Despite the fact that the jury was out just a few minutes short of seven hours, it finally came in with a verdict "guilty as charged." Twice the devoted twelve returned to the court room for further instructions from the judge. Once they wanted to know if it was possible to convict the prisoner for bigamy instead of burglary, and the other time it was to have certain portions of Mr. Yollop's testimony read to them. Immediately upon retiring an amicable and friendly discussion took place in the crowded, stuffy little jury room. Eight men lighted black cigars, two lighted their pipes, one joyously, almost ravenously resorted to a package of "Lucky Strikes," while the twelfth man announced that he did not smoke. He had been obliged to give it up because of blood pressure or something like that.
The foreman, or Juror No. 1, was an insurance agent. He was a man of fifty and he knew how to talk. His voice was loud, firm, overriding and unconquerable; his manner suave, tolerant, persuasive. The bailiff, after obtaining each man's telephone number and the message he wished to have sent to his home (if any), informed the jurors that he would be waiting just outside if they wanted him and then departed, locking the door behind him; whereupon the foreman looked at his watch and announced that it was twenty minutes to four. This statement resulted in the first disagreement. No two watches were alike. Some little time was consumed in proving that all twelve of them were right and at the same time wrong, paradoxical as it may sound. After the question of the hour had been disposed of, the foreman suggested that an informal ballot be taken for the purpose of ascertaining the views of the gentlemen as to the guilt or the innocence of the defendant. The result of this so-called informal ballot was nine for conviction, three for acquittal.
"Now we know where we stand," explained the foreman. "In view of the fact that nine of us are for conviction and only three for acquittal it seems to me that it is up to the minority to give their reasons for not agreeing with the majority. I see by your ballot, Mr.—er—Mr. Sandusky, that you are in favor of acquitting—"
"My name is I. M. Pushkin," interrupted Juror No. 7. "I wrote it plain enough, didn't I?"
"The initials confused me," explained the foreman. "Well, let's hear why you think he ought to be acquitted."
"I know what it is to be hungry, that's why. I see the time when I first come to this country when I didn't have nothing to eat for two-three days at a time, and ever'body tellin' me to go to hell out of here when I ask for a job or when I tell 'em I ain't had nothing to eat since yesterday morning and won't they please to help a poor feller what ain't had nothing to eat since yesterday morning, and—"
Six or seven voices interrupted him. It was Juror No. 4, salesman, who finally succeeded in getting a detached question to him.
"As I was saying, where do you get any evidence that he WAS hungry?"
"I guess you wasn't paying much attention to the evidence," retorted Mr. Pushkin. "Didn't you hear that lawyer say, over and over yet, how he was almost starved to death? Didn't—Wait a minute!—didn't you hear him say to that deaf witness that the prisoner fell down like a log when he push him in the face? Just push him,—nothing else. Didn't you hear that?"
"Sure I heard it. We all heard it. But what EVIDENCE is there?"
"Evidence? My gracious, ain't that enough? Ain't one man's word as good as another's? And say, let me ask you this: Is there any evidence that he wasn't almost starved to death! Well! Humph! I guess not. There ain't a single witness that says he wasn't hungry—not one, I tell you. You can't—"
"Didn't all them policemen swear that he was as husky as—"
"Say, you can't believe a policeman about anything. It's their business. That's what their job is. I know all about those fellers. Why, long time ago when I first come to this country, I told a hundred policeman I was almost starved to death and say, do you think they believed me? You bet they didn't. They told me to get a move on, get the hell out of this, beat it,—you bet I know all about them fellers. I—"
The foreman interrupted Mr. Pushkin.
"So you want to acquit the defendant because his lawyer said he was hungry,—is that it?"
"I don't blame nobody for stealing when he is almost starved to death and got a wife and children almost starved to death too because he cannot get a job yet. You bet I don't. I don't—"
"Well, of all the damned—"
"Can you beat this for—"
"I've heard a lot of—"
The foreman rapped vigorously with an inkwell, splashing the fluid over his fingers and quite a considerable area of table-top.
"Gentlemen! Gentlemen! Let us talk this thing over quietly and calmly. Mr. Pushkin seems to have a wrong conception as to what constitutes evidence. Now, let me have the floor for a few minutes, and I'll try to explain to him what constitutes evidence."
One hour and twenty minutes later Mr. Pushkin admitted that he DID have a wrong conception as to what constitutes evidence, but still maintained that he hated like sin to convict a man who had tried so hard to get work and couldn't.
