NELS NELSON'S TESTIMONY
The day was very warm, and the jury sat without their coats. The
audience, who had had time to debate and argue the question over and
over, were all there ready to throng in at the opening of the doors,
and sat listening, eager, anxious, and perspiring. Some were strongly
for the young man and some were as determined for the Elder's views,
and a tension of interest and friction of minds pervaded the very
atmosphere of the court room. It had been the effort of Milton Hibbard
to work up the sentiment of those who had been so eagerly following
the trial, in favor of his client's cause, before bringing on the
final coup of the testimony of the Swede, and, last of all, that of
Betty Ballard.
Poor little Betty, never for a moment doubting her perception in her
recognition of Peter Junior, yet fearing those doubting ones in the
court room, sat at home, quivering with the thought that the truth she
must tell when at last her turn came might be the one straw added to
the burden of evidence piled up to convict an innocent man. Wordlessly
and continually in her heart she was praying that Richard might know
and come to them, calling him, calling him, in her thoughts
ceaselessly imploring help, patience, delay, anything that might hold
events still until Richard could reach them, for deep in her heart of
faith she knew he would come. Wherever in all the universe he might
be, her cry must find him and bring him. He would feel it in his soul
and fly to them.
Bertrand brought Betty and her mother news of the proceedings, from
day to day, and always as he sat in the court room watching the
prisoner and the Elder, looking from one set face to the other, he
tried to convince himself that Mary and Betty were right in their firm
belief that it was none other than Peter Junior who sat there with
that steadfast look and the unvarying statement that he was the
Elder's son, and had returned to give himself up for the murder of his
cousin Richard, in the firm belief that he had left him dead on the
river bluff.
G. B. Stiles sat at the Elder's side, and when Nels Nelson was brought
in and sworn, he glanced across at Milton Hibbard with an expression
of satisfaction and settled himself back to watch the triumph of his
cause and the enjoyment of the assurance of the ten thousand dollars.
He had coached the Swede and felt sure he would give his testimony
with unwavering clearness.
The Elder's face worked and his hands clutched hard on the arms of
his chair. It was then that Bertrand Ballard, watching him with
sorrowful glances, lost all doubt that the prisoner was in truth
what he claimed to be, for, under the tension of strong feeling, the
milder lines of the younger man's face assumed a set power of
will,--immovable,--implacable,--until the force within him seemed to
mold the whole contour of his face into a youthful image of that of
the man who refused even to look at him.
Every eye in the court room was fixed on the Swede as he took his
place before the court and was bade to look on the prisoner.
Throughout his whole testimony he never varied from his first
statement. It was always the same.
"Do you know the prisoner?"
"Yas, I know heem. Dot is heem, I seen heem two, t'ree times."
"When did you see him first?"
"By Ballards' I seen heem first--he vas horse ridin' dot time. It vas
nobody home by Ballards' dot time. Eferybody vas gone off by dot
peek-neek."
"At that time did the prisoner speak to you?"
"Yas, he asket me where is Ballards' folks, und I tol' heem by
peek-neek, und he asket me where is it for a peek-neek is dey gone,
und I tol' heem by Carter's woods by der river, und he asket me is
Mees Betty gone by dem yet or is she home, und I tol' heem yas she is
gone mit, und he is off like der vind on hees horse already."
"When did you see the prisoner next?"
"By Ballards' yard dot time."
"What time?"
"It vas Sunday morning I seen heem, talkin' mit her."
"With whom was he talking?"
"Oh, he talk mit Ballards' girl--Mees Betty. Down by der spring house
I seen heem go, und he kiss her plenty--I seen heem."
"You are sure it was the prisoner you saw? You are sure it was not
Peter Craigmile, Jr.?"
"Sure it vas heem I saw. Craikmile's son, he vas lame, und valk by der
crutch all time. No, it vas dot man dere I saw."
"Where were you when you saw him?"
"I vas by my room vere I sleep. It vas a wine growin' by der vindow
up, so dey nefer see me, bot I seen dem all right. I seen heem kiss
her und I seen her tell heem go vay, und push heem off, und she cry
plenty."
"Did you hear what he said to her?"
Bertrand Ballard looked up at the examiner angrily, and counsel for
the prisoner objected to the question, but the judge allowed it to
pass unchallenged, on the ground that it was a question pertaining to
the motive for the deed of which the prisoner was accused.
"Yas, I hear it a little. Dey vas come up und stand dere by de vindow
under, und I hear dem talkin'. She cry, und say she vas sorry he vas
kiss her like dot, und he say he is goin' vay, und dot is vot for he
done it, und he don't come back no more, und she cry some more."
