# The Trial, Execution, and Burial of Homer Phelps

Published in Harper's New Monthly Magazine, Vol. 100, May, 1900, No. 600, pp. 963-968.
FROM time to time an enwearied pine bough let fall to the earth its load of melting snow, and the branch swung back glistening in the faint wintry sunlight. Down the gulch a brook clattered amid its ice with the sound of a perpetual breaking of glass. All the forest looked drenched and forlorn.
The sky-line was a ragged enclosure of gray cliffs and hemlocks and pines. If one had been miraculously set down in this gulch one could have imagined easily that the nearest human habitation was hundreds of miles away, if it were not for an old half-discernible wood-road that led toward the brook.
"Halt! Who's there?"
This low and gruff cry suddenly dispelled the stillness which lay upon the lonely gulch, but the hush which followed it seemed even more profound. The hush endured for some seconds, and then the voice of the challenger was again raised, this time with a distinctly querulous note in it.
"Halt! Who's there? Why don't you answer when I holler? Don't you know you're likely to get shot?"
A second voice answered, "Oh, you knew who I was easy enough."
"That don't make no diff'rence." One of the Margate twins stepped from a thicket and confronted Homer Phelps on the old wood-road. The majestic scowl of official wrath was upon the brow of Reeves Margate, a long stick was held in the hollow of his arm as one would hole a rifle, and he strode grimly to the other boy. "That don't make no diff'rence. You've got to answer when I holler, anyhow. Willy says so."
At the mention of the dread chieftain's name the Phelps boy daunted a trifle, but he still sulkily murmured, "Well, you knew it was me."
He started on his way through the snow, but the twin sturdily blocked the path. "You can't pass less'n you give the countersign."
"Huh?" said the Phelps boy. "Countersign?"
"Yes -- countersign," sneered the twin, strong in his sense of virtue.
But the Phelps boy became very angry. "Can't I, hey? Can't I, hey? I'll show you whether I can or not! I'll show you, Reeves Margate!"
There was a short scuffle, and then arose the anguished clamor of the sentry: "Hey, fellers! Here's a man tryin' to run a-past the guard. Hey, fellers? Hey?"
There was a great noise in the adjacent underbrush. The voice of Willie could be heard exhorting his followers to charge swiftly and bravely. Then they appeared -- Willie Dalzel, Jimmie Trescott, the other Margate twin, and Dan Earl. The chieftain's face was dark with wrath. "What's the matter? Can't you play it right? 'Ain't you got any sense?" he asked the Phelps boy.
The sentry was yelling out his grievance. "Now -- he came along an' I hollered at 'im, an' he didn't pay no 'tention, an' when I ast 'im for the countersign, he wouldn't say nothin'. That ain't no way."
"Can't you play it right?" asked the chief again, with gloomy scorn.
"He knew it was me easy enough," said the Phelps boy.
"That 'ain't got nothin' to do with it," cried the chief, furiously. "That 'ain't got nothin' to do with it. If you're goin' to play, you've got to play it right. It ain't no fun if you go spoilin' the whole thing this way. Can't you play it right?" "I forgot the countersign," lied the culprit, weakly.
Whereupon the remainder of the band yelled out, with one triumphant voice: "War to the knife! War to the knife! I remember it, Willie. Don't I, Willie?"
The leader was puzzled. Evidently he was trying to develop in his mind a plan for dealing correctly with this unusual incident. He felt, no doubt, that he must proceed according to the books, but unfortunately the books did not cover the point precisely. However, he finally said to Homer Phelps, "You are under arrest." Then with a stentorian voice he shouted, "Seize him!"
His loyal followers looked startled for a brief moment, but directly they began to move upon the Phelps boy. The latter clearly did not intend to be seized. He backed away, expostulating wildly. He even seemed somewhat frightened. "No, no; don't you touch me, I tell you; don't you dare touch me."
The others did not seem anxious to engage. They moved slowly, watching the desperate light in his eyes. The chieftain stood with folded arms, his face growing darker and darker with impatience. At length he burst out: "Oh, seize him, I tell you! Why don't you seize him? Grab him by the leg, Dannie! Hurry up, all of you! Seize him, I keep a-sayin'!"
