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  Despite the fact that the jury was out just a few minutes short ofseven hours, it finally came in with a verdict "guilty as charged."Twice the devoted twelve returned to the court room for furtherinstructions from the judge. Once they wanted to know if it waspossible to convict the prisoner for bigamy instead of burglary, andthe other time it was to have certain portions of Mr. Yollop'stestimony read to them. Immediately upon retiring an amicable andfriendly discussion took place in the crowded, stuffy little juryroom. Eight men lighted black cigars, two lighted their pipes, onejoyously, almost ravenously resorted to a package of "LuckyStrikes," while the twelfth man announced that he did not smoke. Hehad been obliged to give it up because of blood pressure orsomething like that.

  The foreman, or Juror No. 1, was an insurance agent. He was a man offifty and he knew how to talk. His voice was loud, firm, overridingand unconquerable; his manner suave, tolerant, persuasive. Thebailiff, after obtaining each man's telephone number and the messagehe wished to have sent to his home (if any), informed the jurorsthat he would be waiting just outside if they wanted him and thendeparted, locking the door behind him; whereupon the foreman lookedat his watch and announced that it was twenty minutes to four. Thisstatement resulted in the first disagreement. No two watches werealike. Some little time was consumed in proving that all twelve ofthem were right and at the same time wrong, paradoxical as it maysound. After the question of the hour had been disposed of, theforeman suggested that an informal ballot be taken for the purposeof ascertaining the views of the gentlemen as to the guilt or theinnocence of the defendant. The result of this so-called informalballot was nine for conviction, three for acquittal.

  "Now we know where we stand," explained the foreman. "In view of thefact that nine of us are for conviction and only three for acquittalit seems to me that it is up to the minority to give their reasonsfor not agreeing with the majority. I see by your ballot,Mr.--er--Mr. Sandusky, that you are in favor of acquitting--"

  "My name is I. M. Pushkin," interrupted Juror No. 7. "I wrote itplain enough, didn't I?"

  "The initials confused me," explained the foreman. "Well, let's hearwhy you think he ought to be acquitted."

  "I know what it is to be hungry, that's why. I see the time when Ifirst come to this country when I didn't have nothing to eat fortwo-three days at a time, and ever'body tellin' me to go to hell outof here when I ask for a job or when I tell 'em I ain't had nothingto eat since yesterday morning and won't they please to help a poorfeller what ain't had nothing to eat since yesterday morning, and--"

  Six or seven voices interrupted him. It was Juror No. 4, salesman,who finally succeeded in getting a detached question to him.

  "As I was saying, where do you get any evidence that he WAS hungry?"

  "I guess you wasn't paying much attention to the evidence," retortedMr. Pushkin. "Didn't you hear that lawyer say, over and over yet,how he was almost starved to death? Didn't--Wait a minute!--didn'tyou hear him say to that deaf witness that the prisoner fell downlike a log when he push him in the face? Just push him,--nothingelse. Didn't you hear that?"

  "Sure I heard it. We all heard it. But what EVIDENCE is there?"

  "Evidence? My gracious, ain't that enough? Ain't one man's word asgood as another's? And say, let me ask you this: Is there anyevidence that he wasn't almost starved to death! Well! Humph! Iguess not. There ain't a single witness that says he wasn'thungry--not one, I tell you. You can't--"

  "Didn't all them policemen swear that he was as husky as--"

  "Say, you can't believe a policeman about anything. It's theirbusiness. That's what their job is. I know all about those fellers.Why, long time ago when I first come to this country, I told ahundred policeman I was almost starved to death and say, do youthink they believed me? You bet they didn't. They told me to get amove on, get the hell out of this, beat it,--you bet I know allabout them fellers. I--"

  The foreman interrupted Mr. Pushkin.

  "So you want to acquit the defendant because his lawyer said he washungry,--is that it?"

  "I don't blame nobody for stealing when he is almost starved todeath and got a wife and children almost starved to death toobecause he cannot get a job yet. You bet I don't. I don't--"

  "Well, of all the damned--"

  "Can you beat this for--"

  "I've heard a lot of--"

  The foreman rapped vigorously with an inkwell, splashing the fluidover his fingers and quite a considerable area of table-top.

  "Gentlemen! Gentlemen! Let us talk this thing over quietly andcalmly. Mr. Pushkin seems to have a wrong conception as to whatconstitutes evidence. Now, let me have the floor for a few minutes,and I'll try to explain to him what constitutes evidence."

  One hour and twenty minutes later Mr. Pushkin admitted that he DIDhave a wrong conception as to what constitutes evidence, but stillmaintained that he hated like sin to convict a man who had tried sohard to get work and couldn't.

