The Perfume of Eros: A Fifth Avenue Incident

Before he had finished Orr was at him. "I object to the District Attorney prejudicing the jury against this gentleman, my client."

That gentleman did not appear to heed. From Sylvia and her mother he had turned to look at the spectators, from them to fabulous beasts that climbed the fluted columns on the walls.

The objection was not sustained.

"And I object to Your Honor's ruling," Orr with a bulldog look threw up at the Bench.

Peacock proceeded. "There, gentlemen, is the crime, there too, the motive. To finish the picture evidence will be adduced."

He sat down. Then getting up, he called the first witness for the People, the Gramercy Park caretaker, who had found the body. The witness was succeeded by others, by the policeman on the beat, by the coroner's physician, by experts and servants.

By turn Orr took them in hand. With some he was curiously perfunctory. Of the caretaker, a meagre old man, with shifty eyes, who appeared very uncomfortable, he asked but four questions.

"When you found the body what did you do?"

"Ran and got the policeman, sir."

"Where did you get him?"

"On Lexington avenue and Twenty-third street, sir."

"Did you find him at once?"

"No, sir, I had to hunt a bit."

"Between the time you found the body and the time you got back how many minutes would you say had elapsed?"

"About ten or fifteen minutes, sir."

"That's all," said Orr.

It was not much. Yet with the policeman, a fat man with a red face and a blue nose, he was even briefer.

"When you reached the park with the last witness, how did you get in?"

"Walked in, sir," the man answered with a grin.

"The gate was open was it?"

"Yes, sir."

"That will do," said Orr.

It was not much either. But with other witnesses, notably with the experts, he fought, he fought with them, fought with Peacock, fought with the Court, would have fought with more had there been more to fight, fought pertinaciously, step by step, reducing testimony to nothing.

Meanwhile the court-room shimmered with silks. Wanderers from Fifth avenue who never in their lives had been in the General Sessions before begged and badgered their way there. It is great fun to see a man tried for his life. But when you have known him, when in addition elements supersensational blend like a halo about him, what more could be decently asked? Yet one thing disappointed. It was regrettable that the prisoner was not in chains, that he could sit there and yawn with every appearance of being at a matinee, a keeper for lackey behind him.

Otherwise the fun, if not fast, was furious. Peacock would ask a question, the lips of a witness would part but before more than a fraction of a syllable could issue Orr would hold him up, hold up the prosecution, hold up the Court. Generally he was overruled. But no overruling abashed him. He arose from opposition refreshing. There were times when Sylvia thought him bowed to the earth, utterly routed, hushed for good. But not a bit of it. At the moment when his ammunition seemed exhausted and his defeat assured, from an arsenal of books before him he pulled weapons wherewith not merely to renew the fight but to win.

In the course of one objection he was commanded by the Bench to sit down. He protested. The Recorder declined to listen to him further, reiterating the order that he be seated. Then with the air and manner of a little boy sent for misbehavior from the room, Orr half turned, hesitated, turned back, and through the exercise of guile unique and his own, succeeded in re-engaging the Court in conversation, protesting his respect, denying his contumacy and presently he was continuing the very objection because of which he had been told to sit down. He did sit down, but long after, when he was ready, when he had succeeded in having his say and his way. Then when at last he did sit down it was with an air of mastery that would have become Napoleon at Marengo. At the moment he was not a lawyer merely, he was an actor, quasi-Shakespearian, a compound of irony and good humor, Falstaff and Mercutio in one.

All this, however, was, to vary the metaphor, but the preliminary canter. That Loftus had been killed was shown and admitted. But it had not been shown nor was it admitted that the defendant was the man. This defect a star witness was to repair. The star was Harris.

Yet, though a star, he looked ghastly. Whether ill or not, he was at least ill at ease. The smug, household-servant air had gone. He seemed to have come from turmoils in Tatterdemalia. He was bruised, dirty, unshorn. But the story which he had brought to the Chronicle he repeated, with embellishments at that. After retailing the tale, precising the motive and elaborating on it, he declared that the love of the defendant's wife for Loftus was common talk – evidence which, though hearsay, Orr indifferently let pass.

