Forty-five minutes later, Smoke, Sally, Pearlie, and Cal were in the courthouse, sitting in the second row of seats. They were there when Monte and Deputy Wallace brought in the prisoners, Jack Tatum and Billy Petrie.
Jack Tatum looked out over the gallery. The courtroom was packed for the show, and he intended to give them one. No stranger to court appearances, Tatum was a man who had spent at least half of his forty-two years in various jails and prisons.
He had a misshapen eye, the result of a knife fight that left him permanently scarred, and his adversary permanently dead. There were few laws he hadn’t broken, and none he wouldn’t. He had started his life of crime when, at the age of fourteen, he sneaked into his mother’s bedroom, killed the man she was sleeping with, took his money, and ran away into the night. He had neither seen nor contacted his mother since then, and neither knew nor cared whether she was dead or alive.
Billy Petrie was considerably younger than Tatum. Petrie’s mother, a soiled dove, died when he was twelve. He never knew who his father was, so when he was orphaned, he became a ward of the state. They put Petrie in a reform school because there was no room for him in the orphanage. He broke out of reform school when he was sixteen, and had lived a life of crime ever since.
Although the bullet had been removed from Petrie’s leg, the wound was still bothering him. He was limping noticeably as the prisoners were brought into court to await the arrival of the judge. It also didn’t help matters that he and Tatum were chained together.
Sitting at the defendants’ table, and greeting them when they arrived, was Samuel B. Covington, appointed by the court as counsel for the defense.
Covington was a dapper, distinguished-looking man, exceptionally well dressed, complete with vest and gold watch chain. His hair was dark, except at the temples, where it was gray. He had a small, well trimmed mustache.
Sam Covington was a well-known lawyer who was very active in politics. In the most recent election, he had directed the successful campaign of the sitting governor. As a result, he was now one of the most powerful men in the state, with the governor’s ear any time he wanted it.
Mrs. Edna Flowers was in court, the grief over the recent loss evident in her face. The widow’s weeds she was wearing did little to hide the fact that she was pregnant. Margaret Pynchon was in court as well, sitting next to Mrs. Flowers. Mrs. Pynchon’s arm was in a sling, and both she and Mrs. Flowers glared at the defendants as they were brought in.
Before the judge entered the court, Smoke and Sally went back to speak to the two ladies who had suffered most from the aborted bank robbery.
“Edna, I was so sorry to hear about Rich,” Sally said. “The entire town will feel his loss deeply. If there is anything I can do for you, please let me know.”
“Thank you, Mrs. Jensen,” Edna said, dabbing at her eyes. “Everyone has been so kind.”
“And that goes for you as well, Margaret. I know with your arm hurt like that, you can’t work. So if you need anything, please let me know, would you?”
“Thank you,” Margaret said. “Dr. Spaulding said he was sure I could get back to work in a couple of days, so I’m sure everything will be all right.”
At that moment the bailiff came into the courtroom.
“All rise!”
The court fell silent as everyone stood.
“Oyez, oyez, oyez, this court is now in session, the Honorable Harry Tutwyler presiding. All who have business with this honorable court draw near and listen. God bless this honorable court, and God bless the United States of America. Order in the court!”
Judge Tutwyler, wearing black robes, came in and stood behind the bench for a moment, then sat. Not until then did everyone else sit.
“Who comes now before this court?” said Tutwyler.
“Your Honor, before this honorable court comes the case of the state against Jack Tatum and William, also known as Billy, Petrie. They are charged with murder in the first degree, aggravated assault with the intent to commit murder, bank robbery, and conspiracy to commit bank robbery.”
“Will the defendants please stand?”
At Covington’s urging, both Tatum and Petrie stood.
“You have heard the charges against you,” Judge Tutwyler said. “How do you plead? Guilty, or not guilty?”
“We didn’t do all them things that was just said,” Tatum said. “I mean, to listen to all that, you’d think . . .” That was as far Tatum got before Covington was able to put his hand out toward his client to quiet him.
“The defendants plead not guilty, Your Honor,” Covington said.
“The plead of not guilty is entered,” the judge said.
