Massacre at Powder River

“The objection, Your Honor, is that if the stolen cattle had your brand that means they belonged to you.”

“Now that, Mr. Dempster, is a brilliant deduction,” Frewen said sarcastically. “Yes, the cattle with my brand do belong to me.”

“And that is exactly my point, Your Honor. I suggest that since you have a vested interest in the outcome of this trial that you might be incapable of rendering a fair and honest verdict, and I ask that you recuse yourself.”

“Are you challenging my honesty, sir?”

“No, I wouldn’t say that. It’s just that ...”

“Just what?”

“Just that ... well, sir, I will be filing a protest on that as well,” Dempster said, knowing that he was losing the battle.

“Please feel free to do so,” Frewen said. “Do you have any questions of this witness?”

“Yes,” Dempster said. “Mr. Jensen, you openly admit here, in this court, that you shot and killed Zeke Holloway?”

“Yes.”

“Why did you shoot him?”

“Because he tried to shoot me.”

“And why is it that while you shot Mr. Holloway, you did not shoot the defendant?”

“Because he didn’t try to shoot me,” Matt answered, easily.

“Thank you, no further questions. Defense calls the defendant to the stand.”

Sullenly, Clem took the stand.

“Did you kill Burt Rawlings?”

“No, it wasn’t me, it was Zeke that done the shootin’.”

“No further questions,” Dempster said.

“Redirect?” Frewen asked.

Gilmore didn’t approach, but asked from his chair. “How do you know it was Zeke Holloway who killed Burt Rawlings?”

“Because I seen him do it.”

“Were you also shooting?”

“Yeah, but it was Zeke who done the actual killing.”

“No further questions.”

“Closing argument, Mr. Dempster?” Frewen offered.

“I continue to protest your authority to conduct this trial. And I especially protest your authority to order capital punishment,” Dempster said.

“Noted,” Frewen said without further discussion.

“And, you heard my client. He says he didn’t do it. He says that the actual killing was done by Zeke Holloway. I submit that since both were firing, it is impossible, even for an eyewitness, to testify as to which gun the bullet came from that killed Burt Rawlings. And, since our system of law requires guilt be established beyond any reasonable doubt, then the jury will have no recourse but to acquit.”

Dempster sat down and Clem looked at him.

“That’s the best you can do?” he asked.

“Under the circumstances, yes. That is the best I can do,” Dempster said.

“Summation, Mr. Prosecutor?” Frewen asked.

“My summation is simple enough, Your Honor. Mr. Singleton saw the defendant kill Burt Rawlings. Mr. Jensen recovered the pistols and the cows the defendant and Zeke Holloway stole, which establishes motive and means. And Mr. Clem No Last Name claims that he was present during the shooting, indeed that he was shooting as well, though he says that it was a bullet from Holloway’s gun, and not his, that killed Mr. Rawlings. His own testimony is prima facie par delictum actus reus, unimpeachable evidence that the crime was committed and that he was there. That means, Your Honor, that he bears equal responsibility. Under the law, if he is participating in the shooting, he is guilty of murder whether any of his bullets struck the victim or not.”

“Thank you. The jury may now retire to consider the verdict,” Frewen said.

“Mr. Frewen,” the jury foreman said. “There’s no need for us to retire to consider the verdict. We can talk it over right here, amongst ourselves. Won’t take more’n a minute or two.”

“Very well. Make your decision.”

The twelve men gathered together for a moment to discuss it. Though they spoke too quietly for anyone else to hear, it was obvious that there was little or no disagreement among them. Then they retook their seats.

“We got the verdict now,” the foreman said.

“What is the verdict?”

“We find the son of a bitch guiltier than hell.”