Thus adjured, the Margate twins and Dan Earl made another pained effort, while Jimmie Trescott manoeuvred to cut off a retreat. But, to tell the truth, there was a boyish law which held them back from laying hands of violence upon little Phelps under these conditions. Perhaps it was because they were only playing, whereas he was now undeniably serious. At any rate, they looked very sick of their occupation.
"Don't you dare!" snarled the Phelps boy, facing first one and then the other; he was almost in tears -- "don't you dare touch me!"
The chieftain was now hopping with exasperation. "Oh, seize him, can't you? You're no good at all!" Then he loosed his wrath upon the Phelps boy: "Stand still, Homer, can't you? You've got to be seized, you know. That ain't the way. It ain't any fun if you keep a-dodgin' that way. Stand still, can't you! You've got to be seized."
"I don't want to be seized," retorted the Phelps boy, obstinate and bitter.
"But you've got to be seized!" yelled the maddened chief. "Don't you see? That's the way to play it."
The Phelps boy answered promptly, "But I don't want to play that way."
"But that's the right way to play it. Don't you see? You've got to play it the right way. You've got to be seized, an' then we'll hold a trial on you, an' -- an' all sorts of things."
But this prospect held no illusions for the Phelps boy. He continued doggedly to repeat, "I don't want to play that way!"
Of course in the end the chief stooped to beg and beseech this unreasonable lad. "Oh, come on, Homer! Don't be so mean. You're a-spoilin' everything. We won't hurt you any. Not the tintiest bit. It's all just playin'. What's the matter with you?"
The different tone of the leader made an immediate impression upon the other. He showed some signs of the beginning of weakness. "Well," he asked, "what you goin' to do?"
"Why, first we're goin' to put you in a dungeon, or tie you to a stake, or something like that -- just pertend you know," added the chief, hurriedly, "an' then we'll hold a trial, awful solemn, but there won't be anything what'll hurt you. Not a thing."
And so the game was readjusted. The Phelps boy was marched off between Dan Earl and a Margate twin. The party proceeded to their camp, which was hidden some hundred feet back in the thickets. There was a miserable little hut with a pine-bark roof, which so frankly and constantly leaked that existence in the open air was always preferable. At present it was noisily dripping melted snow into the black mouldy interior. In front of this hut a feeble fire was flickering through its unhappy career. Underfoot, the watery snow was of the color of lead.
The party having arrived at the camp, the chief leaned against a tree, and balancing on one foot, drew off a rubber boot. From this boot he emptied about a quart of snow. He squeezed his stocking, which had a hole from which protruded a lobster-red toe. He resumed his boot. "Bring up the prisoner," said he. They did it. "Guilty or not guilty?" he asked.
"Huh?" said the Phelps boy.
"Guilty or not guilty?" demanded, the chief, peremptorily. "Guilty or not guilty? Don't you understand?"
Homer Phelps looked profoundly puzzled. "Guilty or not guilty?" he asked, slowly and weakly.
The chief made a swift gesture, and turned in despair to the others. "Oh, he don't do it right! He does it all wrong!" He again faced the prisoner with an air of making a last attempt. "Now look-a-here, Homer, when I say, 'Guilty or not guilty?' you want to up an' say, 'Not guilty.' Don't you see?"
"Not guilty," said Homer, at once.
"No, no, no. Wait till I ask you. Now wait." He called out, pompously, "Pards, if this prisoner before us is guilty, what shall be his fate?"
All those well-trained little infants with one voice sung out, "Death!"
"Prisoner," continued the chief, "are you guilty or not guilty?"
"But look-a-here," argued Homer, "you said it wouldn't be nothin' that would hurt. I -- "
"Thunder an' lightnin'!" roared the wretched chief. "Keep your mouth shut, can't ye? What in the mischief -- "
But there was an interruption from Jimmie Trescott, who shouldered a twin aside and stepped to the front. "Here," he said, very contemptuously, "let me be the prisoner. I'll show 'im how to do it."
