Rhode Island : three centuries of democracy, Vol. II, Part 26

Author: Carroll, Charles, author
Publication date: 1932
Publisher: New York : Lewis historical Pub. Co.
Number of Pages: 716

USA > Rhode Island > Rhode Island : three centuries of democracy, Vol. II > Part 26

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Nicholas S. Gordon was arrested, and with him also his brothers, John Gordon and Wil- liam Gordon. The grand jury indicted John Gordon and William Gordon as murderers, and Nicholas S. Gordon as an accessory before the fact. Of the three brothers, Nicholas S. Gor- don was the eldest. He had emigrated from Ireland seven or eight years before the crime, had purchased land in Cranston and constructed on it the building used as house and store, and lived there with his mother, Ellen Gordon, and a younger woman, Margaret Gordon, his sister. Nicholas S. Gordon had "paid the passage" or furnished the money necessary to bring his mother, three* brothers and sister to America; they joined him in Cranston in July, 1843. The younger brothers were in destitute circumstances, and were occasionally furnished by Nicholas with his own clothing. Except when employed elsewhere they lived with Nicholas ; he was the head of the family. One of the brothers, John, having found no regular employment, was living at the Gordon house in December, 1843; William at that time worked and boarded in Providence. Nicholas had planned his store for the sale of liquor; because of Amasa Sprague's opposition-and Sprague, by reason of wealth and ownership of the factory in the community, was almost omnipotent-Nicholas S. Gordon had been refused a retail liquor license. Evidence was introduced at the trial to show that Nicholas S. Gordon, in the presence of John Gordon, had denounced Amasa Sprague, and had declared "that he would be revenged of him; that he would come up with him, if he lived; that he would be the death of him, with other expressions of like violent and threatening character."t Revenge for interference with Nicholas S. Gordon's business was the motive alleged for the murder. An investigation by the Attorney General preceding the indictment revealed an alibi for Nicholas S. Gordon; several witnesses were found who had seen him in Providence at Mass on the morning of Sunday, December 31, 1843, and at a christening later in the day, at an hour that would have made his reaching the place of the crime impossible. In the indictment of Nicholas S. Gordon as an accessory, he was charged with having incited his brothers John and William, to murder Amasa Sprague.

John Gordon and William Gordon were tried together before the Supreme Court and a jury, Chief Justice Durfee presiding. The case was conducted by able counsel on both sides. Joseph M. Blake, Attorney General, 1843-1851, was assisted by William H. Potter, Esq., asso- ciate of General Albert C. Greene, whom Senator Sprague had retained to assist the Attorney

*Another brother, Robert Gordon, was not indicted.

¡The quotation is from the decision, State vs. Gordon, 1 R. I. 179. For the statement of the case, the author has had access also to a printed report of the testimony and arguments of counsel, made from steno- graphic notes taken at the trial.

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General. For the defence appeared General Thomas F. Carpenter and Samuel Y. Atwell, Esq. At the opening of the trial the court granted as a legal right the request for a separate trial for Nicholas S. Gordon, who was indicted as an accessory, but refused to grant the request, addressed to its discretion, for separate trials for John Gordon and William Gordon .¿ This first ruling against the prisoners was prophetic; all that followed were adverse to the Gordons. Of forty-three jurymen drawn, twenty-two were challenged peremptorily, six were excused because they had formed opinions, and three because they entertained conscientious scruples against inflicting capital punishment. After twelve talesmen had been accepted and the jury had been engaged, and after William H. Potter, Esq., had opened the case for the prosecution and testimony for the state had been introduced, one of the jurymen received a message that his grandson was dying, and he was excused. His place was filled without objec- tion by counsel,§ the jury was sworn again, and the trial proceeded.

