Heyes went back to his cage. He paced up and down, his brain whirring with activity as he considered the strategies he had been discussing with his new lawyer. After just a few minutes, Cole appeared with his arms full of clothing. "Come on, deputy, get this man to where he can clean up and change in decent privacy!" said the young lawyer with a grin. He hadn't been at all sure that the Montana law would accommodate his requests for his client's comfort. The tall young blonde deputy looked away disdainfully and refused to speak directly to the young African-American lawyer. But he opened the cell and unfastened Heyes' chains from the cell bars so two guards could accompany the prisoner to a room where he could bathe and change.
Heyes smiled at his lawyer and said, "Thanks Mr. Cole! I appr . . ." Heyes' voice trailed off as he stared at the pile of shirts, linens, socks, pants, and jacket in the lawyer's arms.
Heyes looked angrily from the clothes to Cole's face. "Where is she?" he demanded, standing with his arms crossed and his cell door opened while his impatient guards waited for him to move.
"Where is who?" asked Cole.
"Don't play the innocent with me!" growled Heyes irritably. "Those aren't just any clothes – those are my clothes! Those came from my room in New York City. There's only one person who has the key to my place and there's no way she would just send clothes. She came herself, didn't she? Where's my fiancée, Elizabeth Warren? I begged her not to come, but the woman won't ever listen to me. She came."
Cole grinned nervously. He didn't know Heyes that well yet and he wasn't sure of how the former outlaw would treat a recalcitrant woman. "Yeah, Mr. Heyes, she came. When you've cleaned up and gotten dressed, she'll meet you in the visiting room. Is that alright?" He glanced from the deputy, who nodded, and to Heyes who scowled.
But then he sighed and relented. "Yeah, that's alright. I sure won't refuse to see my own gal. I just wish to God she didn't have to see me like this – in chains."
An hour later Heyes said nearly the same words to Beth, as he sat chained to a heavy iron ring in the visiting room with Beth on the other side of an intimidating set of bars. She answered in a voice full of pain, "Well, this is how you are, Heyes. So it's how I'm going to see you. Until the trial's over and you get out of here."
"That won't happen after this trial, and you know it," Heyes said, sighing bitterly.
"I know," Beth replied, very quietly. "Oh darling, how well I know it."
The two gazed longingly at each other through the bars, brown eyes locked on brown eyes.
"Are you still mad at me for coming?"Beth asked tentatively.
Heyes looked sadly at Beth. "No, honey. I'm awful glad to see you. But that lawyer of mine had better really have worked out a way to protect you from aiding and abetting charges. It's bad enough having me put away. I couldn't stand, I mean really couldn't stand, to have you in jail, much less prison. But if he's sure you're safe, I'm glad to have you here . . . as long as the prosecuting attorney doesn't manage to turn your testimony against me!"
"My place is at your side, Heyes," said Beth doggedly. "I don't see how they could make me say anything against you. There isn't anything to be said against you! We may not really be married yet, but we might as well be. We belong together. The sooner you realize that, the better!"
Heyes grinned briefly. "I do realize that, love!" Suddenly he was on his feet and reaching toward the bars down the middle of the room. As Heyes' guards dashed forward, Beth leapt toward Heyes, putting her face to a space between the bars. Their lips had barely touched when the guards hauled at Heyes' chains, pulling the pair apart.
Beth wept softly as the guards pulled Heyes out one door while she was escorted firmly out the other. She and Heyes both wondered if they would ever touch each other again.
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Heyes returned to his cell, very upset. Not an hour later, a deputy came up to his cell and said, "Another visitor to see you, Heyes! Come on!" Again, the prisoner brushed off his suit and tried to look decent despite the chains. Again his chain was detached from the bars and he was paraded through the halls of the castle-like prisoner to the visiting room with two guards at his sides. Again, he was chained to the heavy ring and placed behind a wall of iron bars.
This visitor was a burly, formally dressed man with a bushy mustache. He looked at Heyes curiously.
In an accent that Heyes immediately recognized as being from not far from his own birthplace in Missouri, though with a strong dose of the farther West added, the man said, "I came to apologize, Heyes."
