Frontier Lawyer

by Lawrence L. Blaine

  She thought of her father, Don Alfredo Lucero, six feet one, a giant by Spanish standards, with his skin like Cordovan leather and his eyes like eagle’s eyes, and his stiff gray beard and stiffer back. His only child, child of his old age, Isabella, had loved him fiercely. Then along had come an even bigger man, perhaps a stronger man, and he had won her love—for a while.

  She could date exactly the day when she had stopped loving Dan McCandless. It had been on that day, a month after Harry’s birth, when her father was murdered by the white oak in the desert. That night, when he had come into her bedroom to say good night, she had seen something in his eye, a look of guilt, perhaps, and that had killed her love for him forever. It was a month before she permitted him to take her in his arms again, and she had pretended mourning as her excuse. How could she have told him she no longer loved him?

  She had never again taken pleasure from his embrace. He knew that now, and did not come to her.

  Isabella had no certainty that her husband had been involved in her father’s murder. The question had been raised; men said that McCandless and his friend Tilley had lured the old don to the malpais and murdered him there. McCandless had angrily denied such stories.

  She could not be sure who had committed the murder, then. It had been a time of murder. How the land had run with blood in those days when the Tejanos came! When the Anglos came!

  She did know that, through her, Dan McCandless had inherited the Lucero Grant. And not long after the estate had been settled, her husband and his partner Tilley had quarreled bitterly.

  Why?

  Isabella thought she knew. The suspicion, dark though it was, had grown with the years. Either they had murdered her father themselves, or they had caused his death, or they knew who was responsible. She suspected that the quarrel had come because, after acquiring the Lucero Grant, McCandless had dissolved the partnership with Tilley, shutting his old companion out of the newly acquired fortune.

  So they hated one another. By their violent code, they kept their own counsel, neither having recourse to the law. Isabella sighed. She knew she had passed into darkness. There were long hours when she thought she was out of her mind. The priest was little help. And she could not, like her husband, use alcohol to wash away the gnawing silent voices. She had to live with her fears and her hatreds.

  If he wanted to, Joel Tilley could easily squelch the trial, Isabella thought. A word to Beaudoin, another to Hazledine, and the trial would be ended, the Territory would yield its case.

  But Tilley hated her husband.

  This was Tilley’s revenge. Harry would die.

  Blood would end in blood, Isabella thought. For his violent deeds, Dan McCandless would suffer. Isabella scarcely considered that it would be her own son, flesh of her flesh, mounting the gallows. Harry had always been close to her, had been her son more than his father’s. But she felt no pang of regret that his life was in jeopardy now. To her racked mind, she could only see Harry’s death as an event in the humbling of Dan McCandless, in the ruin of that proud, lawless man to whom she had so foolishly given her heart a quarter of a century before.

  “Aren’t you hungry, Isabella?” McCandless said loudly.

  Isabella McCandless looked into her husband’s face. What she saw pleased her. It was a face of despair. Drunk as he was, not even a vat of brandy could give him peace now. She smiled quietly, and nodded in satisfaction. He was suffering. That was good, Isabella thought.

  14.

  KILGORE in Territory v. Harry McCandless was Kilgore the frontier lawyer at his best. The invasion of manners from the East which had lifted the raw Territorial Bar from its minor beginnings of ridicule and contempt at the regular conventions of the American Bar Association to a position of respect and eminence—an eminence shared by fewer than fourscore contentious advocates who roamed the vast expanse—that elevation of manners was to be seen in the elegance of his attire. Catlike on his feet and animal-like in his instincts, with the looming bulk of his gleaming black mane radiating splendor in the blazing electric lights of the courtroom—with the attention of the national press nurturing his natural vanity, and with a fabulous fee scraped from the dwindling treasury of his client’s father, a fee already celebrated in the ballads circulating in broadsides composed in Kansas City, he was the exemplar of the Western bar, the cynosure of reporters gathered from the four corners of the nation. All this was on the surface.

