XXVI
CIRCUMSTANTIAL EVIDENCE
At last the sheriff's new deputy went up the court-house stairs, and pulled away on the rope that rattled the bell in the belfry – a bell that uttered its notes in irregular groups, now pausing for breath, and now sending one hurried stroke clattering hard on the heels of another. Its clanking had no more dignity than the words of a gossip eagerly tattling small news. While the bell was yet banging, Judge Watkins's iron-gray head and stooped shoulders appeared; he pushed his way slowly through the press, his brows contracted in impatience at finding even the physical progress of the court obstructed by the vulgar. The people squeezed themselves as nearly flat as possible in the endeavor to make way for his Honor, of whom they were as much in awe as school-boys of a stern master. Bob McCord, erect in the aisle, was an island in the very channel, and the most serious obstacle to the judge's passage; nor did it help things for Bob to turn sidewise, for he was equally obtrusive in all his dimensions. The judge was a good deal ruffled in his endeavors to pull by him.
"I wish I wuz littler, Jedge," said Bob, with a fearless laugh that startled the bystanders, "but I can't seem to take myself in another eench."
The dyspeptic judge was not without a sense of humor. It would be a derogation from his dignity to say that he smiled at Bob's apology; but certainly there was a little relaxation of his brows, and a less severe set to his lips, when he finally edged past and left the crowd to close around Big Bob again.
The judge began the session by ordering the sheriff to bring in the grand jury. This in turn was no easy task; but at length that body succeeded in descending the stairs, defiling through the aisle, and getting into the jury box. In a few words, precise and tart, the judge charged the grand jurymen to inquire into two lawless attacks which had been made on the sheriff during the night; into the conduct of the sheriff; and into the evidently insecure condition of the county jail. Then, when the members of the grand inquest had reluctantly made their painful way up the stairs to their room overhead, the judge called the case of The People of the State of Illinois versus Thomas Grayson, Junior, and there was a hush in the crowded court-room.
Tom sat regarding the crowd with such feelings as a gladiator doomed to mortal combat might have had in looking on the curious spectators in the Coliseum. Mrs. Grayson and Barbara had been provided with chairs within the bar; but on his mother and sister Tom did not dare to let his eyes rest. He saw, however, without looking directly at them, that little Janet was standing by Barbara, and that his uncle sat with crest-fallen face by his mother's side, and that his Aunt Charlotte had not come at all. Just outside of the bar, but immediately behind Mrs. Grayson, so as to form one of the group, stood Hiram Mason, erect and unblushing. One of the landmarks on which Tom's gaze rested oftenest was the burly form and round, ruddy face of Big Bob McCord, half way between the judge and the door. And at one of the open windows there presently appeared the lank countenance of Jake Hogan, who had climbed up from the outside, with the notion that he was somehow bound to supervise the administration of public justice. He managed with difficulty to get perching-room on the window-sill. Into two of the raised back seats a group of women had squeezed themselves to their last density, and among them, singular and conspicuous as she always was, sat Rachel Albaugh. Tom's was not the only eye that observed her; the lawyers from other counties were asking one another who she was, and she had even attracted the attention of the judge himself; for a gallant interest in good-looking women lingers late in a Virginia gentleman, no matter how austere his mold. At a pause in the preliminary proceedings the judge spoke to the clerk, sitting just below and in front of him, at a raised desk.
"Magill, who is that girl?" he asked.
"Which one, Judge?" queried Magill, pretending to be in doubt.
"You needn't look so innocent. Of course I mean the one a modest man can't look at without being a little ashamed of himself. You know her well enough, I'm sure."
"I s'pose yer Honor manes John Albaugh's daughter," said Magill. "She's the one that's at the bottom of all this row, they say."
As soon as the judge heard that Rachel's beauty had something to do with the case in hand he fell back into his official reserve, as though he felt a scruple that to talk about her, or even to take note of her beauty, might be, in some sort, a receiving of evidence not properly before the court.
