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Presentation
Scanned – Transcribed - Edited by: Neal Du Shane -
APCRP - Nov. 6, 2006 All rights Reserved ©
In the District Court of the Third Judicial District of the
June Term A.D. 1878 -
The
vs
Jack Swilling,
Andrew Kirby and
George Munroe
Jack Swilling, Andrew Kirby, and George Munroe, are accused by the Grand Jury of the County of Yavapai, in the Territory of Arizona, by this Indictment, of the Crime of Robbery, committed as follows, to wit: The said Jack Swilling, Andrew Kirby, and George Munroe, on or about-the nineteenth day of January in the year of our Lord one Thousand eight hundred and seventy eight, and before. .the finding and presentation' of this Indictment, at the County of Yavapai, in the Territory of Arizona, in and upon one William Reed then and there being, unlawfully, feloniously, violently, and with force arms, and intimidation, did make one assault, and him the said William Reed in bodily fear and danger of his life then and there feloniously did put and place, and a certain valuable thing, towit a certain bar of gold bullion then and there of the value of fifteen hundred dollars or thereabout, the said valuable thing, towit the said bar of gold bullion, being then and there of the property and of the goods and chattels of another, towit, of one William M. Buffum, and then and there being in the lawful custody, control and care of the said William Reed, the said Jack Swilling, Andrew Kirby and George Munroe, it, the said bar of gold bullion, did then and there feloniously and with force and violence unlawfully, rob, steal, take and carry away, from the person, and out of the custody, of the said William Reed.
And so the Jurors aforesaid on their oath do say, that the said Jack Swilling, Andrew Kirby, and George Munroe, on the day and year aforesaid, at the County and Territory aforesaid, in manner and form aforesaid did commit the crime of Robbery.
All of which is
contrary to the form of the Statute in such case made and provided and against
the Peace and Dignity of the
Paul Weber
District Attorney
INDEX
Ti t1e page 1.
Testimony on part of p1ff.
Wm. Reed, 2-10, D 17, pr 18, D 18 1/2, pr 18 3/4
L. G. Taylor, 19,pr 44, D 64, pr 65, D 65, pr 05, D 65
W. H.R. McCall, 69, pr 75, D 78, admission 78
Chas. Calhoun, 78
Frank Smith, 80, pr 83
L. Levy, 85, pr 87, Correction by witness 88 1/2
J.J. Hill, 89 pr 100
Chas. Calhoun, (recalled) pr 102, D 104, pr 104
J.J. Hill, (recalled) D 105
Jessie Jackson, 114, pr waived
C. F. Tate, 119, pr 122, D 122
F. M. Murphy, (sworn, - not examined)
T. W. Otis, 124, pr 140
Robt. Dubord, 143, pr 144, D 145, pr 146, D 147
John Bullock, 148, pr 151 PLit Rest.
Motion for non-suit 156, Court decision on
Non-suit 161
Attorney proposition with respect to the evidence 161
Dist. Atty. Weber calls on Sheriff to take Kirby 162
Attorney for defendants consents that testimony may be
read, etc. 162
Testimony on part of Deft.
James C. Burnett, 164, pr 170, D 186
C. F. Cate, 189, pr 193, D 201
Andrew Kirby, 203, pr 208
J. W. Swilling, 223.
IN THE JUSTICE'S COURT,
------
Before, H. H. Cartter Esq.,
Justice of the Peace.
THE
vs
Jack Swilling,
Andrew Kirby Criminal Complaint
George Munroe
being first duly sworn upon oath, makes complaint and alleges as follows, to wit:
That heretofore, on or about, to wit, the 20th day of April 1878 at the said County of Yavapai, Territory of Arizona, Jack Swilling, Andrew Kirby and George Munroe did commit the crime of Robbery, as follows to wit = by unlawfully and feloniously with force and arms making an assault in and upon one William Reed then and there being, and by means of such force and arms then and there feloniously used - putting and placing the said Reed in fear and danger of his life, and then and there forcibly and with violence taking from the care and custody of said Reed gold bullion of the value of about two thousand dollars, the same being then and there the goods chattels and property of one William M. Buffins and in the lawful control and charge of said Reed, all of which is contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the Territory of Arizona. Wherefore complainant prays that a warrant may be issued for the arrest of said Jack Swilling, Andrew Kirby and George Munroe and that they may be dealt with according to law.
(signature) W. H. H. McCall
Subscribed and sworn to before me this 18th day of May 1878
(signature) Harley H. Carter Justice of the PEACE
In the Third Judicial District,
Yavpai,
Before the Hon. H. H. Cartter, JP
plaintiff
vs
Charged with
J. W. Swilling,
Andrew Kirby,
George Munroe,
defendants
Attorneys,
For plaintiff,
Paul Weber, Dist. Atty.
“ defendandts,
Fitch and Churchill.
June 1st, 1878,
This case being regularly called of trial, the testimony was
taken by the phonographic reporter Wm. W. Reed, by consent of the District
Attorney and the Attorney for the defendants, from the Case of the
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taken by him in that Case. It is also the understanding that this testimony is only to go as
far as it goes, and that either party can offer further and additional testimony, if so
desired. Throughout this Report, the name of Mr. Weber, is to be substituted for that of Mr. Masterson.
Testimony of
Wm. Reed
Called on part of plaintiff.
Sworn: -
Mr. Masterson.
Q. State your name, age and occupation.
A. My name is Wm. Reed. I am twenty years of age, and am a stage driver by occupation; and as such, am in the employ of the C. and A. Stage Company.
Q. Who compose that company?
A. James Stewart and Doc. Pearson.
Q. From what place do they work their line, and to what place?
A. From
Q. Do you know they carry the United States Mail?
A. Yes sir, they do, and also carry Wells Fargo and Company's express.
Q. How long have you been in their employ?
A. Four years and pretty near three months.
Q. Were you in their employ during the month of April last?
A. Yes sir.
Q. On or about the Nineteenth day of that month, state if you were in their employ, and if so, what you were doing on that day?
A. Yes sir I was in the employ of the Company on that day, and night.
Q. Where were you at that time; in Wickenburg, or were you driving this stage?
A. At what time?
Well, at the time you were stopped?
A. I was driving the stage about four miles from Wickenburg, the stage of the C & A stage Company. I had on two passengers at the time and was driving them out on California-bound stage.
Q. Were you present at the time when the stage was loaded?
A. Yes sir.
Q. Where was it loaded? A. Wickenburg.
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Q. Can you tell how many sacks of mail you had on?
A. I couldn't tell you how many sacks of mail I had on. I never counted them.
Q. Did you have any on?
A. Yes. I had
on several sacks of United States Mail, for Ehrenberg,
Q. Had you any Express matter on?
A. I had Wells Fargo & Co's box.
Q. Where were you at the time the stage was stopped?
A. I was at what is called the four mile hog-back from Wickenburg.
Q. What time of the evening, as near as you can recollect, were you stopped?
A. To the best of my knowledge, it was about half past nine.
Q. Was it dark?
A. Yes sir, it was pretty dark.
Q. How many men stopped you?
A. There were three in sight.
Q. Describe those men as they appeared to you at the time, as far as stature is concerned?
A. There was one short man, one
medium man, and one very tall man. The tall man I should judge to be five feet eleven or probably six feet.
Q. State the size of the short man? A. The short man was a man about my size, I should judge.
Q. How far were they from you when you first halted?
A. Right in front of the team.
Q. At the time, was "there anybody on the boot with you?
A. No, there was nobody with me on the boot at the time. I was by myself on the boot, and the passengers were inside.
Q. What was the first word you heard from those parties in front of the team?
A. The first I heard from them was "Stop that Stage".
Q. State if you saw anything on their person so far as guns or anything of that description?
A. Yes sir I seen firearms. I saw a short shot-gun and a rifle (I supposed it to be a carbine) and a pistol - a six shooter.
Q. Were they all armed?
A. Yes sir,
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Q. After they said "Stop that stage," What did you do?
A. I stopped then.
Q. State now to the Commissioner what was done after that?
A. The passengers were taken out of the stage and robbed.
Q. The passengers first were ordered out?
A. Yes sir.
Q. They were robbed?
A. Yes sir.
Q. Did you see the robbing?
A. I seen part of it.
Q. What next was done?
A. After they got through with the passengers they was marched around in front of the team and I was ordered to give up the mail and the Wells Fargo Express box, - the Express box first.
Q. You did it?
A. Yes sir I did it.
Q. What next did you do?
A. I sat there and held the team until they got through.
Q. Did they take the United States Mail from you?
A. They ordered me to throw it out.
Q. Did you do so?
A. Yes sir.
Q. What became of those mail sacks?
A. They took the mail bags around behind the coach and cut them open, at least that was the condition they was in when I received them.
Q. Who seemed to be the Major Domo of the party or master of the work?
A. The medium man done the talking.
Q. Did they make any remarks to you or the passengers during this arrangement, or was it all quiet?
A. No sir. It was all quiet.
Q. After they had rifled or cut open these sacks as you say they did, state then what took place?
A. They handed in the mail bags and the box to me, or rather they went to the front boot and put the mail in themselves.
Q. What was the condition of theses sacks?
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A. They were cut right across.
Q. After they got through, what was done with the passengers and yourself?
A. The passengers were told to get into the stage, and they told me their intention was to tie me up for the night.
Q. Did they tie you up?
A. No sir.
Q. What did they say?
A. They told me that if I though I could go on without trying to get back to Wickenburg I could go on, but if I tried to get back to Wickenburg, that I was a dead man. So I went on. They told me then to go on.
Q. You drove on?
A. Yes sir.
Q. And went on your regular track.
A. I went on to my home station witch was Mesquit Station. After this man told me to go on, they stayed there sometime. I had got maybe the third of a mile and they were still standing there on the hill. At the time I left there the moon had raised, or before I left there the moon had raised.
Q. When was this?
A. This was on Friday the nineteenth day of April last.
Q. Are you a special carrier of the United States Mail?
A. I don’t know what you call it. I have been hired for the purpose of carrying the mail.
Q. Were these men on foot or on horseback?
A. They were afoot when they stopped me.
Q. Did you see any animals in their possession?
A. No sir. I saw no animals at all.
Q. Were the men disguised in any way?
A. Yes sir, they were masked.
Q. Mr. Reed, state if you know in what County Hog-back is in?
A. I couldn't say. But it is very close to the line.
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Q. What do you mean the line?
A. The line of
Q. Has the line ever been pointed out to you?
A. No sir.
Q. Were you on the main traveled road then?
A. I was on the main traveled road.
Cross Examination
of the witness
Mr. Reed.
Mr. Fiteh.-
Q. What is the Hogback?
A. It is the hill we call the Hogback, which is about four miles from Wickenburg.
Q. When you were stopped were you going up or down the hill?
A. The stage was going up the hill when it was stopped.
Q. From which side of the road did the man come?
A. He came right from in front.
Q. Is it four miles this side or the other side of Wickenburg?
A. On the other side.
Q. How were they masked?
A. With white cloth.
Q. White cloth across their faces?
A. Across their faces hat and neck.
Q. Did it come all around the head?
A. It went all around the head and neck, and hat. Everything was taken in.
Q. Were there holes cut for eyes?
A. Yes sir.
Q. Were there holes for the mouth and nostrils or was it just left loose?
A. I did not notice that.
Q. How far down from the top of the head did this disguise extend?
A. Down around here (the neck). It took the chin and neck in.
Q. It stopped about the throat.
A. Yes sir.
Q. Do you say
that you are a special carrier of the
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A. To drive the stage and carry the United states Mail and the Express.
Q. The stage carries the mail and Express?
A. Yes sir.
Q. Is there anything in your contract with the California and Arizona stage Company by which you agreed specially to become the carrier of the United States Mail, or did that merely follow from your duty as stage driver?
A. That is my duty as stage driver.
Q. How long did this operation take?
A. I should judge over an hour. About an hour, or it might have been a little more.
Q. Where did you remain? On the box or did you get down?
A. I remained on the box.
Q. All of the time?
A. Yes sir.
Q. Did they un-harness the horses?
A. No sir.
Q. Which one was it told you to stop?
A. At the "time I stopped, the whole three spoke together.
Q. Were any of these weapons that you speak of, leveled at you?
A. Yes sir.
Q. All of them?
A. Two of them.
Q. Which?
A. The shot gun and rifle.
Q. Which of the three men carried "the revolver?
A. The tall man.
Q. Which had the shot gun?
A. The short man.
Q. The medium sized man, he had the rifle?
A. Yes sir.
Q. How short was the short man?
A. He was a man about my size.
Q. What is your size?
A. About five feet four or five, I recon.
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Q. Were you alarmed?
A. At the instant I was, but not afterwards. At first I was a little alarmed, not expecting it.
Q. With the exception of this leveling of weapons and the word stop, were there any weapons leveled at you at any time after that?
A. At times there was. The men in front at times would point their guns toward me.
Q. Did that not alarm you?
A. No, not much.
Q. Why not? You were unarmed?
A. Yes, I was unarmed.
Q. What was the occasion of his leveling the gun at you afterwards?
A. Well. The passengers stood between me and him, and I suppose it was to keep control of the passengers as well as myself.
Q. Did he accompany the leveling of the gun at you by any threats?
A. No sir.
Q. You did not think he was going to shoot?
A. I did not think he had any occasion for it.
Q. You did not think he was going to shoot? You say you were not alarmed.
A. No sir.
Q. You did not at any time after you stopped the stage, consider yourself in jeopardy of your life.
A. Yes, I did when they threatened to tie me up.
Q. How did you think that would jeopardize your life?
A. I did not know what "to think of it.
Q. How could it put your life in jeopardy to tie you up, even if they had put their threat into execution?
A. I don't pretend to say that it would jeopardize my life. I did not know what their intentions' was.
Q. Was that threat made after the mail and passengers were robbed?
A. Yes sir.
Q. Did they put the sacks after taking out the contents, back into the stage?
A. Yes sir.
Q. Did they empty the sacks?
A. They emptied them on the ground.
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Q. After they got through robbing, did they put the letters back in the sacks again?
A. Yes sir.
Q. Did you see them open any letters?
A. I did not see them open any.
Q. About what time was it you say the stage was stopped?
A. About half past nine o'clock in the evening.
Q. The moon came up during the robbery, did it?
A. Yes sir.
Q. What sort of a moon was it; was it a full moon or how?
A. No sir, it was not the full of the moon.
Q. About what time of the moon was it?
A. The first quarter, I think, or the last quarter. I am not sure.
Q. Was it cloudy?
A. It was a little cloudy.
Q. Were there lamps on the stage?
A. Yes sir.
Q. Were they lit?
A. No sir.
Q. Did you look to see what became of the men after you drove off?
A. After I got off about four hundred yards I looked back and they were still standing on the hill.
Q. You were going up the hill when this stage was robbed?
A. Yes sir.
Q. How far is it from where the robbery took place to the top of the hill?
A. The leaders were pretty near the top of the hill.
Q. Had they got to the summit, or how far were they from the top?
A. They were probably about six steps from the top of the hill. It was a short little pitch.
Q. After you got four hundred yards further away you looked back and saw them standing on the summit of the hill?
A. Yes sir.
ReDirect Examn
of the witness,
Wm. Reed.
Mr. Masterson. -
Q. With reference to the question and your reply concerning your consideration as to your life being in jepardy at the time of this robbery: Did you go back or take their advice and go on?
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A. I took their advice and went on: because I did not think: it was my place to go back. I did not think it was safe for me to go back.
Re Cross Examn
Mr. Fitoh. -
Q. Was there not another reason: namely, that your passengers and business lay in the opposite direction and you would have had no occasion to go back, except to communicate the fact of the robbery? Suppose they had laid no injunction on you, what would you have done?
A. I don't know what I would have done. I don't know whether I would have gone back or not.
Q. Was there any general order of the stage company with respect to what the drivers should do when the stages are robbed?
A. No sir, not that I know of.
Re Direct Examination
of the witness
Wm Reed
Mr. Masterson.
Q. In leaving Wickenburg going West do you pass the Vulture Mill when en route to Ehrenburg by the regular traveled stage road?
