Part 30

"Have you concluded?" asked the Court, reflecting the general surprise.

"I have," replied the minister, with the same quiet voice in which he had given his testimony.

"Begin your cross-examination," instructed Judge Brennan.

"Who is the man who brought these diamonds to you?" asked Searle, hurling the question swiftly.

"I cannot tell you," answered the minister gravely.

"Why can you not tell?" The voice of Searle was harshly insistent. "Don't you know who the man was?"

"I do, most assuredly."

"Why can you not tell it?"

"Because the secret is not mine."

"Not yours?" A sneer appeared on the lips of Searle.

"It came to me by way of the Protestant confessional," explained the minister.

"The Protestant confessional! What do you mean by that?" barked the prosecutor.

"Simply," replied the minister, "that the instinct of confession is very strong in every nature moved to penitence and a hope of reform; so that every minister and priest of whatever faith becomes the repository of a vast number of confessions of fault and failure, some trivial and some grave. I used the term 'Protestant confessional' because the Roman Catholic Church erects the confessional to a place of established and formal importance. In most other communions it is merely incidental to pastoral experience, but none the less it is a factor in all effort at rehabilitation of character."

"And you will not give the name, even to protect yourself?"

"It is not," replied the witness, "a matter in which I feel that I have any choice. The confession was not made to me as an individual, but to me as a minister of God. I will hold that confidence sacred and inviolate at whatever cost until the Day of Judgment."

Dramatically, though unconsciously, the witness lifted his right hand, as though he renewed an oath to God.

For the first time, too, the utterance of the defendant had betrayed personal feeling, and for a moment there was a sheen upon his features, as of a man who had toiled upward through shadows to where the light from above broke radiantly upon his brow.

"And you take advantage of the fact that such a confession as you allege is privileged under the law and need not be testified to by you?"

"As I said before," reiterated the minister, with a calm dignity that refused to be ruffled by the sneer in the cross-examiner's question, "I do not feel that the secret is mine."

The impression that at this point the witness was retiring behind intrenchments that were very strong was no more lost upon Searle than upon the spectators, and he immediately attacked from another quarter.

"We are to understand, then, Doctor, that your guilty demeanor which has been testified to by your friends as well as the officers was entirely because you knew the discovery of the diamonds in your box would lend color to the charge made against you?"

This was another trail that Hampstead must not allow to be pursued.

"You are at liberty to make whatever interpretation of my demeanor you wish, Mr. Searle," he replied, a trifle tartly.

"Yes, Doctor Hampstead; we are agreed upon that," rejoined the prosecutor dryly, at the same time making a gallery play with his eyes. "You say," Searle continued presently, "it was temporarily impossible for the man who brought these diamonds to you to return them to Miss Dounay. Why did you not return them yourself instead of placing them in your vault to await the convenience of the thief?"

The insulting scorn of the latter part of this question was meant to be diverting to the audience as well as highly disconcerting to the witness, but the minister smothered the sneer by replying sincerely and courteously:

"I felt, Mr. Searle, that my problem was to rebuild in the man a sense of responsibility to a trust and the courage to act upon a moral impulse. Wisely, or unwisely, I insisted that the entire procedure of restoration should devolve upon the penitent himself. His first spiritual battle was to nerve himself to face the owner of the diamonds."

"Precisely," observed Mr. Searle smoothly, abandoning the jury rail, against which he had been leaning, to balance himself upon the balls of the feet and rub his palms blandly. "And in the meantime, while this thief was gathering his courage, did your consideration for your friend, Miss Dounay, impel you to notify her that the diamonds were in your custody and would be returned to her very soon?"

"Not alone was I impelled to do that," replied the minister; "but the unfortunate man urged such a step upon me. I declined for the same reason. My entire course of action was dictated by a desire to make this man morally stronger by compelling him to assume and discharge his own responsibilities. I was willing to point out the course; but he must walk the way alone. I will forestall your next question by saying that for the same reason I did not notify the police."

Searle was nettled by the easy compactness with which the minister cemented the walls of his defense more closely by each reply to the questions in cross-examination.

"You are aware, Mr. Hampstead," he thundered with a sudden change of tactics, "that the act which you have just set forth, so far from setting up a defense to this charge, proves you guilty under the law as an accessory after the fact."

"I am not aware of it," replied the minister, with distinct emphasis. "My impression was that the law considers not only an act but the intent of the act. The intent of my act was not to conceal a crime, but to reconstruct the character of a man."

Searle darted a hasty and apprehensive glance at the massed faces behind the rail.

"That is all," he exclaimed dramatically, with a cynical smile and an uptoss of his hands, calculated cleverly to portray his opinion of the utter lack of standing such replies as those of the minister could gain him in a court of justice.

