As they exited the meeting room and went out into the noisy and crowded hall, Cole passed very close to Heyes, seemingly by accident. From inches away he studied his client, seeing the tense muscles around his mouth, the slight widening of his eyes, the slightly sped up breathing, and the sweat breaking out on his upper lip. From a distance none of it would be perceptible – from close up the signs were unmistakable. Cole saw the judge going down the hall toward the courtroom. The young lawyer called out loudly, "Your honor! Please! May I have a few moments alone with my client, without these guards?"
The judge stopped, his arms crossed under his robes. "Aren't you afraid of being alone with this man accused of murder, Mr. Cole," he asked skeptically.
"Not in the least!" said Cole emphatically. "I trust him completely."
The judge paused, looking back and forth between the accused and his lawyer. "Very well," he nodded. "Five minutes, Mr. Cole. Guards, stay close outside the door, but don't listen through it! I'll stand here and keep an eye on you!"
Heyes looked in distress at Cole. Was he that obvious? Cole grabbed his arm and pulled his client quickly back through the door into the meeting room.
"Who was that outrageous performance intended to fool, Heyes!?" asked Cole "The guards?"
"No, Mr. Cole, not really," said Heyes, looking sheepish.
"Or me?" asked Cole.
"No. More like me." Heyes gave a nervous snort of laughter.
"Didn't work, did it?"Cole tried to look serious, but he couldn't help winding with a little smile.
"No." Heyes sat at the polished table, looking up at the standing Cole. The accused man's brow was furrowed and his eyes afire with anxiety.
"Come on, Heyes," said Cole, "what is it you couldn't tell me in front of the guards?"
Heyes looked his lawyer very straight in the eye for a moment, gauging how much he could really trust the man. "Privileged information?" He asked hesitantly.
"Privileged information!" answered Cole firmly. "No one will hear it from me."
Heyes nodded. "Alight. You know that the Kid and I have been straight for seven and a half years now? The reason we've been so careful about it is because four governors have been offering us amnesty and never coming through with it – Wyoming, Texas, Colorado – and Montana. It has to be a secret or the deal's off, so I sure couldn't say anything with those guards there. The amnesty could come through any day now – if I can get through this trial. It has to come through for me to graduate and they know it. All these years we've been walking a tightrope and now if I say a word wrong, it's all over!" Heyes closed his eyes and leaned his sweating forehead on his right fist, inches from the heavy manacle around his wrist.
"You can get through it fine, Heyes," said Cole calmly. "Many lies as you may have just told me, you really can come across as a likeable, trustworthy man – because that's what you really are! We really have been through all of this. As I keep saying, just go one question at a time. Don't try to plan ahead, because the prosecutor could easily change directions and trip you up. That's what he'll be trying to do. So just one question at a time. Just tell the truth."
"The truth!" sneered Heyes scornfully. "All that can do is keep me out of prison- let me avoid perjury. But that's nothing compared to what could happen to everyone I care about! If I tell the truth and the jury takes it the wrong way, or if I word something wrong, it could destroy everyone who's ever been good to me in any way, knowing my name, since I was fifteen years old! Everyone! My fiancée, my advisor, my friends at the clinic, at Columbia, all over the West, could all go to prison for aiding and abetting! I carry guilt around with me like the plague! You know that, lawyer!"
Cole nodded sadly. Heyes was absolutely right and there was little or nothing either one of them could do about it. Cole thought he might be able to protect Beth, due to her gender and her being Heyes' fiancée, but all of the others, he doubted.
Heyes' eyes were blazing. "And the Kid! My cousin – Jed Curry – for protecting dozens of innocent people – . . . If I say one wrong word, I could send him to the gallows! Or if everything goes perfectly, and the governors keep their words, we both could go free for life. At last. Or I could mess it up. . ."
Cole nodded again. "Heyes, you'll get through it. You will! Tell the truth, question by question, just as we went over it. Until you're really worried. Then stop and call on me. Say that you require council before you can continue. We'll see what we can come up with. If you're really sure that you can't answer a question, you can stay silent. You could go to jail for contempt of court, but at least no one else would be imprisoned or hung. Alright?"
"Alright," said Heyes in a tense whisper. "Thanks, Cole."
