The telegram advising Kilgore of the turn of events cost two dollars. Carlotta was not at the hotel, nor could he find any trace of her all that day. When night came, fretful and impatient, he went in search of amusement and information. He found it, cheaply enough, in a cantina not far from the old Santa Fe Trail where the talk was very much about the murder in San Carlos that was agitating the Territory.
“McCandless is guilty!” a bartender named Garcia advised. “Stands to reason.”
Clem paid for a whisky. “How can you tell? You haven’t heard any evidence?”
“Don’t have to,” said the bartender, biting a silver dollar. “Kilgore’s defending him! Stands to reason he’s guilty.” There was a burst of laughter. “I’m only giving out the general opinion.”
For a second night Clem Erskine found it impossible to sleep against the sense of impending doom.
In the morning he met Carlotta at breakfast and learned that she had had no luck seeing the governor. At Judge Hazledine’s offices, he was told bluntly by Donovan that the judge was not yet back from his “trip.”
Another day of idleness went by. Too cold for sightseeing, it was, and Clem and Carlotta remained in the hotel lobby and argued politics while the dreary hours passed. Toward evening came a wire from Kilgore, expressing impatience and urging Clem to get a fast signature from the evasive Hazledine.
Wednesday morning. A telephone call to Donovan brought advice that the judge was back and would receive him.
10.
“PLEASE come in,” said Donovan.
There was a subtle smile of amusement on the clerk’s face as he opened the door of the antechamber. Clem entered uncertainly, followed by Carlotta. A rail divided the room, which held shelves of books. A door of varnished oak was painted with the name of Judge Abraham Hazledine.
“Can Miss McCandless attend?” asked Clem.
“I’m sure it’s all right,” Donovan replied with a sly grin. “We’ve had a lot of San Carlos people coming through this morning. One more or less can’t make any difference. It’s nothing formal.”
“San Carlos people? Who?” Clem asked.
“You’ll see. They’re still here, talking to the judge. It might interest you to meet them.” Donovan turned and rapped on the inner door and stood back on a command given by a deep voice of authority. The judge’s chambers were filled with cigar smoke—a haze of fragrance to which Mike Duer and Pete Beaudoin were adding their contribution. A man of middle years with a hard face and a full jet Vandyke beard came forward.
“Miss McCandless? I’m sorry about this business,” he said abruptly, and turned to Clem. “I’m Judge Hazledine. I’m told Kilgore sent you up here with an application for a writ in that Morgan case?”
“Yes, Your Honor,” said Clem.
“Well, sit down,” the judge said, waving Clem and Carlotta to a pair of deep leather chairs. “Can I offer refreshments?” Clem shook his head. “Let’s see your papers.”
Clem said, “This isn’t a public hearing, Your Honor. Do we need these spectators?”
Judge Hazledine glanced up with surprise at the clear, hard voice of the younger man. “There’s no rule about it, Mr. Erskine,” he replied harshly. “If your papers are in order, you’ll have my signature. I’m here to protect all rights guaranteed by the laws of the Territory and the United States— even those of murderers.”
“I’m sure you will, Your Honor!” said Clem with an edge of antagonism. He was somewhat taken aback to feel the trembling of his hands as he reached into the portfolio for the sheaf of documents he had brought from San Carlos. The resounding language of the writ of habeas corpus was committed to memory. He handed over the petition drafted by Kilgore in support of his application.
“Verbose!” said Judge Hazledine grimly. “Full of words! Typical Kilgore—never can make his point without going around Cape Horn. What’s the basis of this application, Mr. Erskine?”
Clem glanced at Carlotta in dismay. He had not expected verbal interrogation. She nodded encouragingly and he wet his dry lips.
“Why, uh—” he began weakly, and resumed, “Mr. Kilgore explains all that in his affidavit—”
“I want you to explain!” Judge Hazledine lit a cigar and sat back, testing the springs of a deep leather chair. “Give me the nubbin.”
