"Certainly it does. It's perfectly plain."
"Now, then, it might be—I only say it might be—that one of these brothers wanted to kick the plaintiff last night, and that the other didn't want that humiliating punishment inflicted upon him in that public way and before all those people. Isn't that possible?"
"Of course it is. It's more than possible. I don't believe the blond one would kick anybody. It was the other one that—"
"Silence!" shouted the plaintiff's counsel, and went on with an angry sentence which was lost in the wave of laughter that swept the house.
"That will do, Mr. Wakeman," said Wilson, "you may stand down."
The third witness was called. He had seen the twins kick the plaintiff. Mr. Wilson took the witness.
"Mr. Rogers, you say you saw these accused gentlemen kick the plaintiff?"
"Yes, sir."
"Both of them?"
"Yes, sir."
"Which of them kicked him first?"
"Why—they—they both kicked him at the same time.
"Are you perfectly sure of that?"
"Yes, sir."
"What makes you sure of it?"
"Why, I stood right behind them, and saw them do it."
"How many kicks were delivered?"
"Only one."
"If two men kick, the result should be two kicks, shouldn't it?"
"Why—why yes, as a rule."
"Then what do you think went with the other kick?"
"I—well—the fact is, I wasn't thinking of two being necessary, this time."
"What do you think now?"
"Well, I—I'm sure I don't quite know what to think, but I reckon that one of them did half of the kick and the other one did the other half."
Somebody in the crowd sung out: "It's the first sane thing that any of them has said."
The audience applauded. The judge said: "Silence! or I will clear the court."
Mr. Allen looked pleased, but Wilson did not seem disturbed. He said:
"Mr. Rogers, you have favored us with what you think and what you reckon, but as thinking and reckoning are not evidence, I will now give you a chance to come out with something positive, one way or the other, and shall require you to produce it. I will ask the accused to stand up and repeat the phenomenal kick of last night." The twins stood up. "Now, Mr. Rogers, please stand behind them."
A Voice: "No, stand in front!" (Laughter. Silenced by the court.) Another Voice: "No, give Tommy another highst!" (Laughter. Sharply rebuked by the court.)
"Now, then, Mr. Rogers, two kicks shall be delivered, one after the other, and I give you my word that at least one of the two shall be delivered by one of the twins alone, without the slightest assistance from his brother. Watch sharply, for you have got to render a decision without any if's and ands it." Rogers bent himself behind the twins with his palms just above his knees, in the modern attitude of the catcher at a baseball match, and riveted his eyes on the pair of legs in front of him.
"Are you ready, Mr. Rogers?"
"Ready sir."
The kick was launched.
"Have you got that one classified, Mr. Rogers?"
"Let me study a minute, sir."
"Take as much time as you please. Let me know when you are ready."
For as much as a minute Rogers pondered, with all eyes and a breathless interest fastened upon him. Then he gave the word: "Ready, sir."
"Kick!"
The kick that followed was an exact duplicate of the first one.
"Now, then, Mr. Rogers, one of those kicks was an individual kick, not a mutual one. You will now state positively which was the mutual one."
The witness said, with a crestfallen look:
"I've got to give it up. There ain't any man in the world that could tell t'other from which, sir."
"Do you still assert that last night's kick was a mutual kick?"
"Indeed, I don't, sir."
"That will do, Mr. Rogers. If my brother Allen desires to address the court, your honor, very well; but as far as I am concerned I am ready to let the case be at once delivered into the hands of this intelligent jury without comment."
Mr. Justice Robinson had been in office only two months, and in that short time had not had many cases to try, of course. He had no knowledge of laws and courts except what he had picked up since he came into office. He was a sore trouble to the lawyers, for his rulings were pretty eccentric sometimes, and he stood by them with Roman simplicity and fortitude; but the people were well satisfied with him, for they saw that his intentions were always right, that he was entirely impartial, and that he usually made up in good sense what he lacked in technique, so to speak. He now perceived that there was likely to be a miscarriage of justice here, and he rose to the occasion.
"Wait a moment, gentlemen," he said, "it is plain that an assault has been committed it is plain to anybody; but the way things are going, the guilty will certainly escape conviction. I can not allow this. Now—-"
"But, your honor!" said Wilson, interrupting him, earnestly but respectfully, "you are deciding the case yourself, whereas the jury—"
"Never mind the jury, Mr. Wilson; the jury will have a chance when there is a reasonable doubt for them to take hold of—which there isn't, so far. There is no doubt whatever that an assault has been committed. The attempt to show that both of the accused committed it has failed. Are they both to escape justice on that account? Not in this court, if I can prevent it. It appears to have been a mistake to bring the charge against them as a corporation; each should have been charged in his capacity as an individual, and—"
"But, your honor!" said Wilson, "in fairness to my clients I must insist that inasmuch as the prosecution did not separate the—"
"No wrong will be done your clients, sir—they will be protected; also the public and the offended laws. Mr. Allen, you will amend your pleadings, and put one of the accused on trial at a time."
Wilson broke in: "But, your honor! this is wholly unprecedented! To imperil an accused person by arbitrarily altering and widening the charge against him in order to compass his conviction when the charge as originally brought promises to fail to convict, is a thing unheard of before."
"Unheard of where?"
"In the courts of this or any other state."
The judge said with dignity: "I am not acquainted with the customs of other courts, and am not concerned to know what they are. I am responsible for this court, and I cannot conscientiously allow my judgment to be warped and my judicial liberty hampered by trying to conform to the caprices of other courts, be they—"
"But, your honor, the oldest and highest courts in Europe—"
"This court is not run on the European plan, Mr. Wilson; it is not run on any plan but its own. It has a plan of its own; and that plan is, to find justice for both State and accused, no matter what happens to be practice and custom in Europe or anywhere else." (Great applause.) "Silence! It has not been the custom of this court to imitate other courts; it has not been the custom of this court to take shelter behind the decisions of other courts, and we will not begin now. We will do the best we can by the light that God has given us, and while this court continues to have His approval, it will remain indifferent to what other organizations may think of it." (Applause.) "Gentlemen, I must have order!—quiet yourselves! Mr. Allen, you will now proceed against the prisoners one at a time. Go on with the case."
Allen was not at his ease. However, after whispering a moment with his client and with one or two other people, he rose and said:
"Your honor, I find it to be reported and believed that the accused are able to act independently in many ways, but that this independence does not extend to their legs, authority over their legs being vested exclusively in the one brother during a specific term of days, and then passing to the other brother for a like term, and so on, by regular alternation. I could call witnesses who would prove that the accused had revealed to them the existence of this extraordinary fact, and had also made known which of them was in possession of the legs yesterday—and this would, of course, indicate where the guilt of the assault belongs—but as this would be mere hearsay evidence, these revelations not having been made under oath—"