"Come on Heyes, did you really work with con men?" asked Cole with a teasing smile.
"Well, yeah. And we were pretty decent at it, the Kid and me, but never could work on our own without a good con to lead us. Glad to have you on board, Cole!" Heyes winked at his council. "Come on, time to get to court."
Cole paused asked in a whispered, "Heyes, is he . . .?"
Heyes knew what his lawyer was asking. Was the Kid there? Heyes nodded quietly. "They'd just better not call for him to testify, cause he sure would . . ."
oooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooo
As the pair left the meeting room, Heyes looked a little calmer, if still very keyed up. He walked with his head up and a light in his eye. His guards closed in around him, but he walked confidently, as if they weren't there.
As Heyes entered the packed, noisy courtroom, his eyes began to dart around the gallery. He was trying to catch the eyes of Beth, Charlie, and Jim. They were waiting in a knot near the door, but not near enough to make Heyes' guards nervous. His fiancée gave Heyes a brave smile, but he thought her eyes looked red. Jim, of course, was breathing fast with excitement. Only Charlie, knowing that Heyes would be looking for him, seemed perfectly calm and comforting.
Heyes did not dare to seek out the Kid's gaze. No one would notice that the scruffy, bearded young blonde man in the back row was watching the defendant particularly closely – so long as Heyes didn't look back at him. No one was watching the Kid – every eye in the room was on Heyes. The gallery grew restless as Heyes was not initially called to the stand.
The first witness after lunch was a Lodge Grass local named George Crowell. He was a scruffy looking guy with long, greasy hair.
"You are said to have drawn against Sean Gunther, Mr. Crowell," said Horace. "How fast a draw would you say he was?"
"Damned fast!" said the lanky ranch hand. He pointed at his own face, where a short scar marked his chin. "I ain't bad, but he got me right there!"
Cole stood. "Forgive me, your honor and jurors, if I imagine that Mr. Crowell would be bound to think that a man who beat him to the draw was fast. But we don't know how fast Mr. Crowell is! Speed at the draw is hard to measure with any accuracy when a man is alive – and surely impossible when he no longer is. Will we call a witness to Mr. Crowell's speed and then another to testify to the speed of that witness?" The gallery broke into nervous laughter.
The judge nodded "Mr. Cole makes a good point, but it is relevant to try to fix at least the rough relative measure of Mr. Gunther's speed to the draw. The man who began to draw first would almost have to be considered the aggressor in the contest we are judging here. The man with the faster draw may very well have drawn second but had his bullet fly first or at nearly the same time as the other man. It is impossible to match the two men again, but we can at least gain a rough idea. Therefore we will admit the prosecution's second witness on this point."
The second witness was Sheriff Pohank, recalled to the stand. Horace began, "Mr. Pohank, did you ever see Sean Gunther draw?"
Pohank nodded, "I did."
"Well, was he a fast draw?" asked Horace impatiently.
Pohank answered with deliberation, refusing to be hurried. "I saw Sean draw only the once, in a fast draw contest held at our local fair last September. He came in first." There was a stir among the gallery and the jury. "But I will say that I didn't enter and neither did my late deputy. And we are – were – the fastest draws in and around Lodge Grass."
Horace took a deep breath and a swallow of water, then asked "Sheriff, how would you rate Mr. Gunther's draw in general, as a gunman."
Pohank paused and thought. He answered slowly, knowing how much hung on his words. His gaze darted to Heyes and back to the prosecutor. "I'd say he was pretty fair. He wore his gun tied down. He wasn't a professional gunman, but he was serious about defending himself. He wouldn't beat a real fast-draw professional gunman, but any local ranch hand like George there would have done better to let the man alone." Heyes heard one of the jurors, a graying old cowboy, snort with laughter. But Heyes himself felt a little shiver go down his spine. How could he prove that he had beaten the man to the draw the one time when it really counted? Cole did not ask any questions of the Sheriff. There was nothing left to ask.
Horace said, "I believe that we have established the essential facts of the moment when Mr. Heyes shot down Mr. Gunther so far as we can without calling upon an eye witness. Therefore, I will now call the defendant himself to the stand."
