Chapter II: Part 2

Nobody in Pottsville went to bed that night, and next day both local clergymen preached rival sermons upon the text, “Thou shalt not kill.” Also, although few of the inhabitants had taken the slightest interest in the hermit during his life, except to deride him as a crank and a drunkard, there was universal mourning for him now that he was dead; for it was felt that in a way his presence in the Hollow had given a certain distinction to the township which otherwise it would not have had. It was a great moment for Pottsville. And so were the days following during which the Grand Jury indicted Skinny for murder and the case of “The People vs. James Hawkins” gradually built itself up, block by block, “line upon, line,” “here a little and there a little,” circumstance upon circumstance, until his guilt seemed established beyond the utmost requirement of the law.

Then the gipsies, having weathered the rather superficial investigation of the prosecutor, moved on to the “Sunny Southland” or wherever it was that they were going, and six weeks later Local Lodge No. 948 of the Brotherhood of Abyssinian Mysteries convened at Somerset Corners to debate whether the fact that James Hawkins was an ex-member entitled him to pecuniary assistance for the purpose of retaining counsel, upon the broad theory that once a Sacred Camel of King Menelik--“always a camel.” For he had given the high-sign for help and the Treasury of the Hibernating Hoboes of Hesperides was empty,--since the twenty shiny new five-dollar gold pieces which had been found in Skinny’s pocket upon his arrest had been removed therefrom and now reposed in the safe of the district attorney as evidence against him.

Thus came opportunity to the door of Hezekiah Mason for the second time; for in his widely heralded prosecution of Skinny the tramp, he perceived “a stepping stone to higher things,”--not on his own “dead self” but on the “dead selves” of Skinny and the hermit. Had not one well-known public prosecutor, he told himself, leaped into the gubernatorial saddle, and for a space held the reins of office, merely because he had convicted a policeman of participating in the murder of a gambler? Why should not he do the same for convicting a distinguished tramp of the murder of a famous hermit? Indeed, who shall quarrel with his logic?

“Tutt,” said Mr. Ephraim Tutt, of the well-known, if not celebrated, law firm of Tutt & Tutt, on entering his office the morning after the meeting of the Abyssinian Brothers, “kindly take a look at this!” And he held out a night-letter telegram.

“Somerset Corners, N.Y.

“Tutt & Tutt, Attorneys-at-Law,
“61 Broadway, N. Y. City.

“Local Lodge Nine Hundred and Forty-eight, Abyssinian Brotherhood, desires retain you to defend James Hawkins, otherwise known as Skinny the Tramp, indicted for murder of Hermit of Turkey Hollow twenty-seventh last May. Our resources limited to two hundred and fifty dollars cash. Trial takes place next week. Kindly advise whether you will accept retainer.

“Silas Higley,

“Grand Supreme Scribe, Sacred Camels of King Menelik, Brotherhood of Abyssinian Mysteries.

“_Collect._”

“Well,” commented his sprightly partner, the lesser Tutt of the two, “I observe that they prudently sent their invitation at our expense.--You don’t seriously consider bothering with any legal junk like that?”

Mr. Tutt paused in applying a match to the rat-tailed stogy which drooped from his wrinkled lips.

“I wouldn’t miss it for a farm!” declared he. “A country murder trial?--Why, it’ll be a regular vacation for me!”

“There be no money in it!” growled his junior partner. “And it’ll take you a week.”

“Who asks money,” demanded Mr. Tutt, striking an heroic attitude, “when innocence calls for succor? Could any true-hearted member of the bar--if he had a trace of romance in his soul--refuse to defend a prisoner known by ‘form and style’ as ‘Skinny the Tramp,’ especially if he be charged with murdering a hermit, and still more particularly if requested to do so by the Order of the Sacred Camels of King Menelik, whose invitation is a command? What, may I ask, are hermits for--but to be murdered?”

“You’re incorrigible!” sighed Tutt. “I suppose the whole office will be depleted.”

“No--I’ll try the case alone!” replied his senior, “I’ll merely send Bonnie Doon up there to look around a little and hear what my client has to say for himself, and then I’ll go up a couple of days before and examine the witnesses personally--I’ll have the time of my life.”

“Yes! And incidentally you’ll waste a week or ten days and end by paying all the expenses of the trial yourself.--I know you!”

“Well, what else have I got to spend my money on?” retorted Mr. Tutt. “I might as well spend it on keeping an innocent tramp out of the electric chair as anything else!”

Now, as Tutt, the lesser, knew that Tutt, the greater, would eventually do exactly as he chose, the argument then and there died; and the up-to-date Mr. Bonwright Doon, that extraordinary combination of law clerk, ambulance-chaser, detective and man-about-town who had attached himself to the firm was at once despatched to Pottsville, as Mr. Tutt’s _avant courier_, where he in due course interviewed Skinny the Tramp in the calaboose, gave Squire Mason the “once-over,” fraternized with Sheriff Higgins and his fat-boy deputy, Mr. Sam Bellows, attended a Lodge Meeting of the Sacred Camels of which--as well as of many similar organizations--he was a member, and after spending but one night under the hospitable roof of the Phoenix House won the lasting loyalty and friendship of “Ma” Barrows and of her daughter Betty, aged nine, whose capacity for peanuts, popcorn, ice-cream cones and bananas he demonstrated by actual test at Syracuse to be equal to that of Ringling Bros.’ baby elephant.

Then, having spied out the lay of the land, he returned weighted with information and wisdom, to make his report to Mr. Tutt,--a report by no means rose-colored and yet not without hope.

