Page:Scribner's Monthly, Volume 12 (May–October 1876).djvu/520

514 of Grace Conroy, an absent sister of the accused, Mrs. Conroy, then really Madam Devarges, sought the professional aid of the impulsive and generous Ramirez to establish her right to a claim then held by the accused—in fact wrongfully withheld from his own sister, Grace Conroy; that Ramirez, believing implicitly in the story of Madam Devarges with the sympathy of an overflowing nature, gave her that aid until her marriage with Gabriel exposed the deceit. Col. Starbottle would not characterize the motives of such a marriage. It was apparent to the jury. They were intelligent men, and would detect the unhallowed combination of two confederates, under the sacrament of a holy institution to deceive the trustful Ramirez. "It was a nuptial feast," continued the Colonel, "at which—er—er—Mercury presided, and not—er—er—Hymen. Its only issue was fraud and murder. Having obtained possession of the property in a common interest, it was necessary to remove the only witness of the fraud, Ramirez. The wife found a willing instrument in the husband. And how was the deed committed? Openly and in the presence of witnesses? Did Gabriel even assume a virtue, and under the pretext of an injured husband, challenge the victim to the field of honor? No! No, gentlemen. Look at the murderer, and contrast his enormous bulk with the—er—slight, graceful, youthful figure of the victim, and you will have an idea of the—er—er—enormity of the crime."

After this exordium came the testimony; i.e., facts, colored more or less unconsciously, according to the honest prejudices of the observer, his capacity to comprehend the fact he had observed, and his disposition to give his theory regarding that fact rather than the fact itself. And when the blind had testified to what they saw and the halt had stated where they walked and ran, the prosecution rested with a flush of triumph.

They had established severally: that the deceased had died from the effects of a knife wound; that Gabriel had previously quarreled with him and was seen on the hill within a few hours of the murder; that he had absconded immediately after, and that his wife was still a fugitive; and that there was ample motive for the deed in the circumstances surrounding the prisoner.

Much of this was shaken on cross-examination. The surgeon who made the autopsy was unable to say whether the deceased, being consumptive, might not have died from consumption that very night. The witness who saw Gabriel pushing the deceased along the road, could not swear positively whether the deceased were not pulling Gabriel instead, and the evidence of Mrs. Conroy's imposture was hearsay only. Nevertheless, bets were offered in favor of Starbottle against Poinsett—that being the form in which the interest of One Horse Gulch crystallized itself.

When the prosecution rested, Mr. Poinsett, of counsel for defense, moved for the discharge of the prisoner, no evidence having been shown of his having had any relations with or knowledge of the deceased until the day of the murder, and none whatever of his complicity with the murderess, against whom the evidence of the prosecution and the arguments of the learned prosecuting attorney were chiefly directed.

Motion overruled. A sigh of relief went up from the spectators and the jury. That any absurd technical objection should estop them from that fun, which as law-abiding citizens they had a right to expect, seemed oppressive and scandalous, and when Arthur rose to open for the defense, it was with an instinctive consciousness that his audience was eying him as a man who had endeavored to withdraw from a race.

Ridiculous as it seemed in reason, it was enough to excite Arthur's flagging interest and stimulate his combativeness. With ready tact he fathomed the expectation of the audience and at once squarely joined issue with the Colonel.

Mr. Poinsett differed from his learned friend in believing this case was at all momentous or peculiar. It was a quite common one—he was sorry to say a very common one—in the somewhat hasty administration of the law in California. He was willing to admit a peculiarity in his eloquent brother's occupying the line of attack, when his place was clearly at his, Mr. Poinsett's, side. He should overlook some irregularities in the prosecution from this fact, and from the natural confusion of a man possessing Col. Starbottle's quick sympathies, who found himself arrayed against his principles. He should, however, relieve them from that confusion, by stating that there really was no principle involved beyond the common one of self-preservation. He was willing to admit the counsel's ingenious theory that Mrs. Conroy—who was not mentioned in the indictment—or indeed any other person not specified, had committed the deed with which his client was