In fact, Mr. Walsh had already entered upon friendly relations with Mr. O'Brien, and as the latter helped him arrange a place for his hat and coat the foreman cast a look tinged with malevolence at the defendant and his counsel, as if to say "You can't fool me. I know the kind of tricks you fellows are all up to."

O'Brien could not repress a grin. The clerk drew forth another name.

"Mr. Tompkins—will you take the chair?"

Swiftly the jury was impaneled. O'Brien challenged everybody who did not suit his fancy, while Tutt & Tutt sat helpless.

Ten minutes and the clerk called the roll, beginning with Mr. Walsh, and they were solemnly sworn a true verdict to find, and settled themselves to the task.

The mills of the gods had begun to grind, and Angelo was being dragged to his fate as inexorably and as surely, with about as much chance of escape, as a log that is being drawn slowly toward a buzz saw.

"You may open the case, Mr. O'Brien," announced Judge Babson, leaning back and wiping his glasses.

Then surreptitiously he began to read his mail as his fellow conspirator undertook to tell the jury what it was all about. One by one the witnesses were called—the coroner's physician, the policeman who had arrested Angelo outside the barber shop with the smoking pistol in his hand, the assistant barber who had seen the shooting, the customer who was being shaved. Each drove a spike into poor Angelo's legal coffin. Mr. Tutt could not shake them. This evidence was plain. He had come into the shop, accused Crocedoro of making his wife's life unbearable and—shot him.

Yet Mr. Tutt did not lose any of his equanimity. With the tips of his long fingers held lightly together in front of him, and swaying slightly backward and forward upon the balls of his feet, he smiled benignly down upon the customer and the barber's assistant as if these witnesses were merely unfortunate in not being able to disclose to the jury all the facts. His manner indicated that a mysterious and untold tragedy lay behind what they had heard, a tragedy pregnant with primordial vital passions, involving the most sacred of human relationships, which when known would rouse the spirit of chivalry of the entire panel.

On cross-examination the barber testified that Angelo had said: "You maka small of my wife long enough!"

"Ah!" murmured Mr. Tutt, waving an arm in the direction of Rosalina. Did the witness recognize the defendant's young wife? The jury showed interest and examined the sobbing Rosalina with approval. Yes, the witness recognized her. Did the witness know to what incident or incidents the defendant had referred by his remark—what the deceased Crocedoro had done to Rosalina—if anything? No, the witness did not. Mr. Tutt looked significantly at the row of faces in the jury box.

Then leaning forward he asked significantly: "Did you see Crocedoro threaten the defendant with his razor?"

"I object!" shouted O'Brien, springing to his feet. "The question is improper. There is no suggestion that Crocedoro did anything. The defendant can testify to that if he wants to!"

"Oh, let him answer!" drawled the judge.

"No—" began the witness.

"Ah!" cried Mr. Tutt. "You did not see Crocedoro threaten the defendant with his razor! That will do!"

But forewarned by this trifling experience, Mr. O'Brien induced the customer, the next witness, to swear that Crocedoro had not in fact made any move whatever with his razor toward Angelo, who had deliberately raised his pistol and shot him.

Mr. Tutt rose to the cross-examination with the same urbanity as before. Where was the witness standing? The witness said he wasn't standing. Well, where was he sitting, then? In the chair.

"Ah!" exclaimed Mr. Tutt triumphantly. "Then you had your back to the shooting!"

In a moment O'Brien had the witness practically rescued by the explanation that he had seen the whole thing in the glass in front of him. The firm of Tutt & Tutt uttered in chorus a groan of outraged incredulity. Several jurymen were seen to wrinkle their foreheads in meditation. Mr. Tutt had sown a tiny—infinitesimally tiny, to be sure—seed of doubt, not as to the killing at all but as to the complete veracity of the witness.

And then O'Brien made his coup.

"Rosalina Serafino—take the witness stand!" he ordered.

He would get from her own lips the admission that she bought the pistol and gave it to Angelo!

