By Advice of Counsel | Page 9

way to get his feet out
of the flypaper. What a mess for a few pieces of rotten beef!
"You understand what is being done, do you?" inquired the keen-faced
judge sharply. "You understand this means that unless you give bail
you will have to stay in jail until the grand jury dismisses the case or
finds an indictment against you?"
Underneath the cornice of the judge's dais Hogan patted his arm, and
Tony, glancing for encouragement at the big friendly face above him,
whispered "Yes."
So Tony went to the Tombs and was lodged in a cell next door to Soko
the Monk, who had nearly beaten a Chinaman to death with a pair of
brass knuckles, from whom he learned much that was exciting if not
edifying.
Now, as Delany was wont to say for years thereafter, that damn
Mathusek case just went bad on him. He had believed that in the
comparative secrecy of the inquisitorial chamber he could easily
pretend that he had originally made an honest mistake and was no
longer positive of the defendant's identity, in which case when the
grand jury threw out the case nobody would ever know the reason and
no chickens would come home to roost on him.
But when the cop visited the office of Deputy Assistant District
Attorney Caput Magnus the next morning, to inform him that this here
window-breaking case was a Messina, he found Mr. Nathan Asche
already solidly there present, engaged in advising Mr. Magnus most
emphatically to the exact contrary. Indeed the attorney was rhetorical in
his insistence that this destruction of the property of law-abiding
taxpayers must stop.

Mr. Asche was not a party to be trifled with. He was a rectangular
person whom nothing could budge, and his very rectangularity bespoke
his stubborn rectitude. His shoulders were massive and square, his chin
and mouth were square, his burnsides were square cut, and he had a
square head and wore a square-topped derby. He looked like the family
portrait of Uncle Amos Hardscrabble. When he sat down he remained
until he had said his say. It was a misfortunate meeting for Delany, for
Asche nailed him upon the spot and made him repeat to Caput Magnus
the story of how he had seen Tony throw the brick and then, for some
fool reason, not being satisfied to let it go at that, he insisted on calling
in a stenographer and having Delany swear to the yarn in affidavit form!
This entirely spoiled any chance the policeman might otherwise have
had of changing his testimony. He now had no choice but to go on and
swear the case through before the grand jury--which he did.
Even so, that distinguished body of twenty-three representative citizens
was not disposed to take the matter very seriously. Having heard what
Delany had to say--and he made it good and strong under the
circumstances--several of them remarked disgustedly that they did not
understand why the district attorney saw fit to waste their valuable time
with trivial cases of that sort. Boys would play ball and boys would
throw balls round; if not balls, then stones. They were about to dismiss
by an almost unanimous vote, when the case went bad again. The
foreman, a distinguished person in braided broadcloth, rose and
announced that he was very much interested to learn their views upon
this subject as he was the president of a casualty company, and he
wished them to understand that thousands--if not hundreds of
thousands--of dollars' worth of plate-glass windows were wantonly
broken by young toughs, every year, for which his and other insurance
companies had to recoup the owners. In fact, he alleged heatedly,
window breaking was a sign of peculiar viciousness. Incipient
criminals usually started their infamous careers that way; you could
read that in any book on penology. An example ought to be made. He'd
bet this feller who threw the brick was a gangster.
So his twenty-two fellow grand jurymen politely permitted him to
recall Officer Delany and ask him: "Say, officer, isn't it a fact--just tell

us frankly now--if this feller Mathusek isn't a gangster?"
"Sure, he's a gangster. He was blowin' about it to me after I arrested
him," swore Delany without hesitation.
The foreman swept the circle with a triumphant eye.
"What'd I tell you?" he demanded. "All in favor of indicting said Tony
Mathusek for malicious destruction of property signify in the usual
manner. Cont'riminded? It's a vote. Ring the bell, Simmons, and bring
on the next case."
So Tony was indicted by the People of the State of New York for a
felony, and a learned judge of the General Sessions set his bail at
fifteen hundred dollars; and Hogan had his victim where he wanted him
and where he could