There were quite a number of people in the court room when the case of the State vs. Smilk was called. It was a bitterly cold day outside and considerable of an overflow from the corridors had seeped into the various court rooms. But little delay was experienced in obtaining a jury. The regular panel was stuck, with a few exceptions. Only one member was able to declare that he had formed an opinion, and he did not form it until after he had had a good look at the prisoner,—although he did not say so. Two were challenged by counsel and one got off because he admitted that he was acquainted with a man who used to be connected with the District Attorney's office,—he couldn't think of his name.
Smilk's attorney succeeded in executing a very clever piece of strategy at the outset. No sooner had the jury been sworn than he ordered the bailiffs to crowd three or four more chairs alongside his table, and then blandly invited a considerable portion of the audience to take their seats inside the railing. The persons indicated included a tall, shabbily dressed woman and seven ragged, pinched children, ranging in years from twelve down to three. Immediately the prosecution fell into the trap. Two agitated Assistant District Attorneys jumped to their feet and barked out an objection to the presence of the accused's wife and family on the inside of the fence, and the court promptly sustained them. He also said some very sharp and caustic things to Smilk's lawyer. Mrs. Smilk and her bewildered seven patiently resumed their seats in the front row of spectators, but not until after a four year old girl, surreptitiously pinched, had caused a mild sensation by piping: "I want my daddy! I want my daddy!"
Smilk cringed and it was quite apparent to close observers that he was having great difficulty in suppressing his emotions.
The first witness for the prosecution was Crittenden Yollop, milliner, aged 44. A more thorough examination by the State would have disclosed the fact that he was six feet tall, spare, slightly bald, beardless, well-manicured, and faultlessly attired.
"State your name and occupation, please," said the State's attorney, advancing a few paces toward the witness stand.
"My name is Crittenden Yollop. I am in the millinery business."
The State: "Where do you reside?"
Yollop: "418 Sagamore Terrace."
The State: "In an apartment?"
Yollop: "A little louder, if you please."
The State, raising its voice: "Repeat the question, Mr. Stenographer."
Stenographer, leaning forward a little: "'In an apartment?'"
Yollop: "Yes."
The State: "Were you living in this apartment on the 18th of December, 1919?"
Yollop: "I was."
The State: "Was that apartment entered by a burglar on the date mentioned?"
Yollop: "It was."
The State, casually: "Will you be so good as to glance around the court room and state whether you see and recognize the man who entered and robbed your apartment?"
Yollop, pointing: "Yes. That is the man."
The State: "You are sure about that?"
Yollop: "I beg pardon?"
The State, patiently: "Repeat the question, Mr. Stenographer."
Stenographer, patiently: "'You are sure about that?'"
Yollop: "Certainly."
The State: "Now, Mr. Yollop, I'm going to ask you to tell the jury, in your own words, exactly what occurred in your apartment on the morning of December 18th. Speak slowly and distinctly, and face the jury."
Mr. Yollop, assisted to some extent by the gentleman conducting the examination, related the story of the crime, dwelling with special earnestness upon the dastardly, brutal manner in which Smilk forced him, at the point of a revolver to bind and gag and otherwise maltreat the woman who had befriended him and whose jewels he was preparing to make off with when the police arrived. He carefully avoided any allusion to certain portions of the lengthy and illuminating dialogue that had taken place between him and Smilk; he said nothing of the unexampled behavior of the intruder in telephoning for the police, or the kindness revealed by him in suggesting a means for getting his captor's feet warm.
Smilk's lawyer, at the very outset of the cross-examination, clarified the air as to the nature of the defense he was going to put up for his client. After a few preliminary questions, he demanded sharply:
"Now, Mr. Yollop, didn't this defendant state to you that he had been unable to get work and that his wife and family were in such desperate straits that he was forced to commit a crime against the State in order to preserve them from actual starvation?"
Yollop: "He did not."
Counsel: "You are quite positive about that, are you?"
Yollop: "Yes."
