Sharyn McCrumb - The Ballad of Frankie Silver

When a court had accepted the prisoner’s plea of benefit of clergy, waiving the execution in favor of the lesser punishment, the sheriff’s duty was to hold the red-hot branding iron to the thumb of the criminal for as long as it took the man to cry out “God save the State” three times. On this occasion, the unrepentant felon, tied to a post and writhing in his agony, screamed out “God save the State!” twice, and then sobbed and gasped, “God damn Sam Tate!”

Sheriff Tate carefully removed the branding iron from the poor man’s thumb and began the procedure all over again, making sure that the requisite phrase was said correctly three times, as prescribed by law. No, Sam Tate was not an angel of mercy, but he was faithful to the letter of the law, and he knew the North Carolina statutes as well as anyone.

“Well,” I said, “whatever Sam Tate’s biases are toward the people of Morganton proper, if indeed he has any, he is sure to be a stranger to all the principals in the Silver case, because they all hail from the back of beyond. Therefore the proper objectivity will be preserved. Sam knows the law. I know of nothing fairer than that.”

“I suppose it’s a foregone conclusion anyway, isn’t it?” she asked as I turned to leave.

“Pretty nearly,” I said. “All her hopes must rest on the trial itself. Perhaps her lawyer can move the jury with his eloquence. Failing that, she is lost.”

The grand jury under Sam Tate’s able direction considered the case against Frankie Silver, her mother Barbara Stewart, and her younger brother Blackston. The facts were presented, and the witnesses heard. When the grand jury retired to begin its deliberations, they argued about what should be done.

One of the more prominent jurors, George Corpening, whose brother David is our state legislator, said: “I say we indict the lot of them! They’re all in this together. Anyone can see that.”

Other voices chimed in to agree with Corpening.

They finally stopped chattering and noticed that the grand jury chairman and former sheriff sat conspicuously silent. After a moment’s silence, Rucket Stanley said, “What do you think, Mr. Tate?”

Sam Tate considered the matter. “Well, boys,” he said, “it’s like this. Trials are tricky things. You can indict ever who you want to, but that doesn’t guarantee that you’ll get a conviction when the trial is over and done with. I’ve seen a lot of cases go to court in my time, and I’ll tell you what’s the truth: indicting all three of these suspects would make me uneasy. Yes, sir, it would.”

“Why is that, Sheriff Tate?”

“Because it suggests that we don’t know who to blame, and that we’re arresting everybody just to make sure we get the guilty party. People don’t like that. Jurors are so contrary, they might end up feeling sorry for the Stewarts and letting every one of them go. I say we ought to pick one of them-the most obvious one-and let that person take all the blame.”

George Corpening was scowling. “But what about the other two?”

“Do you see any proof that they were involved?” The sheriff’s eyes narrowed. “I’m not talking about common sense, George. I’m talking about proof that will stand up in a court of law. All I see in this case is what you call circumstantial evidence. Charlie Silver disappeared, and a week or so later his body parts are found in the fireplace of his own cabin.”

“But according to the witnesses, Charlie Silver’s widow lied!” Corpening protested. “She said he had gone from home, when all the time bits of him were lying in that fireplace.” He broke off with a shudder.

“Exactly right,” said Sam Tate, unmoved by the thought of gore. “Mrs. Frances Silver was caught in a great and terrible lie. And that means that she is not an innocent party. But what about the other two, boys? What evidence can you give me to tie them to this death?”

“It stands to reason that a young girl like that wouldn’t have acted on her own,” said David Glass.

“I’m talking about proof,” Sam Tate reminded him. “Can anybody show me proof?”

No one spoke.

“All right, then. Here’s what I propose that we do, boys: we bring back a true bill on Mrs. Frances Silver, and we no-bill her mother and brother. We know she’s in it up to her neck, and I’d rather see her punished for her crime than cast the net too wide and risk losing all three. I say we make it easy on the jury and send them a sure thing. Who’s with me?”

Hands went up. They all were.

A few hours after they began their deliberations, the Burke County grand jury returned a true bill only on Mrs. Frances Stewart Silver. She alone would stand trial for murder.

In view of the strong feelings inspired by the Silver case, the court ordered each of the subpoenaed witnesses in the forthcoming trial to post a bond, ranging from twenty-five dollars to one hundred pounds British sterling, in order to ensure their attendance at the proceedings. These were staggering sums to be required of witnesses, but we felt that it was necessary to make the consequences of not testifying just as terrible as the consequences of testifying. We all knew that when cases involving backwoods families are tried in court, the matter seldom ends there. The losing family continues its search for justice with violence and acts of reprisal, particularly against unfriendly witnesses, often for years after the original matter was settled by the court. The urge to avoid the matter entirely must have been strong for the people of Frankie Silver’s community.

The court set the trial date for Thursday, March 29, and Sheriff William Butler was ordered to summon 150 jurors on the Thursday following to be considered for service in the proceedings. This was a larger number of potential jurors than we usually called, but because of the sensational nature of the case, I thought it prudent to have men in reserve in order to provide the lawyers with a satisfactory selection of men from which to choose. Perhaps the notion of mountain justice would convince many of our own citizens that they wanted no part in the proceedings.

Nicholas Woodfin, the young lawyer who was brought in to represent Mrs. Silver in court, arrived in Morganton a few days beforehand in order to familiarize himself with the case and to interview his client. I do not know where he stayed, perhaps at the estate of his cocounsel Thomas Wilson a few miles outside town, or perhaps he took lodgings at the Buckhorn Tavern. Whatever his residence, I know that he did not lack for dinner invitations. One of Elizabeth’s sisters had caught sight of Mr. Woodfin, boots shining, brass gleaming, and clothes brushed free of the dust of travel, riding into town on his strapping bay gelding, and she had stopped in her tracks and stared upward like one who has been given a celestial vision.

“Why, he looks for all the world like a foreign prince!” Miss Erwin exclaimed. This pronouncement of the regal nature of Mr. Woodfin’s appearance was quickly communicated to every lady in the county, or so it seemed, and they vied with one another to show him every kindness during his visit. I venture to say that the mothers of unmarried gentlewomen in our county envisioned Mr. Woodfin’s role of rescuer of damsels extending well beyond his duty to his client Mrs. Silver.

“And does he look like a prince, Burgess?” Elizabeth wanted to know. Tending to our infant son and to her duties at hearth and home had kept her so occupied that she had yet to see the distinguished newcomer. She relied on her sisters to keep her supplied with news.

“He is certainly an imposing figure,” I said, trying to temper my annoyance with justice. I do not recall such a fuss being made among the ladies when I first arrived in Morganton. “Nicholas Woodfin is a man of medium stature, with dark eyes and features in the Greek mold, I believe you would say. His hair is very dark, though already it is flecked with gray.”