whatcheb say your name was?” demanded no. 8, aggressively.

“i didn’t say,” said sampson coolly. “call me no. 3, if you don’t mind. i’ll answer to it.”

“well, my name is hooper, and that’s what i want to be called.”

“i’m not going to call you anything,” said sampson, turning away in his loftiest manner.

“well, i guess it’s just as well you don’t,” snorted no. 8, sticking out his chest, and it wasn’t a very obtrusive chest at that. putting it back to where it normally belonged was a much less arduous job for no. 8 than sticking it out. he couldn’t have stuck it out at all if he hadn’t possessed the backing of ten men.

in short, the jury had been out for seven hours and the last ballot stood eleven to one for acquittal. sampson was the unit.

no. 12 tried diplomacy. “say, now, fellers, let’s get together on this thing. we don’t get anywhere by knockin’ mr. sampson. he’s got a right to think as he pleases, same as we have. so let’s be calm and try to get together.”

“my god,” groaned no. 1, “can you beat that? eleven of us have been together since five o’clock this afternoon, and you talk about being calm. now, as foreman of this jury, i think i’ve got some right to be heard. you’ll admit that, won’t you, mr. sampson?”

“certainly. up to this moment, i’ve had no difficulty in hearing you. it isn’t necessary to shout, either. i’m not deaf.”

“now, let me talk,” went on the foreman. “keep still a minute, you fellers. mr. sampson is a gentleman. he’s got as much sense, i suppose, as any of us. he—”

“thanks,” said sampson.

“well, here we are, ‘leven to one. you admit that your sympathies are with the old man, same as the rest of us. you say you’d sooner be shot than to send him up. well, now let’s—wait a minute, hooper! i’m talking. let’s talk this thing over as friends. i apologise for what i said just after supper. you’ve got a right to be pig-headed. you’ve got a legal right to hang this jury. but is it right and fair? if ‘leven of us are willing to go on record as—er—as putting credence in the testimony of mr. hildebrand, i can’t see why you’re afraid to come in with us. down in your soul you don’t think he’s guilty. you say that maybe he is shielding some one else. if that’s the way you feel, why not come out like a man and give the poor old lad the benefit of the doubt? lord knows i’m a hard man. i don’t want to see any guilty man escape. i believe in putting ‘em where they belong, and keeping ‘em there. by gosh, nobody dares to say to my face that i’m easy on criminals. i’m as hard as nails. my wife says i’m as hard as all get-out. and she ought to know. she’s heard me talk about crime here in new york for nearly fifteen years, and she knows how i feel. well, if i am willing to give the old man a chance, it ought to stand for something, oughtn’t it? hard as i am? just reason it out for yourself, mr. sampson. now, we all agree that the evidence against him is pretty strong. but it is circumstantial. you said so yourself in the beginning. it was you who said that it was circumstantial. you said—just a minute, hooper! you said that while everything pointed to him as the guilty man, nobody actually swore that he saw him take the money. on the other hand, he swears he didn’t take it. he ought to know, oughtn’t he? if he knows who did take it, why that’s his business. i don’t believe in squealers. i wouldn’t have any mercy on a man who turned state’s evidence to save himself. well, now, supposing old man hildebrand knows who got away with the stuff. he is too much of a man to squeal. we oughtn’t to send him up just because he won’t squeal on the man—a friend, for all we know—even though it might save him from going to the pen. i leave it to you, mr. sampson: ought we?”

“of course we oughtn’t,” broke in the irrepressible mr. hooper. “any damn’ fool ought to see that.”

sampson eyed mr. hooper severely. “he’s leaving it to me, mr. hooper; not to you.” he leaned a little closer, his eyes narrowing. “and, by the way, mr. hooper, before we go any farther, i should like to call your attention to several facts entirely separate and apart from this trial. it may interest you to know that i am six feet one in my stocking feet, that i weigh one hundred and ninety-five pounds, that i am just under thirty years of age, that i was one of the strongest men in college, and that up to a certain point i am, and always have been, one of the gentlest and best-natured individuals in the world.”

“what do you mean by that?” blustered no. 8.

“gentlemen!” admonished the foreman. the automobile salesman stopped picking his teeth.

