By Advice of Counsel Part 37

"n.o.body," replied Brown in a surly tone.

"Did you ever hear of the United a.s.sociation of Veterinaries of the Greater City of New York--sometimes referred to as The Horse Leeches'

Union?" asked Mr. Tutt insinuatingly.

Mr. Brown hesitated.

"I've heard of some such organization," he admitted. "But I never heard it was called a Horse Leeches' Union."

"Didn't one of its officers come to you and say that unless something was done to reduce compet.i.tion they'd have to go out of business--owing to the decrease in horses in New York?"

"I don't remember," answered Brown slowly. "One of 'em may have said something of the sort to me. But that's my business!"

"Yes!" roared Mr. Tutt suddenly. "It's your business to pretend you're a doctor when you're not, and you walk the streets a free man; and you want to send my client to Sing Sing for the same offense! That is all! I am done with you! Get down off the stand! Do not let me detain you from the practise of your unlicensed profession!"

"Mr. Tutt!" again admonished His Honor as the lawyer threw himself angrily into his chair. "This really won't do at all!"

"I beg Your Honor's pardon--a thousand times!" said Mr. Tutt in tones so humble and sincere that he almost made the angel-faced baboon believe him.

I should like to go on and describe the whole course of Danny Lowry's trial item by item, witness by witness, and tell what Mr. Tutt did to each. But I can't; there isn't room. I can only dwell upon the tactics of Mr. Tutt long enough to state that at the conclusion of the case against Daniel Lowry, wherein it was clearly, definitely and convincingly established that Danny had been practising veterinary medicine for a long time without the faintest legal right, the lawyer rose and declared emphatically to the jury that his client was absolutely, totally and unquestionably innocent, as they would see by giving proper attention to the evidence he would produce--so that he would not take up any more of their valuable time in talk.

And having made this opening statement with all the earnestness and solemnity of which he was capable Mr. Tutt called to prove the defendant's good reputation, first, Father Plunkett, the priest to whom Danny made his monthly confession and who told the jury that he knew no better man in all his parish; second, Mulqueen, who described Danny's love of horses, his knowledge of them, his mysterious intuition concerning their hidden ailments, which, being as they could not speak, it was given to few to know, and how night after night he would sit up with a sick or dying animal to relieve its pain without thought of himself or of any earthly reward; then, man after man and woman after woman from the neighborhood of West Twenty-third Street who gave Danny the best of characters, including policemen, firemen, delicatessens, hotel keepers, and Salvatore, the proprietor of the night lunch frequented by Mr. Tutt.

And last of all little Katie Lowry. It was she who found the crack in Bently's moral armor. For Eleanor his wife was of Irish ancestry and of the colleen type, like Katie; and Bently had always played up to her Irish side when courting her as a humorous short cut to a quasi familiarity, for you may call a girl "acushla" and "Ellin darlint" when otherwise you are fully aware, but for the Irish of it, she would have to be referred to as Miss Dodworth. And this wisp of a girl with her big black-fringed gray eyes peering up and out over her gray knitted shawl, but for the holes in her white stockings and the fact that the alabaster of her neck was a shade off color--faith, an' it might have been Eleanor hersilf! It is obvious that any juryman who allows his mind to be influenced by the mere fact that one of the witnesses for the defense is a pretty woman--even if she recalls to him his wife or sweet-heart--is a poor weakling, a silly a.s.s.

Otherwise all a crook need do would be to hire a half dozen of Ziegfeld's midnight beauties to testify for him by day; and the slender darlings could work in double shifts and be whisked in auto busses from roof garden to court room. Bently was no weakling, but Katie--perhaps because it was the moment of apple blossoms and dogwood and the anniversary of his wedding day--Katie got him. Kathleen Mavourneen, and all! No man could have brought up a fatherless and motherless girl like that and keep her so simple, frank and innocent unless there was something fine about him. You see, highbrows and lowbrows are all alike below the collar bone.

