He confirmed all I’d said about the shooting and what we had found in the lane afterward. McRoy crossed with a vengeance once more, claiming the big Osage was not a duly constituted officer of the court.
“They pay me,” Joe Mountain said. “I go out when they ask me. With the Cap’n. That’s Oscar Schiller. And Eben Pay.” And he pointed toward me.
“Have you ever been sworn or taken any oath of office?”
“No. They just ask me to come. They hire me. Me and my little brother, Blue Foot. We come and track and scout and shoot when we have to.”
“You shoot very quickly, don’t you?”
“Up to now, it’s always been quick enough,” Joe Mountain said, and the crowd laughed. Parker rapped his knuckles against the bench, but I could see a smile on his face.
“In fact, you shot very fast that night at Low Hawk Corners. You shot first, didn’t you?”
“No, I never done that.” The big Osage was completely unruffled, sitting there on the witness chair like some great yellow-and-brown-plaid circus tent. “Them boys at the barn shot first.”
“Did you recognize Smoker Chubee there at the end of the barn?”
“No. I never seen him before Moma July brought him in.”
“Ha! You’d never seen him before he was brought in. Thank you, Mr. Mountain, thank you.” And he strode back to his place, nodding at the jury.
Evans was up quickly for redirect.
“Mr. Mountain, that night at the back of Low Hawk Corners. Could you have recognized anyone at the corner of that barn, even if you had known him?”
“I reckon not. I could see the shapes, but I couldn’t see the faces.”
Louie Low Hawk came to the stand and affirmed that Burris Garret was a deputy marshal of the court and that he often used Low Hawk Corners for a posse rendezvous. Evans made a great deal of this, implying that had anyone wanted to ambush Garret, this would be the place. Then . . .
“Mr. Low Hawk, other witnesses have testified that at one point a number of men went out into the night to discover a dead horse and so on. Where were you at that time?”
“I stayed inside the store. They had carried Burris Garret back inside and I stayed with him.”
“You were with him when he died?”
“Yes, sir.”
“Was anyone else there?”
“A number of people were standing around. My hired clerk, Wendell Boggs, was there with me, helping with Garret. He’s a Creek citizen, too.”
“Did Marshal Garret say anything?”
“Not at first. Then after the others had gone out, he tried to talk. He could only whisper and I had to bend low over his face to hear him. He was lung-shot.”
“Did you hear any of his words?”
“Yes. He said, ‘Smoker Chubee.’ Then he breathed hard for a while. Then he said, ‘They’ve killed me, Louie.’ Then after a while, he said, ‘Smoker Chubee’s voice out there.’ I heard him say that.”
“Was that all?”
“Just before he died, he said, ‘Smoker Chubee’ one more time. Me and Wendell Boggs heard it.”
“No more questions.”
McRoy moved out from his chair quickly, taking his stance before the witness. Looking at Smoker Chubee, I saw that at some point McRoy had cut him a chew of tobacco. It bulged in his cheek, but he wasn’t chewing it, just letting it lodge there in his mouth.
“How well do you know Smoker Chubee?”
“Not too well. He’d been in the store a few times.”
“Would you recognize his voice in the dark?”
“No. I don’t know him that well.”
“In fact, Smoker Chubee is little known in your part of Creek Nation. Isn’t that true?”
“I’d say it was.”
“Did Garret ever tell you he knew Chubee?”
“No, I don’t recall he ever did.”
“Did you ever see them together?”
“No, I never did.”
“Then how could Garret recognize his voice?”
“Objection. Calls for an opinion,” Evans said.
“Sustained.”
“Let’s talk about this talking Garret did before he died,” McRoy said. “You said he whispered. That he was lung-shot. It must have been difficult to hear him. Is that true?”
“I’ve said so.”
“Did he give any indication that he knew he was dying?”
“He said, ‘They’ve killed me.’ He said that.”
“You’re sure you heard that?”
“Yes, sir, I said that I did.”
