CHAPTER 17
It was a leisurely weekend with the judge and Elwood spending a good portion of their time in the rocking chairs on the front porch while Bannack helped Henry build a couple of new stalls in the barn. Then John took the buckskin for a long ride across the river again on Sunday afternoon. He was not particularly looking forward to spending Monday morning in the courtroom, but the judge said the trial would be over by dinnertime, so that wasn’t a whole day wasted in the courtroom. After a big breakfast, the judge, Elwood, and Bannack rode into town and left their horses at Sam Garland’s stable, then took the short walk to the courthouse.
The trial the judge was presiding over this morning was a charge of murder against a young man named Billy Duncan. According to witnesses, Billy and his brothers, Davy and Luke were drinking heavily in the Briar Patch, a small saloon at the south end of town. A couple of cowhands from a ranch three miles from Austin complained that the Duncan brothers were getting too rowdy and making too much noise. One thing led to another and it ended up with one of the cowhands being shot in the back and the accused shooter was Billy Duncan, according to witnesses at the Briar Patch. With a warrant for his arrest, a couple of deputy US marshals were sent to Caleb Duncan’s little ranch to take Billy back to Austin to stand trial. Warned beforehand of the likelihood of armed resistance to the arrest by the whole Duncan clan, the two deputies decided it in their best interest to kidnap their suspect if the opportunity could be arranged. With that in mind, they found a place where they could watch the house without being seen. And from that lookout, they watched the Duncan men come out after breakfast to go to work. Studying each Duncan through their field glasses, they identified Billy by his lack of a mustache, in comparison to his two brothers, who grew thick bushy ones. This supplied by the eyewitnesses. All three brothers went into the barn and came out minutes later on horses. They split up then, with one of the brothers riding out in one direction while Billy and his other brother rode in a different direction.
It would have been better had Billy been the one who rode off alone, but at least two against two was better than two against three. They followed Billy and his brother Davy until they had an opportunity to surprise them. Then they made their arrest, taking the guns of both, but putting Davy’s gun in his saddlebag. They rode away with Billy as well as Davy’s horse, leaving him on foot. They told him they would let the horse go free after a mile but actually let the horse go after about two and a half miles. So Billy Duncan was arrested and taken back for trial, avoiding what certainly would have been a gunbattle with the odds against the deputies. Sunday night, Billy was transported from his jail cell to a holding cell in the courthouse.
Concerned about the chance of disruption of the proceedings by members of the Duncan family, the US marshal assigned the two deputy marshals who had made the arrest to attend the trial. Consequently, the judge, Elwood, and Bannack were stopped when they entered the back door of the courtroom. One look at the menacing figure with the judge and Elwood caused immediate concern for the deputy marshal at that door. “Just hold it right there,” the deputy demanded. “There ain’t gonna be no guns allowed in the courtroom. What are you doin’, comin’ in the back door, anyway? Go back and come in the front door and leave your gun with the deputy there.” He rested his hand on the handle of his six-gun as he watched Bannack carefully.
“I’m Judge Wick Justice,” the judge said. “I’m the presiding judge over this trial this morning. This is John Bannack. He works for me and is authorized to wear a sidearm. His job is to ensure order, since in most cases, we don’t have the services of the US Marshal Service. So, in the event of trouble in this trial, he’ll be one more to help you and the other deputy.” He waited for the deputy to think it over.
“All right then,” the deputy finally said, “since you’re the judge, I reckon it’s all right. I’ll tell the other deputy.” He stepped aside and nodded to Bannack as they walked into the little room behind the bench.
A little before nine, Elwood went into the courtroom to make sure everything was where it should be to please the judge before he arranged his pads and papers in preparation for recording the trial. Bannack went with him to position himself to watch the proceedings. There were three eyewitnesses on the front row and a few spectators behind them in the courtroom, all of whom were the usual spectators at every trial. Bannack heard what sounded like an argument outside the front door, so he decided to see what the trouble was. Maybe that’s what I’m supposed to do, he thought, still not sure exactly what his duties were. He found the two deputy marshals confronted by three men obviously arguing about the weapons the three men were wearing. The older of the three looked up and pointed at Bannack. “He’s wearin’ a gun and he just came from inside the courtroom.”
One of the two deputies gave Bannack a startled look. The other, who was the deputy at the back door earlier, responded. “He’s an official of the court. He’s authorized to wear a weapon. You oughta know there’s a city ordinance against wearin’ a side arm in this part of town. You have to leave those weapons out here, if you wanna go inside and watch the trial.”
