Chapter IV: Part 4

At the very opening of the day’s proceedings, a question of tactics presented itself. The photographs of the interior of the shanty, while in evidence, had not as yet been shown to the jury. There wasn’t the slightest doubt but that, of course, Squire Mason was aware of the simple mechanical fact that the hermit’s clock had run down. He might even have it hidden somewhere in an ante-room ready to produce at the proper psychological moment, to prove that the clock was broken or--horrible thought!--that it had no works at all! It might be merely a face!

The foxy old hayseed was probably going to wait until the defense had called all its witnesses to establish Hawkins’ presence at Colson’s Grocery at four o’clock, and then blandly trot out the clock itself for the inspection of the jury, who would thus be enabled to see with their own eyes that it was entirely useless as evidence. Adopting a military simile, he was evidently intending to permit his enemy to capture a redoubt and then press an electric button and blow the redoubt and the enemy both to atoms. That was obviously what he ought to do as a matter of tactics, what any skilful prosecutor would do, what Mr. Tutt would have done in his place. It could therefore be pretty safely assumed that he would do it.

Now then, would it be better for Mr. Tutt boldly to hand the photograph to the jury and bring out the fact that the clock was a stopped clock himself, as if it were so obvious as to be really of no importance and--trust to luck? Or would it be better--assuming that he had correctly diagnosed Squire Mason’s intentions--to keep the thing out of the jury’s hands as long as possible and delay the discovery until there was no longer any hope of a change in the strategical situation. The photograph was bound to be a bombshell some time or other, and the longer it was held back the worse would be the explosion. Still--! Mr. Tutt had been taught several painful lessons during the last few days. Why bring out an unfavorable fact before it was necessary,--simply to reduce its ultimate dramatic effect if eventually proved? Why explode a mine under one’s own works, so long as there was the remotest chance--even one in a million--that the works might be held? After all, you never could tell!

These somewhat confused ratiocinations flashed through Mr. Tutt’s brain while the roll of the jury was being called, and by the time the twelfth had answered to his name, the lawyer had made up his mind to leave what was--for the time being--well enough alone, and to hold back the photograph as long as possible, to trust in his star and in his genius for the unexpected and improbable.

The clerk sat down and the sheriff rapped for order.

“Proceed, gentlemen!” directed Judge Tompkins.

“Your honor,” announced Squire Mason with the air of a Stephen A. Douglas, “I have studied carefully the facts evidenced by The People’s witnesses and I have decided to close my case. We have proven the corpus delicti, the presence of the defendant at the scene of the crime, and the proceeds of it upon his person, thus showing his motive, and by many other conclusive items of circumstantial evidence, have established beyond peradventure that he is the murderer. There is no need to pile Ossa upon Helion. As the saying is, ‘Enough is enough.’--The People rest!--Let us hear what the defense has to say!”

Squire Mason looked pointedly at the foreman, who nodded slightly as if in approval of the prosecutor’s sentiments. Quite right. Enough was enough, and there was more than enough here. Anybody who had any doubt as to who had killed the hermit must be a blamed fool! All eyes turned irresistibly to Mr. Tutt, as the old lawyer, accepting the gage of battle, elevated himself by easy stages ceilingward like a retarded Jack in the Box.

“I move,” said he, “that your honor direct a verdict of acquittal upon the ground that there is no evidence sufficient to connect the defendant with the crime charged. Surely no court would permit a jury to take away a man’s life on circumstantial evidence of such an inconclusive character as has been introduced here!”

Judge Tompkins shook his head.

“I shall deny your motion, Mr. Tutt. There is, to my mind, abundant evidence, which if uncontradicted or unexplained, would warrant the jury in finding a verdict of guilty. Circumstantial evidence is often the most convincing evidence.”

The old lawyer bowed.

“I most respectfully and with the greatest deference to your honor’s judgment, except to your honor’s ruling.--Will your honor kindly instruct the jury that in denying my motion you do not indicate any personal opinion on your own part as to the defendant’s guilt or innocence and that your ruling is merely to the effect that there is enough evidence to put us on our defense?”

“That is so, gentlemen.--Proceed, Mr. Tutt.”

Judge Tompkins settled back in his chair expectantly. It was, so far as he could now see, a conclusive case of circumstantial evidence and he was anxious to learn how Mr. Tutt proposed to rebut it. He liked the old lawyer and watched him almost affectionately as the latter smilingly glanced over the rows of uplifted faces before him.

Now, Mr. Tutt always proceeded upon the theory that though a man might be down he was never out--at any rate until the verdict was rendered and the highest court in the state had sustained it; and following his usual tactics, instead of supinely awaiting his enemy’s attack, he boldly assumed the offensive and crashed through the hostile earthworks and entanglements without regard to the fact that he was leaving himself open to the danger of being cut off in the rear. In other words, although he knew that the most superficial examination of the photographs of the shanty’s interior would show that the hermit’s clock had stopped and that consequently his claim that the murder had occurred at four o’clock when Skinny was a full mile distant was baseless, he nevertheless plunged right ahead as if the fact of the clock having stopped was never going to be discovered at all. Furthermore, he had the audacity to attack the Squire’s good faith and general honesty and so pave a way for the possible future suggestion that maybe the old fox had fixed the clock himself when he had gone to the hermit’s shanty on the afternoon of the homicide,--for the very purpose of destroying Skinny’s perfectly good alibi! And he did this all on the basis of the hundred dollars in bills found in the hermit’s vest pocket!

First, said he, his client was known to be one of the most gentle and peaceable of human beings.

