X.

The little brick court-house in Shaftesville had stood for half a century

in the centre of the village square, as impassive as an oracle to the

decrees which issued from it. Even time seemed able to make but scant

impression upon it. True, the changes of the day might register on its

windows, flaring with fictitious fires when the sun was in the west, or

reflecting the moonlight with pallid glimmers, as if some white-faced

spectre had peered out into the midnight through the dusty pane. Mosses

clung to its walls; generations of swallows nested in its chimneys,

soaring up from them now and then, bevies of black dots, as if the

records below had spewed out a surplusage of punctuation marks and blots;

decay had touched a window-sill here and there. But it was still called

the “new court-house,” in contradistinction to the primitive log building

that it had replaced; and despite some inward monitions of its age once

in a while, its long experience of various phases of life, its knowledge

of the coming and going of many men who would come and go no more, it

was enabled to maintain an air of jaunty unconsciousness, as it was

still the handsomest edifice in Shaftesville and of a somewhat imposing

architectural pretension. It had beheld many a “State’s day” dawn like

this, with fitful gusts of wind and rain, with a frenzied surging of the

boughs of the hickory-trees about it as if some sylvan grief beset them,

with a continual shifting of the mists that veiled the mountains and hung

above the roofs of the straggling little town.

The few stores, all of which faced the square, were early full of

customers clad in jeans, with heavy cowhide boots deeply bemired by the

red clay mud of the streets, and with gruff faces that expressed surly

disapproval of the frills and frippery of civilization as exhibited

in Shaftesville. Canvas-covered wagons, laden with produce and drawn

by oxen, stood before the doors, and among the piles of corn and bags

of apples and chestnuts children’s wide-eyed, grave faces looked out

cautiously from behind the flaps at the inexplicable “town ways.” In

the intervals of the down-pour there was much stir in the streets. Men

with long-skirted coats and broad hats and stern, grizzled faces rode

about on gaunt mountain horses. Now and then one would be accompanied by

an elderly woman in homespun dress, a shawl and sun-bonnet, wearing a

settled look of sour disaffection, and chirruping a sharp warning rather

than encouragement to her stumbling, antiquated gray mare. There were

many horses hitched to the palings of the court-house fence, and numbers

of men lounged about the yard, all crowding up the steps as the tuneless

clangor of the bell smote the air. Around the door of the jail boys and

rowdyish young men assembled, waiting with an indomitable patience,

despite the quick, sharp showers, to see the prisoner led out.

The people of Shaftesville regarded the swarm of visitors as somewhat

an encroachment upon their vested rights. “Leave _anybody_ in the

mountains?” was a frequent raillery.

“Ye town folks jes’ ’lowed ye’d hev all the fun ter yerselves o’ seein’

Mink Lorey tried, ye grudgin’ half-livers,” the mountaineers would

retort; “but from what I kin see, I reckon ye air sorter mistook this

time, sure.”

And indeed the court-room was crowded as it had seldom been in the fifty

years that justice had been meted out here. In the space without the

bar the benches groaned and creaked beneath the weight of those who had

taken the precaution to secure seats in advance, and had occupied them in

dreary waiting since early in the morning. The forethought of one coterie

had come to naught, for the bench succumbed beneath twenty stalwart

mountaineers; its feeble supports bent, and as the party collapsed in a

wild mingling of legs and arms, waving in frantic efforts to recover

equilibrium, Shaftesville was “mighty nigh tickled ter death,” for the

first time that day. As the sprawling young fellows sheepishly gathered

themselves together, a burst of jeering laughter filled the room, only

gradually subdued by the sheriff’s “Silence in court!”

The attorney-general was already piling his books and papers on the

table, consulting his notes and absorbed in his preparations. He was a

man of fifty, perhaps, with a polished bald head that might have been

of interest to a phrenologist (for it had sundry marked protuberances),

blunt, strong features, a heavy lower jaw, an expression of insistent

common sense, and a deep bass voice. He was sonorously clearing his

throat just now, and was wiping from his thick, short, grizzled mustache

drops of some fluid that gave a pervasive unequivocal odor to his breath.

It had only rejoiced his stomach, however, and did not affect the keen

acumen for which he was famous, and he was settling to his work with

an evident intention of giving the defense all they would be able to

wrestle with. The old miller, in his rags and patches, sat beside him as

prosecutor. His face wore a strange meekness. Now and then he lifted his

bleared eyes with an intent look, as if hearing some unworded counsels;

then shook his head and bowed it, with its long white locks, upon his

hands clasped on his stick. There were many glances directed toward him,

half in commiseration, half in curiosity; but these sentiments were bated

somewhat by familiarity, for there was hardly a man in Cherokee County

who had not visited the ruins of the mill and heard much gossip about the

old man’s uncharacteristic humility and submissive grief.