“He didn’t say, ‘I’m dying.’ He didn’t say that, did he?”
“No, I told you already what he said. . . .”
“Very well, Mr. Low Hawk,” McRoy said, turning toward the jury with his knowing look. “We’ve heard what you claimed he said.”
McRoy dropped words before the jury like pieces of tainted meat, the odor lingering in their nostrils after the meat had been dragged away. By this time, I despised him, of course, but he was good.
The store clerk, Wendell Boggs, confirmed Low Hawk’s testimony, and then McRoy proceeded against him with great relish. I sensed that Boggs was going to be a disaster.
“Have you ever been arrested, Mr. Boggs?”
Boggs was a dark man, looking much like the other Creeks I had seen. He held his high-crowned hat on one knee, and although McRoy went at him relentlessly his only sign of nervousness was a twitching of his fingers on the hat.
“Yes, I’ve been arrested.”
“How many times?”
“I don’t remember. Maybe two.”
“You were arrested twice for selling whiskey and fined in a Creek Court—is that true?”
“I think so.”
“You were arrested by Creek police for fighting, were you not?”
“Yes.”
“What was your punishment?”
“They whipped me.”
“And you were arrested for stealing a horse and were whipped again. Is that right?”
“I recall it was.”
“Tell us about that incident.”
“I lost some money on a chicken fight. More than I had. So I took this little roan to pay my debt. I planned to make it good when I had some money together.”
“And from whom did you steal this horse, Mr. Boggs?”
For a long moment it appeared the witness would not respond. Parker began to tap his glasses on the bench.
“From Smoker Chubee.”
“And who was principal witness against you?”
“Smoker Chubee.”
There was a shifting, muttering sound from the spectators, like a restless herd of cattle, and Parker rapped his knuckles sharply on the bench.
“And since then, you have held this grudge against Smoker Chubee.”
“Objection,” Evans shouted, but from his face I could tell he knew the damage had already been done.
“Sustained. But, please, you needn’t shout in this court, Mr. Evans.” Parker turned to the jury. “You will disregard defense counsel’s last comment.”
Evans then called three Creek policemen, each of whom corroborated what they could of other testimony. None had heard Garret’s death statement. Prosecution called a large Creek woman, attractive but fat, who said her name was Nellie Williams. Her dress was decorous, except for a large purple hat with a white feather that bobbed up and down when she turned her head.
“Where do you live?” Evans asked.
“Low Hawk Corners, in the Creek Nation,” she said. As she spoke, she seemed always to be eyeing the men on the jury, a half smile on her full lips. “My husband was a Creek. But he’s dead now.”
“Where in Low Hawk Corners do you live?”
“My house is alongside a lane behind Louie Low Hawk’s store.”
“On the night of July eighteenth—or more properly the morning of July nineteenth—did anything unusual occur?”
“I was woke up a couple hours after midnight. Ther
e was a knock on my door. There was two men there, wet from the rain. It was lightning and I saw their horses tied to my rail fence along the lane.”
“Did you know them?”
“I knowed one. Rufus Deer. The other one I didn’t know then. But that’s him sittin’ right over there.” And she pointed to Smoker Chubee. By this time Chubee seemed uninterested in what was happening. He sat chewing his cud, contemplating the handcuffs on his wrists.
“What did they want?”
“Rufus asked if they was anybody at the store. I said there was a lot of law over there. A posse.”
“What else did he say?”
“He never said no more about that. He asked me if I’d saw his old lady. His mother. I told him my little girl had gone to the store early in the night to get some candy. Right after dark. Mrs. Deer was over there on Louie’s back porch. They got to visitin’, I told Rufus, and his mother had told my girl she was gonna stay there the night because of the storm.”
“That’s all he said?”
“No, he said some more. He said they was gonna kill some white sons a bitches. That’s what he said. I could smell they’d been drinkin’. I never thought much about him sayin’ that.”
