USA > Nebraska > Adams County > Past and present of Adams County, Nebraska, Vol. I > Part 16
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The trial lasted nearly four weeks and the court room was crowded, very many of them being women. One interested specta- tor was a small boy, who sold peanuts to the hungry visitors to the court. He was stationed near the entrance in a little room on the north side of the building, and while he plied his business with energy and much satisfaction with the generous patronage, he enjoyed the dime novel features of the case to the utmost and kept his eyes upon the prisoners and the lawyers whenever the stress of business per- mitted. Then and there he resolved to become a lawyer when he should become a man. He never changed his mind and in due time came to preside as judge over the very same court in which his ambition was first awakened. The boy is now Judge Harry S. Dungan, judge of the Tenth Judicial District.
Mrs. Olive, wife of the chief prisoner, was in constant attendance at the trial. She wore throughout a look of anxiety but admitted no appearance of lack of confidence that her husband would be cleared. With Mrs. Olive was their son, a lad of about ten, who was envied by the small boys of the town because of the inexhaustible supply of marbles which he seemed to have at all times.
Olive and those brought with him here for trial as well as the murdered men, Mitchell and Kitchem, were cattle men operating their business in the western part of Nebraska, chiefly in Custer County. Custer County at that time was not organized for judicial purposes, nor had it been joined to any organized territory for that purpose and that is the reason that the case was tried in Adams County, which at that time was a part of the Fifth Judicial District.
Late in the autumn of 1878 a warrant had been issued for the arrest of Mitchell and Kitchem on the charge of cattle stealing and on November 27th of that year a party of men set out to arrest them. They proceeded to the house of Mitchell who resided on Clear Creek and here they found the two men. Mitchell and Kitchem resisted with a brisk gunfire which is said to have been in return of volleys fired at them by the deputies. The two men declared that they were
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willing to be arrested and tried by the proper authorities but they feared the cowboys of Custer County.
After the exchange of a number of shots, Kitehem was wounded in the arm. Immediately following his wounding he shot and killed a deputy by the name of Stephens. In the confusion that followed the killing of Stephens, Mitehell and Kitchen eseaped.
The deputy Stephens, it transpired, was a brother of I. P. Olive, the rich eattleman of the South Loup country. The name, "Stephens," was an alias. Stephens is described as a rough eharacter with proclivities of a desperado. It is also reasonably certain that there was a woman in the ease, for it is known that both Kitehem and Stephens had been paying court to a handsome widow and resi- dents of that country declared that Stephens as well as Olive had been active in securing the warrant for the arrest of Mitehell and Kit- elem in order to dispose of the latter as a rival for the affection of the widow.
At all events Olive offered a reward of $1,000 for the capture, dead or alive, of both Mitchell and Kitehem. They were soon eap- tured and arrested and several sheriff's and deputies of the adjoining counties received their proportions of the reward offered by Olive.
While the two men were being taken from Kearney County to Custer County for their preliminary examination, in the custody of Sheriff Gillan of Keith County, Phil Dufrand of Custer County and others, the party was set upon by a band of armed men and the prisoners were taken away.
The following afternoon the bodies of Mitchell and Kitehem were found in a eanyon near the south line of Custer County, north of the present Town of Lexington, but in Custer County. The body of Kitehem was still hanging to the limb of a tree by a rope which had been fastened about his neck. The rope with which Mitchell had been hung to the same limb had broken and the man's body lay in ashes still smouldering at the foot of the tree. The body, however, was slightly supported by the left arm the wrist of which was hand- cuffed to the right wrist of Kitchem as he hung from the limb.
In the indictments brought against Olive and his party it was charged that the two men had been shot as well as hung, several shots having been fired into each body, and that their clothes had been saturated with oil and set on fire. The testimony of the prosecution sought to establish that the men had been burned alive after being tortured with knives.
The state attorney general, Gen. C. J. Dilworth, set about at once to gather information that would lead to the ending of these
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deeds of violence which were terrorizing the homesteaders of western Nebraska and in a short time was able to inform the authorities at Kearney that everything was ready for the making of arrests. A num- ber of deputies were sworn in at Kearney and the party proceeded to Plum Creek, now Lexington, where the arrests were made. The cap- ture was arranged so that the men were taken unawares and singly. I. P. Olive, who had declared that there were not enough inhabitants in the state to capture him, was taken without trouble in the post- office. A brother of the murdered Kitchem was one of the deputies that arrested Olive, and it was he that placed the handcuff's upon his wrist. When Olive was introduced to him, the former merely smiled and remarked, "That's all right, boys."
