872
FEDERAL REPORTER,
vol. 45.
means a real;snbstantial doubt of guJIt, flowing naturally and reasonably to your minds from the evidence in this case, viewed in the light of the Ia'" that may be applicable to the truth of the case, and leaving your minds in that condition that you aTe not able to say you have an abiding conviction to a moral certainty of the truth of the charge. If your minds are in that condition, then there is no guilt established. If they are carried beyond that by the proof in this case, and by the law applicable to the truth of it, then they are in the field of oonviction and belief; then the case is established. I submit the case to It is one of great magnitude, great importance. I .ask you to do that equal and exact justice that you are commanded by the law of your country, by the mandate of that law, by the oath you have assllmed. I feel satisfied in submitting it that you will do that equal and exact justice that ought to be done by honest and impartial citizens, sitting in the jury-box. Gentlemen, you have the case.
"
STATES tl. LOGAN
et al.
(C'lircuU' Court, N. D. Texas.
March Term, 1891.)
1.
CONSPIRACy-To DEPRI,VB OJ! RIGHTS RBLI> UNDER THE CONSTITUTION AND LAWS 011' THE 'UNITED STATES.'
When.a citizen of the United States is committed to the custody of the United States marshal or to a state jail by process issuing from one of the courts of the United States, to be held, In default of bail, to await his trial, on a criminal charge, within the exclusive jurisdiction of the national courts, such citizen has a right, under the constitution and laws of the United States, to a speedy and public trial by an impartial jury, and, untU tried or discharged by due process of law, has a under said constitution and laws to be treated with humanity, and to be protected against all unlawful violence, while he is deprived of the ordinal'Y means of defending and protecting himself.
2.
MURDER-COMMITTED IN THB PROSECUTION 011' SUOH CONSPIRAOy-JURISDIOTION.
Persons who conspire to deprive citizens of such rights are offenders Rev. St. U. S. § 5508, and if in the commission ot such offense murder is committed by them, are liable to be tried aud punished in the United States courts for suchmurdel' under Rev. St. U. S.. § 5509.
8.
CONSPIRACy-AcTS AND DECLARATIONS 011' CO-CONSPIRATOR,
Each co-conspirator is liable for the acts and bound by the declarations of his coconspirators, done or said during the continuance of the conspiracy, touching its o.bjectaud conduct; and it immaterial at what time he joined the conspiracy, or whether he was actually present when the particular acts were committed. testimony of a
4. 6,. 6;
A conviction for conspiracy cannot be had on the co-conspirator, nor can co-conspirators corroborate each other. SAME. .
The fact that members of a conspiracy to otrer vio.lence to prisoners under arrest are in charge of them as deputy-marshals or guard does not lessen their guilt.
WITNESS-CONVIOTED Oil' INFAMOUS CRIMB.
Persons convicted and vunished for an infamous o1rense iu the state Co.urts are competent witnesses in tlie United States courts,their·credlbility being a question for the jury. Jurors are no.t at liberty to. doubt as jurors if they would believe as men.
7.
REASONABJ,E DOUBT.
UNITEb STATES fl. LOGAN.
873
At Law. Eugene MarshaU, U. S. Atty., and W. L. (Jrawford, Special Asst. U. S. Atty., for the United States. Je:rorne a. Kearby and Robert F. Arnold, for defendants. MCCORMICK, J., (charging jury.) The undisputed evidence in this case shows that a short time before the October term, 1888, of the United States district court for the northern district of Texas, at Graham, the five brothers, Charles Marlow, George Marlow, Eph Marlow, and AlL Marlow, citizens of the United States, and one Boone Marlow, were arrested on warrants issued by F. W. Girand, a com.missioner of cuit court of the United States for the northern district of Texas, on plaints made by E. W. Johnson, who was then acting and duly sioned and qualified deputy United States marshal for this district, charging said Marlows with an offense within the exclusive jurisdiction of the courts of the United States. That at the October term, 1888, of the ;said United States district court each of said Marlows was indicted {or offenses within the exclusive jUrisdiction of the courts of the United States, and was held in custody, under process from the courts of the United States, in the county jail of Young county, of which one M. D. Wallace, then sheriff of Young county, was ex officio jailer, until they were enlarged on bail. That after their enll\rgement on bail several orsaid Marlow brothers, with their mother and the families of Alf and Charles Marlow, went to live and labor on a farm· in Young county, about 12 miles