"Apologize?" Heyes asked his impressive and as yet unidentified visitor, sounding puzzled and uneasy.
"I'm Joe Toole – Governor of Montana. I wanted to go along with your request to keep your identity a secret for this trial, Heyes. I don't know how your name and the schedule for your train leaked out before you even got here – but I intend to find out!" Toole's angry tone didn't bode well for whoever had leaked the news. Heyes was glad to see that this governor had some respect for him, and for his ideas. That could be important for his amnesty – if he could get past the murder trial.
The governor reined in his fury quickly. "I think you were right, Heyes. It will be hard for you, with your name known, to get a fair trial from a jury of your peers. Not that I'm sure you have many peers in this country. Honestly, there can't be many." The governor gave a brief bark of laughter.
"What do you mean, sir?" asked Heyes.
The governor laughed again. "You know what I mean, Heyes! Not many men could go from being a brilliant outlaw to being at least as brilliant an academic mathematician! They tell me you're a true genius."
Heyes laughed himself. "I've heard it now and then. Well, alright, pretty often. I do alright, when I care about something."
Toole grinned under his dense mustache. "The Kid's a lucky man to have you as a partner."
Heyes snorted. "Well, I'm lucky to have him, too. His gun hand's pretty fast, that's true. But the Kid's a genius in his own right. He often has less than a second to figure up a man's character and his mood, not to mention his skill with a gun. And he has to figure out how to avoid killing a man, and how to do him as little harm as he can – which is how the Kid has always operated. I can't swear that he's always been right about all that, but he's still alive and free. That ought to tell you something in itself."
Toole nodded. "It does. He must have figured up your character long ago. It's a tribute to you both that you're still partners after all these years. You know, Heyes, if you ever get past all these legal challenges, you ought to think of running for office."
"No, sir!" exclaimed Heyes with fierce conviction. "I would not ever do that. I just want to look after my own business. I want to be a professor, an advisor, a husband, and, I hope, a father one day. I don't even want to be a department chair. I had enough of that kind of politics, and more than, when I was still in the outlaw trade. I gave it up for good reason. I hate to hurt people, in any way. I never want to have to do it again."
"What about killing them?" asked Toole, dryly, looking intently into Heyes' eyes.
Heyes looked hard at the governor and shook his head. "You know I can't talk about an ongoing legal case."
"Did that darkie lawyer of yours tell you that?" asked Toole harshly.
Heyes' eyes flared angrily, although it was a very mild slur by the measure of those days. "Yeah, but he didn't have to. I know the law. And so do you – aren't you a lawyer?"
Toole nodded. "I am. But I'm also a politician."
"You sure are," said Heyes. "Are you getting a deal together with those three other . . . gentlemen?"
"You ought to know that I can't talk about an ongoing political deal!" said the governor, only half joking.
Heyes raised one eyebrow skeptically as he looked at Toole. Then he turned to look at his guards, who had listening to this conversation in a certain amount of awe. Not many outlaws could talk with a governor on such an equal basis. Heyes rattled his chain to show them that he was ready to go. Heyes looked back at Toole. "Well, if you're done questioning me, Governor, I guess I'd like to go back to my cage. In case you'd forgotten, my murder trial starts tomorrow. I'd like to rest up and be ready for it, if you don't mind."
"No, Heyes. I guess it's a little hard for you to think past that just now. I'll watch the proceedings with great interest." Heyes noticed that the governor did not wish him luck.
But as Heyes got back to his cell, he thought to himself, "One down, and one to go. Maybe."
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Heyes, just back from the bathing room where he had sponged off and shaved, carefully dressed in his best suit. He tried to ignore the pair of excited young deputies staring at him. The leg irons got in the way until Heyes asked for them to be taken off momentarily while he put on his drawers and pants. Once he was fully dressed, he asked for a hand mirror, which was duly provided. He arranged his hair as well as he could. Finally Hardin Cole arrived, looking keyed up but not nervous.
"How many murder trials have you been through?" asked Heyes as the pair walked down the hall toward the door, the prisoner's chains rattling and ringing on the stone of the floor. It took three men just to carry the chains that linked Heyes' arms and legs.
