As Hagen took his seat, there was a spontaneous outbreak of applause from the gallery.
“Hear, hear, there will be no such demonstration in this courtroom!” Judge Craig said with an angry bang of his gavel.
The court grew quiet; then all turned their attention to Asa Jackson. Like Hagen before him, Jackson stood to address the jury. Considerably shorter than Hagen, and with eyes made almost buglike by his thick glasses, Jackson made less of an impression by his appearance.
“The law states that before you can find someone guilty, you must be convinced beyond the shadow of a doubt that he is guilty. You will hear the witnesses say that there were three men shooting into the bank. Since three men were shooting, it impossible to say that Kirby Jensen was the one who actually murdered Mr. Clark.”
Jackson sat back down and Smoke leaned over toward him.
“The way you presented that, it made it sound as if I was there,” Smoke complained.
“It’s going to be hard to say you weren’t there, with the evidence that the prosecutor has,” Jackson said. “Our best hope is to sew doubt as to who actually did the shooting.”
“Prosecution, you may call your first witness,” Judge Craig said.
“Prosecution calls Mr. Tucker Patterson,” Hagen said.
Tucker Patterson walked to the front of the room and put his hand on the Bible.
“Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?” Turnball asked.
“I do.”
“The witness may be seated,” Judge Craig said.
Hagen approached the witness chair. “For the record, Mr. Patterson, what is your employment?”
“I am the head teller of the Bank of Etna,” Patterson replied.
“Hell, Tucker, you’re the only teller,” someone shouted from the gallery, and everyone laughed.
Judge Craig slammed his gavel down, then, with an angry scowl, addressed the gallery. “If there is one more outbreak, I will hold the person responsible in contempt of court. You will be fined, and you will spend time in jail.”
Patterson looked at Hagen. “Mr. Barnes is right,” he said, identifying the person who spoke up. “There is only one teller, but Mr. Clark had assured me that, if we were ever to hire a second teller, I would be the chief teller. Therefore my position, technically, was that of head teller.”
“Mr. Patterson, were you in the bank on the sixth instant?”
“I was.”
“Tell the court what happened that day.”
“Mr. Clark and I were both behind the teller’s cage, counting the money to make certain that the books were balanced, when two men came in.”
“Can you describe the two men?”
“One of the men was wearing a shirt like that one,” Patterson said, pointing to the shirt that was still lying on the prosecutor’s table.
“Let the record show that the witness identified the prosecution exhibit as the shirt worn by one of the robbers.”
“Object, Your Honor,” Jackson said. “The witness said it was a shirt like that one. He didn’t say he was wearing that one.”
“I stand corrected, Your Honor,” Hagen said. “Mr. Patterson, you said there were two men?”
“Yes. The other man was wearing a white shirt.”
“I object!” Smoke called out. “He is describing the clothes, not the men.”
“Mr. Smoke, if your attorney cares to make that objection, he may do so,” Judge Craig said. “But as the defendant, you are not allowed to object.”
Smoke turned to Jackson. “Are you going to object?” he asked.
Jackson nodded. “I object,” he said. “Mr. Jensen is correct. The witness is describing clothing, and not the men themselves.”
“Sustained,” the judge said.
“Mr. Patterson, could you see the men’s faces?” Hagen asked.
“No, they were covered by hoods,” Patterson replied.
“So, by looking at the defendant, you cannot say, as a matter of actual fact, that he was not one of the robbers, can you?”
“I object,” Jackson said. “He just said that the men’s faces were covered.”
“Listen to the question, Counselor,” Judge Craig said. “He asked if he could positively say that Jensen was not one of the robbers.”
“Oh,” Jackson said.
“Objection is overruled.”
“So, since you cannot positively say that he was not one of the robbers, it is possible that he was one of them?”
“Yes.”
Hagen continued with Patterson, eliciting from him the details as to how Clark got a gun, then ran to the front door to challenge the bank robbers as they were leaving.
