History of Dakota Territory, volume I, Part 125

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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From the ancient and general law, "Thou shalt not kill," is derived our present law. Homicide, the killing of one human being by another, is of three kinds: Justifiable, or excusable homicide : manslaughter, and murder. Homicide is justifiable or excusable when a person is killed under certain circumstances set forth by law. The law of this territory says it is excusable when done by accident or misfortune in doing any lawful aet, or when committed by accident or misfortune in the heat of passion, or on sufficient provocation ; provided, that no undue advantage is taken, or dangerous weapons used; and provided

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that it is not done in a cruel or unusual manner. It is justifiable when done in executing some necessary legal process, or when resisting some felonious or murderous attack. But suppose that a previous affray had taken place without dangerous weapons being used or serious harm done; suppose sufficient time elapses for the heat of passion to cool ; that then one party arms himself, lies in wait to watch for his opponent, and suddenly draws his pistol or gun and kills him, would such an act be excusable homicide under the law just read? Most certainly it cannot be so regarded. If a man is trying to murder you, you are justified in slaying him; also if he is trying to break into your house, or commit other felony upon you. It is important that you should know and understand the whole of these distinctions of crime.

The second grade of homicide, or manslaughter, is found when perpetrated with a design to effect death, and in the heat of passion, but in a cruel and unusual manner, or by dangerous weapon. It can be held manslaughter only when perpetrated without any design to effect death. So that in any case that may come before you, before you can indiet for manslaughter, you must first fully believe that there was no design to effect the death of the person killed.

Homicide is murder when unlawfully committed with a premeditated design to effect death. In the case before you, you are to inquire, first, was the killing without authority of law? and second, had he a premeditated design to effect the death of the person killed? Again as presiding judge, it becomes my duty to explain the meaning of the words "pre- meditated design." You will naturally inquire and the question has arisen in many courts, how long must a purpose have existed to constitute premeditation of purpose? Does it require a year, a month, a day, an hour, or even less? How long does it take a man to form a design to kill? Fortunately we are not left in doubt or ignorance as to the intent of the statute; for section 243 says: "A design to effect death sufficient to constitute murder may be formed instantly before committing the act by which it is carried into execution." The answer is there and thus plainly written. There is no room for con- jecture; no need of explanation. It is the law of the land, and neither you nor 1 have power to alter that law, or deviate from it. One more question may arise : Does anger or intoxication excuse a person from the guilt of such an act ? Here again we are not left to float in a sea of doubt or speculation. Section 244 declares: "Ilomieide com- mitted with a design to effect death is not the less murder because the perpetrator was, in a state of anger or voluntary intoxication at the time. 1 also read from standard extracts which prove that however great the original provocation, if sufficient time has elapsed for anger to cool, the killing must be classed as murder. I began by saying I could do no more than give you the law of this territory. This duty 1 have performed. fearlessly and conscientiously, looking solemnly to God for approval, and having fulfilled it without fear, favor or affection, my duty now ceases. 1 leave you, gentlemen, to begin your responsible labors.

The jury then retired.

On the day following the jury asked further instruction from the court as to whether they were compelled to act upon the exact indictment furnished them by the district attorney, or whether they could substitute another and act on it, or change the grade of crime named.

The judge explained that by act of January 8. 1873, all codes or bodies of written criminal laws were abolished, and in place thereof the regular common law practice was adopted as the standard of procedure, assimilated as nearly as possible to the practice of the United States Court. Ile then gave the law on the point referred to him, and decided that the grand jury had no power to act upon or present any bill not submitted to them by the public prosecutor.

The following day, Wednesday, April 29th, the grand jury returned into court and presented a bill of indictment charging Peter P. Wintermute with the crime of murder in killing Edwin S. McCook. The offense not being bailable, the defendant was committed to jail.

At the May term of court. 1874. following, the case was called for trial. Counsel for the prosecution and defense the same as before the grand jury. A panel consisting of forty-eight persons had been summoned as petit jurors. and the labor of selecting the trial jury to be composed of twelve was then begun. John Hartert, C. G. Irish, Eugene Alexander. H. 11. Davenport. Alfred Bruce, George Jenkins, M. U. Hoyt, John J. Duffack, D. D. Keeler, Il. Krudwig, C. H. Edwards and E. S. Mosher, had all'expressed opinions and were excused. and only two of the forty-two persons examined stood test as to qualifications. These were Hiram Derby and James Cornell. Court then adjourned till the 14th. On reconvening the court the examination of jurors was resumed. Emory

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J'. Trtiesdell was sworn in as the third juror. John H. Haas, a farmer, No. 4; Jonathan Renner, No. 5; George Shearer, No. 6; Willis Arnold, of Gayville, No. 7; Iver Bagstad, No. 8; Charles Van Epps, No. 9; Olaus L. Grimsrud, No. 10; Thomas Royster, No. 11 ; William Ingram, No. 12.