A. We don't pass it. We leave it right behind us.
Q. Do you go to the North of it, and if so, how far?
A. We don't go to the North of the mill.
Q. How far is the Vulture Mill from, Wickenburg, and in what direction?
A. About three quarters of a mile North of East.
Q. Describe your route from Wickenburg to the Hogs Back as well as you can, with reference to the Cardinal points of the compass!
A. The first three quarters of a mile we run North and then we turn and go West, pretty nearly due West until we get to the Hogs Back.
Q. The Vulture Mill is the place where you turn off to go West?
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A. Yes sir.
Q. You go to the Vulture Mill and then go West?
A. What is your
best knowledge as to where this stopping of the United States Mail took place in reference to the line of Yavapai
and
Obj. Mr. Fitch.- Objected to for two reasons. First, this witness has answered the question, and second, he is not a skilled witness.
Mr. Masterson.
Cross Examination
We go first a little East of North until we get to within four hundred yards of the Vulture
Mill and then turn and go or a trifle South-of-West, West leaving the mill at about four hundred yards to the right.
(signed) William Reed
Subscribed and
sworn to before me
this 28th day of May 1878
Harley H. Cartter
Testimony of
Mr. L. G. Taylor,
Called on part of the plaintiff,
Sworn: -
Mr. Masterson,
Q. What is your name age and occupation?
A. My name is
L. G. Taylor, I was forty three years old
on the fourteenth day of last February and my occupation of late has been the
dairy business on the
Q. How long have you been in this territory?
A. Nearly a year sir. I came here last July.
Q. Have you been engaged in the dairy business?
A. I mined for a short time out here near the Peck.
Q. Are you acquainted with Mr. Swilling?
A. Yes sir.
Q. How long have you known him?
A. I have known him since October last.
Q. Are you intimately acquainted with him?
A. I have been around his house a good deal, and had charge of some cattle
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which belonged to him and L. A. Stephens.
Q Have you been off and on at the Swilling ranch since last October?
A. Yes sir.
Q. Have you been working for him or yourself?
A. For a time I was working in the interest of Mr. Swilling and myself. We were interested together. I had charge of a lot of cattle which belonged to him, and Mr. Stephens.
Q. Mr. Taylor, did you ever have any conversation with Mr. Swilling in
the month of April last, and if so, state the nature of those conversations?
Objn. Attr Fitch.- I do not ordinarily
object on preliminary examinations, but, but in cases where the
Mr. Masterson.- I claim that the rule of practice is this: That your objection is interposed in the record, but the Commissioner here cannot pass upon your objection.
Mr. Fitch.- Upon that we differ. There is a contingency in which the testimony might possibly be important at the trial. MY objection does not preclude the Commissioner from passing upon the testimony as Examining Magistrate. The point you desire to make is only applicable where the Commissioner takes testimony as Court Commissioner, but in this instance he sits as an Examining and Committing Magistrate. In a case like that to which counsel alludes, the Commissioner has no judicial functions. In this Case, he sits as Examining and Committing Magistrate, and passes upon the testimony and therefore is entitled to rule.
.
Mr. Masterson.- I think the Court under stands our positions.
The Court.- The of objection will be sustained.
Mr. Masterson.- How sustained?
The Court.- That it will be necessary for you to prove the time and place.
Mr. Masterson.- I will prove the time and place: but I desire to understand the
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Commissioner as to ruling out the testimony that goes in. It might be necessary for me to Consult before proceeding further, in that event.
The Court.- I do not propose to rule out any testimony I deem to be relevant, nor do I propose to admit any that I think is Irrelevant.
Mr. Masterson.-
Q. (to witness) Give the time and place of the conversation and state what the conversation was?
A. I don't know what conversation you want me to state? I had a great many conversations with Mr. Swilling.
Q. Commence and give a continued narative of your conversations with Mr. Swilling during the month of April last, with reference to matters pertaining to the Case at Bar. Whether one, two, three, or four conversations, or more, state the times and places, you had those conversations, or about the times, and the conversations, with respect to the matters relating to this Case?
A. Well sir: I talked with Mr. Swilling frequently during the month of April last at Gillett. I talked with him after the twentieth of April last, and before that time.
Q. State now, if you had a conversation with him at or near Gillett in reference to the burial of the remains of Col. Snively.
Mr. Fitch.- Let him state what time this was.
Mr. Masterson.-
Q. Certainly: give the time as near as you can?
A. This was, I suppose about the 24th or 25th of April, at Gillett at Mr. Hill's store; I met Swilling and he told me that he had been out on a prospect trip and had brought in the remains, or he had been out to look at the remains of Col. Snively, and had brought them in and was going to have them buried in his grave yard. He wanted me to write to the Miner in regard to it. I told him he had better get somebody else to write that article, who understood the history of Col. Snively better than I did. He insisted that I should do it, and told me to go on. He asked me if I had paper, and I thought I had and told him. Two days later
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they brought the remains of
I asked him then if Tom Burnham had gone, and he told me that Tom Burnham was of the party. He then looked on the paper I was writing on and he says "Have you included Tom Burnham's name" I told him I had, and he said that is right. "Well," he says, "Snively was killed in the month of March 1872 and was killed by the Apaches at White Pioacho mountains. He said this is six for Munroe, old timers that had gone and that had been brought in and burried in a Christian grave yard and seven for myself. I asked him who the six were, but he put me off and told me he would tell me some other time. I went ahead and wrote the article as he suggested and it was forwarded to Mr. Beach, Editor of the Miner, for publication.
Q. Was there anything said in this conversation as regards the robbing of stages.
A. Two days before that, I had a conversation with Swilling which amounted to this:
Mr. Fitch.-
Q. Where did you have that conversation?
A. At Gillett. He says then, that while we were out after Col. Snively's remains (-this was at the ???? Saloon) –Swilling had written me a note asking me to pay to (BLANK) a certain amount of money for him, and take as collateral security a, gun and pistol he had. Swilling said to me “Whi1e we were after Snively' s remains. I woke up early in the morning at the grave and saw three tracks there, one, very small”, and he remarked
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that that track corresponded very near to his, and he says to me that he told Munroe "There is some devilment going on in "this section and if there is any devilment done, they will blame me, you and I and Andy Kirby for it, because this "track is similar "to this." He pointed out to a stump and he says "They passed as close to us as that, and they did not wake us up.”
Q. Did he say anything about the stage robbers?
A. No sir. He spoke about the three tracks, and pointing to a stump he said that they came as near as that to where they were. That was about 8 feet as I understood. He also told me about his "troubles, about his family going off, and how he had treated his family.
Q. Did you have any further conversation at Gillett at or near that time?
A. I saw Swilling every day up to the time he was arrested and I was deputised by Mr. McCall, after he was arrested, to assist in bringing him to town. I talked with Swilling every day after the remains of Col. Snively were burried, or the supposed remains.
Q. Did he state to you that Tom Burnham was with him on that trip?
A. Yes sir.
Q. Are you acquainted with Tom Burnham?
A. Yes sir. Burnham was digging the graves I think, but I am not certain whether it was him or Joe.
Q. Could he hear the conversation between you and Swilling?
A. I think not. He was at the grave and we were perhaps ten yards from the grave. Swilling told me three times. I asked him afterwards after the article was published; Said I "Did I make a mistake as to Tom Burnham being along" and he said "No; Tom Burnham was with us."
Q. State now to the Commissioner, if you ever had a conversation from this time of which you have spoken, directly with Swilling, as to the question of the robbing of the stage? If that subject ever came up?
Mr. Fitch.- The time? These conversations all took place before the arrest of Swilling.
Witness (continuing) I told Edwards
Mr. Fitch.- (Interrupting) Never mind (word illegible)
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Mr. Masterson. -
Q. State now if you had any conversation directly with Swilling or Kirby in reference to the robbing of the stage, we are inquiring into?
A. I went down to Gillett, I think perhaps it was six, eight or ten days to get the remains for burial on this occasion, and I met Swilling, who was anxious to get possession of a couple of children. I "told him if he would produce money and would satisfy the citizens of Gillett that he had the amount of money necessary to pay their expenses to Missouri, (He wanted to send them to Cape Girardeau Missouri) that everybody there in Gillett would approve of his taking the children, but that if he attempted to drink or got drunk while taking these children that Tom Burnham and the rest of his friends would not let him move the children. Then he told me that he had the money, and we started down to the house. We got right where the wood is piled opposite the saloon and I said "I don't believe you have got the money. You had better leave this matter alone until you get the money. He says I have got it and I want you to
assist me in getting these children. He said he had the money provided a party that was with him did not go back on him, and says I will show it to you in a few days. He put his hand on my shoulders and said "Are you going to assist me to get those children." I said whenever you show me the money I will help you and do all I can to get the children. We had agreed previous as to how we should get the children. I says "Jack, I don't believe you have got a cent to send the children with.” He says "I have got it and will show it to you." I said "Where did you get it?” He says "I got it in that Wickenburg Coach, and gold at that." Just at that time Mrs. Swilling came around the house and we walked in.
Q. Immediately after that remark by him, Mrs. Swilling came?
A. She came to the door and looked out and we walked in the house.
Q. He spoke to you there saying that he got the money from the Wickenburg stage, and gold at that?
A. Yes sir.
Q. State if you had any further conversation with him after that, in reference to
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yourself and Mr. Swilling as to what you proposed to do?
Mr. Fitch.- I desire the time and place given.
Mr. Masterson.- This is a continuous chain.
Mr. Fitch.- Whenever it comes to the time after his arrest, I propose to object on different grounds.
Mr. Masterson.- :Before the arrest and after the conversation, seven or eight days after this other conversation, we are giving.
Witness.- I never took any dates or made any minutes.
Mr. Masterson.-
Q. Well, a day or two. three four five or six days after, a reasonable time after this, had you any conversation with him?
A. There is a long story connected with this thing. Swilling and I talked about a great many things. I had a conversation with Andy Kirby.
Mr. Masterson.-
Q. We will come to that when we are through with Swilling. You walked into the house?
A. After Swilling said this to me, We walked in the house. I bade him good bye and went to Levy's Saloon where I met Kirby.
Q. This party defendant here (pointing toward one of the defendants)?
A. Yes sir,
that is him. Says I, "Kirby Jack Swilling wants me to assist him to get his two children
from his wifes possession in order to send them to school at
Mr. Fitch.-
Q. When was this?
A. This was half an hour or three quarters of an hour after I had bid Swilling good by at his residence. He told me Jack had the money and that he had made a proposition to Jack that if he would pay wages he would conduct the children there. "I asked him how he knew that Jack had the money." I told him that Jack was not doing anything and that he apparently had no money in his possession and nothing in sight". And he says "I know he has got it, and if he will pay me a little wages I will take them there" I said nothing more to Kirby on that day.
Mr. Masterson.-
Q. Proceed and state if there were afterwards any further conversations about that time witch took place between you and Swilling and Kirby?
A. On the previous day, Mr. McCall
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went to Gillett with me He was at my house. That is H. H. McCall. We went to Gillett together and when we got there I looked around town to see where Kirby and Swilling were, and found them in Shingles and Ander's === saloon. I went back and told McCall they were in there. I also found the deputy Sheriff Jim Burnett, and told him that Mr. McCall would explain his business with him. I walked off to the saloon and invited Jack Swilling to take a drink and while we were taking a drink Mr. McCall and the Deputy Sheriff came in and the parties were arrested.
Q. What parties were arrested?
A. Jack Swilling and Andy Kirby.
Q. Now relate to the Court if you had any conversation with Mr. Swilling or Kirby before this time that you say they were arrested. You have placed the arrest in this saloon. Before the arrest, and state the time as near as you can, state whether you had a conversation with Swilling and Kirby or either of them, in which it was proposed for you
to enter into certain arrangements with the?
A. I met Mr. Swilling in the morning early at Gillett.
Mr. Fitch.-
Q. When?
A. The day
before the arrest was made. I met him at Mr. Hills store. He told me he wanted
to have a talk with me, and as he was sober, we went off behind Ander's saloon and sat down. We started to sit behind Frank
Smith's saloon, but he says to me
"Walls have ears, let us come over here" It was warm and I proposed
that we should sit in the shade. I walked over there with him, and when we got
there I told Swilling that I had a proposal to sell out my dairy there, and if
all his blood and thunder stories were true, to turn himself loose and I was
with him." He then told me "that he had sent George Munroe to buy the Hot Springs from
Q. Whereabouts
is this
A. I have never been to them, but I understand they are West of Gillett some eighteen or twenty miles, as he described to me on that occasion.
Q. Was there anything further said about the matter, or done, in reference to it?
A. There was quite a long conversation. We talked perhaps an hour or two, an took several drinks. I don't remember everything that occurred.
Q. Who was to compose the party?
A. Jack Swilling, Andy Kirby, George Munroe and myself, and as I understood Frank Smith, Jack had told me, was going along with us - the saloon keeper.
Q. At any time before the arrest that you have spoken about, state if you had any conversation, stating as near the time as you can, and place, down there at Gillett or any place, beside the conversation you now have related, in respect to this robbery that is the subject of the examination. If you had any conversation with Swilling or Kirby, directly bearing on this matter?
A. I had no conversation with Kirby about it at all, Swilling and I talked a great deal about this matter, and he told me what I have stated.
Q. State in this connection, Mr. Taylor, if these conversations were sought for by you or how they came up, or what brought you together?
A. Mr. McCall and myself after we had examined the box and finding there was remains in the box, we were baffled as to proceeding any further, and then Mr. McCall and I agreed that we should change our programme a little, and I should go to play the part of a confidence party with these men, and find out if possible what I could from them. I told him it was not my nature, but that I believed I could: That Jack Swilling always professed friendship for me for sometime past, and if I could draw anything out of him I would do so. We proceeded to Gillett and I met the parties and made the propositions which I have already stated to you.
Q. After Swilling was under arrest --- In the beginning, in relation to that matter, was there anything said by Mr. Swilling as regards making the first
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trip. Was this before or after?
A. He came to me. - I was four days working upon this thing, - Three days, I think it was, after Mr. McCall came. Swilling came to me and he says "It would not be prudent for you to go with us on the first trip we make, but we will return in a few days, and then you can go in with us". But he says we want to go out, and I will find the richest diggings ever found: Even better than that struck in Antelope.
Q. What time of the day was Swilling arrested by McCall?
A. I would judge it was about seven o'clock or a few minutes before seven in the morning. Why I say this, Mr. McCall and I saw some deer on the trail to Gillett. I was unarmed, and I borrowed his pistol and fired three times, and after we fired and crippled one as I supposed, I heard the whistle blow, and I told him it was the six o'clock whistle. We were then a mile and a half from Gillett.
Q. Was there anything stated by Swilling or Kirby at the time of their arrest or immediately after, on the day of the arrest --
Mr. Fitch.- (Interrupting)
Q. How long after the arrest was it, and where, and then we will see what objection I have?
Mr. Masterson.-
Q. Counsel desires to know how long it was after this arrest? We have now brought you down to the point of time and place. Were there any conversations you had with Swilling or Kirby?
A. I should judge it was about twenty minutes, because they were down at this saloon and I saw them. I walked to Mr. J. J. Hill's store and sat down, and while I was in there Swilling came in and Genl. McCall was with him. Swilling wanted a bottle of Perry Davis Pain Killer and J.J. Hill got it for him.
Q. Who is Mr. Hill?
A. He is attending to Mr. Hayden's business. Genl. McCall went in the back room to get a glass of water to mix up the medicine and Swilling took a dose of it.
Q Were you there in the role of an assistant to Mr. McCall? Were you deputised at that time as assistant Under Sheriff to assist in making the arrest?
A. Governor Hoyt had written me a letter asking me to assist Mr. McCall
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in ferriting out this whole matter.
Q. The object of my question is that Counsel may know whether you are acting as a private citizen, or in the capacity of an assistant to Mr. McCall, in making this arrest?
A. Mr. McCall stopped at my house and requested that I should assist him in this matter.
Q. Then at the time this bottle of medicine was procured, you were acting as assistant to Mr. McCall and as a body guard, so to speak, of the parties arrested?
