USA > South Dakota > History of Dakota Territory, volume I > Part 128
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The jury is instructed that no particular act done or word spoken is necessary in order to constitute an abandonment of an assault. The question is simply one of fact, whether the defendant did or did not abandon it, and in determining whether the defendant did or did not in this case, abandon his assault, the jury will consider all the facts in the case. Subject to the law as I have laid it down in my first proposition, this is affirmed.
At 3 o'clock, P. M .. the case was given to the jury and it retired to deliberate upon their verdict. The following day, at noon, the jury rendered their verdict. In response to the usual question as to whether the jury had agreed upon a verdict the foreman responded in the affirmative, and rose to hand it to the clerk, when the judge asked him: "Do you find the prisoner guilty or not guilty of the crime charged?" "Not guilty." was the reply. The judge took the written verdict, and told the foreman to read it aloud. The foreman read: "We, the jury, find the defendant not guilty of the crime of murder, but find him guilty of manslaughter in the first degree." The jury was then discharged with the thanks of the court for their faithful services.
The next proceeding was an application by the prisoner's counsel for a new trial, supported by affidavits from several persons, tending to show that the juror, 11. G. Derby, was disqualified by reason of previously expressed opinions. The judge took the application under advisement.
On the ist of July, 1874, at a special session of the court, the judge overruled the application for a new trial, giving his reasons at length, and proceeded to pronounce sentence upon the defendant, Wintermute, first inquiring: "Has the defendant any other legal cause to utter why the judgment of law should not be declared." There was no reply, when the judge said to the defendant :
Peter P. Wintermute, stand up. You were indicted for the crime of murder. The jury sworn to try that indictment on the plea of not guilty, came into court on June 3d and de- clared you not guilty of murder but guilty of manslaughter in the first degree. I have heard counsel on motion for new trial and arrest of judgment. You have heard the result. You are now asked if you have anything further to urge. You have not. It is needless for me to say to a person of your intelligence what the law demands of you. 1 can say. looking to God for approval. that I have sought to give a fair trial. If I have erred, you have the Supreme Court for appeal. 1 could sentence you to be imprisoned for the rest of your life, but my purpose is to be as merciful to you as in my opinion is consistent with justice and the law. This verdict shows you to have been the instrument of sending out of existence, a fellow creature-a neighbor. Human life, God given, is, and must be held sacred. Society is aggregated for the protection of life, hberty and property. It is a sad thing to take human life. He is dead and gone. You sent his spirit suddenly to the judy- ment seat of God. Punishment is intended for the prevention of crime; and one mode is also intended for reformation. The latter is affixed for you.
You have been found guilty of the manslaughter of Edwin S. McCook, and it is now considered and adjudged by this court. and the sentence of the court is, that you, Peter P. Wintermute, be imprisoned in the state prison or penitentiary of the State of lowa, located at Fort Madison in said state, for and during the term of ten years, there to be fed. clothed. and kept according to the laws and rules regulating the said penitentiary, and that while so confined therein. you shall be exclusively under the control of the warden er ether officers having charge of said prison, and that you stand committed until the sentence is complied with.
Court then adjourned and Wintermute was returned to jail.
The Supreme Court of the territory convened at Yankton on the Fih of July, 1874, and among the first proceedings was an application by the counsel of
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Peter P'. Wintermute, for a stay of the sentence pronounced upon him, until his case, upon the writ of error, could be argued and finally decided by the Supreme Court. Coupled with the motion was an application for a writ of habeas corpus, to bring the prisoner before the court in order that he might be released from jail upon bail, until the final disposition of the writ of error.
The court granted the habeas corpus, and the prisoner was shortly after brought into court where the arguments upon the motion were heard. On the following day the court granted the suspension of the sentence as asked for; but beld over for advisement the request for admission to bail. On the 13th, the court unanimously decided that the motion to admit to bail was denied. And it was denied without prejudice, however, to any rights he may hereafter have, and the prisoner was remanded to jail, there to remain until further lawful orders. The court appointed Friday, July 17th, for a hearing upon the writ of error.
