“Going away from a trial like that, a murder trial, leaves a man empty, Joe,” I said. “It wrings a man out.”
“I like it,” he said, his teeth showing when he turned his head toward me. The wind spread the tail of his plaid suitcoat out behind his butt like the cowcatcher on a Frisco locomotive. “I like them men up there yellin’ at one another.”
“You go after somebody with all the enthusiasm and ardor of justice on the march, and then when you’ve got them in that room, with their lives in the balance, everything takes on a new dimension.”
He stopped and looked at me for a moment, only half sensing what I was saying.
“Well, I like goin’ after ’em, too. But I like it near as well when they’re in front of Parker. I like it all.”
“It takes away all a man’s dignity, having his life laid out bare before all those gawking people, sopping it up like free whiskey. Hell, even a killer ought to have some dignity left to himself.”
“You worry too much, Eben Pay,” Joe Mountain said.
We were standing now on the high ground of Belle Point, where the Arkansas and the Poteau flow together. The breeze off the flat floodplain to the west was cool. It was almost like October, and I half expected to smell elm leaves burning, as they would be soon along the streets of my home in Saint Louis. As soon as this was over, I would go there, to see after my mother’s health and sort out my thoughts, waiting the verdict of the Supreme Court, for I knew Merriweather McRoy would appeal both the Garret and the Thrasher cases.
We watched a small Negro boy pull a three-foot catfish from the water near the new pilings of the Jay Gould bridge. I was reminded of Emmitt, still cloistered in that cell in the women’s jail, still frightened for his life.
“I wonder what it feels like, being on trial for your life,” I said. Joe Mountain squeezed the fire from his cigarette and shredded the short butt, watching the tobacco blow quickly away in the wind.
“You sure bother yourself about funny things, Eben Pay. You don’t have to think about that, unless you do murder. And get caught.”
“Justice tempered with mercy,” I said. “That’s the way it’s supposed to work.” From where we stood, we could see the gallows roof in the federal compound, rising above the stone wall.
“Well, if you got to think about that, just put your mind to what we found in that farmyard. Wasn’t much mercy showed there, was there? Besides, maybe ole McRoy will argue them jurors into a not guilty.” And he laughed.
“McRoy’s good. He’s a good lawyer, knows plenty of tricks.” Somewhere along the river, a train whistled. “I wonder why Johnny Boins’s parents weren’t there.”
“They gone. I heard they left town two days ago.”
“Maybe it’s understandable, knowing the strong case Evans had, not wanting to be there and see their boy in that situation. But how could they just take that train out of here, and leave him alone?”
“Maybe they give up on him finally,” Joe Mountain said. “Anyway, it don’t matter to Johnny Boins. He don’t give a damn. He don’t give a damn for nothin’.”
I thought of Smoker Chubee. Grube and Cornkiller seemed to me poor derelicts caught up in all this, brought into it by Rufus Deer. But there was an evil and brooding spirit about the dark-skinned man with the deep pockmarks, impossible to define. Thinking of him made a chill go up my spine, as it had so often when I watched him in the courtroom.
“What about that Chubee, Joe?”
For a long time, Joe Mountain looked across the river into the Indian country, where beginning heat was making a blue haze far out along the horizon.
“In the old days, he’d have been leading war parties,” he said, and I sensed a certain admiration in his voice. “He’s a deadly man, Eben Pay.”
His sudden seriousness was somehow funny, and I laughed.
“You sound as though you might be afraid of him, Joe.”
“Any man’s a fool if he ain’t a little scared of a homeless dog,” he said. Then he laughed, too, showing those huge teeth. “But I tell you, I’m glad the only time we ever shot at each other, he missed. What bothers me is I missed, too, that night in Creek Nation. That bothers me, Eben Pay.”
Downriver, we could see a steamboat pulling into one of the docks at the foot of Garrison Avenue. On the decks were bushels of peaches and bales of cotton, these last for the Fort Smith textile mills.
“Well, we’d best get back,” I said. “We may as well see the finish of this.”
