"Call the next case, bailiff," shouted Judge Jackson Davis of Jeff Davis County Texas.
"State of Texas versus Nels Albright," bellowed the bailiff.
"What do we have here, Mr. Bean?" Judge Jackson asked the County Prosecutor as he drew his coat up over his shoulders trying to keep warm in his unheated west Texas courtroom this wintry, blustery cold March morning 1893.
"Your Honor, the Defendant here stole some spurs and a lariat from the Double Trouble Ranch and, in addition, never paid for his room and board at Mrs. Shapiro's boarding house here in town for three days. I have here signed written confessions by the Defendant admitting to both these charges, Your Honor." 'Mean' John Bean, as he was known, was smiling from ear to ear as he handed the judge the confessions.
The judge looked them over then looked up to see who was in his courtroom.
The defendant was broke. That was obvious from his affidavit and appearance. He had no money for an attorney. A public defender had to be appointed for him. Willard Wigleaf was about to get that job.
Attorney Wigleaf, a veteran of many a court battle, was sitting in the back of the courtroom, trying to keep warm, not paying any attention when the call went out.
"Willard, get up here now," squawked Judge Davis.
Attorney Wigleaf got up and answered the judge's beck and call.
"Willard, I'm appointing you to represent this indigent defendant here," the Judge said craning his neck toward Nels Albright. "One Nels Albright from Chicago. Charged with theft."
"Your Honor, remember what you said last time you appointed me counsel for the indigent. After that trial, you said it'd be a cold day in Hell before you ever appointed me as such again."
That was true. Wigleaf had convinced the jury that time that his client was innocent. The Judge knew he was guilty. Everybody in the courtroom knew he was guilty. But somehow Wigleaf had brought the jury to tears with his over-emoted final argument and got his client off. And that's when Judge Davis swore he would never ever again appoint Wigleaf to represent another guilty indigent defendant.
"Well, that's true, Willard, but it is a cold day in Hell this morning and, besides, you're the only other attorney here in the courtroom. So, against my better judgment, I'm appointing you."
The judge blew on his coupled hands trying to warm them and to emphasize that it was indeed a cold day in Hell today. "Your client's looking at a max of five. How's he plead?"
"Not guilty, Your Honor," answered Wigleaf reflexively.
"Very well then," Judge Davis looked at his calendar in front of him. "The matter is set for trial one month from today on the 13th of April at nine a.m. That's it for now, gentlemen. Next case, bailiff."
"What about bail, Your Honor?" spoke up Wigleaf, again automatically.
Judge Davis rolled his eyes. "Mr. Bean, what say you," he said in an obviously irritated voice.
"Bail? Bail, Your Honor? That's ridiculous. The defendant here is a bum, a hobo, unemployed. He came to town here riding the rails. Stowed away on the Santa Fe. He's a definite flight risk, Your Honor. If he's out on bail, he's long gone."
Attorney Wigleaf raised his hand, ready to dispute the prosecutor. "Your Honor—"
"Forget it, Wigleaf. Bean's right. No bail. Take the defendant away, bailiff."
Head down, shoulders slumped, feet shackled, Nels Albright was manhandled toward the door by a big brute of a bailiff.
"I'll see you tomorrow sometime," Wigleaf hollered to his new scrawny, shoddily clothed, youth of a client.
John Bean turned to Wigleaf. "No plea bargain deals this time Willard. I'm asking for the max here, five years."
"You're asking for the max here because those Double Trouble brothers want the max. That's why you're asking for the max, John. They control everything round here, including you. For God's sake, for once in your life, can't you ever give someone a break?"
"The kid already got a break when Big Ed and Big Fred agreed to hire him as a ranch hand and he took advantage of their good nature. Hell the kid probably never worked as a cowboy a day in his life. Probably lied to them about working for that ranch around Dallas somewhere. Hell, he was no cowboy. Look how he's dressed. He's wearing rags. Only one change of clothes in his kit bag and he didn't have any chaps or boots or gloves or a hat like a cowboy wears in it. Anyway, the brothers themselves caught him red handed, pilfering through the tack room on their ranch. No way does he deserve a break. He's going away."
"You just want the McCorkle brothers' support for the upcoming election this fall. That's it, isn't it, John? And you're going to do what they tell you to do to get it. Aren't you?"
John Bean adjusted his horn-rimmed glasses, straightened his tie, pulled down his vest, turned, and left the courtroom in a huff without another word said.