The evidence presented was entirely circumstantial, purporting to prove (1) the finding of a dead body and the identification of it, to satisfy the rule of the corpus delicti; (2) the trail leading from the scene of the crime to the swamp where the broken gun and blood- stained coat had been hidden, and thence to the Gordon house; (3) the finding of the broken gun and an identification of it as a weapon belonging sometime to Nicholas S. Gordon; (4) the finding of the coat, and the identification of it as an old garment belonging some time to Nicholas S. Gordon, but worn by one of his brothers; (5) the discovery of wet boots at the Gordon house, and an alleged fitting of one of them into the tracks in the snow; (6) the dis- covery of wet and red-stained clothing at the Gordon house; (7) the absence of Nicholas S. Gordon from home on the day of the murder; and (8) as a motive for murder by one of the brothers of Nicholas threats against Amasa Sprague made by Nicholas S. Gordon in the presence of John Gordon, the refusal of a liquor license because of Amasa Sprague's opposi- tion, the disappointment of the Gordons and the effect of refusal of the license on their eco- nomic condition. The defence objected, first to the introduction of testimony to prove that Nicholas S. Gordon owned the gun, as irrelevant in the trial of John and William, and the objection was overruled. Other objections were disposed of similarly, and the prosecution was permitted to proceed as if the three Gordons were being tried together. An analysis of the testimony indicates that the case had been prepared for trial with the expectation that Nicholas would be tried with his brothers, and that the Attorney General and his associate went forward without serious amendment of their original plan. In this procedure they were sustained by the favorable rulings of the court on the admission of testimony. Vigorous objection was registered to the introduction of testimony to prove that Nicholas S. Gordon was away on the day of the murder, after the state had undertaken to identify both gun and coat as his ; but the court sustained the prosecution as undertaking to eliminate Nicholas and limit the indication of guilt to his brothers.

Attacking the "case" developed by the Attorney General, the defence, in cross-examina- tion and by direct testimony (1) emphasized the two distinct breaks, one at the pond and the other at the road, in the trail leading to the Gordon house, and the altogether reasonable prob- ability (a) that the murderer, if he reached the road, continued to travel on it in preference to leaving a trail in the snow, and (b) that the trail from the road to the rear of the Gordon house had been made by another person on a legitimate errand, possibly by John Gordon in taking a turkey home on Christmas Day, after purchasing it in Johnston; (2) drew from wit- nesses who had followed the trail admissions that they had neglected to explore at least two

¿A court has discretion where two or more are indicted for the same offence to order a joint or separate trials. State vs. Ballou, 20 R. I. 607.

§ The episode illustrates the easy-going practice in early trials. In State vs. Nelson, 19 R. I. 647, it was held that after a jury had been sworn in, if it were dismissed, another trial constituted double jeopardy and was unconstitutional.

HOTEL

BROAD STREET FROM HIGH, WESTERLY

STATE ARMORY, WESTERLY

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other trails in the snow leading away from the vicinity of the murder, a neglect of factors sufficient to warrant a reasonable doubt that the trail to the Gordon house was the path pur- sued by the murderer; (3) disputed the identification of the tracks in the snow with the boots found in the Gordon house, inasmuch as the boots were "sale" or ready-made, instead of custom-made and distinctive, and of a type commonly worn in the community, and also because of an acknowledged variation of so much as an eighth of an inch in the width of the sole of the boot and the width of the tracks; (4) denied the identification of the broken gun as that of Nicholas S. Gordon, introducing proof that the book entry of the sale of the gun by an auctioneer showed the name "Gorton" instead of Gordon, and that other sales made by the same auctioneer to Nicholas S. Gordon had been recorded invariably as "Gordon," besides which one witness, who was familiar with the weapon sold at auction, declared that the broken gun was not it; (5) challenged the identification of a wooden ramrod for the gun as made by a half-witted youth, who testified that he had had the stick made at the request of Nicholas S. Gordon; (6) disputed the only positive identification of the coat, as made by a witness who was an inmate of a disreputable resort and who testified that for some time she had visited the Gordon store frequently as a customer, and then, for some reason not explained, had ceased to visit it; (7) attempted to discredit the testimony of this witness when she pointed to John as William Gordon, and to William as John Gordon, and said that she had heard Nicholas S. Gordon threaten Amasa Sprague in the presence of John; (8) introduced testimony to explain the wet clothing and the stains on the garments found at the Gordon house, the latter as caused (a) on the waistcoat by madder dye, with which John Gordon had been spattered while at work in the Sprague factory, (b) on the shirt by tailor's wax, and (c) on the bed clothing by a cut on John's finger when he killed the Christmas turkey. As an alibi for each of the brothers the defence introduced testimony to show that both John Gordon and William Gordon had attended Mass in Providence on Sunday, December 31, 1843, and could be placed at various times during the day too far away from the scene of the murder to make it possible for either of them to reach the place in the hour between 3:30 and 4:30 in which the murder was committed. Amasa Sprague was seen alive at 3:30; the body was discovered at 4:30.

