CHAPTER 11
“Hear ye, hear ye, hear ye! This here trial is about to commence, the honorable Daniel Gilmore, pre-sidin’,” the bailiff shouted.
The judge stepped up from the back of the saloon and took his seat behind a table being used as the judge’s bench. He adjusted the glasses on the end of his nose, then cleared his throat. “Would the bailiff please bring the accused before the bench?”
The bailiff, who was leaning against the side wall, spit a quid of tobacco into the brass spittoon, then walked over to the table where Elmer was sitting. “Get up, you,” he growled. “Present yourself before the judge.”
Elmer approached the bench.
“Elmer Gleason, the charge against you is that you rode for that butchering, thieving, raping bushwhacker Quantrill,” the judge said. “How do you plead?”
“Quantrill never raped nobody,” Elmer said. “It was only them Jayhawkers that ever done any rapin’, ’n they done plenty of it, I can tell you.”
“You aren’t here to make a speech. I’m going to ask you again, how do you plead?”
Keith Davenport, the attorney appointed to represent Elmer, stood up behind the table he’d shared with his defendant. “Your Honor, if it please the court.”
“You got somethin’ to say to this court, Mr. Davenport?” the judge asked.
“Yes, Your Honor. Quantrill conducted all of his operations in Kansas and Missouri.”
“What does that have to do with anything?”
“Well, Your Honor, we are in Texas. Even if Mr. Gleason is guilty of murder and looting, it didn’t happen in this state. Either Kansas or Missouri is the state that should be trying this case. We don’t have jurisdiction to try it here.”
“Your Honor, if I may?” the prosecutor spoke up quickly. “Everybody knows that Quantrill spent a winter right here in Texas. That’s all we need to give this court standing.”
The judge nodded. “Your point is well taken, Mr. Taylor.”
“But Your Honor, these were his own people. Even if he was here, you know that neither Quantrill, nor by extension, my client, would have done any murdering or thieving while they were here.”
“None that we know of, Your Honor,” Taylor countered. “But that doesn’t matter anyway. We’re trying this defendant for being one of Quantrill’s riders, not for any specific act of murder or robbery he may have done. Therefore, the fact that Quantrill was once in Texas, and that this defendant was with him, is all that is required to put this case under your jurisdiction.”
The judge slapped his gavel on the bench again. “You are right, Mr. Prosecutor. Mr. Davenport, your motion for dismissal is denied. This case shall proceed.”
“Very well, Your Honor.”
“How do you plead?” the judge asked again.
Before Elmer got a word out, his attorney spoke. “Your Honor, my client pleads guilty and throws himself upon the mercy of the court.”
“What? Wait a minute!” Elmer shouted. “Judge, I ain’t pleadin’ guilty to nothin’!”
“You have already confessed your guilt, Mr. Gleason,” the judge replied.
“The hell I have. That was my lawyer that just done that. It warn’t me.”
“I’m not talking about your lawyer’s plea. I’m talking about your own declaration of guilt. Did you, or did you not, confess before several assembled men in the Scalded Cat Saloon, that you rode with Quantrill?”
“I wouldn’t put it that it was a confession,” Elmer said. “It was mostly just me drinkin’ ’n tellin’ war stories.”
“In the telling of those stories, did you say you rode with Quantrill?” the judge asked again.
“I ain’t confessin’ to nothin’,” Elmer said.
“Very well,” the judge said. “Clerk, change Mr. Gleason’s plea from guilty to not guilty.”
“Your Honor, may I have a moment with my client?” Davenport asked.
“You may.”
Elmer returned to the table and sat down.
Davenport spoke quietly. “Mr. Gleason, I think you are making a big mistake here. If you plead guilty, the judge might show some mercy in his final decision. On the other, if this goes to trial, and you’re found guilty, you’ll get none.”
“So what if I am found guilty? What’s he goin’ to do to me, tell me I can’t vote or somethin’? Hell, I ain’t never voted for nobody nohow. I ain’t got no truck with politicians.”
“Do you really not know? No, how could you? You have been in jail all this time.”
“What is it I don’t know?”
“Mr. Gleason, I’m afraid that a gallows has already been constructed. You are scheduled to be hanged at nine o’clock tomorrow morning.”
“What? How the hell can they already say I’m goin’ to be hung, when I ain’t even been tried yet?”