Then, after identifying a pistol as the property of Annandale – an exhibit marked A which Peacock had already tried but, held up by Orr, had not wholly succeeded in fitting to the crime – Harris swore that on the night of the murder, at five minutes after twelve, in the room which he occupied at the top of Annandale's house and which overlooked Gramercy Park, he heard a shot; that going to the window he looked out, that he could distinguish nothing, but that going then to the hall he heard someone coming in the house and looking down saw the defendant enter.

"Ha!" said Orr, taking him in hand, or rather, by the throat. For he made no attempt at ordinary amenities. He questioned him ferociously, with an air of personal hatred, with an air of saying, "Damn you, I have got it in for you now."

"What is your name?" he asked.

"Richard Harris, sir."

Orr pounded on the table in front of him. "Your name! Your name! I want your name, not something that you have made up like the rest of your rubbish. How many times have you been in jail? You were once employed in Hill street, Berkeley Square, by the Duchess of Kincardine. When you absconded from there, where was it that the police caught you? Answer me."

From behind the rail objections exploded like shell. But through the running fire of them Orr held his own, sandbagging the man with one charge after another, charge of theft, charge of forgery, but particularly of boasting the week before, in a Sixth avenue saloon where grooms and footmen congregate, that he could testify to anything that he was paid for.

From ghastly Harris turned vermilion. The flush retreating left him livid. Had the fluted columns with their fabulous beasts fallen on him he could not have been more limp. At one question he swayed like an animal hit on the head. At another he hissed like a snake. There were times when he tried to hide from view. It was a curious example of the biter bit.

"That's all," said Orr with tigerish cheerfulness at last.

He had done him. He had given him the medicine. He had more in reserve. Peacock meanwhile had once jumped at Orr, his fist raised. Once he gave him the lie direct. Once he accused him of suborning. But Orr in sandbagging the witness with one hand, had another free for the prosecution. He was gluttonish, giving as good as was sent, very often better.

The Recorder, dismayed at the slugging, protested. "A human being is on trial for his life. I cannot try a case where only counsel are heard."

Immediately Orr supplied him with a diversion. One after another witness for the defense scaled the stand, sleuths from over seas, experts and servants.

In his corner before them Orr prowled. At the witnesses for the prosecution he had roared, sometimes he had bounded at the Bar, sometimes when a move of his succeeded he raised his right hand and looked at it as though surprised that it was not blood red. But now with his own witnesses he was serene, entirely calm, refreshingly civil.

That civility awoke in Peacock the hyena. The first witness Orr produced, a man who, as it afterward appeared, had had a rough and tumble with Harris that morning in the corridor, he partly devoured. What was left of him he sent to the Tombs. As fast as witnesses could be produced he ate them up. It was terrific. You could not help feeling that there are safer places than the witness stand in a murder trial, that you ran the risk of being killed yourself, talked to death if nothing worse.

"Don't go at him like a common scold," Orr engagingly pleaded at one stage of the game. "Why browbeat and bully a witness as you do?" he expostulated at another. "That's all, my friend," he said to one witness, "and let me apologize for the District Attorney's remarks." From his tone and manner never in the world would you have thought him the man who, but a little before, had so thoroughly sandbagged Harris.

Meanwhile questions coarse as oaths, answers frank as sword thrusts, clashed and resounded. One and all Orr's charges were substantiated. The testimony was damning to Harris, infecting everything he had said. From behind the rail Peacock volleyed and thundered. But truth when you get at it is a stubborn thing. So far as Harris was concerned there it stood and there too, during the production of it, Orr stood, quite like an Angora lapping milk. You could hear him purr. The eyes of Sylvia glistened like mica. Now and again Annandale laughed outright.

It is always insufficient to be innocent of a given charge. You must appear so. Annandale did not. Alternately he was bored and buoyant. But not dejected, never depressed. He did not seem to feel that his life was at stake. That is the attitude of the habitual ruffian. But sentiment was veering. Public opinion is a wave that thinks, thinks again, changes its mind, volatile as a woman. At the opening everybody knew that Annandale was guilty. Now nobody was quite so sure.

