Massacre at Powder River

Chapter Sixteen

The next morning in Sussex, a crowd had gathered around Sikes’ Hardware Store to stare at a gruesome display. The object of their attention was Zeke Holloway’s body. He was tied to a board with his arms folded across his chest and a gun in his right hand. His yellow scarf was still in place around his neck, but he wasn’t wearing a hat. His eyes were open and sightless. His face was bluish white, all the blood having drained down from his head; and because of the paleness of his skin, the contrast between the black of his beard, and the white of his face was even more striking. The bullethole between his eyes was black and bloodless. Above the door was a sign.

Zeke Holloway

Yellow Kerchief Rustler

Killed by Matt Jensen

For the moment, Welsh was busily constructing two coffins, one for Zeke and one for Clem, who was about to stand trial. A few pointed out to Welsh that Clem had not been found guilty yet, but Welsh said he was confident that he would be.

“And even if they don’t find him guilty, it ain’t like the coffin is goin’ to go to waste. There is bound to be someone that’s goin’ to be needin’ one sooner or later.”

Zeke Holloway would be buried just as he was now, without embalming, his skin pale and the blood still on his shirt. But it was different for Burt Rawlings, who had already been brought to Welsh to be prepared for burial. He had been embalmed, and cosmetics applied to his face and hands in order to restore some color to the body. He was also dressed in a suit and tie, though no one who knew him had ever actually seen Burt in a suit.

Burt didn’t need one of the wooden coffins Welsh was making, because Moreton Frewen had bought one of the manufactured coffins Welsh kept on hand for the more affluent of his customers. It was called the “Eternal Cloud” and it was a beautiful casket, painted with a shining, black satin finish, and adorned with silver. The ad for the coffin boldly announced:

This Coffin is guaranteed to last for ONE THOUSAND YEARS!

Nobody ever thought to ask how a disappointed customer would be able to collect on the guarantee.

Rawlings was laid to rest later that morning, borne to the cemetery in a glass-sided hearse. His funeral was attended by half the people from the town and a significant number of people from the county.

From the window of his cell, Clem was able to watch the funeral cortege as it passed by the jail.

“Why have so many turned out for one cowboy’s funeral?” Clem asked the deputy marshal.

“They are all turnin’ out ’cause he was just a boy, only seventeen years old, and ever’body thinks it is a dirty shame that someone who’s never done no evil to anyone gets murdered in cold blood,” the deputy replied. “And seein’ as you’re the one that done it, well, I reckon there’ll be about that many turn out to watch you hang.”

Clem, who was standing on his bed so he could see out the window, stepped down, then sat on his bunk with his elbows on his knees, and his head in his hands.

He thought of a fishing hole that was near the house where he had grown up back in Missouri, and he wished with all his heart that he could be there now.

“Clem, get on back here and feed the chickens now!”

“I done fed ’em, Ma,” Clem lied. “I just need to catch me a couple more fish here.”

“You haven’t fed them. I know you haven’t.”

“Leave me alone. If you want your goddamn chickens fed, feed ’em yourself.”

“Clem, how can you talk to me that way? I am the one who gave birth to you!”

“Yeah, well I didn’t ask to be born. Now just feed your chickens and leave me be.”

Clem couldn’t wait to get out of Missouri. He intended to go West and strike gold. He knew there was gold out here, he had read about it. All you had to do was find a stream then start sifting through that stream with a pie pan, and you could find as much gold as you wanted.

Or so he had thought.

The reality was much different. The reality was that he didn’t find any gold, and in order to eat, he had turned to stealing. After that it was an easy step to fall in with murderers and thieves, and now he was about to pay the price.

When Moreton Frewen told Matt that he was a judge, he wasn’t exactly lying, but he was stretching the truth. He was a member of the Magistrate’s Court in the Judiciary of England and Wales. In this appointed but unpaid position, his authority was limited, even in England. He had no authority whatever in America, except for an honorary recognition of his status, but he believed in the principle of fiat justitia ruat caelum, “let justice be done,” regardless of the circumstances, so when the occasion called for it, he merely assumed the authority.

Because The Lion and The Crown Saloon was the largest building in Sussex, arrangements were made to hold the trial there. Nearly everyone who had attended Burt Rawlings’s funeral that morning were now present at the saloon turned courtroom. The tables had all been moved to one side, except for three: one to be used by Frewen as the judge’s bench, the second to be used by the defense counsel and the defendant, and the third to be used by the prosecutor. The chairs were then put out in rows, theater-style, but there were far too many people for the chairs, so the rest of the attendees were lined up along the bar and the walls. Two of the bargirls who worked The Lion and The Crown, Lucy and Rose, were sitting up on top of the upright piano. Their crossed bare legs were the object of attention of many of the cowboys who had come into town for the trial.

There were only two lawyers in town, so Frewen appointed one to act as the prosecutor, and the other to act as defense counsel. Orin Dempster, the court-appointed lawyer for the defense, registered a protest before the trial even got underway.

“Mr. Frewen, I submit, sir, that you do not have the authority to preside over this trial,” Orin Dempster said. “This is clearly a case of coram non judice, a legal proceeding without a judge, with improper venue, without jurisdiction.”

“I am a duly appointed Magistrate,” Frewen said.

“In England, sir, not in America, and certainly not in Wyoming. We could quite easily send to Buffalo for a judge,” Dempster insisted.

“No need to waste the judge’s time,” Frewen said. “I am quite capable of presiding over the trial.”

Clem was sitting at the table with Dempster and with Marshal Drew.

“You got no right to try me,” Clem called out.

Frewen looked over at Clem. “You are not to speak until you are asked to speak.”

“But this here feller is right,” Clem said. “You can’t try me.”