“That town is certainly some hick!” declared the cosmopolitan Mr. Doon a week later in making his official return. “It’s the variety of metropolis where they regard an imported cigar as an immorality and where the height of dissipation is an evening at a Custard Pie Comedy with Fatty Arbuckle as custardee. It contained no male citizen in Class 1-A, B or C under the recent draft, but it numbers among its midst forty-one sacred camels--of which, you may recall, I am one.”

“H’m!” murmured Mr. Tutt, making a mental note.

“Yes!” agreed Bonnie, reading his mind. “Moreover, nothing of moment has happened there since Artemas Ward gave his celebrated lecture on ‘Fools’ in the P. of H. hall in 1883. Hence this assassination has naturally excited a heap big local pride. When this tramp-hermit case comes to the bar there’s going to be such a Roman holiday as the Mohawk Valley never saw. The rubes are all coming from miles around, bringing the entire family with ’em and sufficient cold vittles to last a week, and there’ll be overflow meetings all the way to Utica.”

“No doubt! No doubt!” mused his employer. “But what of my opponents? What of the _dramatis personæ_ of the contest? And--what of my client?”

“Your client is a childish nut,” responded Mr. Doon, “who devotes his life to trying to find the pots of kale at the twin bases of the rainbow’s arc. From my casual observation I should infer that he was a trifle less harmless than a cottontail. He naturally asserts he didn’t do it, and of course maybe he didn’t; but by heck! they’re going to come awful close to proving it on him.”

“What’s the evidence?” inquired Mr. Tutt, leaning back in his swivel chair and crossing his Congress shoes on Parker’s New York Criminal Code which lay open at “Murder” upon his desk.

“All you want,” answered Bonnie cheerfully. “Defendant observed going towards hermit’s hut a few minutes before the murder, tries to avoid notice, cry and shot heard, witness bolts to cabin which he reaches in three minutes and finds hermit dying with gold piece in his hand and a broken bean-pot on floor beside him, defendant’s pipe left on table, pursues murderer through woods in general direction of village but can’t overtake him. Defendant walks into grocery store where all the boobs are assembled waiting for the weekly shave--at four o’clock--breathless, excited, blood on his hands--pursuing witness arrives--also breathless--at four-fifteen and gives the alarm. Defendant is arrested but when accused refuses to make any statement; and, if that’s not enough,--his pockets turn out to be full of gold pieces of the same vintage as the one in the hermit’s hand, and his shoes fit the marks in the potato patch.--Q.E.D.”

“Did you say this is going to be a trial?” queried Mr. Tutt. “I should say it was more likely to be an execution.”

“So would I,” assented Bonnie, except for a few minor details. “In the first place the defendant is a harmless dreamer,--half-feckless fool, half ‘boob,’ half philosopher and half----” he paused.

“Well?” commented his employer. “Half--what?”

Bonnie still hesitated rather sheepishly.

“Half-gentleman,” he declared in a slightly defiant tone.

Mr. Tutt smiled approvingly.

“Do they know it?” he asked.

“Oh, yes!” answered Bonnie. “But everybody likes a drink of blood occasionally!”

“What are your other minor details?”

“The prosecutor is a crook--and I’ve got the goods on him.”

“What kind?” asked Mr. Tutt more cheerfully.

“Fifty-seven varieties!” affirmed the ambulance-chaser. “He sticks the boobs for eighteen per cent on his loans, he sneaks up to Utica once in three weeks by himself and gets hard boiled, and he looks like the family portrait of Uncle Jonas Hardscrabble. Besides, although I don’t know why I think so, I have a feeling he’s got some particular personal animosity against our client.”

“H’h!” mused Mr. Tutt. “How about the sheriff?”

Bonnie grinned, as with meticulous elegance he removed a cigarette from a golden case bearing his initials set in diamonds.

“He’s playing the constable in a b’gosh drama up on Broadway. Better drop in and look him over. And he’s got a posse like the fire hose company in Old Jed Prouty!”

Mr. Tutt shook his head regretfully.

“I don’t like your setting. The whole country will be hell-bent-for-conviction on general principles. They’ll want to vindicate their reputation for law and order and--if they’re in doubt--instead of acquitting they’ll return a verdict of murder in the second and rely on executive clemency to remedy any possible injustice! I know ’em!”

“Mr. Tutt,” replied Bonnie with intense seriousness. “They’re going to give you the fight of your life!”

Mr. Tutt fumbled in the coffin-like box on his desk for a stogy.

“I surmised as much!” he muttered. “I surmised as much. But--you never can tell!”

He lit the stogy meditatively and gazed out of the office window through half-lowered lids.

“You say the prisoner entered the drug store at four o’clock exactly?”

“Yes--that’s absolutely fixed.”

“And his pursuer at fifteen minutes past?”

“Yes.”

Mr. Tutt pursed his lips.

“How far did they have to run?”

“About a mile.”

The old lawyer made a rapid calculation.

“And what time was the murder committed?” he asked suddenly.

“I don’t know,” replied the clerk. “I had no way to find out.”

“Well,” said Mr. Tutt, bringing his feet to the floor with a bang. “That’s what we’ve got to find out. The whole case turns on it. If our client fired the shot that killed the hermit and it took the witness three minutes to reach the shanty and--say--a couple of minutes more to look around there--then the defendant must have increased his five minute start to fifteen minutes in a single mile--and if the other man was running hard I don’t believe he could have done it! No, sir!--He’s not guilty!”

“And then--there’s the Sacred Camels of King Menelik!” mused Bonnie. “_And the sheriff is head camel!_”

II

When Lawyer Ephraim Tutt arrived in Pottsville to conduct the defense of Skinny the Tramp for the murder of the Hermit of Turkey Hollow, having been retained to that end by the local order of the Sacred Camels of King Menelik, he found the whole town up and waiting for him. Having with his customary equanimity deposited his bag at the Phoenix House and eaten his dinner, he strolled into the kitchen and, as was his wont, endeavored to gain some knowledge of local color, politics and personalities, including that of the client for whose life he was responsible, by engaging genial “Ma” Best, the proprietress, in conversation.

