Belford's Magazine, Vol. II, No. 3, February 1889

In those days, a person accused was not permitted to go upon the stand in his own behalf and give his testimony, under the sanctity of an oath, as is now allowed him by the law. Then, he might be granted the privilege of making his statement, but it would be merely a statement, and the prosecution was very careful always, when a prisoner thus spoke for himself, to impress upon the jury that his unsworn affirmation of innocence was of no value whatever, when weighed in the balance against other men's affidavits. Stress would be laid upon the time and knowledge the accused had had to enable his preparation of his own version of the affair, and undue prominence and importance given to the fact that he could not be cross-examined. In this way an artful prosecutor could generally neutralize all good effect the accused might otherwise produce, if not, indeed, make the poor wretch's asseverations of innocence absolutely harmful to him, by stirring up the suspicion, antagonism, and secret consciousness of infallibility in the minds of the jury, who resent attempts to deceive them.

Dorn was duly warned of this, yet he persisted in demanding to be allowed to tell his own story, and the court granted him permission to do so. He told it simply, clearly, and truthfully, as he had told it before to Lem, to Mary, to his lawyer, and to the magistrate who committed him, but he made no new converts to his innocence now – unless it might have been the clear-sighted and experienced old judge on the bench, who believed that he heard the ring of truth in the young man's voice, and saw honesty in his frank, manly face.

But at the conclusion of the statement, as Dorn left the stand and returned to his seat by his counsel, the prosecuting attorney silently held aloft before the jury the marked and identified handkerchief, and that action was more conclusive in its effect upon their minds than all that the prisoner had said. Looking upon their faces, the lawyer for the defence murmured to himself, "We are lost!"

As the day wore on Lem Pawlett was in agony, for his witness did not appear. It made him dizzy and sick to see one witness after another leaving the stand in such rapid succession, for he did not know how soon the supply of them would run out, and the weak defence be compelled to close before the one upon whom all depended should make his appearance. "Why had he not come? The boat was due many hours ago, and had not yet arrived! Becalmed, doubtless, on this one day of all the days in the year. Perhaps he might not be aboard. He might be sick. What if he should be a cunning villain, the real criminal, for all his smooth exterior, who had purposely given that handkerchief to Dorn to cast the guilt apparently on him? He smiled when it was mentioned. And now he might be flying far away." These thoughts almost maddened Lem. Bitterly he reproached himself that he had not staid in New York and kept his witness under his eye until the last moment, and brought him along by force, if necessary. Again and again he was tempted to make his way to Mr. Dunn, and urge him to fight the day through by all means; but each time he remembered what Mr. Holden had said the prisoner's counsel must be, and refrained. Parched with thirst, and blazing with fever, yet with a cold perspiration breaking out all over him, poor Lem could hardly understand half that was going on. But when Dorn's lawyer arose and said, "May it please the court, the defence rests," the words came to his ears like a clap of thunder. It seemed to him that that was the last moment of grace, and he staggered to his feet, trying to say something; to cry a halt; to appeal to the judge for time; to do, he did not know what. But his tongue clave to the roof of his mouth, and a deputy sheriff, seeing him standing there, waving his arms and looking as if he was about to speak, shouted at him with such an awful voice, "Silence in the court," that he sank down, stunned and speechless in his place, as helpless as he had been in that awful dream of the night before.

The prosecuting attorney began summing up to the jury. If he was forcible in the opening, he was terrible now. Of course he assumed that a clear case had been made out, as prosecutors always do; that "there was no moral doubt of the guilt of the accused, any more than if the jury had actually beheld him battering in the skull of his aged victim, wiping the dripping blood from his hands upon the raiment of the corpse, and clutching the gold, for lust of which he had done this hideous deed." [Five of the jury looked as if they quite agreed with him; three others glanced timidly and furtively at the faces of the five, as if to read there what they too should think about it; the sleepy men were very wide awake now, having had a good nap while the evidence as to character was being introduced; and the deaf man had both hands up to his ears to enable him to hear better, for if there is anything that country people do love, it is a good strong speech.]