The Recorder caressed his beard. "I think," he announced, "that I will give the jury a recess."

CHAPTER IX

THE TWELFTH JUROR

TUMULTUOUSLY the session was resumed. At the door was a riot. There a squad of police fought back surging nondescripts clamoring for admission, fighting for entrance to the continuous show. A woman fainted. Another had her gown torn off. One man retired with a blackened eye.

During the recess Orr got for a moment with Sylvia and Mrs. Waldron. "Aren't you hungry?" he asked.

Sylvia took his hand and pressed it. In her eyes was victory, in her face delight. "I never knew before how Protean you are. You have won."

Orr tossed his head. "Not by a long shot. Besides, there is the jury. Eleven look imbecile and the twelfth looks ill. There is no telling at all what they will do or will not. But aren't you to eat anything?" He turned to Mrs. Waldron. "Aren't you hungry?"

"Very," said the lady, "but I can't do a thing with Sylvia. I – "

She would have said more, but the jury had filed in. The judge was entering, preceded by the cry "Hats off!"

Orr slipped back to his corner, to which Annandale, with his matinee air and the keeper for usher, had already returned. For a moment Orr bent to him, then to his associates but briefly. Bending again to Annandale he told him to take the stand.

The move, wholly unexpected, unusual, almost exceptional in murder cases, created an impression that was excellent, a sense of admiration for the fearlessness of the defense. From the prosecution came low growls of content. They were to be fed at last. In anticipation they licked their chops.

But the excellence of the impression dwindled. In the direct, Annandale denied, of course, that he had committed the murder, denied that he had ever contemplated it, swearing that to the best of his recollection he had made no threat at all.

"To the best of your recollection," Orr repeated after him. "Now please tell me, had anything occurred that night to impair your memory in any way?"

"Well – er – yes. Yes. I had been drinking."

"Had you any animosity toward the deceased?"

"Toward Loftus? None whatever. On the contrary, he was my best friend."

Peacock jumped. "I ask that that be stricken out."

Quietly Orr continued: "Had you known Loftus long?"

"All my life."

"Was he a friend of yours?"

"An intimate friend."

Orr turned to Peacock. "Your witness."

Peacock jumped again. "You say that on the night of the murder you had been drinking. Were you drunk?"

Paternally the Recorder looked over and down. "The witness need not answer that unless – "

Annandale interrupted him. "I am much obliged to Your Honor, but really I have nothing to conceal. I was drunk, deplorably so."

"Habit of yours, is it?" Peacock snapped.

Annandale took a monocle from a pocket, screwed it in his eye, looked through it at Peacock, smiled at him, with an air of fathomless good fellowship, answered: "Dear me, no. Is it one of yours?"

"Oho!" cried Peacock, pocketing the insult but pouncing at the point, "you were drunk on this occasion only. Got drunk for it, did you?"

"No," Annandale blandly and confidentially replied. "You see, don't you know, it was the day of the panic. I had dropped a good lot of money – a good lot, I mean, for me – and, as the saying is, I tried to drown my sorrows."

"But you found that they could swim, didn't you? Now, tell me, among these sorrows was not the greatest the one to which your former butler has testified, your late wife's desire for a divorce in order that she might marry Loftus? Is it not a fact that she told you so, and that you then said, 'I'll kill him, I'll kill Royal Loftus like the dog that he is'?"

"I recall no such conversation."

"What, then, was the nature of the conversation that passed between you and your wife on this particular evening?"

"I don't remember."

"The conversation and the threat to which your butler has sworn may therefore have occurred without your now recalling it. Is that not so?"

"Everything is possible, you know," Annandale answered with a phrase unconsciously borrowed of Orr. "But I doubt it very much for the reason – "

"Here," interrupted Peacock. "I don't want your doubts or your reasons or your haha airs. I want answers from you, direct answers. Where did you go and what did you do after your threat?"

To this Orr objected. A wrangle ensued. Orr was sustained. Peacock reconstructed his question. Annandale answered that he had gone to Miss Waldron's, but that he remembered nothing else.

"Is this yours?" Peacock suddenly asked, producing the pistol marked exhibit A.

