A Trial for Murder


IT is court day in Winfield. Most of the people for miles around have come down out of these West Virginia mountains to see the circuit-riding judge from Huntington administer justice as the law prescribes. The morning session has just ended. As the crowd files out of the courtroom Gene Mottlesey, of Charleston, who is with me in the Fitzmaurice case, pulls me aside. ‘You’ve got to do something,’says he, ’with this bird Fitzmaurice. His wife has been in to see him, and he’s changed his mind.'

This is news. Fitzmaurice is accused of murder. A dozen witnesses saw him walk into Twombley’s Restaurant with a gun in his hand and shoot Jep Toothman. People in his home community know why he did it, because the affair between Jep Toothman and Fitz’s wife was a neighborhood scandal. On the day of the fatal shooting Fitz learned of his wife’s infidelity for the first time. Now, because his wife does not wish her name to be besmirched in open court, Fitz has decided to keep silent.

‘Let’s talk to her,’ say I.

We find Mrs. Fitz at the jail talking to her husband. She is a tall, blonde, handsome woman in her late twenties. It is easy to see why she forsook Fitz for Jep Toothman. Fitz is small, dark, and not too brainy. They married young, have three children.

The jailer lets us use the hospital room for a conference, and we lead both Mr. and Mrs. Fitz thither. Mr. Fitz has the stolid look of the lamb going forth to the slaughter, but Mrs. Fitz is plainly fidgety and nervous.

‘Now’ say I, when the door is closed, ‘what is this business about keeping the Toothman affair quiet?’

Fitz and his wife glance at each other. Mrs. Fitz is on the verge of tears.

‘I was just telling Fitz,’ says she, ‘that we ought to think of the children. Think what it means to them to have all that brought out in court.’

‘Yes,’ says Fitz, ‘think of it.'

I think of it. There are some other things I think of at the same time, but this is not the time or the place to mention them.

‘Let’s get down to the essentials,’ say I. ‘Toothman is dead. It may be regrettable, but nothing that you or I can do will bring him back again. As a result of that death we have a living problem of our own. The first thing I should like to know in formulating our programme is this. In case you should come clear, Fitz, what do you intend to do? Will you go back to living with your wife?’

Fitz looks at his wife before answering. ‘I will,’says he, ‘if she wants me to.’

‘ How about you?’

Mrs. Fitz may be a spoiled woman, but she is not essentially selfish. ‘I suppose,’says she, ‘we ought to live together for the sake of the children.’

‘The way things stand now you would like to have Fitz back?’


‘Then I must inform you, Mrs. Fitzmaurice, that if we withhold this evidence at the trial the chances are that none of us will ever see your husband again. They will hang him at Moundsville. You spoke a while ago of what it means to the children to know the disgrace of their mother. It is not exactly an honor to be the offspring of a parent hanged by the State.’

The shaft goes home. She covers her face with her hands, and starts sobbing. Fitz likewise melts into tears — more, I think, because he shares her suffering than because he fears death. Watching him, I cannot imagine his killing a human being. Nothing in the world but the thought of losing this idolized woman would have driven him to it.

‘This is your opportunity, Mrs. Fitzmaurice, to do at least one unselfish act.’

Fitz’s eyes blaze. ‘There ain’t no use of that,’ says he.

‘Shut up,’ says Mottlesey.

‘If only I did n’t have to take the stand,’ says Mrs. Fitz, ‘and admit everything. You can’t imagine what that means to a woman.’

There is something to that. Mottlesey and I exchange glances.

‘Let her go,’ says Mottlesey.

‘It is n’t really necessary for you to testify,’ say I. ‘There are plenty of other witnesses to prove the relationship between you and Toothman. I shall explain to the court that you are overwrought and indisposed, which is the truth. Go on home and get the kids ready. We’ll try to have him back to you by bedtime.’

‘Oh, if you only will!’ says she. ‘Somehow I feel that there is happiness ahead for us yet.’

As we leave she puts her arm about Fitz’s neck, and kisses him tenderly.

My partner is waiting with a sandwich and a cup of coffee, now cold, for each of us. Mottlesey and I go into the private office to make the final preparations for the trial. In a few minutes the bell rings, and court is on again.