But with an outburst of indignation that would have done credit to the elder Booth Mr. Tutt was immediately on his feet protesting against the outrage, the barbarity, the heartlessness, the illegality of making a wife testify against her husband! His eyes flashed, his disordered locks waved in picturesque synchronization with his impassioned gestures Rosalina, her beautiful golden cross rising and falling hysterically upon her bosom, took her seat in the witness chair like a frightened, furtive creature of the woods, gazed for one brief instant upon the twelve men in the jury box with those great black eyes of hers, and then with burning cheeks buried her face in her handkerchief.

"I protest against this piece of cruelty!" cried Mr. Tutt in a voice vibrating with indignation. "This is worthy of the Inquisition. Will not even the cross upon her breast protect her from being compelled to reveal those secrets that are sacred to wife and motherhood? Can the law thus indirectly tear the seal of confidence from the Confessional? Mr. O'Brien, you go too far! There are some things that even you—brilliant as you are—may not trifle with."

A juryman nodded. The eleven others, being more intelligent, failed to understand what he was talking about.

"Mr. Tutt's objection is sound—if he wishes to press it," remarked the judge satirically. "You may step down, madam. The law will not compel a wife to testify against her husband. Have you any more witnesses, Mister District Attorney?"

"The People rest," said Mr. O'Brien. "The case is with the defense."

Mr. Tutt rose with solemnity.

"The court will, I suppose, grant me a moment or two to confer with my client?" he inquired. Babson bowed and the jury saw the lawyer lean across the defendant and engage his partner in what seemed to be a weighty deliberation.

"I killa him! I say so!" muttered Angelo feebly to Mr. Tutt.

"Shut up, you fool!" hissed Tutt, grabbing him by the leg. "Keep still or I'll wring your neck."

"If I could reach that old crook up on the bench I would twist his nose," remarked Mr. Tutt to Tutt with an air of consulting him about the Year Books. "And as for that criminal O'Brien, I'll get him yet!"

With great dignity Mr. Tutt then rose and again addressed the court:

"We have decided under all the circumstances of this most extraordinary case, Your Honor, not to put in any defense. I shall not call the defendant—"

"I killa him—" began Angelo, breaking loose from Tutt and struggling to his feet. It was a horrible movement. But Tutt clapped his hand over Angelo's mouth and forced him back into his seat.

"The defense rests," said Mr. Tutt, ignoring the interruption. "So far as we are concerned the case is closed."

"Both sides rest!" snapped Babson. "How long do you want to sum up?"

Mr. Tutt looked at the clock, which pointed to three. The regular hour of adjournment was at four. Delay was everything in a case like this. A juryman might die suddenly overnight or fall grievously ill; or some legal accident might occur which would necessitate declaring a mistrial. There is, always hope in a criminal case so long as the verdict has not actually been returned and the jury polled and discharged. If possible he must drag his summing up over until the following day. Something might happen.

"About two hours, Your Honor," he replied.

The jury stirred impatiently. It was clear that they regarded a two-hour speech from him under the circumstances as an imposition. But Babson wished to preserve the fiction of impartiality.

"Very well," said he. "You may sum up until four-thirty, and have half an hour more to-morrow morning. See that the doors are closed, Captain Phelan. We do not want any interruption while the summations are going on."

"All out that's goin' out! Everybody out that's got no business, with the court!" bellowed Captain Phelan.

Mr. Tutt with an ominous heightening of the pulse realized that the real ordeal was at last at hand, for the closing of the case had wrought in the old lawyer an instant metamorphosis. With the words "The defense rests" every suggestion of the mountebank, the actor or the shyster had vanished. The awful responsibility under which he labored; the overwhelming and damning evidence against his client; the terrible consequences of the least mistake that he might make; the fact that only the sword of his ability, and his alone, stood between Angelo and a hideous death by fire in the electric chair—sobered and chastened him. Had he been a praying man in that moment he would have prayed—but he was not.

