The courtroom was crowded. Everyone in Dodge City treated criminal trials as a form of entertainment, theater with a lively cast of actors. Today the spectators were there to see a horse thief who was legend.
Dutch Henry Borne stole horses on a mythical scale. He allegedly operated out of No Man’s Land, a sanctuary for rogues beyond the reach of the law. His gang of brigands was believed to have stolen over a thousand horses just in the last year. He had no equal on the western plains.
The problem for the prosecution was to prove it. Dutch Henry, despite his vaunted reputation, had never actually been caught stealing horses. Nor had he been charged until now, much less convicted of a crime most cattlemen considered a hanging offense. He was a will-o’-the-wisp, evading the law and eluding capture with maddening ease. Today was the first time he’d ever been brought to trial.
The spectator benches were packed, the walls lined with people standing at the back of the room. Nick Klaine, editor of the Dodge City Times, was seated in the first pew behind the prosecution table. His counterpart Dan Frost of the Ford County Globe, was on the opposite side of the aisle, behind the defense table. Fireworks were expected, for the opposing lawyers were bitter political rivals. Dutch Henry was the catalyst for the best show in town.
Mike Sutton, the county attorney, was seated at the prosecution table. He was a man of slight stature, scarcely five feet six, with a neatly trimmed mustache. His slim build and short frame belied a formidable legal mind combined with overweening ambition. A northerner by birth, he was a rabid Republican.
Across the aisle was Harry Gryden, counsel for the defense. Tall and dapper, with a mane of wavy hair and a full mustache, he was attired in a vested suit. His clients included horse thieves, murderers, and whorehouse madams, and among the criminal element he was the lawyer of choice. A southerner to the core, he was a die-hard Democrat.
The adversarial relationship between Sutton and Gryden was one of long standing. The date on the court docket was January 24, 1878, and they had been battling matters of law for several years. Sutton saw the future of Dodge City as a sober and settled community, governed by sober citizens. Gryden liked to think of it as the Bibulous Babylon of the Frontier, a town where sin and sinners led the parade. The men detested each other with stubborn pride.
The crowd murmured as a door opened near the defense table. Bat Masterson, the sheriff of Ford County, escorted Dutch Henry Borne into the courtroom. Masterson unlocked the manacles from Borne’s wrists, his expression stolid, and assumed a watchful position by the wall. Borne seated himself in an empty chair beside Gryden.
“Bat’s a little edgy,” Borne said with an amused smile. “Figures I’ll try to escape again.”
“Dutch, you’ve no need to escape,” Gryden said confidently. “You will be a free man by this afternoon.”
“You sound mighty sure of yourself.”
“I am indeed.”
The bailiff’s voice brought the crowd to their feet. A door opened at the left rear of the courtroom and Judge Jeremiah Strang mounted the steps to the bench. The Ninth District Court of Western Kansas was his domain, and he ruled it with casual wit and an iron fist. He peered down at Sutton and Gryden.
“Are you gentlemen prepared to proceed?”
Sutton nodded. “The prosecution is ready, Your Honor.”
“The defense as well,” Gryden added. “In fact, never more ready, Judge.”
Strang stared at him a moment, then motioned to the bailiff. “Bring in the jury.”
Twelve men filed through a door at the rear of the courtroom. All of yesterday had been devoted to jury selection, and Gryden had demonstrated a talent for weeding out potential jurors who posed a threat to his client. He disqualified ranchers by provoking admissions of bias against horse thieves in general and Dutch Henry in particular.
Farmers and workingmen, who seldom experienced livestock theft, were strenuously opposed by Sutton. After both sides had exhausted their preemptive challenges, Gryden was the clear winner. The jury was composed of seven farmers and five townsmen.
Judge Strang offered the jurors a benign smile, waiting until they were settled in their chairs. Then he nodded to the prosecutor. “Call your first witness, Mr. Sutton.”
