XIII.
They slouched into their lair, looking more like offenders detained against their will than the free and enlightened citizens of a great country in the exercise of the precious privilege of serving on the jury. They were all tired. They had undergone much excitement. They felt the mental strain of the arguments and counter-arguments to which they had listened.
“It hev fairly gin me a mis’ry in my head ter hev ter hear ter them red-mouthed lawyers jaw an’ jaw, like they done!” exclaimed one, flinging himself in a chair, and putting his feet up against the round sides of the stove, which was cold and fireless, the day being warm and genial. The windows were open, the sunlight streaming over the dusty floor and chairs and benches. Two or three of the jurymen, looking out, laughing, and making signs to the people in the streets, were smartly remonstrated with by the officer in charge.
His objections had the effect of congregating them in the middle of the room, where the discussion began, most of them lighting their pipes, and tilting their chairs on the hind legs. Two or three lifted their feet to the giddy eminence of the backs of other chairs; several stretched themselves at lank, ungainly length upon the benches. They were mostly young or middle-aged men; the senior of the party being a farmer of fifty, with a pointed, shaven chin, newly sprouting with a bristly beard, over which he often passed his hand with a meditative gesture. His eyes were downcast; he leaned his elbows on his knees; his mien was depressed, not to say afflicted. “I ain’t hearn ten words together,” he remarked. “I never knowed when they lef’ off, sca’cely, bein’ so all-fired oneasy an’ beset ’bout them cattle o’ mine.” He turned to explain to the new juror whom they had taken on that morning. “Ben Doaks hed my cattle a-summerin’ of ’em up on Piomingo Bald, an’ when the cattle war rounded up I went thar ter pick out mine, an’ I druv ’em down an’ got ez far ez Shaftesville, an’ I let ’em go on with Bob, my son, ’bout fifteen year old. An’ I stopped hyar ter git a drink an’ hear a leetle news. An’ durned ef they didn’t ketch me on the jury! An’ Bob dunno what’s kem o’ me, an’ I dunno what’s kem o’ Bob an’ the cattle, nor how fur they hed traveled along the road ’fore they fund out I warn’t comin’ arter.”
“Waal, I reckon they be all right,” said the new man, a hunter from the mountains, just come into town with game to sell.
“Lord knows! I don’t!” said the old fellow, sighing over the futility of speculation. “Ef Bob war ter draw the idee ez I got hurt, or robbed, or scrimmagin’ in them town grog-shops,—I hev always been tellin’ him a all-fired pack o’ lies ’bout the dangers in sech places, bein’ ez I warn’t willin’ ter let him go whar I’d go myself,—he’d leave them cattle a-standin’ thar in the road, an’ kem back ter town ter s’arch fur me. He hain’t got much ’speriunce, an’ he ain’t ekal ter keerin’ fur them cattle. They’ll stray, an’ I’ll never see ’em agin.”
“I reckon they hev strayed back ter the mountings by this time; must be wilder ’n bucks, ef they hev been out all summer,” suggested a broad-faced twinkling-eyed young fellow, with a jocose wink at the others.
“Bob dozes, too; sorter sleepy-headed, ye know,” said the old man, taking note of all the contingencies. “I hev seen him snooze in the saddle, ef the cattle war slow. He’s growin’, an’ runs mighty hard, an’ ef he sets still, he falls off. Ef he got tired, he’s apt ter lie down in a fence-corner ter rest; an’ he mought go ter sleep thar, an’ somebody mought toll the cattle off. Or else he mought ax somebody ter keer fur the cattle till he could kem back an’ find me. Lord A’mighty, thar’s no yearthly tellin’ what Bob mought do!”
“Then, again, he moughtn’t” said Jerry Price. “Ye hev jes’ got ter gin up yer hold on worldly things when ye air on a jury, like ye war dead.”
“Yes; but when ye air dead ye ain’t able ter be pestered by studyin’ ’bout what yer administrator air a-doin’ with yer yearthly chattels an’ cattle.”