Second, he had an absolutely good alibi--as he was far away from Turkey Hollow at four o’clock when, as the jury already knew, the murder had taken place.

Third, the prosecution was not brought in good faith since this had been perfectly well known to Squire Mason from the beginning. This was the first time the defendant had ever heard the evidence against him. He had never been given any opportunity whatever to show--as he could have done with the utmost ease--that he could not possibly be the person who committed the homicide. Had Squire Mason called before the Grand Jury the witnesses whom he, Mr. Tutt, was about to call before them this indictment would never have been found, for they would have demonstrated with mathematical certainty that at the precise hour this unfortunate man met his death James Hawkins was a mile away.

At this several members of the jury looked inquiringly towards Squire Mason, who sniffed contemptuously and glowered at Mr. Tutt with hardly concealed malevolence. An alibi, pointed out the lawyer, was the best possible defense, because it was the only defense that proved conclusively that the defendant must be absolutely innocent--for nobody could be in two places at the same time. Now, while it might be true that Hawkins at some time or another had had on a pair of boots with soles like the prints in the potato patch, (1) it had not been shown when in fact the prints had been made, whereas (2) he--Mr. Tutt--would clearly, absolutely, irrefutably, legally, morally and in every other way, prove, demonstrate, and substantiate that, even if Hawkins had been near the shanty that afternoon, he must have left there long enough before the murder to walk from Turkey Hollow to Pottsville and arrive there at four o’clock. All this Mr. Tutt got off exultantly, triumphantly, grandiloquently, in his best “whoop-la” manner, keeping one eye meanwhile upon his antagonist to see how he would take it.

“Why?” he demanded in tones like those of Amfortas in the Chapel Scene of Parsifal, “why _had_ Squire Mason concealed from the Grand Jury--and, he might add, from his listeners themselves--this all important and controlling fact? Was it not the duty of the public prosecutor to conserve the rights of every accused? Was not, in fact, a district attorney who deliberately withheld vital information--which in truth would conclusively establish a prisoner’s innocence--from the public tribunal of which he was the adviser, and sought to secure the prisoner’s conviction of crime--knowing him to be blameless--was not such a man guilty of malfeasance in office--if not of worse things? Was he not a thief, liar, poltroon, rascal, knave, rogue, scoundrel, scamp, scalawag, miscreant, villain, crook, cad, shyster, trickster, renegade, caitiff, rapscallion,--no better than a murderer himself? Eh, what? Wasn’t he? Let them answer to their own souls!” And as Squire Mason took all this dose with only a feeble “I protest--I object!” turning white meanwhile, it dawned upon Mr. Tutt that possibly what he said was true, and that not only Mason _was_ a scamp, etc., etc., but that mayhap, after all, the alibi _was_ a good one,--if only it could be proved to be so! Look at him! Pale, shrinking, guilt pictured in every feature!

“Bang!” went Judge Tompkins’ gavel.

“Mr. Tutt!” interrupted his honor with severity. “Your language is highly unbecoming. Your attack upon the prosecutor of this county--made in your opening without the slightest evidence to support your accusations--is most improper. At the right time I shall instruct the jury how to deal with it. You will kindly confine yourself to what you intend to prove----”

“But I do intend to prove it!” replied Mr. Tutt in a voice trembling with carefully simulated resentment and indignation, now fully satisfied not only that he had got Mason’s number but that the alibi was really good. “I intend to prove it! And that this man Mason is what I have stigmatized him as being.”

“We are not trying Squire Mason!” retorted his honor hotly. “Any more than we are trying you. Proceed and confine yourself to the facts which you expect to establish.”

Now, Mr. Tutt had “felt his way along,” as he would have said, and, having felt it a certain distance, he had gradually become convinced that he had inadvertently stumbled upon a great truth. There was nothing to account for this except whatever significance might be attached to the squire’s demeanor. As the diplomats say, the situation had not changed. Nevertheless, into the old lawyer’s veins there oozed a celestial ichor which put him all aglow,--made him the same old “battling Tutt” of his police court days fifty years before. It may have been only a subtle sensitiveness telling him that, if the Squire were agitated, to that extent at least should he himself be confident, if the Squire were depressed by so much should he be elated, but it was probably something deeper than that and akin to the instinct of the sailor who in the midst of the tempest knows that the storm is nearly over,--a lightening of the spiritual barometer, a consciousness of the stealthy approach of dawn when the night seems darkest.

So Mr. Tutt, having charged the Squire with being every kind of a crook set forth as a synonym for the word rascal in the Century Dictionary, Roget’s Thesaurus, and all the other handbooks used by sterile authors, boldly alleged that at the proper time he would show him fully up, have him disbarred and mayhap cast into prison, and, having described exactly what he purposed proving and what he knew he could prove, decided to take a chance and guess a little as to what he was not by any means so sure of.

He had, he declared, proven by his cross-examination of the witness Emerson that the murder was committed at exactly four o’clock,--a fact which Squire Mason had deliberately attempted to conceal from them. Now why had the wily and unscrupulous prosecutor sought to leave the hour of the crime in doubt? Obviously because he knew that only by so doing could he hope to convict the defendant. And then Mr. Tutt--borne along on the wings of a divine afflatus coming whence he knew not--and for no reason save that he felt “full of beans”--decided to try to throw a scare into the district attorney on the chance of his really having something on his conscience.