“Why, bless your heart, Mr. Tutt!” she assured him after she had wiped her hands upon her apron and invited him to a seat in the broken-down rocker beside the wood box, “there ain’t no gentler, kinder soul than Skinny in the whole county! I’ve known him all his life and his ma afore him. He’s just a pore, harmless critter that wouldn’t hurt a fly. Many’s the time I’ve seen him put a baby bird back into the nest that had fallen out. O’ course he’s kind o’ weak in the upper story--but he ain’t crazy by a long shock, an’ there’s some things he knows a lot more about ’n most folks.”

“Will you testify as a witness to his good reputation?” asked Mr. Tutt.

“Indeed I will!” she declared warmly. “And so’ll half the people in Pottsville--the children, anyways! Now what would you like for your supper?--Griddle cakes?”

* * * * * *

Those of our readers who have journeyed from London down to Epsom on race day may be able to form some notion of the condition of affairs in the environs of Pottsville upon the opening morning of the trial of Skinny the Tramp. Long before the light of the stars had paled before the coming dawn--e’en before the glowworm had bid the matin to be near--lanterns flickered in the doorways of distant barns and bobbed down country roads beneath the bouncing axles of antique buggies and carry-alls bearing the sleepless inhabitants of the Mohawk Valley to the legal colosseum of Somerset County. By sunrise Main Street was one long line of flivvers, while the race track recently occupied by the Zingara Gipsies was crowded with every variety of antediluvian vehicle of locomotion,--parked axle to axle.

When at eight o’clock Sheriff Higgins unlocked the door of the court house the stampede which followed filled every bench in less than thirty seconds. Competition for the pleasurable and exciting privilege of sitting upon the jury was keen and the box having been quickly filled by eleven o’clock, old Judge Tompkins was able to direct the prosecutor to open his case.

“Silence in the court room!” cautioned the sheriff pompously. “Silence in the court!--All them folks as wants to go out--git out now--or set still!”

This invitation being disingenuous and not meant to be taken seriously since obviously nobody wished to withdraw,--there being, on the contrary, by actual count three hundred and sixty-one persons packed against the outside of the door who were anxious to get in,--everybody accordingly sat still,--except for that slow, uniform, rhythmical facial movement which now characterizes the entire American nation while viewing any spectacle. Sheriff Higgins thereupon sat down heavily himself, by so doing seeming coincidently to elevate Squire Mason, as upon the other end of the seesaw of public attention. The trial was on in earnest,--the biggest event in the Mohawk since Abe Lincoln showed himself on the back platform of his train when he came through on his way to Washington in 1861. Some of the old codgers who had seen him then--as little boys--were even sitting in the court room now,--and more than one commented on the striking resemblance between him and Lawyer Tutt.

And now Squire Mason, in a new, light blue, broadcloth suit, bowed to Judge Tompkins, wiped his massive forehead with a parti-colored handkerchief, took an ostentatious sip from the discolored glass of water upon the deal table in front of him, replaced it carefully, shot a defiant and contemptuous glance in the direction where Skinny the Tramp sat with Mr. Tutt, cleared his throat, and having thus, by convolutions only somewhat less complicated than those of a Bush League pitcher but serving much the same purpose, given due notice that he was about to deliver the ball and that everybody had better look,--Squire Mason, we say, began his great opening address to the gentlemen-farmers of the jury who had in their keeping the life of Skinny the Tramp.

Having first outlined the entire history of the law of homicide beginning with the well-known Cain-Abel murder in 4000 B.C. he proceeded, by vocal stages of approximately twenty parasangs each, through the pages of Holy Writ, not excluding the Apochrypha,--and referring specifically to both the Judith-Holofernes and the Jael-Sisera cases,--touched briefly upon the lex talionis, the Salic law, and the development of the ecclesiastical courts,--and finally burst into the full flower of rhetoric along with the abolition of benefit of clergy in 1825. As a symposium of miscellaneous penological information it was something very fine indeed,--although it had nothing to do with Skinny the Tramp or the Hermit of Turkey Hollow,--and the jury, hardened by generations of country sermons--not only accepted it as their due but drank it all in with rapturous delight. And at length--as befitted its importance both to the jury and to him--the Squire came to the matter in hand and that is where this story really only begins,--the story of the fight for a human life.

Some time on the afternoon of Saturday, May twenty-seventh last, declared the Squire, an innocent, helpless old recluse was shot to death in his shanty in Turkey Hollow. Obviously robbery had been the motive, since the dead man still clutched in his hand a piece of gold and upon the floor lay a shattered earthen receptacle which had doubtless contained others. There were only two persons known to be anywhere in the neighborhood at the time, James Hawkins, alias Skinny the Tramp,--the prisoner at the bar,--and Emerson, the lumberman who had been cutting pea sticks in the Hollow, who had heard the shot and had hurried at once to the scene of the murder and later given the alarm. The squire here paused for increased emphasis.

However, he remarked, the murderer, like most murderers fortunately, had not made his escape without leaving the evidences of his identity behind him. Not only had he left his pipe, but fresh in the rich earth of the hermit’s potato patch were the prints of a heavy pair of boots, the soles of which were thickly studded with nails. He would in due course exhibit to them an enlarged photograph of said footprints taken on the very afternoon of the crime by Mr. Pennypacker, who ran the gallery over to Somerset Corners. Again he paused significantly, and looked at Skinny the Tramp.

