II
The case of the State of North Carolina vs. Ben Davis was called. The accused was led into court, and took his seat in the prisoner's dock.
"Prisoner at the bar, stand up."
The prisoner, pale and anxious, stood up. The clerk read the indictment, in which it was charged that the defendant by force and arms had entered the barn of one G.W. Thornton, and feloniously taken therefrom one whip, of the value of fifteen dollars.
"Are you guilty or not guilty?" asked the judge.
"Not guilty, yo' Honah; not guilty, Jedge. I never tuck de whip."
The State's attorney opened the case. He was young and zealous. Recently elected to the office, this was his first batch of cases, and he was anxious to make as good a record as possible. He had no doubt of the prisoner's guilt. There had been a great deal of petty thieving in the county, and several gentlemen had suggested to him the necessity for greater severity in punishing it. The jury were all white men. The prosecuting attorney stated the case.
"We expect to show, gentlemen of the jury, the facts set out in the indictment,—not altogether by direct proof, but by a chain of circumstantial evidence which is stronger even than the testimony of eyewitnesses. Men might lie, but circumstances cannot. We expect to show that the defendant is a man of dangerous character, a surly, impudent fellow; a man whose views of property are prejudicial to the welfare of society, and who has been heard to assert that half the property which is owned in this county has been stolen, and that, if justice were done, the white people ought to divide up the land with the negroes; in other words, a negro nihilist, a communist, a secret devotee of Tom Paine and Voltaire, a pupil of the anarchist propaganda, which, if not checked by the stern hand of the law, will fasten its insidious fangs on our social system, and drag it down to ruin."
"We object, may it please your Honor," said the defendant's attorney.
"The prosecutor should defer his argument until the testimony is in."
"Confine yourself to the facts, Major," said the court mildly.
The prisoner sat with half-open mouth, overwhelmed by this flood of eloquence. He had never heard of Tom Paine or Voltaire. He had no conception of what a nihilist or an anarchist might be, and could not have told the difference between a propaganda and a potato.
"We expect to show, may it please the court, that the prisoner had been employed by Colonel Thornton to shoe a horse; that the horse was taken to the prisoner's blacksmith shop by a servant of Colonel Thornton's; that, this servant expressing a desire to go somewhere on an errand before the horse had been shod, the prisoner volunteered to return the horse to Colonel Thornton's stable; that he did so, and the following morning the whip in question was missing; that, from circumstances, suspicion naturally fell upon the prisoner, and a search was made of his shop, where the whip was found secreted; that the prisoner denied that the whip was there, but when confronted with the evidence of his crime, showed by his confusion that he was guilty beyond a peradventure."
The prisoner looked more anxious; so much eloquence could not but be effective with the jury.
The attorney for the defendant answered briefly, denying the defendant's guilt, dwelling upon his previous good character for honesty, and begging the jury not to pre-judge the case, but to remember that the law is merciful, and that the benefit of the doubt should be given to the prisoner.
The prisoner glanced nervously at the jury. There was nothing in their faces to indicate the effect upon them of the opening statements. It seemed to the disinterested listeners as if the defendant's attorney had little confidence in his client's cause.
Colonel Thornton took the stand and testified to his ownership of the whip, the place where it was kept, its value, and the fact that it had disappeared. The whip was produced in court and identified by the witness. He also testified to the conversation at the blacksmith shop in the course of which the prisoner had expressed a desire to possess a similar whip. The cross-examination was brief, and no attempt was made to shake the Colonel's testimony.
The next witness was the constable who had gone with a warrant to search Ben's shop. He testified to the circumstances under which the whip was found.
"He wuz brazen as a mule at fust, an' wanted ter git mad about it. But when we begun ter turn over that pile er truck in the cawner, he kinder begun ter trimble; when the whip-handle stuck out, his eyes commenced ter grow big, an' when we hauled the whip out he turned pale ez ashes, an' begun to swear he did n' take the whip an' did n' know how it got thar."
"You may cross-examine," said the prosecuting attorney triumphantly.
The prisoner felt the weight of the testimony, and glanced furtively at the jury, and then appealingly at his lawyer.
"You say that Ben denied that he had stolen the whip," said the prisoner's attorney, on cross-examination. "Did it not occur to you that what you took for brazen impudence might have been but the evidence of conscious innocence?"
The witness grinned incredulously, revealing thereby a few blackened fragments of teeth.
"I 've tuck up more 'n a hundred niggers fer stealin', Kurnel, an' I never seed one yit that did n' 'ny it ter the las'."
"Answer my question. Might not the witness's indignation have been a manifestation of conscious innocence? Yes or no?"
"Yes, it mought, an' the moon mought fall—but it don't."
Further cross-examination did not weaken the witness's testimony, which was very damaging, and every one in the court room felt instinctively that a strong defense would be required to break down the State's case.
"The State rests," said the prosecuting attorney, with a ring in his voice which spoke of certain victory.
