by Leo Tolstoy
The prosecutor, growling, began to make notes, and shrugged his shoulders in contemptuous surprise.
Next rose Maslova's lawyer, and timidly and falteringly began his speech in her defense. Without denying that Maslova participated in the theft, he insisted that she had no intention of poisoning Smelkoff, but gave him the powder in order to make him sleep. When he described Maslova's unfortunate life, telling how she had been drawn into a life of vice by a man who went unpunished, while she was left to bear the whole burden of her fall, he attempted to become eloquent, but his excursion into the domain of psychology failed, so that everybody felt awkward. When he began to mutter about man's cruelty and woman's helplessness, the justiciary, desiring to help him, asked him to confine himself to the facts of the case.
After this lawyer had finished the prosecutor rose again and defended his position on the question of heredity against the first lawyer, stating that the fact that Bochkova's parentage was unknown did not invalidate the truth of the theory of heredity; that the law of heredity is so well established by science that not only can one deduce the crime from heredity, but heredity from the crime. As to the statement of the defense that Maslova was drawn into a vicious life by an imaginary (he pronounced the word imaginary with particular virulence) man, he could say that all facts rather pointed to her being the seducer of many victims who were unfortunate enough to fall into her hands. Saying which he sat down in triumph.
The prisoners were then allowed to make any statements they wished in their behalf.
Euphemia Bochkova repeated her statement that she knew nothing, had not taken part in anything, and persistently pointed at Maslova as the only guilty person. Simon only repeated several times:
"Do what you please with me, only it is all for nothing."
Maslova was silent. When asked what she had to say in her defense, she only lifted her eyes on the justiciary, looked around like a hunted animal, and immediately lowering them began to sob aloud.
"What is the matter?" asked the merchant of Nekhludoff, hearing a strange sound escaping the latter's lips. It was a suppressed sob.
Nekhludoff did not yet realize the significance of his present position, and the scarcely suppressed sob and the tears that welled up in his eyes he ascribed to the weakness of his nerves. He put on his pince-nez to hide them, and, drawing a handkerchief from his pocket, began to blow his nose.
His fear of the disgrace that would fall upon him if everybody in the court-room were to find out his conduct toward her stifled the struggle that was going on within him. At this time fear outweighed in him every other feeling.
CHAPTER XXII.
After the last words of the prisoners had been heard, and the lengthy arguments over the form in which the questions were to be put to the jury were over, the questions were finally agreed upon, and the justiciary began to deliver his instructions to the jury.
Although he was anxious to finish the case, he was so carried away that when he started to speak he could not stop himself. He told the jury at great length that if they found the prisoners guilty, they had the right to return a verdict of guilty, and if they found them not guilty, they had the right to return a verdict of not guilty. If, however they found them guilty of one charge, and not guilty of the other, they might bring in a verdict of guilty of the one and not guilty of the other. He further explained to them that they must exercise this power intelligently. He also intended to explain to them that if they gave an affirmative answer to a question, they would thereby affirm everything involved in the question, and that if they did not desire to affirm everything involved in the question, they must distinguish the part they affirmed from the part they disaffirmed. But, seeing on the clock that it was five minutes of three, he decided to pass over to a statement of the case.
"The facts of this case are the following," he began, repeating everything that had been stated over and over again by the defendants' attorneys, the prosecutor and the witnesses. While the justiciary was charging the jury his associates thoughtfully listened, and now and then glanced at the clock. They thought that although his charge was sound, i. e., as it should be, it was too long. Of the same opinion was the prosecutor, as well as all those connected with the court, including the spectators. The justiciary concluded his charge.
It was thought he had finished. But the justiciary found it necessary to add a few words concerning the importance of the power given to the jury; that it should be used with care, and should not be abused; that they had taken an oath; that they were the conscience of society, and that the secrecy of the consultation room was sacred, etc., etc.
From the moment the justiciary began to speak, Maslova kept her eyes on him, as if she feared to miss a word, so that Nekhludoff was not afraid to meet her gaze, and constantly looked at her. And before his imagination arose that common phenomenon of the appearance of a long absent, beloved face, which, after the first shock produced by the external changes which have taken place during the long absence, gradually becomes the same as it was many years ago--all the past changes disappear, and before the spiritual eyes stands forth the main expression of the peculiar spiritual individuality. This happened with Nekhludoff.
Yes, notwithstanding the prison garb, the bloated body and the high breast; notwithstanding the distended lower part of the face, the wrinkles on the forehead and the temples, and the swelling under the eyes, it was undoubtedly that same Katiousha who on Easter Sunday looked up to him, her beloved, with her enamored, smiling, happy, lively eyes.
"What a remarkable coincidence! That this case should be tried during my term! That, without seeing her for ten years, I should meet her here in the prisoner's dock! And what will be the end? Ah, I wish it were over!"
