by Bill Markley
“The defendant may take his seat,” Keithley said. Young sat on a stool set aside for him at the defense table.
“The prosecution may present its first potential juror,” Keithley said.
“We don’t have anyone preselected,” Simington said. “We call for volunteers from the spectators.”
“So be it,” Keithley said. “Do we have anyone who wishes to do their civil duty and volunteer for the jury?” A mass of hands went up from the crowd. Simington and Whitehead scanned the audience. Finally settling on an individual who appeared clean and well dressed, they pointed to him.
“You sir, please come up on the stage. The man walked up on the stage and sat on a waiting stool.
“State your name, sir,” Whitehead said.
“It’s Tim. Tim Anderson, but my friends just call me Big Tim.” Jack wrote in his notebook, Big Tim is rather short.
“Big Tim,” Whitehead said. “What do you do in town, sir?”
“I’ve just arrived in town a few days ago. I sell a variety of medicines that will cure your ills. I’ve not opened my shop as yet, but I am staying at the Grand Central Hotel, if any of you in the audience are in need. My tonic will cure gout, rheumatism…”
“That will be enough, Mr. Anderson,” Whitehead said. “Let me ask this, do you know the defendant sitting to your left?”
“I do not.”
“Did you know the deceased? Myer Baum, also known as Bummer Dan?”
“I did not.”
“Were you present the night of Mr. Baum’s demise?”
“I was not.”
“Do you think if the evidence showed Mr. Young did wantonly kill Mr. Baum that you could vote to have him pay the full penalty of the law and have him executed?”
Anderson looked over at Young, who stared back at him. Anderson gulped and said, “Yes.”
“I have no further questions,” Whitehead said. “We accept Mr. Anderson as a juror.”
“Representatives for Mr. Young, what say you?” Keithley asked.
Jack happened to notice Varnes glance over at Swearengen, who looked back at Varnes. Varnes gave a slight negative shake to his head and looked away. Swearengen’s eyes quickly returned to the stage. Miller looked toward Swearengen, who gave a slight negative shake to his head. The exchange took only seconds, but Jack had caught it. It appeared no one else in the room had seen it.
“Your Honor,” Miller said. “If I might question Mr. Anderson?”
“Proceed, Mr. Miller.”
“Mr. Anderson, you say you just now arrived in Deadwood?”
“That’s correct, just a few days ago.”
“Mr. Anderson, you say you sell medicines that can cure just about any ills known to mankind?”
“I don’t claim that they will cure everything, but they will cure a good deal of what ails you.”
“I see,” Miller said as he stood up and paced back and forth across the stage. “Are you, sir, the same Big Tim Anderson who sold so-called medicine in Sidney, Nebraska, where several people became quite ill?”
“I am not, sir!” Anderson said. “I have never been to Sidney, Nebraska. I came to Deadwood by the Fort Pierre trail.”
“Why sir, I’ve heard of you before and I’ve heard that your medicine is more akin to poison than to health elixir!” shouted Swearengen from the audience.
“Enough!” Keithley shouted, banging the hammer on the wood block. “There will be no more outbursts from the audience. If so, I will have anyone who does forcefully removed.”
Swearengen appeared cowed, saying, “Sorry, your Honor, it won’t happen again.”
“I ask that Mr. Anderson be dismissed from further questioning and step down,” Miller said.
“So be it,” Judge Keithley said. “Mr. Miller, it is your turn to present a potential juror.”
“We ask for Henry Varnes,” Miller said.
“Is Mr. Henry Varnes here?” Keithley asked. “If so, will Mr. Varnes come to the stage?”
Henry Varnes moved through the crowd, walked up onto the stage, and sat on the waiting stool. Jack was startled. He stopped writing. The man was Henry Varnes, the brother of Johnny Varnes, the same Henry Varnes who had almost hanged Harry Young.
“Please state your name for the court,” Miller said.
“Henry Varnes.”
“And what do you do, Mr. Varnes?”
“You might say I work in the entertainment business, providing amusement and the lure of profit for the hardworking miners and merchants of Deadwood Gulch.”
