USA > Missouri > Macon County > General history of Macon County, Missouri > Part 21
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Judge Andrew Ellison, of Kirksville, was appointed to preside over this circuit by Governor Hardin in 1876, to fill out the unexpired term of two years, occasioned by the resignation of Judge Jolin W. Henry. Judge Ellison remained on the bench for twenty-two years, when he retired to enter the practice of law. He associated himself with M. D. Campbell, a bright young attorney of Kirksville, and the firm developed an extensive business, which was considerably increased until the date of Judge Ellison's death, which occurred June 27, 1902. Judge Ellison was a brother of Judge James Ellison, of Kansas City; Judge William C. Ellison, of Maryville, and Judge George Ellison, of Canton, Missouri. He was born at Monticello, Missouri, November 6, 1846. The last official act of Judge Ellison occurred in Macon just before Christmas. A young couple was before him, each asking a divorce. The judge listened to both parties with great attention, and then decided that there was a case of temporary estrangement. He delivered a memorable opinion, in which he denied the divorce and urged the husband and wife to make up and give their little children the benefit of their united love.
Judge N. M. Shelton, the present incumbent of the Second Judicial Bench, was born in Troy, Lincoln county, Missouri, March 17, 1851. He was educated in the common schools of Lincoln county ; then attended the Parker Seminary at Troy ; from there he went to the William Jewell College and finished his education in the State University at Columbia. He studied law, was admitted to the bar in 1875, and in 1884 was elected to the Legislature, serving in the 33d General Assembly as chairman of the Committee on Education. In 1886 he was re-elected and in the sueeeeding Legislature was chairman of the Committee on Criminal
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Jurisprudence. In 1888 he was elected Senator from the 7th District and served four years, being chairman of the Committee on Judiciary. In 1898 he was elected circuit judge for a term of six years. In 1904 was re-elected. Judge Shelton has frequently been called to other circuits to preside as special judge. The business of the circuit is large and growing, his courts being open in one or the other of the counties nearly all the time. The present Second Circuit is composed of Schuyler, Adair, Macon and Shelby counties. (A more complete sketch of Judge Shelton will be found in the biographical department of this work.)
B. F. Drinkard, who had leased a large farm in Callao township, was tried and convicted of the murder of a man named Nichols, on the morning of August 28, 1879. Drinkard was sentenced to ninety-nine years in the penitentiary. Pending his appeal to the Supreme Court he escaped from jail and has since remained at large. The circum- stances of the killing are given in the former history of Macon county as follows: Drinkard had leased a farm from the Widow MeVickar. Nichols was a farm hand living near Mrs. McVickar and Drinkard. From some cause ill-will had developed between Drinkard and Nichols. On the morning of the killing Nichols loaded his wagon with sorghum cane and started with it to the mill. He drove through Drinkard's lot. Drinkard objected, but Nichols went on. Returning from the mill Nichols again proceeded through Drinkard's lot and, as he checked his team for his little son to get in the wagon, Nichols was shot in the back with the contents of a rifle. Nichols fell from his seat to the bottom of the wagon. He was found by Mrs. McVickar, Mrs. Nichols and James Mott, who had heard the boy scream and the shot. After the shooting Nichols' boy saw Drinkard running to the house with his rifle. Nichols died within a few hours. Drinkard gave himself to the officers, was indicted at the September term of the Circuit Court and tried in the May term, 1880.
The state was equipped with elaborate plats of the ground and a figure illustrating how the ball had ranged. This was to prove that the deceased had been shot from behind. A pistol was found in Nichols' pocket. The defense was that Nichols came driving through the lot with his pistol presented, threatening Drinkard, who reached in the door for his riffe and stepped out in front; that he fired at Nichols in defense of his own life.
Ben Eli Guthrie was prosecuting attorney at the time. He was assisted by Col. John F. Williams. Drinkard was represented by Dysart
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& Mitchell, W. H. Sears, Col. R. J. Ebberman and Capt. John M. London.
It has been stated frequently that there were parties in Macon county who knew all the time where Drinkard was. While H. N. Graves was sheriff, a party reported to him that Drinkard was living at Hobart, Oklahoma. In June, 1907, Sheriff Graves went to Hobart and arrested a suspected party whose name was W. F. Davidson. Davidson told the sheriff he had made a mistake. Sheriff Graves was confident that he was right, but, owing to a failure to secure requisition papers, he was unable to bring Davidson back to Macon with him.
