by Arthur Train
Now it is possible that even had Mr. Tutt put in no defense whatever the jury might have refused to convict, for there was a curious air of unreality surrounding the whole affair. It all seemed somehow as if-assuming that it had ever taken place at all-it had occurred in some other world and in some other age. Perhaps under what might have been practically a direction of the court a verdict of conviction might have been returned-but it is doubtful. The more witnesses testified to exactly the same thing in precisely the same words the less likely it appeared to be.
But Mr. Tutt was taking no chances and, upon the forty-third day of the trial, at a nod from the bench, he opened his case. Never had he been more serious; never more persuasive. Abandoning every suggestion of frivolity, he weighed the testimony of each white witness and pointed out its obvious lack of probative value. Not one, he said, except the Italian woman, had had more than a fleeting glance of the face of the man now accused of the crime. Such an identification was useless. The Chinamen were patently lying. They had not been there at all! Would any member of the jury hang a dog, even a yellow one, on such testimony? Of course not! Much less a human being. The people had called forty witnesses to prove that Mock Hen had killed Quong Lee. It made no difference. The On Gee could have just as easily produced four hundred. Moreover, Mr. Tutt did a very daring thing. He pronounced all Chinese testimony in an American court of justice as absolutely valueless, and boasted that for every Chinaman who swore Mock Hen was guilty he would bring forward two who would swear him innocent.
The thing was, as he had carefully explained to Bonnie Doon, to prove that Mock was a good Chinaman and, if the jury did not believe that there was any such animal, to convince them that it was possible. His first task, however, was to polish off the Chinese testimony by calling the witnesses who had been secured under the guidance of Wong Get. He admitted afterward that in view of the exclusion law he had not supposed there were so many Chinamen in the United States, for they crowded the corridors and staircases of the Criminal Courts Building, arriving in companies-the Wong family, the Mocks, the Fongs, the Lungs, the Sues, and others of the sacred Hip Sing Society from near at hand and from distant parts-from Brooklyn and Flatbush, from Flushing and Far Rockaway, from Hackensack and Hoboken, from Trenton and Scranton, from Buffalo and Saratoga, from Chicago and St. Louis, and each and every one of them swore positively upon the severed neck of the whitest rooster-the broken fragments of the whitest of porcelain plates-the holiest of books-that he had been present in person at Fulton Market in New York City at precisely four-fifteen o'clock in the afternoon and assisted Mock Hen, the defendant, in selecting and purchasing a terrapin for stew.
Mr. Tutt grinned at the jury and the jury grinned affectionately back at Mr. Tutt. Indeed, after the length of time they had all been together they had almost as much respect for him as for the judge upon the bench. The whole court seemed to be a sort of Tutt Club, of which even O'Brien was a member.
“Now,” said Mr. Tutt, “I will call a few witnesses to show you what kind of a man this is whom these highbinders accuse of the crime of murder!”
Mock, rolling his eyes heavenward, assumed an expression of infantile helplessness and trust.
“Don't overdo it!” growled Tutt. “Just look kind of gentle.”
So Mock looked as gentle as a suckling dove while two professors from Columbia University, three of his landlords in his more reputable business enterprises, the superintendent of the Rising Sun Mission, four ex-police officers, a fireman, and an investigator for the Society for the Suppression of Sin swore upon Holy Writ and with all sincerity that Mock Hen was not only a person of the most excellent character and reputation but a Christian and a gentleman.
And then Mr. Tutt played his trump card.
“I will call Miss Frances Duryea, of Hudson House,” he announced. “Miss Duryea, will you kindly take the witness chair?”
Miss Fanny modestly rose from her seat in the rear of the room and came forward. No one could for an instant doubt the honesty and impartiality of this devoted middle-aged woman, who, surrendering the comforts and luxuries of her home uptown, to which she was well entitled by reason of her age, was devoting herself to a life of service. If a woman like that, thought the jury, was ready to vouch for Mock's good character, why waste any more time on the case? But Miss Fanny was to do much more.
“Miss Duryea,” began Mr. Tutt, “do you know the defendant?”
“Yes, sir; I do,” she answered quietly.
