USA > California > Tuolumne County > A history of Tuolumne County, California : compiled from the most authentic records > Part 14
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After the conclusion of the testimony, the District At- torney summed up the case for the prosecution. He reviewed the testimony, and maintained that through the
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evidence of several neighbors of the deceased, who heard the conflict and were witnesses to the state of feelings be- tween the accused and Captain Kittering, the facts had been clearly proven. He admitted that deceased had en- tertained suspicions of the prisoner being concerned in the Brunton robbery, and claimed that the prisoner had not shown that he should have been free from such suspicions. He remarked that the defendant, if entirely innocent of such a charge, or free from such a suspicion, had no right to seek the life of the deceased; it was his duty to bear the accusation, and seek legal modes of redress. The Attor- ney brought to the especial notice of the jury, the points of the testimony, as he viewed them, and recapitulated all the facts established, which went to show that the prisoner had premeditated the murder of the deceased, and went to his house to consummate it. He counseled the jury to discharge their duty fearlessly, and to maintain the sup- remacy of the laws. The gentleman's arguments were very able and earnest, he discharging his duties creditably, as became one who was regarded as the peer of the best crim- inal lawyers of the State.
Following Mr. Dorsey came the renowned attorneys, Benham and Moore; both of the pronounced " fire-eater " type, and both upon their highest mettle to redeem a cause that seemed so clearly lost.
Mr. Benham's address occupied four and a half hours, and commanded the closest attention of the Court and spectators. It was said to have been characterized by the loftiest eloquence, and the most soul-stirring appeals for the safety of his client. This gentleman's speech, though able, did not possess the interest that attached to that of Col. Moore, which followed it. The latter gentleman had, since the earliest times, been a pronounced figure in the legal circles of the State. In his own home, in Tuolumne,
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there were few competing characters. Among all his con- temporaries no more remarkable man stands forth. Emi- nent in the Courts as a practitioner, he was no less promi- nent in political and social affairs. No history, no notice even, of the earlier times of this region, could be consid- ered complete unless including his name. Now, as counsel in the defense in this famous trial, and occupying as im- portant and prominent a position as it ever was the fortune of any Californian of that day to fill, he rose to his utmost elevation. The Colonel was in many ways worthy of re- mark, both on account of his mental qualifications, and his personal eccentricities. Tall, several inches over six feet, with erect, straight figure, though very spare and exces- sively narrow-chested, clear-cut, strongly marked features, gray hair, once black, and a very proud and haughty car- riage, said to correspond with his extreme self-esteem, made up the more noticeable points of the man's personal appearance, which, from all accounts, was most imposing. . A fact that, in some measure, helps to account for his re- markable success as a criminal lawyer, doubtless aided by his high reputation for fearlessness and eccentricity. As might be supposed, these qualities had made him an object of interest in the highest degree to the rougher inhabi- tants of that epoch.
Colonel Moore owed nothing of his phenomenal success to his learning, for even upon legal points that was of the slimmest possible character; and in general matters his illiteracy was profound. Neither did he make any attempt to conceal his want of knowledge. He rather gloried in it. And the want of erudition which would now, were he alive, subject him to ridicule before a Court, then often- times proved a powerful aid before a jury, who felt them- selves, as it were, " in the same boat," and allowed their feelings to be won by sloppy eloquence, rather than by the more polished and learned efforts of rival attorneys.
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It was a maxim with the Colonel never to be on the side of the prosecution. Defense was with him a principle; and by the judicious selection of a jury-Southerners, all-he usually managed to win his cases. A goodly portion of his stock in trade was extracts from the speeches of such men as Clay, Calhoun and Randolph. These extracts, whether bearing or not on the merits of the case, he would repeat to the wondering and admiring jurymen until, like the rustic villagers in Goldsmith's poem, " Still the wonder grew that one small head could carry all he knew."
Railing against books and book-learning, sneering when other forms of attack were impossible, domineering over Judge (excepting always Judge Creaner), deriding North- ern men and the principles commonly supposed to have been theirs, upholding the superiority of the chivalrous people of the South, bursting into furious eloquence at any and all times, and taking the lead when more modest and perhaps abler men would have hesitated, the Colo- nel lived throughout the liveiy " flush times " without a peer or a dangerous rival in his peculiar province.