from Graham, known as the Ce Denson Farm." That on the 17th day of December, 1888, the third day after Boone Marlow was enlarged, said sheriff; M. D. Wallace, with oneol his deputies, Tom Collier, went to the Den" son farm about noon to arrest Boone Marlow on a capias out of one of the state courts to answer a charge of murder. That the said Boone Marlow, Charles Marlow, and Eph Marlow, with their mother and AU and Charles Marlow's families, were in the house occupied by them, at their noon meal, when said Wallace and Collier approached said house. ThOtt as Tom Collier was about to enter the house firing occurred, and Sheriff Wallace was wounded. That thereupon Eph Marlow hurried to ham for a physician. That immediately a high degree of excitement took possession of the minds of the: citizens of Graham and of Young county. Eph Marlow was not permitted to return borne, but was put in jail, and a posse of citizens brought in Charles Marlow, George Marlow, and Ali" Marlow, and put them in jail, and shortly thereafter the bail of each of said Marlows duly surrendered them before said United States commissioner, and were released from their bail-bond, and said Marlows, under process issued by said comn'lissioner to the marshal of· this district, were by said E. W.Johnson, deputy-marshal. as aforesaid ,again committed to the jail of Young county in default of bail, to be-held to aIlSwer said indictments in the said United States district court. On the day of the wounding of Sheriff M. D. Wallace, Boone Marlow avoided arrest, and eluded the pursuit of the officers and citizens, and was never afterwards' seen alive in Young county by those seeking his arrest.· Thai
Sheriff M. D. Wallace died on the 24th of December from the. wound by on the ·1.7cth .0(' .Th.a:j pan the four Marlows, then in custody as aforesaid, W(;lre charged by complaint before a state examinipg with .I;\n'ofi'e;nse agai:pst the laws. of the state of Texas, and were by the proper peace officer of Young county brought where they were being held as aforesaid, from the jail before said exa.mini;ng audgl'anted on said charge, and in default :of bail were '9n this charge: COmmitted to the county jail of ,Yollng county·. That ()ll the nigh,t ,9f the 14th ofJanuary, 1889, they made their. efjcnpe from said jail, and were on the next day (15th) reca.plured by .the sherif litIld. his p088f?, and returned to saidcoup.ty jail. That on the night of the 17th ofJanuary; a body of men, armed the steel cllglil in.the,.county jail, in and: which the Mil.rlows confined, and threatened and offered violence to the Marlows, and attempted to seize Oharles Marlow. Th,at on the night oLthe 19th of Jat;luary, 1889, said Jo.hnson, acting, or assuming and control .toact, as deputy-marshal as afpresaid"topk actual of said four M$rlows aQ.9.. of tw.o. other, ,United· pl',i$oners, W. D. BurkhR!ltalld Louis Clift,who,were,thep.,inclJ$todywith Said Marlows in jail; the $aid'MarlQws aM1}e time bei,ng chained, two anq two together, by around OIilE! (leg of each, and a chain jlecu'rely,faStened, coupling the two together. and Louis :Clift togetherin like manner. That ironed and chained, PM P ·. A. Martin was two and two together, .put on this hack una/.:n;le,d to.qriveij'.Tpat aaiq;E.W.Johnson, with SamCrisw.ell, Marion WJl,11ace,aQd J,Q;1;\n: B. ,all well armed., took another'ha.ck; and that SAmWaggoneJ1,and WilllIoHis, !;llso a buggy; and thethreQ yehicle$thuEifilled. an;d in close order, and in .theorder jUs't.giveni starwd, but aboutor only a little before xnoonrise,towards We.athertbrd, on the regular mail stage road from Graham to Weatherford; and.ata .point j1;lst, beyond Dry creek, and about two miles from Graham, a large J).nmJmr, of men" armed and appeared in the highway, and, tpeir guns, COmmanded: nHold up.I" That the Marlow immediately. dropped out of the hack that they were ;in, the other hack, procured That many shots were fired. arms, 8.I).d began to resist, the. ,and Alf and Eph Marlow'-were killE/d oQ. the spot, anljGeorge and, Charles Marlow and Louis Clift severely'wonuded, , .All of the assailan:ts who were able to £lee .flefl, the Q,aputy-mar!lhaland his posse also Hell, ,and George Marlow, Charles Lauis Clift; and W. D.. Burkhlut alone remained, in sight, lllive, w,iththe dead oodiesof41f and Eph low, ,and of Sam Criswelh Bruce Wheeler; and Harmeson. 'I'hat :byunjointingtbe ankleiQf e,ach,of their .dead brotheI!JG'eo;rge and Charles ,Marlow fteedthemselvEls ffom the dea4 \:>o\1ies. andl gathering arms andamm unition o1)tbe field. 0;( pf,tttlEj, . with Clift and Burkjibey had left, lJ:lld made their way hart, resumed· their .seat$.in; to Finis, a the adjoin;ing couIl,tyof,J:Mk,IlIld pply'afew miles from said DenSQn.{afJiU.,: and ;Burkhart,
UNITED STATES V. I,OGAN.
