“When Lovejoy started his draw, the longest part of the action, telling his hand to start the draw, had already been accomplished.”
“That’s preposterous,” the prosecutor said.
“Your Honor, if I could have two pistols, and a holster, I could prove this,” Tom said. “Empty pistols,” he added quickly.
The gallery laughed, nervously.
“All right,” the judge agreed. “And I’m doing this more as a matter of curiosity than a matter of law.”
Tom strapped a holster on, then, after both pistols were certified as being empty, he put one in his holster, and handed the other one to the prosecutor.
“The witnesses said that the two men were holding their pistols down by their sides, right?”
“That is correct,” the prosecutor said.
“Judge, Mr. Prosecutor, I am not a skilled gunman. In fact, I wouldn’t even be willing to say that my skills are above average. So I’m going to give this demonstration, then allow the prosecutor to choose anyone from the gallery that he would like to do it a second time to validate this.”
“All right, what exactly are you going to do?” Judge Blanton asked.
“The same thing Lovejoy did,” Tom said. “I want the prosecutor to hold the pistol down by his side. When he sees me start my draw, I want him to raise his pistol up and pull the trigger.”
“Ha!” the prosecutor said. “All right, Mr. Whitman, make a fool out of yourself.”
Tom let his hand hover over the pistol, then quickly he drew it and pulled the trigger. He was able to do so before the prosecutor was able to raise his own gun and pull the trigger. The separation of the two snapping triggers was clearly obvious, and the gallery reacted in disbelief.
“Wait, I wasn’t ready,” the prosecutor protested.
“Shall we do it again?” Tom asked.
“Yes.”
“Are you ready?”
“Yes.”
Again Tom drew the pistol, and again he clearly beat the reaction time of the prosecutor.
“All right, all right, I want to see someone else do that,” the prosecutor said, and he chose two men at random from the gallery. Once the experiment was set up, the man drawing from the holster won every time.
“Thank you, Mr. Whitman, for this—most interesting experiment,” Judge Blanton said. “Now, may I ask how this contributes to the publici juris?”
“Because, Your Honor, the public has the right to know that Frank Lovejoy’s quickness as a pistoleer cannot be validated by the example of his killing the two soldiers in the earlier incident.”
“All right, Mr. Whitman, as I decide this, I will take the information you have so pointedly demonstrated into consideration,” Judge Blanton said.
“Your Honor, may we get on with the trial?” the prosecutor asked.
“Please do, Counselor,” Judge Blanton said.
Marcus Doyle was the next witness. “I don’t care what tricks this Whitman fella showed everyone,” Doyle said with a sneer. “’Cause it don’t have nothin’ to do with the fact that this man,” he pointed toward Matt Jensen, “kilt Frank Lovejoy. The way this whore,” he pointed to Rebecca, “and the other people been tellin’ what happened, ain’t what happened at all,” Doyle said.
There was a gasp of reproach from most of the gallery, and Judge Blanton banged his gavel.
“Would the court reporter please strike the word whore?” Judge Blanton said. He pointed at Doyle. “Any further comments like that, Mr. Doyle, and I will find you in contempt of court. Do you understand me?”
“Yes, Your Honor.”
“You may continue with your testimony.”
“Well, sir, Frank was sittin’ at the table with some of us riders from the Back Trail Ranch, when we seen what we thought was a fight between the boy there,” he pointed to Dalton, “and the—uh—woman named Becca. And Frank, thinkin’ the woman might be in danger, went over to help her. I mean that’s all it was. Frank was just lookin’ out for the girl. Next thing you know, why they was two men a’drawin’ on him. Frank managed to kill one of them, but the other one, that one,” he pointed to Matt, “kilt Frank.”
“Let the record show that the witness pointed to Matt Jensen,” the prosecutor said. “Please continue.”
“Yes, sir, well, I ain’t really got nothin’ more to say,” Doyle said. “Like I said, both of ’em drawed on Frank, but he was able to fight off only one of ’em.”
