Part 16

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.

XIV.

Imprisonment proved an efficacious method of exorcising the “harnt” upon the jury. Much of the sojourn in the county jail was expended in criminations and recriminations. Not one of the jurymen would admit any responsibility for their plight. Not one had entertained the slightest belief in their ghostly associate. The mere contact with that practical, prosaic mundane force, the law of the land, had so restored them that they were emboldened to roundly denounce the harnt. And the name of poor Peter Rood, which had been whispered with bated breath in the jury-room, came smartly enough from the tongue even of Bylor. In fact, he was the most persistent in disavowing susceptibility to spectral influence.

“I begged an’ begged ye ter shet up talkin’ ’bout sech,” he cried, which was indeed the truth. “An’ ye jes’ kep’ it up an’ kep’ it up, till ye skeered yerse’fs out’n yer boots, an’ then I couldn’t do nuthin’ with ye.”

They had all been locked temporarily into one room of the jail, while the sheriff and jailer consulted in regard to the accommodations for so unusual a number of prisoners. In their close quarters the jurymen leaned against the wall or walked the floor, jostling each other in the shadow, for the room was dark save for the moonbeams slanting through the bars of the window. The foreman hung about in the obscure places, freely addressed,—for they knew, without seeing, that he was there,—and required to bear the brunt of all the reproaches for the calamity. Once he plucked up spirit to retort.

“Ye war the very man ez yapped fur the dep’ty,” he said to Bylor, who allowed himself to be drawn into argument.

“How’d I know ez you-uns war a-goin’ ter traipse down them steers an’ ’low ter the jedge ez you-uns knowed mo’ law ’n he do? Ye dad-burned aged idjit, ef ye warn’t older ’n me I’d lay ye out on this floor.”

“I felt jes’ like the tail of a dog in a fight,—could neither holp nor hender the critter ez toted me ahint him, but war jes’ ez apt ter git gnawed ez him,” said Jerry Price disconsolately.

“I looked ter see the jedge fetch him a pop ’side the head, myself,” said the new juryman, evidently unacquainted with judicial methods. He had regarded his capture to serve on the jury as a woful disaster, and could hardly bear up under this aggregation of misfortunes. “Ef I hed knowed what war comin’, I wouldn’t hev followed him down them steers.”

“Six spry young steers ’mongst my cattle,—I’ll never see ’em agin!” cried old man Beames from out the darkness, reminded anew of his journeying herds under the insufficient guidance of Bob. “I hev never done no wrong in my life. I hev tuk heed ter my feet ter walk in the right way. An’ hyar in my old age, through another man’s fault, the door of a jail hev been shet on me.”

His voice dropped. They were all feeling the poignant humiliation of the imprisonment. They were honest men, to whom it could scarcely have come but for this mischance. At every contortion of wounded pride they turned upon the unlucky foreman.

“I ’lowed I’d drap in my tracks,” cried Ben Doaks, “whenst he jes’ tuk the Code o’ Tennessee by the hawns an’ tail, an’ dragged it up afore the jedge.”

And Jerry Price was fain to sneer, too.

“Did the Code hev nuthin’ in it ’bout cuttin’ out the tongue of a foreman of a jury?” he demanded.

But the Code was an unabated fact still, and the nephew of the ex-justice alone could say what was in it. “Naw, sir!” he retorted, emboldened by the allusion to his superior knowledge, “nor about jailin’ a jury, nuther. I don’t b’lieve the jedge hed the right ter jail the jury.”

“Waal,” drawled Jerry, satirically, “we-uns hed better make up our minds powerful quick how we air a-goin’ ter pay him back fur it.”

The foreman was saved the mortification of acknowledging the hopelessness of reprisal. A voice without sounded suddenly.

“I wanter see how many thar air,” said the jailer.

“On a jury? Shucks! ye’re funnin’. Twelve,” in the familiar tones of the sheriff.

“I jes’ wanter look at ’em agin.”

“Ye sha’n’t,” retorted the sheriff.

He did not reckon on the fact that although he, as sheriff, had the legal authority and control of the jail, the jailer was possessed of the material keys, and locked and unlocked the doors at will. He opened this one now, gingerly, and the men within felt the grin they could not see.

“Brung ’em hyar ’kase they couldn’t count,” he said, jocosely. “They air the fust boarders we hev hed fur sech ez that.”

The sheriff, who was holding a lamp in the hall, pulled the door to, still animated by his sense of duty, and the jury heard the lock click as the facile jailer turned the key.

“They ’lowed thar war a harnt in the jury-room,” said the officer.

Within all were silent, that they might hear.

“I ain’t s’prised none,” said the jailer; “plenty o’ harnts hyar. Men ez war hung, ye know,—liked our accommodations better’n them they got arterwards; that brings ’em back. Tim Jenkins war dragged right out’n that thar room whar the jury be now, when the lynchers kem an’ tuk him. Hed me tied down-steers, ye ’member.”

