Neither Fear Nor Favor: Deputy United States Marshal John Tom Sisemore

by Wesley Harris

  “It was between the mattresses at the head of the bed.”

  “Was it in a holster?” asked Roberts.

  “Yes.”

  “What did you do with the pistol?”

  “I put it on the other bed in the room with Mr. Mullins.”

  “Did you examine the gun?”

  “No. No more than I had to.”

  “But you did not see any obvious blood stains on it?”

  “No, I did not.”

  “What about the bed? When you retrieved the gun, or perhaps later, did you see any blood on Mr. Mullins’s bed?”

  “No. I saw no blood in his room.”

  ***

  B. P. Edwards handled the cross-examination of the innkeeper.

  “Is it possible, Mrs. Sherwood, that Frank Mullins had already been to his room before you saw him?”

  “I don’t know.”

  “You said you were on the porch when Mr. Mullins came in?”

  “Yes, I was. I had washed up all the dishes from supper and was out looking at the storm.”

  “Was Mullins at supper that night?”

  “No. He did not always take his meals at the house.”

  “Are there several entrances into your boarding house?”

  “Yes, there are three doors.”

  “And exactly where did you first see Frank Mullins that night?”

  “Coming in the hallway door.”

  “Not outside?” Edwards questioned.

  “No, he was at the hall door.”

  “Could you describe the area for those members of the jury who may not be familiar with the Duty House?”

  “Well, the kitchen and some of the boarders’ rooms are on the first floor as well as my own.”

  “And when you say the ‘hall door,’ where do you mean?”

  “There’s a side entrance into a room we don’t use much and that room has a door to the hall.”

  “And doesn’t the hall lead to the rooms and the stairs?”

  “Yes.”

  “When you said you were on the porch watching the storm and Mr. Mullins came in, you were referring to one of the other doors from the porch. Correct?”

  “Yes.”

  “So, it is possible,” Edwards said, slowly emphasizing each word, “that Frank Mullins had already been to his room?”

  “I guess it’s possible,” she admitted.

  “Was he wearing a coat?”

  “Mr. Mullins was carrying his coat.”

  ***

  Roberts sweated profusely now, his puffy face red and glistening in the sweltering courtroom. He called George McElroy to the witness stand.

  “Do you recall where you were at about nine o’clock on Saturday night, February 26?”

  “Yes, I do,” McElroy replied, nodding his head up and down.

  “Please tell us.”

  “I was coming along on the street between Thompson’s store and the railroad when I heard a gunshot.”

  “Just one gunshot?”

  “Only the one at first; a few moments later there were two more.”

  “What else did you hear?” Roberts asked.

  “Right after the first shot, I heard a man yell ‘don’t shoot me any more. I never done the shooting.’ Then two more shots were fired. There was a moment or two between those two shots because he hollered again, ‘don’t shoot me any more.’”

  “What happened then?”

  “Well, I got out of the street and up on the sidewalk in front of Thompson’s store. I could not see very well but I saw one man going off toward the railroad.”

  “Did you see anyone you could identify?”

  “I saw Mr. Price when I got down near the bank.”

  “Anyone else?”

  “No one that I could identify. I saw someone go into the alley behind Gullatt’s store, but I don’t know who it was.”

  “Where did you go next?”

  “I went to my boarding house.”

  “Is that the Duty House?”

  “Yes.”

  “What did you find there?”

  “I found Frank Mullins in a room shot. The doctor had already been sent for, so I tried to talk to Frank.”

  “And what did Mr. Mullins say?”

  “He said that as he walked off the sidewalk in front of Gullatt’s store, he saw John Sisemore. Sisemore said ‘Who is that?’ and Frank said he answered, ‘It is me.’ Sisemore then said, ‘Is that you, Frank?’”

  “Frank said he answered it was and Sisemore asked him if he had been shooting up the town.”

  “What did Frank Mullins say was his response?”

