by Jim Newell
Sometimes “Is” Isn’t
By Jim Newell
Copyright 2011 by Jim Newell
Cover Copyright 2011 by Dara England and Untreed Reads Publishing
The author is hereby established as the sole holder of the copyright. Either the publisher (Untreed Reads) or author may enforce copyrights to the fullest extent.
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This is a work of fiction. Any resemblance to the living or dead is entirely coincidental.
Also by Jim Newell and Untreed Reads Publishing
Never Use a Chicken and Other Stories
http://www.untreedreads.com
Sometimes “Is” Isn’t
By Jim Newell
The courtroom in the small central Tennessee town of Greenburg was beyond warm in the May heat wave. It was steaming. The two large circulating fans that hung from the ceiling lazily chased each other in circles and stirred the air around without making anything or anybody cooler. Nevertheless, the air was electric with anticipation when Court Clerk Walter Grange stood up and made his announcement.
“Order in the court. This session in the case of the State of Tennessee versus Jacky Paul Nelson, His Honour Judge Gabriel Holman presiding, will come to order. All rise.”
With the court clerk’s announcement, the crowded courtroom struggled to its collective feet, the door to the judge’s chamber opened, and the rotund figure of Judge Holman entered and took his seat on a platform several feet above the floor of the room. The judge looked at the State Attorney’s table behind which the prosecutor, Gerald Copeland and Sheriff Billy Bob Turner stood, then glanced at the defence table to the right. The stately man in the light grey suit, Thomas Gifford, stood with a thin, dark-haired young man beside him. This young man, Jacky Paul Nelson, known to his friends as JP, was charged with the murder of his father, Hansford Nelson. JP’s appearance was visibly unhappy, but he stood straight and waited on the judge. On the left side of the table was an unusual object, a package somewhat less than a foot high and about a foot and a half long wrapped in what appeared to be a small bath towel.
“Satisfied that all was in order, Judge Holman said in his courtroom voice, “Y’all may be seated.” The judge’s deep and measured courtroom tones were different from the social voice that showed a usually friendly man who gave the impression that all was well in his particular part of the world. After his permission was given, the seats in the courtroom again became occupied, all of them. The reason for the large crowd was that this little town of Greenburg had not had a murder trial in five years. The last one had been in 1930 when Clement Gurridge had been found guilty of murdering his wife. In that case, Clem had been hanged shortly thereafter and the town had talked of nothing else for a couple of years. Now it appeared that something similar was about to take place.
“Mr. Gifford,” said the judge when all was quiet, the State completed questioning its final witness before the noon recess. Do you wish to cross-examine?”
“Yes, Your Honour.” Thomas Gifford’s voice was well modulated and had very little of the common Southern drawl, although he had lived and practiced law in Greenburg all his life.
“Sheriff Turner, will you kindly return to the stand?” asked the judge. He leaned back in his chair and appeared to take an extra keen interest in Gifford’s next move.
Before he left the State Attorney’s table, the sheriff had a short and apparently agitated conference with Gerald Copeland, causing Judge Holman to sit forward again and ask in a noticeably annoyed tone, “Sheriff Turner, are you going to present yourself for cross-examination?”
The sheriff broke off the conversation and walked across the courtroom floor without looking up at the judge, took the oath and settled himself in the witness chair, scowling at the defence attorney. Gifford maintained his usual calm demeanour and began by asking, “Sheriff Turner, you testified under oath this morning that you made the arrest of JP. Nelson on the charge of murdering his father, Hansford?”
“Yes.”
“What did you say to my client when you came to look at the body of the dead man?
“I asked, ‘Who shot him?’”
“And what did he reply?”
“He said, ‘I don’t know but I’m glad the SOB is dead.’”
“Then what?’”
“I asked where the gun was and he said, ‘My uncle took the rifles up and put mine in my truck.’”
“And when did you arrest my client?”
“After I found the rifle in his truck had been fired.”
“What, exactly, did you say when you told my client he was under arrest?”
“I said, ‘You’re under arrest for killing your father.’”
“And how did he react to that?”
“He yelled at me that he didn’t kill him.”
“Were those his exact words, ‘I didn’t kill him?’”
“Uh …no. I remember that he said, “I didn’t shoot my father.’”
“On what grounds did you identify Hansford Nelson?”
“I have known Hansford Nelson all my life. That was all the identification I needed.”
“Have you also known Arthur Nelson all your life?”
“Of course. They are twins. We all went to school together.”
“They are twins. Identical twins, too, are they not?”
“Yes. But it’s easy to tell which one is which if you’ve known them for so long.”
“How do you tell which man is which?”
Billy Bob Turner thought for a moment. Then he scowled at the defense attorney again and replied, “I can’t answer that question. I just know, that’s all. I’ve always known. So has anyone else who has lived in this town all their lives.”
