THE MARCH COURT.
As was stated in Chapter III. of this book, the prisoners, Kelly and
Howarth, remained in jail, the former at Montreal, the latter at
Sweetsburg, during the winter of 1894-95, awaiting trial at the Court
of Queen's Bench.
This court opened at Sweetsburg on Friday, March 1st, 1895, but the
Assault Case did not receive special consideration until the following
week. Monday, March 4th, the Grand Jury reported a true bill against
M. L. Jenne, Jas. Wilson and John Howarth for conspiracy, and against
Walter Kelly for attempted murder.
On Tuesday morning the court room was crowded so that it was
impossible to obtain even standing-room for all the eager listeners,
and many were obliged to content themselves with the little that they
could hear outside the doors. Thus was shown the great interest which
the public felt in the result of this trial.
When the names of the accused were called, Mr. Racicot, counsel for
the defence, asked in an eloquent speech that the prisoners be allowed
to sit with their counsel instead of being made to stand for hours in
the dock. Mr. Baker, Crown Prosecutor, opposed this request, and Hon.
Judge Lynch ordered that the prisoners be put into the box.
The next thing in order was the empaneling of a petit jury. It
appeared that many of the proposed jurymen were known supporters of
the liquor party, and these were, of course, objected to by the lawyer
for the Crown. In the words of _The Templar_, "It seemed as if Mr.
Baker challenged all who were known to 'take a glass,' while Mr.
Racicot challenged all known temperance people."
The afternoon session opened at one o'clock. The Crown Prosecutor made
an eloquent speech to the jury, reviewing the evidence given at the
preliminary trial. The following account of his address was given in
the _Witness_:
"He said: 'It will be an evil day for Canada when men, becoming
indignant that the machinery of the law is put in force against
them, send to Marlboro or any other place for an assassin to "do
up" those against whom their indignation is aroused.' Speaking of
the combination of circumstances that led to the identification
of Kelly, he said: 'There is a Providence in these things. There
is an overruling power that is directed in the cause of right.'
He said regarding the character of Kelly: 'The learned counsel
for the defence will try to make you believe that Kelly's
evidence should not be accepted. The witness, Kelly, is not one
of my choosing; he is not chosen by any member of this court. He
is of the prisoners' own choosing. They could not have procured
the pastor of the first church of Marlboro, nor one of the
deacons, to do their work, but they were compelled to take a man
from behind the bar of a saloon, in a low street; one who would
take a shilling for his work, and do the job as directed by
them."
The first witness examined was Mr. W. W. Smith, whose evidence was
similar to that previously given by him. He identified Kelly as the
man who had committed the assault on July 8th. The following is a part
of the cross-examination as reported in the _Witness_:
"'Do you know Peter McGettrick, of Richford?'
"'I do.'
"'Do you know Frank Brady?'
"I do.'
"'Did you tell them on the Sunday that they came to see you that
you would take your oath that the man who assaulted you was Orin
Wilson, a brother of Jas. Wilson?'
"'I did not.'
"'Did you tell Jane Fay, at church, that you did not know who
assaulted you?'
"I did not.'"
From some of the above questions it would seem that Mr. Brady, not
content with having dismissed Mr. Smith from the service of the
Canadian Pacific Railway, was trying to aid his assailants to escape
justice.
The next evidence given was that of Dr. McDonald, of Sutton, the
physician who attended Mr. Smith after the assault. His testimony was
given in the _Witness_, as follows:
"I know Mr. W. W. Smith. I was called to him professionally on
July 8th. I found him in a dazed condition, with a bruise on the
top of his head, four or five inches in length, swollen and
contused. There was also evidence of another blow, not so long,
more in the centre of the top of his head, and another blow still
shorter and more to the right of the head, another on the side of
the neck and shoulders, and one on the hip. All these bruises I
considered serious. The appearance later was that of the
discoloration consequent upon such bruises. The bruises were such
as might have been inflicted by the weapon now in court. They
could not have been inflicted by the fist. I saw Mr. Smith that
morning, and on the night of the same day, on the following
Monday morning, and again on Tuesday night. I then considered him
sufficiently recovered to not require medical assistance further.
I saw him afterward, but not professionally. Death has often
resulted from less blows than these."
Daniel Smith, of Sutton, then gave evidence that he had seen Kelly at
Sutton on various occasions, the last time being on the evening
previous to the assault.
Charles C. Dyer, of the same place, also testified as to Kelly's
identity. He said that he had seen him on the race track, at Sutton,
in July, had heard him called a horse-buyer from Boston, and had
received the impression that he had come there to look at a trotting
horse which belonged to Mr. Lebeau, the owner of the track. He had not
considered it anything strange that Howarth should be carrying him
around the country to look at horses.
