Aces & Eights

by Loren D. Estleman

  “Well, I don’t.”

  “Perhaps I can refresh your memory.” The prosecutor rested his forearms on the rail, bringing his face level with McCall’s and within six inches of it. His voice sank, accordingly, to a conversational tone that was nonetheless audible all over the still room. “Did John Varnes and Tim Brady pay you to dispose of James Butler Hickok in the interests of keeping Deadwood a wide-open town?”

  “Objection!” Crandall’s bellow sounded twice as loud after Scout’s insinuating murmur. “The prosecution has introduced no evidence to support his hypothesis.”

  Scout ignored him, his eyes still on McCall. “Isn’t John Varnes the man you told the authorities placed a bounty on Hickok’s head, and wasn’t Tim Brady his partner?”

  “Objection! Objection! Your Honor!”

  “You’re going to the gallows, McCall. Why should you drop through the trap alone?”

  “Your Honor!” Crandall demanded.

  Blair employed his gavel angrily. “That will be enough, counselor. If you have nothing solid upon which to base this line of inquiry, I’ll be forced to throw it out.”

  “He has nothing, Your Honor,” said the General, triumph gleaming in his eyes. “My esteemed opponent is running a tremendous bluff.”

  Scout was reluctant to remove his gaze from McCall’s, which had ceased to be hostile and had drawn inward. He knew what was going through the killer’s mind. There had been no mention of Tim Brady in his short-lived statement made in the Yankton jail.

  “You heard me, couselor,” the judge said acidly. “The statement you mentioned is not a legal document because the defendant did not sign it, and thus it cannot be used in evidence. You will have to offer something more concrete.”

  “I can do that, Your Honor.” The prosecutor straightened and faced the bench. “John Varnes is in federal custody at this moment. His partner, Tim Brady, is dead, killed by federal officers while resisting arrest.”

  Blair was so taken aback that he nearly neglected to gavel down the excited buzz that had started in the gallery. Crandall stared accusingly at his client as if this were his fault.

  “Varnes has been charged with conspiracy to commit murder?” asked the judge.

  “No formal charges have been preferred as yet, Your Honor. He was apprehended less than an hour ago.”

  “Then he can have made no statement as yet.” The judge considered. “Will both counsels please approach the bench?” When Scout and Crandall had complied, Blair leaned toward the prosecutor. “I trust Mrs. Sargent is all right?”

  “I’m told that all hostages are safe, Your Honor.” Scout’s relief and joy were evident in spite of his attempt to appear emotionless. He wished he were with Grace right then.

  “I am pleased for you both.”

  “Thank you, Your Honor.”

  Crandall winked. Scout supposed that was as close as he came to congratulating anyone.

  “Mr. Scout,” said Blair, “in the light of this new development, would you like to recess until a statement has been obtained from the arrested party?”

  Scout hesitated only an instant. “With respect, Your Honor, if I thought I had not the evidence to convict the defendant going into these proceedings I would not have brought this case before you.”

  The judge, raised his eyebrows. “Then you wish to proceed?”

  “I do, Your Honor.” He derived secret satisfaction from the expression on the General’s face, a mixture of astonishment and distrust.

  “You understand that I will have to sustain General Crandall’s objection to your present line and forbid you to continue with it?” asked the judge.

  “I do, Your Honor,” Scout repeated. It made him feel oddly like a bridegroom. He thought of Grace.

  Blair seemed on the verge of asking another question, then shook his head. “Very well. With your permission I’ll rule.”

  “You knew going into it what would happen, didn’t you?” Bartholomew asked when Scout was beside him again and the judge was instructing the jury to ignore the prosecution’s references to Varnes, Brady and the statement attributed to the accused regarding the former.

  Scout didn’t answer his partner’s question. “Did you box in college, Tessie?”

  “I was too busy reading up on precedents. Why?”

  “First you feint, then you jab.”

  Jack McCall had been on the stand so long that he was beginning to look at home. Not wanting to destroy his complacency just yet, the prosecutor remained behind the table when he asked his next question.