If, he threatened, after he. Tutt, should have established to their satisfaction that Hawkins was in Pottsville at four o’clock the prosecutor should then in desperation turn about and for the purpose of invalidating the alibi seek to attack his own witness’ testimony to the effect that four o’clock was the hour of the murder, then, oh then! he would a tale unfold that would harrow up their souls, freeze their adolescent blood, and make their hair stand on end, etc.;--for Mr. Tutt, emboldened by the angel who at times whispered in his right ear or the little devil that at others murmured in his left had in the twinkling of an eye formed the sudden and definite resolution to accuse Squire Higgins,--if necessary,--of having deliberately stopped and turned back the hands of the hermit’s clock himself. Of course, if one stopped to think it over, it was a ridiculous supposition, but Mr. Tutt knew that no argument is too absurd to advance before a jury with some hope of success; and this wasn’t even an argument, it was merely an excuse for an accusation. He might get away with it,--“You never could tell!”

So Mr. Tutt, having concluded his address with an encomium upon the virtues of Skinny the Tramp in which he ranked him well up among the heroes of Plutarch and the Fathers of the Republic, proceeded to summon to the stand eight worthy inhabitants of Pottsville, each and every one of whom swore positively and convincingly that on the afternoon of the murder Skinny had entered the door of Colson’s grocery store almost exactly at four o’clock, and that their reason for knowing this to be so was that just as Skinny came in, the barber,--someone having called attention to the fact that it was time for him to open up,--had got up and gone out. All were accordingly able to swear positively to the time and to give a natural and convincing reason for their ability to do so.

But the calling of these witnesses to the stand gave Squire Mason the opportunity to drive in on cross-examination all the most damning facts about Skinny’s appearance and admissions at the time.

Hadn’t the tramp’s hands when he came in, he shouted, been smeared with blood? Wasn’t he panting, exhausted, excited? Didn’t he try to run away as soon as the news of the murder reached the town? Didn’t they find his pockets full of gold pieces--of the same date as the one in the dead hermit’s hand? Didn’t they recognize his pipe that he had left on the shanty table? With one accord they all admitted it.

Then Squire Mason went a step further and to everybody’s astonishment demonstrated that he possessed a very ingenious fancy. For he developed a romantic theory about a rainbow and a crock of gold which came nearer to being true than he had any idea of.

They’d all known Skinny the Tramp quite some time, hadn’t they? Ever since he was a young feller? Sure--you bet! Ever notice anythin’ he said partic’ly--what he meant was, did Skinny seem to have any partic’lar idee he was always harpin’ on. Well,--if they didn’t understand what he was drivin’ at--did Skinny ever say anythin’ in their hearin’ about rainbows? Oh, sure! He was always--ever sence he was a boy--talkin’ about tryin’ to find a pot of gold at the foot of a rainbow.--Sure! He was always talkin’ about that! They hadn’t grasped the purport of the Squire’s question. Why, there was one time Skinny had harangued a big crowd on that subject for over half an hour down to Somerset Corners--night of a lodge meetin’.

Then Squire Mason, lowering his voice to an intense tremulo, would ask each witness whether he had not noticed on the afternoon of the murder, just after the shower, a rainbow, one of whose arches rested in Turkey Hollow! And when any one of them confessed that he had done so--as did in fact several--the prosecutor looked hard at Skinny--and the audience sucked in its breath and felt a delicious creepy sensation around the small of its back. Gosh! The Squire was a shrewd feller! It took brains to think of an argyment like that. And eye met eye significantly, and chin whisker wagged at chin whisker with deep appreciation of the squire’s subtlety.

There was no doubt but that the prosecutor, in spite of his personal unpopularity, had in the opinion of those in the court room scored a very neat point. It was all very well for Mr. Tutt by his redirect to call attention to the absurdity and unlikelihood of a murderer immediately after the homicide strolling unconcernedly into a grocery store where he was well known, bearing upon his person all the evidences of his crime. It might be kind o’ foolish, but then--Skinny the Tramp was kind o’ foolish. The rainbow theory of motive more than counterbalanced the obvious recklessness of such a performance. If Skinny, guided to the scene of his crime by the rainbow, had murdered the hermit in order to get his gold, it was quite in character that he should have done afterwards what obviously he had done. You might as well ask--as Mr. Tutt did ask--why he hadn’t changed his boots? To which Squire Mason had replied that he hadn’t changed them for the simple reason that they were all he had,--and if murderers never did anythin’ but what was wise and prudent you’d never ketch any of ’em. And at this retort the chin whiskers on the front of the jury wagged again. No, on the face of it--except for the alibi--things looked very bad for Skinny the Tramp; and Mr. Tutt knew that his alibi, as it stood, wasn’t worth a tinker’s damn! Squire Mason had only to hand the photograph to the jury and call its attention to the fact that the clock had stopped and all would be over. Yet Mr. Tutt, buoyed up by a mysterious confidence, which had its basis in the prosecutor’s uneasiness, bore himself bravely in the face of all his difficulties.

The last witness to the alibi gave his stammering testimony, was cross-examined, redirected, recrossed and excused. The court room clock pointed to half after twelve. The crucial moment of the trial had been reached. Skinny’s alibi stood--swaying to be sure--but still in the perpendicular. If the case should be closed then and there it would remain erect and Skinny would doubtless go free, but if the squire so much as pulled out a single brick, gave it the tiniest push, by calling the jury’s attention to the fact that the hermit’s clock was not going at the time of the murder the alibi would fall with a crash and Skinny would pay with his life. What was the squire going to do?

“Well, gentlemen,” remarked Judge Tompkins. “What are your desires? Does the defense rest?”

Mr. Tutt hesitated. His only possible remaining witness was the defendant himself. He would, of course, gladly rest his case if the prosecutor would do the same thing. But Squire Mason gave no indication of what his intentions in that regard might be.