  “He told Sisemore he did not shoot and Sisemore said, ‘you are a damn liar’ and shot him.”

  Murmurs broke out. Price whispered into Sisemore’s ear. Roberts let the statement sink in before continuing.

  “What if anything did Frank Mullins say about his own gun?”

  “Frank told me he had no gun to defend himself, so he ran.”

  Louder murmurs rippled through the room, and Barksdale banged his gavel twice to quieten the crowd.

  “Did he say anything else in your hearing?”

  “No, he was in a lot of pain and when the doctor came, I had to leave the room.”

  “Moving back to the scene of the shooting, tell me how many shots were fired.”

  “There were three shots.”

  “Would you judge by the sound of the shots that they were fired by one gun or more than one gun? Could some have been fired by a pistol and others by a shotgun?”

  “All three shots sounded the same to me. They all sounded like the same gun.”

  “Could you tell what kind of gun?”

  “No.”

  “You have heard pistol shots before?”

  “Yes.”

  “Have you heard a shotgun fired before?”

  “I have both a revolver and a shotgun and I have fired them both.”

  “Do you believe some of the shots were fired by a pistol and some by a shotgun?”

  “No, like I said, they all sounded the same to me. Like one gun.”

  “You did not see the gun at the Duty House, did you?”

  “No.”

  Roberts turned to the judge. “No further questions for this witness.”

  ***

  “Mr. McElroy, you did not actually see anyone shoot Frank Mullins, did you?” asked Stephen Pearce.

  “No, but it’s obvious who did it.”

  “But you did not actually see the shooting.”

  McElroy answered, “No,” reluctantly.

  “And you did not see the muzzle flashes of any guns.”

  “No.”

  “Did Frank Mullins tell you he made a statement to Marshal Sisemore to the effect of ‘I’ve got the fixing for you’?”

  “No.”

  “And you did not personally see Mr. Mullins before you found him at the boarding house to know for a fact he was unarmed?”

  “He told me he had no weapon. That’s why he run. And Frank was never known for running from a fight.”

  “But you did not see him to recognize him before reaching the Duty House?”

  “No.”

  “Were you and Frank Mullins good friends?”

  “I reckon.”

  “Have you made comments about the town that John Sisemore is the one who should have died that night?”

  “Objection, your Honor,” protested the prosecutor. “I must point out that it is John Tom Sisemore on trial here, not the witness.”

  “Sustained.” Judge Barksdale looked at Pearce. “Move to your next question.”

  “You saw Fred Price shortly after the shooting, did you not?”

  “Yes, I did. He was standing by the bank.”

  “If he was standing by the bank at the time of the shooting, who would have been closer to the men involved, you or Mr. Price?”

  McElroy sat silently. “Who was closer, sir?” Pearce repeated.

  “I’m not sure.”
/>   “Why not?”

  “’Cause I didn’t see the shooting. I don't know exactly where they were standing.”

  “And you cannot identify the person you saw going into the alley?”

  “No.”

  “No further questions.”

  Pearce sat down. Barksdale turned to the prosecutor’s table. “Any redirect?”

  “No, your Honor,” replied Roberts. “The State would now call Matt Goldsmith.”

  “Matt Goldsmith,” repeated Deputy Finley, who served as bailiff. A young skinny man with red hair came forward and seated himself in the witness box. George Wear asked his first question.

  “Now, Matt, where were you located at the time the shots were fired and Frank Mullins was wounded?”

  “I was standing just outside Burgess’s store.”

  “And Burgess’s store is located north of the scene of the shooting, is that correct?”

  “Yes.”

  “Could you see Frank Mullins and John Sisemore?”

  “No, I really couldn’t see’em,” Goldsmith replied. “I heard voices and was looking in that direction and saw the gunfire.”

  Wear walked over and faced the jury. “I suppose it was dark enough to see the flash of a gun when it was fired?”

  “Yes.”

  “Now tell us how many guns you saw fired.”