Willard Wigleaf was up against it, to say the least. The confession would stand. He knew that. But he was a veteran of thirty-five years of fighting with prosecutors, long before this young dude, John Bean from back east somewhere, had come wandering along. Bean might be tough, but he didn't know the territory, as they say. Furthermore, old Willard Wigleaf had a bag of legal tools available to him that he had acquired over the years, tools of his trade as he called them, tricks of the trade as others called them, and they didn't include just quoting cases and citing statutes.
Next morning Attorney Wigleaf appeared at the boarding house of Sophie Shapiro.
"Morning, Ma'am," he said with a tip of his hat.
"And good morning to you too, sir," said Mrs.Shapiro, her Russian accent coming through loud and clear.
"Could I speak to you for a few minutes about my client, Nels Albright?"
"Oh, that poor boy," she said, her hands clutching the sides of her head at the mention of his name. "I hope nothing terrible happens to him."
Willard Wigleaf could tell from her facial expressions and from the tone of her voice that Mrs. Shapiro was truly worried about his client. Her motherly instincts were kicking in concerning that boy.
"I didn't care about the money that he owes me," she blurted out. "He promised to pay me from his wages. I was willing to wait, but Mr.Bean said no, I couldn't do that. That I had to sign that complaint he handed me. Oh, I feel so sorry for that poor young man. I pray to God they don't send him to prison." She said all this in a frenzied hysteria as she fluttered back and forth across the room, waving her hands up and down in the air in frustration.
Attorney Wigleaf knew he had to calm her down so he spoke up and said, "So do I, Ma'am, that's why I need your help. Can I count on you?""
"He's mean, that Mr. Bean," said Mrs. Shapiro, oblivious to the question just put before her. "Ooooh he just gets me so upset, so mad." She said all this shaking her head side to side while gritting her teeth and sucking in air. "I don't like that man. I was scared of him. He was such a bully that I was afraid I'd get in trouble if I didn't sign that complaint for him. I'm from Russia, you know," she said. "From the Pale of the Settlement."
Everyone in town knew she was from Russia. Everyone in town knew she was Jewish, a widow. And everyone in town knew she worked hard, saved up her money, and sent her only child, her son, back east to go to college.
"You know, in Russia you dared not defy the Tsar's men. If you did, you disappeared like my father did during one of their pogroms in '84. That's why my husband, Lev—God rest his soul—and I came to this country. To get away from all that. Not to live in fear for your life every day. And now this." She wiped a tear from her eye with her finger. "Sorry," she said, "but whenever I think of the old country, I get so upset."
"Here," said Willard taking a handkerchief from his vest pocket and handing it to her. She's going to make a great witness for us, he thought to himself.
"That poor boy's Jewish too, you know, just like us. His family came from Moravia though. How can I help him?" she asked, straightening herself upright in her chair, wiping her tears away, wanting to get down to business now.
"Well, when I question you, I want you to think of that poor Jewish boy and I want you to think back to your father and all the atrocities of the all pogroms back in Russia."
"But if I do that I'll start crying."
"That's okay. That's what I want. I'll hand you a handkerchief then to wipe away your tears. You take it. Thank me and start sobbing. And whatever you do, don't bring your own handkerchief. I'll hand you mine. Okay? I'll come back at a later time and we'll sit down and discuss all this, and how I want you to testify, how you're to act on the stand, and what I want you to do. We'll go over everything and practice and practice it until we get it right. Okay?"
"I'll do whatever you tell me to do, Mr. Wigleaf. Anything to help that young man. His folks are dead. He's all alone in the world, you know. You just tell me what to do."
"Don't worry, I will, and just trust me on this, Mrs Shapiro. Just trust me, if you want to help this poor boy, and do as I say. I'll clue you in on everything later."
"You know, my son wants to be a lawyer. But I want him to be a doctor, though. He's in college in Chicago."
"Have him be a doctor, Mrs. Shapiro. Believe me, it's a much, much more honorable profession than being a lawyer."
Attorney Wigleaf left. He later came back, like he said he would, and explained his plan to Mrs. Shapiro. They practiced their lines over and over until she got them and everything else down pat. Mrs. Shapiro now knew exactly what to do and say when she took the stand.
In the meantime, Willard Wigleaf visited his client at the county lock up.
"You know I can't do anything about that confession you signed," he informed his client. "I have a hearing set to suppress it, but old Judge Davis won't grant my motion. I'm just going through the motions here with that, you understand."
"Yes. I know. I knew I shouldn't have signed it but I thought they'd give me a break of some kind if I fessed up."
"Don't worry about it. It still shows your remorse to the jury. I'll point out where you said you were sorry and apologized. Juries like that kind of stuff."
