The Just And The Unjust (47 page)

Abner tipped his chair, easing himself to a more comfortable angle. He looked past the defence's table to Warren Lyall, who sat in the tipstaff's seat behind. Next to Warren was Mrs. O'Hara, and next to her sat Susie Smalley, one thin leg thrown over the other under the skimpy skirt. She seemed to be staring blankly at the back of Howell's head. John Clark sat next to her. His air was calm and pompous. Dewey Smith was next to him, and Dewey was thoughtfully picking his nose. With an expression so like John Clark's that it could be seen to be what it was — the professional expression—Mr. Servadei looked at the Judge, polite and reflective. Between him and Hugh Erskine sat Leming. Leming was uneasy; and Abner supposed that he would go on being uneasy as long as Howell and Basso lived.

Judge Vredenburgh said, 'The distinguishing mark of murder is malice aforethought. This is not malice in its ordinary meaning alone, a particular ill-will, a spite or grudge. Malice is a legal term, implying much more. It means wickedness of disposition, hardness of heart, cruelty, carelessness of consequence, and a mind without regard for social duty. Of possible kinds of murder, the Act of Assembly provides as follows: "Murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or in attempting to perpetrate, any arson, rape, robbery, burglary, or kidnapping, shall be deemed murder in the first degree; and all other kinds of murder shall be deemed murder in the second degree"

Judge Vredenburgh looked up from his desk. 'You will notice that under this Act, murder in the first degree may be by poison or lying in wait. There is no evidence of such means in this case. Or it may be any wilful, deliberate, premeditated killing. It may equally well be any and all killing, whether premeditated or not, done in the perpetration of those felonies named.

'In the kind of murder described as wilful, deliberate and premeditated the intention to kill is the essence of the offence. Therefore, if an intention to kill exists, it is wilful. If the circumstances evince a mind fully conscious of its own purpose, it is deliberate. If sufficient time is afforded for the mind to formulate a plan of action, it is premeditated. No particular period of time is fixed by law as sufficient. It may be very short. It must be long enough for the intent to form, for the means or instrument to be selected, and for the design to be carried into execution.'

Bunting murmured to Abner, 'Hope he doesn't get too highfalutin for them. Know what evince means?'

'And so do they,' said Abner. Judge Vredenburgh's style, especially when he had worked on it, was better than the legal average. The Judge talked the way he looked — severe, somewhat curt, short with liars and people who wasted his time; his even-handed sense of justice sometimes overborne, or nearly overborne, by his well-known little crotchets; his sharp observation and good sense supplying him material from which he occasionally (he was no joking judge) struck out a flash of quick, rather grumpy, humour. Abner preferred Vredenburgh's charges to Judge Irwin's.

Just the same, the charge was to the jury, and Judge Irwin, whose habit was to ramble along, repeating himself, saying it the long way, impressed on the jury the things they should know. The circumlocutions gave his hearers time to take in a point, mull over it a moment so that it left an impression; and then, without the worried feeling that they had meanwhile missed something, they found the next point before them. Judge Irwin, though talking all the time, contrived not to say anything until they were ready and waiting.

Judge Vredenburgh said, 'All felonious homicides and intentional killings are presumed by the law to be murder in the second degree. This is a presumption apart from and not to be confused with the invariable presumption that all defendants are innocent. The Court instructs you so to presume, here as in every criminal case. The burden of proving guilt is and remains on the Commonwealth throughout the trial. In the case of murder, the Commonwealth must also prove that the murder amounts to more than murder in the second degree. For the purpose of so proving, the Commonwealth has offered testimony along two lines: first, that the killing was wilful, deliberate, and premeditated on the part of the person or persons alleged to have shot Frederick Zollicoffer, which is to say also on the part of those who were present, knowingly helping, aiding and abetting the act. Second, that the felonious killing of Frederick Zollicoffer was perpetrated in the course of committing a kidnapping in which the defendants are alleged to have taken part. If the Commonwealth has established these contentions, or either of them, beyond your reasonable doubt, then these defendants, or either of them, would be guilty of murder in the first degree.'

Judge Vredenburgh took a sip of water from the paper cup standing in a holder on his desk. He turned a sheet of his manuscript. In the courtroom there was a corresponding little stir and pause. At the defence's table Stanley Howell put his head toward Harry and made an anxious inquiry. Basso's head was bent, his eyes closed. He was either asleep or giving a good imitation of sleep. Behind them, Susie still stared, her mouth open a little.