“If your honor please,” he said, “the usual hour of adjournment is nearly at hand. May I suggest that we take a recess until one-thirty in order that I may have time to review the evidence? It is my present intention to rest my case upon the alibi which has been so clearly established and to call no further witnesses, but I should like an hour’s time to consider the matter.”

“That seems reasonable,” agreed Judge Tompkins. “Is that satisfactory to you, Mr. District Attorney?”

The squire half arose from his chair. But before he could make reply the legal earthquake--of which Mr. Tutt had remained in deadly fear ever since Mr. Pennypacker had given his testimony--occurred. The alibi shivered at its top like a tree under the woodsman’s ax, hung for a moment in trembling equilibrium and crashed to the ground.

“Before we adjourn fer dinner,” remarked the foreman, “I’d like to take a look at that picter o’ the inside o’ the shanty. I want to see suthin’.”

Mr. Tutt turned sick. Forcing his features into a distorted smile he said with an assumption of impulsive eagerness:

“By all means!--Squire Mason, will you kindly hand Exhibit F to Mr. Sawyer?”

And then the wily squire, having patiently awaited this exact moment for three whole days, bent over and lifted a package from beneath his desk--precisely as Mr. Tutt had anticipated--announcing dramatically:

“I suttinly will. An’ as I regard Exhibit F as the most important piece of evidence in the case I’ve had fifteen copies made of it,--one for the judge, one for each juryman, one for the defense and one for myself. Here they be!”

There was a ruffle of excitement as the jury scrambled for their photographs--destined in the succeeding years to decorate twelve parlor walls in as many Mohawk farmhouses--along with the stand of wax flowers purchased by Aunt Hetty at the Centennial Exhibition in 1876, the picture of Niagara Falls done in real cork, and the sampler worked by Grandma Harrington when she was a little girl. Each juror grabbed his photograph and hunched back in his seat to see what he could see. Then the foreman remarked with the air of a Sherlock Holmes addressing his dear Watson:

“Accordin’ to the evidence this here picter was took at six o’clock in the afternoon and the plate was exposed ten minutes. Now if the clock in the shanty had been goin’ you’d natcherly expec’ the picter to show the hour hand pointin’ at six and the minute hand blurred. But both hands is perfectly distinct and pints to four o’clock. Now it ’pears to me as if this clock must ha’ stopped--no one knows when,--an’, if it wasn’t goin’, of course Emerson couldn’t say when it was that he went into the shanty, and nobody knows when the hermit was kilt. Ain’t thet so, jedge?”

In the silence which followed this entirely logical and demolishing argument the only sound to be heard was the ticking of the official timepiece on the court room wall, until Judge Tompkins said in a constrained tone and with a glance full of meaning at Mr. Tutt.

“The foreman has pointed out a fact of considerable significance. But of course the matter will be one for discussion in the jury room, if the case goes to the jury. At all events we will now take the customary adjournment until half past one o’clock.”

The ax had fallen. The jig was up. The defense was doomed. The knell had sounded for Skinny the Tramp. The poor old alibi was dead, ready to be carried out and buried. And so, almost was Mr. Tutt, who sat head in hands alone in the stifling court room, gloomily pondering upon the manifold changes and chances of this mortal life. He was up against it. Without Emerson there was no possibility of eliciting any new fact,--if any there were. Even with Emerson there was only a conjectural conceivability of so doing. Further examination might or might not benefit the defense,--the probabilities being decidedly against it. And Emerson had utterly disappeared; Mr. Tutt’s hourly telephone messages to Orient Mills only elicited the invariable reply that he had not returned to work, that nobody had the remotest idea where he was and that the subpena was there waiting for him all ready to be served when he turned up, if ever he should.

Mr. Tutt’s brain was working as it had rarely worked before. It fairly seethed as he considered every possibility of escape, no matter how remote. Should he put Hawkins upon the stand? With the alibi destroyed a conviction seemed inevitable unless the defendant made some sort of an explanation of the evidence against him. But Skinny’s was so lame as to be almost worse than no defense at all, and on cross-examination the squire would certainly make mince meat of him.

Not that what Skinny had told him might not be true, but nobody would believe it. It was so extremely simple as to be childish--merely that he had not done it! No one better than Mr. Tutt himself knew the immense disadvantage under which even an innocent defendant labors under cross-examination. It is merely a bull baiting. Ignorant, stupid, uneducated, the ordinary accused in a criminal case is no match even for a tyro of a prosecutor. Often he does not even understand the meanings of the questions put to him. And he must answer categorically--yes or no. With an unscrupulous district attorney the prisoner on the witness chair can only deny the accusations, often unfounded, that are hurled against him one after the other and which the jury accept as unqualifiedly true. Better for him the ancient law that as an interested party he could not testify in his own behalf. Yet to-day a defendant must testify or the jury will assume him guilty as a matter of course. No, if Skinny took the stand they would eat him alive. He would be a gone coon. And if he didn’t take the stand he would be a gone coon. He was a gone coon either way,--damned if he did and damned if he didn’t.

As to Emerson, no judge in his senses, least of all a wise old bird like Tompkins, J., was going to adjourn a murder trial--right in the middle of it--in order to let one side chase up a witness who had been fully examined and told he could go away--simply because one of the lawyers thought he’d like to ask him another question. It wasn’t done. If it were done, trials would never come to an end,--and half the murderers would get off.

