Chapter IX: 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.