"Say, Mrs. Shapiro told me you're Jewish, Nels. No offense intended, but you don't look Jewish."
"My father's family came from Moravia. They were Jewish. My mother's from Sweden. That's why I got kind of blondish hair and blue eyes and the name Nels. But I'm not really Jewish since my mother wasn't Jewish."
"Well, don't mention anything about your heritage to the jury while you're on the stand. Just to be safe that is. I want the jury to accept you as just another American that moved west to start over. How'd you come to be here in Texas, anyway?"
"Well, I was working in a meat packing plant in Chicago. But after a while I couldn't take it there anymore. You wouldn't believe what they do there. What they do with the offal. What they dump in the Chicago River. What the working conditions and hours are. Believe me, you do not want to eat canned meat. You have no idea what goes into it. Anyway, finally, I just couldn't take all that any more. I up and quit and just took off and headed west with just the clothes on my back and less than five dollars in my pocket." He stopped and closed his eyes. "How hopeless is it for me?"
"Well, it doesn't look good, I'll admit that. But you never know what a jury will buy. I've got a defense that I think will work for us. It's called the tools of the trade defense. Based on old English common law that says a man has a right to the tools of his profession in order to support himself. That's all you were doing that night. Just obtaining the tools of your trade as a cowboy so that you could support yourself. Right?"
"Right, I guess, if you say so. But it sounds kind of weak and corny to me."
"Trust me on this one young man. I know the tools of the trade defense."
The trial began right on time that morning of April 13th, 1893, and Prosecutor Bean called Big Ed McCorkle as his first witness. After a few preliminary questions, things got down to brass tacks.
"What did you observe the Defendant doing that night in your tack room at your ranch?"
"I caught the fool standing there, holding some old spurs in one hand and a lariat in the other, trying to steal them. I yelled at him and he dropped them. Then I hollered for my brother. He came and the two of us subdued him and took him to the sheriff."
"Then we stood over him there and told him to write out a confession or else we'd go much harder on him, and he did. Then the sheriff locked him up. And we're here now to send him away."
"At this time I'd like to introduce as state's evidence the handwritten confession of one Mr. Nels Albright, as mentioned by the witness, Your Honor."
"No objections, Your Honor," said attorney Wigleaf.
"So admitted. Anything else for this witness, Mr.Bean?"
"No, Your Honor."
"You may cross examine, Mr. Wigleaf."
Willard Wigleaf rose from his chair, straightened himself out, approached the witness, and got in his face,
"You hired Mr. Albright to be a ranch hand, a cowboy, didn't you, Mr. McCorkle?"
"Ya, but he was lying. He was no cowboy. He was just a thieving hobo, riding the rails."
"And he had no spurs, chaps, rope, or any other cowboy gear or tools of any kind that a cowboy would have when you hired him, did he?" continued Wigleaf.
"Ya, that's right. He had none. Obviously that's why he was stealing them."
"And those things are absolutely necessary, aren't they, if one is to work as a cowboy, aren't they? These tools of the cowboy trade that is, lariat, spurs, chaps, gloves etc."
"You're damn right they're necessary. Like I said, that's why he was stealing them. He didn't have any of those things."
"No further questions, Your Honor."
The next witness called by the State of Texas was Big Fred McCorkle. His testimony was a repeat of his brother's. And on cross examination, Attorney Wigleaf got Fred McCorkle to admit, just like his brother had, that his client was stealing tools of the cowboy trade and they'd go easy on him if he signed a confession.
Then it was Mrs. Shapiro's turn to testify for the state. After Mr. Bean ever so politely took her through some preliminary background questions, he went for the jugular.
"So he never paid you anything for room and board for three days did he?'
Mean John Bean cut her off. "Just yes or no, Ma'am. I don't want any buts. You got that?"
"No ya buts."
Judge Davis intervened. "Just answer the question yes or no, Sophie, unless you're asked to explain. If Mr. Wigleaf wants anything explained, he will ask you to do that. Okay?"
"Okay," she answered meekly.
"He didn't pay you for the three days he was with you before he was caught stealing, did he?" John Bean continued in the same vein of questioning, but he was smart enough not to badger the witness too much. Wigleaf never objected to any of his questioning, so he decided to quit while he was ahead. "Your witness, Mr. Wigleaf."
"No questions at this time. The defense will be calling Mrs. Shapiro as a witness for the defense later, Your Honor."
"Mr. Bean, anything else?" asked Judge Davis.
"The State of Texas rests, Your Honor."
"Call your first witness then, Mr. Wigleaf."
"The Defense calls the Defendant, Nels Albright."
Nels Albright was sworn in and took the stand.
