Matt Jensen: The Last Mountain Man Purgatory Read online

  “Your Honor,” Dempster corrected. “I can’t act as attorney,” he said. “I’m—uh—in no condition to act as attorney.”

  “Yeah? Well, you don’t have any choice,” Cummins said. “I’ve appointed you and you will defend this man, or I will throw you in jail for contempt of court. And I don’t have to remind you, do I, Counselor, that you won’t be getting anything to drink while you are in jail?”

  Dempster sat at the table for a long moment, looking around at everyone who was staring at him. It was obvious that he was very uncomfortable with the scrutiny of all the patrons. He ran his hand across his wet face one more time.

  “Where is the defendant?” he asked.

  “Right there,” Cummins said, pointing toward Matt. Matt was still standing, with his hands cuffed behind his back.

  “Take his cuffs off,” Dempster said.

  “He’s my prisoner,” Jackson replied.

  “Right now he is the defendant in a court trial, and he is innocent until proven guilty,” Dempster said. “As the court-appointed attorney for the defense, I am ordering you to take off his cuffs.”

  Jackson made no move to comply.

  “Your Honor,” Dempster complained.

  Cummins looked over toward Jackson and nodded. “Take them off,” he said.

  Jackson complied with the order, and Matt brought his hands back around front, then rubbed the wrists.

  “Your Honor, I will need a few minutes to consult with my client,” Dempster said.

  “I’ll give you fifteen minutes,” Cummins said.

  “And some coffee. Strong and black.”

  “Pauley, get the counselor some coffee,” Cummins said to the bartender, who had already taken a seat as the foreman of the jury.

  “Back here, please,” Dempster said, motioning toward Matt.

  Matt walked back into the corner of the saloon, then sat at the table with Dempster. Dempster’s silver hair was unkempt, and though he didn’t have a beard as such, he was badly in need of a shave. He was wearing a jacket and white shirt, but both were badly worn and, from the smell, had not seen a cleaning in some time.

  “Hey, Marshal, while we’re waitin’, could we have another drink?” someone shouted.

  “Yeah,” another added. “After all, it’s your saloon. If you keep us from buyin’ drinks, you’re just cuttin’ off your own nose to spite your face.”

  That comment brought laughter from everyone, including Cummins.

  “All right,” he said. “Pauley, go ahead and open the bar. You can keep it open for fifteen minutes, but when the trial starts, you have to close it.”

  “Right,” Pauley said, returning to the bar. The fact that the opening was temporary was very good for business, because nearly everyone in the saloon, including all the jurors, rushed to the bar to get drinks before time ran out.

  One of the deputies brought a pot of coffee and a single cup to Dempster’s table.

  “Bring a cup for the defendant,” Dempster said.

  “He ain’t here to enjoy no coffee,” the deputy growled.

  “Give him a cup, Foster,” Cummins ordered.

  Begrudgingly, Deputy Foster went into the kitchen, then returned with another coffee cup. By the time he returned, Dempster was already on his second cup of coffee.

  “What is your name?” Dempster asked.

  “Jensen. Matt Jensen.”

  “Did you kill—uh—who is it you killed?”

  “I believe they said his name was Gillis. Moe Gillis.”

  “Gillis,” Dempster said. “Well, if you were goin’ to kill someone, that son of a bitch needed it more than just about anyone else I can think of. Let me ask you this. Did you kill him in cold blood?”

  “No, I—”

  Dempster held up his hand. “That’s enough. I’d rather hear you tell your side during the trial. It will give it more spontaneity.”

  “All right.”

  “Dempster, your fifteen minutes are up,” Cummins called.

  “Your Honor, can I request a twenty-four-hour delay so that I can—uh—that is so that I could be in better condition to present my case to the court?”

  “Dempster, you know and I know that if I give you twenty-four hours, you’ll do nothing but drink for the entire time. You won’t be in any better condition tomorrow than you are right now.”

  Dempster ran his hand across his face, then looked over at Matt. “He’s right,” he said. “A twenty-four-hour delay isn’t going to do me one ounce of good. So, what do you say?”

