by Bill Markley
“Harry, you went to a dimly lit portion of the bar, correct?”
“Yes.”
“You waited there because you were afraid that in the stronger lamplight you could easily be seen by Laughing Sam, correct?”
“Yes.”
“You and your good friend, Anson Tipple, were in cahoots to waylay Laughing Sam when he walked through the saloon. When you saw Laughing Sam’s hat and coat you naturally thought it was Laughing Sam and shot twice to kill him because you had a rage against him.”
“No! No!”
“Yes! You shot first, hoping to get Laughing Sam out of the way. Only you did not check out your target, and you shot and killed the wrong man, Bummer Dan. It was not self-defense. It was a cold, calculated maneuver to assassinate your rival. Murder is murder!”
“No! No! It wasn’t like that at all!”
“Your Honor, that concludes my line of questioning of this cold-blooded killer.”
“Thank you, Mr. Whitehead, but must I remind you that the term ‘cold-blooded killer’ crosses the line in our judicial system,” Keithley said. “The jury will disregard Mr. Whitehead’s final remark. We will now move to closing arguments. Mr. Whitehead, please go ahead and make the people’s case.”
“Thank you, your Honor,” Whitehead said, as he approached the jury sitting below him in the first two rows. “Gentlemen of the jury, you have heard lots of testimony here today concerning the murder of poor old Myer Baum also known as Bummer Dan. Bummer Dan may not have been one of Deadwood’s stellar citizens, but he never hurt anyone and he certainly did not deserve death. We think much of the mayhem that occurred Tuesday night in Saloon Number 10 can be laid at the feet of Laughing Sam Hartman. Unfortunately, he is nowhere to be found. However, the indisputable facts are that Harry Young threatened to kill Laughing Sam if Laughing Sam stepped back into Saloon Number 10. Young went to the darkened part of the bar of Saloon Number 10 and waited there for Hartman. When he saw Hartman’s hat and coat, he fired his pistol. Not once to scare him off or wound him, but twice. Twice, to make sure he killed him. Unfortunately, it was Bummer Dan and not Laughing Sam, but murder is murder. It was premeditated. The facts cannot be denied. The people ask that you find Harry Young guilty of murder, and we ask that Harry Young be hanged by the neck until dead. Thank you.”
Whitehead returned to his stool. Keithley looked up from his papers and books spread out on the table in front of him, saying, “Mr. Miller, you may now address the jury.”
Miller arose from his stool and walked to stand in front of the jury. “Gentlemen of the jury,” he began. “I won’t repeat or refute most of what my esteemed colleague just went over. We admit that on Tuesday night, Harry Young did shoot and kill Bummer Dan. But know this, Laughing Sam had made numerous threats to many people that he was going to kill Harry Young. Harry was afraid for his life. Carl Mann was afraid for Harry’s life, and that’s why Carl told Harry to work in the dimmer part of the saloon—so he would not be an easy target for Laughing Sam.”
“Now comes Bummer Dan,” Miller continued. “Bummer Dan is wearing Laughing Sam’s distinctive clothing. And why is this?” Miller paused for a moment for the jury to hang on his next words. “Because Bummer Dan was a decoy, a distraction for Harry to look at while Laughing Sam was sneaking up on him to murder him. The plan backfired. Harry instinctively shot Bummer Dan to preserve his own life. It…was…self-defense! Harry Young shot and killed Bummer Dan thinking it was Laughing Sam come to murder him. That is the only reason he shot, to preserve his own life. And where is Laughing Sam? Why isn’t he here to testify for his dead friend, his partner? Why isn’t he here demanding justice? I’ll tell you why, because Laughing Sam and his partner Bummer Dan were out to kill Harry Young, pure and simple.”
“Yes, Harry Young killed Bummer Dan,” Miller continued, “But he did not kill the man he intended to kill. I ask that you declare Harry Young not guilty, as he shot in self-defense. Thank you.” Miller strode back to his chair and sat down.
