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the lawyer, who was on the robbed train and who had declared the defendant to be not one of the men, the purpose of recalling him being to question him as to whether he had not at stated times and places told divers persons that the whole affair on the train occurred so 19b
quickly that he could not describe any of the men and didn't even know
what they looked like. His answers to all of these questions were in substance that he had always declared he couldn't give a description of the men as he could not now, and that being chaffed and joked with on all hands after the robbery he might have stated that the robbers were fifteen feet high and that they had revolvers four feet long. Boyd Dudley, an attorney, testified that Brosius told him just after the robbery that he saw but one man, who was fifteen feet high, and that he thought there were others. On cross-examination witness stated his office was with Circuit At- torney Hamilton, who was prosecuting the case. Wm. M. Bostaph testified that on the morning after the robbery Brosius told him that he could not describe either of the robbers as to their complexion or dress, but believed they had slouched hats pulled down over their faces. A. M. Irvin testified that Mr. Brosius told him the story about a robber fifteen feet high. Eli Dennis testified that Brosius told him the robbery was so quick and there was so much confusion that he could not describe the robbers or tell anything about them. W. D. Gilliham testified to about the same effect. After Frank James was brought to Gallatin, Brosius told witness that he could not say whether the prisoner was one of the robbers or not. George Tuggle, R. L. Tomlin and T. B. Yates all testified to Brosius' story about robbers fifteen feet high and revolvers four feet long thus affordiing a powerful illustration of dangers of imagery in describing an occurence. Mrs. Sarah E. Hite was recalled. She testified: I knew Wood Hite since 1878, and was in the same house with him about four years. He was very untidy in his toilet, and not at all literary in his tastes. Frank was always neat, and he and Wood did not resemble each other. On cross-examination, the witness described Wood Hite as she did on a previous occasion, saying that his forehead was not high, nor were his ears large. In other respects her description agreed with that of Frank James. Witness stated that in the spring of 1881 Jim Cummings and Frank James were not on friendly terms. Jesse came to the house one morning to kill Jim Cummings. He seemed much excited, and said he was going to kill Jim Cummings. Jim was at .the Hite place alone in February, 1881, and was not there since. I don't know whether they became friendly or not after that. Silas Norris testified that he knew Wood Hite four or five years, and that he did not to any general extent resemble Frank James, being somewhat smaller. He would take Frank to be six feet high. He never noticed any striking. resemblance between the two men, though he never saw Frank James but once before coming here. Major J. H. M'Gee testified: I was in the smoking-car on the train that was robbed at Winston. I sat close by the conductor when he was shot. There were three strange men in the car when the conductor was killed. A long argument as to the admissibility of such evidence as this in rebuttal, it being clearly evidence pertaining to the case, resulted in two or three contrary decisions from the court, which at last deter- mined to admit the evidence. Witness resumed: Two of the three men were engaged in shooting, and one was engaged in cutting the bell-rope. I saw two of them come in at the front door of the car, but did not see where the third came from. Cross-examined: Heard pistols and heard the exclamation, "down! down! down!" I saw one man standing near me at the middle of the car with pistols, and one near the conductor, both shooting. The con- ductor pulled the bell-rope, and then one of the men cut it. I saw all three of the men and sized them, but I couldn't tell whether the de- fendant was one of them or not. I saw no pistol in the hand of the man who cut the rope, nor did I see him doing anything else after shooting Westfall. The man who shot him walked with the other two to the front end, and going out on the platform shut the door and I saw no more of them. Mr. W. H. Wallace, Prosecuting Attorney for Jackson County, com- menced his closing argument on behalf of the State in the case against Frank James. He explained that he was present in the case at the invitation of the Prosecuting Attorney of Davies County, and also under a solemm obligation to those who elevated him to the position he now held in his own county, that having started out, if possible, to rid the State of the stain that rested upon her with reference to the 20a James gang, he would do all that he honorably and legitimately could in