# Manslaughter/Chapter 9

pp. 148–163

### CHAPTER IX

"Isaac Herrick."
"Here."
"William P. McCaw—I beg your pardon—McCann."
"Here."
"Royal B. Fisher. Mr. Fisher, you were not in court yesterday. Well, you did not answer the roll. Gentlemen, if you do not answer when your names are called I shall give your names to the court officer. Grover C. Wilbur."
"Here."
The county court room with its faded red carpet and shabby woodwork had the dignity of proportion which marks rooms built a hundred years ago under the solemn Georgian tradition.
Miss Bennett and Eleanor, guided by Judge Homans' secretary, came in through a side door, and passing the large American flag which hung above the judge's empty chair, they sat down in some cross seats on the left. Beyond the railing the room was already well filled with the new panel of jurors, the witnesses, the reporters and many of Lydia's friends, who were already jostling for places.
The clerk of the court, immediately in front of the judge's bench, but on a lower level, having finished calling the roll, was busily writing, writing, his well-brushed red-and-silver head bent so low over his great sheets that the small bare spot on top was presented to the court room. For one moment he and a tall attendant had become human and friendly over the fact that the counsel table was not on all fours, and the day before had rocked under the thundering fist of the lawyer in the last case. But as soon as it was stabilized with little wads of paper both men returned to their accustomed solemnity, the clerk to his lists and the attendant, standing erect at the railing, to viewing the unusual crowd and exclaiming at intervals "Find seats—sit down—find seats," which was, of course, just what everybody was trying to do.
Foster came in hurriedly with a stack of large manila envelopes in his hand. He bowed nervously to Miss Bennett and sat down just in front of her with his eyes fixed on the door.
The court stenographer came in and took his place, laid his neatly sharpened pencils beside his open book, yawned and threw his arm over the back of his chair. He seemed indifferent as to what story of human frailty was by means of his incredible facility about to be transferred to the records.
Yet he was not wholly without human curiosity, for presently he leaned over to the clerk and whispered, "What did the jury find in that abduction case?"
"Acquitted."
"Well, well!"
The two men exchanged a glance that betrayed that in their opinion jurors and criminals were pretty much on the same level.
A faint stir in the court, an anticipatory cry from the attendant of "Order, order," and Lydia and Wiley came in and sat down side by side at the corner of the long table—now perfectly steady. Lydia looked pale and severe. She had devoted a great deal of thought to her dress, not through vanity, but because dress was an element in winning her case. She was dressed as simply as possible, without being theatrically simple. She wore a dark serge and a black-winged hat. She nodded to Foster, smiled at Miss Bennett and Eleanor. She began looking coolly about her. She had never been in court, and the setting interested her. It was a good deal like a theater, she thought—the railed-off space represented the stage where all action was to take place, the judge's raised bench occupying the dominating position back center, the jury box on her right with its two tiers of seats, the witness chair on its high platform and between the judge and the jury. Close to the railing and at right angles to the jury box, the eight-foot-long counsel table, where she and Wiley had taken their places with their backs to the spectators outside the railing, were so exactly like a theatrical audience. Then a gavel beat sharply. Everyone stood up almost before being directed to do so, and Judge Homans came into court. He came slowly through the side door, his hands folded in front of him, his robes flowing about him, as a priest comes from the sacristy.
The judge, like the clerk, immediately became absorbed in writing. Foster sprang up and stood at his desk talking to him, but he never raised his head. Foster kept glancing over his shoulder at the door. Lydia knew for whom he was watching—like a puppy for its supper, she thought.
A voice rang out:
"The case of the People against Lydia Thorne. Lydia Thorne to the bar."
To Lydia the words suggested an elaborate game. She glanced at Miss Bennett, suppressing a smile, and saw that her companion's nerves were shaken by the sinister sound of them. Wiley rose.
"Ready—for the defense," he said.
Foster, with his eyes still on the door, murmured with less conviction, "Ready—for the people."
The clerk, laying aside his pen, had begun to take the names of the jurors out of the box at his elbow.
"Josiah Howell."
"Seat Number 1," echoed the attendant antiphonally.
"Thomas Peck."
"Seat Number 2."
