History of Dakota Territory, volume I, Part 127

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

USA > South Dakota > History of Dakota Territory, volume I > Part 127

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).

Question. Was there any conversation between Wintermute and McCook in any respect like the following: "General McCook will you let me have a cigar?" "I have none." "Let me have the money to buy one, - youl."

Answer. There was no such thing said. I stopped at the billiard table; Wintermute walked to the bar, and McCook entered and walked there too. McCook spoke to Winter- mute first; I didn't hear what he said. Heard Wintermute say: "McCook, you are a bigger man than I am; if you lick me I'll shoot you." McCook then knocked him against the wall, breaking a picture, and pounded him on the floor with his fist fifteen or twenty times. Didn't see him kick him, but kicked at him when pulled off. McCook then went out doors. Wintermute was very badly pounded up. I have lived in Sioux City and here since '56, but never saw a man so badly beaten with fists. McCook did not have a scratch. They were men of about one hundred and thirty-five pounds and two hundred pounds. McCook was about six feet tall. Don't think Wintermute struck a blow. After washing, Wintermute went upstairs to the meeting. I sat here and heard the first shot. which sounded as if down on the stairway, or outside. In the saloon I think I heard all that was said. I was twenty feet away at first. Nothing was said by Wintermute about whipping McCook, and he called him no ugly names that I heard. Wintermute was excited when he got up and told the meeting he had been hurt; seemed wild. The first thing that really disturbed me was the two men coming together by the stove. The first shot out doors or in the hall, did not disturb me. Wintermute had not, to my knowledge, been toward the door. The second shot roused me, and I looked around. They went down and a general tumble and shooting began. Think there were three shots inside the room. The meeting was called to try to harmonize the people and the railroad company, about $200,000. (Objection.) One side claimed the company should withdraw the suit on the bond question, to prevent mortgaging the road. It was a warm spirited meeting; saw no signs of violence. They spoke as is usual in western meetings.

Cross-examined: "Nothing in the meeting had indicated riot or bloodshed. To the best of my judgment four shots were all there were. Don't know as I could distinguish by sound a shot fired out through the door from one fired in from outside. Think the first was outside. It is a certainty in my mind. Don't know as I heard two in very quick success. I didn't see what Wintermute was doing while standing up; many were skedaddling then. I saw them both when the second shot was fired. McCook was press- ing forward to Wintermute. Cannot say as to his hands; saw no pistol: but only heard report. Think third and fourth shots were fired while on the floor. There must have been twenty-five men around them; a jam so I could not see. In the saloon, I did not hear Wintermute say what was testified to. of his being mad at McCook, nor of asking McCook for a cigar. Don't think it could have been said there without my hearing. Didn't see Ziebach step between and try to reconcile them. I remained by the billiard table. Wintermute did not shake his finger in McCook's face with insulting words. Did not see Bancroft there. Saw Wintermute washed up; but don't remember that Bancroft washed

735

HISTORY OF DAKOTA TERRITORY

him. I used to take some drinks daily. Was then hut little under the influence of liquor. if at all. Drank beer before I went there. I think my memory was then as good as now."

Abraham Adler testified: "1 saw General MeCook inside the room on the night of the meeting, in the northeast corner. He stood there when Wintermute offered a resolution in the meeting. Heard nothing said by MeCook. lle came to P. C. Conway, tapped him on the shoulder, and said, 'P. C. be on hand; you will see some fun.' This was while Winter- mute spoke. Wintermute went out soon; Conway soon followed, and so did I. I entered the saloon and heard Wintermute say, 'General MeCook you are a larger man than I am and can whip me, but if you do I will shoot you.' MIeCook said: "You'll shoot me' and struck him on the back of his head. ( Here describes the whipping and washing up. ) Didn't hear Wintermute call McCook a dirty puppy, or threaten to whip him. Don't think Winter- mute was gone from the meeting more than ten minutes. I went back with him."

A. J. Sweetser testified : "After the shooting Wintermute was taken to my hotel. 1 saw him the second day after. His left hip was bruised, and black and blue; a spot as large as my hand. I was at the railroad meeting. I heard the first shot outside, and heard the bullet whistle past myself, Burleigh and General Tripp. We all spoke of it at the time. 1 judge six or seven shots were fired in all. Saw Wintermute kicked by General MeCook." Cross-examined: "The bullet came this way. Have never looked for the place it struck. From the sound I am satisfied it was fired from outside the door. I saw no person fire a shot that evening. Couldn't swear whether the first and second shots were similar in sound or not. It was impossible to locate all the shots, but there were six I think."