The arguments in support of the writ were duly made at the time appointed by the court, and were substantially the same as those presented before the District Court in the bill of exceptions heard by Judge Shannon, and decided adversely, and were taken under consideration by the court. Nothing further was done at this term and the defendant, Wintermute, remained in confinement at Yankton until the meeting of the Supreme Court in January, 1875, wlien on the 30th of said month, the following proceedings were had ordering an arrest of judgment, reversing the judgment of conviction, and admitting Wintermute to bail in the sum of $20,000, to answer any new indictments that may be found against him in the District Court of Yankton County :
IN SUPREME COURT
The defendant in this action, having been convicted of manslaughter in the first degree at the April term in the Yankton County District Court in the year A. D. 1874, a writ of error having been duly sworn out by the defendant, by which said action and all proceedings therein were removed from said District Court to this court, and a motion in arrest of judgment having been duly made and entered herein, and after hearing counsel for prosecu- tion and defense, it is now hereby ordered, adjudged and determined that said judgment of Peter P. Wintermute, of manslaughter aforesaid, be arrested and reversed;
And it is further ordered that said defendant be discharged from his said arrest upon said judgment and conviction; and it is further ordered that said defendant be and he is hereby ordered into the custody of the sheriff of the County of Yankton, to be held by him to answer any new indictments which may be found against him, said Wintermute, in the premises, by the grand jury of said county. By the court.
Now comes the said Peter P. Wintermute, in open court, in person and by counsel, and the judgment of this cause having been arrested by order of the Supreme Court; and the said Peter P. Wintermute being by said court ordered remanded to the custody of the sheriff of Yankton County, having now applied to said court for an order admitting him to bail for his appearance at the next term of the District Court in and for the County of Yankton, to answer to any indictment that may be found against him, the said Peter P. Wintermute, and bases this his application upon and refers this court to the record and proceedings herein :
Signed. Leonard Swett and others, counsel for said Peter P. Wintermute, January 30, 1875.
The within motion having been, this 30th day of January, 1875, argued by the counsel of the respective parties, it is hereby ordered and adjudged that the said Peter P. Winter- mute be admitted to bail. Done in open court; and it is hereby ordered that the amount of said bail be and it is hereby fixed at the sum of $20,000; that the sureties justify in accordance with law : and that if this order is not complied with during this term of court, the sufficing of the bond and the sureties therein, be approved by the judge of the Second Judicial District as was taken at a term of court this 30th day of January, 1875.
By the court.
The Supreme Court adjourned without day on the evening of the 30th of January, 1875.
BENNETT SUCCEEDS KIDDER
Judge Kidder resigned his judicial office shortly after the adjournment of the Supreme Court in order to prepare for his congressional duties which began on
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the 4th of March : and Granville G. Bennett, of Grinnell, Iowa, was appointed his successor.
At the April term, 1875, of the Second Judicial District Court. held at Yank- ton, beginning about April 20th. Judge Shannon, the presiding judge had occasion to be absent for a brief time and called on Judge Bennett to preside during his absence. The Winterinte case came up among the first to engage Judge Bennett's attention. The Supreme Court having abrogated the former trial and verdict, and ordered a new trial for defendant Wintermute, the case came on before the District Court on the 29th of April.
A change in the counsel for the prosecution had taken place since the former trial in 1874. John R. Gamble having been elected district attorney of Yankton County, and therefore appeared as counsel for the prosecution in place of Phil K. Faulk, former district attorney. Millard A. Baker had also succeeded L. W. Case as sheriff. The counsel for the prosecution was made up of District Attorney Gamble, and Jason Brown, of Wyoming; while the defense was repre- sented by Moody & Cramer. Bartlett Tripp and S. A. Bentley.
The first step in the proceedings was a challenge of the panel of the grand jury by the counsel for the defendant Wintermute on the ground that no notice had been given of the drawing of the grand jury. District Attorney Gamble replied that no notice but the order of the judge was necessary, and the law of 1875 made no change in the law of 1867-68 in that respect. The court ruled that the officers in drawing the jury were presumed to have acted in accordance with the requirements of the law, and overruled the challenge, to which the defendant excepted.
The members of the grand jury were then subjected. to a rigid examination regarding their qualifications.
District Attorney Gamble challenged M. P. Ohlman, under the seventh sub- division of the causes enumerated in code of criminal procedure for interposing a challenge to an individual grand juror, which reads as follows:
That a state of mind exists on his part in reference to the case, or to either party. which will prevent him from acting impartially and without prejudice to then substantial rights of the party challenging ; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion on the matter or cause to be submitted to such jury. founded upon public rumor, statements in public journals, or common notoriety, pro- vided it satisfactorily appear to the court upon his declaration under oath, or otherwise. that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him.
