Upon hearing himself called by his last name, without the honorific title “Judge,” there was just a flicker of resentment, though Boykin covered it up well.
“Yes, I did say that.”
“Well, there’s your answer then. Someone who is that good with a gun is bound to have had some paper out on him at some time in his past. All you have to do is find the wanted poster.”
“And if I can’t find one?”
“Make one up,” Atwood said easily.
“I’d rather not make one up. I’m sure you are right; I’m sure that someone with his propensity for violence is bound to have a wanted poster out on him somewhere.”
“Just make certain that it is a poster that says ‘dead or alive,’” Judge Boykin instructed.
CHAPTER TWELVE
El Paso
When Smoke, Sally, and Pearlie arrived in El Paso, they saw that, unlike Etholen, which was a rather bucolic community, El Paso was quite a thriving city. There was a great deal of wagon and buggy traffic, and dozens and dozens of people walking along the plank walks that lined both sides of the streets. At intervals there were boards stretched all the way across the dirt streets to allow people a way to cross when the roads were full of mud. This seemed a totally unnecessary accommodation now, though, as it had been several weeks since the last good rain. As a result the passage of horses and wheeled vehicles stirred up the dust so that a brown-gray cloud seemed to hang in the air, no more than six feet above the ground.
“I’ll ask that man over there where the federal court building is,” Smoke said.
“No need to,” Sally replied. “Look down there.”
Sally pointed to a large and impressive brick and stone building that stood three stories high, with a tower in the center that stretched up one additional story. Stone steps climbed up to a porch that had an array of impressive-looking columns. A sign attached to the front of the structure said, UNITED STATES FEDERAL BUILDING.
“I would say that’s the place we’re looking for,” Sally said.
“And I would say that you are right,” Smoke replied.
Tying their horses to a hitching rail out front, the three went inside, examined the directory, then walked upstairs to the office of the federal judge.
Ezekiel B. Turner was the judge of the West Texas Federal Court, and he greeted them courteously after the judicial clerk announced their presence.
“Which of you gentlemen is Smoke Jensen?” Judge Turner asked.
“I am, Your Honor, though my real name is . . .”
“Kirby Jensen,” Turner interrupted.
The expression on Smoke’s face reflected his surprise at the judge knowing his given name.
“I beg your pardon?”
“That is your name, isn’t it? Kirby Jensen?”
“Well, yes, that is true. But how in the world do you know that? To the best of my memory, we’ve never met.”
“No, we haven’t. But I know you. At least, I know of you. That is, if you are the same man who was appointed as a Deputy U.S. Marshal by Uriah B. Holloway.”
“Yes, I am that man,” Smoke replied. “Although, that was several years ago.”
Turner smiled and nodded. “I thought so. Uriah and I are great friends from way back. He has spoken well of you.”
“Marshal Holloway is a good man,” Smoke said.
“That he is, Mr. Jensen, that he is. And this young lady?” Turner asked, smiling at Sally.
“This is my wife, Sally.”
“Sally,” Judge Turner said. “That is a beautiful name for a beautiful lady.” He looked toward Pearlie.
“This is Pearlie,” Smoke said.
“Pearlie?”
“That’s what I’m called, Your Honor. My real name is Wes Fontaine.”
“Now, Mr. and Mrs. Jensen, Pearlie, what can I do for you?”
“It’s about Pearlie’s sister. Pearlie is an employee of mine, and . . .” Smoke started.
“Smoke, Pearlie is much more than just an employee, and you know that,” Sally interrupted.
“Yes, he is,” Smoke said. “The truth is, Pearlie is more family than mere employee.”
Pearlie smiled self-consciously at Smoke’s beneficent description of their relationship.
“And you’ve always made me feel that way,” Pearlie said. “But, Your Honor, my sister, Katie Abernathy, is why we’re here.”
“And Pearlie’s nephew, Rusty Abernathy. Rusty was tried and convicted of murder.”
Judge Turner held up his hand and shook his head. “I’m sure you realize that murder is a state offense.”