and Burkhart left them,. and then Clift and the two surviving Marlows made their way by early morning to the cabin of the Mnrlows on the Denson farm, then occupied by the mother of the Marlows, their wives, and their little children. That in a very short time after the prisoners: left the jail word was brought back to Graham of what had occurred at, Dry creek, and runners were dispatched by Tom Collier, the then sheriff, to different parts of Young county, to warn the people that two of the Marlows had escaped, and to SUmmon the people to be on the watch that night,and as many as could.' and as soon as they could, to come to Graham, to organize for the capture of the surviving Marlows. A deputysheriff and constable were also dispatched at once to the neighboring cou,nty of .Tack to solicit aid of the sheriff of that county with Ii p088e, to assist in recapturing said Marlows: that by noon the next day the sheriff of Jack county, with a p088e of 25 or 30 men, reached a point near the Marlows' cabin, where he found Tom Collier, (the sherifl'ofYoung county,) with at least twice as large a p088e, gathered from Young county, andin position near the cabin of the Marlows. That the Marlowsrefused·to surrender to the state officers there present, but declared their willingness to surrender to the United States marshal,W. L. Cabell, or his deputy ,Capt. Morton. That the sheriff of Jack county, as soon as he understood the situation, withdrew his men, and returned to Jack county. That Tom Collier, sheriff of Young county, kept a guard p088e near said Marlow cabin until themoming of the 22d or 23d of January,when Capt. Morton arrived from Dallas, arid took charge of the two Marlows and Clift, and removed them to Dallas. In this court it is the exclusive province of the jury to pass on aild decide all questions of fact, not only to judge of the credibility of each· witness and the weight due said witness' testimony, but to decide what all the testimony permitted to go to you, taken together l proves as to the guilt or not oLench of the accused. Al1d you have to rely on your own memories as to the substance and particulars of the testimony,and act on your own impressions derived from the testimony consideredjexamined, and. weighed by you, guided by the rules of law applicable thereto, as given you in the instructions of the judge presiding on the trial of the case. It is, however, in this court, the province and duty of the presiding judge to give you the benefit and assistance of his summing up or statement of the material features of the testimony. Such' summing up or statement of the evidence by the presiding judge is not binding on you in the same manner that his instruotions as to the law of the case bind you, but is only to aid you, and leaves still with you entire freedom and a perfect obli?;ation to decide for yourselves as to all questions of fact involved in the case, and as to whether the guilt of the defendants,or of any particulardetendant, is proved beyond a. reasonable doubt. I have stated at considerable length the facts which I consider· established by undisputed testimony , and practically admitted, showing a conspil'llcy such as charged in the indictments did exist, and was attempted; to be executed by more than two persons, and leaving as the only really contested issue on this trial the determination by you of ·this
876·
question of fact: Whether the defendants, or any of them, were parties to said criminal conspiracy and murder. On that question my view of the law has required me to admit to you a very wide range of testimony, and I will now, as clearly and as briefly as I can, but necessarily at considerable length, call your attention to those features of the testimony which appear to me to bear on this contested and vUal issue, embracing llS incident thereto the questions of the credibility of the respective wit· nesses, and some of the circumstances of corruboration of those whose testimony is attacked. There is substantially no contradiction of the testimony tending to prove that the five Marlow brothers, Charles, George, Alford, Eph, (or LewelIin,)and Boone Marlow, lived, with their parents, a· restless frontier life in Texas, the Indian Territory, the state of Colorado, and in the intermediate territory of New Mexico. That in 1876 or 1877, they sailed from Corpus Christi, in Texas, to Tuxpan, in M.exico, where they remained seven months, and, returning by sea to New. Orleans, went up the Mississippi and Red rivers to Shreveport, and thence to the Indian Territory. That after the death of their father a few years ago, and the marriage ofthree orthe brothers, they still kept one family, living with or near each other and with their mbther,engaged in trading and driving stock, and in laboring at different kinds of work from time to time, until the arrest of four of them by E. W. Jobnson, in the Indian Territory, in August, 1888, when said four-Charles, Alford, Boone. and Eph-werebrought to Graham, and put in tbe.jail of Young county. That very soon thereafter the remaining brother, George Marlow, with the women and children of the family; and what personal property they possessed,-some wagons, two mules, and about thirty-one horses,-followed the arrested brothers to Young county, and, while attempting to negotiate for making bond for his hrothers,was himself arrested on a complaint made byE. W. Johnson, and placed in Young county jail. That none of said Marlow brothers had ever been arrested on a criminal charge, or placed in any jail or other place of confinement, before this. That neither of them offered any resistance to the deputy-marshal arresting them, or made any effort to evade or to escape. That George Marlow was arrested without a warrant and put in jail the day before.the complaint was made against him. That at the succeeding October term, 1888, of the United States cQurtat this place, each of said Marlows was indicted separately, and all of them were joined in another indictment for larceny of horses in the Indian country. That said cases were continned by the gQvernment at that term of the court: That subsequently, and before the 17th of December, 1888, by pledging their personal property, the said Marlows obtained bail, and were at different times discharged from CllSbefore the next term (March, 1889) of said court three of the aaid brothers had been killed, and the cases against them were dis· m,.issedby .thecourt on the suggestion of their death made by the district attorney; and, the caseS against the other two coming on for trial, the government offered no proof, and the jury returned a verdict of not guilty I and tllese survil'ing two-Charles and George Marlow-were ac-
UNITED STATES 'V. LOGAN.
