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face grew pale beneath its tan. They gazed for a moment quietly, then
Curly sighed and stepped back. "Keep him covered, Cap," he said, and,
going to his horse, he loosened the long lariat.

"_Arriba_, Juan," he said quietly. "Get up." He kicked at the Mexican
with his foot as he lay, and stirred him into action. "Get up, Juan,"
he repeated, and the giant obeyed meekly as a child. Curly tied his
hands behind his back, took away his knife, and bound him fast to a
tree. Juan offered no resistance whatever, but looked at Curly with
wondering dumb protest in his eyes, as of an animal unjustly punished.
Curly turned again to the fire.

"It's him, all right," said he; "that's Cal." Franklin nodded.

Curly picked up a bit of stick and began to stir among the ashes, but
as he did so both he and Franklin uttered an exclamation of surprise.
By accident he had touched one of the limbs. The stick passed through
it, leaving behind but a crumbled, formless heap of ashes. Curly
essayed investigation upon the other side of the fire. A touch, and
the whole ghastly figure was gone! There remained no trace of what had
lain there. The shallow, incrusting shell of the fickle ash broke in
and fell, all the thin exterior covering dropping into the cavern which
it had inclosed! Before them lay not charred and dismembered remains,
but simply a flat table of ashes, midway along it a slightly higher
ridge, at which the wind, hitherto not conspiring, now toyed, flicking
away items here and there, carrying them, spreading them, returning
them unto the dust. Cal Greathouse had made his charge, and left it
with the Frontier to cast the reckoning.




CHAPTER XXVIII

THE TRIAL

"Your Honour," said Franklin to the Court, "I appear to defend this
man."

The opening sentence of the young advocate might have been uttered in
burlesque. To call this a court of justice might have seemed sheer
libel. There was not the first suggestion of the dignity and solemnity
of the law.

Ellisville had no hall of justice, and the court sat at one place or
another, as convenience dictated. This being an important case, and
one in which all the populace was interested, Judge Bristol had
selected the largest available assembly room, which happened to be the
central hall of Sam Poston's livery barn. The judge sat behind a large
upturned box, which supported a few battered books. At his right the
red-nosed prosecuting attorney shuffled his papers. Along the sides of
the open hall-way, through whose open doors at each end the wind passed
freely, sat jury and audience, indiscriminately mingled. The prisoner
himself, ignorant of the meaning of all this, sat on an upturned tub,
unshackled and unguarded. Back of these figures appeared the heads of
a double row of horses. The stamp of an uneasy hoof, the steady crunch
of jaws upon the hay, with now and then a moist blowing cough from a
stall, made up a minor train of intermittent sound. Back of the seated
men others were massed, standing in the doorways. Outside the building
stood crowds, now and then increased or lessened by those who passed in
or out of the room where the court was in session. These interested
spectators were for the most part dark, sunburned men, wearing wide
hats and narrow boots with spurs. They all were armed. Leaning
against the sides of the mangers, or resting a hand upon the shoulders
of another, they gazed calmly at the bar of justice. The attitude of
Ellisville was one of sardonic calm. As a function, as a show, this
trial might go on.

The trial did go on, rapidly, without quibbling, indeed without much
regard for the formalities of the law. The jury had been selected
before Franklin made his appearance, and he was given to understand
that this jury was good enough for him, and was the one before which
this prisoner should be tried. A formal motion for the discharge of
the prisoner was overruled. Without much delay the prosecuting
attorney arose to present his charge.

"Yo' Honah," said the attorney for the State, arising and striking an
attitude learned in earlier forensic days - "yo Honah, an' gentlemen, I
rise to present to you, an' to push to the ultimate penalty of the law,
a case of the most serious, the most heinyus crime, committed by the
most desperate and dangerous criminal, that has thus far ever disturbed
the peaceful course of ouah quiet little community. There he sets
befo' you," he cried, suddenly raising his voice and pointing a
forefinger at the prisoner, who sat smiling amiably. "There he sets,
the hardened and self-confessed criminal, guilty of the foulest crime
upon the calendar of ouah law. A murderer, gentlemen, a murderer with
red hands an' with the brand of Cain upon his brow! This man, this
fiend, killed ouah fellow-citizen Calvin Greathouse - he brutally
murdered him. Not content with murder, he attempted to destroy his
body with fiah, seekin' thus to wipe out the record of his crime. But
the fiah itself would not destroy the remains of that prince of men,
ouah missin' friend an' brother! His corpse cried out, accusin' this
guilty man, an' then an' there this hardened wretch fell abjeckly onto
his knees an' called on all his heathen saints to save him, to smite
him blind, that he might no mo' see, _sleepin_' or wakin', the image of
that murdered man - that murdered man, ouah friend an' brother, ouah
_citizen_ an' friend."

