THE TRIAL
After Mr. Ballard's visit to the jail, he took upon himself to do what
he could for the young man, out of sympathy and friendship toward both
parties, and in the cause of simple justice. He consulted the only
available counsel left him in Leauvite, a young lawyer named Nathan
Goodbody, whom he knew but slightly.
He told him as much of the case as he thought proper, and then gave
him a note to the prisoner, addressing him as Harry King. Armed with
this letter the young lawyer was soon in close consultation with his
new client. Despite Nathan Goodbody's youth Harry was favorably
impressed. The young man was so interested, so alert, so confident
that all would be well. He seemed to believe so completely the story
Harry told him, and took careful notes of it, saying he would prepare
a brief of the facts and the law, and that Harry might safely leave
everything to him.
"You were wounded in the hip, you say," Nathan Goodbody questioned
him. "We must not neglect the smallest item that may help you, for
your case needs strengthening. You say you were lamed by it--but you
seem to have recovered from that. Is there no scar?"
"That will not help me. My cousin was wounded also, but his was only a
flesh wound from which he quickly recovered and of which he thought
nothing. I doubt if any one here in Leauvite ever heard of it, but
it's the irony of fate that he was more badly scarred by it than I. He
was struck by a spent bullet that tore the flesh only, while the one
that hit me went cleanly to the bone, and splintered it. Mine laid me
up for a year before I could even walk with crutches, while he was
back at his post in a week."
"And both wounds were in the same place--on the same side, for
instance?"
"On the same side, yes; but his was lower down. Mine entered the hip
here, while he was struck about here." Harry indicated the places with
a touch of his finger. "I think it would be best to say nothing about
the scars, unless forced to do so, for I walk as well now as I ever
did, and that will be against me."
"That's a pity, now, isn't it? Suppose you try to get back a little of
the old limp."
Harry laughed. "No, I'll walk straight. Besides they've seen me on the
street, and even in my father's bank."
"Too bad, too bad. Why did you do it?"
"How could I guess there would be such an impossible development?
Until I saw Miss Ballard here in this cell I thought my cousin dead.
Why, my reason for coming here was to confess my crime, but they won't
give me the chance. They arrest me first of all for killing myself.
Now that I know my cousin lives I don't seem to care what happens to
me, except for--others."
"But man! You must put up a fight. Suppose your cousin is no longer
living; you don't want to spend the rest of your life in the
penitentiary because he can't be found."
"I see. If he is living, this whole trial is a farce, and if he is
not, it's a tragedy."
"We'll never let it become a tragedy, I'll promise you that." The
young man spoke with smiling confidence, but when he reached his
office again and had closed the door behind him, his manner changed
quickly to seriousness and doubt.
"I don't know," he said to himself, "I don't know if this story can be
made to satisfy a jury or not. A little shady. Too much coincidence to
suit me." He sat drumming with his fingers on his desk for a while,
and then rose and turned to his books. "I'll have a little law on this
case,--some point upon which we can go to the Supreme Court," and for
the rest of that day and long into the night Nathan Goodbody consulted
with his library.
In anticipation of the unusual public interest the District Attorney
directed the summoning of twenty-five jurors in addition to the
twenty-five of the regular panel. On the day set for the trial the
court room was packed to the doors. Inside the bar were the lawyers
and the officers of the court. Elder Craigmile sat by Milton Hibbard.
In the front seats just outside the bar were the fifty jurors and back
of them were the ladies who had come early, or who had been given the
seats of their gentlemen friends who had come early, and whose
gallantry had momentarily gotten the better of their judgment.
The stillness of the court room, like that of a church, was suddenly
broken by the entrance of the judge, a tall, spare man, with gray hair
and a serious outlook upon life. As he walked toward his seat, the
lawyers and officers of the court rose and stood until he was seated.
The clerk of the court read from a large book the journal of the court
of the previous day and then handed the book to the judge to be
signed. When this ceremony was completed, the judge took up the court
calender and said,--
"The State _v._ Richard Kildene," and turning to the lawyers engaged
in the case added, "Gentlemen, are you ready?"
"We are ready," answered the District Attorney.
"Bring in the prisoner."
When Harry entered the court room in charge of the sheriff, he looked
neither to the right nor to the left, and saw no one before him but
his own counsel, who arose and extended a friendly hand, and led him
to a seat beside himself within the bar.
Nathan Goodbody then rose, and, addressing the court with an air of
confident modesty, as if he were bringing forward a point so strong as
to require nothing more than the simple statement to give it weight,
said:--
"If the court please, the defense is ready, but I have noticed, as no
doubt the court has noticed, a distinguished member of this bar
sitting with the District Attorney as though it were intended that he
should take part in the trial of this case, and I am advised that he
intends to do so. I am also advised that he is in the employ of the
complaining witness who sits beside him, and that he has received, or
expects to receive, compensation from him for his services. I desire
at the outset of this case to raise a question as to whether counsel
employed and paid by a private person has a right to assist in the
prosecution of a criminal cause. I therefore object to the appearance
of Mr. Hibbard as counsel in this case, and to his taking any part in
this trial. If the facts I have stated are questioned, I will ask
Elder Craigmile to be sworn."
