Aces & Eights

by Loren D. Estleman

“That’s my money you’re leaving with,” Smith said quietly.

  “No, it’s mine,” tossed the other, over his shoulder.

  The shot crashed in the confined space. The drummer cried out, dropping his hat and sample case and clawing for the support of a nearby seat. Once he had it, he grabbed his foot and stared back uncomprehendingly at the revolver in Smith’s hand. Smoke whirled about the car’s interior.

  “You shot my foot!” he cried.

  “Just your bootheel.” Smith’s voice was even as always. “Come back here and play cards.”

  “My stop’s coming up!” The drummer was busy examining the sole of his shoe, which was indeed heelless.

  “It’s coming quicker than you think if you don’t pick up that money and get back here by the time I count ten.”

  The connecting door flew open and the conductor rushed in, a Remington revolver in hand. He found the four men seated as he had left them. “What the hell’s going on? What was that shot?”

  “I heard it too,” drawled Smith from the shadows. “It came from outside.”

  The conductor peered at him but was unable to make out his features. “Then how come I smell gunpowder?”

  “I don’t know. Does anyone else smell gunpowder?” He looked from one uneasy face to another, finishing with the drummer’s, which was pasty white. “No one smells gunpowder. I guess it’s your imagination.”

  There was something in his tone that made the railroader think of his wife and the eight years that still separated him from his pension, and he lowered the revolver.

  “I guess maybe it was,” he mumbled, and turned away.

  “When do we reach Yankton?” Smith asked him.

  “Two hours,” said the other. “Maybe you got business there.”

  “Maybe I do. In any case it’s hardly your affair, is it? Five-card draw, gentlemen—nothing wild.” Slim hands shuffled the deck.

  Chapter 4

  He was a big man, much of that bigness concentrated around his middle, though he could not quite be called fat, just beefy. His brow was low and retreating, sandy hair darkened with pomade and combed carefully across his skull in a partially successful attempt to straighten the curls, neck pink and naked-looking where a barber hired by General Crandall had trimmed the nape. His moustache had been trimmed as well so that it barely reached the top of his lip in a pencil-thin line straight across, but here the scissorswork had been ill-advised since it added to the overall shiftiness of his appearance. A broken nose and one eye turned inward as if to observe what its mate was up to contributed to the untrustworthy image. The suit was new, as was his shirt, starched white cotton with a black check, which crackled when he moved. He had refused to wear a necktie. Crandall and Gannon had conferred at some length over whether to buy him new boots as well, only to agree that his broken-down brown pair would help to create the impression of a man accustomed to honest toil. He had stolen them off a sleeping drunk in a Deadwood livery stable after his old ones had worn through at the soles. Rising from his seat at the defense table, he folded his big, broken-knuckled hands with their heavily shackled wrists in front of him and stood mute as his attorneys had counseled him when asked by the old man behind the bench how he pleaded.

  “Enter that as a plea of not guilty,” Blair instructed the court recorder, a young man seated at a tiny desk to the right of the bench. McCall sat, flanked by counsel, his chains clanking. Crandall was on his feet again an instant later.

  “Your Honor, defense moves for a dismissal on the grounds that the incident under examination took place in a lawless region entirely outside the jurisdiction of this court.”

  There was an audible sigh among the spectators, as of the sudden release of tension following the opening shot on a field of battle. The pews were packed, and the crowd left standing at the back of the room was larger than the entire assembly on most normal days. Several of the bonneted ladies held covered picnic baskets on their laps; the odor of pickles was at war with the older, more established smells of varnish and furniture oil and the oppressive stench of steaming wool. A heavy, wet snow was falling outside, and soaked overcoats and mufflers were drying slowly in the heat of a potbelly stove in the corner next to the judge’s chambers. A number of men in ill-fitting suits shared the front row, pencils poised over ruled pads. Upon entering and seeing them, Scout had wondered if any of them was the one who had written up the confrontation in the restaurant.

  At the General’s motion, Bartholomew, seated beside Scout at the prosecution table, turned to his partner with a wry grin and an almost imperceptible shake of his head. It seemed to say, “The bastard’s coming out swinging.”

