“What do you mean? You split?” Byam leaned so far over the wagon’s sidewall that Judge Wilson grabbed hold of his coat to keep him from falling.
“Just that. We got ourselves a verdict, but we ain’t unanimous.”
“How? How did you split?”
“One of us says he won’t vote. The other 23 say he is guilty.”
Fitch let out an exultant Rebel yell that made Dan’s ears buzz. “By God, Blue, we got him. We got the bastard!”
“No!” bellowed Thurmond, and the other defense attorneys jumped up, shouted their protests while McDowell and Gallagher shook their fists, and yelled, “You’re dead!” and “Murderers!” But it seemed to Dan that other voices, cheering, were stronger. Or was it that he wished it so?
Judge Byam clanged the cowbell, and hollered for order.
Dan stayed quiet, wished he had grown a great mustache to hide the lunatic grin he was trying to suppress. He wanted no one to see what he was feeling. Fitch was right. They had done it! That split still meant, Guilty, by God! But how would the jury, the crowd, the mob jury, the so-called jury of the whole, vote? Guilty or not guilty? Everything came down to this, a great weight balanced on a pinpoint.
“It’s not over yet,” Bagg shifted from foot to foot. “Damn! If this were a real court ….” His voice trailed off.
Fitch rubbed the back of his neck. “I been listening to the boys. A lot of them ain’t happy about hanging anybody. They’d rather banish Ives.”
“Christ.” Dan knew the others had the same thoughts. Banishment was meaningless. Memories would fade in time, and Ives would be seen here and there, and his charm would once again win men over, they would ask what the fuss had been about. There would be murders, and robberies, and Ives would just be more careful, more frightening to his cronies. A man who could kill in cold blood, who lacked the element in his makeup that enabled him to feel something for another human being, that man would ever consider his own convenience ahead of other people’s lives.
Judge Byam asked each man on the advisory juries to state his verdict, and one by one they stood up and answered, “Guilty,” like the tolling of a bell, and at each one, Ives’s friends let out a sound like a growl, an occasional curse hushed by a guard or someone in the crowd. Dan, as intent as waiting for a deer, felt for the rifle stock, gripped it hard; it was solid, something to hold onto.
One man said, “Abstain.” Ives’s friends cheered him and Jim Williams and his crew of guards shut them up with leveled shotguns. Why had he voted that way? Dan determined to ask him, later.
The polling done, the crowd let out its pent-up tension, a steam kettle going off in cheers and boos and curses, and a man could not think, dammit, there was so much noise it was like to drown him. Dan tried to hear a sense of the crowd, which way the mob jury would vote, but he could not.
“Order!” shouted Judge Wilson. “Order!”
Sanders climbed into the green wagon, stood with the two judges. He held up his hand, and the crowd quieted, man by man. Dan’s breath smoked in the moonlight. He thought he could hear the collective breathing of the crowd, and in that comparative quiet, his voice rang out: “I move that the jury of the whole accept the report of the advisory jury!”
As he spoke, Dan filled his lungs. He roared out, “I second the motion!” and Bagg immediately yelled, “Question!”
“No!” Thurmond, with Smith, Davis, and the others were all on their feet, all protesting, but Judge Byam shook the cowbell at them. “Sit down! You’re out of order! You’ll get your chance.”
Smith called for adjournment, and Ives’s friends took up the cry until Dan thought surely they would prevail. “Finish tomorrow,” hollered a voice in the crowd – he thought maybe Gallagher – and the hairs prickled on the back of his neck. That would mean defeat. Certain, sure, defeat. Either Ives’s friends would rescue him, or Plummer would at last appear, or men would change their minds, regret their guilty vote, take a new poll and free Ives, because the majority would return to their claims to save them from being jumped, and only those who held no claims, the roughs, would be present in force. They could not adjourn. They must finish tonight, one way or the other. Win or lose, it had to be tonight.
