Sanders joined him, demanded to know what was up. When he explained, Sanders exploded in a whisper, “Christ! Do we have the right man?”
They stared at each other across the yawning gulf of disaster. To admit they were wrong and set Ives free would give the roughs permanent control of the Gulch. Unthinkable. To hang the wrong man? Equally unthinkable. Except, except. Dan knew that in his bones. His brain leaped to comprehend this. They had the right man. Their main witness lied. But not with every statement.
“Long John has not been lying all the time,” Dan said. “If I’m right, they split the gold.” He paused to clear his throat. “Damn them, they split the gold.” The flames crackled around him, and sweat ran down his back, and Thurmond’s voice rose to accuse Long John. Bagg, left on watch, objected, and the judge sustained him. Dan went on, “Four of them at least were in it. Ives and another man went after Nick. Ives pulled the trigger, but Long John and Hilderman shared in the plunder. God damn their souls.”
Sanders scuffed a stick away from the fire with the toe of his boot. “It fits. All it means is that Long John is more culpable than we thought. It doesn’t change anything.” He let out a long breath, relief plain on his face. “We’re still trying Ives, we still have Long John as a state’s witness. Maybe he was frightened of Ives, but he was greedy as well. Fear and greed. Deadly for Tbalt.”
“Yes.” Dan stooped to pick up the stick, the thickness of his wrist. “Prosecutors make deals all the time with smaller criminals in order to bring bigger ones to justice. I just wish … .”
“So do I,” Sanders said, “but it’s part of war to make distasteful compromises.”
Dan curled his fingers around the stick. He made the first cut, winced, cut again. There was some pain, but this would work.
Thurmond roared, “Long John, so far from spurning George Ives’ gold, you killed Nicholas Tbalt! You sold the mules! You kept the gold for yourself!”
Long John, goaded out of his fears, bellowed, “Like hell! He’d a killed me!”
Thurmond sneered. “You expect us to believe you were afraid of George Ives?”
“Hell, yes. He’d kill a man soon as look at him. He shot that fella on the road a couple of days before he killed the Dutchman.”
“Strike that!” Thurmond leaned over the side of the wagon and waved his index finger at Pemberton. “Strike that from the record! Strike it!” His face swelled and turned bright red as if injected with blood.
Sanders yelled, “The defense asked the question!” And both Bagg and Dan shouted at the same time, “You asked the question! The witness answered!” Thurmond jumped up and down, rocked the witness wagon. Dan knew he grinned like an ape, it was a colossal blunder. For now, the question having come from the defense, it did not matter that Long John gave an unexpected answer. Thurmond had opened the door for the prosecution to introduce Ives’s prior bad acts.
The crowd booed and cheered, and Byam’s cowbell rang for two or three minutes before the crowd quieted enough that they could hear anyone speak. “Why the commotion?” demanded Wilson. Dan was convinced that the crowd did not understand, either, what had happened. Thurmond shouted as if the crowd still howled, that Long John’s answer was inadmissible, and Sanders hollered, that because Thurmond elicited the response in answer to his own question, it opened the door for testimony about Ives’s other crimes.
As the two judges whispered in each other’s ears, men in the crowd shouted each other into a muttering quiet.
Dan held his breath. Even operating under Common Law, in this miners court the judges could put it to a vote of the crowd. In a proper court, the jury had no say in the matter.
The judges finished their conference. Byam’s voice rang out: “The defense asked the question, and the witness answered it, and it stands as is.” Thurmond roared, “No! No!” and the roughs booed, but the cheering was louder. Dan, letting out his breath, felt as if he’d run miles. Wilson said to the recorders, “You can leave that be.”
“I’m through with this witness.” Thurmond jumped down from the witness wagon. “You may get down. Get down, I say!”
“Redirect.” Sanders whispered to Bagg, who called out, “Judge, I’d like to ask a question. It’s called redirect.” From the ground, he asked Long John, “Have you anything to add?”
“You bet,” said Long John. “George Ives shot that fella in broad daylight, with travelers about a half mile away. That’s why he come to my place. He told me to say he’d been there all the time if someone come looking for him about that.”
“Did Ives say why he killed the man?”
“The fella was going to peach on him in the miners court here.”
“Peach? I take it you mean the man was going to testify against Mr. Ives over some matter.”
“That’s right. What it was, I disremember.”
“No wonder you were afraid of him. You have a lot of courage to testify today. Your honor, I’m through with this witness.”
Before Judge Byam could excuse Long John, Smith waved. “Your honors, I have a question for this witness.” He smiled. “It’s only fair. You let the prosecution ask one.”
“You sure? Oh, very well then. Go ahead.” Wilson glanced upward as if to say the sun traveled faster than the trial. “Make it snappy.”
“Thank you, your honor.” Placing each foot so as to avoid puddles, Smith walked to the wagon, steadied himself with one hand on a wheel. “Who told you Ives killed that man?”
“Why, Ives did. That’s how I know.”
Dan watched wooden curls gather at the tip of the stick. Damn. Smith was smart.