  The prosecutor was less philosophic. In one fell swoop his opponent had destroyed the state’s basis for trying McCall a second time, by turning the charge that the location of the first trial was an outlaw town to his own advantage. Now Scout would be forced to fall back on the shakier alternative he and Bartholomew had discussed before.

  Judge Blair, who had donned a pair of wire-rimmed eyeglasses to peruse the sheaf of papers placed before him by the clerk, frowned and shifted his gaze to Crandall.

  “Overruled, General,” he said. “The Black Hills entered federal jurisdiction the day Congress opened the region to prospectors.”

  Crandall, still standing, hands in pockets, was unruffled. “In that case, Your Honor, defense moves for dismissal on the grounds that no man may be tried twice for the same offense, Mr. McCall having been acquitted by a legal jury in a legal town on August third of this year.”

  Blair had a hand in front of his mouth, all too obviously concealing a smile. Then he became stern. “Your point is well taken, General, though your verbiage could stand improvement. Outside the bailiwick of Judge Isaac Parker, which is atypical, every man convicted in an American court of law is entitled to request a second trial. Once acquitted, however, he cannot be forced to defend himself again.”

  “Is the bench instructing the jury at this time?” the General asked smoothly. “If it is, I must register an objection.”

  “Overruled.”

  “Exception, Your Honor.”

  “Noted.” Blair’s eyes flicked to the prosecutor. “Mr. Scout?”

  Scout rose and rested his fingertips on the tabletop. “Your Honor, it is the state’s contention that the miner’s court which acquitted Jack McCall, alias Bill Sutherland”—he relished the effect of ringing in the pseudonym sometimes employed by the defendant—“was an illegal body, convened in a music hall hardly in keeping with the issue’s solemnity, and tried by an illegally selected jury under the dubious direction of an unqualified judge chosen by an unruly mob, and that therefore the verdict was unlawful.”

  Crandall rebutted without waiting for the judge’s invitation. “The defense submits that Judge W. Y. Kuykendall was and is a duly appointed magistrate conforming to the laws of Dakota Territory and the United States, elected by a democratic majority to swear in a proper jury and to oversee a speedy and public trial as guaranteed by the U.S. Constitution. That body was convened not in a music hall as my esteemed colleague suggests, but in a respectable theater, which was the only place suitable, a courthouse not yet having been erected, and which was more than adequate for the purpose. Your Honor has read the transcripts from that trial and should be aware—”

  “Objection!” Scout, who had sat down, leaped to his feet. “No such transcripts have been introduced into evidence.”

  “Sustained!” Blair rapped his gavel. For the first time there was color in his cheeks. “Gentlemen, be seated. Bailiff, remove the jury.”

  The uniformed officer, a thickset man of middle age with a magnificent blond handlebar moustache, ushered the jurors out through the side door. Blair removed his glasses and sat back in silence until it was closed. Then, gravely:

  “General, you have practiced long enough to be aware of the procedure by which evidence is introduced in a modern court of law. In addition, you know full well that the ‘transcripts’ of wh
ich you spoke are not that at all, but merely accounts of the trial as it was reported in the Deadwood newspaper. I don’t know if you were attempting to prejudice the jury or merely testing me, nor do I care. But if you repeat this practice I shall find you in contempt of court and direct the bailiff to remove you to the city jail.” He turned to the officer. “Summon the jurors.”

  Scout studied Crandall as the jury filed back into the box, but could see no sign that his opponent was in any way abashed by the judge’s admonition. If anything, as he sat whispering with Gannon, he looked as if he had just won an important point. Bartholomew supplied the answer.

  “He’s got Blair reacting just the way he wants. Removal of either counsel means a recess, something any public defender worth his salt would gladly spend a night or two in jail to get. Meanwhile, his partner is free to develop strategy.”

  The prosecutor wondered idly how many dank cells had been graced by the General’s presence during his years with the bar.