During the empanelling of the jury, Charles Long, M. Bartholomew, Frank Pechan. Martin Jensen, Louis F. Michael, Alanson Seeley, Silas Presby, Henry Koch, Joseph Emmerson, John M. Johnson, G. J. Devoe, F. M. Devoe, James Donahue, Thomas Frick, William Nieland, Henry Nieland, Gardner Baker, Zebulon Stout, J. G. Beardsley, F. Beers, A. VanOsdel, John Daugherty, S. VanOsdel, Louis Sampson, Ole F. Hille, George Winters, Myron Blodgett, Samuel Blodgett, John Aalseth, John Betts, Robert B. Leach, John C. Woodruff, Elias Iludsmith, Ed Palmer, J. Mundroff, D. M. Noyes, J. B. Robertson, Jacob Griffin, George Platt, William Blatt, William Brisbine, Samuel Ream, Llewellyn Stephens, Henry Mowry, Charles Loffler, John English, W. E. Wilson, Edward Raymond, Norman Learned, Frank M. Withee, Charles Broderson, Adolph Mauxsch, Peter Lewis, John Hatcke, Isaac Piles, Griffin Greene, J. Ferdinand, Thomas Limpo, Elias C. Marvin, William Ingram, were all examined as to their qualifications, and discharged, the large majority having formed an opinion ; some not being able to understand the English language, and a few thrown out on peremptory challenges. Four special panels were summoned in addition to the regular panel, before a jury was selected. The empanelling of the jury was concluded on Saturday; an adjournment was taken until Monday, when court re-convened, and the taking of testimony on the part of the prosecution was begun May 18th.

Wm. M. Powers, of Yankton, was the first witness. He and F. M. Ziebach were together in the hall, near the courtroom door, on the night of the murder, when Winter- mute, passing, said to them: "You tell McCook that I shall shoot him on sight."

C. G. Wicker, president of the Dakota Southern Railroad Company, testified : "I knew the general and Wintermute. Saw them together in the hall or passage that evening. McCook and I were together at the door when Mr. Ash and Wintermute came out of the meeting. Wintermute said to McCook, 'Give me a cigar'; McCook replied, 'I haven't got . a cigar.' Wintermute than said, 'Give me the money to buy one then' (with an oath). Win- termute and Ash then went down stairs."

C. L. Bancroft testified : "Have been a bootmaker in Yankton for two and a half years. Went into saloon under St. Charles Hotel about 8 o'clock that evening. Soon followed by McCook. Found there Wintermute, Ziebach, L. M. Griffith, Ash and Cowan. The first I noticed was Wintermute saying to MeCook that he could whip him. McCook replied, 'Guess you can't do it.' Wintermute said, 'If I can't whip you, I can shoot you. By -, I will shoot you.' Wintermute then shook his fist in his face and said, 'You are a - stinking puppy, and I'll be - if I don't shoot you.' Then McCook struck him, bent him over the bar, took him by the collar, threw him on his knees and hands and elbows on the floor, striking him two or three times as he held him, saying, 'You'll shoot me, will you.' They were parted, and McCook at once went out, but Wintermute remained and washed his face. It was bloody from a cut from fist, or bruise on left cheek, not severe. Said he would go to the hall again. Cowan said he had better go home. Wintermute said no, he would go to the hall; this was the worst thing ever happened for Capital Street; he'd break up the meeting, for he had the crowd here to do it; and if McCook ever got on Broadway he would shoot him. He left the saloon and I stayed. McCook replied in a cool, easy manner, and not excited, when Wintermute first said he would whip him. When he struck Wintermute two or three times it was not so hard as I should have thought such a man would strike."

F. M. Ziebach testified: "Was in the saloon when Wintermute and Ash came in. The first thing Wintermute said to me in presence of McCook was this: 'This is the man I'm mad at, and I'll tell you why. I came here to this railroad meeting without any money, and asked MeCook for 5 cents to buy a cigar, and he told me to go to h-1.' I sup- posed of course they were joking, and said in joke, 'Then you ought to have whipped him.' Wintermute said, 'I can whip him,' to which McCook said, 'Oh, no, you can't do that.' (Witness here gave an account similar to Bancroft's of the scuffle between the two men.) MeCook made not the least attack or provocation toward Wintermute till called a puppy and then threatened. I afterwards saw Wintermute in this courtroom, and in the passage at the door. Powers and I were together. He came to us and said in a calm, deliberate manner, that he'd shoot McCook on sight, and I might tell him so. I told him it was none of my quarrel, and he might deliver his own message. I think Wintermute was not seriously hurt in the saloon."