871
quitted and discharged. That none of the horses or mules brought to Young county by the Marlows has ever since that time been claimed by anyone as stolen property. That on the 1st day of December, 1888, there was returned into the state district court for Wilbarger county in this state an indictment against Boone Marlow, charging him with murH. Holson, in Wilbarger county, about the der, for the killing of one 15th of April, 1886. On this indictment there is a list of witnesses for the state in' which appear, with a number of others, the names of E. W. Johnson and Sam Criswell, of Young county. , Boone Marlow was the last of the brothers released on bail in the cases in the United States court. He was released on Saturday, the 15th of December, 1888. The other brothers had settled, and were employed as laborers,-"-some of them on the farm of O. G. Denson, one of their sureties, abOut 12 miles from Grahain, and another (George) on ll. fl;trni controlled by Mr. Short, :ab<iut 5 or 6 miles from Graham. And 'the testimony ofGeorge and (Jharles Mai'lc;w and of 0: G. Denson, taken together, tends to show that Boone Marlow, when he was released on bail, Saturday, the 15th of December, went to the Short farm, whereGeorge MIl,rlow was living, and the next day went to the where the other brothers'were living, and where his mother was at that time; and that 'on Monday, the 17th of December, 1888. and about nOdn'6f that day, George Marlow was on the Short farm, and Alford Marlow was at O. G. Denson's house,several hundred yards from the Marlow house; and Boone Marlow, Charles and Eph (or Lewellin) Marlow were in the Marlow house, eating, or about to eat, their dinner, when Tom Collier, then deputy-sheriff, and Marion Wallace, then sheriff, ofYoung county approached the Marlow house from the north side, which had no opening in it,and, separating, Tom Collier went by a window on the west side, (and opposite the door,) at which he stopped, alighted from his horse, looked in, and exchanged some words of saJutation with the three brothers who were in the house. Charles Marlow testifies that the three brothers had just seated themselves at the table, which was by the window in the west side of the room, and opposite the door, with Lewellin at the side of the table, with his back to the door; Boone at the south end of the table, next to a bed, which was in the southiwel'it corner of the room, and on 1Vhich a Winchester rifle was lying; and Charles Boone, after the first Marlow was at the north end of the table. salutation had been spoken, asked Tom Collier tl> come in and have some dinner, to which Tom Collier replied, he was not hungry,arld Boone responded, "Come in anyhow." That none of them had yet seenWallace, or knew that he was anywhere near their house. That almost mediately after Tom Collier left the window he stepped into; the door with his hand on his pistol,drew it; and as Boone was risingfrqm his seat at the table Tom Collier said, "Boone, I have come for you,'" and fired his pistol. That Boone dodged down, snatched the rifle froin the bed, and as Tom Collier stepped behind the door Boone fired at him through the door or jamb of the door, and jumped to thedoorhimself; and fired· & second shot,and Wallace fell on the porch outside' the' door,
878
J'E.l>ERAL REPORTER,
and ,That ,BQ9n,e llaid he thQug\It it was Tom Col. !ier he ,shot ll,t, and, his gun cOY;ering Tom Collier as tp" thrQw <lown pistol, IlondcOlpe back and wait on he ran, told Wallace. had rushed to the pGrchland, taking hold of Wallace, squl,l.tted down, Pllt. his, Charlie's, lapj .tnd when back Boone l'lai4, are the cause I was a dogj" ap.d Tom said, "I know it, of this. You Brell 9n more about it;" when Boono said, "I ought to but. let, us not say shoot him between the eyes.", That Tom crouched down behind Charles, and asked Ch!lrle41 not to let Boone shoqtllimj and that he told Boone not to his gun,ofl'QfTom. O. G. Denson came up at about this, time, and he testifies that he heJlrd Boone Marlow tell Tom Collier that" you [Tom Collier] ar", tl1e Cause of this." Both of these testify.8ubstantially that ,they then took Wllllace in the, room, the floor, and that Wallac,e said that he had and ,proper papers .for. the arrest of BooJ1l,eMarlow;, and told Mr. Denson: "To show yo'q that I ,was justified in what I did, if. you will look in my ,Goat.pocket y<?u:wil! find capiqaforBoone;" andtbat Denson then the porch, wl;1ere Wallace'/3c98:t bad beell' hung up, where they took, him afterhe.was,shpt, and in one of the poc1}ets he lPenson)fO,upqabundle <?f.papers, ,s,good, large bundl"" tied up with a. stl'ing, tiwes arollndjtj".andon undoing bundle and opening it and papers he f,ouJ;l,dthecapia8 from the district court of for the arrest: oflloone on of the murder of said J .. l{91son. both, bstantially that they and them.other of the Marl.ow boys waited on Wallace, and did what they co;tlld to relieve his pain, .lj.l)d that LewelHn Marlow came to Graham doctor. :for ,gis.frililnds know he was shot. Alford for some and 'fom Collier also left, and pretty soonret9rped with a numqer of men, and wnong them Frank Herron, who was,a surety on .of.tIle bonds of the Marlows, and who bail,. to give tl1eqt ,aJl up to Tom Collier, to be returned to jail, that. the, bail might be fro!n tbeirbonds. ,The testimony wi:tnes!le!l;tends to ,prove that it was on this by bail that the brothers were held in jail ul1tjl $e takenbllfore the commissjoner.,adischat;ge,of the on their bonds, and theyrecOplmittedpy ,said Pete Harmoson testifies that the p,ext,day qrwithin .l,l' day or twp.after ·t1)e ofSheritf Wallace, Wheeler him if he woulq join .1;, moh. to lynch the Marlows, (&lld,onhis 9n the 8ubjectdn .this "'Yitness, remonstrated. Warmly. agaillst Wheeler going into now Mrs. Simpson, wb,o :was·thentPe a,nd 'with her said husband; SarnCr.iswel,l, Wlll'l ithen both testified sUbstanbudal of Wallace and the mob at th!,! j,ail,thee,Xiaqt or ,illpre date of which they are unable now to fix, Will and William
UNITED STATES
1).'