“If you speak again, I will have you gagged,” Frewen said.

Clem opened his mouth as if to speak again, but closed it before he uttered a sound.

“Your Honor, I want my protest to go on record,” Dempster said.

“Duly noted,” Frewen said. “Marshal Drew, would you bring the prisoner before me, please?”

Marshal Drew prodded Clem before the table that Frewen was using as his bench.

“Would the prisoner state his name, please?” Frewen said.

“Clem.”

“And what is your surname?”

“My what?”

“Your last name. I shall require your last name.”

Clem smiled. “You do, huh? Well, you ain’t goin’ to get it. I reckon that means you can’t try me, don’t it?”

“It will not prevent the trial from taking place,” Frewen said.

Clem turned toward Dempster. “Can he do that? Can he still have the trial even if he don’t know my last name?”

“Your Honor, I am filing a second protest,” Dempster said.

“Your protest is noted,” Frewen said.

“What’s that mean?” Clem asked Dempster. “These protests you are filing.”

“That means that whatever the verdict is as a result of this trial, there is a possibility that it might be overturned,” Dempster said.

Clem grinned broadly. “Is that a fact?”

“It could take as long as a month,” Dempster said.

“That’s all right, I’ve got a month.”

“Wrong, sir. You have all eternity,” Frewen said.

“What? What do you mean? What do you mean I have all eternity?”

“I mean, sir, that if this jury finds you guilty I will sentence you to hang tomorrow,” Frewen said. “That being the case, if the verdict is overturned next month, it will be of no consequence to you, because your carcass will be a worm feast.”

“No, that ain’t right!” Clem said.

“Killing Burt Rawlings wasn’t right, either,” Frewen said. “Mr. Gilmore, you are the prosecutor. Make your case, please.”

“The court calls Jeffery Singleton to the stand,” Gilmore said.

Jeff, all cleaned up now and wearing his best denims and shirt, took the stand and was sworn in.

“Mr. Singleton, did you see who killed Burt Rawlings?”

“Yes, sir, I did.”

“Is he in this courtroom now?”

“One of ’em is,” Jeff replied. “The other ’n is tied up to a board that is standin’ up in front of Sikes’ Hardware Store.”

There was a smattering of laughter throughout the court.

“Would you point to the murderer please?”

“It was him,” Jeff said, pointing to Clem.

“Let the record show that Mr. Singleton pointed to the defendant.”

Gilmore walked over to the bar where there lay two pistols. He picked both of them up and brought them over to show to Jeff.

“Do you recognize these pistols?”

“Yes, sir. That there’n is mine,” Jeff said, pointing to one of them. “The other’n belongs—uh, belonged to Burt.”

“Thank you. Let the record show that the witness identified the two pistols, one as belonging to him and the other belonging to the decedent, Burt Rawlings.” Gilmore turned to Dempster. “Your witness.”

Dempster did not get up from his chair. “Was it daylight or dark when you saw the men who shot your friend?”

“It was daylight,” Jeff said.

“And you are sure that the defendant was one of the two men you saw?”

“Yes.”

“Could it be that perhaps the sun was shining in your eyes so that your vision was restricted?”

“No.”

“You say that with such resoluteness. How can you be so sure?”

“Because it was mid-mornin’, and this Clem feller, and the other’n, the one that’s tied to the door down to Sikes’ Hardware, the first time I seen ’em, they was standin’ west of me. Burt, he never seen ’em at all, ’cause they was still hidin’ behind the rocks when they shot him.”

“No further questions,” Dempster said, realizing that every question he asked was just making the case worse for his client.

“Witness is excused,” Gilmore said. “Prosecution calls Matt Jensen.”

Like Clem before him, Matt was sworn in, then he took his seat.

“Mr. Jensen, you are the one who brought in Zeke Holloway’s body, are you not?”

“I am.”

“And you killed him?”

“I did.”

“You also brought in Clem and these two pistols. Where did you get the pistols?”

“Clem and Zeke had them on their persons.”

“What were Clem and Zeke doing when you encountered them?”

“They were herding stolen cattle.”

“How do you know the cattle were stolen?”

“They had the Frewen brand,” Matt said.

“Objection, Your Honor!” Dempster said.

“What is the objection?” Frewen asked.

“I object to the fact that the stolen cattle had the Frewen brand.”

“I don’t understand the objection. Are you saying they did not have the Frewen brand?”

“No, sir, I’m sure they did have the Frewen brand.”

“Then what is the objection?”

“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.”

There was laughter and applause from the gallery.

“Marshal Drew, bring the defendant before me again, please.”

Again, Marshal Drew prodded Clem up to stand before Frewen.

In keeping with his English heritage, Moreton Frewen put a black cloth called a “sentence cap” over his head. This was the custom in the English courts and worn only when a death sentence is about to be passed.

“Clem, No Last Name, this court sentences you to hang tomorrow morning at ten o’clock.”

“Your Honor, we can’t build a proper gallows that fast,” Marshal Drew said.

“How proper does it have to be?” Frewen said. “All we need is something that will elevate him from the ground far enough to get the job done. I’m sure there are tree limbs, beams, pylons, appendages, bracings, or stanchions extant in this town that could serve the purpose. Find one.”

“Yes, sir.”

“This court is adjourned.”

“Come along, Clem,” Marshal Drew said, reaching down to take Clem by the arm.

“Wait a minute! What about all them protests and things? Ain’t we goin’ to wait to see what happens with them?”

“The judge has sentenced you to hang tomorrow, and that is exactly what you are going to do,” Marshal Drew said.

“It ain’t right,” Clem said. Then, as he was led out of the saloon, he shouted back over his shoulder. “It ain’t right, damn you all to hell!”