And here's the catch in it. Bently had told Eleanor that very morning that none of the rogues would get by him, and he had meant it. None of them ever had--in all his years of jury service. Time and again he had been the one stubborn man to hang out all night for a verdict of guilty against eleven outraged and indignant fellow talesmen who wanted to acquit. But quite unconsciously he found himself saying that this old fellow at the bar wasn't a rogue at all. If he was a criminal he was so at most only in a Pickwickian sense. All the previous cases in which he had sat had been for murder or arson, robbery or theft, burglary, blackmail or some other outrageous offense against common morals or decency. But here was a man who had never done anything but good in his life, and was at the bar of justice charged with crime merely because some cold-blooded mercenaries thought he was interfering with their business! Bently was in a recalcitrant and indignant frame of mind against the prosecution long before the defense began. The whole proceeding seemed to him an outrageous farce. That wasn't what they were there for at all! So swiftly does the acid of sympathy corrode and weaken the stoutest conscience, the most logical of minds!

Mr. Tutt did not put Danny on the stand--why should he?--and the octogenarian judge declared the case closed on both sides. Then everybody made a speech, in which he told the jury to disregard everything everybody else said.

Mr. Tutt spoke first. He thanked the gaping jury for their attention and courtesy and kindness and intelligence and for taking the trouble to listen to him. He told them what a wise and upright judge the old baboon on the bench was; and what a sterling, honest, kindly chap the fat a.s.sistant district attorney really was. They were the highest type of public officers--but paid--he accentuated the "paid" very slightly--to do their duty as they interpreted it. Now, Mr. Hingman would have to claim that Danny Lowry was a criminal; whereas, thank heaven! they all of them--every man of them--knew he was nothing of the kind!

Criminal--that old man? Mr. Tutt raised his eyes and his arms to heaven in protest. Why, one look at him would create a reasonable doubt! But the case against him failed absolutely for the following reasons:

Daniel Lowry had not practised veterinary medicine without a license in taking care of Brown's sick horse, because he had not claimed to be a veterinary; he had not been paid for his services; and because all he had done was to help a suffering animal, as any man who called himself a Christian and had a heart would have done, and as it was his duty to do.

Who "shall have an a.s.s or an ox fallen into a pit"? and so on. It was in Holy Writ! The highest law!

There was no evidence against Danny at all, because Brown was an accomplice and his testimony was not corroborated; at any rate he was a procurer and instigator of crime, an _agent provocateur_, a despicable liar, hypocrite and violator of the very law he was paid to uphold; and as he had held himself out as a physician to Danny Lowry everything that pa.s.sed between them was privileged as a confidential communication and must be disregarded as if it had never been said.

Daniel Lowry was a man of the highest reputation, of such character that he never had been guilty of an unkind or selfish act in his entire life, much less commit crime; which alone, taken by itself, was quite enough to interject and raise a reasonable doubt--upon which they must acquit.

Then Tom Hingman got up and grimaced and said he had known Mr. Tutt all his professional life and he was a peach, but they mustn't believe what he said or let him put anythin' over on 'em, for he was pretty slick even if he was a fine old feller. Now the plain fact was, as they all knew perfectly well, that this old boy had been caught with the goods.

It might be tough luck, but the law was the law and they were all there to enforce it--much as they hated to do so--and there was nothing to it but to convict and let the judge deal with the defendant with that mercy and leniency and forbearance for which he was so justly famous. He panted a few times and sat down.

Then the judge took his crack. He told the jury, in so many words, to pay no attention to either the A.D.A. or to Mr. Tutt, and to listen only to him, because he was the whole thing. The question was: Had the defendant a.s.sumed to give medical treatment to Brown's horse, for any kind of valuable consideration? In determining this they should consider all the evidence, including the fact that the prisoner had claimed to be a veterinary, had been paid for treating Brown's horse as such, had pleaded guilty in the police court, and that none of the alleged facts upon which the charge was based had been denied before them in present trial.

As he said this the pink-and-white baboon looked at them steadily and significantly for several seconds over his eyegla.s.ses. They should consider the business card which the defendant had given to the complaining witness and in which he held himself out as a veterinary.

The testimony of the complainant stood uncontradicted. The complainant was not an accomplice and his testimony did not have to be corroborated.

A decoy wasn't an accomplice. That was the law. Neither was what had pa.s.sed between the complainant and defendant privileged as a confidential communication, because the complainant was not a physician.

That was all there was to that!