In February, 1909, Davidson came to Macon with his lawyer, T. J. Madden, for the purpose of conclusively proving that he was not Drink- ard. Some parties here, who were well acquainted with Davidson, testified to the fact that Davidson and Drinkard were two separate parties.
While the matter of Drinkard's arrest was under consideration in 1907, some Macon county parties, who were friends of the exile, got up petitions requesting the governor to pardon Drinkard, but as Drinkard has never been apprehended no official action was taken in the matter.
There was a peculiar killing in Ten Mile township on August 24, 1883. The parties to the tragedy were George Stewart and Walter Tracy. It seems that Tracy, with several others, was at work on the road near a bridge, when Stewart rode up and began shooting at Tracy, using a double-barreled shotgun, and afterwards a pistol. Tracy ran, Stewart following him, shooting as opportunity presented itself. Finally, Tracy fell and Stewart completed the work of death. Then he mounted his horse and rode away. ITis whereabouts have never been ascertained. The coroner's jury rendered this verdict :
"We, the undersigned jury, summoned to inquire of the death of Walter W. Tracy, in Ten Mile township, Macon county, Missouri, do find that he came to his death by means of three pistol shot wounds, inflicted at the hands of one George H. Stewart; and further, that said shooting was done without any provocation or just cause."
Cora Tracy, wife of the man who was killed, testified at the inquest that she was forty years of age. She said she had known Tracy a little over two years; that they were married May 4, 1883. The witness was a sister of the man who did the killing.
"Mr. Tracy asked me to marry him in January," said the witness, "at my house; no one else was present. My brother was in the lot. I never consented to marry him. I told Mr. Tracy I didn't want to marry him and that I didn't believe it would be any account. He begged
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and pleaded with me. When I was married there were present my mother, brother, the minister and ourselves. Mr. Tracy forced me to marry him. George H. Stewart, the man who did the shooting, is my brother. He was at home this morning and went to the blacksmith shop abont eight o'clock. He came back about nine or nine-thirty. Then he went to the shop after the wagon tongue. I didn't see him leave the house. He said he wanted to fix the wagon to go to Clarence. When he came home the second time he had a weapon or a stick or some- thing in his hand. He has a gun, but I don't know what sort of a gun it is. My brother did not speak to Mr. Tracy before this. Soon after we were married they had some sort of a settlement, since which time they have not spoken. I don't know what they fell out about. I know of no difficulty except the one between me and Mr. Tracy. I never heard my brother make any threats against Mr. Tracy. The reason I married Mr. Tracy was he treated me badly about a month before we were married. Our family consists of my mother, this one brother and myself. I never told what had happened to me until we were married, in the presence of Mr. Tracy and my mother and brother the morning before they went to Macon after the license. I said: 'Mr. Tracy, you have treated me badly.' He said: 'I know I have; I did it to make you marry me.' I told him I would rather be buried alive than to marry him under these circumstances. He said: 'If you will marry me, I will make you a lady all your life.'
"There was no indication of anger in my brother after I told this. Tracy proposed to go after the license to Macon, and they went of Mr. Tracy's own free will. No angry words passed. They went from Macon to Clarence after a minister. My brother never asked me to marry Mr. Tracy. I married him just because he begged me to and because he had treated me the way he had. I was not living with Mr. Tracy at the time of the killing, and have not lived with him since twenty-five days after we were married.
"The reason I did not live with him was, his mother and father treated me so badly when he was gone, and I had no protection.
"When my brother came home this morning, he said to me: ' "Jack"-that is what he always called me-'I have killed Tracy.' I said: 'Why, brother George!' He just turned and went off and I haven't seem him since. We moved from Logan county, Kentucky. Middleton, in Simpson county, was our postoffice. My brother never had a difficulty before this that I know of. He never gets intoxicated, but he is mighty high-tempered. Mother heard George say he had killed Tracy."
