Smoke Jensen, the Beginning

by William W. Johnstone

  “Do you know anything about this, Counselor?” the judge asked Davenport.

  “No, sir.”

  “Do you have anything that would qualify you to bear witness to this case?” the judge asked Kirby.

  “I do, Your Honor.”

  “Get to the bottom of this, Mr. Davenport,” the judge ordered.

  The defense attorney walked to where Kirby was still standing. “Young man, do you know the defendant?”

  “Yes, sir, I know him.”

  The marshal waved his hand. “Your Honor, this man came to visit the prisoner in the jail last night.”

  “Why didn’t you say anything about it?” Judge Gilmore asked.

  “I didn’t say nothin’ ’cause I didn’t have no idea he was goin’ to want to be a witness. He never told me anythin’ about that last night. He and another man just visited with the prisoner, is all.”

  The judge looked at the gallery. “Is the other man who was with him, present in this court?”

  “Yes, sir. He’s sittin’ right there beside him.” The marshal pointed toward Emmett.

  “Is it your wish to be a witness as well?” Judge Gilmore asked.

  “No, sir. I never met the man before last night,” Emmett replied. “I couldn’t say one way or the other whether or not he’s guilty.”

  “You.” Gilmore pointed toward Kirby. “Who are you, and what information do you have that you think might be pertinent to this case?”

  “My name is Kirby Jensen, Your Honor. And, during the war, I rode with the defendant.”

  Several gasps of surprise came from those who were present to watch the trial.

  The judge rapped his gavel. “Are you telling the court that you rode with Quantrill?”

  “I rode with Quantrill, Bloody Bill Anderson, and Asa Briggs,” Kirby replied.

  “Bailiff, swear this man in,” the judge ordered.

  The bailiff signaled for Kirby to come forward, then he held forth a Bible. “Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?”

  “I do.”

  “Now, Mr. Jensen, I ask you again,” Judge Gilmore said. “And this time you are under oath. Did you ride with Quantrill, Anderson, Briggs, and this man, Elmer Gleason?”

  Kirby knew that he hadn’t ridden with Quantrill or Anderson in the scope of the question as was being posed by the judge. But at times a merging of the guerrilla groups had occurred, and from that perspective, he could, truthfully, answer the question in the affirmative. “I did, Your Honor.”

  “Marshal Ferrell, take this man’s gun, and place him under arrest.”

  “I’m not wearin’ a gun,” Kirby said.

  “Make certain,” the judge said.

  The marshal checked him closely. “He’s tellin’ the truth, Judge. He ain’t got no gun.”

  “Very well. He may testify as a witness, but he is also a defendant. This has become a double trial. Mr. Jensen is being tried along with Mr. Gleason, and any verdict reached for one, shall apply to both. Put him at the defendant’s table alongside Gleason.”

  “Yes, sir,” the marshal said.

  “Mr. Davenport, you may present your case now,” the judge said.

  “I call my first witness, Mister—” Davenport looked directly at Kirby. “Excuse me, what did you say your name was?”

  “Jensen. Kirby Jensen.”

  “Would you take the stand, Mr. Jensen?”

  As Kirby sat in the witness chair, the judge looked over toward him. “I would remind the witness that you are already sworn in.”

  “Yes, sir,” Kirby replied.

  “Mr. Jensen, you have stated that you rode with the Southern guerrillas.”

  “Yes, sir.”

  “How old are you?”

  “I’m seventeen.”

  “Seventeen? Isn’t that a little young? How old were you when you began riding with the guerrillas?”

  “I was fifteen.”

  “And you have ridden, specifically, with Mr. Gleason?”

  “Yes, sir.”

  “Did you ever see Mr. Gleason kill an innocent civilian, or a woman, or a child?”

  “No, sir, I never did.”

  “Thank you. Your witness, counselor.”

  Taylor stood up. “Have you ever killed anyone, Jensen?”

  “Yes, sir.”

  “No further questions.”

  “The witness is dismissed.”

  Kirby started, “Your Honor, the only ones I ever killed—”

  Rap! The judge cut him short with the sharp rap of his gavel. “I said you are dismissed.”

  “Your Honor, redirect?” Davenport called quickly.