After they spent nearly an hour selecting the jury, the judge finally turned to Norton and said, “Mr. Prosecutor, make your case, sir.”
Norton gave his opening remarks, called upon witnesses from the bank, then called his star witness, Smoke Jensen.
Reaching over to pat Sally’s hand, Smoke walked up to the front of the courtroom, where he was sworn in.
“Mr. Jensen, would you please, in your own words, tell the court what happened on the morning of the fourteenth of last month?”
Without elaboration, Smoke told the story of being in front of the hardware store when he heard the shooting. He told of watching Mr. Flowers shot down in the street before he himself joined the action. His statement was concise but complete, with no self-aggrandizement.
“Your witness, Counselor,” Norton said as he walked back to his table.
Covington approached Jensen, looked at him for a long moment without saying a word, then moved over to stand in front of the jury.
“Mr. Jensen, how many men have you killed?”
“Objection, Your Honor!” Norton shouted, leaping up from his own chair. “That question is inflammatory and irrelevant!”
“Your Honor, by definition, anytime someone is killed, it is inflammatory,” Covington replied. “But if you will allow me to pursue this course, I will be able to establish the relevance.”
“I will allow the question, Counselor, but be cautioned, I will be keeping an eye on you. And if I see you misusing my generosity, I’ll withdraw permission in a heartbeat.”
“Thank you, Your Honor,” Covington said. He turned back to Smoke. “How many men have you killed?”
“I’m not sure,” Smoke replied.
“You’re not sure? You mean the act of killing another human being is so insignificant to you that you can’t even remember how many you have sent to their Maker?”
“I’ve never killed anyone who wasn’t trying to kill me.”
“Would you say you have killed more than ten men?”
“Yes.”
“More than twenty?”
“Your Honor, I object. The witness has answered the question. He has killed more than ten men. I see no reason for carrying this any further,” Norton protested.
“Objection sustained. Continue the cross-examination.”
“I am curious, Mr. Jensen. When you killed Mr. Fuller and Mr. Howard, did you pause to reflect upon it?”
“I’m not sure what you mean.”
“Before you pulled the trigger that sent Mr. Fuller and Mr. Howard hurling into eternity . . . did you hesitate, even for a moment?”
“No.”
“Did you not even ask yourself if you were doing the right thing?”
“Mr. Covington, much is said about the speed of a gunfighter’s draw. But in reality it isn’t the speed of drawing the gun as much as it is the speed of making the right decision. Once I realized what was going on, I made the decision to intervene. I knew it was right and I didn’t have to reconsider.”
“I see. Mr. Jensen, what caliber bullets were you shooting on the day in question?”
“The rifle I fired used .44-40-caliber ammunition.”
“Are you aware that the shots that killed Fuller and Howard were made from a distance of one hundred seventy-five yards?”
“I didn’t measure t
he distance,” Smoke said.
“I did. Given the distance of the shot, don’t you think some hesitation might have been prudent? Especially since Richmond Flowers and Mrs. Pynchon were both struck by bullets that are consistent with the caliber of the bullets you were shooting?”
“Objection! Is defense trying to suggest that Smoke Jensen shot Mr. Flowers and Mrs. Pynchon?” Norton asked.
“Your Honor, I am making no such claim,” Covington said quickly. “I am merely making the observation that Mr. Flowers was killed and Mrs. Pynchon was wounded by bullets that are consistent with the caliber of the bullets Mr. Jensen was shooting. It goes to establishing doubt.”
“Objection overruled.”
“Thank you, Your Honor.” Turning back to Smoke, Covington continued with his cross-examination. “Mr. Jensen, you do admit to killing Howard and Fuller, do you not? I mean, that issue is not in doubt?”
“I killed them,” Smoke said.
“Would it be fair to say then that, on that day, you were their judge, jury, and executioner?”
“Objection, Your Honor. Inflammatory,” Norton protested.
“Sustained.”
“Withdraw the question. Mr. Jensen, are you an officer of the law?”
“No.”
“Would you consider yourself a vigilante?”
“No.”
“Then, by what right did you kill Fuller and Howard?”