Who, he asked, had worn those fatal boots? Whose guilty feet had left those telltale prints? The same person, he answered dramatically, who at four o’clock had stumbled, disheveled, out of breath and blood-stained, into Colson’s Grocery and called for a bottle of root beer that Saturday afternoon--and in whose pockets had been discovered the balance of the gold pieces representing the hermit’s hoard--the defendant!

A murmur in which were blended astonishment, horror and admiration arose from the crowded benches, showing that for the first time the audience realized the gravity of what was going on,--that not only an innocent man had been killed but that there was sitting within reach of their fingers the man who had killed him and whom the law now sought to kill in return. Beneath the table Mr. Tutt patted the knee of Skinny the Tramp, indicating a confidence which he by no means felt.

Then the prosecutor proceeded to drive a few more nails in Skinny’s coffin. When the defendant had been arrested, he informed the jury, the latter declined to make any statement, either of explanation or of denial, in his own behalf. He had simply stood mute, giving by his trembling limbs, his averted eyes and the chalk-like color of his face, every evidence of a guilty conscience. Then Mason told the jury with an air of melancholy how he hated to be compelled to prosecute any human being for a crime--much more for a murder--but that it was his solemn, sworn duty to do so, just as it would be theirs under the circumstances to convict; and--called Charlie Emerson to the witness chair.

If, at this point, the reader should begin to speculate as to what, if any, is the underlying purpose of this story, let us hasten to state that its object is to demonstrate that sometimes the trial of an action in court under our rules of evidence is less a search for the truth than it is a game of legal chess.

There are two lessons to be drawn from the case of Skinny the Tramp. The first is, that the trial-lawyer, like the general, must be ready instantly to change his tactics to meet new situations as they arise, and that the prosecutor or attorney for the defense who goes into court with a hidebound theory as to his case is apt to leave his own hide behind him neatly hammered to the court room wall. He should realize that the whole actual truth concerning any human happening is never known, being never learned in court because the witnesses, well-meaning though they be, are human,--fallible as to observation, memory and the power to express their recollection of what they think they originally saw and heard. In a word, the real or absolute truth is never the legal truth, and as what the legal truth under the technical rules of procedure is going to turn out to be can rarely be foreseen it is usually idle to speculate much about it. Therefore, he should go boldly into court, listen calmly while the witnesses on both sides tell their widely divergent stories, and then--and not until then--devise the theory upon which he may excusably demand judgment for his client or the acquittal of the prisoner. This requires, to be sure, self-control, ingenuity and audacity; the restraint of a Foch awaiting the precise moment to counter-attack; the self-trust which the philosopher Emerson says is the essence of heroism.

But Mr. Tutt knew well that the expected never occurs,--except when the expected is the unexpected. Thus he always went into a trial with an entirely open mind,--committed to no hypothesis,--and ready to go to the mat in a catch-as-catch-can on law or fact, or--to run like a jack-rabbit. The unknown quantity was both what he dreaded and also what he gambled on. He was an opportunist of opportunists, on the alert to snatch victory out of defeat, making shining virtues out of adroitly concealed necessities, scrambling to his feet with a benign smile just as he was about to be counted out. The only generality to which he subscribed was, “You never can tell!” In a word, Mr. Tutt had a high confidence in his own star, and as he never acknowledged defeat, nobody ever knew when he was beaten, an adverse verdict being to him only the starting point for a renewal of the battle in which he had, at least, an even chance of outwitting his antagonist. He held that the best preparation for a day in court was a sound sleep the night before, an hour’s exercise, and a hearty breakfast followed by what he called a Wheeling Corona-Corona. But not all of us have the equipoise of Ephraim Tutt.

Now, the other lesson to be deduced from the trial of Skinny the Tramp was that the best rule in examining witnesses is to have no rule at all,--which is very much the same thing as “You never can tell!” There is no more any hard and fast rule for the examination of a witness than there is for arguing with your stepmother. It “all depends.” The lawyer who says that you must never let a witness leave the stand without exhausting his information is just as wide of the mark as he who claims that the only safe cross-examination is no cross-examination and that the best cross-examiner is he who does not cross-examine at all. Yet “no generality is true,--not even this one,” as the French say; the fact of the matter being that cross-examination is obviously a dangerous weapon, usually resulting in more harm than good--but not always, and that every witness presents a new and special problem which can only be solved by a subtle and perhaps instinctive appreciation of his psychology. Generally speaking, it is a pretty safe plan to ask no questions of a witness who has not harmed your side of the case, for if you cross-examine you may bring out something entirely unexpected to your great and everlasting detriment. “Leave well enough alone.” That is the path of prudence--and yet--not always! But let us not anticipate.

Emerson, the lumberman, like many another man of limited education, in addition to an astonishingly accurate memory for detail, showed himself to have a gift for picturesque description which made him a graphic and convincing witness for the prosecution. He was obviously unbiased, absolutely clear, positive in all his statements, and careful,--as both the judge and the prosecutor took pains to instruct him to be,--to answer only the exact questions put to him.

This, of course, is the regular and proper rule, for if a witness is permitted to volunteer testimony he is almost certain to violate every rule of evidence within the first thirty seconds. But in the case of Emerson there was a particular and vital reason for such a caution on the part of the prosecutor which was known only to him, namely, that for tactical reasons it was imperative that certain features of his testimony should be suppressed.

Now it is the general rule of the law that the lawyer who calls a witness to the stand in the first place vouches for his integrity and, in the second, commits himself and his case to the truth of the proposition of fact that the witness is called to substantiate. But there is a qualification upon this rule, which is that technically the lawyer is bound by his own witness only upon those subjects upon which he sees fit to examine him; and, if later, his adversary brings out from the same witness new facts upon other subjects, the lawyer who originally called him may attack the witness as hostile, discredit him as to those facts, and controvert them if he can.

