History of Dakota Territory, volume I, Part 124

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920
Publication date: 1915
Publisher: Chicago, Ill. : S.J. Clarke Publishing Company
Number of Pages: 1198

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that these officials were both democrats. The territorial superintendent of public instruction was Hon. John W. Turner, who had fought the battles of democracy under Jackson in the Empire State.

IMMIGRATION AGENTS

Dakota's early immigration agents were diligent in their duties, and met with fair success, though working on a weak financial footing. Mr. James S. Foster, the pioneer educator, turned his attention almost wholly to immigration in 1870, and worked in Illinois, Wisconsin and Missouri, holding public meetings, distributing advertising literature, and visiting farmers at home. During his career in that capacity he was compelled to meet a number of rivals from Western lowa, Minnesota and Nebraska, all of whom were in much better position finan- cially than Dakota's representative, who received a meager salary and small appro- priations for work, and would probably have been unable to make any sort of campaign outside the territory had not public spirit moved a number of individuals to contribute for that purpose.

Hon. Jacob Brauch was quite successful in securing a number of the Ger- man-Russian colonies. Being a German, and a very intelligent, forceful and tactful man, he was able to compete in a measure with the strong rivalry of Nebraska and the Union Pacific Railroad, whose agents were very active in securing foreign emigration, and who did not seruple to misrepresent the Dakota country with stories of hostile Indians, drouths, grasshopper raids, mosquitoes. not neglecting to mention blizzards and alkaline water as among the principal inducements Dakota had to offer. Notwithstanding these discouragements, Com- missioner Brauch was able to bring in and locate a large number of families who came from the Czar's German dominions, and on one occasion, learning of the deceit practiced upon a party of one hundred or more intending to settle in Dakota who had been lured into our neighboring state, he buckled on his armor and single-handed invaded the district where the misdirected colony had located, and succeeded in bringing every man, woman and chikl to Dakota where they settled and have since prospered.

Dakota, for nearly a score of its earlier years, was seriously handicapped in its work for immigration by the prejudices which had been instilled in the public mind through these rival agencies, in circulating reports that the draw- backs enumerated were permanent, natural, climatic, and could never be outgrown. basing their stories upon the exaggerated events of the Indian war of 1802-05. which. though originating outside the territory, had its field of conflict within our borders, and but for Dakota's defense, Nebraska would doubtless have been overrun with savages. The extreme drouth of 1863 when low water in the Missouri from spring until the close of navigation retarded the steamboats and prevented the carrying out, as designed, of Sully's campaign, called public atten- tion to the event and left a prejudice toward Dakota. The grasshopper raids were a serious scourge, but half a dozen or more territories and states shared in similar afflictions. And as for the blizzards, while they were the most dangerous of storms, Dakota could truthfully claim a greater immunity from their perils and ravages than a number of northern states, including those fronting on the Atlantic coast.

Nevertheless Dakota gained encouragingly in population in 1873. and fortu- nately the season was favorable to the farmers. Immigration was very equally distributed-the population of the Sioux Valley increasing about 300 per cent, and the Vermillion Valley and the intervening country to the James, about the same. The Red River Valley and along the line of the Northern Pacific secured a larger proportion. It was the initial year of the German-Russian immigration, nearly all of which settled along the valley of the James River in Yankton. Hutchinson, Bon Homme and Turner counties.

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ELECTING TERRITORIAL OFFICERS

In order to gratify a general demand among the people of Dakota who were dissatisfied with the method pursued by the general government in providing the executive officers of the territory from non-residents, Delegate Armstrong introduced in the House of Representatives the following bill in February, 1873 :

A bill to enable the people of the territories to elect their governors and all other territorial officers in the manner provided for the election of a delegate to Congress.

Be it enacted, by the Senate and House of Representatives of the United States of America in Congress assembled, that at the next general election for delegate to Congress, in each of the territories of the United States, there shall be chosen by the qualified electors thereof, the following named territorial officers, in addition to that of delegate to Congress, namely : One governor, one secretary, three judges, one prosecuting attorney, one marshal, one surveyor general, one auditor, one treasurer, one superintendent of public instruction and one commissioner of immigration.