“i am merely trying to convince you, mr. hooper, that there is a great deal more to be said for circumstantial evidence than you might think. you might go on forever thinking that i am a meek, spineless saphead, and on the other hand you might have it proved to you that i’m not. please reflect on what i have just said. it can’t do you any harm to reflect, mr. hooper.”

“oh, piffle!” said mr. hooper, getting very red in the face.

“sic ‘em!” said no. 12, under his breath.

“moreover,” went on sampson, smiling—but mirthlessly—“i am assuming that your exercises as a hat salesman are not such as one gets in a first-class gymnasium. i hope you will pardon me for asking you to repeat the word you just uttered. i think it was ‘piffle.’”

mr. hooper grinned. he didn’t feel like grinning hut something psychological told him to do it—and to do it as quickly as possible. “aw, don’t get sore, old man. forget it!”

“certainly,” said sampson.

the foreman seized the opportunity. “there, now, that’s better. at last we seem to be getting together.”

no. 7 spoke up. “this might be a good time to take another ballot. it’s ‘leven minutes to one by my watch. we stand ‘leven to one. that’s a good sign. say, do you know that’s pretty darned smart, if i do say it myself who—”

“let’s have mr. sampson’s revised views on the subject and then take a final ballot for tonight,” said the foreman, wearily.

“i haven’t revised my views,” said sampson.

there were several draughty sighs. “i’ve stated them five or six times to-night, and i see no reason to alter them now. deeply as i regret it, i cannot conscientiously do anything but vote for a conviction.”

“now, listen to me once more, mr. sampson,” began the chubby bachelor. “i’ll try to set you straight in—”

“see here,” said sampson, arising and confronting his companions, “we may just as well look this thing squarely in the face. i don’t want to send him up any more than the rest of you do. but i am going to be honest with myself in this matter if i have to stay out here for six months. we’ve heard all of the evidence. it seems pretty clear to all of us that the defendant was responsible for the loss of that money, even if he didn’t take it himself. he was the treasurer of the concern. he had absolute charge of the funds. so far as we are concerned the state has made out its case. we are supposed to be impartial. we are supposed to render a verdict according to the law and the evidence. we cannot be governed by sympathy or conjecture.

“when i left the court-room with the rest of you gentlemen to deliberate on a verdict, i will confess to you that i had in my heart a hope that you men would do just what you have done all along: vote for acquittal. when i came into this room seven hours ago, i was eager to vote just as you have voted. then i began to reflect. i asked myself this question: how can i go back to that court-room and look the district attorney and the court in the face and say that james hildebrand is not guilty? if i did that, gentlemen, i am quite sure i could never look an honest man in the face again. we have all been carried away by our sympathies—i quite as much as the rest of you. i am convinced that there isn’t a man among you who can stand up here and say, on his honour, that the evidence warrants the discharge of the defendant.

“god knows i want to set him free. i am inclined to believe his story. he is not the sort of man who would steal. but, after all, we are bound, as honest men, to carry out the requirements of the law. the court clearly stated the law in this case. under the law, we can do nothing else but convict, gentlemen.

“you, mr. foreman, have said that hildebrand perhaps knows who took the money. you will admit that you are guessing at it, just as i am guessing. in his own testimony he was careful to say nothing that would lead us to believe that he knows the guilty man. the state definitely charges him with the crime and it produces evidence of an overwhelming nature to support the charge. against this evidence is his simple statement that he did not take the money. he had already pleaded not guilty. is it to be expected of him, therefore, that he should say anything else but that he did not rob his partners?

“only the criminals who are caught redhanded confess that they are guilty. the guiltiest of them go on the stand, as we all know, proclaiming their innocence, and, not one, but all of the men who go to the chair after making such pleas maintain with their last breath that they are innocent. gentlemen, this is the bitterest hour in all my life. i want to set this old man free, but i cannot conscientiously do so. i took my oath to render a fair and impartial verdict. you all know what a fair and impartial verdict must be in this case. i shall have to vote, as i have voted from the beginning, for conviction.”

he sat down. no. 7, who was directly opposite him across the long table, leaned forward suddenly with an odd expression in his eyes. then he blinked them.

“why, by jingo, he’s—he’s crying!” he exclaimed, something akin to awe in his voice. “you got tears in your eyes, darn me if you haven’t.”

there were tears in sampson’s eyes. he lowered his head.

“yes,” he said gruffly; “and i am not ashamed of them.”