“That’s the point I’m trying to make. Don’t you understand? This trial is totally immaterial. The judge has already made up his mind to find you guilty. Your only hope is to plead guilty and beg for mercy.”
“The hell I will. I ain’t beggin’ that Yankee judge for nothin’.”
“Very well, Mr. Gleason. But don’t say I didn’t warn you.” Davenport looked back toward the bench. “Your honor, the conference with my client is concluded.”
“Have you reconsidered your plea, Mr. Gleason?” the judge asked.
“No, I ain’t. I said I was not guilty ’n that’s what I’m standin’ by.”
“So you say, and so it shall be. Mr. Prosecutor, are you prepared to make your case?” the judge asked.
“I am, Your Honor.”
“You may call your first witness.”
“You men over there,” the prosecutor said, pointing to three men sitting in the front row. All three were wearing the uniform of the US Army. “You are my witnesses. Stand up and hold up your right hand.”
The men did as they were instructed, and the clerk swore them in.
“Now,” the prosecutor said. “Did any of you hear this man say that he had ridden for Quantrill?”
The witnesses answered in the affirmative.
“We all heard him say that,” added the only sergeant within the group.
The prosecutor turned back toward the judge. “Well, there you go, Your Honor. All three of these men have just sworn that they heard the defendant admit to being one of Quantrill’s riders during the war.”
“Mr. Davenport, do you wish to question any of these men?” Judge Gilmore asked.
“Yes, Your Honor. You, Sergeant”—Davenport pointed to the soldier who was wearing three stripes on his sleeves—“what, exactly, did you hear my client say?”
“He said that he rode with Quantrill ’n Bloody Bill Anderson, ’n that him ’n others that rode with ’em kilt a bunch of Yankee ba—Aw, Judge, I don’t want to say what he called ’em. Not where women might hear.”
“I think we can figure it out. He said that?” Judge Gilmore asked.
The sergeant nodded. “Yes, sir. That’s what he said.”
“You may continue your cross, Mr. Davenport.”
Davenport asked the witness, “Did he say, specifically, that he had killed civilians?”
“Like I told you, all he said was that he had kilt a bunch of Yankee . . . you know.”
“Sergeant, did you take part in any battles in the late war?” Davenport asked.
“Yes, sir.”
“And did you kill anyone?”
The sergeant smiled. “Oh, I reckon I musta kilt me at least five or six of the Secesh sons of bit—” He halted in mid-word, then corrected himself. “Uh, that is, I figure I kilt five or six of the enemy soldiers.”
“Five or six, by your own count?”
“Yeah.”
“Sergeant, do you consider yourself a murderer?”
“What? No, it was war. If you kill someone in a war, that ain’t murder.”
“If you kill someone in a war, it isn’t murder. Is that what you are saying?”
“You’re damn right that’s what I’m sayin’.”
Davenport looked pointedly at Elmer. “That’s good to hear. No further questions.”
“Redirect, Mr. Taylor?” the judge asked.
“Sergeant, did you kill any civilians during the war?” Taylor asked.
“No, sir. Ever’one I kilt was a soldier.”
“Thank you. I’m through with this witness.”
“Does defense wish to call any witnesses?”
“Your Honor, I have no—” Davenport started, but he was interrupted.
The entire court was surprised when Kirby suddenly stood up and shouted, “Me, Your Honor!”
Angrily, the judge rapped his gavel on the table. “Order in the court! Here, what do you mean by interrupting my court in such a way?”
“I’d like to be a witness on behalf of the defendant.”
“Do you know anything about this, Counselor?” the judge asked Davenport.
“No, sir.”
“Do you have anything that would qualify you to bear witness to this case?” the judge asked Kirby.
“I do, Your Honor.”
“Get to the bottom of this, Mr. Davenport,” the judge ordered.
The defense attorney walked to where Kirby was still standing. “Young man, do you know the defendant?”
“Yes, sir, I know him.”
The marshal waved his hand. “Your Honor, this man came to visit the prisoner in the jail last night.”
“Why didn’t you say anything about it?” Judge Gilmore asked.
“I didn’t say nothin’ ’cause I didn’t have no idea he was goin’ to want to be a witness. He never told me anythin’ about that last night. He and another man just visited with the prisoner, is all.”