Sec. 2. That the Legislatures of each of the several territories shall, at the next session after the passage of this act, provide a law for carrying the provisions of this act into effect. And after the officers herein enumerated shall have been elected and qualified, they shall continue to report to, and be held accountable, by the proper departments of the Gov- ernment, in all disbursements of public moneys, as is now provided by law. Provided, that the salaries of all officers mentioned in this act, shall be limited as heretofore by Congress, and paid out of the United States treasury.

The author of this measure could not have been at all sanguine of its favor- able reception by Congress ; but he knew enough of the sentiment of the people of the territory to know that it would not injure his political standing at home, and this is probably what he had in mind, and all he expected to accomplish. The bill was referred to the Committee on Territories, and nothing more was heard from it.

HOMICIDE OF SECRETARY M'COOK

The killing of Edwin Stanton McCook, secretary of the Territory of Dakota, by Peter P. Wintermute, a banker, September 11, 1873, at Yankton, was a tragic event that awakened widespread interest from the prominence of the parties, and aroused a feeling of great indignation against the perpetrator of the crime.

It was alleged at the time the deed was committed that the trotible between the men grew out of the long-time rivalries between Broadway and Capital street, two separate business districts in Yankton. It was also alleged that animosities arising out of the legal proceedings connected with the building of the Dakota Southern Railroad furnished an incentive for the atrocity, and while these sectional rivalries and personal animosities doubtless existed, it would seem more probable that the estrangement arose from McCook's loyalty to Governor Burbank, between whom and Wintermute and his political friends there existed a strong and open antagonism. There existed only a formal acquaintance between McCook and Wintermute.

As the tragedy became connected subsequently with the railroad proceedings, through intrigues to shift the judges from one district to another, the history of the lamentable and scandalous affair is here given following the railroad chapters.

Governor Burbank was appointed in 1869 when General Grant became President, and was supported by his brother-in-law, Senator Morton, of Indiana, then one of the strongest personal influences with the President. It is not claimed that the selection of Burbank was a judicious one, and but for the prominence and influence of the Indiana senator, in all probability would not have been made. Burbank's most notable work during his term had been the building up of the town of Springfield in Bon Homme County, in which he had acquired a large interest after coming to the territory. He procured the estab-

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lishment of a United States land office at his town and made it a prominent mail route center, all of which tended to the detriment of the old town of Bon Homme, county seat of the county which was owned by Yankton parties of influence. Burbank had also been instrumental in changing the terminus of the Dakota Southern Railroad from Yankton to the west line of Bon Homme County in the curative act of Congress validating the railroad bond election in 1871, and had been given a place in the directory of that company ; and had taken the Elk Point Township bonds voted to aid the Dakota Southern, amounting to $15,000. For these causes and an apparent personal dislike, Wintermute as one of the leaders of the faction determined to prevent his reappointment, which was due to be made in 1873: and for the purpose of making it appear that the Dakota com- munities were strongly opposed to him, Wintermute and a half dozen or a dozen others held what they termed an indignation meeting in an out-of-the-way room. one evening, shortly before Burbank's term expired in the spring of 1873, at which Wintermute took the leading part.

Secretary MeCook was a political friend of Burbank's. Their official relation- ship was calculated to make them friendly, and McCook would naturally feel like assisting his friend in this matter of a reappointment. McCook learned of the indignation meeting through some source, and with a few friends, attended it. not- withstanding the lack of an invitation. Wintermute was in charge, and it was evident from the dim light and novel arrangement of the room, and the paucity of attendance, that it was not designed for a public meeting for more than a select few. McCook may have made a motion to thwart the purpose of the quiet gathering. In that, or some way, he and Wintermute exchanged some unpleasant and unfriendly words of a character sufficient to cause an estrangement and doubtless led to the termination of any social intercourse between them, at least for the time being.

Burbank was reappointed, and the events of the following summer were of a character that made matters no better. The county commissioners and the railroad company were engaged in a controversy growing out of the effort of the company to mortgage the road. The county authorities, the county being a stockholder, procured an order from the court, temporarily restraining the company from issuing the mortgage bonds. The commissioners alleged that such mortgage would seriously impair the value of the stock held by the county, and that the company had failed to make the improvements at Yankton that had been promised. A portion of the community sided with the commissioners, and another portion took the ground that the county had agreed to donate the $200,000 in bonds for the railroad; that the road had been built and was in operation, and that to demand anything more was a violation of the original agreement, and Governor Burbank, though not a tax-paver, was more con- spicuously a defender of the claims of the railroad company than others because of his efforts to induce the judge of the District Court to dissolve the temporary injunction against the issue of the mortgage bonds.

