History of South Dakota, Vol. I, Part 65

Author: Robinson, Doane, 1856-1946. cn
Publication date: 1904
Publisher: [Logansport? IN] : B. F. Bowen
Number of Pages: 998

USA > South Dakota > History of South Dakota, Vol. I > Part 65

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).

Sergeant Clarence Dangler; originally mustered in as second duty sergeant, reduced to the rank of private August 19, 1898, per general orders No. 52, headquarters Third United States Volunteer Cav- alry. On detail from June 2 to June 28, 1898, as acting brigade commissary sergeant.

Sergeant George Cassells; drowned in British Columbia July, 1899, place of interment not known.

Sergeant George D. Hammon; originaliy mus- tered in as first corporal, promoted to sergeant Au- gust 19, 1898, per general orders No. 52, headquarters Third United States Volunteer Cavalry, vice Dangler reduced; re-enlisted in First United States Cavalry ( Troop M), and is now serving at Fort Yellowstone. Montana.

Corporal Daniel Trazivick; re-enlisted in United States service after muster-out, and is now keeper of a castle at San Juan, Porto Rico.

Corporal John Watkins; originally mustered in as private; promoted to corporal August 19, 1898, per general orders No. 52, headquarters Third United States Volunteer Cavalry, vice Hammon promoted.

Corporal Ray Mayhew; re-enlisted in First United States Cavalry, in which regiment he is now serving as sergeant of Troop G, at Fort Meade, South Da- kota.

Trumpeter George C. Ebersole; detailed in regi- mental hand August 1, 1898, in which he served until muster-out with his troop, September 8, 1898.

Wagoner Lawrence H. Sargent; re-enlisted in Troop I, First United States Cavalry, and is now serving with his troop at Fort Meade, South Dakota.

Private Charles Eadie; re-enlisted in Troop G, First United States Cavalry, and is now serving with his troop at Fort Meade, South Dakota.

Private Charles W. Yates; died of accidental gun- shot wound Octoher 10, 1898, at Long Pine, Ne- braska, while serving in First United States Cavalry. Is interred at Fort Robinson, Nebraska.

Trumpeter John E. Hammon, Jr .; appointed chief trumpeter from trumpeter Troop D, July 6, 1898, per general orders No. 22, headquarters Third United States Volunteer Cavalry. Transferred to Troop D as private July 20, 1898, per general orders No. 27, headquarters Third United States Volunteer Cavalry, and reappointed trumpeter Troop D. Re- enlisted in First United States Cavalry, and is now serving in the band of that regiment at Fort Meade, South Dakota.

Private Joseph F. Jaques; re-enlisted, present service not known.

Private Carl L. Johnson, re-enlisted, present serv- ice not known.

Private Thomas Johanson; re-enlisted, present service not known.

Private Wallikarki; re-enlisted, present service not known.

Private Augustus Kaun; re-enlisted, present serv- ice not known.

Private Samuel Kelly; re-enlisted, present serv- ice not known.

Private James L. King; re-enlisted, present serv- ice not known.

Private Nicholas Parsons; re-enlisted, present service not known.

TROOP E.

Captain, Joseph B. Binder, stockman, Pierre.

First Lieutenant, John W. Laughlin, stockman, Pierre.

Second Lieutenant, Lowell G. Fuller, hotel keeper, Huron.

First Sergeants, Frank Ball, soldier, Lead City; Wesley T. Stafford, lawyer, Sioux City, Iowa.

Quartermaster Sergeant, Harrie Grant, cowboy, Fielder.

Sergeants, John P. Purcell, cowboy, Pierre; John W. Murphy, cowboy, Blunt; John Ketelson, cowhoy, Huron, George E. Seelye, cowboy, East Pierre; Wil- liam De Witt, cowhoy, Highmore; Harland Staf- ford, cowhoy, Huron.

Corporals, Clifford E. Bradley, lahorer, Rock Rap- ids, Iowa; Thomas K. Ludlow, engineer, Sioux Falls; Carlos E. Hensley, cowboy, Frankfort; Richard W. Seiffert, brick-mason, Pierre; Robert Coleman, cow- hoy, Okobojo; Robert W. Lumley, cowboy, East Pierre; William A. Cleland, cowboy, Huron; William J. Wagenknight, lawyer, Philadelphia, Pennsylvania.

