The Just And The Unjust Read online

  On the bench Judge Vredenburgh moved his head, his double-chinned but strong and firm plethoric face turning in sharp advertence, his blue eyes glinting, from Bunting to the witness and occasionally to the jury. His right hand under the desk lamp before him could not be seen, but the light winked now and then on the metal end of a pencil as he wrote. Under the bench Joe Jackman, in the glow of his lamp, wrote too, and paused and wrote and paused, his expression bemused, his thoughts apparently far away. Next to Joe sat Nick Dowdy, grey head bowed, fat chin sunk on his chest, placidly asleep. Next to Nick, Mat Rhea, the clerk of Quarter Sessions, looked at his clasped hands, slowly and patiently twiddling his thumbs. Farther down the line, Gifford Hughes, the prothonotary, sat back, his moustache sadly drooping, his eyes dreamily fixed in space. Beyond Gifford, Hermann Mapes, the clerk of the Orphans Court, bent forward, plainly busy with some of his office work. In their elevated chairs around the circle of the rail, the tipstaffs were drowsing. Now one, now another, now two or three at once nodded slowly. Then one or another woke, lifting his head with a light practised jerk, affecting to have been awake all the time. Down by the lower doors the state police officers yawned.

  At the defence's table Harry Wurts slouched debonairely, easy and smiling. He wore a suit of thin tan material a good deal wrinkled. His coat hung open. His dark blue necktie was loosened and the collar undone around his sunburned neck. Across his fleshy chest his limp white shirt strained at the buttons. Sometimes Harry tapped his teeth with a pencil, or rolled it against the reddish bristles of his little cropped moustache. Sometimes he murmured something to Stanley Howell beside him, or inclined an ear to listen.

  George Stacey, between Howell and Basso, wrote industriously. George was one of the. youngest members of the bar, and he was probably glad of the Court's appointment. Starting a law practice in a country town was hard. Older people hesitated to give a boy like George important and profitable legal business; and George's contemporaries, to whom George might not look so hopelessly young and inexperienced, were not yet in a position to have important or profitable legal business. George had good sense, and he was a steady worker; but the opportunities that happened to be available for going in with an older man looked so poor that George was trying it the hard way — opening his own office. Abner, though he had enjoyed several advantages George did not have, knew all about those first years, and he was sure that George hardly earned expenses. This trial, putting George in the public eye, would do him good; and no doubt the judges chose him with that benevolent idea. Sitting there, slight, blond, and worried, George, it could be seen, was leaving no stones unturned. George could not have any serious hope of getting Basso off, which would make his job discouraging enough; and Basso, by standing mute and refusing to help himself or his counsel, made it difficult to the point of impossibility to do anything for him. George, writing so hard, must be taking most of the testimony, scrutinizing every bit of it for possible technical points, and Abner had to admire such resolute if probably futile industry.

  On George's right, Basso, playing his dogged part, glowered straight in front of him, his round little face hard and contemptuous. He did not look at anything. He did not seem to hear anything. Howell, on the other hand, shifting in his seat, hitching closer to Harry, letting himself drop back, whispering, nodding, his hands always in movement heard everything and looked everywhere. He paid avid attention to Bunting and Doctor Hill. He bothered Harry constantly.

  Bunting was winding up his examination. He said to Doctor Hill, 'And did you see those irons also at Mr. Westbrook's undertaking establishment the night you performed the postmortem examination?' Remote and sonorous, Doctor Hill said, 'I did.' Bunting looked at the card in his hand on which he had jotted his notes, turned it over, and put it in his pocket. 'Now, Doctor,' he said, 'referring to these wounds, would either of the wounds you have described for us as found upon this body have proved fatal to the man receiving them?'

  'Indubitably both or either would, Mr. Bunting.'

  'And could you tell, from your examination, how soon death must have ensued following such gunshot wounds?'

  'I have no hesitation in saying within a very few minutes.'

  'Doctor,' said Bunting, 'did you make any tests to ascertain whether the body of the man you examined was dead when it was placed in the water?'

  'I did, sir.'

  'And what conclusion did you come to, if any?'

  'That body was dead when it was placed in the water.'

