By Advice of Counsel

"Why did you waive examination?"

Hogan suddenly felt a lump swelling in his pharynx. What in hell was it all about?

"I—er—there was no use in fighting the case there. I hoped the grand jury would throw it out," he stammered.

"Did anybody ask you to waive examination?"

The swelling in Hogan's fat neck grew larger. Suppose McGurk or Delany were trying to put something over on him!

"No! Certainly not!" he replied unconvincingly. He didn't want to make the wrong answer if he could help it.

"You have an—associate, have you not? A Mr. Simpkins?"

"Yes, Your Honor." Hogan was pale now and little beads were gathering over his eyebrows.

"Where is he?"

"Downstairs in the magistrate's court."

"Officer," ordered the judge, "send for Mr. Simpkins. We will suspend until he can get here."

Then His Honor occupied himself with some papers, leaving Hogan standing alone at the bar trying to work out what it all meant. He began to wish he had never touched the damn case. Everybody in the courtroom seemed to be looking at him and whispering. He was most uncomfortable. Suppose that crooked cop had welshed on him! At the same instant in the back of the room a similar thought flashed through the mind of Delany. Suppose Hogan should welsh on him! Coincidentally both scoundrels turned sick at heart. Then came to each the simultaneous realization that neither could gain anything by giving the other away, and that the only thing possible for either was to stand pat. No, they must hang together or assuredly hang separately. Then the door opened and a tall officer entered, followed by a very nervous Mr. Joey Simpkins.

"Come up here!" directed the judge. "You are Mr. Hogan's assistant, are you not?"

"Yes, sir!" quavered the anxious Simpkins.

"How much money have you taken from Mrs. Mathusek?"

"Four hundred and thirty-five dollars."

"For what?" sharply.

"For protecting her son."

"Where? How?"

"Why—from his arrest to the present time—and for his defense here in General Sessions."

"Have either you or Mr. Hogan done anything as yet—except to waive examination in the police court?"

Mr. Simpkins turned hastily to Mr. Hogan, who realized that things were going badly.

"Your Honor," he interposed thickly, "this money was an agreed fee for my services as counsel. This examination seems to me somewhat uncalled for and unfair."

"Call Tony Mathusek to the bar!" suddenly ordered the judge.

It was a dangerous play, but Hogan decided to bluff it through.

"In view of the fact that I have not received my fee I shall refuse to appear for the defendant!" he announced brazenly.

"Indeed!" retorted the judge with sarcasm. "Then I will assign Mr. Ephraim Tutt to the defense. You two gentlemen will please sit down—but not leave the courtroom. We may need you."

At that moment, just as the defendant was led to the bar, Mr. Tutt emerged from behind the jury box and took his stand at Tony's side. Nothing much to look at before, the boy was less so now, with the prison pallor on his sunken little face. There was something about the thin neck, the half-open mouth and the gaunt, blinking, hollow eyes that suggested those of a helpless fledgling.

"Impanel a jury!" continued the judge, and Mr. Tutt conducted Tony inside the rail and sat down beside him at the table reserved for the defendant.

"It's all right, Tony!" he whispered. "The frame-up isn't on you this time, my lad."

Cowering in the back of the room Delany tried to hide himself among the spectators. Some devilish thing had gone wrong. He hadn't heard all that had passed between the judge and Hogan, but he had caught enough to perceive that the whole case had gone blooey.

Judge Watkins was wise! He was going after Hogan just as old Tutt would go after him, Delany. There was a singing in his head and the blood smarted in his eyes. He'd better beat it! Half bent over he started sneaking for the door.

"Who is that man trying to go out?" shouted the judge in terrifying tones that shook Delany to the ankles. Hastily he tried to sit down.

"Bring that man to the bar!"

Half blind with fear Delany attempted to make a show of bravado and swagger to the rail.

"What is your name?"

"Delany. Officer attached to the Second Precinct."

"What were you leaving the room for?"

Delany could not answer. His wits were befogged, his throat numb. He simply stared vacuously at Judge Watkins, his lips vibrating with fear.

"Sit down. No; take the stand!" cried Judge Watkins. "I'll try this case myself."