“Your Honor, if I may,” Sally said. “We are appealing to you on the basis of Judge Boykin’s court violating Mr. Abernathy’s rights under the Fourteenth Amendment, and that makes it federal. His trial was improper; therefore, his imprisonment was improper.”
Judge Turner nodded. “That is an interesting tactic for appeal,” he said. “How was the trial improper?”
“To begin with, Your Honor, Mr. Abernathy was given no choice in selecting his own lawyer. His defense was appointed by the court.”
“Yes, well, when an indigent defendant is appointed a lawyer, he rarely has any say in it.”
“That’s just it, Your Honor. Mr. Abernathy isn’t indigent. He could well afford his own lawyer but was denied that right. In addition there was no voir dire of a jury that was packed with Atwood men, and the court did not allow so much as one witness to testify in Mr. Abernathy’s defense.”
“Were there eyewitnesses who could have provided cogent testimony?” Judge Turner asked.
“Indeed there were, Your Honor, but as I said, they weren’t allowed to testify.”
“Is Mr. Abernathy in jail now?” he asked.
“No,” Smoke replied. “Rusty escaped, and the marshal arrested Kate, his mother. Now they are saying that if Rusty doesn’t return by a date certain, they are going to hang his mother in his place.”
“What? Why, that is outrageous!” Judge Turner said.
“Yes, sir, that’s what we thought, too,” Smoke said. “We applied for bail through Judge Boykin, but he turned us down.”
“Boykin,” Judge Turner said, practically spitting the name. “If ever there was a man who dishonored the bench more than that miscreant, I have yet to hear of him. If you can get me some eyewitness accounts of the incident involving Mrs. Abernathy’s son, I will, if those accounts justify it, overturn Judge Boykin and grant Mrs. Abernathy release on her own recognizance.”
A broad smile played across Sally’s lips. “We hoped you might say something like that,” she said. Sally removed the paper she had recorded from the envelope, then handed it to Judge Turner. “Here is an affidavit, signed by every eyewitness to the event, and notarized.”
Judge Turner read the document, reacting audibly to the part where it explained that no eyewitnesses were allowed to testify.
“You can forget about bail,” Judge Turner said.
“What?” Smoke asked, surprised by the judge’s announcement.
“There is no need for bail, neither for Mrs. Abernathy nor for her son. I am ordering the immediate release of Mrs. Abernathy, and I am officially vacating the conviction of Rusty Abernathy. I have never seen such a travesty of justice as this in all my days on the bench.”
Smoke smiled and reached out to shake Judge Turner’s hand.
“Your Honor, I don’t know how to thank you.”
“No, Mr. Jensen, it is I who should thank you and Mrs. Jensen for bringing this to my attention. Oh, by the way, you might have a little trouble with Boykin and the marshal there, so the two of you hold up your right hand.” He was referring to Smoke and Pearlie.
Smoke smiled. “I was going to ask you if you would be willing to appoint us as officers of the court.”
“I’m more than willing. I’m proud to do it,” Judge Turner replied.
Smoke and Pearlie raised their right hands as Judge Turner swore them in as United States Marshals.
* * *
When Smoke and Pearlie stepped into the marshal’s office later that same day back in Etholen, Marshal Witherspoon was the only one present.
“Look here,” Witherspoon said, pointing at Pearlie. “I ought to lock you up for what you done last time you was here. You assaulted an officer of the law, what with you stickin’ your pistol in my mouth like you done.”
“I didn’t do that because you were an officer of the law,” Pearlie said. “I did that because you are a low-life son of a bitch and I didn’t like the way you referred to my sister.”
“Yeah, well, maybe I was a little out of line, callin’ her a whore ’n all. So, I’m goin’ to let it pass this time,” Witherspoon said, speaking as if he had any control over the matter. “But you better not do anythin’ like that again. I reckon you’re wantin’ to go back there ’n see her, so, if you ’n Jensen will just go over there ’n shuck out of them pistol belts, you can go on back.”
“We’ll keep our guns, because we don’t plan to go back and see her,” Pearlie said.
“What do you mean? You aren’t here to see your sister?”
