Wyoming Almanac and History of Wyoming

1st Cases Ever Heard by Women on Juries, March 1871, Laramie, Wyoming

The following cases, all heard in district court in Laramie, Wyoming, in March 1871, were the first in which women ever served on a jury anywhere in America. Contrary to some reports, no single jury was composed entirely of women. Men and women served together on all of these juries.

1.  Territory v. Harvey Shipman, manslaughter

A report in the Laramie Daily Sentinel, March 9, 1871, p. 3, described the testimony in the Shipman trial:

"ALBANY COUNTY CIRCUIT COURT. JUDGE KINGMAN, Presiding.

"The case of the Territory against Harvey Shipman, indicted for the murder of Charles Wood, at Sherman, on the 8th day of December, 1870, was taken up. Col. S. W. Downey, County Attorney, appeared for the people, and Judge M. C. Brown, for tbe defense. The prisoner was brought into Court and pleaded not guilty.

"The following jury were empanelled to try the case: Mrs. Lottie Cardwell, Michael Carroll, Mrs. Harriet S. Conkey, Joseph Mackle, Mrs. Martha Boies, Charles Erwin, August Vogolsang, J. L. Robberts, B, C Leach, Frank Bray, Henry Birgameir, Jeremiah Graham.

"B. C. Leach, was appointed Foreman.

"W. H. Harlowe sworn— l am a Justice of the Peace at Sherman. The prisoner was examined before me on 8th day of December, upon a charge of manslaughter, of one Charles H. Wood. I asked him if he was guilty, and he said be believed he struck Wood, or words to that effect. He said he did not know why be did it. That Wood had always befriended him.

"Here the prosecution rested.

"Judge Brown in a few brief remarks indicated that the line of defense would consist in an effort to show that the prisoner was Insane.

"Thomas Alsop was sworn and testified to having had an interview with the prisoner last spring, at which time the prisoner acted so strange as to attract his attention and excite remark. It was soon after the prisoner's father was killed by the Indians.

"Jackson Brown sworn— ls acquainted with the defendant, have known him since last May, he worked for me all the Spring. He acted strangely at times, and often seemed abstracted and unconscious of passing events. He did not seem to know when he was spoken to, etc.

"W. H. Harlowe re-called— l have been acquainted with the defendant since June, 1869, I met him in the North Park at that time. Saw him several times during the summer, and have seen him frequently since, at Sherman. He has always seemed strange and abstracted, and inclined to solitude, was always quiet, never quarrelsome.  

"W. G. Smith sworn— l have known the defendant since last October, at Sherman. He was unusually quiet and abstracted, when spoken to he would return seemingly unconscious and vacant expressionless stare. 1saw him when Wood's wound was being dressed. He seemed to try to help what he could, but would frequently seem to loose his consciousness of what was going on for a minute or two at a time. Defendant boarded with me, eat his meals regularly, I never saw him play cards. I never had any business transactions with him.

"Mr. Trout sworn— I am acquainted with the defendant since last July, he boarded some time at my house. His deportment was strange and often caused remark, be seemed to be much of the time laboring under a sort of settled melancholy and mental abstraction. He was never quarrelsome, his appetite was good, and he paid his bills regularly.

"Geo. Young sworn— Have known the defendant since June 1869, have observed nothing peculiar in his demeanor, gave that he was always unusually quiet and reserved. I arrested him the next day after the death of Wood, I found him in a cabin about a hundred yards from the Round House at Sherman, he was not at all excited, but seemed cool when he was arrested.

"Walter Sinclair sworn— l am acquainted with the defendant since the winter of 1867 and 1868, saw him frequently, during that time he was a social, cheerful, pleasant boy. His character was excellent.

"T. D. Abbott sworn— l am the Postmaster, and have received letters from Mrs. Shipman.

"The Court refused to admit evidence as to the contents of the letters.

"Sinclair recalled— When I knew the defendant he was with his father, and was remarkably dutiful and obedient.

"Dr. Finfrock was recalled and described the wound upon the head of the deceased, and expressed the opinion that such a wound would, in a large majority of cases, produce death.

"Carroll recalled-- -On the day the homicide was committed, I saw nothing strange in the conduct of the prisoner. He was always quiet and reserved.

"Here the evidence was closed, and the argument opened by Col. Downey for the people.

"Judge Brown followed with an able and argument for the defense.

"The argument was then closed by Col. Downey, for the people, in the best argument we have ever heard in our Courts, but of which we cannot publish even a summary for want of time and room. The Court gave the case to the jury in an able charge, and up to the time of going to press no verdict had been returned."

