History of Dakota Territory, volume I, Part 126

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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Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).

TESTIMONY FOR THE DEFENSE.

HIon. Leonard Swett made the opening address in behalf of the defense, consuming about two and a half hours, after which court adjourned until the following day. Friday. Friday, May 22d. John J. Thompson testified: "1 came to Yankton County in i&%). Was here in the room at the homicide, sitting by the middle window. Wintermute sat at my right hand three-quarters of an hour, doing nothing unusual as I could see. He got up and asked me to go down and take a cigar; I declined, and he went out. After awhile he came back and sat down near the stove for fifteen minutes or more and did some talk- ing to the meeting, saying that he had been beaten by MeCook, whipped out of his boots. or some such thing. His face and cheeks were scarred, his eyes swollen, and some blood on his face. He was pretty badly beaten. Don't think he left the seat till the shooting commenced. I noticed nothing peculiar about his actions or manner. Doctor Burleigh was speaking when he came in. The first that called iny attention was a pistol shot. There were two close together; ) could not tell where the first one was. Wintermute was stand- ing up when the first was fired. I turned to Wintermute and saw him fire the second shot : don't think any one man could fire two so near together. He was standing at the side of the stove. lle did not advance an inch, Fam positive. I don't know where the first shot was fired; the sound was right in the room, but where it started from I can't tell 1 don't know whether Wintermute fired the first one or not. MeCook was standing in the doorway leaning against the left door-jamb when the second was fired. Then he made a rush this way; about half way between the door and the stove they met and grappled It is hard to tell what occurred next, for having had my feet on a chair before me, they got caught in the back of the chair, threw me down, and I could not rise till most of the crowd had passed over me. Then I went out in the passage. I saw Wintermute rise and stand by his chair before a shot was fired. Wintermute did not walk a step toward the door before the second shot. Meeting was rather boisterous; harsh words between speak- ers. There were no people drunk in the room, though there had been many drinking that day."

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Cross-examined : "I was not in when they organized. Wintermute was here when I came. He and Mr. Ash went down for a cigar. They were gone fifteen to thirty minutes or more. When Wintermute came back he sat next to the stove, I think one row of chairs in front of me next the aisle. There were three or four lamps at the speaker's desk and I think back of these also. There was an inch of sawdust on the floor. I didn't notice Wintermute's face hurt till he spoke of it. I didn't see him come along the aisle to take the seat. I was hearing the speeches. There was blood on his face and collar. His right eye was swollen, so 1 don't think he could see with it; marks on both cheeks. 1 think his words were, 'Is this a. - rowdy meeting, or is it not a - - rowdy meeting. He also said he had just been licked out of his boots by Secretary McCook, and had this to show for it. Burleigh told him McCook ought to have knocked his head off. I don't remember Wintermute's making a vulgar or indecent reply or any reply. The meeting was quiet and orderly when Wintermute came in that time, though some excitement. No out- break except this shooting. Mr. Spink was speaking when it begun, but he had had no interruption. The only previous disturbance of the meeting was that when Wintermute rose to a point of order, and said he had been licked. The first and second shots were fired very close together. 1 am confident I couldn't fire them as quick. Wintermute fired the second. I don't think Wintermute had time to put his hand in his pocket, take out a pistol and fire it, after hearing the first. They sounded the same. I didn't see McCook have any pistol. 1 got out of the room as quick as I could. Hleard three or four shots before I got out and one after. I had seen McCook at the door looking in. First saw him inside after second shot. When Wintermute fired there was no one troubling him or molesting him in any way. I was one who signed Wintermute's first bail bond."

William Tripp testified: "I was present sitting in the meeting very near this present witness stand. A pistol shot first drew my attention; the report and what I supposed to be a ball passing near me." Cross-examined: "I was watching Spink who was speaking. These railings were not here then. Doctor Burleigh was at my right. I spoke to Burleigh of hearing the ball go by; we both spoke of it. Don't know where Wintermute was then seated. 1 am confident it was the ball from the first shot. I heard four or fire shots. The second was almost instantly after the first. I think the ball whistled between our heads. I heard it plainly." Re-direct: "We heard it and said we had better get out of there. I got out first."