Wiley, bending to Lydia's ear, whispered, "I want you to challenge freely—anyone you feel might be antagonistic. I trust to your woman's intuition. The jury is the important——"
She ceased to hear him, for she saw Foster's face light up and she knew that at last the district attorney was in court. She recognized his step behind her, and almost immediately his tall figure came within range of her vision. He sat down on the left next to Foster, crossed his arms, fixed his eyes on each juror who entered the box. It was to Lydia like the rising of the curtain on a great play.
"William McCann."
"Seat Number 12."
The jury was complete.
O'Bannon unfolded his long person and rose. Crossing the space in front of Lydia, he came and stood in front of the jury, looking from one to another, asking routine questions, but with a grave attention that made them seem spontaneous. Did any of them know the defendant or her counsel? Had any of them ever been arrested for speeding? Had anyone of them ever injured anyone with an automobile?
To Lydia his whole personality seemed different—more aggressive, more hostile. When, in speaking, he put out his fist she noticed the powerful bulk of his hand, the strength of his wrist. She could not see his face, for he stood with shoulder turned to her, but she could see the upturned faces of the jurors.
Number 10 was in the automobile business, and was excused. Number 2 admitted a slight acquaintance with the defendant, though Lydia couldn't remember him and was inclined to think he was merely escaping duty. Number 5, in the midst of the interrogation, suddenly volunteered the information that he was conscientiously opposed to capital punishment.
At this the judge looked up from his writing and said loudly, "But this isn't a capital-punishment case."
"No, no, I know," said Number 5 apologetically. "I just thought I'd mention it."
"Don't mention anything that has no bearing on the case," said the judge, and went back to his writing.
At noon, when the court adjourned, the jury was not yet satisfactory to the prosecution.
Lydia, Miss Bennett and Wiley drove over to Eleanor's for luncheon. Of the three women Lydia was the gayest.
"He really does—that man really does expect to put me behind bars," she said.
"The prospect apparently puts you in the highest spirits," said Eleanor.
Lydia laughed, showing her bright, regular little teeth.
"I do like a good fight," she answered.
That was the way she thought of it—as a personal struggle between the district attorney and herself. Since that first interview Wiley had no indifference to complain of. On the contrary, he complimented her on her grasp of the case—she ought to have been a lawyer. She had put every fact at his disposal—every fact that had any bearing on the case. She did not consider the exact nature of her former acquaintance with O'Bannon among these; that is to say, she mentioned that she had once met him at the Piers' and played bridge with him. She added that Eleanor felt he had taken a dislike to her. Wiley said nothing, but imagined that she might have played queen to a country attorney—irritating, of course.
About everything else, however, she went into details—especially about the bribing of Drummond, over which she apparently felt no shame at all. Both Albee and Wiley, who were often together in consultation with her, were horrified—not so much at her having done it as at her feeling no remorse. Wiley spoke as her lawyer. Albee, more human, more amused, shook his head.
"Really, my dear young lady, bribery of a police officer——"
"Oh, come, governor," said Lydia. "This from you!"
"I don't know what you mean. I never offered a man a bribe in all my life," said the governor earnestly.
"And exactly what did you say to Mr. O'Bannon in your recent interview?"
Wiley and Albee protested, more as if she were breaking the rules of a game than as if she were saying anything contrary to fact. Albee explained at some length that when a man was behaving wrongly through self-interest—which was, of course, what the district attorney was doing—it was perfectly permissible to show him that self-interest might lie along opposite lines. Lydia, unconvinced by this explanation, would do nothing but laugh annoyingly. At this both men turned on her, explaining that if the bracelet could be got in evidence, if it could be shown that she had bribed the man whom she later killed, the case would go against her.
"Oh, but they can't get it in," said Albee, "not unless you fall asleep, counselor, or the district attorney is an out-and-out crook."
Wiley, more cautious, wasn't so sure. If Lydia herself took the stand——
"Of course I shall testify in my own behalf," said Lydia.
"Yes," said Albee. "Exhibit A—a beautiful woman. Verdict—not guilty."
So the discussion always came back to the sympathy of the jury—the necessity of selecting the right twelve men. Nothing else was talked of during luncheon at Eleanor's that first day. Was Number 6 hostile? Did all farmers own automobiles nowadays? Number 1 was susceptible, Miss Bennett felt sure. He hadn't taken his eyes off Lydia. Number 7, on the contrary, was hypnotized, according to Lydia, by "that man."
