JUDGE PARKER: That will do, Mr. Goudy, Restrain yourself. We shall hear your argument later. The defense will be given every latitude. I do not think the indiscriminate use of such words as “massacre” and “assassin” will bring us any nearer the truth. Pray continue with your cross-examination.
MB. GOUDY: Thank you, your honor. Mr. Cogburn, did you know the late Dub Wharton, brother to the defendant, Odus Wharton?
MB. COGBURN: I had to shoot him in self-defense last April in the Going Snake District of the Cherokee Nation.
MR. GOUDY: How did that come about?
MR. COGBURN: I was trying to serve a warrant on him for selling ardent spirits to the Cherokees. It was not the first one. He come at me with a kingbolt and said, “Rooster, I am going to punch that other eye out.” I defended myself.
MR. GOUDY: He was armed with nothing more than a kingbolt from a wagon tongue?
MB. COGBURN: I didn’t know what else he had. I saw he had that. I have seen men badly tore up with things no bigger than a kingbolt.
MB. GOUDY: Were you yourself armed?
MB. COGBURN: Yes sir. I had a hand gun.
MR. GOUDY: What kind of hand gun?
MB. COGBURN: A forty-four Colt’s revolver.
MR. GOUDY: Is it not true that you walked in upon him in the dead of night with that revolver in your hand and gave him no warning?
MR. COGBURN: I had pulled it, yes sir.
MB. GOUDY: Was the weapon loaded and cocked?
MR. COGBURN: Yes sir.
MR. GOUDY: Were you holding it behind you or in any way concealing it?
MR. COGBURN: No sir.
MR. GOUDY: Are you saying that Dub Wharton advanced into the muzzle of that cocked revolver with nothing more than a small piece of iron in his hand?
MR. COGBURN: That was the way of it.
MR. GOUDY: It is passing strange. Now, is it not true that on November second you appeared before Aaron Wharton and his two sons in a similar menacing manner, which is to say, you sprang upon them from cover with that same deadly six-shot revolver in your hand?
MR. COGBURN: I always try to be ready.
MR. GOUDY: The gun was pulled and ready in your hand?
MR. COGBURN: Yes sir.
MR. GOUDY: Loaded and cocked?
MR, COGBURN: If it ain’t loaded and cocked it will not shoot.
MR. GOUDY: Just answer my questions if you please.
MR. COGBURN: That one does not make any sense.
JUDGE PARKER: Do not bandy words with counsel, Mr. Cogburn.
MR. COGBURN: Yes sir.
MR. GOUDY: Mr. Cogburn, I now direct your attention back to that scene on the creek bank. It is near dusk. Mr. Aaron Wharton and his two surviving sons are going about their lawful business, secure on their own property. They are butchering a hog so that they might have a little meat for their table—
MR. COGBURN: Them was stolen hogs. That farm belongs to the Wharton squaw, Minnie Wharton.
MR. GOUDY: Your honor, will you instruct this witness to keep silent until he is asked a question?
JUDGE PARKER: Yes, and I will instruct you to start asking questions so that he may respond with answers.
MR. GOUDY: I am sorry, your honor. All right. Mr. Wharton and his sons are on the creek bank. Suddenly, out of the brake, spring two men with revolvers at the ready—
MR. BARLOW: An objection.
JUDGE PARKER: The objection has merit. Mr. Goudy, I have been extremely indulgent. I am going to permit you to continue this line of questioning but I must insist that the cross-examination take the form of questions and answers instead of dramatic soliloquies. And I will caution you that this had best lead to something substantial and fairly soon.
MR. GOUDY: Thank you, your honor. If the court will bear with me for a time. My client has expressed fears about the severity of this court but I have reassured him that no man in this noble Republic loves truth and justice and mercy more than Judge Isaac Parker—
JUDGE PARKER: You are out of order, Mr. Goudy.
MR. GOUDY: Yes sir. All right. Now. Mr. Cogburn, when you and Marshal Potter sprang from the brush, what was Aaron Wharton’s reaction on seeing you?
MR. COGBURN: He picked up a ax and commenced to cussing us.
MR. GOUDY: An instinctive reflex against a sudden danger. Was that the nature of the move?
MR. COGBURN: I don’t know what that means.
MR. GOUDY: You would not have made such a move yourself?
MR. COGBURN: If it was me and Potter with the drop I would have done what I was told.
MR. GOUDY: Yes, exactly, you and Potter. We can agree that the Whartons were in peril of their lives. All right. Let us go back to yet an earlier scene, at the Spotted-Gourd home, around the wagon. Who was in charge of that wagon?
MR. COGBURN: Deputy Marshal Schmidt.
MR. GOUDY: He did not want you to go to the Wharton place, did he?
MR. COGBURN: We talked about it some and he agreed Potter and me should go.
MR. GOUDY: But at first he did not want you to go, did he, knowing there was bad blood between you and the Whartons?
MR. COGBURN: He must have wanted me to go or he would not have sent me.
MR. GOUDY: You had to persuade him, did you not?
MR. COGBURN: I knowed the Whartons and I was afraid somebody would get killed going up against them.
MR. GOUDY: As it turned out, how many were killed?
MR. COGBURN: Three. But the Whartons did not get away. It could have been worse.
MR. GOUDY: Yes, you might have been killed yourself.
MR. COGBURN: You mistake my meaning. Three murdering thieves might have got loose and gone to kill somebody else. But you are right that I might have been killed myself. It was mighty close at that and it is no light matter to me.
MR. GOUDY: Nor to me. You are truly one of nature’s survivors, Mr. Cogburn, and I do not make light of your gift. I believe you testified that you backed away from Aaron Wharton.
MR. COGBURN: That is right.
MR. GOUDY: You were backing away?
MR. COGBURN: Yes sir. He had that ax raised.
MR. GOUDY: Which direction were you going?
MR. COGBURN: I always go backwards when I am backing up.
MR. GOUDY: I appreciate the humor of that remark. Aaron Wharton was standing by the wash pot when you arrived?
MR. COGBURN: It was more like squatting. He was stoking up the fire under the pot.
MR. GOUDY: And where was the ax?
MR. COGBURN: Right there at his hand.
MR. GOUDY: Now you say you had a cocked revolver clearly visible in your hand and yet he picked up that ax and advanced upon you, somewhat in the manner of Dub Wharton with that nail or rolled-up paper or whatever it was in his hand?
MR. COGBURN: Yes sir. Commenced to cussing and laying about with threats.
MR. GOUDY: And you were backing away? You were moving away from the direction of the wash pot?
MR. COGBURN: Yes sir.
MR. GOUDY: How far did you back up before the shooting started?
MR. COGBURN: About seven or eight steps.
MR. GOUDY: Meaning Aaron Wharton advanced on you about the same distance, some seven or eight steps?
MR. COGBURN: Something like that.
MR. GOUDY: What would that be? About sixteen feet?
MR. COGBURN: Something like that.
MR. GOUDY: Will you explain to the jury why his body was found immediately by the wash pot with one arm in the fire, his sleeve and hand smoldering?
MR. COGBURN: I don’t think that is where he was.
MR. GOUDY: Did you move the body after you had shot him?
MR. COGBURN: No sir.
MR. GOUDY: You did not drag his body back to the fire?
MR. COGBURN: No sir. I don’t think that is where he was.
MR. GOUDY: Two witnesses who arrived on the scene moments after the shooting will testify to the location of the body. You don’t remember moving the body?
MR. COGBURN: If that is where he was I might have moved him. I don’t remember it.
MR. GOUDY: Why did you place the upper part of his body in the fire?
MR. COGBURN: Well, I didn’t do it.