reference to them until the end. He told of his experience during the latest war, when, although too young to be upon either side, he had seen his home made a blackened ruin and himself and parents refugees without friends or food, and yet he said to-day he had no prejudice against the men who fought under either flag. He adverted briefly to the galaxy of legal talent that shone in the defense of this case, and said the State's counsel were to them but as pigmies to giants. He alluded to Mr. Johnson's simile of rescuing a man from a burning building and returning him safe to wife and children, and declared that Mr. Johnson had taken up this case just before entering upon a higher field, to show that he could snatch the accused, no matter where or what he had been, as a brand from the burning, and, Hector-like, drive off with the body of Justice, bound and fettered dangling at his chariot wheels. But, said he, counsel for the defense were rather to be compared to a blind Sampson in the Temple of Justice, of which the jury were the twelve pillars, and he warned those pillars to beware how they allowed themselves to be reached, lest in the reaching and bowing of Sampson the whole fabric of law and order be brought to the earth. So far as counsel were concerned the State was over-matched. Why should a man so superbly innocent as the accused bring such an array of lawyers to appeal to every prejudice in every juror's heart for .his rescue? Mr. Wallace then said that he asked no sympathy for the dead McMillan or his widow. In his labors as a public prosecutor he had learned, as no where else it could be learned, how true woman could be to the man who once reigns king in her heart. He was glad Mrs. Frank James was at her husband's side, and he asked no man on the jury to refrain from having his heart go out to her in the warmest and tenderest sym- pathy with which God had endowed him; but jurors were under oath. If a man and woman stand on the brink of a precipice and the man throws himself over, not all the tears or love of the woman left behind could bring him back. His descent was by virtue of an inexorable physical law. There was an ancient law which read: "Whoso sheddeth man's blood by man shall his blood be shed." The Judge of the court in which they were sitting had in effect given them that law in the in- structions in the case at bar. For the defendant he had neither love nor hate. His counsel had alluded to him as the most remarkable man of the age. He (the speaker) saw in him a man charged with an offense against the law, a man 40 years of age, of splendid intelligence, to whom God had given sufficient intellect to have earned him an hon- orable living in the world, but who had gone willfully and voluntarily into the commission of crime. He denied that there had been any im- proper influence used in the case: If Frank James had merely destroy- ed all the property of the Rock Island Road, or even all the property of all the transportation companies in the United States, he as a prosecu- tor would leave the railroad corporations to fight their own fight against the destroyer. "But go to the rear end of that smoking-car, where drops down upon the free soil of your own county the life-blood of a human being. There you see the stricken-down body, not of capital, but of labor, with the sweat of toil still upon its brow. Every drop of that pool of blood is, in the eyes of God, worth more than all the rail- way property in the United States," and the great living issue before the jury was whether the arm of the law or the pistols of the bandit were the stronger in the State of Missouri. This was a plain proposi- tion. The jury would pardon him if he would speak plainly. He would try to talk, as the accused and his confederates shot, right to the mark. The task now before the jury was, as he conceived it, to decide be- tween the defense which Mr. Phillips had been ashamed to name and the overwhelming testimony which the law and the State had gathered against the accused. (Here Mr. Wallace read seriatim the instructions given by the Court on behalf of the State.) Incidentally he observed that the idea set forth by the defense that Frank James, even if he had gone to the robbery, had not gone there with intent to kill, was amply met and overcome by the fact that all five of the Winston robbers went to their work doubly armed. It was true, as Mr. Phillips had re- marked, that in England the law did not permit conviction on the un- supported testimony of an accomplice, but that was not the law in this State. In Missouri the jury could, if they saw fit, find a man guilty of any crime upon the unsupported testimony of an accomplice, and in this case the testimony of the accomplice Liddell would be corrobo- rated at every step of the 1,600 miles of road over which it ran. The plea that the defendant's fate was in the hands of one man on the jury 20b
