Sharyn McCrumb - The Ballad of Frankie Silver

I thought that the Stewarts had been wise to keep the other two suspects well out of Morganton, since tempers are apt to run high on court days, but Frankie Silver’s eyes filled with tears. Perhaps she wishes to see her dear mother and brother one last time, I thought.

“Alone, then,” she murmured.

“We’re right here, Frankie,” her father said.

“We’ll do what we can.” The voice of Jackson Stewart carried more conviction. “We’ll do all we can.”

Brother and sister looked at each other and nodded as though an understanding had passed between them. “I’ll say no more then,” she said, and she turned to Mr. Presnell. “We can go now, mister.”

As the constable led her away, I heard her say, “Can we stand off by ourselves on the lawn for a little bit?”

“It’s time to eat, ma’am.”

“I want to look at the mountains. Can you see them from here?”

I made my way out into the now deserted hall, intending to fortify myself at one of the taverns if space and congenial company could be found, when a shrill voice halted me in my tracks.

“Mr. Gaither! Brother! ”

I froze. My wife’s sisters generally employed the term “brother” only when prefacing a favor, and since I recognized this sister’s voice as that of the redoubtable Miss Mary Erwin, I turned slowly toward her with a smile of greeting and a soul of dread.

“Miss Mary,” I said. “How are you enjoying the trial? May I take you home to dinner?”

“The trial is a travesty,” she informed me, ignoring my pleasantries. “And I do not see how anyone of good conscience could eat after having witnessed it.”

I determined not to take this slur personally, even though it was in a sense my court and my trial. I wonder if she would have said such a thing had her dear father continued in the position of clerk of court. “Are things not proceeding to your liking?” I asked politely.

She did not quite reach my shoulder, but she stood there glaring at me, with her parasol perched musket-like on her shoulder, looking for all the world like an Amazon maiden. At my question, the warrior’s scowl gave way to a look of womanly pity. “Oh, Mr. Gaither,” she sighed. “That poor lost girl. I cannot make sense of it at all.”

“We think she must have killed her husband because she lied and said that he had not come home, and of course… he had.”

“Not that!” she said, frowning impatiently. “Of course I have followed the trial procedure. I understand perfectly what the witnesses have sworn to. But what we want here is some plainspeaking.”

“How so?” I murmured. I looked about for her cousin James, but he seemed to have made good his escape while she waylaid me.

“The girl is the only living soul who knows what happened in that cabin, Mr. Gaither. Put her up in front of the court and ask her.”

“That we cannot do, Miss Mary,” I said.

“Why not?”

“Because defendants may not testify in felony cases. Surely you know that. It is the law of the land, handed down to us from English common law. A venerable tradition that goes back centuries.”

“To the Dark Ages, no doubt, where it belongs,” she replied. Her gloved hand touched my arm. “Can you not waive the rule in this case? I feel sure there is something we ought to hear. Let the girl speak.”

I smiled gently at the flattery implicit in her request. Could I, as clerk of court, set aside codified trial law and age-old tradition because an Erwin wished it so? I shook my head. “Even if I were to attempt such a thing, Miss Mary, neither Judge Donnell nor the prosecutor would allow it. You might even find that the lady’s own attorney would wish to keep her silent for fear that with her testimony she might inadvertently condemn herself. She will not speak.”

“Then how can we get at the truth?”

Although I had questioned that very stricture in my own mind often enough, I found myself defending the no-testimony rule to my sister-in-law. “There are those who say that hearing a felon’s sworn statement would not avail the listeners of the truth. Such a custom would merely give the accused an opportunity to perjure himself, and to put his soul in further peril by breaking his oath before God.”

“You think she would lie under oath and be damned for it?” said Miss Mary.

“So it is argued.”

“Is it better that she should say nothing and be hanged for it?”

I had no reply to this, and Miss Mary did not wait to hear one.

When court resumed that afternoon, the prosecutor called more witnesses from the search party that had scoured the woods for Charlie Silver’s remains. No new revelations came to light. The only purpose of the afternoon sessions was to hammer home the two themes of William Alexander’s case: that the murder was pitiless and horrible, and that the defendant had repeatedly lied.

At last, as the afternoon light thickened into evening, he announced that he had no further witnesses to call. Mr. Nicholas Woodfin might now present his case.

I had doubted that Woodfin would call any witnesses of his own. What on earth could they say? No one had said anything to the detriment of the character of the defendant. Those who took the stand had all admitted, however grudgingly, that young Mrs. Silver was hardworking, sober, altogether a dutiful wife and mother. There were no past incidents of violence or wanton behavior to explain away.

Was she mad, then? I could not believe that anyone present in that courtroom would think so. Frankie Silver had sat solemn and silent through the day’s grim proceedings, her behavior unmarked by fits or laughter, and her person as seemly and fair as a maiden in a church pew. He had nothing to deny then, except the sworn testimony of half the frontier community: Frankie Silver had lied. I saw no way around it unless he put her on the stand, and that he was not permitted to do. A bitter outing for a newly minted lawyer, I thought. God help him.

Nicholas Woodfin took a deep breath as he rose to face the judge. “Your Honor,” he said, “the defense rests.”

Burgess Gaither

VERDICT

By the time the shadows were lengthening on the lawn outside the courtroom, both attorneys had concluded their closing arguments. I had spent much of the afternoon gazing out the window at the trees and the clabbered sky above them, letting the words wash over me, as they would surely drown Frankie Silver.

Judge Donnell delivered his own ponderous summary of the evidence and the jurors’ obligations, and then he sent the jury out to deliberate. They would report back promptly the next morning to deliver their verdict. Court was adjourned until then. I wondered if His Honor would sleep any better than the rest of us, awaiting the morning’s decision. Mrs. Silver was led out of the courtroom to return to her cell for a night of dread that could scarcely be worse than the gallows itself. I watched her square her thin shoulders as she paced along in front of her jailer, head high, sparing not a glance for the crowd, and I resolved to murmur a prayer for her that night.

The jurors trooped off to be sequestered in the courthouse jury room, which was little bigger than the wooden table contained in it. For the duration of their deliberations they would be “without meat nor drink nor fire,” as was the custom from time immemorial. Men who are without food or drink will be more likely to reach a prompt decision. While the jury was thus deprived, considering the evidence against Frankie Silver, the rest of Morganton repaired to the taverns to retry the case in a dull roar over whiskey and tankards of ale. This convivial court of tipplers argued and analyzed the fine points of the trial in preparation for a later recital of the events before the ladies at dinner that evening.