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Bazle Griffin testified at the inquest as to what occurred at the shooting :
"James P. Powell, David Miller, Clay Hubble, Day Griffin and myself were at the bridge across the draw, between my house and David Miller's, about 10:30 this morning. I looked up the road and saw George Stewart coming. He rode within about thirty steps of the bridge, hitched his horse and got off. He eame right down to the bridge and stopped within twelve or fifteen feet of where Tracy was. Stewart said : "Every dammed one of you, get out of the way! I have nothing against any of you except Tracy. When he married my sister he agreed to treat her like a lady and he has not done it." Tracy raised up and started across the bridge, bent over, and, just as he did so, Stewart fired. When Tracy got across on the south side, about ten feet, Stew- art fired the second shot from his gun. Tracy got into a treetop that was lying twenty or thirty feet from the bridge. Stewart pulled out a pistol and fired again. Tracy crossed on the west side of the bridge and Stewart followed across and fired a second shot from the pistol. This shot hit him in the back. At this time Tracy was throwing up his hands. He stopped, staggered and fell on the left side. Stewart followed right up and put the revolver in about one foot of Tracy's neck and fired twice, each shot taking effect in Tracy's neck. Then Stewart turned, walked back across the bridge, and Miller said to him: ‘You will be sorry for what you have done.' To this Stewart replied : 'Boys, I am already sorry, but I had to do it and I have done it.' Stewart then got on his horse and went slowly out east towards his home. He did not seem angry or excited when he killed Tracy. He went away cool and quiet."
A goldbrick game, played in Macon county, became the subject of a most sensational trial in the Circuit Court in 1890. W. A. Atkins, alias George Morgan, a St. Louis man, was arrested by Sheriff James W. White, in 1889, on a charge of attempting to sell a brick to Hiram K. Bargar, a banker of Linn county. It was said that Atkins ran with a gang of crooks known to the police as Dave MeCord, James Murray, Doc Kerns, John Boquet, Bartley Kelly, Thatch Grady and Billy Boquet. Atkins told Bargar that he was the discoverer of and owner of a fabulously rieh mine in the west. He said that his partner, a half-breed, was in a wigwam on the banks of the Chariton river in Macon county, and that he had threatened to scalp Atkins if he would dare to breathe the secret to a living soul. After some parley with the banker, Atkins prodneed some samples, which he told Mr. Bargar that he could take away with him and have tested if he would deposit $1.500.
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It seems that the meeting took place in Macon county. The gold briek, which was offered in evidence at the trial, contained several drill holes in it. The gold for the test was from drilling's made in a $20 gold piece, which had been drilled with a dozen or more holes. Sheriff White secured the $20 gold piece and for many years wore it as a watch eharm. Of course, when the samples were shown to a jeweler he pronounced them gold, as they really were, having been taken from Unele Sam's money. But the briek itself was only worth its weight in brass.
Mr. Bargar went home to get his money, and casually told the cashier what he was going to do with it. Then the eashier informed him that he was in the toils of swindlers and the thing for him to do would be to institute prosecution at onee. Atkins was arrested before he knew that he had been suspected, but the Indian accomplice managed to get out of the country.
Atkins was ably defended. His wife, who lived in St. Louis, was a fine-looking, intelligent woman. She retained ex-Governor Charles B. Johnson and she was a most interested spectator at the trial. Mrs. Atkins created a scene when the jury found her husband guilty and assessed his punishment at two years in the penitentiary. She shook her white fists into the jurymen's faees, exelaiming: "You wieked, wieked men! How could you send my poor boy to the penitentiary!"
She became very excited and her sereams could be heard for bloeks. With great difficulty she was prevented from accompanying her hus- band to jail and spending the night in his cell. She constantly wrote notes to Judge Ellison, imploring him to pardon her husband. Atkins was released on a $3,000 bond. Pending his appeal to the Supreme Court, he jumped his bond and no one heard of him for ten years, when he was apprehended at Portland, Oregon, and brought to Missouri by Marshal See of the Supreme Court. While Atkins was a fugitive from justice the Supreme Court had affirmed the finding of the lower court.
