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The Underdog

F >> F. Hopkinson Smith >> The Underdog




In a jerky, strained voice he told of his mailing a letter, from a
village within a short distance of Bug Hollow, to a girl friend of his
on the afternoon of the night of the robbery. He swore positively that
this letter was in this same mail-bag, because he had handed it to the
carrier himself before he got on his horse, and added, with equal
positiveness, that it had never reached its destination. The value or
purpose of this last testimony, the non-receipt of the letter, was not
clear to me, except upon the theory that the charge of robbery might
fail if it could be proved by the defence that no letter was missing.

Bud fastened his eyes on Halliday and smiled as he made this last
statement about the undelivered letter, the first smile I had seen
across his face, but gave no other sign indicating that Halliday's
testimony affected his chances in any way.

Then followed the usual bad-character witnesses--both friends of
Halliday, I could see; two this time--one charging Bud with all the
crimes in the decalogue, and the other, under the lead of the
prosecutor, launching forth into an account of a turkey-shoot in which
Bud had wrongfully claimed the turkey--an account which was at last cut
short by the Judge in the midst of its most interesting part, as having
no particular bearing on the case.

Up to this time no one had appeared for the accused, nor had any
objection been made to any part of the testimony except by the Judge.
Neither had any one of the prosecutor's witnesses been asked a single
question in rebuttal.

With the resting of the Government's case a dead silence fell upon the
room.

The Judge waited a few moments, the tap of his lead-pencil sounding
through the stillness, and then asked if the attorney for the defence
was ready.

No one answered. Again the Judge put the question, this time with some
impatience.

Then he addressed the prisoner.

"Is your lawyer present?"

Bud bent forward in his chair, put his hands on his knees, and answered
slowly, without a tremor in his voice:

"I ain't got none. One come yisterday to the jail, but he didn't like
what I tol' him and he ain't showed up since."

A spectator sitting by the door, between an old man and a young girl,
both evidently from the mountains, rose to his feet and walked briskly
to the open space before the Judge. He had sharp, restless eyes, wore
gloves, and carried a silk hat in one hand.

"In the absence of the prisoner's counsel, your Honor," he said, "I am
willing to go on with this case. I was here when it opened and have
heard all the testimony. I have also conferred with some of the
witnesses for the defence."

"Did I not appoint counsel in this case yesterday?" said the Judge,
turning to the clerk.

There was a hurried conference between the two, the Judge listening
wearily, cupping his ear with his hand and the clerk rising on his toes
so that he could reach his Honor's hearing the easier.

"It seems," said the Judge, resuming his position, and addressing the
room at large, "that the counsel already appointed has been called out
of town on urgent business. If the prisoner has no objection, and if
you, sir--" looking straight at the would-be attorney--"have heard all
the testimony so far offered, the Court sees no objection to your
acting in his place."

The deputy on the right side of the prisoner leaned over, whispered
something to Tilden, who stared at the Judge and shook his head. It was
evident that Bud had no objection to this nor to anything else, for that
matter. Of all the men in the room he seemed the least interested.

I turned in my seat and touched the arm of my neighbor.

"Who is that man who wants to go on with the case?"

"Oh, that's Bill Cartwright, one of the cheap, shyster lawyers always
hanging around here looking for a job. His boast is he never lost a
suit. Guess the other fellow skipped because he thought he had a better
scoop somewhere else. These poor devils from the mountains never have
any money to pay a lawyer. Court appoints 'em."

With the appointment of the prisoner's attorney the crowd in the
court-room craned their necks in closer attention, one man standing on
his chair for a better view until a deputy ordered him down. They knew
what the charge was. It was the defence they all wanted to hear. That
had been the topic of conversation around the tavern stoves of Bug
Hollow for months past.

Cartwright began by asking that the mail-carrier be recalled. The little
man again took the stand.

The methods of these police-court lawyers always interest me. They are
gamblers in evidence, most of them. They take their chances as the cases
go on; some of them know the jury--one or two is enough; some are
learned in the law--more learned, often, than the prosecutor, who is a
Government appointee with political backers, and now and then one of
them knows the Judge, who is also a political appointee and occasionally
has his party to care for. All are valuable in an election, and a few of
them are honest. This one, my neighbor told me, had held office as a
police justice and was a leader in his district.

Cartwright drew his gloves carefully from his hands, laid his silk hat
on a chair, dropped into it a package of legal papers tied with a red
string, and, adjusting his glasses, fixed his eyes on the mail-carrier.
The expression on his face was bland and seductive.

