By Advice of Counsel Part 3

Froelich perceived that he had probably been mistaken, and being relatively honest--and being also about to get his money--and not wishing to bear false witness, particularly if he might later be sued for false imprisonment, he decided to duck and pa.s.s the buck to Delany, who was definitely committed. He was shrewd enough, however, not to give his real reason to the policeman, but put it on the ground of being so confused that he couldn't remember. This left Delany responsible for everything.

"But you said that that was the feller!" argued the cop, who had gone to urge Froelich to a.s.sume the onus of the charge. "And now you want to leave me holdin' the bag!"

"Vell, you said yourself you seen him, didn't you?" replied the German.

"An' you svore to it. I didn't svear to noddings."

"Aw, you!" roared the enraged cop, and hastened to interview Mr. Asche.

Aping a broad humanitarianism he suggested to Asche that if Mrs.

Mathusek would pay for the window they could afford to let up on the boy. He did it so ingeniously that he got Asche to go round there, only to find that she had no money, all given to Simpkins. Gee, what a mix-up!

It is quite possible that even under these circ.u.mstances Delany might still have availed himself of what in law is called a _locus poenitentiae_ had it not been that the mix-up was rendered still more mixed by the surrept.i.tious appearance in the case of Mr. Michael McGurk, the father of the actual brick artist, who had learned that the cop was getting wabbly and was entertaining the preposterous possibility of withdrawing the charge against the innocent Mathusek, to the imminent danger of his own offspring. In no uncertain terms the saloon keeper intimated to the now embarra.s.sed guardian of the public peace that if he pulled anything like that he would have him thrown off the force, to say nothing of other and darker possibilities connected with the morgue.

All of which gave Delany decided pause.

Hogan, for his own reasons, had meanwhile reached an independent conclusion as to how he could circ.u.mvent Delany's contemplated treachery. If, he decided, the cop should go back on his identification of the criminal he foresaw Tony's discharge in the magistrate's court, and no more money. The only sure way, therefore, to prevent Tony's escape would be by not giving Delany the chance to change his testimony; and by waiving examination before the magistrate and consenting voluntarily to having his client held for the action of the grand jury, in which event Tony would be sent to the Tombs and there would be plenty of time for Simpkins to get an a.s.signment of Mrs. Mathusek's insurance money before the grand jury kicked out the case. This also had the additional advantage of preventing any funny business on the part of Judge Harrison.

Delany was still undecided what he was going to do when the case was called at two o'clock. It is conceivable that he might still have tried to rectify his error by telling something near the truth, in spite of Hogan, Asche and McGurk, but the opportunity was denied him.

At two o'clock Tony, a mere chip tossed aimlessly hither and yon by eddies and cross currents, the only person in this melodrama of motive whose interests were not being considered by anybody, was arraigned at the bar and, without being consulted in the matter, heard Mr. Hogan, the fat, kindly lawyer whom his mother had retained to defend him, tell the judge that they were going to waive examination and consent to be held for the action of the grand jury.

"You see how it is, judge," Hogan simpered. "You'd have no choice but to hold my client on the officer's testimony. The easiest way is to waive examination and let the grand jury throw the case out of the window!"

Delany heard this announcement with intense relief, for it let him out.

It would relieve him from the dangerous necessity of testifying before Judge Harrison and he could later spill the case before the grand jury when called before that august body. Moreover, he could tip off the district attorney in charge of the indictment bureau that the case was a lemon, and the latter would probably throw it out on his own motion. The D.A.'s office didn't want any more rotten cases to prosecute than it could help. It seemed his one best bet, the only way to get his feet out of the flypaper. What a mess for a few pieces of rotten beef!

"You understand what is being done, do you?" inquired the keen-faced judge sharply. "You understand this means that unless you give bail you will have to stay in jail until the grand jury dismisses the case or finds an indictment against you?"

Underneath the cornice of the judge's dais Hogan patted his arm, and Tony, glancing for encouragement at the big friendly face above him, whispered "Yes."

So Tony went to the Tombs and was lodged in a cell next door to Soko the Monk, who had nearly beaten a Chinaman to death with a pair of bra.s.s knuckles, from whom he learned much that was exciting if not edifying.

Now, as Delany was wont to say for years thereafter, that d.a.m.n Mathusek case just went bad on him. He had believed that in the comparative secrecy of the inquisitorial chamber he could easily pretend that he had originally made an honest mistake and was no longer positive of the defendant's ident.i.ty, in which case when the grand jury threw out the case n.o.body would ever know the reason and no chickens would come home to roost on him.