Yet, underlying all rules is the universal principle of sound ethics and common decency which hold true both in law and in life as a whole, that we must conduct ourselves at all times and places as gentlemen and sportsmen, whether in court or outdoors, until we join the choir invisible and have no longer any moral problems. In other words, the lawyer has got to play his game fairly and if, on the one hand, he calls a witness to prove a certain fact knowing that the witness is mistaken, or, on the other hand, knowing that his witness is telling the truth about a certain fact induces the jury or the judge to believe that the witness is mistaken, that man is a liar, a cad and a shyster and ought to be disbarred.

Now, Squire Mason was up against a most unfortunate, tantalizing and exasperating situation with regard to this, his principal witness, which was that although Emerson had taken only a few minutes to reach the hermit’s shanty after hearing the fatal shot, and had lingered there but a minute or two more and had then hurried hot foot to Pottsville, arriving there within fifteen minutes of the time Skinny also reached town, which is to say, considering that the murderer had at least a five minute start, almost at his heels,--nevertheless, and this is the crux of the case, he was prepared to state definitely and unequivocally, if asked the time at which he found the hermit dying, that it was four o’clock exactly--which as we know, and Squire Mason also perfectly well knew, was the precise moment at which the tramp entered Colson’s grocery store a full mile away. If this were true, then James Hawkins, no matter how strongly circumstances pointed towards him as the murderer, could not be guilty.

Thus, if District Attorney Mason should elicit “the truth, the whole truth, and nothing but the truth” from Emerson,--which was what he was in duty bound to do and what Emerson had sworn to tell,--the prosecution would establish a perfect alibi for the defendant from the lips of its own chief witness. Therefore Mason had resolved to refrain from asking the lumberman any question bearing upon the time of the homicide, and in order that no one else might suspect what Emerson might be able, if questioned, to say upon this important topic, had slipped him twenty-five dollars and instructed him that the interests of the public--particularly that of the Mohawk Valley--demanded that he should absent himself from his customary haunts until he should be needed at the trial.

Of all this, naturally, Mr. Tutt was wholly ignorant and he had come to Pottsville with no other defense than the rather shaky argument that Skinny could not have fired the shot that killed the hermit and, with only a five minute start, have increased his lead over the pursuing Emerson to fifteen whole minutes in a single mile. It had, according to his theory, taken the lumberman only three minutes to reach the shanty after hearing the shot, and he was out of the place again and hot on the murderer’s trail in two minutes more. That meant that he was only five minutes behind when he started in pursuit. Now, as Mr. Tutt was going to claim, a man could run a mile in less than ten minutes, and hence it was manifestly impossible that Skinny could have reached Pottsville fifteen minutes ahead of Emerson--if he were guilty.

This plausible--but distinctly Tuttian--argument depended, however, entirely upon the assumption that Emerson did not take more than three minutes to get to the shanty after hearing the shot, did not stay in its vicinity for more than a couple more, and had run at top speed--without pause--all the way to Pottsville,--assumptions that had little to sustain them, and had small appeal compared with the overwhelming mass of circumstantial evidence that pointed to the tramp as the murderer. Mr. Tutt realized full well that his defense was a flimsy one, since in all probability Emerson had been fully fifteen minutes behind the fleeing assassin when he had started for the town and at best had probably done no more than hold his distance, if indeed he had succeeded in doing that. Yet, although so far as Mr. Tutt was aware, this ephemeral syllogism was all that stood between his client and the electric chair, nevertheless, and had he only known it,--according to Emerson’s full story related privately to Mason,--Skinny had an iron-clad, copper-fastened, dyed-in-the-wool, unimpeachable and perfect alibi. It was this full story--the “whole truth”--that Mason now set himself to conceal in the hope that it would never be known, for as long as the exact time of the murder could be left vague and undetermined the alibi would be valueless. So the shifty Squire carefully omitted to ask the lumberman any question as to the hour except when it was that he had started in to cut his pea sticks,--which had been two o’clock.

“There had been a smart shower,” said he, “and some thunder--but the sun had come out real bright agin. I was about three hundred yards from where the hermit lived--most through with my job--I’d cut a hundred sticks and I only wanted a hundred and a half--when I heard a holler from the direction of the house follered by a shot.”

“Yes.--Go on!” directed Squire Mason ominously.

“I run over there as fast as I could. The door was open. I called out but got no answer, so I went in. The shanty was hot--for the winders were closed--and it was sort o’ dim in there--and then I hearn a kind of cluckin’ sound and I see the hermit lyin’ on the floor--he had toppled over on his back--and the blood was frothin’ out of his mouth where he was tryin’ to breathe.”

“Proceed,” said the court. “What else did you observe?”

“I stepped over to where he was lyin’ an’ lifted up his head so’s to look in his face. I remember there was a great big moth flappin’ like mad inside the window. It skeart me. Then all of a sudden the hermit stopped breathin’--the moth flew out the door--and I knew he was dead--murdered.”

“Do you object to the word ‘murdered,’ Mr. Tutt?” inquired the court.

“No, your Honor,” replied the old lawyer. “The poor man was undoubtedly murdered.”

“Very well, go on,” continued Judge Tompkins to the witness.

“I threw somethin’ over him and looked ’round for a second or two. There was a busted bean pot lyin’ under the table and I noticed the hermit had a gold piece clutched in his fist. The rest of the shanty looked same as usual.--So I ran right out and listened. I could hear some one crashing through the brush and I followed after towards the town, but he beat me to it.”

