ARTHUR.T Stories ------The Lost Stradivarius --III---Page 18

From this letter it was fairly inferable that although the defendant

might be innocent of the precise crime with which he was charged, he
was, nevertheless, upon his own evidence, guilty of having "faked" a
cheap Nicholas violin into a Strad., and of having offered it for sale
for the exorbitant price of five thousand dollars. This luckless piece
of evidence undoubtedly influenced the jury to convict him.

It will be recalled that ten witnesses for the prosecution had sworn that the violin offered in evidence at the trial was _not_ the one produced in the police court, as against the defendant's five who asserted that it _was_.

The testimony was all highly technical and confusing, and the jury

probably relied more upon their general impressions of the credibility

of the witnesses than upon anything else. It is likely that most of the

testimony, on both sides, in regard to the identity of the violin was

honestly given, for the question was one upon which a genuine divergence of opinion was easily possible.

Eller's letter from Chicago so affected the jury that they disregarded

his testimony and reverted to that of August Gemunder, to whose evidence attention has already been called, and who swore that it was "The Duke of Cambridge" which Flechter had tried to sell to Durden. Alas for the
fallibility of even the most honest of witnesses!

The case was ably argued by both sides, and every phase of this curious
tangle of evidence given its due consideration. The defense very
properly laid stress upon the fact that it would have been a ridiculous
performance for Flechter to write the "Cave Dweller" letter and state
therein that he was "a violin dealer or maker," thus pointing,
unmistakably, to himself, and to further state that for one in his
position to dispose of it would be difficult and dangerous. The only
explanation for the "Cave Dweller" letter which they could offer,
however, was that some one interested in procuring Flechter's downfall
had caused it to be sent for that purpose. This might either be a
business rival or some one connected with the prosecution.

While Palmer was summing up for the defense he noticed Assistant

District Attorney Allen smiling and dramatically turning upon him, he

shouted: "This is no laughing matter, Colonel Allen. It is a very

serious matter whether this man is to be allowed to-night to go home and kiss his little ones, or whether he is to be cast into jail because you
used your brains to concoct a theory against him."

Another consideration, which seemed deserving of weight, was that if

Flechter did steal "The Duke of Cambridge" it would have been a piece of incredible folly and carelessness upon his part to leave it in such an
exposed place as the safe of his store, where it could be found by the police or shown by the office-boy to any one who called.

Yet the positive identification of August Gemunder and the fatal
disclosures of Eller, coupled with the vehement insistence of the
prosecution, led the jury to resolve what doubt they had in the case
against the prisoner, and, after deliberating eight or ten hours and
being out all night, they returned a verdict of guilty. Flechter broke
down and declared bitterly that he was the victim of a conspiracy upon
the part of his enemies, assisted by a too credulous prosecuting
attorney. Everybody admitted that it was an extraordinary case, but the
press was consistent in its clamor against Flechter, and opinion
generally was that he had been rightly convicted. On May 22nd he was
sentenced to the penitentiary for twelve months, but, after being
incarcerated in the Tombs for three weeks, he secured a certificate of
reasonable doubt and a stay until his conviction could be reviewed on
appeal. Then he gave bail and was released. But he had been in jail!
Flechter will never forget that! And, for the time being at least, his
reputation was gone, his family disgraced, and his business ruined.

A calm reading of the record of the trial suggests that the case

abounded in doubts more or less reasonable, and that the Court might
well have taken it from the jury on that account. But a printed page of
questions and answers carries with it no more than a suggestion of the
value of testimony the real significance of which lies in the manner in
which it is given, the tone of the voice and the flash of the eye.

Once again Flechter sat at his desk in the window behind the great gilded fiddle. To him, as to its owner, the great Stradivarius had
brought only sorrow. But for him the world had no pity. Surely the strains of this wonderful instrument must have had a "dying fall" even when played by the loving hand of old Jean Bott.

At last, after several years, in 1899, the case came up in the Appellate
Division of the Supreme Court. Flechter had been led to believe that his
conviction would undoubtedly be reversed and a new trial ordered, which
would be tantamount to an acquittal, for it was hardly likely in such an
event that a second trial would be considered advisable upon the same
evidence. But to his great disappointment his conviction was sustained
by a divided court, in which only two of the five justices voted for a
new trial. Again Fortune had averted her face. If only one more judge
had thought the evidence insufficient! The great gilded fiddle seemed to
Flechter an omen of misfortune. Once more he gave bail, this time in
five thousand dollars, and was set at liberty pending his appeal to the

highest court in the State. Once more he took his seat in his office and tried to carry on his business.