Mr. Ohlman, upon being examined stated that he had formed and expressed an opinion in regard to the guilt or innocence of the accused : had talked with persons who had witnessed the shooting of MeCook by Wintermute, and believed their statements ; had formed an opinion several times and had changed it again : is one of the bondsmen of defendant ; has no opinion at this time in regard to the guilt or innocence of the accused ; and states upon oath that he can and will act impartially in the consideration of this case. Challenge not allowed.
George B. Hoffman was challenged for same canse. Had formed and expressed an opinion ; is one of the bondsmen of Wintermute; has twice been bondsmen for Wintermute in this case; has today an opinion as to the guilt or innocence of the accused. Is very little acquainted with Wintermute : has formed his opinion from what he has heard : his opinion would not prevent his acting impartially.
Examined by the Court .- He has such an opinion as would require evidence to change it. but can and will act impartially. His opinion was formed from rumors and newspapers : has never talked with defendant. Challenge not allowed. R. N. Ervin same as Hoffman. Challenge not allowed.
Defendant's counsel challenged Michael McLean. He was not present at the shooting of MeCook: has formed and expressed an opinion : has talked with different parties in regard to the affair; was not present at the previous trial
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of Wintermute, but has conversed with persons who were witnesses on the trial ; listened to the argument of Leonard Swett, counsel for defendant at previous trial. On cross examination Mr. McLean was asked whether he could and would notwithstanding the opinion he had formed act impartially and fairly upon the matters to be submitted to him. To this question Mr. Moody objected on the ground that the opinion formed by the juror was not "founded upon public rumor, statements in public journals, or common notoriety." The objection was over- ruled. to which Mr. Moody excepted. Mr. McLean then answered that he could and would act impartially, and without prejudice to the rights of the accused. Challenge not allowed. Thomas N. Bray was next challenged on the ground of prejudice and after examination the challenge was allowed. C. E. Brooks was then sworn and examined. Mr. Brooks was accepted which completed the jury. Mr. H. B. Wynn, of the jury, then arose and inquired of the court what case was to be brought before the grand jury first. No answer being returned to this question, Mr. Wynn remarked that if it was the Wintermute case, he desired to be excused. No reply was made to Mr. Wynn's question or remark. Judge Bennett then asked Mr. Wynn to arise, and administered to him the oath pre- scribed by law for the foreman of a grand jury. The members of the grand jury were: Samuel VanOsdel, M. P. Ohlman, Peter W. Johnson, Geo. B. Hoffman, H. B. Wynn, Geo. Kimber, R. N. Erwin, Michael Stokes, John Moore, E. C. Walton, O. A. Ogstadt, C. A. Marshall, C. E. Brooks, W. H. Sheldon, Michael McLean, and E. Seegarrd.
The judge then delivered a brief charge to the jury, covering the object of grand juries, their duties, the importance to the cause of justice that these duties be faithfully performed, the dependence of the court upon the grand jury, and various reminders of their specific duties, also had read to the jury the law defining the powers and duties of grand juries ; but made no allusion whatever to any particular case. It was a very able charge on general principles. The jury then retired.
On the 8th of May the jury returned into court and presented an indictment against Peter P. Wintermute, charging him with the murder of Edwin S. McCook on the night of September 12, 1873, whereupon District Attorney Gamble moved the court that said Wintermute be forthwith arraigned.
Defendant's counsel here produced a statement from Dr. R. I. Thomas, Win- termute's physician, averring that the illness of the defendant rendered it impos- sible for him to appear in court. It was stated that the bond of the defendant who had been admitted to bail under the order of the Supreme Court, held him to answer the indictment. The matter rested until the 8th of June following. In the meantime Judge Shannon had returned and resumed his place as presiding judge. And on the 8th of June Wintermute was arraigned on the charge of murder, and on motion of his attorneys the case was continued until the 10th, when Wintermute appeared in person and by counsel, and moved that the charge against him be dismissed on the ground that he had been once placed in jeopardy by a former trial and acquitted, and could not be tried again for the same offense.
The court, Judge Shannon presiding, refused to grant the motion.
