Cap Fog 3

by J. T. Edson

  Once the trial made its belated commencement, the real reason for Mervyn’s acquiescence soon became obvious. Although nothing could be proven, the time he gained had been put to good effect by the members of Foote’s gang and the even more competent outside help which had been hired. Of the four witnesses upon whose evidence the prosecution had been basing its case, two had met their deaths in what to all appearances was an accident. In fact, it was so well contrived by the imported specialists and the warped criminal genius behind them, 35 that—despite rigorous investigations by local law enforcement officers and Texas Rangers—the coroner’s jury was unable to claim otherwise. The same incident had resulted in the third witness sustaining an injury to his head so serious that his mental state rendered him incapable of attending the court, much less testify. Having been under no delusion as to what had happened to the other three, the fourth man had written a note asserting his statement to the prosecuting attorney was false and, eluding the peace officers assigned to guard him, disappeared without a trace.

  While a lesser man might have been willing to rest upon his laurels, Mervyn had not done so. Having had considerable experience where juries were concerned, particularly those selected from the populations of small towns, he had been unwilling to rely solely upon the removal of the prosecution’s witnesses to gain an acquittal. Instead, he had established an ‘alibi’ by producing two men from whom Foote was supposed' to have been purchasing a shipment of bootleg liquor in Texarkana on the night and at the same time as the crime was committed. Nor would he agree with his client’s suggestion that the evidence should merely imply the deal was only discussed and had not been consummated, claiming the latter would have less chance of convincing the ‘rubes and hicks’ on the jury. They would, he had asserted, be far more willing to accept an alibi if it was strengthened by his pointing out that Foote and the two bootleggers would face arrest for violation of the ‘Volstead Act’ as a result of the disclosure.

  Although the latter would mean either a heavy fine or imprisonment for all of them, the pair of perjurers would be well recompensed for their participation and the penalty where Foote was concerned would be far less severe than if he was found guilty of raping and murdering the girl.

  After lasting far less time than had been anticipated, the trial was approaching its climax. Sent to consider their verdict when the court assembled that morning, the jury had spent almost four hours before returning to announce their decision.

  ‘Well,’ Judge McCrindle prompted, after almost a minute had gone by without any answer to his question being forthcoming. ‘Have you reached your verdict?’

  ‘We surely have, Your Honor,’ the foreman of the jury admitted, spitting out each word as if he hated the taste of it in his mouth. ‘While we all know he did it, like that fancy-talking legal shyster’s kept telling us right frequent, he’s got himself fixed up with a god-damned alibi and there’s been no witnesses brought forward to show it’s a pack of lies—!’

  ‘Your Honor!’ Reece Mervyn shouted, springing from his chair with far from his usual calmly dignified motions. However, the anger which was diffusing his face and speeding up his well-educated Southern drawl stemmed more from resentment at the derogatory reference to himself than on behalf of his client. ‘I must protest!’

  ‘I don’t doubt that, Counselor,’ McCrindle conceded somberly, but with no noticeable sympathy. Turning his gaze to the clerk of the court, and then to the rows of seats occupied by the newspapermen—all of whom were either writing or sitting with pencils waiting expectantly poised over notebooks—he continued, ‘You will strike the foreman of the jury’s comment from the records, Mr. Sawtell. And I trust the gentlemen of the press who are present will refrain from mentioning it in their reports of the trial.’

  ‘Is that enough, Your Honor?’ Mervyn demanded in tones of exasperation, doubting whether the suggestion of restraint would be heeded by more than a fraction of the more conservative newspapermen. ‘The honor of my client has been seriously besmirched—!”

  ‘Come on now, Counselor!’ McCrindle interrupted, his tanned and craggy face impassive. ‘I think we both suspect your client’s “honor” may have been seriously besmirched long before this trial. However, should my instructions to the gentlemen of the press be disregarded, I’ve no doubt that you can advise him of whatever legal recourse may be necessary for his protection.’

  ‘Yes, but—’ the lawyer commenced.

  ‘Now,’ the judge said, paying not the slightest attention to Mervyn’s attempt at extending the protest to include his own “honor” and swinging a coldly prohibitive glare at the cause of the interplay. ‘Without any subsidiary or supplementary comments, what is the verdict you have reached?’