  Matt chuckled. “Mr. Dempster, it doesn’t look to me like I have much say in this at all.”

  “You don’t,” Dempster replied. “And I’m glad you can keep your sense of humor.”

  “Bailiff,” Cummins said. “Call the court.”

  “Oyez, oyez, oyez!” Jackson called. “Ever’body stand up! This here court is now in session!”

  Cummins sat, then banged the handle of his pistol on the table. “Be seated,” he said. “Mr. Prosecutor, make your case.”

  When nobody responded, Cummins said, “Hayes, that’s you.”

  “Oh, yeah,” Hayes said. He stood up and looked toward the jury.

  “Here’s what happened,” he said. “We was all in here when Deputy Gillis went out front. Next thing you know, we heard a shot, then Gillis, he come walkin’ back into the room just like nothin’ a’tall had happened. Then all of a sudden he fell on the floor dead. Before anyone could even say a how-do-you-do, this here fella come in behind him. He had a gun in his hand, and the gun was still smokin’. And get this. Moe’s pistol was still in his holster! Now, there ain’t one man in here who didn’t hear the gunshot, and there ain’t one man in here who didn’t see what I just told you. So, there ain’t no doubt a’tall but that the defendant is guilty.”

  Hayes sat down to a round of applause. Then, in a bit of showmanship, he stood up and bowed to the others in the saloon.

  “That’ll be enough, Hayes,” Cummins said.

  “Sorry, Marshal,” Hayes said.

  “You will address me as Your Honor.”

  “Your Honor,” Hayes corrected.

  “Defense?”

  Dempster stood. “Your Honor, I call Matt Jensen to testify in his own behalf.”

  Matt was sworn in, then took a chair.

  Matt testified for himself, explaining how Gillis had confronted him with a demand for five dollars for a visitors tax.

  “I didn’t know anything about the tax. I’d never heard of a visitors tax, not in this town or any town I’ve ever visited. So, it was my intention to just ride on out of town,” Matt said. “But the deputy wouldn’t let me. He said that just by being here, I was already a visitor.”

  “What he said was correct,” Cummins said, interrupting Matt’s testimony. “And, as the deputy, he had every right to collect five dollars from you. The five dollars is to pay for law enforcement.”

  “There’s nothing right about that,” Matt said.

  “Uh-huh, and so, since you didn’t agree with him, you shot him, is that it? You shot him down in cold blood,” Hayes said.

  “Your Honor, I object,” Dempster said. “It is not yet redirect.”

  “I’m going to allow the question.”

  “It wasn’t even a question, it was an interruption. I haven’t turned the witness over to him yet,” Dempster complained.

  “We’re after the truth here, Counselor, no matter what technique we use to get it. I am going to allow the question. Answer it, Jensen.”

  “No, sir, I did not shoot him down in cold blood. He drew on me first. I was faster, and when I shot him, his gun somehow just slipped back into his holster.”

  Nearly everyone in the saloon laughed.

  “It is the truth, I swear it,” Matt said.

  “Mister,” Hayes replied. “There ain’t no one person in all of Arizona who is faster than Moe Gillis was.”

  “I am,” Matt said simply.

  “I have no more questions, Your
Honor,” Dempster said.

  “All right. Give your closing arguments.”

  Dempster held up his finger, then walked back to the table where he had left the coffee. He poured himself another cup, then drank it, before he returned to address the jury.

  “You have heard the defendant say that Gillis drew on him first,” he said. “And since Mr. Jensen is the only eyewitness to the actual confrontation, his testimony should have some weight. We all knew Gillis, we all knew what a hothead he was, and we all know that it would not be out of character for him to draw first, especially if he thought he was right to defend some law, such as collecting a five dollar visitors tax fee. But you have the perception that Mr. Jensen drew first, because the pistol was still in Gillis’s holster.

  “Perception,” he repeated.

  Dempster held up a finger. “I would like to remind you that, according to the law, you can only find my client guilty if you are convinced, beyond the shadow of a doubt, that he is guilty. You cannot find him guilty based upon a perception of guilt.