Beside him Skinny Hawkins, his client, was quietly eating his lunch, consisting of a couple of sandwiches and a big doughnut, sent over from the Phoenix House by “Ma” Best. It was a safe bet that at that time to-morrow he would be awaiting the sentence of death. Did he appreciate the situation? Was he cognizant of his peril? Certainly he gave no indication of it. Unexpectedly Skinny raised his faded blue eyes to those of the old lawyer and asked:

“Mr. Tutt, do you believe anythin’ ever dies?”

Mr. Tutt pulled himself together sharply.

“Of course not!” he replied confidently. “Of course not!”

“Then it’s all right--anyway!” said Skinny the Tramp.

We have sometimes felt constrained to write an essay, to be entitled “The Menace of the Probable,” the thesis of which will be that it is the improbable which usually happens, and explain why. The axiom that “fact is stranger than fiction” is based upon this truism. All of life is centered around a struggle to make ourselves and everything about us exceptions to the general rule. We are all striving for the unusual, the extraordinary. The probable is the very last thing that we want; its menace is our Nemesis. So we don’t look for it; our minds jump to the unlikely. This is the more natural since the “element of uncertainty” in human affairs makes the improbable quite probable, if you see what we mean. As Aristotle says: “Better a probable impossibility than an impossible probability.” Thus the improbable--and hence the probable--thing with regard to the vanished Emerson was that he had unexpectedly received word that he had been made the legatee of a million taels by a Chinese nobleman or something like that. This was the reason that Mr. Tutt had sent his telegram to New York--so that his detectives could search all the unlikely places in Northern New York, Canada, and eventually, Alaska, at twelve dollars fifty per day and expenses. He knew nothing would come of it--even if he secured a six months’ adjournment. He had never yet got anything from a detective agency except a bill. The probabilities were that some improbability had happened--just as it always did and does that Emerson had joined a traveling circus,--run away with a minister’s wife, gone into the movies, or been murdered himself. Under these circumstances the detectives would detect--perhaps. That was their line--the probable improbability; not the improbable probability. To foresee or deduce that requires genius. None of which paradoxical and specious reasoning of Mr. Tutt’s at all helped the situation, the gist of which was that Skinny was going to be hung.

Mr. Tutt, having reassured the tramp with regard to the future of his immortal soul, took up his hat and started for the Phoenix House. If he was going to die he purposed to die game; to die game a man must live; to live one must eat; hence, the better one ate the better one died. For this reason he purposed to do execution in the best possible manner upon one of “Ma” Best’s dollar dinners. That is, he had intended to do so until turning the corner of the court house he walked into Mr. Charles Emerson, who was nonchalantly sitting on an empty lemon crate smoking a cigar.

Mr. Tutt punched himself violently in the ribs. Was it possible? Emerson, seeing the distinguished attorney regarding him with eyes starting from their sockets, slowly arose.

“Don’t move!” shouted Mr. Tutt. “As you were!--

‘Be thou a spirit of health or goblin damned, Bring with thee airs from heaven or blasts from hell, Be thy intents wicked or charitable----’

don’t you dare to stir until I get the sheriff and clap a subpena on you! We’ve been hunting all over Somerset County for you!”

“Well, I’ve been here ever since yesterday afternoon,” answered Emerson blandly.

“Sit still!” warned the lawyer. “Don’t budge! If you do I won’t answer for the consequences!”

Then, seeing Sheriff Higgins about to enter the drug store, Mr. Tutt hurried down the street, summoned him forth, and conducting him around the corner, said:

“Sheriff, Mr. Emerson is with us again.”

“Ye don’t say now!” ejaculated Higgins.

“Yes,” asserted Mr. Tutt. “But being a witness for the prosecution it would not be quite proper for me to talk to him. Do you think it would be possible for you to casually ascertain from him a little more fully what he knows about the hour of the murder?”

“Well----” hesitated the sheriff.

“But you’re a sacred camel,” urged Mr. Tutt.

* * * * * *

The fact that Emerson also was a camel and that all camels are proverbially thirsty animals may have accounted for Squire Mason’s failure to learn of the lost witness’ reappearance before court opened. While the worthy Hezekiah during the progress of the trial had at times felt momentary twinges of apprehension--not, of conscience--but lest his motives and conduct of the prosecution should be impugned, he now felt secure. The only person in the world--as he thought--whose testimony could possibly subject him to censure had providentially absented himself. It made no difference whether Skinny took the stand or stayed off it. His denial wouldn’t affect the strength of the case in any way,--would amount to nothing in view of the blood on his hands, the marks of his shoes, the pipe, the twenty five-dollar gold pieces and the fact that Emerson had trailed him straight to Pottsville within fifteen minutes.

So the Squire felt pretty fine and the dome on the Capitol at Albany shone brightly and near at hand. He had old Tutt down and out! Even the New York papers would probably carry a big story about the conviction. In the background of his crafty mind lurked, as well, the realization that in case of a conviction there would be no one to demand the payment of Skinny’s semiannual interest. So the Hon. Hezekiah strolled back into the court room, picking his teeth with a good deal of satisfaction.

It was jammed as usual,--the audience breathlessly awaiting the last act of the great free show. There sat the jury looking like mutes at a funeral, there sat Skinny, his eyes wandering vaguely around the room, there sat Mr. Tutt, calm, alert, stern, tense. Hezekiah didn’t like the way he looked. Anyhow, he’d beaten him to a standstill,--a frazzle! Then the clerk having called the roll of the jury, the judge directed that the trial proceed and Mr. Tutt arose--with just the least shade of melodrama.