The judge looked at the gallery. “Is the other man who was with him present in this court?”
“Yes, sir. He’s sittin’ right there beside him.” The marshal pointed toward Emmett.
“Is it your wish to be a witness as well?” Judge Gilmore asked.
“No, sir. I never met the man before last night,” Emmett replied. “I couldn’t say one way or the other whether or not he’s guilty.”
“You.” Gilmore pointed toward Kirby. “Who are you, and what information do you have that you think might be pertinent to this case?”
“My name is Kirby Jensen, Your Honor. And, during the war, I rode with the defendant.”
Several gasps of surprise came from those who were present to watch the trial.
The judge rapped his gavel. “Are you telling the court that you rode with Quantrill?”
“I rode with Quantrill, Bloody Bill Anderson, and Asa Briggs,” Kirby replied.
“Bailiff, swear this man in,” the judge ordered.
The bailiff signaled for Kirby to come forward, then he held forth a Bible. “Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?”
“I do.”
“Now, Mr. Jensen, I ask you again,” Judge Gilmore said. “And this time you are under oath. Did you ride with Quantrill, Anderson, Briggs, and this man, Elmer Gleason?”
Kirby knew that he hadn’t ridden with Quantrill or Anderson in the scope of the question as it was being posed by the judge. But at times a merging of the guerrilla groups had occurred, and from that perspective, he could, truthfully, answer the question in the affirmative. “I did, Your Honor.”
“Marshal Ferrell, take this man’s gun, and place him under arrest.”
“I’m not wearin’ a gun,” Kirby said.
“Make certain,” the judge said.
The marshal checked him closely. “He’s tellin’ the truth, Judge. He ain’t got no gun.”
“Very well. He may testify as a witness, but he is also a defendant. This has become a double trial. Mr. Jensen is being tried along with Mr. Gleason, and any verdict reached for one shall apply to both. Put him at the defendant’s table alongside Gleason.”
“Yes, sir,” the marshal said.
“Mr. Davenport, you may present your case now,” the judge said.
“I call my first witness, Mister—” Davenport looked directly at Kirby. “Excuse me, what did you say your name was?”
“Jensen. Kirby Jensen.”
“Would you take the stand, Mr. Jensen?”
As Kirby sat in the witness chair, the judge looked over toward him. “I would remind the witness that you are already sworn in.”
“Yes, sir,” Kirby replied.
“Mr. Jensen, you have stated that you rode with the Southern guerrillas.”
“Yes, sir.”
“How old are you?”
“I’m seventeen.”
“Seventeen? Isn’t that a little young? How old were you when you began riding with the guerrillas?”
“I was fifteen.”
“And you have ridden, specifically, with Mr. Gleason?”
“Yes, sir.”
“Did you ever see Mr. Gleason kill an innocent civilian, or a woman, or a child?”
“No, sir, I never did.”
“Thank you. Your witness, counselor.”
Taylor stood up. “Have you ever killed anyone, Jensen?”
“Yes, sir.”
“No further questions.”
“The witness is dismissed.”
Kirby started, “Your Honor, the only ones I ever killed—”
Rap! The judge cut him short with the sharp rap of his gavel. “I said you are dismissed.”
“Your Honor, redirect?” Davenport called quickly.
Judge Gilmore sighed audibly. “Very well, Counselor, you may redirect.”
Davenport stood in front of Kirby. “You were about to make a statement. You may make it now.”
“I was just goin’ to say that the only men I’ve ever killed were trying to kill me,” Kirby said.
“Have you ever killed any women or children?”
“No, sir.”
“Thank you. No further questions.”
“Marshal Ferrell, return this man to the defendant’s table,” the judge ordered.
The marshal stepped up to Kirby and walked him to the defense table.
“Mr. Davenport, will Mr. Gleason take the stand in his own defense?”
“You’re damn right I will,” Elmer said.
Davenport sighed. It was obvious that he would have rather his client not take the stand.
“Can I say somethin’ before you start askin’ questions?” Elmer asked.
“You may.”