CHANGE OF VENUE
Thereupon Wintermute moved for a change of venue to another county on the ground that he could not obtain a fair trial in Yankton County. The judge, after the reading of the affidavits of Erick Iverson, Newton Edmunds, Jacob Brauch. O. H. Platt, Fred Schnauber, L. W. Case, William Leeper, Bartlett Tripp, S. Il. Bentley, and G. C. Moody, which affidavits supported the motion for a change of venue for the reason mentioned, and after argument, the court granted the motion, and remanded the case to the First Judicial District. commonly called the Vermillion District. Granville G. Bennett, was now the judge of this district, Judge Kidder having resigned to take his seat in Congress as delegate. The time of the trial was set for August 1, 1875.
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THE TRIAL AT VERMILLION
This second trial was called August 19, 1875, before Judge Bennett at Ver- million. District Attorney Gamble, of Yankton, and Hon. Jason Brown, of Wyoming, appeared for the prosecution ; and Moody & Cramer, Barlett Tripp and S. A. Bentley, for the defendant. Wintermute was transferred from the custody of the Yankton County sheriff to the authorities of Clay County.
At the opening of court, Colonel Moody, for the defense, made an able argu- ment on his motion to discharge the defendant on the ground that he had been acquitted of the charge of murder on the former trial. He was answered by the counsel for the prosecution, and on the following day the court overruled the plea of acquittal, and set the trial for Monday, August 30th.
Court convened Monday morning, the 30th, and the selection of the trial jury immediately entered upon. Three days were consumed and 108 talesmen sum- moned and examined, before the jury of twelve men was finally selected and seated in the jury box. Their names, occupation and nativity are here given : Frank Dennison, farmer, Vermont ; Ole Highland, farmer, Norway; Charles Chaussee, farmer, Canada : Ole Byronson, farmer, Norway; Jessee Shriner, farmer, lowa ; Ezra Harrington, farmer, native American ; David Powell, farmer, native; J. D. Tucker, farmer, native; Scott Wright, farmer, native; Richard Odell. farmer, native; Bernard Burke, farmer, -: G. W. Woodruff, native American.
The taking of testimony was begun on the 2d day of September, the witnesses being the same persons and their testimony substantially the same as that given on the former trial before Judge Shannon, at Yankton, to which the reader is referred. The names of the witnesses testifying for the prosecution were J. . 1. Kent, M. T. Woolley, J. O. Bates, Wm. M. Powers, H. Thwing, F. M. Zichach, Dr. W. A. Burleigh, Doctor Miller, A. F. Hayward, C. F. Rossteuscher, C. I .. Bancroft, Dr. D. F. Etter, J. Shaw Gregory, D. T. Bramble, W. P. Dewey, E. H. VanAntwerp, G. P. Waldron, William Cowan, Mrs. Bayless, Mrs. Oscar Whitney, and Mrs. Lorraine McCook, widow of Edwin S. McCook. The prosecution rested on the 5th, when the defense took the case, and called as witnesses. Newton Edmunds, A. J. Sweetser, John Lawrence, A. Adler, William Leeper, 1 .. W. Case. Peter Hackney, M. M. Matthiesen, A. M. English, William Tripp, J. R. Gamble, Doctor Burdick, of Vermillion. The defense rested on the 8th. No new facts of importance had been elicited. The arguments of counsel followed. By Gamble and Jason Brown for the prosecution, and by Bentley, Moody, and Bartlett Tripp for the defense. The judge's charge followed.
The case was given to the jury on the toth, and after deliberating seven hours, returned into court with a verdict of "not guilty." On the first ballot the jury stood nine for acquittal and three for conviction; on the second, eleven for acquittal and one for conviction ; the third ballot showed a unanimous vote for acquittal. The verdict was severely criticized by a large proportion of the Dakota communities, and characterized as scandalous by the leading newspapers of the country, the prominence of the principals making it a case of national interest. Wintermute was discharged, went to Yankton, and two days later departed for Chicago with his family. He did not return to Yankton. It was understood that his long confinement had seriously impaired his health, and the expense of the long litigation had wrecked his fortune.
The following brief news item in the press dispatches of 1877. told that the earthly career of Mr. Wintermute had terminated, and quite probably from disease contracted during his long trial and the anxiety that accompanied it :
ELMIRA, NEW YORK, January 20. 18 --.