  'Thank you, Doctor,' Bunting said. 'Cross-examine.' He came around the table and sat down by Abner. He drew a deep breath and relaxed, tilting back a little. 'That's work,' he said. 'Damned stuffed shirt. You can't tone him down any. Harry will have a field-day.' He reached out and took a paper cup of water in a plastic holder beside the little vacuum carafe on the table and swallowed some.

  Harry Wurts came casually down past the jury, shrugging his wrinkled coat into place. He put his hand in his trouser pockets, tilted his head back, and looked at Doctor Hill. 'By the way, Doctor,' he said, 'just how did you ascertain whether the body was dead before it was put in the water?'

  'Quite simple,' said Doctor Hill. 'I removed the lungs and found air in them. Therefore he did not drown.'

  'We are quite simple people,' Harry Wurts said amicably. 'Just how do you apply this test of yours? Describe it, if you will.'

  'The test is not mine, Mr. Wurts,' Doctor Hill said sharply. 'It is a standard test. You can determine whether there is air in a lung by feeling it with your hands. Put the lungs in a bucket of water, and they will float.'

  'Then you opened the chest cavity, removed the lungs, and placed them in a bucket of water?'

  'Quite so.'

  'And because the lungs floated after you put them in water, you concluded that their former owner was dead before he was put in water. What date was this?'

  'The eleventh of May.'

  'Who was present beside yourself?'

  'Oh, a lot of people. You can't expect me to list them all.'

  'If there were too many for you to remember all, can you remember any?'

  'Well, the district attorney and his assistant, Abner Coates, there; and Westbrook; and John Costigan, and the sheriff, Hugh was there, I remember — I suppose there were fifty people there.'

  'You were holding a public postmortem?'

  'I didn't have a public one, no.'

  'Fifty people,' Harry Wurts said. 'Do you generally make a spectacle out of it when you post a body?'

  Annoyed, his dignity given an obvious cut, Doctor Hill said, 'I made no spectacle. I have no control over the morgue. I was doing the posting.'

  'You have no control over it. I see.' By a motion of his head Harry managed to suggest that such an admission destroyed any possible value the coroner's testimony might have. He said, showing patience, 'Well, Doctor, you testified to these supposed bullet wounds. You mentioned what you described as points of entrance. How do you distinguish a point of entrance from a point of exit, or can't you?'

  'I can distinguish them readily,' Doctor Hill said. 'It is very simple. At the point of entrance the skin will go inward with the bullet. At a point of exit, the skin breaks open, driven out.'

  Bunting said to Abner, 'We might get Mrs. Zollicoffer on. I don't think she'll take more than an hour.' He looked over toward Frederick Zollicoffer's widow. 'Don't know whether she's going to act up or not —' He snapped his attention back to Harry. 'What was that?' he said to Abner.

  Abner said, 'He asked whether the bullet wounds were of the same size and Hill said yes.'

  'Without the other bullet, I don't think he can get anywhere,' Bunting said, 'but we'll have to watch that.'

  Abner nodded. He was still looking at Mrs. Zollicoffer, surprised again to notice that she was not altogether unattractive. Not young, though she must have been younger than Frederick Zollicoffer, and not pretty in any ordinary meaning of the word, she was thin and graceful, her legs and arms narrow but round and flexible. Fre
derick Zollicoffer had been, in life, of much the same general appearance and build as his brother William, now sitting beside her, and it was impossible to see such physical disparity without wondering how on earth she came to marry a Zollicoffer.

  Bunting would have been glad to emphasize the query, for Frederick Zollicoffer was a weak point. The truth was, and Harry would certainly bring the truth out, that Frederick Zollicoffer had been a drug peddler, an addict himself, and a man with a criminal record of a particularly low and despicable sort. Though killing him was, of course, a crime, his death was no loss — even a gain — to society at large. Thinking along this line, a jury might do something silly, like deciding the defendants were not so bad after all.