‘The first case,’ says the judge, ‘is the case of State versus Fitzmaurice. Is the State ready?’

‘Ready, your honor,’ says Hathaway, the assistant prosecutor.


Fitz at that moment is entering the courtroom in the custody of the sheriff.

‘Ready, your honor.’

‘Call the jury.’

The clerk glances at a list of names, and calls loudly.

‘R. L. Masters.’

An ancient, red-faced farmer, with a drooping white moustache, separates himself from the audience and moves sedately to the jury box.

‘J. R. Wieman.’

There are twenty jurors in the panel, from which twelve will be selected eventually. To me the jury represents a cross section of Putnam County public opinion. It is unlettered and untamed, in the sense that city people are tamed, but through it runs a deep, ingrained sense of Mosaic justice. Charles Francis Potter, in The Story of Religion, says: ‘Of all human beings the one who has most influenced the others is Moses. ... It may be that Mosaic prohibitions will eventually be replaced by the spiritual persuasions of Christianity. It may be that capital punishment, which says, “Whoso sheddeth man’s blood, by man shall his blood be shed,” will some day be superseded by a less vindictive justice. A careful inquiry must reveal, however, that as yet “eye for eye and tooth for tooth” is the guiding spirit of more existing legislation than is inspired by the principles of the Sermon on the Mount.’

Truer words were never spoken, particularly of Putnam County juries; yet the law of Moses sometimes sanctions the shedding of blood. Stronger even than the commandment, ‘Thou shalt not kill,’ is that other commandment, ‘Thou shalt not commit adultery.’

The twenty are sworn on their voir dire. The judge puts the customary interrogatories.

‘Were any of you members of the Grand Jury that found the indictment against this defendant?’

‘Are any of you related by blood or marriage to the defendant, Fitzmaurice?'

‘Are any of you conscious of any prejudice or bias, or do you have any personal knowledge of the facts in this case, that would make it difficult for you to render a fair and just verdict in this cause?’

None of the jurymen answer. The judge turns to the lawyers.

‘Are there any further questions by the attorneys for either side?’

There are none.

‘Strike the jury.’

Striking the jury consists in striking off eight of the twenty so as to reduce the panel to twelve. Under the law in felony cases the defendant is entitled to strike six and the State two. It is a process requiring a good deal of delicate adjustment on the part of an attorney. The problem is to look twenty men in the face and try to determine ahead of time which twelve are likely to be friendly to his client. In a sense it is an excursion into mental telepathy.

We begin, of course, by consulting the defendant, who sits between and just behind us, to ascertain if there are men on the jury with whom he is acquainted personally. If so, we are interested in the personal relationship between the defendant and the juryman. Sometimes the presence of an acquaintance on the jury is helpful; sometimes just the opposite. As it happens, Fitzmaurice knows none of the jurymen.

Some of them are known to me, however, so that from personal knowledge I am able to make a forecast of how they will probably react to the facts of this case. As a rule I do not strike my own clients, on the theory that a man who seeks my advice out of court will be disposed to listen to me in court, and conversely I do strike those against whom I have prosecuted and defended cases heretofore — particularly if the cases went against them. To the layman this confession may possibly seem unethical, but it must be remembered that a man on trial for his life has the legal right to every possible safeguard and that the world has not yet reached the state of perfection wherein jurymen are free from personal animosities and prejudices.

The striking is done on a sheet of paper containing the penciled names of the twenty jurymen. In striking we draw a line through a name and beside it write one of the symbols D. 1, D. 2, and so forth, down to D. 6. ‘D.’ stands for defendant; the numeral signifies the order of striking. When the State strikes, S. 1 and S. 2 are written. In this manner the record of the striking is preserved.

When the striking is completed, the clerk takes the paper and announces, ‘All those whose names are called, stand aside.’

He calls the names of the eight men struck. The new panel is sworn to render a just verdict according to the evidence. Then the witnesses for each side are sworn and sent to the witness rooms. The case has proceeded to the opening statements.