S. L. Spink testified : "I was speaking when the shooting began. The meeting was then very excited and tumultuous: they asked questions and I replied. Heard cries of 'Put them out,' 'Shut up,' etc. Had heard remarks that the meeting would probably break up in a row. It was broken up by the shooting. I came next morning; the door was locked. Got in and found the room in great confusion. About as left the night before. Examined the room very carefully." (Counsel presents a chair for examination.) "I found this chair. It was between that window and the stove. There was blood upon that chair and the fresh mark of a bullet, which now shows."

Cross-examined: "There was blood on a great many chairs there. I didn't notice on the floor for there was sawdust on it. The ball had gone through, but I didn't look to find it on the floor in the sawdust. A great many chairs were turned topsy turvy. I was making a speech that night against the railroad company, with a good deal of excite- ment. Was interrupted often by questions from Burleigh, Brookings and others; perhaps Waldron, too. The questions were but a small part of the interruptions; they were both cheers and hisses. Can't recollect any but those three who interrupted. Did not see Gen- eral McCook till the shooting. Heard and saw no signs of violence against Wintermute, none against me or anyone else. I thought it very likely it would break up in an open fight. The fault was on both sides. McCook was not a participant that I know of. Win- termute participated actively in the meeting and interrupted it once. He was one who helped organize the meeting and nominated Edmunds to preside. Edmunds, Wintermute and I were in the same sympathies regarding the meeting."

A. M. English testified: "I have lived in Yankton since 1860; carpenter and builder. I was present at the homicide. The first shot sounded to me as if fired in the stairway. I did not miss Wintermute from his seat from the time I saw him there until the shot was fired. Next I saw him standing in the aisle, a little more toward the door, about eight feet from the stove; there was a rush and a trampling of feet. I saw people running and McCook advancing toward Wintermute. About as they closed the second shot was fired. They were just then close to the stove, Wintermute in the act of falling and McCook going down on him. 1 didn't see any pistol nor the blaze. They were near enough to reach each other. When Wintermute came up from the saloon his face was bruised and swollen, one eye nearly closed. (Gives account of Wintermute's speech.) Saw no blood on him. There had been excitement in the meeting over the discussion; a little noisy When they fell in the scuffle there were two or three other shots fired; I think three. After they were separated I saw Wintermute trying to ruin or at least on a fast walk by the stove. He fell down and McCook came up to him and kicked him. I saw them wrangling off in this direction, I heard five shots. The first I saw McCook, he was in the aisle approaching Wintermute on a fast walk. Heard him say near the window he wanted to shoot him. McIntyre was trying to quiet the disturbance. I saw 'English Pete' engaged in the scuffle. I heard a crash at the window and think a light of glass was

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broken; don't know how it was done. I came from Broadway to the meeting with Winter- mute, and Spink and Ash. I think 'English Pete' was along.'

Question. What were you talking about? ( Objection by prosecution, sustained, and exception taken.) I don't think Wintermute was angry then. General MeCook's name was not mentioned.

Cross-examined. There were about one hundred people in the room; not as many as there are now. I sat on the north side of the aisle, but when Wintermine went out first I took his chair. He came in and sat down an instant, then rose to a point of order. There were some profane and obscene remarks made then. Not over fifteen or twenty minutes later the shooting occurred. I didn't see any one drunk, or any rowdyism, though some had been drinking. There was excitement on the railroad question, but I think it was rather an orderly and quiet meeting considering the excitement. When Wintermute came in again he took a seat at my left, then changed his seat and sat behind me. That was before the shooting. When the first shot was fired, I don't know whether he was standing or sitting. He may possibly been half way toward the door; but } didn't miss him from his seat. The first shot came in from the door. I looked around and saw Wintermute and then McCook following him up. Saw no pistol in McCook's hands. If he had one I might or might not have seen it. He came in with his hand thus (holding them up and open). I can't say whether I saw blood on MeCook between the second and third shots or not. Nor whether McCook had hold of Wintermute at the time of the second shot. I didn't see anybody fire it.

Question. Don't you know that MeCook did not fire it.

Answer. No, I can't say that I know he didn't. 1 saw him come in rapidly with his hands up. Don't know as I watched him till they got together. My attention was on them both. I saw no pistol. I never swore before a grand jury that there were only three shots, and that I saw none of them. They must have made a mistake in the notes. It is my opinion there were five shots. Saw a pistol later held high; both men struggling for it. Think it about the size of that one.