  “Returning to the afternoon of August second,” he said. “You’re certain Hickok observed your approach from behind?”

  “He had to. Like I said, he went for a pistol. I figure he seen me reflected in his shot glass. I said that too.”

  “Could he have heard you?”

  The defendant laughed, a short, harsh bark. “It won’t do you no good to try and trip me up. He couldn’t of heard me, on account of he was arguing with Cap’n Massey at the time, like I said. Besides, he had to of recognized me in the glass or he wouldn’t of went for no weapon. He knowed I was angry at him for making sport of me after I got beat the day before. He seen me, all right.”

  “Curved glass distorts reflections, McCall.” Scout was coming around the end of the table, pressing hard. “No man with ordinary vision could recognize another’s features in anything so inadequate as an ounce whiskey glass.”

  “That’s where I got you, Mr. Prosecutor.” McCall clenched and unclenched his hands on his knees in malicious glee. “Wild Bill’s eyesight was more than just ordinary. He could pick the ass off an ant at forty paces. Ask anyone who seen him shoot. A steady hand ain’t worth a good goddamn without a good eye to go with it.”

  “No, Mr. Defendant,” mocked Scout quietly, stopping halfway between the table and the witness. “That’s where I’ve got you. Were you aware that at the time of his death, James Butler Hickok was going blind?”

  The word “blind” hummed through the courtroom like electric current. McCall looked confused.

  “That’s a lie!” he shouted.

  “Is it?” Scout donned his glasses. “I have a letter from the proprietor of a variety theater in Cheyenne, Wyoming Territory”—with the timing of practiced teamwork he thrust a hand behind him just in time to collect the manila folder from Bartholomew—“in which he states that on March second of this year, Hickok told him: ‘My eyes are getting bad. The best that I can do with them now is to see a man’s form, indistinctly, at sixteen paces. My shooting days are over.’” He held up the letter for all to see as he revolved on his heel, stopping finally before the bench, whereupon he handed it to the judge. Blair put on his own spectacles.

  “Can you produce this witness, counselor?” he asked, once he had read the epistle.

  “I couldn’t locate him, Your Honor. He has moved since writing me and left no forwarding address.”

  “Ha!” snorted Crandall.

  Blair peered at the defender over the top of his glasses. “Is that some new form of objection, General?”

  Crandall rose, shaking his head. “If Your Honor pleases, I will rely upon the old-fashioned kind. That letter could have been written by anyone, and even if its author is whom Mr. Scout says he is, we have not the pleasure of his company in this court where his testimony would be under oath. Even then it would be hearsay and thus inadmissible.”

  “The bench will decide what is inadmissible, counselor. You know very well that statements made by the deceased in a murder case carry greater weight than those of a third party. But the rest of your objection is well taken. If the prosecution cannot produce the author of this letter, or, failing that, a deposition signed and sworn to in the presence of a reliable witness, I will have to dismiss this as evidence.”

  “The prosecution can do better than that, Your Honor.” Relishing the moment, Scout opened the folder again and drew out a sheaf of closely typewritten pages. “This is a deposition signed by Dr. E. A. T
hurston, the ranking medical authority at Camp Carlin, Wyoming Territory, whom Hickok consulted shortly before his marriage to Agnes Thatcher Lake on March fifth, sworn to before a notary and bearing his seal. With the court’s permission I would like it tagged as evidence.”

  Blair riffled through the pages, stopping to read a passage here and there, then nodded and handed it to the diminutive clerk, who marked a corner of the top sheet with his pen and returned it. The judge passed it back down to Scout.

  “‘The patient, J. B. Hickok, complained of severe pain and blurring of vision in the left eye,’” he read. “‘Examination of the eyeball revealed abnormal pressure impending the natural drainage of internal fluid and depressing the optic disc in the pattern referred to in medical parlance as”cupping.” These are the classic symptoms of advanced glaucoma. Tests conducted upon the patient’s right eye disclosed similar conditions to a less advanced degree. Both were inoperable, and it is the expert opinion of this physician that the patient would soon be completely blind.’” The prosecutor looked up, his eyes shearing daggerlike through dead silence to the defendant’s. His voice dropped dramatically. “Jack McCall, do you still say that the man you killed recognized your reflection in a glass scarcely larger than a thimble and forced you to shoot him in your own defense?”