He went off gayly down the hall, jingling his keys. Presently his voice was heard in another mood, swearing at the judge and demanding, “What sorter man is this hyar Gwinnan, ennyhow, ez you-uns hev got out thar on the bench? Send me twelve men ter eat an’ sleep, an’ the jail ez full ez it air! Does he think I keep a tavern? Thar ain’t room enough hyar fur twelve fleas!”

He compassed the problem somehow, for the jurymen, smarting with the indignity and hardship, were led forth the next morning, having slept as well as was possible considering the united grievances of the accommodations and the mortification, and eaten as their reduced appetites and the prison fare permitted.

They resumed their deliberations in the jury-room, and it argues much for their earnest desire to do right and their respect for their oath that they did not find a verdict at hap-hazard. They reported again and again that they could reach no decision. They were held over Sunday, and after nightfall on Monday they came into the court-room, and in guarded phrase and with some perturbation of manner announced once more that they could not agree as to the guilt or innocence of the prisoner.

In answer to the usual question, the foreman was eager to explain that they had experienced no difficulty other than a difference of opinion, and felt no want of further instructions. He forbore to offer criticisms upon judicial methods, and the men behind him, all acutely realizing the position of the dog’s tail, breathed more freely. The judge looked at them with a certain resentment in his eyes. He leaned back in his chair, gnawing the end of his mustache. Mink sat beside his lawyer, eager, intent, hardly appreciating at the moment the significance of the disagreement. Harshaw had turned aside with a pettish mutter to his yellow beard, for the final adjournment for the term impended, Gwinnan being compelled to leave on the train that night to hold court in a remote county in his own circuit.

How Gwinnan could infuse into his impassive mien and his soft, expressionless drawl so caustic a suggestion of displeasure is one of those mysteries of manner addressed to a subtle and receptive sense which can take account of so fine and elusive a medium of communication. The jury, in receiving their discharge, felt like culprits until they were once more at large and in the outer air, when they swore at the judge with the heartiest unanimity,—on this point they could agree,—and promised themselves, taking note of his character as politician, that if ever they were vouchsafed the opportunity they would retaliate. Then among the loungers about the tavern they fell to asking the news with the hungry interest of travelers who have been long absent.

They experienced a certain surprise to find that their accountability as jurors had not ceased with their discharge. There was a manifest inclination on the part of public opinion, as embodied in the idlers about the hotel, to hold them individually responsible for the mischances of the trial. Perhaps the impression that they had been long absent was strengthened by the revolution which popular prejudice had accomplished in the interval. Its flexibility could hardly be better illustrated than by the fact that the prankish Mink had suddenly risen in its estimation to the dignity of a public martyr.

“He’s a tremenjious wild scamp, the Lord knows,” said one, “but folks ain’t jailed fur bein’ gamesome, an’ by rights ye oughter hev turned Mink out’n that jail this evenin’.”

“Yessir,” assented another. “Mink oughter be mighty nigh Hazel Valley by now, ef he had been gin a fair trial.”

That conclusive formula, “This is a free country, by the Lord!” was often insistently reiterated in the discussion, for the bewildered jury discovered that the persuasion of the prisoner’s innocence had never wavered after Alethea Sayles had sworn that she had seen Tad Simpkins since the disaster. The community at large had not been subjected to the morbid influences of seclusion, and mental stress, and the nervous shock which the jury had sustained upon the death of Peter Rood, and the necessity of persistent consideration of spiritual and spectral phenomena forced upon them by the attorney-general.

“You see, gentlemen,” said a young sprig of a lawyer, glad to air his information, “you went off on the wrong road. ’Twarn’t the business o’ the defense to account for Tad. ’Twas the prosecution’s business to prove that he was dead and that Mink killed him. And they didn’t do it; they just proved he was missing, for that girl swore she saw him afterward. They’ve got to prove the _corpus delicti_, gentlemen, in a case like this.”

The jurymen were laughed to scorn when they suggested their doubts of the genuineness of Tad’s appearance.

“Now didn’t the attorney-general stuff you as full of lies as an egg of meat!” cried the young lawyer, divided between admiration of the attorney-general’s resources and contempt for their credulity.

“Ye air the only folks in Cherokee County ez b’lieves sech,” said another by-stander. “Old man Griff an’ all his gran’chil’n lef town yestiddy evenin’ plumb sati’fied Tad’s alive, an’ goin’ ter hunt him up. An’ then I reckon the old man’ll furgit all about his repentance, an’ club an’ beat him same ez he always done.”

“Waal,” demanded the ex-foreman, who was disposed to maintain the difficulty of the question, “how could a idjit keer fur hisself all this time?”