The Just And The Unjust (19 page)

'It was divided. I don't know for sure how. There is three piles, about the same. Oh, yes. Then Bailey sees Dewey look at them; so he reaches and takes this hundred dollar bill off of Howell's, and shoves it to Dewey.'

'Now, it is your belief that while you and Dewey Smith were absent, getting the sandwiches, the other three, Bailey, Basso, and Howell, also went out, taking Frederick Zollicoffer with them?'

'I know they did. They are talking about it —'

'And the conversation was in your presence?'

'Yes, sir.'

'What, if anything, did you hear them say in reference to Frederick Zollicoffer?'

'Well, one thing I heard them say; after they shot him, they tried to hitch the irons on him in the car; so they said they finally had to take him out of the car and lay him on the ground and tie the irons on him; and then they put him back in the car; and take him up to the bridge, and throw him over.'

Harry Wurts stood up. 'I object because this witness is testifying to conversations with the ridiculous implication that all three men are all saying the same things all together, all the time. I submit that this witness should be required to answer specifically, and identify the particular individual who made each particular statement.'

Judge Vredenburgh shook his head. 'No. Not if they were all present and heard it. Who made each particular statement is a matter for cross-examination.'

'Continue,' said Abner.

'Well, I heard them say —'

George Stacey said, 'Now, is this supposed to be a conversation this man heard?'

'Yes, it is,' said Bunting from his seat. 'His Honour has been over all that, Mr. Stacey.'

'Well, I think he ought to name the speaker.'

Bunting said, 'Where have you been for the last five minutes?'

Judge Vredenburgh said, 'He may if he can. He does not have to. It is a matter for cross-examination.'

'Well, should I go on?' said Leming.

'Yes,' said Abner. 'Do you remember who was speaking? If so, name him.'

'Basso. Basso said they are there, driving down this road, and Bailey fires a shot. The first shot Bailey fired. And Basso said he fired the second shot.'

Abner said slowly, 'The defendant, Robert Basso, there—' With a startling simultaneous movement like men drilling, or a ballet, every juror's head turned '— told you that Bailey fired the first shot; and he, Robert Basso, then fired a second shot?'

Basso, looking at the table, lifted a hand and yawned. The simultaneously turned faces of the jury simultaneously quivered with shock and outrage at such calm callousness; but Abner guessed that the calm was assumed. Basso had been hit. The bald truth jarred him, because Basso's defence against truth was every man's defence; a sort of story of his life in which he, the ill-treated hero, understood all, explained all, excused all. It took care of everything — his shooting of Zollicoffer, his trapping by the police, his helplessness here on trial for his life; but it did not take care of that sudden turn of faces. In them, the world suddenly looked him to shame. Given time, that too might be taken care of; but at the moment, in anguish, he lost his grip; he weakly tried to outrage those who had outraged him.

Leming said, 'That is right.'

Abner said, 'And do you recall any further conversation with the defendant, Robert Basso, that night about that time? A conversation about a gun?'

'That is objected to!' George Stacey said in some excitement. 'It is decidedly leading!'

Judge Vredenburgh said, 'Objection overruled.'

'Well,' said Leming, 'not exactly a conversation. Basso give me a gun. He says, "Chuck it away somewheres."'

'And did you?'

'Yes, sir.'

'Did you throw it out of the car; or —'

'Objected to!' said Harry.

'Correction,' Abner said. 'Where did you throw it?'

'I threw it in a little creek, like.'

'Do you know where the creek was?'

'Well, it was by the road. I think, what is called the Paper Mill Road.'

'Do you know where the Black Cat Inn is?'

'Objected to!' said Harry. He got to his feet again. 'I submit that the Commonwealth has no right to ask leading questions. Mr. Coates knows better than that; and I think these defendants are entitled to have the questions asked in the proper way. I object to that question.'

'Objection sustained,' Judge Vredenburgh said. 'You must take care of the location, Mr. Coates.' Abner said, 'Well, you did throw this gun into a creek?'

'Yes, sir.'

'Would you recognize that gun again?'

'Yes, sir.'

Abner lifted the paper laid over it on the table before Joe Jackman, and said, 'I show you a gun that has been marked for identification as Commonwealth's Exhibit number —' He paused, and Joe, marking the tag, said, 'Eight.'