Question. Can you distinguish by sound between a shot fired in at the door, and one in the room?

Answer. No, I cannot.

Question. When did that kicking occur ?

Answer. After all the shots.

Question. Do you remember hearing McCook say "he has shot me?"

Answer. No, I do not; only heard him say he wanted to shoot Wintermute. Much might have been said that I didn't hear.

Re-direct. I saw Major Hanson pick up a pistol off the floor; not in any one's hand, near the stove.

Cross-examined. Wintermute had just passed near where the pistol was. Didn't sce Hanson step on Wintermute's arm and pull the pistol from him. I saw the pistol drop and saw Hanson pick it up. Don't know who dropped it.

Carl C. C. P. Meyer testified: "I have resided here fourteen years. Was at the rail- road meeting. I was sitting on the north side by the wall. Saw Wintermute when he came in and rose to a point of order. His face looked very bad. He showed the mark he got from scuffling with MeCook in the saloon. The first I knew of the shooting was a shot fired from the outside of the room, which drew my attention and I turned round; turning I saw Wintermute at that moment raise out of his chair, and just as soon as he rose 1 saw MeCook and Rossteuscher rush toward him. Then I saw, right off, two shots fired. I only saw the blaze, as there was no light at that part of the room; saw the blaze of two shots fired at once; not more than so far apart (about three feet), about hali way from the stove to the door. Then I saw Rossteuscher close to Wintermute, and McCook just behind him. The shots were about breast high; both flashes were level; were very close together as to time. Then McCook seized Wintermute by the shoukler. and Wintermute was pressed down by the stove; there the third shot was fired that killed MeCook; and then when they were struggling on the floor one shot went off that I believe struck the ceiling here, I saw a hand hekl up but no pistol. Then MeCook took Wintermute to the window and tried to put him out. After that 1 couldn't see much ; 1 only know that Wintermute was on the floor by the stove while MeCook was led out of the room. I am positive there were five shots fired or more. I stood in one place all the time. I have been acquainted with the use of firearms forty years. The first shot did not sound like the rest, and must have been of smaller cahbre 1 am able to tell the difference between firearms by the sound; can't always tell the difference be- tween a shot gun and rifle by sound, but can between pistols of different sizes."

Cross-examined: "I entered the meeting while Brookings was speaking I rose in my seat when firing begun. There was no one sitting between me and Wintermute at all. The space between was entirely open. My attention had not been on Wintermute. as ] was attending to Spink's speech, till I heard the shot outside the room; then I lo ked right at the door; first glanced at Wintermute as 1 turned. Saw Rossteuscher anl MeCook come this way. Wintermute stood till they came up. Don't believe Winterrite advanced half way to the door to meet him; am not sure but that he advanced enie step. but not more than one. MeCook did not have his hands raised when I saw him; cann t

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tell how he held them. I didn't see any revolver there at all. Nobody got between me and Wintermute at all till the second shot. I don't know who fired it. I cannot tell from the sort of blaze I saw, which way the pistol was fired; the second and third were fired as quick as that" (claps hands twice as quick as possible ).

Question. Were there four shots in the room of the same sound?

Answer. Yes.

Question. Testifying as an expert, did they all come from the same pistol?

Answer. Yes, I don't doubt it.

Question. Then why do you doubt that one man could have fired all?

Answer. He must have had a self cocker, or used his thumb very, very fast.

Question. Is that your opinion as an expert ?

Answer. Yes.

Question. What difference between a pistol fired in the room and one fired from the hall into the room?

Answer. The one fired in the room would be the sharper. I have experimented on that while practising. I was in the army.

Question. Did you practise sounds in camp ?

Answer. No, sir, I am no expert.

Question. Then your opinion as to sounds is no better than any other person's?

Answer. I don't think it should be.

Question. Did you swear before the grand jury that Wintermute fired the first and second shots?

Answer. I believe I did.

Question. Did Wintermute say he fired the first and second shots?

Answer. Yes.

Question. Did you see no pistol at all?

Answer. No.

Question. Did you see hands held up, that seemed to be struggling for something? Answer. Yes.

Question. Did you see no pistol then?

Answer. No.