This much is offered as an explanation of the social relationship that existed between MeCook and Wintermute. It afforded a basis for the quarrel that preceded the shooting : and as there appeared such a divergence of opinion among the people as to the nature of the crime committed, the entire testimony given at the trials is produced in this chapter, without prejudicial comment.

Edwin Stanton MeCook was appointed secretary of Dakota Territory by President Grant, January 8, 1872. He had attained a national fame, and was a historic character, prior to coming to Dakota.

He was a member of the famous Ohio family of "Fighting MeCooks" where record during the Civil war gave them a distinguished and honorable place m the annals of that great conflict. The secretary, while a boy, had enlisted in the Union army as a private soldier, and was afterwards commissioned colonel of the Thirty-first Hlinois Volunteers. He retired from the service with the rank of brevet brigadier general, and settled at Canton, Ill., where he was Vol. 1-46

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residing when he received his Dakota appointment. He was fairly well off in this world's goods. He reached Yankton, the capital of the territory, March 8, 1872, with his wife and a son, his only child, a lad of ten years, accompanied by the parents of Mrs. McCook, Mr. and Mrs. Oscar Whitney.

Concerning Peter P. Wintermute, prior to his removal to Dakota. He was born in the State of New York. He removed with his family to Yankton in 1871. After the tragedy which gave him notoriety, a sketch of a portion of his career appeared in a western newspaper.

The Milwaukee News gave the following :

Mr. Wintermute, who is, unfortunately, a party to this calamity, is well known to many gentlemen of this city and other parts of the state. He is a civil engineer by profession, and was in the employ of Selah Chamberlain and of the old LaCrosse & Milwaukee Railway while that road was in process of construction. He figured extensively at Madison in the railroad legislation of 1869, and formed the Wintermute-Stinson combination to which the state granted its title to the St. Croix land grant. Wintermute & Stinson (who were broth- ers-in-law) afterwards sold their charter and franchise to Jay Cooke, by whom the same were forfeited, and the act conferring the same on the Wintermute-Stinson Company was afterwards repealed. Wintermute was also a large property holder at Superior City, Wis- consin, and resided for some years at St. Paul. Mr. Wintermute removed to Yankton in 1871, and established a bank there. He was, so far as his many acquaintances in this vicinity understood his character, a most amiable and genial gentleman, shrewd in business opera- tions, accomplished and refined in his habits, and the farthest possible from an assassin in his disposition and manners.

The St. Paul Pioneer-Press furnished the following :

Mr. Wintermute was for years a resident of St. Paul, and has many friends in this city who will be deeply pained by the intelligence of the rash and criminal act which, if the law is not unjustly diverted from its course, has probably ended his career. Mr. Wintermute is a brother-in-law of James Stinson, a wealthy citizen of Chicago, who has large real estate interests in this city. He has figured somewhat more ambitiously than successfully in various railroad and real estate speculations at Superior in connection with the St. Croix & Bayfield Railroad. It was he and others who obtained possession of the charter of that road, with a conditional grant from the Wisconsin Legislature, which he sold out to Jay Cooke. He has lived for two or three years past at Yankton, where he has kept a small bank, has aspired to become a political leader, and was alleged to have aspirations for an election as delegate to Congress.

That Wintermute had premeditated the killing of McCook prior to the row in the saloon is not probable. It is more probable that he had entertained, since the indignation meeting, a personal dislike of McCook, who was not disposed to show him more than ordinary courtesies and did not court his companionship. The disturbance in the saloon stung him and he, "influenced by wine." conceived hastily the part he enacted, designing, probably, to frighten McCook into hiding, thus showing indications of cowardice, and expected to vindicate his own bravery at the same time. When he first fired toward McCook he was not more than twenty feet from him; he failed to hit him, whether designedly or not, and the ball passing through the open doorway in which McCook was standing, lodged in the wall outside. His first shot may have been designed to scare McCook into seeking safety in the hallway, which Wintermute expecting. he was not prepared for the serious affray he brought upon himself ; and when seized by McCook, apprehensive of his own safety, fired at random several times, and fired a fatal shot. This story was advanced by men who knew Wintermute quite intimately, and a story was current following the tragedy that he had admitted as much to his intimate friends. It was also indirectly referred to by his counsel at the trial, who argued that it was McCook's duty, after discovering that he was a target for Wintermute, to have sought safety by removing to a safer place.