"Nels, please tell the jury what you were doing on the night you were arrested."
"I went to the Double Trouble Ranch to see what gear I would need for my job as a cowboy there."
"And as I was looking it over, Mr. McCorkle—Ed, that is—came in the room and then his brother came and they grabbed me and took me to the sheriff's office."
"Now, when you were at the sheriff's office, did you sign a confession?"
"Yes, the McCorkle brothers told me that if I signed one they'd go easy on me."
"And did you write that confession yourself and in it apologize to the McCorkles."
"Your Honor, at this time I'd like to read into the record the last page of the confession where the defendant apologizes profusely for his alleged wrongdoing."
"Objection, Your Honor. The jury can read it for themselves. It's already in evidence."
"Objection sustained, Mr. Wigleaf," ruled Judge Davis.
That was fine with Willard Wigleaf. He had gotten the result he wanted. He was sure now that the jury would read the confession as a matter of curiosity. It would stick with them better in the jury room with them reading it there themselves, rather than him reading it here in open court to them. Plus, he had gotten into evidence the brothers' testimony that they would go easy on him if he signed the confession.
"Changing the subject now, why'd you come here to Texas for in the first place, Nels?"
"Well, my folks are dead. I am an only child. I got no one to stay in Chicago for. I had a terrible job at a slaughterhouse and I wanted to get away from all that and start my life over out here in the west." Attorney Wigleaf and his client had practiced this speech over and over and it came off perfectly, without a hitch. Wigleaf then had the Defendant explain the living hell of working in the meatpacking industry and subsistence living in the slum tenements of Chicago.
"So you switched professions, went west, and became a cowboy," Wigleaf repeated for the umpteenth time. "Is that right?"
But before Attorney Bean could object as to it being a leading question and that it had already been asked and answered, Nels Albright answered, "Right" And Willard Wigleaf spat out, "Your witness, Mr. Bean."
Frustrated, John Bean began. "Mr. Albright when you applied for a job at the Double Trouble Ranch you told the McCorkle brothers that you had worked with cattle before, didn't you?"
"But you didn't tell them that was at a slaughterhouse, did you?"
"So you lied to them then. Got them to believe that you had worked with cattle like a cowboy works with cattle when, if fact, you never had. Isn't that correct?
"And as to this confession you so voluntarily signed. The McCorkles didn't hold a gun to your head while you did so, did they?"
John Bean then cut him off just like he had cut off Mrs. Shapiro. "No buts, Mr. Albright. There's no ifs, ands, or buts about all this. You voluntarily signed that confession, didn't you? Didn't you?"
Attorney Wigleaf let Mean John Bean badger his client, hoping the jury would start to sympathize with him and forget about his client's previous testimony as to working in the 'cattle industry.'
"And as to these tools of the trade, these cowboy tools of the trade, as your attorney so gallantly refers to them, you didn't have any, did you?"
"No, I didn't."
"And that's because you weren't a cowboy were you? You worked at a slaughterhouse in the meatpacking industry, shoveling away offal, didn't you? The tools of your trade being a scoop shovel and a broom, weren't they?"
"Well. I had quit that job. They weren't my tools anymore."
"Now, when the McCorkle brothers caught you in their tack room on their ranch, it was a little after one in the morning, wasn't it?"
"I suppose so."
"And the brothers hadn't given you permission to be there at one in the morning to go through their stuff, did they?"
"No further questions. Your witness, Mr. Wigleaf."
"Nels, you never did remove any of the McCorkle's brothers' gear from the premises, did you?"
"No, Mr. Wigleaf, I did not." He said this defiantly, now recomposed, sitting upright now, no longer slumped down in the witness chair from being intimidated by Mr. Bean.
"No further questions for this witness, Your Honor. The Defense now calls Sophie Shapiro. Attorney Wigleaf had made sure that Mrs. Shapiro would be the last one to testify that day.
"Mrs. Shapiro, did you feel sorry for Mr. Albright? Is that why you took him in?"
"Yes, that's why. The poor lad was down on his luck. Not a penny in his pockets. Not a coat in this cold weather. His clothes so worn and threadbare, I was afraid he'd catch cold and die. He hadn't had a decent meal in days, he told me, and hadn't slept in a bed for weeks. I felt sorry for the poor lad and told him he could pay me after he got paid."
"And where was Nels from?"
"He told me he was from Chicago."
" And did he tell you that he left the slums there to come out west here, start over, begin a new life, and make an honest living?" Wigleaf couldn't get this point across often enough, as far as he was concerned, because pretty much everybody here in the courtroom had done likewise.