Judge Brennan looked at Hampstead. "Have you anything in rebuttal?" he asked.

"Nothing," replied the minister, arising and stepping down to his chair at the long table, where he remained standing while the attentive expression of Court and spectators indicated appreciation that the climax of the defendant's effort was at hand.

The very bigness of the thing the man was trying to do was in some sense an attest of character, and here and there among the onlookers ran little currents of reviving sympathy for the clergyman, who stood waiting quietly for the moment in which to begin his final effort as an attorney in his own behalf.

Keenly sensitive to the subtlest emotions of the crowd, he understood perfectly well that the effect of his testimony had been at least sufficient to secure a verdict of suspended judgment from the spectators; and he expected far more from the balanced mind of the judge; so that it was with a feeling of renewed confidence, almost an anticipation of triumph, that he prepared to make the final move.

"If the Court please," he began dispassionately, as if pleading for a cause that had no more than an abstract meaning for himself, "I desire to move at this time the dismissal of the complaint, upon the ground that the evidence is insufficient to warrant the holding of the defendant for trial before the Superior Court."

The minister stopped for breath, and there was another of those strange, composite sighs from beyond the rail.

"In support of that motion," and a note of growing significance appeared in the speaker's tone, "I argue nothing, except to ask this Court to accept as true every word of testimony spoken by every witness heard upon the stand this morning."

The Court looked puzzled, but the ministerial defendant went on:

"I believe the truth has been spoken by Miss Dounay--by the maid--by the officers--and by my own friends. Yet the facts testified to may be true,"--the minister's voice rose,--"and the inference to which they point be wickedly and damnably false! It is so with this case; for be it noted that I ask your Honor to consider also that my testimony is true. It denies no statement; it controverts no fact in the case of the prosecution. On the contrary, it confirms them; but it also explains them." Again the defendant's voice was rising. "It confirms the facts, but it utterly refutes the inference that this defendant at the bar is guilty. Consider the entire fabric of evidence as a seamless garment of truth, and you can dismiss the complaint with an untroubled brow. Reason is satisfied! Justice is done!"

Hampstead paused, and a shade of apprehension came to his face, for his eye had traveled for a moment to that massed expectancy without the rail.

"The verdict of your Honor is to _me_"--Hampstead in his growing earnestness had abandoned the fictional distinction between the pleader and his client,--"of more than usual importance, for by it hangs the verdict of the people whose interest is attested by those packed benches yonder. Without disrespect to your Honor, I can say that I care more for their verdict than for that of any twelve men in any jury box or any judge upon any bench.

"But under the circumstances the whole people cannot actually judge--they can only be my executioners. They have not heard me speak. They can not look me in the eye, nor observe by my demeanor whether I speak like an honest man or a contemptible fraud. They see me only through a cloud of skillfully engendered suspicion. They hear my voice only faintly amid a clamorous confusion of poisoned tongues. Your Honor must see for them, and speak for them. Your Honor's verdict will be their verdict. I tremble for that verdict. I plead for it!

"I ask your Honor to take account of the difficulty of my position, presuming, as the law instructs the Court to presume, that it is the position of an innocent person. Bound by the most inviolable vow which a man can take, I am unable to offer to you a conclusive defense by presenting the man who committed the crime. He may be in this court room now, cowering with a consciousness of his guilt and in awe at beholding its consequences to the one who has helped him. He may be an officer of this Court; he might be your Honor, sitting upon the bench, which, of course, is unthinkable--yet no more unthinkable to me than that I should be charged with this crime. But though he be here at my very side, I cannot reach out my hand and say: 'That is the man.' I will not touch him nor look at him. Unless he speaks--and I confess that there is an outside reason why I should absolutely forbid him to speak--there is no defense that can be offered, beyond the simple story I have told you.

"May I not, also, without being accused of egotism, remind your Honor that if it is decided that I appear sufficiently guilty to warrant a criminal trial in the Superior Court, my work in this community will be at an end."

The minister was speaking for the first time with a show of deep feeling, and an indulgent sneer appeared upon the lips of Searle. This was not legitimate argument. Yet a mere preacher might not be supposed to know it, and therefore he, Searle, would magnanimously allow the man to talk himself out, if his Honor did not stop him.

But the Court was also complaisant, and the minister went on with passionate earnestness to plead:

"Regardless of the ultimate verdict of a jury, the stigma of a felony trial will be upon me for life. From this very court room I shall be taken to your identification bureau. I shall be weighed, stripped, measured--my thumb prints taken--my features photographed like those of any criminal!"

As Hampstead proceeded, his speech began to be punctuated with spasmodic breaks, as if the prospective humiliation was one at which his sensitive nature revolted violently.