The jury was very soon impaneled, for in that day entire ignorance of the matter in hand was not thought indispensable to a wise decision. Lincoln made no objection to any of the names drawn for jurymen except that of Abijah Grimes, of Broad Run Township. The exclusion of Bijy's open countenance from the jury box was another blow to Jake Hogan's faith in the institutions of the land. His brow visibly darkened; here was one more sign that a rich man's nephew could not be punished, and that a poor man hadn't no kind uv a chance in sech a dodrotted country. No time was spent in an opening speech; the preliminary oratory, by which our metropolitan barristers consume the time of an indulgent court and make a show of earning their preposterous fees, was rarely indulged in that simpler land and time. The fees paid, indeed, would not have justified the making of two speeches.
No portion of the crowd tucked into the four walls of the Moscow court-house showed more interest in the trial than the members of the bar. The unsolved mystery that hung about Lincoln's line of defense, the absence of any witnesses in Tom's behalf, the neglect of all the ordinary precautions, such as the seeking of a change of venue, produced a kind of flurry of expectation inside of the bar; and the lawyers in their blue sparrow-tail coats with brass buttons, which constituted then a kind of professional uniform, moved about with as much animation as uneasy jay-birds, to which the general effect of their costume gave them a sort of family likeness. Their attention was divided, it is true; for when a member of the bar did succeed in settling himself into a chair, which he always canted back on its hind legs, he was pretty sure to get into a position that would enable him to get a glance now and then at the face of Rachel Albaugh, who was interesting, not only for her beauty, but on account of her supposed relation to the case actually before the court. Never had Rachel's lustrous eyes seemed finer, never had her marvelous complexion shown a tint more delicious; her interest in the case lent animation to her expression, and her attitude of listening set off the graceful turn of her features.
The prosecuting attorney called Henry Miller to prove that Tom had been irritated with Lockwood at Albaugh's, but Henry did what he could for Tom, by insisting that it didn't "amount to anything" as a quarrel; it was "only a huff," he said. The next witness called was the nervous young man who had stood balancing himself on the threshold of Wooden & Snyder's store when Tom had threatened Lockwood, in paying back the money borrowed to discharge his gambling debt. He was a habitual gossip, and the story lost nothing from his telling. He did not forget to mention with evident pleasure that Rachel Albaugh's name had been used in that quarrel. At this point Rachel, finding too many eyes turned from the witness to the high seat at the back of the room, lowered her green veil.
Then the carpenter who had bought a three-cornered file on the morning of Tom's outburst against Lockwood also swore to the details of that affair as he remembered them, and the villager who had come in to buy nails to repair his garden fence gave a third version of the quarrel; but Snyder, the junior proprietor of the store, told the incident as it was colored by his partisanship for Lockwood and in a way the most damaging to Tom. He swore that Lockwood was really afraid of Tom, and that at Lockwood's suggestion he had himself got Blackman to speak to Tom's uncle about it. The young men followed who had heard Tom say, as he left town after his break with his uncle, that George Lockwood was the cause of all his troubles, and that Lockwood "had better not get in his way again, if he knew what was good for him."
Lincoln sat out that forenoon without making a note, without raising an objection, without asking the witnesses a question, and without a book or a scrap of paper before him. He did not break silence at all, except to waive the cross-examination of each witness. The impression made in Tom's favor by his voluntary appearance at the trial, when he might perhaps have got away, was by this time dissipated, and the tide set now overwhelmingly against him; and to this tide his self-contained lawyer had offered not the slightest opposition. It was a serious question even among the lawyers whether or not Lincoln had given up the case. But if he had given up the case, why did he not fight on every small point, as any other lawyer would have done, for the sake of making a show of zeal? To Allen, the public prosecutor, there was something annoying and ominous in Lincoln's silence; something that made him apprehensive of he knew not what.
When the court took its noon recess Barbara and her mother were in utter despondency. It seemed to them that Lincoln was letting the case go by default, while the prosecuting attorney was full of energetic activity.
"Abra'm," said Mrs. Grayson, intercepting Lincoln as he passed out of the bar with his hat drawn down over his anxious brows, "ain't ther' nothin' you kin do for Tom? Can't you show 'em that he never done it?"
"I'll do whatever I can, Aunt Marthy, but you must leave it to me." So saying, he quickly left her and pushed on out of the door, while his learned brethren gathered into a group within the bar, and unanimously agreed in condemning his neglect of every opportunity to break the force of the evidence against Tom. Why had he not objected to much of it, why had he not cross-questioned, why did he not ask for a change of venue yesterday?