"All right, Jim," cried the chief, delighted; "you be the prisoner then. Now all you fellers with guns stand there in a row! Get out of the way, Homer!" He cleared his throat, and addressed Jimmie. "Prisoner, are you guilty or not guilty?"
"Not guilty," answered Jimmie, firmly. Standing there before his judge -- unarmed, slim, quiet, modest -- he was ideal.
The chief beamed upon him, and looked aside to cast a triumphant and withering glance upon Homer Phelps. He said: "There! That's the way to do it."
The twins and Dan Earl also much admired Jimmie.
"That's all right so far, anyhow," said the satisfied chief. "Ah, now we'll -- now we'll -- we'll perceed with the execution."
"That ain't right," said the new prisoner, suddenly. "That ain't the next thing. You've got to have a trial first. You've got to fetch up a lot of people first who'll say I done it."
"That's so," said the chief. "I didn't think. Here, Reeves, you be first witness. Did the prisoner do it?"
The twin gulped for a moment in his anxiety to make the proper reply. He was at the point where the roads forked. Finally he hazarded, "Yes."
"There," said the chief, "that's one of 'em. Now, Dan, you be a witness. Did he do it?"
Dan Earl, having before him the twin's example, did not hesitate. "Yes," he said. "Well, then, pards, what shall be his fate?"
Again came the ringing answer, "Death!"
With Jimmie in the principal role, this drama, hidden deep in the hemlock thicket, neared a kind of perfection. "You must blindfold me," cried the condemned lad, briskly, "an' then I'll go off an' stand, an' you must all get in a row an' shoot me."
The chief gave this plan his urbane countenance, and the twins and Dan Earl were greatly pleased. They blindfolded Jimmie under his careful directions. He waded a few paces into snow, and then turned and stood with quiet dignity, awaiting his fate. The chief marshalled the twins and Dan Earl in line with their sticks. He gave the necessary commands: "Load! Ready! Aim! Fire!" At the last command the firing party all together yelled, "Bang!" Jimmie threw his hands high, tottered in agony for a moment, and then crashed full length into the snow -- into, one would think, a serious case of pneumonia. It was beautiful.
He arose almost immediately and came back to them, wondrously pleased with himself. They acclaimed him joyously.
The chief was particularly grateful. He was always trying to bring off these little romantic affairs, and it seemed, after all, that the only boy who could ever really help him was Jimmie Trescott. "There," he said to the others, "that's the way it ought to be done."
They were touched to the heart by the whole thing, and they looked at Jimmie with big smiling eyes. Jimmie, blown out like a balloon-fish with pride of his performance, swaggered to the fire and took seat on some wet hemlock boughs. "Fetch some more wood, one of you kids," he murmured, negligently. One of the twins came fortunately upon a small cedar-tree the lower branches of which were dead and dry. An armful of these branches flung upon the sick fire soon made a high, ruddy warm blaze, which was like an illumination in honor of Jimmie's success.
The boys sprawled about the fire and talked the regular language of the game. "Waal, pards," remarked the chief, "it's many a night we've had together here in the Rockies among the b'ars an' the Indy-uns, hey?"
"Yes, pard," replied Jimmie Trescott, "I reckon you're right. Our wild free life is -- there ain't nothin' to compare with our wild free life."
Whereupon the two lads arose and magnificently shook hands, while the others watched them in an ecstasy. "I'll allus stick by ye, pard," said Jimmie, earnestly. "When yer in trouble, don't forgit that Lightnin' Lou is at yer back."
"Thanky, pard," quoth Willie Dalzel, deeply affected. "I'll not forgit it, pard. An' don't you forgit, either, that Dead-shot Demon, the leader of the Red Raiders, never forgits a friend."
But Homer Phelps was having none of this great fun. Since his disgraceful refusal to be seized and executed he had been hovering unheeded on the outskirts of the band. He seemed very sorry; he cast a wistful eye at the romantic scene. He knew too well that if he went near at that particular time he would be certain to encounter a pitiless snubbing. So he vacillated modestly in the background.