“How long have you known him?”
“Six years.”
“Do you know his reputation for peace and quiet?”
Miss Fanny half turned to the judge and then faced the jury.
“He is one of the sweetest characters I have ever known,” she replied, “and I have known many-”
“Oh, I object!” interrupted O'Brien. “This lady can't be permitted to testify to anything like that. She must be limited by the rules of evidence!”
With one movement the jury wheeled and glared at him.
“I guess this lady can say anything she wants!” declared the foreman chivalrously.
O'Brien sank down in his seat. What was the use!
“Go on, please,” gently directed Mr. Tutt.
“As I was saying, Mr. Mock Hen is a very remarkable character,” responded Miss Fanny. “He is devoted to the mission and to us at the settlement. I would trust him absolutely in regard to anything.”
“Thank you,” said Mr. Tutt, smiling benignly. “Now, Miss Duryea, did you see Mock Hen at any time on May sixth?”
Instantly the jury showed renewed signs of life. May sixth? That was the day of the murder.
“I did,” answered Miss Fanny with conviction. “He came to see me at Hudson House in the afternoon and while we were talking the clock struck four.”
The jury looked at one another and nodded.
“Well, I guess that settles this case!” announced the foreman.
“Right!” echoed a talesman behind him.
“I object!” wailed O'Brien. “This is entirely improper!”
“Quite so!” ruled Judge Bender sternly. “The jurymen will not make any remarks!”
“But, Your Honor-we all agreed at recess there was nothing in this case,” announced the foreman. “And now this testimony simply clinches it. Why go on with it!”
“That's so!” ejaculated another. “Let us go, judge.”
Mr. Tutt's weather-beaten face was wreathed in smiles.
“Easy, gentlemen!” he cautioned.
The judge shrugged his shoulders, frowning.
“This is very irregular!” he said.
Then he beckoned to O'Brien, and the two whispered together for several minutes, while all over the court room on the part of those who had sat there so patiently for sixty-nine days there was a prolonged and ecstatic wriggling of arms and legs. Instinctively they all knew that the farce was over.
The assistant district attorney returned to his table but did not sit down.
“If the court please,” he said rather wearily, “the last witness, Miss Duryea, by her testimony, which I personally am quite ready to accept as truthful, has interjected a reasonable doubt of the defendant's guilt into what otherwise would in my opinion be a case for the jury. If Mock Hen was at Hudson House, nearly two miles from Pell and Doyers Streets, at four o'clock on the afternoon of the homicide, manifestly he could not have been one of the assailants of Quong Lee at one minute past four. I am satisfied that no jury would convict-”
“Not on your life!” snorted the foreman airily.
“-and I therefore,” went on O'Brien, “ask the court to direct an acquittal.”
* * * * *
In the grand banquet hall of the Shanghai and Hongkong American-Chinese Restaurant, Ephraim Tutt, draped in a blue mandarin coat with a tasseled pill box rakishly upon his old gray head, sat beside Wong Get and Buddha at the head of a long table surrounded by three hundred Chinamen in their richest robes of ceremony. Lant
erns of party-colored glass swaying from gilded rafters shed a strange light upon a silken cloth marvelously embroidered and laden with the choicest of Oriental dishes, and upon the pale faces of the Hip Leong Tong-the Mocks, the Wongs, the Fongs and the rest-both those who had testified and also those who had merely been ready if duty called to do so, all of whom were now gathered together to pay honor where they felt honor to be due; namely, at the shrine of Mr. Tutt.
Deft Chinese waiters slipped silently from guest to guest with bird's-nest soup, guy soo main, mon goo guy pan, shark's fin and lung har made of shreds of lobster, water chestnuts, rice and the succulent shoots of the young bamboo, while three musicians in a corner sang through their nose a syncopated dirge. “Wang-ang-ang-ang!” it rose and fell as Mr. Tutt, his neck encircled by a wreath of lilies, essayed to manipulate a pair of long black chop-sticks. “Wang-ang-ang-ang!” About him were golden limes, ginger in syrup, litchi nuts, pickled leeches.