“Damn it, I done told you,” Caleb Duncan complained, “we’re family. Billy Duncan is my son and these two boys are his brothers. We got a right to hear his trial.”
“Yes, sir, you do, but your guns don’t,” Bannack said. “So shuck ’em off and give ’em to the deputy marshal. The trial’s fixin’ to start.”
No one made a move for several seconds as Caleb considered his chances against the two lawmen and the formidable figure standing in the doorway. “All right, boys,” he finally told his sons, “I reckon we have to respect the law.” He unbuckled his gun belt and handed it to one of the deputies. Davy and Luke reluctantly did the same. One of the deputies took all three guns and placed them in a chair by the door. “What’s gonna keep somebody from stealin’ them guns?” Caleb asked.
“I’ll be right here guardin’ ’em,” the deputy said. “You can have ’em back on your way out.”
They walked on inside the courtroom and sat down near the front, just as the prosecutor, Alvin McClain, a lawyer, walked in a side door and sat down at one of the small tables in front of the bench. Right after that, Sheriff Nicholson escorted the prisoner, Billy Duncan, his hands cuffed, into the courtroom and sat him down at the other small table. Elwood stood up and walked over in front of the bench to announce, “All rise. The court is now in session, the Honorable Judge Wick Justice presiding.”
The judge walked in and sat down behind the bench and smacked his gavel down hard. “You may be seated.” He looked at Elwood and said, “Will the clerk read the charges?” After Elwood read the charges brought against Billy Duncan, including murder and destruction of property, the judge asked Billy to rise. “You’ve heard the charges made against you. How do you plead?”
“Not guilty, Your Honor,” Billy said. “I never murdered nobody.”
“Your Honor,” Alvin McClain charged, “the evidence will show that Billy Duncan shot the deceased, Wayne Jackson in the back when he was walking out the door of the Briar Patch saloon.”
“That’s a dad-blame lie!” Billy blurted.
“You just hold your tongue, young man,” Judge Wick told him. “You’ll get your chance to tell your side of the story.” Billy had rejected the offer of a public defender, insisting that he could speak for himself. Judge Wick turned back to the prosecutor then. “You mentioned evidence, what evidence do you have to prove the victim was shot in the back?”
“Mr. Wayne Jackson’s body with a bullet hole neatly placed between his shoulder blades in the center of his back,” McClain replied. “It was a little too unhandy to bring it into the courtroom, but Your Honor, the body is on display for you to examine at the Austin Funeral Home. Or, if it’s more convenient, I have a description of the wound, signed by the mortician, Mr. Theodore Reece.” He walked forward and handed Justice the paper.
“Very well, Mr. McClain. I’ll accept this as proof that the victim was shot in the back. What evidence do you have to substantiate your claim that the defendant is the person who fired the shot in the victim’s back?”
Billy jumped up from his chair at that point. “I never went to shoot him in the back!” he fairly yelled. “It was a face off and he went yeller and turned on me!”
The sheriff grabbed the back of his collar and sat him back down. “The judge will tell you when you can speak,” Sheriff Nicholson told him.
“Your Honor,” McClain continued, “I have four witnesses picked out of the patrons who were present at the time of the shooting in the Briar Patch. They will all testify that Wayne Jackson turned and started to walk out of the saloon and Billy Duncan took dead aim and shot him in the back.”
“Call your first witness,” Judge Justice said.
“I call Jason Rivers to the witness stand,” McClain said. A bald, middle-aged man came forward, and Elwood got up to meet him, holding a Bible.
“Place your left hand on the Bible and raise your right hand,” Elwood said. “Do you swear what you are about to testify is the truth, the whole truth, and nothing but the truth, so help you God?”
“I do,” Jason said.
“Now, Mr. Rivers, do you see the man that shot Wayne Jackson in this courtroom?”
“Well, no, I don’t see the man who shot Wayne Jackson in this courtroom,” Jason answered.
“You don’t?” McClain responded, startled.
“No, sir,” Jason answered. “I do see the man who shot Wayne Jackson in the Briar Patch, though. He’s settin’ right over yonder.” He pointed to Billy Duncan.
“Right, Mr. Rivers,” McClain said, relieved. “Your Honor, please notice that the witness pointed to Billy Duncan.” He turned back to Jason then. “I wonder, Mr. Rivers, if you could tell the court how Wayne Jackson got shot in that saloon.”
