By Irvin S. Cobb
WHEN Breck Tandy killed a man he made a number of mistakes. In the first place, he killed the most popular man in Forked Deer County—the county clerk, a man named Abner J. Rankin. In the second place, he killed him with no witnesses present, so that it stood his word—and he a newcomer and a stranger—against the mute, eloquent accusation of a riddled dead man. And in the third place, he sent north of the Ohio River for a lawyer to defend him.
On the first Monday in June—Court Monday—the town filled up early. Before the field larks were out of the grass the farmers were tying their teams to the gnawed hitch-racks along the square. By nine o’clock the swapping ring below the wagonyard was swimming in red dust and clamorous with the chaffer of the horse-traders. In front of a vacant store the Ladies’ Aid Society of Zion Baptist Church had a canvas sign out, announcing that an elegant dinner would be served for twenty-five cents from twelve to one, also ice cream and cake all day for fifteen cents.
The narrow wooden sidewalks began to creak and chum under the tread of many feet. A long-haired medicine doctor emerged from his frock-coat like a locust coming out of its shell, pushed his high hat off his forehead and ranged a guitar, sundry bottles of a potent mixture, his tooth-pulling forceps, and a trick-handkerchief upon the narrow shelf of his stand alongside the Drummers’ Home Hotel. In front of the little dingy tent of the Half Man and Half Horse a yellow negro sat on a split-bottom chair limbering up for a hard day. This yellow negro was an artist. He played a common twenty-cent mouth organ, using his left hand to slide it back and forth across his spread lips. The other hand held a pair of polished beef bones, such as end men wield, and about the wrist was buckled a broad leather strap with three big sleigh-bells riveted loosely to the leather, so that he could clap the bones and shake the bells with the same motion. He was a whole orchestra in himself. He could play on his mouth organ almost any tune you wanted, and with his bones and his bells to help out he could creditably imitate a church organ, a fife-and-drum corps, or, indeed, a full brass band. He had his chair tilted back until his woolly head dented a draggled banner depicting in five faded primary colon the physical attractions of the Half Man and Half Horse—Marvel of the Century—and he tested his mouth organ with short, mellow, tentative blasts as he waited until the Marvel and the Marvel’s manager finished a belated breakfast within and the first ballyhoo could start. He was practicing the newest of the ragtime airs to get that far South. The name of it was The Georgia Camp-Meeting.
The town marshal in his shirt sleeves, with a big silver shield pinned to the breast of his unbuttoned blue waistcoat and a hickory stick with a crook handle for added emblem of authority, stalked the town drunkard, fair game at all seasons and especially on Court Monday. The town gallant whirled back and forth the short hilly length of Main Street in his new side-bar buggy. A clustering group of negroes made a thick, black blob, like hiving bees, in front of a negro fishhouse, from which came the smell and sounds of perch and channel cat frying on spitting-hot skillets. High up on the squat cupola of the courthouse a red-headed woodpecker clung, barred in crimson, white, and blue-black, like a bit of living bunting, engaged in the hopeless task of trying to drill through the tin sheathing. The rolling rattle of his beak’s tattoo came down sharply to the crowds below. Mourning doves called to one another in the trees round the red-brick courthouse, and at ten o’clock, when the sun was high and hot, the sheriff came out and, standing between two hollow white pillars, rapped upon one of them with a stick and called upon all witnesses and talesmen to come into court for the trial of John Breckinridge Tandy, charged with murder in the first degree, against the peace and dignity of the commonwealth of Tennessee and the statutes made and provided.
But this ceremonial by the sheriff was for form rather than effect, since the witnesses and the talesmen all sat in the circuit-court chamber along with as many of the population of Forked Deer County as could squeeze in there. Already the air of the crowded chamber was choky with heat and rancid with smell. Men were perched precariously in’ the ledges of the windows. More men were ranged in rows along the plastered walls, dunking their heels against the cracked wooden baseboards. The two front rows of benches were full of women. For this was to be the big case of the June term—a better show by long odds than the Half Man and Half Horse.
Inside the low railing that divided the room and on the side nearer the jury box were the forces of the defense. Under his skin the prisoner showed a sallow paleness born of his three months in the county jail. He was tall and dark and steady eyed, a young man, well under thirty. He gave no heed to those who sat in packed rows behind him, wishing him evil. He kept his head turned front, only bending it sometimes to whisper with one of his lawyers or one of his witnesses. Frequently, though, his hand went out in a protecting, reassuring way to touch his wife’s brown hair or to rest a moment on her small shoulder. She was a plain, scared, shrinking little thing. The fingers of her thin hands were plaited desperately together in her lap. Already she was trembling. Once in a while she would raise her face, showing shallow brown eyes dilated with fright, and then sink her head again like a quail trying to hide. She looked pitiable and lonely.