“I see. Well, Sheriff, I want to show you three photos. Two of them were taken a year ago by the local newspaper to illustrate a story on the number of twins in the Greenburg area. Do you remember that story?”
“I think so, not really well, but I remember there was a story like that in the paper.”
“Very well.” Gifford returned to his table and picked up a full-sized sheet of paper, obviously a photograph. “I had the newspaper put these three photos on the same sheet. Can you tell me who is the man on the left?”
The Sheriff looked at the photo for only a few seconds. “That’s Hansford Nelson.”
“Thank you. Now, who is the younger man in the middle?”
“That’s Hansford’s son, JP
“And he is the man you arrested?”
“Yes.”
Gifford pointed to the third man in the photo collage. “And who is this man?”
“That’s Hansford’s twin brother Arthur,” replied Sheriff Turner after a few seconds’ study.
“Sheriff, would you be surprised if I told you that you had mixed up the Nelson brothers in the photo? The man you identified as Hansford Nelson is actually Arthur Nelson, and the man you identified as Arthur is actually Hansford.”
“That can’t be. I know which is which.”
“Look on the back of the photos and tell the court what the photographer wrote there.”
The Sheriff did so and turned red with anger. “He’s wrong. I know who they are.”
“Please read what is written ther
e.”
“Left to right, Arthur, JP and Hansford Nelson.”
“And read the rest.”
Turner, obviously angry and uneasy with what he was being asked to do replied, “Written by John Alexander.” He stopped.
“And the rest, Sheriff Turner.”
“Certified by Walter Grange, Clerk of the Court.” The Sheriff’s voice indicated his unhappy state of mind.
“Thank you.” Thomas Gifford turned to the judge. “Your Honour, Mr. Grange is here in the courtroom this afternoon as usual. John Alexander is at work as a photographer at the Weekly Star newspaper this afternoon. I can have him appear in court if you think it is necessary, but I am hoping that you will accept Mr. Grange’s certification as to the fact that the photos are in the correct order.”
“Let me see them,” replied the judge. Billy Bob and Gerald Copeland were both obviously uneasy for the few moments that Judge Holman had the photos in his hands and when he turned the sheet over and examined the written words. The judge took only a few minutes to examine the document before handing it back to Gifford. “I can’t tell the difference between the brothers, but I accept the photographer’s identification and the clerk’s certification that what Mr. Alexander wrote is correct.”
“Thank you, Your Honour. I would enter this sheet of photographs with their certification that the identification is correct as defence exhibit one.” He handed the sheet to the clerk with the slightest hint of a smile. Then he turned back to his witness. “Sheriff, did you fingerprint the victim at any time?”
“No. I didn’t feel it necessary, because I knew him.”
“Did you ever fingerprint his brother, Arthur?”
“Yes. Arthur was arrested for DUI some years back.”
“So his fingerprints are available at your office.”
“They should be.”
Gifford turned to the judge.
“Your Honour, it is very important that the court see these fingerprints purported to be of Arthur Nelson. They may change the entire course of this trial. I respectfully request that you send to the sheriff’s office and have them brought to court this afternoon.”
“Objection, Your Honour. This is just fishing. The Sheriff has testified that he has known the victim Hansford Nelson since they were boys.”
“I’m going to overrule you, Mr. Copeland. I am very interested in where this is all going.” He turned to one of the two bailiffs and asked him to fetch the requested fingerprints.
“Thank you, Your Honour,” said Gifford. “I guarantee that you will not be sorry.” He turned back to the witness.
“Sheriff, I have another test for you while we wait for the fingerprints. Perhaps you will do better this time.”
“Objection. Your Honour, I have been very patient, so far, but this is going too far.” Gerald Copeland had risen from his State Attorney’s table, his face flushed with anger. “I have not heard that any of this so-called evidence was to be brought forward, and Your Honour knows that evidence is to be shared for examination by each side before a trial begins.”
“Mr. Gifford?” Judge Holman inquired of the calm and obviously composed defence attorney.
“Your Honour, I only received this information early last evening. I called my secretary about ten o’clock last evening. She went to my office and remained there until the early hours of the morning typing a message fully informing my opponent of the document, the testimony of my witness, and this next test I have for the sheriff. She personally left the message she had typed on his desk before eight o’clock this morning when his secretary arrived.”
“Well, Mr. Copeland, it would seem as though you might have to begin getting to work a bit earlier, since the court was opened at ten o’clock this morning. Maybe you should also have returned to your office during the lunch break instead of eating with the crowd at the Greenburg Diner.” He paused and stared at the state attorney. “Objection overruled.” The judge may have sounded reasonably jovial, but the look in his eyes convinced Gerald Copeland to resume his seat.
“Thank you, Your Honour.” Gifford turned to the remaining bailiff. “Bailiff, would you bring in the large box marked ‘exhibit’ from the witness room? I warn you that it is quite heavy and may require two people to carry it.”