The next two testimonies were so close, not only to Doyle’s but to each other, that it was quickly obvious they had been rehearsed. In addition, they were all employees of Seth Lovejoy.
The last witness for the prosecution was a man named Emerson Morrell. “I don’t care what kind of tricks this fella showed you, there wasn’t nobody faster than Frank Lovejoy, and ever’ one knew that. When this here Matt Jensen fella come up on Frank, he already had his gun in his hand. And there wasn’t no waitin’ for Frank to draw, like he was showin’ us while ago. What he done was just commence shooting without so much as a fare-thee-well.”
“Your Honor,” Tom called out after the witness named Morrell had been excused. “May I speak?”
“You have already testified, Mr. Whitman,” Judge Blanton said. “Cadit Quaestio.”
“May I take extraordinary exception to the ruling of no further argument, Your Honor?” Tom said. “This man has just perjured himself.”
“The fact that his testimony is in direct opposition to the testimony of others is a part of this trial,” Judge Blanton said. “It may well be that Mr. Morrell saw things differently. That does not necessarily constitute perjury.”
“Emerson Morrell has just testified that the gun was already in Mr. Jensen’s hand when he approached Frank Lovejoy, and that Mr. Jensen opened fire without any warning. Mr. Morrell cannot testify to that fact, Your Honor, because he wasn’t even in the saloon at the time of the incident.”
“How many people were in the saloon at the time of the incident?” the prosecutor asked.
“Twenty-three, counting the bartender.”
The prosecutor smiled sarcastically. “Twenty-three? Are you sure? Could it be twenty-two? Twenty-four?”
“Twenty-three,” Tom insisted.
“All right, let’s assume that there were twenty-three. With that many people there, could it not be possible that Mr. Morrell was there, but you just didn’t see him?” the prosecutor asked.
“No. Morrell was not there.”
“Mr. Whitman, are you saying that you know everyone who was there?”
“I don’t know any of them by name,” Tom replied. “But I know who was there and wasn’t there.”
The prosecutor stepped up to the judge and whispered something to him. The judge nodded affirmatively, then spoke.
“I would like for the entire gallery to leave the courtroom, please,” he said.
With protests and grumbling, the gallery, assisted by Sheriff Bell and some of his deputies, left the courtroom. The only ones who remained were those who were directly involved with the proceedings. A moment later, the gallery returned.
“Now, Mr. Whitman, earlier you conducted an experiment for the court, and if you will allow me, I would like to conduct one myself,” the prosecutor said. “As you just observed, the judge emptied the courtroom. It is full once more. I wonder if you could look out over the gallery and tell us if there is any difference in their composition.”
A murmur of interest and anticipation spread through the gallery as Tom looked out over the men and women who were seated in the courtroom.
“That lady, second from the left in the second row was not here before,” Tom said. “The man sitting next to her was here, but he was sitting on the extreme right of the third row.” He continued to point. “That man was not here. Neither was he. She was, but was sitting in a different place. There are four people missing, who were here before but are not here now.”
The prosecutor stared at Tom with his eyes and mouth open in shock. Then, when
Tom was finished, the prosecutor shook his head in wonder, and looked up at the judge.
“Your Honor, Mr. Whitman is correct on every account,” he said. “I have no further questions.”
The judge did not even have to leave the bench to make his decision. “This court finds no cause to bring charges against Mr. Matt Jensen, and finds him innocent of any wrongdoing in the death of Frank Lovejoy. This hearing is adjourned.”
The judge finished his announcement with the slap of his gavel.
Later that afternoon, Rebecca found herself standing in Boot Hill Cemetery for the second time within the last two weeks. When Rebecca first saw Dalton and the others, she thought they had come to Dodge City just to find her. She had since learned that they came to Dodge to receive a herd of Black Angus cattle to be driven back to Live Oaks. She learned that from Dalton, who asked her to come to the burial. He was also the one who asked her to come back home.