Judge Vredenburgh drew a breath and leaned forward, his elbow on the desk, his chin on his hand. He said: 'Most of you are probably familiar with the term; but the Court will now define reasonable doubt as it is understood in the law. Reasonable doubt is a doubt that arises out of the evidence or lack of evidence. It is such a doubt as would make a reasonable man in the conduct of his own affairs and in a matter of importance to him, pull up, hesitate, and seriously consider whether the thing he thinks of doing is right and wise. It must, however, be a real and substantial doubt; not, for instance, the idle reflection that nothing is perfectly certain in this life. It is a doubt that bases itself on serious gaps or loopholes in the evidence; that persists actively and positively. It is the doubt of a man who has heard and considered all the contentions of the prosecution, and yet who is not satisfied that the defendant must have done what he is charged with doing.

'If you feel such a doubt about the guilt of these defendants it is your duty to give them the benefit of your doubt and to acquit them, or that one of them that the doubt touches. If, on the other hand, you find no good ground for doubt, if what you have heard results in your abiding conviction of their guilt, it is equally your duty to convict both or either of them.'

Judge Vredenburgh looked at the defence's table where Basso still sat with his head bent and eyes closed. Judge Vredenburgh compressed his lips; and George, watching him, moved an elbow, jogging Basso's arm. Basso's eyes came open and Judge Vredenburgh said, 'Before referring to the testimony and your duties toward it, the Court deems it proper to instruct you on the status of the defendant, Robert Basso —'

Basso closed his eyes again and it was plain that Judge Vredenburgh observed his impudence. Judge Vredenbrugh said, 'When he was arraigned before us, Robert Basso elected to stand mute. That is, he refused to enter a plea. The prisoner's plea is the answer he makes to the clerk when the clerk after reading the bill of indictment to him in open court, asks him whether he pleads guilty or not guilty.

'In a capital case, where life is or may be at stake, the law is tender of the prisoner. 'Judge Vredenburgh paused; and Basso could not have been quite so indifferent as he seemed, for he must have felt the terrible silence and his eyes opened. Judge Vredenbrugh said, 'If he does not know his rights, the law will inform him of them and sustain him in them. If the prisoner cannot or will not safeguard his own interests, the law will safeguard them for him. It will not allow him, by any act that the Court can nullify or neutralize, to put himself, his rights, or his interests in jeopardy greater than the jeopardy that a man who pleads properly and is tried by God and his country submits to. Therefore we directed that a plea of not guilty be entered for Robert Basso. That became his plea; and it was, and it is, in no way prejudiced by his refusal to plead for himself. He has the benefit of the presumption that he is an innocent man. You may infer nothing from his refusal to plead, or his failure to testify; and in making up your minds about his guilt or innocence you will ignore everything but the actual evidence presented to you.'

The colour of repressed annoyance faded off Judge Vredenburgh's forehead. Glad to get back to an impersonal topic, he said, 'We will now consider the testimony. First of all, I wish to point out that it is your duty to remember it. You will not accept —'

Abner, who could feel little interest in hearing that story all over again, looked at the jurors. He did not believe that Basso would get the benefit of being considered innocent. The habit of innocence, unjustly accused, is not to keep still. In its alarm and indignation, innocence cannot wait to answer. Silence showed a wish to conceal something, and no juror was going to suppose that the 'something' was innocence. Even the law, trying to maintain that fiction, was perhaps tender not so much of the prisoner as of the record that might go up on an appeal.

Behind Abner, in the seats along the curving rail, there was a sound of smothered disturbance, and Abner, recovering the Judge's unattended last words, realized that they had been about Frederick Zollicoffer's body. Mrs. Zollicoffer, whose presence Abner had almost forgotten, sat beyond the centre aisle next to Mrs. Meade in her tipstaff's jacket and frilled collar. She had begun to cry and Mrs. Meade bent toward her to see whether she was going to require attention. Next to her, on the other side, William Zollicoffer gave her an awkward, heavy-handed pat.