When the sheriff and his deputy, at the close of this forenoon session, passed out of the court-house with Tom, there was a rush of people around and in front of them. Men and boys climbed up on wagons, tree stumps, and whatever afforded them a good view of the criminal. For the most part the people were only moved by that heartless curiosity which finds a pleasurable excitement in the sight of other people's woes, but there was also very manifest an increasing resentment toward Tom, and not a little of that human ferocity which is easily awakened in time of excitement and which reminds us of a sort of second cousinship that subsists between a crowd of men and a pack of wolves – or between a pack of men and a crowd of wolves.
When Tom found himself at length landed within the friendly prison walls, out of sight and hearing of the unfeeling crowd, he was in the deepest dejection. For what, indeed, that could happen now would be sufficient to turn back such a tide of popular condemnation? Barbara came to him presently with a dinner more relishable than that which the sheriff was accustomed to serve to prisoners, and all the way to the jail idle people had strolled after her; and though no one treated her with disrespect, she could hear them saying, "That's his sister," and their voices were neither sympathetic nor friendly. When she set down the tray on one of the stools in front of Tom, she kept her eyes averted from his, lest he should detect the despondency that she knew herself to be incapable of hiding. On his part, Tom made a feint to eat the food, for Barbara's sake. But after examining first one tid-bit and then another, essaying to nibble a little first at this and then at that, he got up abruptly and left the whole.
"'T isn't any use, Barb," he said, huskily. "I can't eat."
And Barbara, knowing how much need her brother had for all his self-control, did not trust herself to speak, but took up the tray and went out again, leaving Tom, when the deputy had locked the door, sitting alone on the bench with his head between his hands.
XXVII
LIGHT IN A DARK PLACE
The people who had seats in the court-room were, for the most part, too wise in their generation to vacate them during the noon recess. Jake Hogan clambered down from his uncomfortable window-roost for a little while, and Bob McCord took a plunge into the grateful fresh air, but both got back in time to secure their old points of observation. The lawyers came back early, and long before the judge returned the ruddy-faced Magill was seated behind his little desk, facing the crowd and pretending to write. He was ill at ease; the heart of the man had gone out to Tom. He never for a moment doubted that Tom killed Lockwood, but then a sneak like Lockwood "richly desarved it," in Magill's estimation. Judge Watkins's austere face assumed a yet more severe expression; for though pity never interfered with justice in his nature, it often rendered the old man unhappy, and therefore more than usually irascible.
There was a painful pause after the judge had taken his seat and ordered the prisoner brought in. It was like a wait before a funeral service, but rendered ten times more distressing by the element of suspense. The judge's quill pen could be heard scratching on the paper as he noted points for his charge to the jury. To Hiram Mason the whole trial was unendurable. The law had the aspect of a relentless boa-constrictor, slowly winding itself about Tom, while all these spectators, with merely a curious interest in the horrible, watched the process. The deadly creature had now to make but one more coil, and then, in its cruel and deliberate fashion, it would proceed to tighten its twists until the poor boy should be done to death. Barbara and the mother were entwined by this fate as well, while Hiram had not a little finger of help for them. He watched Lincoln as he took seat in moody silence. Why had the lawyer not done anything to help Tom? Any other lawyer with a desperate case would have had a stack of law-books in front of him, as a sort of dam against the flood. But Lincoln had neither law-books nor so much as a scrap of paper.
The prosecuting attorney, with a taste for climaxes, reserved his chief witness to the last. Even now he was not ready to call Sovine. He would add one more stone to the pyramid of presumptive proof before he capped it all with certainty. Markham was therefore put up to identify the old pistol which he had found in Tom's room. Lincoln again waived cross-examination. Blackman felt certain that he himself could have done better. He mentally constructed the questions that should have been put to the deputy sheriff. Was the pistol hot when you found it? Did it smell of powder? Did the family make any objection to your search? – Even if the judge had ruled out such questions the jury would have heard the questions, and a question often has weight in spite of rulings from the bench. The prosecuting attorney began to feel sure of his own case; he had come to his last witness and his great stroke.
"Call David Sovine," he said, wiping his brow and looking relieved.
"David Sovine! David Sovine! David Sovine!" cried the sheriff in due and ancient form, though David sat almost within whispering distance of him.
The witness stood up.