The courtroom went deathly silent and all eyes focused on Heyes. Heyes drew a deep but silent breath as stood up from his seat at the defendant's table near the front of the court. He tried to keep calm, or at least to look calm. His every move would now be weighed in the balance. He resisted looking for Beth or his other friends in court. This he would have to do without their help. But there was one person he could count on. Heyes' gaze darted to Cole's face, and then back to the stand where he must testify.
Heyes, his chain ringing against the stone floor, moved slowly to the stand, with his guards helping him to move the heavy links. Yet still, he managed to have a tiny hint of a swagger to his walk. With this he told the jury that he wasn't letting a mere murder trial take away his spirit or his style. Cole, watching critically, could start to see the old con man at work. He stifled a grin of his own.
"You understand that you are still under oath, Mr. Heyes?" asked the judge.
"I do, your honor," said Heyes solemnly. The swagger was utterly gone as he stood respectfully ramrod straight in the stand.
Horace, nervous as always, stood before Heyes to start his questioning. "Mr. Heyes, could you please tell us where you were before you went to Lodge Grass in May of 1888?"
"Yes, sir," responded Heyes with a steady voice. "I was in New York City when the telegraph boy gave me the messages that told me I had to go to Lodge Grass." There was a stir of whispers from the gallery and the jury. This part of Heyes' life was unknown to everyone except the principles of the trial and Heyes' close friends.
"New York City?" asked Horace as if this surprised him, although he knew well what Heyes had been doing there. "What had taken you all the way to New York City? Have you not lived nearly all of your life west of the Mississippi River?"
Heyes nodded, "Yes, sir. I lived west of the Mississippi until I went to New York City in October of 1885. I went there to get medical treatment after having been shot pretty badly." This last phrase set off gasps in the courtroom. "I have spent most of my time there, other than summers and Christmas holidays, ever since."
"Indeed," said Horace. The skinny man seemed to gain confidence as he had his opponent where he wanted him. "What kind of medical treatment did you need in New York due to this shooting? And who shot you?"
"Objection!" cried Hardin Cole, leaping to his feet. "I see no relevance to these questions!"
"Objection sustained," said the judge, "unless you can explain how this is relevant, Mr. Horace. We are not here to violate the privacy of the defendant, only to determine his actions during a single incident three years after the moment about which you are asking."
Horace, twitching with nerves again, answered, "I believe that Mr. Heyes', um, handicaps, might help to explain his actions in Lodge Grass."
"I do not see that, Mr. Horace," said the judge. "Please leave this line of questioning. The jury will disregard that prosecuting attorney's last statement." Heyes did his best to avoid looking relieved, although he was. But the idea that he was handicapped in some way had been introduced to the jurors and it would be impossible to stamp out. Particularly since it was at least very mildly true.
Horace licked his thin lips and went on. "Mr. Heyes, how were you employed during your years in New York City?"
"Once I completed my . . . medical treatment, I became a university student," said Heyes, fighting his aphasia. He was looking at the jury rather than at his trembling questioner as he strove not to react to the gale of gasps from the stunned gallery. This information was utterly new to them. "I studied mathematics at the undergraduate and then at the graduate level. If I should be free at the end of this trial, I expect to be granted permission to graduate with a master's degree. With honors, by the way."
"A western outlaw was earning a master's degree in mathematics?" asked Horace in evident amazement, which seemed to be shared by the jurymen, whose eyes were riveted on the defendant.
"Yes, sir. My partner and I have long left being outlaws. We have stayed strictly straight with the law since November 1883. Well, except for a couple of jailbreaks that we could hardly avoid. Other than that, we've been as straight as possible. We've not even so much as jaywalked in more than seven years! I've always been good at math, so I'm studying so I can make an honest living."
The prosecuting attorney quickly moved past this sensational statement, although the jury was clearly paying more attention to Heyes than to Horace. One stout young miner in particular was staring at Heyes as if he was a circus side show. He was simply amazed and couldn't hide it.
"You mentioned a telegram that summoned you from New York City to Montana, Mr. Heyes?" asked Horace, stopping to wipe his brow with a large, white handkerchief.
Heyes, however, remained very calm. He was carefully taking Cole's advice, taking the questions one at a time and trying not to anticipate where each could go. "Actually, sir, two telegrams. Both from . .. friends, telling me that my partner, Jedediah Curry, had gone to Lodge Grass, Montana, and there had been arrested for murder. We had previously heard that a robbery there had been falsely blamed on the pair of us. That was what had raised the bounty on us from ten thousand each to fifteen thousand each"
"From what friends did these messages come?" asked Mr. Horace.