“How d’ye know?” demanded Price. “Arter all we hearn ter-day, a body mought b’lieve a real likely harnt air ekal ter ennything in motion an’ looks, an’ ye dunno what they air studyin’ ’bout. But time’s a-wastin’. ’Less we air wantin’ ter bide hyar all night agin, we hed better be talkin’ ’bout our verdict on Mink Lorey. The jedge’s waitin’, an’ from all I hev seen o’ him he ain’t handy at patience.”
“Waal, sir,” said the man with his feet on the stove, who was the foreman of the jury, taking his pipe from his mouth, “I ain’t settin’ much store on Gwinnan. I don’t b’lieve he acted right an’ ’cordin’ ter law about this jury. Thar’s thirteen men on this jury!”
They all sat motionless, staring at him.
“Yes, sir,” he declared, reinserting his pipe between his teeth, and speaking with them closed upon it. “I know the law! My uncle war a jestice o’ the peace fur six year, ’bout ten year ago. An’ he hed a Code o’ Tennessee! An’ I read in it! Some mighty interestin’ readin’ in the Code o’ Tennessee. Sure’s ye born, thar is! The law say the juror, ef he be ailin’, kin be excused, an’ another summonsed. But Peter Rood warn’t excused, nor discharged nuthar. He’s on this jury yit.”
“Waal, fur Gawd’s sake, don’t git ter jawin’ ’bout Peter Rood!” cried Bylor, the man on whose chair the dead juror had fallen, and who had turned his face to the close encounter of the stare of death in those glassy eyes. Bylor’s nerves were still unstrung. He looked as ill as a broad-shouldered, sun-burned, brawny fellow could look. “I never slep’ a wink las’ night; an’ that thar cussed ’torney-gineral a-tellin’ them awful tales ’bout harnts all day, an’ that thar solemn Lethe Sayles purtendin’ she hed seen that drownded idjit,—I felt ez ef I’d fall down in a fit ef they didn’t quit it.”
“I don’t b’lieve she seen Tad’s harnt,” said Ben Doaks, instinctively adopting her view.
“Then what war it in the graveyard fur?” demanded the foreman conclusively.
There was momentary silence. The sunshine was dying out on the floor; the dim tracery of the boughs of the hickory-tree was the only manifestation of its presence. The rural sound of the lowing of cattle came in on the soft air,—the village kine were returning from their pastures. The voices of men in the rooms below rose and fell fitfully; they were trying another case, in the interim of waiting for the verdict.
“An’ how kem nobody hev seen him sence, ’ceptin’ Lethe Sayles?” he supplemented his question.
“The jedge hinted ez much ez we-uns oughter be powerful keerful o’ not convictin’ a man fur killin’, when a witness claimed ter hev seen the dead one sence,” argued Jerry Price, ambiguously.
“She never seen nuthin’ but his ghost,” said the foreman.
“Ben, how’d that leetle red cow o’ mine git her hawn bruk?” interpolated the bereaved cattle-owner, meditating on the vicissitudes experienced by his herds in their summer vacation.
“Gawd A’mighty, man, quit talkin’ ’bout yer cattle, interruptin’ we-uns jes’ ez we war a-gittin’ ter the p’int!” exclaimed the foreman.
“I’d heap ruther hear Mr. Beames talk ’bout his cattle ’n hear ’bout harnts, an’ sech,” said Bylor, as he lay on the bench. He was still feeling far from well. He got up presently, and went to the officer, who was at the door, and petitioned for something to drink. But that worthy, determined upon the literal performance of duty, withstood his every persuasion, even when he declared he was “plumb sick;” and the rest of the jury, alarmed lest he should be excused, another juror summoned, and the whole performance of the trial begin anew, the agony of their detention thus lengthening indefinitely, pleaded for him. The officer’s devotion to what he considered his duty did not save him from some abuse.
“’Twould sarve ye right ef we war ter lay a-holt o’ ye an’ fling ye outer this winder,” said Ben Doaks.
“Ye mis’able leetle green gourd, ye dunno nuthin’ ’bout nuthin’,” declared the foreman, the much informed because of the Code.
“Waal, ye kin say what ye wanter,” retorted the official. He was a young man; he had a resolute eye and a shock head. “But ye ain’t goin’ ter git out’n here till ye find yer verdict.” He withdrew his tousled head suddenly, and shut the door on them.
Rebellion availing nothing, they resorted to faction.
