But Cut Nose would not be hushed. “You call me liar?” he demanded, louder than before, and clenching his big brown fists. “You tell big lie yourself!”
“Look here, you copper-colored rascal—” began Kinstrey, when another whack of the judge’s gavel drowned him out.
“Silence from both of you, or this court will hold you in contempt!” barked Judge Hemphill.
Kinstrey subsided. But Cut Nose had suddenly wheeled and was glaring at a front window. Jason, too, glanced that way.
Two men were peering in—a sinewy little fellow with a spike of beard, and a plump one with a heavy face.
Cut Nose turned and began to push his way along the crowded aisle toward the door.
“Come back here!” shouted Judge Hemphill after him. “Sheriff, bring that Indian before me!”
Kinstrey had recovered his own self-possession. “Oh, if Your Honor please,” he said gracefully, “let the poor ignorant fool go. He’s completely unaware of what is meant by a civilized court of law. He has just shown how little worth hearing is anything he may say.”
Cut Nose had reached the door and had gone out. Jason, still gazing at the window, saw that the two men had vanished.
“His room’s better than his company in here,” pursued Kinstrey, “and without him we have a more dignified, cleaner trial.”
“Very well,” granted Judge Hemphill. “Do you have any other questions to ask this lady ?”
“No, no more,” said Kinstrey, with an air of conferring a great boon, and Betsy rose from the chair.
“Your next witness, Squire Morgan?” the judge prompted Jason.
“Your Honor, that concludes the evidence for the plaintiff,” said Jason.
Kinstrey approached the judge’s table.
“Comes now the defendant,” the Squire said tonelessly, “and moves that the case be dismissed and held for naught, for lack of sufficient evidence.”
“Motion denied,” said Judge Hemphill. “Certain testimony has been offered to the effect that the defendant, Mr. Enderby, was mistaken or evasive concerning the location of this Indian grave. The court wishes these disputes to be settled completely and permanently before the case comes to an end.”
“Very well,” agreed Kinstrey, bowing, and turned to address the jury.
15 The Case for the Defense
“May it please this honorable court, and gentlemen of the jury,” purred Kinstrey, “I, as attorney for the defendant, have been required to present my case. You have heard the plaintiff’s claim, and you have heard what passes for testimony on the part of witnesses for the plaintiff.”
He smiled, and threw back his handsome head.
“On the part of the defendant,” he began, “it is freely admitted that the defendant, Mr. Asper Enderby, sold and conveyed to Major Westall a certain parcel of land which includes the public square already pointed out and referred to. But evidence will be presented to show that, when Mr. Enderby previously purchased this same land, he agreed with the Indians who sold it to him that he would leave undisturbed the grave of their late venerable and beloved leader, Sun Chief. The evidence will show that he made this agreement formal by causing a document to be drawn up and signed in the presence of an accredited official. The evidence will show that, when the land was conveyed to Major Westall, Mr. Enderby mentioned the grave and was assured that said grave would not be disturbed.”
A snort from the Major greeted this. Kinstrey smiled more broadly.
“The evidence will show that Mr. Enderby trusted Major Westall’s spoken word,” he continued, “and that he subsequently reminded the Major of it. The evidence will show that Mr. Enderby’s efforts to halt the building of the courthouse were prompted by a sense of fair play and responsibility to those who originally sold him the land. The evidence will show that Mr. Enderby does not seek to keep Moshawnee from having a courthouse, and that he is ready and willing to assist in building one where it will not desecrate a grave. When you have heard this evidence, gentlemen, the defendant will pray at your hands for a just verdict setting aside the claims of the plaintiff.”
He bowed and looked around. “Mr. Leslie,” he called.
A very tall and very thin man came forward to be sworn. He wore a dark coat and his trouser legs were stuffed into boots. In one hand he carried a black hat. His features were lean, and his dark hair had grown gray at the temples.
“State your name and residence,” began Kinstrey.
“Samuel Leslie. Washington City.”