"At what hour do you say the attempted robbery took place, Mr.
Bowditch?"

"About eleven o'clock."

"Did you have a watch?"

"No."

"How do you know, then?" The question was asked in a mild way as if he
intended to help the carrier's memory.

"I don't know exactly; it may have been half-past ten or eleven."

"You, of course, saw the man's face?"

"No."

"Then you heard him speak?" Same tone as if trying his best to encourage
the witness in his statements.

"No." This was said with some positiveness. The mail-carrier evidently
intended to tell the truth.

Cartwright turned quickly with a snarl like that of a dog suddenly
goaded into a fight.

"How can you swear, then, that the prisoner made the assault?"

The little man changed color and stammered out in excuse:

"He was as big as him, anyway, and there ain't no other like him nowhere
in them parts."

"Oh, he was as _big_ as him, was he?" This retort came with undisguised
contempt. "And there are no others like him, eh? Do you know _everybody_
in Bell County, Mr. Bowditch?"

The mail-carrier did not answer.

Cartwright waited until the discomfiture of the witness could be felt by
the jury, dismissed him with a wave of his hand, and, looking over the
room, beckoned to an old man seated by a girl--the same couple he had
been talking to before his appointment by the Court--and said in a
loud voice:

"Will Mr. Perkins Tilden take-the stand?"

At the mention of his father's name, Bud, who had maintained throughout
his indifferent attitude, straightened himself erect in his chair with
so quick a movement that the deputy edged a foot nearer and
instinctively slid his hand to his hip-pocket.

A lean, cadaverous, painfully thin old man in answer to his name rose to
his feet and edged his way through the crowd to the witness-chair. He
was an inch taller than his son, though only half his weight, and was
dressed in a suit of cheap cloth of the fashion of long ago, the coat
too small for him, even for his shrunken shoulders, and the sleeves
reaching only to his wrists. As he took his seat, drawing in his long
legs toward his chair, his knee-bones, under the strain, seemed to be on
the point of coming through his trousers. His shoulders were bowed, the
incurve of his thin stomach following the line of his back. As he
settled back in his chair he passed his hand nervously over his mouth,
as if his lips were dry.

Cartwright's manner to this witness was the manner of a lackey who hangs
on every syllable that falls from his master's lips.

"At what time, Mr. Tilden, did your son Bud reach your house on the
night of the robbery?"

The old man cleared his throat and said, as if weighing each word:

"At ten minutes past ten o'clock."

"How do you fix the time?"

"I had just wound the clock when Bud come in."

"How, Mr. Tilden, how far is it to the cross-roads where the
mail-carrier says he was robbed?"

"About a mile and a half from my place."

"And how long would it take an able-bodied man to walk it?"

"'Bout fifteen minutes."

"Not more?"

"No, sir."

The Government's attorney had no questions to ask, and said so with a
certain assumed nonchalance.

Cartwright bowed smilingly, dismissed Bud's father with a satisfied
gesture of the hand, looked over the court-room with the air of a man
who was unable at the moment to find what he wanted, and in a low voice
called: "Jennetta Mooro!"

The girl, who sat within three feet of Cartwright, having followed the
old man almost to the witness-stand, rose timidly, drew her shawl closer
about her shoulders, and took the seat vacated by Bud's father. She had
that half-fed look in her face which one sometimes finds in the women of
the mountain-districts. She was frightened and very pale. As she pushed
her poke-bonnet back from her ears her unkempt brown hair fell about
her neck.

But Tilden, at mention of her name, half-started from his chair and
would have risen to his feet had not the officer laid his hand upon him.

He seemed on the point of making some protest which the action of the
officer alone restrained.

Cartwright, after the oath had been administered, began in a voice so
low that the jury stretched their necks to listen:

"Miss Moore, do you know the prisoner?"

"Yes, sir, I know Bud." She had one end of the shawl between her fingers
and was twisting it aimlessly. Every eye in the room was fastened
upon her.

"How long have you known him?"

There was a pause, and then she said in a faint voice:

"Ever since he and me growed up."

"Ever since you and he grew up, eh?" This repetition was in a loud
voice, so that any juryman dull of hearing might catch it. "Was he at
your house on the night of the robbery?"

"Yes, sir."

"At what time?"

"'Bout ten o'clock." This was again repeated.

"How long did he stay?"

"Not more'n ten minutes."

"Where did he go then?"

"He said he was goin' home."

"How far is it to his home from your house?"