The court replied: "I shall assume the facts to be as stated by you
unless the counsel on the other side dissent from such a statement.
Considering the facts to be as stated, your objection raises a novel
question. Have you any authorities?"
"I do not know that the Supreme Court of this State has passed upon
this question. I do not think it has, but my objection finds support
in the well-established rule in this country, that a public prosecutor
acts in a quasi-judicial capacity. His object, like that of the court,
should be simple justice. The District Attorney represents the public
interest which can never be promoted by the conviction of the
innocent. As the District Attorney himself could not accept a fee or
reward from private parties, so, I urge, counsel employed to assist
him must be equally disinterested."
"The court considers the question an interesting one, but the practice
in the past has been against your contention. I will overrule your
objection, and give you an exception. Mr. Clerk, call a jury!"[1]
Then came the wearisome technicalities of the empaneling of a jury,
with challenges for cause and peremptory challenges, until nearly the
entire panel of fifty jurors was exhausted.
In this way two days were spent, with a result that when counsel on
both sides expressed themselves as satisfied with the jury, every one
in the court room doubted it. As the sheriff confided to the clerk, it
was an even bet that the first twelve men drawn were safer for both
sides than the twelve men who finally stood with uplifted hands and
were again sworn by the clerk. Harry King, who had never witnessed a
trial in his life, began to grow interested in these details quite
aside from his own part therein. He watched the clerk shaking the box,
wondering why he did so, until he saw the slips of paper being drawn
forth one by one from the small aperture on the top, and listened
while the name written on each was called aloud. Some of the names
were familiar to him, and it seemed as if he must turn about and speak
to the men who responded to their roll call, saying "here" as each
rose in his place behind him. But he resisted the impulse, never
turning his head, and only glancing curiously at each man as he took
his seat in the jury box at the order of the judge.
During all these proceedings the Elder sat looking straight before
him, glancing at the prisoner only when obliged to do so, and coldly
as an outsider might do. The trial was taking more time than he had
thought possible, and he saw no reason for such lengthy technicalities
and the delay in calling the witnesses. His air was worn and weary.
The prisoner, sitting beside his counsel, had taken less and less
interest in the proceedings, and the crowds, who had at first filled
the court room, had also lost interest and had drifted off about their
own affairs until the real business of the taking of testimony should
come on, till, at the close of the second day, the court room was
almost empty of visitors. The prisoner was glad to see them go. So
many familiar faces, faces from whom he might reasonably expect a
smile, or a handshake, were it possible, or at the very least a nod of
recognition, all with their eyes fixed on him, in a blank gaze of
aloofness or speculation. He felt as if his soul must have been in
some way separated from his body, and then returned to it to find all
the world gazing at the place where his soul should be without seeing
that it had returned and was craving their intelligent support. The
whole situation seemed to him cruelly impossible,--a sort of insane
delusion. Only one face never failed him, that of Bertrand Ballard,
who sat where he might now and then meet his eye, and who never left
the court room while the case was on.
When the time arrived for the introduction of the witnesses, the court
room again filled up; but he no longer looked for faces he knew. He
held himself sternly aloof, as if he feared his reason might leave him
if he continued to strive against those baffling eyes, who knew him
and did not know that they knew him, but who looked at him as if
trying to penetrate a mask when he wore no mask. Occasionally his
counsel turned to him for brief consultation, in which his part
consisted generally of a nod or a shake of the head as the case might
be.
While the District Attorney was addressing the jury, Milton Hibbard
moved forward and took the District Attorney's seat.
Then followed the testimony of the boys--now shy lads in their teens,
who had found the evidences of a struggle and possible murder so long
before on the river bluff. Under the adroit lead of counsel, they told
each the same story, and were excused cross-examination. Both boys had
identified the hat found on the bluff, and testified that the brown
stain, which now appeared somewhat faintly, had been a bright red, and
had looked like blood.
Then Bertrand Ballard was called, and the questions put to him were
more searching. Though the manner of the examiner was respectful and
courteous, he still contrived to leave the impression on those in the
court room that he hoped to draw out some fact that would lead to the
discovery of matters more vital to the case than the mere details to
which the witness testified. But Bertrand Ballard's prompt and
straightforward answers, and his simple and courteous manner, were a
full match for the able lawyer, and after two hours of effort he
subsided.
Then the testimony of the other witnesses was taken, even to that of
the little housemaid who had been in the family at the time, and who
had seen Peter Junior wear the hat. Did she know it for his? Yes. Why
did she know it? Because of the little break in the straw, on the edge
of the brim. But any man's hat might have such a break. What was there
about this particular break to make it the hat of Peter Junior?
Because she had made it herself. She had knocked it down one day when
she was brushing up in the front hall, and when she hung it up again,
she had seen the break, and knew she had done it.
And thus, in the careful scrutiny of small things, relating to the
habits, life, and manner of dressing of the two young men,--matters
about which nobody raised any question, and in which no one except the
examiner took any interest,--more days crept by, until, at last, the
main witnesses for the State were reached.
[1] The question raised by the prisoner's counsel was ruled in favor
of his contention in Biemel v. State. 71 Wis. 444, decided in
1888.