Tutt and Mr. Tutt

"I don't see why not!" he declared. "There isn't any precedent as far as I am aware. But he says he believes in the Deity. Isn't that enough?"

"Not unless he believes that the Deity will punish him if he breaks his oath," answered Mr. Tutt. "Let me try him on that?"

"Ah Fong, do you think God will punish you if you tell a lie?"

Fong looked blank. The interpreter fired a few salvos.

"He says it makes a difference the kind of oath."

"Suppose it is a promise to tell the truth?"

"He says what kind of a promise?"

"A promise on the Bible," answered Mr. Tutt patiently.

"He says what god you mean!" countered the interpreter.

"Oh, any god!" roared Mr. Tutt.

The interpreter, after a long parley, made reply.

"Ah Fong says there is no binding oath except on a chicken's head."

Judge Bender, O'Brien and Mr. Tutt gazed at one another helplessly.

"Well, there you are!" exclaimed the lawyer. "Mr. O'Brien's oath wasn't any oath at all! What kind of a chicken's head?"

"A white rooster."

"Quite so!" nodded Mr. Tutt. "Your Honor, I object to this witness being sworn by any oath or in any form except on the head of a white rooster!"

"Well, I don't happen to have a white rooster about me!" remarked O'Brien, while the jury rocked with glee. "Ask him if something else won't do. A big book for instance?"

The interpreter put the question and then shook his head. According to Ah Fong there was no virtue in books whatever, either large or small. On some occasions an oath could be properly taken on a broken plate—also white—but not in murder cases. It was chicken or nothing.

"Are you not willing to waive the formality of an oath, Mr. Tutt?" asked the judge in slight impatience.

"And wave my client into the chair?" demanded the lawyer. "No, sir!"

"I don't see what we can do except to adjourn court until you can procure the necessary poultry," announced Judge Bender. "Even then we can't slaughter them in court. We'll have to find some suitable place!"

"Why not kill one rooster and swear all the witnesses at once?" suggested Mr. Tutt in a moment of inspiration.

"My God, chief!" exclaimed O'Brien at four o'clock. "There ain't a white rooster to be had anywhere! Hens, yes! By the hundred! But roosters are extinct! Tomorrow will be the twenty-first day of this prosecution and not a witness sworn yet."

However, a poultryman was presently discovered who agreed simply for what advertising there was in it to furnish a crate of white roosters, a hatchet and a headsman's block, and to have them in the basement of the building promptly at ten o'clock.

Accordingly, at that hour Judge Bender convened Part IX of the General Sessions in the court room and then adjourned downstairs, where all the prospective witnesses for the prosecution were lined up in a body and told to raise their right hands.

Meantime Clerk McGuire was handed the hatchet, and approached the coop with obvious misgivings. Ah Fong had already given a dubious approval to the sex and quality of the fowls inside and naught remained but to submit the proper oath and remove the head of the unfortunate victim. A large crowd of policemen, witnesses, reporters, loafers, truckmen and others drawn by the unusual character of the proceedings had assembled and now proceeded without regard for the requirements of judicial dignity to encourage McGuire in his capacity of executioner, by profane shouts and jeers, to do his deadly deed.

But the clerk had had no experience with chickens and in bashfully groping for the selected rooster allowed several other occupants of the crate to escape. Instantly the air was filled with fluttering, squawking fowls while fifty frenzied police officers and Chinamen attempted vainly to reduce them to captivity again. In the midst of the mêlée McGuire caught his rooster, and fearful lest it should escape him managed somehow to decapitate it. The body, however, had been flopping around spasmodically several seconds upon the floor before he realized that the oath had not been administered, and his voice suddenly rose above the pandemonium in an excited brogue.

"Hold up your hands, you! You do solemnly swear that in the case of The People against Mock Hen you will tell the truth, the whole truth and nothing but the truth so help you God!"

But the interpreter was at that moment engaged in clasping to his bosom a struggling rooster and was totally unable to fulfill his functions. Meantime the jury, highly edified at this illustration of the administration of justice, gazed down upon the spectacle from the stairs.

