cyril felt all was up. elma glanced at him trembling. this was horrible, inconceivable, inexplicable, fatal. the very stars in their courses seem to fight against guy. blind chance checkmated them. no hope was left now, save in gilbert gildersleeve’s own sense of justice.

but sir gilbert gildersleeve sat there, transfixed with horror. no answering gleam now shot through his dull, glazed eye. for he alone knew that whatever made the case against the prisoner look worse, made his own position each moment more awful and more intolerable.

through the rest of the case, cyril sat in his place like a stone figure. counsel for the crown generously abstained from putting him into the witness-box to give testimony against his brother. or rather, they thought the facts themselves, as they had just come out in court, more telling for the jury than any formal evidence. the only other witness of importance was, therefore, the lad who had sat on the gate by the entrance to the tangle. as he scrambled into the box sir gilbert’s anxiety grew visibly deeper and more acute than ever. for the boy was the one person who had seen him at mambury on the day of the murder; and on the boy depended his sole chance of being recognised. at tavistock, eighteen months before, sir gilbert had left the cross-examination of this witness in the hands of a junior, and the boy hadn’t noticed him, sitting down among the bar with gown and wig on. but to-day, it was impossible the boy shouldn’t see him; and if the boy should recognise him—why, then, heaven help him.

the lad gave his evidence-in-chief with great care and deliberateness. he swore positively to guy, and wasn’t for a moment to be shaken in cross-examination. he admitted he had been mistaken at tavistock, and confused the prisoner with cyril—when he saw one of them apart—but now that he saw ‘em both together before his eyes at once, why, he could take his solemn oath as sure as fate upon him. guy’s counsel failed utterly to elicit anything of importance, except—and here sir gilbert’s face grew whiter than ever—except that another gentleman whom the lad didn’t know had asked at the gate about the path, and gone round the other way as if to meet mr. nevitt.

“what sort of a gentleman?” the cross-examiner inquired, clutching at this last straw as a mere chance diversion.

“well, a vurry big zart o’ a gentleman,” witness answered, unabashed. “a vine vigger o’ a man. jest such another as thik ‘un with the wig ther.”

as he spoke he stared hard at the judge, a good scrutinizing stare. sir gilbert quailed, and glanced instinctively, first at the boy, and then at elma. not a spark of intelligence shone in the lad’s stolid eyes. but elma’s were fixed upon him with a serpentine glare of awful fascination. “thou art the man,” they seemed to say to him mutely. sir gilbert, in his awe, was afraid to look at them. they made him wild with terror, yet they somehow fixed him. try as he would to keep his own from meeting them, they attracted him irresistibly.

a ripple, of faint laughter ran lightly through the court at the undisguised frankness of the boy’s reply. the judge repressed it sternly.

“oh, he was just such another one as his lordship, was he?” counsel repeated, pressing the lad hard. “now, are you quite sure you remember all the people you saw that day? are you quite sure the other man who asked about passers-by wasn’t—for example—the judge himself who’s sitting here?”

sir gilbert glanced up with a quick, suspicious air. it was only a shot at random—the common advocate’s trick in trying to confuse a witness over questions of identity; but to sir gilbert, under the circumstances, it was inexpressibly distressing. “well, it murt ‘a been he,” the lad answered, putting his head on one side, and surveying the judge closely with prolonged attention. “thik un ‘ad just such another pair o’ ‘ands as his lordship do ‘ave. it murt ‘a been his lordship ‘urself as is zitting there.”