“Ye needn’t be so powerful techy ’bout harnts; ye ain’t seen none ez I knows on,” said the foreman, turning upon the sick juror.
“Naw, an’ I don’t wanter hear ’bout none o’ ’em till my stommick feels stronger.”
“Shucks! that air nuthin’ oncommon, seein’ harnts an’ sech. Plenty o’ folks hev seen the same one. Thar’s ever so many o’ them herders on Thunderhead hev seen the harnt ez herds up thar. Rob Carrick seen him. I have hearn him tell ’bout’n it arter he got his mind back. Hain’t you, Ben?”
The moon was at the eastern windows. The white lustre poured in. The great room seemed lonely and deserted, despite the group of deliberating jurymen, and the colorless double with which each had been furnished, to ape his gesture, and caricature his size, and dog his every step. An owl was hooting in some distant tree. The voices from the street were faint.
“Ain’t that thar weasel of a constable goin’ ter hev no lamps brung hyar ter-night?” exclaimed Bylor.
But the lamps which came in almost immediately were inadequate to contend with the solemn, ethereal, white pervasion of the night that still hung in the window, and lay upon the floor, and showed the gaunt bare tree outside. They only gave a yellow cast to the circle in which the party sat, and made their faces seem less pallid and unnatural.
“Yes, I hev hearn Carrick tell it a many a time. He used ter herd with Josh Nixon in life.” Ben Doaks paused a moment. “I seen the Herder wunst myse’f, though I never felt right sure about it till ter-night. I ’lowed I mought jes’ hev fancied it.”
“What made ye sure ’bout it ter-night?” demanded Bylor, starting up from the bench.
“’Count o’ what the ’torney-gineral said ’bout hellucination. I know now ez ’twar a vision sent from hell, an’ I reckon that air one reason I hev fund it air so hard ter git religion. My mind hev got too much in league with Satan.”
“Waal, Carrick ’lowed ez Josh Nixon kem back from hell ter herd on Thunderhead ’kase all his bones warn’t buried tergether,” said the foreman.
“Law, Ben,” broke out the owner of cattle, “I wonder ef them beef bones we seen on the top o’ Piomingo Bald warn’t the bones o’ that thar leetle black heifer o’ mine ez couldn’t be fund, an’ ye ’lowed mus’ hev been eat by a wolf.”
“I knocked off the vally o’ that thar heifer in our settlin’ up, an’ I hed hoped ter hear no mo’ o’ her in this mortal life!” cried Ben Doaks, lifting his voice from the bated undertone in which he had discussed the spectral phenomena to an indignant worldly resonance. “I didn’t know ez ye branded yer beastis on her bones,” sarcastically; “the las’ time I seen her she war too fat ter show ’em. I never looked fur yer mark on them bones on the bald.”
“Waal,” said a slow, measured voice, with that unnatural tone one has in speaking to one’s self, “Tad hev got no call ter kem back.”
“Who air ye a-talkin’ ter?” cried Bylor, starting up, his nerves quivering at the slightest provocation.
“Somebody told me just then ’twar Tad’s harnt,” said Price, rousing himself with an effort.
“They never!” cried Bylor. “Old man Beames hain’t got done moanin’ ’bout his cattle, like they war the ornymints o’ the nation. Nobody never opened thar mouths ter ye. Ye jes’ answered ter nuthin’.”
“Harshaw never b’lieved Lethe Sayles seen no harnt,” declared one.
“He hed ter say that,” observed the foreman, evidently of spectral tendencies, “no matter what he believed. The ’torney-gin’al war powerful sure she seen a harnt.”
“He ’lowed it war a hellucination,” protested Bylor, being extremely averse to any theory involving supernatural presence.
“Waal,” argued the logical Price, “he ’lowed ez a hellucination war suthin’ ez looks like a person, but ’tain’t him. Now ain’t that a harnt? Ain’t Tad’s harnt suthin’ that looks like Tad, an’ ain’t Tad?”
“Oh,” cried Bylor, springing from the bench, “I feel obligated ter git away from sech talk! I jes’ look ter see Peter Rood a-stalkin’ round hyar direc’ly, with that awful stare he hed in his eyes when he war stone dead fur ever so long, with his face so close ter mine. I can’t abide it no longer! Let’s toss up. Heads, acquit! Tails, convict!” He produced a coin from his pocket.
