The Turn of the Balance

But Marriott just then had no time to learn the significance of this strange presence. Eades was calling a witness.

"Detective Quinn!"

Quinn came in after the usual delay, walking with the policeman's swagger even after years on the detective force. He came in with his heavy shoulders set well back, and his head held high, but his eyes had the fixed stare of self-consciousness. Taking the oath, he ascended the witness-stand, leaned over, placed his hat against the side of the chair, and then, crossing one fat thigh over the other, held it in position with his hand. On his finger flashed a diamond, another diamond sparkled on his shirt-front.

"Pipe the rocks!" whispered Archie. "Know where he got 'em? Jane nicked a sucker and Quinn made her give 'em to him for not rapping."

Marriott impatiently waved Archie into silence; like all clients he was constantly leaning over at critical moments of the trial to say immaterial things, and, besides, his hot moist breath directly in Marriott's ear was very unpleasant.

Eades led Quinn through the preliminaries of his examination, and then in a tone that indicated an approach to significant parts of the testimony, he said:

"You may now state, Mr. Quinn, when you next saw the defendant."

Quinn threw back his head, fingered his close-cropped red mustache, and reflected as if he had not thought of the subject for a long time. He was conscious that he was thus far the most important witness of the trial. He relished the sensation, and, knowing how damaging his testimony would be, he felt a crude satisfaction. Presently he spoke, his voice vibrating like a guitar string in the tense atmosphere.

"The Friday morning before the Flanagan murder."

"Where did you meet him?"

"In Kentucky Street near Cherokee."

"Was he alone, or was some one with him?"

"Another man was with him."

"Who was that other man–if you know?"

"He was an old-timer; they call him Dad."

"What do you mean by an 'old-timer'?"

"An old-time thief–an ex-convict."

"Very well. Now tell the jury what you did–if anything."

"Well, I knowed Koerner was just back from the pen, and we got to talking."

"What did he say?"

"Oh, I don't just remember. We chewed the rag a little."

Eades scowled and hitched up his chair.

"Did he say anything about Kouka?"

"Hold on!" Marriott shouted. "We object! You know perfectly well you can't lead the witness."

"Well, don't get excited," said Eades, as if he never got excited himself; as he had not, indeed, in that instance, his lawyer's ruse having so well served its purpose. "I'll withdraw the question." He thought a moment and then asked:

"What further, if anything, was said?"

"Oh," said Quinn, who had understood. "Well, he asked me where Kouka was. You see he had it in for Kouka."

"No!" cried Marriott. "Not that."

"Just tell what he said about Kouka," Eades continued.

"I was trying to," said Quinn, as if hurt by Marriott's interruption. "Ever since Kouka sent him up for–"

"Now look here!" Marriott cried, "this has gone far enough. Mr. Eades knows–"

"Oh, proceed, gentlemen," said Glassford wearily, as if he were far above any such petty differences, and the spectators laughed, relishing these little passages between the lawyers.

"Mr. Quinn," said Eades in a low, almost confidential tone, "confine yourself to the questions, please. Answer the last question."

Quinn, flashing surly and reproachful glances at Marriott, replied:

"Well, he asked about Kouka, where he was and all that, and he said, says he, 'I'm going to get him!'"

The jury was listening intently. Even Glassford cocked his head.

"I asked him what he meant, and he said he had it in for Kouka and was going to croak him."

Archie had been leaning forward, his eyes fixed in an incredulous stare, his face had turned red, then white, and now he said, almost audibly:

"Well, listen to that, will you!"

"Sh!" said Marriott.

Archie dropped back, and Marriott heard him muttering under his breath, marveling at Quinn's effrontery.

"Tell the jury what further, if anything, was said," Eades was saying.

"Nothing much," said Quinn; "that was about all."

"What did you do after that?"

"I placed him under arrest."

"Why?"

"Well, I didn't think it was safe for him to be around–feeling that way."

"If he ain't the limit!" Marriott heard Archie exclaim, and he began his whispered curses and objurgations again. In his excitement and impotent rage, Marriott was exceedingly irritable, and again he commanded Archie to be still.