Clem drew a breath. “Just as simple as this, Judge,” he said haltingly. “Seems to be no question that a crime was committed in San Carlos County. Ordinarily Sheriff Duer here would be justified in making an arrest, provided he’s got some basis in evidence to go by. Mr. Kilgore’s point is that our client—his client, that is—is being detained by the sheriff without any evidence at all. It’s an illegal arrest. There’s been no indictment, no warrant, no probable cause to think our client committed this crime. On top of that, the justice of the peace wouldn’t, or couldn’t, fix bail. I guess that’s about it,” he concluded, drawing a breath, and faced a fixed stare.
“All Mr. Kilgore wants is a hearing,” he added. “It’ll be up to this court to discharge the prisoner or to fix bail.”
Judge Hazledine nodded appreciatively. “Unless Sheriff Duer’s got something to say about it?” He turned inquiringly to the other side of the room, where the sheriff and the attorney general were following the discussion with every appearance of interest.
“Not at this moment,” said Beaudoin, touching the sheriff’s wrist lightly to cut off discussion. Judge Hazledine stroked his beard thoughtfully and invited further comment. “Yes, Miss McCandless?”
“May I have a moment with Mr. Erskine?” Carlotta asked. She took Clem aside into the corner of the room. “I’m worried, Clem,” she said in a low voice. “I have a feeling there’s something wrong here.”
“He’s got to sign,” said Clem reassuringly. “It’s all a bit of stageplay for the benefit of the others.”
“Yes, but why should he stageplay? Why are they here at all? I don’t like it, Clem. I think you ought to telegraph for instructions.”
“I can’t,” he replied. “The judge has my application. If I don’t get him to sign now, he might leave the county and we’d be losing time. Gee, I wish Mr. Kilgore hadn’t put me in this spot.”
The two glanced at each other, troubled by the weight of their responsibility, and finally Carlotta sighed and released his hand and they returned to the judge’s desk where the scratch of a steel pen was loud.
“All signed,” said the judge. “Now, since this writ is directed to the sheriff of San Carlos County, commanding that he bring up before me the body of the prisoner to inquire into the manner and legality of his detention, I direct that service of this writ be made here and now.” He sat back, tranquillity itself, drawing on a rank cigar, staring with cold eyes at Kilgore’s messenger.
“I—I don’t know if I’m prepared to make service,” said Clem. He was afflicted with a cold feeling of disaster. On the judge’s command, he handed over the writ and petition to the peace officer, who glanced at the document perfunctorily. “It’s for you, Mr. Beaudoin,” Mike Duer drawled, handing on the document, and a disagreeable grin split his face. “It seems legal on its face. I reckon we’ll have to answer.”
“Yes, we will,” Beaudoin agreed.
“I don’t see any reason to waste time,” Duer added with amusement. “Young feller, if Judge Hazledine will forgive me, I think you made a fine presentation. Real fine. Kilgore ought to be proud of you. And when you get back to San Carlos, you can tell that talkative windbag that I’ll meet this petition with an affidavit and testimony that I’ve got an eyewitness who can fill in all the facts I need regarding the night that poor little girl was murdered.”
Clem heard the gasp of dismay from Carlotta. “An eyewitness? Who?” he asked, stupidly.
Beaudoin said, “I’d keep quiet, Mike—”
Duer brushed this aside. “This is one time I don’t mind letting Kilgore know what he’s up against. The witness is Eli Weingarten. The one that’s working at the Emporium in San C
arlos for his daddy, Ben Weingarten. Since he’s Harry McCandless’ closest, and maybe only, friend, there can be no question. Tell Kilgore I’ll meet him in court.”
“There’ll be a sworn affidavit in Judge Hazledine’s hands on the return day of the writ,” Beaudoin interposed. “It’s no joking matter. Eli Weingarten’s in custody of the United States marshal right here in Santa Fe. I wouldn’t advise any attempt to get at him.” He added with a polite flourish, “I’m sorry about this, Miss McCandless. It wasn’t my idea that you be present.”
Carlotta was pale. “It’s quite all right, Mr. Beaudoin. I’m sure my father will have something to say about all this when the time comes.” She turned to the judge. “Thank you for your courtesy, Judge. I’m a bit shocked that you permitted this deception to be played on Mr. Erskine.”
“Deception?” the judge asked stiffly.
