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  There were quite a number of people in the court room when the caseof the State vs. Smilk was called. It was a bitterly cold dayoutside and considerable of an overflow from the corridors hadseeped into the various court rooms. But little delay wasexperienced in obtaining a jury. The regular panel was stuck, with afew exceptions. Only one member was able to declare that he hadformed an opinion, and he did not form it until after he had had agood look at the prisoner,--although he did not say so. Two werechallenged by counsel and one got off because he admitted that hewas acquainted with a man who used to be connected with the DistrictAttorney's office,--he couldn't think of his name.

  Smilk's attorney succeeded in executing a very clever piece ofstrategy at the outset. No sooner had the jury been sworn than heordered the bailiffs to crowd three or four more chairs alongsidehis table, and then blandly invited a considerable portion of theaudience to take their seats inside the railing. The personsindicated included a tall, shabbily dressed woman and seven ragged,pinched children, ranging in years from twelve down to three.Immediately the prosecution fell into the trap. Two agitatedAssistant District Attorneys jumped to their feet and barked out anobjection to the presence of the accused's wife and family on theinside of the fence, and the court promptly sustained them. He alsosaid some very sharp and caustic things to Smilk's lawyer. Mrs.Smilk and her bewildered seven patiently resumed their seats in thefront row of spectators, but not until after a four year old girl,surreptitiously pinched, had caused a mild sensation by piping: "Iwant my daddy! I want my daddy!"

  Smilk cringed and it was quite apparent to close observers that hewas having great difficulty in suppressing his emotions.

  The first witness for the prosecution was Crittenden Yollop,milliner, aged 44. A more thorough examination by the State wouldhave disclosed the fact that he was six feet tall, spare, slightlybald, beardless, well-manicured, and faultlessly attired.

  "State your name and occupation, please," said the State's attorney,advancing a few paces toward the witness stand.

  "My name is Crittenden Yollop. I am in the millinery business."

  The State: "Where do you reside?"

  Yollop: "418 Sagamore Terrace."

  The State: "In an apartment?"

  Yollop: "A little louder, if you please."

  The State, raising its voice: "Repeat the question, Mr.Stenographer."

  Stenographer, leaning forward a little: "'In an apartment?'"

  Yollop: "Yes."

  The State: "Were you living in this apartment on the 18th ofDecember, 1919?"

  Yollop: "I was."

  The State: "Was that apartment entered by a burglar on the datementioned?"

  Yollop: "It was."

  The State, casually: "Will you be so good as to glance around thecourt room and state whether you see and recognize the man whoentered and robbed your apartment?"

  Yollop, pointing: "Yes. That is the man."

  The State: "You are sure about that?"

  Yollop: "I beg pardon?"

  The State, patiently: "Repeat the question, Mr. Stenographer."

  Stenographer, patiently: "'You are sure about that?'"

  Yollop: "Certainly."

  The State: "Now, Mr. Yollop, I'm going to ask you to tell the jury,in your own words, exactly what occurred in your apartment on themorning of December 18th. Speak slowly and distinctly, and face thejury."

  Mr. Yollop, assisted to some extent by the gentleman conducting theexamination, related the story of the crime, dwelling with specialearnestness upon the dastardly, brutal manner in which Smilk forcedhim, at the point of a revolver to bind and gag and otherwisemaltreat the woman who had befriended him and whose jewels he waspreparing to make off with when the police arrived. He carefullyavoided any allusion to certain portions of the lengthy andilluminating dialogue that had taken place between him and Smilk; hesaid nothing of the unexampled behavior of the intruder intelephoning for the police, or the kindness revealed by him insuggesting a means for getting his captor's feet warm.

  Smilk's lawyer, at the very outset of the cross-examination,clarified the air as to the nature of the defense he was going toput up for his client. After a few preliminary questions, hedemanded sharply:

  "Now, Mr. Yollop, didn't this defendant state to you that he hadbeen unable to get work and that his wife and family were in suchdesperate straits that he was forced to commit a crime against theState in order to preserve them from actual starvation?"

  Yollop: "He did not."