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THE SHOOTING IN THE COURTROOM

Miles T. Wooley testified : "At 10 minutes to 8, Wintermute came to W. G. Press, who sat by me, and got him to second his nomination of Ex-Governor Edmunds as chairman of the meeting. Wintermute went out and was gone some time. Came in and took a chair close to aisle. Got up and interrupted Burleigh's speech, called meeting to order, asking if it was a d-d rowdy meeting, saying he had just been licked out of his boots by General McCook, and (pointing to his face) had got this to show for it. He went out and came in twice, and kept looking back at the door. I was looking at him, listening to Mr. Spink's speech. After half or three-quarters of an hour, saw him rise, draw and cock a revolver and step forward three or four steps toward the door. I saw McCook at the door-saw Wintermute fire at him. Rossteuscher rushed into the room toward him-so did MeCook. I distinctly saw Wintermute fire the second shot, and think I saw blood then flow, but not before. The time between these shots was very short. The two men were very close together -revolver might have touched MeCook's clothes. No one had interfered with Wintermute in the room that night. I got out in the hall; soon heard the third and fourth shots. After the first, McCook rushed in with both hands up, and both were open and empty. I saw no pistol that night but Wintermute's, a medium sized revolver."

Charles F. Rossteuscher, justice of the peace, testified: "I was at the time the affair began, standing in the doorway with McCook, looking at the meeting. Saw Wintermute advance and fire directly at us. I went in and Wintermute stepped back. I took him by the shoulder and said, 'You are my prisoner.' I was pushed aside partly by McCook, just behind and at one side of me, when another shot was fired under my raised left arm. In an instant they had a scuffle and went down on the floor by the stove. When they clinched, McCook had hold of the muzzle of the pistol, and 'English Pete' caught his wrist. Winter- mute had been sitting crosswise on his chair, looking often at the door. I had twice been out looking for an officer, as the meeting was disorderly. When they fell and upset the stove, Wintermute was under. Major Hanson stepped on his arm and wrenched the pistol from his hand. No person had meddled with Wintermute from the time he came in until he began to shoot."

Cross-examined-"After they fell by the stove, I took hold of McCook, saying, 'General, for God's sake quit.' He said, 'No, don't you see I'm shot.' They were parted and got up. Then another assault was made, the stove and drum were knocked down, and they fell. Wintermute had just given the fourth shot, but I didn't see it. Hanson took away the pistol. They were again separated and got up. McCook then went to shoving him toward this part of the room toward the window. Forced him against the window; knocked out a pane of glass with his fist, and was trying to push Wintermute through when prevented. Ile didn't hold or carry him there but shoved and forced him. I arrested Wintermute, and afterward issued warrant on a charge of murder when MeCook died. I am a justice of the peace. I saw Wintermute go and look into Judge Bayliss' room as if looking for some one."

Dr. Walter A. Burleigh testified: "Was educated for the medical profession. Prac- ticed till 1860. Knew General McCook. He died September 12, 1873, in this building in Yankton County, from hemorrhage caused by a pistol shot wound under the left clavicle and over the first rib, 3 or 37/2 inches left of the breast bone. The ball came out in the back of the shoulder, near the neck. The ball passed through the flesh and muscle, severed the sub-clavian vein and artery, and wounded the brachial plexus or bundle of nerves. Cutting off the sub-clavian artery is very dangerous. When necessary to ligate or tie it up in its third division or the part nearer the shoulder, it sometimes saves life; when ligated in the second division nearer the heart, it oftener fails; and is always fatal when in the first division. Only thirteen cases of trying to tie this artery are recorded, and all were fatal. In General MeCook's case it was just between the first and second portion, and was neces- sarily fatal, because very deep in the body and below the rib. It is not thought best to attempt to ligate in such cases. (Witness explained the aorta with its chief arteries, especially the sub-clavian, lying below the collar bone, which carries blood to the arm.) 1 first saw McCook about thirty seconds after he was shot, reeling and fainting; his left arm was paralyzed by wound of the motor nerves. This was a mortal wound. No power on earth could have saved him. Hle was in a state of syncope and had lost a great deal of blood. The opinion of all surgeons and the history of the profession prove it mortal. I did not see the pistol fired, but heard just four shots. Saw the third shot strike the ceiling. While ] was making a speech in the railroad meeting, Wintermute came in; called meeting to order and said something. Saw him afterwards come in and sit by the aisle near middle of room; didn't observe his actions there. After the shooting and struggle. I found both deluged in blood, and helped take MeCook to his room and bed, where we stripped him and examined the wound. Ile asked the nature of his iniury; 1 told him I could tell after taking off his clothes. lle said, '1 am not afraid to die, Doctor, tell me my true condition.' I said, 'There is no hope ; it is all over with you.' He then had us send for his wife and by. and told them to kiss him for he must soon leave them. He said, 'Charlie, be a good In. and always mind your mother,' He said to me, 'I'm not afraid to die; 1 go to my Girl with clean hands' He said his accounts would be found all right. About midnight 1 leit