Rebecca had no reason not to return home now. Her mother was dead, and it was obvious that whatever feelings Tom Whitman might have had for her were gone. He now believed that she had been working as a prostitute in the Lucky Chance, and she had not said anything to him that would disabuse him of that idea. At first, she was hurt that he would even believe such a thing. But as she thought about it, she decided it might be for the best. Her father was determined to prevent any relationship from developing between them, and this would just make it easier to follow her father’s wishes.
As the funeral began, Dalton led Mo’s favorite horse, fully saddled, to the side of the grave. There was then, total silence, as the saddle was removed from the off-side, signifying that this horse would never again be ridden by the man whose saddle this was. The horse, almost as if it understood, lowered its head and nodded a few times. Then Dalton led the horse away, and Dusty stepped up beside the open grave. Dusty’s father had been a preacher, and Dusty still carried his father’s Bible. He opened the Bible to read a few words at Mo’s interment.
“I am the resurrection and the life, saith the Lord: he that believeth in me, though he were dead, yet shall he live; and whosoever liveth and believeth in me shall never die.
“We brought nothing into this world, and it is certain we can carry nothing out. The Lord giveth, and the Lord taketh away; blessed be the name of the Lord.”
Rebecca listened to Dusty read, and thought how much more comforting these verses were than those hateful words spoken by the Reverend T.J. Boyd at her mother’s funeral.
Clay gave the eulogy.
“Mo was raised in an orphanage,” Clay said. “He often told me that we were the only family he ever had. And we know that he believed that, from the bottom of his heart, because in defending Dalton, he gave his life for his brother. And now we, his brothers and sisters, are here to commit him to his final resting place.” Clay opened his hand to show some dirt. “This is dirt that came from an extra saddlebag that has been lying in a corner of the hoodlum wagon. It is Texas dirt, and that means that even up here in Kansas, our brother Mo, will be buried in Texas soil.” He opened his hand and let the dirt stream down onto Mo’s coffin. “Be with God, brother.”
As Mo’s grave was being closed, Rebecca walked over to her mother’s grave. There was still a mound of freshly turned dirt over it, not yet having settled. She looked at the tombstone.
JANIE JENSEN DAVENPORT
1846–1890
“A fallen flower has returned to the branch”
“I’m going back home, Mama,” Rebecca said quietly. “But I will keep you in my heart, forever.”
She stood there looking down at her mother’s grave for a long moment, then she turned away. When she did, she saw Tom standing about twenty yards behind her.
“Tom!” she called.
Tom turned quickly, and walked away.
November 20
When Rebecca showed up at the holding pens on the day they were to depart Dodge, she saw the men moving through the holding pens, urging the cows through the long chutes to the open ground, where others were bunching them up into one large, manageable herd. Even as they did this, the leadership among the beeves was being established. Animals that had remained docile while in the pen now began to affirm their authority. The cowboys allowed them to do this because they knew that the herd would be led home, not by them, but by the leadership exhibited by the more assertive cattle.
One of the riders inside the pen pushing the cows out was Tom Whitman. Rebecca stared at him, trying to make eye contact, but he was either too busy to notice her, or he was purposely avoiding looking at her.
“You’ll be driving the hoodlum wagon,” Dalton said. “I drove it up here, but with Mo gone now, Clay is a man short, and there’s no way you could actually ride herd.”
Rebecca didn’t tell Dalton that she had ridden as a cowboy with Walter Hannah’s herd when they came up from the Rocking H Ranch. Along the way she had ridden point, swing, and drag. She had cut cows out of the herd, and she had run down cows who had gotten away.
“You aren’t going to have any problem with driving the hoodlum wagon, are you?”
“No. No problem.”
“Good. Maria and Mrs. Jensen are driving the chuck wagon, so you won’t get lost or anything. All you have to do is follow along behind them.”