Jack and Merrick had both stopped writing. They had furiously written until the lead in their pencils blunted down to the wood, and they were now quickly using their pocketknives, shaving the wood and lead to new points.
“Thank you, Mr. Miller, and thank you, Mr. Whitehead,” Keithley said. “And now, jury, all eyes turn to you. You must decide who is telling the correct story. Both are similar, but different on this one point—did the prisoner, Harry Young, decide to murder his rival, Laughing Sam, only to kill the wrong person, Bummer Dan? Was it a premeditated act, or did Harry Young shoot in self-defense to protect his own life?”
Keithley paused and flipped through one of his law books to find the territorial law he was looking for.
“The Territory of Dakota has not yet codified all its law, but I have found the Dakota Territory Penal Code in one of my books. Let me read a portion of Chapter 17 to you. Section 242 states:
Homicide is murder in the following cases: (1) When perpetrated without authority of law, and within a premeditated design to effect the death of the person killed, or of any other human being. (2) When perpetrated by any act immediately dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to offset the death of any particular individual. (3) When perpetrated without any design to effect death, by a person engaged in the commission of any felony.
Keithley flipped a few pages further into the book and said, “I need now to read to you what is Excusable Homicide, also found in Chapter 17 of the penal code. This will be excerpts from Sections 262 and 264:
Homicide is excusable in the following cases: (2) When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon sudden combat: providing that no undue advantage is taken, nor any dangerous weapon used, and that the killing is not done in a cruel or unusual manner. Homicide is also justifiable when committed by any person in either the following cases: (1) When resisting any attempt to murder such person, or to commit a felony upon him or her, or upon or in any dwelling-house in which such person is; or (2) when committed in the lawful defense of such person…when there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished…
Keithley closed the book and looked down at the jury. “Gentlemen of the jury,” he said, “your charge is to determine the guilt or innocence of the prisoner, Harry Young, in the death of Myer Baum, alias Bummer Dan. If you find Harry Young guilty, and your verdict must be unanimous, we will promptly execute him by hanging until dead. You will hold your deliberations right here in this theater. The officers of the court and the public will leave the premises. You are not to further discuss this case with anyone outside your fellow jury members. Elect a foreman who will guide your deliberations. Good luck and Godspeed, gentlemen. Either I or one of the officers of the court will be located outside the front door for you to notify us when you are through and ready to announce your verdict. With that…”
Merrick jumped to his feet and said in a loud voice, “Your Honor! Please excuse this outburst, but how will we, the public, know when the jury is ready to give its verdict, so we can be here to hear it?”
“That is a very good question, Mr. Merrick,” Keithley said and then sat silent, pondering.
“If I may interject, your Honor?” Whitehead said.
“Go head, Mr. Whitehead.”
“What if after we learn the jury is ready to deliver its verdict, we have Old George stand in the middle of Main Street and fire off his double-barreled shotgun into the air? He could fire one shot, wait ten seconds then fire the second shot.”
“That is a wonderful idea, Mr. Whitehead. That is what we shall do. I will explain this plan to Old George later. As for now, the court is adjourned until the jury is ready to give its verdict.” Keithley brought the hammer down on the block of wood, further splitting it. The audience erupted into animate
d conversations as the men began to leave. Jack and Merrick left the theater and stood on the street.
“I need to return to the office, Jones,” Merrick said. “See you when we return for the verdict!”
Jack searched the immediate area for any theater troupe member he might ask after Lil, but no one was in sight. Bullock had failed to make the courtroom, so Jack concluded he and Star must still be overwhelmed with customers. He had time to kill and decided to return to the camps to visit Bummer Dan’s and Laughing Sam’s shanties for any additional clues and to visit Wong. He looked at his Elgin pocket watch. The time was fifteen minutes past three o’clock.
Jack crossed the Lee Street Bridge into the camps. The same activities were going on as in previous days. As he picked his way through the shanties and shebangs, he noticed something different about Bummer Dan’s shanty. Bummer Dan’s sign was gone. Jack walked up to the tent flap and was about to announce his presence in case anyone was about, when a man rushed through the tent flap with his right fist raised and pulled back.
