The State: "We object. The question calls for a conclusion on the part of the witness, who does not even pretend to be an expert or an authority on pathological--"

Counsel: "But he DOES pretend to be an intelligent man, doesn't he?

I submit, your honor, that the question is proper and I--"

The Court: "Objection sustained. The witness may state that the defendant ate a box of chocolate creams. He cannot give an opinion as to the effect the chocolates may or may not have had on him."

Counsel: "Exception."

Mr. Yollop was on the stand for half an hour longer. Counsel for the defense was driving home to the jury the impression that Smilk was a poor, half-starved wretch who had gone back to thieving after a valiant but hopeless attempt to find work in order to support his wife and children. He announced, in arguing an objection made by the State, that it was his intention to prove by the man's wife that Smilk was a good husband and was willing to work his fingers off for his family, but that he had been ill and unable to find steady employment.

Mrs. Champney testified at the afternoon session. She made a most unfavorable impression on the jury. She got very angry at Smilk's counsel and said such spiteful things to him and about his client that the jury began to feel sorry for both of them.

Two detectives and three policemen in uniform testified that Smilk was the picture of health and a desperate-looking character. Now anybody who has ever served on a jury in a criminal case knows the effect that the testimony of a police officer has on three fourths--and frequently four fourths,--of the jurors. For some unexplained,--though perhaps obvious reason,--the ordinary juror not only hates a policeman but refuses to believe him on oath unless he is supported by evidence of the most una.s.sailable nature. The mere fact that the five officers swore that Smilk was healthy and rugged no doubt went a long way toward convincing the jury that the poor fellow was a physical wreck and absolutely unable to defend himself on the night of the alleged burglary.

Moreover, a skilled mind-reader would have discovered that Mr.

Yollop had not made a good impression on the jury. Almost to a man, they discredited him because he was fastidious in appearance; because he was known to be a successful and prosperous business man; because he was trying to make them believe that he possessed the unheard-of courage to tackle an armed burglar; and because he was a milliner. As for Mrs. Champney, she was the embodiment of all that the average citizen resents: a combination of wealth, refinement, intelligence, arrogance and widowhood. Especially does he resent opulent widowhood.

The State rested. Mrs. Smilk was the first witness called by the defense. She told a harrowing tale of Smilk's unparalleled efforts to obtain work; of his heart-breaking disappointments; of her own loyal and cheerful struggle to provide for the children,--and for her poor sick husband,--by slaving herself almost to death at all sorts of jobs. Furthermore, she was positive that poor Ca.s.sius had reformed, that he was determined to lead an honest, upright life; all he needed was encouragement and the opportunity to show his worth. True, he had been in State's Prison twice, but in both instances it was the result of strong drink. Now that prohibition had come and he could no longer be subjected to the evils and temptations of that accursed thing generically known as rum, he was sure to be a model citizen and husband. In fact, she declared, a friend of the family,--a man very high up in city politics,--had promised to secure for Ca.s.sius an appointment as an enforcement officer in the great war that was being waged against prohibition.

This seemed to make such a hit with the jury that Smilk's lawyer shrewdly decided not to press her to alter the preposition.

The cross-examination was brief.

The State: "How many children have you, Mrs. Smilk?"

Mrs. Smilk: "Seven."

The State: "The defendant is the father of all of them?"

Mrs. Smilk, with dignity: "Are you tryin' to insinuate that he ain't?"

The State: "Not at all. Answer the question, please."

Mrs. Smilk: "Yes, he is."

The State: "When did you say you were married to the defendant?"

Mrs. Smilk: "October, 1906. I got my certificate here with me, if you want to see it."

The State: "I would like to see it."

Counsel for Smilk, benignly: "The defense has no objection."

The State, after examining the doc.u.ment: "It is quite regular. With the court's permission, I will submit the doc.u.ment to the jury."

The Court, to Smilk's counsel: "Do you desire to offer this doc.u.ment in evidence?"

Counsel: "It had not occurred to us that it was necessary, but now that a point is being made of it, I will ask that it be introduced as evidence."