For his client was foredoomed—foredoomed not only by justice but also by trickery and guile—and was being driven slowly but surely towards the judicial shambles. For what had he succeeded in adducing in his behalf? Nothing but the purely apocryphal speculation that the dead barber might have threatened Angelo with his razor and that the witnesses might possibly have drawn somewhat upon their imaginations in giving the details of their testimony. A sorry defense! Indeed, no defense at all. All the sorrier in that he had not even been able to get before the jury the purely sentimental excuses for the homicide, for he could only do this by calling Rosalina to the stand, which would have enabled the prosecution to cross-examine her in regard to the purchase of the pistol and the delivery of it to her husband—the strongest evidence of premeditation. Yet he must find some argument, some plea, some thread of reason upon which the jury might hang a disagreement or a verdict in a lesser degree.

With a shuffling of feet the last of the crowd pushed through the big oak doors and they were closed and locked. An officer brought a corroded tumbler of brackish water and placed it in front of Mr. Tutt. The judge leaned forward with malicious courtesy. The jury settled themselves and turned toward the lawyer attentively yet defiantly, hardening their hearts already against his expected appeals to sentiment. O'Brien, ostentatiously producing a cigarette, lounged out through the side door leading to the jury room and prison cells. The clerk began copying his records. The clock ticked loudly.

And Mr. Tutt rose and began going through the empty formality of attempting to discuss the evidence in such a way as to excuse or palliate Angelo's crime. For Angelo's guilt of murder in the first degree was so plain that it had never for one moment been in the slightest doubt. Whatever might be said for his act from the point of view of human emotion only made his motive and responsibility under the statues all the clearer. There was not even the unwritten law to appeal to. Yet there was fundamentally a genuine defense, a defense that could not be urged even by innuendo: the defense that no accused ought to be convicted upon any evidence whatever, no matter how conclusive in a trial conducted with essential though wholly concealed unfairness.

Such was the case of Angelo. No one could demonstrate it, no one could with safety even hint at it; any charge that the court was anything but impartial would prove a boomerang to the defense; and yet the facts remained that the whole proceeding from start to finish had been conducted unfairly and with illegality, that the jury had been duped and deceived, and that the pretense that the guilty Angelo had been given an impartial trial was a farce. Every word of the court had been an accusation, a sneer, an acceptance of the defendant's guilt as a matter of course, an abuse far more subversive of our theory of government than the mere acquittal of a single criminal, for it struck at the very foundations of that liberty which the fathers had sought the shores of the unknown continent to gain.

Unmistakably the proceedings had been conducted throughout upon the theory that the defendant must prove his innocence and that presumably he was a guilty man; and this as well as his own impression that the evidence was conclusive the judge had subtly conveyed to the jury in his tone of speaking, his ironical manner and his facial expression. Guilty or not Angelo was being railroaded. That was the real defense—the defense that could never be established even in any higher court, except perhaps in the highest court of all, which is not of earth.

And so Mr. Tutt, boiling with suppressed indignation weighed down with the sense of his responsibility, fully realizing his inability to say anything based on the evidence in behalf of his client, feeling twenty years older than he had during the verbal duel of the actual cross-examination, rose with a genial smile upon his puckered old face and with a careless air almost of gaiety, which seemed to indicate the utmost confidence and determination, and with a graceful compliment to his arch enemy upon the bench and the yellow dog who had hunted with him, assured the jury that the defendant had had the fairest of fair trials and that he, Mr. Tutt, would now proceed to demonstrate to their satisfaction his client's entire innocence; nay, would show them that he was a man not only guiltless of any wrong-doing but worthy of their hearty commendation.

With jokes not too unseemly for the occasion he overcame their preliminary distrust and put them in a good humor. He gave a historical dissertation upon the law governing homicide, on the constitutional rights of American citizens, on the laws of naturalization, marriage, and the domestic relations; waxed eloquent over Italy and the Italian character, mentioned Cavour, Garibaldi and Mazzini in a way to imply that Angelo was their lineal descendant; and quoted from D'Annunzio back to Horace, Cicero and Plautus.

"Bunk! Nothing but bunk!" muttered Tutt, studying the twelve faces before him. "And they all know it!"

