Massacre at Powder River

by William W. Johnstone

“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, in
deed 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!”

  Chapter Seventeen

  In jail that night, Clem’s sleep, what little there was, was filled with dreams.

  His feet were dangling over the back of the wagon as his ma and pa drove down to the Current River for the all day preaching. All of the neighbors were gathered there, sitting on blankets listening to a traveling preacher as he walked back and forth in front of them, preaching about the fires of hell and stabbing his finger into the air to emphasize his points. Then it came time for the baptism and dozens lined up to go down to the water.

  “No, I ain’t goin’ to go down to the crick and let you dunk me in the water.”

  “You have to be baptized if you want to be saved,” the preacher said.

  “I don’t want to be saved.”

  “But you must. You must give your soul to the Lord.”

  “I ain’t a-goin’ to do it.”

  “Then you will burn in hell!” the good reverend said, pointing a long, thin, bony finger at Clem.

  Clem shouted out loud, and waking with a start, sat straight up on the cot.

  “Are you all right in there?” the deputy called back.

  “What time is it?”

  “It’s one-thirty.”

  “I’ve got nine and a half hours left,” Clem said.

  The deputy came to the jail cell and looked in. There had been two other prisoners in jail when they brought Clem in, but both were in for being drunk and disturbing the peace only, so Marshal Drew let them go. He didn’t want any other prisoners around while he was holding Clem.

  “You want something? A cup of coffee, maybe?” the deputy asked.

  “Coffee? What about whiskey? You got ’ny whiskey?”

  “Sorry. I can’t give you any whiskey. Coffee will have to do.”

  “All right, give me a cup of coffee then.”

  The deputy walked back to the front of the jail, poured a cup of coffee from the blue metal pot that set on top of the pot-bellied stove, then brought it back to Clem.

  “Thanks,” Clem said.

  “Do you want something to read? I’ve got a couple of books here.”

  “I ain’t never learnt how to read,” Clem said.

  “All right,” the deputy said. “If you want any more coffee, just let me know.”

  “Hey, Deputy,” Clem called.

  The deputy turned.

  “Can you read?”

  “Yes.”

  “Have you ever read anything about hell?”

  “Yes, I’ve read about it.”

  “Do you think it’s real?

  “Yes, I believe it’s real.”

  “I’m goin’ there, aren’t I? I’m goin’ to hell.”

  “You probably are.”

  “Well I don’t care,” Clem said with forced bravado. “I’ve got lots of friends there. We’ll have us a grand time.”

  As the deputy went back to the desk out front, Clem returned to sit on the cot. He thought of Sam Logan and his other friends in the Yellow Kerchief Gang. He wondered if any of them would show up for his hanging. He wished they would. He wouldn’t give them away or anything. He would just like to see one friendly face in the crowd.

  At the end of Sussex Street stood a tall cottonwood tree. Approximately twelve feet from the ground was a large limb that ran at almost a perfect right angle to the tree trunk and extended out for several feet. Marshal Drew and two members of the city council, upon close examination and consideration, decided that the tree would suffice for the hanging. As soon as the decision was made, Charley Keith, the town painter, made a sign that was nailed to the trunk of the tree.

  On This Tree

  At 10:00 A.M.

  Will Be Hung the Murderer

  Clem No Last Name

  By nine-thirty that morning, nearly all the residents of Sussex were gathered around the tree, awaiting the event. A couple of entrepreneurs were taking advantage of the gathering by peddling homemade candy and cookies. Mr. Dysart, the photographer, had his camera and tripod, and he had already set it up at three different locations, trying to find the most revealing angle.

  There was some excitement when a buckboard was brought out and positioned under the tree, then a rope was thrown over the limb. One end of the rope was tied to the limb; the other end was tied in a hangman’s noose.

  The Reverend D.L. Mullins had been asked to provide some comfort to the condemned, so he was present as well. But never since he had become a man of the cloth had he seen a gathering this large, and he decided he could not turn his back on this opportunity. He climbed up onto the back of a buckboard and began preaching.

  “Brothers and sisters, this is a somber occasion. We are gathered here to hurl the soul of a sinner into the abyss of eternity. And while we watch as this sinner is cast into hell, it is time for us to examine ourselves to see if ...”

  “Hey! We didn’t come here to hear no preachin’!” someone shouted from the crowd. “If we want to hear preachin’ we’ll go to church. We come here to see that murderin’ son of a bitch get his neck stretched!”

  There was a smattering of nervous laughter in the crowd.

  “Oh but you must hear me, my friends,” the preacher said. “For the words you hear me say today could keep your souls from eternal torment.”

  Although the preacher continued his sermon, there were few, if any, who were listening, and fewer still who were actually paying attention to him. Matt and Frewen had come to the hanging,
as well as Morrison, Frewen’s foreman, and several of his cowboys, especially Jeff and all those who had been particular friends with Burt. Although there were quite a few women and children in the audience, neither Clara, Jennie, nor Winnie had come, Frewen having specifically asked them to stay away.

  “I would like to think that this is one of the men who killed Graham, Bates, Emmitt and Cooter,” one of the cowboys said.

  “Yes, and Snead and Coleman too,” Frewen said.

  “That’s funny,” Marshal Drew said, looking around the crowd.

  “What is funny?” Frewen asked.

  “I see a lot of Thistledown cowboys here, but I don’t see Reed, or Mr. Teasdale. You’d think they would have an interest in this. They’ve got as much to lose from the rustlers as anyone else.”

  “Hmm, you’re right,” Frewen said. “I don’t know why William isn’t here. I’m sure he knows about it.”

  “Maybe he just doesn’t want to watch a hanging,” Marshal Drew said. “It isn’t everyone’s cup of tea.”

  “It’s not something I particularly want to watch, either,” Frewen said. “But my hope is that seeing a rustler die by hanging will have a sobering effect on the others.”

  “Here the son of a bitch comes!” someone shouted.

  “How do you feel, Clem? You ready to hang?” another called out.

  Clem’s appearance not only ended the impromptu sermon, it also halted all conversation. As Clem was led from the jail, he was wearing the same clothes he had been wearing when Matt brought him in, a collarless blue shirt and gray trousers held up with suspenders. The only difference was that he was not wearing the yellow kerchief now, the thought being that having it around his neck might interfere with the hanging. Clem’s legs weren’t hobbled, but his hands were handcuffed behind his back. He squirted out a stream of tobacco juice just as he reached the buckboard.

  Earlier that morning a carpenter built a set of steps that would allow him to climb easily onto the buckboard, but when he reached them, he hesitated.

  “Get on up there, Clem,” Marshal Drew said. “You got no one but your own self to blame for bein’ here, so why don’t you show us you can die like a man?”

  Clem glared at the marshal. “Maybe you’d like to show me how it’s done,” he suggested.