A part of the evidence introduced at the trial here was the gold briek, the $20 gold piece with the holes in it, a blanket, wig and hat worn by the "Indian," and a bottle of gold dust which was used to color the brick. The brick weighed forty-two pounds. To make the thing appear perfectly fair, the Linn county speculator was permitted to selcet the place for the drilling. The dust was then carefully wrapped in a small piece of paper and the prospective purchaser thought he had in his pocket from that time until they reached the jeweler the identical partieles which he had seen drilled from the brick, but, in the meantime, Atkins had changed the samples and substituted therefor the real gold, which he had obtained by drilling the $20 gold piece.
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Atkins denied that he was the party who conducted the transaction, but his identity was clearly established by the jeweler, Mr. Bargar and others.
This was the most daring swindle game ever pulled off in Macon county. In speaking of Atkins and his fellow-crooks, Detective Her- rington, of St. Louis, said:
"They were the slickest and most daring confidence men in the country. They stayed in bands and worked together so well they often fleeced the shrewdest men. The game was a good one in the old days, but they couldn't fool anyone with it now.
"McCord, who is one of the most prominent members of the crowd, originally came from the West, and was thoroughly conversant with all the customs of the Indians. He talked their language fluently. It was their game to select one man-sometimes Atkins and sometimes McCord-to act the part of the Indian. He would dress in a wild cus- tom and paint his face like a savage. When they came to a town where they were going to operate they established a tepee on the outskirts. The Indian was installed therein, and everything about him, campfires, etc., were made to look as realistic as possible. The other members of the gang would then go out and hunt up a victim, who would be brought to the Indian and a bargain would be struck through an interpreter. It was explained to the 'come-on' that the Indian came from the far west, where he had mined the yellow stuff in chunks and did not know its real value. They only asked a slight rake-off on the deal for steer- ing a man against it. The victim would ask to examine the brick, where- upon some genuine specimens of gold would be presented to him, which stood the test at the jeweler's. As a nsual thing, each operation netted the gang from $2,000 to $5,000.
A number of interesting trials over school matters have occurred in the Circuit Court of Macon County. Several of these were the result of complaints against teachers for overzeal in chastizing pupils. In nearly every case of this sort the verdict has been for the teacher. Per- haps the most significant trial took place at La Plata, in May, 1896. Judge Andrew Ellison was on the bench then. Miss Lizzie Spencer, who taught the school in District 1, Township 60, Range 13, sued some of the patrons of the district for $7,000 for libel. Her petition alleged that the defendants, William H. Billings, George W. Billings, Thomas J. Billings, James Huffman, Mathias McHenry and John Trout, Jr., sent to the school board on June 15, 1895, the following note:
"We, the undersigned patrons of this district, would respectfully
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ask the said school board to withdraw Miss Lizzie Spencer as teacher of said district, as we consider her wholly unable to teach our school."
The petition was freely circulated in the district, but only the names above given were secured as signers. The school teacher com- plained that the circulation of this petition was an act of malice. The defendants denied this. Considerable oral testimony was taken. The case was tried in the opera house and attracted a large number of spectators, many of them being women and girls. All the parties. to the litigation were well-known in La Plata, and were people of good character. At the conclusion of the plaintiff's evidence, the defendants offered a demurrer. Then came the arguments by the attorneys, which were very interesting. These lasted for a greater part of the day and then Judge Ellison delivered this memorable opinion :
"After hearing you gentlemen, with a great deal of interest and pleasure, I will state that it is, in my opinion, a matter of regret that the defendants should have circulated this petition about the young lady. I think it is a matter equally to be regretted that this suit should have been brought. It is a thing naturally trifling in itself. But, pass- ing that circumstance as not one of concern to the Court, the charge in this case that the defendants said of Miss Lizzie Spencer, as a teacher of said district, that 'we consider her wholly'-not incompetent, as quoted here by counsel a while ago-but 'we consider her wholly unable to teach our school.'
"Now, the question is, is it a libel for patrons of the district to say about a man or woman that we consider him or her 'wholly unable to teach our school?' Is it a libel for patrons to publish of and con- cerning a man or woman that 'we consider him'-or her-'wholly unable to teach our school ?'
"It is not, in my opinion, any more than for any lot of electors or voters to say of a man running for the Legislature that we believe him wholly unable to discharge the duties of a legislator-or as to a con- gressman or as to a sheriff or a public school teacher. The teacher of a public school is 'an officer drawing public funds, concerning which every tax-payer and resident of the district has some interest, the same as in the office of sheriff or other official position.