The next witness was Silas H. Carpenter, of Montreal, chief of the
Canadian Secret Service. He said that he had been employed to
investigate the assault case. He had been informed of a stranger who,
after staying in the vicinity of Sutton for some time, had disappeared
immediately after the assault, and decided that he was probably the
guilty party. Had learned that a man answering to the description of
this stranger was in Marlboro, Mass., and to this place was sent a
neighbor of Mr. Smith's, who identified Kelly as a man whom he had
seen in the neighborhood of Sutton Junction previous to the assault.
The witness and Mr. Smith, after going before a justice of the peace,
and obtaining papers for the arrest of their man, proceeded to
Marlboro. At Fitchburg, Mass., a warrant was made out from the papers
which they carried, and Kelly was arrested. He consented to go to
Montreal without extradition, and there, in Mr. Carpenter's office,
related voluntarily the story which he told at the preliminary
investigation, and on this evidence the other prisoners were arrested.
Mr. Carpenter's testimony was the last on Tuesday.
Court opened again at ten o'clock on Wednesday morning. This was
expected to be the last day of the trial, and a large crowd was
present. Mr. J. F. Leonard, clerk of the court, was first sworn, and
testified to the bad character of M. L. Jenne, who had been indicted
on Sept. 11th, 1879, for assaulting an officer in the discharge of his
duty. The jury had found him guilty of common assault. Mr. Leonard
identified the prisoner Jenne as being the same man.
George N. Galer, a constable, confirmed this testimony, and said that
he remembered having arrested Mr. Jenne at the time referred to.
The next witness was Walter Kelly. He described how the liquor men had
obtained his services, and told the story of his arrival and stay in
Canada, and the assault at Sutton Junction much the same as in his
previous testimony.
He stated that once while he was stopping at Sutton it had been feared
that his presence was exciting suspicion, and he had been sent to
Cowansville for a day.
He also said that after the assault he had seen Howarth at Marlboro,
and told him that he had done his work, but only received a part of
the pay, and Howarth had promised to see that the remainder was sent
him. A while after this Kelly had heard that detectives were in
Marlboro looking for him, and Flynn, the barkeeper to whom Howarth had
written at first, had advised him to go away for a few days while he
(Flynn) should write to Howarth, and learn the facts of the case. He
went away, and on his return saw a letter from Howarth which stated
that Kelly had not hurt Smith at all, and they had been obliged to pay
$30 for the use of the team which he had while in Sutton, and now the
others were "kicking" and unwilling to pay any more. Kelly said he
supposed from this letter that he had done nothing for which he could
be arrested, and, therefore, after reading it, did not try to hide
again.
After being arrested he was taken to Fitchburg, where, instead of
wasting a month in jail while waiting for extradition, he waived his
claim, and went with Mr. Carpenter, and had since remained in his
office in the care of a constable. He had told his whole story
voluntarily; Mr. Carpenter had offered him no inducements whatever.
Kelly also stated that he had not been instructed to kill Mr. Smith,
only to scare him, and give him a good "licking."
Wallace B. Locklin was next sworn. He said his residence was at
Richford, Vt., where he was a notary public and attorney. He had been
appointed to take evidence in Richford on this assault case. He knew
Ford, who kept the livery stable at Richford, and had asked him to
come to his office and give his evidence. Ford refused to come, and
said, if subpoenaed, he would pay his fine.
The next witness was J. P. Willey, of Abercorn, formerly of St.
Lawrence Co., N. Y. He was exceedingly unwilling to tell what he knew
of the case, and it was only by dint of very close questioning that
his evidence was obtained. He knew Jenne, the hotel keeper at
Abercorn. Had held a conversation with him in the barroom of his
hotel, when he asked Jenne how much he had been fined for selling
liquor without a license. He replied that he had had to pay over $90,
and witness remarked that it was no outsider's business if he sold
liquor. Jenne said they could not do much with that man Smith; they
could not carry their goods over the road. The remark had been made
that Smith ought to be whipped or killed, or sent out of the country.
Witness believed that he had first suggested this, and then Jenne had
agreed with him, and asked him if he knew any one in his part of the
country who could do such a job. He would not say that Jenne had asked
for a man who would "kill" Mr. Smith. Witness remembered having
mentioned this conversation to three men, and might have spoken of it
to others.
Arthur Holmes, of Abercorn, sworn, said that he had heard of the
assault on Mr. Smith. Had understood that Jenne was away when these
prosecutions began. Said they had all supposed that Smith was the
prosecutor in the liquor cases.
Albert E. Kimball, a hotel keeper of Knowlton, said he knew there were
prosecutions for liquor selling. He was fined, so was Jenne, also
Wilson of Sutton.
He was asked: "Do you know of any scheme to get even with Mr. Smith?"
Mr. Racicot objected to this question. Mr. Kimball said it had been
remarked in the barroom that Smith was a "mean cuss," and should be
whipped. It was barroom talk.
