Had they been lovers? This dark, proud woman and the handsome, careless Silver boy? Perhaps, perhaps not. We would never know. Mr. Woodfin had no interest in letting us know. It was the seed of doubt he had meant to plant, and he was satisfied that he had done so to his client’s advantage. Still, I thought, the fact that Nancy Wilson had a metaphorical ax to grind did not mean that Frankie Silver had not used one in a more literal sense.
One of our own Morganton physicians, Dr. William Caldwell Tate, was the last witness before the recess. He is an affable young man, only just graduated from the South Carolina Medical College in Charleston, and back in Morganton to practice medicine alongside his older brother, Dr. Samuel Tate, who is not the Sam Tate that had served as foreman of the grand jury last week. The two Sam Tates are first cousins, and to the eternal vexation of future genealogists, no doubt, one Sam has married the sister of the other. (Anyone who can keep Morganton bloodlines straight can do square roots in his head.) Of young Dr. William Tate, suffice it to say: his mother was an Erwin.
In the cheerful, impersonal tone of all his kind (as ifhe did not have a skull, or brains to leak out, or a life that would be all too brief), Tate commented on the injuries as they were reported to him by Constable Baker. The young doctor had been chosen to make that arduous two-day journey over the mountains to examine the corpse because the more established physicians could not have been spared from the care of their own patients in the vicinity of Morganton. “We cannot neglect the living in order to see to the dead,” his brother had once remarked in another court case.
After establishing Dr. William Tate’s identity and medical qualifications, Mr. Alexander said, “Constable Baker described the nature of the injuries sustained by the victim, did he not?”
“He did, sir. I was able to examine the remains for myself, and my opinion tallied with that of the constable.”
“How were the remains found?”
“Some, of course, were burnt, and of those I was able to examine only fragments, but the others had been buried in the snow or concealed about logs in that frozen wilderness, and those parts were tolerably well preserved. The skin had been blanched and shriveled from the cold, but there was no decay or invasion by insects.”
I looked at once at my sister-in-law Miss Mary, hoping to see her swooning in the arms of her cousin, but she was as alert and attentive as if a quadrille were being performed. I put it down to a want of imagination on her part, for I felt that the room had suddenly become unseasonably warm.
The doctor continued, “I have taken the liberty of producing a sketch of the placement of various wounds.” He drew a sheet of paper out of his coat pocket and handed it to the attorney, who examined it and passed it on to the judge, to Mr. Woodfin, to the jury, and lastly to myself. Dr. Tate had sketched the head and limbs unconnected to a torso, and he had labeled each part with the size and nature of the wound. Many of his notations read:Sawing marks, made post-mortem. It was not those wounds that concerned us.
“Were you able to determine the cause of death, Doctor?”
“Any of a number of strong blows with an ax would have served to dispatch the victim, but the one I judge most likely to have done so was a head wound-a gash of several inches’ width along the right side of the skull. That blow would have so incapacitated a man that he would be unable to defend himself.”
William Alexander considered the matter. “One quick blow to the head-probably delivered without warning-and poor Charles Silver is helpless before his murderer. Would it require great strength to strike a man thus with an ax?”
“Well, sir, a child could not have done it,” said Dr. Tate, “but nearly any able-bodied adult could have managed it. It would take more force than cracking an egg, but less than chopping kindling.”
“Would a woman be able to manage it?”
“Oh, easily, I should think. Especially if she was accustomed to doing farmwork.”
The prosecutor smiled. “Thank you, Doctor.”
The courtroom was a hive of murmurings for a few moments thereafter, and I distinctly heard one man say, “I knew she done it!” before Judge Donnell scolded them into silence.
Nicholas Woodfin took his time approaching the witness. “Dr. Tate,” he said slowly, “I know that you have stated that it is physically possible for a woman to have struck this fatal blow. Let me ask you to consider another aspect of that possibility. Have you ever, in all your training and experience, heard or read of a woman killing someone with an ax?”