Erick Iverson testified : "I was at the railroad meeting. The first I knew of the trouble, I heard a shot. I sat near the stove on the left. Turned round and Wintermute was stand- ing about three paces behind. Think he was there when shot was fired. There was no smell of smoke to show he had fired it. When I heard it, I heard a noise of chairs as it somebody was getting up. It was just behind me where Wintermute sat. Saw Rossteuscher and McCook come up to Wintermute. MeCook had both hands raised. MeCook took him by the shoulders. They were in the act of going down when I saw the flash of a pistol in Wintermute's hands. It was very close to MeCook's breast. I went out of the room."

Cross-examined: "Did not see who fired the first time. Wintermute was then sitting clown by the aisle. The second shot was the one I saw fired at AleCook's breast. 1 saw no pistol in MeCook's hands. He had hands on Wintermute before that second shot. (Wit- ness and counsel go out in stairway and examine bullet marks.) I think a ball from where Wintermute stood when first shot was fired, could not have struck there; would have hit the door post."

J. R. Gamble testified : "I found a chair in this room with a bullet hole in it. on the edge of the seat ; the ball had fallen out, being not deeply imbedded. The chair shown in court was not the same chair. Found the chair at the October term of court and examined it carefully. Have looked for that chair since in the room. Think I told some one then tha' there was the mark of one of the bullets in the MeCook affair. When I saw this other chair exhibited 1 told Mr. Burdick it was not the same one."

Cross-examined : "I only casually remarked to some man in October about the chair. The ball had gone in about as deep as its own size, and had dropped out. I am familiar with bullet holes. It couldn't have been anything else."

Newton Edmunds testified: "Resided here since 1861. Was president of the railroad meeting. Doctor Burleigh was making a violent speech; much feeling aroused. Mr. Spink was called on to reply. Persons were about the room somewhat in liquor, making more noise than the rest. The feeling grew more intense. I thought the first shot was outside the room: from its difference from the other shots thought it was entirely out doors. The shooting was over before I left the room.

Cross-examined. Describes conduct of the meeting and says he saw nothing indicating riot or bloodshed before the shooting. Don't recollect Wintermute asking if this was a rowdy meeting. Ile said he rose to a point of order. and I asked him to state it. He said he had been whipped. etc., think I told him his point of order was not very well taken. and asked him to sit down.

W. M. Edmunds testified: "I am a son of Newton Edmunds, the preceding witness. Was standing in main door of this room at left side. General MeCook and Ressteuscher stood in the door with me and others behind. A pistol shot first took my attention. It was very close to me. I felt the burn of the powder on my face. Don't know where Winter mute was at the time. Saw no one between me and the stove. It was entirely clear in front of me for ten or twelve feet. I don't know who fired the shot. When that flash came into my face I stepped into the passage, and did not go back until it was all over."

Cross-examined : "I was leaning on the left door casing as we now face it: General McCook in opposite side. but a little more outside."

Question. Did you feel the breeze of the pistol shot going by you, or did you merch inhale the fumes of the powder ?

Answer. The powder flashed in my face.

Question. Did General MeCook fire it ?

Answer. I think not. Saw no one standing in front of me, because 1 didn't bok 1. see ; I got out of that as soon as I heard the shot. Didn't return until it was all over.

736

HISTORY OF DAKOTA TERRITORY

Monday, May 25th -John Treadway testified : The first shots sounded out in the hall or in the door. Looked and saw McCook and Rossteuscher advancing. There was no body in front of them. They came to the stove. Corroborates other witnesses as to the struggling. Lucien W. Case testified : "I had Wintermute in custody as sheriff and was with him every day. There were marks on his face as long as he remained, until October 13th."

William Leeper testified : I am city marshal. Testified same as case regarding Winter- mute's injuries.

