Brian Garfield (47 page)

There were testimonies as to the discovery of the body of Riley Luffsey, the determination that it was in fact dead, the doctor's statements about the bullet wounds inflicted upon Dutch Reuter and Frank O'Donnell, the observation that O'Donnell's rifle (Territory's Exhibit B) had been smashed beyond use by the impact of a forceful missile, the testification that three horses had been shot dead and the bullets removed from their carcasses and preserved (Territory's Exhibits C, D, E), the analysis of bullet holes in Luffsey's clothing (Territory's Exhibits F, G, H), the finding that the cause of Luffsey's death was a bullet wound in the neck, and Sheriff Harmon's claim—which came as a total surprise to Pack, and caused an audible gasp in the audience—that investigation of the scene of violence had produced a slightly flattened lead slug that was without doubt the bullet that had killed Luffsey (Territory's Exhibit A).

Ted Long, clearly knowing he had scored a crucial point with audience and jury alike, waited until silence had settled upon the courtroom. Then he said, in a quiet voice that made everyone lean forward, “Now Sheriff Harmon, I ask how you know this is the specific bullet that caused the demise of the decedent. Was it found inside the body?”

“No sir.”

“Where was it found?”

“In a cutbank twenty-eight feet from the corpse.”

“You measured that distance?”

“Yes sir.”

“There were, I take it, numerous slugs imbedded in that same cutbank?”

“Yes sir.”

“How many?”

“Approximately sixty, sir.”

“Then what singled this one out for your attention?”

“It had visible traces of blood and flesh on it, sir, and a piece of human bone about an eighth of an inch by a quarter of an inch.”

There was a reaction from the audience—a sort of collective gathering of breath. Long held up an envelope to the sheriff. “Now will you look in this envelope and identify its contents, please?” To the judge he said, “Territory's Exhibit I, marked for identification.”

“These are my initials on the envelope,” Sheriff Harmon said. He opened it and made a show of peering inside. “Yes sir. This is the chip of bone in question.”

“The one you found adhering to the bullet that was found in the cutbank near Luffsey's body?”

“Yes sir.”

Long said, “Now with regard to this chip of bone and the blood and flesh you mentioned earlier, did you determine whether or not these evidences of human injury were related to the decedent's wounds?”

“We did. The chip of bone is an exact match for an indentation in Luffsey's fourth spinal cervical vertebra.”

This caused a good deal of noise from the anti-Marquis faction. It was put down only with a forceful pounding of Judge Francis's gavel.

Ted Long was smiling at his witness. “And did you make any further determinations about this bullet, Sheriff Harmon?”

“We did, sir.”

“What were they?”

“It's a 150-grain slug, .38 caliber, most likely fired either from a .38-40 or a .38-56 weapon.”

“Would that be a rifle or a handgun, Sheriff?”

“Well, your .38-56 is strictly a rifle cartridge, on account of its great length and the powerful recoil. Your . 38-40 on the other hand is a shorter cartridge with considerably less powder in it, and it is fired by both rifles and revolvers.”

“Now, have you had occasion to examine the arsenals of weapons owned by defendants in this case?”

Edward Allen said, “Objection.” He put both palms on the table and heaved himself to his feet. “Defense objects to use of the word ‘arsenals.'”

“Sustained,” said Judge Francis. “The term is clearly inflammatory.”

The gangly District Attorney glared with suspicion at the judge, then at the defense table. Finally he returned to his witness.

“Did you take a look at whatever weapons may have belonged to defendants?”

“I did.”

“And what did you find?”

“Mr. Paddock owns four handguns, two shotguns and three rifles. One of the rifles is a Springfield long-range .38-56. We confiscated it for evidence.”

“Territory's Exhibit J, marked for evidence,” Long said to the clerk.

The sheriff continued: “The Marquis De Morès owns a great many firearms—I can't give you an exact number because he has so many offices and residences, but in the château outside Medora and in his office in the De Morès building in Medora we counted more than forty firearms. One of them is a Colt 1873 Frontier model revolver, caliber .38-40.”