  The non-smoking gentleman was one of the three who comprised theminority. He was a mild little chap with weak eyes and the sniffles.By profession he was a clock maker. He said he believed that thedefendant was unquestionably guilty of bigamy and that the State haderred in charging him with burglary. He was perfectly willing tosend the man up for bigamy because, according to the evidence, ittook precedence over the crime alleged to have been committed inDecember, 1919. In other words, he explained, Smilk had committedbigamy some years prior to the burglary of Mr. Yollop's apartmentand he believed in taking things in their regular order. Of course,he went on to say, he would be governed by the opinion of the judgeif it were possible under the circumstances to obtain it. He did notthink it would be legal to put the burglary charge ahead of thebigamy charge, but if the judge so ordered he would submit,notwithstanding his conviction that it would be unconstitutional.Several gentlemen wanted to know what the constitution had to dowith it, and he, becoming somewhat exasperated, declared that thepresent jury system is a joke, an absolute joke.

  "Well, it's just such men as you that make it a joke," growled JurorNo. 12.

  "Gentlemen! Gentlemen!" admonished the foreman. "Let us have norecriminations, please. It occurs to me that we ought to send a noteto the court, asking for instructions on this point."

  The note was written and despatched in care of the gloweringbailiff, who, it seems, had an engagement to go to the movies thatevening and couldn't believe his ears when he ascertained that theboobs had not yet agreed upon a verdict in what he regarded as theclearest case that had ever come under his notice.

  In the meantime, the third juror explained his vote for acquittal.He was a large, heavy-jowled man with sandy mustache and a vacancyamong his upper teeth into which a pipe-stem fitted neatly. He wasthe superintendent of an apartment building in Lenox Avenue.

  "I think it's a frame-up," he said, pausing to use the bicuspidvacancy for the purpose of expectoration. "That's what I think itis. Now I'm in a position as superintendent of a flat building toknow a lot about what goes on among the bachelor tenants. I ain'tsayin' that the prisoner didn't go to Mr. What's-His-Name's flatwithout an invitation. You bet your life he wasn't expected, if myguess is correct. I tell you what I think,--and my opinion ought tobe worth a lot, lemme tell you,--I think there's something back ofall this that wasn't brought out in the trial. Now here's somethingI bet not one of you fellers has thought about. What evidence isthere that this Chancy woman is that deaf man's sister? Not a blamedword of evidence, except their own statement. She ain't his sisterany more than I am. Did you ever see two people that looked lesslike they was related to each other? You bet you didn't. Now I got ahunch that the prisoner follered her to that guy's apartment. Whatfor, I don't know. Maybe for blackmail. He got onto what was goin'on, and makes up his mind to rake in a nice bunch of hush-money.That's been done a couple of times in the apartment buildin' I'msuperintendent of. A feller I had workin' for me as a porter cleanedup five or six hundred dollars that way, he told me. This robberybusiness sounds mighty fishy to me. Now I'm only tell
in' you the waythe thing looks to me. I don't think that woman is Wollop's sisterany more than she is mine. It's a frame-up, the whole thing is. Lookat the way this Wollop says he tied her up and all that.Humph!--Can't you fellers see through this whole business? He tiedher up so's the police would find her tied up, that's what he done.The chances are she's some woman customer of his that's got stuck onhim, tryin' hats and all that,--and maybe gettin' all the hats shewants for nothin',--and this feller Smilk he gets onto the game andgoes out for a little money. See what I mean?"

  So loud and so furious was the discussion that followed theextraordinary deductions of Juror No. 9, that the bailiff had to raphalf a dozen times before he could make himself heard. Finally theforeman, purple in the face, called out through the haze of smoke:

  "Come in!"

  "The judge says for you to come into the court room forinstructions," announced the officer. "Never mind your hats andcoats. No cigars, gents. Leave 'em here. They'll be safe. Come on,now. It's nearly time to go to supper."

  The judge informed the jury that they could not find the man guiltyof bigamy and curtly ordered them back to their room for furtherdeliberation. They took another ballot before going out to supper ata nearby restaurant, guarded by six bailiffs, who warned them not todiscuss the case while outside the jury room. The second ballot, bythe way, was eight for conviction, four for acquittal. Juror No. 5had come over to the minority. He said there was something in thetheory of Juror No. 9.

  There was a very positive disagreement concerning the meal they wereabout to partake of. The foreman spoke of it as dinner and wasopenly sneered at by eleven gentlemen who had never called itanything but supper. The little clockmaker, having been overruled bythe judge, was in a nasty temper. He accused the foreman of being arepublican. He said no democrat ever called it dinner. It wasn'tdemocratic.