The following day, the Sentinel revealed the verdict:

"In the case of Shipman, the jury after an absence of eight hours, returned a verdict of Guilty of Manslaughter. We are satisfied this verdict will be heartily endorsed by public sentiment as it was by the court." --Laramie Daily Sentinel, March 10, 1871, p. 3. 

2.  Territory v. William Johnson, "cheating"

As reported by the Laramie Daily Sentinel, March 10, 1871, p. 3: "The next case called was that of the Territory v. William Johnson, for Cheating, by representing himself to be William Lee, and obtaining money upon a confidence of deposit given to the said said [sic] William Lee, by H. J. Rogers and Co.

"The following jury were empanelled to try the case: J. A. Wright, A. W.  Meldrum, Mrs. W. Sinclair, Miss Gaines, Mrs. Eliza Boyd, G. W. McFadden, Charles H. Richards, A. T. Williams, John Metcalf, Ira A. Pease, William Alsop and J. W. Nash.

"The case was submitted without argument, by Col. Downey, for the people, and William Tonn, for the defendant, and it went to the jury upon the charge of the Court.

"The Jury retired and after an absence of an hour, returned a verdict of Guilty.

"Johnson was sentenced by the court to Six months imprisonment in the County Jail, and to refund the money ($20) obtained on the draft."

3. Territory v. Peter Perrin, assault

Perrin was employed as a night watchman for the city of Laramie. His name appeared in the Laramie Daily Sentinel, January 16, 1871, p. 3: "Peter Perrin, the active and efficient night watch, wishes us to thank the citizens in his name, for their patronage in paying him for watching the city nights. We believe he is faithful and vigilant in the discharge of his duties, and we very much doubt if he gets near as much as he earns. Everybody in the city sleeps a good deal easier for knowing an active wide-awake man is keeping watch over things when they are in bed, and they should see to it he is justly paid."

He was proved to be less dependable six weeks later.

The following report appeared in the Laramie Daily Sentinel, March 3, 1871, p. 2:

"Perrin, the night-watchman put his foot in it last night. He was intoxicated and went into a house  out in the south part of the city, occupied by a disreputable woman. He found the colored man Lewis there, and on some pretext, Perrin pulled out a revolver and fired one shot, when Lewis clinched him and took the pistol from him. This morning he was arrested and examined, and sent to Fort Sanders to await the action of the court upon a charge of assault with intent to kill."

The case was tried in District Court in Laramie on March 10, 1871.

As the Laramie Daily Sentinel, March 10, 1871, p. 3, reported: "The case of the Territory vs. Peter Perrin was taken up. Perrin was indicted for an assault with intent to kill. The same jury were empanelled to try the case as in the Territory vs. Johnson. [Three of the jurors were women]. Col. Downey for the people, and Mr. Bramel for the defendant. We did not hear the testimony. In his charge Judge Kingman animadverted severely upon the practice of carrying deadly weapons. We were pleased with the remarks of his Honor upon this subject, and believe they will exert a good influence. The jury returned a verdict of Guilty of assault with intent to commit bodily injury."

Laramie Daily Sentinel, March 16, 1871, p. 3, reported on the verdict: "Perrin was convicted of assault with intent to commit great bodily injury. The court sentenced the prisoner to pay a fine of $1,000 and imprisonment in the County Jail at Fort Sanders for six months, and until the fine is paid."

4. Territory v. Littleton Lawrence, murder

Lawrence was convicted of manslaughter in the death of Pressley Wall. Four of the jurors were women.

Laramie Daily Sentinel, March 10, 1871, p. 3, reported on the case: "The case of the Territory vs. Littleton Lawrence, indicted for the murder of Pressley Wall, on the 12th day of December last, in the city of Laramie. The prisoner and the deceased were both colored men, and the citizens will generally recollect the circumstances of the homicide.

"The following jury was empanelled to try the case: Mrs. M. S. Conkey, Geo. W. MeFadden, Mrs. Lottie Cardwell, William Alsop, Mra, Martha Boies, Charles Hilliker, Mrs. Eliza Boyd, A. B. Crawford, Cyrus Thompson, Leopold Presser, J. W. Conner, H. F. Bray. Nearly the whole forenoon was occupied in getting a jury in the case, both the plaintiff and defendant nearly, or quite, exhausting their right of challenge.

"M. C. Brown, assisted by T. J. Street, appeared for the defendant, and Col. S. W. Downey, County Attorney, for the people. 