By three o'clock the jury was declared satisfactory to the prosecution. It was Wiley's turn. His manner was very different from O'Bannon's—more conciliating. He seemed to woo the jury with what Lydia described in her own mind as a perfumed voice.
Number 2, in answer to Wiley's questions, admitted a prejudice against automobiles, since it was now impossible to drive his cows home along the highroad. He was excused.
Number 7, who had once owned a flourishing poultry farm, had been obliged to give it up.
"On account of motors?"
"Yes, and because it didn't pay."
Did he feel his prejudice was such as to prevent his rendering an impartial verdict in this case?
Number 7 looked blank and sulky, like a little boy stumped in class, and at last said it wouldn't.
"Excused," said Wiley.
"But I said it wouldn't," Number 7 protested.
"Excused," said Wiley, fluttering his hand.
Lydia had tapped twice on the table—the agreed signal.
By four o'clock the jury was satisfactory to both sides; and then, just as Lydia's nerves were tightened for the beginning of the great game, the court adjourned until ten o'clock the next morning. The judge, looking up from his writing, admonished the jury not to discuss the case with anyone, not even among themselves. The jurors produced unexpected hats and coats like a conjuring trick. The court attendant began shouting "Keep your seats until the jury has passed out," and the whole picture of the court dissolved.
Wiley was whispering to Lydia, "A very nice jury—a very intelligent, reasonable group of men." He rubbed his hands.
Lydia's eyes followed O'Bannon's back as he left the court with Foster trotting by his side.
"I wonder if the district attorney is equally pleased with them," she said.
Bobby Dorset drove back with them and stayed to dinner. Miss Bennett, who had a headache from the hot air and the effort of concentrating her mind, would have been glad to forget the trial, but Lydia and Bobby talked of nothing else. She kept a pad and pencil at hand to note down points that occurred to her. Bobby, with a mind at once acute and trivial, had collected odd bits of information—that the judge was hostile, that the door man said the verdict would be not guilty, and he had never been wrong in twenty-seven years.
Proceedings began the next morning by O'Bannon's opening for the prosecution. Lydia saw a new weapon directed against her that her advisers did not seem to appreciate—O'Bannon's terrible sincerity. His voice had not an artificial note in it. Meaning what he said, he was able to convince the jury.
"Gentlemen of the jury," he began, "the indictment in this case is manslaughter in the first degree. That is homicide without intent to effect death by a person committing or attempting to commit a misdemeanor. The People will show that on the eleventh day of March of this year the defendant, while operating an automobile on the highways of this county in a reckless and lawless manner, killed John Drummond, a traffic policeman, who was attempting to arrest her. Drummond, whose ante-mortem statement will be put in evidence——"
Suddenly Lydia's attention lapsed. This man who was trying to send her to prison had held her in his arms. She saw again the moon and the mist, and felt his firm hand on her shoulder. Memory seemed more real than this incredible reality. Then, just as steel doors shut on the red fire of a furnace, so her mind shut out this aspect of the situation, and she found she was listening—after how long a pause she did not know—to O'Bannon's words.
"——at the entrance to the village the road divides, the right fork turning back at an angle something less than a right angle. Round this corner the defendant attempted to go by a device known as skidding a car; that is to say, still going at a high rate of speed, she turned her wheels sharply to the right and put on her brakes hard enough to lock the back wheels."
"Yes, my friend," thought Lydia, "that's the way it's done. I wonder how many times you've skidded your own car to know so much about it."
"This procedure," O'Bannon's voice continued, "which is always a somewhat reckless performance, was in this case criminal. With the officer known to be overlapping her car on the left, she might as well have picked up her car and struck him with it. Her car did so strike him, smashing his motorcycle to bits and causing the hideous injuries of which he died within a few hours."
Lydia closed her eyes. She saw that mass of bloodstained khaki and steel lying in the road and heard her own footsteps beating on the macadam.
"The People will prove that the defendant was committing a misdemeanor at the time. By Section 1950 of the Penal Law it is a misdemeanor to render the highways dangerous or to render a considerable number of persons insecure in life. The defendant in approaching the village of Wide Plains along a highway on which there were buildings and people at a rate of forty miles an hour was so endangering life. Gentlemen, there never was a simpler case as to law and fact than this one."