But Mr. Tutt was nothing if not interesting. These prosaic citizens of New York County, these saloon and hotel keepers, these contractors, insurance agents and salesmen were learning something of history, of philosophy, of art and beauty. They liked it. They felt they were hearing something worth while, as indeed they were, and they forgot all about Angelo and the unfortunate Crocedoro in their admiration for Mr. Tutt, who had lifted them out of the dingy sordid courtroom into the sunlight of the Golden Age. And as he led them through Greek and Roman literature, through the early English poets, through Shakespeare and the King James version, down to John Galsworthy and Rupert Brooke, he brought something that was noble, fine and sweet into their grubby materialistic lives; and at the same time the hand of the clock crept steadily on until he and it reached Château-Thierry and half past four together.

"Bang!" went Babson's gavel just as Mr. Tutt was leading Mr. Walsh, Mr. Tompkins and the others through the winding paths of the Argonne forests with tin helmets on their heads in the struggle for liberty.

"You may conclude your address in the morning, Mr. Tutt," said the judge with supreme unction. "Adjourn court!"

Gray depression weighed down Mr. Tutt's soul as he trudged homeward. He had made a good speech, but it had had absolutely nothing to do with the case, which the jury would perceive as soon as they thought it over. It was a confession of defeat. Angelo would be convicted of murder in the first degree and electrocuted, Rosalina would be a widow, and somehow he would be in a measure responsible for it. The tragedy of human life appalled him. He felt very old, as old as the dead-and-gone authors from whom he had quoted with such remarkable facility. He belonged with them; he was too old to practise his profession.

"Law, Mis' Tutt," expostulated Miranda, his ancient negro handmaiden, as he pushed away the chop and mashed potato, and even his glass of claret, untasted, in his old-fashioned dining room on West Twenty-third Street, "you ain't got no appetite at all! You's sick, Mis' Tutt."

"No, no, Miranda!" he replied weakly. "I'm just getting old."

"You's mighty spry for an old man yit," she protested. "You kin make dem lawyer men hop mighty high when you tries. Heh, heh! I reckon dey ain't got nuffin' on my Mistah Tutt!"

Upstairs in his library Mr. Tutt strode up and down before the empty grate, smoking stogy after stogy, trying to collect his thoughts and devise something to say upon the morrow, but all his ideas had flown. There wasn't anything to say. Yet he swore Angelo should not be offered up as a victim upon the altar of unscrupulous ambition. The hours passed and the old banjo clock above the mantel wheezed eleven, twelve; then one, two. Still he paced up and down, up and down in a sort of trance. The air of the library, blue with the smoke of countless stogies, stifled and suffocated him. Moreover he discovered that he was hungry. He descended to the pantry and salvaged a piece of pie, then unchained the front door and stepped forth into the soft October night.

A full moon hung over the deserted streets of the sleeping city. In divers places, widely scattered, the twelve good and true men were snoring snugly in bed. To-morrow they would send Angelo to his death without a quiver. He shuddered, striding on, he knew not whither, into the night. His brain no longer worked. He had become a peripatetic automaton self-dedicated to nocturnal perambulation.

With his pockets bulging with stogies and one glowing like a headlight in advance of him he wandered in a sort of coma up Tenth Avenue, crossed to the Riverside Drive, mounted Morningside Heights, descended again through the rustling alleys of Central Park, and found himself at Fifth Avenue and Fifty-ninth Street just as the dawn was paling the electric lamps to a sickly yellow and the trees were casting strange unwonted shadows in the wrong direction. He was utterly exhausted. He looked eagerly for some place to sit down, but the doors of the hotels were dark and tightly closed and it was too cold to remain without moving in the open air.

Down Fifth Avenue he trudged, intending to go home and snatch a few hours' sleep before court should open, but each block seemed miles in length. Presently he approached the cathedral, whose twin spires were tinted with reddish gold. The sky had become a bright blue. Suddenly all the street lamps went out. He told himself that he had never realized before the beauty of those two towers reaching up toward eternity, typifying man's aspiration for the spiritual. He remembered having heard that a cathedral was never closed, and looking toward the door he perceived that it was open. With utmost difficulty he climbed the steps and entered its dark shadows. A faint light emanated from the tops of the stained-glass windows. Down below a candle burned on either side of the altar while a flickering gleam shone from the red cup in the sanctuary lamp. Worn out, drugged for lack of sleep, faint for want of food, old Mr. Tutt sank down upon one of the rear seats by the door, and resting his head upon his arms on the back of the bench in front of him fell fast asleep.