Then he felt a touch upon his shoulder and turned to see Fong Hen, the slipper, standing beside him. It was the duty of Fong Hen to drink with each guest-more than that, to drink as much as each guest drank! He gravely offered Mr. Tutt a pony of rice brandy. It was not the fiery lava he had anticipated, but a soft, caressing nectar, fragrant as if distilled from celestial flowers of the time of Confucius. The slipper swallowed the same quantity at a gulp, bowed and passed along.
Mr. Tutt vainly tried to grasp the fact that he was in his own native city of New York. Long sleeves covered with red and purple dragons hid his arms and hands, and below the collar a smooth tight surface of silk across his breast made access to his pockets quite impossible. In one of them reposed twenty one-thousand-dollar bills-his fee for securing the acquittal of Mock Hen. Yes, he was in New York!
The monotonous wail of the instruments, the pungency of the incense, the subdued light, the humid breath of the roses carried the thoughts of Mr. Tutt far away. Before him, against the blue misty sunshine, rose the yellow temples of Peking. He could hear the faint tintinnabulation of bells. He was wandering in a garden fragrant with jasmine blossoms and adorned with ancient graven stones and carved gilt statues. The air was sweet. Mr. Tutt was very tired…
“Let him sleep!” nodded Buddha, deftly conveying to his wrinkled lips a delicate morsel of guy yemg dun. “Let him sleep! He has earned his sleep. He has saved our face!”
It was after midnight when Mr. Tutt, heavily laden with princely gifts of ivory and jade and boxes of priceless teas, emerged from the side door of the Shanghai and Hongkong American-Chinese Restaurant. The sky was brilliant with stars and the sidewalks of Doyers and Pell Streets were crowded with pedestrians. Near by a lantern-bedecked rubber-neck wagon was in process of unloading its cargo of seekers after the curious and unwholesome. On either side of him walked Wong Get and Buddha. They had hardly reached the corner when five shots echoed in quick succession above the noise of the traffic and the crowd turned with one accord and rushed in the direction from which he had just come.
Mr. Tutt, startled, stopped and looked back. Courteously also stopped Wong Get and Buddha. A throng was fast gathering in front of the Shanghai and Hongkong Restaurant.
Then Murtha appeared, shouldering his way roughly through the mob. Catching sight of Mr. Tutt, he paused long enough to whisper hoarsely in the lawyer's ear: “Well, they got Mock Hen! Five bullets in him! But if they were going to, why in hell couldn't they have done it three months ago?”
Samuel and Delilah
“And it came to pass, when she pressed him daily with
her words, and urged him, so that his soul was vexed
unto death; that he told her all his heart, and said unto
her, There hath not come a razor upon mine head;…
if I be shaven, then my strength will go from me, and I
shall become weak and be like any other man.”
– JUDGES XVI, 16, 17.
“Have you seen '76 Fed.' anywhere, Mr. Tutt?” inquired Tutt, appearing suddenly in the doorway of his partner's office.
Mr. Tutt looked up from Page 364 of the opinion he was perusing in “The United States vs. One Hundred and Thirty-two Packages of Spirituous Liquors and Wines.”
“Got it here in front of me,” he answered shortly. “What do you want it for?”
Tutt looked over his shoulder.
“That's a grand name for a case, isn't it? 'Packages of Wines!'“ he chuckled. “I made a note once of a matter entitled 'United States vs. Forty-three Cases of Frozen Eggs'; and of another called 'United States vs. One Feather Mattress and One Hundred and Fifty Pounds of Butter'-along in 197 Federal Reports, if I remember correctly. And you recall that accident case we had-Bump against the Railroad?”
“You can't tell me anything about names,” remarked Mr. Tutt. “I once tried a divorce action. Fuss against Fuss; and another, Love against Love. Do you really want this book?”
“Not if you are using it,” replied Tutt. “I just wanted to show an authority to Mr. Sorg, the president of the Fat and Skinny Club. You know our application for a certificate of incorporation was denied yesterday by Justice McAlpin.”
“No, I didn't know it,” returned Mr. Tutt. “Why?”