"Objection!" shouted Cole, "relevancy!"
"Sustained," responded the judge promptly, "please move on, Mr. Horace. We are not here to seek out and prosecute all of Mr. Heyes' friends. We have heard the testimony from the previous trial all about the false newspaper accounts that purposefully lured Mr. Curry to Lodge Grass, and we have heard how he was unlawfully captured and held captive." Heyes tried not to show it, but he was very relieved to hear that the judge would not be actively seeking to discover which people had helped Heyes and the Kid to stay free.
Horace wiped his brow again. "Mr. Heyes, once you had arrived in Lodge Grass, how did you find the shed where Mr. Curry was held captive?"
Heyes fought past his aphasia, desperate not to give away Jim and Professor Homer to the law, and yet not perjure himself. "I and two . . . acquaintances . . . we followed a woman one of my . . . acquaintances had seen leaving the hotel in Lodge Grass. Since we knew that Mr. Curry was not in the jail as he had been supposed to be, we figured someone was keeping him captive elsewhere. They'd have to be feeding him, if he was still alive. So when we saw a woman riding off with what looked to be a lunch bucket, we thought she might lead us to the K . . . to Mr. Curry. And so she did."
"That was Mrs. Gunther leaving the hotel?" asked Mr. Horace.
"I later heard that was who she was, yes," answered Heyes, "But I could not swear to it." He tried to stay calm. He and his friends were far from out of the woods.
"And your friends . . . your acquaintances . . . the men who were helping you to track Mr. Gunther – who were they?" Horace raised his eyebrows and glanced at the judge and at Hardin Cole, hoping for no objection here. There was none. This was too close to the case.
Heyes eyes were bright with anxiety, "I would prefer not to identify them. They were friends from New York City with no criminal history or intent."
"The court can best judge the intent and history of your friends, Mr. Heyes. Please identify them," said the judge firmly.
"You can hold me for contempt if you like, your honor, but I will not do so," said Heyes with a fierce edge to his voice. Seeing the eyes of the jury members, Heyes suspected that he had won more points with them than he had lost. The support of friends was a deeply held western value.
"Then I will!" said Charlie Homer, as he strode toward the bench with long strides, with the much shorter Jim Smith jogging to stay at his heels.
Heyes took a deep breath. He was desperately afraid of what would happen to his friends now, but there seemed to be nothing that they would allow him to do in their defense.
"Clerk, will you please swear in this gentleman?" said the judge. "The defendant will remain under oath and be ready to return to the stand when we have heard from this gentleman." Heyes nodded and stepped from the stand.
"Please state your name for the court," requested the clerk of this new witness.
"I am Dr. Charles Hawthorne Homer," said Charlie. He then was sworn in and took the stand.
"Sir," asked Mr. Horace, "what is your relationship to the defendant?"
"I am his advisor at Columbia University, where I am a senior professor. And I am his friend," said Professor Homer, the pride in his voice evident.
"And are you one of the men who went with him from New York City to Lodge Grass, Montana, in May 1888?" asked Horace.
"Yes, sir, I am," said Homer.
"And is this gentleman with you the other man who rode with Hannibal Heyes to Lodge Grass, Montana?"
"Yes, sir, he is." Heyes could hear the strain in his advisor's voice.
"And what is his name?" asked Horace.
"I will leave that to him to say," answered Homer.
"Very well," said Horace. The clerk swore in Jim Smith, who gave his name to the court as Joachim Gelbfisch. This was his true name. Heyes had known his friend's real name since not long after they had met, but Charlie Homer had never heard the name before. He had known that Jim Smith was an alias, but he did not know for what.
Jim further stated, "Mostly I go b-by James Smith – I hide my real name because a gang k-k-killed my family and t-t-tried to k-k-kill me. My real name c-could give me away t-to them. So please . . ."