  There was a warning in McCrindle’s apparently even tone which was all too obvious to anybody who knew him as well as the man to whom he was speaking. The latter was certain that, although they had grown up as good friends, no further lapses would be permitted to go unpunished.

  Born and raised in Falls County, the judge was liked and respected by all its residents; even those who came before him for trial. While on this occasion he was wearing a dark suit, white shirt, stiff collar and sober tie—none of which were as costly as the attire of the attorney for the defense—there had been other times when, if he was going hunting or fishing as soon as the court adjourned, his judicial robes had covered less conventional attire. No matter what he wore, his straightforward dealing, intolerance of humbug, underlying good humor and ability to temper justice with mercy if the circumstances deserved such treatment, were what enhanced his popularity throughout his area of jurisdiction.

  ‘Not guilty!’ the foreman of the jury decreed with bad grace, although this was not caused by the rebuke from the bench.

  ‘Silence!’ McCrindle thundered, bringing an instant end to the chorus of boos and shouted protests which greeted the pronouncement. Exchanging what was obviously a glance of angry resignation with the attorney appointed for the prosecution, he went on in lower, yet audible voice, ‘And is that the verdict of you all?’

  ‘It is!’ the foreman affirmed, after a brief look at the other jurors as if hoping to find some indication that at least one of them had had a change of mind, then he sat down, his whole bearing suggestive of the extreme distaste he felt over the course circumstances had compelled him to take.

  ‘So be it recorded!’ McCrindle instructed, but for once he was not entirely successful in keeping a completely impartial timbre in his Texas drawl and the lack of it became even more noticeable to everybody who could claim his acquaintance as he carried on, ‘Seeing the jury have rendered a verdict of “not guilty” in keeping with the “evidence” which has been presented, I have no alternative but to order the defendant released from the custody of this court.’ He raised his right hand and glanced around to silence the rumble of dissent from the people assembled in the room. ‘And we will not tolerate any further disturbance whatsoever. This court now stands adjourned. Bailiffs, clear the courtroom!’

  If the defendant felt any concern over the open, if not now unspoken hostility being directed at him as the judge’s order was being carried out, he showed no sign of it. He had not reached thirty-five years of age and attained his present position of importance in criminal circles—along with sufficient money to retain Reece Mervyn’s far from inexpensive services and the other expenses entailed by the trial—by allowing himself to be perturbed by unfavorable opinions on the part of the public. Under different circumstances, he might have arranged for the insulting remarks made by the foreman of the jury to be punished. However, if he had, it would have been more for the purpose of retaining prestige in the eyes of his underlings and associates than out of any deeply felt resentment over what was said.

  Waiting until the spectators and the majority of the peace officers had left the courtroom before descending from the dock, Foote was on the point of crossing to where Mervyn was placing documents into a briefcase when he noticed two men
walking purposefully toward him. One was tall, burly, blond haired and Teutonic in appearance, clad in the fashion of a cowhand and carrying the suitcase in which he had packed his belongings prior to leaving his cell in the basement of the courthouse. Shorter and somewhat older, his hair a grizzled dark brown and with features suggestive of Hebraic origins, the other wore a not too expensive two-piece gray suit, a white shirt with a sober blue tie and black town shoes.

  For all their divergent appearance and attire, the pair had two things in common. Firstly, slanting down from each’s left hip was a buscadero gunbelt with a Colt Government Model automatic pistol at the right side in an open topped holster designed to facilitate its rapid withdrawal. Secondly, indicating they had the official status necessary to be wearing arms in the courtroom, the badge of a Texas Ranger was prominently displayed upon the left breast of the former’s shirt and the lapel of the latter’s jacket. It was as much due to their presence as to the personality of the judge that there had been so little disturbance when the verdict was announced.

  ‘All right, Foote!’ the shorter of the pair commanded without preliminaries, as his companion put down the suitcase, his demeanor seeming more suited to a storekeeper than that of the very tough and competent peace officer the gang leader knew him to be. ‘Hold out your hands!’