At last the moment came when he dared venture near enough to the fire to gain some warmth, for he was now bitterly suffering with the cold. He sidled close to Willie Dalzel. No one heeded him. Eventually he looked at his chief, and with a bright face said,
"Now -- if I was seized now to be executed, I could do it as well as Jimmie Trescott, I could."
The chief gave a crow of scorn, in which he was followed by the other boys. "Ho!" he cried, "why didn't you do it then? Why didn't you do it?" Homer Phelps felt upon him many pairs of disdainful eyes. He wagged his shoulders in misery.
"You're dead," said the chief, frankly. "That's what you are. We executed you, we did."
"When?" demanded the Phelps boy, with some spirit.
"Just a little while ago. Didn't we, fellers? Hey, fellers, didn't we?"
The trained chorus cried: "Yes, of course we did. You're dead, Homer. You can't play any more. You're dead."
"That wasn't me. It was Jimmie Trescott," he said, in a low and bitter voice, his eyes on the ground. He would have given the world if he could have retracted his mad refusals of the early part of the drama.
"No," said the chief, "it was you. We're playin' it was you, an' it was you. You're dead, you are." And seeing the cruel effect of his words, he did not refrain from administering some advice: "The next time, don't be such a chuckle-head."
Presently the camp imagined that it was attacked by Indians, and the boys dodged behind trees with their stick-rifles, shouting out, "Bang!" and encouraging each other to resist until the last. In the mean time the dead lad hovered near the fire, looking moodily at the gay and exciting scene. After the fight the gallant defenders returned one by one to the fire, where they grandly clasped hands, calling each other "old pard," and boasting of their deeds.
Parenthetically, one of the twins had an unfortunate inspiration. "I killed the Indy-un chief, fellers. Did you see me kill the Indy-un chief?" But Willie Dalzel, his own chief, turned upon him wrathfully: "You didn't kill no chief. I killed 'im with me own hand."
"Oh!" said the twin, apologetically, at once. "It must have been some other Indy-un."
"Who's wounded?" cried Willie Dalzel. "Ain't anybody wounded?" The party professed themselves well and sound. The roving and inventive eye of the chief chanced upon Homer Phelps. "Ho! Here's a dead man! Come on, fellers, here's a dead man! We've got to bury him, you know." And at his bidding they pounced upon the dead Phelps lad. The unhappy boy saw clearly his road to rehabilitation, but mind and body revolted at the idea of burial, even as they had revolted at the thought of execution. "No!" he said, stubbornly. "No! I don't want to be buried! I don't want to be buried!"
"You've got to be buried!" yelled the chief, passionately. "'Tain't goin' to hurt ye, is it? Think you're made of glass? Come on, fellers, get the grave ready!"
They scattered hemlock boughs upon the snow in the form of a rectangle, and piled other boughs near at hand. The victim surveyed these preparations with a glassy eye. When all was ready, the chief turned determinedly to him. "Come on now, Homer. We've got to carry you to the grave. Get him by the legs, Jim!"
Little Phelps had now passed into that state which may be described as a curious and temporary childish fatalism. He still objected, but it was only feeble muttering, as if he did not know what he spoke. In some confusion they carried him to the rectangle of hemlock boughs and dropped him. Then they piled other boughs upon him until he was not to be seen. The chief stepped forward to make a short address, but before proceeding with it he thought it expedient, from certain indications, to speak to the grave itself. "Lie still, can't ye? Lie still until I get through." There was a faint movement of the boughs, and then a perfect silence.
The chief took off his hat. Those who watched him could see that his face was harrowed with emotion. "Pards," he began, brokenly -- "pards, we've got one more debt to pay them murderin' redskins. Bowie-knife Joe was a brave man an' a good pard, but -- he's gone now -- gone." He paused for a moment, overcome, and the stillness was only broken by the deep manly grief of Jimmie Trescott.
This work was published before January 1, 1929, and is in the public domain worldwide because the author died at least 100 years ago.
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