Dr. Robert I. Thomas testified: "Have resided here eight years and practiced medicine twenty-five years. Had charge of Wintermute for six or eight days as a patient, after September uth. On Friday morning he was half conscious and stupid from an interna! difficulty caused by external injuries. He had partial concussion or contusion of brain. (Gives particulars of his bruises.) I think he was in danger of inflammation of the brain. I was in this room the night of the homicide. A shot first attracted my attention. It sounded at a distance, either at the door or out of the room. Saw McCook when taken to his room ; was there when undressed, and almost all the time until he died. Heard Burleigh tell him that he must die. He replied that he wasn't afraid to die. Could die like a man, but guessed he would not die. At 5 or half past 5, when Mr. White had been waiting on him and was about to leave, the general shook hands with him, saying: 'Good-night, when you get shot I will do for you as you have done for me.' When the general's clothes were first removed, the blood was shopping over, and we placed ice on the wound to check the flow. There was very little hemorrhage after f saw him or during the night. It was brought on again by coughing, after White left; also by vomiting. There was no reaction. Two or three hours after being placed on the bed there was more pulse and more cheerful prospects. I had hopes of his recovery while with him. Told him everything depended on quietness. Can only conjecture as to what blood vessels were cut ; my opinion is that the sub-clavian vein was hit, but not the artery. Saw nothing looking like arterial blood. Had the artery been cut he would not have lived over five minutes. Saw no spurting of blood like an artery. In consultation that night, it was agreed that the vein was cut. I saw the post- mortem. His muscles were powerfully developed. The difference between him and Winter- mute was that between a giant and pigmy. The chest was laid open, but developed nothing but the fact that there was no internal hemorrhage."

Cross-examined. Do I understand you that contusion and concussion of the brain are the same?

Answer. Contusion is a breaking of parts-live parts, and concussion is a disturbance of the functions of the brain. They mean the same as applied to the brain.

Question. Did you advise or aid physically in the post-mortem on General McCook's body ?

Answer. I did not.

Question. What is the amount of blood in the body ?

Answer. About one-fifth to one-sixth of the weight, or from twenty-eight to thirty pounds. I should think a loss of five or six pounds would cause death.

Question. Do you not think the body showed a loss of more than six or eight pounds ? Answer. Well, the body was bloodless, comparatively. I think the shot was the imme- diate cause of death ; that the hest treatment was given; and that nothing more could have been done, that would have saved his life. His death cannot be charged to mal-practice.

Direct examination resumed. Supposing the blows you saw on Wintermute on Friday, September 12th, to have been given at 8 or 9 o'clock P. M. on the 11th, and that the homi- cide occurred about an hour later, under these circumstances, what is your opinion as to whether the defendant would know what he would be doing within an hour afterward : not generally, but whether he knew what was right and wrong in regard to the crime of murder ?

Answer. If his mental faculties were so disturbed by concussion as to result in this injury, I think he would not be able to discern between right and wrong.

Cross-examined. Suppose a man came to a public meeting, nominate a presiding officer, and after organized make a motion; that afterwards he should go out, get into a fight, and get a black eye, and blows on the head-that he returns to the meeting, raise a point of order, then sit down and remain twenty minutes ; that while sitting he watched the door. and saw the man with whom he had the fight in the door. and seeing him he should get up, advance toward him and fire at him, should you think he could distinguish between right and wrong?

Answer. I should suppose that he might.

Dr. J. B. Van Velsor, Dr. D. F. Etter and Dr Franklin Wixson also testified as to the fatal character of the wound. Doctor Etter attended Wintermute while he was suffering from his injuries at the Merchants Hotel. Thought he had concussion of the brain. Was confined to his room from Friday until Monday.

Alexander Hughes, of Elk Point, testified to having called on Wintermute during his stay at the Merchants; but the latter did not recognize him, though he was accustomed to meet him daily during the sessions of the last Legislature.

An effort was now made by the prosecution to impeach the testimony of Peter Hackney, otherwise known as "English Pete," who had sworn that he saw a pistol in General McCook's hand during the struggle in the court room ; that he made an effort to wrench it away from

737

HISTORY OF DAKOTA TERRITORY

McCook, and was severely wounded in the hand from a shot fired by MeCook. Hackney had not been supported in his testimony by any of the witnesses who were present and saw the affray. His testimony was intended to support the claim that Wintermute acted in self- defense. Some twenty-five or thirty witnesses were called, who testified regarding what Hackney had said to them after the shooting, and also testified as to his reputation.

Win. Treadway saw Pete's hand in the St. Charles saloon right after the shooting. It was bleeding and the wound looked like a tear.

A. M. English saw Pete in the court room after the affray. llis hand was bloody and marked.

M. P. Ohlman saw Pete on the corner by the St. Charles, a half hour after the homicide; his hand was bleeding, but didn't know the cause.