Judge Vredenburgh said, 'We come now to the testimony of Roy Leming. Leming was an accomplice of these men, and the testimony of an accomplice is not looked on in law as evidence of a high type. He is, to an extent, an impeached witness by reason of his own participation in the crime; and anything he says should be received with caution. If you are satisfied that some or all of his statements are truthful, you should, of course, accept them, even if they are uncorroborated. However, we will particularize only statements of his that did receive corroboration.'

Leming, sitting below Hugh Erskine, shifted with embarrassment; and Abner was obliged to smile. No doubt Leming was genuinely hurt to hear his honour aspersed; and you could learn from Leming's look of protest the farcical nature of the ideas a man could entertain about himself.

Judge Vredenburgh was saying,' — it was testified that Frederick Zollicoffer was made to sit on the floor in the back of the car, his back against the left-hand door, his face toward the right hand-door —'

Harry Wurts lifted his eyes from the pad in front of him, held up his hand, and said, 'That is twisted, your Honour.'

Judge Vredenburgh said, 'I would be glad to have you correct me.'

'His back was against the right-hand door and he faced the left-hand door.'

'That is right,' said Judge Vredenburgh. 'I recall now. Just the reverse of what we stated. The iron weights were in the car, and —'

Bunting said to Abner,' Remind me to speak to Washburn, will you?' He had been looking over his shoulder. Looking, too, Abner saw that several members of the bar were sitting at the long table with Adelaide Maurer and Maynard Longstreet and two city reporters. Evan Washburn, slight and grey-headed, saw Abner looking at him and nodded. He was a lawyer who did not often appear in court. Abner said, 'Is he going to handle the lottery thing?'

'I think so. That's what I want to see him about. With this out of the way, we can get on with that.'

Judge Vredenburgh lifted off his glasses and set them on the desk before him. He turned his chair a little, looking more directly at the jury, and said, 'That is the testimony in general outline. If it is accepted as truthful, it would amount to proof of guilt, and of the grade or degree of guilt. According to statements made here in the stand, the defendants helped to kidnap Frederick Zollicoffer, they helped to keep him prisoner, they, together, took him out in the car and were there with him at the moment he was killed. If you believe the sum of these statements — that Frederick Zollicoffer was murdered by their fellow kidnapper, Bailey, while still in their power, then I say to you that you would be justified in returning, and the opinion of the Court is that you ought to return, a verdict of murder in the first degree.'

Though it must long have been obvious to every listener that in applying the law to the facts this was bound to be the advice of the Court, the sound of it in words fell, too quiet to be the crack, like the hush of doom. The instant's silence was ended by a general light stir. Several members of the jury let their faces turn, looking at Basso's closed eyes and at Howell who sat rigid gazing at the bench. Judge Irwin lifted a hand and began to pinch the skin beneath his chin. In the light of his lamp, Joe Jackman cocked his head, the last word transcribed, his stylo poised awaiting the next one.

Judge Vredenburgh said, 'It is necessary for us to call your attention to the matter of Howell's confession. Against one of the defendants, Stanley Howell, the Commonwealth offers an alleged written confession. This confession states that Howell made and signed it of his own free will, and without force, coercion, or inducement being used to secure it. The defendant Howell admits that he signed this confession, but testified on the stand that it was not voluntary, but extorted from him by beating and abuse. Therefore you are posed with a query: was this confession free, as the Commonwealth's testimony maintained; or was it forced, as the defence claims? That the defendant may have been questioned closely and frequently —'

Looking straight across at them, Abner considered the faces of the jurors as, presumably, they attempted to form that opinion now required of them — Louis Blandy, Genevieve Shute, Old Man Daniels (and his friend, God). The truth was, it would never cross your mind to ask the opinion of any one of them on a matter of importance. Old Man Daniels was a plain fool. Blandy, since his bakery business was a going concern, must have practical sense; but would you ask his advice about anything, except perhaps how to adulterate breadstuffs to the nice point at which the product would be not so bad that nobody would buy, yet not so foolishly good that money was thrown away on it? Genevieve Shute had the face of a silly middle-aged woman, and one look was enough to warn you that, though a great talker, she had learned in forty odd years of life nothing about anything. Perry Vandermost, in the back row, was a house painter. All Abner knew about him was that he was not one of the 'good' painters in Childerstown, the ones people who insisted on a first class job waited to get. Except by looking at the slips on Marty's card, Abner could not even be sure what the rest of the names were—there was a farmer or two; a younger woman; and one man, probably the fat one, had said he was a salesman —