Trumpeters, Carl S. McCoy, cowboy, Faulkton; Sim Goddard, cowboy, Shiloh.

Farrier, William ' B. Wolfe, cowboy, Lampassas, Texas.

Blacksmith, Charles H. Croome, horseshoer, Pierre.

Wagoner, John C. Connor, cowboy, Pierre.

Saddler, Irving Pritchard, saddler, Wesley.

Privates, William Arnold, cowboy, Blunt; John E. Batchelder, merchant, Armour; William L. Beyer. cowhoy, Onida; Drew P. Blymyer, engraver, Minne- apolis, Minnesota; Avry A. Brown, farmer, Pierre; Earl E. Boyden, carpenter, Hermosa; De Witt S. Burnett, teacher, Pierre; Arthur L. Carney, elec- trician, Rock Rapids, Iowa; Albert S. Clouse, cowboy, Miller; John A. Grim, farmer, Pierre; Charles W. Cook, cowboy, Hawley; Elmer Dunning, laborer,

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HISTORY OF SOUTH DAKOTA.

Yankton; Raymond Dunning, cowboy, Armour; An- thony S. Fouch, cowboy, Pierre; Arthur F. France, cowboy, Sioux Falls; Harry L. Gebhart, cowboy, Pierre; Martin Giblin, cowboy, Webster; Henry H. Gregg, cowboy, Blunt; Walter K. Haas, cowboy, Pierre; Clement P. Hagan, laborer, Waterloo, Iowa; William L. Hagler, veterinary, Armour; Luther P. Hanscom, cowboy, Pierre; Walter L. Harmon, cow- boy, United States Army; Henry Hemphill, cowboy, Kimball; Ernest G. Hodgeson, cowboy, Huron; Levi M. Hoisington, cowboy, Pierre; John C. Hostetter, carpenter, Pierre; Amos C. Johnson, barber, Rock Rapids, Iowa; Myrt J. King, stage driver, Pierre; Ernest G. Kleinschmidt, stockman, Blunt; Burt Lanning, merchant, Yankton; Herbert F. Lawrence, cowboy, see remarks; William Lewis, cowboy, Blunt; Samuel J. Loomis, laborer, Pipestone, Minnesota; Walter A. Luce, cowboy, Pierre; Charles R. McMar- tin, cowboy, Okobojo; Scott E. Mckean, cowboy, Fielder; Arthur G. Nickerson, jockey, Pierre; John P. Nelson, cowboy, Pierre; Bernard J. O'Donnell, cowboy, Harold; Fred A. Parkhurst, farmer, Miller; Algernon A. Plunkette, cowboy, Faulkton; Francis R. Pyle, cowboy, Highmore; Frank A. Porter, cow- boy, Fort Bennett; William E. Riley, cowboy, Blunt; William Ritchie, farmer, Pierre; Herman G. Roh- weder, laborer, Goodwin; Peter C. Saffell, cowboy, Fielder; Carl Skogstad, farmer, Flandreau; Richard C. Spaulding, drayman, Armour; Charles T. Stanage, driver, Yankton; Everett G. Stevens, cowboy, Crow Creek; Oren Strevel, stockman, Faulkton; Elmer U. Tempelton, farmer, Pierre; William F. Toothaker, cowboy, Blunt; Wilbur C. Trask, saddler, Elrod; William Tucker, cowboy, Pierre; Howard G. Urqu- hart, laborer, Huron; Elbert C. Vilas, saddler, Clark; Charles R. Waldrip, farmer, Huron; Walter J. Wil- cox, cowboy, Cheyenne Agency; Emory G. Woodring, cowboy, Pierre.

REMARKS.

Captain Robert W. Stewart; originally mustered in as captain Troop E, Third United States Volunteer Cavalry, May 15, 1898. Promoted to major same regi- ment May 18, 1898.

Captain Joseph B. Binder; originally mustered in as first lieutenant Troop E, Third United States Vol- unteer Cavalry May 15; promoted to captain same troop May 18, 1898.