'Commonwealth's Exhibit number eight; and ask you to look at it.' He picked the gun up and gave it to Leming. 'Did you ever see that before?'

'This is the one that Basso had and give me the night Zolly was killed.'

'At any time subsequent to the night when you threw a gun into a creek — '(that ought to hold Harry!)' — did you point out to Mr. Costigan, the county detective, the creek into which you had thrown it?'

'Yes, sir.'

'And this is that gun?'

'Yes, sir.'

With Frederick Zollicoffer disposed of, and the money divided, everyone left the Rock Creek bungalow. It was a fairly workmanlike job, and in engineering it Bailey showed the qualities that make a man a leader. Bailey might not have great intelligence or abilities, but his whole aim, thought and study was that of the born leader — to look out for himself; and he did it with that born-leader's confidence and intensity that draws along the ordinary uncertain man, who soon confuses his own interest and his own safety with that of the leader. The others did all the work — found Bailey a victim, arranged a hideout, collected the money. Bailey simply put a period to it with a revolver shot, and disposed of the body where nobody would ever find it. The bones of Frederick Zollicoffer with the wires and the iron weights could have lain in the bottom of Fosher's Creek until Judgment Day. That they didn't, that they lay there only a day or so over three weeks, was no one's fault but Bailey's. This was where the lack of abilities and lack of intelligence came in. The lack was apparent when Bailey took up crime, for the first test of ability and intelligence is to find a field of endeavour in which profits are large and risks small. A week or so after the murder, Bailey left the others, having got what he could out of them, and went to New York. He left his fairly workmanlike job behind; but he carried his fatal lacks with him; and if not this time, then the next, or the next, they must surely finish him. Abner said, 'How long did you and Basso remain at this house?'

'Around about ten days,' Leming said, 'I think ten days. Howell wanted we should get rid of this car; and after about a week, they were arguing about that. So finally Basso said he would take care of it —'

'Yes,' said Abner. 'He was arrested the twenty-sixth, according to our records. That would be a week. Now, during this period, from Sunday, April eighteenth, to Sunday, April twenty-fifth, did you have any conversations with Robert Basso?'

'Yes, sir,' said Leming, recognizing what he wanted. 'Yes. I had a conversation with him.'

Harry Wurts, recognizing it just as well, said, 'If this is going to be a particular conversation on some particular subject, I must ask that you distinguish it as to time and place, Mr. Coates, if you will.'

'I am about to do that,' Abner said. 'You mentioned a conversation that you had with Basso,' he said to Leming. 'Was there something about it that fixed this conversation in your mind?'

'What conversation?' said Harry. 'Did he have only one all the time they were there?'

'Yes,' said Leming, 'this particular one was in the bedroom, I remember —'

'Which particular one?' said Harry, 'Mr. Coates asked you if you had any conversations. Did the Commonwealth prepare you carefully on one particular conversation?'

Bunting said, 'Your Honour, who is conducting this examination in chief? The assistant district attorney, or Mr. Wurts? I must protest—'

Judge Vredenburgh tightened his lips, his cheeks dimpling with the repressed smile. 'The witness says that he remembers a conversation in his bedroom with the defendant Basso. He may repeat this conversation, if Mr. Coates wishes him to. If the substance of it is not material, that will be what you may and should object to, Mr. Wurts.'

Abner said, 'Now, if you will just describe that conversation.'

'Well,' said Leming, 'we are lying down in the bedroom, and we are talking about different things; so Zolly's name happened to be mentioned; and Basso spoke up and said he hated to have to kill any man in cold blood; so he told me about Bailey firing the first shot, that he fired the second.'

'By "he" you mean?'

'Bob Basso.'

'Basso fired the second shot, and Bailey fired the first shot?'

'Yes,' said Leming. He spoke with understanding regret. You could see that he thought Basso's expressed sentiment did Basso credit; and though he was obliged by his own interests to testify against Basso, he would not do Basso the injustice of denying him right feeling. 'He said he never liked to kill a man that way; especially after he got to know the man so good while he was watching him; and he hated to do it. He watched him, and they played cards, and all; so he got to know him good. He hated to do it. He says if a man puts up a fight with him, he would not have minded it so much.'

'Was anybody else there during this conversation?'