Under West Virginia law the opening statements are theoretically mere statements of what each side expects to prove. Arguments are not permitted, although it is sometimes difficult to determine exactly what is argument and what is plain statement of fact. Some lawyers get a lot of argument into the opening statement. The State opens first.

The State is represented by the prosecuting attorney, an aged man of eighty, and his assistant. Properly speaking, the assistant is the prosecuting attorney, because the old man, except for occasional flashes of oratory reminiscent of the fiery days of his youth, is quite useless. Off and on he has been prosecuting attorney of this county for fifty years.

The State, says Hathaway, expects to prove the shooting at Twombley’s Restaurant, together with the details surrounding it, the deliberation and premeditation necessary to a conviction for murder, and the motive for the crime. It will ask for a verdict of murder in the first degree. Hathaway belongs to that new school of lawyers who speak briefly and much to the point.

Mottlesey replies by admitting the shooting, but sketches the general plan of defense. We shall prove that the prisoner is a man highly respected in his own community as one who works hard and tries to give his family advantages that he never had himself. He is foreman of a section gang for the railroad, a dutiful husband and father. Until the unfortunate incident which brings him to the bar of this court he has never been accused of a crime of any kind. We expect to prove that the deceased Jep Toothman sealed his own fate by defiling the marriage bed of this defendant. The sordid and revealing details of Jep Toothman’s affair with the wife of the prisoner may not be discussed before the jury at this time, but in their proper place the jury shall hear them. The crime of which this prisoner stands accused, gentlemen, is one so natural in its commission and so human in its consequences that when the jury has heard all the evidence it will perhaps agree with the majority of those familiar with the facts that the homicide was justifiable.

Mottlesey perhaps descends to argument. It is difficult not to.

First witness for the State is the doctor who performed the post-mortem examination. His evidence is perfunctory, admitted to prove the cause of death. The course of the bullet is gone into with some particularity for the sake of the record. The doctor also testifies as to the place where the body lay, and the location of Twombley’s Restaurant with reference to county and state. This is necessary to prove the jurisdiction of the court. Mottlesey, our rapid-fire examiner, waives cross-examination, since we do not deny either the death or the jurisdiction.

While the doctor testifies, I make notes of everything he says on a pad of yellow paper. In this case Mottlesey does the talking, while I must think of the record in the event an appeal is taken. Every now and then I whisper in Mottlesey’s ear — for the sake of the record.

The State then produces witness after witness to prove what took place at Twombley’s Restaurant. All these tell their stories straightforwardly and without much interruption.


It is only when the shooting is disposed of that the trial arrives at what the lawyers call a crisis. This happens when a little bald-headed man, who has worked for Fitzmaurice on the section gang, takes the stand. He testifies that a week before the shooting occurred Fitz and he were standing near each other at a bend of the railroad when Toothman’s car went by on the highway above. Fitz then said, the witness testifies, ‘You see that guy yonder? I’m goin’ to kill him one of these days.’

That starts the fireworks. If the jury believes this witness, it is deliberate and premeditated murder.

Pressed for details, the witness states that Fitz added that Toothman had broken up his home — the motive for the crime.

Fortunately we can prove by the witness himself that Fitzmaurice fired him from the section gang three days after this alleged conversation took place. That provides a possible motive for false testifying. Mottlesey makes the most of it. The bald-headed man is subjected to a most scathing grilling lasting about an hour. The air is filled with objections and counterobjections. Mottlesey and the assistant prosecutor face each other like two gladiators ready to rend each other limb from limb. Part of this is stage play for the benefit of the spectators and part is genuine emotion. It is unbelievable how worked up a lawyer may become in a criminal trial. Mottlesey succeeds in casting some doubt upon the veracity of the witness, but in the main the baldheaded man sticks to his story.

This scene is nearly always duplicated in criminal trials and often in civil actions. Somehow or other a witness is nearly always found to supply the missing link in the evidence. This phenomenon has often intrigued me. Even allowing for natural discrepancies that arise because no two persons see the same thing alike, there must be a good deal of plain, outright lying in our courts, and not all of it is done by the defendant whose liberty may be at stake.