This is a strong testimony, coming from a hotel keeper, as to the
nature of barroom adjectives and compliments, especially when applied
to temperance people.
Edward Martin, of Sutton, was the next witness. He was occasionally
employed by Wilson, and looked after his business in his absence. Was
sent for one day in August, and asked to look after the house, as
Wilson was going away for a few days. He could not say how long he was
gone.
Next Mrs. James Wilson, of Sutton, testified for the defence. Her
maiden name was Etta Miltemore, and she had been married to James
Wilson eight years previous to the trial. She said she had heard of
the affair at Sutton Junction through Mr. Smith's brother, who drove
up about six or seven o'clock on Sunday morning, and told that his
brother had been assaulted the night before. On the Saturday previous
she had been with her husband at Glen Sutton, and about noon he had
complained of feeling bad. They drove to Sutton in the afternoon, and
he was sick when they reached home. Her aunt, Mrs. Vance, was there,
and also Henry Wilson and wife. They put Jim to bed, and doctored him,
and he did not leave his room during the evening or night. As he
seemed worse about half-past one, she called Henry Wilson and wife,
who got up and remained up the rest of the night, but they did not
call a doctor.
Mrs. Vance was the next witness. She said her maiden name was Annie
Fay, and she was the wife of Beeman Vance. She was acquainted with
James Wilson, and was aunt to his wife. She had gone on July 7th to
call on Mrs. Wilson, and found that she and her husband were away, and
Henry Wilson and wife were there.
James Wilson came home sick. Witness remained at his house until
nearly nine o'clock, and when she left he was a little better, but
still very sick.
She had known Mr. Smith for years. After the assault, she had one day
met him at church, and congratulated him on his recovery, when he told
her that he had no idea who committed the act. She said she had
frequently seen James Wilson ill, and had practised as nurse.
Henry Wilson, following, said that he lived at Glen Sutton, and was
brother to James Wilson. He remembered the day of the assault, and
knew it was in the summer, but could not tell the month. He had gone
to his father's on Saturday morning, and remained there until the
afternoon of the next day. James and his wife were away when he
reached their home, but returned Saturday afternoon. James was very
sick. About eleven o'clock witness helped undress him and put him to
bed, and about half-past one he was called up by Mrs. James Wilson.
Next morning the news came that Smith had got a licking.
Mrs. Henry Wilson's testimony was a confirmation of her husband's, and
was the last given on Wednesday.
More evidence was promised for the next day, and the court adjourned
till the following morning at ten o'clock.
The first witness on Thursday was Peter McGettrick, Canadian Pacific
Railway agent at Richford, Vt. He said he had been the Richford agent
in July, when Mr. Smith, also, was agent at Sutton Junction. Witness
knew Frank Brady and W. W. Smith. When he heard of the assault he
informed Mr. Brady, and they went together to visit Mr. Smith, whom
they found in bed suffering from the effects of his injuries. In
conversation with them Mr. Smith told them that he did not know who
had committed the deed, but from the appearance of the man thought it
might have been James Wilson, one of the prisoners.
William Sears, of Sutton, a brother-in-law of Mr. Smith, testified
that he had been sent for by the latter on Sunday morning after the
assault, and went to him at once. Mr. Smith told him that he did not
know who was his assailant, but it was a heavy man who walked with a
peculiar gait. Witness was with Mr. Smith while Mr. Brady and Mr.
McGettrick were there, but heard no conversation such as was related
by the previous witness.
James E. Ireland, telegraph operator at Sutton, who was the next
witness, said that he had been night operator on July 8th, and had
received a telegram for Dr. McDonald, asking him to come to Sutton
Junction immediately, as Mr. Smith had been assaulted. Another message
had been sent to James H. Smith, telling of the affair, and requesting
him to be on the watch. He could not produce the record of the
dispatches, but told them as he remembered them.
James H. Smith, also of Sutton, a brother of W. W. Smith, was then
sworn. He said he had been notified of the assault by telegram about
two o'clock on the morning of July 8th. The message which he had
received was as follows:
"W. W. Smith is badly hurt. Get Homer and others to watch the
roads."
He went for the man mentioned, and then learned that Mr. Ireland had
received a message asking that Wilson's hotel be watched. No light was
seen in the house there, but L. L. Jenne was appointed to watch the
place. Witness had seen Kelly four or five days before the assault
driving a team which he supposed to be Wilson's. He had thought it
strange, but could not say that he had felt any suspicion. He had
supposed the team to be Wilson's because he had noticed the latter
driving it at different times during the summer. He had seen James
Wilson the night before the assault, walking on the street towards the
post office, and Wilson had spoken to him. He had also seen Kelly at
that time with a team.