Wintermute, it seems, emboldened by liquor, was desirous of making a public exhibition of his prowess, and possibly thinking to wipe out whatever of stain had been made upon his reputation as a fighting man from the conflict in the saloon, hastily conceived the plan of shooting, and procured a pistol from

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some friend during the brief interval between the saloon brawl and the tragedy in the courtroom.

The circumstances up to the firing of the first shot point more to an exhibition of bravado than anything else.

The fact that Wintermute was not armed when the fracas occurred in the saloon, but upon leaving that place procured a loaded pistol and a few minutes later appeared in the courtroom, indicated that he had not premeditated any serious trouble prior to the saloon fracas.

At the October term of the Territorial District Court following, Judge .A. II. Barnes, presiding, the grand jury returned an indictment against Wintermute charging the crime of manslaughter. This being a bailable offense the defendant was released from custody upon giving bail in the sum of $50,000. Court then adjourned.

During the following month, Acting Governor Whitney, father-in-law of the late secretary, who had been appointed to succeed Secretary McCook, issued a proclamation during the temporary absence of Governor Burbank, re-assigning the judges, which brought Judge Peter C. Shannon from the Third Judicial District in the northern part of the territory to the Second District at Yankton, and assigned Judge Barnes to the Northern District.

Application for a change of venue in the case was made by the defendant, and was heard by Judge Shannon, at a special term of court held in January, 1874. The motion was denied.

A motion was now made by the prosecution to quash the indictment for manslaughter returned by the grand jury in October, 1873. which the court took under consideration.

At the adjourned session held in March following, the judge ruled that the law of 1862-63 under which the indictment was found, was not in force ; that the grand jury had been improperly empanelled, and the motion to nolle pros was allowed by the court. Defendant Wintermute was ordered into custody; and on motion he was admitted to bail in the sum of $35,000.

On April 15th, court convened in regular session for the trial of the case. District Attorney Phil K. Faulk, who had charge for the prosecution, secured the admission of Jason B. Brown, secretary of Wyoming Territory, to assist himself and George H. Hand in the prosecution. The counsel for defense were Moody and Cramer, William Tripp. Bartlett Tripp, and Hon. S. L. Spink, of Yankton. and Leonard B. Swett, of Chicago. A grand jury having been summoned for the purpose of a new inquisition of the case, the former indictment having been quashed, the following persons were finally empanelled as a grand jury, after being duly examined by counsel regarding their qualifications: John Fitch, M. D. Gardner. J. M. Burk, George Il. Miner, Franklin Wixson, Nathaniel Presho, G. W. Delamater, Henry Luebke. James Hendershott. John Gill. Sr., Robert Cox, Daniel Parkhurst, William P. Lyman, Luke Lavery, and II. Ellerman. The following day the judge charged the jury concerning their duties as grand jurors as follows:

Gentlemen: You have been duly sworn and empaneled as a grand jury, and it now becomes the duty of this court to duly instruct you in your true duties, that you may avoid all errors in their performance. You hold an important position as an auxiliary branch ( i this court, an aid to render certain assistance in administering justice. But I must endeavor to correct one grave misapprehension of a juror's duty that has crept into the minds of many people, by saying that you are not hereby to try any one. A trial implies an appearance on both sides before some tribunal. You gentlemen are required to hear only the evidence on the side of the people. You are a secret tribunal to acense of crime. You have no right to hear evidence in favor of an accused person, or produced by him. It is absolutely unlaw ful for you to hear him or anyone for him.

It is all a mistaken idea prevailing in some parts that the grand jury room is a place for the trial of criminals. From its first origin -six or seven hundred years ago-ir m its Anglo-Saxon founders down through the ages to near the end of the nineteenth century. it was never held that a grand jury could try or defend a prisoner. The great direct ever sought was to maintain it as a place to hear the witnesses of the Government and them 1h. and to exclude from their presence the accused and all his witnesses.