In the midst of one of his most vigorous declamatory efforts the eye of the prosecutor caught sight of the judge, who was sitting with upraised gavel and a look as if he was only waiting for the end of a sentence to arrest his progress. The speaker stopped, and the judge, laying down his gavel, held up a note and said:

"I am in receipt of a communication which is, if written in good faith – that is, by the person whose name is signed to it – of so very important a character, and has such a decided bearing upon the interests of justice in this case, that I feel it would be in the highest degree unwise to ignore it. I will therefore ask the prosecuting attorney to have the kindness to at least postpone for a short time the continuation of his address to the jury. The court will now take a recess for half an hour."

The densely packed and excited audience hardly waited the conclusion of the sheriff's formal repetition of the formal order of the court, to break out into a loud murmur of exclamations, conjecture, and discussion as to what the important communication might be. The judge, upon rising from his seat, made a sign to the prosecuting attorney and the counsel for the defence to accompany him to his room, and the trio went out by the private door, which they closed behind them.

"What is it, Lem? What do you suppose they are going to do now?" Ruth asked anxiously of the young man, who sat in a semi-inanimate condition at her side, and who actually had not heard a word of what the judge had said. He started from his dream, into which reality had again plunged him, and replied miserably:

"I don't know. Hang him, I suppose."

"Don't talk nonsense, Lem. What's the matter with you? Wake up. Didn't you hear what the judge said about his receiving an important communication that had a decided bearing, and all that?"

"Did he?"

"Yes, 'a decided bearing upon the interests of justice in this case.' Those were his very words; and he held up a letter."

"Then it's all right now, Ruth! All right at last! He has come! He has come!"

"Who has come?"

"The man who will save Dorn Hackett."

XXIII.

TURNING OF THE TIDE

It seems a little strange to some people that a prosecuting attorney should so hungrily devote himself to the conviction of an accused person, even when, as is sometimes beyond question, he feels in his heart that the individual against whom he is exerting all the force of his trained legal ingenuity, eloquence, and mental power is, in fact, guiltless of the crime alleged against him. If his gains depended upon his success in obtaining a conviction, many who are accustomed to look upon pecuniary interest as a sufficient excuse for almost anything not absolutely prohibited by law, would understand him better. But such is not the case. His salary is the same, whether he succeeds in hanging a guiltless unfortunate or not. Success, in many cases, may help him to re-election: but that is not always a serious consideration. Why, then, when he cannot convict by clear proof of guilt, does he call to his aid the technicalities of law, the power of precedent, and all that may enable him to even prevent the prisoner accomplishing that herculean task – the proving of his innocence? Simply because of the development in him – and the conscious possession of the widest license in its exercise – of the hunting instinct that is inherent in all carnivorous animals, man included. He hunts the accused down to death, with not even the cannibal's excuse of wishing to eat him, but that he may have the joy of triumph in the achievement, and that his reputation as a hunter may be enhanced, – as some men used to kill buffaloes on the plains, as long as there were any, simply for the sake of the killing. In other circumstances and relations of life he may be gentle and kind-hearted; but put him in the chase, and he knows no pity. Perhaps there are times when, after a conviction, he secretly says to himself:

"Thank God it was the jury's work, not mine! I did not convict him!"

But he deceives himself. The average juryman, even one who is without prejudice and means to do rightly, is but a tool of the most cunning and able of the two lawyers pitted against each other before him. Some drops of the innocent blood the jury sheds must cling to the hands of the prosecutor.

When the court resumed its session, after the brief recess, another person sat within the railing among the lawyers, a little elderly gentleman, at sight of whom Lem Pawlett almost wept for joy, and the prisoner's heart felt a thrill of hope.

Dorn's counsel formally announced to the court that since the closing of the defence new and most important evidence, completely demonstrating the innocence of the prisoner at the bar, had been put in his possession, and he asked that the court grant permission for the reopening of the defence and the admission of this testimony.

