# Manslaughter/Chapter 11

pp. 179–188

### CHAPTER XI

Lydia, with the wisdom that comes specially to the courageous, knew that her trial had gone against her as she left the stand. Miss Bennett was hopeful as they drove home. Bobby actually congratulated her on the clearness and weight of what she had said.
Albee, whose own investigation had closed brilliantly the day before, came that evening to say good-by to her. He was called back to his native state on business and was leaving on a midnight train.
Since the accident Lydia had been seeing Albee every day—had used him and consulted him, and yet had almost forgotten his existence. Now as she waited for his appearance it came to her with a shock of surprise that she had once come very near to engaging herself to him; that in parting like this for a few weeks he might make the assumption that she intended to be his wife. She thought she could make her trial a good excuse for refusing to consider such a proposal. That would get rid of him without hurting his feelings. She thought of the phrase, "A woman situated as I am cannot enter into an engagement." The mere idea of such a marriage was now intensely repugnant to her. How could she have contemplated it?
He entered, leonine yet neat in his double-breasted blue serge with a pearl in his black tie. He took her hand and beamed down upon her as if many things were in his heart that he would not trouble her with at this crisis by uttering.
"Ah, my dear," he said, "I wish I might be here to-morrow to see your triumph, but I'll be back in a month or so, and then—meantime I leave you in good hands. Wiley is capital. His summing up to-morrow will be a masterpiece. And remember, if by any chance—juries are chancy, you know—they do bring in an adverse verdict, on appeal you're safe as a church." He raised a cold, rigid little hand to his lips.
With her perfect clear-sightedness she saw he was deserting her and was glad to get him out of her way. She had not even an impulse to punish him for going.
The next morning it was raining torrents. It seemed as if the globe itself were spinning in rain rather than ether. Rain beat on the streets of New York so that the asphalt ran from curb to curb in black brooks; rain swept across the open spaces of the country, and as they ran through the storm water spouted in long streams from the wheels of the car. In the court room rain ran down the windows on each side of the American flag in liquid patterns. The court room itself had a different air. The electric lights were on, the air smelled of mud and rubber coats, and Judge Homans, who suffered from rheumatism, was stiff and grim.
A blow awaited Lydia at the outset. She had not understood that the defense summed up first—that the prosecution had the last word with the jury. What might not "that man" do with the jury by means of his hypnotic sincerity? She dreaded Wiley's summing up, too, fearing it would be oratorical—all the more because he kept disclaiming any such intention.
"The day has gone by for eloquence," he kept saying. "One doesn't attempt nowadays to be a Daniel Webster or a Rufus Choate. But of course it is necessary to touch the hearts of the jury."
She thought that O'Bannon's appeal was to their heads, and yet Wiley might be right. People were such geese they might prefer Wiley's method to O'Bannon's.
As soon as court opened Wiley began his summing up, and even his client approved of his simple, leisurely manner. He was very clear and effective with the merely legal points. The crime of manslaughter in the first degree—a crime for which a sentence of twenty years might be imposed—had not been proved. Nor was there credible evidence of criminal negligence, without which a verdict of manslaughter in the second degree could not be found. As he reviewed the facts he contrived to present a picture of Lydia's youthfulness, her motherlessness, of Thorne's early beginnings as a workingman, of his death leaving Lydia an orphan. He made her beauty and wealth seem a disadvantage—a terrible temptation to an ambitious young prosecutor with an eye to newspaper headlines. He made it appear as if juries always convicted young ladies of social position, but that this particular jury by a triumph of fair-mindedness were going to be able to overcome this prejudice. One juror who had wept over Alma Wooley now shed an impartial tear for Lydia.
"Gentlemen of the jury," Wiley ended, "I ask you to consider this case on the facts and the facts alone—not to be led away by the emotional appeals of an ambitious and learned young prosecutor who has the ruthlessness that so often goes with young ambition; not to convict an innocent girl whose only crime seems to be that she is the custodian of wealth that her father, an American workingman, won from the conditions of American industry. If you consider the evidence alone you will find that no crime has been committed. I ask you, gentlemen, for a verdict of not guilty."
Lydia, with her eyes slanted down to the red carpet at a spot a few feet from O'Bannon's chair, saw that Miss Bennett turned joyfully to Eleanor, that Bobby was trying to catch her eye for a congratulatory nod; but she did not move a muscle until O'Bannon rose and crossed over to the jury. Her eyes followed him. Then she remembered to turn and give her own counsel a mechanical smile—a smile such as a nurse gives a clever child who has just built a fort on the beach which the next wave is certain to sweep away.
"Gentlemen of the jury," said O'Bannon—and he bit off his words sharply; indeed, he and Wiley seemed to have changed rôles. He who had been so cool through the trial now showed feeling, a sort of quiet passion—"this is not a personal contest between the distinguished counsel for the defense and myself. Neither my youth nor my ambition nor my alleged ruthlessness are in question. The only question is, does the evidence show beyond a reasonable doubt that the defendant committed the crime for which she has been indicted?"
Then without an extra phrase, almost without an adjective, he went on quickly piling up the evidence against her until it reached its climax in the proof of the shortness of time that had elapsed between her leaving Eleanor's and the accident.