Carl Benson was called and sworn in by the bailiff. A rancher, with a large spread fifteen miles southwest of Dodge City, Benson was a burly man in high-topped boots. Sutton approached the witness stand and quickly took him through the preliminaries. The lawyer established that Benson’s outfit, with a thousand head of cattle, was located on Elm Creek.
“Now then,” Sutton said, “I direct your attention to November 21 last year. Would you tell the court what happened?”
“Horse thieves raided us,” Benson replied dourly. “Sneaked in late at night when ever’body was asleep. Got off with nearabouts thirty head.”
Sutton led him through the events of the following day. Benson and his cowhands had tracked the gang west along the Cimarron River and overtaken them late in the afternoon. A gunfight ensued, resulting in the wounding and capture of one of the gang members. The others fled into the wilds of Indian Territory.
“The man you captured,” Sutton prompted. “Did he make a statement?”
“Shore did,” Benson said with a sly smile. “Told us him and his bunch worked for Dutch Henry Borne.”
“Did he say where they were headquartered?”
“Yessir, he claimed they operated out of No Man’s Land. Said there was four gangs workin’ outta there. All of them run by Dutch Henry.”
“What did you do then?”
“Why, I rode straightaway here to town. Saw Sheriff Masterson and swore out a warrant for Dutch Henry.”
“No further questions,” Sutton said. “Your witness, Mr. Gryden.”
Harry Gryden walked to the jury box. He turned to Benson with a bemused expression. “This desperado you captured, what was his name?”
“Roy Suggs, leastways that’s what he said.”
“And why isn’t Mr. Suggs here to speak for himself?”
“’Cause he’s dead,” Benson announced. “We was ridin’ back to the ranch, and I guess he was wounded worse’n we figgered. Fell off his horse and broke his neck.”
“Actually”---Gryden looked at the jurors with a knowing smile---“Mr. Suggs fell off his horse and broke his neck when you hanged him, isn’t that true?”
“No, by golly, that ain’t true! Happened just like I said.”
“So we have only your word for the alleged confession of Mr. Suggs. Correct?”
“I reckon my men could vouch for what was said. They heard it clear as me.”
“But where are they?” Gryden feigned a close inspection of the courtroom. “Oh, of course, the prosecution declined to subpoena them as witnesses. Is that because they would testify that you hanged Roy Suggs?”
Benson flushed with anger. “I done told you how it was.”
“So we have neither Roy Suggs nor your men to corroborate your story. We have only the word of a man who resorts to lynch law.”
“Objection!” Sutton exclaimed. “Counsel is badgering the witness.”
“No, Mr. Sutton, I object.” Gryden walked away, shaking his head. “You’ve brought a perjurer to the stand in an effort to railroad my client. Your tactics insult the good men of the jury.”
“Enough, Mr. Gryden,” Judge Strang ordered. “I will not tolerate such remarks in my court.”
“No offense intended, Your Honor.”
Bat Masterson was next called to the stand. Under Sutton’s questioning, Masterson testified that he had arrested Dutch Henry Borne, who was in the Alhambra Saloon and had been taken without incident. Then, on the night of December 4, Borne had escaped from the county jail.
Sutton glanced at the jury. “Hardly the act of an innocent man,” he said. “Tell us, Sheriff, how did the prisoner manage to escape?”
“Picked the lock on his cell door,” Masterson said sheepishly. “The deputy on night guard was asleep, and Borne slipped out. We didn’t know it till the next morning.”
“How did you effect his recapture?”
“I put out an alert of his escape on the telegraph. A couple weeks later I got a wire from the sheriff in Trinidad, Colorado. He’d taken Borne into custody.”
“And you brought him back yourself?”
“Yessir, I did, on New Year’s Day.”
Sutton considered a moment. “What do you know of Mr. Borne’s horse theft ring?”
Masterson explained that No Man’s Land was an expanse of wilderness bordered by Kansas, Texas, Indian Territory, and New Mexico Territory. Every stripe of outlaw found sanctuary there, and even U.S. Marshals dared not venture into the isolated stronghold. The horses stolen by Borne’s gang, once the brands were altered, were sold far away from home ground. Kansas horses in Texas and New Mexico horses in Colorado. It was all but foolproof.