Peter P. Wintermute, who shot and killed General MeCook, at Yinkion, D T iur years ago, died of consumption at his father's home in Horse's Head, Chemin o (Mitte on Saturday last. (January 27th. )
INDUSTRIAL CIVILIZATION OF THE INDIANS
CHAPTER LIX
INSTITUTING THE SIOUX INDIAN PEACE POLICY
1854-1871
A STATEMENT OF THE PEACE POLICY-TIIE SIOUX FROM 1854 TO 1868-PEACE TREATIES OF 1865 AND 1866-MILITARY CLAIM PRIORITY IN TREATY MAKING- THE ONKPAHPAH TREATY AN INDEX TO MANY-GENERAL SULLY AND COMMIS- SIONER PARKER- GENERAL SHERMAN PROCLAIMS THE INDIAN WAR ENDED-THE ARGUMENT, PRO AND CON, FOR THE CONTROL OF THE INDIANS-TEXT OF SHERMAN TREATY OF 1868-THE INDUSTRIAL PEACE POLICY UNDER PRESIDENT GRANT- CHURCH DENOMINATIONS FURNISH INDIAN AGENTS-CONGRESS TO OPPOSE FUR- THER TREATIES WITHI INDIANS AS A FOREIGN NATION-SHERMAN TREATY GAVE INDIANS TOO MUCH DISCRETION IN CHOOSING BETWEEN WORK AND HUNTING- TIIE SIOUX IN 1870 AND IS7I-STANLEY'S REPORT.
The position of the United States Government in its attitude toward the various Indian tribes within its borders had been the same until a comparatively recent period, that had been held towards them by the foreign governments from whom the United States received its sovereignty over the soil of the country.
It was a principle established many centuries ago by civilized nations that discovery of a country conferred the right of sovereignty upon the country under whose authority the discovery was made; and further, that the discoverer was entitled to the exclusive right of acquiring the soil from the natives, who were conceded to be the rightful occupants, with a just claim to retain possession until they saw proper to part with it; but this they were not permitted to do except to the sovereign of the country.
It was furthermore established that they could part with it only to those who claimed sovereignty by right of discovery or to their rightful successors. Thus far were the rights of the natives as owners of the soil restricted ; they could not sell or convey to any power, or its citizens, except the power that possessed the sovereignty of their country at the time. The policy of the British government in treating its Indian subjects in America was the same as that pursued by the United States after acquiring sovereignty of the country cast of the Mississippi from that power.
By the treaty with Great Britain, at the close of the Revolutionary war. the United States succeeded to the sovereignty of the country east of the Mississippi River : and by the Purchase of Louisiana from France, it succeeded to the sovereignty of France west of the Mississippi, which had recently been acquired by that country from Spain. The last named sovereignty had made treaties of cession with its Indian subjects, and in order to protect these treaty rights and
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grants, France inserted the following clause in the treaty with this Government by which Louisiana was transferred :
The United States promise to execute such treaties and articles as may have been agreed between Spain and the Tribes and Nations of Indians until, by mutual consent of the said Tribes and Nations, other articles may have been agreed upon.
And it will be observed that in the effort of Dakota, extending over a period of seven years, to secure statehood, the treaties with France and others were appealed to as authority in establishing the solemn agreement of our Government to confer statehood upon the inhabitants of the ceded domain when they came forward with certain and lawful qualifications and demanded it.
This policy of making treaties with the Indians for cessions of the territory occupied by them was pursued by our Government until the year 18;t. about eighty-seven years, when Congress enacted that "thereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power, with whom the United States may contract by treaty."
Up to 1868, the year of the Laramie treaty, known as the Sherman treaty with the Sioux, the greater portion of the lands embraced within the territories of the United States, had been ceded by treaties that had been ratified by the Senate. It is presumed that the treaties made with the Sioux in 1865 and 1866 were so ratified. None of these, however, were treaties that ceded the land. The Laramie treaty, above referred to, embraced the principal features of those treaties, and supplanted all that had been made with the individual tribes by the Edmunds commission of 1865-66. While its legality was denied by the United States courts when it came to be tested seven or eight years later, it had for the time, displaced all other treaties with the Sioux nation, kept the Crow Creek reservation closed against settlement by white people, and opened all of Northern Dakota that was claimed by the Sioux nation east of the Missouri River, and the northern portion of Southern Dakota, to be occupied by the white race : and had also furnished the basis of the Government's intercourse with the Sioux which included the payment to then, in supplies of subsistence and raiment, and in money, of hundreds of thousands of dollars. And it delayed the opening of the Black Hills for a number of years.
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