"None – so far," said Cole with a grin. "This is my first!"
"Oh, that's just great!" said Heyes in agitation. "Did Charlie Homer think to ask you that?"
"Of course." Cole was still smiling and in high spirits. He reminded Heyes of himself in the old days when he had been all excited to be setting off on a hard job back in the Devil's Hole days. "He ultimately decided that my overall legal experience was strong enough to offset my lack of experience in that area. After all, there has to be a first time for everything."
"But why does MY trial have to be your first?" Heyes sighed and pulled himself together as they approached the heavy doors of the prison. Even behind all that oak, he could hear noise outside. He was not going to get to make his way across to the Lewis and Clark County Courthouse in privacy. It was no surprise, but it didn't make Heyes happy.
Two more deputies and four full marshals joined Heyes' escort, while more than a dozen other lawmen fanned out to keep the crowds back as the famed prisoner made his way down the steep stone steps. He had to fight with every step to keep the heavy leg irons and manacles from throwing him off balance. The day was bright and clear with hardly a cloud in the blue sky. A large crowd had gathered in a holiday mood. The voices of strangers called out to the defendant, who tried to ignore them. He had a hard time getting used to having so many people know who he really was, after so many years of keeping his name a dark secret. "Good luck, Heyes!" "We believe in you, Heyes!" "What's with the n_, Heyes?" "Don't think you can fool the law in Montana, you criminal!" "Keep your head up, Heyes! You'll come through!" "Couldn't you find a lawyer of your own kind?" "Is the Kid coming to break you out?" Most of the voices seemed to be those of young men, but women and even children were well represented in the crowd. Most people seemed to support Heyes, who wasn't sure why he was so popular. The lawmen had to work hard to keep everyone back.
Fortunately, the court house was just across the street. The tall clock tower struck nine as his guards hurried Heyes in the door. The halls were full of people, too. Many of them seemed to be from the press. There was even a photographer who set off a burst of flash powder as Heyes went by. Heyes couldn't help jumping a little at that.
Finally, Heyes and his escort arrived at the elegant, classically detailed courtroom. It seemed to have been newly painted for the occasion. The large gallery was packed by a noisy crowd.
Heyes looked curiously to see what the jury looked like. They were all men, ranging pretty equally from young to old, dressed in their best dark suits. Some had cowboy hats with them, but all had bared their heads.
Heyes and Cole went to sit side by side at a polished table in the front of the courtroom. "Just don't let all the crowd get to you, Heyes," whispered Cole in his client's ear. "The truth is the truth and you're in the right."
Heyes nodded, taking a deep breath and trying to stay calm. After so many years of secrecy, the crowd made him very self-conscious. He heard a young woman sitting near the rail say, "That is one fine looking outlaw!" Heyes tried not to grin. It was nice to be appreciated, even though Beth might disagree with him on that!
A skinny, nervous looking grey-haired man sat at the other table at the front of the court room. He was Gregory Horace, the prosecuting attorney, with a younger assistant next to him. Two young male clerks sat near the bench preparing to transcribe the proceedings. Heyes could see at least one courtroom artist sitting near the front rail of the gallery. The man looked up from his drawing board to look probingly at Heyes, then quickly began to draw the former outlaw.
A loud, solemn voice intoned, "All rise!" This set off a noisy commotion as the large crowd and all the jurors, lawyers, clerks, and other functionaries got to their feet. Heyes had rarely been in court – it was something he had long worked to avoid. But Cole had told him every step of the official proceedings so nothing should take him by surprise.
The judge, a tall, balding, middle-aged man, strode up to the bench and sat down. Then the court sat down as well. Heyes looked curiously at the judge, wondering what the man would think of the infamous defendant.
The court was filled with rustling and talk from the packed gallery. The judge said, "The court will come to order!" But this did little good. People kept talking. The judge pounded his gavel again and again. "Silence! Silence in court!" his baritone voice boomed. But the packed gallery continued to whisper noisily.