“Territory's Exhibit K, marked for evidence.”

Sheriff Harmon added in a loud voice, “I'd sure call it an arsenal.”

“Objection!”

“Sustained. The witness will refrain from gratuitous commentary. Sheriff, you know the behavior that's expected of you in this court, and I'll tolerate no further reckless inflammatory statements.”

Long returned to the witness. “Had either weapon been fired recently at the time of your investigation?”

“Sir, both weapons had been freshly cleaned and oiled prior to our examination.”

“Indicating, perhaps, an attempt to cover up evidence of guilt?”

Both Allen brothers were on their feet shouting: “Objection! Objection!”

The judge pounded his gavel and leveled his withering gaze at District Attorney Long. “Sir, you know better than that!”

“I withdraw the question, Your Honor.”

“Strike it from the record,” said the judge.

Long shoved his hands in his pockets and regarded the jury for a few moments until the room settled down. Then in a leisurely voice he said, “Sheriff Harmon, I ask you now to describe whatever facts may have been disclosed by your investigation of the injuries that killed the three horses—those belonging to Mr. O'Donnell, Mr. Reuter and decedent Luffsey.”

“Yes sir. They all had a lot of bullets in them.”

“By ‘a lot' what do you mean?”

“We counted twenty-three bullet wounds in Luffsey's horse. Somewhat fewer in the other two, but there were at least fifty bullets fired into those three horses.”

“Somebody must have had a powerful dislike toward those horses,” Long observed.

There was a titter somewhere in the audience. It provoked an outburst of laughter throughout the room. The judge pounded his gavel for order.

Pack sniffed. What a cheap trick that had been, to break the tension with such a poor joke.

Ted Long strolled halfway across the stage and turned, scratching his chin, to regard his witness with a cool demeanor that indicated he now intended to be deadly serious. “Sheriff, would you describe for us in further detail the condition of the scene as you found it, with regard to the horses, the cutbank, the slugs you found, and any tracks in the earth or other physical evidence that may have a bearing on these proceedings?”

“Yes sir. The cutbank faces the Little Missouri River from a distance of about a hundred feet at that point, and—”

“That is, it's about a hundred feet from the bank of the river across a relatively flat or gently sloping patch of ground to the foot of the steep slope?”

“Yes sir, that's right. There's some brush along the bank there, but it's low scrub. Mostly it's just bare clay along there. The road runs right along the foot of the cutbank, and it's some feet higher than the high-water mark of the river.”

“How far is it, approximately, to the opposite bank of the river?”

“About three hundred yards.”

“Go on, please.”

“Yes sir. Up the road toward town about fifty yards there's some trees. Under those trees the ground tends to be moist and kind of soft, and we found evidence of quite a lot of horse traffic—”

“By ‘evidence' you mean tracks?”

“Yes sir, horse tracks. And we found the indentations of a pair of boots. Heels and toes, and one place where we had a left heel and a right toe behind one another, suggesting that a person had kneeled down on one knee.”

“In the position one would naturally assume in order to fire a rifle?”

“Objection. Calls for a conclusion on the part of the witness.”

Ted Long said, “Your Honor, Sheriff Harmon certainly must be accepted as a qualified expert on such matters.”

“Mr. Long, I shall not permit the record of this trial to be cluttered with the miscellaneous ramblings and opinions of witnesses. Confine your questions to the facts, please.”

Long was evidently displeased but after a moment he regained his composure and addressed himself to the sheriff. “Did you have occasion to measure these boot tracks and to try to match them to anyone's boots?”

“We did, sir. They were a perfect fit for the boots worn that day by the Marquis De Morès. And there were particles of that clay on the boots.”

Frank Allen stood up. “May the Court please. Defense willingly stipulates that defendant Vallombrosa, Marquis de Morès, was at that place at that time. No one is denying his presence there. The Prosecution is belaboring the issue in a manner prejudicial to the Defense.”