The difficulty in a court proceeding is to determine which witness is telling the truth and which the falsehood. In the present instance it is by no means certain that the bald-headed man is lying; yet, if he is not lying, Fitzmaurice premeditated this murder, and that is hardly consonant with what we know of his character. It is a problem.

There are other witnesses to prove the motive and the deliberation, but none of them are as important as the bald-headed man. As the minutes tick into hours the crowd stirs restlessly in the stuffy courtroom and the jury assumes that patient air of men who sit and listen because they have to.

At length the State rests.

It is now five o’clock and the judge orders a fifteen-minute recess. The sheriff takes the jury outside. Mottlesey and I lead Fitz into a deserted witness room. We take stock of the situation.

The State has already paved the way for the defense by proving all the facts surrounding the shooting. We deny none of them except the statement of one witness, who testified that Fitz shouted as he came into the restaurant, ‘Well, I’ve found you at last.’ That statement, if true, would indicate that Fitz had been looking for Toothman for some time. But it is easy to prove that no other witness heard him say anything of the kind and the statement is at variance with the general facts and circumstances surrounding the shooting. The really damaging testimony, we agree, is that of the bald-headed man.

We instruct Fitz again to tell his story straightforwardly, exactly the way it happened, concealing nothing. Unless the cross-examination is exhaustive, we ought to finish our side in an hour and a half.


The gavel falls; we are back in the courtroom. Fitz himself is the first witness called; the courtroom stills to the silence of the tomb. Fitz’s appearance is in his favor, for he looks like the gentlest of men, but he is not what the lawyers call a ‘strong’ witness — a witness who thrusts out his chin, says his say, and sticks to it. Fitz feels inferior; he speaks haltingly and low.

Nevertheless, with Mottlesey’s help he gets through the story. The jury learns of his early boyhood and extreme poverty, of his first jobs wheeling sawdust and driving a bank mule, of his starting with the railroad as a section hand and his gradual elevation to section foreman. They hear of his marriage, his wife, his babies; of his little home that is now paid for; and finally they hear of Jep Toothman.

Jep Toothman was also married. At one lime the Fitzmaurices and the Toothmans were neighbors and friends. Jep was night foreman at the Black Beauty Mine, where he worked every night but Sunday. The families visited each other frequently. After a while the Toothmans moved some five miles up the river. That was five years ago.

During those five years Fitz never saw anything to lead him to suspect that all was not well at home. Sometimes when he went to work in the morning he saw Jep coming down the road in his car. It was Fitz’s custom each Sunday night to run up to his mother’s home in Kanawha County on his railroad motor car, leaving his wife and the children at home. His wife occasionally mentioned that Jep had been there during his absence, but he thought nothing of that.

Then one morning he found a letter. He does n’t know how it got there, but he happened to walk through the garden one morning before starting to work and found it. It read: —

Get off to-morrow night if you can. F. is going to Charleston.

That was the letter. No signature, but the handwriting of his wife. It puzzled him, made him suspicious; he had gone to Charleston three nights before. Then he consulted a friend, and the friend told him.

The friend advised him to say nothing about it, but to keep watch and find out for himself. He started to work in his railroad motor car. Near his house the railroad and the highway run close together. As he was leaving, an automobile appeared on the highway. It was Jep Toothman’s car.

He ran the gasoline car around a curve and lifted it off the tracks. Then he climbed the bank to the woods and approached his home from the rear. He saw Jep Toothman and Mrs. Fitzmaurice talking together on the side porch. The children, except the baby, had gone to school. He wanted to hear what they were talking about and managed to creep up to his own coal house unnoticed. Then he remembered something. In that coal house was a loaded revolver, placed there to keep it safe from the children. He reached up above the doorway and took it in his hand. Again he listened, but could hear nothing. He edged over to the window of the coal house, saw them plainly talking together. They were only about a hundred feet away, but a train was passing. When the train had passed they stopped talking.

Fitzmaurice felt foolish, so he said, ‘Well, are you havin’ a good time down there?’

Jep Toothman jumped as if he had been shot. He started running toward Twombley’s Restaurant. When Fitz saw Jep running away something snapped inside him; he saw red, went crazy. He fired and missed, ran out of the coal house, fired again. Jep got to Twombley’s Restaurant, and hid behind the ice box. Fitz laughed, for he knew Jep would hide behind the ice box. There were people in the restaurant, but that did not trouble him. Hie stepped in quietly, walked over to the ice box, and drilled Jep Toothman through the heart.