The chief attorney for the defense was half turned from the small counsel table where he might study the faces of the crowd. He was from Middle Indiana, serving his second term in Congress. If his party held control of the state he would go to the Senate after the next election. He was an orator of parts and a pleader of almost a national reputation. He had manly grace and he was a fine, upstanding figure of a man, and before now he had wrung victories out of many difficult cases. But he chilled to his finger-nails with apprehensions of disaster as he glanced searchingly about the close-packed room.
Wherever he looked he saw no friendliness at all. He could feel the hostility of that crowd as though it had substance and body.
It was a tangible thing; it was almost a physical thing. Why, you could almost put your hand out and touch it. It was everywhere there.
And it focussed and was summed up in the person of Aunt Tilly Haslett, rearing on the very front bench with her husband, Uncle Fayette, half hidden behind her vast and over-flowing bulk. Aunt Tilly made public opinion in Hyattsville. Indeed she was public opinion in that town. In her it had its up-comings and its out-flowings. She held herself bolt upright, filling out the front of her black bombazine basque until the buttons down its front strained at their buttonholes. With wide, deliberate strokes she fanned herself with a palm-leaf fan. The fan had an edging of black tape sewed round it—black tape signifying in that community age or mourning, or both. Her jaw was set like a steel latch, and her little gray eyes behind her steel-bowed specs were leveled with a baleful, condemning glare that included the strange lawyer, his client, his client’s wife, and all that was his client’s.
Congressman Durham looked and knew that his presence was an affront to Aunt Tilly and all those who sat with her; that his somewhat vivid tie, his silken shirt, his low tan shoes, his new suit of gray flannels—a masterpiece of the best tailor in Indianapolis—were as insults, added up and piled on, to this suspendered, gingham-shirted constituency. Better than ever he realized now the stark hopelessness of the task to which his hands were set. And he dreaded what was coming almost as much for himself as for the man he was hired to defend. But he was a trained veteran of courtroom campaigns, and there was a jauntily assumed confidence in his bearing as he swung himself about and made a brisk show of conferring with the local attorney who was to aid him in the choosing of the jurors and the questioning of the witnesses.
But it was real confidence and real jauntiness that radiated from the other wing of the inclosure, where the prosecutor sat with the assembled bar of Forked Deer County on his flanks, volunteers upon the favored side, lending to it the moral support of weight and numbers. Rankin, the dead man, having been a bachelor, State’s Attorney Gilliam could bring no lorn widow and children to mourn before the jurors’ eyes and win added sympathy for his cause. Lacking these most valued assets of a murder trial he supplied their places with the sisters of the dead man—two sparse-built elderly women in heavy black, with sweltering thick veils down over their faces. When the proper time came he would have them raise these veils and show their woeful faces, but now they sat shrouded all in crepe, fit figures of desolation and sorrow. He fussed about busily, fiddling the quill toothpick that hung perilously in the corner of his mouth and evening up the edges of a pile of law books with freckled calfskin covers. He was a lank, bony garfish of a man, with a white goatee aggressively protruding from his lower lip. He was a poor speaker but mighty as a cross-examiner, and he was serving his first term and was a candidate for another. He wore the official garbing of special and extraordinary occasions—long black coat and limp white waistcoat and gray striped trousers, a trifle short in the legs. He felt the importance of his place here almost visibly—his figure swelled and expanded out his clothes.
“Look yonder at Tom Gilliam,” said Mr. Lukins, the grocer, in tones of whispered admiration to his next-elbow neighbor, “jest prunin’ and honin’ hisse’f to git at that there Tandy and his dude Yankee lawyer. If he don’t chaw both of ‘em up together I’ll be dad-burned.”
“You bet,” whispered back his neighbor—it was Aunt Tilly’s oldest son, Fayette, Junior—“it’s like Maw says—time’s come to teach them murderin’ Kintuckians they can’t be a-comin’ down here a-killin’ up people and not pay for it. I reckon, Mr. Lukins,” added Fayette, Junior, with a wriggle of pleased anticipation, “we shore are goin’ to see some carryin’s-on in this cotehouse today.”
Mr. Lukins’ reply was lost to history because just then the judge entered—an elderly, kindly-looking man—from his chambers in the rear, with the circuit-court clerk right behind him bearing large leather-clad books and sheaves of foolscap paper. Their coming made a bustle. Aunt Tilly squared herself forward, scrooging Uncle Fayette yet farther into the eclipse of her shapeless figure. The prisoner raised his head and eyed his judge. His wife looked only at the interlaced, weaving fingers in her lap.
The formalities of the opening of a term of court were mighty soon over; there was everywhere manifest a haste to get at the big thing. The clerk called the case of the Commonwealth versus Tandy. Both sides were ready. Through the local lawyer, delegated for these smaller purposes, the accused man pleaded not guilty. The clerk spun the jury wheel, which was a painted wooden drum on a creaking wooden axle, and drew forth a slip of paper with the name of a talesman written upon it and read aloud:
“Isom W. Tolliver.”