  ‘Really, Sergeant Goldberg!’ Mervyn protested, striding forward swiftly and nodding to the handcuffs which the man he was addressing had brought into view. ‘Are they necessary?’

  ‘Well now, Counselor,’ the Hebraic Texas Ranger replied, making little attempt to conceal his dislike for the lawyer. ‘Sergeant Soehnen and I reckon it is. And, more important, Major Benson Tragg told us to do it.’

  ‘Which, happen it’s good enough for the Major,’ the Germanic peace officer supplemented. ‘It’s way past being good enough for Benny and me.’

  ‘Counselor!’ Judge McCrindle called, his voice holding a note which warned he would brook no argument, before the lawyer could say another word. ‘I’d be obliged if you could spare me a moment in my chambers.’

  ‘Go ahead, Reece,’ Foote authorized and assumed an ingratiating tone as he went on, These gents are only doing their duty. But you don’t need those bracelets, fellers. I’ll come, peacefully.’

  ‘Peacefully or not, you’ll come!’ Sergeant Benjamin “Benny” Goldberg asserted, opening the handcuffs instead of replacing them in the pocket from which they had come. ‘And you’re doing it with them on.’

  ‘You’re not thinking of trying to stop Benny putting them on, now are you?’ challenged Sergeant Hans “Dutchy” Soehnen, almost hopefully, his Texan drawl underlaid with a timbre indicative of his Germanic roots.

  ‘Hell, no!’ Foote affirmed hurriedly, noticing that the blond peace officer appeared to have made a complete recovery from the serious wound he was reported to have sustained a few weeks earlier. 36 Extending his hand hurriedly, he went on in a voice which could not entirely conceal his resentment at being subjected to such an indignity. ‘It’s just that I’m willing to go along peaceably and—!’

  ‘I must say it’s right satisfying to meet an obliging gent like you, ’ Goldberg claimed sardonically, deftly coupling the offered wrists together with the handcuffs. ‘And, while we don’t figure you’d be thinking of trying to escape—!’

  ‘Even thinking about escape’s never crossed my mind and trying it’s the last thing I’d do!’ Foote stated, speaking sufficiently loud to make sure his sentiments reached the ears of the few people who were still in the courtroom. ‘There’s no need for me to do either. Sure, I’ve got to go and stand trial in Texarkana for buying that bootleg hooch, but the most I’ll get’s a fine or a few weeks in jail. So why’d I try to escape and chance getting shot for it?’

  ‘Like you say,’ Goldberg conceded, but in a disinterested fashion. ‘Why should you?’

  ‘Trouble being, though,’ Soehnen went on, his tone seeming to grow more Germanic and menacing. ‘Fellers’re always doing things they shouldn’t.’

  ‘Sergeant Goldberg!’ Mervyn called over his shoulder, having started to follow the judge but halting when he heard what his client was saying. ‘My clerk will be following you to Texarkana, just in case Mr. Foote should need—anything—between here and there.’

  ‘Likely he’ll be able to do the same for Chiverton and Schulman as well,’ the shorter Texas Ranger replied, referring to the men who had supplied the gang leader with his “alibi” and who were also to stand trial in Texarkana for bootlegging. Showing no concern over having a witness to everything that happened on the journey, he went on, ‘Let’s get going, Mr. Foote. The sooner we’ve delivered you safely, the happier Dutchy and I’ll feel. ’

  Although the lawyer had intended to expand upon his warning that precautions had been taken to safeguard his client, the peace officers set off with Foote towards the front entrance before he could speak. Letting out a snort of indignation, more for the gang leader’s benefit than because he believed it would have any effect upon either of the sergeants, he turned and followed the judge.

  ‘Well, Your Honor,’ Mervyn said, changing his expression from disapprobation to one suggestive of amiable companionship as he preceded McCrindle into the judge’s chambers behind the courtroom. ‘May I congratulate you upon the completely fair and impartial way in which you handled the trial?’