  Counsel: "You are quite positive about that, are you?"

  Yollop: "Yes."

  Counsel: "Did he, at the time appear to be a robust,well-conditioned man,--that is to say, a man who looked strongenough to work and who had had sufficient nourishment to keep hisbody and soul together?"

  Yollop: "He certainly did."

  Counsel: "A big, rugged, healthy, desperate fellow, you would say?"

  Yollop: "Yes."

  Counsel: "Armed with a loaded revolver?"

  Yollop: "Yes."

  Counsel: "You would say that he was big enough and strong enough topull a trigger, wouldn't you?"

  Yollop: "I can't answer that question. I don't know how muchstrength it requires to pull a trigger."

  Counsel: "Ahem! At any rate, he looked as though he was strongenough to pull a trigger?"

  Yollop: "I dare say he could have pulled it."

  Counsel: "And yet you would have the jury believe that this big,strong, well-nourished man, permitted you--By the by, how much doyou weigh, Mr. Yollop!"

  Yollop: "About 145 pounds, in my clothes."

  Counsel: "You are six feet tall, I should say?"

  Yollop: "Lacking a quarter of an inch."

  Counsel: "Ahem! As I was saying, this strong, desperate man, armedwith a revolver, allowed you to walk across the room and strike himin the face, causing him to crumple up and fall to the floor as ifstruck by a--well, someone like Jack Dempsey. Isn't that so?"

  Yollop: "I never was so surprised in my life."

  Counsel, thunderously: "Answer my question!"

  Yollop: "Well, I hit him and he fell."

  Counsel: "Do you regard yourself as an experienced boxer?"

  Yollop: "No, I don't."

  Counsel: "Are you what may be termed a powerful man, able to strikea powerful blow with the fist?"

  Yollop: "I don't know. The defendant can answer that question betterthan I can."

  Counsel, to the court: "Your honor, I appeal to you to direct thiswitness to answer my questions--"

  The Court: "Confine your answers to the questions as they are put toyou, Mr. Witness."

  Counsel to Yollop: "Now see if you can answer this question, Mr.Yollop. You have described in direct examination that this defendantwas a big, burly, rough looking man. You say you were surprised whenhe went down under your inexpert blow. Why were you surprised?"

  Yollop: "I was surprised to find how easy it is to knock a mandown."

  Counsel. "I see. You had never knocked a man down before. Is thatso?"

  Yollop: "I had never even struck a man before."

  Counsel: "And yet you found it singularly easy to deliver a blow onthe jaw of an armed man with sufficient force to knock him down?"

  Yollop: "I can only answer that question by saying that he went downwhen I struck him. I don't know how hard or how easy it is to knocka man down."

  Counsel: "But you admit you were surprised?"

  Yollop: "Yes. I was surprised."

  Counsel, shaking his finger and speaking with something likemalevolence in his voice and manner: "Don't you know, Mr. Yollop,that this man was so exhausted from lack of food that he was notonly unable to defend himself from your assault but that the weakestblow--or even a gentle push with the open hand,--would have sent himsprawling?"

  Yollop: "I don't know anything about that."

  Counsel: "Wasn't he so weak that he could hardly walk across theroom after he arose?"

  Yollop: "Possibly. He was not too weak, however, to clim
b up twofloors on a fire escape and pry open my window before I,--"

  Counsel: "Now,--now,--now! Please answer my question?"

  Yollop: "He complained of being dizzy. He held his hand to his jaw.That's all I can say."

  Counsel: "You were pointing the revolver at him all the time, youhave testified. Is that true?"

  Yollop: "Yes."

  Counsel: "If he had made an attempt to attack you, you would haveshot him, wouldn't you?"

  Yollop: "I would have shot AT him, I suppose."

  Counsel, slowly, distinctly, dramatically: "In other words, youwould have been strong enough to do the thing that he was unable todo,--pull a trigger."

  Yollop: "I haven't said he was unable to pull a trigger."

  Counsel: "Answer my question!"

  The State, bouncing up: "We object to this question. It calls for aconclusion on the part of the witness that--"

  The Court: "Objection sustained."

