to be irrelevancy to the question at issue. But as has often been pointed out by the Senate, the character and moral features generally of an accused are to be given the greatest weight in determining the question of intent.'— Two.'
'But he spoke so badly that we could not understand him,' said Nekhludoff with still greater surprise.
'He is a very foolish fellow and, of course, could say nothing sensible,' Fanirin said, laughing. 'However, it is a ground for appeal. 'Third. In his closing words the justiciary, contrary to the positive requirements of section 1, chapter 801 of the Code of Criminal Procedure, failed to explain to the jury of what legal elements the theory of guilt consisted; nor did he tell them that if they found that Maslova gave the poison to Smelkoff, but without intent to kill, they had the power to discharge her.' This is the principal point.'
'We could have known that. That was our mistake.'
'And finally: 'Fourth,'' continued the lawyer. ''The answer of the jury to the question of Maslova's guilt was made in a form which was obviously contradictory. Maslova was charged with intentional poisoning of Smelkoff, and with robbery as a motive, while the jury, in their answer, denied her guilt of the robbery, from which it was evident that they intended to acquit her of the intent to kill. Their failure to do so was due to the incomplete charge of the justiciary. Such an answer, therefore, demanded the application of chapters 816 and 808 of the Code. That is to say, it was the duty of the presiding justice to explain to the jury their mistake and refer the question of the guilt of the accused to them for further deliberation.''
'Why, then, did he not do it?'
'That is just what I would like to know myself,' said Fanirin, laughing.
'So the Senate will correct the mistake.'
'That will depend on who will be sitting there when the case is heard.'
'Well, and then we continue: 'Under these circumstances the court erred in imposing on Maslova punishment, and the application to her of section 3, chapter 771 of the Code was a serious violation of the basic principles of the criminal law. Wherefore applicant demands, etc., etc., be revised in accordance with chs. 909, 910, s. 2, 912 and 928 of the Code, etc., etc., and referring the case back for a new trial to a different part of the same court.' Well, now, everything that could be done was done. But I will be frank with you; the probabilities of success are slight. However, everything depends on who will be sitting in the Senate. If you know any one among them, bestir yourself.'
'Yes, I know some.'
'Then you must hasten, for they will soon be gone on their vacation, and won't return for three months. In case of failure, the only recourse will be to petition the Czar. I shall be at your service also in that contingency.'
'I thank you. And now as to your honorarium?'
'My clerk will hand you the petition and also my bill.'
'One more question I would like to ask you. The prosecutor gave me a pass for the prison, but I was told there that it was necessary to obtain the Governor's permission to visit the prison on other than visitors' days. Is it necessary?'
'I think so. But he is away, and the lieutenant is in his place.'
'You mean Maslenikoff?'
'Yes.'
'I know him,' said Nekhludoff, rising to leave.
At that moment the lawyer's wife, an extremely ugly, pug-nosed and bony woman, rushed into the room. Not only was her attire unusually original—she was fairly loaded down with plush and silk things, bright yellow and green—but her oily hair was done up in curls, and she triumphantly rushed into the reception-room, accompanied by a tall, smiling man with an earth-colored face, in a cut-away coat with silk facings and a white tie. This was an author. He knew Nekhludoff by sight.
'Anatal,' she said, opening the door, 'come here. Semion Ivanovitch promised to read to us his poem, and you must read something from Garshin.'
Nekhludoff was preparing to go, but the lawyer's wife whispered something to her husband and turned to him:
'I know you, Prince, and consider an introduction unnecessary. Won't you please attend our literary breakfast? It will be very interesting. Anatal is an excellent reader.'
'You see what variety of duties I have,' said Anatal, smiling and pointing at his wife, thereby expressing the impossibility of resisting that bewitching person.
With a sad and grave face and with the greatest politeness, Nekhludoff thanked the lawyer's wife for the invitation, pleaded other engagements and went into the reception-room.
'What faces he makes!' the lawyer's wife said of him, when he had left the room.
In the reception-room the clerk handed him the petition, and in answer to Nekhludoff's question about the honorarium, said that Anatal Semionovitch set his fee at a thousand rubles; that he really does not take such cases, but does it for Nekhludoff.
'And who is to sign the petition?' asked Nekhludoff.
'The prisoner may sign it herself, and if that be troublesome, she may empower Anatal Semionovitch.'
'No, I will go to the prison and obtain her signature,' said Nekhludoff, rejoicing at the opportunity of seeing Katiousha before the appointed day.
CHAPTER XLIV.
At the usual hour the jailers' whistles were heard in the corridors of the prison; with a rattling of irons the doors of the corridors and cells opened, and the patter of bare feet and the clatter of prison shoes resounded through the corridors; the men and women prisoners washed and dressed, and after going through the morning inspection, proceeded to brew their tea.
During the tea-drinking animated conversations were going on among the prisoners in the cells and corridors. Two prisoners were to be flogged that day. One of these was a fairly intelligent young clerk who, in a fit of jealousy, had killed his mistress. He was loved by his fellow-prisoners for his cheerfulness, liberality and firmness in dealing with the authorities. He knew the laws and demanded compliance with them. Three weeks ago the warden struck one of the chambermen for spilling some soup on his new uniform. The clerk, Vasilieff, took the chamberman's part, saying that there was no law permitting an official to beat prisoners. 'I will show you the law,' said the warden, reviling Vasilieff. The latter answered in kind. The warden was about to strike him, but Vasilieff caught hold of his hands and held him fast for about three minutes and then pushed him out of the door. The warden complained and the inspector ordered Vasilieff placed in solitary confinement.
These cells for solitary confinement were dark closets iron-bolted from the outside. In these cold, damp cells, devoid of bed, table or chair, the prisoners were obliged to sit or lie on the dirty floor. The rats, of which there was a large number, crawled all over them, and were so bold that they devoured the prisoner's bread and often attacked the prisoners themselves when they remained motionless. Vasilieff resisted, and with the aid of two other prisoners, tore himself loose from the jailers, but they were finally overcome and all three were thrust into cells. It was reported to the Governor that something like a mutiny occurred, and in answer came a document ordering that the two chief culprits, Vasilieff and the tramp Don'tremember (an application given to some tramps and jail birds who, to conceal the identity, with characteristic ingenuity and stupidity make that answer to all questions relating to their names), be given thirty lashes each.
The flogging was to take place in the women's reception-room.
This was known to all the inmates of the prison since the previous evening, and every one was talking of the coming flogging.
Korableva, Miss Dandy, Theodosia and Maslova, flushed and animated, for they had already partaken of vodka which Maslova now had in abundance, were sitting in their corner, talking of the same thing.
'Why, he has not misbehaved,' Korableva said of Vasilieff, biting off a piece of sugar with her strong teeth. 'He only sided with a comrade. Fighting, you know, is not allowed nowadays.'
'They say he is a fine fellow,' added Theodosia, who was sitting on a log on which stood a tea-pot.
'If you were to tell him, Michaelovna,' the watch-woman said to Maslova, meaning Nekhludoff.
'I will. He will do anything for me,' Maslova answered, smiling and shaking her head.
'It will be too late; they are going to fetch him now,' said Theodosia. 'It is awful,' she added, sighing.
