J. A. Johnstone & William W. Johnstone Page 2

  “Loaded and ready to go,” Carney replied, shifting the shotgun.

  The horses strained in their harness as they pulled the coach up the last one hundred yards.

  “Andy, Poke, get ready!” Garon called out. “The coach is just about here, no more than another minute or so!”

  As the coach reached the top of the grade, the three road agents jumped out with their guns drawn.

  “Hold it right there!” Garon called, pointing his pistol at the driver and guard. “Driver, are you carrying an express box?”

  “Nothin’ here but a mailbag,” Sessions replied.

  “I don’t believe you. If you ain’t carryin’ a strongbox, why do you have a shotgun guard ridin’ with you?”

  “It’s just somethin’ the company makes us do,” the driver said. “But there ain’t no strongbox, and if you don’t believe it, you can climb up here and see for yourself,” the driver replied.

  “All right, throw the mailbag down. And you folks inside the coach, come out!” Garon shouted. “I want all the passengers outside now. Come on, let’s see what you have.”

  “There ain’t no passengers,” Sessions said. He had not yet thrown down the mailbag.

  “What do you mean, there ain’t no passengers? This is a stagecoach, ain’t it? How can you have a stagecoach without havin’ any passengers?”

  “Drop your guns!” Falcon shouted, suddenly appearing on the road behind Garon, Andy, and Poke.

  “What the hell?” Andy shouted. He and Poke whirled around and fired at Falcon. Even as the two bullets fried the air by his ears, Falcon returned fire and both men went down.

  “No!” Garon shouted, throwing his pistol down and putting his hands in the air. “No, I give up, I give up! Don’t shoot!”

  With the gun in his hand still smoking, Falcon kept Garon covered as he moved over to check on the two men he had shot. Both were dead.

  “Them was my pards you killed, mister,” Garon said, angrily.

  “I didn’t have much choice in the matter,” Falcon replied. “It was either kill them, or let them kill me. And I wasn’t ready to let them do that.”

  “What’s your name?” Garon asked.

  “The name is MacCallister. Falcon MacCallister.”

  “Falcon MacCallister. I’m going to remember that name,” Garon said. “Yes, sir, I’m going to remember it for a long time.”

  September 10, 1875

  Pagosa Springs, Colorado Territory

  “Here you go, Mr. MacCallister, fried ham, fried potatoes, a mess of fried okra, and some pan-fried cornbread,” the overweight waitress said as she put the plate in front of Falcon.

  “Thank you, Mrs. Conners,” Falcon said. “It looks delicious.”

  “How do you think the trial is going?” Sessions asked. Arnie Sessions, Ben Carney, and Falcon had all testified for the prosecution.

  “Hell, there ain’t no question about it,” Carney said. “We got the son of a bitch dead to rights.”

  “I learned a long time ago never to second-guess a jury,” Falcon said.

  “Yeah, and wouldn’t you know Gilmore would be defending him,” Sessions said.

  The trial they were talking about was the trial for Jim Garon. All three had testified this morning, and Falcon was still giving testimony when the court recessed for lunch.

  “Well, everyone is entitled to a defense,” Falcon said, and he used a piece of the fried cornbread to corral some of the fried okra.

  “The trial is resuming!” someone called from the front door of the restaurant.

  Falcon, Sessions, and Carney got up from the table, as did several other diners, all of whom had been in the gallery.

  Outside, several of the town’s citizens were streaming back toward the schoolhouse where the trial was actually being held, the town having no courthouse.

  “Hear ye, hear ye, hear ye! This court is now in session, the honorable T.J. Hawkins presiding. All rise.”

  There was a scrape of chairs across the floor as everyone stood for the arrival of the judge. Judge Hawkins was a large, bald-headed man with a full, sweeping mustache. He took his seat behind what would normally be the teacher’s desk.

  “Be seated,” he said.

  Again, there was a scrape of chairs across the floor as the gallery took its seat.

  The judge looked over at the bailiff. “Bailiff, show the jury in if you would, please,” he said.

  The bailiff stuck his head out the door. “The judge has called the jury back in!” he shouted.

