By Advice of Counsel
which is supposed to try only felony cases, but I assume my old friend
Tutt made a motion to transfer the case from the Special to the General
Sessions on the theory that he would stand more chance with a jury than
three--er--hardened judges. Well, maybe he will--I don't know! I gather
from the papers that Mr. Lowry here, after holding himself out to be a
properly licensed veterinary, treated a horse belonging to the
complainant. It is not a very serious offense, and you and I have no
great interest in the case, but of course the public has got to be
protected from charlatans, and the only way to do it is to brand as
guilty those who pretend they are duly licensed to practise medicine
when they are not. If you had a sick baby, Mr. Foreman, and you saw a
sign 'A.S. Smith, M.D., Children's Specialist,' you would want to be
sure you were not going to hire a plumber, eh? You see! That's all there
is to this case!"
"All there is to this case!" murmured Mr. Tutt audibly, raising his eyes
ceilingward.
"Step up here, Mr. Brown."
Mr. Brown, the supposed Doctor Simon whose horse Danny had attended,
seated himself complacently in the witness chair and bowed to the jury
in a professional manner. He had, he told them, been a detective
employed by the state board of health for over sixteen years. It was his
duty to go round and arrest people who pretended to be licensed
practitioners of medicine and assumed to doctor other people and
animals. There were a lot of 'em, too; the jury would be surprised--
Mr. Tutt objected to their surprise and it was stricken out by order of
the court.
"I'll strike out 'and there are a lot of 'em, too,' if you say so, Mr.
Tutt," offered the court, smiling, but Mr. Tutt shook his head.
"No; let it stand!" said he significantly. "Let it stand!"
"Well, anyway," continued Mr. Brown, "this here defendant Lowry, as he
calls himself, is well known--"
Objected to and struck out.
"Well, this here defendant makes a practise--"
"Strike it out! What did he do?" snapped the octogenarian baboon on the
bench.
"I'm tellin' you, judge," protested Brown vigorously. "This here
defendant--"
"You've said that three times!" retorted the baboon. "Get along, can't
you? What did he do?"
"He treated my horse for spavin here in New York at 500 West 24th Street
at my request on the twentieth of last March and I paid him five
dollars. He said he was a licensed veterinary and he gave me his card.
Here it is."
"Well, why didn't you say so before?" remarked the judge more amiably.
"Let me see the card. All right! Anything more, Mr. Hingman?"
But Mr. Hingman had long before this subsided into his chair and was
emitting sounds like those from a saxophone.
"That is plain, simple testimony, Mr. Tutt," remarked the judge. "Go
ahead and cross-examine."
Ephraim Tutt slowly unjointed himself, the quintessence of affability,
though Mr. Brown clearly held him under suspicion.
"How long have you earned your living, my dear sir, by going round
arresting people?"
"Sixteen years."
"Under what name--your own?"
"I use any name I feel like."
Mr. Tutt nodded appreciatively.
"Let us see, then. You go about pretending to be somebody you are not?"
"Put it that way, if you choose."
"And pretending to be what you are not?"
Mr. Brown eyed Mr. Tutt savagely. "What do you mean by that?"
"Didn't you tell this old gentleman beside me that you were a doctor of
medicine but not a doctor of veterinary medicine--and beg him to treat
your horse for that reason?"
"Sure I did. Certainly."
"Well, are you a licensed medical practitioner?"
"Look here! What's that got to do with it?" snarled Mr. Brown, looking
about for aid from the sleeping Hingman.
"The question is a proper one. Answer it," directed the judge.
"No, I'm not a licensed doctor."
"Well, didn't you treat Mr. Lowry?"
The jury by this time had caught the drift of the examination and were
listening with intent appreciation.
Mr. Brown leaned forward, a sickening smile of sneering superiority
curling about his yellow molars.
"Ah!" he cried. "That's where I have you, sir! I only pretended to treat
him. I didn't really. I only scribbled something on a piece of paper."
"You knew he couldn't read, of course?"
"Sure."
Mr. Tutt turned to the uplifted faces of the twelve. "So," he retorted,
pursing his wrinkled lips and placing his fingers together in that
attitude of piety which we frequently observe upon effigies of defunct
ecclesiastics--"so you did the very thing for which you threw this old
man at my side into jail--and for which he is now on trial! You lied to
him about being a doctor! You deceived him about giving him the medical
treatment he so much needed! And you arrested him after he had worked
for hours to relieve the sufferings of a sick animal. By the way, it was
a sick animal, wasn't it?"
"The sickest I could find," replied Brown airily.
"And he did relieve its sufferings, did he not?" continued Mr. Tutt
gently.
"Very likely. I wasn't particularly interested in that end of it."
Mr. Tutt's meager frame seemed suddenly to expand until he hung over the
witness chair like the genii who mushroomed so unexpectedly out of the
fisherman's bottle in the Arabian Nights Entertainments.
"You were not interested in ministering to a poor horse, so sick it
could hardly stand! You were only interested in imprisoning and
depriving of his only form of livelihood this old man whose heart was
not hardened like yours! May I ask at whose instance you went and lied
to him?"
"Mr. Tutt! Mr. Tutt!" interjected the octogenarian angel. "Your
examination is exceeding the bounds of judicial propriety."
Ephraim Tutt bowed low.
"A thousand pardons, Your Honor! My emotions swept me away! I most
humbly apologize! But when this witness so unblushingly confesses how he
played the scoundrel's part, aged case hardened practitioner as I am, my
heart cries out against such infamous treachery--"
Bang! went the judge's gavel.
"You are only making it worse!" declared the court severely. "Proceed
with your examination."
"Very well, Your Honor!" replied Mr. Tutt, his lips trembling with
well-simulated indignation. "Now, sir, who instigated this miserable
deception--I beg Your Honor's pardon! Who put you up to this game--I
mean, this course of conduct?"
"Nobody," replied Brown in a surly tone.
"Did you ever hear of the United Association 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 competition 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 ass.
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