Yollop
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George Barr McCutcheon >> Yollop
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 he
ain'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, if
you 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. With
the court's permission, I will submit the document to the jury."
The Court, to Smilk's counsel: "Do you desire to offer this document
in evidence?"
Counsel: "It had not occurred to us that it was necessary, but now
that a point is being made of it, I will ask that it be introduced
as evidence."
The State, passing the certificate to the court reporter for his
identification mark: "You have never been divorced from the
defendant, have you, Mrs. Smilk?"
Mrs. Smilk: "Of course not." Then nervously: "Excuse me, but do I
get my marriage certificate back? It's the only hold I got on--"
Counsel, hastily: "Certainly, certainly, Mrs. Smilk. You need have
no worry. It will be returned to you in due time."
The State, after reading the certificate aloud, hands it to the
foreman, and says: "The State admits the validity of this
certificate. There can be no question about it." Leans against the
table and patiently waits until the document has made the rounds.
"Now, Mrs. Similk, you are sure that you have not been divorced from
Smilk nor he from you?"
Mrs. Smilk, stoutly; "Course I'm sure."
The State: "You heard Mr. Yollop testify that your husband said he
had 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 think
Mr. Yollop lied."
The State: "I see. Then you do not believe your husband could have
deceived you--I withdraw that, Mr. Reporter. You do not believe
that your husband is base enough to have married another woman,--or
women,--without first having obtained a legal divorce from you?"
Mrs. Smilk: "I wouldn't be up here testifying in his behalf if I
thought that, you bet. He ain't that kind of a man. If I thought he
was, I'd like to see him hung. I'd like to see--"
The State. "Never mind, Mrs. Smilk. We are not trying your husband
for 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 which
the former, visibly annoyed, declared that the defendant had decided
not to testify. The Court indicated that it was optional with the
prisoner and asked if the counsel desired to introduce any further
testimony. Counsel for the defense announced that his client's
decision had altered his plans and that he was forced to rest his
case. The Assistant District Attorney stated that he had two
witnesses to examine in rebuttal.
"Send for Mrs. Elsie Morton," he directed. "She is waiting in the
District Attorney's office, Mr. Bailiff."
To the amazement of every one, Cassius Smilk started up from his
chair, a wild look in his eye. He sat down instantly, however, but
it was evident that he had sustained a tremendous and unexpected
shock. Mr. Yollop who had purposely selected a seat in the front row
of spectators from which he could occasionally exchange mutual
glances of well-assumed repugnance with the rascal, caught Smilk's
eye as it followed the retiring bailiff. The faintest shadow of a
wink flickered for a second across that smileless, apparently
troubled optic. Mr. Yollop, who had been leaning forward in his
chair for the better part of the afternoon with one hand cupped
behind his ear and the other manipulating the disc in a vain but
determined effort to hear what was going on, suddenly relaxed into a
comfortable, satisfied attitude and smiled triumphantly. He knew
what was coming. And so did Smilk.
Mrs. Morton was a plump, bobbed-hair blond of thirty. She had moist
carmine lips, a very white nose, strawberry-hued cheek bones, an
alabaster chin and forehead, and pale, gray eyes surrounded by
blue-black rims tinged with crimson. She wore a fashionable
hat,--(Mr. Yollop noticed that at a glance)--a handsome greenish
cloth coat with a broad moleskin collar and cuffs of the same fur,
pearl gray stockings that were visible to the knees, and high gray
shoes that yawned rather shamelessly at the top despite the wearer's
doughtiest struggle with the laces. Her gloves, also were somewhat
over-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 regular
occupation."
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 fact
that 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 and
tell the jury whether you see the man known to you as Filbert
Morton?"
Witness, pointing to Smilk: "That's him over there."
The State: "You mean the prisoner at the bar, otherwise known as
Cassius 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 mistake
about a man I'd lived with for nearly six months, would I? I've got
my marriage certificate here with me, if you want to see it."