The court room was as still as the hermit’s death chamber.

“Did you see any footprints in the garden patch?” asked Squire Mason.

“I did. Sure. An’ I showed ’em both to the sheriff and to Mr. Pennypacker, the photographer.”

“When you went back there with Sheriff Higgins and Mr. Pennypacker was everything in and around the shanty the same as when you were there the first time?” asked Mason.

“Just the same. No one else had been there,” declared Emerson.

“That is all!” announced the prosecutor in a tone of triumph. “You may cross-examine, Mr. Tutt.”

Mr. Tutt did not immediately arise to his feet. It was of course obvious to him that Mason had refrained from eliciting the time of the murder from Emerson. Time and place were the inevitable bases of all testimony. Why had he done so? It was conceivable that the witness was entirely at sea about the time and hence that his evidence regarding it, if given, would have been of no value. That was more than probable, in which case it was natural enough that the district attorney should not have gone into the matter at all. But there was also--Mr. Tutt recognized--another possibility, so remote as to be almost theoretical,--that Emerson did know the time at which he entered the shanty and that Mason was deliberately holding it back. If this were so he was doing it for a reason and what reason could there be?

Mr. Tutt was face to face with one of the greatest dilemmas of his life: if Emerson knew the time of the shot and it was such as to give Skinny time to have fired it and reach the village by four o’clock, that fact, if he brought it out, would be of inestimable damage to him,--but, if by any chance--oh, could it be!--that the shot was fired so close to four as to make it unlikely or impossible that Skinny could have fired it and yet arrive at Colson’s at four, the answer might acquit him! “The Lady or the Tiger”! Which was it? Mr. Tutt thought hard. Was Mason concealing the time, or was he luring his adversary into a trap? For, if Mr. Tutt himself adduced the fact that the murder occurred, say, at a quarter to four his client would be doubly damned. A bit of supposedly unexpected evidence elicited on cross-examination by a party to whom it is harmful is invariably more damaging than if brought out by the party who has called the witness in the first place. On the one hand it was a great temptation for Mr. Tutt to waive the witness from the stand with a nonchalant, “No questions!” as if his testimony contained nothing damaging to the defense; but on the other it might be his last chance of proving even the approximate time of the murder. Sly old dog that he was, he resolved to try to steal whatever advantage might lie in both courses. So, without getting up, he waved his hand towards the window and remarked in the most casual manner possible:

“No questions.--Thank you, Mr. Emerson, for your very vivid word picture!” And he busied himself with his papers.

Then, as the witness was about to descend from the platform, he looked up hastily and said in a tone of apology:

“I beg your pardon. I forget whether you happened to mention the hour at which you visited the shanty the first time.”

Emerson smiled. Without taking his seat he answered:

“No, I didn’t mention it.”

“Do you know?”

“Yes.”

“What time was it?”

Emerson turned to the jury who were leaning forward expectantly.

“When I lifted the hermit’s head in my hand I was lookin’ straight into the face of that old clock of his that stands between the two windows in the back--and it was just four o’clock.”

“Thanks,” remarked Mr. Tutt quietly, as if the reply held no particular significance for his client, whom in fact it might well save. “No other questions.”

The judge glanced at Squire Mason.

“Have you anything further, Mr. District Attorney?”

“No--I have no further questions,” replied the prosecutor, also as if the matter was not of the slightest moment.

“May I go, your honor?” asked Emerson.

“Yes,--if these gentlemen are through with you,” smiled Judge Tompkins.

As neither of the gentlemen wished or dared to ask him the fraction of another question Mr. Emerson forthwith was given leave to depart upon his business,--which unbeknown to any of them was to take a job as foreman in a steam lumber mill seventy miles distant, the train for which bore him thither later that afternoon.

Mr. Tutt settled back in his chair, a heavenly calm descending upon his previously agonized spirit. Skinny had been snatched from the very jaws of death. There was nothing to worry about any longer. Skinny the Tramp couldn’t have been in two places at once, no matter how strong the evidence against him might be.

Evidently the Squire was a good bluffer. It required real nerve to be as placid as all that in the face of such a body blow! The prosecutor took a sip of water, pushed a mass of papers away from him, leaned over and picked up a large diagram of the clearing, including the hermit’s shanty drawn to scale. It had been artistically done and contained no objectionable matter, the location of the body not having been marked at all, and the various pieces of furniture appearing only in outline. Next to the cot-bed the most conspicuous object in the place had plainly been the hermit’s clock.

Squire Mason handed the diagram to Mr. Tutt with stately bucolic courtesy.

“Any objection to my puttin’ in this here diagram?” he inquired.

Mr. Tutt smiled as he glanced over it.

“_Timeo Danaos et dona ferentes!_” he replied. Then observing the look of bewilderment upon the prosecutor’s face, he added: “None whatever! It can be admitted so far as I am concerned, subject, of course, to correction. Who made it?”

“Miss Gookin,” replied Mason.

“Then I heartily congratulate Miss Gookin on her artistic work!” said Mr. Tutt, thus making sure of at least one vote, if ever he should run for governor, from “Toggery Bill,” her father, and gaining high favor with Mr. Soper, juror Number Eight, who was seeking the lady’s hand in marriage.

“All right, then--mark it!” said Hezekiah to the stenographer. “Now, sheriff! Take the stand!”