The physician seemed to be staring straight at me, but I knew that he was not seeing, merely searching the memory behind his eyes for some tale of a murderess. “Poison is a woman’s weapon,” he muttered at last.
“Yes. Poison,” said Nicholas Woodfin. “The ladies don’t like untidiness, do they?”
“Not generally, no. But if you were angry or desperate, and you had the weapon to hand…”
“But-let me repeat-you know of no caseever in which a woman dispatched anyone with an ax. Is that correct?”
“I can’t call one to mind. No.”
“Such a thing would be unheard of then, in your experience?”
“Well, Charlotte Corday killed Marat in his bath with a knife. Of course, she was French.”
When the laughter subsided, the attorney said, “Mademoiselle Corday was not a young girl of eighteen, either, was she? She was a political fanatic killing a stranger, was she not?”
“I suppose so.”
“Hardly a parallel to this case, would you say, sir?”
“Perhaps not.”
“Doctor, if someone had come in and told you that a young man’s head had been split open with an ax, and his body parts strewn about the yard, would you have told the sheriff to look for a slight young woman of eighteen-working alone?” He sounded the last two words louder than the rest, and I heard answering gasps from the spectators.
Mrs. Silver stopped staring at the window and blinked. I saw her slender form stiffen within the shapeless mass of that faded gown. Her blue eyes met mine; I was first to look away.
Dr. Tate cleared his throat. “Well, not to expect a thing isn’t to say it can’t happen.”
Nicholas Woodfin shook his head. “Again, Doctor:Would you have expected such a thing? ”
The physician glanced at the prosecutor and shrugged before responding to Mr. Woodfin’s question. “No,” he said at last.
A few moments later Mr. Donnell dismissed the buzzing court for the noon recess. I was generally the last person to leave, for I had to gather up my notes and tidy my desk. Beside, I didn’t care to be jostled by the rabble in their haste to reach the taverns. Nicholas Woodfin rose, murmured a few words of encouragement to Mrs. Silver, and then took his leave of her. I hoped that he was spending the noon recess in study and contemplation, because things did not look well for his young client. Then I saw Thomas Wilson lingering in the doorway, obviously waiting for his colleague so that they could confer about the events of the morning.
At last the prisoner stood up, preparing to be led back to her cell by Mr. Presnell, but I could see that she, too, was loath to go. She kept looking back at the departing mob, and once she whispered something to the constable, who looked annoyed but gave a grudging assent.
Finally, two men, moving against the tide of humanity, emerged at the rail within arm’s length of Mrs. Silver. They did not reach out to her, though. Her father and brother, for it was they, stood together grim-faced and almost shy before this young girl who had suddenly become a presence. They fingered the brims of their hats and shifted uneasily from one foot to another. The constable took a step back from the family gathering, eyeing them warily, his hand on his weapon. I lingered over my papers, straining to overhear what was said.
“Well, Frankie,” said Isaiah Stewart.
“How are they treating you?” her brother Jackson asked.
“I get enough to eat,” she said. Her frown was directed at the floor. She had appeared anxious enough to see
her family, but now that they had appeared, the meeting seemed to afford her no pleasure. They made no move to embrace the girl or to clasp her hand. The three of them stood in awkward silence until finally Frankie Silver asked, “Did Mama send any word?”
“Only that she is praying that God will spare you,” said her father.
The sullen look returned. “I see,” she said softly. “She didn’t come.”
“No. We thought it best.” Her father would not meet her eyes as he said this, and I strained to hear her reply, but there was none, until after some more leaden silence, she said, “And my baby?”
“She’s over to the Silvers’ place,” said Jackson. “We ain’t seen her, but I reckon she’s doing all right. Miz Silver just had a new baby boy herself last month, so likely it’s as easy for her to do for two as for one.”