"A particularly serious responsibility rests upon you, gentlemen, in this case. The counsel for the defense seems to assume that the rich fare less well in our courts of law than the poor. That has not been my experience. I should be glad as a believer in democracy if I could believe that justice is more available to the poor than to the rich, but I cannot. Last month in this very court a boy, younger than the defendant, who earned his living as a driver of a delivery wagon, was sentenced to three years in prison for a lesser crime, and on evidence not one-tenth as convincing as the evidence now before you. A great many of us felt sorry for that boy, too, but we felt that essential justice was done. If through sentiment or pity essential justice cannot be done in this case, if sex, wealth or conspicuous position is a guarantee of immunity, a blow will be dealt to the respect for law in this country for which you gentlemen must take the responsibility. If you find by the evidence that the defendant has committed the crime for which she is indicted I ask you to face that fact with courage and honesty, and to bring in a verdict of guilty."
There was a gentle stir in the court. The attendant announced that anyone who wished to leave the court must do so immediately. No one would be allowed to move while the judge was charging. No one moved. The doors were closed, the attendants leaning against them.
Wiley bent over and whispered, "That sort of class appeal doesn't succeed nowadays. Give yourself no concern."
Concern was the last emotion Lydia felt, or rather she felt no emotion at all. Her interest had suddenly collapsed, the game was over. She was aware that the air of the court room was close and that she felt inexpressibly tired, especially in her wrists.
The judge wheeled toward the jury and drew in his chin until it seemed to rest upon his spinal column.
"Gentlemen of the jury," he said, "we have now reached that stage in this trial when it is my duty to present the matter for your deliberation. You know that the law makes a distinction between the duty of the court and the duty of the jury. You are the judge and the only judge of the facts, but you must accept the law from the court. You must not consider whether or not you approve of the law; whether you could or could not make a better law."
Lydia suppressed a yawn.
"The tiresome old man," she thought. "He actually seems to enjoy saying all that."
His Honor went on defining a reasonable doubt:
"It is not a whim or a speculation or a surmise. It is a doubt founded on reason—on a reason which may be stated."
Lydia thought, "Imagine drawing a salary for telling people that a reasonable doubt is a doubt founded on reason." She had not imagined that she would be bored at any moment of her own trial, but she was—bored beyond belief.
"I must call your attention to Section 30 of the Penal Law, which says that whenever a crime is distinguished into degrees, the jury, if they convict, must find the degree of the crime of which the prisoner is guilty. Manslaughter is a crime distinguished into degrees—namely, the first and the second degree."
Lydia thought that if by this time the jury did not know the distinction between the two they must be half-witted, but His Honor went on to define them:
"In the first degree, when committed without design to effect death by a person committing or attempting to commit a misdemeanor."
She thought that she knew that phrase now, as when she was a child she had known some of the rules of Latin grammar—verbs conjugated with ad, ante, con, in, inter—what did they do? How funny that she couldn't remember. Her eyes had again fixed themselves on the spot on the carpet so near O'Bannon's feet that she was aware of any movement on his part, and yet she was not looking at him. A fly came limply crawling into her vision, and her eyes followed it as it lit on O'Bannon's boot. She glanced up to where his hand was resting on his knee, and then wrenched her eyes away—back to the floor again.
"If you find that the defendant is not guilty of manslaughter in the first degree you must then consider whether or not she is guilty of manslaughter in the second degree—that is, whether she occasioned the death of Drummond by an act of culpable negligence. Culpable negligence has been defined by Recorder Smyth in the case of—in the case of the People against Bedenseick as the omission to do something which a reasonable and prudent man would do, or the doing of something which such a man would not do under the circumstances of each particular case. Or, what is the same thing——"
How incredibly tiresome! She glanced at the jury. They were actually listening, drinking in the judge's words. All of a sudden she knew by his tone that he was coming to an end.
"If you find that a killing has taken place, but that it is not manslaughter in either degree, then it is your duty to acquit. If on the other hand you find the defendant guilty in either degree you must not consider the penalty which may be imposed. That is the province of the court; yours is to consider the facts. Such, gentlemen, is the law. The evidence is before you. You are at liberty to believe or to disbelieve the testimony of any witness in part or as a whole, according to your common sense. Weigh the testimony, giving each fact its due proportion; and then, according to your best judgment, render your verdict."
His Honor was silent. There were a few requests to charge from both sides, and the jury filed solemnly out. Almost without a pause the next case was called, the attendant's voice ringing out as before—"The case of the People against——"
Lydia felt disinclined to move, as if even her bones were made of some soft dissoluble material. Then she saw that she had no choice. The next prisoner was waiting for her place—an unshaven, hollow-eyed Italian, with a stout, gray-clad lawyer who looked like Caruso at his side. As she left the court she could hear the clerk calling the new jury.
"William Roberts."
"Seat Number One."
Judge Homans flattered himself particularly on the celerity with which his court moved.