Mrs. Smilk, in the first row, venomously addressing Mr. Smilk: "So
that's what you was up to when you was out for six months and never
come 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 and
jewels and gewgaws and all such, yes. He was always bringing me home
rings and bracelets and necklaces and things. But if you mean did he
ever 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 living
together."
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 he
was pretty sensible."
The State: "Sensible? In what way?"
Witness: "I mean he was sensible enough not to punch his meal ticket
too often."
It is not necessary to go any farther into the direct examination of
Mrs. Elsie Morton, nor into the half-hearted efforts of Smilk's
disgusted lawyer to shake her in cross-examination. Nor is it
necessary to introduce here the testimony of Mrs. Jennie Finchley,
who succeeded her on the stand. It appears that Jennie was married
in 1914 when Smilk was out for three months. She supported him for
several months in 1916,--up to the time he packed up and left her on
the morning of the fourteenth of June, that year. As Herbert
Finchley he not only managed to live comfortably off the proceeds of
her delicatessen, but in leaving her he took with him nine hundred
dollars that she had saved out of the business despite his
gormandizing.
CHAPTER SIX
Despite the fact that the jury was out just a few minutes short of
seven hours, it finally came in with a verdict "guilty as charged."
Twice the devoted twelve returned to the court room for further
instructions from the judge. Once they wanted to know if it was
possible to convict the prisoner for bigamy instead of burglary, and
the other time it was to have certain portions of Mr. Yollop's
testimony read to them. Immediately upon retiring an amicable and
friendly discussion took place in the crowded, stuffy little jury
room. Eight men lighted black cigars, two lighted their pipes, one
joyously, almost ravenously resorted to a package of "Lucky
Strikes," while the twelfth man announced that he did not smoke. He
had been obliged to give it up because of blood pressure or
something like that.
The foreman, or Juror No. 1, was an insurance agent. He was a man of
fifty and he knew how to talk. His voice was loud, firm, overriding
and unconquerable; his manner suave, tolerant, persuasive. The
bailiff, after obtaining each man's telephone number and the message
he wished to have sent to his home (if any), informed the jurors
that he would be waiting just outside if they wanted him and then
departed, locking the door behind him; whereupon the foreman looked
at his watch and announced that it was twenty minutes to four. This
statement resulted in the first disagreement. No two watches were
alike. Some little time was consumed in proving that all twelve of
them were right and at the same time wrong, paradoxical as it may
sound. After the question of the hour had been disposed of, the
foreman suggested that an informal ballot be taken for the purpose
of ascertaining the views of the gentlemen as to the guilt or the
innocence of the defendant. The result of this so-called informal
ballot was nine for conviction, three for acquittal.
"Now we know where we stand," explained the foreman. "In view of the
fact that nine of us are for conviction and only three for acquittal
it seems to me that it is up to the minority to give their reasons
for 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 it
plain enough, didn't I?"
"The initials confused me," explained the foreman. "Well, let's hear
why you think he ought to be acquitted."
"I know what it is to be hungry, that's why. I see the time when I
first come to this country when I didn't have nothing to eat for
two-three days at a time, and ever'body tellin' me to go to hell out
of here when I ask for a job or when I tell 'em I ain't had nothing
to eat since yesterday morning and won't they please to help a poor
feller 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," retorted
Mr. 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't
you hear him say to that deaf witness that the prisoner fell down
like a log when he push him in the face? Just push him,--nothing
else. 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 as
good as another's? And say, let me ask you this: Is there any
evidence that he wasn't almost starved to death! Well! Humph! I
guess not. There ain't a single witness that says he wasn't hungry--
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 their
business. 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 a
hundred policeman I was almost starved to death and say, do you
think they believed me? You bet they didn't. They told me to get a
move on, get the hell out of this, beat it,--you bet I know all
about them fellers. I--"
The foreman interrupted Mr. Pushkin.
"So you want to acquit the defendant because his lawyer said he was
hungry,--is that it?"
"I don't blame nobody for stealing when he is almost starved to
death and got a wife and children almost starved to death too
because 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 fluid
over his fingers and quite a considerable area of table-top.