  Judge Gilmore sighed audibly. “Very well, Counselor, you may redirect.”

  Davenport stood in front of Kirby. “You were about to make a statement. You may make it now.”

  “I was just goin’ to say that the only men I’ve ever killed were trying to kill me,” Kirby said.

  “Have you ever killed any women or children?”

  “No, sir.”

  “Thank you. No further questions.”

  “Marshal Ferrell, return this man to the defendant’s table,” the judge ordered.

  The marshal stepped up to Kirby and walked him to the defense table.

  “Mr. Davenport, will Mr. Gleason take the stand in his own defense?”

  “You’re damn right I will,” Elmer said.

  Davenport sighed. It was obvious that he would have rather his client not take the stand.

  “Can I say somethin’ before you start askin’ questions?” Elmer asked.

  “You may.”

  Elmer pointed to Kirby. “Kirby warn’t nothin’ but a boy when I first seen ’im. Hell, he ain’t more ’n a boy now. But boy or not, he’s a good man. I never seen him do nothin’ wrong. Even comin’ here, he come to help me ’cause he read about it in the paper. That’s the kind of person he is. He coulda just kept on agoin’, ’n none of you woulda ever even heerd of ’im. So I’m askin’ you now, whatever happens to me, I want you to leave the boy out of it. Like I said, he never done nothin’ wrong.” Elmer nodded at Davenport. “All right, you can ask your questions now.”

  “Mr. Gleason, why did you ride with such men as Quantrill and Anderson?” Davenport asked.

  “We was at war,” Elmer said. “And I felt like it was the right thing to do.”

  “Did you gain personally from riding with the guerrillas? By that, I mean did you enrich yourself by looting and pillaging?”

  “I’m not sure what pillagin’ means. But if you’re askin’ did I ever keep any of the money we took from time to time, the answer is no.”

  “In your mind, would you say that the only reason you participated in the war was from a sense of duty to your state?”

  “Yes. I was just a soldier doin’ my duty,” Elmer said. “I know they was lots of men that rode for the Blue who done just as bad, and some of ’em done worse ’n we did. I ain’t holdin’ that against ’em, now that all the fightin’ is over. It was a war, ’n I reckon they was thinkin’ it was their duty, just like them of us that rode with Quantrill or Anderson. But they ain’t none of them looked on as criminals like we are, ’n there ain’t nothin’ right about that. Nothin’ at all.”

  “Thank you, Mr. Gleason. I have no further questions, Your Honor.”

  “Cross, Mr. Taylor?”

  Taylor stood up, then walked over to stand in front of Elmer. He folded his arms across his chest, leaned forward, and stared directly at Elmer. “You were just a soldier doing your duty, you say?” he asked sarcastically.

  “Yes, sir. That’s what I done, all right. I done my duty.”

  “Tell me, Mr. Gleason, would you consider the burning and sacking, and the murder of civilians in the town of Lawrence, Kansas, as just doing your duty? You do recall that, don’t you?”

  Elmer didn’t respond.

  “Were you present when Quantrill attacked Lawrence?”

  Elmer st
ill didn’t answer.

  Taylor turned to the judge. “Your Honor, I request you order the defendant to answer the question.”

  The judge nodded. “The defendant will answer the question.”

  “Were you present on that day, Mr. Gleason?” the prosecutor asked again.

  “Yes, sir, I was there,” Elmer replied, the words so quiet that they could barely be heard.

  “Speak up please. Loudly enough so that everyone can hear you. Were you present for the sacking of Lawrence, Kansas?”

  “Yes!” Elmer said loudly.

  “Old men and young boys were rounded up and murdered. Houses and businesses were burned,” Taylor said. “Is that duty, Mr. Gleason?”

  “It was war. I ain’t proud of it, but it was war.”

  “Your Honor, I am finished with this man,” Taylor said.

  “Redirect, Mr. Davenport?” the judge asked.

  “No, Your Honor.”

  “Then defense may make a closing argument.”

  “Your Honor, Marshal Ferrell is a Texan. But he’s the only person of authority who is a Texan. I know that you and the appointed mayor and the prosecutor, and just about everyone else with any power in this town, in this state, and throughout the South, are Yankees, sent here for reconstruction.