  “Just one,” Goldsmith said, a curtness in his voice. The courtroom stirred. Several jurors looked at Sisemore sitting still as stone.

  “And in what direction was that gun shooting?” asked Wear.

  “To the north, towards the corner of Gullatt’s store.”

  “So that would be the gun of Mr. Sisemore?”

  “Objection.” Fred Price rose from his chair. “The witness has testified he could not identify the parties.”

  Barksdale glanced at Wear who gave a shake of his head.

  “Objection sustained. Move to your next question, sir.”

  “Did you see the flash of any other gun shooting back at the first flash you saw?”

  “No.”

  Wear looked up at Barksdale as he walked back to the prosecutor’s table. “No further questions, Your Honor.”

  Judge Barksdale nodded towards the defense counsel and B. P. Edwards rose to question the witness.

  “You testified it was very dark that night, did you not?”

  “Yes, it was dark.”

  “When the shooting took place, did you recognize the parties involved?”

  “No.”

  “And you saw the flash of only one gun?”

  “Yes.”

  “In that brief moment, you were able to determine from a flash, what direction that gun was pointed. I find that difficult to believe, Mr. Goldsmith.”

  “Objection, Your Honor. Counsel is being argumentative with the witness.”

  The judge pulled his glasses down on his nose and glared at Edwards. “Please put it in the form of a question, Mr. Edwards.”

  “Yes, Your Honor.” Edwards turned back to the witness. “How could you tell what direction the gun you saw was shooting?”

  “I just could, that’s all,” Goldsmith answered weakly.

  “Would it be fair to say, you have no independent knowledge as to which man was shooting in what direction and whose gun you saw flash?”

  Goldsmith thought a moment on the lengthy question. “Well, I reckon I don’t have any ‘independent knowledge’ as you say, but there’s only one man what got shot, so I figure it’s the other man who shot.”

  Edwards flashed a quick sympathetic grin. Several spectators tittered at Goldsmith's retort.

  “Are there any trees near that corner?” he asked.

  Goldsmith closed his eyes a moment as if picturing the corner by John Gullatt's store. “Yes, there’s a couple of trees there.”

  “Large trees?”

  “They are not large, but about so big,” he described, holding his hands about a foot apart.

  Edwards ran a finger inside his collar. He was beginning to feel the heat, too. “And wasn’t there a wagon parked on the street there?”

  “I don’t know.”

  “You didn’t see a wagon?”

  “Not that I remember,” Goldsmith said.

  “It must have been awfully dark if you did not see the wagon,” declared Edwards in more of a statement than a question. “Mr. Goldsmith, have you ever seen a shotgun fired at night?” the attorney asked.

  “Why, yes, I have. Out ’coon huntin’ with my pa and friends.”

  “There is a very considerable flash from the muzzle of a shotgun fired at night, is there not?”

  “Yes, there is.”

  “And have you ever seen a Colt .44 pistol fired at night?”

  “No, I can’t say that I have.”

  “You don’t know how big the flash from a Colt .44 pistol would be?”

  “No.”

  “And you don’t know if you would be able to see the muzzle flash from a Colt .44 pistol at the distance of Burgess’s store to the corner of Gullatt’s store, do you?”

  “I can’t imagine not being able to see it.”

  “Can you imagine not seeing it if your view was obstructed by a tree or a wagon?”

  “I suppose.” Goldsmith looked down into the witness box.

  “I’m finished with the witness, Your Honor,” Edwards announced and took his seat.

  “Any redirect, Mr. Wear?” asked Barksdale.

  “Yes, Your Honor,” answered Wear, returning to his witness. “Let me see if I can bring some clarification to this muddle defense counsel has tried to create. Mr. Goldsmith, you saw muzzle flashes from how many guns?”

  “Just the one.”

  “And it was a considerable muzzle flash, like a shotgun, wasn’t it?” Wear knew the jury had heard Sisemore had used a shotgun despite the absence of direct testimony to that effect.

