Judge Parker turned to the witness stand and bent toward Moma July.
“Mr. July, when you apprehended the defendant, were you acting as a member of a federal posse?”
“That was what I thought,” Moma July said.
“Your Honor,” McRoy said, becoming agitated. “I ask the jury be excused for any comments you make on my motion.”
“That won’t be necessary. The jury is here to decide on the indictment. Any question of jurisdiction will be determined by the court.”
“Your Honor, I ask an exception.”
“It will be noted in the record. Now, Mr. McRoy, let me explain that it has been found on recent appeal that Negroes who reside in Indian Territory, no matter their tribal affiliation, are under the jurisdiction of this court. Further, recently it has been the intent of Congress that all murders committed in The Nations be tried in this court. Finally, sir, when parties to such a crime committed against an officer of this court are taken into custody by officers of the court indicted by the grand jury, and brought before this bar, they will be tried here, no matter the victim’s race or complexion or former heritage. Therefore, your motion is denied.”
“I ask an exception and further suggest, Your Honor, that your statements are prejudicial to my client,” McRoy said.
Parker’s face was rigid, his lips tight-pressed, as the color rose in his cheeks. I could feel the tension in the room as we all waited for his reply to this unprecedented questioning of the court’s authority. But it passed quickly as Parker said, his voice low and under control, “Your exception will be noted. Are you finished with the witness?”
McRoy took his seat and Evans was up for redirect.
“Mr. July, have you ever before arrested a man without a warrant?”
“A lot of times, when I was right in after him.”
“Do you know what that is called? Being ‘right in after him’?”
“No, I guess not, except it’s when you haven’t got time to get a warrant or your man will get away from you.”
“Exactly. It is called an arrest being made in hot pursuit.”
“Is prosecution making a summation?” McRoy asked, almost casually.
“Mr. Evans, hold your comments for closing,” Parker said.
“Thank you, Your Honor. I am finished with this witness.”
“If there is no recross, the witness is excused,” Parker said.
“The government rests,” Evans said.
“Mr. McRoy, are you ready to present the case for the defendants?”
“Your Honor, I move for a directed verdict of not guilty.”
“Overruled. Present your case, Mr. McRoy.”
McRoy called Wanada Deer and she came from the outer hall escorted by a deputy marshal. As when I first saw her, she was wearing a calico dress and shawl, and the man’s hat was on her head. Beneath its wide brim the features of her dark, wrinkled face were twisted. As she sat on the high witness stand, I could see she was wearing lace boots. Throughout the questioning, she kept the hat on her head.
With her came a court interpreter, and through him she was sworn in in Yuchi.
“You are the mother of Rufus Deer?” McRoy asked. Through the interpreter, she said she was.
“On the night of your son’s death, where were you?”
“At Low Hawk’s store. On the back porch.”
“In the Creek Nation?”
“Yes.”
“Did you see the shooting that occurred there?”
“Yes. I saw it. My son came to the end of Louie Low Hawk’s barn and Burris Garret came on the porch. My son had a friend with him from the Seminole.”
“The Seminole Nation?”
“Yes. I don’t remember his name. My son had been hiding with this man. He was hiding because they were after him for a thing he did not do.”
Evans started to rise, but then shrugged and let it continue.
“Had you seen your son that day?”
“Yes. He was hiding on our farm, with the Seminole. My husband and me went to Low Hawk Corners to buy things and it started raining. We stayed the night. Before we left the farm, my son told me he was coming in to give himself up to Burris Garret. So he did, and I saw him when he came to the Corners.”
“Did he call out to Garret?”
“No. The Seminole did.”
“What did he say?”
“The Seminole helloed Burris Garret’s name and when Burris Garret came out, the Seminole said my son had come in to give up. He said Rufus had come to give up.”
“What happened then?”
“Burris Garret shot my son.” There was a stir in the courtroom, like a faint sigh.