“What are ya snoopin’ about here for? Come to rob me, have ya?” the man shouted.
“No! No!” Jack said, with hands up, palms forward. “I’m a reporter investigating the murder of Bummer Dan. I had no idea his living quarters were now occupied.”
“Well, as ya can see, they are now occupied—by me! That fellow is dead, and I claim this shanty as me own since he has no kin here and I bein’ the first to claim it. Now bugger off!”
Jack could feel the heat in his blood rise, but realized it would do him no good to argue with the man. So he said, “So be it, good day to you, sir.” As he turned away from the man, he looked in the direction of Laughing Sam’s shanty and saw a stranger smoking a pipe sitting in front of it.
Jack strode away from the squatter toward Fee Lee Wong’s dwelling.
“Halloo!” he said. Wong’s grinning face poked out of the flaps of the tent’s entrance.
“Jack! Greetings!” Wong said. “Come in! Come in!”
Jack entered and Wong insisted he stay for tea. After they had settled in at the table, each with a cup of tea, Jack asked, “When did the squatters move in?”
“Those fellas are hard characters,” Wong said, his brow furrowing. “They moved in without asking any of the neighbors if they could. They have been insulting to me and anyone else who is not like them.”
“I am sorry to hear that, Fee Lee.”
“It is nothing new. I have run into people disliking me in other towns because I do not look exactly as they do. But here in Deadwood, most people are friendly toward each other because we all have to live so close together, and we all are here to make money,” he said and smiled.
“I take it you have heard nothing new about Laughing Sam?”
“You are correct, there is nothing new.”
“I just came from Harry Young’s trial. The jury is now deliberating his guilt or innocence.”
“I see,” Wong said.
“Did you hear about the two Mexicans shooting each other last night?”
“Yes,” Wong said, his face wooden and expressionless.
“Is there something wrong? Jack asked.
Wong stared at his teacup for what seemed a long time.
“I am not sure I should tell you this. I do not want to see you hurt,” Wong said.
“Please go ahead, I’m always careful.”
Wong let out a sigh, then said, “I will tell you, but promise me you will not do anything rash?”
“I promise.”
“We Cantonese are everywhere in town, doing many jobs for many people, day and night. Many Cantonese understand English, but do not speak it very well, so they don’t. It is part of our pride. We will not speak unless the word is spoken correct.”
“I understand, your English is perfect, and I am sure you know I know no Cantonese and would butcher the words if I tried.”
Fee Lee smiled, then said, “Last night a Cantonese man was cleaning the Deadwood Theater’s privy, knowing it would receive heavy use once the performance was over. He was inside cleaning when he heard the two Mexicans and a white man arguing. The white man demanded the Mexicans give him their money. They told him no. One of them said, ‘Texas Jack, you are a pig.’ Two shots were fired. The man inside the privy peeked out the door and could barely see a man moving two bodies in a line across from each other and then placing guns in their hands. He took a bag from them and walked toward the privy. Of course, the man inside the privy was frightened and quietly closed the door, hoping the murderer would not enter. Fortunately for my friend, the murderer passed by. He said the man’s footsteps made music such as from tiny bells.”
Jack was silent, his mind racing. It was Texas Jack! Here is irrefutable evidence Texas Jack killed Poncho and Carlos!
“Fee Lee, would this man be willing to tell his story?”
“Tell it to whom?”
“Well…”
“There is no law in town. Who would really care? I know you care and a few others care, but you are powerless. Would you shoot and kill Texas Jack? I think not. If I bet on it, I would have to bet he would shoot and kill you. That is why I made you promise. You promised you would not do anything rash and I hold you to your promise.”
“Humph, all right, but I don’t like it.”
“Very good,” Wong said and smiled.
“So here is the irony…” Jack said.
“Irony? What is irony?” Wong interrupted.