“You permitted him to submit that application, knowing the circumstances—”
Clem held out a restraining hand. “I believe there must be a draft affidavit here,” he said in a shaking voice. “Might I look at the statement?”
In the moment of silence, the others exchanged glances, and a slight shrug from the judge acted as a release. Beaudoin handed a statement to Clem, who took it with nerveless fingers and passed it on to Carlotta.
It was a bombshell.
Eli had declared that he was prepared to testify that on the fatal night he had driven Honey Morgan out to Wa-po-nah, using a McCandless buggy and picking the girl up on Harry McCandless’ specific request. He would, furthermore, testify that during the course of the evening there had been drinking and that both he and Harry had had relations with the girl. Further, Eli would testify that as the evening continued, Honey had grown violent and ugly as a result of consuming large quantities of cognac. She had become a general nuisance, fighting and kicking them, and finally it had become necessary to get rid of her before she caused serious damage. She was subdued after something of a scuffle, and Harry had left with her. Eli had gone to sleep, and in the morning the girl was not on the premises. Harry told him in explanation that he had driven her back from Wa-po-nah to Dade Rawlins’ place, leaving the ranch at 11:00 P.M. and returning at 1:00 A.M.
Clem looked up from his reading. “Well, so you’ve got yourselves a witness. But this doesn’t add anything to your case. Two hours isn’t long enough for Harry to have raped and killed the girl, driven out twenty miles into the mountains with her, and returned.”
Duer smiled. “Harry’s the one who said he came back within two hours. Eli went to sleep, remember? Harry may have been out till dawn doing just those very things, and then come back and lied to Eli.”
Beaudoin said, “You don’t seem to get the point, young feller. Harry McCandless swore he never saw the girl at all that week. We can prove he did. That shows he was conscious of guilt.”
Clem exchanged a stricken look with Carlotta. “It has no bearing,” he said stubbornly. “I’m not even sure your witness is telling the truth.”
Beaudoin laughed unpleasantly. “That’s just what Kilgore’s going to say. It’s up to the jury, isn’t it?” With a leisurely gesture, he restored a cigar to his mouth and winked.
Clem felt his face turn red. The trap was sprung. He realized his blunder fully. He started to speak, but Hazledine sat back with a cold glance and folded his hands across a heavy cloth waistcoat.
“The writ has been served,” he said coldly. “The prisoner, Sheriff Duer, will be brought up before me on the first day of the next term of the district court of San Carlos County. You are instructed accordingly.”
“Yes, Your Honor,” Duer said, with deliberate obsequiousness.
“Is there anything further, Mr. Erskine? Mr. Beaudoin?”
Clem shook his head. Beaudoin shrugged.
They were dismissed.
In front of the courthouse, after Duer and Beaudoin had taken their leave, Clem turned to Carlotta in anguish.
“I’m sorry,” he muttered.
“For what?”
“For the mess I made of things in there. Any experienced lawyer would have withdrawn that petition the moment he smelled out the situation. The writ is an empty formality now. When Hazledine dismisses it next week, it’ll score a nice juicy point for the prosecution, and all my fault. I should have listened.”
“Clem, nobody expects you to make no mistakes. You’re up against the slickest prosecutor in the Territory. Anyway, it isn’t very serious, really.”
“It is,” he said bitterly. “Hazledine would probably have dismissed the writ anyway, but now he’ll do it with fanfare. I should never have presented the petition and now allowed the prosecution to draw first blood.”
“Well, maybe we’ll have some luck with the governor. I finally got an appointment with him, for one o’clock this afternoon. You come along with me.”
At one sharp, Carlotta and Clem were shown into the office of Charles Tellegen, the newly appointed governor of the Territory of New Mexico. A dignified, imposing man in his early fifties, he smiled graciously at Carlotta and listened with evident sympathy as she unfolded her story. But the smile vanished as she concluded.
“You see, Governor Tellegen, I’m not asking for a prosecutor who’s in my father’s pay. I know McCartney is my father’s puppet, and I can’t blame anyone for superseding him. But not with Beaudoin! Everyone knows he’s a Tilley man, and Tilley hates my father! Can’t it be arranged that a neutral prosecutor be appointed?”
“I’m afraid it can’t, Miss McCandless.”
