After the adjournment I had opportunity to hear expressions of opinion from various members of the bar who had been spectators at the trial and who like myself lingered on the scene for awhile, and I found that while they all agreed that the prosecution had made out its case, there still existed a strong feeling of curiosity regarding the line of defence to be pursued.

It was plain an alibi was out of the question, for while Winters's identification by the night-officer was not fully positive, the subsequent possession by him, on the night of the murder, of one of the missing bills confirmed its correctness beyond any possibility of reasonable dispute.

It was the unanimous opinion, however, that some plausible explanation of his possession of that bill must be forthcoming if the defence entertained any hope of an acquittal, and there were many conjectures as to what the explanation was to be. I could not but be entertained, in spite of my perturbed state of mind, by the unconscious a.s.sumption on the part of all who joined in the discussion that the explanation when it should be forthcoming, would evidence in its ingenuity the cleverness of the defence.

So confident was the general opinion of the prisoner's guilt, that it was not even suggested there might be a true explanation available, nor did it seem to occur to any one of them that Littell, with the high professional reputation he possessed, might be unwilling to endorse by his advocacy any other sort. Having accepted the case, they a.s.sumed apparently that he would make the most of it, whatever its character or merit might be.

This mental att.i.tude of prejudgment was calculated to work injustice to the defence, because, as I knew, Littell believed in the innocence of his client, and his evidence and his arguments would be conscientiously presented and would represent his convictions and should therefore be received with some measure of credence and respect. To antic.i.p.ate in them but subterfuge and chicanery was eminently unfair and I felt disposed to take issue then and there with my brother lawyers; but when I reflected that after all it would be the jurors who would decide the case and not those about me I restrained my impulse and went my way in silence.

CHAPTER XI

THE TRIAL CONCLUDED

When I took my seat again the next day and looked about me upon a scene now become familiar, I entertained little hope of the result of the day's proceedings. I knew better than others how meagre was the evidence of the defence and I could not see how the unsupported testimony of the prisoner, even if he were physically capable of giving it coherently, could have much weight; and yet I knew that that was all Littell had to offer. But even I, as I was yet to learn, failed to appreciate the splendid abilities and resources of that man.

When court was opened there was a longer delay than usual over that period of busy idleness that usually precedes the moment of getting down to work, and during this time it was plain from the remarks audible on all sides that every one was awaiting with expectancy the opening statement of Littell, for in it was looked for a key to the line of defence.

Whether Littell felt he could argue the whole case to better advantage at a later stage, or whether he thought it wiser to leave unsatisfied to the latest moment the intense curiosity and interest he knew he had aroused, I do not know; but whatever his reason may have been, when signalled by the Judge, he rose only to say that he had no preliminary statement to make, but would leave it to the prisoner to tell his own story, and therein all the defence knew of the case, to the jury without preface. He added that they would find it a straightforward, credible statement which he believed would carry conviction; that it had been told to him voluntarily, and he was willing the Court and jury should hear it in the same way.

He then called the prisoner to the stand, and I was gratified to see by the inquiring look he directed to Littell as soon as he had taken his place in the witness-box that Winters was fully conscious of what was demanded of him and prepared to meet it.

Littell met his glance encouragingly, and in response asked him to relate all he knew concerning the death of White, and to tell of his own whereabouts and doings about the time of the occurrence.

"Address the jury!" the lawyer concluded, and Winters obediently faced his judges and during all his testimony addressed his words directly to them.

He spoke in a low voice, but very distinctly, each word being audible, and his manner was quiet and entirely free from anything suggesting defiance or cunning.

It is not necessary that I should again repeat his story. It was given just as he had told it to me and subsequently to Littell and as I have already related it, and it seemed to me on this occasion, as on the previous ones, to bear the stamp of truth.

It made an impression, as I could perceive, upon the jury also, but whether any of them believed it or not, I could not tell. The greater part of them I feared were saying to themselves "This man is clever"

rather than "This man is innocent."

During the entire recital, Littell kept his attention fixed on the jury, his keen gaze studying each countenance and trying to read there the impression made, but neither by sign nor word did he interrupt or endeavor to lead the witness. Evidently he was playing his best card, and, alas! his only one.