Counsel: "Did he, at the time appear to be a robust, well-conditioned man,—that is to say, a man who looked strong enough to work and who had had sufficient nourishment to keep his body and soul together?"
Yollop: "He certainly did."
Counsel: "A big, rugged, healthy, desperate fellow, you would say?"
Yollop: "Yes."
Counsel: "Armed with a loaded revolver?"
Yollop: "Yes."
Counsel: "You would say that he was big enough and strong enough to pull a trigger, wouldn't you?"
Yollop: "I can't answer that question. I don't know how much strength it requires to pull a trigger."
Counsel: "Ahem! At any rate, he looked as though he was strong enough to pull a trigger?"
Yollop: "I dare say he could have pulled it."
Counsel: "And yet you would have the jury believe that this big, strong, well-nourished man, permitted you—By the by, how much do you weigh, Mr. Yollop!"
Yollop: "About 145 pounds, in my clothes."
Counsel: "You are six feet tall, I should say?"
Yollop: "Lacking a quarter of an inch."
Counsel: "Ahem! As I was saying, this strong, desperate man, armed with a revolver, allowed you to walk across the room and strike him in the face, causing him to crumple up and fall to the floor as if struck by a—well, someone like Jack Dempsey. Isn't that so?"
Yollop: "I never was so surprised in my life."
Counsel, thunderously: "Answer my question!"
Yollop: "Well, I hit him and he fell."
Counsel: "Do you regard yourself as an experienced boxer?"
Yollop: "No, I don't."
Counsel: "Are you what may be termed a powerful man, able to strike a powerful blow with the fist?"
Yollop: "I don't know. The defendant can answer that question better than I can."
Counsel, to the court: "Your honor, I appeal to you to direct this witness to answer my questions—"
The Court: "Confine your answers to the questions as they are put to you, Mr. Witness."
Counsel to Yollop: "Now see if you can answer this question, Mr. Yollop. You have described in direct examination that this defendant was a big, burly, rough looking man. You say you were surprised when he went down under your inexpert blow. Why were you surprised?"
Yollop: "I was surprised to find how easy it is to knock a man down."
Counsel. "I see. You had never knocked a man down before. Is that so?"
Yollop: "I had never even struck a man before."
Counsel: "And yet you found it singularly easy to deliver a blow on the jaw of an armed man with sufficient force to knock him down?"
Yollop: "I can only answer that question by saying that he went down when I struck him. I don't know how hard or how easy it is to knock a man down."
Counsel: "But you admit you were surprised?"
Yollop: "Yes. I was surprised."
Counsel, shaking his finger and speaking with something like malevolence in his voice and manner: "Don't you know, Mr. Yollop, that this man was so exhausted from lack of food that he was not only unable to defend himself from your assault but that the weakest blow—or even a gentle push with the open hand,—would have sent him sprawling?"
Yollop: "I don't know anything about that."
Counsel: "Wasn't he so weak that he could hardly walk across the room after he arose?"
Yollop: "Possibly. He was not too weak, however, to climb up two floors on a fire escape and pry open my window before I,—"
Counsel: "Now,—now,—now! Please answer my question?"
Yollop: "He complained of being dizzy. He held his hand to his jaw. That's all I can say."
Counsel: "You were pointing the revolver at him all the time, you have testified. Is that true?"
Yollop: "Yes."
Counsel: "If he had made an attempt to attack you, you would have shot him, wouldn't you?"
Yollop: "I would have shot AT him, I suppose."
Counsel, slowly, distinctly, dramatically: "In other words, you would have been strong enough to do the thing that he was unable to do,—pull a trigger."
Yollop: "I haven't said he was unable to pull a trigger."
Counsel: "Answer my question!"
The State, bouncing up: "We object to this question. It calls for a conclusion on the part of the witness that—"
The Court: "Objection sustained."
Counsel, glaring: "Exception." Then, after mopping his brow and consulting his notes: "Now, Mr. Yollop, you say you conversed with this defendant at some length while waiting for the police to arrive. Have you any recollection of this defendant telling you that he was driven to theft because he had been out of work for nearly three months?"