Lewis L. Jenne, a clerk for the Canadian Pacific Railway at Sutton,
testified that he knew the prisoners, and was distantly connected with
one of them, M. L. Jenne, of Abercorn. He had been in the employ of
the Canadian Pacific Railway for seven years. On the morning of July
8th, at about two o'clock, he was awakened by James H. Smith and
another man, who told him what had happened. Witness had taken it as
his work to watch Wilson's hotel, but saw no light or stir about the
house. If any light had been there he must have seen it, as he had on
many nights before and since.
During cross-examination he said that he had watched the hotel on the
night in question, from a little after two o'clock until morning. A
swift horse could go from Sutton Junction to Sutton in ten or fifteen
minutes. Witness had not tried to enter Wilson's house, but had
watched outside. He had heard that the Wilsons threatened Smith, and
was quite sure he had heard it said that they were mixed up with this
affair.
Walter Kelly, being then recalled, said that he had seen Wilson on
Saturday night, July 7th, between seven and eight o'clock, near
Curley's hotel, going towards the post office. He also stated that
once he had driven Wilson's team on the road where James Smith claimed
to have met him with it.
This completed the evidence in the case.
Mr. Racicot, counsel for defence, then addressed the jury, quoting all
the points of law which might seem to have a bearing in favor of the
prisoners, and making an eloquent plea which lasted one hour and
twenty minutes.
Hon. G. B. Baker, Q. C, quoted the law on the other side, proving
quite clearly that the prisoners were deserving of punishment. He laid
great importance on the facts that Kelly's evidence had not been
contradicted, and that, while Henry Wilson had told of getting up at
half-past one, and lighting a lamp which he said had been left burning
in the kitchen until morning, the witness Jenne had stated that he
watched the house without seeing any light, as he must surely have
done had there been one to see.
Judge Lynch followed with a very earnest address which lasted about
forty-five minutes. He summed up the evidence in the case, and quoted
the laws bearing on it, reminding the jurors of their great
responsibility, and endeavoring to impress upon their minds the
importance of a righteous judgment. His speech was not at all in favor
of the accused.
The jury then retired, and forty-five minutes later, when the judge
demanded their verdict, the sheriff reported that they did not agree,
and there was no possibility of their doing so that night. This was
announced to the waiting crowd, who had thronged the court room to
hear the decision. Court then adjourned, and the jury were locked up
for another night.
On Friday morning, March 8th, the jury were again summoned, and stated
that they were still unable to agree upon a verdict. The judge
appeared both surprised and disgusted. In dismissing them he said:
"Gentlemen of the jury, while you have exercised the discretion which
the law allows you, I must pronounce your decision most
extraordinary. The public are indignant that in a case where evidence
is so clear, there should be doubt or hesitation in the mind of any
intelligent man who should be summoned on a jury."
Mr. Baker, Q. C., moved that a new jury be empanelled at once to
proceed with another trial. Mr. Racicot seemed willing, but Justice
Lynch postponed such proceedings until Monday, March 11th.
In the meantime, on Sunday, friends of the accused and of the liquor
party in general were seen driving in the direction of Sweetsburg, and
it was thought by some that a plan might be forming to secure easy
terms for the prisoners.
On Monday morning many anxious people were awaiting the issue, and
previous to the opening of court it was noticed that the crown
prosecutor was absent, and soon the counsel for defence also
disappeared. On their return, it is said, the latter wore a look of
satisfaction, while the former's courage of last week seemed to have
in some degree deserted him.
When the judge had taken his seat, Mr. Racicot stated that his clients
were now willing to withdraw their former pleas of "not guilty," and
acknowledge themselves "guilty of common assault."
Then the lawyer for the Crown, who had on Friday been so eager to
proceed with a new trial at once, but who now seemed to fear that
another jury would mean only a second disagreement, assented to this
proposal; while the judge, who had given such a strong charge to the
jury and appeared so much surprised at their failure to declare the
prisoners guilty, now agreed, on behalf of the court, to withdraw the
indictments for "attempt to murder," and accept the pleas, "guilty of
common assault."
John Howarth, Marcus L. Jenne and James Wilson then pleaded "guilty of
common assault," while Walter Kelly was indicted on a charge of
"committing assault with intent to murder." However, he also pleaded
"guilty of common assault," and the plea was accepted.
Then Mr. Racicot, not content with what had already been gained, asked
for the leniency of the court towards the prisoners in giving sentence
for the charges to which they had pleaded guilty, and the judge
appointed to each of the four prisoners the light sentence of one
month's imprisonment in common jail with hard labor, accompanying this
sentence, however, by some very severe remarks as to the seriousness
of their crime, and the disgrace it had brought upon themselves.
Thus ended this assault case, so far as its hearing at Sweetsburg was
concerned, and the prisoners and their friends departed from the court
room well pleased with its termination.