"Did he say anything against his cousin at that time?"
"No, he don' say not'ing, only yust he say, 'dot's all right bouts
heem,' he say, 'Peter Junior goot man all right, only he goin' vay all
same.'"
"Was that the last time you saw the prisoner?"
"No, I seen heem dot day und it vas efening."
"Where were you when you saw him next?"
"I vas goin' 'long mit der calf to eat it grass dere by Ballards'
yard, und he vas goin' 'long mit hees cousin, Craikmile's son, und he
vas walkin' slow for hees cousin, he don' got hees crutch dot day, he
valk mit dot stick dere, und he don' go putty quvick mit it." Nels
pointed to the heavy blackthorn stick lying on the table before the
jury.
"Were the two young men talking together?"
"No, dey don' speak much. I hear it he say, 'It iss better you valk by
my arm a little yet, Peter,' und Craikmile's son, he say, 'You go vay
mit your arm, I got no need by it,' like he vas little mad yet."
"You say you saw him in the morning with Miss Ballard. Where were the
family at that time?"
"Oh, dey vas gone by der church already."
"And in the evening where were they?"
"Oh, dey vas by der house und eat supper den."
"Did you see the prisoner again that day?"
"No, I didn' see heem dot day no more, bot dot next day I seen
heem--goot I seen heem."
Harry King here asked his counsel to object to his allowing the
witness to continually assert that the man he saw was the prisoner.
"He does not know that it was I. He is mistaken as are you all." And
Nathan Goodbody leaped to his feet.
"I object on behalf of my client to the assumption throughout this
whole examination, that the man whom the witness claims to have seen
was the prisoner. No proof to that effect has yet been brought
forward."
The witness was then required to give his reasons for his assertion
that the prisoner was the man he saw three years before.
"By what marks do you know him? Why is he not the man he claims to be,
the son of the plaintiff?"
"Oh, I know heem all right. Meester Craikmile's son, he vos more white
in de face. Hees hair vas more--more--I don' know how you call
dot--crooked on hees head yet." Nels put his hand to his head and
caught one of his straight, pale gold locks, and twisted it about. "It
vas goin round so,--und it vas more lighter yet as dot man here, und
hees face vas more lighter too, und he valked mit stick all time und
he don' go long mit hees head up,--red in hees face like dis man here
und dark in hees face too. Craikmile's son go all time limpin' so."
Nels took a step to illustrate the limp of Peter Junior when he had
seen him last.
"Do you see any other points of difference? Were the young men the
same height?"
"Yas, dey vas yust so high like each other, but not so vide out yet.
Dis man he iss vider yet as Meester Craikmile's son, he iss got more
chest like von goot horse--Oh, I know by men yust de same like horses
vat iss der difference yet."
"Now you tell the court just what you saw the next day. At what time
of the day was it?"
"It vas by der night I seen heem."
"On Monday night?"
"Yas."
"Late Monday night?"
"No, not so late, bot it vas dark already."
"Tell the court exactly where you saw him, when you saw him, and with
whom you saw him, and what you heard said."
"It vas by Ballards' I seen heem. I vas comin' home und it vas dark
already yust like I tol' you, und I seen dot man come along by
Ballards' house und stand by der door--long time I seen heem stan'
dere, und I yust go by der little trees under, und vatching vat it is
for doin' dere, dot man? Und I seen heem it iss der young man vat iss
come dot day askin' vere iss Ballards' folks, und so I yust wait und
look a little out, und I vatchin' heem. Und I seen heem stand und
vaitin' minute by der door outside, und I get me low under dem little
small flowers bushes Ballards is got by der door under dot vindow
dere, und I seen heem, he goin' in, and yust dere is Mees Betty
sittin', und he go quvick down on hees knees, und dere she yump lak
she is scairt. Den she take heem hees head in her hands und she asket
heem vat for is it dat blud he got it on hees head, und so he say it
is by fightin' he is got it, und she say vy for is he fightin', und he
say mit hees cousin he fight, und hees cousin he hit heem so, und she
asket heem vy for is hees cousin hit heem, und vy for iss he fightin'
mit hees cousin any vay, und den dey bot is cryin'. So I seen dot--und
den she go by der kitchen und bring vater und vash heem hees head und
tie clots round it so nice, und dere dey is talkin', und he tol' her
he done it."
"What did he tell her he had done?"
"Oh, he say he keel heem hees cousin. Dot vat I tol' you he done it."