“You bet,” Joe Mountain said.
When Evans rose to make his argument, his hair and beard were fresh combed. All his combativeness of the closing moments of testimony was gone, and when he spoke his voice was calm and deliberate.
“Gentlemen of the jury. The evidence has shown that at the very least, this is what happened. Rufus Deer and Johnny Boins planned a vicious crime together. Having seen a racehorse and a girl they coveted, they sent Skitty Cornkiller, a well-traveled man in his occupation as a whiskey peddler, into Choctaw Nation to find that horse and that girl. Then the three of them in company with two other companions, Nason Grube and Smoker Chubee, went to the farm where horse and girl had been found. Nason Grube because he was the constant companion of Cornkiller. Smoker Chubee because he was an expert with firearms, a bodyguard for these schemers.
“This massive evidence”—and he waved his hand toward the pile of exhibits on the jury railing—“and the testimony of Mrs. Thomas Thrasher put them at the scene of the crimes, and Mrs. Thrasher’s horrifying story revealed to you what happened there. Rape and murder! Committed by this gang of men, with malice aforethought. With vicious disregard for human life and for the morality long associated with civilized societies. Done with laughter!
“The government of the United States asks that you do nothing more than your duty. Bring us a finding of guilty, on all counts of the indictment.”
It was so short, the jury had hardly settled in their seats before it was finished. But it left them with few details to clutter their thinking, another point I would have to remember.
“Gentlemen,” McRoy began, standing at the jury railing, his hands resting among the clutter of prosecution exhibits. “This case rests solely on the testimony of one person. A person understandably distraught when these depredations were committed before her eyes. Does her memory serve her correctly? Is there not some doubt in your mind? A woman hysterical, in hiding for days? Think of her in that condition. Think of her fear and suspicion. And then she is brought to confront a group of men and told by the prosecutor, ‘These are the ones who did it!’ Can you send men to their deaths on the basis of her reaction to such a situation?”
He paced to the center of the room and finally turned, facing the jury. He spoke of each defendant in turn, indicating the man with his outstretched hand. Johnny Boins, surely a madman, with a reasonable doubt that he had been in the Winding Stair anyway. Skitty Cornkiller and Nason Grube, with a bill of sale for a horse, arrested for having that horse and then thrust before frightened and confused witnesses for identification. Smoker Chubee, who had seen Mrs. Thrasher escaping and had not fired, surely unfit for the role of killer, in which he had been cast. He spent a great deal of time on reasonable doubt, moral certainty, and circumstantial evidence, repeating his points. Again and again he returned to the state of mind of Mrs. Thrasher, her fright and hysteria. Then he concluded.
“Yes, gentlemen, I appeal to your instinct for justice and to your humanity. I ask a verdict of not guilty. Thank you.”
While Evans presented rebuttal, I studied the faces of the jurors. I tried to imagine what was in their minds, behind the frowns and pursed lips, the expressions of deep concentration. But it was impossible to tell how they would decide.
“And so, gentlemen, to conclude,” Evans was saying, “I, too, appeal to your humanity and your sense of justice. A fine woman has appeared before you, told you how she was despoiled and her husband and hired hands killed in ruthless disregard for the laws and
manners of society. You must find these four defendants guilty as charged.”
For a long moment. Judge Parker shuffled papers on the bench, all eyes on him. When he had them in proper order, he tapped them on the green felt cover, placed his glasses on his nose, and began to read.
“Gentlemen of the jury. You will find on three things: the evidence, the law, and reason.
“As to the evidence, which includes all you have heard and all you have seen properly introduced. You are the sole judge of its merits. Only you can determine the weight of it and the credibility of witnesses. You must take what you have heard and seen, and apply your reason to it. You must make a decision in full knowledge that the burden of proof rests on the government. These defendants are innocent until the government has proven them guilty beyond a reasonable doubt.
“Two of these defendants have elected to testify under oath. You will consider their testimony as you do all other testimony. Two have elected to remain silent. You cannot judge that choice in any way—not as an admission of guilt nor in any other way. Each of them, all four, whether they chose to take the witness stand or not, must be considered innocent until proven guilty beyond a reasonable doubt.