“Irony is hard to explain. It is expressing humorously something that is the exact opposite of what is real. For instance, if I said something tasted good, but actually it tasted bad.”
Wong looked puzzled. Jack held up his teacup and said, “If I drop your teacup and instead of saying ‘That is a bad thing,’ you say ‘Oh good,’ that is irony.”
“Oh,” Wong said not sounding convinced.
“So here is the irony. Texas Jack kills two men. He commits murder, and now he sits as part of a jury trying another man, Harry Young, for murder. This is irony!”
“Oh now I see!”
“I don’t know what to do,” Jack said.
“Again, my friend, you will do nothing. You promised me.”
“That I did. I wish I hadn’t.”
“I am glad you made your promise, and I am glad you are a man of honor and will keep your promise. I don’t want to find you dead like the others.”
They sat in silence for a long time, sipping their tea.
“Thank you, Fee Lee. I value your friendship. I must go back in case the signal is sounded for the verdict.”
“Very well, Jack.” They stood and shook hands. “Remember your promise, Jack.”
“I will.”
Jack slowly walked back to the Lee Street Bridge and then to Main Street. His thoughts focused on Texas Jack, and what, if anything, could be done about him with the complication of his promise to Wong.
He aimlessly walked north down Main Street. Small knots of men stood in the street discussing the trial, and what they thought the outcome would be. As always in Deadwood, most of them had bets on which way the jury would go. Jack was approaching Saloon Number 10.
Jack was about to stop in and check the level of whiskey in his Old Crow bottle when he spotted the makings of a practical joke.
Along the front outside wall of Saloon Number 10 was a rough wooden two-seater bench. Sitting on the bench was one of Deadwood’s biggest practical jokers, Johnny the Oyster. Sitting alongside him on the bench was a man Jack had not seen before, probably new to town. Johnny the Oyster was holding a lively conversation with the man about the trial. A small group of men stood around them listening and a few hung in the saloon’s doorway, waiting. Unbeknown to the stranger, Carl Mann had drilled a small hole in the bench and had an elaborate setup whereby a long needle lay concealed in a hole in the bench. Mann rigged a weight and a string to the needle. The string led into the saloon and a person within the saloon could pull the string which would then thr
ust the needle up through the bench hole and into the buttocks of the unsuspecting victim. Before Jack could warn Johnny the Oyster’s victim, Johnny winked to one of his co-conspirators, who nodded to the inside man holding the string. The inside man yanked the string. “Yeow!” the victim shouted, leaping up and away from the bench. Johnny the Oyster was laughing so hard tears streamed down his face, and the others all laughed as the victim rubbed his rear and tried to smile.
“Come on, pilgrim!” Johnny the Oyster said as he stood up, still laughing, “Let’s go inside where you can buy us a drink!” The man smiled as the others in on the joke pounded him on the back and led him inside to buy them all a drink. Jack shook his head and followed them inside.
Anson Tipple was back behind the bar pouring drinks. Several men were giving him their opinion on the trial proceedings and commiserating with him on Whitehead’s badgering while he was on the witness stand. Tipple saw Jack and placed his Old Crow bottle and a glass on the bar in front of him.
“Captain Jones,” Tipple said. “What is your take on the trial?” The others in the immediate area stopped their conversations to listen to what Jack had to say.
“Anson, I think you did a good job on the stand today. I’ll tell you what I think. Personally, I think Harry thought it was Laughing Sam he was shooting at and I believe he thought Laughing Sam was out to kill him. But I think the jury will find him guilty, and he will hang. I don’t think it is right, but that is what I think will happen.”
The men around Jack stood silent. “I think you are correct, Captain Jones,” Tipple said, and the men murmured their agreement. The conversations began to pick up as Jack listened but did not participate. His mind refocused on Lil. The pit of his stomach was in turmoil. What could he do? How could he make things right?
A commotion arose on the street, louder and louder—men’s shouts, barking dogs, and what sounded like wildcats yowling, howling, growling, and hissing.