There was a temporary lull in the proceedings, during which a bailiff passed a pitcher of water and a glass along the line of jury-men. The defense was then begun.
The law in its wisdom did not permit the defendant to testify in his own behalf. There were no witnesses to the facts, but several were called to testify to Ben's good character. The colored witnesses made him out possessed of all the virtues. One or two white men testified that they had never known anything against his reputation for honesty.
The defendant rested his case, and the State called its witnesses in rebuttal. They were entirely on the point of character. One testified that he had heard the prisoner say that, if the negroes had their rights, they would own at least half the property. Another testified that he had heard the defendant say that the negroes spent too much money on churches, and that they cared a good deal more for God than God had ever seemed to care for them.
Ben Davis listened to this testimony with half-open mouth and staring eyes. Now and then he would lean forward and speak perhaps a word, when his attorney would shake a warning finger at him, and he would fall back helplessly, as if abandoning himself to fate; but for a moment only, when he would resume his puzzled look.
The arguments followed. The prosecuting attorney briefly summed up the evidence, and characterized it as almost a mathematical proof of the prisoner's guilt. He reserved his eloquence for the closing argument.
The defendant's attorney had a headache, and secretly believed his client guilty. His address sounded more like an appeal for mercy than a demand for justice. Then the State's attorney delivered the maiden argument of his office, the speech that made his reputation as an orator, and opened up to him a successful political career.
The judge's charge to the jury was a plain, simple statement of the law as applied to circumstantial evidence, and the mere statement of the law foreshadowed the verdict.
The eyes of the prisoner were glued to the jury-box, and he looked more and more like a hunted animal. In the rear of the crowd of blacks who filled the back part of the room, partly concealed by the projecting angle of the fireplace, stood Tom, the blacksmith's assistant. If the face is the mirror of the soul, then this man's soul, taken off its guard in this moment of excitement, was full of lust and envy and all evil passions.
The jury filed out of their box, and into the jury room behind the judge's stand. There was a moment of relaxation in the court room. The lawyers fell into conversation across the table. The judge beckoned to Colonel Thornton, who stepped forward, and they conversed together a few moments. The prisoner was all eyes and ears in this moment of waiting, and from an involuntary gesture on the part of the judge he divined that they were speaking of him. It is a pity he could not hear what was said.
"How do you feel about the case, Colonel?" asked the judge.
"Let him off easy," replied Colonel Thornton. "He 's the best blacksmith in the county."
The business of the court seemed to have halted by tacit consent, in anticipation of a quick verdict. The suspense did not last long. Scarcely ten minutes had elapsed when there was a rap on the door, the officer opened it, and the jury came out.
The prisoner, his soul in his eyes, sought their faces, but met no reassuring glance; they were all looking away from him.
"Gentlemen of the jury, have you agreed upon a verdict?"
"We have," responded the foreman. The clerk of the court stepped forward and took the fateful slip from the foreman's hand.
The clerk read the verdict: "We, the jury impaneled and sworn to try the issues in this cause, do find the prisoner guilty as charged in the indictment."
There was a moment of breathless silence. Then a wild burst of grief from the prisoner's wife, to which his two children, not understanding it all, but vaguely conscious of some calamity, added their voices in two long, discordant wails, which would have been ludicrous had they not been heartrending.
The face of the young man in the back of the room expressed relief and badly concealed satisfaction. The prisoner fell back upon the seat from which he had half risen in his anxiety, and his dark face assumed an ashen hue. What he thought could only be surmised. Perhaps, knowing his innocence, he had not believed conviction possible; perhaps, conscious of guilt, he dreaded the punishment, the extent of which was optional with the judge, within very wide limits. Only one other person present knew whether or not he was guilty, and that other had slunk furtively from the court room.
Some of the spectators wondered why there should be so much ado about convicting a negro of stealing a buggy-whip. They had forgotten their own interest of the moment before. They did not realize out of what trifles grow the tragedies of life.
It was four o'clock in the afternoon, the hour for adjournment, when the verdict was returned. The judge nodded to the bailiff.
"Oyez, oyez! this court is now adjourned until ten o'clock to-morrow morning," cried the bailiff in a singsong voice. The judge left the bench, the jury filed out of the box, and a buzz of conversation filled the court room.
"Brace up, Ben, brace up, my boy," said the defendant's lawyer, half apologetically. "I did what I could for you, but you can never tell what a jury will do. You won't be sentenced till to-morrow morning. In the meantime I 'll speak to the judge and try to get him to be easy with you. He may let you off with a light fine."
The negro pulled himself together, and by an effort listened.
"Thanky, Majah," was all he said. He seemed to be thinking of something far away.
He barely spoke to his wife when she frantically threw herself on him, and clung to his neck, as he passed through the side room on his way to jail. He kissed his children mechanically, and did not reply to the soothing remarks made by the jailer.