  Counsel, glaring: "Exception." Then, after mopping his brow andconsulting his notes: "Now, Mr. Yollop, you say you conversed withthis defendant at some length while waiting for the police toarrive. Have you any recollection of this defendant telling you thathe was driven to theft because he had been out of work for nearlythree months?"

  Yollop: "No."

  Counsel: "Didn't he say something of the kind to you?"

  Yollop: "He didn't say he had been out of WORK for three months."

  Counsel, patiently: "Well, what did he say?"

  Yollop: "He said he had been out of jail for three months."

  Counsel, suddenly referring to his notes again: "Er--ahem!--By theway, Mr. Yollop, you don't hear very well, do you?"

  Yollop: "I am quite deaf."

  Counsel: "He might have said a great many things that you failed tohear,--especially if his voice was weak?"

  Yollop: "I dare say he did."

  Counsel, lifting his eyebrows significantly and nodding his head:"Ah-h-h! Didn't he tell you that he had a wife and severalchildren?"

  Yollop: "I don't recall that he said anything about severalchildren. He said he had several wives."

  Counsel, startled: "What's that?"

  A bailiff, harshly addressing a woman in the front row ofspectators: "Order! Order!"

  The Woman in the front row: "The dirty liar!"

  The State, sticking its hands in its pockets and strutting to andfro, smiling loftily: "Repeat the answer for the gentleman, Mr.Reporter."

  Counsel: "Never mind,--never mind. I move that the answer bestricken out, your honor, and that you instruct the jury todisregard the supposedly facetious reply of the witness."

  The Court, to Mr. Yollop: "Did this defendant say to you that he hadseveral wives?"

  Yollop, looking blandly at the jury until convinced by twelveexpressions and the direction in which twenty four eyes were gazingthat the court had spoken: "I beg pardon, your honor. Were youspeaking to me?"

  The Court, raising his voice: "Did he tell you that he had severalwives?"

  Yollop: "He did."

  The Court: "Motion overruled. Proceed."

  Counsel: "Exception. Now, Mr.--"

  Child in the front row, still gazing intently at a very baldheadedman on the opposite side of the aisle: "I want my daddy! I want--"

  The Court: "You must remove that child from the court room, madam.Officer, see that that child is removed. Remove all of them. You mayremain here, madam, if you choose to do so, but the court cannotallow this trial to be--"

  The Woman in the front row: "Please, your honor, if you will let mekeep them here I'll promise to--"

  The Court: "Officer, remove those children at once."

  The Woman: "And what's more, he tells a dirty lie when he says--"

  The Court: "Silence! You will have to leave the room also, madam.This is outrageous. Officer!"

  The State, magnanimously: "May it please the court, the State hasnot the slightest objection to the lady and her children remainingin the court room, provided they do not interrupt these proceedingsagain."

  The Court, melting a little: "Do you think you can keep thosechildren quiet, madam, and refrain from audible comments yourself?"

  The Woman: "Yes, sir. I'm sure I can."

  The Court: "It is not my desire to be harsh with you, madam, but ifthis occurs again I shall have you ejected from the room. Proceed."

  Counsel: "Now, Mr. Yollop, you have testified that you bound andgagged your sister at the direction and command of this defendantand that he rifled the apartment at will, keeping you covered with arevolver. You also have stated that you laid the pistol on the desk,within his reach, when you believed the police to be at the door.Why, did you do that?"

  Yollop: "Because I did not think that I needed it any longer."

  Counsel, sarcastically: "Oho! so that was the reason, eh?"

  Yollop: "Well, I was glad to be rid of it. I was dreading all thetime that it might go off accidentally. They frequently do."

  Counsel: "I see. Now, isn't it a fact, Mr. Yollop, that you laid therevolver down to go to the assistance of this defendant who was in afainting condition?"

  Yollop: "No, it isn't. He was all right."

  Counsel: "Don't you know that you laid it down because you wereconvinced in you own mind that he was physically unable to takeadvantage of it? That he was in no condition to use it?"

  Yollop: "No."