LOGAN.:
879
WUliams; 'commonly called were,with Sam Criswell and th:esewitnesses, in Mrs. Lauderdale's r60mat her house it?- Belknap, and talking about the, Marlows, when Ss;m Criswell spoke of their being bad men, and their'having tried to get away, and to kill him and Ed Johnson,and said they ought to be killed, the last one of them, men, women,and childl'an. Bee Williams said they ought to be mobbed, and that he was willing to helpmolHhem at any time. Bill Benedict said they: aU ought to be killed off; that if they were turned loose they would burn the town; and Logan saidlthe othershad the Marlows down meaner than they were; that he thoughHlle law should be let to take itaeourse, and aUow thetn a fair trial; that if they had been as mean as the othetssaid,th:eyiwould haivekilledTom too, when they shot Wallacel that they could: have done it. 'Thesewituesses saw Eugene Logan ;after the tight Mi'Dry creek; and he first told them that one of the MArlows, naming him, killed SatnCriswell; then in a second conversa.Honhetold a differetitstory about it; audin a third conve,rsation he said 'be did not know who killedCnswell; he tMught Criswell was killed before he (Logan) got back thete l 'that he (Logan) had rode ahead, as an advanCEr guard, and 'had gone beyond where the mob appeared a hundred::.yardsortwo, 'and when ldud talking he rode back 'and the firing had:; begun; that when he got'back he" got dff his horse, lind dropped his, btidle ,reins; )that a xnan cotilinenced shOoting at him\:whotnhe took·iobeChal'les Matldw, and :rtha.the (Logan)retqtned the fite l 4nd continued to fire until ,he shot away 'all his loads; that he stood with his side lo' Charles Marlow,'or to the man hitn, and th-e main shot'lit the bulk, was· the way' bee escaped as well ashe did,bl.ltthat he was wounded, andh'ad to get drdWn and crawl off; that he raised himself up, atid,tried tore16ild hispistol,'butcould not, and that,lfhe could hiive ]()ooed 'it he thought M all of them' from where belayr 1'hese witnesses say'that ihconve,rsationwith them he complained of Ed Johnsony and if Ed Johnson'hadgone as Criswell told· him ,to do, tbat no one would have been ,'hurt but the Marlows; tha.t, Criswell had ,told J()hnson to run a'r<>pe' through the shacklell,'and tie the ends:ofthe rope tothe brake 'or to the bottom of the hack; Marion Lasater says that on thenigllt dlLth(:;!tragedy, and eady the next day, as often as three or four times,lie nea'rd iT6iliCOllier say, or heard Will Hollisior Dick Cook or Marion:Wa1lacesay,. ih Totn Colliet's presence and hearing, that 'L:lgan was a guard.. Several witnesses testify substantially that during that night and the dliy following, and While the heat was still up, they heard Tom Collier say ,or heard others in his presence and hearing. Sayi, that Logan was with the mob; and O. G. Denson says that he heard Collier at that time'say thatLogan could not get out of it unless he" died out of, it; or ron out of it; that'be had the marks Mit' on him. "Capt. when he arrested Logan, soon after 'the fight, and while wasstiU at, the Woods House, confined by his wourids, Logatt said,: "'rbis is' hard, to go asa guard of the prisoners andgetwou:nded, Arid theli ljearrested for it;" and that he, Morron, then went toEd JohnsoIl, who was lltill
880
FEDJi;RAL REPORTER,
confined to his house with his wound, and told Johnson what Logan said, and asked Johpson; "Ed, hQW fsthis?" and Johnson said: "It's. 110 such thing. Logan was not one of my guards." This witness, on cross-exarnination,f!ays some reference was made to Tom Collier by Johnson in this conversation, but he cannot now remember that-Johnson said Logan was or might have been one of Collier's guards. Four witnesses, -Bum.s, Spears, George Marlow,-who were in the jail on the; 17th Jl1nuary, 1889., when the mob entered the Jail, all say that Logan was at that .tiwe with the mob, and partly disguised, and took a commanding .and leading part in what armed with. a was done and said. on the .part of the mob on that occasion. , John Taylor and others)estifyto. the levity Logan indulged in the next day when relating the OcCUrrence at the jailon the night of the 17th January. say that. Criswell had a brown horse at their Broilesand Kramer. stable, and thaUate in .the evening of Saturday, the 19th. of January, Criswell instructed them to let I,.ogllll have his (Criswell's) horse if Logan called for said IWd Broilestestifies that after: dark that evening, Logan, in.pompllny with Bee Williams, did call for Criswell's horse, Williams. at sanletime calling for bjs, and both Logan andRee Will· iams DlOuntedand rode off: t9gether, gQing west on the road that goes to Belknap from Gl'll.ham. .Tim Duty says that he got to the scene of the battle among the, first wpo went alIt from town after word waS brought inof,what had occurred on Dry and that in the pa&ture on the sputh side of the three horses-a grey, a sorrel, and a brown horse-:--stnnding. together,a short distance inside of the Johnson pasture, and about 75 yards east of;the gate. lIe did not e=ll;amine to see whether they were hitched. When this witness saw these horses they were standing facing towards. the fence, t,he brown horse standing between the other two. The brown horse he.,knew to be, Sam Criswell's horse. It was his understanding that Bruce Wheeler's horse was a and he had heard that Frank :a:armes()n's was a grey. Both of the· Marlows and P. A. Martin, who were in the front hack, and John who was in tpe hack, say they did not see any horseman in advance of their hacks at any time, and they did not see any horseman ride up after they were halted by the mob.. and none of them had any knowledge that Logan was at Dry creek at: all, until he was found, severely wounded, in . Jolll1son's pasture, first by P. A. Martin, and afterwards· by others, who came .out after the news of the fight had reached town, and who helped hip! into a hack, and brought him, to town. There is nQconflict in the testimony to the effect that the scene of this tragedy was at a point im· mecJiatelyon the east of Dry creek on the Weatherford road in a l.a;ne between two pastures, which lane extends west towards Graham about one-half mile,and.east .along said ,road more than a mile; that land inside th'e north E)ast of Dry creek is cleared and culti,yated land, and there is gate .at that point el1teringsaid pasture\ ",hile the land insid«;l the south pasture-"-the Johnson pasture-is at that point. un<;:leared,and.is covered with large trees and more or less and a few yards east of the there isa gate.