First Lieutenant Jobn W. Laughlin; originally mustered in as second lieutenant Third United States Volunteer Cavalry, May 15; promoted to first' lieu- tenant same troop May 18, 1898.

Second Lieutenant Lowell G. Fuller; originally mustered in as first sergeant Troop E, Third United

States Volunteer Cavalry May 15; promoted to sec- ond lieutenant same troop May 18, 1898; detailed as adjutant second squadron July 12, and served as such until muster-out. On detail as canteen officer from May 30, 1898, to September 8, 1898.

First Sergeant Wesley T. Stafford; originally mustered in as quartermaster sergeant Troop E, Third United States Volunteer Cavalry; promoted to first sergeant same troop May 18, 1898. Promoted to regimental sergeant major July 7, 1898.

First Sergeant Frank Ball; originally mustered in as sergeant Troop D, Third United States Volun- teer Cavalry; promoted to sergeant major same regi- ment May 30, 1898. Transferred to first sergeant Troop E, same regiment, July 7, 1898.

Sergeant Harrie Grant; originally mustered in as sergeant Troop E, Third United States Volunteer Cavalry; promoted to quartermaster sergeant, same company, May 18, 1898.

Sergeant John W. Murphy; on detached service from August 1 to September 3, 1898, as sergeant in charge of regimental band.

Sergeant Harland Stafford; originally mustered in as corporal; promoted to sergeant May 18, 1898. Acting sergeant major Second Squadron July 7, to September 8, 1898.

Corporal William J. Wagenknight; enlisted at Camp Thomas, Georgia, June 15, and promoted cor- poral, same troop, E, Third United States Volunteer Cavalry.

Trumpeter Carl S. McCoy; on detail in regimental band as first cornet from August 1 to September 8, 1898.

Private Ernest G. Hodgeson; enlisted in Troop E, Third United States Volunteer Cavalry, at Camp Thomas, Georgia, June 21, 1898.

Private Herbert F. Lawrence; died June 13, 1898, at Leiter Hospital, Camp Thomas, Georgia, of typhoid fever contracted in service and line of duty.

Private Everett G. Stevens; transferred to Troop B, Third United States Volunteer Cavalry, June 25, 1898.

Private Wilbur C. Trask; originally mustered in as private Troop E; promoted to regimental saddler sergeant, per general orders No. 5, May 31, 1898.

Wagoner John C. Connor; originally mustered in as private and appointed wagoner, per troop or- ders. Discharged August 21, 1898, on surgeon's cer- tificate of disability, for disabilities contracted in the service and line of duty.

Private William L. Hagler; detailed as regimental veterinary surgeon May 30, 1898, and so served until July 13, 1898; detailed in regimental hospital as nurse August 1, 1898, aud served as such until mus- ter out September 8, 1898.

CHAPTER LXXVIII

BENCH AND BAR OF SOUTH DAKOTA.

Just when the control of the action of indi- viduals, through the operation of law, had its genesis in South Dakota may not again be known, but certain it is that the Rees and the Sioux had well defined codes of common law which extended to most of the relations of their simple lives ; treating of marriage and divorce, the rights of property, for the protection of game, the preserva- tion of peace, and the observance of these laws was exacted with a fidelity unknown to modern days in our civilized society. No rule was adopted not essential to the happiness of the community, but the thing upon which public hap- piness was dependent must be observed at every cost. The administration of these laws were. somewhat dependent upon the character of the matter at issue. Every camp had its policeman, appointed at the pleasure of the chief, and the en- forcement of the law, as it affected petty offenses, was left to his arbitrary will. Quarrels, especially between women and children, little infractions of good morals, he punished summarily with a cuff, a shake, or, in case of incorrigibles, by more se- vere punishment. He was judge, jury and execu- tioner. In the more serious cases the matter was tried out in council and the punishment fixed by the council, and if a capital offense, the entire tribe took a hand in the execution. These tribal councils, in which the head men, with much dig- nity and circumstance, sat down to enquire into an alleged offense against the common law of the tribe, and to mete out the character of the pun- ishment if the conviction ensued from the testi-

mony, were the primitive courts of South Da- kota. The inquest by council, however, appears to have been employed only when there was doubt of the guilt of the accused. When law was openly broken within the view of the tribe, the punislı- ment was summarily administered by the people. Or, if the wrong was personal to some member of the tribe, he was left to take his own revenge, or to accept such reparation as could be agreed upon between the parties. The council, however, frequently assessed civil damages.