Heyes tried not to look nervous, but he was. He had been in very few courtrooms in his time. Many times as he had been arrested, he had almost always managed to get away somehow before any actual trial. The few times when Heyes had been in a courtroom, it had been for an informal proceeding in a very informal little western courtroom that often did double duty as a barroom. This elegant courtroom in the new state courthouse of the new state of Montana was utterly new in his experience. That Beth Warren was sitting a few rows back in the gallery next to Charlie Homer and Jim Smith did not help Heyes to be calm, but he would do his best never to catch the eye of any of them. It would be hard, but it was the only way he could keep his concentration on the trial.
"Order in the court!" hollered the judge again, his face reddening as his gavel thundered. "This court will come to order or I will empty the gallery!" Reluctantly, the gallery finally complied.
When something close to silence had finally been achieved, the judge spoke. "The defendant will rise and state his full name for the court."
Heyes stood, trying not to strain against his chains. He looked respectfully up at the judge. "Hannibal Heyes." Heyes the aspiring professor calmly and effortlessly projected his voice to the whole courtroom. There was a flurry of whispers in the gallery until the judge pounded his gavel to silence them.
"Is that your full name? You have no middle name?" asked the judge.
"It is, your honor. I have no middle name so far as I know," answered Heyes.
"What do you mean, so far as you know?" the judge asked, sounding a little put out.
Heyes restrained himself from smiling. Things were already going as his savvy lawyer had hoped – giving him a chance to give some of his sad personal history that would help to get the jury's sympathy. Heyes, staying very serious, stated to the judge and looked over at the jury as well, "I was nine years old when my family was slaughtered in the Kansas border wars and our house was burned. The family Bible was lost in the fire." The gallery was filled with sympathetic murmurs and Heyes could see how disturbed some the jurors looked about this violent history.
"Were you never baptized, Mr. Heyes? Wouldn't there be church records or school records?" asked the judge, appalled.
"No, your honor," answered Heyes levelly. "It was a remote farm when I was born. There was no church near enough for my family to attend until some years later. And the church and the schoolhouse I attended were also burned at the time that my parents and my brother and sister were murdered." There were more compassionate exclamations from the gallery. The judge did not bother to silence them.
"Very well. Clerk, please swear in the defendant," said the judge.
The clerk spoke quietly to Heyes. "Mr. Heyes, please place your left hand on the Bible and raise your right hand." Then he spoke loudly so that the whole court could hear him, "Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God?"
"I do," said Heyes, sounding solemn, indeed.
From somewhere in the gallery a whisper could be clearly heard, "As if that bastard ever told the truth in his life!" but the man was quickly hissed into silence amid angry whispers. Heyes' eyes went to the gallery in search of what enemy he had there, but he didn't recognize anyone immediately and he didn't dare become distracted long enough to study all of the dozen of faces.
"Defendant, you stand accused of murder in the second degree. How do you plead? Guilty or not guilty?" asked the judge in an officially neutral voice.
"Not guilty, your honor," said Heyes, "I fired in self-defense."
"The defendant will be seated," said the judge. Heyes complied, with one of the pair of deputies guarding him helping to make sure that he did not become tangled in the length of heavy chain that connected both his arms and both his legs.
The prosecuting attorney, a mousy little man, stood and made his opening statement. "Your honor, gentlemen of the jury, it has already been proven in a court of law that the slain man, Sean Gunther the third, was part of an unlawful conspiracy to seize and hold against his will the defendant's partner, Jedediah Curry. This conspiracy was created in order to turn the defendant and his partner in to the law for the reward of thirty thousand dollars. This conspiracy was illegal, but it was founded upon turning in two desperate and infamous criminals who carried guns and were not averse to using them. I shall prove that the infamous defendant came to free his partner and, on seeing conspirator Sean Gunther, did deliberately shoot him down to gain revenge upon him for the taking of his partner." Heyes stared at the prosecuting attorney, wondering how anyone could believe in the revenge motive for a man who had been surprised by someone carrying a gun! He studied the quick, twitching movements of the slender attorney. Truly, the man sounded as if he knew that he didn't have a legal or moral leg to stand on. It was just as Cole had told Heyes. It wasn't quite an open and shut case, but if things went as Cole hoped they would, it would be nearly so.
Yet, in a murder trial, anything could happen. Heyes and Cole could not afford to be careless or to take anything for granted.