There is in circulation a story of Moore's conflict with Judge Tuttle, of the Court of Sessions, in which the former, taking violent offense at the Judge's proceedings, drew a pistol upon him. The origin of this, and its only foundation, was a difficulty between Moore and J. M. Huntington, a rival lawyer, in which Moore, having drawn his revolver upon his adversary, was knocked senseless by George Work, in order, as the latter said, to save his life from Huntington, who, otherwise, would certainly have killed him. This affray took place in the building now occupied by S. Thomas as a saloon. This version is given by Dr. Walker, an eyewitness, who further relates that Work picked up his friend Moore, and with tears stream- ing from his eyes carried him in his arms to his own room and waited upon him until his recovery.
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It is a current tradition in Tuolumne that Judge Creaner and Colonel Moore were warm personal friends, but that once their friendship was in imminent danger of rupture. It is told in this connection that the Judge had a habit, when his temper was ruffled, of showing the degree of his anger by raising the extremity of his nose, and watchful attorneys had learned by experience to forbear at this dan- gerous sign of wrath. On a certain occasion Moore was engaged in defending a client who was accused of robbery. In the course of his remarks he attempted to introduce certain evidence, which the Judge ruled out as inadmissi- ble. Dissatisfied with this, Moore addressed the jury thus: " Gentlemen of the jury: We of the defense have intro- duced evidence to prove that my client was absent from town on the night of the robbery, and therefore innocent, but His Honor has ruled it out; and, gentlemen, an old cow would have had more sense than to make such a ruling!"
Thus far the Colonel had proceeded with his address, when the Judge's nose went up. "Mr. Moore!" he said; but, unheeding the interruption, Ben proceeded. "Mr. Moore!" called the Judge, a little louder. Still Mr. Moore refused to listen. The Judge's self-command, although powerfully exerted, was almost gone. " Mr. Moore!" he shouted, bringing his fist down on the desk before him, "did I understand you to say that an old cow would have more sense than this Court?" Ben paused and took in the situation. "No, sir," he replied, "I did not say it." "Ah, then I was mistaken. Proceed, Mr. Moore." And the case went on. After the adjournment of Court, Mr. Dorsey took the chivalrous Moore aside, and jokingly ac- cused him of telling a falsehood. "Lie," said Ben, "of course I lied. Why, I had to lie, or kill old Creaner; and I'd lie a thousand times before I'd do that! You'd play -- - making apologies to that old nose, wouldn't you ?"
F Bühler
Nathan
A. Arnolde
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Although, as previously remarked, he was wholly without education in the common acceptation of the term, and was obliged to depend on others to perform a great part of his duties, such as drawing up legal documents and the like, yet in addressing an assemblage of ordinary men, Moore's natural talents shone conspicuous. With a great insight into human nature and the deeper springs of human action, his judgment in the selection and subsequent management of a jury was unerring. On one occasion he was reproved by another well known lawyer for his address to a jury, which had just retired to deliberate. In fine, he was told that his remarks were ridiculous. "You think," he said, "that I was addressing twelve learned judges, but I knew I was talking to a dozen - - I am going to wIN this case." And he did win it.