A stronger element of interest was added to the impending trial by the

circumstance that it was a stranger on the bench. Comparatively few of

the assemblage had been in attendance the preceding days, during the

trial of the civil cases, and in the preliminary moments, throughout the

opening of the court, the reading of the minutes, the calling of the

roll, the miscellaneous motions, until the criminal docket was taken up

and the case called, the judge sustained the fixed gaze of one half the

county.

He did not embody the sleek, successful promise of his reputation. He

had the look of a man who has fought hard for all that he has won,

and, unsatisfied, is ready to fight again. It was a most unappeased,

belligerent spirit expressed in his eyes. They were of a dark gray, and

deeply set. He had straight black hair, cut short about his head. His

face wore a repressed impatience; sharp lines were drawn about it, making

him seem somewhat older than his age, which was thirty-five or six; his

nose had a fine, thin nostril; his chin was round and heavy. He wore a

long mustache; now and then he gnawed at the end of it. He sat stiffly

erect before the desk, his elbow upon it, his chin resting in his hand.

His blue flannel suit hung negligently on his tall, slender figure, and

they were lean, long fingers that held his chin.

He was looking about with a restless eye. The great round stove in the

room was red hot. Snow had been seen on the summits of the distant Smoky,

and was not this sure indication that winter was at hand? The sheriff

was a man of rigid rule and precedent, and the fire had been built

accordingly.

The judge spoke suddenly. He had a singularly low, inexpressive voice, a

falling inflection, and a deliberate, measured manner. “Mr. Sheriff,” he

said, “hoist that window, will you?”

All the windows were occupied by men and boys, some of them standing that

they might obtain a better view of the prisoner when he should be led in.

From the sill of the window indicated they descended with clumsy hops and

thumps upon the floor, as they made way for the sheriff to admit the air.

There was a half-suppressed titter from those more fortunately placed, as

the dispossessed and discomfited spectators crowded together against the

wall. The judge glanced about with displeasure in his eyes.

“I’ll have you to understand,” he said in his unimpassioned drawl, “that

a trial before a court of justice is not a circus or a show. And if

there’s not more quiet in this court-room, I’ll send one half of this

crowd to jail.”

There was quiet at once. The gaze fixed upon him was suddenly an

unfriendly look. To be sure, he was not a visiting clergyman, but one

expects a certain degree of urbanity from the stranger within one’s

gates, however lofty his mission and imperious his authority. Their own

judicial magnate, Judge Averill, was a very lenient man, fat, and bald,

and jolly. The frequenters of the place could but be impressed with the

contrast. If Judge Averill found the room or the weather too warm, he

took off his coat, and tried his cases clothed in his right mind, and in

little else. Everybody in the county was familiar with the back of his

vest, which had a triangular wedge of cloth let into it, for the judge

had become more expansive than when the vest was a fit. He was a sound

lawyer and an excellent man, and his decisions suffered no disparagement

from his shirt sleeves.

The pause of expectation was prolonged. The stove was cracking, as it

abruptly cooled, as if with inarticulate protest against these summary

proceedings. The autumnal breeze came in dank and chill at the window.

The spectators moved restlessly in their places. There was a sharp

contrast between the townspeople—especially the lawyers within the bar,

in their dapper store clothes, and with that alert expression habitual

with men who think for a living—and the stolid, ruminative mountain

folks, with unshorn beards and unkempt heads, habited in jeans, and

lounging about in slouching postures.

There was a sudden approach of feet in the hall,—the feet, to judge

by their nimble irresponsibility, of scuttling small boys. A thrill

of excitement ran through the crowd as a heavier tramp resounded. The

sheriff in charge of the prisoner, who was accompanied by his counsel,

came into the room so swiftly as almost to impair the effect of the

entry, and Mink and his lawyer sat down within the bar.

Oddly enough, Mink’s keen, bright eyes were elate as he glanced about.

He looked so light, so alert, so elastically ready to bound away,

that those cautious souls, who like to be on the safe side, felt that

it would conduce to the public weal if he were still ironed. He was

visibly excited, too; his expression conveyed the idea of an inadequate

recognition of everything that he saw, but he stood up and pleaded “Not

guilty” in a steady, strong voice, and with his old offhand, debonair,

manly manner. He held his hat in his hand,—a long time, poor fellow,

since he had had need of it; his clothes still bore the rents of the

struggle when he was captured; his fine hair curled down upon his brown

jeans coat collar; and his face had an unwonted delicacy of effect, the

refined result of the prosaic “jail-bleach.” He seemed most thoroughly

alive. In contrast any other personality suggested torpor. His strong

peculiarities had a certain obliterative effect upon others; he was the

climax of interest in the room. The judge looked at him with marked

attention.