An audible stir of curiosity rippled through the courtroom as the bailiff and the court clerk brought in a large carton and at Gifford’s direction placed it on the floor in front of the witness chair. Gifford reached down and quickly tore off the tape that kept the box closed. He pulled out a rifle.
“Sheriff Turner, can you tell me the make of this rifle?”
Turner took the rifle and quickly replied, “It’s a Winchester 30-30.”
“Thank you. Can you tell me who it belongs to?”
“Of course not,” snorted the sheriff in disgust. “There are thousands of them.”
“Could it be the rifle that killed Hansford Nelson?”
The sheriff snorted again. “No it could not, sir. That gun is locked up in the evidence room at the jail.”
“Thank you. Would you point it at the ceiling and carefully break it open?”
The sheriff did so and on opening the breach said in some alarm, “There’s a live bullet in the breach.”
“Is the safety catch on?”
The sheriff checked. “Yes, it is.”
Then that rifle is relatively harmless if handled properly. The attorney reached for the gun, and laid it carefully down on the floor.”
Copeland was on his feet again. “Objection, Your Honour. This is highly irregular. A loaded gun in a courtroom is against the law.”
“Don’t tell me the law, Mr. Copeland. Objection overruled. Mr. Gifford, I presume you know what you are doing?”
“I do, Your Honour, and you will see something very important to the future of my client with just a bit more patience.”
“I hold you responsible. Go ahead.”
Gifford repeated the experiment with three more Winchester 30-30 rifles. The sheriff had been correct when he said that there were thousands of that make of rifle. It had been in production since before the turn of the century thirty-five years previously. Turner examined each one as he had the first, noting that there was a live cartridge in each of the first two and that the safety catches were on. He could not identify the owner from looking at the gun and he denied that any of these could have been the rifle that killed Hansford Nelson.
His examination of the third gun was different. This time, there was no live cartridge in the breach. “There’s a shell in this gun, but no bullet,” he said in some surprise. “It must have been fired.”
“It was fired, Sheriff. My witness will tell you who fired it and when in a few moments. Now I will identify the owners of these guns.” He collected the first one, checked it against a list he had picked up from the defence table, and approached the bench. “Your Honour, can you identify the owner of this rifle?”
With some small measure of surprise Judge Holman took the rifle and examined it carefully. “No, I cannot. I have one like it, but so do many people.”
“Thank you, Your Honour. My point exactly. As a matter of fact, you may keep that rifle because it belongs to you. I identified it by the serial number when I took it from the gun rack in your truck early this morning and copied down the serial number on this sheet of paper this morning.”
Before the judge could reply, Gifford took the second rifle to the jury box and handed it to Max Farmer, a member of the jury sitting in the front row of the jury box. “Mr. Farmer, can you identify this rifle?” he asked handing over the rifle. Farmer looked at it carefully.
Finally, he said, “No sir. I can’t tell.”
Thomas Gifford took the rifle back and exchanged it for the third one. “How about this one, Mr. Farmer?”
The result was the same. Gifford retrieved it, laid it down and picked up the previous one. “This one is yours Mr. Farmer,” he said. “I checked the serial number when I picked it up from
the gun rack in your truck this morning on my way into court. You may retrieve it from the Court Clerk when we are finished here.”
He handed it to the Court Clerk who laid it carefully in front on him on his table. Gifford also went to the Clerk’s table and picked up another rifle that was tagged as State Exhibit Number 1. He handed it to the sheriff and said, “Sheriff, this morning you testified under oath that this was the 30-30 rifle that was used to kill the man you identified as Hansford Nelson. Is that correct?”
“Yes.”
“Will you break it open please?”
The sheriff did so.
“And the breach is empty and the gun has been fired but not cleaned afterward.”
“Yes.”
“Thank you. I just wanted to make sure that with all these other rifles, I had the right one. Can you identify the owner?”
“Yes. Like I said this morning, I took it from JP’s truck.”
“Did you check the serial number against the company’s list of serial numbers?”
“No. Why should I do that?”
“Because I have a list of serial numbers here, as you have seen, and that list shows that the gun belongs to Hansford Nelson. How do explain that?”
Billy Bob Turner shook his head. “All I know is that I took that gun from JP’s truck, so it must have been his and he used it to kill Hansford Nelson.”
“Thank you, Sheriff Turner. I have no further questions. Gifford returned to his table for another glass of water, also giving the jury time to digest the information. They were all local men, all hunters and familiar with 30-30 rifles.
The sheriff left the witness stand and returned to the table he shared with Gerald Copeland. Neither man spoke to the other.
“What’s your point, Counsellor?” asked the judge. “I haven’t heard who owns that last rifle.”
My point is, that there are so many of us in this area—and in many other areas also—who own Winchester 30-30s that you can only tell whose is whose by the serial numbers. Now I am going to prove that Sheriff Turner was wrong in his guess-work. I call as my last witness, Hansford Nelson.”