When submitting the case of Worth to the jury, he made perhaps the most effective speech that he ever delivered. According to the reports (overdrawn, of course) of that trial, he brought home to the hearts of the jury a mass of proof in a manner to command from them the acquittal of his client. His style, it was said, was peculiar, the voice and action coming home upon the listener, while the earnest and impassioned degree with which he seemed to throw his whole soul and heart into his remarks, riveted the entire mind and feeling of the listener. He depicted the bitter hate of the deceased towards the prisoner-the long cher- ished, malignant hate which he had nursed towards him- and the exulting cruelty with which he spread the damaging report of the Brunton robbery; the hot haste with which he flew to the scene of the robbery, and the eager earnest- ness with which he endeavored to impress on Brunton that it was the object of his deep hatred who had perpetrated the crime; his deep disappointment that Brunton would not believe it; his wicked determination to cling to the be-
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lief, and his industry in spreading it about; his active preparation for the spilling of blood; the borrowing of arms on the highway, even; his formidable preparation in the dark back room; his oft expressed wish and hope that he might have his victim in his toils, get him in that room and "give him no show:" "the eloquent counsellor's description of a man who would give another 'no show,' was perfectly electrifying; and his winding up with the expression, 'My God, lives there a man claiming the attributes of manhood who would not give his fellow-man 'a show,' " made the blood jump and tingle in one's veins. A witness (Johns) who fled at the report of the firearms was completely rid- dled, and the precipitate flight of that individual, as he fled from under his hat and jumped out of his boots with the speed of a quarter-horse, or the whole-souled and earnest locomotion of a dog with a tin kettle tied to his tail, was strongly contrasted with his ability to hear and understand while still under such furious headway. "The whole testi- mony, although so thoroughly handled by Mr. Benham, still received new light through the masterly review given it by Colonel Moore; and the fixed looks of the jury and breathless attention of the auditory, told how deep an im- pression he was making."
Equally characteristic was Judge Creaner's charge to the jury: "The indictment charges the defendant with the crime of murder, which is the unlawful killing of a human being with malice aforethought, either express or implied. Express malice is that deliberate intention unlawfully to take the life of another, which is manifested by external circumstances capable of proof-such as lying in wait, antecedent menaces, threats, etc. Implied malice is where no considerable provocation appears, or when all the cir- cumstances of the killing show an abandoned and malig- nant heart. You, gents, are the sole judges of the facts;
-
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the oath that you have taken as jurors is, that you will try this case, and render a true verdict, according to the evi- dence.
" It is your duty, therefore, to take into consideration all the facts and circumstances that have been related to you in evidence, and if you shall believe that the de- fendant is guilty, you will, without any hesitancy, find a verdict to that effect. But if you believe from the evidence that the defendant is not guilty as charged, you should acquit him of the charge of murder, and inquire whether he is guilty of the lesser crime of manslaughter, which is defined by our statutes to be the unlawful killing of a human being without malice expressed or implied, and without any mixture of deliberation.
" If you shall believe from the evidence that the homi- cide was committed in a sudden heat of passion, caused by provocation, apparently such as to make the passion irre. sistible, then you should find him guilty of manslaughter, unless you shall think that the homicide was justifiable. Justifiable homicide is the killing of a human being in necessary self-defense, or in defending habitation, prop- erty or person against one who manifestly intends or en- deavors by violence or surprise to commit a felony. If you should think the homicide justifiable, you should find a verdict of not guilty."
The jury found a verdict of not guilty, and W. H. Worth was set free, soon to shake the dust of Tuolumne from his feet. His subsequent history is unknown, but there is good evidence for believing that he became an Episcopal clergyman at a later period, and that he made his habitation in Virginia during the great Civil War.
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Execution of Escobar and Sebada.
On August 3, 1855, two Chilenos, Escobar and Sebada, were executed by due process of law for the murder of John Sheldon, a constable of Sonora. This murder, which caused one of the sensations of the times, was committed in May previous. To enter fully into the details of this noted case, with its causes, would require that the narra- tive should extend back to the year 1850, when Sheldon, the victim of the homicide, in the pursuance of his sworn duty, killed a man, and finally, after more than three years of waiting and watching, the friends of that man wreaked their bloody revenge-a fact that well illustrates one of the less admirable phases of the Spanish and South Ameri- can character.