"Howld up your roight hand," said the clerk.
Then when Dave's right hand was up Magill rattled off the form of the oath in the most approved and clerkly style, only adding to its effect by the mild brogue of his pronunciation.
"Do sol'm swear 't yull tell th' truth, th' 'ole truth, en nuthin' b' th' truth, s' yilpye God," said the clerk, without once pausing for breath.
Sovine ducked his head and dropped his hand, and the solemnity was over.
Dave, who was evidently not accustomed to stand before such a crowd, appeared embarrassed. He had deteriorated in appearance lately. His patent-leather shoes were bright as ever, his trousers were trimly held down by straps, his hair was well kept in place by bear's oil or what was sold for bear's oil, but there was a nervousness in his expression and carriage that gave him the air of a man who has been drinking to excess. Tom looked at him with defiance, but Dave was standing at the right of the judge, while the prisoner's dock was on the left, and the witness did not regard Tom at all, but told his story with clearness. Something of the bold assurance which he displayed at the inquest was lacking. His coarse face twitched and quivered, and this appeared to annoy him; he sought to hide it by an affectation of nonchalance, as he rested his weight now on one foot and now on the other.
"Do you know the prisoner?" asked the prosecutor, with a motion of his head toward the dock.
"Yes, well enough"; but in saying this Dave did not look toward Tom, but out of the window.
"You've played cards with him, haven't you?"
"Yes."
"Tell his Honor and the jury when and where you played with him."
"We played one night last July, in Wooden & Snyder's store."
"Who proposed to Tom to play with you?"
"George Lockwood. He hollered up the stove-pipe for Tom to come down an' take a game or two with me."
"What did you win that night from Tom?"
"Thirteen dollars, an' his hat an' coat an' boots, an' his han'ke'chi'f an' knife."
"Who, if anybody, lent him the money to get back his things which you had won?"
"George Lockwood."
Here the counsel paused a moment, laid down a memorandum he had been using, and looked about his table until he found another; then he resumed his questions.
"Tell the jury whether you were at the Timber Creek camp-meeting on the 9th of August."
"Yes; I was."
"What did you see there? Tell about the shooting."
Dave told the story, with a little prompting in the way of questions from the lawyer, substantially as he had told it at the coroner's inquest. He related his parting from Lockwood, Tom's appearance on the scene, Tom's threatening speech, Lockwood's entreaty that Tom would not shoot him, and then Tom's shooting. In making these statements Dave looked at the stairway in the corner of the court-room with an air of entire indifference, and he even made one or two efforts to yawn, as though the case was a rather dull affair to him.
"How far away from Mason and Lockwood were you when the shooting took place?" asked the prosecutor.
"Twenty foot or more."
"What did Tom shoot with?"
"A pistol."
"What kind of a pistol?"
"One of the ole-fashion' sort – flint-lock, weth a ruther long barrel."
The prosecuting lawyer now beckoned to the sheriff, who handed down to him, from off his high desk, Tom's pistol.
"Tell the jury whether this looks like the pistol."
"'T was just such a one as that. I can't say it was that, but it was hung to the stock like that, an' about as long in the barrel."
"What did Grayson do when he had shot George, and what did you do?"
"Tom run off as fast as his feet could carry him, an' I went up towards George, who'd fell over. He was dead ag'inst I could get there. Then purty soon the crowd come a-runnin' up to see what the fracas was."
After bringing out some further details Allen turned to his opponent with an air of confidence and said:
"You can have the witness, Mr. Lincoln."
There was a brief pause, during which the jurymen changed their positions on the hard seats, making a little rustle as they took their right legs from off their left and hung their left legs over their right knees, or vice versa. In making these changes they looked inquiringly at one another, and it was clear that their minds were so well made up that even a judge's charge in favor of the prisoner, if such a thing had been conceivable, would have gone for nothing. Lincoln at length rose slowly from his chair, and stood awhile in silence, regarding Sovine, who seemed excited and nervous, and who visibly paled a little as his eyes sought to escape from the lawyer's gaze.
"You said you were with Lockwood just before the shooting?" the counsel asked.
"Yes." Dave was all alert and answered promptly.
"Were you not pretty close to him when he was shot?"
