XII

"Ostrich, _n._ A large bird to which (for its sins, doubtless) nature

has denied the hinder toe in which so many pious naturalists have

seen a conspicuous evidence of design. The absence of a good working

pair of wings is no defect, for, as has been ingeniously pointed out,

the ostrich does not fly."

--_The Devil's Dictionary._

"Fare you well:

Hereafter, in a better world than this,

I shall desire more love and knowledge of you."

--_As You Like It._

Mr. Benjamin Attlebury Wade paced a narrow beat on the matted floor.

Johnny Dines, shirt-sleeved, in the prisoners' box, leaned forward in

his chair to watch, delighted. Mr. Benjamin Attlebury Wade was

prosecuting attorney, and the mat was within the inclosure of the

court room, marked off by a wooden rail to separate the law's

machinery from the materi--That has an unpleasant sound. To separate

the taxpayer from--No, that won't do. To separate the performers from

the spectators--that is much better. But even that has an offensive

sound. Unintentionally so; groping, we near the heart of the mystery;

the rail was to keep back the crowd and prevent confusion. That it has

now become a sacramental barrier, a symbol and a sign of esoteric

mystery, is not the rail's fault; it is the fault of the people on

each side of the rail. Mr. Wade had been all the long forenoon

examining Caney and Weir, and was now searching the deeps of his mind

for a last question to put to Mr. Hales, his last witness. Mr. Wade's

brow was furrowed with thought; his hands were deep in his own

pockets. Mr. Wade's walk was leisurely important and fascinating to

behold. His foot raised slowly and very high, very much as though

those pocketed hands had been the lifting agency. When he reached the

highest point of each step his toe turned up, his foot paused, and

then felt furtively for the floor--quite as if he were walking a rope,

or as if the floor might not be there at all. The toe found the floor,

the heel followed cautiously, they planted themselves on the floor and

took a firm grip there; after which the other foot ventured forward.

With such stealthy tread the wild beast of prey creeps quivering to

pounce upon his victim. But Mr. Wade never leaped. And he was not

wild.

The court viewed Mr. Wade's constitutional with some impatience, but

Johnny Dines was charmed by it; he felt a real regret when Mr. Wade

turned to him with a ferocious frown and snapped: "Take the witness!"

Mr. Wade parted his coat tails and sat down, performing that duty with

the air of a sacrament. Johnny did not rise. He settled back

comfortably in his chair and looked benevolently at the witness.

"Now, Mr. Hales, about that yearling I branded in Redgate canyon--what

color was it?"

Mr. Wade rose, indignant.

"Your honor, I object! The question is irrelevant, incompetent and

immaterial. Aside from its legal status, such a question is foolish

and absurd, and an insult to the court."

"Why, now, I didn't object to any of your foolish and absurd questions

all morning." Johnny's eyes widened with gentle reproach. "I let you

ask all the questions you wanted."

Mr. Wade's nose twisted to a triumphant sneer.

"'He who is his own lawyer has a fool for a client!'"

"I didn't want to take any unfair advantage," explained Johnny.

"Gentlemen! Gentlemen!" expostulated the court.

"You gallows meat!" snarled Wade. "You dirty--"

Johnny shook his head in a friendly warning. "He means you, too," he

whispered.

The gavel fell heavily. The court rose up and the court's eyes

narrowed.

"This bickering has got to stop! It is disgraceful. I don't want to

see any more of it. Mr. Wade, for that last remark of yours you ought

to pay a heavy fine, and you know it very well. This prisoner is being

tried for murder. That does not make him a murderer. Your words were

unmanly, sir."

"May it please the court," said Wade, white faced and trembling with

rage, "I acknowledge myself entirely wrong, and I beg the court's

pardon. I own that I was exasperated. The prisoner insulted me

grossly."

"You insulted him first. You have been doing it right along. You

lawyers are always browbeating witnesses and prisoners. You get 'em

where they can't talk back and then you pelt 'em with slurs and hints

and sneers and insults. You take a mean advantage of your privileged

position to be overbearing and arrogant. I've watched you at it. I

don't think it is very sporting to say in the court room what you

wouldn't dare say on the street. But when someone takes a whack at

you--wow! that's different! Then you want the court to protect you."