was sentimentally weak. That one man had no more to say in the
case than had the Grand Jury who framed the indictment, or the Judge who had laid down the law; he was simply to pass on the fact as pre- sented. It was the law that carried the sentence into execution. Coming down to the homicide, Mr. Wallace pictured the Rock Island train reaching Winston depot. He said there were many things to plead with the defendant not to commit this crime--the confiding, trusting faces at the car windows: the grandeur of the prairies of his own State; the atmosphere of freedom around about him; the stars above. He touchingly referred to Westfall's wife looking for some kind hand to bring her husband home to her, and added, " She is waiting yet." He sketched the killing of the conductor and the firing of the shots by the man who stood on the front platform of the smoker. Suddenly, be- 'tween the shots, young McMillan, who was on the rear platform, hears a voice--his father's voice--and looks up, and dies as he looks. That was chivalry against labor--bandit chivalry against that labor which had wet the brow of the Son of Almighty God when He moved among the men of this world. "Gentlemen of the jury," said Mr. Wallace, "as honest men, has the defense in the case before you made an honest and square defense from the start? There were five men in that rob- bery. They started out on that theory, and leaving out the defendant, substituted Jim Cummings as the fifth man. When Mr. 0'Niell[sic] took the stand and described Jim Cummings with his peculiar drawl, they saw that Mr. Cummings would not fill the bill. Then they changed their defense. Their next theory was that but four men took part in the robbery and murder--Dick Liddell, Wood Hite, Clarence Hite and Jesse James--and that Wood Hite so nearly resembled the defendant that witnesses had mistaken one for the other. Would the jury allow them- selves to be reasoned into a belief that they could not count five on their fingers? He believed there were five men on that train. The testimony of Penn and McGee was that three men came into the car. "There were two men on the engine at that moment, and these two remained there during the entire transaction. Two and three made five, and there were five horses. The big sorrel with the blaze face and white hind-feet, stolen from Matthews, that Clarence Hite rode. The other sorrel with a blaze face and no white feet that Liddell rode. The big bay horse that Jesse James rode. The dark bay horse ridden by Wood Hite, and the little bay mare traced from Potts' shop by Timber- lake to the stable at Liberty, that Frank James rode. There were five men in the immediate vicinity of Winston on the very day of the rob- bery. Dick Liddell got his dinner at Kinnigg's; old man Soule saw Clarence Hite and Frank James in the woods, and two others saw Jesse James and Wood Hite on bay horses at supper at Mrs. Montgomery's. The identification in each case was complete." Mr. Wallace then re- fferred to the fact that all the members of the gang, while at Nashville, Tenn., led apparently quiet and orderly lives. "On the 26th of March, 1881, they were all under one roof, and they fled together when Ryan's arrest became a matter of newspaper report. Did Frank James at that time endeavor to separate from the gang? He did no such thing. He followed Jesse as Ruth did Naomi, and might equally well have used the words: 'Entreat me not to leave thee, or to return from following after thee; for whither thou goest I will go, and. where thou lodgest I will lodge. Thy people shall be my people; where thou diest will I die, and there will I be buried. The Lord do so to me, and more also, if aught but death part thee and me.' He was with the gang at Hite's. He went into Nelson County, Ky., with them. They came as a band to Missouri. They were together at the Fords'. "Oh, but the Fords were a bad lot, according to counsel for defense. Who made them the harborers of criminals that they were, but Frank James and his companions? The Fords were not to be believed, coun- sel for the defense would have the jury to understand. Well, there was one member of that family, little Ida Bolton, whose testimony had neither been impeached nor shaken. On cross-examination she testi- fied to having seen Frank James at her mother's house. Just one little girl from out of a supposedly bad lot of men and women, and yet she was comparable only to the little maid in Pilate's hall, who said to Peter: `Thou, also, wert with them." Mr. Wallace claimed again that the identification of accused as one of the five Winston robbers was complete. Nine witnesses swore positive that Frank James was the man, and three others thought he was. This made twelve witnesses against him--the same in number as the witnesses upon whose testimony as to the resurrection of our Lord and Savior the Christian world based its belief in immortality and a life to come. And one of these witnesses even