The Just And The Unjust Page 41

  'That's the answer,' he said.

  'Here, take some!' The joke of pressing his campaign cards on two men who, it was perfectly certain, wouldn't vote for him made him laugh until the tears came into his eyes.

  The group about Harry and John Clark on the sofa was breaking up. Attracted by Art Wenn's noise, several of those leaving stopped. Joe Jackman, who had been busy over his brief case on the window ledge packing up his transcript, said, 'Hello, Wenn. What's so funny?'

  Art said, 'Ab and Stacey here are getting up a Wenn for District Attorney club — Say, Pete!' he said to Van Zant, who was at the door, 'got to see you! Say, I just had those papers from the bank! Say —'

  'Come on,' Van Zant said, 'I can't wait'.

  They went into the hall, and Joe Jackman said, 'How'd you like to vote for that? They must be crazy to nominate him!'

  Coming up now was Hermann Mapes. 'Tough luck, Ab,' he said. As clerk of the Orphans Court, Hermann was naturally a good party man, and would have none of Wenn's political reasons to enjoy Bunting's defeat; but Abner guessed that Hermann, too, found something not entirely displeasing in it There is always a little satisfaction in seeing the professionally just, reformers and clergymen, judges and prosecutors and police officers, set back. Hermann's long inquisitive nose twitched with this satisfaction. He gave Abner a covert glance to see how Abner was taking it, ready to enjoy Abner's embarrassment if he showed any.

  Joe Jackman said, 'It's tough on Ab and Marty; but I have to say I didn't mind. Won't have to do it up now. That would have printed to eight hundred pages.'

  Mr. Servadei, who had been talking to Harry and John Clark, stopped, holding his straw hat, and said, 'Excuse me, Mr. Coates. My understanding with the district attorney is that Leming's plea is Monday. I'm planning to be here. If that doesn't come out convenient, you have only to let me know. I could arrange to make it almost any other day. Would you mind telling Mr. Bunting?'

  The others had fallen silent, looking away from Mr. Servadei with a speculative, essentially hostile, reserve that he was probably used to. Probably the small-town impudence of stares at the back, the smalltown naivety of mixing contempt with uncontrollable curiosity, amused Mr. Servadei. He had found some way to answer in his own mind the charge, silently made by such behaviour, that he was a dirty little shyster. Perhaps he let himself think, when he saw unspoken disdain, of his money in the bank, of big men in the city glad to be his friends, of cases he had won by his superior brains; and so, perhaps, he could feel almost genial toward these self-righteous rustics with their couple-of-thousand-dollar incomes, their pettifogging over the deeds and debts of farmers and shopkeepers, their half-learned law soon half-forgotten. They could not despise him without showing it; and that was the measure of their capacity. Mr. Servadei could despise them, and did, and never gave them a sign of it; and that was the measure, he might think, of his capacity.

  Malcolm Levering, who had taken off his tipstaff's jacket and put his coat and hat on, looked in at the hall door. 'Ab,' he said, 'telephone. In the library. Guess this line is busy.'

  'Thanks!' Abner said. He said to Mr. Servadei, 'Mr. Bunting will let you know if any change is necessary.'

  Mr. Servadei bowed and went out.

  Going after him, Abner went past the stairs and the barred passage to the jail. The door under the lighted glass sign was ajar. The telephone lay off its cradle on the desk. Taking it up, he said, 'Yes?'

  'Ab,' It was Bonnie.

  'Hello,' Abner said. 'What did Cousin Mary say?'

  'Did you really wonder?' Bonnie said. 'Darling, how did it come out?'

  'How did what —oh! Not so good. As a matter of fact, it was second degree.'

  'You lost?'

  'Well, we didn't win. The jury wasn't having any.'

  'Oh. I'm sorry you lost. Do you mind my calling?'

  'No, of course not. I wish we'd got it; but —'

  'I know you do, darling — where are you? They switched me over to something.'

  'In the library.'

  'Who's there?'

  'No one.'

  'Do you love me?'

  'Yes,' Abner said, 'I — '

  'All right, my dear. Good night.'

  Most of the people in the Attorneys' Room had left. Maynard Longstreet, all this time talking, now hung up, put his hat on the back of his head, and walked over past the empty fireplace. 'Well, jerks,' he said, 'get enough justice for one day?'

  Bunting, who was coming in from the courtroom, said, 'And enough journalism, too, professor.' Mr. Clark arose from the couch and said, 'Where have you been, Marty? Make me wait around here all night! About that guilty plea for Susie. No. We'll stand trial'.

  'See?' said Maynard. 'Once they think they can get away with something! The jury lets them off. The school-board lets them off. I hope you stew in it! So long.'

  'Suits us,' Bunting said to Mr. Clark. 'We've got you down for Tuesday. I wouldn't count on another break, if I were you.'

  'I stopped counting on anything with a jury in it thirty-five years ago, son,' Mr. Clark said. 'Go thou and do likewise.'

  From the sofa, Harry Wurts said, 'What you don't grasp, Marty, is the issue.'

  Bunting said, 'You made your speech'.

  'Now, I'm going to make another; and you'd better listen, wise guy! I don't say we didn't have luck —'

  'You don't, huh?'

  'I don't. But the point is, a couple of men's lives are at stake; and you feel bad because you couldn't kill them! Why don't you use your imagination? My God, if you had to kill some kittens you'd probably take them over to the vet! But two of your fellow men —'

  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.'