'In the house there was; not in the room.'

'All right. Now, did you ever have any conversation with the defendant Stanley Howell in reference to Frederick Zollicoffer?'

'Yes, I had one. I was out driving with him, and we happened to come to that bridge.'

'That bridge?' said Harry Wurts. Howell, beside Harry, was gazing at Leming with an intensity of mortal malice or fear. What the increased sickness and passion in his face proved — that he feared Leming would now tell some truth about him? That Leming, because he had lied about Basso, would now lie about him? —Abner found it hard to decide. He said to Harry, 'The Fosher's Creek bridge, Mr. Wurts.'

Leming said, 'We are near that bridge. I asked Howell, I says, "Did you really kill Zolly on the road, or did you kill him in the house?" There had been some talk about killing him in the house. He says, "No, we killed him on the road.'' I says, ''He is in there?'' and he says, ''I guess it won't do no harm to tell you now. Yes, he is." He never knew Basso told me.'

'And where did you indicate when you said, "he is in there''?'

'On the bridge. I pointed like to the deep water.'

'The deep water of Fosher's Creek?'

'Yes.'

'And that was where Stanley Howell said that he had helped Bailey and Basso put Frederick Zollicoffer's body after the shooting in the car?'

'Yes, sir.'

Abner looked at Bunting, and Bunting nodded. To Harry, Abner said, 'Cross-examine, Mr. Wurts.'

Judge Vredenburgh said, 'It is five minutes of twelve. I think it would be convenient to break now. Until one-fifteen.'

He and Judge Irwin arose. Nick Dowdy tapped his block. With a shuffle and stir of people standing, stretching, beginning to speak, movement spread over the courtoom; the benches emptying, the jury going out the side door. Rocked back in his chair, Bunting produced and lit a cigarette. Leming, leaving the witness stand, stood motionless a moment and Hugh Erskine crooked a finger at him. Mrs. O 'Hara went out the door with Susie Smalley. Adelaide Maurer came up to Abner. 'Ab,' she said, searching in her folded sheets of copy paper, 'how much money was the ransom what's his name paid? I thought I heard someone say ten thousand; but your man said when they counted it, it was eight; and I gathered that what they had been expecting was twelve.'

'Eight was what they got,' Abner said. 'Know what they asked for first? A hundred thousand. If they'd be any use to you, I think Marty would show you the notes. He has them right there. Ask him.'

John Clark approached, tucking his glasses, which were attached to a chain that reeled into a little round metal case on his lapel, into his pocket. He shook his long scanty locks of white hair. His noble, large-nosed face was tilted up. He eyelids drooped over his blue eyes. 'Abner,' he said, 'how's the Judge? All right for me to go around and see him? Or had I better not?'

'Why, yes, he'd be glad to see you, Mr. Clark,' Abner said. 'He's getting on fine.' Abner did not know whether his father would thank him for that.

'Good,' said Mr. Clark. 'I may go up this afternoon, if it's all right. This woman of mine. I think she'd better plead guilty, Ab.'

'We think she'd better, too,' Abner said. He saw Bonnie and Inez Ormsbee standing up, getting ready to leave. 'If she decides to, tell Marty, will you?'

'Well, now, of course, if I advise her to, she'll kind of expect, you know —'

Abner had observed before this, though every time it surprised him, that older men, lawyers like John Clark who had been in practice thirty or forty years, felt a sort of privilege, really, assumed a sort of prerogative, to ignore arbitrary canons of ethics; as though the law were something that applied to the lay public, and rules were for the record. They understood each other; not in a cynical or dishonest way, but just as a matter of common sense. You went through the forms in court, just as you addressed young Horace Irwin or Tom Vredenburgh as your Honour; but, for heaven sakes, John Clark could remember them when —

Abner said, 'Mr. Clark, you know all we can tell her is that it's up to the Judge. She mustn't expect anything —'

'Stuff and nonsense, son!' said Mr. Clark. 'How many guilty pleas would you get if nobody expected anything? And just where would you be if everyone stood pat and demanded that trial to which he has a constitutional right? I'll tell you. You'd be up the creek without a paddle.'

'I guess we would,' Abner said, 'but I'm not district attorney. You explain it to Marty and see what he says. Would you excuse me a moment, sir? I have to speak to someone —'