Winding Stair (9781101559239) (26 page)

“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.”

Judge Parker turned to the witness stand and bent toward Moma July.

“Mr. July, when you apprehended the defendant, were you acting as a member of a federal posse?”

“That was what I thought,” Moma July said.

“Your Honor,” McRoy said, becoming agitated. “I ask the jury be excused for any comments you make on my motion.”

“That won't be necessary. The jury is here to decide on the indictment. Any question of jurisdiction will be determined by the court.”

“Your Honor, I ask an exception.”

“It will be noted in the record. Now, Mr. McRoy, let me explain that it has been found on recent appeal that Negroes who reside in Indian Territory, no matter their tribal affiliation, are under the jurisdiction of this court. Further, recently it has been the intent of Congress that all murders committed in The Nations be tried in this court. Finally, sir, when parties to such a crime committed against an officer of this court are taken into custody by officers of the court indicted by the grand jury, and brought before this bar, they will be tried here, no matter the victim's race or complexion or former heritage. Therefore, your motion is denied.”

“I ask an exception and further suggest, Your Honor, that your statements are prejudicial to my client,” McRoy said.

Parker's face was rigid, his lips tight-pressed, as the color rose in his cheeks. I could feel the tension in the room as we all waited for his reply to this unprecedented questioning of the court's authority. But it passed quickly as Parker said, his voice low and under control, “Your exception will be noted. Are you finished with the witness?”

McRoy took his seat and Evans was up for redirect.

“Mr. July, have you ever before arrested a man without a warrant?”

“A lot of times, when I was right in after him.”

“Do you know what that is called? Being ‘right in after him'?”

“No, I guess not, except it's when you haven't got time to get a warrant or your man will get away from you.”

“Exactly. It is called an arrest being made in hot pursuit.”

“Is prosecution making a summation?” McRoy asked, almost casually.

“Mr. Evans, hold your comments for closing,” Parker said.

“Thank you, Your Honor. I am finished with this witness.”

“If there is no recross, the witness is excused,” Parker said.

“The government rests,” Evans said.

“Mr. McRoy, are you ready to present the case for the defendants?”

“Your Honor, I move for a directed verdict of not guilty.”

“Overruled. Present your case, Mr. McRoy.”

McRoy called Wanada Deer and she came from the outer hall escorted by a deputy marshal. As when I first saw her, she was wearing a calico dress and shawl, and the man's hat was on her head. Beneath its wide brim the features of her dark, wrinkled face were twisted. As she sat on the high witness stand, I could see she was wearing lace boots. Throughout the questioning, she kept the hat on her head.

With her came a court interpreter, and through him she was sworn in in Yuchi.

“You are the mother of Rufus Deer?” McRoy asked. Through the interpreter, she said she was.

“On the night of your son's death, where were you?”

“At Low Hawk's store. On the back porch.”

“In the Creek Nation?”

“Yes.”

“Did you see the shooting that occurred there?”

“Yes. I saw it. My son came to the end of Louie Low Hawk's barn and Burris Garret came on the porch. My son had a friend with him from the Seminole.”

“The Seminole Nation?”

“Yes. I don't remember his name. My son had been hiding with this man. He was hiding because they were after him for a thing he did not do.”

Evans started to rise, but then shrugged and let it continue.

“Had you seen your son that day?”

“Yes. He was hiding on our farm, with the Seminole. My husband and me went to Low Hawk Corners to buy things and it started raining. We stayed the night. Before we left the farm, my son told me he was coming in to give himself up to Burris Garret. So he did, and I saw him when he came to the Corners.”

“Did he call out to Garret?”

“No. The Seminole did.”

“What did he say?”

“The Seminole helloed Burris Garret's name and when Burris Garret came out, the Seminole said my son had come in to give up. He said Rufus had come to give up.”

“What happened then?”

“Burris Garret shot my son.” There was a stir in the courtroom, like a faint sigh.

McRoy paused for a moment, looking down at the floor, his chin in one uplifted hand. After he had the suspenseful effect he wanted, he continued.