Charles H. Greene testified that he saw Pete llackney ten or twelve days after the shooting near Fred Schnauber's, and heard him say that when Wintermute was in the act of shooting he grabbed his hand, and that was what he had to show for it, at the same time showing his hand. Ile said it was Wintermute's hand he caught.

John O. Bates testified: I knew Peter Hackney by sight September 1th. Saw him in the saloon that night after the shooting exhibiting his hand. He said then that he was trying to take the revolver out of Wintermute's hand; and that MlcCook was also trying to get it. I put the question to him : "Did you see McCook have any revolver?" and he said, "No, only the one they were wrestling for." He also said he got his hand hurt by trying to take pistol from Wintermute's hand, when it went off. I said to Pete I thought the hurt was not caused by a ball. He said it was.

S. K. Felton testified: "1 knew English Pete. Had a talk with him within a few minutes after the 11th of September, about his hand. lle then said he got it hurt in try- ing to take the pistol from Wintermute."

Cross-examined : "That was at noon the day McCook died. Met him on the sidewalk. Asked him what ailed his hand, as it was done up. He said it was hurt a little ; that General MeCook had grasped Wintermute's wrist, and that he had grasped the pistol and it went off."

H. E. Tuttle testified: Was present in this room. Do not know Hackney. Saw a man that they call English Pete that night after MeCook was taken out, exhibiting his hand and saying, "I was trying to take the pistol from Wintermute, and it went off and shot me in the hand." Some one asked him if McCook had a pistol, and he said "No."

Mile T. Woolley testified : I knew Peter Hackney at the time of the murder, and saw him in this room soon after the shooting. lle and others were standing close to the stove and he said: "Master Woolley, see what I got," holding up his hand. "1 had hold of the pistol trying to get it out of Wintermute's hand, and it went off and shot me through the hand." I took his hand and looked. He had a gash right through the fleshy part of it. On cross-examination witness said he had no personal feeling in this case.

J. G. Baumann testified : Was in the saloon and saw English Pete there after the kill- ing : heard him say he got hurt. 1 asked him how he got hurt. (Objected to unless this is the same conversation related by Mr. Bates.) Do you remember seeing Mr. Bates in the saloon. I do not. (Counsel now obtained leave to recall Peter Hackney to lay the founda tion for further questions.) Hackney stated that he did not make any such remarks in the St. Charles saloon, about taking the pistol from Wintermute's hand, in Baumann's presence : nor on the street, in Mr. Dedrich's presence ; nor that if it had not been for him, McCook would have taken the pistol from Wintermute's hand and shot him.

Baumann resumed. Hackney told me in the saloon that night that he got his hand hurt trying to take the pistol from Wintermute.

James Dedrich testified: Knew Hackney and saw him the morning after the affray, examined his hand then, and'he said he was down there and helped in the affray, and said, "I came near being shot myself, and here's what I got." Said that MeCook was about to throw Wintermute down, take away his pistol, and would have shot him if it hadn't been for him ( llackney). le said the pistol was in Wintermute's hand, and be and MeCook were trying to get it, when it went off and hit his hand. 1 examined his hand; nothing like a bullet in it, nor any hole ; but a sort of a cut or scratch.

Doctor Burleigh recalled. I saw Wintermute in the room after he came up from the fight below.

Question. Did he have concussion of the brain then? ( Objected to; finally allowed )

Answer. At the time he rose to a point of order, he was not laboring under it, or at any time when I saw him.

Prosecution here rests the casc.

For defense -. A. M. English recalled, testified. Heard Hackney say he got the wound in his hand from a pistol in MeCook's hand. Heard nothing said of a pistol in Winter mute's hand. Have known Hackney over three years, Have never heard much about hits character. Coult form no opinion whether good or bad.

Ed Iverson testified : "Heard Hackney's words on the corner. He said he got his hand hurt in taking the pistol away from MeCook. I never heard his veracity questioned."

William Box testified: "Was present at the conversation referred to. Hachies st. he got his hand hurt taking the pistol from McCook. I don't know what his ch ract r . for veracity among the people." On cross-examination Mr. Box said, "1 would Bets r Vol. 1-4;

738

HISTORY OF DAKOTA TERRITORY

positively but that he may have said that he and McCook were both trying to get the pistol from Wintermute's hand."