Judge Parker glanced at the defense table, expecting an objection. It was clearly objectionable, but McRoy made no move. Smoker Chubee sat unperturbed, giving no indication that he had heard what Mrs. Williams had said.
“What happened then?”
“They left,” Mrs. Williams said. “I went back to bed. In a little while I heard this shootin’. I got up and locked my door, and went back to bed.”
“Your witness,” Evans said, and McRoy rose and moved forward, smiling.
“Mrs. Williams,” he said graciously. “You say it was the wee hours of the morning these men came. You were sleeping and suddenly wakened. It was dark. Yet you are positive this was one of those men.” And he pointed back toward Chubee.
“That’s who it was.”
“These other witnesses from around Low Hawk Corners say they saw Smoker Chubee from time to time. They did not know him well, but they saw him. You claim you never saw him before?”
“I don’t get out of the house much,” she said, and laughed suddenly. A few of the jurymen glanced at one another.
“You were paid, were you not, Mrs. Williams, for saying what you did about shooting white sons of bitches?”
Evans was up, livid.
“I object most strenuously, Your Honor. Defense counsel knows witnesses are paid their travel expenses to come here and swear under oath before this court. They are paid, just as the jurymen are paid.”
“Sustained. And I’m sure the gentlemen of the jury are aware of this,” Parker said.
“Mrs. Williams,” McRoy said, “did the United States attorney speak with you ahead of time concerning your testimony?”
“Yes, he did.”
“And when I spoke with you before this trial, as is my right as representative of the defendant, isn’t it true you neglected to tell me of this phrase you used about killing white sons of bitches?”
“That’s true. Mr. Evans said I didn’t have to talk to you at all if I didn’t want to.”
“Mrs. Williams, these two men you saw. If they were indeed coming to shoot Marshal Garret, why would one of them say they had come to kill white sons of bitches when everyone knows that Marshal Garret was a colored man? Isn’t that strange?”
I expected Evans to object, but he sat quietly and I could see beneath his beard a trace of a grin.
“No,” Mrs. Williams said. “It ain’t strange. Some of the old-line folks in The Nations still call colored people black white men.”
It came like a blow to McRoy, but he quickly recovered his poise.
“The man who spoke to you on the porch, did he speak in Creek?”
“That’s right. Rufus could speak in Creek or Yuchi or Seminole or English and I don’t know what all else.”
“What is your method of livelihood?”
The witness looked at Parker and he bent toward her.
“How do you make a living, Mrs. Williams?”
“I sew a little,” she said, and laughed again. “My girl runs errands for folks.”
“Aren’t you known in that part of Creek Nation as Fat Nellie?”
“That’s what the boys call me.”
“You have a great many gentlemen callers?”
“Yes, I make good pies,” she said, and this time the jury and the crowd in the courtroom laughed with her. Parker rapped his knuckles.
“Mrs. Williams, wouldn’t a woman of your calling know most of the men in your neighborhood?”
“There’s a few I don’t think I’ve met,” she said, and the laughter swelled again. Parker let it die of its own accord.
“Mr. McRoy, what are you trying to establish here?” Parker asked.
“I am simply trying to show that a woman of Mrs. Williams’s profession would have known that second man on her porch had it indeed been the defendant,” McRoy said. “But we have pursued it far enough to make the point, I believe.”
He held out a hand and assisted Mrs. Williams down from the stand, bowing. As she left the courtroom her undergarments made a soft rustling sound of silk. All eyes followed her.
Moma July took the stand wearing the same thigh-length coat I had seen him in that day of the prizefight. Now as then, the heat seemed not to bother him at all. Evans guided him quickly through the events of that night at Low Hawk Corners until we found the body of Milk Eye Rufus Deer.
“When you saw the body in the lane, did you recognize it?”
“It was Rufus Deer.”
“What did you do then?”
“I made a beeline for Smith’s Furnace.”
“Why would you do such a thing?”
“Orthro Smith had told us about Smoker sayin’ Rufus was on the way back home. I figured maybe Smoker had been with Rufus when all the shootin’ had took place. I figured they might have been together.”