There was a few moments interval after the conclusion of Winters's direct evidence while the prosecution consulted together before the District Attorney began his cross-examination, and during that time Winters sat listlessly in his chair, seemingly indifferent to his surroundings. I think his long siege of trouble and sickness must have more or less stupefied him or have made him callous, perhaps desperate.

Whatever the cause, his mental att.i.tude was probably the best possible one under the circ.u.mstances as it made it unlikely he would become either nervous or excited.

The cross-examination proved a long and searching one, enough to tax the nerve of any ordinary man, but except for some signs of physical weakness, Winters remained perfectly composed, nor could the lawyers trip him up in any particular. He reiterated his story, piece by piece, in response to their questions, deviating in no particular from his first statement, while in new matters broached by them he was apparently entirely candid.

He admitted the bad feeling he felt towards his cousin and charged it to the unfair provisions of his father's will. He confirmed Benton's testimony that he frequently demanded money of his cousin.

He denied any knowledge of the contents of White's will and also denied that he had ever corresponded in any way with White, or that there was any secret between them. This last was in reply to questions by which the State's officers endeavored unsuccessfully to connect him with the letter found by Miles, as also with the conversation related by Belle Stanton.

In no particular could they break down his testimony. They did, however, show by his own admissions, that he was an idler and a drunkard, and a man of bad reputation and a.s.sociates, but his answers were so freely given that these facts lost some of their damaging effect. Altogether, he must have made about as favorable an impression as a man in his position could, but I could see no reason to hope that it had done more for him than possibly to excite the interest and in some degree the sympathy of the jury.

When it came to Littell's turn to re-examine, he left his seat and, going over to the prisoner, took him by the arm and raised him to his feet.

"Winters," he said, "I believe you have told all you know of the case, but before you leave the stand, I have one more question to ask you. I want you to tell this jury, and tell them upon the solemn oath you have taken, had you any hand in your cousin's death or any knowledge of it?"

Winters looked at him and then at the jury before he spoke and then answered firmly:

"I had not."

"That is all," Littell said, and the witness returned to his place.

There was a period of expectation,--everyone was waiting for something, you could feel it in the air,--till after awhile Littell, apparently in response to the silent question, leaned forward with a little expression of surprise and said in the most even tones:

"That is all, your Honor, I have no further testimony to offer."

The effect of this announcement was immediate; the air of expectation was banished and astonishment took its place; people exchanged glances of surprise--almost consternation: "Was this all there was to be to the defence; why! there was no defence." You could almost read the words in the expressions of those about you, but Littell seemed undisturbed and after a moment's hesitation the Judge announced an hour's recess with the expectation that the case would be concluded at a late session.

It had been a long morning, for the proceedings had been late in beginning and the testimony of Winters had occupied several hours, and most of those within the rail, that is, those who were a.s.sured of regaining admission to the scene, hastened away upon the announcement to make the most of the opportunity for rest and refreshment. Not so with the spectators, however; there was scarcely a movement in that compact ma.s.s; for any of them to go was to resign their places to others--and the sacrifice was too great.

I looked toward Littell in the hope that he would join me at lunch, but his head was bent over some papers and if he was conscious of my glance he gave no sign, and so I went out alone.

When I returned he was still in the same att.i.tude and I doubted if he had left his seat. One by one the others dropped in and resumed their places until, when the recess had expired and the session was resumed, all was in readiness to proceed.