But when the cop visited the office of Deputy a.s.sistant District Attorney Caput Magnus the next morning, to inform him that this here window-breaking case was a Messina, he found Mr. Nathan Asche already solidly there present, engaged in advising Mr. Magnus most emphatically to the exact contrary. Indeed the attorney was rhetorical in his insistence that this destruction of the property of law-abiding taxpayers must stop.

Mr. Asche was not a party to be trifled with. He was a rectangular person whom nothing could budge, and his very rectangularity bespoke his stubborn rect.i.tude. His shoulders were ma.s.sive and square, his chin and mouth were square, his burnsides were square cut, and he had a square head and wore a square-topped derby. He looked like the family portrait of Uncle Amos Hardscrabble. When he sat down he remained until he had said his say. It was a misfortunate meeting for Delany, for Asche nailed him upon the spot and made him repeat to Caput Magnus the story of how he had seen Tony throw the brick and then, for some fool reason, not being satisfied to let it go at that, he insisted on calling in a stenographer and having Delany swear to the yarn in affidavit form! This entirely spoiled any chance the policeman might otherwise have had of changing his testimony. He now had no choice but to go on and swear the case through before the grand jury--which he did.

Even so, that distinguished body of twenty-three representative citizens was not disposed to take the matter very seriously. Having heard what Delany had to say--and he made it good and strong under the circ.u.mstances--several of them remarked disgustedly that they did not understand why the district attorney saw fit to waste their valuable time with trivial cases of that sort. Boys would play ball and boys would throw b.a.l.l.s round; if not b.a.l.l.s, then stones. They were about to dismiss by an almost unanimous vote, when the case went bad again. The foreman, a distinguished person in braided broadcloth, rose and announced that he was very much interested to learn their views upon this subject as he was the president of a casualty company, and he wished them to understand that thousands--if not hundreds of thousands--of dollars' worth of plate-gla.s.s windows were wantonly broken by young toughs, every year, for which his and other insurance companies had to recoup the owners. In fact, he alleged heatedly, window breaking was a sign of peculiar viciousness. Incipient criminals usually started their infamous careers that way; you could read that in any book on penology. An example ought to be made. He'd bet this feller who threw the brick was a gangster.

So his twenty-two fellow grand jurymen politely permitted him to recall Officer Delany and ask him: "Say, officer, isn't it a fact--just tell us frankly now--if this feller Mathusek isn't a gangster?"

"Sure, he's a gangster. He was blowin' about it to me after I arrested him," swore Delany without hesitation.

The foreman swept the circle with a triumphant eye.

"What'd I tell you?" he demanded. "All in favor of indicting said Tony Mathusek for malicious destruction of property signify in the usual manner. Cont'riminded? It's a vote. Ring the bell, Simmons, and bring on the next case."

So Tony was indicted by the People of the State of New York for a felony, and a learned judge of the General Sessions set his bail at fifteen hundred dollars; and Hogan had his victim where he wanted him and where he could keep him until he had bled his mother white of all she had or might ever hope to have in this world.

Everybody was satisfied--Hogan, Simpkins, Asche, McGurk, even Delany, because the fleas upon his back were satisfied and he was planning ultimately to get rid of the whole d.a.m.n tangle by having the indictment quietly dismissed when n.o.body was looking, by his friend O'Brien, to whom the case had been sent for trial. And everything being as it should be, and Tony being locked safely up in a cell, Mr. Joey Simpkins set himself to the task of extorting three hundred and fifty dollars more from Mrs. Mathusek upon the plea that the great Mr. Hogan could not possibly conduct the case before a jury for less.

Now the relations of Mr. a.s.sistant District Attorney O'Brien and the Hon. Raphael B. Hogan were distinctly friendly. At any rate, whenever Mr. Hogan asked for an adjournment in Mr. O'Brien's court he usually got it without conspicuous difficulty, and that is what occurred on the five several occasions that the case of The People versus Antonio Mathusek came up on the trial calendar during the month following Tony's incarceration, on each of which Mr. Hogan with unctuous suavity rose and humbly requested that the case be put over at his client's earnest request in order that counsel might have adequate time in which to subpoena witnesses and prepare for a defense.