"I do not wish to be understood as saying that persons ought to always speak their minds on this subject, but if they choose to avail themselves of the privilege of the law they may do so if their com- munications are couched in decent and proper language. This language
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is as follows: 'As we consider her unable'-not unfitted-but 'wholly unable to teach our school.' I think it is not actionable per se.
"Again I think, under the uncontradicted law in the case, that it is a privileged communication; that, while it is to be regretted, people always avail themselves of their privilege, yet the law confers it upon parties interested to say verbally, or put in writing, if couched in decent language, that they oppose such and such person because they believe. he is incompetent to discharge the duties of the office in question. If they had said of this girl, 'we think her no lady,' it might have been different; or if they had said, 'we think that she is a professional fail- ure'; it might have been different, though some courts would have justified even that. But they simply say: 'We consider her wholly'- not incompetent-but 'unable to teach our school.'
"If they thought that they had a right to say it, although it may have been in poor taste ; the demurrer to the evidence will be sustained."
An "unwritten law" case, which became somewhat noted in Mis- souri, was that of the State vs. Sealous Grugin. Grugin was a farmer living four miles southwest of Atlanta. Walter Hadley was a son-in- law, having. married one of Grugin's eldest daughters. Hadley ran a small farm not far from where his father-in-law lived. Grugin's yonng- est daughter, Alma, was sixteen years of age at the time of the trouble. The Hadleys lived in a small frame house of two rooms. On one occa- sion, Alma went to visit her sister and brother-in-law and spent the night there. It is said that she was engaged at that time to a young man named George Stephens, whom she afterwards married. A few days after Alma returned to her home she told her father that her brother-in-law, Walter Hadley, had abused her. Grugin, it is said, had bitterly opposed the marriage of his other daughter to Hadley and had never been on very good terms with his son-in-law. On May 6, 1896, Grugin took a double-barreled shotgun and went to the field where Hadley and his wife were working. Mrs. Luella Hadley, wife of Walter Hadley, testified that her father had shot twice at her hus- band, the second shot killing him instantly. Grugin promptly came to Macon and surrendered himself. On the way to town he met the sheriff coming after him but, as neither knew the other, they merely passed the salutation of the day and each went on to his respective destination. Grugin was defended by Dysart & Mitchell and Guthrie & Franklin. R. W. Barrow prosecuted. Grugin told his story frankly. He described the journey he had made to the Hadley home and the shooting.
The issue involved the principle of what has been called the "un-
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written law," a man's right to protect his home to the death. Judge Ellison was on the bench during the first trial of Grugin. When it came time to argue the case the court room contained many who were not in the habit of attending murder trials. Ethelbert Talbot, Episco- pal Bishop of Wyoming and Idaho at that time, was in the audience.
In summing up on behalf of the state, Mr. Barrow made a remark- able address, portions of which were printed in some of the leading newspapers of the west. Mr. Barrow said:
"Gentlemen, my talented friends at the other table have spent a most profitable half-day in instructing you and in endeavoring to lift your minds to holier thoughts. You cannot but feel improved by what you have listened to-I know that I feel so. I shall not attack a quo- tation they have made from the Bible; they are all true. They might have added one, which, possibly, in the rush of incidents before them they necessarily omitted-'Thou shalt not kill!' I give it to you now, so as to complete their argument.
"The history they have cited is also authentic; I do not ques- tion a line of it. In my humble judgment there never was a much better poem written than 'The Cotter's Saturday Night.' It emanated from the heart of a Samaritan-not a murderer. All these things are beautiful and we are under obligations to our friends for bringing them before us. But in their remarks they have neglected one little thing-the case at bar.
"There will not be found a scintilla of the ancient history in the stenographic notes lying on the reporter's table. The quotations so graphically referred to by the attorneys for the defendant were not sworn to by a single witness on the stand. The tears which Captain Guthrie caused us to shed were over a piece of poetry not admitted or even offered in evidence. The weeping wife of the prisoner is no greater object of commiseration than is the young widow of the dead man. The alleged ruined home of Mr. Grugin is not as desolate as is that of Mrs. Hadley.
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