The orator knew his audience. He knew the real jury. The shuffling
and whispers were his confirmation.

"Yo' Honah," began the accusing voice again, "I see him now. I see
this prisoner, this murderer, the central figger of that wild an' awful
scene. He falls upon his knees, he wrings his hands, he supplicates
high Heaven - that infinite Powah which gave life to each of us as the
one most precious gift - he beseeches Providence to breathe back again
into that cold clay the divine spark of which his red hand had robbed
it. Useless, useless! The dead can not arise. The murdered man can
remain to accuse, but he can not arise again in life, He can not again
hear the songs of birds. He can not again hear the prattle of his
babes. He can not again take a friend by the hand. He can not come to
life. The heavens do not open fo' that benef'cent end!

"_But_, yo' Honah, the heavens will open! They will send down a bolt
o' justice. Nay, they would send down upon ouah heads a forked
messenger o' wrath it we should fail to administer justice, fail to do
that juty intrusted into ouah hands! There sets the man! There he is
befo' you! His guilt has been admitted. Answer me, gentlemen, what is
ouah juty in this case? Shall we set this incarnate fiend free in the
lan' again - shall we let him come clear o' this charge - shall we turn
him loose again in ouah midst to murder some other of ouah citizens?
Shall we set this man free?" His voice had sunk into a whisper as he
spoke the last words, leaning forward and looking into the faces of the
jury. Suddenly he straightened up, his clinched hand shaken high above
his head.

"No!" he cried. "No! I say to you, ten thousand times no! We are a
people quiet an' law-abidin'. We have set ouah hands to the conquest
o' this lan'. We have driven out the savages, an' we have erected heah
the vine an' fig tree of a new community. We have brought hither ouah
flocks an' herds. We shall not allow crime, _red_-handed an'
_on_-rebuked, to stalk through the quiet streets of ouah law-abidin',
moral town! This man shall not go free! Justice, yo' Honah, justice,
gentlemen, is what this community asks. An' justice is what it is
a-goin' to have. Yo' Honah, an' gentlemen, I yiel' to the statement o'
the defence."

Franklin rose and looked calmly about him while the buzzing of comment
and the outspoken exclamations of applause yet greeted the speech of
the prosecutor. He knew that Curly's thoughtless earlier description
of the scene of the arrest would in advance be held as much evidence in
the trial as any sworn testimony given in the court. Still, the
sentiment of pity was strong in his heart. He resolved to use all he
knew of the cunning of the law to save this half-witted savage. He
determined to defeat, if possible, the ends of a technical justice, in
order to secure a higher and a broader justice, the charity of a divine
mercy. As the lawyer, the agent of organized society, he purposed to
invoke the law in order to defeat the law in this, the first trial, for
this, the first hostage ever given to civilization on the old cattle
range. He prayed to see triumph an actual justice and not the old
blind spirit of revenge. He realized fully how much was there to
overcome as he gazed upon the set faces of the real jury, the crowd of
grim spectators. Yet in his soul there sprang so clear a conviction of
his duty that he felt all fogs clear away, leaving his intelligence
calm, clear, dispassionate, with full understanding of the best means
to obtain his end. He knew that argument is the best answer to oratory.

"Your Honour, and gentlemen of the jury," he began, "in defending this
man I stand for the law. The representative of the State invokes the
law.

"What is that law? Is it violence for violence, hatred for unreasoning
hate? Is that the law? Or is the love of justice, the love of fair
play, at the heart of the law? What do you say? Is it not right for
any man to have a fair chance?

"I yield to no man in my desire to see a better day of law and order in
this town. We are two years old in time, but a century old in
violence. Is it merely your wish that we add one more grave to the
long rows on our hillsides? Is that your wish? Do you want a trial,
or do you wish merely an execution? Gentlemen, I tell you this is the
most important day in the history of this town. Let us here make our
stand for the law. The old ways will no longer serve. We are at the
turning of the road. Let us follow the law.

