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 _hell_ucination. 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 _hell_ucination,” protested Bylor, being extremely
averse to any theory involving supernatural presence.
“Waal,” argued the logical Price, “he ’lowed ez a _hell_ucination 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.