Harshaw had flung himself back in his chair, that quaked in every fibre

beneath him. He mopped his flushed face with his handkerchief, sighed

with fatness and anxiety, and pulled down his vest and the stubs of his

shirt sleeves about his thick wrists, for he wore no cuffs. He leaned

forward from time to time, and whispered with eager perturbation to the

prisoner, who seemed to listen with a sort of flout of indifference and

confident protest. Mink’s conduct was so unexpected, so remarkable, that

it attracted general attention. The members of the bar had taken note

of it, and presently two or three commented in whispers on Harshaw’s

preoccupation. For he, a stickler at trifles, a man that fought on

principle every point of his case, had allowed something to slip his

notice. The names of the jury were about to be drawn. The sheriff,

seeking, according to the law, that exponent of guilelessness, “a child

under ten years of age,” had encountered one in the hall, and came

back into the room, beckoning with many an alluring demonstration some

small person, invisible because of the density of the crowd. It once

more showed a disposition to titter, for the sheriff, a bulky, ungainly

man, was wreathing his hard features into sweetly insistent smiles,

when there appeared, in the open space near the judge’s desk, a little

maiden, following him, beginning to smile, too, under so many soft

attentions. Her blowzy, uncovered hair was of a sunny hue; her red lips

parted to show her snaggled little teeth; her eyes, so fresh, so blue,

were fastened upon him with an expression of blandest favor; her plump

little body was arrayed in a blue-checked cotton frock; and despite the

season her feet were bare. It was perhaps this special mark of poverty

that attracted the attention of one of the lawyers. He was a man of

extraordinary memory, a politician, and well acquainted in the coves. He

looked hard at the little girl. Then he whispered to a crony that she

was the miller’s granddaughter. For it was “Sister Eudory.” They watched

Harshaw with idle interest, expecting him to identify the small kinswoman

of the drowned boy, and to derive from the fact some fine-spun theory of

incompetency. He did not recognize her, however,—perhaps he had never

before seen her; he only gave her a casual glance, and then turned his

eyes upon the jury list in his hands.

The scrolls bearing the names of the proposed jurors were placed in

a hat, and the sheriff, bowing his long back, extended it to “Sister

Eudory.”

She held her pretty head askew, looked up, smiling with childish coquetry

at the judge, put in her dimpled hand with a delicate tentative gesture,

took out a scroll, and under the sheriff’s directions, handed it to the

clerk with an elaborate air of bestowal. He looked at it, and read the

name aloud.

Her charming infantile presence, as she stood by the judge’s desk among

the grave, bearded men, drawing the jury with her dimpled hands,

won upon the crowd. There were laughing glances interchanged, and no

dissenting opinion as to the prettiness and “peartness” of “Sister

Eudory.” She was evidently under the impression that she was performing

some great public feat, as she again thrust in her hand, caught up

another scroll, and smiled radiantly into the face of the judge, who was

visibly embarrassed by the blandishments of the small coquette. He hardly

knew how to return her gaze, and instead he glanced casually out of the

window close by.

The defense frequently availed themselves of their right of peremptory

challenge. This was a matter of preconcerted detail with the jury list

before them. Whenever it was possible they challenged “for cause”

until the _venire_ was exhausted. Then jurors were summoned from the

by-standers. It was not exactly the entertainment for which the crowd

had been waiting, but they found a certain interest in seeing Mink, no

longer indifferent, lean forward, and with acrimonious eagerness whisper

into the counsel’s ear presumable defamations of the juror, who looked on

helplessly and with an avidity of curiosity as to what was about to be

publicly urged against him. Over and again the sheriff made incursions

into the streets, summoning talesmen wherever he could lay his hands on

suitable persons. Men of undoubted integrity and sobriety were scarce at

the moment, for the good citizens of Shaftesville, averse to the duty,

and hearing that he was abroad on this mission, disappeared as if the

earth had swallowed them. Plunging into the stores, the baffled official

would encounter only the grins of the few callow clerks—proprietor and

customers having alike fled. Once he pursued the flying coat-tails and

the soles of the nimble feet of one of the solid men of the town around a

corner, never coming nearer. It was a time-honored custom to respond thus

to one’s country’s call, and engendered no bitterness in the sheriff’s

breast. Perhaps he considered this saltatory exercise one of the official

duties to which he had been dedicated.

