“Your Honor, I ask and expect no favors,” he replied with sudden boldness. “Justice is all that any lawyer need ask, all that any lawyer deserves.”
“Good,” said the judge, and once more flashed his slight, chill smile.
They entered the main room of the tavern. Tables for judge and clerk were ready set, and the twelve chairs for the jury. The benches were crowded with spectators. Among these sat Betsy. Others stood ranged along the walls and by the windows. Men in broadcloth and homespun and buckskin, women in gingham bonnets, rose as the judge entered.
Jason moved into the space between the benches and the tables.
Major Westall had risen from a chair. Jason stood beside the Major while Judge Hemphill walked to his own table and sat down. There was an audible stir as the others resumed their seats. In a corner stood Cut Nose, his eyes on Jason.
As he sank into his own chair, Jason glanced across to where Asper Enderby and Milo Kinstrey sat. Both stared at him with a blank amazement that, as he stared back, turned to amused contempt.
The pudgy crier took his place beside Judge Hemphill, and smote the floor with his staff.
“Oyez! Oyez! Oyez!” rang out his shrill trumpet of a voice. “All manner of persons that will sue or complain, or have anything to do in this Honorable Circuit Court, opened and held here this day, for the County of Foresby, draw near and give your attention and you shall be heard; for this Honorable Court is now sitting for the dispatch of such matters. God save the State of Alabama and this Honorable Court!”
14 The Trial Begins
“What case is first on the docket?” judge hemphill asked the clerk.
“The town of Moshawnee versus Asper Enderby,” was the reply. “Continued from the spring term, your Honor will remember.”
“The defendant is ready for trial,” said Kinstrey from where he lounged beside Enderby.
“What says the plaintiff?” inquired Judge Hemphill.
Jason rose, fighting against the shaking of his knees. “Ready for trial, your Honor,” he answered.
Kinstrey grinned at Jason and winked. The judge nodded to the sheriff, who began reading from a list of jurors.
It did not take long to empanel twelve good men and true. Kinstrey challenged one or two who, from their answers to his questions, seemed to be friends of Major Westall or otherwise favorable to building a courthouse in the square. The clerk read the oath and the jurymen swore to it. Jason walked into the open space where Judge Hemphill’s table and the double row of jurymen’s chairs made a right angle.
“If the court please,” he began, looking at his notes. “Your Honor, and gentlemen of the jury: This case involves an effort on the part of the town of Moshawnee to set aside a restraining order brought by the defendant to obstruct the building of a courthouse on the town square yonder.” He pointed toward the square outside the windows. “The evidence will show that the land which includes the square and most of the present town of Moshawnee was sold and conveyed by the defendant, Asper Enderby, to Major Gilbert Westall some five or six years ago, and that Major Westall paid for that land in good faith and was told of no cloud on the title or other condition to limit or obstruct building on any part of that land. The evidence will show that Major Westall founded, upon this land and adjoining property previously held by him, the present town of Moshawnee, seat of Foresby County. The evidence will show that Major Westall and other public-spirited citizens desire to raise in the center of this town a proper courthouse, for the holding of court and the transaction of other official business of the county of Foresby.”
Kinstrey whispered smilingly to Enderby, who nodded.
“The evidence will show,” went on Jason, “that the defendant Enderby did protest and allege to Major Westall and others who sought to build the courthouse, that a certain condition attended the sale and conveyance of the land, and did further allege that upon and within the said town square did exist a certain grave, the last resting place of an Indian called Sun Chief; and that this grave could not be legally disturbed, and that the courthouse must be built elsewhere.” Jason drew a long breath. “The evidence will show that the said defendant caused to be issued a certain restraining order, obstructing the building of the courthouse. And the evidence will show that this allegation was in error, that the grave of Sun Chief does not lie in the square, but elsewhere; and that the restraining order was fraudulently sworn to and issued without due cause or legality. The plaintiff will demonstrate these things to your satisfaction, gentlemen of the jury; and will ask at your hands a verdict, setting aside the restraining order brought by the defendant and permitting the building of the courthouse so sorely needed by the town of Moshawnee, the county of Foresby, and the State of Alabama.”
