The Just And The Unjust (17 page)

'All right,' said Harry, holding up his hand. 'If your Honour please, we object to this witness. We submit that under the law a joint defendant cannot be a witness either for or against those indicted with him until his own indictment is disposed of by trial, and, as the case may be, acquittal, conviction, or a nolle prosequi. That is not the condition of this record in this case.'

Abner went back to the Commonwealth's table and Bunting stood up; but Judge Vredenburgh said, 'Do you have any authority for that, Mr. Wurts?'

'Yes, sir,' said Harry, holding up his slip. 'I cite Wharton's
Criminal Evidence
, volume one, paragraph four thirty-nine; and Bishop's
Criminal Procedure
, sections ten twenty, eleven thirty-six, and the cases thereunder, which I would like to submit to your Honour.' He turned, lifted the open books from the table beside him and brought them up to the bar. Nick Dowdy took them and laid them before the Judge. Judge Irwin, approaching his bald head to Vredenburgh's ear, said something. Judge Vredenburgh nodded, stared briefly first at one volume and then at the other. 'Objection overruled,' he said, delivering the books back to Nick Dowdy. 'You may have your exceptions.'

Leming looked politely at the Judge, and then at Harry, and then at Abner. Bunting said, 'That puts the cork in there.' He crumpled up the paper on which he had noted his opposing authorities. Abner went back to face the jury; and Leming said, 'Yes, sir. I do.'

'And do you know the other defendant, Stanley Howell?'

'Yes, sir.'

'How long have you known Robert Basso?'

Leming had known him for some time. The story of how they met was naturally not relevant, and anyway Abner had no wish to remind the jury that Leming was not so harmless as he looked. Leming, an old hand, had met Basso in jail. Basso was relatively new, just out of reform school, and Leming, by being older, by his boasting, by showing, as he surely could, that he knew the ropes, probably induced Basso to work with him after they got out. Basso, young, vicious, and without the experience to see danger, was just what an older man like Leming wanted. Basso could do the risky and strenuous dirty work in schemes that Leming could think up.

Leming was guarded about speaking of such matters. He freely admitted as much of his criminal record as he knew would be forwarded as soon as Bunting broadcast a request for it; but the list of Leming's arrests and convictions were his failures. He had not always failed. In telling his story Leming picked his way from fact to established fact. He did not want to let out anything that Bunting might recognize as likely to interest the police in certain cities. His fear and dislike of Bunting were partly due to his early realization that Bunting was no fool and would catch any slips.

Though some of Leming's track was thus covered by silence and omission, it could be followed — a sort of tour of that everyday, routine world of professional crime. It did not differ as much as the imagination might suggest from the everyday world of those who were not professional criminals. In one, as in the other, the principal problem was how to make a living; and criminals who made good ones were as rare as millionaires. The rank and file could count on little but drudgery and economic insecurity; and for the same reason that most men in lawful pursuits could count on little else. They had no natural abilities, and lacked the will and intelligence to develop any.

Leming spent most of his time job hunting. He did not mean quite what the law-abiding incompetent meant by the dreary phrase; but the results, in their high proportion of disappointment and dissatisfaction, were almost identical; and in fact Leming's motions were those of the ordinary shiftless man looking for work. If you asked him what work, he answered with exemplary earnestness, any work at all. In search of employment, he would appear briefly taking a train here or there, getting a lift in somebody's car, disappearing into the poorer streets of the eastern cities. Often he could name jobs that he had obtained. Probably he could have named others, but thought it better not to, because, either while he held them, or directly afterward, there were pilferings, or even payroll robberies, not yet cleared up.

Several years before Leming met Robert Basso he had got to know Stanley Howell. Very likely it was an acquaintanceship resulting from the habit Leming had contracted of taking drugs, which Stanley Howell distributed. This was just a guess; plausible, because it would explain Howell's knowing so much about Frederick Zollicoffer — his habits, where he lived, the likelihood of being able to extort money from him. Perhaps Howell was once part of a little sales organization Zollicoffer had worked up; and Zollicoffer might have, for one reason or another, got rid of Howell, refused to use him any more. At any rate, Leming, coming and going on those searches for work of his, treated Howell's place as a base. When he and Basso got out of jail, Leming took Basso there, no doubt with the hope of making him useful.