“I told him not to go, that there were too many of them,” Patterson said. “But Mr. Clark was a brave man, and he wouldn’t hear of it. He ran to the front door and started to shoot, but got shot instead.”
“Thank you, Mr. Patterson. Your witness,” Hagen said as he sat down.
Jackson stood, but didn’t approach the witness. “Did you see who actually did the shooting?”
“No, I was inside the bank. I saw Mr. Clark get shot, but from where I was, I couldn’t see who shot him.”
“So even though you saw Mr. Jensen wearing this shirt in your bank, once the robbers got outside, you have no idea who did the actual shooting?”
“I object!” Smoke said loudly.
“You are objecting your own lawyer?” Judge Craig asked.
“Your Honor, I ask the court’s permission to act as my own lawyer.”
“Are you saying you wish to dismiss counsel?”
“Yes, Your Honor, that is exactly what I am saying.”
“Court is going to stand in recess for half an hour,” Judge Craig said. “Marshal Turnball, clear the courtroom of everyone except you and the defendant.”
“Yes, sir,” Turnball said. “All right, people, you heard the judge. Everyone out.”
“Your Honor, if there is going to be a sidebar, I request permission to remain,” Hagen said.
“Permission denied,” Craig said. “You will leave with everyone else.”
“What about me?” Jackson asked. “Since the defendant is my client, shouldn’t I be present?”
“You heard the defendant, Mr. Jackson,” Craig said. “You have just been dismissed.”
It took less than a minute for everyone to leave. Then Turnball, who had been standing at the door watching them leave, came back to the front of the room.
“They are all gone, Judge,” he said.
Craig removed his glasses and cleaned them again. Watching him, Smoke realized that it was more of a nervous action than because the glasses actually needed cleaning.
“Mr. Jensen, there is a saying in the legal profession that a person who defends himself has a fool for a client.” He put the glasses back on, again looping them very carefully over each ear, one at a time. “Do you know what I am saying to you?”
“Yes, sir, I believe I do,” Smoke replied.
Judge Craig pointed at Smoke, and began shaking his finger. “Disabuse yourself of any idea that I will go easier on you because of your inexperience or lack of knowledge of the law. Regardless of your competence or incompetence, this case will be tried under the rules of law. Do you understand that?”
“Yes, sir, I do.”
“Very well. Mr. Jackson is dismissed, and I hereby declare you sui juris.”
“I beg your pardon?”
“Sui juris,” the judge repeated. “It is a Latin term meaning that you have the capacity to act for yourself in legal proceedings. You are hereby acting as your own counsel.”
“Thank you, Your Honor,” Smoke said.
“Marshal Turnball, you may reassemble the court.”
“All right, our take come to ten thousand dollars,” Dooley said after he counted out the money. “That’s a thousand dollars apiece for each of you.”
“Wait a minute,” Yancey said. “You think they can
’t none of us cipher? I make that over sixteen hundred dollars for each of us.”
Dooley shook his head. “I set it up, I take half,” he said.
“That ain’t right,” Yancey protested. “We all of us took our chances when we robbed that bank. We should all of us get the same amount of money.”
“Tell him, Curt,” Dooley said.
“Maybe you ain’t never done nothin’ like this before,” Curt said to Yancey. “But the one that gets the job set up is always the one that gets the most money.”
“There didn’t nobody say nothin’ like that when I got asked to join up,” Yancey said. “And I don’t intend to just stand by and get cheated like this.”
“Look at it this way,” Curt said. “You got a thousand dollars now, which you didn’t have before. You know how long you’d have to cowboy to make a thousand dollars?”
Yancey shook his head. “I don’t care, that ain’t the point. I don’t intend to be cheated like that.”
While Yancey was talking, Dooley pulled his pistol. Yancey didn’t notice it until he heard the click of the hammer being pulled back.
“Then I reckon you can’t be reasoned with, can you?”
