“Let the record show that Mr. Singleton pointed to the defendant.”
Gilmore walked over to the bar where there lay two pistols. He picked both of them up and brought them over to show to Jeff.
“Do you recognize these pistols?”
“Yes, sir. That there’n is mine,” Jeff said, pointing to one of them. “The other’n belongs—uh, belonged to Burt.”
“Thank you. Let the record show that the witness identified the two pistols, one as belonging to him and the other belonging to the decedent, Burt Rawlings.” Gilmore turned to Dempster. “Your witness.”
Dempster did not get up from his chair. “Was it daylight or dark when you saw the men who shot your friend?”
“It was daylight,” Jeff said.
“And you are sure that the defendant was one of the two men you saw?”
“Yes.”
“Could it be that perhaps the sun was shining in your eyes so that your vision was restricted?”
“No.”
“You say that with such resoluteness. How can you be so sure?”
“Because it was mid-mornin’, and this Clem feller, and the other’n, the one that’s tied to the door down to Sikes’ Hardware, the first time I seen ’em, they was standin’ west of me. Burt, he never seen ’em at all, ’cause they was still hidin’ behind the rocks when they shot him.”
“No further questions,” Dempster said, realizing that every question he asked was just making the case worse for his client.
“Witness is excused,” Gilmore said. “Prosecution calls Matt Jensen.”
Like Clem before him, Matt was sworn in, then he took his seat.
“Mr. Jensen, you are the one who brought in Zeke Holloway’s body, are you not?”
“I am.”
“And you killed him?”
“I did.”
“You also brought in Clem and these two pistols. Where did you get the pistols?”
“Clem and Zeke had them on their persons.”
“What were Clem and Zeke doing when you encountered them?”
“They were herding stolen cattle.”
“How do you know the cattle were stolen?”
“They had the Frewen brand,” Matt said.
“Objection, Your Honor!” Dempster said.
“What is the objection?” Frewen asked.
“I object to the fact that the stolen cattle had the Frewen brand.”
“I don’t understand the objection. Are you saying they did not have the Frewen brand?”
“No, sir, I’m sure they did have the Frewen brand.”
“Then what is the objection?”
“The objection, Your Honor, is that if the stolen cattle had your brand that means they belonged to you.”
“Now that, Mr. Dempster, is a brilliant deduction,” Frewen said sarcastically. “Yes, the cattle with my brand do belong to me.”
“And that is exactly my point, Your Honor. I suggest that since you have a vested interest in the outcome of this trial that you might be incapable of rendering a fair and honest verdict, and I ask that you recuse yourself.”
“Are you challenging my honesty, sir?”
“No, I wouldn’t say that. It’s just that ...”
“Just what?”
“Just that ... well, sir, I will be filing a protest on that as well,” Dempster said, knowing that he was losing the battle.
“Please feel free to do so,” Frewen said. “Do you have any questions of this witness?”
“Yes,” Dempster said. “Mr. Jensen, you openly admit here, in this court, that you shot and killed Zeke Holloway?”
“Yes.”
“Why did you shoot him?”
“Because he tried to shoot me.”
“And why is it that while you shot Mr. Holloway, you did not shoot the defendant?”
“Because he didn’t try to shoot me,” Matt answered, easily.
“Thank you, no further questions. Defense calls the defendant to the stand.”
Sullenly, Clem took the stand.
“Did you kill Burt Rawlings?”
“No, it wasn’t me, it was Zeke that done the shootin’.”
“No further questions,” Dempster said.
“Redirect?” Frewen asked.
Gilmore didn’t approach, but asked from his chair. “How do you know it was Zeke Holloway who killed Burt Rawlings?”
“Because I seen him do it.”
“Were you also shooting?”
“Yeah, but it was Zeke who done the actual killing.”
“No further questions.”
“Closing argument, Mr. Dempster?” Frewen offered.
“I continue to protest your authority to conduct this trial. And I especially protest your authority to order capital punishment,” Dempster said.
“Noted,” Frewen said without further discussion.
“And, you heard my client. He says he didn’t do it. He says that the actual killing was done by Zeke Holloway. I submit that since both were firing, it is impossible, even for an eyewitness, to testify as to which gun the bullet came from that killed Burt Rawlings. And, since our system of law requires guilt be established beyond any reasonable doubt, then the jury will have no recourse but to acquit.”
Dempster sat down and Clem looked at him.
“That’s the best you can do?” he asked.
“Under the circumstances, yes. That is the best I can do,” Dempster said.
“Summation, Mr. Prosecutor?” Frewen asked.
“My summation is simple enough, Your Honor. Mr. Singleton saw the defendant kill Burt Rawlings. Mr. Jensen recovered the pistols and the cows the defendant and Zeke Holloway stole, which establishes motive and means. And Mr. Clem No Last Name claims that he was present during the shooting, indeed that he was shooting as well, though he says that it was a bullet from Holloway’s gun, and not his, that killed Mr. Rawlings. His own testimony is prima facie par delictum actus reus, unimpeachable evidence that the crime was committed and that he was there. That means, Your Honor, that he bears equal responsibility. Under the law, if he is participating in the shooting, he is guilty of murder whether any of his bullets struck the victim or not.”
“Thank you. The jury may now retire to consider the verdict,” Frewen said.
“Mr. Frewen,” the jury foreman said. “There’s no need for us to retire to consider the verdict. We can talk it over right here, amongst ourselves. Won’t take more’n a minute or two.”
“Very well. Make your decision.”
The twelve men gathered together for a moment to discuss it. Though they spoke too quietly for anyone else to hear, it was obvious that there was little or no disagreement among them. Then they retook their seats.
“We got the verdict now,” the foreman said.
“What is the verdict?”
“We find the son of a bitch guiltier than hell.”
There was laughter and applause from the gallery.
“Marshal Drew, bring the defendant before me again, please.”
Again, Marshal Drew prodded Clem up to stand before Frewen.
In keeping with his English heritage, Moreton Frewen put a black cloth called a “sentence cap” over his head. This was the custom in the English courts and worn only when a death sentence is about to be passed.
“Clem, No Last Name, this court sentences you to hang tomorrow morning at ten o’clock.”
“Your Honor, we can’t build a proper gallows that fast,” Marshal Drew said.
“How proper does it have to be?” Frewen said. “All we need is something that will elevate him from the ground far enough to get the job done. I’m sure there are tree limbs, beams, pylons, appendages, bracings, or stanchions extant in this town that could serve the purpose. Find one.”
“Yes, sir.”
“This court is adjourned.”
“Come along, Clem,” Marshal Drew said, reaching down to take Clem by the arm.
“Wait a minute! What about all them protests and things? Ain’t we goin’ to wait to see what happens with them?”
“The judge has sentenced you to hang tomorrow, and that is exactly what you are going to do,” Marshal Drew said.
“It ain’t right,” Clem said. Then, as he was led out of the saloon, he shouted back over his shoulder. “It ain’t right, damn you all to hell!”