Now Cole rose, ignoring the cat calls and nasty yells that greeted a Negro lawyer. He had heard it all many times before, if not from quite so large and aggressive a crowd. The judge banged his gavel and stated quietly, "Any person who continues to make offensive remarks toward this attorney will be escorted from this courtroom." Heyes was relieved to hear this. He had been, and continued to be, worried by the attitudes that might prevail toward his lawyer due to his race. Just because the judge was, at least publically, even handed about race did not mean that all members of the jury would be.
Cole spoke in a clear, ringing tenor voice, "Your honor, gentlemen of the jury, I will demonstrate beyond any reasonable doubt that when he shot Sean Gunther, my client acted in self-defense. My client and his partner are famous for using as little force as possible in all eventualities. This is even more true since they gave up all criminal activities more than seven years ago." There was loud murmuring at this – far from everyone knew that Heyes and the Kid had gone straight. The judge had to bang his gavel to quiet the gallery. "As I say," continued Cole, "my client and his partner gave up all criminal activities more than seven years ago, yet they continued, indeed still continue, to be wanted. My client, Hannibal Heyes, acted only in self-defense. He was untying his illegally detained partner when Sean Gunther came up behind him and surprised him. Mr. Heyes turned. By the time he pulled the trigger, Sean Gunther had already fired at him and narrowly missed. There is clear evidence that Gunther was in the process of preparing to fire his gun again at the moment that my client fired at him. If Mr. Heyes had not shot Mr. Gunther, there can be little doubt that Mr. Gunter, shooting a second time from such close range, would have shot and killed my client. There could not be a clearer or more classic instance of self-defense."
The presentation of evidence began with a clerk's reading out evidence from the previous trial to establish the facts of the conspiracy between Deputy Bentley, Sean Gunther, and Mrs. Gunther, and Bentley's father. They had purposefully ruined the Lodge Grass Montana Trumpet and use faked reports from that newspaper to get them reprinted in other papers. These reports were put out to get the Kid and then Heyes to go to Lodge Grass where they could be kidnapped and then turned in for the reward money that Bentley needed to pay off his father's debts and Gunther needed to pay off his own gambling debts. They had previously robbed a stage coach and gotten it blamed on the Kid. This robbery had involved a murder for which Deputy Bentley had been hung.
Horace, the prosecuting attorney, then began the new evidence by questioning Sheriff Herman Pohank. Pohank was a thin, tough middle aged man who evidently had strong powers of observation. There was quite a bit of time spent setting up the physical situation of the old mine entrance and the shed there where the Kid had been kept tied up for over a week.
After these things were established, Horace continued questioning Sheriff Pohank, "So when Theron Wiseman brought you to the old mine you found the deputy who was found to be part of the conspiracy, Darrell Bentley, tied up in the shed?"
"Yes, sir," said Pohank.
"How was he when you found your deputy waiting for you?" asked Horace.
The Sheriff snorted, "It was cold and wet by then. Bentley was struggling at those ropes and mad as a wet hen. Didn't like having that body lying by him in the mud. And sure didn't like giving up all that reward money!"
Horace lost no opportunity to associated Heyes with the shooting. "You mean Sean Gunther's body, whom Mr. Heyes had shot dead?"
"Yes, sir," said the Sheriff.
"And how do you know that he didn't like being next to the body and giving up the reward money?"asked Horace cautiously.
"Because he said so!" said the sheriff forcefully, "I don't recall the exact words, something like 'That . . . um he used a bad word . . .poet done me out of thirty thousand! And left that . . . bad word again . . . dead Gunther there with me!'"
"The poet – that would be Theron Wiseman, who was convicted of aiding and abetting Heyes and Curry in their escape from the scene of the crime?" asked the prosecutor.
"Yes, sir," Pohank nodded, "Bentley said that Wiseman had held a rifle on him while Heyes untied Curry and tied him up – that is, tied up Bentley."
"Was Deputy Bentley wearing his badge when you found him tied up in the shed?" ask Horace.
"No, sir. Wiseman had already given it to me. He said that he felt like somebody who'd gone that far wrong shouldn't be wearing that badge of the law." Pohank's official calm was strained.