Eades paused in his examination, bit his lip, and winked rapidly as he thought. The atmosphere of the trial showed that a critical moment had come. Marriott, watching Eades out of the corner of his eye, had quietly, almost surreptitiously moved back from the table, and he sat now on the edge of the chair. The jurymen were glancing from Eades to Marriott, then at Quinn, with curious, puzzled expressions.

"Mr. Quinn," said Eades, looking up, "when did you next see Koerner–if at all?"

"On the next Tuesday after that."

"Where?"

"In the C. and M. railroad yards."

"Who was with you, if any one?"

"Detectives Kouka, and Officers Delaney and O'Brien, of the railroad, and Officers Flaherty, Nunnally, O'Toole and Finn–besides a lot of citizens. I don't–"

"That will suffice. And how came you–but first–" Eades interrupted himself. Marriott was still watching him narrowly, and Eades, it seemed, was postponing a question he feared to ask. "First, tell me–tell the jury–where Koerner was, and who, if anybody, was with him?"

"Well, sir, this here fellow they call Curly–Jackson's his name–he's a thief–a yegg man as they call 'em–he was with him; they was running and we was chasing 'em."

"And why were you chasing them?"

"We had orders."

"From whom?"

"Inspector McFee."

"What were those orders?"

"Well, sir, there had been a report of that Flanagan job–"

"Stop!" Marriott shouted. "We object."

"One moment, Mr. Quinn," said Eades, with an effect of quieting Marriott as much as of staying Quinn. Marriott had risen and was leaning over the table. Eades hesitated, realizing that the question on his lips would precipitate one of the great conflicts of the trial. He was in grave doubt of the propriety of this question; he had been considering it for weeks, not only in its legal but in its moral aspect. He had been unable to convince himself that Archie had been concerned in the murder of Margaret Flanagan; he had been uncertain of his ability to show premeditation in the killing of Kouka. He knew that he could not legally convict Archie of murdering the woman, and he knew he could not convict him of murdering the detective unless he took advantage of the feeling that had been aroused by the Flanagan tragedy. Furthermore, if he failed to convict Archie, the public would not understand, but would doubt and criticize him, and his reputation would suffer. And he hesitated, afraid of his case, afraid of himself. The moments were flying, a change even then was taking place, a subtle doubt was being instilled in the minds of the crowd, of the jurymen even. He hesitated another moment, and then to justify himself in his own mind, he said:

"Mr. Quinn, don't answer the question I am about to ask until the court tells you to do so." He paused, and then: "I'll ask you, Mr. Quinn, to tell the jury when you first heard the report of the murder of Margaret Flanagan."

"Object!"

Marriott sprang to his feet, his eyes blazing, his figure tense with protest.

"I object! We might as well fight this thing out right here."

"What is your objection?" asked Glassford.

"Just this, your Honor," Marriott replied. "The question, if allowed, would involve another homicide, for which this defendant is not on trial. It is not competent at this stage of the case to show specifically or generally other offenses with which this defendant has been charged or of which he is suspected. It would be competent, if ever, only as showing reputation, and the reputation of the defendant has not yet been put in evidence. Further, if answered in its present form, the evidence would be hearsay."

Eades had been idly turning a lead-pencil end for end on the table, and now with a smile he slowly got to his feet.

"If the Court please," he began, "Mr. Marriott evidently does not understand; we are not seeking to show the defendant's reputation, or that he is charged with or suspected of any other crime. What we are trying to show is that these officers, Detective Quinn and the deceased, were merely performing a duty when they attempted to arrest Koerner, that they were acting under orders. What we offer to show is this: Margaret Flanagan had been murdered and the officers had reasonable grounds to believe that Koerner–"

"Now see here!" cried Marriott. "That isn't fair, and you know it. You are trying to influence the jury, and I'm surprised that a lawyer of your ability and standing should resort to tactics so unprofessional–"

Eades colored and was about to reply, but Marriott would not yield.

"I say that such tactics are unworthy of counsel; they would be unworthy of the veriest pettifogger!"

Eades flushed angrily.

"Do you mean to charge–" he challenged.

"Gentlemen, gentlemen!" Glassford warned them. "Address yourselves to the Court."