"Now, under the law you must, in order to prove the crime of murder, be
able to show the body of the victim; you must show that murder has
really been done. You must show a motive, a reason. You must show, or
be prepared to show, when required, a mental responsibility on the part
of the accused. All these things you must show by the best possible
testimony, not by what you think, or what you have heard, but by direct
testimony, produced here in this court. You can't ask the accused man
to testify against himself. You can't ask me, his counsel, to testify
against him. Hence there is left but one witness who can testify
directly in this case. There is not one item of remains, not one bone,
one rag, one shred of clothing, not one iota of evidence introduced
before this honourable court to show that the body of Calvin Greathouse
was ever identified or found. There is no corpus delicti. How shall
you say that this missing man has been murdered? Think this thing
over. Remember, if you hang this man, you can never bring him back to
life.

"There must be some motive shown for the supposition of such an act as
murder. What motive can be shown here? Certainly not that of robbery.
The horse of the missing man came back alone, its lariat dragging, as
we shall prove. It had not been ridden since the lariat was broken.
You all know, as we shall prove, that this man Juan was never known to
ride a horse. We shall prove that he walked sixty miles, to the very
spot where the horse had been tied, and that he scorned to touch a
horse on his whole journey. He wanted no horse. He stole no horse.
That was no motive. There has been no motive shown. Would a criminal
lead the officers of the law to the very spot where he had committed
his crime? Had this been theft, or murder, would this man have taken
any one directly and unhesitatingly to that spot? I ask you this.

"To be subject to the law, as you very well know, a man must be morally
responsible. He must know right and wrong. Even the savage Indians
admit this principle of justice. They say that the man of unsound mind
is touched by the hand of the Great Spirit. Shall we be less merciful
than they? Look at this smiling giant before you. He has been touched
by the hand of the Almighty. God has punished him enough.

"I shall show to you that when this man was a child he was struck a
severe blow upon the head, and that since that time he has never been
of sound mind, his brain never recovering from that shock, a blow which
actually broke in a portion of his skull. Since that time he has had
recurrent times of violent insanity, with alternating spells of what
seems a semi-idiocy. This man's mind never grew. In some ways his
animal senses are keen to a remarkable degree, but of reason he has
little or none. He can not tell you why he does a thing, or what will
happen provided that he does thus or so. This I shall prove to you.

"I therefore submit to you, your Honour, and to you, gentlemen of the
jury, two distinct lines of defence which do not conflict, and which
are therefore valid under the law. We deny that any murder has been
committed, that any motive for murder has been shown, that any body of
the crime has been produced. And alternatively we submit that the
prisoner at the bar is a man of unsound mind and known to be such, not
responsible for his acts, and not in any wise amenable to the capital
features of the law. I ask you, gentlemen of the jury, you who hold
this man's life in your hands, are you going to hang a man for murder
when it is not shown a murder has been done? And would you hang a man
who is more ignorant than a child of right and wrong? Is that fair
play? Gentlemen, we are all here together, and one of us is as good as
another. Our ambitions are the same. We stand here together for the
best interests of this growing country - this country whose first word
has always been fair play. Now, is it your already formed wish to
punish this man? I say, no. I say, first give him his chance."

As Franklin ceased and seated himself the silence was again broken by a
rising buzz of conversation. This was proving really a very
interesting show, this trial. It must go on yet a little further.

"By jinks," said one cow-puncher, "that's right. That fellow Juan is
_loco_, an' you all done knowed that, always."

"He ain't so d - - n _loco_ but what he could kill a man, all right,"
said another,

"Sure. Cal Greathouse was worth sever'l o' this Greaser," remarked
another.

"I don't see how you c'n hang him legal," said a judicial voice.

"To h - - l with this new-fangled law," growled a rough answer from near
the door. "Are we dependin' on this here new way o' takin' care of
fellers that kills too many folks? If the Greaser done it, he's
guilty, an' that settles it. Hangin's too good for a feller that'll
kill a man in camp, an' then try to burn him up."

"That's right!" "Sure!" "That's the talk!" were the many replies
greeting this comment.

"Order, order, gentlemen!" called the judge from the bench, pounding on
the box before him.

"Call William Haskins," said the prosecuting attorney, standing up,
with his hands in his pockets.

"William Haskins, William Haskins, William Haskins! Come into Court!"
cried out the clerk from his corner of the store box. No immediate
response was made. Some one nudged Curly, who started up.

"Who - me?" he said.

"Is your name William Haskins?" asked the judge.