"And how did you feel about that?" asked Horace.
Cole interrupted. "I object, your honor! The sheriff's feelings at that moment can have no bearing on this case."
Heyes fought off a smile. The question really was of little importance except to prove to the judge that Horace was straying from the case while Cole was staying faithfully with the relevant facts. The Judge grasped the point immediately. "I agree. The prosecuting attorney will please confine himself to evidence that is directly relevant to this case."
"Please describe the body of Mr. Gunther as you found it, sheriff," said Horace.
"He was lying on his back in the mud inside the shed, right next to where Mr. Bentley was tied up. It had been raining hard for nearly an hour. As Mr. Wiseman pointed out to me, Heyes and Curry had crossed Gunther's arms on his chest to make it easier to move the body into the shed out of the rain. The bullet had entered his mouth and blown off the top and back of his head. It was therefore evident that he had been shot by someone firing from a fairly low angle – so the upward trajectory of the bullet took off the top of the head. That's consistent with Heyes having been crouched down untying Curry when he turned to shoot Gunther. Gunther's body was still bleeding some when I found him, so it couldn't have been too long after he had been shot."
At this point, a woman in the gallery screamed at this explicit and gory description. There was a pause while the sensitive older woman was escorted from the court. It seemed to Heyes that the gallery contained an unusually high number of women.
At this point Horace had concluded his questioning. Cole asked permission to cross-examine the witness. Cole glanced up at the gallery, but no offensive remarks were made that could be heard. He was glad to look back at the sheriff and begin the real business of the trial.
"Sheriff Pohank, please describe Sean Gunther's gun as you found it when you were summoned to find his dead body and Deputy Bentley in the shed," Cole began.
"Yes . . . , sir," said Pohank, hesitating only very slightly at calling a black man sir in a day when most people called them "boy." "The gun was still in Gunther's dead hand, untouched so far as I could tell from when Gunther had died. Heyes and Curry had crossed his hands on his chest, as I say, but they evidently touched only the hand or even the arm and did not touch the gun at all. I guess they knew better than to mess with evidence even while they were trying to keep the body from being messed up by the rain. Pretty canny pair of men. One chamber of Gunther's Colt was empty. The next chamber was partially advanced and Gunther's finger was on the trigger. He must have been in the act of preparing to shoot when Heyes' bullet got him." There was a slight stir in the jury at this. Cole had made a telling point in favor of self-defense, just as he had said he would in his opening statement.
"Where," asked Cole, "was the bullet from Gunther's gun's first chamber?"
Pohank went on, "I found it embedded in the wood in the back of the shed. It would appear to have missed Heyes and the Kid very narrowly."
"How do you know that?" asked Cole calmly, before the anxious Horace could do so.
The sheriff took a swallow from a glass of water and answered. "I could see from the marks in the mud in the shed where the Kid had been tied and where Heyes had crouched to untie him. I made a drawing earlier to show you where everybody was. And I got the local photographer to come out and make photographs of those marks. You can also see where Heyes went to look at the body, and then went back into the shed. And you can see where Heyes and Curry went to drag the body into the shed."
Cole said, "Here, your honor and gentlemen of the jury, is that drawing, and here is the photograph."
"Please enter them into evidence as exhibits A and B, clerk," said the judge. He looked carefully at these exhibits and then they were passed among the jury.
"Anyway," continued the sheriff, "as you can see, a straight line drawn from where the marks show that Gunther stood when he fired, to where the bullet hit the wall, shows you that it passed within just inches of where Heyes was and where the Kid was behind him."
"Please refer to Mr. Curry by his proper name rather than his nickname," said the judge.
"Yes, sir," said the sheriff, "Mr. Curry had been tied up right back of Mr. Heyes, and the bullet passed right by them. Must have given them quite a scare. Can't think why he missed at that close range unless it was that Heyes moved just then."
"And how do you know," inquired Cole, "that Mr. Heyes or Mr. Curry, or anyone else, had not altered Mr. Gunther's pistol to partially advance the second chamber?"