"No, I wasn't," said Dave, his suspicions excited by this mode of attack. It appeared that the lawyer, for some reason, wanted to make him confess to having been nearer to the scene and perhaps implicated, and he therefore resolved to fight off.
"Are you sure you were as much as ten feet away?"
"I was more than twenty," said Dave, huskily.
"What had you and George Lockwood been doing together?"
"We'd been – talking." Manifestly Dave took fresh alarm at this line of questioning.
"Oh, you had?"
"Yes."
"In a friendly way?"
"Yes, tubby shore; we never had any fuss."
"You parted from him as a friend?"
"Yes, of course."
"By the time Tom came up you'd got – how far away? Be careful now."
"I've told you twiste. More than twenty feet."
"You might have been mistaken about its being Tom then?"
"No, I wasn't."
"Did you know it was Tom before he fired?"
"Tubby shore, I did."
"What time of night was it?"
"Long towards 10, I sh'd think."
"It might have been 11?"
"No, 't wusn't later'n about 10." This was said doggedly.
"Nor before 9?"
"No, 't wus nigh onto 10, I said." And the witness showed some irritation, and spoke louder than before.
"How far away were you from the pulpit and meeting-place?"
"'Twixt a half a mile an' a mile."
"Not over a mile?"
"No, skiercely a mile."
"But don't you think it might have been a little less than half a mile?"
"No, it's nigh onto a mile, I didn't measure it, but it's a mighty big three-quarters."
The witness answered combatively, and in this mood he made a better impression than he did on his direct examination. The prosecuting attorney looked relieved. Tom listened with an attention painful to see, his eyes moving anxiously from Lincoln to Dave as he wondered what point in Dave's armor the lawyer could be driving at. He saw plainly that his salvation was staked on some last throw.
"You didn't have any candle in your hand, did you, at any time during the evening?"
"No!" said Dave, positively. For some reason this question disconcerted him and awakened his suspicion. "What should we have a candle for?" he added.
"Did either George Lockwood or Tom have a candle?"
"No, of course not! What 'd they have candles for?"
"Where were the lights on the camp-ground?"
"Closte by the preachers' tent."
"More than three-quarters of a mile away from the place where the murder took place?"
"Anyway as much as three-quarters," said Dave, who began to wish that he could modify his previous statement of the distance.
"How far away were you from Lockwood when the murder took place?"
"Twenty feet."
"You said 'or more' awhile ago."
"Well, 't wusn't no less, p'r'aps," said Dave, showing signs of worry. "You don't think I measured it, do yeh?"
"There were no lights nearer than three-quarters of a mile?"
"No," said the witness, the cold perspiration beading on his face as he saw Lincoln's trap opening to receive him.
"You don't mean to say that the platform torches up by the preachers' tent gave any light three-quarters of a mile away and in the woods?"
"No, of course not."
"How could you see Tom and know that it was he that fired, when the only light was nearly a mile away, and inside a circle of tents?"
"Saw by moonlight," said Sovine, snappishly, disposed to dash at any gap that offered a possible way of escape.
"What sort of trees were there on the ground?"
"Beech."
"Beech-leaves are pretty thick in August?" asked Lincoln.
"Ye-es, ruther," gasped the witness, seeing a new pitfall yawning just ahead of him.
"And yet light enough from the moon came through these thick beech-trees to let you know Tom Grayson?"
"Yes."
"And you could see him shoot?"
"Yes."
"And you full twenty feet away?"
"Well, about that; nearly twenty, anyhow." Dave shifted his weight to his right foot.
"And you pretend to say to this court that by the moonlight that you got through the beech-trees in August you could even see that it was a pistol that Tom had?"
"Ye-es." Dave now stood on his left foot.
"And you could see what kind of a pistol it was?" This was said with a little laugh very exasperating to the witness.
"Yes, I could," answered Dave, with dogged resolution not to be faced down.
"And just how the barrel was hung to the stock?" There was a positive sneer in Lincoln's voice now.
"Yes." This was spoken feebly.
"And you twenty feet or more away?"
"I've got awful good eyes, an' I know what I see," whined the witness, apologetically.