E. S. Mosher, James Burke, J. Q. Johnson, John Lawrence, William Treadway, Silas C. F. Norman, Newton Edmunds, Geo. B. Hoffman, John G. Edgar, H. C. Ash, Fred Schnauber, Jacob Brauch, L. H. Eliott. J. Shaw Gregory, A. P. Hammon testified as to Itackney's reputation for truth and veracity, and while some of them had not known much of him lately, they generally swore that his reputation was good.

Defense here rest their case.

THE ARGUMENTS

At the conclusion of the taking of testimony, court adjourned until Thursday morning, the 28th, when it convened at 9 o'clock A. M.

Ilon. Geo. H. Hand made the opening argument for the prosecution. He spoke two hours and twenty minutes.

He was followed in the afternoon by Hon. S. L. Spink, for the defense, who spoke one hour and forty minutes.

Court then adjourned until Friday morning, the 29th.

Friday morning, Hon. Philip K. Faulk, district attorney for Yankton County, addressed the jury. occupying two and a half hours.

Friday afternoon was occupied by Hon. G. C. Moody, for the defense, in an argument occupying three and a half hours.

On Saturday morning, Hon. Leonard Swett, the Chicago attorney, for the defense, took the floor and occupied the entire day, speaking in all seven and one-half hours. Swett's speech was interrupted at one time by applause, which was promptly checked by the court. Adjourned until Monday.

Monday morning, Hon. Jason B. Brown, of Wyoming, began the closing address for the prosecution. He occupied six hours Monday, and did not complete his argument, when court adjourned, reconvening at 9 o'clock Tuesday morning, when Mr. Brown again took up his argument. He concluded at II o'clock, occupying in all about eight hours. He was warmly complimented when he concluded.

TILE CHARGE FROM THE JUDGE

Judge Shannon then delivered his charge to the jury, which was full, complete and impartial. The defense submitted a list of "instructions," which it requested the judge to include in his charge, ruling upon each in their numerical order. The thirteenth point of the "instructions," which is here given with the comments of the judge, will indicate the substance of the others, as nearly all laid stress upon the duty of McCook to have stepped one side when first attacked, and thus have avoided a conflict with the defendant :

The judge said :

The 13th point is, I think, substantially and clearly on the same subject. llere quotes : "13th Point. The jury are also instructed that under no circumstances is the taking of life excusable and justifiable. except from necessity, real or apparent, and if the jury believe from the evidence, that the defendant made a felonious assault upon the deceased, and the deceased was so situated that he knew he could evade the assault by stepping a few feet to one side of the jam of the door, then the law required him to make such retreat, and if instead of making such retreat, he chose to rush upon the defendant, and the defend- ant abandoned his assault; his rights of self-defense attached to him immediately upon such abandonment."

The Judge. "I have answered that. I have said already that if the jury find that at the public meeting on the evening of the 11th of September last, the defendant was the first mover and made a murderous assault upon the deceased by firing a pistol at him within close distance, and that immediately thereupon the deceased advanced unarmed for the purpose of resisting or preventing any further attempt upon his life, or for the purpose of disarming the defendant; such advance was not unlawful, and if, in the reasonable belief of the deceased, under such circumstances it was necessary so to advance to protect him- self from a renewal of the felonious attack, it was not a duty imposed upon him by the law to retreat. 1 have stated under what circumstances the right of self-defense attaches. I suppose I had better read that over to make it plain. Here is what I have said in regard

739

HISTORY OF DAKOTA TERRITORY

to that: Tlis right of self-defense attached immediately upon such abandonment, and he has the right to repel the assault as though he had not himself committed the first assault."

Whether he did so abandon his first assault is not a question of law ; but one of fact, and the jury must determine that fact from all the evidence in the case. 1 repeat, every ract in the case is material; not for the court but for the jury. 1 said this hypothetical proposition admits on its face a first murderous assault by the defendant, and is negatived, unless the jury find that the conduct of the defendant was so marked in the matter ci time, place, matter and circumstance, as not only clearly to evince a withdrawal of the defendant in good faith from the conflict, but as also such as fairly to advise the deceased that his danger attached; and to make the conduct of the deceased thereafter the pursuit of vengeance rather than measures taken to repel the original assault, or to prevent a fur- ther murderous assault, in which event it is a murder.

Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.

History of Dakota Territory, volume I, Part 127

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