Yollop: "No."
Counsel: "Didn't he say something of the kind to you?"
Yollop: "He didn't say he had been out of WORK for three months."
Counsel, patiently: "Well, what did he say?"
Yollop: "He said he had been out of jail for three months."
Counsel, suddenly referring to his notes again: "Er—ahem!—By the way, Mr. Yollop, you don't hear very well, do you?"
Yollop: "I am quite deaf."
Counsel: "He might have said a great many things that you failed to hear,—especially if his voice was weak?"
Yollop: "I dare say he did."
Counsel, lifting his eyebrows significantly and nodding his head: "Ah-h-h! Didn't he tell you that he had a wife and several children?"
Yollop: "I don't recall that he said anything about several children. He said he had several wives."
Counsel, startled: "What's that?"
A bailiff, harshly addressing a woman in the front row of spectators: "Order! Order!"
The Woman in the front row: "The dirty liar!"
The State, sticking its hands in its pockets and strutting to and fro, smiling loftily: "Repeat the answer for the gentleman, Mr. Reporter."
Counsel: "Never mind,—never mind. I move that the answer be stricken out, your honor, and that you instruct the jury to disregard the supposedly facetious reply of the witness."
The Court, to Mr. Yollop: "Did this defendant say to you that he had several wives?"
Yollop, looking blandly at the jury until convinced by twelve expressions and the direction in which twenty four eyes were gazing that the court had spoken: "I beg pardon, your honor. Were you speaking to me?"
The Court, raising his voice: "Did he tell you that he had several wives?"
Yollop: "He did."
The Court: "Motion overruled. Proceed."
Counsel: "Exception. Now, Mr.—"
Child in the front row, still gazing intently at a very baldheaded man on the opposite side of the aisle: "I want my daddy! I want—"
The Court: "You must remove that child from the court room, madam. Officer, see that that child is removed. Remove all of them. You may remain here, madam, if you choose to do so, but the court cannot allow this trial to be—"
The Woman in the front row: "Please, your honor, if you will let me keep them here I'll promise to—"
The Court: "Officer, remove those children at once."
The Woman: "And what's more, he tells a dirty lie when he says—"
The Court: "Silence! You will have to leave the room also, madam. This is outrageous. Officer!"
The State, magnanimously: "May it please the court, the State has not the slightest objection to the lady and her children remaining in the court room, provided they do not interrupt these proceedings again."
The Court, melting a little: "Do you think you can keep those children quiet, madam, and refrain from audible comments yourself?"
The Woman: "Yes, sir. I'm sure I can."
The Court: "It is not my desire to be harsh with you, madam, but if this occurs again I shall have you ejected from the room. Proceed."
Counsel: "Now, Mr. Yollop, you have testified that you bound and gagged your sister at the direction and command of this defendant and that he rifled the apartment at will, keeping you covered with a revolver. You also have stated that you laid the pistol on the desk, within his reach, when you believed the police to be at the door. Why, did you do that?"
Yollop: "Because I did not think that I needed it any longer."
Counsel, sarcastically: "Oho! so that was the reason, eh?"
Yollop: "Well, I was glad to be rid of it. I was dreading all the time that it might go off accidentally. They frequently do."
Counsel: "I see. Now, isn't it a fact, Mr. Yollop, that you laid the revolver down to go to the assistance of this defendant who was in a fainting condition?"
Yollop: "No, it isn't. He was all right."
Counsel: "Don't you know that you laid it down because you were convinced in you own mind that he was physically unable to take advantage of it? That he was in no condition to use it?"
Yollop: "No."
Counsel, with a pitying look at the jury: "He was still the big, strong, able-bodied man that you had knocked down with your brawny fist, eh?"
Yollop, mildly: "He may have been a little sleepy. I was."
A Bailiff: "Order! ORDER!"
Counsel, severely: "Now, Mr. Yollop, will you tell this jury why, after you had found it so simple to knock the defendant down and disarm him earlier in the evening, you failed to repeat the experiment when he had you covered the second time?"