"The evidence for the prosecution, was, in substance, that the prisoner was at the saloon of Robinson on the evening of December 12th, 1870. That some words and contention passed between the prisoner and Robinson. Finally Robinson asked the prisoner to take a drink and be quiet. The prisoner asked Pressley Wall, the deceased, to drink with him. Wall consented, and he and the prisoner went up to the bar together to drink. As they came up to the bar, the prisoner drew his revolver, and placing his thumb upon the hammer, threw his hand with the weapon in it over his shoulder, at the same time the revolver was discharged, the ball striking Pressley Wall in the breast, from which he died in five minutes. When the prisoner was told he had shot Mr. Wall, he, (the prisoner) replied, "let the damned n----- die." This occurred on the 12th day of December, 1870, between nine and ten o'clock in the evening.

"An effort was made and testimony introduced to prove that the prisoner walked up in front of, and turned his back upon the deceased as he drew his revolver, and stood facing and looking into a reflector when the pistol was discharged.

"Dr. Finfrock testified as to the nature of the wound, and its having caused the death of Wall.

"The defense contested in the introduction of evidence to prove that the prisoner was of previous good character and habits, and was intoxicated at the time of the commission of the homicide.

"Rebutting evidence was given that the prisoner acted sober up to the time of the shooting.

"Col. Downey opened the argument for the people, and was followed by Messrs. Brown and Street for the defendant, when Col. Downey closed, and the case was given to the jury in a full and fair charge by the Court.

"Up to the time of going to press, no verdict has been returned."

The following week, the Sentinel reported that Perrin was sentenced to prison in the House of Corrections, Detroit, for a term of four years. Laramie Daily Sentinel, March 16, 1871, p. 3.

Born in Virginia about 1849, Lawrence was listed in the U. S. Census, 1870, as living at Fort Sanders and working as a "Domestic servant." Ten years later, he is listed in 1880 census as Kentucky-born mulatto living in Denver and working as a railroad car porter. From there, his name disappears from the record.

5. Territory v. Harry Oaks and Henry Miller, horse/mule theft

Six women served on the 12-person jury convicting them of one count. Oaks was sentenced to confinement in the House of Correction at Detroit, Michigan, for a term of five years, and to pay the cost of the prosecution. Laramie Daily Sentinel, March 16, 1871, p. 3.

 6. Territory v. Henry Miller, assault

The same defendant in the earlier case, Miller was found guilty of assault with intent to commit murder.

"Attorneys Brown and Kerr spoke in extenuation of the prisoner, who also himself stated, that he was the victim of the malice of the prosecuting witness. (Which is probably a fact, to a great extent--ED. Sentinel). The court taking these explanations into account, as far as possible, sentenced the prisoner to confinement in the House of Correction, in Detroit, Michigan, for the term of seven years." Laramie Daily Sentinel, March 16, 1871, p. 3.

7. Territory v. William Van Scoy, assault

Four women served on the jury that convicted Van Scoy of assault with intent to commit murder. The following article in the Laramie Daily Sentinel, March 16, 1871, p. 3. covered the trial:

"This afternoon the case of the Territory vs. William Van Scoy, charged with having committed an assault with intent to kill, upon Michael Smith, in this city on the 26th day of January, 1871.

"Col. Downey, for the People, Judge Brown, for the defendant.

"The following jury was empanelled to try the case : Mrs. H. S. Conkey, Geo. W. McFadden, Mrs. Eliza Boyd, John Metcalf,  Mrs. J. H. Hayford, A. J. Nash, Geo. O. Densmore, William Crout, John A. Wright, J. W. Peck, Gustav Shuler, George Marquette.

"Michael Smith, sworn for the prosecution, testified as follows: The prisoner entered my saloon, walked up to the bar, and turned his back towards me and took a revolver from his left breast, and turned toward me, leveling his pistol at me, said die! I had walked towards him, and when he turned towards me with the pistol, I sprang and clinched him around the waist, and also seized hold of the hand, in which he held the revolver. He still tried to bring the revolver to bear upon me, and in the struggle the revolver was discharged. Deputy Sheriff Sinclair interfered, and we took the revolver from him.

"Mr. Rumsey and Sinclair corroborated the testimony of Smith.

"Mr. Ridgely testified that a few minutes before the shooting, the prisoner met him on the street and asked for Mike Smith, and said he (the prisoner) was going to shoot Smith. A soldier who was with the prisoner, tried to entice him to go up to the fort.