Gryden could have objected on any number of grounds. But he remained silent and allowed Sutton to plow along with conjecture and hearsay. Finally, on cross-examination, Gryden walked forward, thumbs hooked in his vest. He looked at Masterson with a puzzled frown.
“Sheriff, do I understand correctly, you’ve been to No Man’s Land?”
“You understand wrong,” Masterson said. “Lawmen who go there don’t come back. I’m not that dumb.”
“So you haven’t seen this `foolproof’ operation for yourself?”
“No, not personally,”
“Then how do you know it exists?”
“How do they know?”
“There’s no secrets about Dutch Henry and his gang. Word gets around.”
Gryden turned to the bench. “Your Honor, I move to strike Sheriff Masterson’s testimony. Hearsay and blatant speculation are not admissible.”
“Nonsense,” Sutton countered. “The sheriff’s testimony is based on common knowledge. The court, in its discretion, may accept as fact the common knowledge of the public at large.”
Gryden laughed. “Your law books must be different than mine. Good try, but no cigar, Mr. Prosecutor.”
Judge Strang ordered the jury to disregard all testimony regarding the defendant and No Man’s Land. Strang then directed the court stenographer to expunge such testimony from the record. Sutton was fuming, but he had no further witnesses; he grudgingly rested the case for the state. Gryden called only one witness to the stand.
Dutch Henry Borne looked anything but an outlaw. He was ruggedly handsome, with a sweeping mustache, attired in a dark, conservative suit. Gryden, playing to the jury, brought out testimony as to the defendant’s sterling background. Borne was the son of industrious German emigrants who had settled in Pennsylvania. As a young man, he had come West seeking opportunity; after a stint as a buffalo hunter, he had served as a scout under George Armstrong Custer, when the 7th Cavalry was posted in Kansas. Borne’s current occupation was that of a mustanger, a man who captured wild horses and broke them to saddle. He sold livestock wherever he found a market.
“I ask you now,” Gryden said point-blank. “Are you a horse thief?”
“No, I am not,” Borne said earnestly, looking straight at the jury. “Wild horses are my trade, not stolen horses.”
“Nothing more nor less than an honest tradesman. Hardly the Rob Roy of the plains the prosecution would have us believe.”
“Your Honor!” Sutton protested. “Is counsel asking a question or making a closing argument? And who the devil is Rob Roy?”
“A Scottish rogue of ancient times,” Gryden said patiently. “Made famous in Sir Walter Scott’s novel. Pure fiction, Mr. Sutton, as is your case here today.”
The jury was out less than thirty minutes. When they returned, the jury foreman announced the verdict of “not guilty” in a loud voice. The crowd, thoroughly entertained, applauded when Judge Strang ordered the defendant released from custody. Dutch Henry Borne shook Gryden’s hand with a firm grip.
“Thanks, counselor,” he said, smiling broadly. “You pulled the rabbit out of the hat.”
“Don’t get caught again,” Gryden warned him. “I doubt the same defense would work a second time.”
“Dodge City’s seen the last of me. I think I’ll stick close to No Man’s Land.”
“I’d say that’s a wise decision, Dutch.”
Mike Sutton caught Gryden on his way out of the courtroom. The prosecutor’s features were wreathed in a dark scowl.
“Gryden, I deplore your tactics,” he said. “But I have to give credit where credit is due. You suckered me with your ruse about Rob Roy.”
“More than you know, Mr. Sutton.”
“What are you driving at?”
“Sir Walter Scott wrote a novel, but it wasn’t all fiction. He based it on historical fact.”
“Are you saying Rob Roy was real---an actual outlaw?”
“True, blue, and large as life.”
“Just like Dutch Henry....”
Gryden grinned. “Exactly.”
Copyright © 2006 by Winchester Productions, Ltd.