McRoy paused for a moment, looking down at the floor, his chin in one uplifted hand. After he had the suspenseful effect he wanted, he continued.
“At that time, had your son and the Seminole fired?”
“No. When the Seminole said Rufus had come to give up, Burris Garret shot him, and then the Osages shot and there was a lot of shooting.”
“There was lightning, wasn’t there?”
“Yes. I could see Rufus at the corner of the barn, and the Seminole.”
“Do you know this man?” and McRoy pointed at Smoker Chubee. Chubee had begun to watch carefully.
“Yes. That’s Smoker.”
“How long have you known him?”
“Since he was a little boy,” she said.
“Was he at the barn with your son that night?”
“No. It was a Seminole.”
Evans took the witness. Her black eyes glared at him defiantly.
“Mrs. Deer, you said your son was going in to give himself up to Burris Garret. How did he know Garret was at the Corners?”
“He told me that morning he’d heard Garret would be there. I don’t know who told him.”
“This Seminole, when he called out, did he speak English?”
“No. He spoke Creek.”
“But, Mrs. Deer, other witnesses have testified whoever spoke did so in English. One witness cannot even understand Creek.”
“Maybe it was English. I was excited.”
“Mrs. Deer, if it was English, how did you understand it?”
“I speak English.”
“If you speak English, why are you testifying through an interpreter?”
“I don’t speak English that good.”
“Very well. Now, this Seminole. Where is he?”
“I guess he ran off, out of the country, because he was afraid.”
And that was all of it. McRoy rested his case on the one witness, and Evans whispered to me that he had to. There had been no Seminole nor hunters either, else McRoy would have been screaming for a continuance in order to find them. I hoped Evans was right.
When Merriweather McRoy rose to make his argument, one would have thought him the minister of a revival tent meeting. I began to mark the times he called on God in His mercy. Before he was finished, he had done so twenty-seven times, which amounted to about once each minute that he spoke. He harped on the question of jurisdiction and returned again and again to Mrs. Deer’s testimony, a mother mourning for the soul of her son and surely in that state not inclined to commit perjury. He cast aspersions on the character and credibility of every defense witness. In his words, I became the young and inexperienced thrill seeker down from Saint Louis to dabble in the serious business of other people.
Evans confined his remarks to one sentence.
“Gentlemen, it’s very hot in here and I see no reason to keep you any longer than necessary because the evidence speaks for itself.”
Judge Parker’s charges to the jury were sometimes long and complex, but on this day he was brief, dealing primarily with the jury’s determination of whether Burris Garret knew he was dying when he spoke the defendant’s name. The case went to the jury at ten forty-five, just a little more than two hours after testimony had begun.
FOURTEEN
For many years, the images of that muggy
day would come uninvited to darken the memory of my time in Fort Smith, for there was more than the murder trial of Smoker Chubee. It was the day we found the note, and the day Emmitt tried to run away from his fears, and the day we finally knew there was no longer a chance to bring anyone to the bar for the killing on Hatchet Hill Road.
When the jury retired, I went into the main hallway, pressed along by the crowd that had suddenly gone noisy and high-spirited. It reminded me of an intermission at one of the Gilbert and Sullivan plays at the Opera House. At the end of the hall, before the doors marked WHITE MEN and WHITE WOMEN, there were queues of people. Almost none stood at the COLORED MEN and COLORED WOMEN doors. There were some Indians among them, but I saw only two Negro men. I pushed my way through the throng to the front of the building and had just lighted a cigarette, standing on the porch hoping for some small breeze, when a bailiff came and told me Judge Parker requested my presence in his chambers.
I found Judge Parker and Evans, both in shirtsleeves now, and both in a high state of agitation. Parker sat at his desk, drumming his fingers. His mouth was set in a hard line and his heavy brows were pinched together in a frown. Evans was pacing, red-faced, waving about a small piece of paper. His pince-nez perched at the end of his nose, and each time they seemed ready to fall off he pushed at them with a vicious little jab of his hand. On a side table was lemonade, chunks of ice floating in it and the pitcher beaded with pearls of cool moisture. Empty glasses were waiting and I knew they had not been touched.