“Have you ever been in the State of Alabama before?”
“I was here from the year 1824 to 1827,” said Samuel Leslie. “And what was your occupation at that time ?”
“I was a government agent of the Indian service, with duties involving the supervision of the sale of Indian lands.”
“Ah,” nodded Kinstrey. “And did you perform those duties in this part of the state, at any time ?”
“I was here in 1825.”
Kinstrey held out a folded paper. “Mr. Leslie, I ask you to examine this document and identify it for us.”
Leslie looked at the paper. “It is a sale of Indian lands,” he said, “which I witnessed as part of my duty, in June of 1825.” “Can you testify to the genuineness of this particular instrument?” inquired Kinstrey.
“I recognize my own signature, and lately, being summoned as a witness in this case, I have refreshed my memory by consulting my records. This deed of sale is in perfect order.” Kinstrey addressed Judge Hemphill. “We offer this document as Exhibit A for the defendant.”
“Let me look,” said Jason, coming forward quickly, and Kinstrey handed him the paper, smiling.
It was a plain and simple conveyance of something like twelve hundred acres of property. Description and boundaries showed Jason that this land included the tract that had been purchased by Major Westall, by the agreement already familiar in Squire Colquitt’s office. The names of Black Rabbit and High Head were written in as sellers of the land, each name marked with a shaky cross in ink, and Enderby’s name appeared as buyer. These were witnessed by the signatures of Samuel Leslie and another man. The final paragraph was particularly interesting to Jason:
It is further specifically agreed by the purchaser that a certain grave, containing the body of Sun Chief, father of the aforesaid High Head and uncle of the aforesaid Black Rabbit, shall not be disturbed or moved in any fashion, save by specific permission of the aforesaid High Head and Black Rabbit, conveyed in writing and formally witnessed; the said grave of Sun Chief being located. . . .
Followed directions, yardages, and other information to locate the grave.
“The plaintiff allows this exhibit,” said Jason, handing it back. Kinstrey read the entire document aloud, with special and eloquent stress on the provision for leaving the grave undisturbed. A question or so more to Leslie, then:
“That’s all.”
“Mr. Leslie,” said Jason in his turn, “can you locate the grave of Sun Chief for us?”
The Indian agent shook his head. “No, not without measuring instruments and some time outside.”
“You mean, locate it at present,” summed up Jason. “Did you see the alleged location of the grave at the time you witnessed the sale?”
“I did,” replied Leslie. “The Indians who sold the land pointed it out. Distances were measured and bearings taken with a compass, and these identifying facts written into the deed which you saw.”
“That’s all,” said Jason, with a disappointment he could not hide, and Kinstrey chuckled.
“Not quite all, Squire Morgan,” said Kinstrey. “We’ll establish the whereabouts of the grave for you in a moment.”
His next witness was a man named Frewin, who proved to be a surveyor from the state capital at Montgomery. Frewin readily and exactly established the position of Sun Chief’s grave as in the town square. His explanation of the directions included in the deed for the Indian land was full and satisfactory to Judge Hemphill, and to the melanchol
y Jason as well. Kinstrey looked happy as he called Asper Enderby to the stand.
Gravely the planter held up his hand to be sworn, and he sat down with every appearance of easy confidence. One elegantly booted leg was crossed over the other knee, and he gazed with apparent admiration at the immaculately polished toe of the boot. He stated his name, and gave his business as that of cotton planter.
“Mr. Enderby,” said Kinstrey, “you’ve heard the testimony of Mr. Leslie about witnessing the sale of the land to you, by High Head and Black Rabbit. Do you remember the circumstances attending that sale?”
“Very well indeed, Squire,” was Enderby’s bland reply.
“Do you remember the provision as to Sun Chief’s grave and the agreement that it would not be disturbed ?”
“It was the matter of the grave that has impressed this business strongly in my mind,” said Enderby.
“Please tell the jury why.”