"Probably," said Annandale, looking, not at it, but at the ceiling.

"That's all."

Annandale got from the stand. Others succeeded him there, experts for the defense, men who recited their qualities and degrees as though they were eating truffles to the sound of trumpets. One after another they testified that liquor can ablate memory partially, wholly; can ablate it regarding events antecedent and subsequent to a rememorated point between; can, moreover, leave the subject in a condition apparently normal yet actually in a state of trance.

"Do you really regard these people as experts?" Peacock with pitying contempt asked of Orr. Then at once in rebuttal were other experts, equally pleased with themselves, humorously disposing of psychical epilepsy, affecting to regard it as a medicolegal myth. Among the spectators the usual jest circulated. The mendacious were subdivided into liars, damned liars, expert witnesses. Yet there you were. But not Orr. Tortuously he involved the deponents in helpful contradictions, smiling at them, at Peacock and the jury, smiling with an air of saying "You see what confounded idiots these imbeciles are."

But the session was closing. One more witness remained to be called.

"Miss Waldron, will you take the stand?"

With the charming manner of the thoroughbred New York girl Sylvia circled the room. It was refreshing to see her, refreshing to hear the way in which she corroborated what Annandale had said.

"But," objected Peacock, "you had just gone from his house; what did he go to yours for?"

"To restore a string of pearls."

"Did he repeat to you anything that he had said to his wife?"

"Had he attempted to I should have refused to listen."

"Was he drunk?"

"I cannot say. I have never seen anyone in that condition."

"Did he make any threats regarding Loftus?"

"A gentleman does not make threats."

"Miss Waldron, I will thank you to answer me directly. Did he or did he not?"

"He did not."

"You swear to that?"

"I do."

It was perjury, of course. Yet if a girl may not perjure herself like a lady for the man she loves things have come to a pretty pass. That idea apparently struck Peacock.

"Prior to the defendant's marriage you were engaged to him, were you not?"

"I was."

"Are you engaged to him now?"

Very prettily and gracefully, without embarrassment, rather with pride, Sylvia answered: "I am."

"That's all," said Peacock. "The State rests." But as he said it he looked at the jury and sighed, sighed audibly, much as were he adding, "You may judge the value of her testimony from that."

The resting, however, was but figurative. In a moment the summing up began, a summing which, at first passionless as algebra, dealt with technical points.

"Gentlemen," said Peacock turning again to the jury, "the evidence in this case is of the kind known to you perhaps as circumstantial. Evidence of this nature can lead and often does lead to a conclusion more satisfactory than direct evidence can produce. Circumstances cannot lie any more than facts can. Unless we resort to them it is in vain that we attempt to detect and to punish crime. Crime shuns the light of day. It seeks darkness. It courts secrecy. The assassin moves stealthily. He calls no witness to see him shoot his victim down. If you wait for an eye-witness you grant impunity to crime. It is true, and probably you will be so told by counsel for the defense, that there are cases in which the innocent have been convicted. Yet if men have been erroneously convicted on circumstantial evidence, so have they been convicted on direct testimony also. That is not, though, a reason for declining to accept such testimony. The possibility of error exists alike. But because men may err do they refuse to act? Because wheat may be blighted does the farmer refuse to sow? No, gentlemen. Until we have means of knowledge beyond our present faculties we must accept this kind of evidence or grant practical immunity to crime."

The exordium concluded, Peacock warmed to his work. What he said he seemed to literally tear from his mouth. It was an arraignment not delivered but hurled, headlong, with the force and rush of a cavalry charge. Before it Orr's points sank overwhelmed. To replace them with others of his own Peacock made new ones, evolving them with a fire and lucidity that was pyrotechnic. They were like bombs exploding before the jury's eyes. He arraigned the defendant, arraigned the defense, stampeded their tactics, denounced Annandale's manner, which he declared to be that of a hardened criminal, and pictured him as a jealous husband who, in accordance with a plot long premeditated, had first lured his victim to his house, then following him thence had murdered him in the darkness, but who now swore that he was drunk and remembered nothing. "Assuming that he was drunk," Peacock shouted, "his intoxication was a feigned disguise, assumed for the purpose and legally an aggravation of his dastard crime."