“Thank you.” Smith bowed to Long John. “You’ll have to tell the juries to disregard all testimony about the killing on the road.”
“Why?” asked Judge Byam.
“Because it’s hearsay. A man can’t testify that someone did something if the person who did it is the one that told him.”
“What?” Byam’s face wore a look of profound confusion that would have amused Dan under other circumstances. Sanders explained that indeed Long John’s testimony about that incident was hearsay. Inadmissible.
Smith passed the prosecutors on his way back to the log. “Check.”
“But not checkmate.” Dan’s smile was the equivalent of thumbing his nose. They might have lost that testimony, but they had the principle: Ives’s other crimes could be used against him. Judges’ instructions or not, the jury would remember.
As guards led Long John back to Byam’s house, the tall man said, “I done my part. You keep your promise, now.”
“Much as it pains us,” Sanders said, “we will.”
Dan could not look at Long John. The man would go free, because he had testified against Ives, when he was almost certainly more complicit in Nick’s death than they had thought. They had made a pact with the Devil, and the Devil was laughing now. How many curls could he carve? It was a question of technique, a nice distinction of angles and depths to gather them without breaking any.
* * *
George Hilderman shambled around the fire, watching Ives as he would a snake. Ives sat with his elbows on his knees, a steaming cup in his chained hands, chatting with Alex Davis as if this trial were no concern of his. Hilderman nodded to the oath, and from a faint beginning his voice grew stronger as Bagg took him through his testimony. Dan gripped the stick, almost relishing the pain as a distraction from hearing yet again this account of Nick’s last minutes. But he had tears in his eyes when Hilderman described how Ives had shot him as he began the Lord’s Prayer.
“Hearsay!” screamed Thurmond and leaped up, fist in the air. “Hearsay!”
“It is not hearsay,” yelled Sanders. “It’s a confession, and we have corroborating – ”
“You got nothing! Nothing, you –”
The two stood toe to toe. Thurmond waved his arms, and saliva sprayed from his mouth. A vein bulged across Sanders’s forehead and the cape of Union greatcoat quivered as in a breeze. Dan leaped to sepa
rate them, Bagg following, and the defenders came off their log, and all of the attorneys, defense and prosecution, surrounded Sanders and Thurmond, who yelled in each others’ faces. Both men’s words were lost in their noise, and the crowd encouraged them as if cheering on a pugilistic contest.
Over it all, the cowbell clashed. Both sheriffs shouldered their way into the clutch of lawyers, and as they shifted and parted, Dan glimpsed Pemberton protecting the notebook.
When Judge Byam could be heard, he said, “I can’t make heads or tails out of this. Why can’t this man tell his story?” Thurmond and Sanders spoke at once. Byam shook the cowbell. “Mr. Sanders will speak first.”
Thurmond roared, “I demand – ”
Byam waggled the cowbell at him. “Your turn will come. Meantime, shut your face.”
Dan’s broken thumb jabbed at him. Without knowing, he had clutched the stick. He relaxed his grip and tried to ignore the continuing jolts by picturing Grandfather’s face when he told him that a judge had ordered an attorney to shut up. He smiled. The old man would know everyone in the Gulch was a ruffian.
Panting, Sanders said, “In general, Your Honor, the rule of hearsay is that you can’t have someone testify as to what someone told him if no other person were present. However, a confession is an exception to this rule –”
“Balderdash!” Thurmond hollered. Alex Davis hissed in his ear, while Smith, on Thurmond’s other side, patted his forearm.
Sanders continued, “This testimony satisfies the condition for a confession, in that both Mr. Frank and Mr. Hilderman heard Mr. Ives say he murdered Nicholas Tbalt.”
Davis said, “Your hon. –”
Thurmond cut him off. “Bullshit! That’s a complete nonsense! Hearsay is never admissible under any circumstances, no matter how many people hear it. I demand you dismiss this spurious case. They have no other evidence.”
Dan, studying the growing bundle of blond wooden curls, knew what Davis had wanted to say, that by Hilderman’s own testimony, Ives had told him about the prayer after Long John took the mules away. If true, the prayer incident and the outrage of it, was hearsay, and Davis was right, yet both men had now sworn that Ives confessed to killing Nick, and at least one other. Damn it, Ives was guilty, guilty as sin.
“No, your honor.” It was his own voice that Dan heard. “We’ve been through this already. The defense is wasting the court’s time. If two people hear a man admit to a crime, it’s not hearsay, it’s a confession.” He added in his most persuasive tones, “Our witnesses differ in some details, but they agree that Ives told them both, at the same time, that he killed Nicholas Tbalt.”
Smith tore a corner of his pocket as he yanked a bottle out of it. “You want to railroad an innocent man! What each of them says is hearsay because the other man didn’t hear the same thing!”
“Yeah!” Thurmond tugged at his arm, held in Davis’s firm grip. “Sanders, you want to murder George because he showed you up.” He turned on Davis. “Let go of me, damn you!”
“That’s a damn lie! I demand you take it back!” Sanders stuck his jaw out at Thurmond.
“There’s lying around here,” said Thurmond, “but I ain’t doing it.”