“Naw, ye won’t,” said the foreman quickly. “Naw! We’ll delib’rate on this hyar question, an’ decide it like a jury oughter.”
Bylor cast a glance at the windows, each with its great white image upon the floor below; at the dim faces about him; at the lamps, dull and yellow, making the moonlight seem more pallid and vaguely blue. He threw himself upon the bench, and for a long time was silent.
“Look hyar,” said Jerry Price, “it hev jes’ got down ter this,—harnt or no harnt. Ef Lethe Sayles seen Tad, Mink never killed him, an’ hev ter be acquitted. Ef Lethe Sayles seen Tad’s harnt, Mink killed him whilst doin’ a unlawful act, an’ he hev ter go ter the pen’tiary fur involuntary manslaughter, ez the jedge ’lows sech be a felony.”
The wrangle over the question, which bristled with difficulties enough, began anew. They were even more illogical and irritable than before. They were utterly unused to debate, to reason. The mental strain of laboriously applying their attention to each detail, striving to master circumstance and argument, throughout the two days during which the case had been tried twice before them, had resulted in a certain degree of prostration of their faculties. The singular surprise in the evidence and the sudden death of one of their number had unnerved them all, more or less. Being ignorant men, untrained to discriminate and differentiate, while they could accept the strange occurrences which the attorney-general had brought to their knowledge, they were not able to perceive and apply the scientific explanations. And in fact many of these were lame and inadequate. They had heard these seemingly supernatural instances from a man of education and acumen, and it had fallen to their lot to probe the probabilities, and possibilities, and decide an important question based upon them. They were no nearer a conclusion when Ben Doaks, who had been sitting with his arms folded, silently meditating for a time, broke out abruptly, “That’s it! Tad’s harnt kem back ’kase his bones ain’t buried.”
Bylor once more started up. “Who tole ye that? Who said it fust?”
“I dunno,” replied Ben Doaks quietly. “Some o’ them boys.”
“They never!” cried Bylor. “I hev been listening ter every one. Some o’ ye answers the words o’ a man who never speaks aloud! Thar’s a harnt on this jury! I know it! I feel it!” He stood up at his full height, trembling like a leaf. He was in a nervous panic. “Gentlemen, we hev got”—he faltered at the name—“him with us yet. Thar’s thirteen men on this jury. For Gawd’s sake, let’s go down an’ tell the jedge we can’t agree. I’ll see Rood d’rec’ly, an’ ye will too.”
“Laws-a-massy!” cried old Beames, interested for the first time in aught save his cattle. “I’ll make a break an’ run”—he did not say where, the obdurate officer being on the other side of the door. He too rose, agitated, his toothless jaw shaking. “I couldn’t abide ter see him, like he looked las’ night!”
“Thar’s thirteen men on the jury. Thar’s no use denyin’ it,” said the foreman, “whether Pete Rood’s sperit’s in the panel or no.”
A great shadow suddenly flapped awkwardly across the floor. Every man of them started. But it was only the owl they had heard in the distance, now flying past the window. The situation was not more cheerful when the ill-omened bird settled itself on the branch of the hickory-tree, and shrilled its nerve-thrilling cry and convulsively chuckled aloud.
The foreman rose, too. “Thar’s no use a-tryin’,” he said: “we can’t agree, an’ we hev got a right ter disagree. Le’s go down an’ tell the jedge, an’ git discharged. I ain’t easy shook, but this hyar whole case hev been powerful cur’ous, an’ I hev mighty nigh petered out.”
“Look hyar, oughtn’t we ter hold on a while longer? Fur Mink Lorey will hev ter stay in jail fur four months more, till he kin git tried at the next term,” suggested Jerry Price.
“I’m willin’,” said Ben Doaks reluctantly. He looked doubtfully over his shoulder as he spoke. “Eh?” he said, as he turned his head back again.
“Nobody never said nuthin’,” declared the foreman.
“I ’lowed I hearn somebody call my name.”
“I’ll be bound ye did!” cried Bylor. “But nobody called it ez we kin see—yit.”