“oh, come now, old feller,” said mr. hooper, uncomfortably; “don’t make a scene. pull yourself together. we’re all friends here, and we’re all good fellers. don’t—”

“i’m all right,” said sampson coldly. “you see i’m not as hard-hearted as you thought. now, gentlemen, i shall not attempt to argue with you. i shall not attempt to persuade you to look at the case from my point of view. as a matter of fact, i am rather well pleased with the attitude you’ve taken. the trouble is that it isn’t going to help the poor old man. all we can do is to disagree, and that means he will have to be tried all over again, perhaps after many months of confinement. i should like to ask you—all of you—a few rather pointed questions, and i’d like to have square and fair answers from you. what do you say to that?”

“fire away,” said the foreman.

“it’s one o’clock,” said no. 7. “supposin’ we wait till after breakfast.”

“gawd, i’m sleepy,” groaned no. 12.

“no,” said the foreman firmly; “let’s hear what mr. sampson has to say. he’s got a lot of good common sense and he won’t ask foolish questions. they’ll be important, believe me.”

they all settled hack in their chairs, wearily, drearily.

“all right. go ahead,” sighed the chubby bachelor. “i’ll answer any question except ‘what’ll you have to drink,’ and i’ll answer that to-morrow.”

sampson hesitated. he was eyeing no. 7 in a retrospective sort of way. no. 7 shifted in his chair and succeeded in banishing the dreamy, faraway look in his eyes.

“assuming,” began the speaker, “that we were trying a low-browed, undershot ruffian instead of james w. hildebrand, and the evidence against him was identical with that which we have been listening to, would you disregard it and accept his statement instead?”

“the case ain’t parallel,” said no. 8. “his face wouldn’t be james w. hildebrand’s, and you can bank a lot on a feller’s face, mr. sampson.”

the others said, “that’s so.”

“that establishes one fact very clearly, doesn’t it? you all admit that with a different sort of a face and manner, mr. hildebrand might be as guilty as sin. well, that point being settled, let me ask you another question. if miss alexandra hildebrand, the granddaughter who has faced us for six working days, were a sour-visaged, watery-eyed damsel of uncertain age and devoid of what is commonly called sex-appeal, would your sympathies still be as happily placed as they are at present?”

no man responded. each one seemed willing to allow his neighbour to answer this perfectly unanswerable question.

“you do not answer,” went on sampson, “so i will put it in another form. suppose that miss alexandra hildebrand had not been there at all; suppose that she had not been where we could look at her for six short consecutive days—and consequently think of her for six long consecutive nights—or where she couldn’t possibly have looked at us out of eyes that revealed the most holy trust in us—well, what then? i confess that miss hildebrand exercised a tremendous influence over me. did she have the same effect upon you?”

several of them cleared their throats, and then of one accord, as if moved by a single magnetic impulse, all of them said, in a loud, almost combative tone, “no!”

the chubby bachelor qualified his negative. “she didn’t have an undue influence, mr. sampson. of course, i liked to look at her. she’s easy to look at, you know.” he blushed as his eyes swept the group with what he intended to be defiance but was in reality embarrassment.

no. 7: “i was awfully sorry for her. i guess everybody was.”

no. 9; “she’s devoted to the old man. i like that in her. i tell you there’s nothing finer than a young girl showing love and respect for—”

no. 12: “she’s a square little scout. take it from me, gents, she wasn’t thinking of me as a juror when she happened to turn her lamps on me. i’m an old hand at the game. i can tell you a lot about women that you wouldn’t guess in—”

sampson: “we may, therefore, eliminate miss hildebrand as the pernicious force in our deliberations. she has nothing to do with our sense of justice. we would be voting, i take it, just as we have been all along if there were no such person as she. however, it occurs to me that each of you gentlemen may have had the same impression that i had during the trial. i had a feeling that miss hildebrand was depending on me to a tremendous extent. you may be sure that i do not charge her with duplicity—god knows i have the sincerest admiration for her—but i found it pretty difficult to meet her honest, serene, trustful eyes without experiencing a decided opinion that it was my bounden duty to acquit her grandfather. anybody else feel that way about it?”

there was a long silence. again each man seemed to be waiting for the other to break it. it was the foreman who spoke.