The incidents of the shooting affray that gave rise to this homicide and subsequent hanging, composed what has been known as the " Riot in the Tigre," between the Span- ish speaking inhabitants of that quarter and the Americans. But if the newspaper accounts of the affray may be trusted (and why should they not be, written, as they are, at the precise time of the occurrence ?) then the affair has been most grossly exaggerated, and does not, and never did, de- serve a place in the important recollections of Tuolumne. The facts are simply these: Marshal J. F. McFarland, in endeavoring to convey a drunken Spaniard from the Tigre to the jail, was beset by several of the prisoner's friends, who tried to rescue him. Calling for assistance, several Americans responded, and in the brief combat that ensued, a Chilean, name not given, was shot with three bullets, any one of which was sufficient to have let out his life. The man died, but the officer was not forgotten by his friends, and for years thereafter the footsteps of John Sheldon (who was believed to have fired the shots) were dogged by
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the unforgiving former intimates of the dead Chilean, until at last a fitting opportunity came, and accounts were squared by another violent death. Sheldon, who was night watchman, was perfectly aware that his enemies had determined to kill him; but, undaunted, he continued his accustomed duties, and in time became more and more careless, until his only precautions consisted in providing himself with suitable weapons, and in the selection of the middle of the street in which to perform his regular nightly beat. On one excessively dark night in May, 1855, three men sprang upon him from behind some obstructions, and seizing him, muffled as he was in his cloak, stabbed him fatally, and after making sure of their work, ran off in the darkness, leaving no trace to aid in their discovery, save a hat which one of them dropped. The wounded man stag- gered to the United States Hotel, and within a few min- utes expired. Fleeing to Tuttletown, two of the murder- ers were there taken on the very next day, the lost hat fur- nishing the sole clew by which they were identified. Proofs of their guilt being forthcoming at their trial, a verdict of guilty of murder in the first degree was rendered, and be- ing sentenced, August 3 was set as the day of execution, and they were on that day hanged in presence of a crowd of three thousand spectators.
Between the hours of eleven and twelve o'clock the Co- lumbia Fusileers and the Sonora Greys, two splendid look- ing, well equipped and strictly disciplined companies of volunteer troops, marched to the County Jail to act as escort for the prisoners, who were then placed in a carriage, their Catholic priest between, and driven to the gallows, accompanied by a dense mass of human beings, consisting of men, women and children. The place of execution was well selected for purposes of exhibition, for the gallows was erected on a small flat surrounded on every side by
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gently rising hills, and none who felt desirous of witness- ing a human being writhing in his last death agonies could retire disappointed, for the view was full and complete.
On arriving at the place of execution, the military opened a way through the crowd, the prisoners were taken from the carriage, and unaided, with light and elastic step, ascended the platform; no two men knowing that their last hours had come, could have appeared more indifferent and regardless of their fate than did these two prisoners. A spectator not knowing that they were then about to suffer the penalty of death for violating the laws of God and humanity, would have inferred from their appearance that they had ascended the stand as public declaimers-politi- cal speakers. After the death sentence had been read to them, they both addressed the spectators in their native tongue, Spanish, and one, particularly, used violent and denunciatory language toward the Americans. Upon con- cluding their remarks they knelt, and, crucifix in hand, performed such religious ceremonies as their religion re- quired, and then they paid the dread penalty.
Thus from the simple circumstance of a Chileno getting drunk in the low resorts of the " Tigre," grew a train of events that brought death to four persons and attending grief and misery to, doubtless, many more.
Murder of Smith and Lynching of Barclay.
The year 1855 was prolific of exciting events, as these pages show; but among them all, perhaps, nothing more exciting took place during the year (with the possible ex- ception of the Heslep murder) than the murder in Colum- bia of J. H. Smith, of Knickerbocker Flat, and the sum- mary lynching of his slayer, John S. Barclay.
At about half-past four o'clock on the afternoon of
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Wednesday, October 10, 1855, John H. Smith was shot dead by John S. Barclay, in the house on the corner of Main and Jackson streets, known as "Martha's Saloon." The house was of ill-fame, and Martha, the proprietress, of easy virtue. A few weeks before the murder occurred, she had, while on a business visit to Chinese Camp, there met and become enamored of young Barclay, and the sen- timent being returned by him, marriage followed. Then returning to Columbia, the saloon was re-opened by the pair. Smith, a well-regarded sort of man, said to have been affianced to a young lady resident of Columbia, hav- ing been drinking on that fateful day, though usually a rather temperate man, became embroiled in a quarrel with Martha, in consequence of having broken a pitcher. High words following, Barclay came to the rescue of his wife and shot Smith dead in the melee. Almost instantly the man was arrested, taken to the town lock-up and there placed in confinement.