"This farce has gone far enough!" declared Judge Bender disgustedly. "We will return to the court room. Put those roosters back where they belong!"

Once more the participants ascended to Part IX and Ah Fong took his seat in the witness chair. The interpreter's blouse was covered with pin-feathers and one of his thumbs was bleeding profusely.

"Ask the witness if the oath that he has now taken will bind his conscience?" directed the court.

Again the interpreter and Ah Fong held converse.

"He says," translated that official calmly, "that the chicken oath is all right in China, but that it is no good in United States, and that anyway the proper form of words was not used."

"Good Lord!" ejaculated O'Brien. "Where am I?"

"Me tell truth, all light," suddenly announced Ah Fong in English. "Go ahead! Shoot!" And he smiled an inscrutable age-long Oriental smile.

The jury burst into laughter.

"He's stringing you!" the foreman kindly informed O'Brien, who cursed silently.

"Go on, Mister District Attorney, examine the witness," directed the judge. "I shall permit no further variations upon the established forms of procedure."

Then at last and not until then—on the morning of the twenty-first day—did Ah Fong tell his simple story and the jury for the first time learn what it was all about. But by then they had entirely ceased to care, being engrossed in watching Mr. Tutt at his daily amusement of torturing O'Brien into a state of helpless exasperation.

Ah Fong gave his testimony with a clarity of detail that left nothing to be desired, and he was corroborated in most respects by the Italian woman, who identified Mock Hen as the Chinaman with the iron bar. Their evidence was supplemented by that of Bull Neck Burke and Miss Malone, who also were positive that they had seen Mock running from the scene of the murder at exactly four-one o'clock.

Mr. Tutt hardly cross-examined Fong at all, but with Mr. Burke he pursued very different tactics, speedily rousing the wrestler to such a condition of fury that he was hardly articulate, for the old lawyer gently hinted that Mr. Burke was inventing the whole story for the purpose of assisting his friends in the On Gee Tong.

"But I tell yer I don't know no Chinks!" bellowed Burke, looking more like a bull than ever. "This here Mock Hen run right by me. My goil saw him too. I looked at me ticker to get the time!"

"Ah! Then you expected to be a witness for the On Gee Tong!"

"Naw! I tell yer I was walkin' wit' me goil!"

"What is the lady's name?"

"Miss Malone."

"What is her occupation?"

"She's a gay burlesquer."

"A gay burlesquer?"

"Sure—champagne goil and gay burlesquer."

"A champagne girl!"

"Dat's what I said."

"You mean that she is upon the stage?"

"Sure—dat's it!"

"Oh!" Mr. Tutt looked relieved.

"What had you and Miss Malone been doing that afternoon?"

"I told yer—walkin'."

Mr. Tutt coughed slightly.

"Is that all?"

"Say, watcha drivin' at?"

Mr. Tutt elevated his bushy eyebrows.

"How do you earn your living?" he demanded, changing his method of attack.

Bull Neck allowed his head to sink still farther into the vast bulk of his immense torso, strangely resembling, in this position, the fabled anthropophagi whose heads are reputed thus to "grow beneath their shoulders."

Then throwing out his jaw he announced proudly between set teeth: "I'm a perfessor of physical sculture!"

The jury sniggered. Mr. Tutt appeared politely puzzled.

"A professor of what?"

"A perfessor of physical sculture!" repeated Bull Neck with great satisfaction.

"Oh! A professor of physical sculpture!" exclaimed Mr. Tutt, light breaking over his wrinkled countenance. "And what may that be?"

Bull Neck looked round disgustedly at the jury as if to say: "What ignorance!"

"Trainin' an' developin' prominent people!" he explained.

"Um!" remarked Mr. Tutt. "Who invited you to testify in this case?"

"Mr. Mooney."

"Oh, you're a friend of Mooney's! That is all!"

Now it is apparent from these questions and answers that Mr. Burke had testified to nothing to his discredit and had conducted himself as a gentleman and a sportsman according to his best lights. Yet owing to the subtle suggestions contained in Mr. Tutt's inflections and demeanor the jury leaped unhesitatingly to the conclusion that here was a man so ignorant and debased that if he were not deliberately lying he was being made a cat's-paw by the police in the interest of the On Gee Tong.