Eades and Marriott exchanged angry and menacing glances. The jury looked on with a passivity that passed very well for gravity. At the risk of incurring the jurors' displeasure, Marriott asked that they be excused while the question was debated, and Glassford sent them from the room.

The legal argument began. Marriott had countless precedents to justify Glassford's ruling in his favor, just as Eades had countless precedents to justify Glassford's ruling in his favor, but to the spectators it all seemed useless, tedious and silly. A murder had been committed, they thought, and hence it was necessary that some one be killed; and there sat Archie Koerner–why wait and waste all this time? why not proceed at once to the tragic dénouement and decree his death?

Glassford, maintaining a gravity, and as if he were considering all the cases Marriott and Eades were citing, and weighing them nicely one against the other, listened to the arguments all day, gazing out of the window at the scene so familiar to him. Across the street, in an upper room of a house, was a window he had been interested in for months. A woman now and then hovered near it, and Glassford had long been tantalized by his inability to see clearly what she was doing.

The next morning Glassford announced his decision. It was to the effect that the State would be permitted to show only that a felony had been committed, and that the officers had had grounds for believing that Archie had committed it; but as to details of that murder, or whether Archie had committed it, or who had committed it–that should all be excluded. This was looked upon as a victory for the defense, and, at Marriott's request, Glassford told the jurors that they were not to consider anything that had been said about the Flanagan murder or Archie's connection with it. All this, he told them, they were to dismiss from their minds and not to be influenced by it in the least. The jurymen paid Glassford an exaggerated, almost servile attention, and when he had done, several of them nodded. And all were glad that they were to hear nothing more of the Flanagan murder, for, during the long hours of their exclusion from the court-room, they had talked of nothing but the Flanagan murder, had recalled all of its details, and argued and disputed about it, until they had tired of it, and then had gone on to recall other murders that had been committed in the county, and finally, other murders of which they had heard and read.

Quinn, in telling again the story the jurors had heard so many times in court, and had read in the newspapers, frequently referred to the Flanagan murder, until Marriott wearied of the effort to prevent him. He knew that it was useless to cross-examine Quinn, useless to attempt to impress on the crystallized minds of the jurymen the facts as they had occurred. The jurymen were not listening; they were looking at the ceiling, or leaning their heads on their hands, enduring the proceedings as patiently as they could, as patiently as Eades or Quinn or Glassford. And Marriott reflected on the inadequacy of every means of communication between human beings. How was he to make them understand? How was he to get them to assume, if for an instant only, his point of view? Here they were in a court of justice, an institution that had been evolved, by the pressure of economic and social forces, through slow, toiling ages; the witnesses were sworn to tell "the truth, the whole truth, and nothing but the truth," and yet, such was man's puerility and impotence, such was the imperfection of his means of conveying ideas, that the whole truth could not possibly be told–a thousand elements and incidents must be omitted; the moods, for instance, of Archie when he talked to Quinn or to Kouka, the expressions on their faces, the light in their eyes, indications far more potent than mere words, words that might be lightly, trivially, innocently spoken one day and under one set of circumstances, but which, on some other day and under other circumstances, would take on a terrible, blasting, tragic significance. Above all, that intangible thing, the atmosphere of the occasion–this could by no possibility be reproduced even though Quinn made every effort to be honest. And how much greater the impossibility when Quinn was willing to be disingenuous, to allow the prejudices and the passions of his hearers to reflect on his words their own sentiments, so that the hatred in the hearts of this this jury, these prosecutors, might seem to be a hatred, instead, in Archie's breast! Realizing the impossibility, Marriott felt again the strong, occult influences that opposed him, and had scarcely the strength to cross-examine Quinn. And yet he must make the effort, and for two long hours he battled with Quinn, set his wits and his will against him, but it was all hopeless. For he was not opposing Quinn's mind alone, he was opposing the collective mind of this crowd behind him, and that larger crowd in the city outside.

"Anything further, Mr. Marriott?" asked Glassford.

Marriott had a momentary rage at this impersonation of the vengeful state sitting before him, and exclaimed with disgust:

"Oh, I guess not."