"And did he tell you both his parents were dead and he was an only child?"
"And did he tell you his parents came from Europe, the Old World, just like yours did, and like a lot of the other people's folks here in town did?"
"And did he tell you of all the hard times his folks suffered through in the Old Country?
"Yes." And now, as if on cue, a tear came to the eyes of Mrs. Shapiro. Attorney Wigleaf pulled a handkerchief from his vest pocket and handed it to her.
"Thank you," she said, as she wiped her eye and smelled the handkerchief. It smelled of onions. Mr. Wigleaf had kept a bunch of chopped onions in it overnight, just like he told her he would. And, like he instructed her, she continued to wipe her eyes with it so that they teared up more and more and she couldn't stop crying.
"I just wanted to help him," she sobbed. "He's such a good boy. He means well. Prison's no place for a fine young man like him. He's no criminal." Mrs. Shapiro went on crying, and it got to the point where Judge Davis intervened.
"We'll take a few minutes here while the witness composes herself," he said.
With the opportunity before him now, Attorney Wigleaf looked to his plants in the courtroom. He got up and went over to each one of them—there were six in number—and handed each of the ladies a handkerchief, an onion soaked handkerchief, to wipe away their fake tears. Then, when a Mrs. Hoogerwerf—who wasn't in Attorney Wigleaf's entourage—asked him for one, he told her he had run out of handkerchiefs. But Mrs. Hoogerwerf's husband, who was on the jury, got up, came over, and gave her his. Then some of the other gentleman jurors got up and offered their handkerchiefs to some of the other ladies in the courtroom who began crying too, for it seemed as if crying had suddenly become contagious there. And soon all the ladies there were wiping away their tears. Attorney Wigleaf smiled inwardly, for he dared not smile outwardly.
During final arguments, Attorney Wigleaf hit home, saying that under English Common Law—which applied in Texas like every other state, except Louisiana where the Code Napoleon applied—a mechanic had an inborn right to the tools of his trade and this law applied to cowboys too, just like it did to blacksmiths, coopers, and wheelwrights of medieval England.
But Mean John Bean blew that all to Hell, though, when he pointed out that they didn't have any cowboys in England in medieval times.
The jury found the Defendant guilty. "Guilty but," said the Foreman. And here Mean John Bean couldn't object to this but. The but was that the jury made a recommendation to Judge Davis for him to go easy on the Defendant, very easy. The old onions in the handkerchief trick had worked and gotten the jury's sympathy and everyone else's in the courtroom too, for that matter. Except for Mean John Bean's, that is.
Attorney Wigleaf smiled outwardly this time and elbowed his client.
"Didn't I tell you it would work?"
"What do you mean? The jury found me guilty."
But before Wigleaf could explain, Judge Davis spoke up. "Well I normally don't do this, take a jury's recommendation that is, but since the Defendant is eligible for the maximum term of five years imprisonment, I'm going to take the matter under advisement overnight and rule tomorrow morning. Would counsel please approach the bench?"
Judge Davis also was up for election again that fall. He wasn't going to do anything to hurt his chances. The jury and those in the crowd had spoken volumes for the electorate.
"Counselors—and I already know, Mr. Bean, you won't like this, but—under the circumstances, everybody seems to be sympathetic to the Defendant. Therefore I'm releasing the defendant from jail. Mr. Wigleaf, I suggest your client be on the next train out of town—that means tonight, Counselor, tonight—and never show his face here in Texas again. I don't want to have to rule tomorrow on how many years I have to give this poor lad before I suspend his sentence. And you, Mr. Bean, you're under court order not to breathe a word of this to anybody. You got that?"
Mean John Bean barely mumbled a "Yes, Your Honor."
"Back to your seats, gentlemen. Court's adjourned until 10 o'clock tomorrow morning."
Nels Albright was on the train headed out of town that evening. Mr.Wigleaf had bought the ticket. Mrs. Shapiro had packed him a lunch and together they and Judge Davis had grub staked the young man to the tune of twenty dollars.
"See, I told you the tools of the trade defense would work," attorney Wigleaf said to his client as they waited for the incoming train to roll to a stop that evening. "Didn't I?"
"But it didn't, Mr. Wigleaf," responded Nels. "They found me guilty."
"But it did. It's the tools of my trade that worked. Not that silly English common law tools of the trade nonsense that I fed the jury."
Nels Albright never knew what his attorney was talking about as he got on the train.
"Adios Buckaroo," hollered Wigleaf as the train pulled away in a wake of puffy white smoke.
Nels Albright was on the 8:10 back to Chicago.