"'Bout ten minutes' walk."

"That will do, Miss Moore," said Cartwright, and took his seat.

The Government prosecutor, who had sat with shoulders hunched up, his
wings pulled in, rose to his feet with the aid of a chair-back,
stretched his long arms above his head, and then, lowering one hand
level with the girl's face, said, as he thrust one sharp, skinny finger
toward her:

"Did anybody else come to see you the next night after the robbery?"

There was a pause, during which Cartwright busied himself with his
papers. One of his methods was never to seem interested in the
cross-examination of any one of his witnesses.

The girl's face flushed, and she began to fumble the shawl nervously
with her fingers.

"Yes, Hank Halliday," she murmured, in a low voice.

"Mr. Halliday, who has testified here?"

"Yes, sir."

"What did he want?"

"He wanted to know if I'd got a letter he'd writ me day before. And I
tol' him I hadn't. Then he 'lowed he'd a-brought it to me himself if
he'd knowed Bud was goin' to turn thief and hold up the mail-man. I
hadn't heard nothin' 'bout it and nobody else had till he began to talk.
I opened the door then and tol' him to walk out; that I wouldn't hear
nobody speak that way 'bout Bud Tilden. That was 'fore they'd
'rested Bud."

"Have you got that letter now?"

"No, sir."

"Did you ever get it?"

"No, sir."

"Did you ever see it?"

"No, and I don't think it was ever writ."

"But he _has_ written you letters before?"

"He used to; he don't now."

"That will do."

The girl took her place again behind the old man.

Cartwright rose to his feet with great dignity, walked to the chair on
which rested his hat, took from it the package of papers to serve as an
orator's roll--he did not open it, and they evidently had no bearing on
the case--and addressed the Judge, the package held aloft in his hand:

"Your Honor, there's not been a particle of evidence so far produced in
this court to convict this man of this crime. I have not conferred with
him, and therefore do not know what answers he has to make to this
infamous charge. I am convinced, however, that his own statement under
oath will clear up at once any doubt remaining in the minds of this
honorable jury of his innocence."

This was said with a certain ill-concealed triumph in his voice. I saw
now why he had taken the case, and saw, too, the drift of his
defence--everything thus far pointed to the old hackneyed plea of an
alibi. He had evidently determined on this course of action when he sat
listening to the stories Bud's father and the girl had told him as he
sat beside them on the bench near the door. Their testimony, taken in
connection with the uncertain testimony of the Government's principal
witness, the mail-carrier, as to the exact time of the assault, together
with the prisoner's testimony stoutly denying the crime, would insure
either an acquittal or a disagreement. The first would result in his
fees being paid by the court, the second would add to this amount
whatever Bud's friends could scrape together to induce him to go on with
the second trial. In either case his masterly defence was good for an
additional number of clients and perhaps--of votes. It is humiliating to
think that any successor of Choate, Webster, or Evarts should earn his
bread in this way, but it is true all the same.

"The prisoner will take the stand!" cried Cartwright, in a firm voice.

As the words left his mouth, the noise of shuffling feet and the
shifting of positions for a bettor view of the prisoner became so loud
that the Judge rapped for order, the clerk repeating it with the end of
his ruler.

Bud lifted himself to his feet slowly (his being called was evidently as
much of a surprise to him as it was to the crowded room), looked about
him carelessly, his glance resting first on the girl's face and then on
the deputy beside him. He stepped clumsily down from the raised platform
and shouldered his way to the witness-chair. The prosecuting attorney
had evidently been amazed at the flank movement of his opponent, for he
moved his position so he could look squarely in Bud's face. As the
prisoner sank into his seat, the room became hushed in silence.

Bud kissed the book mechanically, hooked his feet together and, clasping
his big hands across his waist-line, settled his great body between the
arms of the chair, with his chin resting on his shirt-front. Cartwright,
in his most impressive manner, stepped a foot closer to Bud's chair.

"Mr. Tilden, you have heard the testimony of the mail-carrier; now be
good enough to tell the jury where you were on the night of the
robbery--how many miles from this _mail-sack_?" and he waved his hand
contemptuously toward the bag. It was probably the first time in all his
life that Bud had heard any man dignify his personality with any
such title.

In recognition of the compliment, Bud raised his chin slightly and fixed
his eyes more intently on his questioner. Up to this time he had not
taken the slightest notice of him.

"'Bout as close's I could git to it--'bout three feet, I should
say--maybe less."