The prosecuting attorney argued long and earnestly against the introduction of any further evidence at the present stage of the proceedings. In view of the high character and standing in the profession of the proposed witness, who had been made known to him in the judge's private room, and with whose reputation he was well acquainted, he did not dare to cast a shadow of suspicion upon the proposed evidence as manufactured and unworthy of belief or consideration. Evading that issue, he confined himself to opposing as informal, irregular, and liable to be viewed as a dangerous and evil precedent, the reopening of the case. Even if improperly convicted for lack of this evidence, the prisoner, he argued, would still have his relief in a new trial, which the Court of Appeals would be sure to grant if the new testimony was indeed material.

Mr. Dunn made a strong plea for the accused against the injustice of condemning an innocent man to await in prison, under the shadow of a sentence of death, and in an agony of suspense, the slow action of the Court of Appeals, rather than disturb the mere formality of a trial.

Finally, the judge ruled – as he had intended to before either of the lawyers said a word – that the new evidence should be admitted.

The little elderly gentleman, responding promptly to the crier's call for "Pelatiah Holden," took the stand, was sworn, and testified:

"My name is Pelatiah Holden; I reside in New York, and am a lawyer by profession. I have been the legal adviser of the brothers Peter and Jacob Van Deust in certain money matters; and, upon business connected with their affairs, visited their house on the evening of the 19th of July, coming from New York by boat to Sag Harbor and thence riding over on horseback."

"That was the night upon which Jacob Van Deust was murdered, was it not?" the prisoner's counsel interposed.

"To the best of my present information and belief the murder was perpetrated on the night of the 19th, or morning of the 20th."

"Yes, sir. Proceed, sir."

"I remained with the Van Deust brothers, taking supper with them, receiving their signatures to some papers, and holding a consultation with them in regard to the investment of certain monies belonging to them jointly, until, as nearly as I can now remember, about fifteen minutes before nine o'clock in the evening. They pressed me to remain all night, which I declined to do, as I had business of importance to attend to in New York, for other clients, and was desirous of returning as speedily as possible to the city. When I took my departure Jacob Van Deust accompanied me to where my horse was hitched in the lane, and we stood there talking a few minutes. There was no wind stirring, and the mosquitoes annoyed me very much. In switching them from the back of my neck with my handkerchief I dropped it accidentally, and the horse chanced to step upon it, trampling it into the dirt of the lane. Seeing that it had been rendered unfit for present use, Mr. Jacob Van Deust was kind enough to offer me the loan of a clean one which he had in his pocket, and I thankfully accepted it. I mounted my horse, said good-by, and set out upon a new road that Mr. Van Deust – the younger brother, I mean – had recommended to me as shortening considerably the distance I had to travel.

"I had ridden, as nearly as I can judge, about a mile, or perhaps only seven-eighths of a mile, when, in passing through a cutting that depressed the roadway to a depth of nine or ten feet below the surface of the ground on either side, I found, lying upon the ground and groaning, a young man."

"Do you recognize that man among those here present?"

"I do, sir. It was the prisoner at the bar. He informed me that having been unacquainted with the existence of that new road, he had just sustained a severe fall into it. His injuries seemed to corroborate his statement, at least so far as the severity of his fall was concerned. His scalp was badly cut in at least two places, and he was bleeding profusely.

"When I assisted him to rise he found that one of his ankles – the left, I believe – was so seriously sprained that he could not bear to rest his weight upon it, and could not walk a step without assistance. I used the clean handkerchief which was in my possession, together with one he had, to bind up his head and stanch the flow of blood, after which I supported him to the beach, where he hoped, he said, to find a small vessel to take him to New Haven, where he resided. But he was only able to move very slowly, and when we arrived at the water's edge no vessel was in sight. While we were debating what was best to be done with him, under the circumstances, a small fishing-boat came within a short distance of the shore, and the person directing its movements responded to his call. He offered the person in the boat – who appeared to be an old man, accompanied by a boy – the sum of ten dollars to take him over to New Haven, which offer was accepted. I assisted him to enter the boat, and, when it had sailed away returned to where I had left my horse tied to tree, remounted him, and prosecuted my journey homeward."