Through the high windows Skinny the Tramp looked past Mr. Tutt’s tall, lank figure out into the world of freedom, where the great elms gently swayed in the sunlight, and the white spire of the Baptist meeting house tapered towards the blue zenith. He, the helpless victim, had less knowledge of what was going on than any of them. After all, he perhaps had less to lose than any of them. Then a gust stronger than the others bowed the rustling top of the elm nearest the court house and--slowly the cock upon the steeple veered round and pointed in the opposite direction!

“Mr. William Gookin--please take the witness chair!” said Mr. Tutt.

“Toggery Bill,” Pottsville’s merchant prince, arose from one of the nearer benches and ascended the rostrum with an air of importance. Mr. Tutt handed him the five twenty-dollar bills found in the hermit’s waistcoat pocket.

“Mr. Gookin,” he remarked. “I show you People’s Exhibits numbered Seventeen to Twenty-one, inclusive, and ask if you can identify them?”

Toggery Bill carefully examined the bills and replied that he could.

“How?”

“I’ve got my mark on each one.”

“Show the jury.”

Mr. Gookin pointed out with pride the words “Pottsville Dry Goods & Tailoring Emporium, May 16, 1920,” printed in small red letters by means of a rubber stamp, on each one.

“Now,” continued Mr. Tutt quietly. “Please tell us when you last saw them?”

“The mornin’ of the murder,” answered “Toggery Bill.” “May seventeenth, nineteen hundred and twenty!”

“Where did you see them?”

“In my store.--I gave ’em to Squire Mason about eleven o’clock and I hold his note for a hundred dollars for the loan.”

The effect of this simple announcement was extraordinary, for while it created complete bewilderment it suggested the weirdest possibilities. Here was a murdered hermit with a hundred dollars in his pocket which, within five hours, had been in the possession of the very man who was now prosecuting the person charged with the homicide. It was all very confusing to the bucolic mind! Some of them even thought for a moment that Mr. Tutt had proved that Squire Mason had committed the murder. Indeed, the Squire was almost as pale as if he had. What was old man Tutt goin’ to try to get on him?--He did not have to wait long to find out.

“Mr. Mason--please take the witness chair!”

With a lump in his gullet of the size and dryness of a golf ball Hezekiah, amid the poorly controlled comments of the spectators which the sheriff for some reason made no effort to suppress, his diaphragm quivering with anxiety as to what all this might mean, climbed up into the public eye and was sworn.

“Mr. Mason--you have heard the testimony of the last witness--Mr. Gookin--is it correct?”

“Yes,” conceded Hezekiah thickly.

“What use did you make of these bills?”

The Hon. Mason snapped his jaws defiantly together. Then he turned to Judge Tompkins.

“I don’t see what that’s got to do with anything, judge,” he complained. “Do I have to answer?”

“It’s perfectly relevant,” returned his honor. “Do you mean to say that you think how that money got into the possession, and upon the person, of the deceased isn’t of importance! Of course it is!--Answer.”

Mason bowed to the inevitable.

“I give it to Skinny--the defendant--in my office at half past eleven,” said he.

A murmur rose from the benches. This was some evidence! The Squire was makin’ himself the chief witness for the prosecution. What was coming next? But nothing came--from Mr. Tutt, who merely bowed.

“Thank you,” said he quietly. “That is all.”

The prosecutor was about to return to his desk before the jury box, when Judge Tompkins took the hand in the matter which Mr. Tutt had anticipated that he would.

“Hold on a minute!” directed his honor with a perplexed air. “I don’t understand. Why did you give the defendant a hundred dollars on the morning of the murder?”

“’Cause he asked for it?” returned the squire shortly.

“Did you owe it to him?”

“Why--no,” answered the squire. “That is, not exactly. It weren’t a debt. It was interest due.”

“Due on what?” demanded the judge irritably.

“On his trust fund----” reluctantly admitted Mason. The judge peered at him sharply over his spectacles.

“Who is the trustee of the fund?”

There was a long pause.

“I am,” yielded Mason finally.

“Do you mean that you are the trustee of a fund of which this prisoner, whom you are trying to convict of murder, is the beneficiary?” cried Tompkins, leaning forward.

“I am,” assented Mason faintly.

There was a chorus of mingled hisses and jeers from the benches, but Judge Tompkins took no notice of it.

“This is a most extraordinary situation!” he declared. “However--we will not deal with it now. Proceed with the trial.”

Mason crept back to his seat. It was clear that the judge had it in for him,--but that needn’t affect the outcome of the trial. Then he got another jar--this time an even heavier one.

“Charles Emerson,” murmured Mr. Tutt sweetly, “please take the stand--I have an additional question I wish to put to you in cross-examination.”

There was nothing in Emerson’s recall to excite any special interest among the spectators, since few, if any, of them knew that he had gone away. But there was much in Squire Mason’s demeanor as the witness made his way forward to give pause to those who watched him. Something had happened to him. He had shriveled--nought else. With his eyes shifting uneasily the district attorney sat fumbling with his papers, refusing to meet those of the mill hand. Then he arose and said in a husky voice which held no conviction:

“I object to the recallin’ of this witness. He’s been examined once.”

“I overrule your objection--Mr. Tutt may interrogate him as fully as he wishes,” retorted Judge Tompkins sharply. He turned to Emerson.

“Where have you been? I understood you had disappeared.”

Emerson smiled sheepishly.

“I’ve been here right along,” he answered, “’cept just after I give my testimony. You see, I took a job up to Orient Mills and signed on the next mornin’, but I got thinkin’ about the case an’ I decided to come back.”

“Why?” demanded his honor.