  “The jury will disregard defending counsel’s reference to transcripts of proceedings not at issue in this court. As for your motion for dismissal, General, I have decided to overrule it on the grounds presented by the state. This trial will proceed.”

  Scout felt no elation at being upheld. He thought the judge guilty of a blunder in allowing the jury time to mull over Crandall’s mention of transcripts before instructing them to disregard it. Now the prosecutor would be fighting the specter of that acquittal throughout the proceedings.

  “There being no further motions,” said Blair, “I will ask the state to call its first witness.”

  George M. Shingle, the gold-dust weigher at Saloon No. 10, was a brawny man with big hands and a livid strawberry mark covering the right side of his large face, not a whit obscured by the handlebar moustache he wore with waxed points extending beyond his pendulous ears. His black hair was parted in the middle and slicked down on both sides. As he was being sworn in, his left palm all but obscured the Bible in the bailiff’s hand.

  “Mr. Shingle,” Scout began, after the witness’ name and occupation had been established, “did you know the deceased?”

  “I should say I did.” His voice was deep and gravelly, fitted for rougher garb than the dark brown suit he was wearing with a narrow yellow stripe. “We’ve been crossing trails since 1866, me and old Wild Bill.”

  “When you say ‘Wild Bill,’ you’re referring to James Butler Hickok, the murdered man?”

  “Objection.” Crandall spoke mildly, retaining his seat. “Prosecution has not established that any murder was committed.”

  “Sustained.” The judge glowered at the prosecutor. “My warning to General Crandall applies to you as well, Mr. Scout.”

  “I’m sorry, Your Honor. I’ll rephrase the question. ‘Wild Bill’ was the name by which you knew the deceased, was it not, Mr. Shingle?”

  At a loss as to what to do with his hands, the witness leaned forward finally and let them dangle between his knees. “Well, and I reckon that’s what most folks called him. I never heard no one say ‘James Butler’ when he was around, though he did usually sign himself ‘J. B. Hickok.’”

  “I see. What did Wild Bill do for a living?”

  “When he first come to Deadwood he staked a claim and done some mining, but hard work never did agree with him, so he turned to gambling. Bill was a mighty good poker player. I reckon that if someone was to tote it all up they’d find that he spent more time at the table than just about anywhere else.”

  “Was that all he did?”

  “Oh, hell, no.” He smiled nervously, showing a gold crown among surprising well-kept teeth. “When I first come to know him he was scouting for the army, and before that I’m told he was a regular war hero fighting Johnny Reb and before that he was a stage hostler at Rock Creek Station in Nebrasky, where he got into a fracas with the McCanles gang but come out of it all of a piece, which is more than I can say for them McCanleses. Since then he done some marshaling here and there, places like Hays City and Abilene—which is where he got his reputation—I don’t know what all else. You might say he done a little of everything worth talking about.”

  “By ‘marshaling,’ do you mean that he had been an officer of the law?”

  “I didn’t think it meant nothing else.”

  Mild laughter rippled through the gallery at Shingle’s remark, quickly stilled by a fierce glance from the bench. Scout, who had not moved from behind his table, smiled to show that he had a sense of humor. He let it fade naturally.

  “To your knowledge, Mr. Shingle, was Hickok marshaling at the time he was killed?”

  “Your Honor, I fail to see where Mr. Scout’s questions are leading.” The General had a typewritten sheet of paper in front of him and was punching holes in the margins with a pencil.

  “Would you mind filling us in, counselor?” the judge asked Scout.

  “I hope to demonstrate the enormity of the crime, Your Honor, by establishing that the deceased was a peace officer.”

  “A peace officer has neither more nor less right to live than any other citizen, counselor. General Crandall’s objection, if it is an objection”—he looked to the defender, who assured him that it was—“is sustained.”

  Scout shrugged acquiescence. He had made his point. “Mr. Shingle, would you tell the court where you were on the afternoon of Wednesday, August 2, 1876?”

  “Where I usually am,” the witness replied. “At my table in No. 10, weighing out gold dust on my scales.”

  “What transpired on that day?”