The non-smoking gentleman was one of the three who comprised the minority. He was a mild little chap with weak eyes and the sniffles. By profession he was a clock maker. He said he believed that the defendant was unquestionably guilty of bigamy and that the State had erred in charging him with burglary. He was perfectly willing to send the man up for bigamy because, according to the evidence, it took precedence over the crime alleged to have been committed in December, 1919. In other words, he explained, Smilk had committed bigamy some years prior to the burglary of Mr. Yollop's apartment and he believed in taking things in their regular order. Of course, he went on to say, he would be governed by the opinion of the judge if it were possible under the circumstances to obtain it. He did not think it would be legal to put the burglary charge ahead of the bigamy charge, but if the judge so ordered he would submit, notwithstanding his conviction that it would be unconstitutional. Several gentlemen wanted to know what the constitution had to do with it, and he, becoming somewhat exasperated, declared that the present jury system is a joke, an absolute joke.
"Well, it's just such men as you that make it a joke," growled Juror No. 12.
"Gentlemen! Gentlemen!" admonished the foreman. "Let us have no recriminations, please. It occurs to me that we ought to send a note to the court, asking for instructions on this point."
The note was written and despatched in care of the glowering bailiff, who, it seems, had an engagement to go to the movies that evening and couldn't believe his ears when he ascertained that the boobs had not yet agreed upon a verdict in what he regarded as the clearest case that had ever come under his notice.
In the meantime, the third juror explained his vote for acquittal. He was a large, heavy-jowled man with sandy mustache and a vacancy among his upper teeth into which a pipe-stem fitted neatly. He was the superintendent of an apartment building in Lenox Avenue.
"I think it's a frame-up," he said, pausing to use the bicuspid vacancy for the purpose of expectoration. "That's what I think it is. Now I'm in a position as superintendent of a flat building to know a lot about what goes on among the bachelor tenants. I ain't sayin' that the prisoner didn't go to Mr. What's-His-Name's flat without an invitation. You bet your life he wasn't expected, if my guess is correct. I tell you what I think,—and my opinion ought to be worth a lot, lemme tell you,—I think there's something back of all this that wasn't brought out in the trial. Now here's something I bet not one of you fellers has thought about. What evidence is there that this Chancy woman is that deaf man's sister? Not a blamed word of evidence, except their own statement. She ain't his sister any more than I am. Did you ever see two people that looked less like they was related to each other? You bet you didn't. Now I got a hunch that the prisoner follered her to that guy's apartment. What for, I don't know. Maybe for blackmail. He got onto what was goin' on, and makes up his mind to rake in a nice bunch of hush-money. That's been done a couple of times in the apartment buildin' I'm superintendent of. A feller I had workin' for me as a porter cleaned up five or six hundred dollars that way, he told me. This robbery business sounds mighty fishy to me. Now I'm only tellin' you the way the thing looks to me. I don't think that woman is Wollop's sister any more than she is mine. It's a frame-up, the whole thing is. Look at the way this Wollop says he tied her up and all that. Humph!—Can't you fellers see through this whole business? He tied her up so's the police would find her tied up, that's what he done. The chances are she's some woman customer of his that's got stuck on him, tryin' hats and all that,—and maybe gettin' all the hats she wants for nothin',—and this feller Smilk he gets onto the game and goes out for a little money. See what I mean?"
So loud and so furious was the discussion that followed the extraordinary deductions of Juror No. 9, that the bailiff had to rap half a dozen times before he could make himself heard. Finally the foreman, purple in the face, called out through the haze of smoke:
"Come in!"
"The judge says for you to come into the court room for instructions," announced the officer. "Never mind your hats and coats. No cigars, gents. Leave 'em here. They'll be safe. Come on, now. It's nearly time to go to supper."
The judge informed the jury that they could not find the man guilty of bigamy and curtly ordered them back to their room for further deliberation. They took another ballot before going out to supper at a nearby restaurant, guarded by six bailiffs, who warned them not to discuss the case while outside the jury room. The second ballot, by the way, was eight for conviction, four for acquittal. Juror No. 5 had come over to the minority. He said there was something in the theory of Juror No. 9.
There was a very positive disagreement concerning the meal they were about to partake of. The foreman spoke of it as dinner and was openly sneered at by eleven gentlemen who had never called it anything but supper. The little clockmaker, having been overruled by the judge, was in a nasty temper. He accused the foreman of being a republican. He said no democrat ever called it dinner. It wasn't democratic.