Just as the prosecution of Skinny the Tramp marked the peak of Squire Mason’s professional career, so his appearance as a witness at that same trial was the greatest event in the official experience of Sheriff Higgins. Being a quiet, home-loving citizen, the Supreme Exalted Ruler of the Sacred Camels had experienced few of the joys of publicity and now to be able to ascend the rostrum and, with a real reporter sent over special from Utiky taking down every word that fell from his lips, to recount the thrilling narrative of how he had captured Skinny the Tramp and later secured the evidence against him through a personal visit to the scene of the homicide while the body was still warm, to sit elevated high in the court room upon a level with the judge himself, to feel in his own opinion that he was the most important figure among the _dramatis personæ_, and that the eyes and ears of all waited upon him--ah! who that has not had a similar experience can have the faintest realization of its ecstasy?

Now Sheriff Higgins had looked forward to his coming testimony with great satisfaction, not only for the reasons just stated, but also because it would give him an opportunity to indicate publicly what small potatoes he thought Squire Mason to be. He was in the delightful position of being able at one and the same time to gratify his vanity, to do his full duty to the state and also to savor the full venom of his hatred for an ancient enemy. He proposed to do each in turn and to do it thoroughly and well, but he was in a somewhat delicate and paradoxical situation. He had collected the evidence against Skinny, and was one of the chief witnesses against him; he acknowledged that logically there was no escape from the conclusion that the tramp was the guilty party; he was the mainstay of the law in that county and it was up to him to see that the murderer was convicted; and yet--he didn’t believe Skinny had done it! No, sir! And the reason was simply that the tramp wasn’t that kind of a feller, and he and half a dozen other Sacred Camels were ready--if asked--to say so.

But first, approaching his various phases in order, let us take up the sheriff’s innocent gratification of his own vanity--in which he differed not a whit from ninety-nine out of every hundred witnesses. It is a noticeable thing that once a man finds himself the cynosure of public attention he feels obliged to picture himself as of heroic mould. Has any witness since the Creation--we wonder--in any court of law ever admitted--unless his questioner had the goods on him and he knew it--that he was in any degree stupid, unscrupulous, negligent, timid or even slightly impolite or uncultivated? We have never met one. It cannot be mere boastfulness or vainglory that leads each man, who kisses the Book and gazes upon the carping features of the jury, to try and make them believe him the highest type of citizen. He isn’t and he knows it; and he knows they know he knows it, and yet he will thrust forth his chest and assume for the nonce to possess every virtue in the calendar while modestly protesting that there may be others as good or as brave as he.

We have heard otherwise apparently sensible men confess under oath without trace of embarrassment, one that he was regarded as the handsomest man in Rochester, N.Y., another that he was the greatest mechanical genius in the world, another that he would back his own opinion on any given subject against that of any ten men and stick to it even if proven mathematically to be mistaken, another that he had never told a lie or been guilty of any sort of misleading statement in his life, another that he had never consciously done anything wrong, another that he had read every book worth reading in the English language--and answered categorically “Yes” to some six hundred separate works such as Burton’s Anatomy of Melancholy and Gibbon’s Decline and Fall of the Roman Empire--and one, who may have been telling the truth, that he had never kissed, or been kissed by, a member of the opposite sex.

The sheriff wasn’t as bad as any of these, but now that it was all over, his recollection as to his own conduct and demeanor differed radically from that of his associates at the time. He honestly thought that he had done things which in fact had been done by others. Anyhow, someone had done them, so what difference did it make? While, therefore, the substance of his testimony--as with most witnesses--was based on fact, the details bore no resemblance whatever to the truth. As the reader knows, the barber had received Skinny’s surrender, yet the sheriff unhesitatingly swore that he had reduced him into possession; the proprietor of the Mohawk Palace Theatre had searched the tramp and found the twenty five-dollar gold pieces, yet Higgins managed to give the impression that it was he, and not Mr. Perkins, who had discovered them; as the reader knows, he had been scared out of his seven senses when he visited the hermit’s shanty and had refused to touch the body, and he now was obviously under the firm impression that he had walked boldly in, uncovered the corpse, searched the clothes upon it, inventoried the furniture and in general conducted himself with the brilliant audacity of one of Dumas’ heroes and the astuteness of Mr. Sherlock Holmes; which, to tell the truth nobody would have minded in the slightest degree, least of all Mr. Tutt, for the slab-sided old sheriff was a good old scout, a deacon in the Baptist congregation, as well as the leading Sacred Camel in that part of the Mohawk--had it not been for what Squire Mason regarded as his deliberate act of treachery in giving Skinny a good character--all of which we will set down in due course. By the time he was called to the stand Mose Higgins was almost of the same mind as the Sheriff of Nottingham in the opera of Robin Hood when he said

“You may search aye, But you never will descry Such a wonderful man as I! . . . . . I never yet made one mistake! I’d like to--for variety’s sake!” . . . . .

So in full glory he described first the pursuit and final capture of Skinny and how he had found his pockets full of the hermit’s gold--the pieces all dated 1910--shining, lustrous, five-dollar pieces--of exactly the right sort to make the mouth of any tramp water; then how the prisoner had positively declined to say a word in defense or extenuation; and then, warming to his subject, he gave a vivid picture of his visit to the shanty just at nightfall and how he had discovered the hermit lying in his gore, with another--the last!--gold piece clutched tight in his left hand--also dated 1910, Skinny’s pipe upon the table, and the marks of fresh footprints in the potato patch. It was all clear as a bell and he figured largely in his own account as rather a dashing, nervy sort of sleuth who knew just what to do and had done it.

Squire Mason, well satisfied, turned him over to Mr. Tutt with a gesture of “now-go-ahead-and-do-your-damnedest!” Now, Mr. Tutt’s damnedest in this particular instance was not spectacular, but he nevertheless elicited more than one fact that played an important part in the denouement of the trial. He knew that the sheriff was friendly and also was a Sacred Camel, but he also knew that he was an honest public officer even if he gave himself a little the best end of it.