Re-direct. When Waldron asked who fired the first shot, Wintermute said he did. Silas C. F. Norman testified: "] came in while Brookings was making a speech. The first I noticed, Wintermute stood up; next the report of two pistols, spat, spat. I saw the flash of the one Wintermute fired, but not of the other. I think Wintermute's shot was first, but am not positive. I didn't see MeCook till six feet inside the room with Rossteuscher. When MeCook reached Wintermute he crushed him down to the floor just as you would crack a bedbug. I heard one or two shots after they fell. I saw a revolver pointed towards me; thought it was in McCook's hand; it might have been a wooden imitation of a revolver. Two shots were fired after, but can't tell who fired them."

Question. How many shots did you hear in all ?

Answer. Five, possibly. I believe sir, honestly six. I stood back and didn't inter- fere. Heard a crash at the window. Two men took MfcCook out, and Wintermute said, if any one wanted to arrest him to do so; Rossteuscher arrested him, I think. Heard McCook say while being led out, 'They have have disarmed me.' Before the meeting heard McCook say at the foot of the stairs, that Wintermute had been running since noon to get enough men to run the meeting. I saw McCook as he rushed into the room; thought I saw a revolver in his hand above his head, but wouldn't swear to it. It looked like one but might have been an imitation, four to six inches long." (Describes effects of Wintermute's previous whipping.)

Cross-examined: Was Wintermute saturated with blood from his whipping? Answer. He was pretty bloody.

Question. Very bloody, as you told Mr. Swett?

Answer. I never saw a man's face worse pounded. I was in the room from first to last. near that block nailed on the wall. Forget whether sitting or standing at the time of first shot. 1 did not come in with Wintermute; he came here before me. It was from thirty to forty minutes from the time Wintermute first came in with face beaten, till he fired the first shot.

Question. I understood you to say that Wintermute fired the two shots that were fired one right after the other.

Answer. Yes, I did. Thought Wintermute fired the first: not positive. He fired it toward the door.

Question. Please stand up and imitate his movements.

Answer. (The witness does so, and says) : Wintermute was very drunk. I saw him stand up; I then looked at Spink, and heard two shots; turning round, saw flash from Wintermute's pistol, but not from the other. One sounded outside the door. Winter- mute fired toward the door or the ceiling. There were many people between me and these two. I didn't see Meyer. English Pete was next to me. Think two shots were fired just as MeCook laid hands on Wintermute. There were six shots fired in this room I think.

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Question. That makes four shots you recollect being fired.

Answer. Five, or six, sir.

Question. If Wintermute first fired a shot toward the door, and instantly you heard another, and then when MeCook came up to him two more were fired, is that right ?

Answer. I never testified to any such thing.

Question. What then ?

Answer. I heard two at the door, the third when I thought I saw something in Me- Cook's hand that looked like a pistol.

Question, Who fired that?

Answer. I will swear positively Wintermute fired the third. He stood facing Me- Cook but don't know as he shot him then. Saw no blood on McCook till after all was over. The fourth shot was when they went to the floor. Don't know what became of MeCook's pistol; reckon he handed it to some friend. Next I saw of it after the first time, was in MeCook's hand after "English Pete" was holding up his hand and trying to get it. I never saw any flash from it, but he might have fired it two or three times. I heard the fifth shot and saw the flash. I believe there was a sixth shot but cannot swear to it. The pistol I saw in MeCook's hand was about the size of this in court. I knew it was MeCook that made the remark in the passage about Wintermute because it was his voice. I drank a glass of ale and two of beer before I came up,

Question, Did you tell the barkeeper that you had drank twenty-nine glasses of beer that day ?

Answer. If I did I wasn't under oath-I was not under the influence of liquor at all.

M. M. Matthiesen, testified: "I sat between the stove and south wall, Wintermute being two chairs back of me. His face was very much swollen and somewhat marked. I saw the flash and heard the report of the first shot. It was back of me, perhaps in the hall. J jumped up, looked round, and Wintermute was standing by his chair with his back toward me. MeCook and Rossteuscher were near him. Saw nothing in Winter- mute's hands. Heard a sort of double shot, pat. pat, and saw flash. McCook came to him and Wintermute fell down on the side of the stove, MeCook on top of him. Winter- mute then turned the pistol so that it was close to his breast and fired. There was no flash, just a report and smoke. 1 saw what I have described. I heard two shots after that."