“But—”
Tellegen seemed to droop. “Since taking office, Miss McCandless, I’ve discovered that there are certain harsh realities to be faced in this Territory. I don’t like Joel Tilley’s activities, and I confess a lot of things your father has done have made me unhappy, too. But I can’t supersede Beaudoin. He’s the attorney general of the Territory, and so long as he’s in office he’ll decide who prosecutes which cases.”
“But he’s obviously prejudiced,” Clem blurted.
“Not so obviously, my friend,” Tellegen said quietly. “You forget that the prosecutor is supposed to achieve the conviction of the guilty. Prejudice is irrelevant. If he believes the defendant to be guilty, his task is to devote his strength to obtaining a conviction.”
“Suppose the defendant isn’t guilty, but Tilley and his friends are trying to make him look that way?” Clem asked.
Tellegen shook his head. “No, no, and no. I don’t like to see the innocent punished, and assuredly I don’t care for Pierre Beaudoin. But he’s been duly elected, and there are no visible grounds for removing him from office. I’m unable to replace him, and unable to help you in any way. Believe me, I’m sorry.”
Further argument was futile. Discouraged, Carlotta and Clem left the governor’s mansion.
“I feel sorry for that man,” Carlotta said outside. “His hands are tied by Tilley. He wants to accomplish good, but he can’t act.” She laughed bitterly. “Where’s your optimism now? Things are getting better all the time, are they! We elect a reform governor—and can he act? Score one for the cynics, my idealistic friend.”
Clem nodded. “We might as well go back to San Carlos immediately. We haven’t accomplished very much here.”
During the three days of Clem Erskine’s absence, Jake Kilgore had been busy in San Carlos. He had viewed the body of Honey Morgan. He had talked to Doc Hewlitt, to Julian DuVivier, to Charlie Bear. He had learned little from any of them.
He had also talked three times with Harry McCandless. Getting information from him had not been easy. Harry took a detached attitude toward the whole affair, as though he did not understand or did not care that his life was at stake. Sweating, cursing, Kilgore managed to extract the grudging and reluctant admission that he had seen Honey Morgan on the night of her death, and that Eli Weingarten had been with him at the time.
“You sniveling fool!” Kilgore raged. “Why did you make those denials to Duer? Are you out to hang y
ourself?”
Harry smiled. “They say you’re a good lawyer, Kilgore. I have faith that you’ll be able to get me off.”
“If I do,” Kilgore vowed, “I’ll double my fee. If you weren’t my client, I’d cheer at your execution.”
“How unfriendly, counselor.”
“Don’t give me that college-boy snideness!” Kilgore roared. “Just answer my questions.”
Harry had answered them, after a fashion. And it became evident to Kilgore that Eli Weingarten was going to be a key witness at the trial.
On whose side, though? A grave danger existed that Beaudoin would make capital out of Eli’s testimony, would perhaps even use him as a witness for the prosecution if he knew the extent of Eli’s involvement.
Eli had to be spoken to.
But where was Eli? Kilgore inquired. Eli was “out of town.” Ben Weingarten did not know where, and did not seem to care.
Kilgore fidgeted uncomfortably. From one hour to the next, the pain in his ear grew in intensity. The continuing cold weather, the uncooperative attitude of Harry, and the delay in the return of Clem all added to Kilgore’s general miseries. He took advantage of the delay in proceedings to fill himself thoroughly with alcohol, and to make use of the accessibility of Tia Anna’s. Tia Anna’s social resources weren’t a patch on those of Laurie Morgan’s house, but circumstances didn’t permit a visit to Santa Fe.
Kilgore’s discouragement waxed. And on Wednesday afternoon, when Clem Erskine walked through the door of Kilgore’s office, the lawyer knew the instant he saw Clem’s facial expression that things had gone wrong.
“Welcome back, boy.”
Clem shook his head. “I’ve got terrible news, Mr. Kilgore. So many different kinds of bad news that I don’t know where to begin.”
“At the beginning, then. Hazledine granted the writ?”
“Yes, of course. But—oh Lord, you’ll roast me for this! Duer and Beaudoin were there. They presented an affidavit to the effect that Eli Weingarten would testify for the prosecution.”
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