  Counsel, with a pitying look at the jury: "He was still the big,strong, able-bodied man that you had knocked down with your brawnyfist, eh?"

  Yollop, mildly: "He may have been a little sleepy. I was."

  A Bailiff: "Order! ORDER!"

  Counsel, severely: "Now, Mr. Yollop, will you tell this jury why,after you had found it so simple to knock the defendant down anddisarm him earlier in the evening, you failed to repeat theexperiment when he had you covered the second time?"

  Yollop: "The first time I acted on the spur of the moment, and understress of great excitement. I had had time to collect my wits by thetime he gained possession of the revolver. I wasn't as foolhardy asI was at the beginning. I was afraid he would shoot me if I tackledhim again."

  Counsel: "Isn't it a fact that he appeared much stronger and not soweak and listless as when you first encountered him?"

  Yollop: "I didn't notice any change in him."

  Counsel: "Didn't you testify awhile ago that while he was sitting atyour desk, under cover of the gun, he ate a whole box of chocolatecreams,--at your generous invitation?"

  Yollop: "Yes. He ate them, all right."

  Counsel: "Wouldn't you, as an intelligent man, assume that a poundof chocolates might have the effect of restoring to a half-starvedman a portion of his waning strength,--at least a sufficient amountto encourage him to put up some kind of a fight against you?"

  The State: "We object. The question calls for a conclusion on thepart of the witness, who does not even pretend to be an expert or anauthority on pathological--"

  Counsel: "But he DOES pretend to be an intelligent man, doesn't he?I submit, your honor, that the question is proper and I--"

  The Court: "Objection sustained. The witness may state that thedefendant ate a box of chocolate creams. He cannot give an opinionas to the effect the chocolates may or may not have had on him."

  Counsel: "Exception."

  Mr. Yollop was on the stand for half an hour longer. Counsel for thedefense was driving home to the jury the impression that Smilk was apoor, half-starved wretch who had gone back to thieving after avaliant but hopeless attempt to find work in order to support hiswife and children. He announced, in arguing an objection made by theState, that it was his intention to prove by the man's wife thatSmilk was a good husband and was willing to work his fingers off forhis family, but that he had been ill and unable to find steadyemployment.

  Mrs. Champney testified at the afternoon session. She made a mostunfavorable impression on the jury. She got very angry at Smilk'scounsel and said such spiteful things to him and about his clientthat the jury began to
feel sorry for both of them.

  Two detectives and three policemen in uniform testified that Smilkwas the picture of health and a desperate-looking character. Nowanybody who has ever served on a jury in a criminal case knows theeffect that the testimony of a police officer has on threefourths--and frequently four fourths,--of the jurors. For someunexplained,--though perhaps obvious reason,--the ordinary juror notonly hates a policeman but refuses to believe him on oath unless heis supported by evidence of the most unassailable nature. The merefact that the five officers swore that Smilk was healthy and ruggedno doubt went a long way toward convincing the jury that the poorfellow was a physical wreck and absolutely unable to defend himselfon the night of the alleged burglary.

  Moreover, a skilled mind-reader would have discovered that Mr.Yollop had not made a good impression on the jury. Almost to a man,they discredited him because he was fastidious in appearance;because he was known to be a successful and prosperous business man;because he was trying to make them believe that he possessed theunheard-of courage to tackle an armed burglar; and because he was amilliner. As for Mrs. Champney, she was the embodiment of all thatthe average citizen resents: a combination of wealth, refinement,intelligence, arrogance and widowhood. Especially does he resentopulent widowhood.

  The State rested. Mrs. Smilk was the first witness called by thedefense. She told a harrowing tale of Smilk's unparalleled effortsto obtain work; of his heart-breaking disappointments; of her ownloyal and cheerful struggle to provide for the children,--and forher poor sick husband,--by slaving herself almost to death at allsorts of jobs. Furthermore, she was positive that poor Cassius hadreformed, that he was determined to lead an honest, upright life;all he needed was encouragement and the opportunity to show hisworth. True, he had been in State's Prison twice, but in bothinstances it was the result of strong drink. Now that prohibitionhad come and he could no longer be subjected to the evils andtemptations of that accursed thing generically known as rum, he wassure to be a model citizen and husband. In fact, she declared, afriend of the family,--a man very high up in city politics,--hadpromised to secure for Cassius an appointment as an enforcementofficer in the great war that was being waged against prohibition.This seemed to make such a hit with the jury that Smilk's lawyershrewdly decided not to press her to alter the preposition.