“Objection, Your Honor, the witness is not on trial here. Jack Tatum and Billy Petrie are on trial. It is clear to anyone with reason that, by his actions, Mr. Jensen saved more innocent lives. I’ll not have him browbeaten like this.”
“Your Honor, this goes to witness credibility,” Covington said. “As far as I know, there has been no hearing to determine whether or not Mr. Jensen’s homicide was justifiable. And unless or until that happens, any testimony Mr. Jensen may give this court could be said to be self-serving.”
“Objection sustained,” Judge Tutwyler said. “Unless you can prove that the witness has perjured himself, his testimony will be given relevant weight. Now, please continue.”
“I have no more questions for this . . .” Covington turned his back on Smoke as if disgusted, then added in a derisive tone, “Witness.”
“Redirect?” the judge asked Norton.
“No redirect, sir. And, as Mr. Jensen was my last witness, prosecution rests.”
3
“Prosecution having rested, you may now present your case, Mr. Covington.”
“Thank you. Your Honor, defense wishes to call Sheriff Monte Carson to the stand.”
There was a buzz of curiosity throughout the courtroom as Monte was called. He had been one of the prime witnesses for the prosecution, and everyone wondered what use Covington could make of him for the defense.
“Sheriff, I remind you that you are still under oath,” the bailiff said as Monte took the stand.
“I understand,” Monte replied.
“In the course of your investigation of the events on the fourteenth of October, were you presented with the bullet that killed Mr. Flowers?”
“I was.”
“And I believe you testified that it was a .44-caliber bullet?”
“It was.”
“And the bullet that wounded Mrs. Pynchon? Also a. 44-caliber?”
“It was.”
“And, under questioning from prosecution, you stated that the pistols you took from the defendants, Jack Tatum and Billy Petrie, were also .44-caliber?”
“They were.”
“Now, Sheriff, I would like to ask you a question that prosecution did not ask you. Did you also take the pistols from the two men that Smoke Jensen killed?”
“Yes.”
“What caliber were they?”
“The pistols were Colt .44’s.”
“And the bullet that Dr. Spaulding took from Mrs. Pynchon’s shoulder, as well as the bullet he took from Mr. Flowers’s body, what caliber were they?”
“The bullets were .44-caliber.”
“What about the bullets taken from the bodies of Mr. Howard and Mr. Fuller?”
“They were .44-40.”
Covington walked over to his table and picked up two envelopes. Returning to the witness stand, he held the envelopes in front of him. “Your Honor, I have defense exhibits marked A and B. I beg permission to perform an experiment.”
“You may proceed.”
“Sheriff Carson, would you hold your left hand out, please?”
Monte did as directed.
“I am removing an object from the envelope marked A and placing it in your hand. Would you identify it for the court, please?”
He placed a small piece of lead in Monte’s hand.
“It is a spent bullet,” Monte said.
“Caliber?”
Monte hefted it, and examined it closely. “I’d say it was a .44-caliber.”
“And now this one?” Covington put another bullet in Monte’s right hand.
“It’s also a bullet.”
“Caliber?”
“It’s a .44-caliber.”
“You are correct, Sheriff, this is a .44-caliber bullet.”
Monte smiled and nodded at the jury.
“But the bullet you are holding in your left hand is a. 44-40.”
The gallery reacted with a buzz of wonder and surprise.
“Thank you, Sheriff Carson. No further questions,” Covington said. “Defense calls Mr. Jack Tatum to the stand.”
The bailiff held the Bible out toward Tatum, who looked it for a second, then placed his hand on it.
“Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?”
“Yeah, yeah, sure,” Tatum snorted.
“Be seated, please.”
Tatum took his seat.
“Mr. Tatum, on the fourteenth of October, at approximately ten-fifteen in the morning, did you, Mr. Petrie, Mr. Howard, and Mr. Fuller attempt to rob the bank of Big Rock?”
“Yeah, we tried,” Tatum said.
“Your Honor, if he is confessing to this, why are we continuing with the trial?” Norton called from the prosecutor’s table.”
“Your Honor, if the court will indulge,” Covington said quickly. “There is a greater purpose to this.”