He paused and glanced at Kinstrey. That elegant attorney nodded sardonically and made a gesture as of applause.
“Call your first witness,” said Judge Hemphill.
“Major Gilbert Westall.”
The Major was sworn by the clerk, and took the witness’ chair beside the judge’s table.
To Jason’s questions, he said that he was seventy-four years old and that he had lived within the present limits of Foresby County since the year 1822. He described his original purchase of three hundred acres of land, the coming of neighbors, and his growing belief that a town could be founded in the pleasant valley. In the year 1827, he said, he had bought from Asper Enderby six hundred and forty acres of field and forest, where later the town sprang up.
“At the time of the sale, Major,” said Jason, “did Mr. Enderby discuss with you any limitations to the land’s use?”
“He did not,” replied Major Westall, his furious old eyes stabbing at Enderby.
“Was a limitation set in your deed or the bill of sale?”
“There was not.”
“Have you the record of the transaction ?”
Major Westall produced it from a big folding wallet.
“Your Honor,” said Jason, “the plaintiff offers this document as Exhibit A.”
Kinstrey strolled forward to look.
“No objection,” he said.
Jason read the deed aloud. It conveyed six hundred and forty acres of land, within boundaries clearly defined in legal language, with no restrictions or provisions.
“Major,” said Jason, “did Mr. Enderby, at any time after he sold this land, mention an alleged restriction to its use?”
“He certainly did,” snapped the Major.
“Please tell the jury about it.”
“A year ago, more or less, when we formed a committee for building the courthouse, I asked him to serve on the committee. He was surprised—”
“Objection, your Honor,” interrupted Kinstrey. “That is a conclusion of the witness.”
“What was Mr. Enderby’s manner when you spoke of building a courthouse on the town square ?” amended Jason.
“He said it mustn’t be done. Said he’d bought the land from Indians, years back when they—the Indians—were moving West. Said he’d agreed he wouldn’t disturb the grave of Sun Chief, who was head of the tribe. He said the grave was on the square yonder.”
“What did you reply, Major?”
“I asked him why he hadn’t said this when I bought the land, and he said he had mentioned it.”
“And had he done so?”
“No.” An angry shake of the head. “Not a word.”
“What happened then ?”
“I said I knew nothing about a grave and that we’d build the courthouse. He got out a restraining order to stop us. And that’s why we’re in court now.”
Jason turned to Kinstrey. “You may cross-examine.”
He sat down. Kinstrey rose and put a hand behind him to grasp a green coat tail.
“You have been addressed here as Major,” Kinstrey began. “Are you a military man?”
“I’m a major in the state militia.”
“Did you serve your nation in a war?”
“In two wars, sir
,” said the Major. “The first and second wars with England.”
“Tell us about that service.”
“Objection,” spoke up Jason. “This is not competent or relevant to the issues of this case.”
“If the court please,” purred Kinstrey, “I will show relevancy as the testimony develops.”
“The witness will answer,” decreed Judge Hemphill.
Major Westall cleared his throat. “When I was seventeen, I enlisted in a Virginia ranger company,” he said. “Served through the War of Independence—Princeton, Trenton—and I was at Yorktown.”
“As a major?”
“I was a sergeant at Yorktown.”
“I see,” nodded Kinstrey. “And during the second war, you were—”
“A captain of volunteers.”
Judge Hemphill sniffed. “Squire, you said you would show relevancy.”
“Your Honor, I engage to do so,” replied Kinstrey. “Major, you began your service as a private and became a sergeant. On what day of what year did you win your sergeancy?” “Hmmm,” murmured Westall. “Let’s see—the year 1779—” “The day and the month of 1779, if you please,” urged Kinstrey.
Major Westall shook his massive old head. “Can’t say exactly as to that.”