“I see,” Miller said. “Do you know the defendant, Mr. Young?”
“I certainly do. Most people who visit Deadwood’s watering holes know who Harry Young is.”
“Do you believe you could give a fair and impartial verdict on Mr. Young’s situation, after listening to all the facts?”
“Yes I could.”
“No further questions. We ask your Honor that Mr. Henry Varnes be impaneled as a juror.”
“Does the prosecution have any questions it would like to ask?” Keithley said.
“Yes, your Honor,” Whitehead said then to Varnes, “Mr. Varnes, if it can be shown by evidence that Mr. Young did indeed kill Mr. Baum, are you prepared to pronounce a guilty verdict of death on this individual?”
Varnes stared at Young and said, “Yes, I can do that.”
“No further questions, your Honor. We accept Mr. Varnes as a juror.”
“Very well,” Judge Keithley said. “Mr. Varnes, do not wander anywhere as we will be needing your services shortly. And now, Mr. Whitehead, please present your next candidate.”
Jack was frantically writing and at the same time trying to determine what this latest development implied. I think the selection of Varnes means the ring is in fact real and that Varnes and friends plan to have Harry executed, no matter what.
Whitehead had summoned the next potential juror on stage and was questioning him. Jack had not heard his name. He needed to talk to someone, someone he could trust about the criminal ring theory. Merrick was engrossed in the jury selection proceedings. He was mumbling under his breath as he wrote, and Jack heard the word “tedious.” That left Bullock. Bullock seemed to be a man of honor, what little Jack knew of him. Had he not been a law officer in Montana? Jack felt the need to see if he could talk to him.
“Seth, I’m stepping outside to stretch my legs,” Jack whispered. “I need to talk with you at some point.”
“I feel the urge myself and will head out with you,” Bullock whispered. “Merrick can fill us in on any details we might miss.”
“A. W., Seth and I are stepping out to use the privy. Let us know what happens while we’re gone,” Jack whispered to Merrick.
“Oh, don’t worry,” he whispered back. “I’ll enlighten you with the latest and newest way to reject a juror.”
Jack and Bullock stood and maneuvered through the crowd that was intent on the latest drama unfolding on stage. They passed through the doorway into the bright light of a still partly cloudy day. Stonewall was waiting in the shade for Jack. The men turned the corner of the building and walked to the rear, where the Deadwood Theater’s privy stood. Jack used it and then Bullock. They walked toward Whitewood Creek and stopped at an abandoned pit where prospectors had dug through the gravel to the bedrock, removing any gold encountered. No one was nearby.
“Can I speak to you in confidence?” Jack asked.
“You can trust that I won’t divulge what you might say, not even to my partner, Sol Star,” Bullock said.
“I really don’t know you, but I feel I can trust you.”
“On my honor, which is the one thing I hold dearest, I will not discuss what you might tell me with anyone.”
“I will tell you, but again if word gets out, I am afraid some people may be hurt, even killed.”
Bullock stopped walking and turned to Jack, saying, “I’m listening.”
“This sounds farfetched as I turn it over in my brain, but I’ve been trying to
figure out these recent killings. Today two people independent of each other warned me about a criminal ring here in Deadwood that has been responsible for several murders and is now in the process of fixing the jury for the Harry Young case.” Jack paused.
“Go on,” Bullock said. “I’d like to hear more about the facts that brought you to this conclusion.”
“Let’s start with the murder of Hickok. Both of his friends Colorado Charlie Utter and California Joe Milner believe Jack McCall was a hired assassin, whose mission was to kill Hickok. Some of the town’s more respectable element was thinking of hiring Hickok to act as a lawman and clean out the rougher element in town. The criminal ring got wind of it and hired McCall to carry out the assassination. They had a horse ready for him to make his getaway, but he failed to tighten the cinch on the horse’s saddle before he shot Wild Bill. When he stepped into the stirrup, the saddle turned on him and he tried to escape on foot, but they caught him. At the trial, the criminal ring arranged for the jury to be bribed or otherwise compromised so that they arrived at a verdict of ‘not guilty’ when McCall said that Wild Bill had shot his brother, which some people believe never happened.”