Frankie Silver’s eyes sought those of her older brother. “When you get home, Jack, I want you to ride over there and see she’s taken care of good,” she said, and as he replied with a shamefaced nod, another thought struck her. “Where’s Blackston?”
“We left him home to look after your mama. It’s still cold yet up the mountain, and she wanted him to tend the fire and see to the livestock.”
I thought that the Stewarts had been wise to keep the other two suspects well out of Morganton, since tempers are apt to run high on court days, but Frankie Silver’s eyes filled with tears. Perhaps she wishes to see her dear mother and brother one last time, I thought.
“Alone, then,” she murmured.
“We’re right here, Frankie,” her father said.
“We’ll do what we can.” The voice of Jackson Stewart carried more conviction. “We’ll doall we can.”
Brother and sister looked at each other and nodded as though an understanding had passed between them. “I’ll say no more then,” she said, and she turned to Mr. Presnell. “We can go now, mister.”
As the constable led her away, I heard her say, “Can we stand off by ourselves on the lawn for a little bit?”
“It’s time to eat, ma’am.”
“I want to look at the mountains. Can you see them from here?”
I made my way out into the now deserted hall, intending to fortify myself at one of the taverns if space and congenial company could be found, when a shrill voice halted me in my tracks.
“Mr. Gaither!Brother! ”
I froze. My wife’s sisters generally employed the term “brother” only when prefacing a favor, and since I recognized this sister’s voice as that of the redoubtable Miss Mary Erwin, I turned slowly toward her with a smile of greeting and a soul of dread.
“Miss Mary,” I said. “How are you enjoying the trial? May I take you home to dinner?”
“The trial is a travesty,” she informed me, ignoring my pleasantries. “And I do not see how anyone of good conscience could eat after having witnessed it.”
I determined not to take this slur personally, even though it was in a sense my court and my trial. I wonder if she would have said such a thing had her dear father continued in the position of clerk of court. “Are things not proceeding to your liking?” I asked politely.
She did not quite reach my shoulder, but she stood there glaring at me, with her parasol perched musket-like on her shoulder, looking for all the world like an Amazon maiden. At my question, the warrior’s scowl gave way to a look of womanly pity. “Oh, Mr. Gaither,” she sighed. “That poor lost girl. I cannot make sense of it at all.”
“We think she must have killed her husband because she lied and said that he had not come home, and of course… he had.”
“Not that!” she said, frowning impatiently. “Of course I have followed the trial procedure. I understand perfectly what the witnesses have sworn to. But what we want here is some plainspeaking.”
“How so?” I murmured. I looked about for her cousin James, but he seemed to have made good his escape while she waylaid me.
“The girl is the only living soul who knows what happened in that cabin, Mr. Gaither. Put her up in front of the court andask her.”
“That we cannot do, Miss Mary,” I said.
“Why not?”
“Because defendants may not testify in felony cases. Surely you know that. It is the law of the land, handed down to us from English common law. A venerable tradition that goes back centuries.”
“To the Dark Ages, no doubt, where it belongs,” she replied. Her gloved hand touched my arm. “Can you not waive the rule in this case? I feel sure there is something we ought to hear. Let the girl speak.”
I smiled gently at the flattery implicit in her request. Could I, as clerk of court, set aside codified trial law and age-old tradition because an Erwin wished it so? I shook my head. “Even if I were to attempt such a thing, Miss Mary, neither Judge Donnell nor the prosecutor would allow it. You might even find that the lady’s own attorney would wish to keep her silent for fear that with her testimony she might inadvertently condemn herself. She will not speak.”
“Then how can we get at the truth?”
Although I had questioned that very stricture in my own mind often enough, I found myself defending the no-testimony rule to my sister-in-law. “There are those who say that hearing a felon’s sworn statement would not avail the listeners of the truth. Such a custom would merely give the accused an opportunity to perjure himself, and to put his soul in further peril by breaking his oath before God.”
“You think she would lie under oath and be damned for it?” said Miss Mary.
“So it is argued.”