  “But if you would just look out into the gallery you’ll see men and women who were born and raised here. They are good people, Your Honor, Southerners by birth, and, during the late unpleasantness, they were Southerners by loyalty. If you ask them to pass judgment against these men, simply because they fought for what they believed in, they’re goin’ to tell you that Mr. Gleason ’n the boy sittin’ there beside him, were no more than soldiers doing their duty in a war that, by its very existence, pitted friend against friend, brother against brother, and in some cases, father against son. Because of that, the war was particularly brutal. It’s going to take several generations before all hard feelings go away. As you have come to live among us, I ask that you pass judgment on this matter with some feeling for the sensitivities of those who, by appointment and not by election, you now represent.”

  The gallery broke into cheers and applause.

  Judge Gilmore was surprised by the spontaneous reaction of the gallery and, angrily, he banged his gavel until they were quiet.

  “You forget, Mr. Davenport, that the state of Texas is in subjugation to the laws of the United States. I do not give a whit about the laws or the sensitivities of the people of Texas. I am here to perform the duty for which I was appointed.” He looked over toward the jury. “You gentlemen of the jury. Do you go along with these folks in the gallery? Do you think these men who rode with Quantrill were nothing more than soldiers doing their duty?”

  The men of the jury looked at each other, spoke quietly among themselves, then one of them spoke out. “Yes, sir, Your Honor. That’s exactly what we think.”

  “Are you telling me that if I asked this jury for a verdict right now, it would be not guilty?”

  “Yes, sir. We’ve spoke about it, ’n we’ve already come to a verdict. The verdict is they ain’t neither one of ’em guilty.”

  Again, everyone cheered. Kirby, Elmer, and Davenport smiled broadly.

  Judge Gilmore pounded his gavel on the makeshift bench until the gallery was quiet. “Your celebration is premature. I have not called for a verdict, nor shall I call for a verdict. This jury is dismissed,” the judge said angrily.

  Davenport objected. “Your Honor, if you empanel another jury, and hold this trial again, you are going to get the same result. No jury of this man’s peers is going to find him guilty for doing his duty.”

  “You don’t understand, Mr. Davenport,” the judge said with an evil grin. “I have no intention of calling another jury. I will make the decision myself.”

  “What?” Davenport bellowed. “Your Honor, you can’t do that! That’s not legal.”

  “I can and I will. I find both defendants guilty as charged. You are free, Mr. Davenport, to appeal my decision, but in all candor I must tell you that an appeal would be nothing but a waste of time, for the sentence will have been long carried out before any decision can be made on the appeal. Elmer Gleason and—” He glanced toward the prosecutor. What’s the boy’s name?”

  “Jensen, Your Honor. Kirby Jensen,” Taylor said.

  “Elmer Gleason and Kirby Jensen, please present yourselves before my bench while I administer the sentence.”

  “Your Honor, we beg for mercy,” Davenport said quickly.

  “No, we don’t, by God!” Elmer said sharply. He glanced over at Kirby. “I don’t know about the boy. I’ll let him make his own decision.”

  “I’ll not be beggin’ for mercy,” Kirby said.

  Judge Gilmore took off his glasses and began polishing them. He put them back on, hooking them carefully over his ears. He looked at the two defendants standing before him and cleared his throat. “Elmer Gleason and . . .” Again he paused.

  “Kirby Jensen,” Taylor added quietly.

  “Elmer Gleason and Kirby Jensen, you have been tried before me and have been found guilty of the crime of riding with the butcher Quantrill, and aiding and abetting in the atrocities of murder, arson, and robbery that he visited upon innocent people. It is the sentence of this court that you be taken from this courthouse and put in jail where you will spend your last night on this mortal coil. At ten o’clock of the morrow, you will be taken to the gallows already constructed, and there, both of you will be suspended by your necks until you are dead.”

  “No!” someone in the court shouted. “You can’t hang them, you Yankee crook! They ain’t guilty of nothin’ but bein’ soldiers!”

  “Marshal” the judge said. “Arrest the man who just made that outburst, and hold him in contempt of court!”

