Judge Doe had listened to this impassioned speech with much interest, apparently, but without any delay decided that Shinburn and I must be tried together. Asking for a moment in which to consult, Judge Cushion, and Mr. Woodward and the others of Shinburn’s and my counsel drew aside and earnestly discussed the attitude of the court and district attorney. My counsel believed me to be innocent and Shinburn guilty, yet in view of the ultimatum that both must be tried at once, it was a question whether there could be found a way to further fight for separate trials, or, bowing submissively to the ruling, proceed to establish a joint defence in which the innocent and guilty must stand or fall together.
“It’s sink or swim, gentlemen!” Judge Cushion told the others at the termination of the conference; and they returned to the tables.
Well, when court adjourned that afternoon, a jury to try us had been chosen, Sumner Warren being its foreman, and the preliminaries had been accomplished so that the prosecution was ready to call its witnesses the first thing the next morning. As for my feelings, they had undergone a great change since the convening of the court. All the fear that possessed me after the hearing at which I was denied a separate chance to prove my innocence, was upon me again. The hopefulness of the morning had resolved into the gloom of night. I must fight my way through the great cloud that beset me, handicapped by the case of a man I had no reason to doubt was guilty of the crime with which he stood accused. Linked with a criminal, I must prove my innocence or be convicted a felon.
My lawyers said there was no reason for me to feel despondent; that we would win despite all that was pitted against us; that there wasn’t any evidence upon which the jury could possibly base a verdict of guilty, though they might be ever so prejudiced. As to the jury being a fair and well-disposed body of men, Judge Cushion said he had no doubt of that. I took all this as poor comfort, however, and in my hotel that night there was precious little sleep for me. After a long, weary vigil, the dawn came, and with it the nerve-distracting trial, which lasted ten days.
I shall not go into the details of the testimony. Herbert Bellows was a witness, testifying to the ownership of the bonds found in Shinburn’s pockets; and another witness declared that Shinburn was a man he’d seen riding in a rig, between Walpole and Keene, early in the morning following the burglary, and upon being asked to identify the other man with Shinburn, said I looked very much like him. Detectives Golden and Kelso swore to the facts surrounding Shinburn’s arrest, and to the search in the Saratoga farm-house where burglars’ tools were discovered. Other witnesses told how I let horses and carriages to Shinburn, and drove him to Claremont and Keene, and that I had engaged a turnout from Layton Martin’s stables to do so. All of which I had done; but was it not horrible to sit and listen to the criminal construction placed upon these innocent acts? to listen to the motive attributed to me? And still other witnesses swore that I had accumulated a fortune in two years, that was impossible of accomplishment through honest means, and that being the case, I must have gotten the money somewhere, and why not from the Walpole Bank? At times I writhed under these damning words, and it was with the utmost difficulty that I was restrained, time and time and again, from springing to my feet and crying out that they who talked thus were liars. Glad I am that my friends made me hold my peace!