saw his Divine Master but once in a vision on the way to Damas- 21a cus. The evidence showed the presence of five men in the woods near Winston just before the robbery. The defense practically admitted that four of them were Dick Liddell, Jesse James, Clarence Hite and Wood Hite. Frank James had been in their company shortly before, and was it not according to human logic to believe that he was the fifth man at the train? Would a man come from Tennessee to rob a train and stop when only half a mile from the plunder? The jury would, none of them, ex- perience any difficulty in convicting a horse-thief on such evidence, even without Liddell's testimony. Counsel for the accused objected to Liddell being under guard in court and elsewhere. It doubtless made Mr. Phillips mad to see Liddell under the guard of a man who was four years with Shelby. Counsel had pictured Marshal Langhorne as standing over Liddell, saying: "Swear, you scoundrel, swear," when in troth, and in fact that same counsel, in his heart, was really saying, "Don't swear, don't swear." The history of all organized criminal depredations showed that no gang could be broken up with out using the evidence of some one of the gang who was willing to assist the State. This Liddell had done. He denied that Liddell gave himself up because he killed Wood Hite, or that he was under con- tract to convict Frank James. When the witness Timberlake was on the stand Mr. Glover had started to ask him about Liddell's confession to him, but his associate counsel had checked the inquiry. They were afraid Liddell would be corroborated by the evidence of Timberlake as well as by that of Craig. Here Mr. Wallace took up Liddell's evidence. He showed where it was corroborated by the Nashville witnesses as to the date of leaving that place and as to other events that there took place, and how it was corroborated by the express agents as to the shipment of the guns. In a few minutes he was bidding an eloquent farewell to Jesse James, although protesting against the manner of his taking off, and continu- ing, he observed that Liddell was corroborated as to his testimony on ground over which he had never been but once by a witness whom he had never seen since. The evidence of the Potters, the Brays and the Kindiggs was mentioned as in point. Liddell had said Frank James was there and these witnesses corroborated that statement, and beyond all physical identification was the identification of Frank James by his mental peculiarities, by his conversation on religious topics and by his spouting "Shakspeare." He told O'Neill how fond he was of Shaks- peare and certain actors. His conduct in the presence of Dr. Black and Geo. Matchett was thoroughly in keeping with his own statement as regarded the alibi. Mr. Wallace had nothing to say of the mother and sister who swore to it. He did think Mr. Palmer had a very forgetful memory, and, taking the alibi as a whole, he had never seen one that came up to it, because, as Mr. Glover had said, its strength consisted in its very weakness. It was an alibi without a single fact upon which a contradictory statement could be based. In conclusion, Mr. Wallace paid his respects to the false and spurious chivalry which the defense had asked the jury to admire, and declared that the pardoning power did not lie in the jury-box. Counsel for the defendant had urged the excusal of the.prisoner on the ground that what he did he had done in a fair spirit of revenge. This the speaker denied. The motive in every case was gain, and for every drop of blood shed there jingled the music of the corresponding dollar. Neither; above all, should the defendant be excused because he was a soldier with Shelby. To do so was to unfurl the flag of the lost cause, to besmirch its folds with the robberies at Winston, Blue Cut and other places in this State, and the very thought of such a thing would cause men like Robert E. Lee, Stonewall Jackson and Sterling Price to turn n their graves. The Confederate dead from all their graves would cry "No! No! we have no part or parcel in this.'' Finally, the speaker called the jury's attention to the reputation of this State for lawless- ness which had depreciated its property and forbade immigration within its borders. He hoped the verdict would be such as to remove the reproach of "Poor old Missouri!" He did not desire them to heed any popular clamor, but prayed that the God who ruled its heaven, who gave them their liberties, the God of Frank McMillan and his wife and child, might so guide and direct their hearts that they would render a just and righteons verdict in this case. [Great applause.] Mr. Wal- ace's speech was the great feature of the trial, and good judges declare they never heard it surpassed for vigor, evenness, power and eloquence. At its conclusion the jury retired and the Court took a recess till 4 o'clock |
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