  Marshal Ferrell stood and looked out over the gallery. “Arrest which man, Judge? I didn’t see who it was.”

  To a man, every person in the courtroom was quiet.

  “Who was it?” the judge asked. “Who made that outburst?”

  There was no response to his inquiry.

  “All right, all right!” the judge said. “You Rebels think you are putting one over on me, do you? But we’ll see who has the last laugh tomorrow when these men are legally executed. Court is adjourned.” He rapped the gavel once more.

  The judge, the bailiff, and the prosecutor left the saloon by the back door.

  “Damn, Marshal Ferrell, you ain’t really goin’ to hang ’em, are you?” someone called.

  “You heard the judge. He give me the order. There ain’t nothin’ I can do about it.”

  “Kirby, what ’n hell did you do that for?” Elmer asked after the two men were taken back to the cell.

  “I wanted to do what I could to help.”

  Elmer shook his head. “Well, you didn’t have to go so far. Damn, boy, just showin’ up woulda been enough. But what you done is got yourself caught up into the same mess I’m in.”

  To Elmer’s surprise, Kirby flashed a big smile. “Yeah, I did, didn’t I?”

  Elmer frowned at him. “Boy, have you gone daft on me? Ain’t you got no idea as to what’s goin’ to happen?”

  “I know exactly what’s going to happen,” Kirby said. “That’s why I got myself put in here.”

  “You got yourself put in here? Of a pure purpose?” Kirby nodded. “Of a pure purpose.”

  CHAPTER 12

  At that same moment, Emmett was at the livery, looking at a horse advertised for sale.

  “He’s a real good ridin’ horse,” the liveryman said. “It was rode by one of the officers in John Bell Hood’s Division. Iffen you know’d anything about Hood, you know he had only the best horses.”

  “Yes, I know all about General Hood,” Emmett replied. Hood, though an aggressive and effective officer for most of the war, had gotten many of his men slaughtered in an ill-advised frontal attack at Franklin, but Emmett didn’t mention it.

  “Do you have a saddle for sale as well?�
�

  “I do, sir. I do indeed.”

  “Saddle him up, then ride him around the corral for me. I’d like to see him work, if you don’t mind,” Emmett said.

  “Yes, sir. I would be happy to.”

  A few minutes later, the horse was saddled, and the liveryman rode him in compliance with Emmett’s request. During the ride, Emmett observed the horse closely, listening to the rhythm of the gait and checking for equal striding in distance and time on the ground. He watched how the horse held his head and observed the footfalls to see if the animal showed any indication of sore feet. The horse passed his rather thorough examination.

  Satisfied, Emmett said, “I’ll take him. Please have this horse, and the two that I am now boarding with you, saddled and ready for me to pick up by seven o’clock this evening.”

  “Yes, sir. They’ll be ready for you.” The liveryman was happy to have made the sale.

  “In the meantime, I need to rent a horse and a buckboard for a couple hours.”

  “All right. I’ll get that ready for you right now.”

  A few minutes later, Emmett drove the buckboard from the livery down to the depot where he examined the rather high growth of weeds along the track. He decided they were in just the right place as they stretched just far enough to be perfect for his purpose.

  Checking the time, he saw that it was just before five o’clock, which meant a train would be arriving shortly. He walked onto the depot platform and waited until the northbound train arrived. The arrivals and departures of the trains in the small railroad town of Salcedo caused much excitement and were always well attended. Emmett aroused no attention as he stood in the crowd, watching the disembarking and boarding passengers. Pulling his watch from his pocket again, he timed exactly how long the train stood in the station before it departed.

  Four minutes and thirty-five seconds after the train arrived, it was on its way again. That was good. If the train’s stay was much shorter, he wouldn’t have time to do what he planned to do. Staying any longer would increase the possibility of being discovered.

  He would time the nine o’clock train as well, then do an average of the two times, but for now, he had another stop to make.

  Returning to the buckboard parked with several others, surreys, and wagons, he drove to the opposite end of town to Sikes’ Hardware Store. A small bell attached to the door rang as he pushed it open and entered the store. “What is the longest chain you have?” he asked the clerk who’d hustled over to see what he needed.