Meanwhile Sergeant Meyer had a sore conscience.  From the moment the boat went down the San Juan he had more or less lain awake with the idea that, according to the spirit of his instructions from Thurstane, he ought to have Texas Smith tied up and shot.  Orders were orders; there was no question about that, as a general principle; the sergeant had never heard the statement disputed.  But when he came to consider the case now before him, he was out-generalled by a doubt.  This, drifting of a boat down a strange river, was it murder in the sense intended by Thurstane?  And, supposing it to be murder, could it be charged in any way upon Smith?  In the whole course of his military experience Sergeant Meyer had never been more perplexed.  On the evening of the first day’s march he could bear his sense of responsibility no longer, and decided to call a council of war.  Beckoning his sole remaining comrade aside from the bivouac, he entered upon business.

“Kelly, we are unter insdructions,” he began in his flute-like tone.

“I know it, sergeant,” replied Kelly, decorously squirting his tobacco-juice out of the corner of his mouth furthest from his superior.

“The question is, Kelly, whether Schmidt should pe shot.”

“The responsibility lies upon you, sergeant.  I will shoot him if so be such is orders.”

“Kelly, the insdructions were to shoot him if murder should habben in this barty.  The instructions were loose.”

“They were so, sergeant—­not defining murder.”

“The question is, Kelly, whether what has habbened to the leftenant is murder.  If it is murder, then Schmidt must go.”

The two men were sitting on a bowlder side by side, their hands on their knees and their muskets leaning against their shoulders.  They did not look at each other at all, but kept their grave eyes on the ground.  Kelly squirted his tobacco-juice sidelong two or three times before he replied.

“Sergeant,” he finally said, “my opinion is we can’t set this down for murder until we know somebody is dead.”

“Shust so, Kelly.  That is my obinion myself.”

“Consequently it follows, sergeant, if you don’t see to the contrary, that until we know that to be a fact, it would be uncalled for to shoot Smith.”

“What you zay, Kelly, is shust what I zay.”

“Furthermore, however, sergeant, it might be right and is the way of duty, to call up Smith and make him testify as to what he knows of this business, whether it be murder, or meant for murder.”

“Cock your beece, Kelly.”

Both men cocked their pieces.

“Now I will gall Schmidt out and question him,” continued Meyer, “You will stand on one side and pe ready to opey my orders.”

“Very good, sergeant,” said Kelly, and dropped back a little into the nearly complete darkness.

Meyer sang out sharply, “Schmidt!  Texas Schmidt!”

The desperado heard the summons, hesitated a moment, cocked the revolver in his belt, loosened his knife in its sheath, rose from his blanket, and walked slowly in the direction of the voice.  Passing Kelly without seeing him, he confronted Meyer, his hand on his pistol.  There was not the slightest tremor in the hoarse, low croak with which he asked, “What’s the game, sergeant?”