  A moment later twelve men “good and true” came back into the classroom to take their seats. Not until they were seated did the judge speak again.

  “Mr. Gilmore,” the judge said to the defense attorney. “Just before the recess, Mr. MacCallister had testified for the prosecution. Do you now wish to cross-examine?”

  “I do, Your Honor,” Gilmore said, standing up from the defense table.

  “The court calls Falcon MacCallister,” the bailiff intoned, and Falcon walked up to the witness chair, which was sitting right next to the teacher’s desk, which was being used as the judge’s bench.

  “Mr. MacCallister, I remind you that you are still under oath,” Judge Hawkins said.

  “Yes, Your Honor,” Falcon replied.

  “Mr. MacCallister, before the events we are trying here took place, did you, or did you not, make all of the passengers leave the stage?” Gilmore asked.

  “I did.”

  “And I was one of the passengers who left the stage. Is that right?”

  “That is correct.”

  “Why did you do that?”

  “I thought it might be safer for the passengers,” Falcon replied.

  “Did you? Or did you think it might be better not to have any witnesses to what you were about to do?”

  “I thought it would be safer for the passengers,” Falcon repeated.

  “During your testimony, I believe you said that after you forced everyone to leave the coach, you later left the coach yourself and came up behind the defendant and the two who were with him. Is that right?” Gilmore said.

  “That is right.”

  “You shot two of them, did you not?”

  “After they shot at me.”

  “So you say,” Gilmore said sarcastically.

  “Objection, Your Honor, the driver and the shotgun guard both testified to the same thing,” Joe Kincaid, the prosecutor, said.

  “Sustained. Jury will disregard defense attorney’s last remark,” the judge said.

  “Mr. MacCallister, did Mr. Garon shoot at you?”

  “No, he did not.”

  “Did he make any threatening act toward you?”

  “He was threatening the driver and—”

  “Your Honor, please instruct the witness to answer the questions I ask.”

  “Witness will respond to specific questions asked,” Judge Hawkins ruled.

  “Mr. MacCallister, I ask you again. Did Mr. Garon make any threatening move toward you?”

  “He did not.”

  “No further questions, Your Honor.”

  “Redirect, Mr. Kincaid?” the judge asked.

  Without standing, Kincaid asked, “Did Jim Garon make any threatening moves toward the driver or the guard?”

  “Yes, he did,” Falcon replied.

  “And your initial response, even before the two deceased fired at you, was to prevent them from shooting at the driver, the guard, or both?”

  “It was.”

  “Thank you. No further questions, Your Honor.”

  “The witness may step down.”

  Gilmore called Garon to the witness stand. Garon was sworn in; then Gilmore approached him.

  “Mr. Garon, on the first of this month, did you, Andy Parker, and Poke Waggoner confront the Pagosa Springs coach on the Pagosa Springs road?”

  “Yeah, we did,” Garon replied.

  “Was it your intention to rob the coach?”

  “No, we wasn’t goin’ to rob i
t.”

  “What was your intention?”

  “We was needin’ a ride, that’s all.”

  “But there was gunplay, was there not?”

  “Yeah, well, this MacCallister fella come up behind us with his gun drawn, and the next thing you know, he shot and killed Andy and Poke.”

  “Did Andy and Poke shoot at MacCallister?”

  “Yeah, but what I think they done was shoot back at him. Only, not bein’ professional gunmen like MacCallister is—”

  “Objection, Your Honor, to the defendant referring to Falcon MacCallister as a professional gunfighter,” Kincaid called.

  “Your Honor, may I respond?” Gilmore said. He returned to the defendant’s desk and picked up three paperbound novels. “I hold in my hand the book Falcon MacCallister at Shoot Out Canyon. Also, Falcon MacCallister, Gunfighter for Justice, and finally, Falcon MacCallister and the Fast Draw Kid. All three of these books refer to Falcon MacCallister as a professional gunman.”

  “They are novels, Your Honor,” Kincaid said.

  “But they are all about Falcon MacCallister, who is a real person.”