The State of Nebraska appropriated $10,000 for the prosecution of the case and retained John M. Thurston of Omaha and others to assist General Dilworth.
At a special term of the court for the Fifth Judicial District held at Hastings in February. 1879, Judge Gaslin designated Adams County as the county where the crime should be investigated by the grand jury and tried if an indictment should be found. On Febru- ary 27th District Attorney T. D. Scofield filed three indictments charging I. P. Olive, William H. Green, John Baldwin, Fredrick Fisher, Bion Brown, Barney J. Gillan, Pedro Dominicus, Dennis Gartrell and an unnamed man with murder in the first degree in the killing of Mitchell and Kitchen.
The defendants retained as their attorneys James Laird of Hastings, Beach I. Hinman of North Platte and General Connor of Kearney; associated with these in the defense were Attorneys Neville, Hamen and Warrington.
The case was set for trial April 1, 1879, and the defense began a stubborn resistance which was kept up unceasingly throughout the month that the trial lasted. Motions to quash the indictment and asking for change of venue were overruled by the court in rapid succession. In support of the motion asking for change of venue hundreds of affidavits were signed by citizens of Adams and other counties declaring that on account of the stories that had been printed by the newspapers throughout western Nebraska concerning the defendants and the rumors that were constantly repeated it would be impossible to find an open minded jury in Adams County, and the same was declared of Buffalo, Furnas, Custer and other counties.
The motion to quash was on the ground the grand jury had not been called in the manner required by law and that the grand jury had been called from one county while the alleged crime had been
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committed in another. It was also urged that the grand jury had been called at a special term of the court and it was claimed that that procedure was illegal; also that Custer County was properly organ- ized but did not belong to the Fifth Judicial District and that therefore Judge Gaslin did not have jurisdiction to try the case.
All the objections of the defense having been overruled on April 7th all the defendants except Fredrick Fisher and 1. P. Olive demanded separate trials. This the court granted and the case pro- ceeded to trial. The brilliance of James Laird was never more in evidence than at this trial, though his especial duty seemed to be to arouse the anger and disturb the judicial serenity of the court, evidently for the purpose of endeavoring to lead Judge Gaslin to commit judicial errors. Laird's address to the jury was talked about for years and no doubt the reputation won at this trial was a factor in securing for him later the nomination and election to Congress.
John M. Thurston, too, had his reputation to make at this time and from the time of the trial on he was known throughout the West as the silver tongued orator. In later years he became a senator of the United States and attained a high place in the national council of the republican party.
It is probahle that the attorneys decided to try Olive and Fisher together that the former might benefit from whatever sympathy the youth of the latter might win from the jurors. Fisher was scarcely twenty years old and very youthful in appearance. Olive and Fisher were found guilty of manslaughter and sentenced to the penitentiary.
The case was appealed and the Supreme Court held that the indictment and trial in Adams County was an error and that the proceedings should have been brought in Custer County. Although a new trial was ordered the grand jury of Custer County took no action, and the prisoners, released on their own recognizance, did not face the charge a second time. Several years later Olive was fatally shot in a quarrel over a poker game in a town in Kansas.
Sheriff Gillan and three other men implicated in allowing Mit- chell and Kitchem to be taken from them by the band that killed the two, were arrested and lodged in the Buffalo County jail.
John W. Lyman was the foreman of the grand jury that indicted Olive and his friends.
Because of fear of vengeance from the friends of Olive, it was difficult to find men willing to take the risk of sitting on the jury in this trial. The selecting of the twelve men was completed on April 10th. The following comprised the jury: James Slote, W. M. West. A. J. Millett, Thomas Carroll, Connor Knopf, C. O. Henry, A. R.
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Pierson, H. M. Palmer, J. C. Davis, H. L. Pratt and William Bailey.
It was the influence of Thomas Carroll that saved Olive from being found guilty of murder in the first degree. The strong resist- ance of Carroll to his fellow jurors resulted in the verdict of man- slaughter.