During the giving of this evidence, a stillness prevailed in the court-room as if the speaker had been alone, and when his voice ceased there was such an enormous sigh from the crowded audience as if all were at once exhaling the pent-up breath they had not dared to free before for fear of losing a word of what he said. Five jurymen and the prosecuting attorney looked equally disgusted.

"At what hour that night did you last see the prisoner?" asked Mr. Dunn.

"At twenty-seven minutes past ten o'clock."

"In a small boat, sailing from the shore?"

"Yes, sir. Very slowly, however, as there was very little wind."

"From your knowledge of his condition at that time, do you believe it would have been possible for him to have returned that night to Mr. Van Deust's, entered that house, perpetrated the murder with which he is charged and made his escape?"

"No, sir. He was very weak from loss of blood, and I know, from personal examination, that his ankle was so severely sprained that it would have been a physical impossibility for him to have done what you said."

"Ah! you say that you examined his ankle. Did you notice at the time what kind of shoes he wore?"

"I did. He had on the low, broad, soft shoes, with hardly any heels, which sailors customarily wear."

"That is enough, sir. Thank you. Take the witness," said Mr. Dunn, with an air of triumph, to the prosecuting attorney.

That official did not seem to care about taking the witness. He knew that it was a master in the art of cross-examination who was thus lightly turned over to him, and had no hope of entrapping him or shaking his testimony. Still, he had to make some show.

Indifferently he asked: "Of course you have no idea of who the old man in the boat was?"

"To the best of my information and belief, his name was Jabez Sanborn. I asked him and that was what he told me."

Jabez Sanborn! Why, everybody around Sag Harbor knew about him; a shy old man, reputed a miser, who lived with a lad, his grandson, in a hut in the woods and was known to be addicted to wandering all along the coast at night, in a little fishing-smack, on errands best known to himself. Yes, the most likely man in the world to be met under just such circumstances was old Jabez Sanborn. And the least likely man to hear that a murder trial was going on in which he might be an important witness – or perhaps to care if he had heard it – was also old Jabez Sanborn. The prosecuting attorney felt that he had not drawn a trump that time at least. While he cast about mentally for something else that he might ask the witness, with at least the minimum of harm to his side of the case, a startling diversion occurred to interrupt the proceedings.

Old Peter Van Deust, who had been sitting near the prosecuting attorney and directly in front of the witness, suddenly sprang to his feet, walked up to Mr. Holden, clutched with trembling fingers the seal that dangled from his watchguard and, after examining it a moment, cried shrilly:

"It's all a lie! All a cunningly made up story! He is an accomplice of the assassin! This was Jacob's seal. I'll swear to it!"

Almost everybody had jumped up in the excitement of this interruption, even the sedate judge was standing, leaning over his desk to get a better view of what was going on before him but below his range of vision, and there was a deafening chorus of exclamations from all sides; but above all arose the sharp voice of Peter Van Deust, crying:

"Arrest him! arrest him! I demand the arrest of this man as an accomplice!"

The only tranquil person in the assemblage was Mr. Pelatiah Holden. He was surprised at his client's outbreak, but only for a moment. Then, blandly saying to the almost mad old man who stood before him, shaking a long, lean finger in his face, "Mr. Peter Van Deust, you seem to be excited."

He very calmly drew his watch from his fob-pocket and with the seal attached to it, passed it up to the judge. The seal was a heavy, square onyx, with a foul anchor engraved on one side.

"I'd swear to it among a thousand," shrieked old Peter. "It belonged to my father when he was in the navy. He left it to brother Jacob. It was stolen by the thief who murdered him."

The judge rapped his gavel until order was restored in the court-room, and old Peter had been fairly dragged down into a seat by the prosecuting attorney, who was nearest him – after which, addressing the witness, he asked:

"How did this seal come into your possession, Mr. Holden?"

"Very simply, your Honor. But before I relate how, permit me to request your Honor to issue strict injunctions to the officers at the door to permit no exit from this court-room or communication by those within to persons on the outside."