“What? What are you doin’ with that gun?”
“Go, Yancey,” Dooley said.
“Go? Go where?”
“Anywhere,” Dooley said. “I don’t want you around anymore.”
“All right,” Yancey said. “It ain’t right, but give me my money and I’ll be on my way.”
Dooley shook his head. “No money for you.”
“What do you mean no money for me?”
“One thousand dollars wasn’t enough for you, so you get none. Now, get out of here.”
Yancey glared at Dooley; then he started toward his horse.
Dooley pulled the trigger, the gun roared, and Yancey’s horse dropped in its tracks.
“What the hell did you just do?” Yancey shouted. “You son of a bitch! You just killed my horse!”
“You’re lucky I didn’t kill you,” Dooley said. “Curt, get his gun.”
Curt walked up to Yancey and pulled his pistol from his holster.
“All right, Yancey, start walkin’,” Dooley said, making a motion with his pistol.
“This ain’t right,” Yancey said.
“I thought we already had that settled,” Dooley said. “I decide what’s right.”
Dooley shot again and the bullet hit the ground right next to Yancey’s feet, then ricocheted through the valley, whining as it did so. Even before the echo died, Yancey was running back down the trail, chased by Dooley’s evil laughter.
“Dooley,” Fargo said. “Leavin’ him out here without a horse or a gun . . . he could die.”
“Yeah, he could,” Dooley said. “Now, each one of you boys is two hundred dollars richer. That is, unless you don’t want the money.”
“Hell, I want the money,” Ford said.
“Me too,” Curt said.
“I’ll take my share,” Trace said.
“Fargo, that just leaves you,” Dooley said. Dooley had not yet put his pistol back in its holster and a little wisp of smoke curled upward from the end of the barrel. The implication was obvious to Fargo.
“Yancey was a troublemaker,” Fargo said. “You was right to do what you done.”
“I thought you might see things my way,” Dooley said as he counted out the money.
Chapter Eleven
As the trial continued, the prosecution called witness after witness to the stand to testify as to what they saw on the morning of the robbery. In every case the testimony was the same. They had seen two men leaving the bank; then they’d heard Clark shout out the warning that the bank had been robbed. They talked about seeing and hearing the exchange of gunshots, and seeing Mr. Clark go down.
“Did all of the robbers shoot at Mr. Clark?” Hagen asked a witness.
“No, sir, just the two who come out of the bank, and the one that was holdin’ the horses in front of the bank. There was three more men across the street, waitin’ in front of Sikes Leather Goods, but they didn’t shoot at Mr. Clark.”
“How do you know that those three men were involved with the robbery?” Hagen asked.
“’Cause they all left town together, and all of ’em was shootin’ and hollerin’ as they rode away.”
“I see,” Hagen said. “But as far as who actually shot Mr. Clark, it was the two men, who were wearing red and black plaid shirts, and the one man who was wearing a white shirt. Is that what you are saying?”
“Yes, sir.”
“From your point of observation, could you tell which one of the three actually killed Mr. Clark?”
“No, sir, I could not.”
“In fact,” Hagen continued, “if I told you that there were four bullets in Mr. Clark’s body, would you be able to believe that all three may have had a hand in killing him?”
“Yes, I would say so.”
“Mr. Jensen,” Judge Craig said quickly. “Counsel is leading the witness. Are you not going to object?”
“I’m not going to object, Your Honor, because I don’t care which of the three, or if all three, killed him. I wasn’t one of the three.”
“Very well, I will disallow it myself. Jury will disregard counsel’s last comment. You may continue, Mr. Hagen.”
“I’m through with this witness, Your Honor.”
“Did you see me in the street in front of the bank that day?” Smoke asked.
“Yeah, I seen you. I seen you in that shirt,” the witness replied.
“I’ve no doubt but that you saw the shirt,” Smoke said. “But I want you to look at my face closely. Is this the face of the man you saw in front of the bank?”