UNITED STATES V. LOGAN.
881
Much testimony in this case tends to prove that Bee Williams was 1\ party to said conspiracy, and the witness Bailey Allen testifies that on the day preceding the night attack on the jail he observed Eugene Logan and Bee Williams standing on the east side of the public square, nut far from the jail, and. some distance from any occupied house, and apart from all other persons, and apparently engaged in earnest private conversation; that during an hour or more, in the prosecl1tion of his work, he pa.ssed them several times, and observed them each time in the same place, similarly engaged, and that it so challenged his attention as to elicit, froU} him at that time the comment, "Something must be up." These 1j.ppear to me to be the leading features of the evidence relating to connection with the conl;lpiracy. It would too greatly exten<l thi/! charge for me to give in full detail all the evidence I have permitted you to. f\lceive on this issue. Such a statement in full detail of all the evidenc,e, if. t;mbodied in this charge, would tend rather to confuse your minds thap, aid you in digesting the proof. I repeat that what 1 said in regard to this proof is not to take the place of your own recoij.ectionsof the testimony of each witness, for as to.aU these matterS of fllct you are the exclusive judges. The p!'"oofclearly shows. that Bruce Wheeler was a party to said conspira<.:y, and was killed on the spot in the prosecution of said conspiracy, m,iles east of Graham, and not later than a few minutes after \) o'clock. The witness C. O. Joline testifies that near sundown of that met :Bruce Wheeler about six miles from Graham, going north onth,e :F,armer road; that he was acquainted with Wheeler; that he had a conversation with him, and asked Wheeler where he was going, to whi<,h Wheeler replied .he was going up the country,or something t<;l that effect. .The proof shows that Verna Wilkerson lives near the Farmer road, and about nine miles north from Graham. The witnesses Burns and Spears testify that they recognized Verna Wilkermob that entered the jail Thursday night, (17th January,) son only disguised by a knit cap drawn down over his forehead. The witnessP. A. Martin testifies that he met Verna Wilkerson in the Johnson pasture, near the battle ground, and very soon after the firingcea1:led; that he (Martin) spoke to him, callinK him Verna, and Wilkersop. called the witness familiarly, "P. A.," as he generally did, and as/many of his acquaintances do; that they had considerable talk togetlwr; that Verna vVilkerson said he thought he (Verna) got two of them (p1eaning the Marlows;) that after Bee Williams rode off, and he (Martin) had given Logan some whisky, and relieved his suffering somewhat, and he had seen the hack drive away with the surviving prisoners, and everything had got quiet, he and Vema Wilkerson went out of the pasture into the road, and examined the dead bodies together; and that they l'ep1ained in conversation together until he (Martin) thought and that it was time they were coming out from town, when Wilke,rson, who had large spots of black on each cheek and on his forehea.Q, said he had better go to the creek and wash his face, and left the went down the bank to where there was water in the creek. v.45F.no.12-56
FEDERAL REPORtER,
voL 45.