When the fur trade became thoroughly es- tablished and the substantial posts were built and placed in command of a "burgeois," that func- tionary, by virtue of his position, became a sort of justice of the peace, having very large powers in the matter of the preservation of the peace and the punishment of offences. Kenneth Mckenzie and William Laidlaw, at Fort Pierre, were even more than mere justices, arrogating to themselves the prerogatives of the supreme court. Their jurisdiction was of course assumed, being based upon no statute. In fact during the greater por- tion of the fur period South Dakota, west of the Missouri, was not within any civil jurisdiction. Though they arbitrarily arrested and tried men, sentenced and imprisoned them, or sent them in chains to St. Louis, it is not recorded that their jurisdiction was ever questioned. Kelsey, trader at Fort George in 1842, went even to the extent of shooting four incorrigibles to death, and public opinion in the neighborhood quite justified his ac- tion, though he took fright and went to Mexico.

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HISTORY OF SOUTH DAKOTA.

Had he kept his nerve and stayed by his action, there is no doubt that he would have been sus- tained and justified. The fact is, that it was nec- essary for the post commandant to dispense jus- tice with the iron hand if life was to be safe in the wilderness. It is not asserted that any inno- cent man was ever punished or the guilty unduly sentenced by these improvised courts. These courts were very much like the feudal administra- tions in early France and Germany, rather than like the miners' courts set up in the later days in the Black Hills. The latter were popular institu- tions, the officers of which were elected by the as- sembled people, and in which the cases were con- ducted after the recognized procedure of the law- ful courts.

So far as the record shows, the first regularly admitted lawyer to enter Dakota seems to have been Col. Henry Leavenworth, in 1823. Leaven- worth had given up a successful law practice to volunteer in the war of 1812. He was so success- ful as a soldier that the authorities gave him a commission in the regular army and he lived the remainder of his life a soldier, and as the visit to South Dakota was a military one, it has no further pertinence to this topic.

Wilmot W. Brookings was admitted to prac- tice before coming to Dakota in 1857. Naturally he did not do much law business in the little frontier settlement, though, as we shall see, he grew into a high place in the profession in later years in Dakota. Henry Masters, the provisional governor at Sioux Falls, was also a lawyer and he maintained an office and did such business as came to his hand. He was also justice of the peace for Big Sioux county. His death, in Sep- tember, 1859, cut short his career. He is reported to have been a lawyer of fine attainments. He may go into history as South Dakota's first prac- ticing lawyer, and first regularly appointed white justice of the peace, the foundation stone in South Dakota's bench and bar.

The first important case in which a South Da- kota lawyer took part was tried in Sioux City, in 1859. S. B. Brookings, a brother of Judge Wilmot W., was accused of a murder, said to have been committed at his claim on the Iowa

side of the Sioux river near the month of Rock river. He was arrested and taken to Sioux City for preliminary examination. His brother ap- peared as his counsel. He was bound over, es- caped from jail, and was never brought to trial.

Sixty days before the death of Governor Mas- ters, Enos Stutsman arrived in Yankton with the first settlers there, on July 10, 1859. He was an able lawyer, but of course found little opportunity to exercise his powers. The first profitable business he had in his line were divorce cases, a line of business still said to be profitable to some Dakota lawyers. Enos, however, took a very sim- ple and direct method of winning his suits. He simply ran for the legislature, was elected, had himself appointed to the proper committee and then introduced the necessary bills directly divorc- ing his clients. He had splendid success until, in 1864, Governor Edmunds' Episcopalian prin- ciples got in the way of Enos's brand of justice. Edmunds vetoed all divorce bills and compelled the lawyers to try their cases in court. In one of Enos's cases which Edmunds vetoed, as chairman of the committee to whom the bill was referred, he reported: "If the defendant is not already an inmate of a state's prison, he ought long ago to have been," and upon this showing the legislature promptly passed the bill. Notwithstanding this · peculiar practice, Stutsman was a good deal of a man and he impressed a good deal of. good legislation upon the statute books of Dakota dur- ing the many terms he was in the legislature.