The difficulty of securing a jury was unexampled in the annals of the

county. Many, otherwise eligible, confessed to a prejudice against Mink,

and had formed and freely expressed an opinion as to his guilt. One old

codger from some sequestered cove of the mountains, never before having

visited Shaftesville, and desirous of adding to the strange tales of his

travels the unique experience of serving on the jury, dashed his own

hopes when questioned as usual, by replying glibly in the affirmative.

He said, too, that the “outdacious rascality of the prisoner showed in

his face, an’ ef they locked him up for life he’d be a warnin’ ter the

other mischievious young minks, fur the kentry war a-roamin’ with ’em.”

His look of blank amazement and discomfiture when told to “stand aside”

elicited once more the ready titter of the crowd and the sheriff’s

formula, “Silence in court!”

As such admissions were made, Mink sat, his head thrust forward, his

bright, intent eyes flashing indignantly, a fluctuating flush on his

pallid cheek, his whole lithe, motionless figure seeming so alert that it

would scarcely have astonished the community if he had sprung upon the

holder of these aggressive views of his guilt. His lawyer sneered, and

now and then exchanged a glance of scornful comment with him,—for Harshaw

had recovered his equanimity in the exercise of that most characteristic

quality, his pugnacity, during his wrangles with the attorney for the

State in challenging the jurymen.

The crude gray light of the autumn day waned. A dim shadow fell over the

assemblage. Gusts of wind dashed the rain against the grimy panes, the

drops trickling down in long, irregular lines; the yellow hickory leaves

went whirling by, sometimes dropping upon the window-ledges, and away

again on the restless blast. The mists pressed against the glass, then

quivered and disappeared, and came once more. Occasionally a great hollow

voice sounded from the empty upper chambers of the building and through

the long halls; the doors left ajar slammed now and then, and the sashes

rattled as the wind rose higher.

It was not more cheerful when the lamps were lighted, for the court

did not adjourn at the usual hour. A strong smell of coal oil and of

ill-trimmed wicks pervaded the air; a bated suffusion of yellow radiance

emanated from them into the brown dimness of the great room. The

illumined faces were dull with fatigue and glistening with perspiration,

for the stove was once again red-hot,—an old colored man, with a tropical

idea of comfort, appearing at close intervals with an armful of wood.

Old Griff’s long white hair gleamed among the darker heads within the

bar. He had fallen asleep, his forehead bowed on his hands, his hands

clasped on his stick. Strange shadows seemed to be attending court.

Grotesque distortions of humanity walked the walls, and lurked among the

assemblage, and haunted the open door, and looked over the shoulder of

the judge.

It began to be very apparent to the spectators, the bar, the prisoner,

the attorney-general, and the sheriff, that Judge Gwinnan had the

fixed purpose of sitting there without adjournment until the requisite

competent dozen jurors should be secured. It was already late, long past

the usual hour for supper, and although the lawyers and the crowd, who

could withdraw and refresh themselves as they wished, might approve of

this ascetic determination neither to eat nor to sleep until the jury was

achieved, the sheriff, his deputy absent, felt it a hardship. He was a

bulky fellow, accustomed to locomotion only on horseback. He had taken

much exercise to-day on foot, a sort of official Diogenes,—searching for

a mythical unattained man of an exigent mental and moral pattern,—with

not even a tub as a haven to which he might have the poor privilege of

retiring. When he next darted out with a sort of unwieldy agility into

the hall, which was lighted by a swinging lamp, the wick turned too high

and the chimney emitting flames tipped with smoke, he was not easily to

be withstood. He seized upon a man leaning idly against the wall, his

hands in his pockets, whom he had not seen before to-day. “Ye air the

very feller I’m a-lookin’ fur!” he cried, magnifying the accident into a

feat of intention.

Peter Rood drew back further against the wall, with a shocked expression

on his swarthy face and in his glittering black eyes. “I can’t!” he

cried. “Lemme go!”

“Why can’t ye?” demanded the sheriff.

“I ain’t well,” protested Rood, more calmly.

“Shucks!” the officer incredulously commented. “Ef all I hev hearn o’

that sort to-day war true, thar ain’t a hearty, whoppin’ big man in

Cherokee County but what’s got every disease from the chicken pip ter the

yaller fever. Come on, Pete, an’ quit foolin’.”

Under the strong coercion of the law administered by a sheriff who wanted

his supper, Rood could but go.