He paused to consider.

The justice of the peace--Judge Hinkle, Andy Hinkle--was a slim,

wizened man, brown handed, brown faced, lean and wrinkled, with

thin gray hair and a thin gray beard and faded blue eyes, which could

blaze blue fire on occasion. Such fire, though a mild one, now died

away from those old eyes, and into them crept a slightly puzzled

expression. He looked hard at Mr. Wade and he looked hard at Mr.

Dines. Then he proceeded.

"Mr. Wade, this court--Oh, let's cut out the court--that makes me

tired! 'This court fines you twenty-five dollars for contempt of

court.' How would that sound?"

Wade managed a smile, and bowed, not ungracefully. "It would sound

unpleasant--perhaps a little severe, sir."

The court twinkled. "I was only meaning how silly it seemed to a plain

man for him to have to refer to himself as the court. I'm not going to

fine you, Mr. Wade--not this time. I could, of course, but I won't. It

would be unfair to lecture you first and then fine you. Besides, there

is something else. You have had great provocation and I feel compelled

to take that into consideration. Your apology is accepted. I don't

know who began it--but if you have been insulting the prisoner it is

no less true that the prisoner has been aggravating you. I don't know

as I ever saw a more provoking man. I been keepin' an eye on him--his

eyebrows, the corners of his eyes, the corners of his mouth, his

shoulder-shrugging, and his elbows, and his teeth and his toes. Mr.

Wade, your moldy old saw about a fool for a client was never more

misplaced. This man can out talk you and never open his mouth. I'd

leave him alone if I was you--he might make a fool of you."

Johnny half opened his mouth. The judge regarded him sternly. The

mouth closed hastily. Johnny dimpled. The judge's hammer fell with a

crash.

"I give you both fair notice right now," said Judge Hinkle, "if you

start any more of this quarreling I'm goin' to slap on a fine that'll

bring a blister."

Johnny rose timidly and addressed the court.

"Your Honor, I'm aimin' to 'tend strictly to my knittin' from now

on. But if I should make a slip, and you do have to fine me--couldn't

you make it a jail sentence instead? I'm awful short of money, Your

Honor."

He reached behind him and hitched up the tail of his vest with both

hands, delicately; this accomplished, he sank into his chair, raised

his trousers gently at the knee and gazed about him innocently.

"My Honor will be--"

The judge bit the sentence in two, leaving the end in doubt; he

regarded the prisoner with baleful attention. The prisoner gazed

through a window. The judge beckoned to Mr. Gwinne, who sat on the

front seat between See and Hobby Lull. Mr. Gwinne came forward. The

judge leaned across the desk.

"Mr. Gwinne, do you feed this prisoner well?"

"Yes, sir."

"About what, now, for instance?"

"Oh--beefsteak, ham and eggs, _enchilados_, canned stuff--most

anything."

"Mr. Gwinne, if I told you to put this prisoner on a strict ration,

would you obey orders?"

"I certainly would."

"That's all," said the judge. "Thank you. Mr. Dines, you may go on

with the case. The witness may answer the question. Objection

overruled. State your question again, Mr. Dines."

"Mr. Hales, will you tell His Honor what color was the calf I branded

in Redgate Canyon, day before yesterday, about two o'clock in the

afternoon?"

"I don't know," answered Hales sulkily.

"Oh! You didn't see it, then?"

"No."

"Then you are not able to state that it was a calf belonging to Adam

Forbes?"

"No."

Johnny's eyes sought the window. "Nor whether it was a calf or a

yearling?"

"Of course not."

"Did you see me brand the calf?"

"I did not!" Hales spat out the words with venomous emphasis. Johnny

was unmoved.

"Will you tell the court if the brand I put on this heifer calf or

bull yearling was my brand or Adam Forbes' brand?"

The gavel fell.

"Objection!" barked Wade.

"Sustained. The question is improperly put. The witness need not

answer it. The counsel for the defense need not continue along these

lines. I am quite able to distinguish between evidence and surmise,

between a stated fact and unfair suggestion."