The territory of Dakota was created March 2, 1861, and a short time afterward President Lin- coln appointed the territorial officers, sending ont for chief justice Philemon Bliss, of Ohio, who later won reputation in the Missouri School of Law and as the author of a well-known work upon code pleading. Bliss came against the code for the first time in his Dakota experience and it was here that he conceived the notion and laid out the plan of his text book. Judge Bliss was as- signed to the first, or Elk Point, district and held some terms of district court there and elsewhere in the territory. He took a claim on Brule creek. He heard some motions in chambers, acted as member of the territorial canvassing board and

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performed other statutory duties, but never sat in supreme court. Neither did his associates, B. P. Williston, of Pennsylvania, and Joseph L. Wil- liams, of Tennessee. William E. Gleason, of Bal- timore, Maryland, came with the first court as United States district attorney. With the coming of this court the bench and bar of the territory may be said to have for the first time been really established. Neither Williston or Williams left a record, or made an impression from which any adequate judgment of their efficiency may be as- certained. Gleason resigned to accept an ap- pointment from Andrew Johnson as an associate justice and after a year resigned this place to go to Italy as a consul. He was a somewhat bril- liant lawyer and judge, though, like his prede- cessors, he did not sit in the supreme court, no case yet having arisen of sufficient moment to warrant an appeal. 'As a lawyer he was rather unscrupulous in his methods, and after his re- turn from Italy he engaged in practice in Balti- more, where he made money, but was finally con- victed of perjury and disbarred. Gleason was followed as United States attorney by George H. Hand, who served until 1869. He was an able lawyer and an upright man, who throughout his long public service held the high regard and re- spect of his fellow citizens.

About the time of Gleason's resignation, an entirely new court came in. Ara Bartlett, of Min- nesota, who had been first appointed an associate justice to succeed Williston, was promoted to be- come chief justice, and Jefferson P. Kidder, of St. Paul, and John W. Boyle, of Vermillion, were appointed as associates. Some appeals came up to this court and in the spring of 1867 the first supreme court of Dakota territory sat in banc.

The first opinion was written by Judge Kid- der. Except an occasional admiralty case grow- ing out of the steamboat business, there were no cases of importance in the earlier years, not even on the criminal side. It speaks well for the morals of the pioneer community that during the ten years of settlement not a single murder oc- curred.

Judge Kidder was the strong man of the bench, and was undoubtedly the first lawyer of

the territory of that day, a position he continued to hold for many years. Gideon C. Moody located in Dakota in 1865, but as at first there was too little business to fully occupy his time, he gave a good deal of attention to other business interests. and politics. In fact, however able a lawyer he may have been, he had little opportunity to dem- onstrate his powers in South Dakota until after 1870. All of the opinions of the supreme court from the foundation until 1878, a period of sev- enteen years, made but one small volume, half the size of the ordinary court report, and from that statement may be derived a fair judgment of the meager opportunities afforded the Dakota lawyer of the pioneer days.

In 1869 Bartlett Tripp came to Yankton and from that time divided the honors of the bar with Messrs. Moody and Hand. Dr. Burleigh was an acute lawyer, but gave his attention almost exclu- sively to private interests and to politics. Judge Brookings, always adventuresome in business af- fairs, gave his attention to a large extent to ex- ploiting the advantages of the country as a place for home making and to railway enterprises, ex- cept during the period from 1869 to 1873, when he served as an associate justice of the supreme court. In 1869 Dr. Burleigh secured the appoint- ment of George W. French, of Maine, as chief justice, to succeed Ara Bartlett. French was, and probably ever will be, the joke of the Dakota bench. He was not a lawyer, but was a boyhood friend of Dr. Burleigh who wanted to do some- thing for him. So he went to his excellent friend, President Johnson, and requested him to nomi- nate French for chief justice of Dakota territory. "Is he a good lawyer?" asked the President. "I don't know about his strength in law;" replied Burleigh, "equity is his strong suit." French got the appointment. He early earned the sou- briquet of "Necessity," because he knew no law. He was absolutely ignorant of practice and pro- cedure. One of the early cases which came before him was the trial of his brother justice of the supreme court, Judge Brookings, upon an indict- ment for perjury, growing out of a land deal. If Chief Justice French was short on law, he was all right in courtesy and good breeding, and he