  This was where Mrs. Zollicoffer could come in. To counter with law or logic was hard, for in adopting such a line of thought, a jury already had declared the intention to abandon both. Collective entities — a jury, a team, an army, a mob — often showed a collective apprehension and a collective way of reasoning that transcended the individual's reasoning and disregarded the individual's logic. The jury, not embarrassed by that need of one person arguing alone to explain and justify what he thought, could override any irrelevancy with its intuitive conviction that, irrelevant or not, the point was cogent. To this there could be no assuredly right answer; but answering that Frederick Zollicoffer's bad character did not extenuate his murder was assuredly wrong, beside the cogent point. Bunting had hoped, if the need arose, to answer with the piteous spectacle of Mrs. Zollicoffer, to let her appearance demand the punishment of the defendants, and by her appearance to suggest that, anyway, whatever Frederick Zollicoffer might have been, she was nothing like him, and was thus doubly to be pitied — for the pain caused her by his sudden death; for the pain caused her by his criminal life. That would about fill the bill, and even go Harry one better, since it not only answered irrelevancy with irrelevancy, but had the added valuable feature of a contradiction; that is, two chances, on more or less opposing grounds, to evoke another intuitive conviction, this time favouring the Commonwealth.

  Unfortunately Mrs. Zollicoffer had a mind of her own, and it was a poor one. She also had her own feelings. Bunting, annoyed, regarded her feelings with incredulity; but Abner, noticing her once or twice yesterday and to-day, was prepared to believe that her feelings fell in the limited class of things that might be incredible but were, even so, real. Mrs. Meade, the tipstaff sitting with her, had sat near and observed distressed women for years and could probably distinguish, as well as such things could be distinguished, degrees of genuineness in feeling. Mrs. Meade considered this distress the real thing and felt distressed too. Though, for everyone else, Frederick Zollicoffer was an impersonal object known as 'that body' with skin that a bullet pushed inward on entering and outward on leaving, he could not have been that for Mrs. Zollicoffer. She sat there trembling while on the stand Doctor Hill, bumbling on, said, 'I have testified that it went downward, the second bullet. I removed it from between the fifth and sixth ribs on the right side in a mid-axillary line.'

  'In your opinion,' said Harry Wurts casually, 'was the bullet of the same size as the one you found, the one that made the head wound?'

  Mrs. Zollicoffer flinched, and Doctor Hill said, 'Similar, I should say.' Bunting touched Abner with his elbow and said, 'Pay attention. I'll want you to ask him a few questions. I don't want that to stand.'

  Seeing them whisper, Harry Wurts smiled. He said to Doctor Hill, 'What bones would that bullet strike in passing through the body?'

  'It would not strike any. It did not pass through any. It passed posterior to the clavicle and anterior to the scapula.'

  'Now, just say that in English, if you will.'

  Abner glanced again at Mrs. Zollicoffer. She had taken out a handkerchief; unfortunately, a gesture also possible to those whose anguish was neither irrepressible nor even real. The show of real feeling was, of course, all right for Bunting's purpose; but thanks to that feeble mind of hers, Mrs. Zollicoffer might not get the benefit of it. On the stand Harry would certainly show that she was a liar, and so false in everything. She had told Bunting the absurd lie that she did not know what her husband's business was; and when you thought of all the trouble that wilful piece of stupidity was going to make, it was difficult to feel much sympathy for her.

  Clasping his shoulder, Harry Wurts said, 'I don't know whether I'm any different from that body, but when I feel my shoulder, I feel a bone wherever I feel. What I am trying to find out is how this bullet could pass through here and not strike any bone.'

  'I tried to explain to you, Mr. Wurts.'

  'You said a shot through the shoulder could not strike any bone?' Bunting, who was drawing a face on the pad before him, left it with one eye and said, 'Oh, no. He didn't say that.' Doctor Hill said, 'Mr. Wurts, the bullet entered the flesh and passed through the fleshy part of the lungs and lodged in the flesh again between the fifth and sixth ribs.'

  'That bullet did,' said Harry. 'That bullet, although it encountered nothing but flesh, lodged. The other bullet, the one you did not recover, was obliged to pass through the hard bony skull, the brain, and came out below the angle of the jaw.' He stood delicately poised, balanced on his toes. His voice had a sudden, cocky, assertive note, and Abner looked at him, astounded. He looked at Bunting, but Bunting was biting his lip; and, jolted, Abner had to admit his own slow-wittedness in only then grasping the bold manÅ“uvre. Harry said coolly, 'How do you try to account for one bullet having so much more force than the other? I suppose you admit it must have had?'