"Reckon _so_," said Curly. "My folks used to call me that. I usually
go under the road brand o' Curly, though." He took his seat on a stool
near the store box, was sworn, with his hat on, and the prosecuting
attorney began the examination.

"What is your name?"

"Why, Curly."

"What is your occupation?"

"What?"

"How do you make your living?"

"Punchin' cows. Not that I 'low it's any o' yore d - - d business."

"Where do you reside?"

"Where do I live?"

"Yes."

"Well, now, I don't know. My folks lives on the Brazos, an' I've been
drivin' two years. Now I taken up a claim on the Smoky, out here. I
'low I'll go North right soon, to Wyoming maybe."

"How old are you?"

"Oh, I don't know; but I 'low about twenty-four or twenty-five, along
in there."

"Where were you last Wednesday?"

"What?"

"Were you one of the _posse_ sent out to search for Cal Greathouse?"

"Yep; me and Cap Franklin, there."

"Who else?"

"Why, Juan, there, him. He was trailin' the hoss for us."

"Where did you go?"

"About sixty miles southwest, into the breaks of the Smoky."

"What did you find?"

"We found a old camp. Hoss had been tied there, and broke its lariat.
Bushes was broke some, but we didn't see no blood, as I know of."

"Never mind what you didn't see."

"Well, now - "

"Answer my question."

"Now, say, friend, you don't want to get too gay."

"Answer the question, Mr. Haskins," said the Court.

"Well, all right, judge; I'll do it to oblige you. The most we saw was
where a fire had been. Looked like a right smart fire. They was
plenty o' ashes layin' there."

"Did you see anything in the ashes?"

"What business is it o' yourn?"

"Now, now," said the Court, "you must answer the questions, Mr.
Haskins."

"All right, judge," said Curly. "Well, I dunno hardly what we did see
any mor'n what I tole all the boys when we first brought Juan in. I
tole you all."

"Correct the witness, your Honour," said Franklin.

"Answer only the questions, Mr. Haskins," said the Judge.

"Very well," said the prosecutor; "what did you see? Anything like a
man's figure?"

"We object!" said Franklin, but Curly answered: "Well, yes, it did look
like a feller a-layin' there. But when we touched it - "

"Never mind. Did the prisoner see this figure?"

"Shore."

"What did he do?"

"Well, he acted plumb _loco_. He gets down an' hollers. '_Madre de
Dios_!' he hollers. I 'low he wuz plenty scared."

"Did he look scared?"

"I object," cried Franklin.

"S'tained," said the judge.

"'Ception," said the prosecuting attorney.

"Well, what did the prisoner say or do?"

"Why, he crawls aroun' an' hollers. So we roped him, then. But
say - "

"Never mind."

"Well, I was - "

"Never mind. Did you - "

"Shore! I foun' the end o' the lariat tied to a tree."

"But did you - "

"Yes, I tole you! I foun' it tied. End just fits the broke end o' the
lariat onto the saddle, when the hoss come back. Them hide ropes ain't
no good."

"Never mind - "

"If ever they onct got rotten - "

"Never mind. Was that Greathouse's rope?"

"Maybe so. Now, them hide ropes - "

"Never mind about the hide ropes. I want to know what the prisoner
did."

"Well, when we roped him he didn't make no kick."

"Never mind. He saw the figure in the ashes?"

"What do you know about it? - you wasn't there."

"No, but I'm going to make you tell what was there."

"You are, huh? Well, you crack yer whip. I like to see any feller
make me tell anything I don't want to tell."

"That's right, Curly," said some one back in the crowd. "No bluff
goes."

"Not in a hundred!" said Curly.

"Now, now, now!" began the judge drowsily. The prosecuting attorney
counselled of craftiness, at this juncture, foreseeing trouble if he
insisted. "Take the witness," he said abruptly.

"Cross-'xamine, d'fence," said the judge, settling back.

"Now, Curly," said Franklin, as he took up the questioning again,
"please tell us what Juan did after he saw this supposed figure in the
ashes."

"Why, now, Cap, you know that just as well as I do."

"Yes, but I want you to tell these other folks about it."

"Well, of course, Juan acted plenty _loco_ - you know that."

"Very well. Now what, if anything, did you do to this alleged body in
the ashes?"

"'Bject! Not cross-examination," cried the State's attorney.

"M' answer," said the judge.

"What did I do to it?" said Curly. "Why, I poked it with a stick."

"What happened?"

"Why, it fell plumb to pieces."