Neither prosecutor nor defence had recourse to modern and scientific types of evidence, such as chemical analysis of disputed stains on clothing, and the identification of finger prints on pistol or gun. Nor was there the exact determination of time made possible in the twen- tieth century by the almost universal and omnipresent watch and clock. Toward the end of the trial a witness was found whose testimony removed even the last lingering doubt that Wil- liam Gordon was innocent. The defence objected to the introduction of testimony relating to threats alleged to have been made by Nicholas S. Gordon in the presence of John Gordon, unless and until the state had proved a conspiracy between the two; thereupon the court ruled that the proof of the conspiracy might begin with the proof of the threats. No further proof of conspiracy was introduced ! The defence offered the testimony of Ellen Gordon, mother, with the purpose of accounting for the time of John Gordon and William Gordon, both of whom were at the Gordon house on that Sunday afternoon, William for a brief visit to his mother, and John for dinner. With reference to John Gordon the time at which he ate dinner was vital ; had he remained at the house until the mother had cooked the meal of corned beef, cabbage and turnips, or had he left the house while the dinner was being prepared. To rebut the mother's testimony at the trial, the state offered notes taken at the preliminary arraign- ment, and the person who made the notes was permitted to read them after he had testified that he had no recollection of the content, but believed that the report was accurate. The admis- sion of this testimony was one of the reasons for a new trial.

The mother's testimony at arraignment and trial varied in detail. She had been in

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America less than six months when the murder was committed. Her plight in two appearances at court when the issue affected the lives of three of her children recalls: "The individual who has lived from infancy amidst thousands, in whose eyes his unblemished good character has become fully established, is protected by a shield too potent to be borne down, except by the most incontestible testimony ; whilst the friendless stranger who is cast on our shores, penni- less and helpless, ignorant of our language, our habits and our laws, though his character may be as faultless as the last, is protected by no such safeguard."* Indeed, the quotation is apt for all of the Gordons except Nicholas S. Gordon, who was the eldest of the sons, and had been in America long enough to know the ways of the people. The others, except for famili- arity with the English language, were strangers in a strange land, and lately from a country in which they and their neighbors had been persecuted .; It may not be doubted that the mother was frightened, and as she had no watch or clock, was mistaken in fixing time. Prob- ably her statement at the trial was more accurate than at the arraignment, since at the trial she had the assistance and guidance of counsel.

Altogether 102 witnesses were heard in a trial continuing six days, from Monday, April 8, and arguments of counsel were delivered in the following week. The addresses to the jury were brilliant, unusually complete in detail, and masterful in the marshalling of evidence. General Carpenter spoke for nine clock hours, and Mr. Atwell five hours. For the state the Attorney General consumed five hours in presenting the case against John Gordon to the jury. Justice Durfee's charge to the jury was of the type of accurate statement of the law of which he was a master. He made no summary of evidence, inasmuch as that had been so completely presented by counsel. There were no objections by counsel to the charge to the jury, and no requests for specific instructions. If his honor erred it was in his reference to the weight to be attached to the testimony of the "countrymen" of the Gordons in instances in which they contradicted the testimony of other witnesses. The doubt, if any, must be resolved in favor of the justice, and the statement interpreted as an admonition to the jurymen that it was their duty to render a verdict based upon the truth so far as they could discern it without prejudice or favor to persons. The jury was not isolated, as are jurors in modern murder trials, and it is impossible to believe that they could divorce themselves from the social milieu. The Catholic Irish had contributed a fund to be expended for the defence of the Gordons, whom they reguarded as victims of persecution; the murder of Amasa Sprague had aroused popular indignation, which, with the arrest of the Gordons, was crystallized into a sentiment favorable to suppression of "alien desperadoes." Possibly the Supreme Court, in its rulings upon the admission of testimony, was swayed by a sense of duty to aid the enforcement of law, lest it be accused of leniency. After retirement for less than two hours the jury returned a verdict. John Gordon was found guilty, and William Gordon was acquitted. For William no other verdict could be justified by the evidence; as against John a verdict could be jus- tified by the evidence permitted to reach the jury and the weight assigned to it in the rulings by the court incidental to the trial.