Beneath, in the unlovely street, an organ was tossing a jig. The jolts of it mounted to the court, fusing with Peacock's voice, adding their vulgarity to his own, and it was to the wretchedness of them that he said at last: "My duty is done."

He had scored points by the dozen. In as many seconds Orr had their heads off by half.

"Harris, gentlemen, is the rock of the People's case. His hand fashioned it. Without him it crumbles. Let me array for you Harris against Harris."

Leisurely Orr began, showing the man's hand for what it was, not dirty and disreputable merely, but discredited.

"Apart from that hand where is the promised evidence? Where is it? Where is that evidence? Gentlemen, not a bit of evidence have you had, not a molecule, not a minim, not a mite. At best or at worst any evidence producible against this defendant would be circumstantial. In telling you the value of such testimony the District Attorney has been good enough to leave it to me to explain that testimony of this character must, to be conclusive, exclude every other reasonable hypothesis. The District Attorney has further told you that circumstances cannot lie. Of all his statements that one and that one alone is correct. Circumstances cannot lie. But witnesses can. It is from them that circumstances are obtained. And though they furnish a million circumstances, what are these circumstances worth if they themselves are unsound? How unsound that reptile Harris is, you have, I believe, been enabled to judge. But even otherwise, even though the testimony of that saurian seem to you probable, I may remind you that the most probable things often prove false, for the reason that if they were exempt from falsity they would cease to be probable; they would be certain.

"Now what certainty has the District Attorney brought you? Instead of excluding every other reasonable hypothesis, he has opened the door to a dozen hypotheses infinitely more reasonable than his own. Except that the obligatory instrument does not appear to have been found, he has adduced nothing to show that the deceased did not commit suicide. He has adduced nothing to show that he was not robbed. The caretaker has testified that he was away from the park ten or fifteen minutes. The policeman who returned with him has testified that when he got there the gate was open. In the interim anyone may have entered, gone through the suicide, bagged his pistol for further booty and away.

"No, the District Attorney has not excluded these hypotheses, he has confined himself to picturing this defendant as a husband jealous of the deceased. But assuming that he was, how many other husbands may not have been jealous of him also? The bullet in evidence, the bullet extracted from the brain of the deceased, is one which, from a calculation of its lands and grooves, may or may not have come from a thirty-two calibre pistol. Anyway a thirty-two calibre pistol is among the exhibits. But how many more such pistols are there in this great city? The ownership of one is not a proof of crime. Nor is the fact that the body of the deceased was found in front of this defendant's residence proof either. On the contrary. The park wherein it lay is a parallelogram, and a body in it would be practically in front of every other house in the square. How many jealous husbands reside in these houses I am not competent to say, but I am competent to tell you that the prosecution might just as well have arraigned any other resident there as this defendant; yes, and better, were it not for Harris."

Orr paused. "Reptile," he cried. "Knave, fraud, thief, liar – "

But the Court admonished him that his time was up. Without a murmur, in the middle of a sentence, he sat down. It was another point that he had scored.

"Gentlemen – "

The Recorder's charge to the jury followed, a charge clear, undeclamatory, without literature or bias, in which they were instructed regarding the law and left to determine the facts.

The jury filed out. The Recorder evaporated. Annandale sauntered away. Into adjacent corridors the great room emptied itself.

Orr, stationing associates on guard, went over to Sylvia, urging her to go.

But Sylvia refused at first to budge. The jury, she declared, would be back in five minutes.

"It may be five hours," said Orr. "You had far better go home. No? Well then I will take you to my offices and have something brought in."

"Is it far?" Sylvia warily asked. But presently she assented, stipulating however that Annandale should be brought there the moment he was freed.

Orr tossed his head. "That may not be for years, until after an appeal. I have not an idea what the jury will do. But I know one thing: the last of the lot, the twelfth, looked at me during my summing up with something that was a cross between a sneer and a scowl."

"Yes," Mrs. Waldron interjected, "I noticed him. But it seemed to me that he was not listening. It seemed to me that he was in pain. But do, Sylvia, let us go. It is cruel of you. I am starving."