In an hour the jury was complete: two townsmen, a clerk and a telegraph operator, and ten men from the country—farmers mainly and one blacksmith and one horse-trader. Three of the panel who owned up frankly to a fixed bias had been let go by consent of both sides. Three more were sure they could give the defendant a fair trial, but those three the local lawyer had challenged peremptorily. The others were accepted as they came. The foreman was a brownskinned, sparrowhawk-looking old man, with a smoldering brown eye. He had spare, knotted hands, like talons, and the right one was marred and twisted, with a sprayed bluish scar in the midst of the crippled knuckles like the mark of an old gunshot wound. Juror No. 4 was a stodgy old man, a small planter from the back part of the county, who fanned himself steadily with a brown-varnished straw hat. No. 7 was even older, a white-whiskered patriarch on crutches. The twelfth juryman was the oldest of the twelve—he looked to be almost seventy, but he went into the box after he had sworn that his sight and hearing and general health were good and that he still could do his ten hours a day at his blacksmith shop. This juryman chewed tobacco without pause. Twice after he took his seat at the bade end of the double line he tried for a wooden cuspidor ten feet away. Both were creditable attempts, but he missed each time. Seeing the look of gathering distress in his eyes the sheriff brought the cuspidor nearer, and thereafter No. 12 was content, chewing steadily like some bearded contemplative ruminant and listening attentively to the evidence, meanwhile scratching a very wiry head of whity-red hair with a thumbnail that through some injury had taken on the appearance of a very thick, very black Brazil nut. This scratching made a raspy, filing sound that after a while got on Congressman Durham’s nerves.
It was late in the afternoon when the prosecution rested its case and court adjourned until the following morning. The state’s attorney had not had so very much evidence to offer, really—the testimony of one who heard the single shot and ran in at Rankin’s door to find Rankin upon the floor, about dead, with a pistol, unfired, in his hand and Tandy standing against the wall with a pistol, fired, in his; the constable to whom Tandy surrendered; the physician who examined the body; the persons who knew of the quarrel between Tandy and Rankin growing out of a land deal into which they had gone partners—not much, but enough for Gilliam’s purposes. Once in the midst of examining a witness the state’s attorney, seemingly by accident, let his look fall upon the two black-robed, silent figures at his side, and as though overcome by the sudden realization of a great grief, he faltered and stopped dead and sank down. It was an old trick, but well done, and a little humming murmur like a breeze coming through treetops swept the audience.
Durham was sick in his soul as he came away.
In his mind there stood the picture of a little, scared woman’s drawn, drenched face. She had started crying before the last juror was chosen and thereafter all day, at half-minute intervals, the big, hard sobs racked her. As Durham came down the steps he had almost to shove his way through a knot of natives outside the doors. They grudged him the path they made for him, and as he showed them his back he heard a snicker and some one said a thing that cut him where he was already bruised—in his egotism. But he gave no heed to the words. What was the use?
At the Drummers’ Home Hotel a darky waiter sustained a profound shock when the imported lawyer declined the fried beefsteak with fried potatoes and also the fried ham and eggs. Mastering his surprise the waiter offered to try to get the Northern gentleman a fried pork chop and some fried June apples, but Durham only wanted a glass of milk for his supper. He drank it and smoked a cigar, and about dusk he went upstairs to his room. There he found assembled the forlorn rank and file of the defense, the local lawyer and three character witnesses—prominent citizens from Tandy’s home town who were to testify to his good repute in the place where he was born and reared. These would be the only witnesses, except Tandy himself, that Durham meant to call. One of them was a bustling little man named Felsburg, a clothing merchant, and one was Colonel Quigley, a banker and an ex-mayor, and the third was a Judge Priest, who sat on a circuit-court bench back in Kentucky. In contrast to his size, which was considerable, this Judge Priest had a voice that was high and whiny. He also had the trick, common to many men in politics in his part of the South, of being purposely ungrammatical at times.
This mannerism led a lot of people into thinking that the judge must be an uneducated man—until they heard him charging a jury or reading one of his rulings. The judge had other peculiarities. In conversation he nearly always called men younger than himself, son. He drank a little bit too much sometimes; and nobody had ever beaten him for any office he coveted. Durham didn’t know what to make of this old judge—sometimes he seemed simple-minded to the point of childishness almost.
The others were gathered about a table by a lighted kerosene lamp, but the old judge sat at an open window with his low-quarter shoes off and his white-socked feet propped against the ledge. He was industriously stoking at a home-made corncob pipe. He pursed up his mouth, pulling at the long cane stem of his pipe with little audible sucks. From the rocky little street below the clatter of departing farm teams came up to him. The Indian medicine doctor was taking down his big white umbrella and packing up his regalia. The late canvas habitat of the Half Man and Half Horse had been struck and was gone, leaving only the pole-holes in the turf and a trodden space to show where it had stood. Court would go on all week, but Court Monday was over and for another month the town would doze along peacefully.
Durham slumped himself into a chair that screeched protestingly in all its infirm joints. The heart was gone clean out of him.
