request that he fix the date of the Special Grand Jury by
which Clyde might be indicted, this was set for August fifth.
And then that body sitting, it was no least trouble for Mason
to have Clyde indicted.
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906
And thereafter the best that Belknap and Jephson could do
was to appear before Oberwaltzer, a Democrat, who owed
his appointment to a previous governor, to argue for a
change of venue, on the ground that by no possible stretch
of the imagination could any twelve men residing in
Cataraqui County be found who, owing to the public and
private statements of Mason, were not already vitally
opposed to Clyde and so convinced of his guilt that before
ever such a jury could be addressed by a defense, he
would be convicted.
“But where are you going then?” inquired Justice
Oberwaltzer, who was impartial enough. “The same
material has been published everywhere.”
“But, your Honor, this crime which the district attorney here
has been so busy in magnifying——” (a long and heated
objection on the part of Mason).
“But we contend just the same,” continued Belknap, “that
the public has been unduly stirred and deluded. You can’t
get twelve men now who will try this man fairly.”
“What nonsense!” exclaimed Mason, angrily. “Mere
twaddle! Why, the newspapers themselves have gathered
and published more evidence than I have. It’s the publicly
discovered facts in this case that have aroused prejudice, if
any has been aroused. But no more than would be aroused
anywhere, I maintain. Besides, if this case is to be
transferred to a distant county when the majority of the
witnesses are right here, this county is going to be saddled
with an enormous expense, which it cannot afford and
which the facts do not warrant.”
Justice Oberwaltzer, who was of a sober and moral turn, a
slow and meticulous man inclined to favor conservative
procedure in all things, was inclined to agree. And after five
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907
days, in which he did not more than muse idly upon the
matter, he decided to deny the motion. If he were wrong,
there was the Appellate Division to which the defense could
resort. As for stays, having fixed the date of the trial for
October fifteenth (ample time, as he judged, for the defense
to prepare its case), he adjourned for the remainder of the
summer to his cottage on Blue Mountain Lake, where both
the prosecution and the defense, should any knotty or
locally insoluble legal complication arise, would be able to
find him and have his personal attention.
But with the entry of the Messrs. Belknap and Jephson into
the case, Mason found it advisable to redouble his efforts to
make positive, in so far as it were possible, the conviction
of Clyde. He feared the young Jephson as much as he did
Belknap. And for that reason, taking with him Burton
Burleigh and Earl Newcomb, he now revisited Lycurgus,
where among other things he was able to discover (1)
where Clyde had purchased the camera; (2) that three days
before his departure for Big Bittern he had said to Mrs.
Peyton that he was thinking of taking his camera with him
and that he must get some films for it; (3) that there was a
haberdasher by the name of Orrin Short who had known
Clyde well and that but four months before Clyde had
applied to him for advice in connection with a factory hand’s
pregnant wife—also (and this in great confidence to Burton
Burleigh, who had unearthed him) that he had
recommended to Clyde a certain Dr. Glenn, near
Gloversville; (4) Dr. Glenn himself being sought and
pictures of Clyde and Roberta being submitted, he was able
to identify Roberta, although not Clyde, and to describe the
state of mind in which she had approached him, as well as
the story she had told—a story which in no way incriminated
Clyde or herself, and which, therefore, Mason decided
might best be ignored, for the present, anyhow.
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908
And (5), via these same enthusiastic efforts, there rose to
the surface the particular hat salesman in Utica who had
sold Clyde the hat. For Burton Burleigh being interviewed
while in Utica, and his picture published along with one of
Clyde, this salesman chanced to see it and recalling him at
once made haste to communicate with Mason, with the
result that his testimony, properly typewritten and sworn to,
was carried away by Mason.
And, in addition, the country girl who had been on the
steamer “Cygnus” and who had noticed Clyde, wrote
Mason that she remembered him wearing a straw hat, also
his leaving the boat at Sharon, a bit of evidence which most
fully confirmed that of the captain of the boat and caused
Mason to feel that Providence or Fate was working with
him. And last, but most important of all to him, there came a
communication from a woman residing in Bedford,
Pennsylvania, who announced that during the week of July
third to tenth, she and her husband had been camping on
the east shore of Big Bittern, near the southern end of the
lake. And while rowing on the lake on the afternoon of July
eighth, at about six o’clock, she had heard a cry which
sounded like that of a woman or girl in distress—a plaintive,
mournful cry. It was very faint and had seemed to come
from beyond the island which was to the south and west of
the bay in which they were fishing.
Mason now proposed to remain absolutely silent regarding
this information, and that about the camera and films and
the data regarding Clyde’s offense in Kansas City, until
nearer the day of trial, or during the trial itself, when it would
be impossible for the defense to attempt either to refute or
ameliorate it in any way.
As for Belknap and Jephson, apart from drilling Clyde in the
matter of his general denial based on his change of heart
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909
once he had arrived at Grass Lake, and the explanation of
the two hats and the bag, they could not see that there was
much to do. True, there was the suit thrown in Fourth Lake
near the Cranstons’, but after much trolling on the part of a
seemingly casual fisherman, that was brought up, cleaned
and pressed, and now hung in a locked closet in the
Belknap and Jephson office. Also, there was the camera at
Big Bittern, dived for but never found by them—a
circumstance which led Jephson to conclude that Mason
must have it, and so caused him to decide that he would
refer to it at the earliest possible opportunity at the trial. But
as for Clyde striking her with it, even accidentally, well, it
was decided at that time at least, to contend that he had not
—although after exhuming Roberta’s body at Biltz it had
been found that the marks on her face, even at this date,
did correspond in some degree to the size and shape of the
camera.
For, in the first place, they were exceedingly dubious of
Clyde as a witness. Would he or would he not, in telling of
how it all happened, be sufficiently direct or forceful and
sincere to convince any jury that he had so struck her
without intending to strike her? For on that, marks or no
marks, would depend whether the jury was going to believe
him. And if it did not believe that he struck her accidentally,
then a verdict of guilty, of course.
And so they prepared to await the coming of the trial, only
working betimes and in so far as they dared, to obtain
testimony or evidence as to Clyde’s previous good
character, but being blocked to a degree by the fact that in
Lycurgus, while pretending to be a model youth outwardly,
he had privately been conducting himself otherwise, and
that in Kansas City his first commercial efforts had resulted
in such a scandal.
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910
However, one of the most difficult matters in connection
with Clyde and his incarceration here, as Belknap and
Jephson as well as the prosecution saw it, was the fact that
thus far not one single member of his own or his uncle’s
family had come forward to champion him. And to no one
save Belknap and Jephson had he admitted where his
parents were. Yet would it not be necessary, as both
Belknap and Jephson argued from time to time, if any case
at all were to be made out for him, to have his mother or
father, or at least a sister or a brother, come forward to say
a good word for him? Otherwise, Clyde might appear to be
a pariah, one who had been from the first a drifter and a
waster and was now purposely being avoided by all who
knew him.
For this reason, at their conference with Darrah Brook-hart