"And those finger prints," he labored--"those measurements--and that photograph--will become a part--of the criminal records--of the State of California--for as long as the paper upon which they are made shall last!"

"No! No!! No!!!" shrilled a hysterical voice that burst out suddenly and ended as abruptly as it began.

Strangely enough it was the complaining witness who had cried out. She had risen and stood with hands outstretched protestingly to the minister, while whispering hoarsely: "It cannot be! It cannot be!"

"Madam!" thundered the minister, viewing the woman sternly, his own emotion of self-sympathy disappearing at this unexpected sign of softness in her, while his eyes blazed indignantly: "That is a police regulation which by long custom has come to have all the force of law. If you doubt it, your accomplice there will so inform you!"

Hampstead, as he uttered the last words, had shifted his blazing glance to Searle, who at first disconcerted and endeavoring to pull Miss Dounay back into her seat, now rose and turned toward the defendant, his own face aflame, and hot words poised upon his tongue.

But Judge Brennan was rapping for silence.

"Compose yourself, madam!" he ordered sternly.

But before the minister's accusing glance, Miss Dounay was already dropping back into her chair, and as if in dismay at her outbreak, buried her face in her hands, while Searle, quivering with fury, snarled out:

"I resent, your Honor, with all my manhood, the epithet which this defendant has gratuitously and insultingly flung at me."

"Be seated, Mr. Searle," commanded the judge. "Doctor Hampstead's position is very distressing. He will withdraw the objectionable epithet."

"I withdraw it," acknowledged the minister, recovering his poise; yet he said it doggedly and uncompromisingly, qualifying his withdrawal with: "But your Honor will take into account that the manner of the representative of the District Attorney has been offensive to me, though some of the time veiled by an exaggerated pretense of courtesy. It has seemed to me the manner of an accomplice of the complaining witness, and I withdraw the statement more out of respect to this Court than out of consideration for him."

Searle glared, but resumed his seat, giving vent to his temper in a violent jerk of his chair as he dropped into it.

"You may conclude your remarks," observed the Court to Hampstead.

"There is nothing to add," replied the minister, after a reflective interval, "except to urge again that your Honor consider the grave consequences of yielding to a one-sided view of the case. I ask only that truth be honored and justice done!"

With this the defendant sat down.

Miss Dounay appeared to have regained her composure, but, white and still, her glance was now fixed as noticeably upon the face of the defendant as before she had markedly avoided it.

With a hitch to his vest and a forward thrust of the chin, Searle rose to attack the plea of the defendant.

"Your Honor may well ask with Pilate: 'What is truth?'" he began, the manner of his speech showing that while his self-control was admirable, his mood was that vindictive one into which many a prosecutor appears to work himself when arising to assail the cause of a defendant.

"However," he prefaced, "I must first apologize to your Honor for the momentary loss of control on the part of the complaining witness. Your Honor will realize that her emotions were wantonly and deliberately played upon by the defendant in a skillful endeavor to create sympathy for himself. The fact that he succeeded so readily is an eloquent bit of testimony to the sympathetic nature of this estimable and brilliant woman, to the ease with which her confidence is gained, and the painful reluctance with which she performs her duty in this sad case: for any way we view it, it is a sad case, your Honor, and no one regrets more than I the harsh words which must be spoken in the course of my own duty to the people of this county.

"However," and Searle paused for a moment as if both gathering breath and steeling himself for the vicious assault he proposed to make: "Addressing myself to the plea of the defendant for a dismissal of this case, I must say flatly that the motion itself, the argument to support it, and the testimony upon which it is based, constitute the most audacious combination of effrontery and offensive egotism to which a court was ever asked to listen. I congratulate your Honor upon the patience and self-control with which you have contained yourself while permitting this defendant to go on from statement to statement, involving himself deeper in this dastardly crime with every word.

"If, your Honor, in all my days at the bar as a prosecutor, I have ever looked into the face of a guilty man, it is the face of this man!--this egotist!--this boastful braggart!--" As Searle hurled each epithet, he worked his passion higher and shook an offensively, impudently accusing finger at the defendant; "this hypocrite!--this paddler of the palms of neurasthenic women!--this associate of criminals!--this shepherd of black sheep, who now sits here with a sneer upon his lips--lips which have just committed the most appalling sacrilege by seeking to cloak the guilt of a dastardly act with the sacred gown of a priest of God!"

As a matter of fact, there was no sneer discernible to any one else upon the lips of the defendant. At first smiling at the mock-fury into which Searle was lashing himself, they had become white and bloodless under the sting of these heaped-up insults. But this last was more than the man could stand in silence.

"Is my position so defenseless, I ask your Honor," Hampstead interrupted, "that I am compelled to endure this?"

The judge bestowed a chiding glance upon the attorney, but replied to the minister:

"A certain liberty is allowed the prosecutor."