As if his foot were already attached to a ball and chain Delany dragged himself up—up—hundreds of feet up, it seemed—to the witness chair. As if from a mountain side he saw dim forms moving into the jury box, heard the judge and Mr. Tutt exchanging meaningless remarks. The faces before him grinned and gibbered at him like a horde of monkeys. They had got him at last—all for a few pieces of rotten beef! That lean, hungry wolfhound would tear his tongue out by the roots if he even opened his mouth; claw wide open his vitals. And old Tutt was fixing him with the eye of a basilisk and slowly turning him to stone. Somebody sure had welshed! He had once been in a side show at Coney Island where the room simulated the motion of an ocean steamer. The courtroom began to do the same—slanting this way and that and spinning obliquely round and round. Through the swirl of its gyrations he could see old Tutt's vulture eyes, growing bigger, fiercer, more sinister every instant. It was all up with him! It was an execution, and the crowd down below were thirsting for his blood, waiting to tear him to bits!

"You saw this boy throw a brick through Mr. Froelich's window, didn't you?" coaxed Judge Watkins insinuatingly. Delany sensed that the old white fox was trying to trick him—get him for perjury. No! He wouldn't perjure himself again! No! But what could he do? His head swung stupidly, swaying like a dazed bull's. The sweat poured from every pore in his vast bulk. A hoarse noise—like a death rattle—came from his throat. The room dissolved in waves of white and black. Then in a vertigo he toppled forward and pitched headlong to the floor.

Deacon Terry, star reporter for the Tribune, who happened to be there, told his city editor at noon that he had never passed such a pleasant morning. What he saw and heard really constituted, he alleged, a great big full front-page story "in a box"—though it got only four sticks on the eleventh page—being crowded out by the armistice. Why, he said, it was the damnedest thing ever! There had been no evidence against the defendant at all! And after the cop had collapsed Judge Watkins had refused to dismiss the case and directed Mr. Tutt to go on in his own way.

The proceeding had resolved itself into a criminal trial of Hogan and Simpkins. Tony's good character had been established in three minutes, and then half a dozen reputable witnesses had testified that the brick had been thrown by an entirely different boy. Finally, Sussman and his assistant both swore positively that Delany had been in the back of the tobacco shop with his back to the door, holding them up for cigars, when the crash came.

Terry wanted two columns; he almost cried when they cut his great big full-page story to:

SHYSTERS ACCUSED OF EXTORTION

A dramatic scene was enacted at the conclusion of a minor case in Part I of the General Sessions yesterday, when upon the motion of Ephraim Tutt, of the firm of Tutt & Tutt, Judge Simeon Watkins, sitting as a committing magistrate, held for the action of the grand jury Raphael B. Hogan and Joseph P. Simpkins, his assistant, for the crime of extortion, and directed that their case be referred to the Grievance Committee of the County Lawyers' Association for the necessary action for their disbarment.

Earlier in the trial a police officer named Delany, the supposed chief witness for the prosecution, fainted and fell from the witness chair. Upon his recovery he was then and there committed for perjury, in default of ten thousand dollars bail. It is understood that he has signified his willingness to turn state's evidence, but that his offer has not been accepted. So far as can be ascertained this is the first time either Hogan or Simpkins has been accused of a criminal offense. District Attorney Peckham stated that in addition to separate indictments for extortion and perjury he would ask for another, charging all three defendants with the crime of conspiracy to obstruct the due administration of the law.

At the conclusion of the proceedings Judge Watkins permitted a voluntary collection to be taken up by Mr. Tutt on behalf of the accused among the jury, the court attendants and the spectators, which amounted to eleven hundred and eighty-nine dollars. In this connection the judge expressed the opinion that it was unfortunate that persons falsely accused of crime and unjustly imprisoned should have no financial redress other than by a special act of the legislature. The defendant in the case at bar had been locked up for six weeks. Among the contributions was found a new one-thousand-dollar bill.

"Talk about crime!" quoth the Deacon savagely to Charlie Still, of the Sun. "That feckless fool at the city desk committed assault, mayhem and murder on that story of mine!" Then he added pensively: "If I thought old man Tutt would slip me a thousand to soothe my injured feelings I'd go down and retain his firm myself!"