  Crandall stood in an attempt to break the spell. It didn’t bend. “Nicely done, counselor. I applaud your sense of theater. But where is your corroboration?”

  Scout’s gaze remained locked with McCall’s. “That was a second opinion, which I read first because of its use of language comprehensible to the layman. I have another, dryer and more technical, signed and sworn to by the doctor who attempted and failed to alleviate Hickok’s ailment earlier at the army hospital in Rochester, New York. He was suffering acutely from his condition at the time, which may account for his bad temper while traveling with William Cody’s theatrical troupe. Certainly it would explain his violent reaction upon his first exposure to bright spotlights. That doctor also diagnosed his problem as glaucoma and declared it inoperable. I would now like to introduce his deposition into evidence.”

  In the excitement following the presentation of the second affidavit, few heard the stunned defense counsel rest the case for Jack McCall.

  “Eleven cents, sir.”

  Scout flipped the driver a coin and trotted up the walk to the Sargent mansion without waiting for change. It was still daylight out, and bitter cold. Just as he reached the veranda a gray-haired man came out carrying a black bag and touched his hat on his way past. The prosecutor was about to ask him something when Grace came to the door. They were in each other’s arms in an instant. The black maid, who had been on her way to the door, spun about sharply and vanished through the arch opposite. The front door swung shut of its own weight, or perhaps Grace helped it with a push.

  “Are you all right?” Scout asked anxiously, when they came up for air. “That was a doctor’s bag I saw.”

  There was a dreamlike glaze over her dusty-blue eyes. “He was here to see Mother. Don’t worry, Marshal Burdick got us all out without a scratch.”

  “Remind me to send him a case of imported cigars.” He felt suddenly guilty for his relief. “How is your mother?”

  “She’s well.” She showed no inclination to disengage herself from his arms. If anything, the way she was leaning forced him to keep them around her to prevent her from falling. He didn’t feel put upon. “That’s all I can say, she’s well. I had thought that the shock of the experience might help her overcome the state she’s been in since Edgar’s death. She cried when we were rescued. That’s what’s been missing these past two years, her crying. But the doctor wasn’t so sure. He said we’ll have to wait and see. Doctors are always telling people to wait.” Her voice was empty.

  He held her tighter. He felt a sudden, frightening urge to crush her, he wanted to possess her that much. He restrained himself, but the effort involved frightened him even more. He had never known that love was mixed so heavily with fear.

  “I was insanely afraid for you,” he heard himself saying, his words muffled by her hair. It smelled of herbs and something else that made his heart pound. “If I’d had a gun I would have killed McCall for being responsible for what had happened. But I did the next best thing; I hanged him with his own words.”

  “Is the trial over?”

  “We’re in dinner recess for an hour before final summations. Bartholomew had to hold me down to keep me from bolting while Blair was going for his gavel. I was the first one out the door when court adjourned.”

  “I stayed here to find out what the doctor had to say.” She was quivering. “It was terrible, waiting to see you. The room kept shrinking and I paced holes through my shoes. I was hurrying to get my wrap when you came. Oh, Julian, what if we had passed each other on the way?”

  “We didn’t.” Filtered through his chest, his voice was an almost imperceptible rumble, infinitely reassuring. She held him so hard her arms ached.

  For a long time neither of them spoke, locked together in the drafty entranceway, swaying unconsciously. Grace, her face pressed to Julian’s vest, could hardly breathe but took no notice of the discomfort. He smelled of tobacco and broad-cloth and man. She forgot about Edgar and the house, about the man who had died in the kitchen, and the one who had died out back, about the marshal and the trial, and if she didn’t entirely forget about her mother, she at least placed her in an insulated corner of her mind for the present. There was simply no more room in the rest of it for anyone but Julian.