“Well, jedge,” explained Emerson, “y’see I figured out that mebbe my evidence might turn out to be pretty important, for I heard over to the Phoenix House how Skinny was goin’ to try to prove he was in Pottsville at four o’clock. Now I knew the murder was done jest about that time. An’ I testified to it here, but----” and he spoke very slowly and distinctly--“nobody,--neither Squire Mason nor Mr. Tutt,--asked me much about it--and I got thinkin’----”

“I object t’ all this!” again interposed Mason. “This ain’t any proper way for him to testify--tellin’ about what he thought, an’ all.”

“That is quite true,” agreed his honor. “Mr. Tutt, you had better question the witness in the regular way.”

Mr. Tutt bowed. He too had observed that the weather cock had veered.

“Anyhow I come back on the next train,” finished Mr. Emerson, “an’ I’ve been here right along.”

“Mr. Emerson,” Mr. Tutt began, his voice trembling slightly from the excitement under which he labored, “you have testified that when you entered the hermit’s shanty the clock pointed to four o’clock.”

“Yes,” answered the witness, “it did.”

“You have also testified that you returned later on with Mr. Pennypacker, when he took his photograph. Did you notice the clock at that time?”

“I did.”

“At what hour was it pointing?”

“Four o’clock.”

“Was it going at that time?”

Emerson shook his head.

“No,” he replied. “It warn’t.”

Mr. Tutt’s heart gave a flutter, but he kept bravely on without batting a lid.

“But you testified positively that you knew it was four o’clock when you went there the first time.”

“Yep--yes, I mean,” replied the witness firmly. “I know it was four o’clock.”

Mr. Tutt was now on terra firma, for he knew that whatever the answer might be--it was bound to be favorable. He was safely within the conservative rule that you must never ask a question unless you are sure that the answer cannot hurt you. But he did not know what the answer was going to be, had no idea of what fact he might be about to elicit. So that there was a delicious uncertainty about the next inquiry, upon which he fully realized that he staked his whole case.

“How do you know it was four o’clock?” he demanded, with a note of triumph and the air of being now about to disclose something which he had known perfectly well all along but which he had withheld until this, the exact psychological moment. “Tell the jury how you know, Mr. Emerson!”

The jury fully apprised of the fact that upon the answer hung the validity of Skinny’s alibi focused their eyes on the lumberman’s honest face. Even Judge Tompkins could not refrain from turning half way round and pulling his chair towards the witness box so as not to lose a word. By common consent, by instinct, and in fact, this was the apex, the climax, the denouement of the trial of Skinny the Tramp. Would Emerson make good--or wouldn’t he?

“Fer one thing because I kin almost swear I heard the clock tick and saw the hand move,” answered Emerson positively.

The jury looked at one another inquiringly. That was pretty strong testimony! To recall that you heard a clock tick!

“Are you quite sure?” cautioned Judge Tompkins. “Remember that this is a very important bit of evidence.”

“Pretty near!” answered Emerson. “I’m satisfied fer myself that I did, but this bein’ a court o’ law, mebbe I’d oughter be more certain to swear to it. Anyhow that is how I remember it. I testified before how I went into the shanty and saw the hermit lyin’ with his mouth covered with blood and how he died while I held his head in my hand. If you’d been there, you’d ha’ remembered it all right, I reckon. But nobody axed me if I knew the clock was goin’. Wal, it was this way. When I lifted the hermit’s head an’ looked in his face the shanty was all still,--’ceptin’ fer three things.”

He paused, almost as if for effect.

“What were they?” softly demanded Mr. Tutt.

Emerson lowered his voice.

“The first was the kind of cluckin’ sound the hermit’s breath made goin’ in and out through his mouth on account of the blood. His eyes was half open but they didn’t see none. He was just passin’ out. It was so quiet I felt real creepy--all alone with him dyin’. But what skeered me most was an enormous great moth--the biggest I ever see--that went flap-flap-flap agin’ the winder tryin’ to git out. It flapped and flapped and I thought it would stun itself agin’ the glass. An’ ez I knelt thar holdin’ the hermit’s head, listenin, to his breathing and to that big gray moth flappin’ over at the window, I kin most swear I heard the clock tick--an’ saw the minute hand slip to four o’clock--and then all of a suddint the whole shanty went still. The hermit didn’t breathe no more, the moth flew out the door,--an’----”

“Well?” whispered Mr. Tutt.

“An’ the clock stopped!”

In the silence that followed there was no one in the court room that did not mark the ticking of the clock upon the rear wall. Each listener told himself that if necessary he could swear to it until his dying day. Then Mr. Tutt said, almost with unconcern:

“And did you tell Squire Mason all this?”

“Sure!” replied Emerson, looking the prosecutor full in the face. “I told him all about it that very afternoon!”

Judge Tompkins fixed the wretched prosecutor with a beetling eye.

“How do you reconcile the withholding of this very vital evidence from the jury?” he inquired in icy tones.

Mason, ivory white, attempted to rise, but collapsed weakly into his chair.

“I didn’t believe it!” he answered faintly. “It ain’t any part o’ my duty to have a witness tell fairy stories to the jury.”

“But in calling the witness you vouched for his credibility!” retorted Judge Tompkins with contempt.

“Only in so far as I brought out his testimony myself,” replied the Squire feebly. “I believed he was tellin’ the truth about findin’ the hermit still alive--and mebbe about the moth--but I didn’t believe--an’ I don’t believe now--an’ what’s more I don’t believe anybody else believes--that that partic’lar clock up an’ stopped the very moment the hermit died.”

He pressed his lips together resolutely.

Judge Tompkins turned a scornful shoulder to the now groveling Hezekiah.