He dreamed of a legal heaven, of a great wooden throne upon which sat Babson in a black robe and below him twelve red-faced angels in a double row with harps in their hands, chanting: "Guilty! Guilty! Guilty!" An organ was playing somewhere, and there was a great noise of footsteps. Then a bell twinkled and he raised his head and saw that the chancel was full of lights and white-robed priests. It was broad daylight. Horrified he looked at his watch, to find that it was ten minutes after ten. His joints creaked as he pulled himself to his feet and his eyes were half closed as he staggered down the steps and hailed a taxi.

"Criminal Courts Building—side door. And drive like hell!" he muttered to the driver.

He reached it just as Judge Babson and his attendant were coming into the courtroom and the crowd were making obeisance. Everybody else was in his proper place.

"You may proceed, Mr. Tutt," said the judge after the roll of the jury had been called.

But Mr. Tutt was in a daze, in no condition to think or speak. There was a curious rustling in his ears and his sight was somewhat blurred. The atmosphere of the courtroom seemed to him cold and hostile; the jury sat with averted faces. He rose feebly and cleared his throat.

"Gentlemen of the jury," he began, "I—I think I covered everything I had to say yesterday afternoon. I can only beseech you to realize the full extent of your great responsibility and remind you that if you entertain a reasonable doubt upon the evidence you are sworn to give the benefit of it to the defendant."

He sank back in his chair and covered his eyes with his hands, while a murmur ran along the benches of the courtroom. The old man had collapsed—tough luck—the defendant was cooked! Swiftly O'Brien leaped to his feet. There had been no defense. The case was as plain as a pike-staff. There was only one thing for the jury to do—return a verdict of murder in the first. It would not be pleasant, but that made no difference! He read them the statute, applied it to the facts, and shook his fist in their faces. They must convict—and convict of only one thing—and nothing else—murder in the first degree. They gazed at him like silly sheep, nodding their heads, doing everything but bleat.

Then Babson cleared his decks and rising in dignity expounded the law to the sheep in a rich mellow voice, in which he impressed upon them the necessity of preserving the integrity of the jury system and the sanctity of human life. He pronounced an obituary of great beauty upon the deceased barber—who could not, as he pointed out, speak for himself, owing to the fact that he was in his grave. He venomously excoriated the defendant who had deliberately planned to kill an unarmed man peacefully conducting himself in his place of business, and expressed the utmost confidence that he could rely upon the jury, whose character he well knew, to perform their full duty no matter how disagreeable that duty might be. The sheep nodded.

"You may retire, gentlemen."

Babson looked down at Mr. Tutt with a significant gleam in his eye. He had driven in the knife to the hilt and twisted it round and round. Angelo had almost as much chance as the proverbial celluloid cat. Mr. Tutt felt actually sick. He did not look at the jury as they went out. They would not be long—and he could hardly face the thought of their return. Never in his long experience had he found himself in such a desperate situation. Heretofore there had always been some argument, some construction of the facts upon which he could make an appeal, however fallacious or illogical.

He leaned back and closed his eyes. The judge was chatting with O'Brien, the court officers were betting with the reporters as to the length of time in which it would take the twelve to agree upon a verdict of murder in the first. The funeral rites were all concluded except for the final commitment of the corpse to mother earth.

And then without warning Angelo suddenly rose and addressed the court in a defiant shriek.

"I killa that man!" he cried wildly. "He maka small of my wife! He no good! He bad egg! I killa him once—I killa him again!"

"So!" exclaimed Babson with biting sarcasm. "You want to make a confession? You hope for mercy, do you? Well, Mr. Tutt, what do you wish to do under the circumstances? Shall I recall the jury and reopen the case by consent?"

Mr. Tutt rose trembling to his feet.