  BOOK THREE

  THE VERDICT

  I never killed one man without good cause.

  —James Butler Hickok, 1867

  Chapter 20

  Julian Scout looked at the jury for some time before he spoke, scrutinizing in turn each of the faces he had been watching for three days and wondering if he would recognize any of their owners if they met on the street tomorrow. Their life histories were lost in the jumble of his thoughts, leaving him with nothing but their names. It occurred to him that McCall probably didn’t even know those, and he thought it strange that a man should be so unfamiliar with the men who were to decide his fate. But when he commenced his address there was no pity in his tone for the man in the dock.

  “‘Reasonable doubt’ is a phrase with an elusive meaning,” he began quietly. A pacer, he quartered the floor before the jury box slowly, back and forth, back and forth, hands clasped behind his back, mesmerizing the jurors with the metronomic movement and the rise and fall of his voice. “It means that unless the prosecution has failed to demonstrate the probability of the defendant’s guilt, it is the duty of the jury to deliver a verdict of guilty.

  “In the case of the People of the United States versus Jack McCall, the prosecution has gone far beyond that. We have shown that in spite of the defense’s attempts to impugn his character, James Butler Hickok was a law-abiding citizen engaged in a legal and harmless activity at the time of his treacherous death. We have examined his record as a public servant and found it exemplary. Two of our country’s greatest heroes have come forward, one posthumously, to testify to his sterling qualities. The example of his brief and stormy career in the show business should be enough to establish his modesty and unwillingness to parade his greatness before an adoring multitude. We have shown him to be honest and brave beyond the ability of most men, generous and a true friend to those in need. Can we forget so easily the many favors he did for William Cody at a time when the latter, a nearly destitute youth unable to repay him with anything other than friendship, required them most?

  “What has the defense offered in rebuttal? The dubious testimony of a self-confessed assassin who was neither in Deadwood’s Saloon No. 10 at the time Hickok was killed, nor in Abilene at the time his partner gambled with his life and lost—which is what he was called upon to tell us about. The lies of a man in the shadow of the noose willing to say anything to escape his fate. Hearsay. Semantics.”

  Scout s
topped pacing and turned to face the jury, his hands braced against the rail in front of the box. His eyes burned slowly as he took in their faces once again, one by one.

  “We have shown,” he continued, “a lawman at the end of his life, unable because of his failing eyesight to trust his skill with revolvers, the Prince of Pistoleers reduced to carrying a shotgun for his own protection. We have shown a common saloon swamper, a moral and financial failure who, consumed with hatred and envy, with malice a forethought and in full view of witnesses, slunk up behind the closest thing to established law and order the city of Deadwood had ever known and slew him in cold blood without ever giving him a chance to defend himself.”

  His tone grew intense. “What do they say about us in the East, where men meet to judge our actions and plot our future? ‘Barbarians!’ they cry. ‘Animals, who would look on as Cain slew Abel and applaud the deed.’ And they are right!

  “How many times have the McCalls of this world escaped justice in frontier courts? How many widows and children curse our names because we have failed to avenge the lives of their husbands and fathers? Hickok left a widow. Is there one here who will dry her bitter tears should the murderer of her champion cheat his destiny a second time?”

  Roaring now, he thrust an avenging finger at McCall, who sat glaring back at him behind the defense table. “Every moment this man lives, every foul breath he draws, brings the mark of Cain down heavier upon our brows. The time is long past due when the decent men of this territory must rise and cast away the evil that dwells among them as the Lord in His wisdom consigned Satan to the fires of Hell. I only pray that it is not already too late.”

  Again he paused, his gaze blazing across the double row of faces before him like flames of retribution. When he resumed speaking it was in a whisper, as if the effort of defending Hickok’s good name had claimed his last ounce of strength. “Gentlemen of the jury, if there is any justice in your hearts, you must find the defendant, Jack McCall, guilty of murder in the first degree.”