He would not yield to the feeling of repentance which spoke within him. He considered it an incident which would soon pass away without disturbing his life. He felt himself in the position of a puppy who had misbehaved in his master's rooms, and whom his master, taking him by the neck, thrust into the dirt he had made. The puppy squeals, pulls back in his effort to escape the consequences of his deed, which he wishes to forget, but the inexorable master holds him fast. Thus Nekhludoff felt the foulness of his act, and he also felt the powerful hand of the master, but did not yet understand the significance of his act, did not recognize the master. He did not wish to believe that what he saw before him was the result of his own deed. But the inexorable, invisible hand held him fast, and he had a foreboding that he should not escape. He summoned up his courage, crossed his legs, as was his wont, and, negligently playing with his pince-nez, he sat with an air of self-confidence on the second chair of the front row. Meanwhile he already felt in the depth of his soul all the cruelty, dastardliness and baseness not only of that act of his, but of his whole idle, dissolute, cruel and wayward life. And the terrible veil, which during these twelve years in such marvelous manner had hidden from him that crime and all his subsequent life, already began to stir, and now and then he caught a glimpse behind it.
CHAPTER XXIII.
The justiciary finally finished his speech and handed the list of questions to the foreman. The jury rose from their seats, glad of an opportunity to leave the court-room, and, not knowing what to do with their hands, as if ashamed of something, they filed into the consultation-room. As soon as the door closed behind them a gendarme, with drawn sword resting on his shoulder, placed himself in front of it. The judges rose and went out. The prisoners also were led away.
On entering the consultation-room the jury immediately produced cigarettes and began to smoke. The sense of their unnatural and false position, of which they were to a greater or less degree cognizant, while sitting in the court-room, passed away as soon as they entered their room and lighted their cigarettes, and, with a feeling of relief, they seated themselves and immediately started an animated conversation.
"The girl is not guilty, she was confused," said the kind-hearted merchant.
"That is what we are going to consider," ret
orted the foreman. "We must not yield to our personal impressions."
"The judge's summing up was good," said the colonel.
"Do you call it good? It nearly sent me to sleep."
"The important point is that the servants could not have known that there was money in the room if Maslova had no understanding with them," said the clerk with the Jewish face.
"So you think that she stole it?" asked one of the jury.
"I will never believe that," shouted the kind-hearted merchant. "It is all the work of that red-eyed wench."
"They are all alike," said the colonel.
"But she said that she did not go into the room."
"Do you believe her more than the other? I should never believe that worthless woman."
"That does not decide the question," said the clerk.
"She had the key."
"What if she had?" answered the merchant.
"And the ring?"
"She explained it," again shouted the merchant. "It is quite likely that being drunk he struck her. Well, and then he was sorry, of course. 'There, don't cry! Take this ring.' And what a big man! They said he weighed about two hundred and fifty pounds, I believe."
"That is not the point," interrupted Peter Gerasimovich. "The question is, Was she the instigator, or were the servants?"
"The servants could not have done it without her. She had the key."
This incoherent conversation lasted for a long time.
"Excuse me, gentlemen," said the foreman. "Let us sit down and consider the matter. Take your seats," he added, seating himself in the foreman's chair.
"These girls are rogues," said the clerk, and to sustain his opinion that Maslova was the chief culprit, he related how one of those girls once stole a watch from a friend of his.
As a case in point the colonel related the bolder theft of a silver samovar.
"Gentlemen, let us take up the questions," said the foreman, rapping on the table with a pencil.
They became silent. The questions submitted were:
1. Is the peasant of the village of Barkoff, district of Krapivensk, Simon Petroff Kartinkin, thirty-three years of age, guilty of having, with the design of taking the life of Smelkoff and robbing him, administered to him poison in a glass of brandy, which caused the death of Smelkoff, and of afterward robbing him of twenty-five hundred rubles and a diamond ring?
2. Is the burgess Euphemia Ivanovna Bochkova, forty-seven years of age, guilty of the crime mentioned in the first question?
3. Is the burgess Katherine Michaelovna Maslova, twenty-seven years of age, guilty of the crime mentioned in the first question?
4. If the prisoner Euphemia Bochkova is not guilty of the crime set forth in the first question, is she not guilty of secretly stealing, while employed in the Hotel Mauritania, on the 17th day of January, 188-, twenty-five hundred rubles from the trunk of the merchant Smelkoff, to which end she opened the trunk in the hotel with a key brought and fitted by her?
The foreman read the first question.
"Well, gentlemen, what do you think?"
This question was quickly answered. They all agreed to answer "Guilty." The only one that dissented was an old laborer, whose answer to all questions was "Not guilty."
The foreman thought that he did not understand the questions and proceeded to explain that from all the facts it was evident that Kartinkin and Bochkova were guilty, but the laborer answered that he did understand them, and that he thought that they ought to be charitable. "We are not saints ourselves," he said, and did not change his opinion.