Miss Malone fared even worse, for after a preliminary skirmish she flatly refused to give Mr. Tutt or the jury any information whatever regarding her past life, while Mooney, of course, labored from the beginning to the end of his testimony under the curse of being a policeman, one of that class whom most jurymen take pride in saying they hold in natural distrust. In a word, the white witnesses to the dastardly murder of Quong Lee created a general impression of unreliability upon the minds of the jury, who wholly failed to realize the somewhat obvious truth that the witnesses to a crime in Chinatown will naturally if not inevitably be persons who either reside in or frequent that locality.

Twenty-four days had now been consumed in the trial, and as yet no Chinese witnesses except Ah Fong had been called. Now, however, they appeared in cohorts. Though Mooney had sworn that the streets were practically empty at the time of the homicide forty-one Chinese witnesses swore positively that they had been within easy view, claiming variously to have been behind doors, peeking through shutters, at upper windows and even on the roofs. All had identified Mock Hen as the murderer, and none of them had ever heard of either the On Gee or the Hip Leong Tong! Mr. Tutt could not shake them upon cross-examination, and O'Brien began to show signs of renewed confidence. Each testified to substantially the same story and they occupied seventeen full days in the telling, so that when the prosecution rested, forty-two days had been consumed since the first talesman had been called. The trial had sunk into a dull, unbroken monotony, as Mr. Tutt said, of the "vain repetitions of the heathen." Yet the police and the district attorney had done all that could reasonably have been expected of them. They were simply confronted by the very obvious fact—a condition and not a theory—that the legal processes of Anglo-Saxon jurisprudence are of slight avail in dealing with people of another race.

Now it is possible that even had Mr. Tutt put in no defense whatever the jury might have refused to convict, for there was a curious air of unreality surrounding the whole affair. It all seemed somehow as if—assuming that it had ever taken place at all—it had occurred in some other world and in some other age. Perhaps under what might have been practically a direction of the court a verdict of conviction might have been returned—but it is doubtful. The more witnesses testified to exactly the same thing in precisely the same words the less likely it appeared to be.

But Mr. Tutt was taking no chances and, upon the forty-third day of the trial, at a nod from the bench, he opened his case. Never had he been more serious; never more persuasive. Abandoning every suggestion of frivolity, he weighed the testimony of each white witness and pointed out its obvious lack of probative value. Not one, he said, except the Italian woman, had had more than a fleeting glance of the face of the man now accused of the crime. Such an identification was useless. The Chinamen were patently lying. They had not been there at all! Would any member of the jury hang a dog, even a yellow one, on such testimony? Of course not! Much less a human being. The people had called forty witnesses to prove that Mock Hen had killed Quong Lee. It made no difference. The On Gee could have just as easily produced four hundred. Moreover, Mr. Tutt did a very daring thing. He pronounced all Chinese testimony in an American court of justice as absolutely valueless, and boasted that for every Chinaman who swore Mock Hen was guilty he would bring forward two who would swear him innocent.

The thing was, as he had carefully explained to Bonnie Doon, to prove that Mock was a good Chinaman and, if the jury did not believe that there was any such animal, to convince them that it was possible. His first task, however, was to polish off the Chinese testimony by calling the witnesses who had been secured under the guidance of Wong Get. He admitted afterward that in view of the exclusion law he had not supposed there were so many Chinamen in the United States, for they crowded the corridors and staircases of the Criminal Courts Building, arriving in companies—the Wong family, the Mocks, the Fongs, the Lungs, the Sues, and others of the sacred Hip Sing Society from near at hand and from distant parts—from Brooklyn and Flatbush, from Flushing and Far Rockaway, from Hackensack and Hoboken, from Trenton and Scranton, from Buffalo and Saratoga, from Chicago and St. Louis, and each and every one of them swore positively upon the severed neck of the whitest rooster—the broken fragments of the whitest of porcelain plates—the holiest of books—that he had been present in person at Fulton Market in New York City at precisely four-fifteen o'clock in the afternoon and assisted Mock Hen, the defendant, in selecting and purchasing a terrapin for stew.