“But promotion to sergeant is important,” said Kinstrey patiently. “You must remember.”
“Well, I don’t.”
“And you served as captain in 1812? What’s the date of your commission?”
A frown locked Major Westall’s brows. “I can’t say as to that, either. Not the exact day, sir. It’s been a long time.”
“A long time, yes,” agreed Kinstrey, glancing sidelong at the jury. “You’re of ripe years, sir—seventy-four, you said. It’s natural that your memory would fail on important matters—the date of your promotion, of what Mr. Enderby said to you about the Indian grave when he sold you that land—”
“Squire!” roared Major Westall, rising to his feet. “You suggest that I lied about that ?”
“Never would I give you the lie,” said Kinstrey suavely, “nor would anyone who knows you. Your word’s as good as your bond, sir.”
“I’m obliged to you for that,” growled the Major, sitting down.
“Your spoken word in matters of business has been acceptable to all this community, and in particular to Mr. Enderby. Speaking of business, you’ve profited, I suppose, by sale of town lots in Moshawnee.”
“Yes. Profited honestly.”
“To what sum, Major?”
The Major paused, his lips moving. “I suppose, somewhere in the neighborhood of—”
“Exactly what sum?” insisted Kinstrey.
“I can’t remember in dollars and cents!” protested Westall.
“No,” nodded Kinstrey. “You can’t remember. Thank you, sir, that’s all.”
Major Westall returned to his chair beside Jason, his lips tight, and his eyes glaring at Kinstrey.
“Miss Colquitt,” called Jason.
Betsy came forward. She wore a dark skirt and a jerkin of wool, with a plain dark bonnet. The clerk administered the oath and Betsy sat down quietly, her hands in her lap.
“State your name,” said Jason.
“Elizabeth Colquitt.”
“Miss Colquitt, you have heard the description of this case and the testimony so far given. Are you acquainted with some particulars?”
“I am,” said Betsy softly.
“You have heard that the case rests upon the location of the grave of an Indian called Sun Chief. Where is that grave ?”
“To which we object,” drawled Kinstrey, “as incompetent, irrelevant, immaterial, and not tending to clarify any of the issues of the case now before this court.”
“Your Honor, I will develop the lady’s testimony to a material nature,” said Jason. “Miss Colquitt, if you do not know where the grave is, do you know where it is not?”
“I think I do.”
“Objection,” said Kinstrey again. “The witness must not state theories or conclusions.”
“Sustained,” said Judge Hemphill tonelessly.
“I’ll rephrase the question,” said Jason, “and in terms that are very material and relevant indeed. Miss Colquitt, is the grave located yonder in the town square of Moshawnee, as alleged by the defendant?”
“No.” Betsy shook her bonneted head. “It is not.”
“Upon what do you base that statement, Miss Colquitt?”
“Upon the word of Cut Nose.”
“That Indian who stands in the corner?”
She looked. “Yes.”
“Your Honor, I object!” cried Kinstrey, rising and walking forward. “I have sympathy for the youth and inexperience of the attorney for the plaintiff—here before you in his first case at law—but surely he knows that he cannot present hearsay evidence.” Kinstrey turned and glared at Cut Nose. “In particular, what has been said by that Indian. The laws of this state will not accept as evidence the testimony of an Indian.”
“That objection is sustained,” said Judge Hemphill, and looked frostily at Jason. “I must direct the attorney for the plaintiff to confine his questions to relevant and competent matter.”
“Your Honor, I am trying to do so,” replied Jason. Then, to Betsy: “Miss Colquitt, where were you at or near the hour of midnight on August 14 of this year?”
“I was at the town square of Moshawnee.”
“Who was with you ?”
“You were,” and she smiled. “And Cut Nose.”
“Describe what happened.”
Betsy clasped her hands in her lap. “You and Cut Nose had brought a spade and a mattock. You dug at the spot where they say the grave of Sun Chief—”
“I object,” interrupted Kinstrey. “On the same grounds. Hearsay evidence.”