“No, you ain’t the one that was standin’ in front of the bank,” the witness said. “But I done told you, and everyone has done told you. The faces of the two that come out of the bank was covered by masks.”
“Thank you, that’s all,” Smoke said.
“But I seen that shirt you was wearin’,” the witness added.
“Thank you, that is all,” Smoke repeated.
Billy Frakes was Hagen’s next witness.
Frakes was pointed out as having had a unique perspective on the robbery, because he had gone down to try and sell a pair of boots to three men who were waiting across the street from the bank, and who subsequently turned out to be in collusion with the robbers.
As the prosecutor had done with all the other witnesses, Hagen held up the red and black plaid shirt.
“Have you ever seen this shirt before, Billy?”
“Yes, sir.”
“Where did you see it?”
Frakes pointed to Smoke. “He was a’wearin’ it when we found him,” he said.
“Let the record show that the witness has pointed out that the defendant was wearing this very shirt when he was captured,” Hagen said.
“Had you ever seen the shirt before?”
“Yes, sir.”
“When and where did you see it before?”
“I seen it on the sixth of this month,” Frakes said. “I seen it when the two men who was wearin’ them come ridin’ into town. Then, I seen it again when the two bank robbers come runnin’ out of the bank.”
“Wait a minute,” Hagen said in sudden interest. “Are you saying that you saw him when he rode into town?”
“Yes, sir.”
“And this was before the robbery?”
“Yes, sir.”
“So, you saw him without the mask?”
“Maybe,” Frakes said.
“Maybe? What do you mean, maybe?”
“I seen their faces, but I didn’t look at them that long. I couldn’t tell you if this was one of the men or not.”
“But you do remember the shirt, right?”
“Yes, sir.”
“You saw this shirt on one of the men who came into town?”
“Yes, sir.”
“And you saw it again when you were with
the posse as they arrested him?”
“Yes, sir.”
“No further questions. Your witness, Mr. Jensen.”
“Did you get a good look at the man who was standing in front of the bank, the man wearing a shirt just like that one?” Smoke asked.
“Yes, sir, I got a good look at him.”
“Am I that man?”
“No, sir, you ain’t that man.”
Smoke turned away as if to sit down. Then, getting an idea, he stopped and turned back toward the witness.
“You said you were going to try and sell a pair of boots to one of the robbers?”
“Yeah, I was. See, I make boots and I figured if I could sell a few pair, well, maybe Mr. Sikes would carry ’em in his store,” Frakes said. “And I thought maybe one of them might buy my boots since I seen ’em lookin’ at boots in Sikes’s window.”
“You make boots, do you?”
“Yes, sir.”
“So, you must know quite a bit about boots.”
Frakes smiled. “I know more’n most folks do, I reckon.”
“Do you take notice of the kind of boots people wear?”
“Oh, yes, sir, I’m always lookin’ at folks’ boots.”
“Can you tell me what kind of boots I’m wearing?” Smoke asked. He started to stick his boot out so Frakes could see it, but Frakes waved it off.
“You don’t have to show me,” he said. “I’ve done looked at ’em. Them boots you’re wearin’ is what’s called black cherry brush-off boots. They’re real nice boots, and kind of expensive.”
“Were any of the bank robbers wearing boots like these?” Smoke asked.
“Ha!” Frakes said. “Are you kidding? None of ’em had boots like those.”
“Not even the two men who were wearing the red and black plaid shirts?” Smoke asked.
Frakes shook his head. “No, sir.” He chuckled. “They was wearing old, scruffed-up boots, the kind you can buy anywhere for no more’n two dollars.”
Suddenly, the smile left Frakes’s face, and he looked over at the judge. “That’s right,” he said. “They wasn’t none of ’em wearin’ boots like these here boots.”
“Thank you. No more questions,” Smoke said.
Betrayal of the Mountain Man Page 9