Cartwright gave a slight start and bit his lip. Evidently the prisoner
had misunderstood him. The silence continued.

"I don't mean _here_, Mr. Tilden;" and he pointed to the bag. "I mean
the night of the so-called robbery."

"That's what I said; 'bout as close's I could git."

"Well, did you rob the mail?" This was asked uneasily, but with a
half-concealed laugh in his voice as if the joke would appear in
a minute.

"No."

"No, of course not." The tone of relief was apparent.

"Well, do you know anything about the cutting of the bag?"

"Yes."

"Who did it?"

"Me."

"_You?"_ The surprise was now an angry one.

"Yes, me."

At this unexpected reply the Judge pushed his glasses high up on his
forehead with a quick motion and leaned over his bench, his eyes on the
prisoner. The jury looked at each other with amazement; such scenes were
rare in their experience. The prosecuting attorney smiled grimly.
Cartwright looked as if someone had struck him a sudden blow in
the face.

"What for?" he stammered. It was evidently the only question left for
him to ask. All his self-control was gone now, his face livid, an angry
look in his eyes. That any man with State's prison yawning before him
could make such a fool of himself seemed to astound him.

Bud turned slowly and, pointing his finger at Halliday, said between
his closed teeth:

"Ask Hank Halliday; he knows."

The buzzard sprang to his feet. There was the scent of carrion in the
air now; I saw it in his eyes.

"We don't want to ask Mr. Halliday; we want to ask you. Mr. Halliday is
not on trial, and we want the truth if you can tell it."

The irregularity of the proceeding was unnoticed in the tense
excitement.

Bud looked at him as a big mastiff looks at a snarling cur with a look
more of pity than contempt. Then he said slowly, accentuating each word:

"Keep yer shirt on. You'll git the truth--git the whole of it. Git what
you ain't lookin' for. There ain't no liars up in our mountains 'cept
them skunks in Gov'ment pay you fellers send up to us, and things like
Hank Halliday. He's wuss nor any skunk. A skunk's a varmint that don't
stink tell ye meddle with him, but Hank Halliday stinks all the time.
He's one o' them fellers that goes 'round with books in their pockets
with picters in 'em that no girl oughter see and no white man oughter
read. He gits 'em down to Louisville. There ain't a man in Pondville
won't tell ye it's true. He shoved one in my outside pocket over to
Pondville when I warn't lookin', the day 'fore I held up this man
Bowditch, and went and told the fellers 'round the tavern that I had
it. They come and pulled it out and had the laugh on me, and then he
began to talk and said he'd write to Jennetta and send her one o' the
picters by mail and tell her he'd got it out o' my coat, and he did. Sam
Kellers seen Halliday with the letter and told me after Bowditch had got
it in his bag. I laid for Bowditch at Pondville Corners, but he got past
somehow, and I struck in behind Bill Somers's mill, and crossed the
mountain and caught up with him as he was ridin' through the piece o'
woods near the clearin'. I didn't know but he'd try to shoot, and I
didn't want to hurt him, so I crep' up behind and threw him in the
bushes, cut a hole in the bag, and got the letter. That's the only one I
wanted and that's the only one I took. I didn't rob no mail, but I
warn't goin' to hev an honest, decent girl like Jennetta git that
letter, and there warn't no other way."

The stillness that followed was broken only by the Judge's voice.

"What became of that letter?"

"I got it. Want to see it?"

"Yes."

Bud felt in his pockets as if looking for something, and then, with an
expression as if he had suddenly remembered, remarked:

"No, I ain't got none. They stole my knife when they 'rested me." Then
facing the courtroom, he added: "Somebody lend me a knife, and pass me
my hat over there 'longside them sheriffs."

[Illustration: "I threw him in the bushes and got the letter."]

The court-crier took the hat from one of the deputies, and the clerk, in
answer to a nod of assent from the Judge, passed Bud an ink-eraser with
a steel blade in one end.

The audience now had the appearance of one watching a juggler perform a
trick. Bud grasped the hat in one hand, turned back the brim, inserted
the point of the knife between the hat lining and the hat itself and
drew out a yellow envelope stained with dirt and perspiration.

"Here it is. I ain't opened it, and what's more, they didn't find it
when they searched me;" and he looked again toward the deputies.

The Judge leaned forward in his seat and said:

"Hand me the letter."

The letter was passed up by the court-crier, every eye following it. His
Honor examined the envelope, and, beckoning to Halliday, said:

"Is this your letter?"