Despite his rapacious interest in all that concerned the tragedy, he

had hitherto held aloof from the court-house; he had withdrawn himself

even from the streets, fearing to meet the sheriff. Seeing the great

yellow lights in the windows, each flaring in the rainy night like some

many-faceted topaz, he had fancied that the trial must be well under way,

for no gossip had come to him in his hiding-place of the difficulty of

securing a jury. He could no longer resist his curiosity. He strode at

his leisurely gait up the steps, meaning merely to glance within, when

the sheriff issued upon him.

As he came with the officer into the room, Mink scanned him angrily,

leaned forward, and whispered sharply to the lawyer. Rood was trembling

in every fibre; the fixed gaze of all the crowd seemed to pierce him; his

great eyes turned with a fluctuating, meaningless stare from one official

to the other.

He was a freeholder, not a householder. He had expressed no opinion as to

the guilt of the prisoner. Had he formed none? He had not thought about

it. He was challenged by the defense on the score of personal enmity

toward the prisoner, the peremptory challenges being exhausted. As he

was otherwise eligible he was put upon his _voir dire_.

Harshaw looked steadily at him for a moment, his red lips curling,

sitting with his arms folded across his broad chest. Mink’s bright, keen

face close behind him was expectant, already triumphant. His hand was on

the back of his counsel’s chair.

Suddenly Harshaw, tossing his hair from his brow, leaned forward, with

his folded arms on the table before him.

“Did you not, sir,” he said, smacking his confident red lips, and with

an exasperatingly deliberate delivery,—“did you not on the twentieth day

of August ascend a certain summit of the Great Smoky Mountains called

Piomingo Bald, and there”—he derisively thrust out his red tongue and

withdrew it swiftly—“shoot and kill a certain cow, believing it to belong

to Mink Lo—to Reuben Lorey?”

The judge’s eyes were fixed upon Rood. He seemed strangely agitated,

shocked; his face assumed a ghastly pallor.

The attorney-general protested that the juror was not obliged to answer

a question which tended to fasten disgrace, nay crime, upon him; Harshaw

the while still leaning on the table, laughing silently, and looking with

the roseate dimples of corpulent triumph at their discomfiture.

“The juror need not answer,” said the judge.

“I’m mighty willin’ ter answer, jedge,” gasped Rood. “I never done no

sech thing sence I war born.”

In the estimation of all the crowd it was natural that he should say

this; to accept the privilege of silence would be admission.

“Let me put another question in altogether another field,” said Harshaw,

smoothing his yellow beard. “If it please the court to permit us to cite

the decision of an inferior court, perhaps, but altogether beyond the

jurisdiction of this honorable court, I should like to refer to the dicta

in the courts of Cupid. Were not you and the prisoner suitors for the

hand of the same young lady?”

It tickled him, to use a phrase most descriptive of the enjoyment he

experienced, to describe in this inflated manner the humble “courtin’” of

the mountaineers. There was a broad smile on many of the faces within the

bar, the townspeople relishing particularly a joke of this character on

the mountain folks. The judge’s discerning gray eye was fixed upon him as

his pink laugh expanded, his peculiarly red lips showing his strong white

teeth.

“Yes, sir, we war,” Rood admitted. He was calm now; his agitation had

excited no comment; it was to be expected in a man surprised, confounded,

and dismayed by so serious a charge.

“You were! How interesting! Go where you may, the world’s the same! The

charmer spreads her snare even up in the cove! And you and Reuben Lorey

fell together in it, two willing victims. And as he got the best of it,

as the lady preferred him, it would be natural that you should have some

little grudge against him, hey?”

“I dunno how he got the best of it,” said Rood sharply. “I ain’t got no

grudge agin him fur that. ’Twar jes’ yestiddy she sent me word by her

mother ter kem back; she war jes’ foolin’ Mink.”

He was evidently glad to tell it; he did not care even for the giggle in

the crowd.

The lawyer was abashed for a moment, and Mink, so long accustomed to be

rated a breaker of hearts, a lady-killer, was grievously cut down. In

all the episodes of that day which had so bristled with animosity this

was the first moment that his spirit flagged, despite that he had never

heretofore cared for Elvira,—did not care for her now.

Rood hardly was aware how the examination was tending; in the interests

of self-defense he had overlooked its purpose. He stood staring with

blank amaze when the judge’s voice ended the discussion.

“The juror is competent,” he said.

The two remaining talesmen being unchallenged, the jury was duly

impaneled and sworn.

The court was adjourned. The sleepy crowd filed out into the streets,

the lights in the court-house windows disappeared, and a dark and vacant

interval ensued.