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him a short time. returned and stayed till he died. McCook said nothing of surviving; no encouragement of it was given him."

Question-"What was said by McCook as to the cause of death, who caused it, etc."

Objected to by defense who entered into an argument to show that it was improper evidence, because the fact that McCook believed he was dying was not fully proved, and they claimed the right to rebut that belief with opposite proof. The prosecution held that to entitle the last words of General McCook to be admitted as dying declarations, prima facie evidence was enough, and that opposite proof was not in order.

It was held by the court that the foundation had been properly laid for introducing the dying declarations as to who killed him; that the defense cannot now stop the progress of evidence to bring in rebutting proof to impeach McCook's statement that he was then just going to die, and that not a single reported case authorized him to decide otherwise.

Exceptions were taken by defense.

Doctor Burleigh then replied to the question objected to, and said: "MIcCook said sub- stantially this: 'Ile shot me down like a dog, without giving me a chance to defend myself.' ] asked him who? He said, 'Wintermute.' I said, 'Had you no arms?' 'None but these,' said MeCook, raising his right arm a little, but failing to stir the left, he said, 'It's no use; I can't move it?' He said he was standing at the door; was surprised to find Wintermute shooting at him and went to take the pistol away, when Wintermute shot him in the breast. I attended the post-mortem examination and then saw the interior course and effects of the ball."

Dr. Geo. E. Moon swore to substantially the same facts as Doctor Burleigh. Described the cutting of the vein and artery, and said such a wound must in all cases cause death. "No help for it. When I came to McCook's bed, he said: 'Doctor, I never thought I would come to this. ] am killed.' 1 replied, 'I guess not General.' He said he was shot just as his brother was, and he knew he could not recover ; could have kept out of Wintermute's way if he had known; that he was shot by Wintermute, and the second shot killed him. The blood from the front wound was dark and venous, from the other in his back, came bright arterial blood."

Dr. James M. Miller testified : He did not see McCook while living. 1Je drew a sketch of the aorta and branch arteries for the jury, and testified like the others as to the fatal character of such a cutting of the artery and vein.

Joseph R. Hanson testified: "Was sitting in Mrs. Bayliss' room and saw General McCook there. Was in the hallways when shots were heard. The crowd rushed out, and kept me awhile from getting in. Saw a pistol held high in air and persons trying to get it. Wintermute and McCook fell; I put my foot on Wintermute's arm, and took the pistol away from him. (Produces it.) This is the same one, all but the cylinder, which was on the floor. Was with the general in his room till he died, except about an hour. When undressed he said to Burleigh, 'Doctor, how is it with me?' Being told 'Ed, it is all up with you,' he said, 'All right, Ed, McCook dies game.' This pistol has been in my possession ever since, locked in a safe, except when taken before the grand jury. I identify by its number and a private mark I made on it at first."

Charles H. Bates testified (produces the cylinder and fits it in the pistol ) : "I picked this up on this floor soon after the fourth shot. I saw flash of first shot; saw Wintermute fire the second shot, and saw blood just after it on McCook's coat and vest. Heard two other shots. ] have kept this in my trunk ever since, and the four empty cartridge shells in it have never been taken out." ( Both parts of pistol are stained with blood.)