“Continue the questioning,” the judge said.
“Tell the court, in your own words, what happened that morning,” Covington said.
“Yeah, well, like I said, me, Petrie, Howard, and Fuller was robbin’ the bank. And everything was goin’ along just fine. I mean, nobody was getting hurt or anything like that, and nobody was going to get hurt. Then, when we come out of the bank, someone started shooting at us. First thing I know after that, the bank teller went down. I yelled out to Fuller and Howard, ‘What’d you shoot him for?’ But instead of answerin’ me, I seen that they was shootin’ at Jensen. That’s when I first found out that Jensen was the one shootin’ at us.”
“Did either you or Petrie return fire?”
“We shot at Jensen in self-defense, but only at Jensen. And we didn’t even do that until he started shooting first. Then I seen that he was out of range, so I yelled at Petrie to just forget the money so we could get out of there! But that’s when he got shot in the leg. I figured then that we’d better surrender before anyone else got hurt, or maybe kilt. This Jensen fella was goin’ wild, you know what I mean? He was just shootin’ up the whole town. I admit I come to town to steal money, but I never had it in mind to hurt anyone. When I seen what Jensen was doin’, I figured the only way to keep anyone else from getting shot was if I surrendered.”
Billy Petrie’s testimony was almost an exact duplicate of Jack Tatum’s. According to Petrie, Smoke Jensen started the shooting. The bank teller was killed, not intentionally, but by a wild shot. Mrs. Pynchon was also hit with a wild shot. Neither of them was shot, Petrie insisted, until after the shooting was started by Smoke Jensen. He added one more thing to his testimony. Looking directly at Mrs
. Flowers and Mrs. Pynchon, he said, “Ladies, didn’t none of us want anyone hurt. I’m sorry you lost your husband, Mrs. Flowers, and I’m sorry you got shot, Mrs. Pynchon, but wasn’t neither one of us that done it.”
When Petrie stepped down, Covington presented his closing argument.
“Some may regard Smoke Jensen as a hero for what he did. I don’t share that opinion of Mr. Jensen,” Covington began. “By opening fire in an otherwise peaceful street, he placed the lives of everyone in town in mortal danger. Did my clients kill Mr. Flowers?” Covington paused for a moment, then nodded. “They may have. It is entirely possible. They were shooting, and so were Mr. Howard and Mr. Fuller. Bullets from one or more of their guns may well have killed Richmond Flowers and wounded Mrs. Pynchon.
“However, it is also possible that Smoke Jensen killed Richmond Flowers.” From his pocket, Covington held up two unfired bullets.
“Here you see an unfired .44-40 rifle bullet, and an unfired. 44-caliber pistol bullet. When they are like this, it is easy to tell the difference. Ahh, but the spent bullets”—returning to his table, Covington picked up the two chunks of lead he had shown to Sheriff Carson—“are a different story. Not even Sheriff Carson, who everyone will concede is an expert in these matters, was able to tell, for certain, which bullet was which. And though I am not saying with certainty that Smoke Jensen killed Mr. Flowers, I am proving to you that it is possible that he did.
“Now, why would a man like Smoke Jensen open fire when doing so would place ordinary people in danger? That’s a good question, and I think it deserves an answer. Smoke Jensen is a successful rancher to whom money is everything. To such a man, money means more than the life of an ordinary person.
“What, exactly, is an ordinary person? Rich Flowers was a simple teller, so he was an ordinary person. Mrs. Pynchon is a simple tailor, so she is an ordinary person.”
Covington walked away from the jury, and fixed his gaze upon Mrs. Flowers and Mrs. Pynchon.
“Our government was founded upon the principle of the sovereignty of the ordinary person. People like these two noble ladies.” He took them in with a wave of his hand, milking the moment. Then he walked away from them to stand just across the railing from Smoke Jensen. He glared at Smoke. “In Jensen’s world, such people as Rich Flowers and Margaret Pynchon are unimportant.” He turned to the jury. “In Smoke Jensen’s world, you, the gentlemen of this jury, are all ordinary people. Thus, you are unimportant.”
Warpath of the Mountain Man Page 24