  “In addition to this, I would like to point this out to you. If you find him guilty as charged, there is an excellent chance that the sentence will be overturned on appeal, based upon all the irregularities in this trial.”

  Dempster held up a finger. “One, there could be a real question as to Andrew Cummins’ authority to try this case, seeing as he acted as the arresting officer. There is no precedence for the arresting officer to also act as judge.

  “Two, the Constitution of the United States guarantees every man a competent lawyer to act as his defense. All of you know me. I am a trained lawyer, that is true, but I am also a drunk and I was only given fifteen minutes to prepare for this case.

  “And finally, I was given no opportunity for voir dire. I believe this jury to be incapable of rendering a fair decision, based upon the fact that you were all present at the time of the incident.

  “I ask that you find Mr. Jensen not guilty.”

  “Ha!” one of the jurors said. “There ain’t a chance in hell we’re goin’ to do that.”

  Everyone in the saloon laughed.

  Cummins banged his revolver on the table. “Order,” he called. He looked over at Hayes. “Mr. Hayes, your summation.”

  “What?”

  “It’s your turn to talk to the jury, to wrap up your case.”

  “Oh, yeah, right,” Hayes said. He cleared his throat and looked over toward the jury. For a long moment, he said nothing, then he pointed to Matt.

  “This son of a bitch is guilty,” he said. “You know it and I know it, and I say, let’s hang the bastard.” He sat down, again to the laughter and cheers of those assembled.

  “It’s time now to poll the jury,” Cummins said. He looked at the twelve men who had been selected by the bartender.

  “Jury, how do you find the defendant?” Marshal Cummins asked the jury.

  “Guilty!” they all yelled as one.

  “So say you one, so say you all?” Cummins asked.

  “Yeah, that’s what we all say,” one of the jurors said. He looked at the others. “Anyone say anything different?”

  There were no dissensions.

  “Mr. Matt Jensen, you have been found guilty of murder, and are sentenced to hang.”

  “I’ll get a rope,” Hayes shouted.

  “Yeah, let’s string the son of a bitch up right here, in front of the saloon for the whole town to see!” Another added.

  “No!” Cummins replied. “I told you, we are going to do this legal.” The marshal looked at Matt. “You’ll be put on tonight’s train and taken to the territorial prison in Yuma, where the execution will be carried out.”

  “Who are you going to send with him?” Hayes asked.

  “Why? Are you volunteerin’?” Cummins replied.

  “Yeah, I’ll see to it that the son of a bitch gets to Yuma.”

  “Hayes, you was the one wantin’ to string him up now. I don’t know if I can trust you to get him there safe.”

  “I’ll get him there,” Hayes said. “You got my word.”

  Chapter Five

  “I’m not going to let you put a convicted murderer in the same car as paying passengers,” the station agent said.

  “Come on, Randall, he’s been tried, all legal, and we got to get him to Yuma to hang,” Hayes said. “I ain’t goin’ to trust him on a horse, and we can’t walk all the way.”

  Randall drummed his fingers on the counter for a moment, then sighed. “I suppose you two can ride in the express car,” he said.

  “The express car? Yeah, all right, that’ll be fine. We’ll ride in the express car.” Hayes looked over at Matt, who had said nothing from the moment the marshal had put him in shackles.

  “All right, Mr. Killer Man,” Hayes said. “Take a seat out there in the waiting room. And don’t give me no trouble if you know what’s good for you.”

  Matt’s ankles were shackled with just enough chain length to allow him to walk at a slow shuffle. He was also shackled by the wrists.

  There were four other people waiting for the train, the assembly consisting of a mother and her two children and a salesman. One of the children, a young girl of about five, smiled at Matt as Hayes led him out into the waiting room.

  “We’re going back home,” the little girl said to Matt. “We came here to see my Aunt Suzie. I’m named after my Aunt Suzie.”

  “Suzie!” her mother called. “Get back over here and leave that man alone.”

  “Mama, why is he wearing chains like that?” a boy of about seven asked.

  “Jerry, get back over here and sit down,” the mother said, without answering his question.