"But that liberty should not be a license to defame!" protested the defendant.

"Am I to be permitted to proceed with my argument or not?" bawled Searle in his most bullying manner, while he glared at the audacious minister.

"You may proceed," replied the Court, affecting not to notice the disrespect with which it had been addressed.

Searle continued, lapsing now into an argumentative strain.

"The defendant himself has said that the case against him is without a flaw. He has had the effrontery to urge that your Honor accept the testimony against him as true testimony. He has only argued that if we are to believe the witnesses for the prosecution, we are also to believe him. I say--I affirm with all the force at my command--that we are not to believe him at all!

"I ask your Honor to consider first the motive for his testimony. The man is hopelessly involved. The charge of burglary is a simple one, compared with the broader indictment of moral profligacy which the whole community is at this moment prepared to find against him. Ruin stares him in the face. His pose is shattered. His disguise is penetrated. If he goes from this court room to the identification bureau of which he has spoken in his mawkish plea for sympathy, as I believe he will go, he goes to be catalogued with criminals, and to be damned forever in the esteem of his neighbors.

"To avert that, would not your Honor expect this defendant to be willing to perjure himself without a qualm? Will a man who has lived a lie before a whole community for five years hesitate to add another in an endeavor to avert his impending fate? Will a man who has stolen the jewels of his trusted friend hesitate to swear falsely in denial of such an act? Will a man who has worked upon the sympathy of his friends to secure large sums of money for a purpose so doubtful that it is undisclosed-- Will he hesitate to work upon the sympathies here by words and implications, by innuendoes that are as false to religion as to fact?

"Your Honor knows that he would not so hesitate. Your Honor knows, through long familiarity with the law of evidence, that the testimony of a defendant in his own behalf, because of his intense interest in the outcome of his case, is always to be weighed with extreme care.

"I believe under such circumstances not only the motives, the springs of action, but the probable mental processes of the witness are to be taken into account. I ask your Honor what a defendant involved in the mesh of circumstantial evidence here presented would probably do under these circumstances. Your own judgment answers with mine that he would probably lie, and exactly as this defendant has lied!"

Again Searle turned and shook his long arm with insulting undulations in the direction of the defendant, after which he continued:

"Turning from probabilities to experience, I ask your Honor out of his memory of years of service upon the bench, what does the arrested thief--taken like this one, with the loot in his possession--what does he do? Why, he either confesses his crime, or he tells you that he is not the thief but an innocent third party, who unwittingly received the loot from the man of straw, whom his imagination and his necessities have created. That latter alternative is the defense of this alleged minister of the Gospel! He had not the honesty to confess, but tells instead that same old lie which criminals and felons have been telling in that same witness chair since this Court was first established.

"Yet this defendant's story has not even the merit of a pretense to ignorance that the goods he held were stolen goods. He boldly admits that he knew they were stolen; that he was personally acquainted with the owner; that he knew the distress of her mind; knew the police departments of half a dozen cities were searching for the jewels, and that the newspapers were giving the widest publicity to the facts and thus joining in the chase for loot and looter. And yet he calmly permits these diamonds to repose in his vault with never a word or hint to calm the distress of his friend or relieve the peace officers of burdensome labors in which they were engaging and the unnecessary expense which they were thus putting upon the taxpayers who support them!

"Why, your Honor, if the witness's own story is true, he has given this Court an abundant ground for holding him to answer to the Superior Court, not indeed upon the exact charge named in that complaint, but as an accessory after the fact to said charge.

"But it is not true. To use his own phrase, it is wickedly and damnably false! So palpably false that it collapses upon the mere examination of your Honor's mind without argument from me.

"Yet I cannot close without calling attention to the sheer recklessness with which this thief and perjurer has heightened the infamy of his position by an act of brazen sacrilege. He has sought to make plausible his weak, unimaginative lie that he received these goods instead of stealing them, by pretending that he received them in his capacity as a religious confessor, under conditions that bound him to a silence which the voice of God alone could break.

"That, in itself, is a claim that should bring the blush of shame to the cheek and rouse the hot resentment of every honest minister and of every honest priest, and make them join with the outraged feelings of honest laymen and of citizens generally in demanding that justice descend upon this man and strike him from the pedestal of self-righteous egotism upon which he stands.

"Turning again for a moment to the question of probabilities: I ask your Honor if it is probable, even thinkable, that any minister, standing in the position of regard in which this minister stood last Sunday morning before the eyes of his people, would deem a crisis like this insufficient to unseal his lips and absolve him from his confessional vows? His very duty to his God and to his congregation, to the poor dupes of his hypocrisy, to say nothing of his duty to himself, would compel him to go upon the witness stand voluntarily and reveal the name of the alleged thief!