“this goes quite beyond the bounds of decency,” sir gilbert murmured faintly, with a vain endeavour to hold his hands on the desk in an unconcerned attitude. “have the kindness, mr. walters, to spare the bench. attend to your examination. observations of that sort are wholly uncalled for.”

but the boy, once started, was not so easily repressed. “why, it was his lordship,” he went on, scanning the judge still harder. “i do mind his vurry voice. it was ‘im, no doubt about it. i’ve zeed a zight o’ people, since i zeed ‘im that day, but i do mind his voice, and i do mind his ‘ands, and i do mind his ve-ace the zame as if it wur yesterday. now i come to look, blessed if it wasn’t his lordship!”

guy’s counsel smiled a triumphant smile. he had carried his point. he had confused the witness. this showed how little reliance could be placed upon the boy’s evidence as to personal identity! he’d identify anybody who happened to be suggested to him! but sir gilbert’s face grew yet more deadly pale. for he saw at a glance this was no accident or mistake; the boy really remembered him! and elma’s steadfast eyes looked him through and through, with that irresistible appeal, still more earnestly than ever.

sir gilbert breathed again. he had been recognised to no purpose. even this positive identification fell flat upon everybody.

at last the examination and cross-examination were finished, and guy’s counsel began his hopeless task of unravelling this tangled mass of suggestion and coincidence. he had no witnesses to call; the very nature of the case precluded that. all he could do was to cavil over details, to point out possible alternatives, to lay stress upon the absence of direct evidence, and to ask that the jury should give the prisoner the benefit of the doubt, if any doubt at all existed in their minds as to his guilt or innocence. counsel had meant when he first undertook the case to lay great stress also on the presumed absence of motive; but, after the fatal accident which resulted in the disclosure of montague nevitt’s pocket-book, any argument on that score would have been worse than useless. counsel elected rather to pass the episode by in discreet silence, and to risk everything on the uncertainty of the actual encounter.

at last he sat down, wiping his brow in despair, after what he felt himself to be a most feeble performance.

then sir gilbert began, and in a very tremulous and failing voice summed briefly up the whole of the evidence.

men who remember gildersleeve’s old blustering manner stood aghast at the timidity with which the famous lawyer delivered himself on this, the first capital charge ever brought before him. he reminded the jury, in very solemn and almost warning tones, that where a human life was at stake, mere presumptive evidence should always carry very little weight with it. and the evidence here was all purely presumptive. the prosecution had shown nothing more than a physical possibility that the prisoner at the bar might have committed the murder. there was evidence of animus, it was true; but that evidence was weak; there was partial identification; but that identification lay open to the serious objection that all the persons who now swore to guy waring’s personality had sworn just as surely and confidently before to his brother cyril’s. on the whole, the judge summed up strongly in guy’s favour. he wiped his clammy brow and looked appealingly at the bar. as the jury would hope for justice themselves, let them remember to mete out nothing but strict justice to the accused person who now stood trembling in the dock before them.

all the court stood astonished. could this be gildersleeve? atkins would never have summed up like that. atkins would have gone in point-blank for hanging him. and everybody thought gildersleeve would hang with the best. nobody had suspected him till then of any womanly weakness about capital punishment. there was a solemn hush as the judge ended. then everybody saw the unhappy man was seriously ill. great streams of sweat trickled slowly down his brow. his eyes stared in front of him. his mouth twitched horribly. he looked like a person on the point of apoplexy. the prisoner at the bar gazed hard at him and pitied him.

“he’s dying himself, and he wants to go out with a clear conscience at last,” some one suggested in a low voice at the barristers’ table. the explanation served. it was whispered round the court in a hushed undertone that the judge to-day was on his very last legs, and had summed up accordingly. late in life, he had learned to show mercy, as he hoped for it.

there was a deadly pause. the jury retired to consider their verdict. two men remained behind in court, waiting breathless for their return. two lives hung at issue in the balance while the jury deliberated. elma clifford, glancing with a terrified eye from one to the other, could hardly help pitying the guiltiest most. his look of mute suffering was so inexpressibly pathetic.

the twelve good men and true were gone for a full half-hour. why, nobody knew. the case was as plain as a pikestaff, gossipers said in court. if he had been caught red-handed, he’d have been hanged without remorse. it was only the eighteen months and the south african episode that could make the jury hesitate for one moment about hanging him.

at last, a sound, a thrill, a movement by the door. every eye was strained forward. the jury trooped back again. they took their places in silence. sir gilbert scanned their faces with an agonized look. it was a moment of ghastly and painful suspense. he was waiting for their verdict—on himself, and guy waring.