“I object, Your Honor. That’s an assumption.”
“Yes, but it has been stated as a reason for the witness’s action at the time, Mr. McRoy. Overruled.”
“Exception, Your Honor.”
“The reporter will so indicate. Now, get on with your examination, Mr. Evans.”
“I made a beeline for Smith’s Furnace,” Moma July continued. “I figured if the other man was Smoker, he might head back there. I didn’t know anywhere else to look. I got there before first light and hid out in one of Orthro’s barns. It was just light when I seen a man comin’ along a fencerow towards the barn on a horse in bad shape. The man was whippin’ the horse hard. When he got closer, I seen it was Smoker Chubee and the horse was bad shot up, with blood all over his flanks and blowin’ red at the muzzle.”
“You recognized the defendant at once?” Evans asked.
“Yes. I’ve known him since we was boys together, in the western part of Creek Nation.”
“And is this the same man?” Evans said, pointing to Chubee.
“Yes. That’s him. Smoker come in the barn where I was hid. In a stall. He had a lever-action rifle. He got his horse stalled and started pullin’ gear off it and throwin’ it on one of Orthro’s horses. I seen his own horse was about done with gunshot wounds. He laid his rifle down and so I stepped out and put him under arrest. The rifle was a Marlin .44–40. It had one shell still in the magazine.”
The rifle was produced and identified by Moma July and placed into evidence as a prosecution exhibit.
“When you arrested him, did the defendant say anything?”
“He said, ‘You’re up damned early in the mornin’, Moma.’ And I said, ‘Smoker, you’re under arrest for shootin’ Burris Garret.’ I didn’t know then he was dead. So Smoker never said anything else right them. He just smiled.”
“He put up no resistance?”
“No. I throwed down on him with a shotgun. I told him we’d better look in his bunk place and we walked out
of the barn and over to this shack where Orthro lets his hired help sleep. I looked around Smoker’s bunk. He showed me where it was, which one it was. I found a six-shooter and some clothes and that’s about all. Then we went back to the barn. I had cuffs on him by then. I looked at his horse, almost dead in the stall. I said, ‘Smoker, what happened to that horse?’ And he said, ‘Some hunters mistook it for a deer.’ And I said, ‘Where at?’ And he said, ‘Back along the road a piece.’ Then we mounted up, him on Orthro’s horse, and come back to the Corners.”
“Your witness, Mr. McRoy,” Evans said.
Moma July watched McRoy advancing on him, deadly serious. I could see the jaw muscles working in the stocky little Creek’s cheeks. I had great admiration for this man, and hoped McRoy would not somehow destroy his dignity.
“Did you have a warrant for the arrest of Smoker Chubee?”
“No. There wasn’t time for that.”
“Did you have a search warrant for his quarters?”
“No, I didn’t have that, either.”
“Were you wearing a badge when you confronted him with a shotgun?”
“I don’t recall I was wearing it.”
“When he told you his horse had been shot by hunters, did you make any attempt to find those hunters?”
“No, I didn’t.”
The questions came like rapid-fire gunshots, and the answers just as fast.
“To your knowledge, was Burris Garret a citizen of the Creek Nation?”
“Yes, he was.”
“To your knowledge, is Smoker Chubee a citizen of the Creek Nation?”
“Yes, he is.”
McRoy stopped abruptly and turned to Judge Parker and held out one hand, as though in supplication.
“Your Honor, this man has testified that under all the rules of apprehension, he has made an illegal arrest and an illegal search. What’s more, he has indicated that all parties are citizens of Creek Nation. I therefore move for a mistrial.”
I would have expected Parker to react violently to the defense counsel’s statement, but the expression on his face did not change. For a moment he rapped the bench with his glasses, contemplating the man standing before him.
“Mr. McRoy, I am sure you know that your motion has been misstated. There are no grounds for mistrial here. What you have asked, and I will consider it as such, is a dismissal.”
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