The judge was evidently surprised, but his respect for the well-known and honored Mr. Holden was sufficient to induce him to comply with the request without asking its reasons. When the necessary instructions had been issued to the court officers, Mr. Holden resumed:

"About three weeks ago, while I was taking lunch one afternoon at Windust's – a very popular and well conducted restaurant on Park Row, New York – a young man came to the box in which I was seated and offered this seal for sale. I am, as a rule, averse to the purchase of personal property from unknown persons and in an irregular way, but this young man told a melancholy story of his present need for money for the sake of a widowed mother and sister, said that the seal had belonged to his father who was a naval officer and asked for the article a price that was at least its full value. That influenced me to purchase it. I reflected that if it had been stolen it would have been, in all probability, offered at a cheap price to effect ready disposal of it, whereas if he really needed money, as he said, for his mother and sister and the thing honestly belonged to him, he would naturally try to get as much as he could. So I gave him seventeen dollars for it and have since worn it."

"What," asked the judge, "was your reason for requesting the careful tyling of the doors before making that statement, Mr. Holden?"

"Because I recognized to-day, in the court-yard without, as I was entering this building, the young man from whom I purchased this seal."

"You believe so!"

"I am certain of it. If your Honor will permit an officer to accompany me, I believe that I will be able to bring him before you in a few moments. When I saw him he was seated at the root of an elm tree near the door, and alone."

An officer was directed to accompany Mr. Holden and they went out together by the private staircase. The curious throng in the court-room, unwilling to lose a single incident of the eventful drama unfolding itself before them, struggled hard to get out and follow the officer and his guide, but were not allowed to do so, and returned to their seats with a sense of injury. Everybody was intensely excited. The prosecuting attorney leaning over the judge's bench held a long and earnest conversation with him. The prisoner and his counsel whispered together. The jury jabbered to each other so that even the idiotic-looking one among them seemed to awake to an interest in the proceedings.

Suddenly the little door behind the judge was flung open, and Mr. Holden entered, followed by the officer and a third person – a young man, attired in a flashy sort of vulgar fashion, and wearing a dyed mustache and goatee. Many audible exclamations of astonishment were uttered among the audience, numbers of whom recognized this new actor thus brought upon the scene.

"That, your honor," said Mr. Holden, "is the young man who sold to me the seal which you now have before you."

XXIV.

THE HAND OF PROVIDENCE

"What is your name?" demanded the judge of the young man thus brought before him.

The fellow hesitated an instant, and a lie trembled on his lips; but then looking around and seeing many who could identify him, he knew that falsehood would be useless, and sullenly replied:

"Silas Thatcher."

"Where do you live?"

"On Hester Street, near the Bowery, in New York."

"What is your business?"

"Haint got none."

"What have you to say in reply to the statement which you have just heard made by this gentleman, to the effect that you sold this seal to him?"

"Nothin'," answered Silas after a little hesitation.

"Nothing? But do you not understand, young man, that this may be a very serious matter? I do not ask you that you may criminate yourself in any way, but with the hope that if you have any reasonable explanation to offer you will not withhold it. How did this seal come into your possession?"

Silas paled, was visibly perturbed, and hesitated longer than before; then responded doggedly:

"I haint got nothin' to say. I want a lawyer, I do." The judge was silent for a moment, then replied drily.

"Of course you are entitled to counsel. You will stand committed for further examination. Mr. Sheriff, adjourn court until the usual hour to-morrow morning."

It was a loving and a hopeful interview that Dorn and Mary had at his cell door that evening, and Mr. Holden had the pleasure of being present during at least a part of it, when he received the heartfelt thanks of both for his opportune aid in their darkest hour. Peter Van Deust, whose wits were manifestly failing, had not seemed to comprehend what was done in the court-room after he had sustained the violent mental shock of recognizing his murdered brother's seal, and had clamored, at the adjournment of the court, for the arrest of the New York lawyer. But the judge smilingly replied, that he would himself be responsible for the attendance of Mr. Holden, whenever it might be required, and had gone away down the main street to the tavern, arm in arm with that gentleman; a sight that had fairly stunned poor old Peter. After dinner Mr. Holden paid his visit to Dorn's cell, and the judge said he, too, would like to go along "but for the looks of it," as he "considered Dorn now virtually a free man, and had all along suspected that he was an innocent one."