“Oh, we’re here to see her all right,” Smoke said. “But we won’t be going back there to see her. You are going to bring her up here, to us.”
“Now, why would I want to do a damn-fool thing like that?”
“You should do it because we have an order from the court that says my sister is free,” Pearlie said. “So we expect you to let her go.”
“The judge is setting her free, is he?” Witherspoon smiled. “Good, then she’s agreed to sell the saloon to Mr. Atwood. That probably means the judge will more’n likely drop charges against the boy, too. Hell, if Kate hadda agreed to sell the saloon to Mr. Atwood in the first place, none of this would’ve happened.”
“What makes you think she has agreed to sell the saloon to Atwood?” Smoke asked.
“You said the judge said to let her out, didn’t you?”
“Yes.”
“Then that means she’s willin’ to sell the saloon to Mr. Atwood. Atwood told me hisself that that’s all it would take for him to agree to allow Judge Boykin to let Kate out of jail.”
“Are you telling me, Marshal, that Judge Boykin, an officer of the court, takes his orders from Silas Atwood?” Smoke asked.
“Hell, we pretty much all do,” Witherspoon admitted. “Without Mr. Atwood, there most likely wouldn’t be none of us have our jobs, the judge included.”
“It really comes as no surprise to us that you and Boykin are in Atwood’s pocket,” Smoke said. “I just wanted to hear you say it aloud. But Boykin didn’t set Mrs. Abernathy free.”
“Wait a minute. You mean she ain’t been set free? Well, what did you tell me that for? Did you think I wouldn’t check with the judge?”
“Oh, my sister has been set free, all right,” Pearlie said. “But this court order doesn’t come from Boykin, it comes from Judge Ezekiel B. Turner, in El Paso.”
“El Paso? What does a judge in El Paso have to do with Etholen? He won’t have any jurisdiction here. You’ll need to get an order from Judge Boykin.”
Smoke shook his head. “You don’t understand. Turner is a federal judge. That means he has authority over Boykin, and every other judge in West Texas.”
“Yeah? Well, I don’t know about that,” Witherspoon said. “I think maybe I should wait and see what Atwood thinks. I don’t think I have the authority to let her go on my own.”
“On the contrary, you have no authority to keep her on your own. I, on the other hand, do have the authority to see her set free,” Smoke said. “And I intend to see to it that you do that, right now.”
“You have the authority?” Witherspoon asked. “What authority do you have?”
“This,” Smoke said, showing Marshal Witherspoon the paper. “And this,” he added, pulling his pistol.
Smoke reached out to take the marshal’s gun from his holster. “Get the keys, Pearlie. The marshal, here, is about to become a guest in his own jail.”
“What are you doing? You can’t do this!”
“Yeah, I can,” Smoke said with an easy grin.
With the keys in Pearlie’s hand, and a pistol in Smoke’s hand, the three men went into the back of the jail. When they got to the back, they saw Kate standing in her cell with her hands grasping the bars.
“Pearlie, I thought I heard your voice out there.” She saw that the man with her brother was holding a pistol on the marshal, and she gasped in fear. “What’s going on?” she asked.
“We’re getting you out of here, Katie.”
“No!” Kate said, shaking her head. “I don’t want you to break me out of jail! Wes, I mean Pearlie, I don’t want you getting in trouble because of me!”
“Relax, we aren’t in any trouble,” Pearlie said. “We’ve got a court order from a federal judge, ordering your release. The only reason we’ve come back like this is because the marshal, here, didn’t want to honor the court order. So, we just took it on our own to enforce the order.”
“But, even with that letter, you don’t have the authority on your own, do you?”
“I’ll have you know, Katie, that Smoke and I were both appointed as officers of the federal court. That gives us all the authority we need.”
* * *
While Smoke and Pearlie were freeing Kate, Deputy Calhoun, unaware of what was playing out back at the city jail, was in the back room of the courthouse, surrounded by cardboard boxes filled with yellowed and sometimes crumbling paper.