Upon their return to the jury room after a meal on which there was complete agreement and which brought out considerable talk about the penuriousness of the County of New York, they settled down to a prolonged and profound discussion of their differences. It soon developed that all but two of the jurors had been favorably inclined toward the defendant up to the time the State introduced the unexpected wives. They had regarded him as a poor unfortunate, driven to crime by adversity, and after a fashion the victim of an arrogant and soulless police system, aided and abetted by the District Attorney's minions, a contemptible robber in the person of a dealer in women's hats, and a bejeweled snob who insulted their intelligence by trying to convince them that her confidence had been misplaced. But the two wives settled it. Smilk was a rascal. He ought to be hung.
"But," argued No. 9, "how the devil do we know that them women ARE his wives. Their evidence ain't supported, is it?"
"Didn't they have certificates?" demanded another hotly.
"Sure. But that don't prove that he was the man, does it?"
"And didn't the prisoner jump up and yell: 'My God, it's all off! You've got me cold! You've got me dead to rights,'" cried another.
"Oh, there's no use arguin' with you guys," roared No. 9, disgustedly.
Later on they returned to the court room to have certain parts of Mr. Yollop's testimony read to them. After this a ballot was taken, and the only man for acquittal was the clock-maker. At twenty minutes to eleven he succumbed, not to argument or persuasion or reason but to a chill February draft that blew in through the open window above his head. He couldn't get away from it. The others wouldn't let him. They got him up in a corner and he couldn't break through. He told them he was getting pneumonia, that the draft would be the death of him, that he'd take back what he said about the smoke almost suffocating him,—still they surrounded him, and argued with him, and called him things he didn't feel physically able to call them, and at last he voted guilty.
Smilk, haggard with worry,—for he had come to think, as the hours went by without a verdict, that there would be a disagreement or, worse than that, an acquittal, in which case he would have to face the charge of bigamy that the district attorney had more than intimated,—Smilk slouched dejectedly into the court room a few minutes before eleven o'clock and went through the familiar process of facing the jury while the jury faced him. He straightened up eagerly when the verdict was read. He took a long, deep breath. His eyes brightened,—they almost twinkled,—as they searched the room in quest of Mr. Yollop. He was disappointed to find that the gentle milliner was not there to hear the good news.
The judge sentenced him to twenty years imprisonment at hard labor, and he went back to his cell in the Tombs, a triumphant, vindicated champion of the laws of his State, a doughty warrior carrying the banner of justice up to the very guns of sentiment.
Mr. Yollop received a friendly letter from him some two months after his return to Sing Sing. He found it early one morning on his library table, sealed but minus the stamp that the government exacts for safe and conscientious delivery. Mr. Yollop's stenographer, being more or less finicky about English as it should be written, even by thieves, is responsible for the transcript in which it is here presented:
I hope this finds you in the best of health. I am back on the job and very glad to be so. It is very gay up here and I am getting fat also. Regular hours is doing it, and no worry I suppose. I wish to inform you that the movies have improved considerable since I was here before and our baseball team is much better. Also the concerts and so on. Grub also up to standard. I never eat better grub at the Ritz-Carlton. Which is no lie either. Well, Mr. Yollop, before closing I want to say you done me a mighty good turn when you thought of them two wives of mine. If it had not been for them two women I guess it would have been all off with me. I wish you would drop in here to see me if you are ever up this way so as I can thank you in person. Which reminds me. There is some talk among the boys that a movement is on foot to have a regular fancy dress ball up here once a month. Some kind of a benevolent society is working on it they say. Big orchestra, eats from Delmonico's and a crowd of girls from the smart set to dance with us. So as we won't get out of practice, I suppose. Soon as I hear when the first dance is to be I will let you know and maybe you will come up to be present. I will introduce you to a lot of swell dames and maybe you can drum up a nice trade among them on account of their all being fashionable and needing a good many hats. It must be great to be in a business like yours, where nobody cares how many times you rob them just so you leave them enough money to buy shoes with, because if you ask me they ain't wearing much of anything but hats and shoes these days. Well, I guess I will close, Mr. Yollop. With kind regards from yours truly, I remain
Yours truly, C. SMILK.
P. S.—I forgot to mention that this letter was left in your library by a pal of mine who dropped in last night while you was asleep, unless he got nabbed like a darned fool before he got a chance to do this friendly little errand for me. He dropped in to get that wad of bills I left there some time ago. If you get this letter he got the roll.
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