It was unlikely that being useful to Leming had ever been part of Basso's idea. He meant to use Leming; and when he met Howell, Howell. Since they were two to one, he probably disguised his intention for a week or so, listening to their talk, sizing up the prospects — poor, he probably concluded, as long as a doper like Leming and a gutless wonder like Howell had charge. Perhaps the Zollicoffer idea looked good to him; and so one day he brought around a friend of his who also brought a friend.

Basso's friend was Mike Bailey, and Bailey's friend was Dewey Smith. In neither case was the word 'friend' exact. Basso feared and respected Bailey; Dewey Smith was less than nothing, a half-wit who did what Bailey said; but now there were three against two, and one of the three, Bailey, was formidable. Abner had seen the rogue's gallery pictures of Bailey — a pop-eyed young man with a prominent Adam's apple and large irregular features. He did not look formidable; but few men do with a number hung around their necks, floodlights on the face, and the head against a wall-scale showing in feet and inches the subject's height. Formidable looking or not, Bailey proceeded to take over. Within a week they were all doing what Bailey told them to do. He had Basso steal a car; he had Leming plan out a route to Zollicoffer's house; he had Howell rent a bungalow out on the Rock Creek Road; and, if Dewey Smith were to be believed, he had Susie, whether through love or fear, sharing his bed.

While he continued with his questions, Abner tried to keep in mind as much of this knowledge of the general situation as he could. He needed it to check against Leming's replies. He was watching sharply, half expecting the first contradictions, a hesitancy, a little sticking or resistance, that might mean funny business; but Leming, though he avoided looking in the direction of Basso and Howell, was answering properly. He said that it was about a week after Bailey came that he heard the plan.

'What did you hear?' Abner asked.

'This about snatching Zolly, that we would do it.'

'Kidnapping Zollicoffer,' Abner said. 'And what exactly did they say?'

George Stacey said, 'If your Honour please, I think this witness should be pinned down to which of these men made the statement.'

'Or, at least,' Judge Vredenburgh nodded, 'which ones were present when the statement was made. Yes.'

Abner said, 'Were Basso, Bailey, and Howell all present?'

'Yes, sir. All of them.'

'Now, just state what you heard these three men say.'

'Why, they were talking about the best time at night to go out and get hold of him. I just can't tell you exactly word by word what they said.'

'Well, give the substance,' said Abner.

'They decided the best time to get out to his house was about eleven at night, I believe, so they asked me would I show them the way; and I told them, no.' Leming paused; but only for the reason that he doubtless needed an instant to consider implications; and, if necessary, not to invent or falsify the facts, but to edit them. 'I had told them I was going over to New York, and they told me not to go to New York; and I told them I had to go; and so they asked me when I would be back. And I told them the following afternoon, late; so I got over to New York, and I was stuck there a couple of days.'

The trip, Abner knew, had been to get dope. The trouble with asking a witness to give the substance was that the pressure of your questions, if not leading, certainly directing, was removed. There was no reason to help Harry put emphasis on Leming's former habits. Ignoring the concerted gaze of the jury, whose innocent instinct would be, regardless of relevancy, to ask: Why did you go to New York? Why did you have to? What do you mean, you got stuck there? Abner said, 'Well, when you returned, did you have any further conversations?'

'Yes,' said Leming. 'So when I go up there, they were pretty sore about it, about me staying over; so they bawled me out pretty good about it; and I told them I had to stay over, the occasion called for it.'

'After that, what, if anything, did they say to you?'

'So, finally,' Leming said, 'Bailey came to me and he said, "Listen :. .''

''Were the other two there?'

'Yes, sir. Right there.'

'All right. What did he say?'

'He told me, he said, "We were out there to grab Zolly the other night, and we got lost, and we want you to take us to-night." I said, "No, I am not going to take you. I told you before I would not take you." And Bailey said, "If you know what is healthy for you, you will take us out there to-night."'