Counsel for John Gordon immediately filed motions (1) in arrest of judgment on the verdict pending the trial of Nicholas S. Gordon on the charge of being an accessory, for the reason that something might be uncovered at his trial which would affect the verdict; and (2) for a new trial for John Gordon, because "First, the government, without having shown, or attempted to show, any conspiracy or confederacy between him, the said John, and Nicholas S. Gordon, his brother, was permitted to present to the jury (1) evidence of expressions of hostility, toward Amasa Sprague uttered by the said Nicholas S. Gordon in the presence of said John, but not responded to or acquiesced in by him; (2) evidence of a supposed cause

*Gould's Report on Capital Punishment, New York, 1847.

tSee page 760 for relation of William Gordon.

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for hostile feelings on the part of the said Nicholas S. Gordon toward Amasa Sprague, to wit : the opposing by the said Amasa of a petition of said Nicholas S. Gordon to the town council of the town of Cranston for a license to retail wine and other strong liquors; and because, secondly, a paper purporting to be minutes of the testimony of Ellen Gordon, given before the examining magistrate shortly after the arrest of said John, was allowed to be read to the jury to contradict and impair the testimony of the said Ellen, as given for said John on the stand on his trial, the witness producing and reading the said paper expressly declaring that he had no recollection whatever concerning said supposed testimony other than that he intended to report it accurately." The motion to arrest judgment and suspend sentence until Nicholas S. Gordon had been tried was overruled by the court ; as a matter of fact, however, Nicholas S. Gordon had been tried once, the jury disagreeing, before John Gordon was executed.

The motion for a new trial was argued by the counsel participating in the trial, aug- mented in the instance of the defendant by Samuel Currey, Esq., and J. P. Knowles, Esq. The decision of the court was delivered by Chief Justice Durfee .¿ The court sustained its rulings at the trial: (1) that the evidence of threats by Nicholas S. Gordon in the presence of John Gordon was admissible; and (2) with reference to the rebuttal of Ellen Gordon's testimony that the admission of improper evidence not objected to at the time it was offered did not constitute ground for a new trial. The testimony had been objected to, but the defence had not insisted upon the objection to the point of having an exception noted on the record. The court was technically accurate in stating the rule and in applying it, although one might characterize as drastic, enforcement of a rule in a case involving the life of a human creature even when failure to enforce it in a civil suit would warrant criticism. The most significant issue in Gordon's appeal for a new trial was the ruling on the testimony with reference to threats, however; and to this issue the court addressed itself. "And in reference to the first specification," said the court, "this evidence was not permitted to pass to the jury as proving or tending in itself to prove a conspiracy between the two, or even an acquiescence on the part of John ; but, as stated in the charge, that the jury might determine for themselves what effect such declared enmity would have upon the minds of the prisoners, situated as they were in relation to Nicholas S. Gordon. . . . The facts in relation to the situation of Nicholas, that John was his brother, and that his house was the common residence of the brothers, were already before the jury when the testimony in question was offered. And now does that testimony make John acquainted with the fact that his brother has suffered a real or supposed injury at the hands of Sprague, and is the depth of that injury, as felt by that brother, made known to him by the passionate manner and threatening language that he used toward the deceased ? . . . . But still, though he (John) did hear them, what constitutes the relevancy of these conversations? The accused took no part in them, he was silent-he did not at the time signify any approval of the threats of Nicholas, and these threats are not to be imputed to him. How then do these conversations become relevant? The answer is that they become relevant from the simple fact that they bring home to John a knowledge of the injury or supposed injury which his brother Nicholas had suffered from Sprague, and reveal to him the extent of that injury by the vindictive language that it called forth. . ... It is impossible for the court to say that John Gordon, standing related as he stood to Nicholas, could be apprised of this supposed injury and the extent of it, and regard the fact with perfect apathy and indifference."

The court held that the testimony as to the refusal of a liquor license was admissible, "connected as it is with" other testimony, "if only for the purpose of rebutting an inference

#State vs. Gordon, 1 R. I. 179.