And each day Simpkins, who now a.s.sumed a threatening and fearsome demeanor toward Mrs. Mathusek, visited the heartsick woman in her flat and told her that Tony could and would rot in the Tombs until such time as she procured three hundred and fifty dollars. The first week she a.s.signed her life-insurance money; the second she p.a.w.ned the furniture; until at last she owed Hogan only sixty-five dollars. At intervals Hogan told Tony that he was trying to force the district attorney to try the case, but that the latter was insisting on delay.

In point of fact, O'Brien had never looked at the papers, much less made any effort to prepare the case; if he had he would have found that there was no case at all. And Delany's mind became at peace because he perceived that at the proper psychological moment he could go to O'Brien and whisper: "Say, Mr. O'Brien, that Mathusek case. It's a turn-out!

Better recommend it for dismissal," and O'Brien would do so for the simple reason that he never did any more work than he was actually compelled to do.

But as chance would have it, three times out of the five, Mr. Ephraim Tutt happened to be in court when Mr. Hogan rose and made his request for an adjournment; and he remembered it because the offense charged was such an odd one--breaking a window.

Delany's simple plan was again defeated by Nemesis, who pursued him in the shape of the rectangular Mr. Asche, and who shouldered himself into O'Brien's office during the fifth week of Tony's imprisonment and wanted to know why in h.e.l.l he didn't try that Mathusek case and get rid of it.

The a.s.sistant district attorney had just been called down by his official boss and being still sore was glad of a chance to take it out on someone else.

"D'you think I've nothin' better to do than try your d.a.m.ned old window-busting cases?" he sneered. "Who ever had the idea of indicting a boy for that sort of thing, anyhow?"

"That is no way to talk," answered Mr. Asche with firmness. "You're paid to prosecute whatever cases are sent to you. This is one of 'em. There's been too much delay. Our president will be annoyed."

"Oh, he will, will he?" retorted O'Brien, nevertheless, coming to the instant decision that he had best find some other excuse than mere disinclination. "If he gets too shirty I'll tell him the case came in here without any preparation and being in the nature of a private prosecution we've been waiting for you to earn your fee. How'll you like that, eh?"

Mr. Asche became discolored.

"H'm!" he replied softly. "So that is it, is it? You won't have that excuse very long, even if you could get away with it now. I'll have a trial brief and affidavits from all the witnesses ready for you in forty-eight hours."

"All right, old top!" nodded O'Brien carelessly. "We always strive to please!"

So Mr. Asche got busy, while the very same day Mr. Hogan asked for and obtained another adjournment.

Some people resemble animals; others have a geometrical aspect. In each cla.s.s the similarity tends to indicate character. The fox-faced man is apt to be sly, the triangular man is likely to be a lump. So Mr. Asche, being rectilinear, was on the square; just as Mr. Hogan, being soft and round, was slippery and hard to hold. Three days pa.s.sed, during which Mrs. Mathusek grew haggard and desperate. She was saving at the rate of two dollars a day, and at that rate she would be able to buy Tony a trial in five weeks more. She had exhausted her possibilities as a borrower. The indictment slept in O'Brien's tin file. n.o.body but Tony, his mother and Hogan remembered that there was any such case, except Mr.

Asche, who one afternoon appeared unexpectedly in the offices of Tutt & Tutt, the senior partner of which celebrated law firm happened to be advisory counsel to the Tornado Casualty Company.

"I just want you to look at these papers, Mr. Tutt," Mr. Asche said, and his jaw looked squarer than ever.

Mr. Tutt was reclining as usual in his swivel chair, his feet crossed upon the top of his ancient mahogany desk.

"Take a stog!" he remarked without getting up, and indicating with the toe of one Congress-booted foot the box which lay open adjacent to the Code of Criminal Procedure. "What's your misery?"

"h.e.l.l's at work!" returned Mr. Asche, solemnly handing over a sheaf of affidavits. "I never smoke."

Mr. Tutt somewhat reluctantly altered his position from the horizontal to the vertical and reached for a fresh stogy. Then his eye caught the name of Raphael B. Hogan.

"What the devil is this?" he cried.

"It's the devil himself!" answered Mr. Asche with sudden vehemence.

"Tutt, Tutt! Come in here!" shouted the head of the firm. "Mine enemy hath been delivered into mine hands!"

"Hey? What?" inquired Tutt, popping across the threshold. "Who--I mean--"