"Gentlemen! Gentlemen! Let us talk this thing over quietly and
calmly. Mr. Pushkin seems to have a wrong conception as to what
constitutes 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 DID
have a wrong conception as to what constitutes evidence, but still
maintained that he hated like sin to convict a man who had tried so
hard to get work and couldn't.
The non-smoking gentleman was one of the three who comprised the
minority. He was a mild little chap with weak eyes and the sniffles.
By profession he was a clock maker. He said he believed that the
defendant was unquestionably guilty of bigamy and that the State had
erred in charging him with burglary. He was perfectly willing to
send the man up for bigamy because, according to the evidence, it
took precedence over the crime alleged to have been committed in
December, 1919. In other words, he explained, Smilk had committed
bigamy some years prior to the burglary of Mr. Yollop's apartment
and 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 judge
if it were possible under the circumstances to obtain it. He did not
think it would be legal to put the burglary charge ahead of the
bigamy 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 do
with it, and he, becoming somewhat exasperated, declared that the
present jury system is a joke, an absolute joke.
"Well, it's just such men as you that make it a joke," growled Juror
No. 12.
"Gentlemen! Gentlemen!" admonished the foreman. "Let us have no
recriminations, please. It occurs to me that we ought to send a note
to the court, asking for instructions on this point."
The note was written and despatched in care of the glowering
bailiff, who, it seems, had an engagement to go to the movies that
evening and couldn't believe his ears when he ascertained that the
boobs had not yet agreed upon a verdict in what he regarded as the
clearest 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 vacancy
among his upper teeth into which a pipe-stem fitted neatly. He was
the superintendent of an apartment building in Lenox Avenue.
"I think it's a frame-up," he said, pausing to use the bicuspid
vacancy for the purpose of expectoration. "That's what I think it
is. Now I'm in a position as superintendent of a flat building to
know a lot about what goes on among the bachelor tenants. I ain't
sayin' that the prisoner didn't go to Mr. What's-His-Name's flat
without an invitation. You bet your life he wasn't expected, if my
guess is correct. I tell you what I think,--and my opinion ought to
be worth a lot, lemme tell you,--I think there's something back of
all this that wasn't brought out in the trial. Now here's something
I bet not one of you fellers has thought about. What evidence is
there that this Chancy woman is that deaf man's sister? Not a blamed
word of evidence, except their own statement. She ain't his sister
any more than I am. Did you ever see two people that looked less
like they was related to each other? You bet you didn't. Now I got a
hunch that the prisoner follered her to that guy's apartment. What
for, 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'm
superintendent of. A feller I had workin' for me as a porter cleaned
up five or six hundred dollars that way, he told me. This robbery
business sounds mighty fishy to me. Now I'm only tellin' you the way
the thing looks to me. I don't think that woman is Wollop's sister
any more than she is mine. It's a frame-up, the whole thing is. Look
at the way this Wollop says he tied her up and all that.
Humph!--Can't you fellers see through this whole business? He tied
her 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 on
him, tryin' hats and all that,--and maybe gettin' all the hats she
wants for nothin',--and this feller Smilk he gets onto the game and
goes out for a little money. See what I mean?"
So loud and so furious was the discussion that followed the
extraordinary deductions of Juror No. 9, that the bailiff had to rap
half a dozen times before he could make himself heard. Finally the
foreman, purple in the face, called out through the haze of smoke:
"Come in!"
"The judge says for you to come into the court room for
instructions," announced the officer. "Never mind your hats and
coats. 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 guilty
of bigamy and curtly ordered them back to their room for further
deliberation. They took another ballot before going out to supper at
a nearby restaurant, guarded by six bailiffs, who warned them not to
discuss the case while outside the jury room. The second ballot, by
the way, was eight for conviction, four for acquittal. Juror No. 5
had come over to the minority. He said there was something in the
theory of Juror No. 9.
There was a very positive disagreement concerning the meal they were
about to partake of. The foreman spoke of it as dinner and was
openly sneered at by eleven gentlemen who had never called it
anything but supper. The little clockmaker, having been overruled by
the judge, was in a nasty temper. He accused the foreman of being a
republican. He said no democrat ever called it dinner. It wasn't
democratic.
