately and independently. We have already told you that, in case either one or both verdicts is murder in the first degree, you are required also to fix the penalty, which may be either life imprisonment or death. If your verdict is murder in the second degree, the penalty will be imposed by the Court, and does not concern you.

  'You will take this case, Members of the Jury, and give it your very careful consideration, all the consideration that the gravity of the crime merits, all the consideration that the length of the testimony requires. You will render your verdict unaffected by any bias or prejudice, or hatred or sympathy. Such feelings have no place in the deliberations and conclusions of a jury. We suggest to you that you look upon this task as a problem to be solved by a co-operative effort, to which each of you must devote his judgment and understanding; and not as a contest or debate in which sides may be taken and arguments advanced for the sake of arguing. It is a cold question of fact for you. You will render that verdict that your reason and your consciences approve.' He looked down at Mat Rhea and said, 'Swear the officers.' Harry Wurts said, 'If the Court please, and before the jury retires, and in their presence, I want to ask a general exception to your Honour's charge; also an exception to the defendants' points for charge that were refused; also that portion of your Honour's charge wherein you stated that the kidnapping enterprise did not end until the victim was returned.'

  Judge Vredenburgh said, 'Exceptions allowed as requested. How about you, Mr. Stacey?'

  'Yes, sir. The same, if the Court please.'

  'Allowed also for the defendant Robert Basso.'

  Malcolm Levering and Albert Unruh came up to the bar, their bald heads and blue jackets close together as they put their hands on the bible Nick Dowdy held open for them.

  Standing up, Mat Rhea said, 'You do swear that you will well and truly keep this jury in some private and convenient place, until they have agreed upon their verdict; and that you will not suffer any person to speak to them, nor speak to them yourselves, without the leave of the Court, except it be to ask them if they have agreed on their verdict. So help you God.'

  Judge Vredenburgh and Judge Irwin arose on the bench. Nick Dowdy closed the bible and taking up his mallet hit the block. 'The Court of Oyer and Terminer and General Jail Delivery here in this day holden stands adjourned until eight o'clock p.m.'

  Bunting leaned back, clasping his hands behind his head and stretching. He looked at the clock and said, 'Ten of six. You going home? I guess I will.'

  'Want me for anything?'

  'No.'

  'How about Washburn? There he goes.'

  Bunting came to his feet. 'O.K. See you later.'

  The aisle leading up to the main doors was filled with moving people. Abner saw Bonnie sitting in the shadowed top row beside Everitt Weitzel who was talking to her. He went over and stood with the group at the foot of the aisle waiting to go up. Just ahead of him was Adelaide Maurer looking at her folded sheets of copy paper. She smiled in a worried way, waiting an instant so that Abner came beside her.

  She said, 'Ab, how long do you think it will take? I want to send my story in. When it gets late, they always find some reason to cut it, darn them!'

  Abner said, 'They oughtn't to be very long. I doubt if they have to argue much about these foreigners. You write out what you have, and we'll get the rest of it for you by nine o'clock. How's that?'

  Adelaide said, 'If you don't, I'll sue you.'

  She went ahead, and Abner, now almost the last in the long procession, reached the top bench. Everitt Weitzel had gone, and he sat down by Bonnie. 'Want to go eat?' he said. 'Do you have to eat a lot?'

  'Why?'

  'Come down to the house and I'll fix you something. Jared's in some scout show, or I don't know what, and Mother has to go to it. She'll be back by eight, but she didn't want to leave the twins alone all that time.'

  'Why not?'

  'Harold isn't feeling well. He was over at the Simpson's, and one of the kids bought a lot of cream puffs, or says he did — I think, as a matter of fact, they probably swiped them from Blandy's delivery truck. Harold must have had a good many and they made him pretty sick.'

  'Even one of those would make you pretty sick,' Abner said. 'Blandy's foreman of this jury. I guess he'd better go home and
take care of his business.'

  'Aren't you through yet?'

  'I wish we were. The jury just went out.' He looked down at the well of the court, now almost empty. Bunting was talking to Evan Washburn over by the big table. Hugh Erskine came through the door from the back hall and made his way around the jury's empty chairs and started up the aisle. Reaching the top, he said, 'Hello, Bonnie. What do you want to hang around here for? I wouldn't, if they didn't pay me.'

  'Get them off your hands?' Abner said.

  'And glad to! No fooling, Ab; every time. I'm glad to! I don't like that Basso boy. He's a mean one. I'll feel a lot better when they take those boys away. Look. Do you think I have to bring them back here until the jury comes in? I didn't get a chance to ask the Judge.'

  'I don't think so, Hugh. I don't see why. I don't think there's any reason for them to be present until the verdict is read.'

  'I didn't know, exactly.'

  Hugh's broad, good-natured smile went to Bonnie. 'Trouble is, we don't have enough murders around here,' he said to her. 'Don't know the rules. Well, I'll get me some supper.' He went on out of the doors.

  'Let's get us some,' Abner said. 'We'll have to go by my office and pick up the car. I left it in the garage down there this morning. You going over to school to-night?'

  'The meeting's at half past eight; yes. I'm so worried about Mr. Rawle. He's so upset.'

  'I wouldn't worry about him,' Abner said. 'Jesse's got that pretty well under control.'

  'Well, Mr. Gearhart doesn't run the school board.'

  'That's what you think,' said Abner.

  6

  At seven o'clock the low clouds broke over the western hills and showed behind them, far higher, and far off against the deep blue of fair weather, alto-cumulus patterns shadowed grey below, brightly white edged. Through gaps and chinks the broad sun streamed in splendour. Childerstown, washed and shining, was flooded with golden light. The wind fell and there was a great chatter of birds.