  “Objection overruled,” Judge Hawkins said. “Reference to Mr. MacCallister as a professional gunfighter may stand.”

  “You may continue with your statement, Mr. Garon.”

  “I lost my place,” Garon said.

  “Would the court reporter please read back Mr. Garon’s last words?” Gilmore asked.

  Clearing his throat, the court reporter began to read. “Mr. Kincaid: ‘Did Andy and Poke shoot at MacCallister?’

  “Mr. Garon: ‘Yeah, but what I think they done was shoot back at him. Only, not being professional gunmen like MacCallister is—’” The reporter looked up. “That is as far as he got before the objection.”

  “Would you please finish your statement, Mr. Garon?”

  “Yeah, I was goin’ to say that not being professional gunmen, when they shot back at MacCallister they missed. MacCallister didn’t miss, and he killed Mr. Parker an Mr. Waggoner,” Garon said.

  “Thank you, no further questions.”

  Despite Kincaid’s best efforts, he was unable to break Garon’s insistence that he, Parker, and Waggoner had only intended to flag down the coach in order to ask for a ride.

  Closing arguments for both attorneys did little more than reiterate the arguments they had already presented. After that, the jury was dismissed so they could return with a verdict.

  Deliberation took less than half an hour, then the jury returned.

  “Gentlemen of the jury, have you selected a foreman?” Judge Hawkins asked.

  “We have, Your Honor,” someone said.

  “And who is the foreman?”

  “I am, Your Honor.”

  “And you would be?”

  “My name is Harris, Your Honor. Clete Harris.”

  “Mr. Harris, has the jury reached a verdict?”

  “We have, Your Honor.”

  “Publish the verdict, please.”

  “Your Honor, on the felony count of attempted robbery, we find the defendant, Jim Garon, not guilty.”

  “What?” Ben Carney shouted out loud. “There’s no way that son of a bitch isn’t guilty!”

  The shotgun guard wasn’t the only one to react in such a way. Several others shouted out in protest as well, including Arnie Sessions.

  “This ain’t right!” the coach driver said.

  Judge Hawkins banged his gavel on the desk, and had to do it over and over, shouting, “Order in the court! Order in the court.” It took several calls before order was restored. The judge looked back over at the jury foreman. “I must say, Mr. Harris, I find your verdict astounding.”

  “There is more, Your Honor,” Harris said.

  “All right, let me hear what else you have to say.

  “We have lowered the charge of attempted robbery to the misdemeanor count of interfering with the transit of a public stagecoach. And on that charge and specification, we find the defendant guilty.”

  “Misdemeanor?” Judge Hawkins questioned. “You have taken it upon yourself to lower the charge to a misdemeanor?”

  “We were led to understand that if we could not find the defendant guilty on the felony charge, that we could lower the charge to a misdemeanor,” Harris said.

  “Yes, it is within your authority to do so,” Judge Hawkins agreed.

  “Very good, Your Honor, because that is exactly what we have done. Since the defendant did not discharge his weapon during the incident, and those who did discharge their weapon are now dead, the jury can find no cause for a felony charge.”

  “You do realize, don’t you, that the maximum punishment I can assess for the misdemeanor charge is one hundred and eighty days?”

  “Yes, Your Honor.”

  Judge Hawkins let out a long audible sigh, then ran his hand across the top of his bald head.

  “Very well, Mr. Foreman, you may sit down. Sheriff, if you would, please, bring the defendant before the bench.”

  The sheriff walked over to the defendant’s table and signaled for Garon to stand. He then walked with him to appear before the bench.

  “James A. Garon, in all my years on the bench, I have never seen a greater miscarriage of justice than what I have witnessed here on this day. You are obviously guilty of attempted stagecoach robbery and, because two of your fellow perpetrators were killed in the failed attempt, you could also be charged with murder.

  “However, a jury of your peers has tried the case, and has found you not guilty of any felony charge. They have found you guilty of the misdemeanor charge of impeding the progress of a public coach, so now it is incumbent upon me to sentence you.