The State, pa.s.sing the certificate to the court reporter for his identification mark: "You have never been divorced from the defendant, have you, Mrs. Smilk?"

Mrs. Smilk: "Of course not." Then nervously: "Excuse me, but do I get my marriage certificate back? It's the only hold I got on--"

Counsel, hastily: "Certainly, certainly, Mrs. Smilk. You need have no worry. It will be returned to you in due time."

The State, after reading the certificate aloud, hands it to the foreman, and says: "The State admits the validity of this certificate. There can be no question about it." Leans against the table and patiently waits until the doc.u.ment has made the rounds.

"Now, Mrs. Similk, you are sure that you have not been divorced from Smilk nor he from you?"

Mrs. Smilk, stoutly; "Course I'm sure."

The State: "You heard Mr. Yollop testify that your husband said he had several wives. So far as you know that is not the case?"

Mrs. Smilk. "I don't think he ever said it to Mr. Yollop. I think Mr. Yollop lied."

The State: "I see. Then you do not believe your husband could have deceived you--I withdraw that, Mr. Reporter. You do not believe that your husband is base enough to have married another woman,--or women,--without first having obtained a legal divorce from you?"

Mrs. Smilk: "I wouldn't be up here testifying in his behalf if I thought that, you bet. He ain't that kind of a man. If I thought he was, I'd like to see him hung. I'd like to see--"

The State. "Never mind, Mrs. Smilk. We are not trying your husband for bigamy. I think that is all, your honor."

Counsel for Smilk: "You may be excused, Mrs. Smilk. Take the stand, Ca.s.sius."

Instead of obeying Ca.s.sius beckoned to him. Then followed a long, whispered conference between lawyer and client, at the end of which the former, visibly annoyed, declared that the defendant had decided not to testify. The Court indicated that it was optional with the prisoner and asked if the counsel desired to introduce any further testimony. Counsel for the defense announced that his client's decision had altered his plans and that he was forced to rest his case. The a.s.sistant District Attorney stated that he had two witnesses to examine in reb.u.t.tal.

"Send for Mrs. Elsie Morton," he directed. "She is waiting in the District Attorney's office, Mr. Bailiff."

To the amazement of every one, Ca.s.sius Smilk started up from his chair, a wild look in his eye. He sat down instantly, however, but it was evident that he had sustained a tremendous and unexpected shock. Mr. Yollop who had purposely selected a seat in the front row of spectators from which he could occasionally exchange mutual glances of well-a.s.sumed repugnance with the rascal, caught Smilk's eye as it followed the retiring bailiff. The faintest shadow of a wink flickered for a second across that smileless, apparently troubled optic. Mr. Yollop, who had been leaning forward in his chair for the better part of the afternoon with one hand cupped behind his ear and the other manipulating the disc in a vain but determined effort to hear what was going on, suddenly relaxed into a comfortable, satisfied att.i.tude and smiled triumphantly. He knew what was coming. And so did Smilk.

Mrs. Morton was a plump, bobbed-hair blond of thirty. She had moist carmine lips, a very white nose, strawberry-hued cheek bones, an alabaster chin and forehead, and pale, gray eyes surrounded by blue-black rims tinged with crimson. She wore a fashionable hat,--(Mr. Yollop noticed that at a glance)--a handsome greenish cloth coat with a broad moleskin collar and cuffs of the same fur, pearl gray stockings that were visible to the knees, and high gray shoes that yawned rather shamelessly at the top despite the wearer's doughtiest struggle with the laces. Her gloves, also were somewhat over-crowded. She gave her name as Mrs. Elsie Broderick Morton, married; occupation, ticket seller in a motion picture theater.

The State: "What is your husband's name and occupation?"

Witness: "Filbert Morton. So far as I know, he never had a regular occupation."

The State: "When were you and Filbert Morton married?"

Witness: "June the fourteenth, 1916."

The State: "Are you living with your husband at present?"

Witness: "I am not."

The State: "Have you ever been divorced from him?"

Witness: "I have not."

The State: "How long is it since you and he lived together?"

Witness: "A little over three years."