  The play on Doctor Hill's conceit of knowledge and touchiness about his dignity was perfect. Unable to help his witness, Bunting winced; and Doctor Hill said with asperity, 'I do not "try'' to account for it, Mr. Wurts. I account for it without difficulty. There is no reason to suppose that one bullet had more force than the other. The longer passage through the tissues of the body would add up to offer more resistance than the relatively short passage through the head. The skull is only relatively hard, Mr. Wurts. A bullet fired at it point blank, at close range, would be retarded very little.'

  Harry Wurts said, 'Do you mean to tell me that bullets of identically the same calibre, from identically the same gun, could behave so differently?'

  'I do, indeed,' said Doctor Hill.

  'Then in your opinion both bullets came from the same gun?'

  'No, Mr. Wurts, I did not say that. I —'

  'You said both could have come from the same gun.'

  'Why, yes. I see no reason why not —'

  'You see no reason why not. That is all.'

  Bunting said, 'Just a moment, Doctor.' To Abner he said, 'We'll have to show he doesn't know anything about it.'

  'Have trouble without crossing him,' Abner said. He saw Harry, back in his seat, looking at them with amusement.

  'Yes,' said Bunting. 'You're the goat. When Harry kicks, I'll cover you with the Judge as well as I can. It's better that way, because you couldn't cover me. See?'

  'Yes,' said Abner. 'Want me to barge right in?'

  'Might as well.'

  Abner got up and walked around to the witness stand. He paused a moment, wishing he could find a way to do it cleverly; like Harry Wurts, to make Doctor Hill out of his own self-importance, apparently of his own accord, declare now, with the same pompous insistence, that though one shot came from one gun (Bailey 's), the other probably came from another (presumably Basso's). However, if you tried being clever and failed, you were worse off for being caught at it than if you never tried. Abner said as disarmingly as he could, 'I believe that you said that the wounds made by these separate bullets were somewhat similar. Did you reach that conclusion from the diameter of the bullet holes?'

  'Diameter,' said Doctor Hill, 'yes.'

  'Did you judge just by eye?' Abner said, and caught himself up, waiting in apprehension. Bunting would see that it was a dumb question. You should know the answers when you questioned your own witness; and, for all Abner knew, Doctor
Hill had some scientific form of measurement which might show that they were not merely similar but exactly the same. To his relief, Doctor Hül said, 'Just by eye. But—'

  Abner cut in, speaking quietly, trying to offer, along with the question, a sort of encouragement or reassurance that Doctor Hill might take as a sign that he should assent, 'You are not, of course, an expert in bullet wounds, Doctor?'

  'Oh, now!' said Harry. He laughed out loud. 'I object! He can't cross-examine his own witness! I never heard of such a thing!'

  'Your Honour,' said Bunting, 'the Commonwealth simply is clearing up a line of questioning Mr. Wurts opened and then, having established a very misleading impression, tried to drop.'

  'He can't continue my cross-examination!' Harry said. 'What is your witness? Ignorant? Unwilling? Perjuring himself? I don't know any other grounds.'

  Bunting said, 'I think it is the province of the Court, and not of Mr. Wurts, to decide what questions may be put. We respectfully ask his Honour to rule.'

  'He may answer,' Judge Vredenburgh said. 'There is no prejudice to the defendants if the witness states whether or not he is an expert on gunshot wounds.'

  'I ask an exception,' said Harry Wurts.

  'Exception granted,' said Judge Vredenburgh. 'Proceed, Mr. Coates.'

  Abner said, 'Are you an expert in bullet wounds, Doctor Hill?'

  'I never said I was,' said Doctor Hill. He gave Abner an offended look.

  'Or in the calibre of bullets?'

  'I don't pretend to be, Mr. Coates.'

  'That's all, thank you.'

  'If you please!' said Harry Wurts, starting up. 'You have had experience in examining bullet wounds, have you not, Doctor?'

  I have examined them, yes.' Doctor Hill plainly viewed this deferential approach with suspicion. He felt that the Commonwealth was now against him, and Harry for him; and he had no idea what was going on. Resentful, he suspected that a plot to impair his dignity had been joined.

  'More than once?' said Harry Wurts.