The formal, artificial-sounding phrasing served Leming's purpose — to show that he was threatened and felt fear — very well. Bailey might or might not have expressed himself so stiltedly; but the sinister quality of the conversation, by an unconscious onomatopoeia that picked words to fit the serious sense, was increased if anything when reported this way. 'All right,' said Abner. 'Then what was said?'

'So, finally, I told them, I says, ''I will take you as far as Parkside'

'— that is the name where the road goes out to Zolly's. So we came to an agreement. They said, "That is all right. Parkside is all right." So I asked them what they were sore about. Well, it appears the night I left, there was this machine pulled down the street with the lights out, with two men in it, and they got out.'

'Now, this is what they told you, is it?' Abner said. It was a curious little story, both for the light shed on relations between the kidnappers; and for the possibility, not to be ruled out, that Leming did, in fact, know more about 'this machine' than he admitted. 'Yes,' said Leming, 'so Bailey spoke up; and he said, ''It looks pretty funny as soon as you leave, this car comes right down. It didn't look so good to us." And they claimed the whole three of them went out to see what these men were looking for; and they followed them, while these men were striking matches, looking at the different houses; and finally after fifteen or twenty minutes they went away. So I spoke up, and I says, "It looks like you trust me pretty good, then." And Basso says, "What would it look like to you?" As much as to say —'

'Well, I object!' said Harry Wurts.

'All right,'' Abner said. 'Never mind the ''as much as to say". Basso said, '' What would it look like to you?'' Now, will you state whether, on this night of your return, you did go to Parkside?'

'Yes, sir.'

'Well, just tell us what you did, and what happened.'

While Leming explained about the trip — he in one car, leading the way; the other three in another, Abner could not help wondering whether the real reason that Bailey assented to an 'agreement' which gave Leming no active part, wasn't that Bailey had decided that Leming, with his drugs, would be worthless or worse. It would be interesting to know why Bailey trusted him at all, in that event — and the answer probably was that, in spite of all appearances of planning and strategy, Bailey acted mostly on impulse, and so never could think far ahead.

'Very well,' said Abner. 'And when you saw the other car come back, what?'

'Well, I saw they stopped; so Howell got out of the car, and I got out, and I came over.'

'What, if anything, did Stanley Howell say to you?'

'He was laughing,' Leming said. "He says, ''We got Zolly in here.'''

'Did Stanley Howell say anything else?'

'He told me they had to bust his head open pretty good, and said he was bleeding like a pig.'

'Yes. Anything else?'

'Well, he told me they snatched Zolly, and had to bust his head, and he put up a pretty good fight with them. He said when they first grabbed him, Zolly thought they were the cops. He pulled out a can with some opium, and about fifty or sixty dollars, and said, "Here is the money," as much as to say, leave him go for it —'

The jury stirred. They were ready to go off the track again; for, of course, into every mind jumped the meaning. Down there, policemen could be bribed. This man thought it was the police — and why; unless the police did come sometimes; and then for fifty or sixty dollars, let him go. They sat up sharply. Left to themselves, the jurors would have dropped everything and haled in those corrupt policemen, and dealt with them. Abner felt like telling them that the detail, for what it was worth, had been brought to the attention of the district attorney's office in that county; and this was all they could do; and all that would be done, too. It was one thing to learn of irregularities on third-hand evidence; it was another to prove that they ever took place. 'This is what Stanley Howell told you?' Abner said. 'Yes.'

The jury looked almost mutinous, and perhaps Harry Wurts thought it would do no harm to give them a little time to mull over the wickedness and hypocrisy of those who enforced the law. He said, 'If your Honour please —' He got up and came to the bar.

'All right,' Judge Vredenburgh said, 'if it is necessary.' Max Eich marched over to Howell and they went out the door together. 'This is a five minute recess,' Judge Vredenburgh said, 'but I don't want everyone going out. Too long getting back.'

Abner sat down beside Bunting, who said, 'What's this about Pete Wiener and some accident last night?'

'Gosh!' said Abner. 'Forgot about it! Pete called after I got home. One driver was killed. Pete had the other for manslaughter. He ought to be up in jail here. I told Pete to help him get a habeas from Judge Irwin this morning.'