Soon the people gathered, and in a very short time a large and excited mob surrounded the jail. J. W. Coffroth, Esq., addressed the assemblage, stating that ordinarily he was in favor of sustaining the laws, but that the occurrence was of a character to demand the speediest vengeance, and to warrant the people in taking the execution of the law into their own hands, and to mete out justice upon the spot; that the deceased held him as a very near and dear friend. He then passed an encomium upon the departed, and expressed a hope that the people would move, and that promptly. He had been elected, he said, to make laws, but upon this occasion he advised to lay them aside.
Upon his conclusion a rush was made upon the jail, then held by Town Marshal Carder and a few police officers, who attempted to keep the mob back, but were speedily disarmed and hurried aside by their assailants. At this
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juncture, Mr. Heckendorn, the editor (so-called) of the Columbia Clipper, was, by acclamation, appointed Judge; another person was made Marshal, and a jury of twelve men was nominated. These preliminaries being concluded, a second rush was made upon the jail, and a keg of pow- der was placed in position to blow the iron doors open, but fortunately it was not used. Crowbars, sledge-hammers and axes were applied instead, and the doors gave way. Simultaneously with their opening, the prisoner sprang out as if to make his escape by running; but he was instantly borne down by numbers and carried by the excited mass up-town, amidst cries, oaths and imprecations.
Finally, after one or two brief halts, the crowd arrived at the flume of the Tuolumne County Water Company, on the road to Gold Springs. A ring was formed and " Judge " Heckendorn took charge of the proceedings. Mr. Coffroth was appointed prosecuting attorney, and John Oxley (Assemblyman from Tuolumne) counsel for the pris- oner, and a jury was called, consisting of James McLean, Charles Williams, George Woodbury, Daniel Willcombe, A. H. Leavitt, John Douglas, John Bostwick, G. Lumsdell, T. Walls, Joseph Hussey and J. B. Plank. After much discussion, the question was put, "Shall the jury be sworn ?" and it was decided in the affirmative, and hearing the evidence began. Marshal, Briggs, Alexander and Keyes, witnesses for " The People," testified in substance that Smith, slightly drunk, was making preparations for starting homeward, he residing at Knickerbocker Flat; that while making a farewell round of visits to the saloons, he entered Martha's place along with the four witnesses mentioned, and accidentally or intentionally knocked a pitcher off the counter, or bar, when the mistress of the place appeared and demanded to know who did it. Little was evolved save that, getting in a dispute with her, Smith
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seized and threw her into a chair. At this juncture Bar- clay appeared from the next room, and seeing the situation of affairs, drew his revolver and instantly fired, with fatal effect.
As the examination progressed it was not hard to see that the prisoner's fate was determined on, and that he was beyond human help. Witnesses who it was supposed would testify in his behalf, were not allowed within the ring, and even his advocate was interrupted and his voice drowned. Mr. Coffroth, on the contrary, was allowed full swing for his denunciatory speeches, and seemed to have everything his own way from the first; naturally, too, for at this time he was the political idol of the ruling party. His remarks to the jury were about in this style: "Gentlemen, I have but little to say. You all knew the deceased, and knew that he was honest, good and high-minded. You have all heard the testimony and know the witnesses; they have lived long among you. The prisoner, I have testified, had a good character; but I am not here to plead his char- acter. The only question to ask is, Who is the murdered man, who the murderer? If you are satisfied that the prisoner shot Smith, then it is your duty to declare it, and it is your duty to declare the penalty. There is a higher Court to ask for mercy. This man should fulfill the Divine Law of 'An eye for an eye, a tooth for a tooth, a life for a life.' 'Whosoever sheddeth man's blood, by man shall his blood be shed.' [Applause.] Gentlemen will please avoid any applause for the poor remarks I may offer. Consider the feelings of the prisoner. Who can estimate his anguish when he thinks upon the ignominious death that now awaits him ?"
The prisoner, who had been sitting upon the ground with his hands over his face, now looked up and besought Mr. Coffroth to request of the jury a little time in which he might arrange his private affairs.
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