"How did he say he killed him?"
The silence in the court room was painful in its intensity. The Elder
leaned forward and listened with contorted face, and the prisoner held
his breath. A pallor overspread his face and his hands were clenched.
"Oh, he say he push heem in der rifer ofer, und he do it all right for
he liket to do it, but he say he goin' run vay for dot."
"You mean to say that he said he intended to push him over? That he
tried to do it?"
"Oh, yas, he say he liket to push heem ofer, und he liket to do dot,
but he sorry any vay he done it, und he runnin' vay for dot."
"Tell the court what happened then."
"Den she get him somedings to eat, und dey sit dere, und dey talk, und
dey cry plenty, und she is feel putty bad, und he is feel putty bad,
too. Und so--he go out und shut dot door, und he valkin' down der
pat', und she yust come out der door, und run to heem und asket heem
vere he is goin' und if he tell her somedings vere he go, und he say
no, he tell her not'ing yet. Und den she say maybe he is not keel heem
any vay, bot yust t'inkin' he keel him, und he tol' her yas, he keel
heem all right, he push heem ofer und he is dead already, und so he
kiss her some more, und she is cry some more, und I t'ink he is cry,
too, bot dot is all. He done it all right. Und he is gone off den, und
she is gone in her house, und I don't see more no."
As the witness ceased speaking Mr. Hibbard turned to counsel for the
prisoner and said: "Cross-examine."
Rising in his place, and advancing a few steps toward the witness, the
young lawyer began his cross-examination. His task did not call for
the easy nonchalance of his more experienced adversary, who had the
advantage of knowing in advance just what his witness would testify.
It was for him to lead a stubborn and unwilling witness through the
mazes of a well-prepared story, to unravel, if possible, some of its
well-planned knots and convince the jury if he could that the witness
was not reliable and his testimony untrustworthy.
But this required a master in the art of cross-examination, and a
master begins the study of his subject--the witness--before the trial.
In subtle ways with which experience has made him familiar, he studies
his man, his life, his character, his habits, his strength, his
weakness, his foibles. He divines when he will hesitate, when he will
stumble, and he is ready to pounce upon him and force his hesitation
into an attempt at concealment, his stumble into a fall.
It is no discredit to Nathan Goodbody that he lacked the skill and
cunning of an astute cross-examiner. Unlike poets, they are made, not
born, and he found the Swede to be a difficult witness to handle to
his purpose. He succeeded in doing little more than to get him to
reaffirm the damaging testimony he had already given.
Being thus baffled, he determined to bring in here a point which he
had been reserving to use later, should Milton Hibbard decide to take
up the question of Peter Junior's lameness. As this did not seem to be
imminent, and the testimony of Nels Nelson had been so convincing, he
wished of all things to delay the calling of the next witness until he
could gain time, and carry the jury with him. Should Betty Ballard be
called to the stand that day he felt his cause would be lost.
Therefore, in the moment's pause following the close of his
cross-examination of the last witness, he turned and addressed the
court.
"May it please the Court. Knowing that there is but one more witness
to be called, and that the testimony of that witness can bring forward
no new light on this matter, I have excellent reason to desire at this
time to move the Court to bring in the verdict of not guilty."
At these words the eyes of every one in the court room were turned
upon the speaker, and the silence was such that his next words, though
uttered in a low voice, were distinctly heard by all present.
"This motion is based upon the fact that the State has failed to prove
the _corpus delicti_, upon the law, which is clear, that without such
proof there can be no conviction of the crime of murder. If the
testimony of the witness Nels Nelson can be accepted as the admission
of the man Richard Kildene, until the State can prove the _corpus
delicti_, no proof can be brought that it is the admission of the
prisoner at the bar. I say that until such proof can be brought by the
State, no further testimony can convict the prisoner at the bar. If it
please the Court, the authorities are clear that the fact that a
murder has been committed cannot be established by proof of the
admissions, even of the prisoner himself that he has committed the
crime. There must be direct proof of death as by finding and
identification of the body of the one supposed to be murdered. I have
some authorities here which I would like to read to your honor if you
will hear them."
The face of the judge during this statement of the prisoner's counsel
was full of serious interest. He leaned forward with his elbow on the
desk before him, and with his hand held behind his ear, intent to
catch every word. As counsel closed the judge glanced at the clock
hanging on the wall and said:--
"It is about time to close. You may pass up your authorities, and I
will take occasion to examine them before the court opens in the
morning. If counsel on the other side have any authorities, I will be
pleased to have them also."