  Shingle cleared his throat, a dry, racking noise. Scout filled a glass with water from the pitcher on his table and brought it to him, returning immediately to his place to avoid dividing the jury’s attention. Every eye in the room, with the exception of Crandall’s, busy aiming his pencil at a fresh sheet of paper, and of Gannon’s, directed toward a wide-ruled pad upon which he was scribbling notes, followed the dip and rise of the witness’ Adam’s apple as he chugged down the contents of the glass. When it was empty he set it down on the rail in front of him with a soggy thump.

  “There was a game of five-card draw going on at the center table,” he began, mopping his lips with a red handkerchief drawn from his hip pocket. “The players were Cap’n Massey, Charley Rich, Carl Mann—one of my bosses—and Con Stapleton. I reckon it’d been going on for about a half hour when Bill came in carrying his shotgun. He stopped long enough to shoot the breeze with Harry Young, who was tending bar—I didn’t hear what they said—and then he come over to join the game. But the only empty chair had the back door behind it, so Bill asked Charley would he change places.”

  “One moment,” Scout interrupted. “Why was it so important that he sit somewhere else?”

  “Bill always liked to have a wall behind him, on account of he was scared of getting shot in the back. Charley was sitting against the bar, which for Bill was the best seat at the table.”

  “I see. Please go on.”

  “Well, Charley joshed him out of it, claimed he was getting superstitious in his old age. So Bill took the other seat. Oh, and I forgot to say he laid down his shotgun on the next table—that was before he sat down. Carl had me bring Bill some checks to play with, on credit like always. After that things got pretty quiet, until Jack McCall showed up.”

  “Did you recognize him?”

  “Only by sight. He played poker with Bill the day before, and I gave him checks to play with in return for gold dust. I seen him before once or twice, drinking at the bar or swamping out after the saloon was closed. I reckon that’s how he earned his drinks.”

  “Objection!” The General stood, his face redder than usual. “Speculation!”

  “Sustained,” ruled Blair. “Strike that last remark from the record. The jury will disregard it.” Crandall resumed his seat.

  “Please continue, Mr. Shingle,” Scout said.

  “McCall started walking toward the back like he was fixing to go out the back door. Then he appeared t
o change his mind and turned around. I wasn’t paying too much attention. About that time Bill and Cap’n Massey got into an argument over the game. I don’t know what started it. It wasn’t much of an argument, but they raised their voices some, and that’s when I looked up and seen McCall fire his revolver.

  “He fired from about two or three feet behind, saying, ‘Take that.’ The ball entered the back part of Wild Bill’s head, and come out of the right cheek bone, entering the left wrist of Cap’n Massey. The shot killed Wild Bill instantly. He did not move and said nothing. He sat in the chair a couple of minutes and then fell over backward.

  “McCall was moving toward the back door, with his revolver in his hand holding it up. As I went to look at Bill, McCall pointed the revolver at me and snapped it. I reckon it misfired or I wouldn’t be here. But I wasn’t taking no chances and got out of the house. The weapon used was a Sharps improved revolver, eighteen inches long, with a piece of buckskin sewed around the stock.”

  A heavy silence descended over the courtroom in the wake of the gold-dust weigher’s narrative. The sudden squeal of hinges as the bailiff prepared to poke a fresh chunk of wood into the stove drew a startled gasp from the gallery. Scout waited another moment before asking his final question.

  “Mr. Shingle, can you identify the man you saw shoot and kill James Butler Hickok?”

  “That’s him, sitting behind that table.” He pointed at the man in shackles.

  Chapter 5

  “There are as many ways to approach a witness during cross-examination as there are lawyers,” Bartholomew had once told Scout.”Some come barreling out from behind their tables, head down, like a bull buffalo challenging another for leadership of the herd. Others stroll around, their hands in their pockets, looking like they’re interested in everything but the witness until the moment they dive for his jugular. Still others don’t approach at all, preferring to fire barbed questions from their side of the table that ring in the rafters and keep the witness hopping from one subject to another with no chance to think before answering.” General John Quincy Adams Crandall subscribed to none of these practices.