“Yes sir. The cutbank faces the Little Missouri River from a distance of about a hundred feet at that point, and—”
“That is, it’s about a hundred feet from the bank of the river across a relatively flat or gently sloping patch of ground to the foot of the steep slope?”
“Yes sir, that’s right. There’s some brush along the bank there, but it’s low scrub. Mostly it’s just bare clay along there. The road runs right along the foot of the cutbank, and it’s some feet higher than the high-water mark of the river.”
“How far is it, approximately, to the opposite bank of the river?”
“About three hundred yards.”
“Go on, please.”
“Yes sir. Up the road toward town about fifty yards there’s some trees. Under those trees the ground tends to be moist and kind of soft, and we found evidence of quite a lot of horse traffic—”
“By ‘evidence’ you mean tracks?”
“Yes sir, horse tracks. And we found the indentations of a pair of boots. Heels and toes, and one place where we had a left heel and a right toe behind one another, suggesting that a person had kneeled down on one knee.”
“In the position one would naturally assume in order to fire a rifle?”
“Objection. Calls for a conclusion on the part of the witness.”
Ted Long said, “Your Honor, Sheriff Harmon certainly must be accepted as a qualified expert on such matters.”
“Mr. Long, I shall not permit the record of this trial to be cluttered with the miscellaneous ramblings and opinions of witnesses. Confine your questions to the facts, please.”
Long was evidently displeased but after a moment he regained his composure and addressed himself to the sheriff. “Did you have occasion to measure these boot tracks and to try to match them to anyone’s boots?”
“We did, sir. They were a perfect fit for the boots worn that day by the Marquis De Morès. And there were particles of that clay on the boots.”
Frank Allen stood up. “May the Court please. Defense willingly stipulates that defendant Vallombrosa, Marquis de Morès, was at that place at that time. No one is denying his presence there. The Prosecution is belaboring the issue in a manner prejudicial to the Defense.”
“I agree,” said Judge Francis. “Mr. Long, you’ve more than made your point. Please get on to another line of questioning.”
“Yes, Your Honor. Sheriff, let’s return to the cutbank and the dead horses. You were about to describe that scene in more detail.”
“Well, the marks left by the three horses indicated they’d dropped athwart the road, three abreast more or less, forming a sort of bulwark facing the trees, with the cutbank behind them. Most of the bullets we found in the carcasses indicated, by the angle of entry and the position of the wounds, that they had been fired into the horses after they were knocked down.”
“That would be consistent, would it not, with the idea that a considerable amount of gunfire was being aimed at the three innocent hunters—”
“Objection!”
“Sustained.”
“Sheriff, the voluminous gunfire you’ve described—it penetrated the horses and, above and behind them, the cutbank?”
“Yes sir, that’s right.”
“From what angles did this gunfire arrive?”
“From at least two different angles. It came from the direction of the trees where we found the boot prints, and it came from off to the right, that is, the direction of the river.”
“Now, what was the caliber of the slugs fired from the latter direction?”
“Those were the .38 caliber slugs, sir.”
“And the bullets that came from the direction of the trees?”
“That’s kind of hard to say, Mr. Long.”
“Why?”
“Because those bullets mostly disintegrated into pieces.”
“You mean they were smashed beyond recognition?”
“No sir. Not smashed. Exploded into pieces.”
“And there was no way to make a determination as to their caliber?”
“We were able to make a rough judgment, by measuring the curvature of some of the fragments and imputing a radius. They certainly were not small-caliber bullets. They were at least .38 or .40 caliber, and possibly as large as .44 or .45.”
“And these exploded bullets were found both in the horse carcasses and in the cutbank?”
“Yes sir.”
“And how about the unexploded .38 caliber slugs that had been fired from the direction of the river?”
“Most of them were in the cutbank up behind the horses. Two or three were found in the horses.”
“What conclusion can we draw from that distribution of bullets, Sheriff?”
“The man who fired the . 38 caliber bullets was shooting from the opposite side of the river.”
“How did you determine that?”
“Well, if the shooter had been on the near bank he’d probably have dropped a lot more ammunition into those horses, assuming he was shooting at people barricaded behind the dead horses. On the other hand, if the shooter was across the river laid up in the brush there, then he wouldn’t have been able to see much of the horses, because the brush on the near side of the river would have obstructed the lower part of his view, and all he’d have been able to see would be over the tops of the dead horses.”
Edward Allen said, “Your Honor, the Defense has listened with great patience to this litany of guesswork, and we feel obliged to object to the extensive expression of opinion on the part of the Prosecution’s witness.”
Ted Long said angrily, “May the Court please, the witness is merely testifying to the only possible interpretation that can be put upon the physical evidence he has described.”
Judge Francis studied both lawyers. After a moment he said, “I’m going to sustain the objection, Mr. Long, for reasons stated earlier. We’re interested in discovering facts here. It’s up to the jury to render the opinions. The questions and answers will be stricken from the record, regarding Sheriff Harmon’s opinions about where certain bullets may have been fired from.”
Ted Long said in pained exasperation, “Your Honor!”
“Proceed, Mr. Long.”
“I must register objection to this high-handed and arbitrary exclusion of vital evidence!”
“Mr. Long, you may proceed or you may depart.”
“Very well,” Long said through gritted teeth. He returned to his witness but the momentum clearly had gone out of his charge. “Sheriff, I take it you examined the weapons, if any, possessed by the Decedent and his companions?”
“In two cases I did. Two of the men, both injured, surrendered themselves immediately after the incident to the custody of Mr. Ferris, who kept possession of their weapons until my brother and I arrived on the train. In the third case I was unable to locate the man, Mr. Reuter, so I was unable to investigate the condition of his weapons, or indeed, to determine whether he had any.”
“In the two cases that you did examine, what did you find?”
“Mr. Luffsey possessed a rifle and a revolver. Both were fully loaded, and neither appeared to have been fired.”
There were rumblings and growls throughout the audience. Pack sat up straight. He was thinking: That’s not the way I heard it. But he hadn’t actually seen Luffsey’s weapons …
“And Mr. O’Donnell?”
“He had a rifle. It had been fired once, with the empty cartridge case still in the chamber. The magazine was fully loaded.”
The crowd’s voice became a roar. Opposing men yelled at each other. Bedlam broke loose.
Throughout the Trial’s early testimony the Marquis’s main show of emotion was one of arrogant disdain, but he must have been chagrined to hear some of the reports, even though it ought to have been obvious to any dolt that crucial portions of the evidence must have been manufactured as part of the overzealous effort by Sheriff Harmon and District Attorney Long to bring about the Marquis’s downfall by framing him: whether the Marquis was innocent or not, any right-thinking observer could see his enemies were creating evidence right and left to bolster their case.