"W. G. Tonn, sworn— Heard the prisoner say on the day of the affray, and after the prisoner's arrest: 'Tell that man Smith, to keep out of my way, for if I see him, he must certainly die.' T. J. Dayton, testified that just before the affray, he heard the prisoner say he was going up to kill Mike Smith.

"T. D. Abbott, heard the prisoner say after the shooting, 'Where is Mike Smith, take care of him or he will surely, die.' The prisoner at the time appeared to be in great pain, and partially stupified. Sinclair struck the prisoner twice on the head with a revolver, when trying to get the prisoner's pistol from him. Here the prosecution rested.

"Mr. Hall, sworn for the defense, testified that he was present at the time of the affray, did not hear the prisoner say a word, or make any threats. The prisoner was intoxicated at the time.

"The deposition of McDermont's corroborated the above.

"The line of defense consisted in endeavoring to prove that the prisoner was intoxicated at the time of the affray.

"That he was induced to drink, and made drunk by Mike Smith, that while in a state of intoxication, he was swindled out of his money by (Smith), that he continued in a condition of intoxication up to the time of the shooting, and that the assault grew out of these circumstances.

A later article noted: 

"M. C. Brown introduced and argued a motion to set aside the verdict.

"The Court overruled the motion and sentenced the prisoner in confinement in the House of Correction at Detroit, Michigan, for a term of eight years."

8. Territory v. John DeGair, assault

Five women served on the jury that convicted him of the charge. 

9. Territory v. William Gale, receiving stolen goods

Three women served on the jury that found Gale not guilty of the charge.

Judge Dismisses Jury 

Laramie Daily Sentinel, March 16, 1871: "The court thereupon discharged the Petit Jury for the term. Chief Justice Howe said:

"The strictly honest, impartial and capable manner in which the Jury have discharged their duties, merits the highest compliment that the Court can bestow, and will also receive the thanks and gratitude of the entire community."

"To the Ladies, who have served during the whole term, His Honor the Chief Justice said, 'I am prepared to endorse fully and unqualifiedly the excellent results that spring from the influence and presence of Women in the Jury box, nor have I been able with the closest observation, to detect the least objection or unfitness in women to serve in that capacity. On the contrary, the Court has reason to believe that the introduction of her refining and humanising influence into our Courts, will mark a new and improved epoch in the administration of justice.'"

Complete Transcripts of the Sentinel Articles Cited (Above)

Laramie Daily Sentinel, March 9, 1871, p. 3:

ALBANY COUNTY CIRCUIT COURT. JUDGE KINGMAN, Presiding. "The case of the Territory against Harvey Shipman, indicted for the murder of Charles Wood, at Sherman, on the 8th day of December, 1870, was taken up. Col. S. W. Downey, County Attorney, appeared for the people, and Judge M. C. Brown, for tbe defense. The prisoner was brought into Court and pleaded not guilty.

"The following jury were empanelled to try the case : Mrs. Lottie Cardwell, Michael Carroll, Mrs. Harriet S. Conkey, Joseph Mackle, Mrs. Martha Boies, Charles Erwin, August Vogolsang, J. L. Robberts, B. C. Leach, Frank Bray, Henry Birgameir, Jeremiah Graham.

"B. C. Leach, was appointed Foreman.

"W. H. Harlowe sworn— l am a Justice of the Peace at Sherman. The prisoner was examined before me on 8th day of December, upon a charge of manslaughter, of one Charles H. Wood. I asked him if he was guilty, and he said be believed he struck Wood, or words to that effect. He said he did not know why be did it. That Wood had always befriended him.

"Here the prosecution rested.

"Judge Brown in a few brief remarks indicated that the line of defense would consist in an effort to show that the prisoner was Insane.

"Thomas Alsop was sworn and testified to having had an interview with the prisoner last spring, at which time the prisoner acted so strange as to attract his attention and excite remark. It was soon after the prisoner's father was killed by the Indians.

"Jackson Brown sworn— ls acquainted with the defendant, have known him since last May, he worked for me all the Spring. He acted strangely at times, and often seemed abstracted and unconscious of passing events. He did not seem to know when he was spoken to, etc.

"W. H. Harlowe re-called— l have been acquainted with the defendant since June, 1869, I met him in the North Park at that time. Saw him several times during the summer, and have seen him frequently since, at Sherman. He has always seemed strange and abstracted, and inclined to solitude, was always quiet, never quarrelsome.  