Elmer pointed to Kirby. “Kirby warn’t nothin’ but a boy when I first seen ’im. Hell, he ain’t more ’n a boy now. But boy or not, he’s a good man. I never seen him do nothin’ wrong. Even comin’ here, he come to help me ’cause he read about it in the paper. That’s the kind of person he is. He coulda just kept on agoin’, ’n none of you woulda ever even heerd of ’im. So I’m askin’ you now, whatever happens to me, I want you to leave the boy out of it. Like I said, he never done nothin’ wrong.” Elmer nodded at Davenport. “All right, you can ask your questions now.”
“Mr. Gleason, why did you ride with such men as Quantrill and Anderson?” Davenport asked.
“We was at war,” Elmer said. “And I felt like it was the right thing to do.”
“Did you gain personally from riding with the guerrillas? By that, I mean did you enrich yourself by looting and pillaging?”
“I’m not sure what pillagin’ means. But if you’re askin’ did I ever keep any of the money we took from time to time, the answer is no.”
“In your mind, would you say that the only reason you participated in the war was from a sense of duty to your state?”
“Yes. I was just a soldier doin’ my duty,” Elmer said. “I know they was lots of men that rode for the Blue who done just as bad, and some of ’em done worse ’n we did. I ain’t holdin’ that against ’em, now that all the fightin’ is over. It was a war, ’n I reckon they was thinkin’ it was their duty, just like them of us that rode with Quantrill or Anderson. But they ain’t none of them looked on as criminals like we are, ’n there ain’t nothin’ right about that. Nothin’ at all.”
“Thank you, Mr. Gleason. I have no further questions, Your Honor.”
“Cross, Mr. Taylor?”
Taylor stood up, then walked over to stand in front of Elmer. He folded his arms across his chest, leaned forward, and stared directly at Elmer. “You were just a soldier doing your duty, you say?” he asked sarcastically.
“Yes, sir. That’s what I done, all right. I done my duty.”
“Tell me, Mr. Gleason, would you consider the burning and sacking, and the murder of civilians in the town of Lawrence, Kansas, as just doing your duty? You do recall that, don’t you?”
Elmer didn’t respond.
“Were you present when Quantrill attacked Lawrence?”
Elmer still didn’t answer.
Taylor turned to the judge. “Your Honor, I request you order the defendant to answer the question.”
The judge nodded. “The defendant will answer the question.”
“Were you present on that day, Mr. Gleason?” the prosecutor asked again.
“Yes, sir, I was there,” Elmer replied, the words so quiet that they could barely be heard.
“Speak up please. Loudly enough so that everyone can hear you. Were you present for the sacking of Lawrence, Kansas?”
“Yes!” Elmer said loudly.
“Old men and young boys were rounded up and murdered. Houses and businesses were burned,” Taylor said. “Is that duty, Mr. Gleason?”
“It was war. I ain’t proud of it, but it was war.”
“Your Honor, I am finished with this man,” Taylor said.
“Redirect, Mr. Davenport?” the judge asked.
“No, Your Honor.”
“Then defense may make a closing argument.”
“Your Honor, Marshal Ferrell is a Texan. But he’s the only person of authority who is a Texan. I know that you and the appointed mayor and the prosecutor, and just about everyone else with any power in this town, in this state, and throughout the South, are Yankees, sent here for reconstruction.
“But if you would just look out into the gallery you’ll see men and women who were born and raised here. They are good people, Your Honor, Southerners by birth, and, during the late unpleasantness, they were Southerners by loyalty. If you ask them to pass judgment against these men, simply because they fought for what they believed in, they’re goin’ to tell you that Mr. Gleason ’n the boy sittin’ there beside him, were no more than soldiers doing their duty in a war that, by its very existence, pitted friend against friend, brother against brother, and in some cases, father against son. Because of that, the war was particularly brutal. It’s going to take several generations before all hard feelings go away. As you have come to live among us, I ask that you pass judgment on this matter with some feeling for the sensitivities of those who, by appointment and not by election, you now represent.”
The gallery broke into cheers and applause.
Judge Gilmore was surprised by the spontaneous reaction of the gallery and, angrily, he banged his gavel until they were quiet.
“You forget, Mr. Davenport, that the state of Texas is in subjugation to the laws of the United States. I do not give a whit about the laws or the sensitivities of the people of Texas. I am here to perform the duty for which I was appointed.” He looked over toward the jury. “You gentlemen of the jury. Do you go along with these folks in the gallery? Do you think these men who rode with Quantrill were nothing more than soldiers doing their duty?”