“Mr. Emerson,” said he. “You have contributed materially by your testimony, given this afternoon, to our knowledge of the case. Have you any other means of knowing whether at the time you think you saw the hand of the hermit’s clock move to four o’clock it was then pointing to the correct time?”

“Yes, jedge, I have,” answered the witness without hesitation. “For just as the silence come in the shanty--when the hermit had died, and the big moth had flown out, and--the clock had stopped, the whistle over to Sawyer’s Steam Lumber Mill blew four o’clock.”

“I guess that settles _that_!” remarked the foreman, leaning back and wagging a confirmatory chin whisker.

“Did you tell that to Squire Mason?” inquired his honor scathingly.

“No,” answered Emerson. “I tole him it was four o’clock and how the clock stopped, an’ as he didn’t seem partic’larly interested ’bout the hour, I let it go at that.”

Those of our readers who perchance should happen to find themselves for a night in Pottsville or in any of the adjacent towns should not fail to elicit from the oldest accessible inhabitant the great story of the ripping up of Squire Mason by Lawyer Tutt in the latter’s closing address to the jury, and how the governor, upon the recommendation of Judge Tompkins, promptly removed him from office, thus blasting a promising political career. For Mr. Tutt, by one of those freaks of fortune which do occasionally occur, found himself in a position to make good on every one of the charges--both direct and indirect--which he had made against the prosecutor and to prove him in fact to be every one of all the varieties of crook, rascal and rapscallion that he had called him. And he somehow managed in addition to convince everybody--except possibly shrewd Judge Tompkins--that he had known all about everything from the beginning of the trial and that the whole Emerson business had been just a grandstand play carefully staged to give a proper theatrical effect to the final coup. Anyhow, according to general account, there wasn’t a thing left of Squire Mason when Mr. Tutt got through with him. He was flayed, disemboweled, torn limb from limb, drawn and quartered, and his various physical members, with their connective tissues, scattered broadside over Somerset County--to the great joy of the inhabitants thereof. And, what was of vastly more importance, Skinny the Tramp’s alibi was definitely, finally and impregnably established; so that when Judge Tompkins concluded his charge to the jury at a quarter past three o’clock on Friday afternoon everybody said it was all over but the shouting and most of them didn’t wait to hear the verdict.

Indeed, so confident was public opinion of an immediate acquittal that the sheriff didn’t even take Skinny back to the calaboose, but allowed him to smoke one of Mr. Tutt’s stogies right in the court room, while Judge Tompkins and the old lawyer strolled across Main Street to sit on the Phoenix House piazza until the jury should come in.

“Well, Mr. Tutt,” said his honor, as he politely declined one of the famous Wheeling corona-coronas, “I must congratulate you on a most adroit and effective piece of court room strategy. The way you held back and finally brought out the story of the clock was really masterly!”

Mr. Tutt smiled enigmatically.

“I took several chances in that case!” he admitted with a great deal more truth than his listener was aware of.

“However,” replied Judge Tompkins, “you didn’t take anywhere near as many as our friend the district attorney. Unofficially--not for publication, and in the language of the metropolis from which you come,--in my opinion, he’s some crook.”

“Unofficially and confidentially,” returned Mr. Tutt, “I entirely agree with you. Speaking mildly, he’s got by long odds the most perverted sense of fair play that I have ever come across.”

“That’s all the good it will do him,” said his honor. “If I’m not mistaken that jury will acquit inside of fifteen minutes.”

“You never can tell,” murmured Mr. Tutt. “It’s fourteen minutes since they went out already.”

“Anyhow it’s only a question of a very short time--your alibi was conclusively established.”

“Yes,” assented Mr. Tutt, “but very likely there’s some rube on that jury that doesn’t know yet what the word means.”

As if in curious confirmation of Mr. Tutt’s cynical opinion of the cerebral equipment of his fellow human beings the sheriff at this moment appeared from the direction of the court house.

“Jedge,” said he, “the jury allow ez how they’d like to have some supper. Shall I bring ’em over or hold ’em awhile?”

“What do you think, Mr. Tutt?” inquired his honor.

“When a jury wants its supper,” answered the old lawyer, “always give it to ’em--and send ’em in a box of cigars besides.”

Judge Tompkins laughed.

“All right, sheriff,” said he, “give them their supper, by all means. Strange,” he added. “I thought surely they’d agree almost immediately!”

“They were doin’ a powerful lot of talkin’ the last time I went into the jury room,” remarked the sheriff. “You could hear ’em holler way acrost the road.”

He vanished into the court house and presently returned leading the jury like an ancient bell weather down the steps and towards the hotel. The judge and Mr. Tutt eyed them intently for the purpose of deciphering if possible the thoughts concealed behind their inscrutability. But no more expressionless set of men ever ascended the piazza steps of the Phoenix House than the jury to whose keeping had been entrusted the life of Skinny the Tramp.

“Hanged if I can tell a thing from looking at ’em,” admitted Judge Tompkins.

“I can,” countered Mr. Tutt. “They’re hungry.”

It appeared in due course that this particular jury was more than ordinarily hungry, for its members not only consumed the entire official menu but insisted on eating three plates apiece of “Ma” Best’s griddle cakes; after which they sat on the piazza for an entire hour in replete silence while digestion took its course; and it was eight o’clock and after repeated urgings on the part of the sheriff before they reluctantly consented to return to the court house.

“It’s only a matter of form,” opined Judge Tompkins to Mr. Tutt. “They’ll agree now in no time.”

“H’m! You never can tell!” answered Mr. Tutt, as he excused himself and went upstairs to refill his pockets with stogies.