A. He asked me to assist him.
Q. Proceed?
A. I was sitting in the store on a pile of flour and Swilling sat down by the side of me. Before he sat down, he remarked to Mr. J. J. Hill "Mr. Hill, I have been arrested, Andy Kirby and myself, for robbing the mail, George Munroe is already in irons." and he said "We did it." Jack then came and sat down near me on this flour, and he whispered to me and says "Have they got Munroe?" and I says to him "I don't know anything about it." I says" Has McCall told you what you are arrested for" He says "No”, but I want the news to reach
George Munroe, so he can make his escape.
Then Genl. McCall came in with a bottle of this Perry
Q. This conversation you had with Swilling in reference to George Munroe, was in J. J. Hill's store on that occasion?
A. Yes sir.
Q. Was this immediately after the arrest?
A. I suppose it
was within twenty minutes after the arrest.
Q. Did you make him any reply when he said he wanted George Munroe to get the news?
A. Genl. McCall came in and interrupted us, and brought him a glass with this preparation and handed it to Swilling.
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I said nothing to him then. As he started out of the door I says "It is funny you accuse yourself of this crime" and I asked him why he did it, but he walked on without making me any reply.
Q. state further what took place between you and Swilling after this?
A. After this I was in the saloon and was deputised as I have stated. Swilling said to me, "You go with me down to C. P. Head's store. I want to see Joe Walker"
Mr. Fitch. –
Q. Where was that?
A. In Gillett. As we started down street we passed Edward's butcher shop, and Swilling put his arm on my shoulder and says II I don't know whether I am arrested for robbing the Wickenburg stage or for robbing the Warrensburg bank. It He says" This man McCall is from Washington City, and I don't know. He says "You can find out and I wish you would” We proceeded in to the store. He wanted J. Walker and I to go his security, and says he, “I should have a hearing before the nearest Magistrate.“ That magistrate, of course was in Gillett.
Q. state further, did you start with Swilling and Kirby on that day and stage?
A. We stayed that evening and that night at Gillett. They were quartered at
Frank Smith's saloon.
Q. Well, proceed?
A. We stayed that night at Gillett,
Q. State now to the Commissioner if Swilling and Kirby made any attempt to get away from your custody?
A. Kirby tried, I think on two occasions to get away.
Q. What did you have to do with Kirby, to keep him?
A. I sent word to Genl. McCall that if he wanted those prisoners kept there, he must keep them. I did not want to shoot them, and they were trying to get away. I was sitting in the door conversing about some matter, and Smith says "Your prisoner has slipped up on you, meaning Kirby. Swilling at that time was over at the house of Hill, and I was watching through the window, or had been, and I stepped to the door to see what he was doing. He was playing with a dog in the street in front of Hill's store, and When Smith told
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me, "Kirby has slipped up on you", I ran around the building and Kirby was going in the direction of the house put up by Burnett as a lodging house. Kirby saw me comming and he turned and went near a privy. In the mean time I saw McCall running across the street and he captured him. He then brought him back in the house and told him that if he attempted to leave him again, he certainly would have to iron him. Kirby told him he had better do it, then, or something to that effect, and he ironed him then. McCall had brought Jack Swilling back into the house They were sitting on & gambling table - the two, whispering, I was talking with Charley Powell. We were playing a game of seven up and were right near them. I was listening to their conversation to hear what I could hear. Andy says "Jack, if I can get hold of a shot gun, I will take the town and take you with me." Andy says to Jack "Don't you squeal: don't you give this matter away". And Jack says to him, "Be a man," He say, "I'll never squeal"
Q. When did you start from Gillett with the prisoners?
A. The prisoners were taken aboard of the Coach. I went up the trail to make preparations to go. And I joined them at my place, formerly known as the Jack Swilling ranch.
Q. You are living at that ranch now?
A. Yes sir. At my place I got into the stage which the prisoners were in, and brought them on through. I got into the Coach at this place I had charge of, and from there I proceeded with the prisoners to this place.
Q. Was there anything said on the way up?
A. We were walking up the Arastra Hill where Arastra Creek comes in, and this man Calhoun, was with me. Kirby and I were in front comming up the hill, and I says "Kirby, what induced you to try to make your escape yesterday:
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What about this shot gun talk? He says. “in my presence” I lay'd (sic) down all day trying to make out a place to make my escape, and I decided to go to Billy Moore's saloon and get possession of the shot gun, and I would take the town and take Jack with me." Mr. Calhoun was present, and we were walking up the hill in advance of the stage.
Q. You said you received a letter from Gov. Hoyt in reference to this matter?
A. Yes sir.
Q. Asking you to assist Mr. McCall?
A. Yes sir.
Cross Examination
of the witness
L. G. Taylor
Mr. Fitch. –
Q. How long have you been in this territory?
A. I came here last July.
Q. Where did you come from?
A. From New Mexico here.
Q.
From what part of
Q. Where did you live before that?
A. Before that, I lived in
Q. What was your business there?
A. I was a distiller, and was in the wholesale whiskey business.
Q. What was Jack Swilling's condition as to sobriety, during these various conversations?
A. Sometimes, sir, he was, thought, pretty sober. At other he was drinking.
Q. What was his condition at the time he proposed to you to get up this party of banditti to stop the stages when they had money?
A. I think he was duly sober, because Mr. Hill wanted to have some business with Jack and I went with Swilling to where Hill was piling up some shingles. Mr. Hill said to me, "Jack is sober this morning, and I want him to attend to the business I have.
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Q. What was his condition at the time he proposed to have you assist him in getting the children away and when he stated that he had the money and had gotten it from the stage at Wickenburg?
A. When he first proposed it it was only some twenty minutes after he was where Mr. Hill was rebelling these shingles. He was sober at that time.
Q. Was the conversation in which he told you that he had gotten the money from the Wickenburg stage and gold at that, after the conversation in which he proposed to get up the banditti?
A. Yes, it was afterwards.
Q. Was it about twenty minutes afterwards?
A. Yes, perhaps half an hour or such a matter. We walked behind Ayres' saloon and he was telling me about the Hot Springs, how it was located, and the advantages of the place.
Q. The conversation in which he told you that he had the money necessary to send his children to Cape Girargo (sic) Missouri, the conversation in which he asked your assistance, and told you
that he had the money and in gold, and that he got it from the Wickenburg stage, that was subsequent to the conversation in which he proposed to get up this robbing expedition?
A. No sir, He told me late in the day. I came there early in the morning the morning, and about one o'clock he told me this that he had gotten the money from the stage.
Q. Was that conversation before or after the conversation in which he proposed to get up this robbing arrangement?
A. He had talked to me very early in the morning. He had spoken to me then and had been telling me the advantages of the situation -
Mr. Fitch: - (interrupting) You can answer my question. You have related a conversation you had with Jack Swilling in which he tried to get you to assist him in getting his children. You got as far as that you had been at his house or near his house, when the conversation was interrupted by Mrs. Swilling (Yes sir) Just before that interruption he had told you that he had got the money off the Wickenburg Coach (Yes sir) And he
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told you in another conversation
that he was going to send a man or had sent a man with money to buy the
A. (Interrupting) That was early in the morning. The conversation was early in the morning first, as to the Hot Springs Programme. I suppose this was about eight o'clock in the morning we first commenced talking about it, and he talked about it all the forenoon, but at intervals, and about one o'clock in the afternoon I went with him to his house.
Q. Did he show you any money at his house?
A. No sir, he did not.
Q. Was he sober at the time he went to his house?
A. He was drinking. We had taken several drinks before that.
Q. What was his condition at these other conversations to which you have testified, about the time of his arrest?
A. At the time he was arrested, it was early in the morning, very near
seven o'clock, and I regarded him as being sober.
Q. What day was he arrested?
A. I have forgotten. I did not make any minutes.
Q. In what month was he arrested?
A. He was arrested in this month of May.
Q. Was it in the early part of May?
A. No sir, he was arrested I suppose about eight or nine days ago.
Q. How long before his arrest was it that you had the conversation with him in which he proposed to get up this Hot Springs expedition?
A. That was the day before he was arrested.
Q. Was that the first conversation you had with him bearing upon this subject of robbing the Coaches?
A. No sir, I had spoken to him two days previous. I was down three times previous to the time he was arrested, and on each occasion. I had told him my chances were good for selling out, I was tired of farming, and if these blood and thunder stories he had been telling me were true, to turn himself loose, that I was with him.
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Q. How long before his arrest was the first conversation you had with him with respect to robbing the Coaches - this particular robbery, or any robbery?
A. Two days before he was arrested I had a conversation as to going with him on this trip.
Q. I don't mean simply that. I mean the first conversation you had with him in which any such thing as robbery or his projecting robbery, or his being connected with the robbery, was mentioned. How long before the arrest was it?
A. It was, I think, two days.
Q. How long was it after the burial of Col. Snively's remains?
A. I could not say. It was sometime. I think Col. Snively's remains were buried between the twenty fifth and thirtieth of last month. I have forgotten the day.
Q. What day of the week was it? A. I don't remember the day of the week. I wrote the article but paid little attention to it.
Q. Do you know the place where Col. Snively's remains were brought from?
A. No sir. I was never in that section.
Q. Do you now how far it was from the place they were buried?
A. I do not.
Q. Do you know in what direction it was?
A. No sir, not of my own personal knowledge.
Q. How much of this reward do you get for the conviction of these men?
Obj'n. Mr. Masterson.-
I object that it is Irrelevant an Immaterial. They have got to prove first, that there was a. reward offered.
The Court.- (To Atty. for defts.) You have not proved that any reward has been offered.
Mr. Fitch.- I will ask the question.
Mr. Masterson.- I renew the objection.
The Court.- The objection is sustained.
Mr. Fitch.-
Q. What amount of money has Mr. McCall promised you in the event that Jack Swilling and his associate are convicted?
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Obj. Mr. Masterson.- I object upon the same ground as before. It is the same thing; and is simply beating around the bush.
The Court.- Ask the question.
(Question repeated by Reporter)
A. He has not premised me anything, sir. I asked him whether there was any reward offered and he said there was a reward. I asked him the amount and he said he did not know.
Mr. Fitch. –
Q. Do you know of your own knowledge that a reward has been offered?
objn Mr. Masterson.- The same objection as before.
Mr. Fitch.-
I certainly propose to arrive at the fact that this witness is pecuniarily interested in securing the conviction of these men. I have a right to show the interest of the witness, and I intend to show that he is interested in securing a conviction of these men, if I can.
The Court.- You can ask the question.
(Q. Repeated by the Reporter)
A. No sir, I do not. I saw an account in the newspaper that there was a reward, but I have forgotten the amount.
Mr. Fitoh.-
Q. Do you expect to receive any reward or compensation whatever, in the event of these men being convicted?
A. I told Gen. McCall - He came to me and told me that Mr. Evans had been after the parties and had been to considerable expense in looking this business up and says he, he fee1s a little sore at you and myse1f beating him. Says I, if that is so, tell Mr. Evans that so far as I am concerned he is entit1ed to every cent of the reward, if you say there is one, offered in the case"
Mr. Fitch.- Mr. Reporter read the question.
(Q. Repeated by Reporter)
objn. Mr. Masterson.-We object. They have not proved that any reward has been offered.
The Court.- Answer the question.
I think the answer he made was a fu11 answer to it, but the witness may answer it again if he desires.
Mr. Fitch.- I want an answer "Yes", or “No” to that question (To Reporter)
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Read the question.
(Q. Repeated by Reporter)
I told them "it would cost me perhaps several hundred dollars, and that if my expenses were defrayed I exacted nothing more, and that if there was any reward offered, I was willing to grant it, and even to put up something," because I believed these parties were guilty, and it was not the reward I was marking for. I told Gen. McCall "he could give Mr. Evans all of it if he wanted it."
Mr. Fitch.- I want a categorical answer to that question.
Mr. Masterson.- Renewed his objection.
Mr. Fitch. - I desire an answer to my question. Mr. Reporter repeat the question.
(Q. Repeated by Reporter)
A. I have no knowledge that a reward has been offered.
Mr. Fitch.- Ask the question again, and keep on asking it until it is answered.
The Court.- (To Reporter) You need not ask it any more.
Mr. Fitch.-
Q. How did you expect that your expenses would amount to several hundred dollars?
A. A man living sixty odd miles, as I understand it is from here there and to be called here perhaps two or three times, - I have been here twice, now, - My expenses would run up.
Q. Your expenses as a witness, then?
A. Yes sir, and my other expenses, which I have been to in assisting to ferret out this matter.
Q. You have assisted to ferret it out?
A. Yes sir.
Q. And so far from desiring any compensation, you are willing to put up?
A. I said I believed the parties to be guilty, and that rather than see them go, I would put up something besides.
Q. To whom did you tell that?
A. I told both Mr. Evans and McCall this.
Q. Then it is your intense desire to bring them to justice that induced you?
A. Well sir, Yes sir.
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Q. Who was present playing cards with you at the time you overheard that conversation?
A. Charley Powell, at Gillett.
Q. The conversation between Mr. Swilling and Kirby about the shot gun?
A. Yes sir.
Q. Where were you seated at the table when you were playing?
A. He and I were playing a game of Seven Up, and Swilling and Andy were on the faro table, I believe it is, there directly behind us. It was perhaps six feet from there to where I was sitting. I was not interested in the game I was playing because I was listening to their conversation, and I quit the game before it was finished.
Q. Was there anybody else beside Powell and yourself playing?
A. There was nobody else but Powell and myself playing. There were some other parties there. Silby, I think, was there, and somebody else.
Q. How were they situated with reference to you? How far were these other parties from you?
A. They were sitting around the table. I think Levy was present sitting there watching the game.
Q. You and .Mr. Powell were the only ones playing?
A. We were playing.
Q. And the others were lookers on?
A. Yes sir.
Q. Si1sby was one of them?
A. I think so.
Q. And the other?
A. I think Mr. Levy was there.
Q. Those are both citizens of Gillett?
A. They were there. I think those two gent1emen were there watching the game.
Q. What is your business?
A. I am running some dairies down near Gillett. One is just below Gillett down the creek, and I am running one of them on the ranch formerly occupied by J. W. Swilling, and the other one is the next ranch on which I have some catt1e, out perhaps five or six hundred yards below. The third ranch is half a mile
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below the Mill at Gillett.
Q. Is there any controversy between you and Mr. Swilling respecting one of those ranches?
A. Mr. Swilling came and asked me to jump a ranch, and stated his reasons. He said that Head had a mortgage on it for eight hundred and fifty dollars, and that he had leased the ranch to L. A. Stephens for three years and if Stephens lifts the mortgage I will never be able to pay him Therefore, I had rather see you jump it than to see these parties get possession of it.
On the second of May the weather got pretty hot. I had some men burning charcoal, and one of them to1d me he was going to ranch it, and take a ranch. I rode over on horse-back in order to keep these other men from jumping it, and laid it out. I looked for the boundaries but never found any boundaries, and therefore I went and set up my monuments and notice, such as I be1ieved that one could ho1d under. Afterwards in a conversation with Swilling I told him what I had done. He shook hands with me and says "You done right", and says "If there is anything to be made out of the wood there, I want you to make it."
Q. Then Head and Stephens were the parties to be beaten by this arrangement?
A. That is what he told met sir.
Q. In these conversations you had with Mr. Swilling which you have related, in which he made these admissions you speak of, at any of these times, was there anybody present but yourse1f and him? You have related several conversations with Mr. Swilling at different times, in which he referred to a plan to rob stages. I ask you if at any of these conversations, anybody was present except yourse1f and Mr. Swilling?
A.- I proposed to sit down in the shade.
Mr. Fitch. - ( Interrupting) Please answer my question?
A. There was no one else present, sir.
Q. When did you first come to
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A. In July last.