The judge looked kindly at Jim, "Mr. Gelbfisch, the court appreciates the risks you are taking in order to avoid perjury." The judge, seeing the scars on Jim's face, could easily guess how they got there. "I will ask the press to please afford Mr. Gelbfisch the security of his assumed name. However, Mr. Gelbfisch, should the court discover that you are using an alias for nefarious purposes, this kindly stance can always be revoked." Jim nodded with his eyes very large.
"And how do you know Mr. Heyes?" asked Mr. Horace.
"He shared a room with me when he was at the c-c-clinic where I work – the Leutze clinic – and for a while after that," said Jim.
"And you went with him from New York City to Montana?" asked the prosecutor
"Yes, I d-did! He's my friend!" said Jim stoutly.
"Now that we have his fellow witnesses identified and under oath, the defendant can return to the stand if the prosecution wishes," said the judge. "However, both councils will be free to recall them at any time."
"Mr. Heyes," asked Horace, "did your two friends come with you to the mine shed where Mr. Curry was?"
"No, sir," answered Heyes, "they did not. I didn't want them in the way of any danger. I asked them to stay behind me on the trail and they did so, until Bentley the deputy surprised them and tied them up. I left my horse and an extra horse ground tied off the trail and I went to the shed alone. So Professor Homer and Mr. S . . . Gelbfisch, did not witness when I shot Mr. Gunther."
"And what did you do when you got to the shed, Mr. Heyes?" asked Horace.
"Once I saw Mrs. Gunther ride off and heard her say good-bye, I heard a guard take my partner out to . . . to relieve himself behind the shed. When they got back in the guard – I'm not sure who it was – probably Mr. Bentley – he went off. I waited for a while to make sure everyone but Mr. Curry was gone. And then I knocked on the door – gave a signal that Curry and I had worked out. He responded with our agreed upon signal that meant he was confined and alone."
"Go on, Mr. Heyes," urged Horace, "until you get to where you shot Mr. Gunther."
"Then I picked the locks on the door . . ." Heyes began, but Horace interrupted him.
"You had pick locks with you?" asked the prosecutor.
"Yes, sir. I always carry . . . carried them – in case of emergency. Until now. When I was arrested in New York, I told the officers where to find my pick locks. I've gone straight! I won't be breaking out of jail . . . not ever again." Cole resisted smiling. This was a point that he and Heyes had worked out very carefully to tell to his benefit. It was easy to see that the jury was impressed, especially the grey old cowboy and the big miner.
"Go on, Mr. Heyes," said Horace, "with what happened at the shed outside of Lodge Grass."
Heyes did so, "When I got inside, Mr. Curry was tied up and gagged on the dirt floor. I took the gag out of his mouth. Just then, I saw him look up at something, evidently something dangerous, behind me in the doorway of the shed. He started to speak to me, but I knew that I couldn't wait for him to say even a single word. I turned around as fast as I could, coming out of a crouch and drawing my pistol as I did so. As I finished turning I heard a gun go off and felt the bullet fly past me. Then I pulled my own trigger and Mr. Gunther fell. I went outside into the rain and looked at him to determine what shape he was in. He was dead, as Sheriff Pohank previously described, with the top back of his skull blown off. I was upset at that – I had never killed a man before and I sincerely hope never to do so again. But he had fired first and was sure gonna fire again if I didn't. So I had no choice." There were murmurs among the gallery and the jury. Heyes had made his point.
"Mr. Heyes, let us look at these events in greater detail," said Horace. The smooth words belied his long preparation for this moment. "Please explain your actions more precisely. We need to understand how you were able to shoot so quickly, even while you were turning around, before Mr. Gunther could pull his trigger a second time. This although he was standing still, facing you, while you were turning to face him, and getting up from crouching over to untie Mr. Curry."
Cole said, "Objection, your honor! Mr. Heyes cannot be expected to describe what happened behind him where he could not see."
The judge pounded his gavel. "Objection sustained. Mr. Horace, we cannot ask Mr. Heyes to explain what happened behind his back. We can only ask him to explain his own actions in detail." Horace nodded and gestured for Heyes to continue.
Heyes continued his narrative. "When I saw the look on the Kid's, I mean Mr. Curry's face, I knew that whatever was behind me was bad and dangerous. We've worked together a lot for a long time, so we understand each other real well. Since I was expecting nothing so much as one of the conspirators with a gun in his hand, that was just what I thought he must be seeing. And, in fact, when it turned, it was exactly what I found."