arnved fromtowri, wben;as he and Mr. Duty were standing'near the gate,.l.i.;.;Mr; Duty on 'west side of.tW" gate 'and Mr. Martin neluly in the*iite-way,'btitnearettbe east SidEl6fit,........ Wilkerson rode out of'the pastui'e, passing between Martin' and Duty, and; as he roda byl to which Martin responded, "Good lind wrtJiioutfurther words, or stopping at all, Wilkerson turned his horse to the east; and rode off in a brisk gnllop in that direction. , The witness Duty,testifies that he and Martinwetestanding near the gate atthe time when a horseman passed' betweeri hi1ti'iI;tld Martin, and, turning east on the WeatheHord road, immediately l>ut',hill horse in a gallop,and'colltinued'in a brisk gallop as far up the rDad,aswi'tness! noticed hitil,-40dr 50 yards; that he knew Verna Willtersbn well, was familiar with his general make-up, and tolerably famil,iiir withhisvoicejthlit this as he rode 'by', said, "Good :andwitness thinb "he for Verna Wilkerson:." He did nCJt 'recognlzehiril 'at the time, but frOm what he saw and heard of that horseillatlthen he now believes it was'Verna Wilkerson. Witness asked Martin, at the time if he knew thattnan, and Martin said he did: that it waS'mle' of the mob; and, being asked again who the man was, Martin silii'd rheW6uld tell at the proper time. or that was not the-:proper· time to teIlnrot beckoned his head north, and said it was a fellow that lived up th'e'cbunt:fy. Verna Wilkerson lived north from there: . testifies 'that on the evening of thel!7th of January,lSH9i 1sheWitsat Mrs. Wallace's, widow of Sheriff Walla'ce; from soon aftef's;ipper'tttitn 15 mintites 9 o'clock. That, tl ;few minutes Collietcanle in, and told Mrs. Wamice, calling her "aunt;"'thIWhe was nearly dead for sleep; that he had' not slept any for foUr 'ii9d asked bel' i(she could let him have a bed there that night; tha:t he wanted to go to sleep. Mrs. Wallace said he could have a bed, bUb she would lik'efor him to step upto the jail, and see how Maribri(rri:eaning the defendant Marion Wallace) is getting along. Tom Colliersliid .'Marion was all right, and he wanted to go-to bed, but on Mrs. Wlillatle saying she wish'edhe would thst see about Marion before he laid ddwnhewent out. The witness did not know he went to the jail orto'the lot where -the horses were kept to put up his horse. Thats<'Jon'ttfterCollier left Sam Waggoner came and asked and on being toid that Collier had just-gone Waggoner too weht out, 'having declined to i:Jtop; he' wanted to see Tam: Before Mrs. home Tom Collier came back, and told Mrs. Wallace that -he COUId,llOtsieep there that night; that he had to go out after' a fellow thiithe·hild been wanting to get SOIlle time, named Vance) that he knew Where then, and Cbpld get him, but if he waited until to-morrow it would be too late, for Vance would begone; having'"said this Collier -again left:. .j, Mrs. Rickman'then lived. only a little way froin Mrs. Willlact!., mJross the street, and 'a little north of Mrs. Wallace. . She saw that 'evening:hl Mrs; Wallace's house and was introduced to three men whom -she had'nevern'let before. She saw several tilen out oy the cistern,and
fold lviinessdid notsMhi rn anymoreu1'ltil after Mr. Duty aM
883
sh,ethipke. she saw others about the premises, to number, all told, in and out of the house, of 10 or 12 men. At 15 minutes past 9 her son cameror her, and she remarked to him, when she met him at the gate /l.l)d,emrted home, that she did not understand what it meant,there being so many men around there,-when her son said: "That's nothip;;,,,mal Don't you know they are guarding the jail?" The deMarion Wallace testifies that on the 17th January, 1889, he ate supper aUhe usual hour at his aunt's, (Mrs. Wallace'b,} where he boarded, Levell, who also board.ed there, ate supper with him. The witnesses Martin and A. T. Gay show that about ordinary bed-time on thisnigpt, 17th January, 1889, Sam Waggoner made a complaint by af.fidavit before Martin, the county attorne)', against Jim Vance, who 16 years old, charging him with caris shown have been a lad rying and Martin prepared an information on said affidavit; and. Waggoner got from the witness A. T. Gay, whQ was county and court: clerk, a warrant for the arrest of said Jim Vance. The '¢tnesses John Putman and his wife testify that at that time they lived nbout six miles from Graham, and about one mile from where the mother of Jim Vance then lived, and that about midnight on the night of said 17th January Mrs. Putman (Hot then married) heard the sound ofhoree?s feet, as if ridden rapidly,. approaching Mr. Putman's house, and come np to the gate. 'fhat she called Mr. Putman, who was in another room, and he got up and brought the. men, who were Sam Waggoner and Tom Collier, into an adjoining room. That she did not see them that night, but could hear their talk, and learned from them on next morning that they bad co,me out to arrest Jim Vance, but that they did not get him. She heard them say that night that they would have to be back in Graham,the next morning by sunup. She prepared them early breakfast next morning, and they left about Putman says that when h,e first, met them they said they were cold. llnd wanted to warm; and he took them into thn kitchen, and started up the tire. That afte.r they had sat a. few minutes. he asked them if they would not strip their horses; and put them up, and go to bed untiLmorning. They said they would not take off theirsalidles;and he observed that their horses appeare<l to be warm, and one of them said he bad lost his saddle blanket. That.a days after that he asked Sam Waggoner, in town, if he Jound up all right. The his blanket., and Waggoner said the blanket witnes.ses; Walter Hamilton and Dick Smith testify..tl)at on the evening Jllnuary they saw Sam Wllggoner .lUld Torn Collier together of the at Brison,in Jack county, and that, while Torn Collier was gone to the hotel ,to order supper, Sam Waggoner was talking to these witllesses about and said there ought to be a mop gotten up to make way .the with them. Mrs. Elizabeth Mosely testities that at. that tillle (17th Ja,nuary), she lived in her hou8,e about 10 or 20 feet east of the Young that she was a! her homcthat night, and her attention was ,attracted .by loud talking in jail, and the working of the doors of the hi thejail; thatsbe usually about 9 o'clock, and thinks she this ilight at her usual hqur; that she was in bed when hel' at-
884
FEDEnAL REPORTER,