“Show it to him,” Judge Parker said.
The paper Evans handed me had a familiar look to it but I could not at that moment place it. It was rectangular, thick, and of high quality, with a distinctive tooth. It had been folded twice. As I spread it at the front of Parker’s desk, I could see a pencil scrawl and a rough sketch:
My mind still on the Chubee case, I had no notion what this message meant.
“What is it?” I asked.
“Found in one of the cells of the women’s jail,” Judge Parker said. “The room we’ve had that Negro boy in.”
“Emmitt? You found this in his room?” I asked. My first thought was how the boy must have reacted to such a thing. That morning on the Hatchet Hill road, when Schiller asked him to identify the men responsible for Mrs. Eagle John’s death, he’d said, “They cut my guts out.” And the danger to Jennie Thrasher struck me. If someone wanted the boy silenced, surely she must be no less endangered.
“That boy told me he could read,” Evans was saying, still pacing the small room from wall to wall. “But even if he couldn’t read, the picture is enough to convey the meaning.”
“The boy’s gone, Eben,” Judge Parker said. “And Mr. Evans tells me that without him your Eagle John case won’t get an indictment from the grand jury.”
“My God,” I said, staring at the penciled skull. “My God.”
Parker slammed his hand against the desktop and I jumped visibly.
“I want to know what’s happening here,” he shouted. “In a federal jail. Intimidating a grand jury witness. Somebody carrying off a boy in protective custody right under our noses.”
“If somebody carried him off, Judge, I doubt they’d have left any note,” Evans said, pushing his pince-nez up onto the bridge of his nose. “There’d be no reason for the threat if they physically took him. I suspect he ran off on his own accord, Your Honor.”
“But when—” I started, and Evans cut me off.
“This morning. Zelda Mores found his room empty. She’d come to see the church people about the baptizing. When she went back up, he was gone.”
“The what?”
“The church people,” Evans said irritably. “They’re baptizing today.”
“Now and again,” Judge Parker said, “churches send their ministers down here to baptize any prisoners who want it. Today, it’s the Baptists.” He said it with some distaste, being a staunch Methodist. “And Miss Thrasher had indicated she wanted to be baptized. The whole party’s down at the river now.”
“Jennie Thrasher is off down at the river—” But Evans interrupted me again. Both seemed to have little concern for her situation. The boy’s disappearance was all that occupied their thinking.
“Some of the deputies have been looking for him all morning,” he said. “They finally decided he was gone and told us about it just now. And gave us this.” He pointed to the note, still lying open on Judge Parker’s desk.
“Who found it?” I asked.
“Zelda Mores. Just before she took the Thrasher girl down to the river,” Judge Parker said.
“We’ve had no chance to talk with Zelda,” Evans said. “All we know is what the deputies told us she said. She planned to take that boy with her down to the river, along with the girl. But when she went for him, he was gone. After that, she didn’t want to leave Jennie Thrasher.”
“Well, I’m glad Zelda’s aware there might be some danger to the girl,” I said, and Evans glared at me over the top of his pince-nez.
“Eben, you’ve got four men in jail that are supposed to be the ones involved in these Winding Stair crimes. Now we’ve got this note. Is there any doubt in your mind about those men? Do you think there’s someone else out there you’ve missed?”
Judge Parker’s question surprised me. Everyone knew the personal interest he took in his cases. But I wasn’t sure a judge was supposed to be this involved, especially even before a grand jury sat on the case. But he’d asked and I answered as surely as I could.
“With the evidence we’ve got and the testimony of that boy, I think any jury would agree we’ve got them. All of them.”