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Before entering on such important duty, it is best to think for a moment upon the solemn oath you have taken; for I will not suppose that any man intends to violate it; to seize the bit in his mouth and trample on the laws of his country. You have sworn to keep the counsel of the people, of yourselves and of your fellows. You bound yourselves to keep absolutely secret all that may occur in your room. You are not at liberty to divulge anything said or done while arriving at your conclusions. You may not even relate outside what one of you may have said to another. There is but one exception to this. If it should become necessary hereafter in a court of justice, in order to conviet a witness under indict- ment for perjury, a juror may testify as to what that juror witness said in their sceret sessions. I know of no other exception. You cannot communicate these secrets even to the court ; and the district attorney is equally bound to secrecy and the observance of the law. You shall inquire and due presentment make of such matters as shall be given you in charge by the district attorney, of which you shall have legal evidence as occurring in this County of Yankton. You will truly present to them as they come to you through the officer for this county, and him only, by the witnesses he shall introduce. He represents the majesty of the people. All accusations and evidence must come to you by him alone. Neither he nor you can make the law. This court cannot make the law, but it must obey and administer the law.

The first institution of the grand jury was away back in 1164, when a law was enacted. saying in quaint old language, that in cases where men were suspected whom no one dared openly to accuse. the sheriff should select twelve men who should declare the truth. These men were at first summoned as witnesses to jointly accuse of crime, and put a man on trial with less individual responsibility. The number was afterwards increased. So the grand jury has been ever since a secret place to accuse of crime on behalf of the people, but not to hear and try cases. It would be a high usurpation were it to presume to take the place of the court and forestall the action of the petit jury, who are to hear both sides.

I dislike to quote from books to juries, and some may deem it in bad taste: but I must read to you from the best common law authorities some further rules for your guidance. (Judge reads from Reports, but text not reported by clerk.) This requires that you shall examine such witnesses as the people's officer shall present, or enough of them to justify an indictment. He may attend your sessions, explain to you points of law, make charges and introduce his witnesses, but must not be present at any of your deliberations or votings upon such cases. You must keep secret the evidence you hear, the votes taken and the remarks made to each other. Sixteen men legally compose the jury, and twelve or more of these must vote in favor of an indictment or no bill can be found. All must deliberate and act together.

I will further read from the law principles established ages ago. The prosecuting attor- ney must submit the indictment and produce proof. No other person can go before you for that purpose, though in open court he may call in the aid of others. What sort of evidence, or how much is required, to justify finding a bill? Sir Matthew Hale, upon this point, has said: "In case there is probable evidence a crime has been committed, the grand jury ought to find a bill; it is but an accusation, and is to be tried afterward before the judge and petit jury." All attorneys know that. You are to consult the district attorney and the instructions of this court upon matters of law. Would it not be a gross usurpation if jurors should secretly judge the law and disregard it? If the grand jury could try cases it would put a party on trial twice for the same offense. From all the authorities here cited, the court is of opinion, that it would be grossly illegal for you to examine or hear wit- nesses for the defense. Your oath says you are diligently to inquire, ete. But that does not mean that you are to inquire in behalf of both sides, or to hear anything to clear the accused. Inquire diligently into the charge but not the offense. You are to judge of the credibility of witnesses, and are at liberty to disregard the testimony of infamous persons, or those not to be believed under oath. In cases where insanity is presumed and believed, you must still find a bill; it has been invariably held in England that an insane homicide must be indicted for murder, because the grand jury could not try the question of insanity. I shall not ask to be excused for taking so much time in this charge, or for going into such long and explicit details. I repeat I do not ask you to excuse me for performing this solemn duty of laying down the law of the land. This duty the law imposes on me, and I am bound to comply as thoroughly and impartially as in my power. Having instructed you in general duties, I now proceed to charge you in relation to a case of homicide that will be laid before you. I have reason to say this, for I have judicial knowledge that such a case will be presented. Therefore, in view of what will soon be your great responsibilities, I must now proceed to lay before you the general principles of the laws of this territory relating to homicide. I can only give you the general law ; special points will arise upon special trial.

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History of Dakota Territory, volume I, Part 124

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920 Publication date: 1915 Publisher: Chicago, Ill. : S.J. Clarke Publishing Company Number of Pages: 1198

Author: Kingsbury, George Washington, 1837-; Smith, George Martin, 1847-1920
Publication date: 1915
Publisher: Chicago, Ill. : S.J. Clarke Publishing Company
Number of Pages: 1198