Lydia glanced at Wiley under her lashes. It seemed to her that O'Bannon's manner was almost perfect. She believed he had already captured the jury, but she could read nothing of Wiley's opinion in his expression. He rose more leisurely, more conversational in manner. The defense would show, he said—and his tone seemed to add "without the least difficulty"—that the motorcycle of the unfortunate young policeman had skidded and struck the automobile of the defendant, causing, to the deep chagrin of the defendant, the death of that gallant young hero. They would show that the defendant was not committing a misdemeanor at the time, for to attain a speed of twenty-five or thirty miles on a lonely road was not even violating the speed law, as everyone who owned a car knew very well. As for the indictment of manslaughter in the first degree, really—Wiley's manner seemed to say that he knew a joke was a joke, and that he had as much sense of humor as most men, but when it came to manslaughter in the first degree—"a crime, gentlemen, for which a prison sentence of twenty years may be imposed—twenty years, gentlemen." He had never in a long experience at the bar heard of a bill being found at once so spectacular and so completely at variance with the law. The defense would show them that if they followed the recommendation of his learned young friend, the district attorney, to consider the facts and the law——
His manner to O'Bannon was more paternal than patronizing. He seemed to sketch him as an eager, emotional boy intoxicated by headlines in the New York papers. Wiley radiated wisdom, pity for his client, grief for the loss of Drummond and an encouraging hope that a young man like O'Bannon would learn enough in the course of a few years to prevent his making a humiliating sort of mistake like this again. He did not say a word of this, but Lydia could see the atmosphere of his speech seeping into the jurors' minds.
Yes, she thought, it was an able opening—not the sort of ability that she would have connected with legal talent in the days when she knew less of the law; but it seemed to be the kind of magic that worked. She was pleased with her counsel, directed a flattering look at him and began to assume the air he wanted her to assume—the dovelike.
The prosecution began at once to call their witnesses—first the doctors and nurses from the hospital, establishing the cause of death. Then the exact time was established by the clock on the motorcycle—3:12, confirmed by the testimony of many witnesses. Then the ante-mortem statement was put in evidence. A long technical argument took place between the lawyers over this. It occupied all the rest of the morning session. The statement was finally admitted, but the discussion had served to impress on the jury the fact that the testimony of a witness whose credibility cannot be judged of by personal inspection, and who is saved by death from the cross-examination of the lawyer of the other side, is evidence which the law admits only under protest.
Wiley scored his first tangible success in his cross-examination of the two men who had come to Lydia's assistance. On direct examination they had testified to the high rate of speed at which Lydia had been going. Wiley, when they were turned over to him, contrived to put them in a position where they were forced either to confess that they had no knowledge of high rates of speed or else that they themselves frequently broke the law. Wiley was polite, almost kind; but he made them look foolish, and the jury enjoyed the spectacle.
This success was overshadowed by a small reverse that followed it. The prosecution had a long line of witnesses who had passed or been passed by Lydia just before the accident. One of these was a young man who was a washer in a garage about a mile away from the fatal corner. He testified in direct examination that Lydia was going forty-five miles an hour when she passed the garage.
Wiley stood up, severe and cold, his manner seeming to say, "of all things in this world, I hate a liar most!"
"And where were you at the time?"
"Standing outside the garage."
"What were you doing there?"
"Nothing."
"Nothing?"
"Smoking a pipe."
"At three o'clock in the afternoon—during working hours?" Wiley made it sound like a crime. "And during this little siesta, or holiday, you saw the defendant's car going at forty-five miles an hour—is that the idea?"
"Yes, sir."
"And will you tell the jury how it was you were able to judge so exactly of the speed of a car approaching you head-on?"
The obvious answer was that he guessed at it, but the young man did not make it.
"I do it by means of telegraph poles and counting seconds."
It then appeared that the young man was accustomed to timing automobile and motorcycle races.
Lydia saw Foster faintly smile as he glanced at his chief. Evidently the defense had fallen into a neatly laid little trap. She glanced at Wiley and saw that he was pretending to be delighted.
"Exactly, exactly!" he was saying, pointing an accusing finger at the witness; "You and Drummond used to go to motorcycle races together."
He did it very well, but it did not succeed. The jury were left with the impression that the People's witness on speed was one to be believed.