They should ask themselves what in fact the defendant had done if not practise veterinary medicine without a license? It was not controverted but that he had said he was a veterinary, administered medicine to a sick horse, offered to compound payment for medical treatment for himself, finally taken five dollars, and admitted his guilt before the magistrate. If they had any reasonable doubt--and such a doubt might of course be raised by evidence of previous good character--they would of course give it to the defendant and acquit him, but such a doubt must be no mere whim, guess or conjecture that the defendant might not after all be guilty even if the evidence seemed so to demonstrate; it must be a substantial doubt based on the evidence and such a one as would influence them in the important matters of their own daily, domestic and business lives. That was all there was to it! Let them take the case and decide it! It should not take 'em very long. The question of how the defendant should be punished, if at all, did not concern them. He would take care of that. They might safely leave it to him! He bowed and turned to his papers. The jury gathered up their coats and straggled after Cap Phelan out of the court room.

"Y'd be all right, counselor," remarked the second court officer, suspending momentarily the delights of mastication, "if 'twasn't fer that son of a gun on the back row, Gibson! He's a bad one! I've known him for years! He'd convict his own mother of pet.i.t larceny!"

"So? So?" murmured Mr. Tutt, producing a leather case the size of a doctor's instrument bag from his inside pocket and removing a couple of stogies therefrom. "Well, it's too late now to do anything about it. I'm going out to stretch my legs and have a smoke."

Mr. Tutt loitered into the corridor, stepped unostentatiously behind a pillar, slipped into the adjoining court room--which happened to be empty--and thence back into the pa.s.sage upon which the jury rooms opened. He found Cap Phelan standing before one of these with a finger to his lips.

"Pst! They're at it a-ready!" whispered Phelan as Mr. Tutt slipped him a stogy.

The transom above was open and through it drifted out a faint blue cloud. A great hubbub was going on inside. Suddenly above it a harsh voice rang out: "That ain't a reasonable doubt! I tell you, that ain't a reasonable doubt! Aw, you give me a pain, you do!"

"I've got 'em!" grinned Mr. Tutt contentedly. "Phelan, bring me a chair!"

Now right here is where this story begins--only here.

"Vell, gen'l'muns," said the foreman, who was a glove merchant and looked like Sam Bernard, as they took their seats round the battered oak table. "Vot you say? Shall we disguss or take a vote?"

"Let's take a smoke!" amended a real-estate broker. "No use goin' back right off and getting stuck onto another d.a.m.n case! Where's that cuspidor?"

"Speakin' of veterinaries," chuckled a man with three rolls of fat on his neck, "did y'ever hear the story of the negro and the mule with the cough?"

None of them apparently ever had, so the stout brother told all about how--ha, ha!--the mule coughed first.

"I remember that story now," remarked one of the jury reminiscently while the fat man glared at him. "If I had my way all these veterinaries would be in jail! They're a dangerous lot. I had a second cousin once who'd paid a hundred dollars--a hundred dollars!--for a horse and it got the colic. So he called in a veterinary and it died."

"Well, the vet didn't kill it, did he?" inquired the fat man scornfully.

"My cousin always claimed he did!" replied the other solemnly. "There was some mistake about what he gave the horse--wood alcohol or something--I forget what it was. Anyhow, I think they're all a dangerous lot. They all ought to be locked up. I move to convict!"

"But neither of these fellers is a veterinary!" retorted a sad-looking gentleman in black. "The charge is that one of 'em pretended to be--but wasn't. So if he wasn't how could you convict him of being a veterinary?"

"Well, if he had been I'd have convicted him all right," a.s.serted the first. "They're dangerous--like all these clairvoyants and soothsayers."

"Will somebody tell me?" requested a tall man who had been looking intently out of the window, "whether a veterinary is the same thing as a veterinarian? I always supposed a veterinarian was a sort of religion, like a Unitarian. Veteran means old--I thought it was some old form of religion; or a feller who didn't believe in eatin' meat."

"Lead that nut out!" shouted somebody. "Let's get busy. The question is: Did this old guy pretend he was a horse doctor when he wasn't? I say he did."

"Let's take a vote," suggested Bently.

"Vell, let's understand vat we're doin'," admonished the foreman. "Do you gen'l'muns all understand that we're tryin' to convict this feller for doctoring a horse without a prescription?"

"You mean a license, don't you?" inquired Bently.

"Sure--a license. All right! Let's get a vote."

The first ballot resulted in seven for acquittal, four for conviction, and one blank--Bently's.