“I don’t understand these people at all,” he confessed. “We’re beating against a stone wall with our bare hands.”
“If it should be money now that you’re needing, Mister Durham,” spoke up Felsburg, “that boy Tandy’s father was my very good friend when I first walked into that town with a peddling pack on my back, and if it should be money——?”
“It isn’t money, Mr. Felsburg,” said Durham. “If I didn’t get a cent for my services I’d still fight this case out to the aid for the sake of that game boy and that poor little mite of a wife of his. It isn’t money or the lack of it—it’s the damned hate they’ve built up here against the man. Why, you could cut it off in chunks—the prejudice that there was in that courthouse today.”
“Son,” put in Judge Priest in his high, weedy voice, “I reckon maybe you’re right. I’ve been projectin’ around cotehouses a good many years, and I’ve taken notice that when a jury look at a prisoner all the time and never look at his women folks it’s a monstrous bad sign. And that’s the way it was all day today.”
“The judge will be fair—he always is,” said Hightower, the local lawyer, “and of course Gilliam is only doing his duty. Those jurors are as good solid men as you can find in this country anywhere. But they can’t help being prejudiced. Human nature’s not strong enough to stand out against the feeling that’s grown up round here against Tandy since he shot Ab Rankin.”
“Son,” said Judge Priest, still with his eyes on the darkening square below, “about how many of them jurors would you say are old soldiers?”
“Four or five that I know of,” said Hightower—“and maybe more. It’s hard to find a man over fifty years old in this section that didn’t see active service in the Big War.”
“Ah, hah,” assented Judge Priest with a squeaky little grunt. “That foreman now—he looked like he might of seen some fightin’?”
“Four years of it,” said Hightower. “He came out a captain in the cavalry.”
“Ah, hah.” Judge Priest sucked at his pipe. “Herman,” he J wheezed back over his shoulder to Felsburg, “did you notice a tall sort of a saddle-colored darky playing a juice harp in front of that there sideshow as we came along up? I reckon that nigger could play almost any tune you’d a mind to hear him play?”
At a time like this Durham was distinctly not interested in the versatilities of strange negroes in this corner of the world. He kept silent, shrugging his shoulders petulantly.
“I wonder now is that nigger left town yet?” mused the old judge half to himself.
“I saw him just a while ago going down toward the depot,” volunteered Hightower. “There’s a train out of here for Memphis at 8:50. It’s about twenty minutes of that now.”
“Ah, hah, jest about,” assented the judge. When the judge said “Ah, hah!” like that it sounded like the striking of a fiddle-bow across a fiddle’s tautened E-string.
“Well, boys,” he went on, “we’ve all got to do the best we can for Breck Tandy, ain’t we? Say, son”’—this was aimed at Durham—“I’d like mightily for you to put me on the stand the last one tomorrow. You wait until you’re through with Herman and Colonel Quigley here, before you call me. And if I should seem to ramble somewhat in giving my testimony—why, son, you just let me ramble, will you? I know these people down here better maybe than you do—and if I should seem inclined to ramble, just let me go ahead and don’t stop me, please?”
“Judge Priest,” said Durham tartly, “if you think it could possibly do any good, ramble all you like.”
“Much obliged,” said the old judge, and he struggled into his low-quarter shoes and stood up, dusting the tobacco fluff off himself.
“Herman have you got any loose change about you?”
Felsburg nodded and reached into his pocket. The judge made a discriminating selection of silver and bills from the handful that the merchant extended to him across the table.
“I’ll take about ten dollars,” he said. “I didn’t come down here with more than enough to jest about buy my railroad ticket and pay my bill at this here tavern, and I might want a sweetenin’ dram or somethin’.”
He pouched his loan and crossed the room. “Boys,” he said, “I think I’ll be knockin’ round a little before I turn in. Herman, I may stop by your room a minute as I come back in. You boys better turn in early and git yourselves a good night’s sleep. We are all liable to be purty tolerable busy tomorrow.”
After he was outside he put his head back in the door and said to Durham:
“Remember, son, I may ramble.”
Durham nodded shortly, being somewhat put out by the vagaries of a mind that could concern itself with trivial things on the imminent eve of a crisis.
As the judge creaked ponderously along the hall and down the stairs those he had left behind heard him whistling a tune to himself, making false starts at the air and halting often to correct his meter. It was an unknown tune to them all, but to Felsburg, the oldest of the four, it brought a vague, unplaced memory.
The old judge was whistling when he reached the street. He stood there a minute until he had mastered the time to his own satisfaction, and then, still whistling, he shuffled along the uneven board pavement, which, after rippling up and down like a broken-backed snake, dipped downward to a little railroad station at the foot of the street.