"Did it disappear?"

"Shore it did. Wasn't a thing left."

"Did it look like a man's body, then?"

"No, it just looked like a pile o' ashes."

"Bore no trace or resemblance to a man, then?"

"None whatever."

"You wouldn't have taken it for a body, then?"

"Nope. Course not."

"Was any part of a body left?"

"Nary thing."

"Any boot, hat, or bit of clothing?"

"Not a single thing, fur's I c'd see."

"That's all," said Franklin.

"Re-direct, Mr. Prosecutor?" said the Court. This was Greek to the
audience, but they were enjoying the entertainment.

"Pass the re-direct," said the State's attorney confidently.

"Do you wish to recall this witness, Mr. Franklin?" asked the Court.

"Yes, if your Honour please. I want to take up some facts in the
earlier life of the prisoner, as bearing upon his present mental
condition."

"Very well," said the judge, yawning. "You may wait a while, Mr.
Haskins."

"Well, then, Curly," said Franklin, again addressing himself to his
witness, "please tell us how long you have known this prisoner."

"Ever since we was kids together. He used to be a _mozo_ on my pap's
ranch, over in San Saba County."

"Did you ever know him to receive any injury, any blow about the head?"

"Well, onct ole Hank Swartzman swatted him over the head with a
swingletree. Sort o' laid him out, some."

"'Bject!" cried the State's attorney, but the judge yawned "M' go on."

"Did he act strangely after receiving that blow?"

"Why, yes; I reckon you would yerself. He hit him a good lick. It was
fer ridin' Hank's favourite mare, an' from that time to now Juan ain't
never been on horseback since. That shows he's _loco_. Any man what
walks is _loco_. Part o' the time, Juan, he's _bronco_, but all the
time he's _loco_."

"He has spells of violence?"

"Shore. You know that. You seen how he fit that Injun - "

"Oh, keep him to the line," protested the prosecutor.

"We won't take up that just now, Curly," said Franklin.

"Well, this here shorely is the funniest layout I ever did see," said
Curly, somewhat injured. "A feller can't say a d - - d thing but only
jest what you all want him to say. Now, say - "

"Yes, but - " began Franklin, fearing that he might meet trouble with
this witness even as the prosecutor had, and seeing the latter smiling
behind his hand in recognition of this fact.

"Now, say," insisted Curly, "if you want something they ain't none o'
you said a word about yet, I'll tell you something. You see, Juan, he
had a sister, and this here Cal Greathouse, he - "

"I object, yo' Honah! I object!" cried the State's attorney, springing
to his feet. "This is bringin' the dignity o' the law into ridicule,
sah! into ridicule! I object!"

"Er, ah-h-h!" yawned the judge, suddenly sitting up, "'Journ court, Mr.
Clerk! We will set to-morrow mornin' at the same place, at nine
o'clock. - Mr. Sheriff, take charge of the prisoner. - Where is the
sheriff, Mr. Clerk?"

"Please the Court," said the prosecuting attorney, "Sheriff Watson is
not here to-day. He is lyin' sick out to his ranch. He was injured,
yo' Honah, in arrestin' Ike Anderson, and he has not yet recovered."

"Well, who is in charge of this prisoner?" said the Court. "There
ought to be some one to take care of him."

"I reckon I am, Judge," said Curly. "He is sort o' stayin' with me
while Bill's under the weather."

"Well, take him in charge, some one, and have him here in the morning."

"All right, judge," said Curly quietly, "I'll take care of him."

He beckoned to Juan, and the giant rose and followed after him, still
smiling and pleased at what to him also was a novel show.

It was three o'clock of the afternoon. The thirst of a district Judge
had adjourned the district court. Franklin's heart sank. He dreaded
the night. The real court, as he admitted to himself, would continue
its session that night at the Cottage bar, and perhaps it might not
adjourn until a verdict had been rendered.




CHAPTER XXIX

THE VERDICT

There came over the town of Ellisville that night an ominous quiet.
But few men appeared on the streets. Nobody talked, or if any one did
there was one subject to which no reference was made. A hush had
fallen upon all. The sky, dotted with a million blazing stars, looked
icy and apart. A glory of moonlight flooded the streets, yet never was
moon more cold.

Franklin finished his dinner and sat down alone for a time in the great
barren office of the depot hotel where he made his home. The
excitement of the trial, suspended at its height, was now followed by
reaction, a despondency which it was hard to shake off. Was this,


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