During the trial, Bion Brown turned state's evidence and narrated the story of the crime in detail. Brown was released.
The trial of Baldwin and Green was begun April 24, 1879. In this case Pedro Dominicus, as well as Bion Brown, testified for the state. The jury disagreed, however, and the men were taken to the Kearney County jail to await a second trial. There they succeeded in breaking jail and making their escape.
Next to Olive and Fisher of the men tried here the Mexican, Pedro Dominicius and the negro are best remembered. The Mexican was a one-eyed man and peculiarly vicious in appearance. The negro insisted on singing in a loud voice whenever there was an opportunity, and it was his habit to clamber up to the high windows of the jail from where his strong voice in song could be heard for many blocks.
FIRST PROVEN MURDER
The first murder proven to have been committed in Adams County was in February, 1879, when William John McElvoy, alias John Brown, was convicted of the murder of Henry Stutzman at his home about four miles southwest of Hastings. McElvoy was a young man who usually made his home with a relative in Red Cloud. Dur- ing the year or two preceding the murder of Stutzman McElvoy had worked for a number of farmers in Adams County, and at the time of the murder was employed as a printer in the office of the Hastings Journal.
On the evening of February 7th McElvoy left Hastings afoot. starting south. He was armed with a rifle and a revolver and said he was going to Red Cloud.
The next morning Cameron Belliel, a neighbor, while passing the house of Stutzman noticed that the latter's mules were gone and the atmosphere surrounding the place suggested to him that something was wrong. Belliel went up to the house and called Stutzman by name several times. He got no reply and now about convinced that there had been foul play he went to the home of Joseph Wolf and informed him of his suspicions. The two returned to the home of Stutzman and broke through the door.
They found Stutzman dead. The body was still on the chair
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with the head bent over the table. Under the head of the dead man a tin pan had been placed to receive the blood which had flown from two wounds, one from a rifle bullet and the other from a revolver.
The news of the murder spread rapidly and the people of the community gathered in numbers to search for the slayer. A new snow lay upon the ground and the tracking of the mules was easy. The tracks led south and thither went the posse. Clark, a Burlington engineer, while on the way from Red Cloud had noticed a man traveling south with some mules. Upon reaching Hastings and hearing of the murder he concluded that the man he had seen was the murderer. Following the receipt of this news another group, Clark among them, left Hastings to join the posse. McElvoy was by this time generally suspected.
About a mile south of the Blue River MeElvoy was caught with the mules in his possession. He made no resistance nor did he attempt to escape but maintained that he had killed Stutzman in self defense and unintentionally at that. He explained that seeing he had killed the man it occurred to him that he might just as well take the mules. The party with their prisoner reached Ayr a few minutes before the arrival of the northbound train upon which McElvoy was brought to Hastings.
Meanwhile the news of the capture of MeElvoy had been brought to town by those who had turned back when he was first captured, and the recital of his story greatly incensed the populace. A great crowd gathered near the jail on the present Court House Square and lynching was freely talked of. Lynching, indeed, seemed imminent.
That MeElvoy was not hanged immediately upon his arrival in Hastings is probably due to the effort of the Rev. D. Schley Schaff who was pastor of the First Presbyterian Church. From a buggy the minister addressed the angry crowd and besought them to allow the law to take its course and save the credit of Adams County. He succeeded in allaving the feeling for the time. Schaff, by the way was the son of Doctor Schaff, the Bible scholar of international repu- tation: he was also a relative of Admiral Schley.
Later that evening, however, the populace assembled a second time and lynching was again imminent. By a ruse Sheriff Martin led the mob to believe that MeElvoy was on the south side of the jail and while they sought to reach him from that side the officer and his deputies got the prisoner out through a window on the north side. Ile was hurried to a waiting wagon and driven rapidly to the Burling- ton track and put aboard a west bound train at a point near the present roundhouse. He was taken to Kearny and lodged in jail.
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The grand jury soon indicted McElvoy on two counts; first, mur- der in the first degree by shooting Stutzman with a rifle. The second count charged the same offense with a pistol.
Judge Gaslin immediately convened the court and McElvoy was arraigned. The case for the state was conducted by the district attor- ney, T. D. Scofield, who was assisted by A. II. Bowen, John M. Ragan and A. T. Ash were retained by the defense. McElvoy entered a plea of "Not Guilty."
