[Levell White, The Judge's Story, The Overland Monthly, November 1873]

 

1873.]  THE JUDGE'S STORY.

 

THE JUDGE'S STORY.

            "I don't see how I could have done more for him than I did ; but still the man should not have been punished — he should have been acquitted."

            With these words the Judge awoke to the consciousness that he had a fellow-traveler ; and then, as if some explanation of his remark would be in order, he went on :

            "We had a very interesting trial in Austin last week. Tom Carberry — Irish Tom, he is called — was tried for murder. I defended him, and never struggled harder for a client in my life. For a week before, and throughout the trial, I worked night and day to look up testimony, and to present the case to the jury in the best possible light. I consulted with all the attorneys not engaged for the prosecution. We got him off with three years in the penitentiary ; but he ought not to have been punished — he should have been acquitted."

            The fellow - passenger queried as to the circumstances attending the alleged murder, and the Judge answered :

            "They were very peculiar, and that is the reason why the trial was so very interesting. A woman up in Montana, who never saw Tom Carberry, thought

458      THE JUDGE'S STORY.         [Nov.

that he had done her great wrong ; and so, when she was asked, as the phrase is, to 'take up with a new man,' she named her terms :

            "Kill Tom Carberry, of Austin, Nevada.'

            "'But I never saw nor heard of the man,' said the Montana aspirant.

            "'Nevertheless,' said she, 'kill Tom Carberry.'

            "It is the depth of winter,' was objected, 'and we are hundreds of miles from Austin. The journey can not now be made.'

            "'Kill him in the spring,' said the unrelenting woman.

            "'Yes,' said he, and the compact was sealed.

            "With the opening of travel in the spring there arrived at Salt Lake City, by the Montana stage, an individual who freely announced that he was on his way to kill Carberry. Salt Lake City is a long way from Austin, but the friendships of border men span much greater distances. Tom was quickly advised of the approach of his visitor, but he took no steps either to get out of the way or to be specially prepared to see company. He was then employed at the Keystone Mill, nine miles from town, and he staid there nearly a whole week after he knew that the Montana chap was in Austin. You see, Tom is a peaceable man, and he didn't want any difficulty. Most men would have come in at once, and got the affair off their bands!"

            The listener entertained doubts at this point, but saying nothing, the Judge proceeded :

            "Saturday evening, just as usual with him, Tom came into the city, and after getting shaved and fixed-up for his holiday, he went around to the saloons, where many of the people of mining towns spend their leisure, to meet, his friends. It wasn't long before he encountered the Montana fellow, who began at once, in Tom's hearing, to make insulting remarks."

            Here the listener interrupted with — "Why did he make insulting remarks ? If he had made a long journey solely for the purpose of killing Tom, why didn't he shoot him off-hand ?"

            "Because," said the Judge, "that would have keen murder. The community is down on murder, and he would have been dangling from an awning-beam in fifteen minutes. Killing is a very different matter. When two men get into a fight, and all is fair between them, and one kills the other, community don't ordinarily seem to feel much concern on the subject. Under such circumstances, the only way for Montana was to provoke Tom to a quarrel, and lead up to a fight. But Tom wasn't disposed to gratify him — he wouldn't take any notice — didn't seem to hear ; but repeatedly left one saloon to go to another, just to keep out of the way. Montana followed him up, until, at last, standing right before Tom, he jumped up about two feet from the floor, and came down with a heavy jar, and said, 'I'm Chief !' Even this Tom didn't resent—he only put his hands over his face and wept ! Fact, sir, the tears actually flowed, until his best friends thought he was an arrant coward ; and when he got up and went away to his room to bed, there wasn't one of them to say a good word for him.

            "Montana enjoyed a season of glory. He had said, 'I'm Chief!' in a public place, and no man had dared accept the challenge.

            "The next morning Tom was standing on the sidewalk, when Montana came along, and they met face to face. Tom spoke to him in a very quiet, low tone, saying:

            "'Stranger, you used me pretty rough last night, but I don't bear malice. Jest say that you'd been drinkin' and didn't mean it, and we'll say no more about it.'

1873.]  THE JUDGE'S STORY.         459

            "Montana answered, 'No apologies in mine.'

            "'Well,' said Tom, 'you needn't apologize. Come into the saloon and chink glasses with me, and we'll let the matter drop.'

            "Then Montana said, 'Tom Carberry, either you're generous, or else you're a coward. I don't think you're cowardly, an' if I'd known you at the start, it's most likely I wouldn't ha' waded in. But the matter can't be let drop, for there's hundreds o' people in my section an' between here and there who know that I came here to kill you ; so there's but two ways — we must fight, or you must run. If you'll run, it'll be jest as good to me as to fight.'

            "Tom's almost suppliant bearing disappeared on the instant, and he said: 'Stranger, I aint much in the habit o' runnin', an' if we're to fight, we may as well have it out now, as any time. Are you heeled?'

            "Tom asked this question, because we have a law against carrying concealed weapons, which is regarded at such hours as people think they will have no use for their arms, and disregarded at all others.

            "The answer was, 'No; I left my revolver with the bar-keeper o' the Exchange.'

            "'Get it,' said Tom ; ' I'll wait for you here.'

            "The Exchange was in a corner building across a street which came in at right angles to the sidewalk where they were standing. Montana went in at the front door, but came out at the side on the cross street, hoping to steal up and 'get the drop' on Tom, but this was not so easy. Tom was wide-awake — he had crossed the main street to guard against surprise; so, when Montana poked his pistol round the corner and followed it with just enough of his head to take sight, Carberry was not in range. In a moment their eyes met, and the shooting began. Tom curled down close to the road-bed, to present the smallest possible area as a mark, and because it is comparatively difficult to hit an object lying on the ground. Montana sheltered himself somewhat behind a low row of sacks of potatoes lying on the edge of the sidewalk, and partly behind a small awning-post. This last was a fatal error, for with a tall post for a mark it is the easiest thing in the world to make a line-shot.

            "I am making a long story of the shooting, which in reality was very soon over. They fired three shots apiece in as many seconds. Tom's third ball passed through Montana's heart, and he was dead before his head rebounded on the brick pavement. Carberry surrendered himself at once, and was kept in jail until his trial came off, although bail to any amount was offered."

            After a pause, the Judge added, "I don't see how I could have done more for him than I did ; but the man should not have been punished — he should have been acquitted ; and he would have been but for one circumstance, which prejudiced the court and jury against him."

            "What was the circumstance so prejudicial ?" questioned the listener.

            "The Montana chap was the fourth man Tom had killed in Austin," answered the Judge, innocently.