"Mr. Heyes," said Horace, "could you please elucidate – how long and how closely did you work with Mr. Curry? Was it really possible that, without his having time to say a word, you could understand what he saw behind you?"
Heyes nodded to give himself a moment to gather his thoughts. He had not expected this line of questioning and he was unsure of what kind of answer would make his situation better and what might make it worse. He spoke cautiously, desperate not to put his partner in jeopardy. He was particularly careful not to look up from the prosecutor or in any direction that could cause him to catch sight of his disguised partner in the back of the gallery. "Jed Curry is my second cousin." The gallery murmured loudly at this and the judge banged his gavel for order. That Heyes and the Kid were relatives was something that they had always kept secret in order to minimize the chances of peoples' using them against each other. It was sensational news.
Heyes continued his story once order had been restored. "Our mothers were cousins. I met Jed Curry on the day he was born, at the farm next to ours in Kansas. I wanted to hold him, but his Ma thought a two-year-old might be a bit small to hold a new baby and not drop him!" The court laughed. Heyes could not resist giving them their first glimpse of his stunning smile. He had to be careful to keep the grins to a minimum, he knew, or he would come across as too obviously trying to ingratiate himself with the jury. But he wanted to make sure that he and the Kid came across as caring human beings.
"Please go on, Mr. Heyes, about your association with Mr. Curry," said Horace, proddingly.
"We were real close as boys." He chuckled in fond recollection. "After our folks and our brothers and sisters were killed and our farms were burned in 62', we stayed together. Had a hard time. I was only nine and Jed was seven. And I'd been shot and had no one but little Jed to care for me." There were murmurs of sympathy around the court.
"Then we were put into the Valparaiso Home for Waywards together. Valparaiso was where I learned to pick locks and Jed and I both learned to shoot. We ran away together when I was fifteen and he was thirteen years old. And we went into the outlaw business together shortly after that time. Jed . . . Mr. Curry tried to go straight for a while, and we were with different gangs for a couple of years. But in 77' he joined up with the Devil's Hole gang, where I had recently taken over as leader. We were partners again from that time on and we still are. We rode together every day the first two years after we went straight. Then, I got shot bad and had medical problems, as I told you before."
"I had to go to New York to get medical treatment, while the Kid – Mr. Curry – stayed out West. But I always went back to where my cousin was living to see him every summer and every Christmas. I continued to do so after I concluded my medical treatments and became a student at Columbia University. So we've stayed real close. We both know how men breaking the law behave, like those conspirators. When I saw the look on Jed Curry's face in that shed, I knew he had to be seeing a man with a gun. Couldn't hardly be anything else."
Some of the jurors were nodding. Many of them appeared to be ranch hands or lawmen or other men with wide experience of the violent side of the West. They understood just what Heyes meant.
Mr. Horace licked his lips. He could feel the court's sympathies shifting in the direction of the defendant. There was little the prosecutor could do about that, at least for the moment. "Mr. Heyes, could you please continue to describe your movements in that shed, from the moment when you had taken the gag out of Mr. Curry's mouth?"
Heyes answered, "I spun around fast as I could, drawing my pistol and cocking it as I did so."
Horace interrupted Heyes, "You did all those things at once? How?"
Heyes gave a brief laugh. "From long practical experience, sir."
"Please go on, Mr. Heyes. When did you hear Mr. Gunther's gun go off and when did you fire your own gun?"
Heyes said, "I cocked my gun as I turned. I couldn't believe how long it was taking him to fire. But I knew I had to ready to fire just as soon as I was sure that he was firing at me. I was determined not to murder a man who might not be firing at me but only holding a gun on me. I've avoided murder all my life and I kept on avoiding it that day. So I didn't pull the trigger until I heard his gun go off and I felt the bullet go past me, just as I finished turning around. As soon as I heard that bang and knew he was firing at me, I pulled the trigger."
Horace exclaimed almost angrily, "Mr. Hannibal Heyes, do you truly expect us to believe that you would wait to fire until he fired on you just so you could stay on the right side of the law? You would take the chance of being shot down to avoid being a murderer?"
Heyes glared at the man in defiance. "I may not expect you to believe it, but it's true!"
