The court replied: “I shall assume the facts to be as stated by you unless the counsel on the other side dissent from such a statement. Considering the facts to be as stated, your objection raises a novel question. Have you any authorities?”
“I do not know that the Supreme Court of this State has passed upon this question. I do not think it has, but my objection finds support in the well-established rule in this country, that a public prosecutor acts in a quasi-judicial capacity. His object, like that of the court, should be simple justice. The District Attorney represents the public interest which can never be promoted by the conviction of the innocent. As the District Attorney himself could not accept a fee or reward from private parties, so, I urge, counsel employed to assist him must be equally disinterested.”
“The court considers the question an interesting one, but the practice in the past has been against your contention. I will overrule your objection, and give you an exception. Mr. Clerk, call a jury!”[1]
Then came the wearisome technicalities of the empaneling of a jury, with challenges for cause and peremptory challenges, until nearly the entire panel of fifty jurors was exhausted.
In this way two days were spent, with a result that when counsel on both sides expressed themselves as satisfied with the jury, every one in the court room doubted it. As the sheriff confided to the clerk, it was an even bet that the first twelve men drawn were safer for both sides than the twelve men who finally stood with uplifted hands and were 450 again sworn by the clerk. Harry King, who had never witnessed a trial in his life, began to grow interested in these details quite aside from his own part therein. He watched the clerk shaking the box, wondering why he did so, until he saw the slips of paper being drawn forth one by one from the small aperture on the top, and listened while the name written on each was called aloud. Some of the names were familiar to him, and it seemed as if he must turn about and speak to the men who responded to their roll call, saying “here” as each rose in his place behind him. But he resisted the impulse, never turning his head, and only glancing curiously at each man as he took his seat in the jury box at the order of the judge.
During all these proceedings the Elder sat looking straight before him, glancing at the prisoner only when obliged to do so, and coldly as an outsider might do. The trial was taking more time than he had thought possible, and he saw no reason for such lengthy technicalities and the delay in calling the witnesses. His air was worn and weary.
The prisoner, sitting beside his counsel, had taken less and less interest in the proceedings, and the crowds, who had at first filled the court room, had also lost interest and had drifted off about their own affairs until the real business of the taking of testimony should come on, till, at the close of the second day, the court room was almost empty of visitors. The prisoner was glad to see them go. So many familiar faces, faces from whom he might reasonably expect a smile, or a handshake, were it possible, or at the very least a nod of recognition, all with their eyes fixed on him, in a blank gaze of aloofness or speculation. He felt 451 as if his soul must have been in some way separated from his body, and then returned to it to find all the world gazing at the place where his soul should be without seeing that it had returned and was craving their intelligent support. The whole situation seemed to him cruelly impossible,––a sort of insane delusion. Only one face never failed him, that of Bertrand Ballard, who sat where he might now and then meet his eye, and who never left the court room while the case was on.
When the time arrived for the introduction of the witnesses, the court room again filled up; but he no longer looked for faces he knew. He held himself sternly aloof, as if he feared his reason might leave him if he continued to strive against those baffling eyes, who knew him and did not know that they knew him, but who looked at him as if trying to penetrate a mask when he wore no mask. Occasionally his counsel turned to him for brief consultation, in which his part consisted generally of a nod or a shake of the head as the case might be.
While the District Attorney was addressing the jury, Milton Hibbard moved forward and took the District Attorney’s seat.