“i’ll be perfectly honest, for one,” he said. “i thought and still think that she looked upon me as a friendly juror. nothing wrong about it, mind you—not a thing. i wouldn’t have you think that she deliberately—er—ahem! what have you to say, no. 7?”

no. 7 blushed violently. “not a word,” said he. “i profess to be a gentleman.”

no. 8 snorted. “well, then, act like one. mr. sampson’s a gentleman. he don’t hesitate to say that he was—say, mr. sampson, just what did you say?”

“i said, without the slightest desire to create a wrong impression, that i was deeply affected by the trust miss hildebrand appeared to place in me. she believes her grandfather to be innocent, and i think she believes that i agree with her. that’s the long and the short of it.” no. 4 slammed his fist upon the table. “by thunder, that’s just exactly the fix i’m in. right from the start, i seemed to feel that i got on this jury because she liked the looks of me. not the way you think, hooper, but because i looked like a man who might give her grandfather a square trial and—”

mr. hooper interrupted him hotly: “what do you mean by ‘not the way you think’? that sounded kind of disparaging, my good man—disparaging to her. explain yourself.” sampson interposed. “i think we all understand each other, gentlemen. miss hildebrand practically picked the whole dozen of us. she inspected us as we came up, she sized us up, and she had the final word to say as to whether we were acceptable to the defence. she believed in us, or we wouldn’t be here to-night. what makes it all the harder for us, gentlemen, individually and collectively, is that we believe in her. now, what are we to do? live up to her estimate of us, or live up to a prior estimate of ourselves?”

“well, let’s sleep over it,” said the foreman uneasily. “i guess we’re all tired and—”

“i guess we won’t sleep much,” broke in no. 7 miserably. “damn’ if you’ll ever get me on a jury again. i’m a nervous man anyhow and now—i’m a wreck. i don’t know what to do about this business.”

“if it were not for miss hildebrand, gentlemen, we’d all know what to do,” said sampson. “isn’t that a fact?”

“well, you seem to have made up your mind,” said no. 8 gloomily. “i thought mine was made up, but, by gosh, i—i want to do what’s right. i took my oath to—”

“we will take a ballot before breakfast in the morning,” said no. 1 decisively. “now, let’s sleep if we can.”

they disposed themselves in chairs, stretched out their legs and—waited for an illuminating daybreak.

sampson’s decision was final. he would not stultify his honour. he would not be swayed by the sweetest emotion that ever had assailed him. besides, he argued through the long, tedious hours before dawn, when all was said and done, what could alexandra hildebrand ever be to him? she would go out of his life the day that—

but there he was at it again! why couldn’t he put her out of his thoughts? why was he continually thinking of the day when he would see the last of her? and what a conceited fool he had been! she had been most impartial with her mute favours. every man on the jury was figuratively and literally in the same boat with him. each one of them believed as he believed: that he was the one special object of interest to her.

but still—he was quite sure—she had communed with him a little more—was he justified in using the word?—intimately than with the others? surely he could not be mistaken in his belief that she looked upon him as a trifle superior to—but some one was nudging him violently.

“wake up, mr. sampson,” a voice was saying—a voice that was vaguely familiar. it was a coarse, unfeminine voice. “we’re ready to take a ballot before we go out to breakfast. want to wash up first or will you—”

“what time is it?” muttered sampson, starting up from his chair. was it the chair that creaked, or was it his bones? he was stiff and sore and horribly unwieldy.

“half past seven,” said the foreman. then sampson recognised the voice that had interrupted his personal confession. moreover, he recognised the unshaven countenance. it was really quite a shock, coming so closely upon... “you’ve been hitting it up pretty soundly. no. 7 says he didn’t sleep a wink. afraid to risk it, he says.”

at eight o’clock an attendant rapped on the door and told them to get ready to go out to breakfast.

“go away!” shouted the foreman. he was in the midst of an argument with no. 7 when the interruption came, and he was getting the better of it.

“i’m willing to go half way,” said no. 7 dreamily. “hungry as i am, i’ll go half way. i’ve got the darnedest headache on earth. if i had a cup of coffee maybe i’d—”

“what do you mean half way?” exploded mr. hooper. “you can’t render a half-way verdict, can you?”

the ballot had just been taken. it stood eleven to one for conviction! this time no. 7 was the unit.