In the morning nearly half the town—the white half—came to the trial, and enough of the black half to put a dark hem, like a mourning border, across the back width of the courtroom. Except that Main Street now drowsed in the heat where yesterday it had buzzed, this day might have been the day before. Again the resolute woodpecker drove his bloodied head with unimpaired energy against the tin sheathing up above. It was his third summer for that same cupola and the tin was pocked with little dents for three feet up and down. The mourning doves still pitched their lamenting note back and forth across the courthouse yard; and in the dewberry patch at the bottom of Aunt Tilly Haslett’s garden down by the creek the meadow larks strutted in buff and yellow, with crescent-shaped gorgets of black at their throats, like Old Continentals, sending their dear-piped warning of “Laziness g’wine kill you!” in at the open windows of the steamy, smelly courtroom.
The defense lost no time getting under headway. As his main witness Durham called the prisoner to testify in his own behalf. Tandy gave his version of the killing with a frankness and directness that would have carried conviction to auditors more even-minded in their sympathies. He had gone to Rankin’s office in the hope of bringing on a peaceful settlement of their quarrel. Rankin had flared up; had cursed him and advanced on him, making threats. Both of them reached for their guns then. Rankin’s was the first out, but he fired first—that was all there was to it. Gilliam shone at cross-examination; he went at Tandy savagely, taking hold like a snapping turtle and hanging on like one.
He made Tandy admit over and over again that he carried a pistol habitually. In a community where a third of the male adult population went armed this admission was nevertheless taken as plain evidence of a nature bloody-minded and desperate. It would have been just as bad for Tandy if he said he armed himself especially for his visit to Rankin—to these listeners that could have meant nothing else but a deliberate, murderous intention. Either way Gilliam had him, and he sweated in his eagerness to bring out the significance of the point. A sinister little murmuring sound,4 vibrant with menace, went purring from bench to bench when Tandy told about his pistol-carrying habit.
The cross-examination dragged along for hours. The recess for dinner interrupted it; then it went on again, Gilliam worrying at Tandy, goading at him, catching him up and twisting his words. Tandy would not be shaken, but twice under the manhandling he lost his temper and lashed back at Gilliam, which was precisely what Gilliam most desired. A flary fiery man, prone to violent outbursts—that was the inference he could draw from these blaze-ups.
It was getting on toward five o’clock before Gilliam finally let his bedeviled enemy quit the witness-stand and go back to his place between his wife and his lawyer. As for Durham, he had little more to offer. He called on Mr. Felsburg, and Mr. Felsburg gave Tandy a good name as man and boy in his home town. He called on Banker Quigley, who did the same thing in different words. For these character witnesses State’s Attorney Gilliam had few questions. The case was as good as won now, he figured; he could taste already his victory over the famous lawyer from up North, and he was greedy to hurry it forward.
The hot round hub of a sun had wheeled low enough to dart its thin red spokes in through the westerly windows when Durham called his last witness. As Judge Priest settled himself solidly in the witness chair with the deliberation of age and the heft of flesh, the leveled rays caught him full and lit up his round pink face, with the short white-bleached beard below it and the bald white-bleached forehead above. Durham eyed him half doubtfully. He looked the image of a scatter-witted old man, who would potter and philander round a long time before he ever came to the point of anything. So he appeared to the others there, too. But what Durham did not sense was that the homely simplicity of the old man was of a piece with the picture of the courtroom, that he would seem to these watching, hostile people one of their own kind, and that they would give to him in all likelihood a sympathy and understanding that had been denied the clothing merchant and the broadclothed banker.
He wore a black alpaca coat that slanted upon him in deep, longitudinal folds, and the front skirts of it were twisted and pulled downward until they dangled in long, wrinkly black teats. His shapeless gray trousers were short for him and fitted his pudgy legs closely. Below them dangled a pair of stout ankles encased in white cotton socks and ending in low-quarter black shoes. His shirt was clean but wrinkled countlessly over his front. The gnawed and blackened end of a cane pipestem stood out of his breast pocket, rising like a frosted weed stalk.
He settled himself back in the capacious oak chair, balanced upon his knees a white straw hat with a string band round the crown and waited for the question.
“What is your name?” asked Durham. “William Pitman Priest.”
Even the voice somehow seemed to fit the setting. Its high nasal note had a sort of whimsical appeal to it.
“When and where were you born?”
“In Calloway County, Kintucky, July 27, 1889.”
“What is your profession or business?”
“I am an attorney-at-law.”
“What position if any do you hold in your native state?”
“I am presidin’ judge of the first judicial district of the state of Kintucky.”
“And have you been so long?”
“For the past sixteen years.”
“When were you admitted to the bar?”
“In 1860.”
“And you have ever since been engaged, I take it, either in the practice of the law before the bar or in its administration from the bench?”
“Exceptin’ for the four years from April, 1861, to June, 1866.”
Up until now Durham had been sparring, trying to fathom the probable trend of the old judge’s expected meanderings. But in the answer to the last question he thought he caught the cue and, though none save those two knew it, thereafter it was the witness who led and the questioner who followed his lead blindly.
“And where were you during those four years?”
“I was engaged, suh, in takin’ part in the war.”
“The War of the Rebellion?”