“I agree,” said Judge Francis. “Mr. Long, you've more than made your point. Please get on to another line of questioning.”

“Yes, Your Honor. Sheriff, let's return to the cutbank and the dead horses. You were about to describe that scene in more detail.”

“Well, the marks left by the three horses indicated they'd dropped athwart the road, three abreast more or less, forming a sort of bulwark facing the trees, with the cutbank behind them. Most of the bullets we found in the carcasses indicated, by the angle of entry and the position of the wounds, that they had been fired into the horses after they were knocked down.”

“That would be consistent, would it not, with the idea that a considerable amount of gunfire was being aimed at the three innocent hunters—”

“Objection!”

“Sustained.”

“Sheriff, the voluminous gunfire you've described—it penetrated the horses and, above and behind them, the cutbank?”

“Yes sir, that's right.”

“From what angles did this gunfire arrive?”

“From at least two different angles. It came from the direction of the trees where we found the boot prints, and it came from off to the right, that is, the direction of the river.”

“Now, what was the caliber of the slugs fired from the latter direction?”

“Those were the .38 caliber slugs, sir.”

“And the bullets that came from the direction of the trees?”

“That's kind of hard to say, Mr. Long.”

“Why?”

“Because those bullets mostly disintegrated into pieces.”

“You mean they were smashed beyond recognition?”

“No sir. Not smashed. Exploded into pieces.”

“And there was no way to make a determination as to their caliber?”

“We were able to make a rough judgment, by measuring the curvature of some of the fragments and imputing a radius. They certainly were not small-caliber bullets. They were at least .38 or .40 caliber, and possibly as large as .44 or .45.”

“And these exploded bullets were found both in the horse carcasses and in the cutbank?”

“Yes sir.”

“And how about the unexploded .38 caliber slugs that had been fired from the direction of the river?”

“Most of them were in the cutbank up behind the horses. Two or three were found in the horses.”

“What conclusion can we draw from that distribution of bullets, Sheriff?”

“The man who fired the . 38 caliber bullets was shooting from the opposite side of the river.”

“How did you determine that?”

“Well, if the shooter had been on the near bank he'd probably have dropped a lot more ammunition into those horses, assuming he was shooting at people barricaded behind the dead horses. On the other hand, if the shooter was across the river laid up in the brush there, then he wouldn't have been able to see much of the horses, because the brush on the near side of the river would have obstructed the lower part of his view, and all he'd have been able to see would be over the tops of the dead horses.”

Edward Allen said, “Your Honor, the Defense has listened with great patience to this litany of guesswork, and we feel obliged to object to the extensive expression of opinion on the part of the Prosecution's witness.”

Ted Long said angrily, “May the Court please, the witness is merely testifying to the only possible interpretation that can be put upon the physical evidence he has described.”

Judge Francis studied both lawyers. After a moment he said, “I'm going to sustain the objection, Mr. Long, for reasons stated earlier. We're interested in discovering facts here. It's up to the jury to render the opinions. The questions and answers will be stricken from the record, regarding Sheriff Harmon's opinions about where certain bullets may have been fired from.”

Ted Long said in pained exasperation, “Your Honor!”

“Proceed, Mr. Long.”

“I must register objection to this high-handed and arbitrary exclusion of vital evidence!”

“Mr. Long, you may proceed or you may depart.”

“Very well,” Long said through gritted teeth. He returned to his witness but the momentum clearly had gone out of his charge. “Sheriff, I take it you examined the weapons, if any, possessed by the Decedent and his companions?”

“In two cases I did. Two of the men, both injured, surrendered themselves immediately after the incident to the custody of Mr. Ferris, who kept possession of their weapons until my brother and I arrived on the train. In the third case I was unable to locate the man, Mr. Reuter, so I was unable to investigate the condition of his weapons, or indeed, to determine whether he had any.”

“In the two cases that you did examine, what did you find?”

“Mr. Luffsey possessed a rifle and a revolver. Both were fully loaded, and neither appeared to have been fired.”