XVI

The instant Marriott entered the court-house the next morning he was sensible of a change; it was as palpable as the heavy, overheated atmosphere indoors after the cool air outdoors. He could not account for this change; he knew only that it had come in the night, and that it boded some calamity in the world. Already it seemed to have had its effect on the men he met, clerks, attachés, and loafers; they glanced at him stealthily, then averted their eyes quickly. Somehow they filled Marriott with loathing and disgust.

As he went up in the swiftly-ascending elevator, the old man who operated it gave him that same look, and then observed:

"Something's in the air to-day."

Yes, thought Marriott, something is in the air. But what?

"I reckon it's going to storm," the white-headed veteran of the great war went on. "My rheumatiz hurts like hell this morning."

What mysterious relation was it, wondered Marriott, that bound this old man through his joints–gnarled by the exposure of his service to his country so long before–to all nature, foretelling her convulsions and cataclysms? What mysterious relation was it that bound men's minds to the moral world, foretelling as well its catastrophes and tragedies?

"I reckon it's the January thaw," the old fellow jabbered on, his mind never rising above the mere physical manifestations of nature.

The crowd was denser than ever, and there in the front row, where she had been every day of the trial, was old Mrs. Koerner, with eyes that every day grew deeper and wider, as more and more tragedy was reflected in their profound and mysterious depths.

"Call Henry Griscom," said Eades.

The crowd, the jury, the lawyers, waited. Marriott wondered; he felt Archie's breath in his ear and heard his teeth chatter as he whispered:

"I knew old Jimmy Ball had something framed up. Great God!"

The crowd made way, and the tall, lank form of the deputy warden shambled into the court-room. A man was chained to him.

"Great God!" Archie was chattering; "he's going to split on me!"

The man whom Ball had just unshackled took the oath, and looked indecisively into Ball's eyes. Ball motioned with his cane, and with a slow mechanical step, the man walked to the witness-stand and perched himself uneasily on the edge of the chair.

Archie fixed his eyes on the man in a steady, intense blaze; Marriott heard him cursing horribly.

"The snitch!" he said finally, and then was silent, as if he had put his whole contempt into that one word.

The emaciated form of the man in the witness chair was clothed in the gray jacket and trousers of a convict of the first grade. The collar of his jacket stood out from a scrawny neck that had a nude, leathery, rugose appearance, like the neck of a buzzard. If he wore a shirt, it was not visible, either at his neck or at his spindling wrists. As he hung his head and tried to shrink from the concentrated gaze of the crowd into his miserable garments, he suggested a skeleton, dressed up in ribald sport. It was not until Eades had spoken twice that the man raised his head, and then he raised it slowly, carefully, as if dreading to look men in the eyes. His shaven face was long and yellow; the skin at the points of his jaw, at his retreating chin and at his high cheek-bones was tightly stretched, and shone; he rolled his yellow eye-balls, and winked rapidly in the light of freedom to which he was so unaccustomed.

"Who is he?" Marriott whispered quickly.

"An old con.–a lifer," Archie explained. "One o' them false alarms. He's no good. They've promised to put him on the street for this."

But Eades had begun his examination.

"And where do you reside, Mr. Griscom?" Eades was asking in a respectful tone, just as if the man might be a resident of Claybourne Avenue.

"In the penitentiary."

"How long have you been there?"

"Seventeen years."

"And your sentence is for how long?" Eades continued.

The man's eyes drooped.

"Life." The word fell in a hollow silence.

"And do you know this man here–Archie Koerner?"

The convict, as if by an effort, raised his eyes to Archie, dropped them hastily and nodded.

"What do you say?" said Eades. "You must speak up."

"Yes, I know him."

"Where did you know him?"

"In the pen."

It was all clear now, the presence of Ball, the newspapers' promise of a sensation, the doom that had hung in the atmosphere that morning. Marriott watched the convict first with loathing, then with pity, as he realized the fact that when this man had spoken the one word "life"–he had meant "death"–a long, lingering death, drawn out through meaningless days and months and years, blank and barren, a waste in which this one incident, this railroad journey in chains, this temporary reassertion of personality, this brief distinction in the crowded court-room, this hour of change, of contact with free men, were circumstances to occupy his vacant mind during the remaining years of his misery, until his death should end and life once more come to him.