Q. What place did you come to?
A. To Prescott sir, first.
Q. When you first went to this section of Country, where did you go to?
A. I stopped at the Peck and mined there for sometime.
Q. When you went down to Gillett or the place you now are, where did you first go to?
A. To Jack Swilling's ranch.
Q. When was that?
A. In October, sir.
Q. How were you situated at that time as regards means?
A. Well sir, I was running as light as a cork.
Q. You went to Swilling' s ranch and stopped there?
A. No sir. I stopped below his ranch. I had a little money, and two of us had a couple of horses.
Q. You did not stop at Swilling's house?
A. No sir.
Q. You did not eat there?
A. I took only one meal at Swilling’s house during that fall.
Q. You did not receive any attention or favors from him or assistance?
A. Mr. Swilling came to me and I think Johnson traded some cattle for some flour, if I remember right. And he requested L. A. Stevens employees to do some butchering. If that was any assistance, of course we made something out of that. We butchered for the Tip Top, Company, sometime. Cattle that belonged at that time to Swilling and L. A. Stevens.
Q. Did you
state to Mr. Swilling about the first of April last, at or near his place, that
you had come to
A. I told him two days previous to the time he was arrested. I told him that.
Q. That was with the view of drawing out from him some statements with respect to this robbery?
A. Mr. McCall and myself had agreed upon the proposition,
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and I worked accordingly.
Q. You were assisting Mr. McCall?
A. Yes sir.
Q. And you were doing it all with a view to the punishment of these offenders? You had no expectation of getting anything out of it?
A. At that time I supposed if there was any reward offered that I would be entitled to it in case they were convicted.
Q. Do you not think so yet?
A. I think I should be. I think I have done enough for that.
Q. So do
A. Yes sir. I made the declaration to give this information long before the reward was offered. I told Edwards if he saw any of the officers hunting after stage robbers to send them to me, that I thought I could give them information which would lead to the arrest of the parties.
Q. You did not expect anything yourself?
A. Not at that time.
Q. Then I understand you to say, at the present time there is no understanding or agreement between you and anybody, by which you are to receive any definite portion of any reward that may be obtained?
A. I don't know what arrangement Mr. McCall had made with Mr. Evans. He made the arrangement. I told him that rather than Evans should be left out of this matter, I was willing to give all of mine, and a little more, rather than to see the parties go.
Q. Where were you on the 19th of April?
A. Well, I was at my place.
Q. Where?
A. Down where I
live. Where Black Canon empties into the
Q. What were you doing?
A. I was tending around.
Q. Where were you on the 20th of April?
A. At Gillett, I think, but I am not certain.
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Q. Can you name any body you saw on the 19th or 20th of April any place about Gillett?
A. I can name the hands employed there at my place.
--------------------------------------
Here the Court took a recess
until One O'clock P. M.
--------------------------------------
(Afternoon Session)
1 P. M. (Witness Taylor on the stand)
Direct Exam
Mr. Masterson.
Q. In your examination this morning, you related a conversation between you and Kirby. Who was present there?
A. This man Calhoun was present.
Q. Do you know him?
A. I know him when I see him. I asked him his name last night. I think he told me it was Charles Calhoun.
Q. You stated also in your examination that you had a conversation or overheard a conversation by Kirby in the presence of Mr. Cate -
A. No sir I did not state anything of the sort.
Q. What conversation, if any, did you have with Kirby, or what did you hear Kirby say in the presence of Mr. C. F. Cate?
Mr. Fitch.-
Q. Where and when was this? Was it after the arrest?
Mr. Masterson.-
Q. Was it immediately after the arrest?
A. No sir, it was on the following evening, as we were bringing the prisoners to town. That was after they were arrested.
Mr. Masterson.- Proceed?
A. I believe Mr. Cate has a saloon at Tip Top, and is engaged in mining.
Mr. Fitch.-
Q. Was this conversation with Mr. Kirby, when he was in your custody?
A. It was while
we were conveying him from Gillett to
Mr. Masterson.-
Q. Where was this conversation, and state what it was?
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A. We were at Session's Ranch.
Q. Where is that?
A. It is beyond
Q. The stage stops "there?
A. Yes sir. We stopped for supper, and stayed there all night. While we were there I was out several times in the evening with Swilling. He claimed that his bowels were in a bad condition, and Mr. McCall and I were out with him very frequently. Mr. McCall on one occasion was out on the other side of the house. Andy was sitting at the foot of the bed, and I was leaning against the foot of the bed. Judge Cates was on the bed, apparently asleep, as I thought. Andy punched me and say’s he "Where is old Jack?" I said to him, "He is outside talking to Mr. McCall". Says he "What is he talking to him about" Says he “That Old Cock Sucking Son of a Bitch is liable to squeal and give me dead away in this arrangement" He says "If he does he had better be in Hell." I says "Andy shut your mouth, he won't do anything of the kind".
Q. Who was there at that time?
A. Nobody' but Judge Cates, Andy Kirby and myself. Mr. Cates was on the bed and I was leaning against the bed.
Q. Where was Kirby when this conversation took place?
A. He was at my side, and I was leaning against the foot of the bed.
Q. How far away from Mr. Cate were you when that took place?
A. Not more than perhaps four and a half feet. I was leaning against the railing near the foot-board of the bed, facing the stove.
(Further Cross Examn waived)
----- “ ----
Testimony of
Mr. W. H. H. McCall
Called on part of plaintiff
Sworn: -
Mr. Masterson. –
Q. State your name, age and occupation?
A. My name is W. H. H. McCall, I am thirty seven years of age, and my
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business, the lumber business.
Q. How long have you been in Yavapai County Arizona?
A. A year the ninth of June next.
Q. Where did you come from before you came here?
A. From the
Q. What is your present occupation?
A. I have been
a portion of the time since comming to
Q. Are you acquainted with J. W. Swilling and Andrew Kirby?
A. Yes sir.
Q. How long have you known Swilling and where did you see him?
A. I have known
him by sight for six months, I think. Am not positive about that. I have seen
him in
Q. When first did you meet Kirby?
A. On the morning of the 15th of May - the present month.
Q. Where was that?
A. At Gillett.
Q. How came you to go to Gillett?
A. I was deputized (sic) by Sheriff Bowen.
Q. For what purpose?
A. To go to Gillett and see Mr. Taylor.
Q. Which Mr. Taylor?
A. L. G. Taylor, the witness who has just left the stand.
Q. Did you go?
A. Yes sir.
Q. What was your business there to see Mr. Taylor about?
Objn. Mr. Fitch.- I object. It is Immaterial and Irrelevant.
Mr. Masterson.-
Q. Was it in reference to arresting these parties now on examination?
Mr. Fitch.- That does not make any difference, -.the conversation had between him and Taylor.
Mr. Masterson.-
Q. State the object of your visit to Gillett?
Mr. Fitch.- You cannot hold
these defendants by the business of the witness with
Mr. Masterson.- We propose to connect it immediately.
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Mr. Fitch.- If he knows anything of his own knowledge, or if it is any thing which was said in the presence of Mr. Swilling or Mr. Kirby, that is another thing.
Mr. Masterson.- I ask the witness the ostensible object of his visit to Gillett?
The Court.- Answer the question.
A. I did not go to Gillett to arrest Kirby and Swilling. I went there to investigate matters concerning the stage robbery, but after investigation I found that Kirby and Swilling were the men.
Mr. Masterson.-
Q. Did you arrest these parties?
A. Yes sir.
Q. Where?
A. In a saloon at Gillett. I don't know the proprietor's name or the name of the saloon.
Q. Was that the first time you had met Swilling?
A. Since I had
seen him in
Q. You placed him and Kirby together and took charge of them?
A. Yes sir.
Q. What did you do after you took charge of them?
A. I disarmed Kirby first. Swilling had nothing with him, but Kirby had a Smith and Weston.
Q. Did you have any conversation with Swilling immediately after his arrest at Gillett?
A. He asked me what he was arrested for and by what authority. I read him my authority and told him I would make it known at the proper time, what he was arrested for. In a few minutes afterwards he wanted me to go to Mr. Hill's store and get him some Pain Killer. He was complaining about his bowels, and I did so. Right in the store he told Mr. Hill that he had been arrested by me for robbing the stage.
Q. Did you have any conversation with Swilling after that, sir?
A. Probably an hour afterwards, while I had him at this saloon, Smith & Levy's I believe it is, they were both sitting on the faro table, Kirby and Swilling, and Swilling said "he would be damned if he wouldn't
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turn States Evidence before he would go to
Q. Let me understand you again. Who was present at that time?
A. I can't say. There were several. They were running in and out shortly after the arrest, and I am not acquainted with but few. My attention was with these parties alone, and I did not care anything about the outsiders, and I did not talk with them on the subject at all.
Q. Did Mr. Swilling when arrested ask you what he was arrested for?
A. Yes sir.
Q. Did he intimate anything in his conversation, what he was arrested for?
A. Yes sir, he acknowledged to Mr. Hill that he was arrested for robbing the stage.
Q. Was it in Mr. Hill's store that he said "he would be damned if he would not turn States evidence before he would go to Yuma for robbing that stage"?
A.
No. that was in Levy's saloon, where I kept him on until he
was started for
Q. How long was it after he was arrested until he made this remark?
A. It might have been an hour. It was a short time.
Q. Was there anything further after that time said by Swilling or Kirby - Had you any conversation with Kirby?
A. No sir.
Q. Did you arrest them early in the
morning? What time did you start from Gillett for
A. We left Swilling's ranch, I think, a little before five o'clock in the morning. That is six miles from (by the regular traveled road, but is only three and half by the trail) Gillett. I did not go to Gillett when I left here. I stopped at Swilling's ranch. I left there a little before five o'clock, or about sunrise on the morning of the 15th. That was the day they were arrested.
Q. Did you depart from Gillett with the prisoners immediately after you arrested them, or did you stop over?
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A. It was the next morning.
Q. You stayed in Gillett over twenty tour hours?
A. Yes, it was a little over. I did not leave until eight o'clock and they were arrested about half past six the morning before.
Q. During the time you had Swilling under arrest, did he mention anything to you at all, or state what he did or said?
A. What I have stated is about all in regard to Swilling. Kirby tried several times to get away. One time when Kirby got away, I brought him back and told him if he would not behave himself I would have to put irons on him, and he made some remark at the time that caused me to think I had better do so, so I ironed him and brought him up, and kept the irons on until the next morning, when I took him out to let him wash, and told him if he would behave himself I would not put them on any more. He gave me no more trouble from there here.
Q. That is about all that took place between you and Swilling and Kirby, then?
A. Yes sir.
Q. Did Mr. Swilling and Kirby make any remarks to you about Munroe or anything of that sort?
A. I can't say positively, they did.
Cross Examination
of the witness
W. H. H. McCall
Mr. Fitch.
Q. Mr. McCall, at the time Mr. Swilling stated to you that he would turn states evidence before going to Yuma - Where do you say that remark took place?
A. In Smith & Levy's saloon. I did not say that he directed his conversation to me. It was a general and casual remark. I was not speaking to him at the time.
Q. Where was he at that time?
A. He was sitting on the faro table and Kirby was sitting on the table at the same time.
Q. Was Mr. Taylor in that saloon?
A. At that time; no sir, not to my knowledge.
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Q. Was there a game of seven up proceeding at the table immediately adjacent to this?
A. No sir, not to my know knowledge. I don't think there was.
Q. Who else was in the saloon?
A. Smith and Levy or one of the proprietors. I don't know which one. There were others in there. I think Silsby was in there, but I am not positive as to that. He was in and out during the day. That is his headquarters.
Q. Were there any others present?
A. Not that I know the name of.
Q. You have been acting in procuring the arrest of Mr. Swilling?
A. Yes sir. .
Q. You were at that time?
A. Yes sir, and have been since, also.
Q. Why did you not get the names and the evidence of these persons who were present at the time? This was a wide admission?
A. I think that evidence will be brought on the stand to that effect.
Q. You have been acting in this case as a sort of a detective have you not?
A. Yes sir.
Q. You are interested in securing the conviction of these men?
A. Yes sir.
Q. You are?
A. Yes: if I had not thought them guilty I should never have made the arrest.
Q. Do you expect to obtain any reward or compensation?
A. I know nothing about reward and did not go for them with that expectation, but if there is any reward it is comming to me.
Q. In case of their conviction, you expect it is comming to you?
A. I should think so.
Q. How long before the time of the arrest was it that you took charge of the case?
A. I was deputized on the 9th day of May.
Q. Did you commence then to look out for it?
A. No sir, I could not take the coach until the next day.
Q. On the 10th of May, then, you did?
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A. Yes sir.
Q. That is all.
Re Dirct Examn
W. H. H. McCall.
Mr. Masterson.
Q. Did you have any special Commission or authority outside of the Sheriff Mr. Bowers, from the Governor of the territory?
Mr. Fitch.
Adman. I admit that. I do not dispute that.
Subscribed and sworn to (signature)
before me this 28th W. H. H. McCall
day of May 1878
H. H. Cartter, U S Court Com 3rd Dist
Testimony of
Charles Calhoun
Called on part of plaintiff
Sworn: -
Mr. Masterson.
Q. Your name, age and occupation?
A. I am thirty three years old. I follow mining for a living and for the last six months I have been living in Globe District.
Q. How long have you been in Yavapai County Arizona?
A. I should judge about 15 days.
Q. Are you acquainted with Kirby?
A. I met him comming (sic) up on the stage a short time after the arrest.
Q. Who was with them?
A. Mr. McCall and Mr. Taylor, I believe. I was not personally acquainted with any of them.
Q. Do you remember getting out of the stage on that trip somewhere in the vicinity of Arastra Creek?
A. We got out of the stage on several occasions to walk up hill - several places.
Q. Do you recollect of Kirby stating in your presence, to Taylor
Mr. Fitch.- Ask him what he stated, Don't lead him.
Mr. Masterson.- I am not leading him.
Q. What was stated between Taylor and Kirby in your presence, going up that hill?
A. Mr. Taylor made some remark in regard to what he meant by talking about a shot-gun the night previous to this, and he says "If I could have got a shot-gun, I would have cleaned the town out." That is
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about all I know of it. That is the only conversation I heard.
Q. That is about all you heard?
A. Yes sir.
Q. Did he state anything further in that conversation, about Swilling being with him?
A. He might have stated it. I would not be positive.
( signature)
Charles Calhoun
Subscribed: and sworn to before
me this 28th day of May 1878
H. H. Oartter
U S Com
3 Dist A.T.
(Cross Examination)
Waived.
Messrs Levy and Frank Smith sworn
for the plaintiff
Testimony of
Frank Smith.
Called on part of plff.
Had been sworn.
Mr. Masterson. –
Q. What is your name where do you reside and what is your occupation?
A. Frank Smith. I reside at Gillett and my occupation is keeping a saloon there.
Q. Are you acquainted with Swilling and Kirby?
A. Yes sir.
Q. Did you see the parties after the arrest?
A. Yes sir.
Q. Where were they arrested, if you know?
A. I did not see the arrest.
Q. Were they arrested in your saloon?
A. No sir.
Q. Did you see them after they were arrested, and if so, whose company were they in, and where did you see them?
A. The first time I saw them they come in with Deputy Sheriff Burnett and Mr. McCall come in the saloon there and the parties was disarmed in the saloon.
Q. In your saloon?
A. Yes sir.
Q. Who was present there besides the Deputy Sheriff, Mr. McCall and yourself?
A. I could not say who was present, but there was a. number of men in the house besides ourselves.
Q. Was this immediately or an hour or so after the arrest on the day of the arrest?
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A. Well, I should judge it was half an hour or so after the arrest.
Q. Did you hear Swilling say anything at the time and place you have mentioned?
A. I don't think that I recollect of hearing him say anything, that I know of.
Q. Did he say anything at all?
A. There was a good deal of talk.
Q. Did you hear him say anything in reference to robbing of the Wickenburg Stage?
A. I heard him make the remark, says he "I am arrested for robbing the stage," Which remark he made several times during the day.
Q. Did he state anything in reference to the matter besides being arrested for robbing the stage?
A. Not that I know of.
Q. He merely made the remark that he had been arrested for robbing the stage?
A. Yes sir.
Q. He made that remark in your presence?
A. Yes sir.
Q. He did not state anything at all that you heard, about the stage robbery or anything in that connection - about the parties involved in it?
A. No sir.
Q. That is about all you heard him say? You did not hear him say anything else?
A. No sir.
Q. How long did he stay in your place of business?
A. From the time he was arrested until the next morning when the stage left. He went out several times during the day.
Q. And you paid no particular attention to Swilling and Kirby, but kept on your business?
A. I paid no particular attention to them.
Cross Examination
of the witness
Frank Smith.