  “Yes, that’s right.”

  “Not like a pistol?”

  “No,” Goldsmith replied. “Not like any pistol I ever saw.”

  CHAPTER TWENTY-SIX

  Wednesday, September 14, 1898

  The district attorney rose to call his next witness. “W. B. Sauls, please.” A short, stout balding man took the stand.

  “Mr. Sauls, you own a shop here in town?”

  “Yes.”

  “Was Frank Mullins in your shop on the night in question?”

  “Yes, he came in and we talked for several minutes.”

  “What I’m interested in, Mr. Sauls, is what happened after he left. Did you hear anything unusual shortly after Frank Mullins left your shop?”

  “I heard gunshots.”

  “And could you tell where these gunshots were coming from?”

  “They sounded like they were coming from the east side of town, toward the Opera House.”

  “And how long after Frank Mullins left your shop did you hear the gunshots?”

  “Just a matter of moments.”

  “And how far away did those shots seem to be?”

  Before Sauls could answer, Price rose from his chair. “Objection, Your Honor. The question calls for an opinion by the witness.” He turned to Roberts. “What expertise does he possess to qualify him to judge the distance of gunshots?”

  Roberts looked at Barksdale. “If I may establish a foundation, Your Honor?” asked the district attorney.

  The judge nodded.

  “Mr. Sauls, have you heard gunshots before?” Roberts asked.

  “Yes, on many occasions. You can’t help it around here,” the shopkeeper replied.

  “Have you seen persons shooting guns who were situated different distances from you?”

  “I suppose so,” Sauls answered.

  “Do you own guns?”

  “I have several. For hunting.”

  “Did you serve in the War, Mr. Sauls?” Roberts asked.

  “Yes, but not to see much fighting, but yessir, I did.”

  “And I suspect you fired weapons and heard gunfir
e during that time?”

  “Yes, I did.”

  Roberts turned back to Barksdale. “Your Honor, I believe the witness is capable of asserting an opinion as to whether a gunshot occurred just outside his place of business or several blocks across town.”

  “I agree. You may continue.”

  “Mr. Sauls, is it your educated opinion that the gunshots you heard shortly after Frank Mullins left your place were fired some distance from your shop?”

  “I’d say several blocks away. Near the Opera House or maybe the Presbyterian church.”

  “And you testified earlier that Frank Mullins had walked out your door just moments before.”

  “Yes. He had barely gotten outside the door when I heard the shots.”

  “Was the deceased carrying a gun that night?”

  “Not that I saw, but I wasn’t looking for one.”

  “Based on your experience with firearms, what conclusions have you drawn, if any, as regards to whether Frank Mullins fired those shots?”

  “Frank couldn’t have fired those shots. There’s no way he would have reached that distance when those shots were fired.”

  Roberts moved near the jury, drawing the men’s gaze. “So, if I may summarize your testimony, Frank Mullins could not have fired the shots that night because he had just moments before left your store and had not had time to reach that distance.”

  “Yes, that is correct.”

  As Fred Price rose to examine the witness, the judge raised a hand to stop him.

  “How long do you plan to be with this witness, Mr. Price?” After jury selection, Barksdale had announced his intentions of getting many of the witnesses out of the way before the end of the day. The breaks had been so brief, Sisemore had been unable to exchange words with The few breaks had been brief.

  “Not very long, Your Honor. I have very few questions.” Price turned to the witness. “You could not see Frank Mullins when those shots were fired, could you?”

  “Of course not. He had left the store.”

  “So, of your own personal knowledge, you can’t say who did or did not fire them.”

  “I have no idea who fired them,” Sauls replied.

  “Was anyone with Frank Mullins?”

  “No. He was alone.”

  Sisemore sat quietly, watching Sauls, as he had all the witnesses. He felt little emotion, as if he was watching to trial of another man.

  “Your shop is located near the end of a block as opposed to the middle of a block, isn’t that correct?” Price asked.