MR. COGBURN: I was, yes sir.
MR. BARLOW: Did something occur on that day out of the ordinary?
MR. COGBURN: Yes sir.
MR. BARLOW: Please describe in your own words what that occurrence was.
MR. COGBURN: Yes sir. Well, not long after dinner on that day we was headed back for Fort Smith from the Creek Nation and was about four miles west of Webbers Falls.
MR. BARLOW: One moment. Who was with you?
MR. COGBURN: There was four other deputy marshals and me. We had a wagonload of prisoners and was headed back for Fort Smith. Seven prisoners. About four mile west of Webbers Falls that Creek boy named Will come riding up in a lather. He had news. He said that morning he was taking some eggs over to Tom Spotted-Gourd and his wife at their place on the Canadian River. When he got there he found the woman out in the yard with the back of her head shot off and the old man inside on the floor with a shotgun wound in his breast.
MR. GOUDY: An objection.
JUDGE PARKER: Confine your testimony to what you saw, Mr. Cogburn.
MR. COGBURN: Yes sir. Well, Deputy Marshal Potter and me rode on down to Spotted-Gourd’s place, with the wagon to come on behind us. Deputy Marshal Schmidt stayed with the wagon. When we got to the place we found everything as the boy Will had represented. The woman was out in the yard dead with blowflies on her head and the old man was inside with his breast blowed open by a scatter-gun and his feet burned. He was still alive but he just was. Wind was whistling in and out of the bloody hole. He said about four o’clock that morning them two Wharton boys had rode up there drunk—
MR. GOUDY: An objection.
MR. BARLOW: This is a dying declaration, your honor.
JUDGE PARKER: Overruled. Proceed, Mr. Cogburn.
MR. COGBURN: He said them two Wharton boys, Odus and C. C. by name, had rode up there drunk and throwed down on him with a double barrel shotgun and said, “Tell us where your money is, old man.” He would not tell them and they lit some pine knots and held them to his feet and he told them it was in a fruit jar under a gray rock at one corner of the smokehouse. Said he had over four hundred dollars in banknotes in it. Said his wife was crying and taking on all this time and begging for mercy. Said she took off out the door and Odus run to the door and shot her. Said when he raised up off the floor where he was laying Odus turned and shot him. Then they left.
MR. BARLOW: What happened next?
MR. COGBURN: He died on us. Passed away in considerable pain.
MR. BARLOW: Mr. Spotted-Gourd, that is.
MR. COGBURN: Yes sir.
MR. BARLOW: What did you and Marshal Potter do then?
MR. COGBURN: We went out to the smokehouse and that rock had been moved and that jar was gone.
MR. GOUDY: An objection.
JUDGE PARKER: The witness will keep his speculations to himself.
MR. BARLOW: You found a flat gray rock at the corner of the smokehouse with a hollowed-out space under it?
MR. GOUDY: If the prosecutor is going to give evidence I suggest that he be sworn.
JUDGE PARKER: Mr. Barlow, that is not proper examination.
MR. BARLOW: I am sorry, your honor. Marshal Cogburn, what did you find, if anything, at the corner of the smokehouse?
MR. COGBURN: We found a gray rock with a hole right by it.
MR. BARLOW: What was in the hole?
MR. COGBURN: Nothing. No jar or nothing,
MR. BARLOW. What did you do next?
MR. COGBURN: We waited on the wagon to come. When it got there we had a talk amongst ourselves as to who would ride after the Whartons. Potter and me had had dealings with them boys before so we went. It was about a two-hour ride up near where the North Fork strikes the Canadian, on a branch that turns into the Canadian. We got there not long before sundown.
MR. BARLOW: And what did you find?
MR. COGBURN: I had my glass and we spotted the two boys and their old daddy, Aaron Wharton by name, standing down there on the creek bank with some hogs, five or six hogs. They had killed a shoat and was butchering it. It was swinging from a limb and they had built a fire under a wash pot for scalding water.
We tied up our horses about a quarter of a mile down the creek and slipped along on foot through the brush so we could get the drop on them. When we showed I told the old man, Aaron Wharton, that we was U. S. marshals and we needed to talk to his boys. He picked up a ax and commenced to cussing us and blackguarding this court.
MR. BARLOW: What did you do?
MR. COGBURN: I started backing away from the ax and tried to talk some sense to him. While this was going on C. C. Wharton edged over by the wash pot behind that steam and picked up a shotgun that was laying up against a saw-log. Potter seen him but it was too late. Before he could get off a shot C. C. Wharton pulled down on him with one barrel and then turned to do the same for me with the other barrel. I shot him and when the old man swung the ax I shot him. Odus lit out for the creek and I shot him. Aaron Wharton and C. C. Wharton was dead when they hit the ground. Odus Wharton was just winged.
MR. BARLOW: Then what happened?
MR. COGBURN: Well, it was all over. I dragged Odus Wharton over to a blackjack tree and cuffed his arms and legs around it with him setting down. I tended to Potter’s wound with my handkerchief as best I could. He was in a bad way. I went up to the shack and Aaron Wharton’s squaw was there but she would not talk. I searched the premises and found a quart jar under some stove wood that had banknotes in it to the tune of four hundred and twenty dollars.
MR. BARLOW: What happened to Marshal Potter?
MR. COGBURN: He died in this city six days later of septic fever. Leaves a wife and six babies.
MR. GOUDY: An objection.
JUDGE PARKER: Strike the comment.
MR. BARLOW: What became of Odus Wharton?
MR. COGBURN: There he sets.
MR. BARLOW: You may ask, Mr. Goudy.
MR. GOUDY: Thank you, Mr. Barlow. How long did you say you have been a deputy marshal, Mr. Cogburn?
MR. COGBURN: Going on four years.
MR. GOUDY: How many men have you shot in that time?
MR. BARLOW: An objection.
MR. GOUDY: There is more to this shooting than meets the eye, your honor. I am trying to establish the bias of the witness.
JUDGE PARKER: The objection is overruled.
MR. GOUDY: How many, Mr. Cogburn?
MR. COGBURN: I never shot nobody I didn’t have to.
MR. GOUDY: That was not the question. How many?
MR. COGBURN: Shot or killed?
MR. GOUDY: Let us restrict it to “killed” so that we may have a manageable figure. How many people have you killed since you became a marshal for this court?
MR. COGBURN: Around twelve or fifteen, stopping men in flight and defending myself.
MR. GOUDY: Around twelve or fifteen. So many that you cannot keep a precise count. Remember that you are under oath. I have examined the records and a more accurate figure is readily available. Come now, how many?
MR. COGBURN: I believe them two Whartons made twenty-three.
MR. GOUDY: I felt sure it would come to you with a little effort. Now let us see. Twenty-three dead men in four years. That comes to about six men a year.
MR. COGBURN: It is dangerous work.
MR. GOUDY: So it would seem. And yet how much more dangerous for those luckless individuals who find themselves being arrested by you. How many members of this one family, the Wharton family, have you killed?
MR. BARLOW: Your honor, I think counsel should be advised that the marshal is not the defendant in this action.
MR. GOUDY: Your honor, my client and his deceased father and brother were provoked into a gun battle by this man Cogburn. Last spring he shot and killed Aaron Wharton’s oldest son and on November second he fairly leaped at the chance to massacre the rest of the family. I will prove that. This assassin Cogburn has too long been clothed with the authority of an honorable court. The only way I can prove my client’s innocence is by bringing out the facts of these two related shootings, together with a searching review of Cogburn’s methods. All the other principals, including Marshal Potter, are conveniently dead—