Mr. Tutt grinned at the jury and the jury grinned affectionately back at Mr. Tutt. Indeed, after the length of time they had all been together they had almost as much respect for him as for the judge upon the bench. The whole court seemed to be a sort of Tutt Club, of which even O'Brien was a member.

"Now," said Mr. Tutt, "I will call a few witnesses to show you what kind of a man this is whom these highbinders accuse of the crime of murder!"

Mock, rolling his eyes heavenward, assumed an expression of infantile helplessness and trust.

"Don't overdo it!" growled Tutt. "Just look kind of gentle."

So Mock looked as gentle as a suckling dove while two professors from Columbia University, three of his landlords in his more reputable business enterprises, the superintendent of the Rising Sun Mission, four ex-police officers, a fireman, and an investigator for the Society for the Suppression of Sin swore upon Holy Writ and with all sincerity that Mock Hen was not only a person of the most excellent character and reputation but a Christian and a gentleman.

And then Mr. Tutt played his trump card.

"I will call Miss Frances Duryea, of Hudson House," he announced. "Miss Duryea, will you kindly take the witness chair?"

Miss Fanny modestly rose from her seat in the rear of the room and came forward. No one could for an instant doubt the honesty and impartiality of this devoted middle-aged woman, who, surrendering the comforts and luxuries of her home uptown, to which she was well entitled by reason of her age, was devoting herself to a life of service. If a woman like that, thought the jury, was ready to vouch for Mock's good character, why waste any more time on the case? But Miss Fanny was to do much more.

"Miss Duryea," began Mr. Tutt, "do you know the defendant?"

"Yes, sir; I do," she answered quietly.

"How long have you known him?"

"Six years."

"Do you know his reputation for peace and quiet?"

Miss Fanny half turned to the judge and then faced the jury.

"He is one of the sweetest characters I have ever known," she replied, "and I have known many—"

"Oh, I object!" interrupted O'Brien. "This lady can't be permitted to testify to anything like that. She must be limited by the rules of evidence!"

With one movement the jury wheeled and glared at him.

"I guess this lady can say anything she wants!" declared the foreman chivalrously.

O'Brien sank down in his seat. What was the use!

"Go on, please," gently directed Mr. Tutt.

"As I was saying, Mr. Mock Hen is a very remarkable character," responded Miss Fanny. "He is devoted to the mission and to us at the settlement. I would trust him absolutely in regard to anything."

"Thank you," said Mr. Tutt, smiling benignly. "Now, Miss Duryea, did you see Mock Hen at any time on May sixth?"

Instantly the jury showed renewed signs of life. May sixth? That was the day of the murder.

"I did," answered Miss Fanny with conviction. "He came to see me at Hudson House in the afternoon and while we were talking the clock struck four."

The jury looked at one another and nodded.

"Well, I guess that settles this case!" announced the foreman.

"Right!" echoed a talesman behind him.

"I object!" wailed O'Brien. "This is entirely improper!"

"Quite so!" ruled Judge Bender sternly. "The jurymen will not make any remarks!"

"But, Your Honor—we all agreed at recess there was nothing in this case," announced the foreman. "And now this testimony simply clinches it. Why go on with it!"

"That's so!" ejaculated another. "Let us go, judge."

Mr. Tutt's weather-beaten face was wreathed in smiles.

"Easy, gentlemen!" he cautioned.

The judge shrugged his shoulders, frowning.

"This is very irregular!" he said.

Then he beckoned to O'Brien, and the two whispered together for several minutes, while all over the court room on the part of those who had sat there so patiently for sixty-nine days there was a prolonged and ecstatic wriggling of arms and legs. Instinctively they all knew that the farce was over.

The assistant district attorney returned to his table but did not sit down.

"If the court please," he said rather wearily, "the last witness, Miss Duryea, by her testimony, which I personally am quite ready to accept as truthful, has interjected a reasonable doubt of the defendant's guilt into what otherwise would in my opinion be a case for the jury. If Mock Hen was at Hudson House, nearly two miles from Pell and Doyers Streets, at four o'clock on the afternoon of the homicide, manifestly he could not have been one of the assailants of Quong Lee at one minute past four. I am satisfied that no jury would convict—"

"Not on your life!" snorted the foreman airily.