  The cross-examination was brief.

  The State: "How many children have you, Mrs. Smilk?"

  Mrs. Smilk: "Seven."

  The State: "The defendant is the father of all of them?"

  Mrs. Smilk, with dignity: "Are you tryin' to insinuate that heain't?"

  The State: "Not at all. Answer the question, please."

  Mrs. Smilk: "Yes, he is."

  The State: "When did you say you were married to the defendant?"

  Mrs. Smilk: "October, 1906. I got my certificate here with me, ifyou want to see it."

  The State: "I would like to see it."

  Counsel for Smilk, benignly: "The defense has no objection."

  The State, after examining the document: "It is quite regular. Withthe court's permission, I will submit the document to the jury."

  The Court, to Smilk's counsel: "Do you desire to offer this documentin evidence?"

  Counsel: "It had not occurred to us that it was necessary, but nowthat a point is being made of it, I will ask that it be introducedas evidence."

  The State, passing the certificate to the court reporter for hisidentification mark: "You have never been divorced from thedefendant, have you, Mrs. Smilk?"

  Mrs. Smilk: "Of course not." Then nervously: "Excuse me, but do Iget my marriage certificate back? It's the only hold I got on--"

  Counsel, hastily: "Certainly, certainly, Mrs. Smilk. You need haveno worry. It will be returned to you in due time."

  The State, after reading the certificate aloud, hands it to theforeman, and says: "The State admits the validity of thiscertificate. There can be no question about it." Leans against thetable and patiently waits until the document has made the rounds."Now, Mrs. Similk, you are sure that you have not been divorced fromSmilk nor he from you?"

  Mrs. Smilk, stoutly; "Course I'm sure."

  The State: "You heard Mr. Yollop testify that your husband said hehad several wives. So far as you know that is not the case?"

  Mrs. Smilk. "I don't think he ever said it to Mr. Yollop. I thinkMr. Yollop lied."

  The State: "I see. Then you do not believe your husband could havedeceived you--I withdraw that, Mr. Reporter. You do not believethat your husband is base enough to have married another woman,--orwomen,--without first having obtained a legal divorce from you?"

  Mrs. Smilk: "I wouldn't be up here testifying in his behalf if Ithought that, you bet. He ain't that kind of a man. If I thought hewas, I'd like to see him hung. I'd like to see--"

  The State. "Never mind, Mrs. Smilk. We are not trying your husbandfor bigamy. I think that is all, your honor."

  Counsel for Smilk: "You may be excused, Mrs. Smilk. Take the stand,Cassius."

  Instead of obeying Cassius beckoned to him. Then followed a long,whispered conference between lawyer and client, at the end of whichthe former, visibly annoyed, declared that the defendant had decidednot to testify. The Court indicated that it was optional with theprisoner and asked if the counsel desired to introduce any furthertestimony. Counsel for the defense announced that his client'sdecision had altered his plans and that he was forced to rest hiscase. The Assistant District Attorney stated that he had twowitnesses to examine in rebuttal.

  "Send for Mrs. Elsie Morton," he directed. "She is waiting in theDistrict Attorney's office, Mr. Bailiff."

  To the amazement of every one, Cassius Smilk started up from hischair, a wild look in his eye. He sat down instantly, however, butit was evident that he had sustained a tremendous and unexpectedshock. Mr. Yollop who had purposely selected a seat in the front rowof spectators from which he could occasionally exchange mutualglances of well-assumed repugnance with the rascal, caught Smilk'seye as it followed the retiring bailiff. The faintest shadow of awink flickered for a second across that smileless, apparentlytroubled optic. Mr. Yollop, who had been leaning forward in hischair for the better part of the afternoon with one hand cuppedbehind his ear and the other manipulating the disc in a vain butdetermined effort to hear what was going on, suddenly relaxed into acomfortable, satisfied attitude and smiled triumphantly. He knewwhat was coming. And so did Smilk.