"And now, Mr. Griscom," Eades was saying with a respect that was a mockery, "tell the jury just what Koerner said to you about Detective Kouka."

The convict hesitated, his chin sank into the upright collar of his jacket, his eyes roved over the floor, he crossed, uncrossed and recrossed his legs, picked at his cap nervously.

"Just tell the jury," urged Eades.

The convict stiffly raised his bony hand to his blue lips to stifle the cough in which lay his only hope of release.

"I don't just–" He stopped.

The crowd strained forward. The jury glanced uneasily from Griscom to Eades, and back to Griscom again. And then there was a stir. Ball was sidling over from the clerk's desk to a chair Bentley wheeled forward for him, and as he sank into it, he fixed his eyes on Griscom. The convict shifted uneasily, took down his hand, coughed loosely and swallowed painfully, his protuberant larynx rising and falling.

"Just give Koerner's exact words," urged Eades.

"Well, he said he had it in for Kouka, and was going to croak him when he got home."

"What did he mean by 'croak,' if you know?"

"Kill him. He said he was a dead shot–he'd learned it in the army."

"How many times did you talk with him?"

"Oh, lots of times–every time we got a chance. Sometimes in the bolt shop, sometimes in the hall when we had permits."

"What else, if anything, did he say about Kouka?"

"Oh, he said Kouka'd been laggin' him, and he was goin' to get him. He talked about it pretty much all the time."

"Is that all?"

"That's about all, yes, sir."

"Take the witness."

Griscom, evidently relieved, had started to leave the chair, and as he moved he drew his palm across a gray brow that suddenly broke out in repulsive little drops of perspiration.

"One moment, Griscom," said Marriott, "I'd like to ask you a few questions."

The court was very still, and every one hung with an interest equal to Marriott's on the convict's next words. Griscom found all this interest too strong; his pallid lips were parted; he drew his breath with difficulty, his chest was moving with automatic jerks; presently he coughed.

Marriott began to question the convict about his conversations with Archie. He did this in the belief that while Archie had no doubt breathed his vengeance against Kouka, his words, under the circumstances, were not to be given that dreadful significance which now they were made to assume. He could imagine that they had been uttered idly, and that they bore no real relation to his shooting of Kouka. But the difficulty was to make this clear to the crystallized, stupid and formal minds of the jury, or rather to Broadwell, who was the jury. He tried to induce Griscom to describe the circumstances under which Archie had made these threats, but Griscom was almost as stupid as the jurors, and the law was more stupid than either, for Griscom in his effort to meet the questions was continually making answers that involved his own conclusions, and to them Eades always objected, and Glassford always sustained the objections. And Marriott experienced the same sensations that he had when Quinn was testifying. There was no way to reproduce Archie's manner–his tone, his expression, the look in his eyes.

To hide his chagrin, Marriott wiped his mouth with his handkerchief, leaned over and consulted his notes.

"A life is a long time, isn't it, Griscom?" he resumed, gently now.

"Yes." Griscom's chin fell to his breast.

"And the penitentiary is not a good place to be?"

Griscom looked up with the first flash of real spirit he had displayed.

"I wouldn't send a dog there, Mr. Marriott!"

"No," said Marriott, "and you'd like to get out?"

"Sure."

"You've applied for a pardon?"

"Yes."

Marriott's heart was beating fast. At last he had a hope. He could hear the ticking of the big clock on the wall, he could catch the faint echoes of his voice against the high ceiling of the room whose acoustic properties were so poor, he could hear the very breathing of the crowd behind him.

"Mr. Griscom," said Marriott, wondering if that were the right question, longing for some inspiration that would be the one infallible test for this situation, "did you report to the authorities these remarks of Koerner's at the time he made them?"

Griscom hesitated.

"No, sir," he answered.

"Why not?"

"I didn't think it necessary."

"Why didn't you think it necessary?"

"Well–I didn't."

"Was it because you didn't think Archie was in earnest–because his words were not serious?"

"I didn't think it necessary."

Marriott wondered whether to press him further–he was on dangerous ground.

"To whom did you first mention them?"

"To the deputy warden."

"This man here?" Marriott waved his hand at Ball with a contempt he was not at all careful to conceal.