9 WESTERNS: The Law of the Land, The Way of a Man, Heart's Desire, The Covered Wagon, 54-40 or Fight, The Man Next Door, The Magnificent Adventure, The Sagebrusher and more. Emerson Hough
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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