  ‘No!’ McCrindle stated, closing the door and standing with his back to it in a manner redolent of disapproval. ‘I’d rather you didn’t. I wasn’t happy about holding this f—I nearly said “farce”, but I won’t—nor would I have if the State Attorney General hadn’t asked me to do it as a favor to him and the Governor. So I’ll be damned if I’ll accept congratulations, from you in particular, for having been compelled to adjudicate at the biggest miscarriage of justice since Barabbas was set free.’ 37

  “Wh—Wha—What—?’ Mervyn spluttered, taken aback by the ferocity with which he had been addressed. ‘How dare you?’

  ‘Shut your god-damned mouth, you over-dressed son-of-a-bitch!’ the judge ordered, speaking with a savage intensity which brought the lawyer’s intended protest to a halt ‘I think you and all your lousy, law-twisting kind are a disgrace to the legal profess—!’

  ‘You’re going too far!’ Mervyn warned, trying to sound menacing and yet not directly threatening.

  ‘Am I?’ McCrindle challenged. ‘That being the case, happen you want to haul me before the Bar Association, go right ahead and do it. But just bear in mind, it’s only your word against mine and, should it come to “proving”, I reckon the foreman of the jury will be willing to say I went straight off hunting with him as soon as I left the courtroom. ’

  ‘H—He wouldn’t dare!’ Mervyn gasped, alarmed and amazed by such hostility from one he regarded as—despite having been appointed to sit in judgment on such an important trial—no more than an insignificant country bumpkin with only a fraction of his own legal knowledge and ability. ‘Nor would you!’

  ‘Wouldn’t we, by God?’ the judge thundered. ‘Well, if that’s the way you figure, take me in front of the Bar Association and lodge a formal complaint. I know you’re Hogan Turtle’s man, but I reckon my kin among the Hardin, Fog and Blaze clan can stack up to a whole heap more pull than he can raise.’

  ‘Well!’ Mervyn ejaculated, trying to maintain his air of pomposity and indignation despite suspecting that the latter part of McCrindle’s statement was correct. At any rate he was disinclined to put it to the test. While he was the senior legal adviser for the master criminal, the members of the clan to whom the judge was related were among the most wealthy, powerful and influential people in Texas. Not only would they be able to bring pressure to bear on behalf of McCrindle where the Bar Association was concerned, but he felt that Turtle would not approve of him antagonizing them. Trying to put on a bolder attitude than-he was feeling, he continued, ‘I don’t see why I should stand here and be insulted in such a fashion!’

  ‘Then don't stand there!’ the judg
e answered, in tones suggesting the conversation was at an end and he was issuing an order of dismissal. Stepping aside, he went on, ‘Get the hell out of my bailiwick and, if you know what’s good for you, make good and god-damned sure you never come before me again. You got that raping, murdering son-of-a-bitch off when he should have been found guilty and hanged. I only wish there was some way you could be made to pay for it. But there isn’t under the law and you’ll get off scot-free.’

  Four – No Jury Would Blame Me For Doing It

  SITTING on a chair by the window of the second floor room he had taken at the Brendon Hotel, the father of Eloise Charmain watched the people who were emerging from the Falls County courthouse. Scanning them carefully, as the peace officers on the sidewalk kept them moving away from the building, he located the man for whom he was looking. It was his cousin, Bill Shelby, who had been present to hear the result of Handsome Phil Foote’s trial. A sigh of mingled anger and distress broke from him as he received the signal they had arranged was to be made if, as they had feared would happen, the jury returned a verdict of ‘not guilty’. Coming to his feet, he crossed to collect the Winchester Model of 1876 Express rifle which was lying on the bed. Throwing its lever through the reloading cycle almost without the need for conscious thought, he walked back to sit down and rested the twenty-six inch octagonal barrel on the windowsill.

  Just over medium height, but with the solidly fleshed, thickset build of an outdoor man, Simeon Oakes—Eloise Charmain had been the dead girl’s professional name—was in his early fifties and soberly dressed in clothes which indicated he was a fairly well to do town dweller. He was, in fact, a successful accountant and a law-abiding, respected member of his community. There was nothing brutal about his rugged and tanned face, only the lines of bitter grief mingled with grimly determined resignation. Despite his resolution, however, he was not motivated merely by a blind desire for vengeance. If the verdict had been guilty, he would have been content to let justice take its course without intervention on his part.