“Here's his memorandum in the Law Journal,” answered his partner. “Read it for yourself”:
Matter of Fat and Skinny Club, Inc. This is an
application for approval of a certificate of incorporation
as a membership corporation. The stated purposes are
to promote and encourage social intercourse and good
fellowship and to advance the interests of the community.
The name selected is the Fat and Skinny Club. If this
be the most appropriate name descriptive of its membership
it is better that it remain unincorporated. Application
denied.
“Now who says the law isn't the perfection of common sense?” ruminated Mr. Tutt. “Its general principles are magnificent.”
“And yet,” mused Tutt, “only last week Judge McAlpin granted the petition of one Solomon Swackhamer to change his name to Phillips Brooks Vanderbilt. Is that right? Is that justice? Is it equity? I ask you!-when he turns down the Fat and Skinnies?”
“Oh, yes it is,” retorted Mr. Tutt. “When you consider that Mr. Swackhamer could have assumed the appellation of P.B. Vanderbilt or any other name he chose without asking the court's permission at all.”
“What!” protested Tutt incredulously.
“That's the law,” returned the senior partner. “A man can call himself what he chooses and change his name as often as he likes-so long, of course, as he doesn't do it to defraud. The mere fact that a statute likewise gives him the right to apply to the courts to accomplish the same result makes no difference.”
“Of course it might make him feel a little more comfortable about it to do it that way,” suggested Tutt. “Do you know, as long as I've practised law in this town I've always assumed that one had to get permission to change one's name.”
“You've learned something,” said Mr. Tutt suavely. “I hope you will put it to good account. Here's '76 Fed.' Take it out and console the Fat and Skinny Club with it if you can.”
Mr. Tutt surrendered the volume without apparent regret and Tutt retired to his own office and to the task of soothing the injured feelings of Mr. Sorg.
A simple-minded little man was Tutt, for all his professional shrewdness and ingenuity. Like many a hero of the battlefield and of the bar, once inside the palings of his own fence he became modest, gentle, even timorous. For Abigail, his wife, had no illusions about him and did not affect to have any. To her neither Tutt nor Mr. Tutt was any such great shakes. Had Tutt dared to let her know of many of the schemes which he devised for the profit or safety of his clients she would have thought less of him still; in fact, she might have parted with him forever. In a sense Mrs. Tutt was an exacting woman. Though she somewhat reluctantly consented to view the hours from nine a.m. to five p.m. in her
husband's day as belonging to the law, she emphatically regarded the rest of the twenty-four hours as belonging to her.
The law may be, as Judge Holmes has called it, “a jealous mistress,” but in the case of Tutt it was not nearly so jealous as his wife. So Tutt was compelled to walk the straight-and-narrow path whether he liked it or not. On the whole he liked it well enough, but there were times-usually in the spring-when without being conscious of what was the matter with him he mourned his lost youth. For Tutt was only forty-eight and he had had a grandfather who had lived strenuously to upward of twice that age. He was vigorous, sprightly, bright-eyed and as hard as nails, even if somewhat resembling in his contours the late Mr. Pickwick. Mrs. Tutt was tall, spare, capable and sardonic. She made Tutt comfortable, but she no longer appealed to his sense of romance. Still she held him. As the playwright hath said “It isn't good looks they want, but good nature; if a warm welcome won't hold them, cold cream won't.”
However, Tutt got neither looks nor cold cream. His welcome, in fact, was warm only if he stayed out too late, and then the later the warmer. His relationship to his wife was prosaic, respectful. In his heart of hearts he occasionally thought of her as exceedingly unattractive. In a word Mrs. Tutt performed her wifely functions in a purely matter-of-fact way. Anything else would have seemed to her unseemly. She dressed in a manner that would have been regarded as conservative even on Beacon Hill. She had no intention of making an old fool of herself or of letting him be one either. When people had been married thirty years they could take some things for granted. Few persons therefore had ever observed Mr. Tutt in the act of caressing Mrs. Tutt; and there were those who said that he never had. Frankly, she was a trifle forbidding: superficially not the sort of person to excite a great deal of sentiment; and occasionally, as we have hinted, in the spring Tutt yearned for a little sentiment.