"W. G. Smith sworn— l have known the defendant since last October, at Sherman. He was unusually quiet and abstracted, when spoken to be would return seemingly unconscious and vacant expressionless stare. 1saw him when Wood's wound was being dressed. He seemed to try to help what he could, but would frequently seem to loose his consciousness of what was going on for a minute or two at a time. Defendant boarded with me, eat his meals regularly, I never saw him play cards. I never had any business transactions with him.

"Mr. Trout sworn— I am acquainted with the defendant since last July, he boarded some time at my house. His deportment was strange and often caused remark, be seemed to be much of the time laboring under a sort of settled melancholy and mental abstraction. He was never quarrelsome, his appetite was good, and he paid his bills regularly.

"Geo. Young sworn— Have known the defendant since June 1869, have observed nothing peculiar in his demeanor, gave that he was always unusually quiet and reserved. I arrested him the next day after the death of Wood, I found him in a cabin about a hundred yards from the Round House at Sherman, he was not at all excited, but seemed cool when he was arrested.

"Walter Sinclair sworn— l am acquainted with the defendant since the winter of 1867 and 1868, saw him frequently, during that time he was a social, cheerful, pleasant boy. His character was excellent.

"T.D. Abbott sworn— l am the Postmaster, and have received letters from Mrs. Shipman.

"The Court refused to admit evidence as to the contents of the letters.

"Sinclair recalled— When I knew the defendant he was with his father, and was remarkably dutiful and obedient.

"Dr. Finfrock was recalled and described the wound upon the head of the deceased, and expressed the opinion that such a wound would, in a large majority of cases produce death.

"Carroll recalled-- -On the day the homicide was committed, I saw nothing strange in the conduct of the prisoner. He was always quiet and reserved.

"Here the evidence was closed, and the argument opened by Col. Downey for the people.

"Judge Brown followed with an able and argument for the defense.

"The argument was then closed by Col. Downey, for the people, in the best argument we have ever heard in our Courts, but of which we cannot publish even a summary for want of time and room. The Court gave the case to the jury in an able charge, and up to the time of going to press no verdict had been returned."

Laramie Daily Sentinel, March 10, 1871, p. 3:

ALBANY COUNTY CIRCUIT COURT.  Judge Kingman, Presiding.

"In the case of Shipman, the jury after an absence of eight hours, returned a verdict of Guilty of Manslaughter. We are satisfied this verdict will be heartily endorsed by public sentiment as it was by the court.

"The next case called was that of the Territory v. William Johnson, for Cheating, by representing himself to be William Lee, and obtaining money upon a confidence of deposit given to the said said William Lee, by H. J. Rogers and Co.

"The following jury were empanelled to try the case: J. A. Wright, A. W.  Meldrum, Mrs. W. Sinclair, Miss Gaines, Mrs. Eliza Boyd, G. W. McFadden, Charles H. Richards, A. T. Williams, John Metcalf, Ira A. Pease, William Alsop and J. W. Nash.

"The case was submitted without argument, by Col. Downey, for the people, and William Tonn, for the defendant, and it went to the jury upon the charge of the Court.

The Jury retired and after an absence of an hour, returned a verdict of Guilty.

Johnson was sentenced by the court to Six months imprisonment in the County Jail, and to refund the money ($20) obtained on the draft.

"The case of the Territory vs. Peter Perrin was taken up. Perrin was indicted for an assault with intent to kill. The same jury were empanelled to try the case as in the Territory vs. Johnson. Col. Downey for the people, and Mr. Bramel for the defendant. We did not hear the testimony. In his charge Judge Kingman animadverted severely upon the practice of carrying deadly weapons. We were pleased with the remarks of his Honor upon this subject, and believe they will exert a good influence. The jury returned a verdict of Guilty of assault with intent to commit bodily injury.

"The case of the Territory vs. Littleton Lawrence, indicted for the murder of Pressley Wall, on the 12th day of December last, in the city of Laramie. The prisoner and the deceased were both colored men, and the citizens will generally recollect the circumstances of the homicide.

"The following jury was empanelled to try the case: Mrs. M. S. Conkey, Geo. W. McFadden, Mrs. Lottie Cardwell, William Alsop, Mrs, Martha Boies, Charles Hilliker, Mrs. Eliza Boyd, A. B. Crawford, Cyrus Thompson, Leopold Presser, J. W. Conner, H. F. Bray. Nearly the whole forenoon was occupied in getting a jury in the case, both the plaintiff and defendant nearly, or quite exhausting their right of challenge.

"M. C. Brown, assisted by T. J. Street, appeared for the defendant, and Col. S. W. Downey, County Attorney, for the people. 

