The State: "Would you recognize him if you were to see him now?"

Witness: "I certainly would."

The State: "When did you see him last?"

Witness: "Day before yesterday."

The State: "Tell the jury where you saw him."

Witness: "Over in the Tombs."

The State: "Surrept.i.tiously?"

Witness: "No, sir. With my own eyes."

The State: "I mean, you saw him without his being aware of the fact that you were looking at him for the purpose of identification?"

Witness. "Yes, sir."

The State: "I will now ask you to look about this court room and tell the jury whether you see the man known to you as Filbert Morton?"

Witness, pointing to Smilk: "That's him over there."

The State: "You mean the prisoner at the bar, otherwise known as Ca.s.sius Smilk?"

Witness. "Yes, sir. That's my husband."

The State: "You are sure about that?"

Witness: "Of course, I am. I wouldn't be likely to make any mistake about a man I'd lived with for nearly six months, would I? I've got my marriage certificate here with me, if you want to see it."

Mrs. Smilk, in the first row, venomously addressing Mr. Smilk: "So that's what you was up to when you was out for six months and never come near me once, you dirty--"

All bailiffs in unison: "Silence! Order in the court!"

The State, presently: "Was he a good, kind, devoted husband to you, Mrs. Morton?"

Witness: "Well, if you mean did he provide me with clothes and jewels and gewgaws and all such, yes. He was always bringing me home rings and bracelets and necklaces and things. But if you mean did he ever give me any money to buy food with and keep the flat going, no.

I slaved my head off to get grub for him all the time we were living together."

The State: "Did he ever mistreat you?"

Witness: "Oh, once in a while he used to give me a rap in the eye, or a kick in the slats, or something like that, but on the whole he was pretty sensible."

The State: "Sensible? In what way?"

Witness: "I mean he was sensible enough not to punch his meal ticket too often."

It is not necessary to go any farther into the direct examination of Mrs. Elsie Morton, nor into the half-hearted efforts of Smilk's disgusted lawyer to shake her in cross-examination. Nor is it necessary to introduce here the testimony of Mrs. Jennie Finchley, who succeeded her on the stand. It appears that Jennie was married in 1914 when Smilk was out for three months. She supported him for several months in 1916,--up to the time he packed up and left her on the morning of the fourteenth of June, that year. As Herbert Finchley he not only managed to live comfortably off the proceeds of her delicatessen, but in leaving her he took with him nine hundred dollars that she had saved out of the business despite his gormandizing.

CHAPTER SIX

Despite the fact that the jury was out just a few minutes short of seven hours, it finally came in with a verdict "guilty as charged."

Twice the devoted twelve returned to the court room for further instructions from the judge. Once they wanted to know if it was possible to convict the prisoner for bigamy instead of burglary, and the other time it was to have certain portions of Mr. Yollop's testimony read to them. Immediately upon retiring an amicable and friendly discussion took place in the crowded, stuffy little jury room. Eight men lighted black cigars, two lighted their pipes, one joyously, almost ravenously resorted to a package of "Lucky Strikes," while the twelfth man announced that he did not smoke. He had been obliged to give it up because of blood pressure or something like that.

The foreman, or Juror No. 1, was an insurance agent. He was a man of fifty and he knew how to talk. His voice was loud, firm, overriding and unconquerable; his manner suave, tolerant, persuasive. The bailiff, after obtaining each man's telephone number and the message he wished to have sent to his home (if any), informed the jurors that he would be waiting just outside if they wanted him and then departed, locking the door behind him; whereupon the foreman looked at his watch and announced that it was twenty minutes to four. This statement resulted in the first disagreement. No two watches were alike. Some little time was consumed in proving that all twelve of them were right and at the same time wrong, paradoxical as it may sound. After the question of the hour had been disposed of, the foreman suggested that an informal ballot be taken for the purpose of ascertaining the views of the gentlemen as to the guilt or the innocence of the defendant. The result of this so-called informal ballot was nine for conviction, three for acquittal.

"Now we know where we stand," explained the foreman. "In view of the fact that nine of us are for conviction and only three for acquittal it seems to me that it is up to the minority to give their reasons for not agreeing with the majority. I see by your ballot, Mr.--er--Mr. Sandusky, that you are in favor of acquitting--"

"My name is I. M. Pushkin," interrupted Juror No. 7. "I wrote it plain enough, didn't I?"

"The initials confused me," explained the foreman. "Well, let's hear why you think he ought to be acquitted."

"I know what it is to be hungry, that's why. I see the time when I first come to this country when I didn't have nothing to eat for two-three days at a time, and ever'body tellin' me to go to h.e.l.l out of here when I ask for a job or when I tell 'em I ain't had nothing to eat since yesterday morning and won't they please to help a poor feller what ain't had nothing to eat since yesterday morning, and--"

Six or seven voices interrupted him. It was Juror No. 4, salesman, who finally succeeded in getting a detached question to him.

"As I was saying, where do you get any evidence that he WAS hungry?"

"I guess you wasn't paying much attention to the evidence," retorted Mr. Pushkin. "Didn't you hear that lawyer say, over and over yet, how he was almost starved to death? Didn't--Wait a minute!--didn't you hear him say to that deaf witness that the prisoner fell down like a log when he push him in the face? Just push him,--nothing else. Didn't you hear that?"

"Sure I heard it. We all heard it. But what EVIDENCE is there?"

"Evidence? My gracious, ain't that enough? Ain't one man's word as good as another's? And say, let me ask you this: Is there any evidence that he wasn't almost starved to death! Well! Humph! I guess not. There ain't a single witness that says he wasn't hungry--not one, I tell you. You can't--"

"Didn't all them policemen swear that he was as husky as--"

"Say, you can't believe a policeman about anything. It's their business. That's what their job is. I know all about those fellers.

Why, long time ago when I first come to this country, I told a hundred policeman I was almost starved to death and say, do you think they believed me? You bet they didn't. They told me to get a move on, get the h.e.l.l out of this, beat it,--you bet I know all about them fellers. I--"

The foreman interrupted Mr. Pushkin.

"So you want to acquit the defendant because his lawyer said he was hungry,--is that it?"

"I don't blame n.o.body for stealing when he is almost starved to death and got a wife and children almost starved to death too because he cannot get a job yet. You bet I don't. I don't--"

"Well, of all the d.a.m.ned--"

"Can you beat this for--"