Horace glared back, "Yet Gunther did not, in fact, shoot you."
"Yeah," said Heyes, "He missed me clean. I guess it was because of my turning."
"Are you saying that you moved so fast that you moved out of the way of Mr. Gunther's bullet before you fired your own?" asked Horace in amazement.
"No, of course not! That would be mathematically impossible!" said Heyes, taken aback that he had created the impression of so ridiculous a thing.
"Impossible? Please explain, Mr. Heyes, both why that was impossible and what you did mean by saying that Mr. Gunther may have missed you because you turned," said the judge.
Heyes answered with confidence in his facts. "Yes, your honor. As I said, that would be mathematically impossible. A bullet fired by a pistol travels at more than 850 feet per second, depending upon the model of gun and the bullet and charge used. And on first exiting the barrel, a bullet travels even faster than it does later in its flight. That means that a bullet fired the approximately 15 feet between Mr. Gunther and myself would take about 1/56th of a second or even less to travel that distance. No man could possibly move more than a tiny fraction of an inch in that amount of time. So I could not conceivably have dodged out of the way in that minute fraction of a second.
But I can only guess that when Gunther first saw me and calculated that he wanted to fire at me, I was bent over facing away from him. Perhaps he didn't know who I was or what I was doing there, or it was too dark for him to see me clearly in the shed with the heavy storm going and him out in the rain. I don't know. But for whatever reason, when he fired at me at last, he miscalculated. Maybe he didn't understand how very much faster a bullet is than a man and changed his aim because I was turning. He missed me, very narrowly. I felt the heat of the bullet pass by. He must have moved his hand to correct his aim before he fired again. It was that slight delay, as I suppose, that gave me time to fire. Or to put it more simply, he missed me and re-aimed and I returned fire before he could pull the trigger again." There was some muttering during this technical explanation. None of the jurors, for certain, was used to hearing ballistic facts explained in such exacting detail.
The judge said, "Pardon me, Mr. Heyes, but on whose authority are we to take these statistics about the speed of the flight of a bullet?"
"On mine," answered Heyes with solid confidence and a bit of a cocky smile
"Yours?! Are you a published authority on ballistics?" The judge was seriously startled and curious.
Heyes smiled briefly. "Not published quite yet, your honor, but nearly. Under my alias of Joshua Smith, I am a recognized authority in mathematics as it relates to the physics of ballistics. My Masters' thesis is actually on the explosive force and properties of dynamite and nitro glycerin as used in mining, and the mathematical formulas related to those things rather than on the closely related area of the flight of bullets. I have an article on the mathematics of explosive force and ballistics currently in press and due to appear next month in a scholarly journal. So at that time I will become a published expert in the field. I can assure you that I am well acquainted with the mathematics and physics of ballistics. My advisor, Dr. Homer, can confirm my expertise, as can several important mathematicians with whom I have corresponded in Germany, Switzerland, Austria, France, and England." The gallery and jury muttered in surprise at this utterly unfamiliar view of Hannibal Heyes as a scholar of international stature. Again, the judge pounded his gavel and called for order.
Horace now launched his key salvo, "Pardon me, your honor, but despite his impressive mathematical understanding of ballistics, it is well known that Mr. Heyes is slow at drawing a gun." There was some chuckling in the jury box. The judge quashed the noise with his gavel and a disapproving look.
Horace continued, "Mr. Curry is known as possibly the fastest gun in the West, while Mr. Heyes has been quoted in the press describing himself to a sheriff as "slow as molasses in January." The defendant evidently concentrated on opening safes and left the shooting to his partner." Horace got another laugh with that – he hoped that he could feel the jury's sympathies moving to his side. Horace went on, "Mr. Heyes has been away from the West and his criminal enterprises for the past five years in New York City, where he must have fallen considerably out of practice with a gun. Mr. Gunther was not a famous fast draw, but, as we have heard Sheriff Pohank testify, he was a prize-winningly fast gunman. I do not see how it would be possible that the slow Mr. Heyes, while turning around, could return the standing Mr. Gunther's fire so quickly that Gunther could not get off a second shot. Therefore Heyes must be lying. As much the slower of the two men at the draw, he must have begun to draw before Gunther did. Gunther would have drawn only in response to Heyes, even through his much faster draw allowed his bullet to arrive first."