"The case is closed, Your Honor," he replied. "I will consent to a mistrial and offer a plea of guilty of manslaughter. I cannot agree to reopen the case. I cannot let the defendant go upon the stand."

The spectators and reporters were pressing forward to the bar, anxious lest they should lose a single word of the colloquy. Angelo remained standing, looking eagerly at O'Brien, who returned his gaze with a grin like that of a hyena.

"I killa him!" Angelo repeated. "You killa me if you want."

"Sit down!" thundered the judge. "Enough of this! The law does not permit me to accept a plea to murder in the first degree, and my conscience and my sense of duty to the public will permit me to accept no other. I will go to my chambers to await the verdict of the jury. Take the prisoner downstairs to the prison pen."

He swept from the bench in his silken robes. Angelo was led away. The crowd in the courtroom slowly dispersed. Mr. Tutt, escorted by Tutt, went out in the corridor to smoke.

"Ye got a raw deal, counselor," remarked Captain Phelan, amiably accepting a stogy. "Nothing but an act of Providence c'd save that Eyetalian from the chair. An' him guilty at that!"

An hour passed; then another. At half after four a rumor flew along the corridors that the jury in the Serafino case had reached a verdict and were coming in. A messenger scurried to the judge's chambers. Phelan descended the iron stairs to bring up the prisoner, while Tutt to prevent a scene invented an excuse by which he lured Rosalina to the first floor of the building. The crowd suddenly reassembled out of nowhere and poured into the courtroom. The reporters gathered expectantly round their table. The judge entered, his robes, gathered in one hand.

"Bring in the jury," he said sharply. "Arraign the prisoner at the bar."

Mr. Tutt took his place beside his client at the railing, while the jury, carrying their coats and hats, filed slowly in. Their faces were set and relentless. They looked neither to the right nor to the left. O'Brien sauntered over and seated himself nonchalantly with his back to the court, studying their faces. Yes, he told himself, they were a regular set of hangmen—he couldn't have picked a tougher bunch if he'd had his choice of the whole panel.

The clerk called the roll, and Messrs. Walsh, Tompkins, et al., stated that they were all present.

"Gentlemen of the jury, have you agreed upon a verdict?" inquired the clerk.

"We have!" replied Mr. Walsh sternly.

"How say you? Do you find the defendant guilty or not guilty?"

Mr. Tutt gripped the balustrade in front of him with one hand and put his other arm round Angelo. He felt that now in truth murder was being done.

"We find the defendant not guilty," said Mr. Walsh defiantly.

There was a momentary silence of incredulity. Then Babson and O'Brien shouted simultaneously: "What!"

"We find the defendant not guilty," repeated Mr. Walsh stubbornly.

"I demand that the jury be polled!" cried the crestfallen O'Brien, his face crimson.

And then the twelve reiterated severally that that was their verdict and that they hearkened unto it as it stood recorded and that they were entirely satisfied with it.

"You are discharged!" said Babson in icy tones. "Strike the names of these men from the list of jurors—as incompetent. Haven't you any other charge on which you can try this defendant?"

"No, Your Honor," answered O'Brien grimly. "He didn't take the stand, so we can't try him for perjury; and there isn't any other indictment against him."

Judge Babson turned ferociously upon Mr. Tutt:

"This acquittal is a blot upon the administration of criminal justice; a disgrace to the city! It is an unconscionable verdict; a reflection upon the intelligence of the jury! The defendant is discharged. This court is adjourned."

The crowd surged round Angelo and bore him away, bewildered. The judge and prosecutor hurried from the room. Alone Mr. Tutt stood at the bar, trying to grasp the full meaning of what had occurred.

He no longer felt tired; he experienced an exultation such as he had never known before. Some miracle had happened! What was it?

Unexpectedly the lawyer felt a rough warm hand clasped over his own upon the rail and heard the voice of Mr. Walsh with its rich brogue saying: "At first we couldn't see that there was much to be said for your side of the case, Mr. Tutt; but when Oi stepped into the cathedral on me way down to court this morning and spied you prayin' there for guidance I knew you wouldn't be defendin' him unless he was innocent, and so we decided to give him the benefit of the doubt."