"—and I therefore," went on O'Brien, "ask the court to direct an acquittal."

In the grand banquet hall of the Shanghai and Hongkong American-Chinese Restaurant, Ephraim Tutt, draped in a blue mandarin coat with a tasseled pill box rakishly upon his old gray head, sat beside Wong Get and Buddha at the head of a long table surrounded by three hundred Chinamen in their richest robes of ceremony. Lanterns of party-colored glass swaying from gilded rafters shed a strange light upon a silken cloth marvelously embroidered and laden with the choicest of Oriental dishes, and upon the pale faces of the Hip Leong Tong—the Mocks, the Wongs, the Fongs and the rest—both those who had testified and also those who had merely been ready if duty called to do so, all of whom were now gathered together to pay honor where they felt honor to be due; namely, at the shrine of Mr. Tutt.

Deft Chinese waiters slipped silently from guest to guest with bird's-nest soup, guy soo main, mon goo guy pan, shark's fin and lung har made of shreds of lobster, water chestnuts, rice and the succulent shoots of the young bamboo, while three musicians in a corner sang through their nose a syncopated dirge. "Wang-ang-ang-ang!" it rose and fell as Mr. Tutt, his neck encircled by a wreath of lilies, essayed to manipulate a pair of long black chop-sticks. "Wang-ang-ang-ang!" About him were golden limes, ginger in syrup, litchi nuts, pickled leeches.

Then he felt a touch upon his shoulder and turned to see Fong Hen, the slipper, standing beside him. It was the duty of Fong Hen to drink with each guest—more than that, to drink as much as each guest drank! He gravely offered Mr. Tutt a pony of rice brandy. It was not the fiery lava he had anticipated, but a soft, caressing nectar, fragrant as if distilled from celestial flowers of the time of Confucius. The slipper swallowed the same quantity at a gulp, bowed and passed along.

Mr. Tutt vainly tried to grasp the fact that he was in his own native city of New York. Long sleeves covered with red and purple dragons hid his arms and hands, and below the collar a smooth tight surface of silk across his breast made access to his pockets quite impossible. In one of them reposed twenty one-thousand-dollar bills—his fee for securing the acquittal of Mock Hen. Yes, he was in New York!

The monotonous wail of the instruments, the pungency of the incense, the subdued light, the humid breath of the roses carried the thoughts of Mr. Tutt far away. Before him, against the blue misty sunshine, rose the yellow temples of Peking. He could hear the faint tintinnabulation of bells. He was wandering in a garden fragrant with jasmine blossoms and adorned with ancient graven stones and carved gilt statues. The air was sweet. Mr. Tutt was very tired....

"Let him sleep!" nodded Buddha, deftly conveying to his wrinkled lips a delicate morsel of guy yemg dun. "Let him sleep! He has earned his sleep. He has saved our face!"

It was after midnight when Mr. Tutt, heavily laden with princely gifts of ivory and jade and boxes of priceless teas, emerged from the side door of the Shanghai and Hongkong American-Chinese Restaurant. The sky was brilliant with stars and the sidewalks of Doyers and Pell Streets were crowded with pedestrians. Near by a lantern-bedecked rubber-neck wagon was in process of unloading its cargo of seekers after the curious and unwholesome. On either side of him walked Wong Get and Buddha. They had hardly reached the corner when five shots echoed in quick succession above the noise of the traffic and the crowd turned with one accord and rushed in the direction from which he had just come.

Mr. Tutt, startled, stopped and looked back. Courteously also stopped Wong Get and Buddha. A throng was fast gathering in front of the Shanghai and Hongkong Restaurant.

Then Murtha appeared, shouldering his way roughly through the mob. Catching sight of Mr. Tutt, he paused long enough to whisper hoarsely in the lawyer's ear: "Well, they got Mock Hen! Five bullets in him! But if they were going to, why in hell couldn't they have done it three months ago?"