The following were the jurors in the case: A. J. Adams, R. II. Vanatta, C. A. Lane, E. W. Hall, T. L. Orton, M. L. Cook, J. W. Sheffield, W. T. Pomeroy, J. II. Spencer, D. Bigelow, S. G. John- son and George Beatte.
The defense maintained that MeElvoy and Stutzman had quar- reled and that the latter had seized the former's rifle and that MeElvoy then seized the gun and that a struggle ensued during which the fatal shots were fired. The prosecution sought to show that the prisoner shot Stutzman when the latter returned to the house from outside and upbraided the young man whom he found ransacking his pockets. Stutzman was a bachelor and there was nobody in the house but the two.
The trial lasted only one day and about 10 o'clock the following day the jury brought in a verdict of "Guilty" and Judge Gaslin sentenced the prisoner to hang May 29, 1879. Sentence was pro- nounced in a little less than eight days after the commission of the murder.
McElvoy, however, was not hanged. On appeal the Superior Court remanded the case back for new trial. At the second trial he was allowed to plead guilty to murder in the second degree, and was sentenced to life imprisonment. Ten years later he was pardoned by Governor Thayer.
I. P. Olive and his friends were in the Hastings jail at the time that McElvoy was confined there awaiting removal to the peniten- tiary. When Olive received his ten-year sentence he fumed and raged angrily. declaring that he would rather be hanged than put in ten years in the penitentiary. This view did not appeal to MeElvoy who stoutly maintained that after experiencing a death sentence and a life term sentence he was prepared to testify that the latter looked a good deal the better to a fellow.
YOCUM MURDER TRIAL
On the afternoon of February 22, 1892, Capt. A. D. Yocum. prominently identified with Hastings and the development of Adams
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County, having served on the board of county commissioners and as mayor of Hastings from April, 1876, to April, 1877, shot and killed Myron Van Fleet, also a resident of Hastings. The shooting took place in front of the cigar store located at 512 West Second Street. A revolver was the weapon used. The shooting resulted from the bad feeling aroused because of reports circulated by Mr. Van Fleet concerning Mr. Yocum's daughter, and which he declared were slan- derous. Jeff Teemer was arrested with Captain Yocum as an accom- plice in the killing. The trial of Yocum was held in the District Court in March. 1892. The jury returned a verdict of manslaughter on the 24th of March. The case against Teemer was dismissed on the motion of the county attorney. The release of Yocum was procured and he did not serve any of his sentence.
In the prosecution of Captain Yocum, County Attorney Chris Hoeppner, a brother of Ernest Hoeppner, was assisted by Batty. Casto & Dungan, C. II. Tanner and W. P. McCreary. The defense was conducted by A. H. Bowen, M. A. Hartigan, C. J. Dilworth, Jesse B. Strode and J. G. Tate. In the dispatches of General Vodges, commander of the federal forces before Charlestown, S. C. while complimenting his staff officers, Corporal A. D. Yocum is mentioned as having displayed conspicuous bravery and efficiency in furnishing information of the enemy, for which he was promoted to adjutant of his regiment, the Sixty-second Ohio. From Hastings, Captain Yocum went West and took up land in a colony south of Yuma, on the Arizona side of the Colorado River. At 9 o'clock on a June morning, 1902, he committed suicide on the grave of his wife in Mountainview Cemetery at Pasadena, Cal. In a letter he left explaining his suicide he said: "Sixty years of relentless conflict with adversity have rendered me incapable of further usefulness in the world, mentally and physically."
THE MASON CASE
On the night of August 1, 1892, Delavan S. Cole was shot and killed in a little vacant building in the extreme southeastern portion of Hastings. Mr. Cole had come to Hastings in an early day, and the park that he laid out in the southeast part of the town was for many years the principal recreation grounds of the city. January 19, 1893, Mrs. Anna B. Mason, who lived near Mr. Cole, was arraigned in the District Court, charged with the murder of Mr. Cole. The accused woman pleaded guilty to the charge and was sentenced to four years in the penitentiary. She was pardoned by Governor
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Crounse on December 15, 1893. Her husband, Edward W. Mason, was arrested and charged as an accomplice of his wife in the crime. On April 15, 1893, he was acquitted by the jury. County Attorney W. P. McCreary was the prosecutor in these cases. Tibbets, Morey & Ferris conducted the defense.