  His heavy coat of blue serge, buttoned to the throat to conceal the resplendent silver and black four-in-hand, added bulk to his fleshy chest. This looming effect was accentuated by the tapering pants legs which disappeared into the tops of his boots. As he grasped his lapels and exhorted the courtroom, a student of legal history might have detected the faint voices of the ghosts of Calhoun and Henry Clay and Daniel Webster echoing in the entranced chamber of rough-clad men.

  Kilgore played for time. The selection of the jury took a week and exhausted the entire panel of citizens presented by the clerk of the court. Kilgore’s preparation had been thorough—and his own intimate knowledge of the county was supplemented by the efforts of detectives hired at great expense in Dallas to comb the history of every prospective juror for each nuance that might reflect upon his qualifications for the great trial. Spanish, Anglos, neutrals, and indifferent—a fine-tooth comb had gone through hundreds of lives to determine the element of favor or prejudice that might lie behind hostile eyes. On the voir dire, the examination of the jurors, Kilgore spoke, quietly, effectively, vehemently, probing the responses with instinctive skill.

  Could justice be done to the son of Dan McCandless?

  In a score of ways, he put the question—for he defined the issue early in the trial. It was not the visible prosecutor he feared, he charged, but the invisible effect of hatred and resentment against the great figure who had dominated the Territory for decades—Dan McCandless. Was the hatred too great? Was the prejudice beyond control? Could a fair and square trial be given a youth against whom no cogent evidence had yet been presented? Could the jurors weigh the issues solely on the evidence? Would they realize that they alone were judges of the facts and the judge relegated alone to issues of the law?

  At the end of five days, panting and exhausted, Kilgore threw up his hands and announced that the jury was satisfactory to the defense. More than three hundred prospective jurors had been excused for prejudice by one side or the other or at the direction of the court.

  “Satisfactory!” Pete Beaudoin groaned, glancing in fatigue and disgust at the ceiling.

  By and large, it was a neutral jury—a jury that might have been selected from a hat; nobody wealthy, nobody poor, nobody who would concede prejudice either against Harry McCandless or against capital punishment. It was as satisfactory as a jury could get—hard men, but ready to listen to the defense.

  Kilgore waited as calmly as possible in the recess, considering the throbbing in his ear and the general feeling of dull fatigue that weighed him down. Anxious faces crowded in at him—Dan McCandless, Carlotta, even Isabella, making her first public appearance in San Carlos in years. Clem Erskine sat at Kilgore’s side. The lawyer was glad to have the boy there; Clem’s strength and determination were assets he would need.

  Dan McCandless was not susceptible to cheer at the moment. His voice was husky as he asked, “What chance do you think there really is, Kilgore? Don’t spare us, now. We’d rather not have false hopes to live by.”

  Kilgore said solemnly, “Dan, there’s every chance in the world for your boy.”

  “You’re just saying that,” Carlotta put in.

  “I mean it,” Kilgore insisted. “It’s at least fifty-fifty as it stands. Assuming Beaudoin’s got nothing up his sleeve, and I doubt that he does, all the evidence against Harry is purely circumstantial. As a matter of law it’s insufficient to prove his guilt beyond a reasonable doubt.”

  “It’s not his guilt they’re trying to prove,” Dan McCandless said bitterly. ‘It’s mine!”

 
“Guilt for what?” Kilgore asked curiously. Dan McCandless failed to answer. The lawyer turned to his assistant. “Clem, when the trial starts, I want you to sit in the back and get the feel of the courtroom,” he said in a low voice. “When I play to the onlookers, I expect to raise a bit of feeling—and that’s got to come across the rail and influence the jury. Keep your ears open and your eyes peeled.” When Clem Erskine had left the group, Kilgore returned to Dan McCandless. “There’s ten Spanish names on that jury,” he said quietly, “and your boy is Alfredo Lucero’s grandson. That’ll count in his favor. And I’ll have to attack the virtue and chastity of that little Morgan girl, poor thing, and that’s bound to have an effect—at least on the Spanish jurors. It won’t endear me to Laurie Morgan”—he shot a glance at the tense, white face of the dead girl’s mother, a face that had become a mask of hatred—”but that’s a small price, all things considered. You mustn’t assume the jury’s against you to that extent. Kilgore’s speaking for you.”