“Yes, sir,” Jason said, “it was like this. Billy Duncan and two other fellers that looked like them two settin’ right there with the old man, was drinkin’ whiskey and makin’ a lot of noise. It got to where it was hard to hear the fellers you was trying to talk to at your table. So that feller, Wayne Jackson, finally told ’em they was makin’ too much noise. I heard him tell ’em he couldn’t hear the fellers he was trying to talk to at his table, so would they kindly hold it down a little bit? Well, Billy told him . . .” He paused to try to remember it word for word and nodded when he thought he had it. “That’s when Billy drew his six-gun and fired two shots over Wayne’s head that busted the front window out. Then Billy said, ‘Did you hear that?’ Well, that sure enough stopped all the noise in the place. Wayne told him he didn’t much appreciate him firin’ his pistol over his head like that. And Billy said he’d aim a little bit lower if Wayne was man enough to stand up and face him in a shoot-out. Well, sir, Wayne got up from his chair and told him he wasn’t about to shoot it out with a damn drunk. After he said that, he turned around and started for the door, and that’s when Billy shot him.”
“In the back, while he was leaving?” McClain clarified.
“Yes, sir,” Jason answered.
“He’s lyin’!” Billy exclaimed, on his feet again until Nicholson jerked him back down again and threatened to stuff a gag in his mouth. Then Judge Justice told Billy that he was going to have the opportunity to tell his side of the story and to remain silent until then.
Seated on the side of the courtroom where he could watch the bench and the spectators, too, Bannack kept an eye on Billy’s father and his brothers, thinking them the main potential for trouble, if there was to be any. So far, the only sign they showed of causing a problem was when Billy jumped to his feet. The rest of the time, his brothers appeared bored and sleepy while his father fidgeted constantly.
McClain called two more witnesses to the shooting and they both agreed with Jason Rivers’ version of the shooting. Then Judge Justice gave Billy his chance to refute the testimony of the eyewitnesses and give his own recollection of the encounter. “In the first place, Judge, it weren’t like that a-tall in that saloon,” he began. “Me and my brothers was havin’ a little drink of likker. We mighta been laughin’ and talkin’ loud, but it weren’t no louder’n anybody else in there. And then this feller, Wayne Jackson, says he’s gonna throw us outta there. And that’s when I made a mistake, and I’m ready to own up to it. I wanted to show him that me and my brothers weren’t scared of him, so I pulled my six-gun and put a shot through the window.” He paused to point toward the eyewitnesses. “They said it was two shots. I don’t remember but one and I’m sorry about that. I thought the window was open. It looked like it was open to let some of the smoke outta the place. I never meant to bust that window out. Well, I reckon he thought I was callin’ him out, ’cause he got on his feet and faced me like he was ready to draw down on me. Well, I weren’t gonna back down, but I reckon he turned yeller of a sudden. He started to make a move for his gun, but decided to turn and run. But it was too late then ’cause I drew and fired when he started to reach for his gun. If he was gonna turn and run, he shoulda done that in the first place, instead of makin’ a move for his gun. So you see, Judge, it was an accidental shootin’.”
“Are you going to stick with that story, Mr. Duncan?” Judge Justice asked.
“Yes, sir, that’s the way it happened, just a bad accident,” Billy replied. “I don’t know what the man was thinkin’, to act like he was gonna draw and then turn and run. Looks like he’da knowed if he made a move for his gun, I’d go for mine.”
“I have to say you’ve got quite an imagination, Mr. Duncan,” the judge remarked. He was about to say more but was interrupted when Caleb Duncan got up from his seat.
“Judge, I’ve got somethin’ to say,” Caleb called out. “You call this a fair trial and ain’t nobody said nothin’ but that fancy lawyer for the prosecution. I got two eyewitnesses right here that say what Billy just said is the way it really happened. Is Your Honor gonna take that in consideration with what them other witnesses said?”
The judge looked at him and the two younger men beside him for a few moments before answering. Then he decided. “Yes, I’ll take that under consideration. State your name for the court.”
“Caleb Duncan,” he answered.
“And what are the names of your two eyewitnesses?”
“Davy Duncan and Luke Duncan, they was both there at the time.”
“So Mr. Duncan, I assume that you are Billy Duncan’s father and you say that his two brothers are willing to testify that his testimony just given is accurate.”