“no,” said the dreamy no. 7, unoffended. “what i want to do is to make it as light for him as possible. can’t we find him guilty of embezzlement in the third degree or—” sampson interrupted. he too wanted his coffee. “let’s have our breakfast. afterwards we can discuss—”

“i want to settle it now,” roared mr. hooper. “it’s all nonsense talking about breakfast while—”

“well, then,” said sampson, “suppose we agree to find him guilty as charged and recommend him to the mercy of the court.”

this was hailed with acclaim. even no. 7, emerging temporarily from his mental siesta, agreed that that was “a corking idea.”

“find him guilty,” he explained, satisfying himself at least, “and then ask the court to discharge him. maybe a little lecture would do him good. a few words of advice—”

“and now, gentlemen,” broke in sampson crisply, “since we have reached the conclusion that we are trying mr. hildebrand and not miss hildebrand, perhaps we would better have our coffee.”

at ten o’clock the jury filed into the courtroom and took their places in the box. each was conscious of what he was sure must look like a ten days’ growth of beard, and each wore the stem, implacable look that is best described as “hang-dog.”

a dozen pairs of eyes went on an uneasy journey in quest of an object of dread. she was not there. there were a dozen sighs of relief. good! if they could only get it over with and escape before she appeared! what was all this delay about? they were ready with their verdict; why should they be kept waiting like this? no wonder men hated serving on juries.

the court came in and took his seat. he looked very stern and forbidding. he looked, thought sampson, like a man who has been married a great many years and is interested only in his profession. a few days earlier he looked more or less like an unmarried man.

“gentlemen of the jury,” began the clerk after the roll-call, “have you arrived at a verdict?”

“we have,” said no. 1, with an involuntary glance in the direction of the door.

the verdict itself was clear and concise enough. “we, the jury, find the defendant, james w. hildebrand, guilty as charged.”

the old man’s eyes fell. a quiver ran through his gaunt body. an instant later, however, he sat erect and faced his judges, and a queer, indescribable smile developed slowly at the corners of his mouth. sampson was watching him closely. afterwards he thought of this smile as an expression of supreme indulgence. he remembered feeling, at the moment, very cheap and small.

before the defendant’s counsel could call for a poll of the jury, no. 1 arose in his place and laboriously addressed the court. he announced that the jury had a communication to make and asked if this was the proper time to present it. the court signified his readiness to hear the communication, and no. 1, nervously extracting from his pocket a sheet of note paper, read the following recommendation:—“the jury, having decided in its deliberations that the defendant, james w. hildebrand, is legally and morally guilty as charged in the indictment, craves the permission of this honourable court to be allowed to submit a recommendation bearing upon the penalty to be inflicted as the result of the verdict agreed upon. we would respectfully urge the court to exercise his prerogative and suspend sentence in the case of james w. hildebrand. the evidence against him is sufficient to warrant conviction, but there are circumstances, we believe, which should operate to no small degree in his favour. his age, his former high standing among men, and his bearing during the course of this trial, commend him to us as worthy of this informal appeal to your honour’s mercy. this communication is offered regardless of our finding and is not meant to prejudice the verdict we have returned. in leaving the defendant in the hands of this court, we humbly but earnestly petition your honour to at least grant him the minimum penalty in the event that you do not see fit to act upon our suggestion to suspend sentence.”

the document, which was signed by the twelve jurors, had been prepared by sampson, and it was his foresight that rendered it entirely within the law. he was smart enough not to incorporate it in the finding itself; it was a supplementary instrument which could be accepted or disregarded as the court saw fit.

the court gazed rather fixedly at the sheet of paper which was passed to him by an attendant. his brow was ruffled. he pulled nervously at his moustache. at last, clearing his throat, he said, addressing the counsel for the defence:

“gentlemen, do you wish to poll the jury?”

mr. o ‘brien waived this formality. he and his partner seemed to be rather well pleased with the verdict. they eyed the court anxiously, hopefully.