  “I’m the one who’s really on trial,” McCandless said miserably. “Those jurors hate me.”

  “Even if there’s a conviction, we can appeal to Santa Fe. Unless Beaudoin makes out a legal case, any verdict can be set aside,” Kilgore replied.

  “By four other Tilley men? Never!” McCandless groaned.

  “Then we’ll appeal to the Supreme Court at Washington,” Kilgore retorted impatiently. He was weary and annoyed at the hopeless tone. “Or are they in Tilley’s pay, too? Get a grip on yourself, McCandless. The whole damn court is watching!”

  “Order, order!” chanted the bailiff.

  Looking refreshed, Judge Hazledine returned to the bench wiping the corners of his gleaming Vandyke beard. He tapped the bench and announced that all demonstrations would be met with jail sentences for contempt and ordered that the trial proceed.

  Pete Beaudoin’s opening to the jury was brief, no more than twelve or thirteen minutes, and it was brilliantly organized. It touched on the alleged unsavory character of the defendant, the circumstances of the victim’s death, the intention to prove that the defendant was the last person to see the victim, and the various items of proof that would be adduced to show that the defendant had committed the crime for which he had been indicted. Beaudoin stressed Harry’s denials of guilt, setting them up as straw men for afterward.

  Kilgore listened, taking no notes. Beaudoin had offered no surprises thus far.

  Beaudoin finished his speech and turned to Judge Hazledine. “If Your Honor please, the Territory will call Dr. Spencer Hewlitt to the stand.”

  Kilgore arose. “Your Honor! I think it’s been the custom for about a thousand years to let the defense get a crack at the jury before the frame-up actually starts.”

  Judge Hazledine’s tapping pencil cut into the prosecutor’s objections. “The observation is uncalled for, Mr. Kilgore. You may address the jury.”

  “Well, good!”

  Kilgore stepped forward, conscious of the agony of his infected ear, and faced the jury. Twelve men, two Anglos and ten Spanish. The youngest thirty, the oldest sixty. Their faces were like stone images now.

  Kilgore said, “Gentlemen of the jury, I’d like to address one brief plea to you before the action of this trial begins. I wish to remind you that the defendant is Harry McCandless, and no other member of his family. Don’t let old hatreds, old prejudices sway you. You are here today to serve the interests of justice, not to take revenge on a man whom perhaps you have come to hate.” He saw Beaudoin fidgeting, getting ready to object, and decided to cut his words short before being forced to. He faced the foreman of the jury, a swarthy farmer of mixed stock named Thomas Martinez, and said, “I have no further words for you now. I ask only that you remember the sacred quality of justice. Thank you.”

  He resumed his seat and put his hand to his ear as the official translator put his brief address into Spanish. Pete Beaudoin now rose before the court to present the case for the Territory and called his first witness.

  Marty Leach, the court clerk, rose to swear the witness. Doc Hewlitt looked as though he had made a special effort to look respectable today. He walked to the witness stand with a definite swing of sobriety; his cadaverous cheeks were shaved, his clothes neatly arranged.

  Beaudoin said, “How long have you been a resident of San Carlos, Dr. Hewlitt?”

  “Eight years.”

  “And during that time what has been your profession here?”

  “Doctor, sir.”

  “Are there many doctors in San Carlos?”

  “There were a couple when I came. I’m the only one in town right now.”

  “I will ask you if about December seventh of the last year you made a post-mortem examination of the body of Mary Margaret Morgan, otherwise known as Honey Morgan?”

  “Yes, sir. I first examined the body at the Sanchez place, about twenty miles out of town.”

  Beaudoin nodded. “At whose request were you present there?”

  “Why, the sheriff told me to come out. Someone had told him a corpse had been found out there, and I came along to examine it.”

  “In other words, the body was not brought to you. You went to the site of the corpse.”

  “That’s right.”

  “Would you describe the condition of the body?”