Mr. Fitch.
Q. What was Mr. Swilling's condition that day, as to sobriety?
A. I can't say what condition he was in, in the morning, but he had been drinking for the last three or four months. I don't recollect whether he was in the saloon that morning before he was arrested, or not.
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Q. Was he under the inf1uenoe of liquor when you saw him?
A. Well, no.
Q. Had he been on a drunk before that time?
A. Yes sir, off and on every day or two, he was drinking.
Q. Was he not on that day from the effect of previous drinking or from drinking that day, under the inf1uence of liquor? I do not mean under its direct influence at the time, but was he not on a spree?
A. You might call it on a spree.
Q. Had he not been crazy drunk for two or three weeks before that'?
A. Well I don't know. Mr. Swilling sometimes or some days was very sober, and came around very sensible, and other days he was full. That is as near as I can tell.
( signature) Frank Smith
Subscribed and sworn to before me
this 28th day of May 1878
H. H. Cartter
3d Diet A.T.
Testimony of
L. Levy,
Called on part of plff.
Sworn:
Mr. Masterson.
Q. State your name age and occupation?
A. My name is L. Levy. Twenty seven years old. Am in the saloon business.
Q. You have a partner at Gillett?
A. Yes sir.
Q. Do you know J. W. Swilling and Andy Kirby the parties here?
A. Yes sir.
Q. Do you remember seeing them on the morning of their arrest?
A. I don't know if I saw them on the morning of the arrest but I seen them during the day after the arrest.
Q. Were you present when the arrest was made?
A. Yes sir.
Q. Where was the arrest made, was it made in your saloon?
A. Yes sir.
Q. Did Swilling state anything, or Kirby, at the time of the arrest or after the arrest, in your presence?
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A. Not as I know of, only they said Swilling was arrested for robbing the stage.
Q. They did not say anything about the stage robbery at all?
A. Not anything.
Q. Did Swilling make any remarks in your presence at all, about the Wickenburg Stage robbery?
A. Nothing only that he was arrested for robbing the stage at Wickenburg; that is all.
Q. Did he make any remark about George Munroe, in your presence on that day.
A. Only that George Munroe had been arrested for robbing the stage at Wickenburg. Kirby and Swilling said so.
Q. Did you hear them say so several times?
A. They were saying it all day.
Q. Were you around with them all day mostly?
A. I was around the saloon most all day.
Q. Did they keep them in your saloon under arrest?
A. Yes sir.
Q. Did you hear Kirby state anything about Mr. Munroe or Swilling?
A. Kirby made the same remark, that he was arrested for robbing the stage and he don't know anything about it.
Q. That he did not know anything about it?
A. That he did not know anything about it.
Q. Did Swilling make the same remark?
A. Yes sir.
Q. That he did not know anything about it?
A. I have not heard him say it.
Cross Examination
of the witness
L. Levy.
Mr. Fitch.
Q. The arrest created some news or talk about town, did it not, Mr. Levy?
A. I suppose it did. I was surprised. I did not suspect them.
Q. Every body about town understood what they were arrested for?
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A. After they was arrested, Yes.
Q. During this time they were in the saloon, did they drink any, - either of them?
A. Yes, they did drink occasionally.
Q. What was Mr. Swilling's condition that day, as to sobriety?
A. At the time he was arrested he was perfectly sober, I think.
Q. Did he get drunk afterwards?
A. He did not get drunk, but he would drink: once in a while, to keep his nerves steady.
Q. He got pretty full, did he not, before he got through?
A. He was not as drunk as I have seen him there.
Q. Had you seen him before that? A. Yes: for the last three months, nearly everyday.
Q. What was his condition during that three months: drink or sober?
A. He would start in sober in the morning and be drunk in the evening.
“-------"
On the examination the next day May 28th.
M. L. Levy came on the stand to correct a portion of his testimony given on the 27th which is as follows:
Mr. Masterson.-
Q. You were sworn yesterday, and I believe you desire to correct some of your testimony brought out by me then. You can do so now.
Mr. Levy.-
In reference to the arrest being made in the house, I testified yesterday that the parties were arrested in the house - I made a mistake and now desire to correct that testimony
(signed) S. Levy
Subscribed and sworn to before me this 28th day of May 1878
H. H. Cartter
U. S. Court-Com
3d Dist A. T.
88 ½
Testimony of
Mr. J. J. Hill.
Called on part Sworn of plff.
Sworn: -
Mr. Masterson.
Q. State your age, your name in full, and your occupation?
A. My name is J. J. Hill, my age is 54 years, and my present occupation is merchant at Gillett.
Q. For yourself, or whom?
A. For C. T. Hayden.
Q. Is that at Gillett?
A. At Gillett, yes sir.
Q How long have you been at Gillett in that business?
A. Since the 14th day of January last.
Q. Are you acquainted with Mr. Kirby and J. W. Swilling?
A. I know them.
Q. How long have you known Kirby?
A. I saw Kirby for the first time, sometime during the latter part of December last, according to my recollection.
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Q. Have you known him off and on, since that time?
A. Yes sir.
Q. How long have you known Swilling?
A. I think it was in 1872 I first
got acquainted with Swilling, at
Q. Have you known him off and on, since then?
A. Yes sir, I have been more or less acquainted with him, and I have had dealing with him more or less. That is, he has traded at the store. I was under the employ of Mr. Hayden, and he dealt with us.
Q. About the latter part of April last, state if you met Swilling near his home early in the morning, and if you had any conversation with him at that time?
A. He would stop at my store and he would be there half a dozen times a day sometimes, and we had different conversations on different subjects.
Q. The morning I desire to call your attention to if I can, was after the rain.
There had been a heavy rain, and Swilling had a bag or something, in his hands, carrying it along. This is in reference to the burial or removal of the remains of Col. Snively. It was early in the morning, if I can draw your mind to that point as to the date. It was after the heavy rain?
A. After the rain he came back. He had gone out previous in this rain. I do not know the exact date of the rain. He spoke of going out to remove these remains, and give them a decent burial
Q. He had spoken of it several times before?
A. Yes, and they got some goods to take with them on their trip to fetch these remains in.
Q. You use the word "they". Whom do you mean?
A. Kirby and
Swilling, although they told me that George Munroe was going with them over there. Whether they
did go or not, I don't know. They said they was going out on this prospect and
would return and bring the remains of
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Snively. After they re turned, Swilling came over to my house and said that they had got back from the trip and were going to give the remains a decent burria1. In addition to that, he said we had to camp out - I don't remember the place - and that in the morning he saw a trail where some parties had passed by. And then he went on in connection with this stage robbery, and told the party who had done it. He said their trail exactly corresponded with the trail of his party who had been out after these remains, on account of peculiar tracks. He said the trail would be exactly like it, and that parties might think them the guilty ones, from the fact of the trail being the same. He said the parties had robbed the stage and that they had got a gun of his. He said that Jim Rhoads had taken it while he was absent, and that Jim Rhoads had committed this robbery,: that Jim Rhoads and one Lewis, and Charley Bunnett a small man had committed the robbery, and that their trail exactly corresponded to theirs, and he said it was easy for them to be identified with the parties who had committed the robbery.
Q. Let me understand you again. He said that who had gotten his gun?
A. A man by the name of Rhoads, and he said that his, Swilling's name was on the barrel. That is what I understood him to say: that his name was on the barrel, and that it was very unfortunate that the man should have got that gun, after committing the act he had, of robbing the stage.
Q. Did he say he knew the parties who had committed the robbery?
A. Only in this way: that this party had robbed the stage. But whether he knew it or how, I don't know. He said that Jim Rhoads, Charley Bennett and one Lewis (whom I (witness) am not acquainted with) had robbed the Wickenburg Stage, and that this was their trail that passed near their camp.
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But whether he knew it or whether it was only his supposition, I am not able to state.
Q. Did he not state further in that connection, that he saw their trail?
A. Yes, he said he saw this trail, and that it came, very near where they had been camped a certain night and he may have told me the place and time, but it was "while they were out on this expedition. He said they passed very near where they had been camped during the night.
Q. Did you bring up this conversation or did he?
A. He did. He brought it up himself.
Q. He brought it up first?
A. Yes. I don't think I had heard of the robbery of the stage at the time he came back. I think probably that he was the first one who told me anything about it. I think he was the party who first told me of the robbery,
Q. Mr. Swilling was the first one who intimated to you that the stage had been robbed?
A. I think so. It was about that time. We had got the information, but I think he was probably the first party who informed me the stage had been robbed, but I may possibly be mistaken in that.
Q. Where did this conversation take place?
A. It was at my store.
Q. Mr. Hill, did he state any thing further in reference to the matter, at that time, as regards where they had camped or how he got home, or what?
A. If I recollect right, he said he had just got home that morning: that they had traveled during the night or part of the night on account of it being bad weather, to get home out of the storm. He said that, he had just got home.
Q. What time of day was this?
A. This was in the morning if I recollect right.
Q. Did he tell you how many the party consisted of, or how many horses they had?
A. The party they consisted of, he said was three; but how they were mounted,
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I don't think he told me. I know they had some animals and they got some hay of me before they started, to feed their animals on.
Q. Did you see them when they left?
A. I did not.
Q. Did you see them at any time before they left on the day they left?
A. I cannot tell you the day they left. No sir, I did not.
Q. You did not see any of them before they left?
A. No sir, because they started, probably, from Swilling's house, and my store was some distance from there, entirely outside, and of course I couldn't tell how they left, or even whether they left at all, or not. I could not say that.
Q. Did you have any further conversation with Swilling after that?
A. Swilling was at my place often, and was always in conversation about something - He generally talks a good deal about those things and all he stated I don't
recollect but I don't think there was anything that would have any relative bearing on the matter in this case.
Q. I have not had any conversation with you and I propose to ask you a few questions to find out what you do know about it. Do you remember the day Swilling and Kirby were put under arrest by Mr. McCall?
A. I do not recollect the date.
Q. Do you remember the fact?
A. I remember that fact, yes sir.
Q. Bearing in mind that fact of his being arrested and the fact of his telling you
what you have related, do you remember whether you had any conversation with Mr. Swilling or with Kirby between those dates, at your store, bearing upon the stage robbery at Wickenburg, at all?
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A. Well, He often mentioned this same thing I have stated.
Q. He reiterated the same thing you have stated?
A. Yes, I think he has done so often at my place, until after he was arrested, and on the day of his arrest he came over across the street to my store with Mr. McCall and came in and asked for something. I believe it was some Jamaica Ginger or something of the kind. He introduced me to Gen. McCall and says, "Here is Gen. McCall who has come all the way from Washington to arrest me and Any Kirby for robbing the stage, and he has George Munroe in irons in Wickenburg. And says he "Of course we did it" and went on with an oath and "By God we did it". I don't know what he meant by it, I only know those were his words.
Q. Did you hear any conversation after the arrest, between him and Kirby?
A. Well, I think they both came over to my place for something during the day. He was in there, Swilling, a number of times during the day, and Kirby once or twice, I don't know what number of times. Of course there was talk during the day
Q. (Interrupting) Do you know of your own knowledge whether Burnham went with that party or not?
A. I do not.
Q. Do you remember seeing Barnum at Gillett during the absence of Kirby and Swilling after their departure for these remains?
A. I am not positive, but I am under the impression that I saw him once or twice during their absence. But I am not positive to that being the case because they were matters I paid little attention to. And my own business occupies my mind - and I have a very short memory about other peoples affairs, at any rate.
99)
100)
Cross Examination
of the witness.
Mr. J. J. Hill. -
Mr. Fitch. –
Q. How was Swilling on that day of the arrest, sober or pretty full?
A. On his first visit to my place after the arrest, he was as sober as a man would be in the morning, who is in the habit of drinking as Swilling had been in the habit of doing for a number of days there and during the day, I should say, He was not very much intoxicated then.
Q. That is as sober as a man would naturally be in the morning, who had been continuously drinking before that. He had been drinking pretty heavy for several weeks before that had he not?
A. Yes sir, And that day at sometime during the day I saw him wallowing in the street trying to go from my place over to where they had him confined.
(Reporter- Here Mr. Swilling went out in charge of the Sheriff:)
The Court.- Are you willing that the examination go on?
Mr. Fitch.- I don’t think it can go on in the absence of the prisoner. I think there are no more questions I desire to ask this witness.
(signature) J. J. Hill
Subscribed and sworn to before me
this 28th day of May 1878
H. H. Cartter
U S Court Commissioner
3d Diet A.T.
101)
( Second Day Examination )
The
vs
J. W. Swilling Andrew Kirby
and George Munroe
10.
A.M.
Mr. Fitch.- (to Mr. Masterson) I desire to reca11 Mr. Calhoun to ask him one or two questions on Cross Examination.
Mr. Masterson.- No objection.
Testimony of
Charles
Calhoun
Recalled on Cross Examination.
(Had been sworn.)
Mr. Fitch. -
Q. You testified on yesterday to some statements made by Mr. Kirby in the stage comming up "that if he had had a shot gun he would have cleaned out the town," or something to that effect. What was his condition for sobriety when he made these statements?
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103)
A. I should pronounce him under the influence of liquor a little.
Q. Was he not a good deal under the influence of liquor?
A. I am not much of a judge, but I should pronounce him under the inf1uence of liquor at the time.
Q. He was under the influence of liquor more or less?
A. Yes sir.
Q. How did the conversation arise. What brought it up?
A. Well I don't just exact1y know how the conversation did arise, but the conversation was something like this: Mr. Taylor asked him what he meant by talking about shot-guns. Well, he says, "if I could have got a shot-gun I should have cleaned the damn town out" or something of that kind.
Q. Then it was in response to a question by Mr. Taylor, and Mr. Kirby was in liquor?
A. Yes.
Re Direct Examination
of the witness
Charles Calhoun
Mr. Masterson. -
Q. He walked by himself when you were walking up the hill, did he not?
A. Yes sir.
Q. He walked up the hill without assistance?
A. Yes sir.
Q. He was able to take care of himself when walking up the hill was he?
A. Yes sir.
Q. That is all.
Further Cross
Examn
Mr. Fitch. -
Q. Did he walk straight or did he stagger?
A. Well he walked pretty straight. A person can walk pretty straight and still be under the influence of liquor. In fact I know he was under the influence of liquor because he was drinking pretty freely comming up from Tip Top.
Charles Calhoun
Subscribed and sworn to before me this 28th day of May 1878
Harley H. Cartter
3d Dist A.T.
104)
105)
Testimony of
Mr. J. J. Hill
Recalled on part of prosecution
(Had been Sworn)
Mr. Masterson.
Q. With reference to your examination yesterday. I desire to ask you if Mr. Kirby was present at the time Mr. Swilling came into your store for you to get him that Pain Killer?
A. I think not sir.
Q. Was he in your store at any time during the day that he was arrested?
A. Yes sir.
Q. In whose company was he?
A. He was with Mr. McCall. He was with one of the Officers, Either Mr. McCall or Mr. Taylor. I think he was in twice, if I am not mistaken, but it might have been more than that. He was there at least once.
Q. Was he there in the morning or in the afternoon, as near as you can recollect?
A. Well I think the first time, if he was there more than once, that it was in the afternoon or not far from noon. I would not be positive about that.
Q. Were he and Swilling there together at any time on that day?
A. At the time I recollect of his being there, Swilling was there, and I think he came over after Swilling. I recollect seeing him and Swilling there and Swilling was in conversation talking about something at the time Kirby came to the door, and Kirby sat down on the counter at the end by the door.
Q. Did you ever hear Kirby acknowledge that he was with Swilling on this expedition to remove the remains of Col. Snively?
A. I don't recollect.
Q. Do you recollect having a conversation with George Munroe in reference to the removal of the remains of Col. Snively at any time after the 25th of April last at Gillett?
A. The only conversation I
recollect of having with Mr. Munroe, was at
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107)
Q. About when was this conversation?
A. That was on yesterday a week ago. He was there under arrest and was brought up on the writ of Habeas Corpus, or the application to be released. It was not granted, but he eventually got released on bonds. They asked me some questions in regard to Swilling in regard to the arrest of the parties in this action.