The jury is impressed. The assistant prosecutor tries to break down Fitz’s story with little success. If Fitz were lying, it would be easy to trap him, but he is telling the truth. In his faltering way, he sticks to his story.

There are other witnesses to prove that Jep Toothman was a frequent caller at Fitz’s home when Fitz was absent. Three witnesses saw him there at night. The affair between Toothman and Fitz’s wife was neighborhood talk, but nobody told Fitz because it was nobody’s business.

It is 6.30. The defense rests.

‘Court is adjourned,’ says the judge, ‘until 7.15. Let me have your instructions, gentlemen, and meet me here at seven.’


Fitz goes back to jail, while Mottlesey and I eat from the jailer’s private table.

‘If Fitz only had a little more nerve,’ says Mottlesey, ’I’d feel better about him. How does it look to you?'

‘Remember the old saying,’ say I. ‘Only God knows what a petit jury will do.’

‘True, too,’ says Mottlesey.

We finish our repast and hasten back to the courthouse. The assistant prosecutor and the judge are there already.

‘Now, as to State’s Instruction Number 4,’ says the judge, ‘it seems to me, Hathaway, that you go too far in defining the elements of murder. Where did you get this instruction, anyway?’

‘Took it direct from Lee’s Criminal Trial in the Virginias,' says Hathaway. ‘It was upheld in the case of State v. Abbot, 64 W. Va. 412.’

‘Oh, all right,’ growls the judge, ‘but just the same it does n’t sound right to me.’

He writes ‘Given’ on the instruction and passes on to the others. Altogether the State has prepared seven instructions, on six of which the Judge writes ‘Given.’ On the seventh he writes ‘Not Given.’

‘Number 6 covers the same ground as Number 3,’ says the judge. ’I’m refusing it.’

‘All right,’ says Hathaway. ‘Exception, of course.’

The court turns to the instructions for the defense.

‘Number 1 O.K.,’ says he, reading rapidly. ‘Yes, here’s the one. Number 2. This instruction is incomplete. It ought to read “in execution of which the homicide was committed."'

He hands me the instruction, and points out why the amendment is necessary. What he says would be rank repetition to a writer, but that is because writers depend a great deal upon suggestion. Suggestion has no place in a legal document. Either a statement is there or it is n’t. The judge is right. We insert the amendment.

The judge leafs through the other instructions hurriedly, writing ’Given’ at the foot of each instruction.

‘Well,’says he, ‘I see the jury is back. Let’s get started.'

The jury, having dined and caught a breath of fresh air, has lost the drowsy look that characterized it in the late afternoon. The gavel falls. The judge rises to read the instructions.

’The court instructs the jury that one of five verdicts may be found under the indictment in this case, if the evidence so warrant: (1) murder in the first degree, (2) murder in the second degree, (3) voluntary manslaughter, (4) involuntary manslaughter, and (5) not guilty.

‘The court further instructs the jury that murder in the first degree is when one person kills another person unlawfully, willfully, maliciously, deliberately, and premeditatedly; that murder in the second degree is when one person kills another unlawfully and maliciously, but not deliberately; that voluntary manslaughter is when one person unlawfully kills another person without malice, but under sudden excitement and heat of passion; that involuntary manslaughter is where one person while engaged in an unlawful act unintentionally causes the death of another person, or when engaged in a lawful act negligently causes the death of another person.

‘The court further instructs the jury that murder in the first degree is punishable by death, or confinement in the penitentiary of this State for life, as the jury shall find in their verdict; that murder in the second degree is punishable by confinement in the penitentiary of this State not less than five nor more than eighteen years in the discretion of the court; that voluntary manslaughter is punishable by confinement in the penitentiary of this State not less than one nor more than five years in the discretion of the court; that involuntary manslaughter is a misdemeanor and punishable by imprisonment in the county jail, or fine, or by both, in the discretion of the court.'