Jack stopped for a moment, picked up a stick, and tossed it for Stonewall to chase.
“There’s the matter of Preacher Smith, which we discussed yesterday. It has a suspicious odor to it,” Jack continued. “It just doesn’t sound like the work of Indians. Then there is the killing of Bummer Dan. On the surface, it appears to be a case of mistaken identity. Harry Young shoots Bummer Dan by mistake because, of all things, Bummer Dan is wearing Laughing Sam’s clothes. Laughing Sam just happens to be in the midst of a feud with Harry Young, both of whom have made statements about killing each other. Why does Bummer Dan have Laughing Sam’s clothes on? Is it possible that he was to be a distraction to Harry Young? California Joe told me a rumor that Laughing Sam was seen in Saloon Number 10 at the same time Bummer Dan walked in wearing Laughing Sam’s clothes. Was Laughing Sam going to shoot and kill Harry while he was distracted by Bummer Dan? If so, things went awry when Harry shot first, killing Bummer Dan. Laughing Sam takes off because he does not want to be blamed for this accidental shooting. And by the way, Laughing Sam is still missing. No one has seen him since the shooting.”
“That’s all very interesting information, but it doesn’t prove there is a criminal ring in Deadwood,” Bullock said.
“Right, but there are a few more pieces.”
“Go on, you’ve got my interest.”
“Bummer Dan had a large nugget that he showed me a couple of hours before he was killed. That nugget is missing. I visited his shanty to find that the shanty had been ransacked and there I found what appeared to be his poke sack. It had been emptied of any gold that it had held except for several fine particles we found after turning the sack inside out.”
“You just said ‘we.’ Who’s ‘we’?”
“A Cantonese acquaintance who lives near Bummer Dan. Fee Lee Wong is his name.”
“Hum,” was all Bullock said.
“Finally, I was given a tip by a working girl in town, in fact right in your very store this morning, that certain individuals are setting to fix the jury so the verdict will go in the direction the ring wants it to head. And from what I could see, it appears to me that the ring wants the jury rigged so Harry Young is sentenced to death.”
“Now for the question that is just itching to be asked,” Bullock said. “Who do you believe are members of this criminal ring?”
“Two names I think are part of this ring are Johnny Varnes and Al Swearengen. I’ve heard Varnes’s name associated with the assassination of Wild Bill and the working girl had overheard Swearengen mention that they needed to fix the jury verdict today by selecting the right jurors. I saw Varnes and Swearengen in action as Big Tim was eliminated from the jury. Varnes signaled Swearengen with a slight negative shake of his head. Swearengen then did the same to Miller, who was watching him. Once Miller knew what the others wanted, he made damn sure Big Tim was excluded.”
Stonewall returned with the stick. Jack grabbed it from him and tossed it again.
“Finally,” Jack said. “Don’t you think it’s odd that Henry Varnes, the brother of Johnny Varnes, is selected for the jury?”
“There’s nothing suspect in that,” Bullock said.
“Only that Henry Varnes was one of the two men who had the noose around Harry Young’s neck and was leading him to a tree to be hanged.”
“I see,” Bullock said, stroking his long mustache in thought.
“That’s why I believe if there is a ring, it is setting the stage to have the jury declare Harry Young guilty and then have him executed.”
“That’s very interesting, but you haven’t been able to figure out a motive for why the so-called ring would want to eliminate Harry Young.”
“Correct.”
“Let’s keep our eyes open during the trial and maybe we can discover more to this theory of yours,” Bullock said. “I have to say, it does have merit, but I am not one-hundred percent sold on it.”
“I have to admit I’m not either,” Jack said. “But I am a writer!” They both laughed. Bullock slapped Jack on the back and said, “We best be returning to the theater. By now, hopefully, they have selected the rest of the jury.”
They walked back along the side of the theater to Main Street. An enterprising peddler was selling cold beef to the trial spectators who had stepped out of the building for a break and another vender had a cask out of which he was selling beer. Jack and Bullock bought themselves slabs of beef and each downed a beer before returning inside to their seats. Jack leaned over to Merrick and whispered, “What have we missed?”