Rebecca could have told Dalton that she made the trip up here as a cowboy on a cattle drive, and that she wasn’t likely to get lost. But she held her tongue.
After settling accounts with the manager of the holding pens, the trail cattle were brought together into one herd, then pushed down to the bank of the Arkansas River. The stage of water in the Arkansas made it easily fordable, so Clay pushed them on across. There was also a bridge available and the bridge was utilized by the two wagons.
Once safely over the river, they made plans to camp at Crooked Creek, which was just about six miles south of the Arkansas. There, they would organize for the 450-mile drive that lay ahead of them.
“I am the foreman and trail boss,” Clay said. “But I confess that this is new to me in that I haven’t worked Angus cattle before. Duff, you’ve been around them for a long time. How do they trail?”
“We found out when we trailed down to Cheyenne from Sky Meadow that if you bell one of the leaders, we shouldn’t have any trouble,” Duff said. “And as long as we can keep that steer going in the right direction, the others will follow along behind.”
“With Longhorns we could average about fifteen miles a day. How does that track with the Angus?”
“I think we’ll have no trouble in doing that,” Duff said.
“If we can do fifteen miles a day that would put us on track to be back home by the middle of December. But with winter coming on, we may not do that well. Still, I think that’s what we should shoot for. I would like to be back home by Christmas.”
Clay set the watch for the first night, and Sally and Maria served a delicious dinner of fried beef and potatoes.
After dinner, they all sat around the campfire, not only for the warmth but for the camaraderie. Duff played his bagpipes, which was a treat to Clay, Dusty, Dalton, and Maria, who had never heard pipes before. Rebecca had heard them, and enjoyed them immensely. Dusty played the guitar, then both he and Clay prevailed upon Tom to perform.
“What does Tom do?” Smoke asked.
“He calls ’em soliloquies,” Dusty said. “They’re words from plays, but not just any kind of words and not just any kinds of plays. They are the damndest words and plays you ever heard of, just like the ones in them high-falutin’ plays that sometimes comes touring around.”
“That ought to be right up your alley, Falcon,” Smoke said. Then he went on to explain to the others that Falcon’s brother and sister were New York actors.
“Oh, Tom, please do a soliloquy for us,” Sally asked. “Do you know Puck’s soliloquy from Midsummer Night’s Dream? The one that begins, ‘Thou speakest aright, I am that merry wanderer of the night’?”
“I know it,” Tom said.
“When I was teaching school, the children used to love that one,” Sally said. “Please, do it for us.”
“Shall I stand and ham it up? Or sit here and just say it?” Tom asked.
“Oh, you must stand. Look at it this way. You aren’t here on the barren plains of Kansas,” Falcon said. “You are on stage at the Booth Theater in New York. You wouldn’t be sitting cross-legged there, would you?”
Tom smiled, stood up, cleared his throat, then struck a dramatic pose and extending his right arm, palm up, began to speak, rolling his R’s and putting emphasis in just the right places.
Thou speakest aright
I am that merry wanderer of the night.
I jest to Oberon and make him smile
When I a fat and bean-fed horse beguile,
Neighing in likeness of a filly foal:
And sometime lurk I in a gossip’s bowl,
In very likeness of a roasted crab,
And when she drinks, against her lips I bob
And on her wither’d dewlap pour the ale.
The wisest aunt, telling the saddest tale,
Sometime for three-foot stool mistaketh me;
Then slip I from her bum, down topples she,
And ‘tailor’ cries, and falls into a cough;
And then the whole quire hold their hips and laugh,
And waxen in their mirth and neeze and swear
A merrier hour was never wasted there.
But, room, fairy! here comes Oberon.
The others around the fire laughed and applauded. Tom took a good-natured and elaborate bow, smiling as he made eye contact with everyone there.
Including Rebecca.
Rebecca held Tom’s eyes for a long moment before she broke away. What did she see in his eyes? Sadness over what might have been between them? Anger at her leaving? Condemnation over how he found her?
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