“Is it better that she should say nothing and be hanged for it?”
I had no reply to this, and Miss Mary did not wait to hear one.
When court resumed that afternoon, the prosecutor called more witnesses from the search party that had scoured the woods for Charlie Silver’s remains. No new revelations came to light. The only purpose of the afternoon sessions was to hammer home the two themes of William Alexander’s case: that the murder was pitiless and horrible, and that the defendant had repeatedly lied.
At last, as the afternoon light thickened into evening, he announced that he had no further witnesses to call. Mr. Nicholas Woodfin might now present his case.
I had doubted that Woodfin would call any witnesses of his own. What on earth could they say? No one had said anything to the detriment of the character of the defendant. Those who took the stand had all admitted, however grudgingly, that young Mrs. Silver was hardworking, sober, altogether a dutiful wife and mother. There were no past incidents of violence or wanton behavior to explain away.
Was she mad, then? I could not believe that anyone present in that courtroom would think so. Frankie Silver had sat solemn and silent through the day’s grim proceedings, her behavior unmarked by fits or laughter, and her person as seemly and fair as a maiden in a church pew. He had nothing to deny then, except the sworn testimony of half the frontier community: Frankie Silver had lied. I saw no way around it unless he put her on the stand, and that he was not permitted to do. A bitter outing for a newly minted lawyer, I thought. God help him.
Nicholas Woodfin took a deep breath as he rose to face the judge. “Your Honor,” he said, “the defense rests.”
Burgess Gaither
VERDICT
By the time the shadows were lengthening on the lawn outside the courtroom, both attorneys had concluded their closing arguments. I had spent much of the afternoon gazing out the window at the trees and the clabbered sky above them, letting the words wash over me, as they would surely drown Frankie Silver.
Judge Donnell delivered his own ponderous summary of the evidence and the jurors’ obligations, and then he sent the jury out to deliberate. They would report back promptly the next morning to deliver their verdict. Court was adjourned until then. I wondered if His Honor would sleep any better than the rest of us, awaiting the morning’s decision. Mrs. Silver was led out of the courtroom to return to her cell for a night of dread that could scarcely be worse than the gal
lows itself. I watched her square her thin shoulders as she paced along in front of her jailer, head high, sparing not a glance for the crowd, and I resolved to murmur a prayer for her that night.
The jurors trooped off to be sequestered in the courthouse jury room, which was little bigger than the wooden table contained in it. For the duration of their deliberations they would be “without meat nor drink nor fire,” as was the custom from time immemorial. Men who are without food or drink will be more likely to reach a prompt decision. While the jury was thus deprived, considering the evidence against Frankie Silver, the rest of Morganton repaired to the taverns to retry the case in a dull roar over whiskey and tankards of ale. This convivial court of tipplers argued and analyzed the fine points of the trial in preparation for a later recital of the events before the ladies at dinner that evening.
I found the attorneys at McEntire’s, all seated together at a table in the far corner. They had been accorded this semblance of privacy out of respect for the solemn nature of their task, and the revelers at the bar had thus far not intruded upon the members of the bar.
No doubt a layman would have been surprised to see these men who had been bitter adversaries two hours hence conversing over tankards of ale with genial complacency, but as a fellow attorney, I expected nothing else. The battle was over now; the matter was in the hands of a jury, and the rival lawyers would live to fight another day. They left their animosity, as always, within the courthouse walls, for legal careers are long, and today’s opponent might be tomorrow’s colleague, or judge, or influential friend in the legislature. There is no graver courtesy than the respect born of ambitious self-interest.
Even so, Nicholas Woodfin was poor company that evening. He showed no rancor toward his companions, but he sat before an untouched glass, and stared at nothing, answering only in monosyllables if one addressed him twice-loudly.
“I thought you did well,” I told him, as I settled into the empty chair beside him. “You spoke eloquently and with great conviction. Altogether a moving performance.”
The Ballad of Frankie Silver Page 18