“No, suh,” the old man corrected him gently but with firmness, “the War for the Southern Confederacy.”
There was a least bit of a stir at this. Aunt Tilly’s tape-edged palmleaf blade hovered a brief second in the wide regular arc of its sweep and the foreman of the jury involuntarily ducked his head, as if in affiance of an indubitable fact.
“Ahem!” said Durham, still feeling his way, although now he saw the path more clearly. “And on which side were you engaged?”
“I was a private soldier in the Southern army,” the old judge answered him, and as he spoke he straightened up. “Yes, suh,” he repeated, “for four years I was a private soldier in the late Southern Confederacy. Part of the time I was down here in this very country,” he went on as though he had just recalled that part of it. “Why, in the summer of ‘64 I was right here in this town. And until yistiddy I hadn’t been back since.”
He turned to the trial judge and spoke to him with a tone and manner half apologetic, half confidential.
“Your Honor,” he said, “I am a judge myself, occupyin’ in my home state a position very similar to the one which you fill here, and whilst I realize, none better, that this ain’t all accordin’ to the rules of evidence as laid down in the books, yet when I git to thinkin’ about them old soldierin’ times I find I am inclined to sort of reminiscence round a little. And I trust your Honor will pardon me if I should seem to ramble slightly?”
His tone was more than apologetic and more than confidential. It was winning. The judge upon the bench was a veteran himself. He looked toward the prosecutor.
“Has the state’s attorney any objection to this line of testimony?” he asked, smiling a little.
Certainly Gilliam had no fear that this honest-appearing old man’s wanderings could damage a case already as good as won. He smiled back indulgently and waved his arm with a gesture that was compounded of equal parts of toleration and patience, with a top-dressing of contempt. “I fail,” said Gilliam, “to see wherein the military history and achievements of this worthy gentleman can possibly affect the issue of the homicide of Abner J. Rankin. But,” he added magnanimously, “if the defense chooses to encumber the record with matters so trifling and irrelevant I surely will make no objection now or hereafter.”
“The witness may proceed,” said the judge. “Well, really, Your Honor, I didn’t have so very much to say,” confessed Judge Priest, “and I didn’t expect there’d be any to-do made over it. What I was trying to git at was that cornin’ down here to testify in this case sort of brought back them old days to my mind. As I git along more in years—” he was looking toward the jurors now—“I find that I live more and more in the past.”
As though he had put a question to them several of the jurors gravely inclined their heads. The busy cud of Juror No. 12 moved just a trifle slower in its travels from the right side of the jaw to the left and back again. “Yes, suh,” he said musingly, “I got up early this mornin’ at the tavern where I’m stoppin’ and took a walk through your thrivin’ little city.” This was rambling with a vengeance, thought the puzzled Durham. “I walked down here to a bridge over a little creek and back again. It reminded me mightily of that other time when I passed through this town—in ‘64—just about this season of the year—and it was hot early today just as it was that other time—and the dew was thick on the grass, the same as ‘twas then.”
He halted a moment.
“Of course your town didn’t look the same this mornin’ as it did that other mornin’. It seemed like to me there are twicet as many houses here now as there used to be—it’s got to be quite a little city.”
Mr. Lukins, the grocer, nodded silent approval of this utterance, Mr. Lukins having but newly completed and moved into a two-story brick store building with a tin cornice and an outside staircase.
“Yes, suh, your town has grown mightily, but”—and the whiny, humorous voice grew apologetic again—“but your roads are purty much the same as they were in ‘64—hilly in places—and kind of rocky.”
Durham found himself sitting still, listening hard. Everybody else was listening too. Suddenly it struck Durham, almost like a blow, that this simple old man had somehow laid a sort of spell upon them all. The flattening sunrays made a kind of pink glow about the old judge’s face, touching gently his bald head and his white whiskers. He droned on:
“I remember about those roads particularly well, because that time when I marched through here in ‘64 my feet was about out ef my shoes and them flints cut ‘em up some. Some of the boys, I recollect, left bloody prints in the dust behind ‘em. But shucks—it wouldn’t a-made no real difference if we’d wore the bottoms plum off our feet! We’d a-kept on goin’. We’d a-gone anywhere—or tried to—behind old Bedford Forrest.”
Aunt Tilly’s palmleaf halted in air and the twelfth juror’s faithful quid froze in his cheek and stuck there like a small wen. Except for a general hunching forward of shoulders and heads there was no movement anywhere and no sound except the voice of the witness:
“Old Bedford Forrest hisself was leadin’ us, and so naturally we just went along with him, shoes or no shoes. There was a regiment of Northern troops—Yankees—marchin’ on this town that mornin’, and it seemed the word had traveled ahead of ‘em that they was aimin’ to burn it down.