He bellowed at the top of his strength, “No! Finish tonight!”
Someone yelled out, “I ain’t coming back tomorrow to listen to lawyers yap.”
Amid the laughter, McDowell raised his middle finger to Dan, and shouted, “Adjourn! Adjourn!” and Gallagher and others took up the chant, but more men shouted them down: “Finish now! Finish now!”
Fitch hollered, “My boy is in his grave! Get this trial over with and let’s get back to business!”
“No!” McDowell dodged through the small gap between guards, between the jury benches and the log. He charged the green wagon, hands outstretched, a man big enough to seize Sanders and drag him down to the ground. Dan leaped at him, grabbed for his arm, seized a fistful of grey coat. McDowell turned on Dan, kicked at his ankles, and his fist hammered once, twice, on Dan’s left thumb. Through raging red pain, somehow Dan held on, and McDowell’s fist hit at his face. He felt hands at his back, and thought they were after the rifle, and he couldn’t hold on any longer, and then Bagg and Fitch had caught one of McDowell’s arms, and Adriel Davis had caught the other, and the fight dissolved into pain stabbing at Dan with every heartbeat, and anger hot as flame pulsed in his eyes and only slowly cleared so that he could see, and hear the cowbell.
The guards seized McDowell, and hauled him back, behind the log.
Judge Byam rang the cowbell until one of the guards fired his shotgun into the air, and for a second or two, men were too busy ducking pellets. And then, silence.
Panting, gritting his teeth against the agony in his hand, Dan heard Albert murmur apologies, and shook his head. He could not speak for the eruptions from his stomach. Jacob held one hand under his elbow, and Dan was grateful for it.
Byam for once not yelling over the crowd’s noise, called out, “We have a question, boys. All in favor of adopting the advisory jury’s report as the verdict of the whole, say Aye.”
Not a man moved, not a voice rose, and in that instant, Dan felt himself collapse inside, as if his bones could no longer support his flesh. They had lost, after all. All the work and the clever strategies, and the courage of witnesses like Anton Holter, had all come to –
“Aye!” The crowd roared, and the sound broke against the log buildings, rolled down the street, and swamped the dance music, the stomping of boots to the polka’s beat.
“All opposed,” Byam shouted, when he could be heard.
“Nay!” came so small a number of dissenting voices that Dan estimated there could not be more than a hundred votes out of more than a thousand that made up the crowd.
“Carried,” bellowed Judge Byam.
Grouped around Ives, who looked disbelieving, his lawyers and friends looked stunned, like the wind had been knocked out of them; they had never expected this. They had believed he’d never be found guilty, he was too popular, or he’d be rescued, or Smith could manipulate the crowd into freeing him, or Sheriff Plummer would take jurisdiction. Behind him, McDowell glowered at Dan, and Gallagher’s dark eyes glared out from under drawn brows. Each had Dan lined up in his sight, taking dead aim with their hatred.
Dan straightened, and the Spencer shifted against his back. Come ahead, he told them. Next time, I’ll use it. His left hand hurt, but the color of the pain had faded to dull purple, and his stomach had settled. They had got Ives.
“Them boys sure do hate you,” Fitch said.
“Sore losers.” Dan managed a brief smile. “Can’t play poker, either.”
“We gotta talk about that.” Raising his stump, Fitch rubbed the pinned sleeve across his face.
The advisory jurors rose and threaded their way between the guards, away from the court. Their job was done. “I gotta ask that one why he didn’t vote guilty like the others.” Fitch hurried to catch the man.
Sanders crouched down to look over the sidewall. “You all right?” And when Dan lied against the aching throb in his hand, Sanders smiled as if he did not believe it. “You probably saved the trial when you jumped – McDowell, is it? You’re no shrinking violet, but he’s a big one.” After a second or two, he added, “Anyway, I certainly thank you.” Bagg spoke up with a question, and the prosecutors carried on a discussion about tactics to bring about a hanging, until Dan suggested Sanders invite the jury to vote on it. “Just make sure they’re moved to vote our way.”