“You were gone?” Merrick sarcastically answered. “Hardly any progress. They have selected two additional jurors. The defense repeatedly finds reasons for excluding volunteers from the pool. You had better settle in for a long session. I only hope we’re done before the Lord’s Second Coming!”
Merrick was right. The process was taking too long. Time seemed to slow down. Jack saw that the signals between Varnes, Swearengen, and Miller continued. He nudged Bullock, who took notice. He scanned the crowd again but saw no sign that Laughing Sam had entered. After hours of questioning, the audience was becoming bored. Many had left. Merrick, with elbow propped on one knee and head held in hand, wrote in large capital letters TEDIOUS! Jack smiled at that. By this time, they had selected ten of the twelve jurors. Langrishe appeared on stage.
“Your Honor,” he said to Keithley. “Can you please conclude this soon? I need to prepare for this evening’s performance.”
“Thank you, Mr. Langrishe,” Keithley said, and to the lawyers he said, “Gentlemen, you heard Mr. Langrishe here. We need to move this along. I want the jury selected today at the very least and then tomorrow we will hold the actual trial.”
“Yes, your Honor,” Whitehead said.
“We agree, your Honor, but we are only looking out for the best interest of our client, whose life is at stake here,” Miller responded.
“Very well, gentlemen, proceed.”
Jack looked at his Elgin pocket watch. The time was five o’clock.
“Do we have another volunteer in the audience?” Whitehead asked the crowd.
“I volunteer,” a voice sounding familiar to Jack shouted. The volunteer stood and approached the stage, and Jack saw that it was none other than Texas Jack.
The rowels of Texas Jack’s spurs jangled and the jinglebobs chimed as he slowly mounted the steps, crossed the stage, and took his seat.
“Please state your name, sir,” Whitehead said.
“Texas Jack.”
“Your full name, sir,” Judge Keithley interjected.
Texas Jack scowled and said, “Percy Hollingberry.”
“Hollingberry?” Whitehead said.
“Hollingberry!” Texas Jack snarled.
“I can see why you go by Texas Jack, Mr. Percy Hollingberry,” Simington said. The a
udience roared in laughter. Texas Jack rested his hands on his pistols. If eyes could bore holes through bodies, Jack thought, Simington would be a dead man.
“Order in the court,” Keithley shouted, pounding his hammer. “There will be no more snide remarks in this courtroom. Is that clear?”
“Yes, your Honor,” Simington said to Keithley, and to Texas Jack he said, “I apologize, sir.”
Texas Jack did not respond.
“Let us continue,” Whitehead said. “Where do you hail from sir?
“West Texas,” Texas Jack said.
“Can you be more specific, sir?”
“Eagle Pass, Texas.”
“Thank you,” Whitehead said. “Do you know the defendant?”
“Yes.”
“Did you know the deceased?”
“Yes.”
“If called upon after hearing all the evidence and if that evidence clearly shows that Mr. Young did murder Mr. Baum, would you have any reservations rendering a guilty verdict?”
Texas Jack’s face broke into a large grin. “No, I would have no reservations. I would be proud to do my civic duty.”
Jack leaned over to Bullock and whispered, “Texas Jack was the other person who helped put the noose around Young’s neck. I have no doubt he would vote for the death penalty.”
“Hum,” Bullock grunted.
“I have no further questions, your Honor,” Whitehead said. “We approve of Texas Jack to be a member of the jury.”
“Mr. Miller, please proceed,” Keithley said.
Without looking to Swearengen, Miller said, “We have no objection to this man being seated as a juror.”
That clinches it, Jack thought. They are out to ensure the jury will find Young guilty.
“You may step down, Mr. Hollingberry,” Keithley said. “But do not stray too far, as we will require your services tomorrow.” And to Whitehead he said, “Please find another candidate, sir.”
“Do we have another volunteer?” Whitehead asked the audience in a loud voice. He scanned the crowd for any hand that might be raised, but there were none. “Well, I suppose I might just pick a volunteer myself,” he muttered, more to himself than to the audience. He pointed to the front row. “You, sir! Please come forward! Yes, you.”