“Some of the evidence is circumstantial. In order to convict on circumstantial evidence alone, that evidence must clearly exclude all other reasonable hypotheses.”
He continued in this vein for some time, emphasizing over and over that the burden of proof was on the government, and that the merits of all the evidence was a determination the jury alone could make, using common sense and reason. Then . . .
“As to the law in this case. Manslaughter is the crime of taking a human life when the person committing the homicide is incapable of forming an intent to do wrong while under the influence of alcohol. The penalty for manslaughter is at the direction of the court.
“Murder by reason of insanity is the killing of a person by another who has not the mental capability to distinguish right from wrong at the time the homicide is committed. The penalty for murder by reason of insanity is commitment to an asylum for a period determined by the court.
“Murder is the crime of killing another without just cause such as self-defense. Murder is killing with malice aforethought or premeditation, of no matter how short duration. Murder is the killing of another during the commission of a felony. Those who commit the crime of murder are all persons directly involved in the plan, not only the principal, but the accessories. An accessory is anyone who willingly takes part in a premeditation or felony and does not draw back and away from the crime prior to its commitment. The penalty for murder is death.
“Rape is defined as the carnal knowledge of a woman, necessarily including the penetration of her body, no matter how slight, against her will and without her consent. The penalty for rape is death.
“Gentlemen, once more. You and you alone are responsible for a finding. Base it on the law as I have described it, the evidence you have seen and heard, and your own good common sense and reason. Retire now, and consider your verdict.”
At the end of it, Judge Parker looked tired and drawn. His cheeks had taken on a gray color and there was not in his movements the quickness so obvious before. He seemed anxious to be away from the courtroom.
The jury was out only long enough to select a foreman and take one ballot. The spectators stayed in their seats, and even the defendants remained at their table, contemplating their chains. As the jury trooped back across the front of the room, the only sound other than their heavy footfalls was the droning of flies, more active now in the rising heat of afternoon. Judge Parker took his place so quickly only a few in the courtroom had time to rise. He waved them back into their seats with that now-familiar motion of one hand.
“Gentlemen, have you reached a verdict?”
A tall, rawboned man rose, a man with huge, gnarled hands and the sunburned nose of a lowland farmer. He was holding in his fingers the paper given him by the bailiff when the jury retired, and now he looked somehow unsure that indeed a verdict had been reached.
“We have, Your Honor.”
“Defendants, rise,” Judge Parker said. There was a rattle of iron as the four stood, Nason Grube leaning on the table with both hands. Johnny Boins was still smiling, as though it were perpetually with no meaning, no relationship to anything that was happening around him. Skitty Cornkiller stared at the jury through the shock of black hair that fell across his face. Smoker Chubee continued to chew, unconcerned, his flat black eyes roving the wall just above and behind the jury box.
“Mr. Foreman, pass the verdict to the bailiff.” The legal-sized sheet of paper was handed from jury to bailiff to Parker, everyone in the room watching it move from place to place. Judge Parker did little more than glance at it before he read. “We the jury find the defendants, Johnny Boins, Skitty Cornkiller, Nason Grube, and Smoker Chubee, guilty of rape and murder as charged in the indictment. Signed John T. Ferguson, Foreman.”
Parker’s eyes lifted and he stared at the jury over his glasses.
“Is this your verdict?”
“It is, Your Honor,” Mr. Ferguson said, and sat down with what appeared to be an expression of pained relief.
Still, there was no sound in the room except the rattle of chains as the four men took their seats again.
“Because the sentence is set by law, there is no purpose to be served in taking arguments in aggravation or mitigation,” Judge Parker said. “I see no reason to postpone sentencing. This trial has taken less time than I had thought it would. I see no advantage in setting sentencing forward on the docket. I assume, Mr. McRoy, that you will file for appeal?”
“Most assuredly, Your Honor.”
“Then, there being no objections”—and he looked at both defense and government counsel—“I will pass sentence. The jury is excused.”