Q. Was there anything said by him as regards to his going on this expedition
Objn. Mr. Fitch.- statements made by George Munroe who is not in custody here, not in the presence either of Swilling or Kirby and since the arrest of both of them, cannot be evidence against Swilling or Kirby.
Mr. Masterson.- Mr. Munroe is charged with this crime and a warrant has been issued for him, and he is a party defendant here.
Mr. Fitch.- This statement was made to Mr. Hill at a time subsequent to the arrest of both of these parties,
If Mr. Munroe were here under examination, any statement made by Munroe, would be evidence against himself. So Kirby's statements cannot bind Swilling nor can Swilling’s statements bind Kirby.
This which is sought to be introduced, is the admission of a party not here, not being examined, and it is an admission not made in the presence of Kirby or Swilling.
Mr. Masterson.- Mr. Munroe is charged as a (left blank) in this matter.
Mr. Fitoh.- But he is not here.
Mr. Masterson.- That he is not' here is no fault of ours. We have done all we could to get him here. Any thing he may have stated in the matter, I apprehend is evidence, the same as if he would turn states evidence and were brought on the stand to testify before a jury.
Mr. Fitch.- If all three of these men were here together and demanded separate trials, the admission of Munroe if made to Mr. Hill could not be received in evidence upon the trial of Swilling or Kirby. That it might be received in evidence upon
108)
the trial of Munroe, I admit.
In other words, if they were co-conspirators, the declarations of one of the conspirators not made in the presence of either of the others could not be received in evidence against the others, unless the fact of the conspiracy were first clearly established.
Nothing has been shown here tending to connect these parties with the alleged robbery, except their own admissions.
The Court.- The question will be overruled.
Mr. Masterson.-
Q. Did Munroe tell you he went on this expedition?
Objn. Mr. Fitch.- The same objection.
The Court. - The same ruling.
Mr. Masterson.-
Q. Did Mr. Swilling state to you who went on this expedition to remove the bones of Col. Snively?
A. He did.
Q. State who he said went on that expedition?
A. Mr. Kirby, George Munroe and himself.
Q. About when, to the best of your recollection, did Mr. Swilling start out on this expedition?
A. To the best of my recollection - Well, to that, I don't recollect anything about; but what I was going to say was this: Other parties, after this thing turned out, asked me if I knew about what time they did go, and turning to my books, I ascertained the facts by seeing the entries of the charges. From that I drew my conclusion that it was sometime about the 17th or 18th of April or about that time, when they went out. That was from the last articles I could see charged, which was for some articles I thought they took on that trip.
Q. Did Kirby or Swilling tell you where these remains were?
A. Yes sir.
Q. State now about where they were?
110)
111)
A. That I could not tell you; but they said it was in a certain mountain - White Mountain or something of that description, The country the mentioned I have never been in, but it is my impression that it is somewhere between Gillett and Wickenburg - It was off in that direction somewhere but what distance I don't know.
Q. Did you have any conversation at all in reference to their going on this expedition?
A. No sir.
Q Then your conversation was with Swilling entirely?
A. Rather his conversation with me. I had no interest in it. He came to my place and made statements at different times in regard to it. I paid very little attention to it.
Q. Was this after or before his return?
A. Both before and after his return.
Q. Did Swilling seem after he came back, about solicitous the fact
that these tracks had been across his and looked something similar to his track?
A. He stated it in this way: That it would be very easy for them to be identified with the parties, from the fact that their tracks were similar to those who had passed near by their camp. He stated the distance, but I disremember.
Q. Do you remember the names of the parties he told you had robbed that stage?
A. Yes. Jim Rhoads, one Lewis, and Charley Bennett.
Q. Who was the one that had taken off Swill1ngs gun?
A. Jim Rhoads: that is, according to his statement.
Q. Did you have
a conversation either before or after Swilling was arrested, with Swilling, in
reference to he Swilling, or his party going to purchase some
A. Yes sir. I think that that was after the return of the party. George Munroe was absent, and he Swilling stated that he had gone - I am not
112)
113)
positive whether to, Wickenburg but that he had gone to negotiate for the interest of some other parties, in the Hot Springs, with him. That is, he, George Munroe, was going to buy it, and if he succeeded, he Swilling intended to move out there and make that his home. That he and Munroe could live there, but with the other party who then owned the interest, he could not, and for that reason Munroe had gone to negotiate for the other partie's interest in the Hot Springs.
Q. About when, as near as you can recollect, was it? Was it during last month at your store in Gillett that this was said, or during the first portion of this month?
A. This conversation took place, as near as I can recollect, probably - It was at a number of different times that he made this same statement. And he said he was waiting for George Munroe to come back, and told me that he expected him back about the 5th of May, and I think: he probably told me half a dozen times after the 5th of May; he said he had not got back but he was expecting him every day, and he did not know whether he would move there or not.
(Cross Examination)
Waived.
( signature )
J. J. Hill
Subscribed and sworn to before me
this 28th day of May 1878
Marley H. Cartter
US Comm
of 3d Dist A.f.
Testimony of
Jessie Jackson.
Ca11ed on part of plff.
Sworn: -
Mr. Masterson. -
Q. Mr. Jackson are you acquainted with Mr. Swilling?
A. I am.
Q. Are you acquainted with George Munroe?
A. Yes sir.
Q. Also with Mr. Kirby?
A. No sir.
Q. How long have you been in this territory?
A. Nine or ten years.
Q. Did you have any conversation with Mr. Swilling in reference to the purchase of the Hot Springs property belonging to you?
114)
115)
A. A very little if any.
Q. State what you heard?
A. I can't remember.
Q. Did you have any conversation at all?
A. He merely spoke to me one morning about it.
Q. When was that?
A. The morning he came in here. It was only a word or two.
Q. That was the morning after he was here in town?
A. The morning after his arrest. There was only a word or two passed.
Q. Can you tell the Commissioner what that word or two was?
A. I don't recollect.
Q. Was it in reference to the purchase of those springs in connection with George Munroe. Did he say that George Munroe was going to purchase the Springs?
A. No sir.
Q. That was not it?
A. No sir.
Q. Did you show Swilling a letter you had received from Mr. Munroe?
A. I don't think I did. I don't remember.
Q. Do you remember telling him that you had a letter from Munroe in reference to purchasing the Springs?
A. I told him I had a letter a few days ago from George Munroe. I think I did.
Q. You don't know whether you did or not?
A. I am not positive, but I think I did.
Q. Did Swilling desire to know what the contents of that letter was, or did you tell him the contents of the letter?
A. I don't remember telling him anything.
Q. The conversation was very precursory and very short?
A. It was.
Q. Have you that letter that you received from Mr. Munroe here?
A. I have not.
Q. Is it where you can lay your hands on it handy?
A. It may be I left it at home.
Mr. Masterson.- I desire to offer a letter of recent date -
Mr. Fitch.- (Interrupting) Show it to me.
116)
Mr. Masterson.- I desire to offer in evidence that letter.
Mr. Fitch.- I object to it. Counsel had better get his letter and it here, and then we will see it.
Mr. Masterson.- (To witness)
Q. Can you get the letter?
A. It will take 25 or 30 days to bring it.
Q. If you can get it inside of a quarter of an hour, I would like to have you do so.
A. I would not agree to do that, sir.
Mr. Masterson.- I desire the letter as strengthening the chain of proof, a1though I don't suppose it is necessary, at all, I desire to show by the letter
Mr. Fitch.- I object to counsel stating what he wants to show by the letter.
Mr. Masterson.- I have identified the letter, and made it evidence that there is such a letter in existence and have brought it to the Commissioner's notice. I desire for the purpose of knowing the ruling of the Court, if it is necessary for Mr. Jackson to go and get that letter.
Mr. Fitch.- I don't know -
Mr. Masterson.- The Court has in an indirect manner passed upon this point and I want to know whether it is necessary to go for that letter or not.
Mr. Fitch.- That is candid: I want to see the letter myself. It may be that we shall not object to it.
Mr. Masterson.-
Mr.
The Court.- When you offer that letter in evidence, we will decide the question whether it shall be admitted or not.
Mr. Masterson.- (To witness)
Q. Can you find that letter?
A. I don't know whether I can or not.
Q. Where is it?
A. That is the question.
(Cross Examination. Waived)
118)
Testimony of
Mr. C. F. Cate.
Called on part of prosecution.
Sworn:
Mr. Masterson.
Q. State your name and occupation?
A. C. F. Cate. I am engaged in the saloon business.
Q. Are you a Justice of the Peace also?
A. Yes sir.
Q. How long have you been here?
A. In this town?
Q. In this County?
A. About two years and a half.
Q. Are you acquainted with Swilling and Kirby?
A. I am acquainted with Swilling and Kirby some.
Q. Have you seen them since they were or arrested or after the arrest?
A. Yes sir.
Q. Were you in Gillett at the time they were arrested?
A. No sir.
Q. Did you meet them on the way up from Gillett? Where did you see them?
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A. I had passage on the same conveyance.
Q. Do you remember the fact of your stopping over at Session's Station on the way up?
A. Yes sir. We stopped at Session's over night.
Q. Do you remember hearing any conversation that took place between Mr. Taylor and Kirby in the evening when Swilling was out with McCall, at this Session's place?
A. Yes, there was some conversation between Kirby and Mr. Taylor that evening.
Q. Well sir, can you give the Commissioner now, that conversation to the best of your recollection?
A. Well, I paid very little attention to it. I had rode all day from Gillett to Session's Station in a crowded stage, and I laid down on the bed as soon as I got there. There was a good deal of conversation between the two parties, some I remember, and some I don't remember.
Q. State what you remember?
A. I remember of Kirby enquiring where Mr. Swilling was. He was not in the room. Taylor Kirby and myself were in the same room, and Mr. Kirby remarked "that he had gone to the street or road with Mr. McCall." I heard that conversation.
Q. Was there any thing further stated in connection with his going with Mr. McCall?
A. Mr. Kirby remarked "that the Old son-of-a-gun, or something to that effect, was liable to tell on him, or give him away, or something of that sort. I paid but little attention to it. In fact I would not have remembered it if my attention had not been called to it afterwards by Mr. Taylor. He asked me if I heard the remark, and I told him I did.
Q. That was about the sum and substance of it?
A. That was about the sum and substance of it as far as I remember.
Q. This was at Session's Station?
121)
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A. Yes sir.
Q. Comming up from Gillett?
A. Yes sir.
Cross Examination
of the witness
C. F. Cate.
Mr. Fitch.
Q. What was Mr. Kirby's condition, Mr. Cates, with respect to sobriety, at that time?
A. He was considerably under the influence of liquor. In fact he had been all day, from the time he left until he arrived in town here.
ReDirect Examination
of the witness
C. F. Cate.
Mr. Masterson.
Q. Was he able to go out and walk around, or was he so considerably under the influence of liquor that he did not know what he was doing or what he said? You mean, do you not, when you say that he was considerably under the influence of liquor, that he was on what you might call an intellectual
quiet drunk?
A. At the time he left Gillett in the morning, he was quite drunk, I should consider, but during the day he sobered up a little. I was told when I left Gillett that he had been under the influence of liquor for several days. He appeared to me as if he had been on a protracted drunk, but on his way up there, he appeared to get it a little out of
him. He was more sober after he started.
---------------
Mr. F. M. Murphy
Called, on part of the prosecution
Sworn:
Here the Court took a recess until 3 O'Clock P.M.
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3 P.M.
Testimony of
T. W. Otis.
Called for plaintiff
Sworn:
Mr. Masterson.
Q. Mr. Otis, state your name, age, and present business?
A. T. W. Otis, Postmaster Prescott.
Q. How long have you been postmaster?
A. About three years.
Q. Do you
remember the fact of the
Objn Mr. Fitoh.- The question assumes a fact not proved. .
Mr. Masterson.- I ask the witness if he remembers the fact.
Objn Mr. Fitch.- I object to the question. It is leading.
The Court.- The objection will be sustained.
Mr. Masterson.-
Q. Do you know, anything about the stage robbery, in which the United States Mail was rifled?
A. Yes sir, I do.
Q. Do you know about what date it was?
Mr. Fitch.- I desire the Court to instruct the witness to testify only to what he knows of his own knowledge, and not to what he derives from Hearsay or information.
A. It was taken on the 19th of April.
Mr. Masterson.-
Q. of last April?
A. Yes sir, last April.
Q. state how you know the United States Mail was stopped and its contents rifled?
A. I am in the habit of getting returns from my Registered letters and they are as sure as the mail comes, on certain days. And I failed to get returns from these letters that were sent off on -the 19th of April.
Q. Did you send off any registered package on -the 19th of April last?
A. I did, yes sir.
Q. What was the number?
A. Number 48 was the number of the registered envelope containing the letters.
Q. What did that No. 48 contain?
125)
126)
Mr. Fitch.- I object upon this ground: The testimony of the witness William Reed, who was introduced on the part of the prosecution, shows this state of fact; The question was asked. "Were you present when the stage was loaded”?
A. Yes sir.
Q. Where was it loaded?
A. Wickenburg.
Q. Can you tell how many sacks of mail you had on?
A. I couldn't tell you how many sacks of mail I had on. I never counted them.
Q. Did you have any on?
A. Yes, I had
on several sacks of United States Mai1, for Ehrenberg,
Q. Had you any Express matter on?
A. I had Wells Fargo & Co's box.
Q. Where were you at the time the stage was stopped?
A. I was at what is called the four mile hog-back from Wickenburg. Now I submit, if Your Honor please, that the question is not competent. It is not competent to prove the absence of any thing from the United States Mail by showing that the mail was loaded at some other place than that which is
testified to by the witness who
carried the mail and alleged in the Complaint. That is, Mr. Otis cannot show what the contents of the mail
sacks were at Wickenburg by proving what was put into the mail sacks at
Mr. Masterson.- I propose to ask the witness the question in reference to the registered matter. The testimony thus far has not disclosed that this registered matter was opened and interfered with at Wickenburg, and if the gentleman proposes to do that, the burden of the proof is on him, not on us.
.
Mr. Fitoh.- The gentleman has
shown that this mail was put on board at Wickenburg. Now whether it came from
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to show there were certain valuable packages in that mail at
Prescott, but all though we all may know that the mail does go from
Mr. Masterson.- I propose to
show that it is a post office regulation that their through mail matter is not
stopped or interfered with after it leaves a point for its destination, and
that such matter as registered packages are easily traced when lost, under
their regulations: that they are governed by strict rules, and if we sent that
mail matter from Prescott, as a post office to a certain destination, San. Francisco
or
----------------------------------------------------------------------------------------------------------
with the enclosures in a post
office order, and having afterwards received advices from the other office,
namely
And if the defendants desire to prove that it started from Wickenburg or some other place, it is for them to show it and not for us. All we have to do to make out our case is to show that we properly started it on is journey, and further, that after it got on its journey, we have been advised that it has never been received at its destination, at all.
We propose to show that we enclosed certain valuable mail matter in this registered package Number 48, and that afterwards we were advised in the due course of mail that the registered package had not been received.
Mr. Fitch knows and so do we all know, that it is not necessary to present
129)
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on preliminary examination as much evidence to hold a party over, as would be required to convict before a petit jury. All we have to do is to show that there is reasonable cause to believe the party guilty of the offense charged.
Mr. Fitoh.- It is true that not as much evidence is required to authorize a the Commissioner to commit a party to await the action of the Grand Jury as would be required to secure a conviction before a petit jury: that is true. Where the case is on trial before a jury, it is necessary to establish the guilt of the defendant beyond all reasonable doubt. If there is a reasonable doubt as to the guilt of the defendant, the jury are instructed to give him the benefit of that doubt in their verdict and acquit him. That is not the rule before the Examining Magistrate. In fact the duties of the Commissioner as simulate to those imposed upon the Examining Magistrate by the territorial laws. They are a little more strict. The Commissioner must be satisfied that there is probable
cause to believe that the offense has been committed and that the defendants are guilty of that offense. He must believe that upon the evidence presented to him, a petit Jury would convict, if there was no explanatory evidence, Your Honor may hold on less evidence than that which would be necessary to convict before a petit jury, but while that is so, what evidence is admitted must be legal evidence.