"Does Your Honor mean to insinuate--"

"Sit down, Mr. Wade! Sit down! My Honor does not mean to insinuate

anything. My Honor means to state that you have been trying to throw

dust in my eyes. My Honor wishes to state that you should never have

been allowed to present your evidence in any such shape, and if the

prisoner had been represented by a competent lawyer you would not have

been allowed--"

The judge checked himself; his face fell; he wheeled his chair slowly

and glared at the prisoner with awful solemnity. "Dines! Is that why

you made no objections? So the prosecuting attorney would queer

himself with this court by attempting unfair tactics? Answer me, sir!"

"But is it likely, Your Honor, that I could see ahead as far as that?"

"Humph!" snorted His Honor. He turned back to the prosecuting

attorney. "Mr. Wade, I am keeping cases on you. Your questions have

been artfully framed to lead a simple old man astray--to bewilder him

until he is ready to accept theory, surmise and suggestion as

identical with a statement of facts or statements purporting to be

facts. I'm simple and old, all right--but I never did learn to lead."

Mr. Benjamin Attlebury Wade sprang to his feet.

"Your Honor, I protest! You have been openly hostile to the

prosecution from the first."

"Ah!" said the judge mildly. "You fear my remarks may unduly influence

my decision--is that it? Calm yourself, Mr. Wade. I cannot say that I

blame you much, however. You see, I think United States, and when I

have to translate into the customary idiomcies of the law I do a bum

job." He turned his head and spoke confidentially to the delighted

court room. "Boys, it's gettin' me!" he said. "Did you hear that

chatter I put out, when all I wanted to say was that I still knew

sugar from salt and sawdust from cornmeal--also, in any case of

extreme importance, as hereinbefore mentioned, and taking in

consideration the fine and subtle nuisances of delicate thought, as

it were, whereas, being then and there loaded with shot and slugs, I

can still tell a hawk from a handsaw. Why, I'm getting so I talk

that jargon to my jackass when I wallop him over the place made and

provided on him, the said jackass, with a _curajo_ pole! I'll tell you

what--the first man I catch voting for me next year I'm going to pat

him over the head with a pickhandle. You may proceed with the case,

Mr. Dines."

"This is an outrage!" bawled the furious and red-faced prosecutor.

"This is an outrage! An outrage! These proceedings are a mockery! This

whole trial is a travesty on justice!"

The gavel banged down.

"This court is now adjourned," announced Judge Hinkle.

He leaned back in his chair and sighed luxuriously. He took out a pair

of steel-rimmed spectacles and polished them; he held them poised

delicately in one hand and beamed benevolently on the crowded court

room.

"We have had a very trying forenoon," observed Mr. Hinkle blandly.

"Perhaps some of us are ruffled a little. But I trust that nothing

which has happened in this court room will cause any hard feeling of a

lasting character. And I strongly advise that under no circumstances

will any of you feel impelled to take any man and put his head under a

pump, and pump on his head." The gavel rapped smartly. "This court

will now come to order! Mr. Dines, as I remarked before recess, you

will now proceed with the case."

"I'll not detain you long, Mr. Hales," said Johnny. "I didn't bother

to cross-examine the previous witnesses"--he smiled upon Caney and

Weir--"because they are suffering from the results of an accident. In

the mines, as I hear. Mining is a dangerous business. Very. Sometimes

a man is just one-sixteenth of a second slow--and it gets him trouble.

I understand, Mr. Hales, that you three gentlemen were together when

you found the murdered man?"

"Yes."

"You had been prospecting together?"

"Prospecting, and looking for saddle thieves."

"Did you find the saddle thieves?"

"No; I told you once."

"No," said Johnny; "you told Mr. Wade. Find any mines?"

"Yes."

"Good prospect?"

"I think so."

"Um--yes." Johnny hesitated, and fell silent. Hales fidgeted. "And the

murdered man," began Johnny slowly, and stopped. Hales heaved a sigh

of relief. Johnny darted a swift glance at the judge. "And the

murdered man had been shot three times?"

"Three times. In the back."

"The shots were close together?"

"Yes. My hand would have covered all three."

"Sure of that?"

"Positive."

"In your opinion, these shots had been fired at close range?"