“Sustained,” droned Judge Hemphill.
“Miss Colquitt,” said Jason, “what was your information as to the alleged location of Sun Chief’s grave at the point where the digging took place ?”
“Mr. Enderby said it was there,” replied Betsy.
“Objection,” repeated Kinstrey.
“Your Honor, I submit that the answer is relevant,” argued Jason with sudden heat. “The witness testifies that Mr. Enderby pointed out a spot as the location of the grave. Mr. Enderby is here in the court, and can give his own testimony. As to Mr. Enderby’s ability to speak of the grave, we have his restraining order to prevent the courthouse being built where he says the grave is to be found.”
“Oh, I withdraw my objection,” smiled Kinstrey. “As the attorney for the plaintiff says, Mr. Enderby can testify as to what he did or did not say on the subject.”
“Thank you, Squire,” said Jason bleakly. “Continue, Miss Colquitt. You say the digging began. Did it reveal anything?” “Yes. Some bones.”
“Would you know those bones again ?”
“Yes, you and I made some marks upon them.”
Jason opened the green satchel, reached in, and brought out the rib.
“Will you identify this one?”
“Your Honor!” Kinstrey had bounced to his feet again. “To what horror does he subject this young lady?”
“Let her identify the bone if she can,” Judge Hemphill silenced him.
Betsy took the bone. “I know it,” she said. “Here’s my mark upon it, here.” She touched her inked initials.
Jason took the rib and held it up.
“May it please the court, and gentlemen of the jury,” he said, “it will not need a medical expert to assure us that this is not a human rib but a hog’s. I offer it as Exhibit B.”
“We object,” said Kinstrey. “Identification is not qualified or certain.”
Judge Hemphill accepted the rib from Jason. “It’s a pig’s rib,” he said. “I’ve eaten at enough barbecues to recognize it. The court will accept it as an exhibit.”
“Here,” and Jason dived into the satchel for the jawbone, “is another bone. Miss Colquitt, do you recognize it
?”
“It was taken from the grave, too,” she said. “There’s my mark on it.”
“Does the defense question our claims that this, too, is no human bone?” demanded Jason of Kinstrey.
“Oh, no objection,” laughed Kinstrey, and Jason put the jaw on the judge’s table.
“Exhibit C,” he said. “Miss Colquitt, what happened then?”
“The hole was filled, and we came away with those bones and marked them,” she replied.
“You may cross-examine,” said Jason without looking at Kinstrey, and resumed his seat.
Kinstrey came forward, his well-kept hands at his lapels.
“Miss Colquitt, you and I have known each other for several years,” he said, “and, even here before this court, we may speak as friends. It is with the utmost friendliness that I ask you, are you aware of the state laws against disturbing graves?”
“I am fairly well read in Alabama state law, Squire Kinstrey,” she told him, very gently. “I know of the penalty for disturbing a grave. It is cited, I believe, in the order restraining the town from building a courthouse on the square.”
“Yet you disturbed the grave, in spite of the law ?” he prodded her.
“Not a human grave. I was convinced that no human body lay there.”
“But you say that Mr. Enderby told you it was the grave of Sun Chief,” reminded Kinstrey.
“And Cut Nose said that it was not,” rejoined Betsy, still quietly but firmly.
“Then one or the other was lying to you ?” suggested Kinstrey, dropping his hands from his lapels and clasping them behind his back.
“Objection,” snapped Jason. “Now it’s you who are calling for a conclusion of the witness.”
“Your Honor, I promise to impeach this witness,” announced Kinstrey, raising his voice. “I intend to make it plain to these gentlemen of the jury that she took the word of an Indian vagabond and rejected the word of a true and respected gentleman. She believed Cut Nose, a malicious and false savage—”
“You talk about me?” roared Cut Nose suddenly.
He left the corner and shoved toward the front of the crowd of listeners.
“Order in the court,” growled Judge Hemphill, thumping with his gavel.
Manly Wade Wellman - Novel 1956 Page 11