He rushed to the door and summoned the officer. The court was notified, and the twelve men were conducted down the stairs, each conscious of the presence of the unseen thirteenth.
It was like a transition from the conditions of delirium to the serene atmosphere of right reason. The windows were all flaring with lights, as if the court-room were some factory that ran all night. The lawyers looked fagged and worn out; they had the air of working by momentum aggregated during the day rather than by immediate exertion. It was a contrast to Averill’s leisurely procedure, and they regarded the innovation with exasperation and the judge with some personal animosity. He had his pen still in his hand; there was a moment’s silent waiting while he finished the line he was writing. Mink had been brought out from jail. He sat feverishly impatient and bright-eyed.
Harshaw and the attorney-general turned expectant and interested faces toward the jury.
The judge laid down his pen and looked kindly at them. He viewed them as a bit of completed work. He had a great respect for completed work.
When they were asked if they had agreed upon their verdict, the foreman answered that they could not agree.
The prisoner’s countenance changed instantly. It had upon it an expression of blank amaze, then of sharp distress. Harshaw’s face fell. The attorney-general pricked up his ears. The judge looked grave, concerned.
“Do you desire any further instructions,—any point of difficulty explained?”
The foreman interpreted this formula as a general inquiry into the nature of the trouble. He began precipitately, the quaking men behind him feeling all the despair of being the members of a responsible corporate body of which he was the mouthpiece.
“Ye see, jedge, we-uns can’t but feel thar’s thirteen men on this jury.”
They felt the judge’s quick gray eye counting them. Perhaps at that moment they were all indifferent to the terrors of their spectral associate, so much more substantial a source of terror being presented to them.
The man who had read the Code went on: “Pete Rood—him ez died las’ night—war neither excused nor discharged, so thar’s thirteen men on this jury; an’ we hearn him talkin’ up-stairs along o’ the rest o’ the jurors, sometimes interruptin’ us, an’ we-uns can’t agree ’count o’ thar bein’ a harnt on the jury.”
Even he faltered before the look in the face of the judge, whose decisions were thus frankly criticised. There was something terrible in the fury that his eyes expressed. He sat motionless, with an air of great calmness and dignity. His face, however, crimsoned to the roots of his hair. The veins in his forehead stood out swollen and blue. There was an intense silence for a moment. Then his voice, as always, singularly low and inexpressive, broke the pause.
“Mr. Sheriff,” he said, “conduct those thirteen—those twelve men to the county jail, and keep them there for contempt of court until ten o’clock to-morrow morning, permitting no communication with others.”
He directed that a fine of ten dollars should be entered against each, and forthwith adjourned the court.
This high-handed proceeding had no parallel in the annals of the circuit. Harshaw, swelling with rage, found knots of men eagerly discussing it, as he pushed his way out into the hall. Some one was advancing the opinion that a jury in jail was no longer a jury, but merely twelve culprits. Another found a hearty laugh in the reflection that they would not probably discover so many harnts in jail as in the jury-room. A third demanded of Harshaw, “Why didn’t he discharge the jury, and imprison them as men?”
“Too afraid of the S’preme Court,” Harshaw hissed between his teeth. “Wish he had! On appeal a premature discharge would operate as an acquittal of the prisoner.”
He regarded the action of the judge as an outrage, and he did not hesitate to express this opinion. He had expended much time and force upon his case, and looked for no compensation but the satisfaction of success. He had that excellent quality in a lawyer, the faculty of making his client’s cause his own. He felt the hardship of this extension of the prisoner’s jeopardy scarcely less deeply than Mink himself. A little remonstrance with the ignorant men, a little pocketing of personal and judicial pride, a few coaxing, explanatory words, might have sent them back refreshed and invigorated to their deliberations, with a good hope of agreement. Now, there was no prophesying what effect these strong measures would have upon them. He believed that Gwinnan had transcended all the authority of his office. “By God,” he cried, “if he keeps on like he’s started he’ll get impeached some day! And if I could see my way to it, I swear I’d introduce the resolution in the House myself!”
He walked off, his head swimming a little. He had said this rash thing before a motley crowd, and at any time it might be repeated to Gwinnan, who was himself a politician in some sort, and a man of great force.