An interruption came. Four men trooped into the door, booted and

spurred; three of the John Cross men--Tom Ross, Frank Bojarquez, Will

Foster; with Hiram Yoast, of the Bar Cross: four fit to stand by

Caesar. A stir ran through the court room. They raised their hands to

Johnny in grave salute; they filed to a bench together.

Johnny repeated the question: "You say, Mr. Hales, that these three

shots had been fired at close range?"

"The dead man's shirt was burned. The gun must have been almost

between his shoulder blades."

"Was there any blood on Forbes' saddle?"

"I didn't see Forbes' saddle," growled Hales; "or Forbes' horse."

"Oh, yes. But in your opinion, Forbes was riding when he was killed?"

"In my opinion, he was."

"What makes you think so?"

"We found the tracks where Forbes was dragged, twenty feet or so,

before his foot come loose from the stirrup, and blood in the track

all the way. I told all this before."

"So you did, so you did. Now about these wounds. Did the path of the

bullets range up or down from where they entered the body?"

"Down."

"Sure of that?"

"Yes."

"Did you examine the body?"

"How else would I know? Of course I did."

"Show the court, on your own body, about where the wounds were

located."

"They went in about here"--indicating--"and come out about here."

"Thank you. Then the shots passed obliquely through the body, entering

behind, somewhere near the left shoulder blade, and coming out at a

point slightly lower, and under the right breast?"

"About that, yes."

"All indicating that the murderer rode at his victim's left hand, and

a little behind him, when these shots were fired?"

"I think so, yes."

"And that the gun muzzle must have been a little higher than the

wounds made by the entering bullets, because the bullets passed

through the body with a slightly downward trend?"

"That is right."

"How big was the murdered man?"

"He was a very large man."

"Very heavy or very tall?"

"Both, I should say. It is hard to judge a dead man's height. He was

very heavily built."

"You lifted him?"

"I turned him over."

"How tall was he, would you say?"

"I tell you, I don't know." Hales was visibly more impatient with each

question.

"Of course you don't know. But you can make a guess. Come, give the

court your estimate."

"Not less than six feet, I should say. Probably more."

"Did you see Adam Forbes' horse--no, you told us that. But you saw my

horse when you arrested me?"

"Yes."

"Was my horse a small horse or a large one?"

"A small one."

Johnny rose and strolled to the window.

"Well, about how high?"

"About fourteen hands. Possibly an inch more."

"Would you know my horse again?"

"Certainly."

"So you could swear to him?"

"Yes."

"What color was he?"

"A _grullo_--a very peculiar shade of _grullo_--a sleek glossy,

velvety blue."

"Was he thin or fat?"

"Neither. Smooth--not fat."

"Did you notice his brand?"

"Of course."

"Describe it to the court."

"He was branded K I M on the left hip."

"On which side did his mane hang?"

"On the left."

"Thank you. Now, Mr. Hales, would you describe me as a large man or a

small one?"

Hales looked an appeal to the prosecutor.

"I object to that question--improper, irrelevant, incompetent and

immaterial. And that is not all. This man, this man Dines, is arguing

the case as he goes along, contrary to all rule."

"I like it that way," observed the judge placidly. "If he makes his

point as the evidence is given, I'm not likely to miss any bets, as I

might do if he waited for the summing up."

"I objected to the question," snapped the prosecutor. "I demand your

ruling."

"Has the defense anything to offer? That question would certainly seem

to be superfluous on the face of it," said the court, mildly.

"Your Honor," said Johnny, "I want to get this down on the record in

black and white. Someone who has never seen me may have to pass on

this evidence before we get done. I want that person to be sure of my

size."

"Objection overruled."

"Please describe me--as to size--Mr. Hales."

"A very small man," answered Hales sulkily.

"In your opinion, when I shot Adam Forbes did I stand on my saddle? Or

could I have inflicted a wound such as you have described by simply

kneeling on my saddle--"

"I object!"

"--if Adam Forbes rode a horse big enough to carry his weight, and I

rode a horse fourteen hands high?"

Wade leaped to his feet and flung out his hands. "I object!" he

shrilled.

"Objection sustained. The question is most improper. I shall instruct

myself to disregard it in making my decision."

"That's all," said Johnny Dines; and sat down.

"Any more witnesses for the prosecution, Mr. Wade?"

"No, sir. The prosecution rests."