Here Lincoln paused and looked at Sovine, whose extreme distress was only made the more apparent by his feeble endeavor to conceal his agitation. The counsel, after regarding his uneasy victim for a quarter of a minute, thrust his hand into the tail-pocket of his blue coat, and after a little needless fumbling drew forth a small pamphlet in green covers. He turned the leaves of this with extreme deliberation, while the court-room was utterly silent. The members of the bar had as by general consent put their chairs down on all-fours, and were intently watching the struggle between the counsel and the witness. The sallow-faced judge had stopped the scratching of his quill, and had lowered his spectacles on his nose, that he might study the distressed face of the tormented Sovine. Mrs. Grayson's hands were on her lap, palms downward; her eyes were fixed on Abra'm, and her mouth was half open, as though she were going to speak.
Barbara found it hard to keep her seat, she was so eager for Lincoln to go on, and Tom was leaning forward breathlessly in the dock; his throat felt dry, and he choked when he tried to swallow; it seemed to him that he would smother with the beating of his heart. But it was worth while to turn away from these more interested parties to look for a moment at the ruddy face of Bob McCord, which was puckered to a kind of focus with an expression that was customary with him in a moment of supreme interest, as when he was drawing a sure bead on a bear or deer. It was worth while to regard Rachel Albaugh, who had lifted the veil from her face radiant with interest. Lincoln appeared to be the only perfectly deliberate person in the room. He seemed disposed to protract the situation as long as possible. He held his victim on the rack and he let him suffer. He would turn a leaf or two in his pamphlet and then look up at the demoralized witness, as though to fathom the depth of his torture and to measure the result. At last he fixed his thumb firmly at a certain place on a page and turned his eyes to the judge.
"Now, your Honor," he said to the court, "this witness," with a half-contemptuous gesture of his awkward left hand toward Sovine, "has sworn over and over that he recognized the accused as the person who shot George Lockwood, near the Union camp-meeting on the night of the 9th of last August, and that he, the witness, was standing at the time twenty feet or more away, while the scene of the shooting was nearly a mile distant from the torches inside the circle of tents. So remarkably sharp are this witness's eyes that he even saw what kind of pistol the prisoner held in his hands, and how the barrel was hung to the stock, and he is able to identify this pistol of Grayson's as precisely like and probably the identical weapon." Here Lincoln paused and scrutinized Sovine. "All these details he saw and observed in the brief space of time preceding the fatal shot, – saw and observed them at 10 o'clock at night, by means of moonlight shining through the trees – beech-trees in full leaf. That is a pretty hard story. How much light does even a full moon shed in a beech woods like that on the Union camp-ground? Not enough to see your way by, as everybody knows who has had to stumble through such woods." Lincoln paused here, that the words he had spoken might have time to produce their due effect on the judge, and especially on the slower wits of some of the jury. Meanwhile he turned the leaves of his pamphlet. Then he began once more: "But, may it please the court, before proceeding with the witness I would like to have the jury look at the almanac which I hold in my hand. They will here see that on the night of the 9th of last August, when this extraordinary witness" – with a sneer at Dave, who had sunk down on a chair in exhaustion – "saw the shape of a pistol at twenty feet away, at 10 o'clock, by moonlight, the moon did not rise until half-past 1 in the morning."
Sovine had been gasping like a fish newly taken from the water while Lincoln uttered these words, and he now began to mutter something.
"You may have a chance to explain when the jury get done looking at the almanac," said the lawyer to him. "For the present you'd better keep silence."
There was a rustle of excitement in the court-room, but at a word from the judge the sheriff's gavel fell and all was still. Lincoln walked slowly toward the jury-box and gave the almanac to the foreman, an intelligent farmer. Countrymen in that day were used to consulting almanacs, and one group after another of the jurymen satisfied themselves that on the night of the 9th, that is, on the morning of the 10th, the moon came up at half-past 1 o'clock. When all had examined the page, the counsel recovered his little book.
"Will you let me look at it?" asked the judge.
"Certainly, your Honor"; and the little witness was handed up to the judge, who with habitual caution looked it all over, outside and in, even examining the title-page to make sure that the book was genuine and belonged to the current year. Then he took note on a slip of paper of the moon's rising on the night of August 9 and 10, and handed back the almanac to Lincoln, who slowly laid it face downward on the table in front of him, open at the place of its testimony. The audience in the court-room was utterly silent and expectant. The prosecuting attorney got half-way to his feet to object to Lincoln's course, but he thought better of it and sat down again.