“Probably it wasn’t true. When we got to know them Yankees better afterward we found out that there really wasn’t no difference, to speak of, between the run of us and the run of them. Probably it wasn’t so at all. But in them days the people was prone to believe ‘most anything—about Yankees—and the word was that they was cornin’ across country, a-burnin’ and cuttin’ and slashin,’ and the people here thought they was going to be burned out of house and home. So old Bedford Forrest he marched all night with a battalion of us—four companies—Kintuckians and Tennesseeans mostly, with a sprinklin’ of boys from Mississippi and Arkansas—some of us ridin’ and some walkin’ afoot, like me—we didn’t always have horses enough to go round that last year. And somehow we got here before they did. It was a close race though between us—them a-comin’ down from the North and us a-comin’ up from the other way. We met ‘em down there by that little branch just below where your present railroad depot is. There wasn’t no depot there then, but the branch looks just the same now as it did then—and the bridge too. I walked acros’t it this momin’ to see. Yes, suh, right there was where we met ‘em. And there was a right smart fight.
“Yes, suh, there was a right smart fight for about twenty minutes—or maybe twenty-five—and then we had breakfast.”
He had been smiling gently as he went along. Now he broke into a throaty little chuckle.
“Yes, suh, it all come back to me this mornin’—every little bit of it—the breakfast and all. I didn’t have much breakfast, though, as I recall—none of us did—probably just corn pone and branch water to wash it down with.”
And he wiped his mouth with the back of his hand as though the taste of the gritty cornmeal cakes was still there.
There was another little pause here; the witness seemed to be through. Durham’s crisp question cut the silence like a gash with a knife.
“Judge Priest, do you know the defendant at the bar, and if so, how well do you know him?”
“I was just comin’ to that,” he answered with simplicity, “and I’m obliged to you for puttin’ me back on the track. Oh, I know the defendant at the bar mighty well—as well as anybody on earth ever did know him, I reckin, unless ‘twas his own maw and paw. I’ve known him, in fact, from the time he was born—and a gentler, better-disposed boy never grew up in our town. His nature seemed almost too sweet for a boy—more like a girl’s—but as a grown man he was always manly, and honest, and fair—and not quarrelsome. Oh, yes, I know him. I knew his father and his mother before him. It’s a funny thing too—comin’ up this way—but I remember that his paw was marchin’ right alongside of me the day we came through here in ‘64. He was wounded, his paw was, right at the edge of that little creek down yonder. He was wounded in the shoulder—and he never did entirely git over it.”
Again he stopped dead short, and he lifted his hand and tugged at the lobe of his right ear absently. Simultaneously Mr. Felsburg, who was sitting close to a window beyond the jury box, was also seized with nervousness, for he jerked out a handkerchief and with it mopped his brow so vigorously that, to one standing outside, it might have seemed that the handkerchief was actually being waved about as a signal.
Instantly then there broke upon the pause that still endured a sudden burst of music, a rollicking, jingling air. It was only a twenty-cent touth organ, three sleigh bells, and a pair of the rib bones of a beef-cow being played all at once by a saddle-colored negro man but it sounded for all the world like a fife-and-drum corps:
If you want to have a good time,
If you want to have a good time,
If you want to have a good time,
If you want to ketch the devil—
Jine the cavalree!
To some who heard it now the time was strange; these were the younger ones. But to those older men and those older women the first jubilant bars rolled back the years like a scroll.
If you want to have a good time,
If yu want to have a good time,
If you want to have a good time,
If you want to ride with Bedford—
Jine the cavalree!
The sound swelled and rippled and rose through the windows—the marching song of the Southern trooper—Forrest’s men, and Morgan’s, and Jeb Stuart’s and Joe Wheeler’s. It had in it the jingle of saber chains, the creak of sweaty saddle-girths, the nimble clunk of hurrying hoofs. It had in it the clanging memories of a cause and a time that would live with these people as long as they lived and their children lived and their children’s children. It had in it the one sure call to the emotions and the sentiments of these people.
And it rose and rose and then as the unseen minstrel went slouching down Main Street, toward the depot and the creek it sank lower and became a thin thread of sound and then a broken thread of sound and then it died out altogether and once more there was silence in the court house of Forked Deer County.
Strangely enough not one listener had come to the windows to look out. The interruption from without had seemed part and parcel of what went on within. None faced to the rear, every one faced to the front.
There was Mr. Lukins now. As Mr. Lukins got upon his feet he said to himself in a tone of feeling that he be dad-fetched. But immediately changing his mind he stated that he would preferably be dad-blamed, and as he moved toward the bar rail one overhearing him might have gathered from remarks let fall that Mr. Lukins was going somewhere with the intention of being extensively dad-burned. But for all these threats Mr. Lukins didn’t go anywhere, except as near the railing as he could press.
Nearly everybody else was standing up too. The state’s attorney was on his feet with the rest, seemingly for the purpose of making some protest.
Had any one looked they might have seen that the ember in the smoldering eye of the old foreman had blazed up to a brown fire; that Juror No. 4, with utter disregard for expense, was biting segments out of the brim of his new brown-varnished straw hat; that No. 7 had dropped his crutches on the floor, and that no one, not even their owner, had heard them fall; that all the jurors were half out of their chairs. But no one saw these things, for at this moment there rose up Aunt Tilly Haslett, a dominant figure, her huge wide bade blocking the view of three or four immediately behind her.