“I’ll do my best.” Sanders rose to his feet.
The crowd shifted about, laughed at someone elbowing his way through the crowd, a small man who stood between two guards and held up both hands. “I got something to say!”
Wilson called out to him: “Say it, then, but be quick.”
“Some of us don’t see no need for hanging, Judge. It ain’t right to kill a man, we all knows that, but two wrongs don’t make a right, neither. Hanging Ives won’t bring back the poor lad that got killed.” He shuffled his feet, shrugged his shoulders. “I guess that’s all I got to say.”
Fitch, returned from his talk with the juror, muttered, “Christ! How many more of them feel that way?”
As if to answer him, another miner demanded to be heard. “He’s right!” The new man clutched the rags of a brown coat about him. “Now that Ives has been caught and everyone knows him for what he is, he won’t get away with nothing like that again. We’ll be on our guard, so it don’t serve nothing to hang him.”
Cheers and boos followed them, the judges rang order into the crowd, and Sanders, head bowed, waited for quiet. His hat brim, with insignia of a high-ranking Union officer, hid his face until he looked up, and his light tenor voice split the night with its call, “Listen!”
The crowd settled back amid the yellow candle lights and lanterns, that glowed in the dark like the black cats’ eyes, and prepared to listen.
“Twenty-three men, good and true, after hearing overwhelming evidence, have returned a verdict that George Ives, with malice aforethought, murdered Nicholas Tbalt in cold blood.”
As he spoke, Dan listened to the silence, hoping he could gauge the crowd’s opinion, and he heard again how Nick’s body was found, and how “there were two bullet holes in the brain, and marks on neck and body, of a lariat that the murderer had used to drag the body from the road, and pieces of sage-brush spasmodically clasped in his hands, showing that he was dragged to the place of concealment, in a semi-conscious condition.” Beside Dan, Fitch drew out a large handkerchief and blew his nose. He was not the only one. From here and there came the sounds of noses blown, coughing and spitting, but Sanders continued, his voice vibrating with emotion, but as inexorable as a steam engine.
“I doubt, gentlemen, if you search the annals of crime you can find a parallel case, or one that will equal this in bloodthirsty ferocity and wantonness. We must set such an example of stern justice, that there will not, very soon, be a repetition of this act.”
In his pocketbook, Dan carried a dozen or two similar wanton acts described by witnesses, and he had the names of men who had not declared their intention of going home before they were missed. He caught the vile phrase that echoed against the walls of his mind: “damned Dutchman.” And then Sanders likened George Ives to the wolf that devours the defenseless lamb, and a low growl from the darkness answered him.
Sanders called out, “Wait! Men, wait!”
Fitch muttered, “Wait for what? We oughta just string the son of a bitch up.”
Bagg hissed at him to shut his mouth, and Sanders’s voice rose: “These are the facts, men, they are all true, as you know. The jury has heard all the evidence, what shall we do?” And some of the crowd called out, “Hang him! Hang him! String him up!” while others cried, “No! Let him go! Let him go!”
Sanders went on, relentless as fire, “The Bible, that Holy Book, says: ‘Whosoever sheddeth man’s blood, by man shall his blood also be shed.’ Let us proceed according to the Scripture.” He paused, and Dan heard the crowd breathing in the dark. “In that light, I move that George Ives forthwith be hanged by the neck until he is dead!”
Through a roar from the crowd Dan heard Sanders finish: “And may God have mercy on George Ives’s soul.”
Byam called for a second to the motion, and Fitch hollered, “Second!”
Dan dared McDowell and Gallagher, and all Ives’s other friends, and his attorneys, to make a move, any move now against Sanders, because he was ready, one-handed or not, and he would bring the rifle around, lever a shell into the breech, and cock it. And shoot.
“Question,” yelled Bagg, and Judge Byam shouted, “Everyone in favor of hanging George Ives, say so.”