Once more, the jury marched out in single file, still looking grim. The defendants were instructed to rise. Judge Parker looked exhausted now, and perhaps because of that his remarks were short. He called it a crime vicious in the annals of wrongdoing. He said only a merciful God could forgive them, but the law could not. He asked that they do what they could to prepare for final judgment from Him. Then he asked if any of them had anything to say.
“I want to appeal to the Supreme Court,” Johnny Boins said, and I thought him about to laugh aloud.
“I don’t blame you,” Judge Parker said, but the snap was gone from his voice.
“I never done this,” Skitty Cornkiller said, so low the people in rear of the room strained forward to hear.
“I never done it, either, Judge,” Nason Grube said, and he began to cry.
For a long time, everyone watched Smoker Chubee, standing with his manacled hands before him, chewing calmly, his eyes on Judge Parker, showing no flame, no spark. Finally, he spoke.
“It’s been a bad bet.”
Then, Judge Parker sentenced them to be hanged by the neck until dead.
“. . . and God have mercy on your souls.”
NINETEEN
I had been raining most of the morning. Through Evans’s open window, I could hear water falling from the long eaves of the courthouse building. Looking toward the river, I saw a blue-gray veil of water, a steady, ground-drenching drizzle. Some of the early dying leaves had been beaten off the maples along Second Street, and soon all would be turning brilliant red and gold in that most beautiful of times in the Arkansas Valley, the few weeks before winter.
The files before me held little interest. They were concerned with such diverse items as a stolen rick of firewood in the Cherokee Nation and a mail robbery on the Missouri Pacific in Van Buren. The papers were spongy and moist. It was like trying to write on wet tobacco leaves. Now and again, I could hear the murmur of proceedings in the courtroom, where Judge Parker was finishing out the docket for the summer term. Evans was there now, trying a white man, a friend and lover of Belle Starr, for stealing horses in the northwest corner of The Nations, where for some years
the United States government had reserved Ottawa, Shawnee, Ponca, Seneca, and a host of other peoples. The Indian names still had the power to enthrall me.
It was two days since I had sat in that courtroom and heard the sentence of death passed on the Winding Stair Four. The appeal process was already under way, Merriweather McRoy moving quickly to bring the case to the Supreme Court. He hoped to win reversal on some technicality, I assumed. Almost all of Parker’s reversals had come as a result of his charges to the jury, and perhaps that was why in this case he had been brief and succinct. Now we would wait. And in the federal jail, in their high-tiered cells, the four would wait, too—on death row, where a light burned all night and a jailer walked past the barred door every ten minutes.
I was fiddling with a pencil and a notepad, drawing tiny death’s heads, when I saw the covered taxi hack pull into the west compound gate, and recognized Mrs. Thomas Thrasher among its passengers. I hurried to the window and watched as the carriage pulled up to the back porch steps. George Moon was there, and Charley Oskogee and his wife. When the vehicle drew to a stop, the two Choctaw policemen leaped out and ran up the steps and into the building. I realized then they had come to take away Jennie Thrasher.
Evans had a few old umbrellas in a corner stand, and I took one and went out to the porch as George Moon appeared from the upper floors with an armload of luggage. He glanced at me but went on to stow the suitcases in the hack’s boot before coming back to shake hands. By then Charley Oskogee was there, too, and the three of us said nothing, gripping hands silently as the rain murmured on the roof above us. Before he went back to the hack, I handed Charley Oskogee a package of tailor-made cigarettes, and a faint smile touched his lips, as he remembered with me that first morning in Winding Stair when he’d come up beside me and offered a smoke. He took the cigarettes without a word and turned down the steps, running through the rain to the hack.
It seemed an endless time I waited, looking at Mrs. Thrasher. Her black eyes were on me for a moment, and then she turned her face away. Jennie Thrasher came down. Emmitt was with her, and she was holding the boy by the hand. She wore a cape, tied round her long neck with a broad blue ribbon, and on her head was the same bonnet she had worn at the trial when she testified.
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