"There's this new kind of evidence starting to be used," said the sheriff with some excitement, "called fingerprints. Each person in the world has a unique set of ridges on his or her fingers. These ridges make marks on whatever that person touches – especially on a smooth surface like the steel of a pistol. There were plenty of fingerprints on Gunther's gun – I handled it carefully and had it dusted with a type of powder that highlights fingerprints and I had it photographed. You can see there's plenty of finger prints, but they're all Gunther's. There are none of Heyes' - Mr. Heyes' or Mr. Currys' or anyone else's."
The judge said to the clerk, "Please introduce the photographs of the gun dusted with the fingerprint powder into evidence as exhibits C and D, and the image of Gunther's fingerprints taken from his death body as exhibit E, and Gunther's pistol itself as exhibit F."
The Judge leaned over and looked at the photograph and the pistol, and the full set of Gunther's fingerprints, and back and forth between them, in fascination. "Is it possible," the judge asked the sheriff, "that Mr. Heyes or Mr. Curry or anyone else could have touched the gun to alter it and then wiped their fingerprints off of the gun?" The jury also looked at these new exhibits very carefully. Most of them must have been very familiar with fire arms. Heyes could see some of the men studying their own hands – they had never heard of fingerprints before and they were somewhat taken aback to realize what kind of evidence of their actions they had been leaving behind without knowing it.
"Not in my opinion, your honor," said the sheriff. "That would produce either a very clean area on the gun with none of Gunther's fingerprints, or a smudged place. And there were no such blank areas or smudge marks on the operative parts of the gun – the trigger and the chambers. There are many superimposed fingerprints of Gunther's over those areas. And besides, not many folks know about fingerprint evidence, so not many would know to even try it. I have made it a bit of a specialty, but it really is very new, your honor."
Heyes looked up at Cole, who nodded at him. They had already discussed this. "We can question my client about that later, your honor, when he testifies." There were loud gasps and murmurs in the gallery and even in the jury. Most people had not realized that the defendant would testify. The judge had to hammer with his gavel to quiet the court.
"Sheriff," asked Cole, "in your opinion, what would have been the sequence of events during the shooting, judging from the wounds on the victim, the marks in the earth, the finger prints on the gun, the evidence of the gun itself, and the bullet in the wall, and any other evidence that you saw?"
"I can't be sure, sir. I suspect that what happened was that Heyes . . . Mr. Heyes was crouched over untying his partner when Mr. Gunther came up behind him outside of the shed. It was raining like mad, so it would have been hard for Heyes to hear him coming. I guess the . . . Mr. Curry would almost have to have seen Gunther coming - was right in front of him. I don't know if the gag was out of his mouth by then so maybe he said something. So Mr. Heyes, warned by Mr. Curry or hearing something, would have turned around real fast, perhaps as Gunther was shooting. Gunther's bullet missed him – that is, Mr. Heyes, narrowly. As Gunther pulled the trigger to shoot again, so the chamber started to advance, Heyes finished turning around and shot Mr. Gunther before he could finish firing the next bullet. Would have taken very fast shooting on Heyes' part, I would think, unless Gunther was real slow. But to know the exact timing, you'd have to ask Mr. Heyes and Mr. Curry."
"They would scarcely be unprejudiced witnesses," said the judge. "But I understand that we will hear from Mr. Heyes later in his own defense. Do you have more questions for Sheriff Pohank, Mr. Horace? No? We have had a good deal of evidence entered for our consideration. Before more evidence is given, let us take a recess of one hour so the jury and the principles in the trial may refresh themselves."
Cole went back to Heyes. "Does he have it right?"
Heyes nodded, "Pretty close. But it's the timing where we could come to grief if they don't understand it precisely. It takes time for people to move and react, but almost no time for bullets to travel that tiny distance. He's right it took fast shooting. Most of them won't think I'm that fast, but as I told you, I am. We might have to prove that somehow. I don't know what the court'll permit on that. You might have to recall Pohank after I testify to confirm that my testimony is consistent with his. I just hope to God the Kid didn't come and that he doesn't come forward to testify! I haven't seen him here. I sure hope I never do. And you know why."
"Yes, I do, Mr. Heyes," said Cole, "I surely do."