“the court will pronounce sentence on friday,” announced the justice, his eye on the door. he acted very much like a man who was afraid of being caught in the act of perpetrating something decidedly reprehensible. “i wish to thank the jurors for the careful attention they have given the case and to compliment them on the verdict they have returned in the face of rather trying conditions. it speaks well for the integrity, the soundness of our jury system. i may add, gentlemen, that i shall very seriously consider the recommendation you have made. the prisoner is remanded until next friday at ten o’clock.”

half an hour later sampson found himself in the street. he had spent twenty minutes or more loitering about the halls of the criminal courts building, his eager gaze sweeping the throng that was forever changing. it searched remote corners and mounted quadruple stairways; it raked the balcony railings one, two and three flights up; it went down other steps toward the street-level floor. and all the while his own gaze was scouting, the anxious eyes of four other gentlemen were doing the same as his: no. 7, no. 8, no. 6 and no. 12. they were all looking for the trim, natty figure and the enchanting face of miss alexandra hildebrand—vainly looking, for she was nowhere to be seen.

and when sampson found himself in the street—(a bitter gale was blowing)—he was attended by two gentlemen who justly might have been identified as his most intimate, bosom friends: the lovesick no. 7 and the predatory no. 12. they had him between them as they wended their way toward the subway station at worth street, and they were smoking his cigars (because he couldn’t smoke theirs, notwithstanding their divided hospitality)—and they were talking loudly against time. sampson had the feeling that they were aiming to attach themselves to him for life.

they accepted him as their guiding light, their mentor, their firm example. for all time they would look upon him as a leader of men, and they would be proud to speak of him to older friends as a new friend worth having, worth tying up to, so to say. they seemed only too ready to glorify him, and in doing so gloried in the fact that he was a top-lofty, superior sort of individual who looked down upon them with infinite though gentle scorn.

moreover, they thought, if they kept on the good side of sampson they might reasonably expect to obtain an occasional glimpse of miss alexandra hildebrand, for, with his keenness and determination, he was sure to pursue an advantage that both of them reluctantly conceded.

in the subway local no. 7 invited sampson to have lunch with him. he suggested the vanderbilt, but he wasn’t sure whether he’d entertain in the main dining room or in the della robbia room. he seemed confused and uncertain about it. no. 12 boisterously intervened. he knew of a nice little place in forty-second street where you can get the best oysters in new york. he not only invited sampson to go there. they clung to him, however, until they reached times square station with him hut magnanimously included no. 7, which was more than no. 7 had done for him.

sampson declined. they clung to him, however, until they reached times square station. there he said good-bye to them as they left the kiosk.

0113

“perhaps we may meet again,” he said pleasantly. no. 7 fumbled in his vest pocket and brought forth a soiled business card.

“if you ever need anything in the way of electric fixtures or repairing, remember me, mr. sampson,” he said. “telephone and address as per card. keep it, please. i am in business for myself. the trans-continental electric supply emporium.’

“here’s my card, mr. sampson,” said no. 12. “i’d like to come around and give you a little spiel on our new model some day soon. we’re practically sold up as far as december, but i think i can sneak you in ahead—what say?”

“i have an automobile, thank you. two of them, in fact.” he mentioned the make of car that he owned. no. 12 was not disheartened.

“you could have fifteen of our cars for the price you paid for yours—one for every other day in the month. just bear that in mind. a brand new car every second day. let me see: your address is—” he paused expectantly.

“the harvard club will reach me any time.”

no. 12 started to write it down but paused in the middle of “harvard” to grasp the extended hand of his new friend. “i fancy you can remember it without writing it down,” went on sampson, smilingly.

“never trust to memory,” said no. 12 briskly. “this burg is full of clubs and—well, so long!”

no. 7 was still troubled about luncheon. “i’m sorry you can’t go to the vanderbilt and have a bite—a sandwich and a stein of beer, say.” no. 12 turned to speak to a passing acquaintance, and no. 7 seized the opportunity to whisper tensely: “she’s staying there. i followed her three times and she always went to the vanderbilt. got off the subway at thirty-third street and—”

“she? what she?” demanded sampson, affecting perplexity.

no. 7 was staggered. it was a long time before he could say: “well, holy smoke!” and then, as sampson still waited: “why, her, of course—who else?”

sampson appeared to understand at last. he said: “a ripping good hotel, isn’t it?”

“a peach,” said no. 7, and then they parted.

that evening sampson dined at the vanderbilt. at first, like no. 7, he wasn’t quite sure whether he would dine upstairs or in the della robbia room. he went over the ground very thoroughly before deciding. at eight o’clock he disconsolately selected the main dining-room and ate, without appetite, a lonely but excellent dinner.

he wondered if no. 7 could have lied to him.