After Mr. Ballard’s visit to the jail, he took upon himself to do what he could for the young man, out of sympathy and friendship toward both parties, and in the cause of simple justice. He consulted the only available counsel left him in Leauvite, a young lawyer named Nathan Goodbody, whom he knew but slightly.

He told him as much of the case as he thought proper, and then gave him a note to the prisoner, addressing him as Harry King. Armed with this letter the young lawyer was soon in close consultation with his new client. Despite Nathan Goodbody’s youth Harry was favorably impressed. The young man was so interested, so alert, so confident that all would be well. He seemed to believe so completely the story Harry told him, and took careful notes of it, saying he would prepare a brief of the facts and the law, and that Harry might safely leave everything to him.

“You were wounded in the hip, you say,” Nathan Goodbody questioned him. “We must not neglect the smallest item that may help you, for your case needs strengthening. You say you were lamed by it––but you seem to have recovered from that. Is there no scar?”

“That will not help me. My cousin was wounded also, but his was only a flesh wound from which he quickly recovered and of which he thought nothing. I doubt if any 446 one here in Leauvite ever heard of it, but it’s the irony of fate that he was more badly scarred by it than I. He was struck by a spent bullet that tore the flesh only, while the one that hit me went cleanly to the bone, and splintered it. Mine laid me up for a year before I could even walk with crutches, while he was back at his post in a week.”

“And both wounds were in the same place––on the same side, for instance?”

“On the same side, yes; but his was lower down. Mine entered the hip here, while he was struck about here.” Harry indicated the places with a touch of his finger. “I think it would be best to say nothing about the scars, unless forced to do so, for I walk as well now as I ever did, and that will be against me.”

“That’s a pity, now, isn’t it? Suppose you try to get back a little of the old limp.”

Harry laughed. “No, I’ll walk straight. Besides they’ve seen me on the street, and even in my father’s bank.”

“Too bad, too bad. Why did you do it?”

“How could I guess there would be such an impossible development? Until I saw Miss Ballard here in this cell I thought my cousin dead. Why, my reason for coming here was to confess my crime, but they won’t give me the chance. They arrest me first of all for killing myself. Now that I know my cousin lives I don’t seem to care what happens to me, except for––others.”

“But man! You must put up a fight. Suppose your cousin is no longer living; you don’t want to spend the rest of your life in the penitentiary because he can’t be found.”

“I see. If he is living, this whole trial is a farce, and if he is not, it’s a tragedy.”

“We’ll never let it become a tragedy, I’ll promise you that.” The young man spoke with smiling confidence, but when he reached his office again and had closed the door behind him, his manner changed quickly to seriousness and doubt.

“I don’t know,” he said to himself, “I don’t know if this story can be made to satisfy a jury or not. A little shady. Too much coincidence to suit me.” He sat drumming with his fingers on his desk for a while, and then rose and turned to his books. “I’ll have a little law on this case,––some point upon which we can go to the Supreme Court,” and for the rest of that day and long into the night Nathan Goodbody consulted with his library.

In anticipation of the unusual public interest the District Attorney directed the summoning of twenty-five jurors in addition to the twenty-five of the regular panel. On the day set for the trial the court room was packed to the doors. Inside the bar were the lawyers and the officers of the court. Elder Craigmile sat by Milton Hibbard. In the front seats just outside the bar were the fifty jurors and back of them were the ladies who had come early, or who had been given the seats of their gentlemen friends who had come early, and whose gallantry had momentarily gotten the better of their judgment.

The stillness of the court room, like that of a church, was suddenly broken by the entrance of the judge, a tall, spare man, with gray hair and a serious outlook upon life. As he walked toward his seat, the lawyers and officers of the court rose and stood until he was seated. The clerk of the court read from a large book the journal of the court of the previous day and then handed the book to the judge to 448 be signed. When this ceremony was completed, the judge took up the court calender and said,––

“The State v. Richard Kildene,” and turning to the lawyers engaged in the case added, “Gentlemen, are you ready?”

“We are ready,” answered the District Attorney.

“Bring in the prisoner.”

When Harry entered the court room in charge of the sheriff, he looked neither to the right nor to the left, and saw no one before him but his own counsel, who arose and extended a friendly hand, and led him to a seat beside himself within the bar.

Nathan Goodbody then rose, and, addressing the court with an air of confident modesty, as if he were bringing forward a point so strong as to require nothing more than the simple statement to give it weight, said:––

“If the court please, the defense is ready, but I have noticed, as no doubt the court has noticed, a distinguished member of this bar sitting with the District Attorney as though it were intended that he should take part in the trial of this case, and I am advised that he intends to do so. I am also advised that he is in the employ of the complaining witness who sits beside him, and that he has received, or expects to receive, compensation from him for his services. I desire at the outset of this case to raise a question as to whether counsel employed and paid by a private person has a right to assist in the prosecution of a criminal cause. I therefore object to the appearance of Mr. Hibbard as counsel in this case, and to his taking any part in this trial. If the facts I have stated are questioned, I will ask Elder Craigmile to be sworn.”