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that the threats and declarations, aforesaid, being the language of excited feeling, might be mere bluster and misrepresentation of the fact." Although so ably defended, the decision of the Supreme Court that threats made by another person in the presence of an accused prisoner are admissible as tending to prove a motive on the latter's part, without actual proof of a conspiracy or an effective response, stands as unique in the annals of American criminal trials. The decision of State vs. Gordon has never been cited or referred to by the Supreme Court in any later trial.

Failure of the motion for a new trial was followed by a plea to Governor Fenner. Wil- liam Gordon, conscience stricken and stirred by the remark of his brother John, "You have done for me," produced Nicholas S. Gordon's gun and a pistol which William had hidden at the Gordon house after suspicion had been pointed at the Gordons. The identification of the blood-stained, broken gun found near the scene of the murder had been one of the "circum- stances" linking the Gordons with the crime. William in an affidavit recited the circumstances of the hiding, and was corroborated in part by a juryman. Substantially the affidavits related the meeting of William Gordon and the juryman, who, because of curiosity, had visited the scene of the murder ; a conversation between William and the juryman, which included a dis- cussion of the trial and particularly the evidence relating to the weapon; and a visit by William and the juryman to the Gordon house. There William Gordon removed a carpet from the floor of an upper chamber, pried up a board from the floor, and uncovered a gun, which he alleged was the gun belonging to Nicholas S. Gordon. William also drew from its hiding place a pistol, which he had concealed behind the sheathing of a partition. His explanation of the situation was to the effect that, on returning home after hearing of the murder, he had found Nicholas S. Gordon's gun standing against the wall in a corner, and had hidden it because in Ireland the possession of a gun by an Irishman was a penal offence. He related that he had found the gun loaded, had withdrawn the charge, and had concealed gun and pistol in the places from which he produced them in the presence of the juryman. William swore also that he had not told his counsel of the weapons because of fear, thus to offset the objection that counsel had concealed evidence so pregnant of proof that the broken gun, matted with blood and hair, found in the swamp near the scene of the crime, though probably the weapon used by the murderer, was not the gun of Nicholas S. Gordon. If the broken gun were not Gordon's gun, one of the most important circumstances in the chain proved to convict John Gordon did not connect him with the murder. Governor Fenner refused relief; he had not the power to pardon at this time.

A petition to the General Assembly for a pardon for John Gordon failed; the vote in the House of Representatives on January 13, 1845, was negative thirty-six to twenty-seven. John Gordon was hanged at the state prison in Providence, February 14, 1845. The execu- tion was not public, only a small number of persons witnessing it .* John Gordon was accom- panied to the gallows by Reverend Father Brady of the Providence Cathedral, who said to John Gordon before the trap was sprung: "Courage, Brother John, courage. You are about to join the immortal band of your countrymen who have been sacrificed on the altar of super- stition and prejudice."

The "Providence Transcript" of February 14, 1845, reported the execution, and the pass- ing of the dead body by the newspaper office on its way to the Gordon house in Cranston, accompanied by a large number of people. The report of the funeral pictures 1200 to 2000 men and women marching behind the body from Cranston through Providence to the cemetery as a protest of their belief in John Gordon's innocence. The body was placed temporarily in a tomb at the North Burial Ground, and removed later for burial in a grave in St. Mary's Cemetery at Pawtucket.

*Tradition persists that John Gordon was dead before the trap was sprung.

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Nicholas S. Gordon was tried as an accessory in October, 1844, and again in March, 1845. Each time the jury disagreed and was discharged. For the second trial-after the execution of John Gordon-difficulty was experienced in obtaining a jury. An entire day was consumed in examining jurymen, many of whom were excused from service because of con- scientious objections to capital punishment. A revulsion of feeling followed the execution of John Gordon; popular belief that an innocent man had been put to death spread rapidly. While death was the penalty for murder, there were no more convictions in Rhode Island, John Gordon was the last man hanged. In 1852 the death penalty was abolished. Both capi- tal and corporal punishment were abolished in 1795, but capital punishment for a limited list of crimes was revived in the revision of the statutes in 1798. The list of capital crimes was reduced to arson and murder in 1844.

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Rhode Island : three centuries of democracy, Vol. II, Part 26

Author: Carroll, Charles, author Publication date: 1932 Publisher: New York : Lewis historical Pub. Co. Number of Pages: 716

Author: Carroll, Charles, author
Publication date: 1932
Publisher: New York : Lewis historical Pub. Co.
Number of Pages: 716