tention was-thus attracted, and thinks she had been asleepj that she does not know what time in the night it was, but thinks it was not long after she had retired. Charles Marlow and Burns testify that they saw and recognized Sam Waggoner in the mob that attacked the cage rh'the jail the night of the 17th January. Less Randolph testifies that a short time after the Dry creek fight he rode with Sam Waggoner from somewhere near Graham, on the Belknap road, to Belknap, and on that trip Sam Waggoner told him all about the mob at the jail on 17th, and told witness that he, Sam Waggoner, was there. This witness says Waggoner also told him about the Dry creek fight, and said it was a good thing that Frank· Harmeson was killed, because he would have given the whole thing away. Mrs. Lauderdale testifies that a month or two after the Dry creek fight she saw Sam Waggoneri'n Graham, and wanted to know from him how Sam Criswell was killed, or who killed him; and that Waggoner said that he could not tell her who killed Mr. Criswell; that if he had mather a day or two after the fight he could have told her all about it, but he said, "The way they have got these boys tied up now, I nevel can tell you. " Miss Lizzie White testifies that Sunday morning after the Dry creek fight she heard Will Hollis say in the hotel called the" Bell House," in Graham,that his buggy was stopped in the creekjthat two brothers, whom he knew, were there,-theone on the one side of the buggy, and the other one on the other side; that he saw one of these brothers in Graham as he (Hollis) was ,coming to the hotel; that when he (Hollis) saw his friends being shot down he wanted to fire into them, but they would not let him, and he (Hollis) thought it was very hard that he could not be allowed to helphia friends. He said further that he did not believe there was any God, or he would not allow good men to be killed in that way. Joe·White's testi11?ony is substantially to the same effect. He says that Will Hollis appeared to him to be drunk when he was having this talk.· Burns, Spears, Charles Marlow, and George Marlow all testify that the defendant Diok Cook, known then to them by the name of Dick Perkins, but the same man as the defendant Dick Cook, had been a guard at the jail, and was well known by sight to all of these witnesses; and they each testify that they recognized said Dick Cook with the mob that attacked the cage in the jail. Spears and Burns say that Cook at the time had 611 a knit cap, and that all of the crowd except John Levell and Marion· Wallace had on old clothes, or fancy and outre style of dress, by way of disguises; but that Dick'Cook's face was not otherwise disguised than by tbeknit cap covering his forehead. The witnesses recognized him in the mob by a scar on his face, and by his having only three fingers on, one hand. The witnesses E. S. Lasater, John Taylor, F. W. Girand,and .others testify to the existence of an apprehension here on the part of many observant citizens that there was the possibility, if not a probability, of a mob being formed to lynch the Marlows. So much impressed with this apprehension was E. S. Graham that he, 1Il com
885
pany with Mr. Ed Norman, went to the residence of Commissioner Girand, at night, after Mr. Girand had gone to bed, and got him up, and expressed to him the fear· that the prisoners might be attacked in the jail, and desired him to advise the deputy-marshal, so that proper precautions might be taken. The only cause known to any of these witnesses for these rumors and apprehensions of a mob was the shooting and death of the sheriff, Wallace. It is shown that the defendant Marion Wallace is a nephew of the said sheriff, Wallace; that before Sheriff Wallace was shot the defendant Marion Wallace lived on his said uncle's farm, near Belknap; that after the death of Sheriff Wallace and the appointment of Tom Collier as sheriff, Collier appointed Marion Wallace deputy-sheriff, and he was much about the jail, and acting as such deputy-sheriff about the jail in relation to the custody of the Marlowf'{ and other prisoners. It is shown that John Levell had been Sheriff ' Wallace's office man and collector of taxes for several years, (the sheriff being ex officio collector of taxes,) and was continued in the same office by Tom Collier when he became sheriff; that John Levell and Marion Wallace both boarded at the house of Mrs. Wallace, widow of Sheriff Wallace. Mrs. Rickman testifies to the solicitude Mrs. Wallace expressed .about Marion, {meaning the defendant Marion Wallace,)and her repeated requests to TomCbllier on that evening to go to the jail and see about Marion. The· witnesses Burns, Spears, Charles Marlow, and George' Marlow substantially agree in their testimony that on the night of the 17th Jannary, when' the mob entered the jail, and first came up-stairs where the cages were placed, John Levell came first with the keys to the cage door,and opened the doors, and called Charles Marlow, and told him to come out, that there was a man there who wanted to see him; and when Charles Marlow answered, "Who is it, and what does he want with me?" Levell replied, "I do not know, but come on out." 'That just then Spears told Charles not to go; that it was a mob; and -George Marlow told John Levell, "I did not think you would do this way. I have laid here and begged you for water until ten o'clock at night, and you said the keys wcreat the office, but now yon can open the cage for these fellows to kill us;" to all of which John Levell said ,nothing, but Logan said: "Shut up; John Levell is under arrest." That when one of the mob, not recognized by any of the witnesses, had stepped into the door of the cage, and been knocked down by Charlie Marlow with his fist, and had said to his fellows, "You must take me down from .here. I am bleedil,lg to death, "-some of the crowd pulled him out of the door. and they all from the cage, and from the sound ,.of their l!iteps on the stairway these witnesses knew that some of .the . crowd, and possibly all of it, went down-stail's. That very sQon the mob came back up-stairs, and this time with Marion Wallace in the lead. That all the prisoners except the four Marlow brothers were called ..out of the north cage, where they had been aU confined together, and placed in the other cage. That Logan then told Marion Wallace to go to the a:lOrth cage, and bring Charlie Marlow out; and that Marion Wallace ad·vanced to the door of the cage, but when he saw that Alford· had the