The men of the jury looked at each other, spoke quietly among themselves, then one of them spoke out. “Yes, sir, Your Honor. That’s exactly what we think.”
“Are you telling me that if I asked this jury for a verdict right now, it would be not guilty?”
“Yes, sir. We’ve spoke about it, ’n we’ve already come to a verdict. The verdict is they ain’t neither one of ’em guilty.”
Again, everyone cheered. Kirby, Elmer, and Davenport smiled broadly.
Judge Gilmore pounded his gavel on the makeshift bench until the gallery was quiet. “Your celebration is premature. I have not called for a verdict, nor shall I call for a verdict. This jury is dismissed,” the judge said angrily.
Davenport objected. “Your Honor, if you empanel another jury, and hold this trial again, you are going to get the same result. No jury of this man’s peers is going to find him guilty for doing his duty.”
“You don’t understand, Mr. Davenport,” the judge said with an evil grin. “I have no intention of calling another jury. I will make the decision myself.”
“What?” Davenport bellowed. “Your Honor, you can’t do that! That’s not legal.”
“I can and I will. I find both defendants guilty as charged. You are free, Mr. Davenport, to appeal my decision, but in all candor I must tell you that an appeal would be nothing but a waste of time, for the sentence will have been long carried out before any decision can be made on the appeal. Elmer Gleason and—” He glanced toward the prosecutor. “What’s the boy’s name?”
“Jensen, Your Honor. Kirby Jensen,” Taylor said.
“Elmer Gleason and Kirby Jensen, please present yourselves before my bench while I administer the sentence.”
“Your Honor, we beg for mercy,” Davenport said quickly.
“No, we don’t, by God!” Elmer said sharply. He glanced over at Kirby. “I don’t know about the boy. I’ll let him make his own decision.”
“I’ll not be beggin’ for mercy,” Kirby said.
Judge Gilmore took off his glasses and began polishing them. He put them back on, hooking them carefully over his ears. He looked at the two defendants standing before him and cleared his throat. “Elmer Gleason and . . .” Again he paused.
“Kirby Jensen,” Taylor added quietly.
“Elmer Gleason and Kirby Jensen, you have been tried before me and have been found guilty of the crime of riding with the butcher Quantrill, and aiding and abetting in the atrocities of murder, arson, and robbery that he visited upon innocent people. It is the sentence of this court that you be taken from this courthouse and put in jail where you will spend your last night on this mortal coil. At ten o’clock of the morrow, you will be taken to the gallows already constructed, and there, both of you will be suspended by your necks until you are dead.”
“No!” someone in the court shouted. “You can’t hang them, you Yankee crook! They ain’t guilty of nothin’ but bein’ soldiers!”
“Marshal,” the judge said. “Arrest the man who just made that outburst, and hold him in contempt of court!”
Marshal Ferrell stood and looked out over the gallery. “Arrest which man, Judge? I didn’t see who it was.”
To a man, every person in the courtroom was quiet.
“Who was it?” the judge asked. “Who made that outburst?”
There was no response to his inquiry.
“All right, all right!” the judge said. “You Rebels think you are putting one over on me, do you? But we’ll see who has the last laugh tomorrow when these men are legally executed. Court is adjourned.” He rapped the gavel once more.
The judge, the bailiff, and the prosecutor left the saloon by the back door.
“Damn, Marshal Ferrell, you ain’t really goin’ to hang ’em, are you?” someone called.
“You heard the judge. He give me the order. There ain’t nothin’ I can do about it.”
* * *
“Kirby, what ’n hell did you do that for?” Elmer asked after the two men were taken back to the cell.
“I wanted to do what I could to help.”
Elmer shook his head. “Well, you didn’t have to go so far. Damn, boy, just showin’ up woulda been enough. But what you done is got yourself caught up into the same mess I’m in.”
To Elmer’s surprise, Kirby flashed a big smile. “Yeah, I did, didn’t I?”
Elmer frowned at him. “Boy, have you gone daft on me? Ain’t you got no idea as to what’s goin’ to happen?”
“I know exactly what’s going to happen,” Kirby said. “That’s why I got myself put in here.”
“You got yourself put in here? Of a pure purpose?”
Kirby nodded. “Of a pure purpose.”