Now there were loud exclamations all around the court, including from jurors. One fiery young juror started angrily to his feet, before recovering himself and sitting back down. Heyes looked daggers at the prosecuting attorney who had just called him a liar in public, although this was largely theater. This was an unforgivable insult and one that would, if substantiated, invoke perjury charges. But of course, the murder charge would come first. And Heyes and Cole had been expecting this accusation all along.
Cole stood up and with deliberate heat said, "Your honor, may I please have permission to rebut this serious accusation against my client?!"
The judge nodded. "Go on, Mr. Cole."
"My client," said Cole, trying to keep his tone light, "is a slower draw than his partner, as he will readily admit . . . but so is nearly everyone living!" This caused much laughter in the gallery and even in the jury. The judge did not suppress this reaction, but it quickly died as everyone was so eager to hear what the lawyer would say next.
"Mr. Heyes has, for strategic reasons, kept his own proficiency with a gun something of a secret. My client is, in fact, quite fast with a gun and extremely accurate. There is a good chance that he could fire faster than Mr. Gunther, or at the very least, at about the same rate of speed. I can easily obtain records proving that Mr. Heyes, during most of his time at Columbia University, routinely practiced shooting at a gun club in New Jersey. Mr. Heyes attended as the guest of a well financed friend who did not know his true identity. An employee there proclaimed Mr. Heyes an expert level marksman and this, I am told, is included in the records of his shooting sessions. I can obtain those records if necessary."
Cole gave yet more support to the image he was creating of Heyes as a fast gun, "When he was visiting his cousin between semesters, Mr. Heyes practiced shooting at rural locations. If required, I can produce witnesses to that effect. And before he began shooting at the New Jersey gun club, when in New York he practiced at a farm on Long Island. Against, I can produce a witness to that if necessary."
"Rather than confirming any such indirect information, I think," said the Judge, "that the best way to prove Mr. Heyes' speed with a gun would be to have him demonstrate it for us first hand. Then Sheriff Pohank and some others who have seen Gunther fire can judge for us whether Mr. Heyes or Mr. Gunther might have been the faster shot or whether they were roughly the same. Mr. Heyes, would you be willing to demonstrate for us how you turned and shot at Mr. Gunther?" This caused a noisy sensation in the gallery, which the judge gaveled down and even needed to shout, "Order in the court!"
When things were finally quiet enough for him to speak, Heyes answered, "I am willing to give such a demonstration, your honor. However, I cannot do so as I am. My chains and manacles and leg irons would have to be removed and I would need to be provided with a gun and a holster from which to draw it. My own gun would be preferable, since that is the weapon I used on the day in question. But even so, with an unloaded gun I would not be able to demonstrate the timing of the shot correctly. To demonstrate the speed of my firing, I would need to be able to fire a blank so that you could hear the timing of the bang and, more importantly, see the muzzle flash. That is because sound travels far more slowly than light. For people standing some distance away, as the jury would have to be, it would make a difference. But I cannot fire a blank safely in the courtroom."
"Very well, Mr. Heyes," said the Judge. "I will ask that tomorrow morning a proper outdoor demonstration with blanks on a shooting range be arranged so that the jurors and I and Sheriff Pohank and other acquaintances of Mr. Gunther's can see it. Is that agreeable to you, Mr. Cole, Mr. Heyes, and Mr. Horace?"
"It is, your honor," said Cole. Heyes and Horace joined him in agreement.
"I will communicate arrangements for this demonstration with the jury and other court officers as soon as I know them. Court is adjourned until 10:00 AM tomorrow, when we will meet at a venue to be arranged!" proclaimed the judge.
The judge stepped down from the bench amid utter chaos as it seemed everyone in the room started talking at once. The men of the press rushed out to write their stories and telegraph to their papers. Tomorrow, all of this would appear in papers around the new state of Montana. Heyes and Cole were silent, exchanging a nervous glance. What impact would the publicity have on their situation? The Kid gazed intently at his partner, who did not dare to look back. The Kid's fate hung in the balance as much as did Heyes'. It had never occurred to Heyes or the Kid before that Heyes' modest speed with a gun might save him one day not at the scene of a robbery or in a dusty street, but in a court of law.