PROCLAMATION
of the
GOVERNOR OF MISSOURI
WANTED
for ROBBERY and MURDER
THE JAMES GANG :
JESSE JAMES, FRANK JAMES, COLE YOUNGER,
JIM YOUNGER, and BOB YOUNGER
REWARD OF $5,000
$1,000 ea.
Calhoun found dozens of other posters that he knew were outdated because the principals had already been captured or killed. He was about ready to give up when he found one that did catch his interest. This poster was brown with age, and the edges were curling up. He was sure it had probably been withdrawn or it wouldn’t have been in this box with all the other outdated posters. Besides, it was a poster from Colorado, so he wasn’t sure it would be applicable in Texas anyway. But he would let Marshal Witherspoon decide.
CHAPTER THIRTEEN
“Miss Kate! You’re out!” Peterson exclaimed in excitement when Kate, Pearlie, and Smoke stepped into the Pretty Girl and Happy Cowboy Saloon a few minutes later.
“Oh, Miss Kate! How good it is to see you!” Dolly shouted happily, running to her to give her an embrace. The other four girls did the same thing.
“Pearlie told me what all of you did for me,” Kate said. “Sally, I thank you so much for writing up the paper telling what happened, and Mr. Peterson, Dolly, and all of you, I thank you for putting your names to it.”
“It’s only right,” Dolly said. “Marshal Witherspoon had no business putting you in jail in the first place.”
“Belly up to the bar, boys, and name your poison,” Kate said. “Mr. Peterson, if you would, please, set everyone up with a drink of their choice, on the house.”
“Thank you!” one of the patrons boomed in response, and all seventeen men present hurried to the bar to claim their drink.
“I’ll bet Marshal Witherspoon is fit to be tied,” Dolly said.
Kate laughed. “Funny you should mention that. Fit to be tied, I mean.”
“Oh, oh,” Sally said. “Smoke, what did you do? You didn’t tie the marshal up, did you?”
“Why, no, there was no need to tie him up,” Smoke said.
“I wouldn’t put it past you.”
“I mean, as long as we could put him in a jail cell, why bother to tie him up?”
“Smoke, you didn’t!” Sally said, but she laughed as she made the comment.
“Did you say that Judge Turner overturned Rusty’s conviction?” Kate asked.
“He sure did,” Sally replied with a broad smile.
“Is there any way we can get word to him about that? I would sure like to have him come back home.”
“I tell you what, Sis. I’ll go get him and bring him back home,” Pearlie said.
“Would you? Oh, that would be wonderful!”
“I’ll go with you,” Cal said.
“I suppose you folks will be going back home now that this is all straightened out,” Kate said, though the tone of her voice indicated that this was not something she was particularly looking forward to.
“We have no intention of going back,” Smoke said.
“Oh?”
“We don’t have everything straightened out,” Smoke said. “As I understand it, Atwood still wants to get control of your place, doesn’t he?”
“I’m sure he does.”
“Then, until he changes his mind, everything isn’t straightened out. And we won’t leave here until Atwood changes his tune.”
Kate shook her head. “Oh, I don’t think Silas Atwood is going to change anything very soon.”
Smoke smiled. “Well then, we’ll just have to change his mind for him, won’t we?”
* * *
“I got that information on Smoke Jensen you was lookin’ for,” Deputy Calhoun said when he stepped into the marshal’s office. He glanced toward the other side of the room and saw that the marshal wasn’t sitting behind his desk. “Marshal? Marshal Witherspoon, are you in here?”
“Calhoun! I’m back here!” Witherspoon called.
“All right, I’ll just leave this on your desk.”
“Get back here!” Witherspoon shouted.
“What’s up, Marshal? You havin’ trouble with Kate?” Calhoun asked, and, putting the flyer he had located on the marshal’s desk, he walked back to the cell area. “I’ll be right there.”
When Calhoun got to the cell area, he expected to see Marshal Witherspoon standing just outside of the prisoner’s cell. To his total shock, he saw him standing inside the cell.
“Lord, have mercy, Marshal! What are you doin’ in that jail cell?”
Brutal Night of the Mountain Man Page 9