“Sheriff Higgins,” said he, approaching obliquely what might be called the “time element” in the case. “What hour was it when you and your posse left Pottsville for the scene of the crime?”

The sheriff pondered.

“About quarter past five,” he answered.

_Q._ “And how long did it take you to reach Turkey Hollow?”

_A._ “I should say about half an hour--carryin’ the camera and all.”

_Q._ “Was it light when you reached the shanty?”

Now the darker the sheriff made it the greater impression of bravery would he create upon his auditors.

_A._ “It was gettin’ along towards six--and there wasn’t much light. Inside, it was pretty dark!”

_Q._ “Was there a clock in the shanty?”

_A._ “Yes.”

_Q._ “Did you notice the time?”

The sheriff hesitated.

“To tell ye the truth,” he confessed with apparent frankness, “although I’m positive sure I looked at it--must have!--I didn’t get no real idee o’ the time.”

That helped Mr. Tutt not a whit, so he veered off on another tack.

_Q._ “Rather a gristly scene, wasn’t it?”

One would have said that Sheriff Higgins thought the examination of dead bodies a pleasant form of light entertainment.

_A._ “Not partic’ly,” he answered casually.

_Q._ “Did you search the body?”

_A._ “Oh, yes--natur’ly.”

_Q._ “What did you find?”

Sheriff Higgins removed with deliberation from his vest pocket a cheap memorandum book--evidently a recent acquisition--with cardboard covers, the edges dyed a bright blue. On the outside in letters of gigantic script appeared the words “Don’t Forget!”

Running his thumb through the leaves, he opened it at the right place, adjusted his spectacles, cleared his throat and read in an aggressive, declamatory tone:

_A._ “One fish hook--one copper cent--one piece of string--two loose buttons--nine cloves--”

_Q._ “What was that?”

_A._ “Cloves--nine cloves----”

_Q._ “Go on!”

_A._ “--one tobacco pouch--five matches--one pipe--one jackknife--one piece of gum--one piece wax--one nail--one bottle of whiskey--one smaller bottle of whiskey--one cork, extra--a handkerchief--eleven large pins--one pencil end----”

_Q._ “Anything else?”

_A._ “And one hundred dollars in bills.”

_Q._ “Is that all?”

_A._ “Absolutely.”

The sheriff closed his book and returned it to his pocket. Clearly there was nothing in this catalogue to shed any light on the nature of the murder, except possibly to indicate that the assassin had been in too much of a hurry to search his victim, which was not a fact favorable to the defense. So Mr. Tutt moved on to the potato patch.

Here, as all admitted, the sheriff had done some slick work. He had carefully measured the footprints and then protected them from disturbance with a low wire fence. The earth had been soft and squashy and each one had been as distinct as a fossil in the museum. He had brought along one of Skinny’s boots and it fitted into each print exactly! Even the broken down heel was perfectly reproduced. There was nothing to be done about it so Mr. Tutt handed the sheriff a few large bouquets to put him in a good humor. Then he asked:

_Q._ “Known my client for some time, have you, sheriff?”

_A._ “Since he was a boy.”

_Q._ “Does he come from around here?”

_A._ “Yes. He was born over Holbrook way.”

_Q._ “Parents living?”

_A._ “No--he’s an orphan.”

_Q._ “Do you know his reputation for honesty, peace and quiet?”

“Look here!” interjected Squire Mason. “You’re makin’ the sheriff your own witness.”

“I’m perfectly well aware of that!” replied Mr. Tutt calmly.

_A._ “I do.”

_Q._ “What is it?”

The sheriff looked round the room slowly as if to call those present to corroborate him.

_A._ “There ain’t a quieter, honester, more law-abidin’ citizen in this here county than Skinny Hawkins,” said he with conviction.

_Q._ “Ever know him to do an unkind act?”

“I object!” shouted the Squire, springing to his feet. “That ain’t proper and you know it.”

Judge Tompkins smiled indulgently.

“Oh, I’ll give Mr. Tutt some latitude. It’s a serious case!” said he.

_A._ “No,” answered the sheriff. “I never did. He’s got a real kind heart. He wouldn’t kill a grasshopper!”

Mr. Tutt bowed.

“Thank you kindly, sheriff!” he remarked. “That is all!”

Now Squire Mason had heard this testimony with rising indignation. Moreover, his rejection as an Abyssinian Brother by the Order of the Sacred Camels of King Menelik rankled in his bosom. And he did not propose to let the sheriff get away with anything like that.

“Hold on a minute!” he cried, as Mr. Higgins prepared to descend from the chair. “You’re sheriff of this county, ain’t you?”

“I be!” retorted the witness. “That is, I was a minute ago an’ if nothin’ ain’t happened since----”

“It’s your business to get th’ evidence agin’ criminals and convict ’em, ain’t it?” snapped the squire.

“If I think they’re guilty,” answered the sheriff.

“None of your business to try to help ’em, is it?”

“I ain’t tried to help nobody!” shot back the sheriff indignantly. “I’ve done my duty in this case better’n most!”

“Brave feller, ain’t ye?” said the Squire with scorn.

“Brave as you be, I guess!” countered his adversary.

The judge, Mr. Tutt and the jury were all enjoying the sideshow.

“Ain’t it a fact you was so skeart when you went to the shanty you ran out and was sick? An’ wouldn’t go back?”

Sheriff Higgins stood up and waved his long arms, almost speechless with rage.

“It’s a gol-durned lie!” he shouted. “Who told ye that, I’d like to know?”

“Gentlemen! Gentlemen!” cautioned his honor. “The personal courage of this officer is not an issue. Call your next witness, Mr. District Attorney.”