“You calling me a liar?” Sanders’s hands fumbled at something in his coat pockets. “I’ll see you anywhere after this trial is over.”
Jesus Christ, Dan swore to himself. Sanders and Thurmond would kill each other if they weren’t stopped. He moved between them, faced Thurmond. “Simmer down!”
Judge Byam shouted to the juries. “Two witnesses say Ives admitted killing Nick Tbalt, so we’re letting you boys consider what they said. Their stories differ a bit in details, but we think that’s all right, because the details don’t change the issue: Ives told them both he did the killing.”
Judge Wilson pointed his finger at Thurmond. “It’s done. Quit your fussing.”
The lawyers separated, warring armies regrouping for battle.
Judge Wilson said, “Cross-examine, but don’t waste time.”
Dan glanced toward the sun. While they argued points of law and heard the witnesses, the sun had reached its zenith and begun its downward slide.
“There’s no point in a cross,” Thurmond said. “He’s lying, and this is a kangaroo court! You’re all hell bent on hanging an honest businessman… .”
Byam leaned so far over the sidewall that Dan feared he might fall. “Do you have a point to make, or are you just trying to warm us up?”
“You bet I do! We will prove absolutely that Mr. Ives could not have killed that poor boy. Long John Frank and George Hilderman killed him and are trying to pin it on George Ives.”
“In that case, the witness is excused.” Judge Byam rang the cowbell. “I’m hungry, too.”
* * *
Dan felt an urgency in his gut that would not be denied. Excusing himself, he sought a necessary and found a two-holer that faced the creek. It had no door. Sitting there, rifle across his knees, he watched miners work their claims, oblivious to a man’s life being decided not thirty yards away. Cold air wafted through the outhouse, floated away the stench but chilled his buttocks. He wished to hell he’d finish faster.
Jacob, who had come along as a bodyguard, stood behind the structure, talked through the wall about the crowd’s mood. “Is not that they different think, aber – but, doubts they now have.” He spoke slowly, his English syntax even more garbled than usual. “Long John, Hilderman, they speak, and now people Ives maybe so Nicholas killed. Say.”
To be sure he understood, Dan said, “Some people who thought Ives could not be guilty now say maybe he could have done it. Is that correct?”
“Ja.”
Detecting doubt in the single syllable, Dan tried again. “Most men who thought Ives did not kill Nick now say perhaps he might have done it, because of what Long John and Hilderman said?”
“Ja. You have right.” Relief and certainty rang clear in Jacob’s voice.
“Thank you, Jacob.” The small hope he had nurtured all day grew a little larger. Maybe they could yet swing enough in the crowd for a guilty verdict, but able manipulators like Smith could demand vote after vote until Ives went free. There had to be a way to prevent that. But how?
Voices interrupted Dan’s train of thought. A Southern accent, a bass voice rich and thick as heavy cream. Dan tensed, his right hand found the rifle’s hammer. Jacob’s higher tones, unworried. A friend, then. But who would seek him out now? At this most private time, with his trousers around his ankles and the flap of his long underwear dangling behind his knees.
The deep voice called his name. “Mistah Stark? Mistah Stark? You hearin’ me? It’s Albert.”
Albert? “I hear you.” Why was he here? “What’s the trouble, Albert?” A sudden sweat made the hammer slippery. Not Martha. Please, God, not her.
“No trouble, sir. It’s something Miz McDowell said you have to know. In Mistah William’s barn, sir, when you’ve a mind to come?”
“All right. I’ll be there as soon as I can.”
Dan stepped over the threshold of Williams’s livery barn into sun-streaked darkness. Pausing to let his eyes adjust, he inhaled the good smells of hay and horse manure. Horses in their stalls pricked their ears at him, and satisfied, went back to munching their hay. One nickered softly.
“Mr. Stark? Is that you?”
Dust floated in streaks of sunlight between the vertical wall boards. Back lighted, she was a shadow among shadows in a vacant stall. “Yes, it is I. Dan Stark.” He disgusted himself, how stilted he sounded, but he could find no middle ground between seizing her in his arms and treating her with freezing formality. He stepped forward, mindful of where he put his feet. Because she stood against the sunlight, he could not see her face, but he could not mistake the shape of her, or her voice. Seeing her in this barn felt like an assignation, but it could not be. She was not so brazen. A respectable woman, no hussy. Mrs. McDowell. Martha. If he could just once call her by her name.
“This stall’s empty,” she said, “in case someone comes in.”
Her voice was soft, uncertain. He towered over her, leaned toward her, and the rifle slid around so that it hung between them. In his own ears, his laugh sounded like a horse’s whinny. He took the weapon off his shoulder, leaned it against the stall partition. She came close, to whisper to him. He hoped she would not think he was – what he was, because he wanted her, oh God, so much.
“How’s your hand today?”
She had not come all the way over from Virginia to ask about his hand. “I think it’s some better, thank you.” He felt his body yearning toward her. “Is there something I can do for you?” Name it, he wanted to say, just name it. Anything. My life.
God's Thunderbolt: The Vigilantes of Montana Page 18