"The evidence for the prosecution, was, in substance, that the prisoner was at the saloon of Robinson on the evening of December 12th, 1870. That some words and contention passed between the prisoner and Robinson. Finally Robinson asked the prisoner to take a drink and be quiet. The prisoner asked Pressley Wall, the deceased, to drink with him. Wall consented, and he and the prisoner went up to the bar together to drink. As they came up to the bar, the prisoner drew his revolver, and placing his thumb upon the hammer, threw his hand with the weapon in it over his shoulder, at the same time the revolver was discharged, the ball striking Pressley Wall in the breast, from which he died in five minutes. When the prisoner was told he had shot Mr. Wall, he, (the prisoner) replied, 'let the damned n----- die.' This occurred on the 12th day of December, 1870, between nine and ten o'clock in the evening.

"An effort was made and testimony introduced to prove that the prisoner walked up in front of, and turned his back upon the deceased as he drew his revolver, and stood facing and looking into a reflector when the pistol was discharged.

"Dr. Finfrock testified as to the nature of the wound, and its having caused the death of Wall.

"The defense contested in the introduction of evidence to prove that the prisoner was of previous good character and habits, and was intoxicated at the time of the commission of the homicide.

"Rebutting evidence was given that the prisoner acted sober up to the time of the shooting.

"Col. Downey opened the argument for the people, and was followed by Messrs. Brown and Street for the defendant, when Col. Downey closed, and the case was given to the jury in a full and fair charge by the Court.

"Up to the time of going to press, no verdict has been returned."

Laramie Daily Sentinel, March 13, 1871, p. 3:

ALBANY COUNTY CIRCUIT COURT.

JUDGE HOWE, PRESIDING.

"The Court proceedings this forenoon were principally occupied in arguing an application of Edward Ivinson, for an injunction to restrain the Union Pacific Railroad Company, from moving away from the County and Territory, certain Railroad ties lying here and at Wyoming.

"This afternoon the case of the Territory vs. William Van Scoy, charged with having committed an assault with intent to kill, upon Michael Smith, in this city on the 26th day of January, 1871.

"Col. Downey, for the People, Judge Brown, for the defendant.

"The following jury was empanelled to try the case : Mrs. H. S. Conkey, Geo. W. McFadden, Mrs. Eliza Boyd, John Metcalf,  Mrs. J. H. Hayford, A. J. Nash, Geo. O. Densmore, William Crout, John A. Wright, J. W. Peck, Gustav Shuler, George Marquette.

"Michael Smith, sworn for the prosecution, testified as follows: The prisoner entered my saloon, walked up to the bar, and turned his back towards me and took a revolver from his left breast, and turned toward me, leveling his pistol at me, said die! I had walked towards him, and when he turned towards me with the pistol, I sprang and clinched him around the waist, and also seized hold of the hand, in which he held the revolver. He still tried to bring the revolver to bear upon me, and in the struggle the revolver was discharged. Deputy Sheriff Sinclair interfered, and we took the revolver from him.

"Mr. Rumsey and Sinclair corroborated the testimony of Smith.

"Mr. Ridgely testified that a few minutes before the shooting, the prisoner met him on the street and asked for Mike Smith, and said he (the prisoner) was going to shoot Smith. A soldier who was with the prisoner, tried to entice him to go up to the fort.

"W. G. Tonn, sworn— Heard the prisoner say on the day of the affray, and after the prisoner's arrest: 'Tell that man Smith, to keep out of my way, for if I see him, he must certainly die.' T. J. Dayton, testified that just before the affray, he heard the prisoner say he was going up to kill Mike Smith.

"T. D. Abbott, heard the prisoner say after the shooting, "Where is Mike Smith, take care of him or he will surely, die." The prisoner at the time appeared to be in great pain, and partially stupified. Sinclair struck the prisoner twice on the bead with a revolver, when trying to get the prisoner's pistol from him. Here the prosecution rested.

"Mr. Hall, sworn for the defense, testified that he was present at the time of the affray, did not hear the prisoner say a word, or make any threats. The prisoner was intoxicated at the time.

"The deposition of McDermont's corroborated the above.

"The line of defense consisted in endeavoring to prove that the prisoner was intoxicated at the time of the affray.

"That he was induced to drink, and made drunk by Mike Smith, that while in a state of intoxication, he was swindled out of his money by (Smith), that he continued in a condition of intoxication up to the time of the shooting, and that the assault grew out of these circumstances."