There was some delay, however, while the State's officers engaged in earnest consultation, till the attention of the Judge being attracted thereby, he looked up and peering inquiringly over his gla.s.ses in their direction said: "Well, gentlemen, are we ready?" At this the junior arose and asked permission to recall the defendant. General surprise was manifest at this request, and Littell offered prompt objection to its concession. In a few words he called attention to the fact that there had been no such re-direct examination of the defendant as to afford occasion for re-cross, and further insisted that as the witness had been permitted to leave the stand he could not be recalled; and he added pointedly that the prisoner was too exhausted to stand the strain of further examination--which fact his brother lawyers knew and were seeking to turn to their advantage. When, at the conclusion of these words, the District Attorney arose with severe mien to reply himself in place of his junior, I knew there was coming the usual indignant protest of injured innocence, and I listened with indifference to its eloquent vindication and then to the argument that followed. It was the first tilt of the trial between counsel and as usual proved a source of entertainment to the spectators, but to me it was weariness. Still, I gave attention while the lawyer told why he wished to recall the witness and why he should be allowed to do so, and argued that he had never said he was through with the witness and had never closed his case--through all of which the junior nodded approval, and Littell looked bored and occasionally interrupted, and the Judge remained expressionless--and so it went on and meanwhile the daylight faded in the room and the gas was lighted and the atmosphere, already oppressive, became almost stifling in its heat, and the crowd moved restlessly and men yawned, and I listened and listened in dull consciousness till, feeling satisfied that in the end the Court would rule for the defence, I slipped quietly from the room. Littell's summing up could alone affect the final result now, and in the meanwhile the quiet and the cool air of the corridor were welcome.

As I paced up and down smoking a cigar and weighing in my mind the chances of the trial, I would occasionally get a momentary glimpse into the court-room as the door would swing open to permit the exit of some other weary spectator like myself, and in the hot glare of the gaslights the scene within would be visible through the doorway like a picture within a frame, the court with all its surrounding functionaries, the figure of the speaker gesticulating as he addressed the Judge, the form of the prisoner bowed and still between his guards, and in the foreground the dense throng of spectators, all in vivid relief.

I can close my eyes and recall that picture even to this hour, but never without a feeling of overwhelming melancholy; so strong are the impressions some things leave upon us.

After a while there was a stir within and some one said that the Court had sustained the objection of the defence and declined to permit the recall of the defendant, and that Littell was about to begin his final argument, and so I hurried back. He was already on his feet in the centre of the room and facing the jury. He had neither books nor memoranda by him and evidently relied upon his memory for all he meant to say.

His voice was deep and serious when he began to speak:

"I have been practising my profession, as your Honor knows, for forty years and this is the first as it is the last time that I appear before a criminal tribunal; only a sense of imperative duty as a lawyer and as a man has brought me here to-day; could I with a clear conscience have escaped this solemn duty, I would have done so, but a call higher than has ever appealed to me before has summoned me to the side of a man who is being wronged, and therefore it is I am here.

"I am without the resources of my brother lawyers accustomed to practise in this court and I have, therefore, no facts to submit, except those presented by the witnesses for the State, and no evidence to offer, except that of the prisoner himself.

"I believe the evidence of the State's witnesses to be substantially true and therefore have made no effort to cast doubt upon it, and I believe the testimony of the prisoner to be true, and, therefore, I rely upon it."

Then in a more conversational tone he addressed himself to the jury.

"The unusual feature of this case," he said, "is that while the testimony of the State would seem to make out the guilt of the prisoner, his own story makes out his innocence, and yet both are uncontradicted and are consistent with each other. I wish you to keep this in mind, because, if it be as I say and the story of the prisoner be not incredible, you cannot convict him; you must remember it is not the duty of the defence to prove the innocence of the accused, but that of the prosecution to establish his guilt.

"It is going to be my effort now to demonstrate to you the truth of what I have said by an a.n.a.lysis of the evidence, and then I am going to do what is more than is demanded of me as counsel for the defendant,--I am going to try and point out to you not only the possibility of its having been some one else than the accused who committed this deed, but who that some one was."

Then he took up the evidence piece by piece and a.n.a.lyzed it. Every doubt, every possibility in the case, which he and I had so often discussed together, was developed and presented to the jury in its strongest phase, till there appeared to be left no possible theory of the crime that could make consistent all the facts.

The State's case seemed torn to shreds, and its evidence, which but a few moments before had seemed plain as day in its application, was now full of unsolvable mystery. I waited breathlessly to see where his wonderful logic and eloquence would finally lead him and us, while the jury hung in spellbound attention on his every word. Then, when he had each one helplessly at sea looking eagerly to him for some explanation that would fit the case and solve its doubts, he turned abruptly to the dock and pointing to the prisoner, said:

"Forget that man; he did not do it! You must start afresh in this case if you are to find the murderer!