“Aye!” The massive cheer roared from hundreds of throats. With a whoop, Fitch pounded Dan on the back. “Yeehoo! Got ’im, Blue, we got that murdering bastard.”
“Yes. Yes, we did.” Dan shook Bagg’s hand, repeated to himself that Ives would hang. The murdering son of a bitch would hang. Ives would die for killing Nick. But instead of feeling satisfied, he felt empty because they were not done, there was so much more to do, and he carried the proof in his breast pocket. The work was just begun.
“Why did that one juror vote not guilty?”
“He said, if the question was whether Ives was a road agent, he’d have voted yes. He just didn’t think you-all proved he’d killed Nick.” Fitch stared into the night, his face bleak. “I sure as hell hope Ives is the real killer.”
* * *
The “no” vote was a pale protest. If Dan could have felt sorry for the defense, he might have done so now. Davis sank down onto the log and stared at nothing, Smith put his face in his hands and wept, and Thurmond howled incoherent threats. Gallagher bellowed, “We’ll get you for this!” McDowell shouted, “You goddam sons of bitches, you’re dead, you hear? Dead!”
Discordant and off-key, tin dance music mocked them with jaunty rhythms inviting them all to dance on George Ives’s grave. But no one would dance tonight, Dan thought, except Ives, in his own Danse Macabre at the end of a rope.
Judge Byam sent the two sheriffs off to find a place for the hanging. And Ives asked to speak to Sanders. “A condemned man has the right to a last request.”
Sanders motioned to him to come ahead. Ives climbed into the wagon and seized Sanders’s hand. To Dan’s total disbelief, the condemned man claimed a sort of kinship with Sanders, as one “perfect gentleman” to another, though he had been “somewhat wild.” Pleading his mother and sisters in the States, he asked Sanders, as a favor, to put off his execution until morning so he could write them a letter and make a will. He gave his word of honor not to escape or allow his friends to rescue him. “If the situation were reversed I’d do it for you.”
“Jesus Christ.” Dan thought that never in the literature of trials had he heard such effrontery.
Sanders hesitated.
No! Dan wanted to shout, but his throat closed up. Sanders couldn’t do it. He damn well could not let Ives have until morning on the basis of his word, the word of honor from a man without honor. A convicted murderer. Dan felt the crowd, a thousand people, waiting, the moment teetering on an unmade decision.
“Hey, Sanders,” a voice boomed out, “ask him how much time he gave the Dutchman!”
The moment splintered into laughter. The voice came from X Beidler, straddling the ridgepole of a nearby cabin, his shotgun across his thighs.
* * *
The two sheriffs returned, and reported to a disgusted Judge Byam that they had not been able to find a tree big enough to hang a man.
“Bull.” Judge Wilson pointed toward a cabin under construction by the Music Hall. “What’s wrong with that? Looks to me, we can get a good drop there.” The walls were up, and the trusses, but the roof had yet to be put on.
“That’ll do,” Sheriff Hereford said. “Let’s ge
t to it.”
With some help, the sheriffs set to work while guards watched over Ives and his friends as they came to shake his hand, and bid him good-bye. Ives said, “It’s all right, I had a good run.” Tough men, weeping, made obscene gestures and rumbled threats at the prosecutors: “You bastards ain’t got long to live,” “Make your will, Sanders,” “Bagg, you son of a bitch, be careful a shaft don’t fall on you,” “You’re a dead man, Stark.” Some could barely speak through their tears.
Jacob said, “You do not fear them?”
“Of course I do.” A muscle quivered in Dan’s inner thigh, and he could not stop it.
Pemberton stoppered his ink bottle and wrapped the pen in a stained handkerchief. His job was nearly done, and now he could listen to conversations and join in if he wished, without having to listen to the trial. He seemed to have something he wanted to say to Dan.
God's Thunderbolt: The Vigilantes of Montana Page 24