“That’s what I’m sayin’,” Caleb answered.
“Duly noted,” the judge said, “we’ll enter that in the records. It won’t be necessary for your sons to give their testimony individually.” He addressed the jury of six men then and directed them to retire to the jury room to make their judgement.
“That won’t be necessary, Your Honor,” Theodore Reece said. “We took a quick vote and we’re all agreed on the verdict.”
“Very well,” Judge Justice replied. He banged his gavel again and announced, “After seeing the evidence and hearing the testimony of the witnesses, the jury has reached a verdict. What say you, Mr. Foreman?”
“We find the accused guilty of all charges,” Reece answered.
Judge Justice expected no less. “In the case of the state of Texas against Billy Duncan, the state finds the accused, Billy Duncan, guilty of the voluntary manslaughter of Wayne Jackson and is sentenced to death by hanging, the sentence to be carried out within thirty days of this date.”
Only five people moved at the saying of the verdict, since all others in the courtroom expected it. Billy went rigidly stiff as the deputy marshals each grabbed an arm to hurriedly escort him out of the courtroom. Davy and Luke both jumped to their feet to curse the judge and his decision. One alone, came prepared for such a verdict. Caleb Duncan reached inside his coat pocket to clutch the derringer pocket pistol he had concealed there. Only six-inches long and weighing about eight ounces, it was easily overlooked by the deputy marshal who took his gun belt. He got to his feet, his eyes locked on Judge Wick Justice, only one thought in mind, to kill the man who had just killed his son. He took a step toward the judge and drew the derringer from his pocket, only to feel his hand trapped in a steel-like vise that was Bannack’s hand. He struggled helplessly to try to free the weapon from the hand that forced his arm to point to the floor, squeezing so hard until he was forced to pull the trigger and send a bullet into the floor. Only then was everyone else aware of what had happened. The sheriff reacted at once to cover Caleb and his two sons. Bannack pulled the derringer out of Caleb’s limp hand and handed it to Sheriff Nicholson. “It’s a two shot, so I reckon there’s another bullet in it,” Bannack said.
“Sneaked it by the deputies, huh?” Sheriff Nicholson said to Caleb. “I reckon you just earned yourself a little more time to visit your son while you’re in my jail until Judge Justice decides what to do with you.” Then he turned to Davy and Luke. “Now, let’s see what you two out-standin’ young men have got on your minds.”
“Don’t cause no trouble, boys,” Caleb said. “Somebody’s gotta take care of the farm while they do whatever they’re gonna do with me. You go on home. Your ma’s there by herself, and she can’t make it without you boys.”
“Listen to your pa, boys,” Nicholson said. “He’s tellin’ you the right thing to do.”
Judge Justice and Elwood, both frozen for a few minutes after the gunshot, stood watching the confrontation going on with the Duncan men. “That, right there, is why I got him out of prison and put him to work for me,” the judge said to Elwood.
“Amen,” Elwood replied. “It looks like Sheriff Nicholson is going to take the old man to jail. Are you going to press any charges against him?”
“I don’t know. I was just thinking about that, myself. I know the man is really upset with me after I just sentenced his son to be executed. I don’t know if his reactions were just of the moment and he might forget about thoughts of revenge after he realizes his son got what any man would get in a court of law. Maybe I’ll just let Nicholson keep him in jail for a while and see if he cools down.”
“Even if he does,” Elwood said, “what’s gonna keep him from going crazy again when we have the hanging?”
“Makes you wonder why any man would want to be a judge, doesn’t it?”
Bannack took the three gun belts from the sheriff and walked Davy and Luke back to their horses. “If you’re smart, you’ll do like your pa told you,” he said. “I don’t know for sure, but I expect the sheriff will hold him in jail for a few days and then let him go. He could send him to prison for a couple of years just for drawin’ a weapon in a court of law. But Judge Justice is a fair man. He knows how hard this is to see a son sentenced to die. But there’s one thing you two have to accept. Billy did the crime. He killed a man and it happened just the way those witnesses said it did. You were there, so you know the truth. You shoot a man in the back, you oughta pay for it. Here are your guns. Which one belongs to your pa?” When Davy pointed to it, Bannack hung it on the saddle horn of the horse they pointed out. Then he gave them back their belts. “Sheriff Nicholson unloaded all three of the guns, just for safety sake, but he put the cartridges in the belts.” He stepped back and watched them climb up on their horses and continued to watch them until they rode out the south end of the street.