The second question, relating to Bochkova, after many arguments and elucidations, was answered "Not guilty," because there was no clear proof that she participated in the poisoning--a fact on which her lawyer put much stress.
The merchant, desiring to acquit Maslova, insisted that Bochkova was the author of the conspiracy. Many of the jurymen agreed with him, but the foreman, desiring to conform strictly to the law, said that there was no foundation for the charge of poisoning against her. After a lengthy argument the foreman's opinion triumphed.
The fourth question, relating to Bochkova, was answered "Guilty," but at the insistence of the laborer, she was recommended to the mercy of the court.
The third question called forth fierce argument. The foreman insisted that she was guilty of both the poisoning and robbery; the merchant, colonel, clerk and laborer opposed this view, while the others hesitated, but the opinion of the foreman began to predominate, principally because the jury were tired out, and they willingly joined the side which promised to prevail the sooner, and consequently release them quicker.
From all that occurred at the trial and his knowledge of Maslova, Nekhludoff was convinced that she was innocent, and at first was confident that the other jurors would so find her, but when he saw that because of the merchant's bungling defense of Maslova, evidently prompted by his undisguised liking for her, and the foreman's resistance which it caused, but chiefly because of the weariness of the jury, there was likely to be a verdict of guilty, he wished to make objection, but feared to speak in her favor lest his relations toward her should be disclosed. At the same time he felt that he could not let things go on without making his objections. He blushed and grew pale in turn, and was about to speak, when Peter Gerasimovich, heretofore silent, evidently exasperated by the authoritative manner of the foreman, suddenly began to make the very objections Nekhludoff intended to make.
"Permit me to say a few words," he began. "You say that she stole the money because she had the key; but the servants could have opened the trunk with a false key after she was gone."
"Of course, of course," the merchant came to his support.
"She could not have taken the money because she would have nowhere to hide it."
"That is what I said," the merchant encouraged him.
"It is more likely that her coming to the hotel for the money suggested to the servants the idea of stealing it; that they stole it and then threw it all upon her."
Peter Gerasimovich spoke provokingly, which communicated itself to the foreman. As a result the latter began to defend his position more persistently. But Peter Gerasimovich spoke so convincingly that he won over the majority, and it was finally decided that she was not guilty of the theft. When, however, they began to discuss the part she had taken in the poisoning, her warm supporter, the merchant, argued that this charge must also be dismissed, as she had no motive for poisoning him. The foreman insisted that she could not be declared innocent on that charge, because she herself confessed to giving him the powder.
"But she thought that it was opium," said the merchant.
"She could have killed him even with the opium," retorted the colonel, who liked to make digressions, and he began to relate the case of his brother-in-law's wife, who had been poisoned by opium and would have died had not antidotes promptly been administered by a physician who happened to be in the neighborhood. The colonel spoke so impressively and with such self-confidence and dignity that no one dared to interrupt him. Only the clerk, infected by the example set by the colonel, thought of telling a story of his own.
"Some people get so accustomed to opium," he began, "that they can take forty drops at a time. A relative of mine----"
But the colonel would brook no interruption, and went on to tell of the effect of the opium on his brother-in-law's wife.
"It is five o'clock, gentlemen," said one of the jury.
"What do you say, gentlemen," said the foreman. "We find her guilty, but without the intent to rob, and without stealing any property--is that correct?"
Peter Gerasimovich, pleased with the victory he had gained, agreed to the verdict.
"And we recommend her to the mercy of the court," added the merchant.
Every one agreed except the laborer, who insisted on a verdict of "Not guilty."
"But that is the meaning of the verdict," explained the foreman. "Without the intent to rob, and without stealing any property--hence she i
s not guilty."
"Don't forget to throw in the recommendation to mercy. If there be anything left that will wipe it out," joyfully said the merchant. They were so tired and the arguments had so confused them that it did not occur to any one to add "but without the intent to cause the death of the merchant."
Nekhludoff was so excited that he did not notice it. The answers were in this form taken to the court.
Rabelais relates the story of a jurist who was trying a case, and who, after citing innumerable laws and reading twenty pages of incomprehensible judicial Latin, made an offer to the litigants to throw dice; if an even number fell then the plaintiff was right; if an odd number the defendant was right.
It was the same here. The verdict was reached not because the majority of the jury agreed to it, but first because the justiciary had so drawn out his speech that he failed to properly instruct the jury; second, because the colonel's story about his brother-in-law's wife was tedious; third, because Nekhludoff was so excited that he did not notice the omission of the clause limiting the intent in the answer, and thought that the words "without intent to rob" negatively answered the question; fourth, because Peter Gerasimovich was not in the room when the foreman read the questions and answers, and chiefly because the jury were tired out and were anxious to get away, and therefore agreed to the verdict which it was easiest to reach.