Yollop: "The first time I acted on the spur of the moment, and under stress of great excitement. I had had time to collect my wits by the time he gained possession of the revolver. I wasn't as foolhardy as I was at the beginning. I was afraid he would shoot me if I tackled him again."
Counsel: "Isn't it a fact that he appeared much stronger and not so weak and listless as when you first encountered him?"
Yollop: "I didn't notice any change in him."
Counsel: "Didn't you testify awhile ago that while he was sitting at your desk, under cover of the gun, he ate a whole box of chocolate creams,—at your generous invitation?"
Yollop: "Yes. He ate them, all right."
Counsel: "Wouldn't you, as an intelligent man, assume that a pound of chocolates might have the effect of restoring to a half-starved man a portion of his waning strength,—at least a sufficient amount to encourage him to put up some kind of a fight against you?"
The State: "We object. The question calls for a conclusion on the part of the witness, who does not even pretend to be an expert or an authority on pathological—"
Counsel: "But he DOES pretend to be an intelligent man, doesn't he? I submit, your honor, that the question is proper and I—"
The Court: "Objection sustained. The witness may state that the defendant ate a box of chocolate creams. He cannot give an opinion as to the effect the chocolates may or may not have had on him."
Counsel: "Exception."
Mr. Yollop was on the stand for half an hour longer. Counsel for the defense was driving home to the jury the impression that Smilk was a poor, half-starved wretch who had gone back to thieving after a valiant but hopeless attempt to find work in order to support his wife and children. He announced, in arguing an objection made by the State, that it was his intention to prove by the man's wife that Smilk was a good husband and was willing to work his fingers off for his family, but that he had been ill and unable to find steady employment.
Mrs. Champney testified at the afternoon session. She made a most unfavorable impression on the jury. She got very angry at Smilk's counsel and said such spiteful things to him and about his client that the jury began to feel sorry for both of them.
Two detectives and three policemen in uniform testified that Smilk was the picture of health and a desperate-looking character. Now anybody who has ever served on a jury in a criminal case knows the effect that the testimony of a police officer has on three fourths—and frequently four fourths,—of the jurors. For some unexplained,—though perhaps obvious reason,—the ordinary juror not only hates a policeman but refuses to believe him on oath unless he is supported by evidence of the most unassailable nature. The mere fact that the five officers swore that Smilk was healthy and rugged no doubt went a long way toward convincing the jury that the poor fellow was a physical wreck and absolutely unable to defend himself on the night of the alleged burglary.
Moreover, a skilled mind-reader would have discovered that Mr. Yollop had not made a good impression on the jury. Almost to a man, they discredited him because he was fastidious in appearance; because he was known to be a successful and prosperous business man; because he was trying to make them believe that he possessed the unheard-of courage to tackle an armed burglar; and because he was a milliner. As for Mrs. Champney, she was the embodiment of all that the average citizen resents: a combination of wealth, refinement, intelligence, arrogance and widowhood. Especially does he resent opulent widowhood.
The State rested. Mrs. Smilk was the first witness called by the defense. She told a harrowing tale of Smilk's unparalleled efforts to obtain work; of his heart-breaking disappointments; of her own loyal and cheerful struggle to provide for the children,—and for her poor sick husband,—by slaving herself almost to death at all sorts of jobs. Furthermore, she was positive that poor Cassius had reformed, that he was determined to lead an honest, upright life; all he needed was encouragement and the opportunity to show his worth. True, he had been in State's Prison twice, but in both instances it was the result of strong drink. Now that prohibition had come and he could no longer be subjected to the evils and temptations of that accursed thing generically known as rum, he was sure to be a model citizen and husband. In fact, she declared, a friend of the family,—a man very high up in city politics,—had promised to secure for Cassius an appointment as an enforcement officer in the great war that was being waged against prohibition. This seemed to make such a hit with the jury that Smilk's lawyer shrewdly decided not to press her to alter the preposition.
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 despite his gormandizing.
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