HORLOCKER TRIAL
September 25, 1899, an information was filed in the District Court charging Miss Viola Horlocker with administering arsenic to Mrs. Anna R. Morey with the intent to kill. Miss Horlocker was released on 85,000 bail and the case came for trial in the March term, 1900. For many days the District Court room was crowded. The prosecu- tion charged that Miss Horlocker had concealed the poison in candy and then left the package at the home of Mrs. Morey, the package bearing the label, "Sweets for Mrs. Morey." This package was left at the home of Mrs. Morey April 10, 1899, and severe illness, almost resulting in the death of the recipient, had followed the eating of the candy. Miss Horlocker bore a high local reputation as a singer. She was employed as a stenographer in the law firm of which Mrs. Morey's husband was a member. She was acquitted of the charge by the jury March 30, 1900. She left Hastings and subsequently was married in New York, where she resides. County Attorney W. P. McCreary conducted the prosecution; John M. Ragan, R. A. Batty and John C. Stevens were the attorneys for the defense. Temporary insanity was the basis of the defense.
PEARSON CASE
On May 10, 1907, Bonde R. Pearson of Hastings was arraigned in the District Court, charged with the killing of Walter R. McCulla of Kenesaw. As narrated by the prosecution, McCulla was shot while standing at the telephone talking, in the Pearson home at 109 East Fifth Street. The accused stood outside the house and shot through the window. The weapon used was a shotgun. The shot struck McCulla on the left side of the back. He died from the wounds early July 30, 1906. The shooting was done about midnight, and was caused by the objection of Pearson to McCulla as a visitor to his home and an associate of his wife. The prosecutor was County Attor- ney John Snider, assisted by R. A. Batty. John C. Stevens and William F. Button defended. The defense contended that Pearson had been subjected to great and unusual provocation that had ren-
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dered him temporarily unaccountable. On May 10, 1907, the defend- ant was acquitted by the jury.
TRIAL OF ANDERSON
Arthur Anderson, a colored boy about twenty years old, killed Arthur Newell, a white young man of about the same age, on Feb- ruary 16, 1910, by striking him on the head with a billiard cue. The killing was done in a pool room on Hastings Avenue, near the First Street corner and on the east side of the avenue. Anderson resented being bandied about his bad luck at pool and a remark made about his color. After striking Newell, who died instantly, Anderson fled. He was not captured for several days, but when found not far from Glenville, his feet were so badly frozen that it was necessary to ampu- tate them at the Nebraska Sanitarium. He was arraigned in District Court March 24, 1910, and pleaded guilty to manslaughter. He was sentenced to five years in the penitentiary by Judge H. S. Dungan, and committed the following day. Newell, the young man killed, was also a resident of Hastings.
HARRY PALMER TRIAL
Sunday afternoon, April 2, 1911, Harry Palmer, aged twenty- six, shot and killed his wife, Odessa Palmer, aged twenty-two, at the home of her mother in the west side of Hastings. Mrs. Palmer died at the Nebraska Sanitarium about four hours later. After shooting his wife in the right breast with a revolver, the young man attempted to kill himself and inflicted severe wounds in the attempt. Mrs. Palmer had left her husband and gone to live with her mother. On the fatal Sunday the young man came with a buggy and asked her to return to their home in another part of the city. Upon her refus- ing, he drew the revolver and immediately shot her. On May 9, 1911, he pleaded guilty to murder in the second degree and was sentenced by Judge Dungan to serve twenty-two years in the penitentiary at Lincoln. He was later removed to the hospital for the insane at Ingleside.
NELSON TRIED FOR KILLING
The police at Hastings were notified August 5, 1885, that a negro boy by the name of Lish Nelson had stolen a lady's watch and chain at Holdrege and was believed to have boarded a train bound east-
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ward. J. M. Tennant was a member of the police force at that time, and on that particular night was in charge of the force. Officer Ten- nant ordered the police at the Burlington Station, C. J. Balcom, to be on the lookout. The latter officer about midnight observed a young negro clamber off a freight train coming from the west. When he ordered him to halt, the negro opened fire with a revolver, one of the bullets striking the policeman in the abdomen. Two days later the officer died from the wound.
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