James M. Stone testified: His testimony regarding the affray in the courtroom was substantially the same as the others, and court then adjourned for the day. On reconven- ing Wednesday morning. May 20th. the cross-examination of James M. Stone was begun, and the entire forenoon was occupied with questions addressed to the witness and objec- tions and arguments of counsel as to their admissibility. Mention was made in Major Stone's examination-in-chief of the resolution Wintermute offered at the railroad meeting, declaring lack of confidence in the Dakota Southern Railroad Company. On this ground the defense claimed the right to cross-examine by such questions as would bring out the whole proceedings of the meeting. Witness was asked what Judge Brookings did, and other questions, which were ruled out by the Court as going beyond the ground of the direct examination. Attorney Swett submitted a written proposition proposing to prove by the witness the main facts of the railroad meeting, the causes that led to it, and the temper and conduct in which it was carried on. Written objections were made by the prosecution to the reception of the evidence, and the Court sustained the objections. Excep- tions taken. Defense then proposed to prove that the meeting was violent and turbulent. increasing in anger till the time of the murder. Objected to, argument followed, and court adjourned for dinner. On reconvening the Court sustained the objection and ruled out the questions as not warranted on cross-examination. Exception taken. E. F. Higbee, S. V. Clevenger, J. A. Kent, J. Shaw Gregory. Wm. P. Dewey, E. N. Van Antwerp, A. F. Hayward. Thomas Kilbride, Mrs. Belle Bayliss. Geo. P. Waldron. Henry E. Buell, Henry Thwing, Lott S. Bayliss. D. T. Bramble. John O. Bates, George Wagner. Wm. C. Cowan, and L. M. Griffith also testified for the prosecution, their testimony substantially cor- roborating the statements already given regarding the shooting and the fracas in the saloon, except the testimony of Mr. Wagner, gunsmith, who testified regarding the pistol

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and cylinder produced by Witnesses Ilanson and Bates, that the cylinder appears to belong to the pistol, and that the cartridge given him appears to be the proper size for that pistol. He had noticed that some shells expand and become tight by firing, and some do not. Sometimes he finds slight difference in size in same box of cartridges. A size larger or smaller would not fit this pistol.

Mrs. Loraine McCook testified: "I am the widow of Edwin S. McCook. I first saw him when shot, after he was placed in bed and undressed. The conversation we had did not show any hope of getting well. Ile told me not to entertain the least hope that he might live; that I must make up my mind to part with him. Gave some directions about his affairs. My father and mother ( Mr. and Mrs. Oscar Whitney) were present. He said it was utterly impossible for him to recover. I tried to encourage him all I could, for 1 felt it hard to give him up, so I tried to have him keep still and not talk. He said: 'Well, perhaps it is as well; 1 will try.' They applied ice, and said no more could be done; we

must wait till morning. A little fresh blood oozed from the breast, but we did not examine the wound in the back. The bed was so saturated that about midnight we heard the blood dripping on the floor. When E. T. White was sitting by him, he opened his eyes, said: 'Ed, is this you?' I don't remember all he said to him, but think he said: 'Perhaps some time I can come and nurse you.' That was all of that sort that I knew him to say."

Mrs. Oscar Whitney testified ( Counsel for defense bere objected to receiving the tes- timony of these two ladies, as belonging to rebutting testimony, if admissible at all. Argued by prosecution that it was an essential part of their case, and if withheld now, perhaps would be inadmissible hereafter. The Court sustained this view, and Mrs. Whitney pro- ceeded ) : "I first saw General McCook when being led to his room. He said to Doctor Bur- leigh, 'I shall die. 1 am shot just as my brother was. What do you think of it?' Burleigh answered: 'Ed, my boy, I can't give you any hope.' I said, "Oh, Edwin." He said : Mother, don't give way to your feelings; I shall die. Hurry and set me down, and call Loraine and Charley.' When they came his wife said, 'Oh, Edwin, you cannot die; God will not take you away from me' He replied. 'I shall die; you must not entertain any hopes. I've seen too many people shot to expect I can ever get well. I am not afraid to die. I go to my God with clean hands. I never have wronged man, woman, or child ; but to be shot down in this cowardly way without a chance to defend myself, Oh, it is too much.' He said it was Wintermute who shot him; repeated his name several times. After he was roused from his stupor with nausea, perhaps I o'clock, he called his wife, who said. 'I'm here.' He said, 'I can't see you any more.' After that time we couldn't tell what he said. He died near 7 A. M. Nothing was given him as medicine; no opiates or any other medicine, but ice was used to stop the blood. Doctor Thomas was with him; sat down in a chair with his head on a pillow and went to sleep while Edwin lay in a stupor. Ile slept about two hours. Loraine grew very much excited about this. We shook the doctor's arm and begged him to do something. The blood soaked through a thick mat- tress and dripped on the floor." ( Here the prosecution rested its case. )

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History of Dakota Territory, volume I, Part 125

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