By Advice of Counsel
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 brass
knuckles, from whom he learned much that was exciting if not edifying.
Now, as Delany was wont to say for years thereafter, that damn 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originally made an honest mistake and was no longer positive of the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 identity, in which case when the grand jury threw out the
case nobody would ever know the reason and no chickens would come home
to roost on him.
But when the cop visited the office of Deputy Assistant 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 rectitude. His shoulders were massive 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
circumstances--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 balls round; if not balls, 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-glass 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 damn tangle by having the indictment
quietly dismissed when nobody 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. Assistant 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 assumed 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
assigned her life-insurance money; the second she pawned 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 hell he didn't try that Mathusek case and get rid of it.
The assistant 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 damned 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
class 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 passed, 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. Nobody 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?"
"Hell'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.