The court replied: “I shall assume the facts to be as stated by you unless the counsel on the other side dissent from such a statement. Considering the facts to be as stated, your objection raises a novel question. Have you any authorities?”

“I do not know that the Supreme Court of this State has passed upon this question. I do not think it has, but my objection finds support in the well-established rule in this country, that a public prosecutor acts in a quasi-judicial capacity. His object, like that of the court, should be simple justice. The District Attorney represents the public interest which can never be promoted by the conviction of the innocent. As the District Attorney himself could not accept a fee or reward from private parties, so, I urge, counsel employed to assist him must be equally disinterested.”

“The court considers the question an interesting one, but the practice in the past has been against your contention. I will overrule your objection, and give you an exception. Mr. Clerk, call a jury!”[1]

Then came the wearisome technicalities of the empaneling of a jury, with challenges for cause and peremptory challenges, until nearly the entire panel of fifty jurors was exhausted.

In this way two days were spent, with a result that when counsel on both sides expressed themselves as satisfied with the jury, every one in the court room doubted it. As the sheriff confided to the clerk, it was an even bet that the first twelve men drawn were safer for both sides than the twelve men who finally stood with uplifted hands and were 450 again sworn by the clerk. Harry King, who had never witnessed a trial in his life, began to grow interested in these details quite aside from his own part therein. He watched the clerk shaking the box, wondering why he did so, until he saw the slips of paper being drawn forth one by one from the small aperture on the top, and listened while the name written on each was called aloud. Some of the names were familiar to him, and it seemed as if he must turn about and speak to the men who responded to their roll call, saying “here” as each rose in his place behind him. But he resisted the impulse, never turning his head, and only glancing curiously at each man as he took his seat in the jury box at the order of the judge.

During all these proceedings the Elder sat looking straight before him, glancing at the prisoner only when obliged to do so, and coldly as an outsider might do. The trial was taking more time than he had thought possible, and he saw no reason for such lengthy technicalities and the delay in calling the witnesses. His air was worn and weary.

The prisoner, sitting beside his counsel, had taken less and less interest in the proceedings, and the crowds, who had at first filled the court room, had also lost interest and had drifted off about their own affairs until the real business of the taking of testimony should come on, till, at the close of the second day, the court room was almost empty of visitors. The prisoner was glad to see them go. So many familiar faces, faces from whom he might reasonably expect a smile, or a handshake, were it possible, or at the very least a nod of recognition, all with their eyes fixed on him, in a blank gaze of aloofness or speculation. He felt 451 as if his soul must have been in some way separated from his body, and then returned to it to find all the world gazing at the place where his soul should be without seeing that it had returned and was craving their intelligent support. The whole situation seemed to him cruelly impossible,––a sort of insane delusion. Only one face never failed him, that of Bertrand Ballard, who sat where he might now and then meet his eye, and who never left the court room while the case was on.

When the time arrived for the introduction of the witnesses, the court room again filled up; but he no longer looked for faces he knew. He held himself sternly aloof, as if he feared his reason might leave him if he continued to strive against those baffling eyes, who knew him and did not know that they knew him, but who looked at him as if trying to penetrate a mask when he wore no mask. Occasionally his counsel turned to him for brief consultation, in which his part consisted generally of a nod or a shake of the head as the case might be.

While the District Attorney was addressing the jury, Milton Hibbard moved forward and took the District Attorney’s seat.

Then followed the testimony of the boys––now shy lads in their teens, who had found the evidences of a struggle and possible murder so long before on the river bluff. Under the adroit lead of counsel, they told each the same story, and were excused cross-examination. Both boys had identified the hat found on the bluff, and testified that the brown stain, which now appeared somewhat faintly, had been a bright red, and had looked like blood.

Then Bertrand Ballard was called, and the questions put 452 to him were more searching. Though the manner of the examiner was respectful and courteous, he still contrived to leave the impression on those in the court room that he hoped to draw out some fact that would lead to the discovery of matters more vital to the case than the mere details to which the witness testified. But Bertrand Ballard’s prompt and straightforward answers, and his simple and courteous manner, were a full match for the able lawyer, and after two hours of effort he subsided.

Then the testimony of the other witnesses was taken, even to that of the little housemaid who had been in the family at the time, and who had seen Peter Junior wear the hat. Did she know it for his? Yes. Why did she know it? Because of the little break in the straw, on the edge of the brim. But any man’s hat might have such a break. What was there about this particular break to make it the hat of Peter Junior? Because she had made it herself. She had knocked it down one day when she was brushing up in the front hall, and when she hung it up again, she had seen the break, and knew she had done it.

And thus, in the careful scrutiny of small things, relating to the habits, life, and manner of dressing of the two young men,––matters about which nobody raised any question, and in which no one except the examiner took any interest,––more days crept by, until, at last, the main witnesses for the State were reached.