  “Normally, for misdemeanors, I would assess a sentence equal to time served, or, I would levy a fine. In your case, however, I intend to give you the maximum penalty the law will allow. To my great disappointment and bitter frustration, I can only sentence you to six months in jail. And that, sir, is exactly what I am going to do.

  “I hereby sentence you to be incarcerated in the Colorado Territorial Prison in Cañon City, Colorado Territory, for a period of not less than one hundred and eighty days. Sheriff, put this miserable specimen of humanity in irons and transport his carcass, under maximum guard, to the territorial prison.”

  “Yes, Your Honor,” the sheriff replied.

  Judge Hawkins turned to the jurors. “The decision you twelve men made today is beyond comprehension. I cannot reverse it. However, I intend to have your names placed on record, and I shall direct the clerk of this court to strike each and every one of you from the jury pool. You are a disgrace to the system.”

  Judge Hawkins picked up his gavel and brought it down sharply. “The jury is dismissed, and this court is adjourned.”

  Chapter Three

  March 10, 1876

  Colorado Territorial Prison

  When the gates of the territorial prison opened to allow Jim Garon to leave, he was met by Clete Harris. Harris brought an extra horse with him.

  “The first thing I want to do is get me a beer,” Garon said as he swung into the saddle. “I ain’t had me no beer in six months—ever since I come to prison.”

  “There’s a saloon no more than a mile from here,” Harris said. “I’ll buy you a beer, and we can talk.”

  Clete Harris paid the bartender of the Double Eagle Saloon for two mugs of beer, then carried the beer over to a table where Jim Garon was sitting.

  “You could’a knocked me over with a feather when I looked up and seen that my old pard was foreman of the jury,” Garon said as he took his first drink. It wasn’t just a swallow; it was several Adam’s apple-bobbing gulps that took half the mug before he set it down.

  “Ahh,” he said, wiping some of the foam away from his mustache. “You don’t know how much you miss somethin’ like that till you are in a place where you can’t have none of it.”

  “I thought you might want a beer,” Harris said.

  “I ain’t seen yo
u since when? Since we pulled that job together down in Texas, I reckon. Where you been keepin’ yourself?”

  “Around,” Harris said.

  “Yes, sir, well, I tell you what, Harris, that was one lucky break I got having you as the jury foreman,” Garon said.

  “Luck didn’t have nothin’ to do with it,” Harris replied. “I bribed my way onto the jury, and bribed a couple of the jurors to elect me foreman. Then I talked them all into changin’ it from a felony to a misdemeanor.”

  “Why didn’t you just get it dropped altogether? I mean, I still had to serve six months in that hellhole. You got ’ny idea what it’s like in that place?”

  “You should appreciate that I was able to get the charge knocked down at all. Had you been found guilty as charged, you wouldn’t get out this side of twenty years.”

  “Yeah, well, don’t get me wrong, I do appreciate it and all,” Garon said, “but it does get me curious as to why you done it.”

  “What do you mean, you are curious? We are pards, ain’t we?” Harris replied.

  “Yea, I reckon we are,” Garon took another swallow of his beer, and again wiped the foam away from his mustache. “But still, I can’t help but ask why did you do it?”

  “Do I really need a reason to help out a friend?”

  “I guess not. I just wonder why, that’s all.”

  “All right, I’ll tell you why I done it. I done it ’cause I have a job for you to do.”

  “What kind of a job?”

  “You might say it’s a job as a salesman.”

  Garon shook his head. “No, sir,” he said. “I’m glad you got me off with the jury and all, but there ain’t no way in hell I’m goin’ to be a drummer, then get all dressed up and go around from town to town sellin’ goods, makin’ a few pennies on ever’thing you sell. Huh, uh, that ain’t for me.”

  Harris laughed.

  “What’s so funny?”

  “Thinkin’ of you all dressed up,” Harris said.

  “Yeah, well, then, you can see why I ain’t all too excited about it.”

  “Don’t get yourself all in a bind over it. That ain’t exactly the kind of selling I’m talking about,” Harris said. “And it won’t be a few pennies, it’ll be more like makin’ ten to twenty dollars on ever’thing you sell.”