The driver
testified that the mail in his charge on that day when the alleged robbery was
committed, was loaded at Wickenburg: that he had on mail for
131)
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because, we don't know here in Court from the evidence, that that mail which was loaded on the stage at Wickenburg that evening, did not come from Phoenix, Florence, or Tucson.
We say that it
is incompetent and immaterial, until they show that this mail came from
The Court.- (To witness.)
(Q. Repeated by the Reporter.) You may answer that question.
A. It contained three letters, one of which was my own that I sent as a remittance, containing checks of about $850.00 - $857.00, directed to the postmaster of San Francisco.
Mr. Masterson.
Q. What others did it contain. What other valuable Post Office matter did it contain?
Objn. Mr. Fitch.- We offer the same objection as before. The answer of the witness extended beyond the scope of the question. Properly he ought to have stopped with the words "three packages."
The Court .- You may answer that.
A. One of them was a letter containing - I am not supposed to know what they do contain – a letter sent by Mr. Buffum to the Assistant Treasurer of San Francisco.
Mr. Masterson: -
Q. What Buffum is that?
A. Wm. M. Buffum.
Q. The merchant here?
A. Yes sir. The
other was a letter sent by Mrs. Crapo, from
The Court.- I have allowed you to ask these questions, but I shall require you (The Dist. Atty.) to prove that this mail went through.
.
Mr. Masterson.- That being the complexion of the matter it will be necessary for me to send immediately by the outgoing stage and bring the postmaster up here. I am taken by surprise at the ruling of the Commissioner. I have exercised the most unusual diligence in the matter.
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Mr. Fitch.- Do you make that now as a motion for continuance, and if so, for what time?
Mr. Masterson.- I say that I am now taken by surprise at the ruling of the Commissioner in forcing me to the strict line of proof he has, and that I shall take -
The Court.- I think it can be proved, otherwise.
Mr. Masterson.- You think it can.
The Court.- I think it can.
Mr. Masterson.- In any event, if Your Honor please, I will ask for an adjournment, say for half an hour or so, until I see whether I have got the evidence that probably might prove that. But I will enunciate the class of evidence. I can prove I apprehend, by the driver that this went down, and by Mr. Otis. -
(To Witness Otis.)
Q. Did you see it loaded?
A. I did not.
Mr. Masterson.- I can prove by his deputy that this package was sent in the mail sack, but I don't know whether I can prove that
directly by the carrier. If I cannot, then I desire, if that mail has gone into the hands of the post-master at Wickenburg, to have him here. I do so because I have been surprised by the line of testimony that has been expected. I do it on very good authority. I would like to have Your Honor pass upon it, say in half an hour or so, because I desire to get that party here.
Mr. Fitch.- I propose to read from page 174 and 5 of Abotts United States Practice, upon the subject of arrest, examination and bail, before Commissioners appointed by the Circuit Courts. That is the position occupied by Your Honor. (“Reads.) I desire to say this, upon the suggestion of my friend upon the other side. There is but one class of surprise known to the practice in Courts, and that is where the party is surprised by the evidence of his adversary. A man cannot be surprised by a ruling of Court. He cannot ask a postponement of trial on the ground that the Court has surprised him by a ruling of
135)
136)
law that it enunciates. The gentlemen who come into Court should come prepared not to be surprised by any ruling of the judge who tries the case. Counsel are supposed to know the law, and if they take a wrong theory of it and then comming into Court are surprised by the Court setting them right, they are at fault in their surprise, and take the wrong theory into Court at their peril.
Mr. Masterson.- I am amused at that lengthy citation from Abott.
We have decided that your Honor will be guided by the territorial rules. That is conceded. I could not get up in a Court of final jeopardy and ask what I am now doing. Hence the gentleman's last remarks about being surprised, will not avail me there. But when I have a preliminary examination pending, and a certain line of testimony which I as an officer (the same as Mr. Fitch is an officer for his client,) understood would be perfectly sufficient' as I myself construed the law (if not making a mistake in the. law, then I come right within the prevue of the citation the gentleman has read. That if I have gone
into trial, made out my case until I get to a certain point, and the Commissioner intimates that that is not sufficient, it would then and there turn the prisoners loose! I don't think it will be entertained for a-moment by Your Honor. I desire an adjournment for half an hour or so, to inquire if that mail had passed into the hands of these carriers, enroute between here and where the stage was stopped. I desire it in good faith.
Mr. Fitch.- I am not objecting to the half hour adjournment, but to the two days.
The Court.- (To Mr. Masterson.)
I shall not require those identical packages to be traced right through. You can take the Continuance for half an hour, and during that time I will inimate to you how I think it can be proved.
Here the Court took
a recess for half an hour.
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Mr. Masterson.
Q. Mr. Otis, in what condition and what way is through mail matter put' up at your post office, and how is it sent off?
Mr. Fitch. - If he knows anything about the particular mail matter, we don't object.
Mr. Masterson.- I ask the general question.
Objn. Mr. Fitch.- You cannot prove how this mail matter was sent off by proving how mail matter is generally sent off. It is incompetent and irrelevant.
The Court.- You can answer the question.
A. We had two locks that we used, an iron lock and a brass lock. We put our registered matter in a brass lock sack, especially the through registered matter. We mean by that, the registered matter that goes out of the territory.
Q. Now in connection with that, I desire to ask you how many offices in this territory, have brass locks.
A. Three.
Q. State them?
A.
Q. A package with a brass lock on it leaving your office and directed to Yuma; Would that be opened in any Way post office?
A. It would be totally impossible for it to be opened.
Q. Did you deliver the mail on the morning of the 19th?
A. No, I did not deliver it.
Q. Who did?
A. My assistant, Mr. Dubord.
Q Have you got any return from San Francisco that this Number 48 package has been received?
Objn. Mr. Fitch.- I shall object to that. You cannot prove by the returns from San Francisco as to this particular matter not getting there, until you first show that the mail matter which left here that morning started from Wickenburg.
Mr. Masterson.- I will relieve Mr. Otis now, and call him again upon this matter.
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Mr. Fitch.- I don't know that you can show that. So you can recall him again on that point.
Cross Examination
of the witness.
Mr. T. W. Otis
Mr. Fitch.
Q. Mr. Otis, I desire to ask you one or
two questions. You mentioned in your direct examination about a registered package
containing three letters. One sent by Mr. Buffum, and one to
A. Yes sir.
Q. What check was it?
A. There were four different checks.
Q. Who were they drawn by?
A. One of them was drawn by the Bank of Arizona, to my order, on the Anglo
California Bank, for $430.00 The other, was a check sent - I think it was an Internal Revenue Return to the order of Mr. Curtis, amounting to $355.25 and the other $25.75; there were two, The fourth check was a check of Col. Reynolds, of some 340.00, I could not specify the exact amount of the last.
Q. Did you
indorse this check payable to your order to somebody in
A. Yes sir.
Q. Were all of these checks payable to order?
A. Yes sir.
Q. Then the money could not be obtained on them' without the endorsement?
A. No sir.
Q. The only effect of their loss if they were lost, would be merely the inconvenience resulting from their delay? The money could not be drawn?
A. The money could not be drawn.
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Q. That would be all?
A. Yes sir.
---"---
Testimony of
Mr. Robt. Dubord.
Called on part of plff.
Sworn:
Mr. Masterson. –
Q. State your name, age and present occupation?
A. Robt. Dubord, and age 22. Occupation assistant post master.
Q. What time do you deliver the United States Mail?
A. At six o'clock in the morning.
Q. Do you remember the fact of having delivered that mail to any parties (Yes sir) on the morning of the 19th?
A. Yes sir.
Q. Where did you deliver that mail at?
A. At the post office.
Q. To what Company or Carrier: to what person; it don't make any difference,
Did you deliver it to the stage?
A. Yes sir, I did.
Q. What stage was that?
A. The stage called the C. & A. Stage, is all I know about it.
Q. Is that the stage that carries the mail?
A. Yes sir,
Carries the mail from
Q. Did you deliver all the mail that morning?
A. Yes sir.
Q. Where was that mail going to, that you delivered?
A. It was going to different points.
Q. Along the line?
A. Some along the line.
Q. And some through?
A. And some through.
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Cross Examination
of the witness
Mr. Robot. Dubord.
Mr. Fitch.
Q. Was there any driver on the stage?
A. Yes sir.
Q. How many drivers are there on the Stage Company? (I desire to test his powers of observation, memory etc.)
A. It has two drivers. I don't believe I could testify which one. There are two drivers, but I could not testify which one of the two it was, that morning.
Q. What day of the week was it?
A. On Monday, if I ain’t mistaken.
Q. What time in the morning was it?
A. Six o'clock.
Q. Now Mr. Dubord, do you say that you delivered the mail on the stage that morning, because
you specifically recollect the delivery, or only because you are in the habit of delivering the mail, and you conclude you must have delivered it on that morning as you do on all others?
A. Yes I was in the habit of delivering the mail.
Q. That is the ground. Do you specifically remember delivering the mail on that particular morning?
A. That particular morning I do not.
Re Direct Examination
of the witness
Mr. Robt. Dubord
Mr. Masterman.
Q. The fact of your delivering the mail and doing it continuously in your employment causes you to know that you delivered it that morning? Would it not have been an unusual thing for you not to have delivered it?
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A. Yes sir.
Re Cross Examination
of the witness
Robt. Dubord
Mr. Fitch.
Q. Do you recollect how many sacks there were on, that morning?
A. Well as for the number of sacks, I couldn’t testify to the number of sacks, No.
Q. Do you remember the kind of locks that were on the sacks that morning?
A. Yes sir.
Q What kind?
A. Brass and Iron.
Q. How many brass and how many iron looks were there?
A. Two brass.
Q. How many iron?
A. Well the iron – Three iron and two brass.
Q. Then there were five sacks, were there?
A. Five or six if I ain't mistaken.
Q. Are you sure of that?
A. I won’t swear to that.
Direct Question –
Mr. Masterson.
Q. "Two brass and three iron”, What causes you to make that statement?
A. Well, that is the number we send off every morning.
147)
Testimony of
Mr. John Bullock.
called on part plff.
Sworn:
Mr. Masterson.
Q. State your name, residence, and your business?
A. My name is John Bullock.
Q. Where do you stay when you are at home?
A. In Kentucky when I am at home.
Q. I mean here. What is your stopping place here?
A. Well, I have been in the territory and prospecting and stage driving.
Q. Are you a stage driver now?
A. Yes sir.
Q. In whose employ are you?
A. Mr. Hughes employed me.
Q. What line of stages does Mr. Hughes have the Superintendency of?
A. It is
called the
Q. Then you are at present in the employ of that Company?
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A. Yes sir.
Q. In the capacity of Stage Driver?
A. Yes sir.
Q. Were you in their employ last month, sir?
A. Yes sir.
Q. How long have you been in their employ?
A. Well, Going on two months.
Q. Do you remember the stage being stopped on the 19th or 20th of last month?
A. I remember that the stage was stopped.
Q. What causes you individually to remember that fact?
A. Well I run out Mr. Reed.
Q. Explain the meaning of the term "run out Mr. Reed"?
A. When I get to Wickenburg, he takes my mail and goes on with it.
Q. Where did you get your mail from on that night you run him out?
A. I got it here at the post office.
Q. Did you take your mail right from here on that trip?
A. Well, Mr. Hughes and the hostler put the mail on the coach and I drove it to Wickenburg.
Q. After you got to Wickenburg what did you do with that mail?
A. I turn all the Brass Locks over to Mr. Reed and it is put on his coach.
Q. Why do you do that?
A. Well, it is through mail and Way post masters have nothing to do with it, sir.
Q. Do you know the fact that Mr. Reed after you ran him out, was stopped?
A. Well, not anything more than I heard.
Q. Well, I say, do you know the fact that the stage was stopped?
A. Yes sir.
Q. Do you remember how many brass-lock packages of mail matter you delivered at that time you speak of, to Mr. Reed?
A. Well, I couldn't tell you.
Q. You could not say?
A. No sir.
Q. You know the fact, though, that you delivered the mail you had received
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here in
A. Yes sir.
Q. But the number of packages you don't know?
A. No sir, but I am positive that I turned it over to him, and I helped him to put it on to his stage.
Q. Do you make
the whole trip from
A. I make it when I start out.
Q. Your destination is Wickenburg?
A. Yes sir.
Q. You stop over at Wickenburg?
A. Yes sir.
Q. Your place
of beginning is
A. Yes sir.
Cross Examination
of the witness
John Bullock.
Mr. Fitch.
Q. Do you recollect taking the mail on that particular morning or do you know it only because you know generally, that is your duty to take it? Have you any specific recollection as to that particular day?
A. I came up every morning, to get the mail. It was generally loaded by Mr. Hughes and the hostler.
Q. Where do you take it?
A. Right here at the post office.
Q. Do Mr. Hughes and the hostler come to the post office and load it now?
A. Yes sir.
Q. Now I ask you why you recollect its being done on that particular morning?
A. They have been doing it that way ever since I have been here, sir.
Q. Then it is your general recollection. You have no particular recollection of it that morning more than any other morning, have you?
A. I know there was mail put on, that morning. I am satisfied of that.
Q. How are you satisfied?
A. I see that it was on.
Q. Do you recollect that particular morning, now. Is there anything that impresses
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that particular morning on your memory, or do you know it only because you know it is your duty to do it?
A. I know there was through mail on. I see it.
Q. How many Brass Locks did you have?
A. I could not tell you how many.
Q. You don't understand my question. There are two ways by which a man may recollect a thing. One is, because he recollects specifically that particular morning: that something impressed upon your memory, that particular morning. Another way is, that you know every time you went out it was your duty to take the mail. This last way is the way you recollect this, is it not?
A. (No answer)
Q. Are you able to say how many sacks there were?
A. I could not tell you, sir.
Q. Or how many of them had iron locks?
A. I generally tender the Way sack myself and turn it over to the post master at Wickenburg.
Q. Can you now say how many sacks had brass and how many had iron looks, that morning?
A. Well, I couldn't tell you sir.
Q. How many passengers did you have that morning?
A. I had two sir.
Q What day of the week was it?
A. I couldn't tell you what day of the week it was, that I ran out.
(signed) (signature)
John Bullock
Subscribed and sworn to before
me this 28th day of May 1878
Harley H. Oartter
3d Judicial Dist
Here the Court took
a recess until
8 o'clock P.M.
154)
8 O'Clook P.M.
Testimony of John Bullock read and signed – Also the testimony of Wm. Reed read to him, and he subscribed the same.
Here the Court adjourned
until tomorrow morning
May 29/78, at 9 O'Clock.
155)
(3d Day of Examination.
9. A.M.
Mr. Masterson.- I have made up my mind to leave the case as it is and close the case on the part of the Government.
I now will Rest the Case.
Mr. Fitch.
Motion
I move, for the dismissal of the defendants upon the ground that no case has been made out against them. The Corpus Delecti, or body of the crime, has not been proved.
It must in order to hold these parties, be proved, first that a crime was committed and next that there is probable cause to believe that the defendants are the persons guilty of that crime.
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The Complaint here charges that a crime of robbery was committed.
(Reads Complaint)
It has not been shown here, to start with, that any crime has been committed.
I read from the U. S. Practice page 414.
(Argument on Motion)
I also read from the 2l9th sec. 1 Greenleaf on Evidence.
- Confessions.
(Reads)
Kirby’s case must stand, by itself. Statements made by Swilling cannot bind Kirby,
(Reads 233d sec 1 Greenleaf as to persons to be affected by confessions.)
(Reads from 2 Abott page 175.
(Argument – “Plff failed to prove this matter did not go through to its destination, etc.)
We ask the Court upon the evidence given by the plaintiff, first that Kirby be discharged because neither has any crime been proved nor any admissions been shown tending to connect him with it.
I ask, secondly, that both he and
Swilling be discharged because it has not been shown that the Crime as charged
in the Complaint has been Committed: Namely, that the mail of the
Mr. Masterson. -
The motion is made at this time to relieve the defendants from entering into the
merits of the Case, on the ground of some alleged technicality, or inadvertence or mistake and the total and absolute failure to make out a case.