  Even before the train arrived, Emma Dawkins and her young son, Timmy, were just down the street from the depot, standing in front of small, brick building, looking at a sign.

  ROBERT DEMPSTER.

  Attorney-at-Law.

  “What are we doing here, Mama?” Timmy asked.

  “This man is a lawyer,” Emma said. “I want you to tell him what you saw.”

  Pushing open the door, Emma stepped inside. At first, she thought the office was empty, so she called out.

  “Hello? Anybody here?”

  Dempster came in from the back room.

  “I’m here,” he said. He looked at the woman. “You are Mrs. Dawkins, aren’t you? The dentist’s wife?”

  “Yes,” Emma said.

  “What can I do for you, Mrs. Dawkins?”

  “My son and I were in Millie’s dress shop,” Emma said. “A few minutes ago, we saw Deputy Hayes come out of the saloon, with a man in shackles.”

  “Yes, the man in shackles would be Matt Jensen.”

  “Why is he in shackles?”

  “Why? Because he has just been found guilty of murder,” Dempster said. “He is being sent by train to Yuma prison to be hanged.”

  “For shooting Deputy Gillis?”

  “Yes,” Dempster said. He squinted at Emma. “Excuse me, Mrs. Dawkins, but how do you know this? This just happened.”

  “I seen the whole thing,” Timmy said.

  “Saw,” Emma corrected.

  “I saw it,” Timmy said.

  “What did you see?” Dempster asked.

  “I seen—uh, I saw—Deputy Gillis draw his gun first. Then the other man drew his gun faster, and he shot the deputy. I didn’t know he killed the deputy ’cause all I saw was Deputy Gillis turn around and walk back into the saloon.”

  “You say you saw the deputy draw his gun first?”

  “Yes, sir, I did.”

  “That’s not possible,” Dempster said. “When Gillis came back into the saloon, his pistol was still in his holster.”

  “He pulled his gun about halfway out. Then, when he got shot, it fell back in the holster, but he drew first,” Timmy said.

  “Timmy, have you seen very many gunfights?”

  “No, sir, I ain’t—uh, I haven’t ever seen any except this one.”

  “Neither have I a
ctually. But I’ve tried cases that had to do with gunfights, and the one thing all of them have in common is confusion. Two people can see the same thing but tell completely different stories, without either one of them lying.”

  “How can they tell something different without one of them lying?” Timmy asked.

  “Because it isn’t a lie if you believe what you are saying is the truth. Take your story, for example. I don’t believe you are lying. I think you really believe that you saw Deputy Gillis draw first. But a gunfight can be over in the wink of an eye. It could be that when Gillis saw this fella Jensen starting to draw, that he went for his own gun, but it was too late, the other fella had the drop on him. You might have seen Gillis starting his draw, but didn’t notice that the other man had already drawn his own gun.”

  Timmy didn’t answer.

  “Don’t you think it might have been that way?” he asked.

  “No, sir, it wasn’t that way,” Timmy said. “I know what I saw. I saw the stranger, Mr. Jensen, come riding into town on a sorrel. He was a tall man, with broad shoulders and a wet hat.”

  “A wet hat?”

  “Yes, sir. He must’ve given his horse some water from a hat, because the hat was wet, and he took it off and hung it on his saddle. Then, Deputy Gillis came outside and they talked for a moment—but I don’t know what they were talking about. Then, Deputy Gillis started to draw his gun, but Mr. Jensen drew his gun, too, and he drew it faster than Deputy Gillis. When he shot Deputy Gillis, the deputy’s gun fell back into the holster, and he turned around and went back inside the saloon. That’s what I saw.”

  Dempster stroked his chin. “Young man, that—that is a very detailed and descriptive observation. And it coincides almost exactly with the way he told it.”

  “With the way who told it?” Emma asked.

  “Matt Jensen. I defended him in the trial.”

  “You mean, they’ve already had the trial?” Emma asked.

  “Yes, ma’am, I’m afraid so. I sure wish you had come forward earlier. I could have used Timmy’s testimony then.”

  “Maybe it isn’t too late,” Emma said. “Maybe you can go see Marshal Cummins and he’ll change his mind.”