"Was my horse a small horse or a large one?"
"A small one."
Johnny rose and strolled to the window.
"Well, about how high?"
"About fourteen hands. Possibly an inch more."
"Would you know my horse again?"
"Certainly."
"So you could swear to him?"
"Yes."
"What color was he?"
"A _grullo_--a very peculiar shade of _grullo_--a sleek glossy, velvety blue."
"Was he thin or fat?"
"Neither. Smooth--not fat."
"Did you notice his brand?"
"Of course."
"Describe it to the court."
"He was branded K I M on the left hip."
"On which side did his mane hang?"
"On the left."
"Thank you. Now, Mr. Hales, would you describe me as a large man or a small one?"
Hales looked an appeal to the prosecutor.
"I object to that question--improper, irrelevant, incompetent and immaterial. And that is not all. This man, this man Dines, is arguing the case as he goes along, contrary to all rule."
"I like it that way," observed the judge placidly. "If he makes his point as the evidence is given, I"m not likely to miss any bets, as I might do if he waited for the summing up."
"I objected to the question," snapped the prosecutor. "I demand your ruling."
"Has the defense anything to offer? That question would certainly seem to be superfluous on the face of it," said the court, mildly.
"Your Honor," said Johnny, "I want to get this down on the record in black and white. Someone who has never seen me may have to pa.s.s on this evidence before we get done. I want that person to be sure of my size."
"Objection overruled."
"Please describe me--as to size--Mr. Hales."
"A very small man," answered Hales sulkily.
"In your opinion, when I shot Adam Forbes did I stand on my saddle? Or could I have inflicted a wound such as you have described by simply kneeling on my saddle--"
"I object!"
"--if Adam Forbes rode a horse big enough to carry his weight, and I rode a horse fourteen hands high?"
Wade leaped to his feet and flung out his hands. "I object!" he shrilled.
"Objection sustained. The question is most improper. I shall instruct myself to disregard it in making my decision."
"That"s all," said Johnny Dines; and sat down.
"Any more witnesses for the prosecution, Mr. Wade?"
"No, sir. The prosecution rests."
The judge turned back to Johnny. "Witnesses for the defense?"
"Call my horse," said Johnny Dines.
"Your Honor, I object! This is preposterous--unheard of! We will admit the height of this accursed horse as being approximately fourteen hands, if that is what he wants to prove. I ask that you keep this buffoon in order. The trial has degenerated into farce-comedy."
"Do you know, Mr. Wade, I seem to observe some tragic elements in this trial," observed Hinkle. "I am curious to hear Mr. Dines state his motive in making so extraordinary a request from the court."
"He"s trying to be funny!"
"No," said the judge; "I do not think Mr. Dines is trying to be funny.
If such is his idea, I shall find means to make him regret it. Will you explain, Mr. Dines? You are ent.i.tled to make a statement of what you expect to prove."
Johnny rose.
"Certainly. Let me outline my plan of defense. I could not call witnesses until I heard the evidence against me. Now that I have heard the evidence, it becomes plain that, except for a flat denial by myself, no living man can speak for me. I was alone. When I take the stand presently, I shall state under oath precisely what I shall now outline to you briefly.
"On the day in question I was sent by Cole Ralston to Hillsboro to execute his orders, as I will explain in full, later. I came through MacCleod"s Park, started up a Bar Cross cow and her unbranded yearling, and I caught the yearling at the head of Redgate. While I was branding it, a big man--I have every reason to believe that this man was Adam Forbes--came down the canon. He rode up where I was branding the yearling, talked to me, smoked a cigarette, gave me a letter to mail, and went back the way he came. I went to Garfield. My horse had lost a shoe, as the witnesses have stated. I nailed on a fresh shoe in Garfield, and came on. I was arrested about dark that night while on the road to Hillsboro. That is all my story. True or false, I shall not vary from it for any cross-examination.
"I shall ask Your Honor to consider that my story may be true. I shall ask Your Honor to consider that if my story is true no man may speak for me. I saw no other man between Upham and the Garfield ditch--twenty-five miles.
"You have heard the prosecution"s theory. It is that I was stealing a calf belonging to the dead man--branding it; that he caught me in the act, and that I foully murdered him. If I can prove the first part of that theory to be entirely false; if I can demonstrate that even if I killed Adam Forbes I certainly did not kill him in the manner or for the motive set forth by the theory of the prosecution--then you may perhaps believe my unsupported statement as to the rest of it. And that is what I can do, if allowed the opportunity. I cannot, by myself, now or at any other time, absolutely prove my statement to be true. I can and will prove the theory of the prosecution to be absolutely false. To do that I rely upon myself--not upon my statement, but upon myself, my body, so much flesh and blood and bone, considered as an exhibit in this case, taken in connection with all known or alleged facts; on myself and my horse; on Adam Forbes" dead body and on the horse Adam Forbes rode that day; on the Bar Cross yearling I branded day before yesterday, a yearling that I can describe in detail, a yearling that can be found and must be found, a yearling that will be found following a Bar Cross cow. I have no fancy to be hanged by a theory. I demand to test that theory by facts.
I demand that my horse be called to testify to the facts."
"Mr. Gwinne, you may call the prisoner"s horse," said the justice.
"Spinal, you may act as the court"s officer while Gwinne is gone."