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HISTORY OF SOUTH DAKOTA.

realized that he could not do less than invite a fellow justice, present in his court, to sit with him, so the defendant occupied a seat at the chief justice's right hand. Early and constantly, in the course of the procedure, questions of law arose which puzzled the unsophisticated chief justice, but with a brother justice at his elbow, he was able to render prompt decisions, and if they did in fact tend to strengthen the defense, why, there were authorities on both sides of the question and the defendant was certainly entitled to the benefit of the doubt. In 1873 Chief Justice French was succeeded by Peter C. Shannon, of Pennsylvania, an able lawyer of strong character, who remained a Dakotan until his death in 1899. Judge Brookings was followed the same year by Alan- son H. Barnes, and in 1875 Judge Kidder, having been elected to congress, gave up his seat on the bench to Granville G. Bennett. Before this time several young lawyers who still occupy a high place at the Dakota bar had made their appear- ance in the territory. Among these were John L. Jolley, who came to Vermillion in 1866, and Cur- tis H. Winsor, who located in Canton in 1871. John R. Gamble located in Yankton in 1873 and was recognized as a strong lawyer from the beginning.

The first great case in Dakota to try the metal of the lawyers was the Wintermute murder trial in 1874. In 1873 Peter P. Wintermute shot and killed Edwin S. McCook, secretary of Dakota ter- ritory, at Yankton. At the October term of that year Wintermute was indicted, but the indictment was quashed at an adjourned term in January, by Judge Shannon. At the April term, 1874, he was reindicted and his trial began upon May 11th. He was prosecuted by Phil K. Faulk, county at- torney, assisted by George H. Hand and Jason Brown, of Cheyenne, and was defended by Moody & Cramer (the latter, Nelson J. Cramer, having recently located in Yankton and still is engaged in practice there), Bartlett Tripp, William Tripp and Leonard Swett, of Chicago. The defense was "self-defense." It was a hard-fought case, in which Judge Moody and Judge Tripp demon- strated their great power, but their client was convicted. The case was appealed and reversed

and sent to Clay county for a new trial. The ac- tion of the supreme court called out an indigna- tion meeting from the anti-Moody element in Yankton. On the second trial John L. Jolley was associated in the defense, which resulted in an acquittal. In those days Richard F. Pettigrew was in active practice in Sioux Falls. Melvin Grigsby was his law partner. About this time,- the date is lost,-Judge Shannon was holding court at the falls and Senator Pettigrew and the Judge were in a continual altercation. Pettigrew was sarcastic and the court irascible. Pettigrew left the court room and went to his office, where he took all of the money from the safe and placed it in his pocket. "What are you going to do?" asked Grigsby. "I'm going to pay this out in fines for contempt of court," replied the embryo senator. "I'll let that old - - - understand that he can't run over me." He returned to the court room and at the first opportunity poured a volley of abuse upon the judge. "Enter a fine of ten dollars against Mr. Pettigrew," ordered the court. Pettigrew paid the money, the meantime keeping up a flood of vituperation. "Enter an- other fine of fifty dollars," shouted the judge in high fury ; "I'll have it understood that this court is a gentleman." "Give me an exception to that last ruling of the court," piped Pettigrew. Judge Shannon enjoyed a good hit as well as any man living and he laughed heartily. "Remit the fine, Mr. Clerk," he said. After that things proceeded more smoothly.

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History of South Dakota, Vol. I, Part 65

Author: Robinson, Doane, 1856-1946. cn Publication date: 1904 Publisher: [Logansport? IN] : B. F. Bowen Number of Pages: 998

Author: Robinson, Doane, 1856-1946. cn
Publication date: 1904
Publisher: [Logansport? IN] : B. F. Bowen
Number of Pages: 998