  Upon their return to the jury room after a meal on which there wascomplete agreement and which brought out considerable talk about thepenuriousness of the County of New York, they settled down to aprolonged and profound discussion of their differences. It soondeveloped that all but two of the jurors had been favorably inclinedtoward the defendant up to the time the State introduced theunexpected wives. They had regarded him as a poor unfortunate,driven to crime by adversity, and after a fashion the victim of anarrogant and soulless police system, aided and abetted by theDistrict Attorney's minions, a contemptible robber in the person ofa dealer in women's hats, and a bejeweled snob who insulted theirintelligence by trying to convince them that her confidence had beenmisplaced. But the two wives settled it. Smilk was a rascal. Heought to be hung.

  "But," argued No. 9, "how the devil do we know that them women AREhis wives. Their evidence ain't supported, is it?"

  "Didn't they have certificates?" demanded another hotly.

  "Sure. But that don't prove that he was the man, does it?"

  "And didn't the prisoner jump up and yell: 'My God, it's all off!You've got me cold! You've got me dead to rights,'" cried another.

  "Oh, there's no use arguin' with you guys," roared No. 9,disgustedly.

  Later on they returned to the court room to have certain parts ofMr. Yollop's testimony read to them. After this a ballot was taken,and the only man for acquittal was the clock-maker. At twentyminutes to eleven he succumbed, not to argument or persuasion orreason but to a chill February draft that blew in through the openwindow above his head. He couldn't get away from it. The otherswouldn't let him. They got him up in a corner and he couldn't breakthrough. He told them he was getting pneumonia, that the draft wouldbe the death of him, that he'd take back what he said about thesmoke almost suffocating him,--still they surrounded him, and arguedwith him, and called him things he didn't feel physically able tocall them, and at last he voted guilty.

  Smilk, haggard with worry,--for he had come to think, as the hourswent by without a verdict, that there would be a disagreement or,worse than that, an acquittal, in which case he would have to facethe charge of bigamy that the district attorney had more thanintimated,--Smilk slouched dejectedly into the court room a fewminutes before eleven o'clock and went through the familiar processof facing the jury while the jury faced him. He straightened upeagerly when the verdict was read. He took a long, deep breath. Hiseyes brightened,--they almost twinkled,--as they searched the roomin quest of Mr. Yollop. He was disappointed to find that the gentlemilliner was not there to hear the good news.

  The judge sentenced him to twenty years imprisonment at hard labor,and he went back to his cell in the Tombs, a triumphant, vindicatedchampion of the laws of his State, a doughty warrior carrying thebanner of justice up to the very guns of sentiment.

  Mr. Yollop received a friendly letter from him some two months afterhis return to Sing Sing. He found it early one morning on hislibrary table, sealed but minus the stamp that the government exactsfor safe and conscientious delivery. Mr. Yollop's stenographer,being more or less finicky about English as it should be written,even by thieves, is responsible for the transcript in which it ishere presented:

  DEAR FRIEND--

  I hope this finds you in the best of health. I am back on the joband very glad to be so. It is very gay up here and I am getting fatalso. Regular hours is doing it, and no worry I suppose. I wish toinform you that the movies have improved considerable since I washere before and our baseball team is much better. Also the concertsand so on. Grub also up to standard. I never eat better grub at theRitz-Carlton. Which is no lie either. Well, Mr. Yollop, beforeclosing I want to say you done me a mighty good turn when youthought of them two wives of mine. If it had not been for them twowomen I guess it would have been all off with me. I wish you woulddrop in here to see me if you are ever up this way so as I can thankyou in person. Which reminds me. There is some talk among the boysthat a movement is on foot to have a regular fancy dress ball uphere once a month. Some kind of a benevolent society is working onit they say. Big orchestra, eats from Delmonico's and a crowd ofgirls from the smart set to dance with us. So as we won't get out ofpractice, I suppose. Soon as I hear when the first dance is to be Iwill let you know and maybe you will come up to be present. I willintroduce you to a lot of swell dames and maybe you can drum up anice trade among them on account of their all being fashionable andneeding a good many hats. It must be great to be in a business likeyours, where nobody cares how many times you rob them just so youleave them enough money to buy shoes with, because if you ask methey ain't wearing much of anything but hats and shoes these days.Well, I guess I will close, Mr. Yollop. With kind regards from yourstruly, I remain

  Yours truly, C. SMILK.

  P. S.--I forgot to mention that this letter was left in your libraryby a pal of mine who dropped in last night while you was asleep,unless he got nabbed like a darned fool before he got a chance to dothis friendly little errand for me. He dropped in to get that wad ofbills I left there some time ago. If you get this letter he got theroll.