Cross-examined : "I came alone to the meeting while Brookings was speaking. When I first saw MeCook he was close to Wintermute. Think I saw his hands; couldn't tell if there was anything in them. Think MeCook laid hands on Wintermute just as the second shot was fired. This double shot was before they got back by the stove. The flash was about breast high. Heard no bullets whistle. The blaze seemed to come this way. The second shot did not sound like the first. Wintermute backed to the stove; McCook fol- lowed up, and they fell together. Heard nothing said by them. The third shot was the first I saw fired. Wintermute fired it. I never have said it was a good thing Mccook was killed."

Peter Hackney ( English Pete) testified: "Reside in Rushford, Wisconsin. Lived in Yankton County three years and four months. Was here at the homicide; sat at right of the stove. The first shot sounded toward the door. I looked round and saw McCook walking into the room to where Wintermute was standing. When about three feet apart two pistols were fired. I saw one in MeCook's hand. and saw the flash of both. I got to MeCook as soon as I could, after they had gone down by the stove. I took hold of both MeCook's hands. Ile wrenched the pistol away, firing it into the ceiling. right there, and I caught hold of him again with my right hand on the pistol. Then he fired again, and shot me in the right hand. I called for assistance. Some men came and 1 delivered MeCook to them. I took part of bullet out of my hand last March. I had hold of his hand and pistol both. I only saw MeCook's pistol. Five shots were fired. I showed my hand to John Bates, Edgar, Spink, Treadway, and lots of others."

Cross-examined: "I am the one called English Pete, Was working as a carpenter on stores on Broadway. Didn't work the first day after this occurred. huit two or three days after I worked hewing plank with an ax. I took the lead out myself, last March, in Wisconsin. It had healed up where it went in; it gathered and mattered in another place, and I took out this piece of a ball. It hurt me all the time it was in there. Shows a sore not yet healed, where he took it out.) I need a jack-knife. The ball lodged midt way between the two wounds. When first shot was fired Wintermute stood by the stove Men were sitting between him and me. I don't know whether all the shots were fired in the room. When MeCook came up near Wintermute I watched them both, I watched Wintermute's conduct and manner, but could not see his hands for the stove Don't know that he had any pistol, but it appeared to me that the flash came from where he was standing."

Question. Is it your impression it came from Wintermute?

Answer, 1 don't know where it came from: there were two, flashes right tog ther. That was after the firing of the first shot When Wintermute rose from his clair le made no advance toward the door. McCook was near the stove when I ret www. p.] in his hand. Saw none till he got near the stove. The pistol in court look. ninie the one MeCook had. 1 saw no pistol in Wintermute's hands. When I was Die ..

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wrest the pistol from McCook, Wintermute was lying on the floor. I'm sure I don't know how he got there.

Question-McCook wasn't within three feet of Wintermute when the second shot was fired, is that truc?

Answer. Yes.

Question. Then McCook was not the cause of his going to the floor, was lie?

Answer. I don't know.

Question. Did McCook put Wintermute to the floor.

Answer. I don't know.

Question. You say you kept your eye on McCook from the time he came in till they got together.

Answer. Yes, sir.

Question. Tell me then whether McCook put Wintermute to the floor or not.

Answer. I cannot say ; they got behind the stove. I saw the pistol in McCook's hand before Wintermute went to the floor, and to the best of my recollection he pointed it at Wintermute. The second shot was instantly followed by a third. I had hold of McCook when the fourth shot came. General McCook fired it. I presume McCook did not fire the second, but did the third, fourth and fifth. The fifth put this lead in my hand. I don't know who fired the first. The second came from the place Wintermute occupied. (Witness was asked if he had said that night to certain persons that he would help hang Wintermute; also that he got his hand hurt from wresting the pistol from Wintermute's hand; all of which he denied.)

H. C. Ash testified. "I was present at the homicide. Sat four or five feet from the stove. Wintermute sat four or five feet from ine. He came and spoke to me before he went to the saloon.

Question. What did he say ?

Objected to, argued, and objection overruled by court.

He asked if I had any money. I told him ] had a little. He said he wanted a cigar. I told him to walk down with me and we'd take a cigar. He was quiet and pleasant in manner as a man could be. We went into the saloon; were together side by side, all the way to the door. Did not meet McCook on the way.

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History of Dakota Territory, volume I, Part 126

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