  Hewlitt hitched up his trouser legs. “Well, sir, it had been exposed for around three days, but on account of the cold weather there was no deterioration at all. The girl was wrapped up in a bloody Navajo blanket.”

  “Is the blanket present in this courtroom?”

  “Yes, sir. It’s right over there on that table, marked Exhibit A.”

  “That’s the same blanket the girl was wrapped in?”

  “Yes, sir.”

  “All right. Continue. What else was the girl wearing?”

  “A silk dress. No undergarments.”

  “And what was her position?”

  Kilgore rose like a buffalo from a mud wallow and a meaty hand went aloft. “Hold it!” he said wearily. “Your Honor, may it appear on the record that our good doctor is evidently refreshing his memory from a paper, which I would like to have marked for identification?”

  Beaudoin said, “I object to the interruption unless the witness is first asked if he is refreshing his memory.”

  Judge Hazledine turned about. “Are you using that paper, Doctor?”

  “Certainly,” the doctor retorted irritably. “I got to keep the facts straight. Anything wrong?”

  “Only this,” Kilgore said. “This whole procedure is unfair and prejudicial. I’ve been begging the attorney general for a glimpse of that paper since this ridiculous information was handed down. I’ve been trying to get the minutes of the so-called proceedings before the coroner. I’ve been unable to prepare for this cross-examination because of the ferocious disregard of the defendant’s right to know exactly what he’s up against.”

  “Come to the point!”

  “Point is, I want a copy of that paper and a day’s recess to study its alleged findings. This whole procedure is unfair!” “Denied!” Judge Hazledine flushed darkly and directed that the testimony continue. Kilgore sat with an air of outward anger, secretly pleased at the minor points established. The prior question as to the position of the body was repeated.

  “Lying on her back,” Hewlitt said. “Legs spread, one arm across her breast, the other one thrown back.”

  “How would you describe the condition of her body?”

  “She’d been in a fight. She was bruised and scratched up, and there were bits of skin under the fingernails like she’d scratched someone else. Her face was swollen, and there were contusions on the body. Her nose was bloody, like she’d had a nosebleed before she died.”

  “Anything unusual about her?”

  “Yes, sir. Her mouth was stuffed full of builder’s plaster. Completely crammed. Like the man who murdered her had stuffed up her mouth, first, and—”

  Kilgore rose. “Your Honor, I move that that be st
ricken. It has not yet been demonstrated that the deceased was murdered, and any assumptions to that effect can’t be considered as testimony.”

  Judge Hazledine nodded. “Very well. Let it be stricken.”

  Beaudoin’s only reaction was a smile. Doc Hewlitt seemed nettled by the interruption, but the attorney general swiftly regained control. “Let us go on, Doctor. You examined the body in situ. What did you do then?”

  “I assisted in removing it to town for a further examination.”

  “What was the purpose of that further examination?”

  “To find the cause of death.”

  “Well, you may go on and describe your examination, what you found and what was the cause of the poor girl’s death.”

  Hewlitt looked at Kilgore, who stared at the ceiling without change of expression.

  “The girl had sustained a fracture of the skull with damage to the brain.”

  “Would those injuries be sufficient in your judgment to cause death?”

  “Yes, sir.” The doctor hesitated and added, “And there was rape.”

  A sigh went through the courtroom.

  “Why do you conjecture rape, Doctor?”

  Hewlitt shifted in the chair. “Well, I examined her and I could tell she’d had sexual relations shortly before her death. And coupled with all the bruises and such, I’d be inclined to think she was forced.”

  “Would you elaborate on the cause of death?”

  “Sure. She was hit on the head, hard. Skull fracture caused a rupture of the dura mater. That’s the tough lining around the brain. Compression of the brain by effusion of blood caused death. I found blood clots.”

  “Did you know the deceased during her lifetime, Dr. Hewlitt?”

  “Yes, sir.”

  “Would you say she was in a good state of health?”

  “Why, yes. I mean, she was slightly anemic and had an enlarged heart, but nothing really serious. I examined her a few months ago. Her teeth were sort of decayed, too.”