  Mrs. Morton was a plump, bobbed-hair blond of thirty. She had moistcarmine lips, a very white nose, strawberry-hued cheek bones, analabaster chin and forehead, and pale, gray eyes surrounded byblue-black rims tinged with crimson. She wore a fashionablehat,--(Mr. Yollop noticed that at a glance)--a handsome greenishcloth coat with a broad moleskin collar and cuffs of the same fur,pearl gray stockings that were visible to the knees, and high grayshoes that yawned rather shamelessly at the top despite the wearer'sdoughtiest struggle with the laces. Her gloves, also were somewhatover-crowded. She gave her name as Mrs. Elsie Broderick Morton,married; occupation, ticket seller in a motion picture theater.

  The State: "What is your husband's name and occupation?"

  Witness: "Filbert Morton. So far as I know, he never had a regularoccupation."

  The State: "When were you and Filbert Morton married?"

  Witness: "June the fourteenth, 1916."

  The State: "Are you living with your husband at present?"

  Witness: "I am not."

  The State: "Have you ever been divorced from him?"

  Witness: "I have not."

  The State: "How long is it since you and he lived together?"

  Witness: "A little over three years."

  The State: "Would you recognize him if you were to see him now?"

  Witness: "I certainly would."

  The State: "When did you see him last?"

  Witness: "Day before yesterday."

  The State: "Tell the jury where you saw him."

  Witness: "Over in the Tombs."

  The State: "
Surreptitiously?"

  Witness: "No, sir. With my own eyes."

  The State: "I mean, you saw him without his being aware of the factthat you were looking at him for the purpose of identification?"

  Witness. "Yes, sir."

  The State: "I will now ask you to look about this court room andtell the jury whether you see the man known to you as FilbertMorton?"

  Witness, pointing to Smilk: "That's him over there."

  The State: "You mean the prisoner at the bar, otherwise known asCassius Smilk?"

  Witness. "Yes, sir. That's my husband."

  The State: "You are sure about that?"

  Witness: "Of course, I am. I wouldn't be likely to make any mistakeabout a man I'd lived with for nearly six months, would I? I've gotmy marriage certificate here with me, if you want to see it."

  Mrs. Smilk, in the first row, venomously addressing Mr. Smilk: "Sothat's what you was up to when you was out for six months and nevercome near me once, you dirty--"

  All bailiffs in unison: "Silence! Order in the court!"

  The State, presently: "Was he a good, kind, devoted husband to you,Mrs. Morton?"

  Witness: "Well, if you mean did he provide me with clothes andjewels and gewgaws and all such, yes. He was always bringing me homerings and bracelets and necklaces and things. But if you mean did heever give me any money to buy food with and keep the flat going, no.I slaved my head off to get grub for him all the time we were livingtogether."

  The State: "Did he ever mistreat you?"

  Witness: "Oh, once in a while he used to give me a rap in the eye,or a kick in the slats, or something like that, but on the whole hewas pretty sensible."

  The State: "Sensible? In what way?"

  Witness: "I mean he was sensible enough not to punch his meal tickettoo often."

  It is not necessary to go any farther into the direct examination ofMrs. Elsie Morton, nor into the half-hearted efforts of Smilk'sdisgusted lawyer to shake her in cross-examination. Nor is itnecessary to introduce here the testimony of Mrs. Jennie Finchley,who succeeded her on the stand. It appears that Jennie was marriedin 1914 when Smilk was out for three months. She supported him forseveral months in 1916,--up to the time he packed up and left her onthe morning of the fourteenth of June, that year. As HerbertFinchley he not only managed to live comfortably off the proceeds ofher delicatessen, but in leaving her he took with him nine hundreddollars that she had saved out of the business despite hisgormandizing.

  CHAPTER SIX