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sir. Well, not long after dinner on that day we was headed back for Fort Smith from the Creek Nation and was about four miles west of Webbers Falls.
MR. BARLOW : One moment. Who was with you?
MR. COGBURN : There was four other deputy marshals and me. We had a wagonload of prisoners and was headed back for Fort Smith. Seven prisoners. About four mile west of Webbers Falls that Creek boy named Will come riding up in a lather. He had news. He said that morning he was taking some eggs over to Tom Spotted-Gourd and his wife at their place on the Canadian River. When he got there he found the woman out in the yard with the back of her head shot off and the old man inside on the floor with a shotgun wound in his breast.
MR. GOUDY : An objection.
JUDGE PARKER : Confine your testimony to what you saw, Mr. Cogburn.
MR. COGBURN : Yes sir. Well, Deputy Marshal Potter and me rode on down to Spotted-Gourd's place, with the wagon to come on behind us. Deputy Marshal Schmidt stayed with the wagon. When we got to the place we found everything as the boy Will had represented. The woman was out in the yard dead with blowflies on her head and the old man was inside with his breast blowed open by a scatter-gun and his feet burned. He was still alive but he just was. Wind was whistling in and out of the bloody hole. He said about four o'clock that morning them two Wharton boys had rode up there drunk --
MR. GOUDY : An objection.
MR. BARLOW : This is a dying declaration, your honor.
JUDGE PARKER : Overruled. Proceed, Mr. Cogburn.
MR. COGBURN : He said them two Wharton boys, Odus and C. C. by name, had rode up there drunk and throwed down on him with a double barrel shotgun and said, "Tell us where your money is, old man." He would not tell them and they lit some pine knots and held them to his feet and he told them it was in a fruit jar under a gray rock at one corner of the smokehouse. Said he had over four hundred dollars in banknotes in it. Said his wife was crying and taking on all this time and begging for mercy. Said she took off out the door and Odus run to the door and shot her. Said when he raised up off the floor where he was laying Odus turned and shot him. Then they left.
MR. BARLOW : What happened next?
MR. COGBURN : He died on us. Passed away in considerable pain.
MR. BARLOW : Mr. Spotted-Gourd, that is.
MR. COGBURN : Yes sir.
MR. BARLOW : What did you and Marshal Potter do then?
MR. COGBURN : We went out to the smokehouse and that rock had been moved and that jar was gone.
MR. GOUDY : An objection.
JUDGE PARKER : The witness will keep his speculations to himself.
MR. BARLOW : You found a flat gray rock at the corner of the smokehouse with a hollowed-out space under it?
MR. GOUDY : If the prosecutor is going to give evidence I suggest that he be sworn.
JUDGE PARKER : Mr. Barlow , that is not proper examination.
MR. BARLOW : I am sorry, your honor. Marshal Cogburn, what did you find, if anything, at the corner of the smokehouse?
MR. COGBURN : We found a gray rock with a hole right by it.
MR. BARLOW : What was in the hole?
MR. COGBURN : Nothing. No jar or nothing,
MR. BARLOW . What did you do next?
MR. COGBURN : We waited on the wagon to come. When it got there we had a talk amongst ourselves as to who would ride after the Whartons. Potter and me had had dealings with them boys before so we went. It was about a two-hour ride up near where the North Fork strikes the Canadian, on a branch that turns into the Canadian. We got there not long before sundown.
MR. BARLOW : And what did you find?
MR. COGBURN : I had my glass and we spotted the two boys and their old daddy, Aaron Wharton by name, standing down there on the creek bank with some hogs, five or six hogs. They had killed a shoat and was butchering it. It was swinging from a limb and they had built a fire under a wash pot for scalding water.
We tied up our horses about a quarter of a mile down the creek and slipped along on foot through the brush so we could get the drop on them. When