This is State’s Instruction Number 1, always given in murder cases. The other instructions, both for the State and for the defendant, deal with various phases of the crime of murder such as malice, cooling time, deliberation. It takes the judge exactly eleven minutes to instruct the jury.

‘How much time will you have, gentlemen?' says the judge, referring to the final arguments.

It is customary to agree on this beforehand. The mention of time for the closing arguments brings the old prosecutor to life for the first, time. In summing up a case before a jury the old man fancies he still has the vigor of his youth.

‘The State can finish in two hours, your honor,’says he, implying by his tone that two hours is an extremely short time in which to argue a case before a jury.

‘An hour is enough for us,’says Mottlesey.

‘Yes,’says the assistant prosecutor, ‘it seems to me an hour ought to be enough for each side. We don’t want to keep the jury here all night.'

The old prosecuting attorney looks hurt. These new lawyers are beyond him.

‘It is agreed, then,’says the judge, ‘that each side is to have an hour. That means thirty minutes to each speaker. Very well, begin.'


This is the part of the proceedings that the spectators have waited for. The courthouse is filled to capacity. Not a sound or a movement can be detected anywhere as the aged prosecutor rises to address the jury. It means very little to me, however, because I have heard it all before, and anyhow I am suddenly overcome with weariness. For hours on end I have been awake, tense, driving myself forward. Now, when I relax, exhaustion fetters me. I rise and stagger to a deserted witness room. There I bury my face in my arms on the table. In thirty seconds I am fast asleep.

The next thing I know, Mottlesey is there shaking me. ‘Wake up,’ says he. ‘The old man is just finishing. You’re next.’

This is a nuisance. I am not one of your spread-eagle orators who quickly reduce the judge, the jury, and the courtroom to tears. Mottlesey is the man for you there. I should prefer to dispense with this part of the proceedings altogether, but it is customary for all the attorneys on each side to appear in the summing up. Well, here we go. The jury is waiting.

‘Gentlemen of the jury: The regrettable incident that brings us together on this occasion has now receded into the dim shadows of the past. Whatever we do here, we cannot circumvent Nature’s irrevocable law. We cannot bring back to life that which is dead. Our problem is to sit in judgment upon this prisoner at the bar, to determine from the mass of evidence before us his guilt or his innocence in the eyes of the law.’

They listen, not with rapt faces as they do when Mottlesey is speaking, but attentively. They are thinking, ‘This is a nice young fellow. It’s a pity he can’t express himself better.’ Well, it’s some consolation to know that people think you a nice fellow.

Mottlesey runs true to form: ‘The gentle Nazarene crucified on Calvary’s cross to redeem the world from sin.’ I could say those same words without producing the effect that Mottlesey does. Somehow you see the picture of the Crucifixion, Jesus between the thieves, the crown of thorns on His brow, blood streaming from His wounded side. And somehow — such is the spell of the speaker — you see Fitzmaurice in His place. Crucified!

The address is something like the sermon of a tent-meeting evangelist and something like a written decision of the Supreme Court of Appeals, the latter because Mottlesey above all else is a lawyer and deals with facts. His emotional outbursts are all the more effective because they are bolstered up by logic and reason.

There are tears in the courtroom before Mottlesey finishes; even the jurymen look a little bleary-eyed. And there are flashes of hope, too, glimpses of the Heaven to come that somehow take men out of themselves and lift them into the mystic world of dreams. His voice soothes like a breath of music; his speech is a tonic for the soul.

After Mottlesey the assistant prosecutor sounds stale and dry. The courtroom comes down to earth and the details of a murder trial.

At 9.38 the case goes to the jury. Fully three fourths of the spectators leave; the others remain in the hope that the jury will reach an early verdict. The sheriff takes the prisoner to the jail house. All the lawyers present, together with the judge, congregate in the other witness room. I am weary to the point of exhaustion. I have done all I could for Fitz; his fate now rests in the lap of the gods. Automatically my mind turns to my next case — one of the strangest I have ever encountered. I rub my tired eyes and little spots of light dance before me, and for a moment it seems as if I were looking into the wild, Heavenlit face of the Prophet of Ammon.

(Next month, ‘ The Prophet of Ammon’)