Halliday stepped to the side of the Judge, fingered the letter closely,
and said: "Looks like my writin'."

"Open it and see."

Halliday broke the seal with his thumb-nail, and took out half a sheet
of note-paper closely written on one side, wrapped about a small
picture-card.

"Yes, it's my letter;" and he glanced sheepishly around the room and
hung his head, his face scarlet.

The Judge leaned back in his chair, raised his hand impressively, and
said gravely:

"This case is adjourned until ten o'clock tomorrow."

Two days later I again met the Warden as he was entering the main door
of the jail. He had been over to the Court-house, he said, helping the
deputy along with a new "batch of moonshiners."

"What became of Bud Tilden?" I asked.

"Oh, he got it in the neck for robbin' the mails, just's I told you he
would. Peached on himself like a d---- fool and give everything dead
away. He left for Kansas this morning. Judge give him twenty years."

He is still in the lock-step at Leavenworth prison. He has kept it up
now for two years. His hair is short, his figure bent, his step
sluggish. The law is slowly making an animal of him--that wise,
righteous law which is no respecter of persons.



III


"ELEVEN MONTHS AND TEN DAYS"

It was a feeble old man of seventy-two this time who sat facing the
jury, an old man with bent back, scant gray hair, and wistful,
pleading eyes.

He had been arrested in the mountains of Kentucky and had been brought
to Covington for trial, chained to another outlaw, one of those
"moonshiners" who rob the great distilleries of part of their profits
and the richest and most humane Government on earth of part of
its revenue.

For eleven months and ten days he had been penned up in one of the steel
cages of Covington jail.

I recognized him the moment I saw him.

He was the old fellow who spoke to me from between the bars of his den
on my visit the week before to the inferno--the day I found Samanthy
North and her baby--and who told me then he was charged with "sellin'"
and that he "reckoned" he was the oldest of all the prisoners about him.
He had on the same suit of coarse, homespun clothes--the trousers hiked
up toward one shoulder from the strain of a single suspender; the
waistcoat held by one button; the shirt open at the neck, showing the
wrinkled throat, wrinkled as an old saddle-bag, and brown, hairy chest.

Pie still carried his big slouch hat, dust-begrimed and frayed at the
edges. It hung over one knee now, a red cotton handkerchief tucked under
its brim. He was superstitious about it, no doubt; he would wear it when
he walked out a free man, and wanted it always within reach. Hooked in
its band was a trout-fly, a red ibis, some souvenir, perhaps, of the
cool woods that he loved, and which brought back to him the clearer the
happy, careless days which might never be his again.

The trout-fly settled all doubts in my mind as to his origin and his
identity. He was not a "moonshiner"; he was my old trout fisherman,
Jonathan Gordon, come back to life, even to his streaming, unkempt
beard, leathery skin, thin, peaked nose, and deep, searching eyes. That
the daisies which Jonathan loved were at that very moment blooming over
his grave up in his New Hampshire hills, and had been for years back,
made no difference to me. I could not be mistaken. The feeble old man
sitting within ten feet of me, fidgeting about in his chair, the glare
of the big windows flooding his face with light, his long legs tucked
under him, his bony hands clasped together, the scanty gray hair adrift
over his forehead, his slouch hat hooked over his knee, was my own
Jonathan come back to life. His dog, George, too, was somewhere within
reach, and so were his fishing-pole and creel, with its leather
shoulder-band polished like a razor-strop. You who read this never saw
Jonathan, perhaps, but you can easily carry his picture in your mind by
remembering some one of the other old fellows you used to see on Sunday
mornings hitching their horses to the fence outside of the country
church, or sauntering through the woods with a fish-pole over their
shoulders and a creel by their sides, or with their heads together on
the porch of some cross-roads store, bartering eggs and butter for
cotton cloth and brown sugar. All these simple-minded, open-aired,
out-of-doors old fellows, with the bark on them, are very much alike.

The only difference between the two men lay in the expression of the two
faces. Jonathan always looked straight at you when he talked, so that
you could fathom his eyes as you would fathom a deep pool that mirrored
the stars. This old man's eyes wavered from one to another, lighting
first on the jury, then on the buzzard of a District Attorney, and then
on the Judge, with whom rested the freedom which meant life or which
meant imprisonment: at his age--death. This wavering look was the look
of a dog who had been an outcast for weeks, or who had been shut up with
a chain about his throat; one who had received only kicks and cuffs for
pats of tenderness--a cringing, pleading look ready to crouch beneath
some fresh cruelty.

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