Hand and Ring, by Anna Katharine Green

29. The Opening of the Defence.

Excellent! I smell a device.

Twelfth Night.

LATE that afternoon the prosecution rested. It had made out a case of great strength and seeming impregnability. Favorably as every one was disposed to regard the prisoner, the evidence against him was such that, to quote a man who was pretty free with his opinions in the lobby of the court-room: “Orcutt will have to wake up if he is going to clear his man in face of facts like these.”

The moment, therefore, when this famous lawyer and distinguished advocate rose to open the defence, was one of great interest to more than the immediate actors in the scene. It was felt that hitherto he had rather idled with his case, and curiosity was awake to his future course. Indeed, in the minds of many the counsel for the prisoner was on trial as well as his client.

He rose with more of self-possession, quiet and reserved strength, than could be hoped for, and his look toward the Court and then to the jury tended to gain for him the confidence which up to this moment he seemed to be losing. Never a handsome man or even an imposing one, he had the advantage of always rising to the occasion, and whether pleading with a jury or arguing with opposing counsel, flashed with that unmistakable glitter of keen and ready intellect which, once observed in a man, marks him off from his less gifted fellows and makes him the cynosure of all eyes, however insignificant his height, features, or ordinary expression.

To-day he was even cooler, more brilliant, and more confident in his bearing than usual. Feelings, if feelings he possessed — and we who have seen him at his hearth can have no doubt on this subject — had been set aside when he rose to his feet and turned his face upon the expectant crowd before him. To save his client seemed the one predominating impulse of his soul, and, as he drew himself up to speak, Mr. Byrd, who was watching him with the utmost eagerness and anticipation, felt that, despite appearances, despite evidence, despite probability itself, this man was going to win his case.

“May it please your Honor and Gentlemen of the Jury,” he began, and those who looked at him could not but notice how the prisoner at his side lifted his head at this address, till it seemed as if the words issued from his lips instead of from those of his counsel, “I stand before you to-day not to argue with my learned opponent in reference to the evidence which he has brought out with so much ingenuity. I have a simpler duty than that to perform. I have to show you how, in spite of this evidence, in face of all this accumulated testimony showing the prisoner to have been in possession of both motive and opportunities for committing this crime, he is guiltless of it; that a physical impossibility stands in the way of his being the assailant of the Widow Clemmens, and that to whomever or whatsoever her death may be due, it neither was nor could have been the result of any blow struck by the prisoner’s hand. In other words, we dispute, not the facts which have led the Prosecuting Attorney of this district, and perhaps others also, to infer guilt on the part of the prisoner,”— here Mr. Orcutt cast a significant glance at the bench where the witnesses sat — “but the inference itself. Something besides proof of motive and opportunity must be urged against this man in order to convict him of guilt. Nor is it sufficient to show he was on the scene of murder some time during the fatal morning when Mrs. Clemmens was attacked; you must prove he was there at the time the deadly blow was struck; for it is not with him as with so many against whom circumstantial evidence of guilt is brought. This man, gentlemen, has an answer for those who accuse him of crime — an answer, too, before which all the circumstantial evidence in the world cannot stand. Do you want to know what it is? Give me but a moment’s attention and you shall hear.”

Expectation, which had been rising through this exordium, now stood at fever-point. Byrd and Hickory held their breaths, and even Miss Dare showed feeling through the icy restraint which had hitherto governed her secret anguish and suspense. Mr. Orcutt went on:

“First, however, as I have already said, the prisoner desires it to be understood that he has no intention of disputing the various facts which have been presented before you at this trial. He does not deny that he was in great need of money at the time of his aunt’s death; that he came to Sibley to entreat her to advance to him certain sums he deemed necessary to the furtherance of his plans; that he came secretly and in the roundabout way you describe. Neither does he refuse to allow that his errand was also one of love, that he sought and obtained a private interview with the woman he wished to make his wife, in the place and at the time testified to; that the scraps of conversation which have been sworn to as having passed between them at this interview are true in as far as they go, and that he did place upon the finger of Miss Dare a diamond ring. Also, he admits that she took this ring off immediately upon receiving it, saying she could not accept it, at least not then, and that she entreated him to take it back, which he declined to do, though he cannot say she did not restore it in the manner she declares, for he remembers nothing of the ring after the moment he put her hand aside as she was offering it back to him. The prisoner also allows that he slept in the hut and remained in that especial region of the woods until near noon the next day; but, your Honor and Gentlemen of the Jury, what the prisoner does not allow and will not admit is that he struck the blow which eventually robbed Mrs. Clemmens of her life, and the proof which I propose to bring forward in support of this assertion is this:

“Mrs. Clemmens received the blow which led to her death at some time previously to three minutes past twelve o’clock on Tuesday, September 26th. This the prosecution has already proved. Now, what I propose to show is, that Mrs. Clemmens, however or whenever assailed, was still living and unhurt up to ten minutes before twelve on that same day. A witness, whom you must believe, saw her at that time and conversed with her, proving that the blow by which she came to her death must have occurred after that hour, that is, after ten minutes before noon. But, your Honor and Gentlemen of the Jury, the prosecution has already shown that the prisoner stepped on to the train at Monteith Quarry Station at twenty minutes past one of that same day, and has produced witnesses whose testimony positively proves that the road he took there from Mrs. Clemmens’ house was the same he had traversed in his secret approach to it the day before — viz., the path through the woods; the only path, I may here state, that connects those two points with any thing like directness.

“But, Sirs, what the prosecution has not shown you, and what it now devolves upon me to show, is that this path which the prisoner is allowed to have taken is one which no man could traverse without encountering great difficulties and many hindrances to speed. It is not only a narrow path filled with various encumbrances in the way of brambles and rolling stones, but it is so flanked by an impenetrable undergrowth in some places, and by low, swampy ground in others, that no deviation from its course is possible, while to keep within it and follow its many turns and windings till it finally emerges upon the highway that leads to the Quarry Station would require many more minutes than those which elapsed between the time of the murder and the hour the prisoner made his appearance at the Quarry Station. In other words, I propose to introduce before you as witnesses two gentlemen from New York, both of whom are experts in all feats of pedestrianism, and who, having been over the road themselves, are in position to testify that the time necessary for a man to pass by means of this path from Mrs. Clemmens’ house to the Quarry Station is, by a definite number of minutes, greater than that allowed to the prisoner by the evidence laid before you. If, therefore, you accept the testimony of the prosecution as true, and believe that the prisoner took the train for Buffalo, which he has been said to do, it follows, as a physical impossibility, for him to have been at Mrs. Clemmens’ cottage, or anywhere else except on the road to the station, at the moment when the fatal blow was dealt.

“Your Honor, this is our answer to the terrible charge which has been made against the prisoner; it is simple, but it is effective, and upon it, as upon a rock, we found our defence.”

And with a bow, Mr. Orcutt sat down, and, it being late in the day, the court adjourned.


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