Enderby leaned back in his chair and looked toward the jury. “The Indians were already thinking, in 1825, of departing for the West with their whole tribe,” he began. “They were glad to get money for the land they held here, but were anxious that the body of their old chief rest quietly. It’s part of their religion not to disturb the dead.”
“Of course,” agreed Kinstrey, “and quite understandable.” “Therefore,” went on Enderby, “I asked the agent—Mr. Leslie—to help in establishing the position of the grave, in order that there would be no disturbance of the earth there. I wanted the Indians and the law both to be fully satisfied.”
“I see,” said Kinstrey. “And later on, you sold this same land to Major Westall ?”
“I did,” replied the planter.
“Will you explain why the matter of the grave and the agreement about not disturbing it were not included in the new document that authorized the transfer of the land to Major Westall?”
“He wrote out the deed of sale,” replied Enderby smoothly. “When we sat down to look at it, I mentioned the grave. He replied that he would accept responsibility for it, and would guarantee that it be kept inviolate—”
“That’s a he, sir!” bawled Major Westall, springing to his feet.
Judge Hemphill pounded with his gavel, but Major Westall came striding heavily forward, his old eyes blazing and his shoulders hunched dangerously.
“Sir,” he shouted at Enderby, “you lie when you say that, and you know that you lie, and I hereby challenge you to—”
“Silence!” thundered Judge Hemphill. “You’re in contempt of court, Major Westall!”
Jason, too, had risen and had grabbed the Major to drag him away from Enderby. The old man struggled powerfully in Jason’s grasp.
“Judge Hemphill, I intend no contempt of you or your court,” the Major said at the top of his voice, “but my contempt for this unprincipled, lying, cheating—”
“Mr. Sheriff, eject Major Westall from this room!” ordered the judge, and a moment later Sheriff Thompson was steering the fuming, gesticulating Major toward the front door.
Others muttered and chattered, but another mighty whack of the gavel quieted every voice.
“Any further disturbance, and I shall clear all spectators from the court,” warned Judge Hemphill. “We do not sit here to endure brawls or threats.” He nodded to Enderby. “Continue.”
“Continue,” repeated Kinstrey to Enderby.
The planter had not so much as uncrossed his legs. He smiled slightly, as though in mannerly deprecation of the scene.
“As I was saying, Major Westall agreed to accept responsibility for protection of the grave,” he said again.
“And you did not demand that he put it in writing?”
“Sir,” protested Enderby, “I respected Major Westall’s word. It has been said in this room that Major Westall’s word is as good as his bond. I accepted it at exactly that value—as good as his bond.”
Jason felt fury rising within him, and fought it back.
“I see, Mr. Enderby,” Kinstrey was saying. “Then, as time went on, the town of Moshawnee sprang up here, but the grave remained undisturbed.”
“It was my suggestion that the town square be left open so that Sun Chief might rest in peace,” replied Enderby.
“And you had further conversation with Major Westall about the matter?” suggested Kinstrey.
“The same conversation that he mentioned,” said Enderby. “He said that he would build a courthouse on the square. I reminded him of the agreement to spare the grave. When he insisted that the courthouse be built on the square, I went to court and asked for a restraining order.”
“What was your motive in doing that?” asked Kinstrey.
“My own word in the matter. I had promised the Indians to keep the grave as it was. I remembered my word, if Major Westall had forgotten his.”
“And what about the courthouse?”
“I offered at that time to sell him another site, very adequate —indeed, at a point which in future years may well be the center of the town of Moshawnee. Recently I offered to give that new site to the town free. He refused it.”
“Thank you, Mr. Enderby.” Kinstrey turned on his heel, and nodded to Jason. “You may cross-examine.”
Jason had managed to cool his own temper. He approached the witness.
“Sir,” he said, “I shall suggest, without heat, that Major Westall’s recent angry remarks had truth in them. You accused him of falsehood and bad faith.” -
“And I deny it, young sir,” was Enderby’s prompt reply. “Major Westall has simply forgotten our conversation.”