Uncle Fayette laid a timid detaining hand upon her and seemed to be saying something protestingly.
“Turn loose of me, Fate Haslett!” she commanded. “Ain’t you ashamed of yourse’f, to be tryin’ to hold me back when you know how my only dear brother died a-followin’ after Gineral Nathan Bedford Forrest. Turn loose of me!”
She flirted her great arm and Uncle Fayette spun flutteringly into the mass behind. The sheriff barred her way at the gate of the bar.
“Mizz Haslett,” he implored, “please, Mizz Haslett—you must keep order in the cote.” Aunt Tilly halted in her onward move, head up high and elbows out, and through her specs, blazing like burning-glasses, she fixed on him a look that instantly charred that, unhappy official into a burning red ruin of his own self-importance.
“Keep it yourse’f, High Sheriff Washington Nash, Esquire,” she bade him; “that’s whut you git paid good money for doin’. And git out of my way! I’m a-goin’ in there to that pore little lonesome thing settin’ there all by herself, and there ain’t nobody goin’ to hinder me neither!”
The sheriff shrunk aside; perhaps it would be better to say he evaporated aside. And public opinion, reorganized and made over but still incarnate in Aunt Tilly Haslett, swept past the rail and settled like a billowing black cloud into a chair that the local attorney for the defense vacated just in time to save himself the inconvenience of having it snatched bodily from under him.
“There, honey,” said Aunt Tilly crooningly as she gathered the forlorn little figure of the prisoner’s wife in her arms like a child and mothered her up to her ample bombazined bosom, “there now, honey, you jest cry on me.”
Then Aunt Tilly looked up and her specs were all blurry and wet. But she waved her palmleaf fan as though it had been the baton of a marshal.
“Now, Jedge,” she said, addressing the bench, “and you other gentlemen—you kin go ahead now.”
The state’s attorney had meant evidently to make some sort of an objection, for he was upon his feet through all this scene. But he looked back before he spoke and what he saw kept him from speaking. I believe I stated earlier that he was a candidate for rejection. So he settled back down in his chair and stretched out his legs and buried his chin in the top of his limp white waistcoat in an attitude that he had once seen in a picture entitled, “Napoleon Bonaparte at St. Helena.”
“You may resume, Judge Priest,” said the trial judge in a voice that was not entirely free from huskiness, although its owner had been clearing it steadily for some moments.
“Thank you kindly, suh, but I was about through anyhow,” answered the witness with a bow, and for all his homeliness there was dignity and stateliness in it. “I merely wanted to say for the sake of completin’ the record, so to speak, that on the occasion referred to them Yankees did not cross that bridge.” With the air of tendering and receiving congratulations Mr. Lukins turned to his nearest neighbor and shook hands with him warmly.
The witness got up somewhat stiffly, once more becoming a commonplace old man in a wrinkled black alpaca coat, and made his way back to his vacant place, now in the shadow of Aunt Tilly Haslett’s form. As he passed along the front of the jury-box the foreman’s crippled right hand came up in a sort of a clumsy salute, and the juror at the other end of the rear row—No. 12, the oldest juror—leaned forward as if to speak to him, but remembered in time where his present duty lay. The old judge kept on until he came to Durham’s side, and he whispered to him: “Son, they’ve quit lookin’ at him and they’re all a-lookin’ at her. Son, rest your case.” Durham came out of a maze.
“Your Honor,” he said as he rose, “the defense rests.”
The jury were out only six minutes. Mr. Lukins insisted that it was only five minutes and a half, and added that he’d be dad-rotted if it was a second longer than that.
As the lately accused Tandy came out of the courthouse with his imported lawyer—Aunt Tilly bringing up the rear with his trembling, weeping, happy little wife—friendly hands were outstretched to clasp his and a whiskered old gentleman with a thumbnail like a Brazil nut grabbed at his arm.
“Whichaway did Billy Priest go?” he demanded—“little old Fightin’ Billy—whar did he go to? Soon as he started in talkin’ I placed him. Whar is he?”
Walking side by side, Tandy and Durham came down the steps into the soft June night, and Tandy took a long, deep breath into his lungs.
“Mr. Durham,” he said, “I owe a great deal to you.”
“How’s that?” said Durham.
Just ahead of them, centered in a shaft of light from the window of the barroom of the Drummers’ Home Hotel, stood Judge Priest. The old judge had been drinking. The pink of his face was a trifle more pronounced, the high whine in his voice a trifle weedier, as he counted one by one certain pieces of silver into the wide-open palm of a saddle-colored negro.
“How’s that?” said Durham. “I say I owe everything in the world to you,” repeated Tandy.
“No,” said Durham, “what you owe me is the fee you agreed to pay me for defending you. There’s the man you’re looking for.”
And he pointed to the old judge.