Upon their return to the jury room after a meal on which there was
complete agreement and which brought out considerable talk about the
penuriousness of the County of New York, they settled down to a
prolonged and profound discussion of their differences. It soon
developed that all but two of the jurors had been favorably inclined
toward the defendant up to the time the State introduced the
unexpected wives. They had regarded him as a poor unfortunate,
driven to crime by adversity, and after a fashion the victim of an
arrogant and soulless police system, aided and abetted by the
District Attorney's minions, a contemptible robber in the person of
a dealer in women's hats, and a bejeweled snob who insulted their
intelligence by trying to convince them that her confidence had been
misplaced. But the two wives settled it. Smilk was a rascal. He
ought to be hung.
"But," argued No. 9, "how the devil do we know that them women ARE
his 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 of
Mr. Yollop's testimony read to them. After this a ballot was taken,
and the only man for acquittal was the clock-maker. At twenty
minutes to eleven he succumbed, not to argument or persuasion or
reason but to a chill February draft that blew in through the open
window above his head. He couldn't get away from it. The others
wouldn't let him. They got him up in a corner and he couldn't break
through. He told them he was getting pneumonia, that the draft would
be the death of him, that he'd take back what he said about the
smoke almost suffocating him,--still they surrounded him, and argued
with him, and called him things he didn't feel physically able to
call them, and at last he voted guilty.
Smilk, haggard with worry,--for he had come to think, as the hours
went by without a verdict, that there would be a disagreement or,
worse than that, an acquittal, in which case he would have to face
the charge of bigamy that the district attorney had more than
intimated,--Smilk slouched dejectedly into the court room a few
minutes before eleven o'clock and went through the familiar process
of facing the jury while the jury faced him. He straightened up
eagerly when the verdict was read. He took a long, deep breath. His
eyes brightened,--they almost twinkled,--as they searched the room
in quest of Mr. Yollop. He was disappointed to find that the gentle
milliner 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, vindicated
champion of the laws of his State, a doughty warrior carrying the
banner of justice up to the very guns of sentiment.
Mr. Yollop received a friendly letter from him some two months after
his return to Sing Sing. He found it early one morning on his
library table, sealed but minus the stamp that the government exacts
for 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 is
here presented:
DEAR FRIEND--
I hope this finds you in the best of health. I am back on the job
and very glad to be so. It is very gay up here and I am getting fat
also. Regular hours is doing it, and no worry I suppose. I wish to
inform you that the movies have improved considerable since I was
here before and our baseball team is much better. Also the concerts
and so on. Grub also up to standard. I never eat better grub at the
Ritz-Carlton. Which is no lie either. Well, Mr. Yollop, before
closing I want to say you done me a mighty good turn when you
thought of them two wives of mine. If it had not been for them two
women I guess it would have been all off with me. I wish you would
drop in here to see me if you are ever up this way so as I can thank
you in person. Which reminds me. There is some talk among the boys
that a movement is on foot to have a regular fancy dress ball up
here once a month. Some kind of a benevolent society is working on
it they say. Big orchestra, eats from Delmonico's and a crowd of
girls from the smart set to dance with us. So as we won't get out of
practice, I suppose. Soon as I hear when the first dance is to be I
will let you know and maybe you will come up to be present. I will
introduce you to a lot of swell dames and maybe you can drum up a
nice trade among them on account of their all being fashionable and
needing a good many hats. It must be great to be in a business like
yours, where nobody cares how many times you rob them just so you
leave them enough money to buy shoes with, because if you ask me
they ain't wearing much of anything but hats and shoes these days.
Well, I guess I will close, Mr. Yollop. With kind regards from yours
truly, I remain
Yours truly, C. SMILK.
P. S.--I forgot to mention that this letter was left in your library
by 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 do
this friendly little errand for me. He dropped in to get that wad of
bills I left there some time ago. If you get this letter he got the
roll.