“Yes, and that’s just the point.” He waved his hand at the note again. “That thing right there probably scared him out of testifying another word.”
“If you’ve got them all, the note means they have friends out there,” Judge Parker said. “And very close by. I want them, whoever they are.”
“Sir,” I said, feeling all this talk was wasting valuable time when Jennie Thrasher might be in danger. “I’m going down to the river and talk with Zelda Mores.”
“That’s one reason we called you in here,” Evans said. “With Schiller still in Choctaw Nation, you’re closer to this case than anyone else around.”
“And, Eben,” Judge Parker said, moving around his desk and placing a hand on my shoulder. “Use your own judgment about talking to that girl. Her room is at one end of the corridor up in the women’s jail. The boy’s was at the other, but she may have seen something. On the other hand, we don’t want to frighten her. We don’t want to upset her about this thing and frighten her off.”
I recalled the afternoon Jennie had slipped away and come to my hotel room, but I knew that wasn’t what Parker meant. He was afraid she might balk at testifying or have a loss of memory if she thought friends of the gang were trying to silence witnesses.
“Go on and see Zelda,” he said. “But use your own judgment.”
That was something, anyway, but my mind was too busy with other things to be congratulating myself on the judge’s show of confidence. The bailiff was hurrying down the hall, and I knew Smoker Chubee’s jury was ready to come in. The crowd still milled about in the main corridor as I slipped out the rear entrance and started for the west gate of the compound. Within a few steps, sweat was streaming off my face. I crossed the railroad and came to the high west bank of the river. I saw the group at once at the water’s edge, and there were a good many townspeople standing along the high ground, watching.
The church people were wearing white choir vestments, in a compact bunch near the pilings for the new railroad bridge still under construction, looking like a flock of snow geese. They were singing something I didn’t recognize. At the water’s edge were three men with leg-irons and handcuffs, and close beside them two deputies with Winchesters. It was an incongruous scene, this religious ceremony attended by the firepower of Parker’s court.
A few paces to one side was Jennie Thrasher. They ha
d given her a vestment, too, and she stood in the sunlight, her golden hair shining down her back, a bright, thin little figure against the background of the muddy Arkansas. Beside her was Zelda Mores, and the sight of that bulky form with her pistol-heavy purse gave me a sense of relief. Facing the bank and waist-deep in water were the minister and two young assistants, all with Moses beards. When the singing ended and the minister began to shout the opening words of his sermon, I moved closer and caught Zelda Mores’s eye. She came back up the bank to me at once. Jennie Thrasher’s back was toward me and I could not see her face.
“Mr. Pay,” she said, puffing as she came closer, the sweat running in rivulets through her thin mustache.
“We haven’t found that boy,” I said harshly, ready to blame her for what had happened. “You should have brought that note to somebody right off, and you should have kept Jennie in her room.”
Zelda stiffened and glared at me, and at first she had trouble speaking, her mouth opening and closing like a river catfish’s. When it came, it was a wrathful flood.
“I can’t watch two people at once. That girl down there’s my main concern. And she wanted this baptizin’ and I wasn’t goin’ to deny it to her. It’s about time she done something to save her soul. And that damned boy. Always wanderin’ around in the compound and he’s everybody’s pet and them other deputies is supposed to watch him. When I found that note, I told them deputies and they started lookin’. There wasn’t one thing Evans or His Honor could do about it then. There was already in court.”
“All right, you did what you could,” I said, irritated that what she said was reasonable. “But about that note. Where did you find it?”
“On the boy’s bunk.”
“Who’s been in those rooms since yesterday?”
“Nobody,” she said, still furious. “Just the old colored cleaning lady, comes in each morning.”
“Then maybe you can tell me how the note got in there.”
“I can. I thought about it. Last night when Emmitt was out in the compound, before supper, somebody give him a sack of popcorn. They’re always doin’ that. Givin’ him things. That note was in the sack. It couldn’t be any other way.”
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