“At that time, had your son and the Seminole fired?”

“No. When the Seminole said Rufus had come to give up, Burris Garret shot him, and then the Osages shot and there was a lot of shooting.”

“There was lightning, wasn't there?”

“Yes. I could see Rufus at the corner of the barn, and the Seminole.”

“Do you know this man?” and McRoy pointed at Smoker Chubee. Chubee had begun to watch carefully.

“Yes. That's Smoker.”

“How long have you known him?”

“Since he was a little boy,” she said.

“Was he at the barn with your son that night?”

“No. It was a Seminole.”

Evans took the witness. Her black eyes glared at him defiantly.

“Mrs. Deer, you said your son was going in to give himself up to Burris Garret. How did he know Garret was at the Corners?”

“He told me that morning he'd heard Garret would be there. I don't know who told him.”

“This Seminole, when he called out, did he speak English?”

“No. He spoke Creek.”

“But, Mrs. Deer, other witnesses have testified whoever spoke did so in English. One witness cannot even understand Creek.”

“Maybe it was English. I was excited.”

“Mrs. Deer, if it was English, how did you understand it?”

“I speak English.”

“If you speak English, why are you testifying through an interpreter?”

“I don't speak English that good.”

“Very well. Now, this Seminole. Where is he?”

“I guess he ran off, out of the country, because he was afraid.”

And that was all of it. McRoy rested his case on the one witness, and Evans whispered to me that he had to. There had been no Seminole nor hunters either, else McRoy would have been screaming for a continuance in order to find them. I hoped Evans was right.

When Merriweather McRoy rose to make his argument, one would have thought him the minister of a revival tent meeting. I began to mark the times he called on God in His mercy. Before he was finished, he had done so twenty-seven times, which amounted to about once each minute that he spoke. He harped on the question of jurisdiction and returned again and again to Mrs. Deer's testimony, a mother mourning for the soul of her son and surely in that state not inclined to commit perjury. He cast aspersions on the character and credibility of every defense witness. In his words, I became the young and inexperienced thrill seeker down from Saint Louis to dabble in the serious business of other people.

Evans confined his remarks to one sentence.

“Gentlemen, it's very hot in here and I see no reason to keep you any longer than necessary because the evidence speaks for itself.”

Judge Parker's charges to the jury were sometimes long and complex, but on this day he was brief, dealing primarily with the jury's determination of whether Burris Garret knew he was dying when he spoke the defendant's name. The case went to the jury at ten forty-five, just a little more than two hours after testimony had begun.

F
or many years, the images of that muggy day would come uninvited to darken the memory of my time in Fort Smith, for there was more than the murder trial of Smoker Chubee. It was the day we found the note, and the day Emmitt tried to run away from his fears, and the day we finally knew there was no longer a chance to bring anyone to the bar for the killing on Hatchet Hill Road.

When the jury retired, I went into the main hallway, pressed along by the crowd that had suddenly gone noisy and high-spirited. It reminded me of an intermission at one of the Gilbert and Sullivan plays at the Opera House. At the end of the hall, before the doors marked WHITE MEN and WHITE WOMEN, there were queues of people. Almost none stood at the COLORED MEN and COLORED WOMEN doors. There were some Indians among them, but I saw only two Negro men. I pushed my way through the throng to the front of the building and had just lighted a cigarette, standing on the porch hoping for some small breeze, when a bailiff came and told me Judge Parker requested my presence in his chambers.

I found Judge Parker and Evans, both in shirtsleeves now, and both in a high state of agitation. Parker sat at his desk, drumming his fingers. His mouth was set in a hard line and his heavy brows were pinched together in a frown. Evans was pacing, red-faced, waving about a small piece of paper. His pince-nez perched at the end of his nose, and each time they seemed ready to fall off he pushed at them with a vicious little jab of his hand. On a side table was lemonade, chunks of ice floating in it and the pitcher beaded with pearls of cool moisture. Empty glasses were waiting and I knew they had not been touched.