By Advice of Counsel
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
assistant 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 ass 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
passed 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 assumed 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 eyeglasses. 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
passed 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 petit 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 passage 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 damn 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," asserted 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.
"I don't know who the fellers are that voted for acquittal!" suddenly
announced a juror with a red face. "But I know this Brown personally,
and he's all right. You can rely on him absolutely. He goes to the same
place as me in the summer--Cottage Point. If any of you gentlemen want a
good quiet place--"
"Any mosquitoes?" inquired an unknown irreverently.
"No more'n anywheres else near New York."
They took another ballot and found that the juryman who knew Brown had
brought over two others to conviction, so that the jury was now evenly
divided, Bently voting irresponsibly for acquittal.
"Look here!" proposed the man in black. "Let's argue this out. Suppose I
put the various propositions and you vote on 'em each separately."
"Shoot ahead!" adjured somebody.
"Now, first, all who think this defendant claimed to be a veterinary say
aye."
"Wait a minute!" interposed the tall man, who was still standing by the
window. "Maybe I am a nut. But I wish someone would explain to me which
is the defender. I thought Mr. Tutt was the defender."
"Oh, my Lord!" groaned a flabby salesman in a pink tie.
"Defend-ant--a-n-t--remember your ant! He's the man we're trying! The
other one is the complainant!"
"The only one that had any complaint was the horse", protested the tall
man. "But I understand now--we're tryin' the defendant. I've never
served on a jury before. Now, what's the question?"
"Did the defendant--ant--claim to be a licensed veterinary--when he
wasn't?"
"Now wait a second," objected the tall man again. "I want to get this
straight. Is it the point that if this old man pretended he was a horse
doctor when he wasn't he has to go to jail?"
"Sure."
"But the other man pretended he was a doctor."
"But he was trying to trick the defendant."
"But the first feller wasn't a doctor any more than the other feller.
Why not convict the first feller?"
There was a chorus of groans from about the table.
"You ought not to be here at all!" remarked the salesman acidly. "You're
simple-minded, you are! You keep still now and vote with the majority,