“Forgotten that he promised—that is, you say that he promised, and that he forgot so important a matter ?”
“Major Westall is old,” said Enderby plausibly. “Old men forget, even important things.”
“I object to the opinion stated by this witness,” said Jason to Judge Hemphill. “It is a mere conclusion as to Major Westall’s memory or lack of it, and he is not competent to testify to such things.”
“Your Honor,” interposed Kinstrey at once, “I submit that Mr. Enderby but describes the reason which prompted him to his action, and clarifies his position in not libeling or stigmatizing Major Westall under the name of liar.”
“Objection sustained as to the language of the witness,” said Judge Hemphill.
Jason faced Enderby again. Anger made his cheeks hot.
“Your position needs clarification in other ways than in your opinion of Major Westall’s honesty,” he said. “Where is this new suggested site of the courthouse, the site which you have offered the town?”
“It is west of here,” Enderby replied, pointing.
“Is it not at the border of your own plantation?”
“It is,” nodded Enderby, smiling.
“Wouldn’t it be to your advantage to have the courthouse there?” pursued Jason, fury coloring his tones in spite of himself. “With the courthouse of Foresby County there, would you not be in a position to sell at a great profit the land around it, making yourself wealthy and also influential thereby?”
“Please,” begged Enderby, still smiling. “I protest that you ask me to offer one of those conclusions against which witnesses are warned.”
“Amen!” cried Kinstrey happily. “Your Honor, the witness has stated the exact objection I was on the point of making.”
“Sustained,” granted Hemphill.
“Mr. Enderby,” said Jason, “are you acquainted with two men who last spring, and again recently, attempted to murder Squire Henry Colquitt, the attorney originally retained by the plaintiff in this case?”
“What two men?” inquired Enderby casually.
“I do not know their names—”
“If you would tell me their names, I would reply as to whether I am acquainted with them.”
“Allow me to identify them otherwise than by name,” persisted Jason. “They are the same two who, at your direction, dug up the body of Sun Chief and turned it over to his tribe to take away, prev
ious to the sale of the land to Major Westall.”
Enderby stared, shook his head slowly, and grinned.
“You speak in riddles, or in sport,” he said.
“Sir,” said Jason, “I ask if you have not employed criminals to attack Squire Colquitt, with a view to removing him and his able legal talents from trying this case against you; and if these criminals did not inflict a wound on Squire Colquitt last Saturday, disabling him so that he could not represent the town of Moshawnee before this court.”
“Certainly not,” said Enderby evenly.
“That is all,” snapped Jason.
“Your Honor, the defense wishes to conduct some redirect examination,” said Kinstrey.
Judge Hemphill fished out his watch, opened it, and looked at it.
“It is now exactly twelve o’clock,” he reported. “The court will declare a recess of two hours, at the end of which time you may continue your examination.”
The clerk rose. “Court stands adjourned until two o’clock this afternoon,” he announced.
16 Final Argument
As JASON CAME OUT WITH THE CROWD, HE SAW CUT NOSE STANDing under a tree. The Indian beckoned to him with a slight upward jerk of the chin, and Jason joined him quickly. Cut Nose had his rifle.
“I see those two bad men,” said Cut Nose softly.
“I saw them, too,” Jason told him. “Through the window. Did you follow them?”
Cut Nose’s black-gray mane tossed as he shook his head. “No. Stay here. Want to know what you do in white men’s council.”
“Where did they go?” asked Jason.
“That way.” Cut Nose lifted his palm to motion across the square, toward the stream where once he had won first place in the beef shoot. “Go beside water. Run away, I think.”
“If we had them here—”
“You want?” asked Cut Nose.
“Yes, Cut Nose, I want!” Jason almost barked. “If I could have them, I’d make the sheriff arrest them for attempted murder. Once in jail, they’d have to tell us why they shot at Squire Colquitt.”
“Huh!” grunted Cut Nose. “You make them talk?”
Manly Wade Wellman - Novel 1956 Page 12