(Argument against Motion of deft.)
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And as to the admissions of Swilling, they have been admitted on this examination, no objection being made whatever, to their comming up in testimony, and we think it is now too late for Counsel on part of defendants to come in and say they are not legal testimony, and that Your Honor will not pass upon them.
(Reads 1st Greenleaf on Evidence beginning at section 216.
Mr. Fitch.- I do not say that Confessions are no evidence of guilt.
Mr. Masterson.- You say that the Corpus delecti has not been proved unless by the admissions or confessions of Swilling, And there has been no point made by Col Fitch that these confessions of Swilling were made under duress at all.
Mr. Fitch.- (Argument.)
I do not disagree with the gentleman that Your Honor can hold the parties for a less
offense than that charged, if the testimony discloses the fact that they are probably guilty of such offense, and I now ask in good faith, and will pause for a reply from the Dist. Atty. if the testimony cannot justify Your Honor in holding the defendants for the offense charged, What offense do you want them held for?
He maintains that judicious silence which made General Grant immortal!
Here the Court took a
recess until 3 O'Clock P.M.
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3 O'Clock P.M.
The Court.- The motion with. respect to Kirby is sustained, but with regard to Swilling, it will be overruled.
-------------
Mr. Fitch.- I will consent that in the territorial cases, all of the evidence taken in this case shall be admitted as given in the territorial cases: if that is satisfactory to the District Attorney. Of course I don't cut it at that. He can give any additional or further testimony he cares to, and I can do the same.
Mr. Webber.- I should prefer that the case of the territory against these defendants, be postponed until after the cases by the United States have been determined.
Mr. Fitch.- So far as one of these parties is concerned (Mr. Kirby) it is so now.
Mr. Weber.- If the Court please, Mr. Kirby was in charge of the United States Marshall but has been discharged. I now ask that the Sheriff come forward and take him in charge of the territory.
The Court.- Some of the witnesses who have testified desire to go away. Is there any objection to reading the testimony to the witnesses if you are not present?
Mr. Fitch.- Not at all, but I think Mr. Swilling would have to be here.
Mr. Masterson.- I think myself it would be a convenience to the parties as they are anxious to get away.
Mr. Fitch.- I will consent that the testimony may be read to the witnesses in the absence of Mr. Swilling. I don't think it is important. I will impart what validity to it I can by consenting to go ahead and read it in his absence.
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Mr. Weber.- Mr. Fitch, will you consent to have the case of the territory against these same defendants continued- until tomorrow morning?
Mr. Fitch.- Yes sir.
Mr. Weber.- At 10 O'Clock A.M.?
Mr. Fitch.- Yes.
Here the Court adjourned until
tomorrow morning, May 30th
A.D. 1878, at 10 O'Clock.
(4th Day of Examination)
10 A.M.
Mr. Fitch.- I desire Your Honor to instruct the Sheriff to bring Mr. Kirby up to be used as a witness.
The Court instructed the Sheriff accordingly.
Testimony of.
James C. Burnett.
Called on part of defense
Sworn:
Mr. Fitch. –
Q. State your name, age, residence and occupation?
A. James C.
Burnett,
45 years of age, town of
Q. What official capacity, if any have you been occupying out there?
A. I have been
acting in the capacity of Deputy Sheriff for Bowers at the town of
164
Q. Are you acquainted with Jack Swilling?
A. Yes sir.
Q. State to the Commissioner what, if any-thing, you know with respect to Mr. Swilling's expedition in search of Col. Snively’s remains?
A. Well, I have heard him talk for two or three months of going out after the remains of Co. Snively, and I was there at his place when he started to go on this trip.
Q. About what time was that?
A. I couldn't swear as to the date, but it was sometime about the middle of April.
Q. Who were in the,party?
A. George Munroe, Andy Kirby and Mr. Swilling.
Q. State Swilling's condition for sobriety at the time of starting on that expedition?
A. Mr. Swilling had been drinking pretty heavy for sometime, and I talked to him two or three times, and he promised to go off on that trip and sober up. That day they left I went down there and helped pack up his traps and stayed there until they started, and he was under the influence of liquor when he went off.
Q. State his condition with respect to being willing to go, or otherwise?
A. He needed some little urging to get him to go that day, and was cross, and was cross and pettish, and started off on foot from the house, instead of getting on his horse and riding off.
Q. What time of day was it they started?
A. I think it was somewheres in the forenoon or along towards noon. I couldn't swear positively as to the time.
Q. You urged him to go?
A. Yes sir I did.
Q. You say that you did that because you desired him to get off his spree?
A. I wanted him to go. I thought the trip would sober him up.
Q. What did the party take with them in the way of arms?
A. I had all of Swilling's arms.
Q. What did they consist of?
A. Two shot guns, a white handled six-shooter and a rifle. The rifle I
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gave to Kirby before they started out, as he thought he might have a chance to shoot a deer or something.
Q. How did you happen to have charge of Swilling's guns?
A. Swilling had been drinking freely and I had his arms keeping them so he would not do himself harm or any body else.
Q. Was the rifle you gave Kirby the only arm you gave him out of the outfit? A. Yes sir.
Q. Did you keep the rest of the arms yourself?
A. Yes sir.
Q. How long did you keep them?
A. Until sometime after he had returned.
Q. What arms did Munroe have?
A. I saw no arms with Munroe at the time they started.
Q. What arms did Swilling have?
A. Swilling had nothing.
Q. Are you sure of that?
A. I am sure of that. That is; nothing in sight. I had his pistol and two shot guns. One shot gun he calls Old Mary.
Q. How long were these men absent?
A. I couldn't swear positively, as to the time, but I think they were gone about three days.
Q. Did you see them on their return?
A. I was not at the house after their return, but saw them shortly after their return, and Swilling told me he had brought back the remains of Col. Snively; but I did not see them.
Q. Were you in Gillett at the time of the arrest of Swilling and Kirby?
A. Yes sir.
Q. Did you participate in it?
A. Yes sir.
Q. Where were they arrested?
A. They were arrested in the saloon known as Anders and Shingles.
Q. About what time?
A. Sometime in the forenoon.
Q. What was the condition of Mr. Swilling at the time of his arrest as to being sober or otherwise?
A. He was under the influence of liquor. At the time he was arrested he and Kirby were standing at the bar drinking: he and Kirby and Taylor and one or two more, and he continued drinking, after the arrest. He drank pretty heavy after the arrest.
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Q. You have been acquainted with Mr. Swilling some time?
A. I have known Mr. Swilling since March, I think, or February, I should say.
Q. What are Mr. Swilling's habits of speech and action when he is under the influence of liquor?
A. Well, he is
very talkative, and especially in telling what he has done. He has killed men
all the way from Ucatan clear up into
Q. He is inclined to be somewhat boastful?
A. Yes sir.
Q. Talkative and boastful?
A. Yes. A
common statement of his, is, that he has killed a Dutchman in every hog trail and cow path in
Q. If any depredation is committed, he is apt to claim to be the author of it?
A. Yes sir. When under the influence of liquor.
Q. In these statements he is apt to be a little fanciful or a little economical of the truth, is he not?
A. I should think he stretched his conscience at times.
Q. Was this party mounted or on foot, when they went after the remains?
A. They had three horses and one pack mule. I helped to pack the mule, myself, before they started out – to put their traps on it.
Q. Describe the horse Swilling rode?
A. I don't know that I could.
Q. Can you describe any of the horses?
A. Only one, and that was a mare that I think Mr. Kirby rode, if I am not mistaken.
Q. Did this expedition succeed in sobering Swilling up, or not, or was he still on his drunk when he got back?
A. Well, he was sober when he came back. That is, I considered him sober when he came back.
Cross Examination
of the witness
James C. Burnett.
Mr. Masterson.
Q. When did he come back?
A. I could not say.
Q. Did you see him the day he came?
A. I did, but as regards the time, I could not swear, exactly.
Q. How long were they gone, did you say?
170)
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A. I think it was about three days or a little over three days that they were gone.
Q. Did you have any conversation with him about the stage robbery, after he came back?
A. No sir, not at that time.
Q. Did you afterwards?
A. I heard him boasting afterwards in a joking sort of a way, that he and Kirby and Munroe had done it. I heard that, not once, but a hundred times.
Q. Was Kirby or Munroe present with him at any of these times he said so?
A. Mr. Kirby was present.
Q. What did Kirby do?
A. Mr. Kirby told him he thought he was acting very foolish in talking that way.
Q. Was that about all that was said?
A. That was about all. After they were arrested they were thoroughly soaked with whiskey and kept so until the time they left Gillett.
Q. These conversations you refer to were after the arrest?
A. After the arrest; yes sir.
Q. Did you see the party start away?
A. Yes sir. I was there and helped pack their pack animal up, and insisted on Swilling going. He had some idea of laying over for another day, but he had been drinking, so I was anxious to get him off.
Q. Was George Munroe armed when you saw him?
A. I saw no arms on him.
Q. You saw no arms at all with him?
A. No sir.
Q. Do you remember the day of the week they started off?
A. No sir, I couldn't say as to the day of the week.
Q. Do you remember, the day of the month they started off?
A. No sir, I could not swear as to the day of the month.
Q. Do you know that it was in the month of April?
A. Yes sir.
Q. Was it in the forepart of the month or middle of the month?
A. I think it was about the middle of the month of April.
Q. Did it storm during the time they left, or during the time they were away?
172)
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A. I think it stormed that night or the next day. I could not swear positively whether it was the day they left or the next day.
Q. George Munroe might have had a shot gun and you not know it?
A. If he had had a shot gun in leaving the house, I think I would have been very apt to have seen it.
Q. Who was also present when the party left?
A. There was no one present except Mr. Swilling's wife and family.
Q. You were the only outside party?
A. I was the only outside party at the time. There was a young man there, but the only name I know him by is Jim. They call him Cherokee Jim.
Q. He used to be known as Jack's Indian boy?
A. No sir. He is not an Indian boy, but he has the name of Cherokee, He was there at the same time and went off after they started.
Q. Is he the Indian boy that Swilling raised?
A. No sir.
Q. You know the one I mean?
A. Yes sir, but it was not that party. His name is Cavial. He was not there.
Q. What kind of a rifle was this Kirby had?
A. I don't know the name of the different rifles.
Q. Describe
it? Henry,
A. Well sir, I couldn't describe the rifle, but if I saw one like it here, I could tell you, but as to the name of the rifle, I couldn’t tell you.
Q. You know what a carbine is, do you not?
A. I think I know what a carbine is.
Q. Was it a breech loader or a muzzle loader?
A. I think it was a breech loading rifle, but I am not positive that it was.
Q. Did the stock go clear up to the end of the barrel?
A. That, I could not swear to.
Q. Had you ever seen the rifle before that morning?
174.
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A. I saw the rifle, because I had it in my possession at the time. It was not what is called these sixteen shooters, I have seen them - Where you put your cartridges in and it loads itself. The name of the rifle, I could not say.
Q. What kind of a revolver was that, Whose name?
A. Well that I couldn’t tell you, I couldn’t even tell you that.
Q. When the party started out, you only saw one weapon in it?
A. When it started I only saw only one weapon and that was this rifle. There might have been others after they started. .
Q. Munroe might have' had a shot gun and you not have seen it at all?
A. He couldn't have had a shot-gun I don't think, unless I had seen it there. I don't remember seeing any shot gun with Mr. Munroe.
Q. Jim Burnham did not go on that expedition did he?
A. No sir.
Q. That is, you only saw three parties start?
A. I only saw three parties start. If there were other parties, they joined them after they left my presence.
Q. Did you see Kirby or Swilling, the morning of the third day, after they got back?
A. I could not swear positively that I saw them the morning of the third day, because I don't know positively whether they were away three days or three and a half, but I saw them a short time after they came back.
Q. And after the trip had considerably sobered up Swilling?
A. Mr. Swilling? Yes sir.
Q. When first did you hear the news of the stage robbery?
A. Well, it was sometime after these parties had returned.
Q. Was it one day, two, or a week?
A. I couldn't swear positively, whether it was one day or one week.
Q. Do you know a man by the name of Rhoads?
A. I do.
Q. Do you know this little party, Jim, they call him. Jim and who else?
A. I know Bennett.
176.
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Q. Was there a small man in the party?
A. Bennett is a very small man.
Q. Bennett and Rhoads, You know those parties?
A. I know Rhoads and Bennett. The other man I may know by sight, but not by name.
Q. The other man is known as Loui, there?
A. I don’t know him.
Q. Did you ever hear those parties accused of robbing the stage?
A. When it was talked of in the town, the supposition was that they were the parties.
Q. Who raised that report first?
A. I could not say.
Q. Who did you first hear that from?
A. I spoke of that, before ever I heard anybody else talk of it.
Q. Why did you suspicion those parties?
A. I knew of Rhoads, what he was years ago.
Q. Was he a bad man?
A. Yes sir.
Q. Was Bennett a bad man also?
A. Bennett, I knew nothing of, but as they had gone off, and I thought they had gone together, I suspicioned them.
Q. When did they go off?
A. They? Probably a week or ten days before this party went on this trip.
Q. Did they go together?
A. That, I could not swear to; but they went off about the same time. Whether they were together, I don't know. They went off while Mr. Swilling was on a trip with his family to the Verde, with his family and Sam Weir. These parties, James Rhoads, and Charles Bennett, left. The other, I know, nothing about.
Q. You saw them leave?
A. I did not.
Q. You did not, How do you know they left together, or at all?
A. I say they went off about the same time. I know they left because they were not there in the town.
Q. You don't know that they both left together?
A. I do not; but they both were missed at about the same time. Whether they left
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or not, I don't know.
Q. How long has Rhoads been down there?
A. The first time I saw Rhoads there, I think it was in February. He had been there though, before that.
Q. How long had Bennett been there?
A. That I couldn't say. He had been there sometime, but I couldn't say.
Q. What time did Rhoads and Bennett get back: or are they baok?
A. I have never seen them back. I don't know they went away together, but they were missed about the same time. I have not seen them since they left Gillett.
Q. Have you heard where they are?
A. I do not know where they are. I have heard several reports that they have been seen at this place and seen at that, but it is all hear-say.
Q. You suspicioned these parties shortly after the robbery?
A. I suspicioned James Rhoads when I heard of it.
Q. Did you ever make the remark that you thought he was the party?
A. I did.
Q. In Gillett?
A. In Gillett.
Q Did you ever say you thought the other party Bennett, was with him?
A. I said I thought James Rhoads robbed the stage, and if Bennett was with him he had been 1ed into it by Rhoads.
Q. Did you communicate these suspicions of yours to the Sheriff here, or to the United States Marshall?
A. I spoke about it to Mr. McCall when he presented his letter from Sheriff Bowers to me. But I told him I would go and help him make this arrest, but that I thought he was on the wrong track, or something to that effect. That I thought Rhoads was the man that had done it.
Q. When did you first suspicion Rhoads?
A. I first suspicioned Rhoads when I first heard of the robbery.
Q. Was that one, two, or three weeks after the arrest of Swilling?
180.
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A. That was before the arrest of Mr. Swilling.
Q. How long was it you had your suspicions of these parties, before you mentioned about it to Mr. McCall?
A. After I heard the stage was robbed, I suspicioned James Rhoads.
Q. You 1mow when Swilling and Kirby were arrested at Gillett, Now, keeping those two times in your mind, how long was it between those two times? How long was it after you had formed your suspicions of Rhoads, before you communicated them to Mr. McCall?
A. I understand you to ask how long it was after these parties got back off this trip, before they were arrested?
Q. No, no. How long was it from the time you formed your opinion of Rhoads being in the stage robbery, until you told Mr. McCall?
A. Well, I couldn’t state when I heard of the stage being robbed, But after I heard the stage had been robbed, I made the remark that I thought James Rhoads might have had a hand in the robbing of that stage. Bennett is a young man, and I don't think he would go into anything of that kind, unless he was led by other parties.
Q. Mr. McCall was the first Peace Officer that you had spoken to about your suspicions?
A. Yes, the first Peace Officer. He was there acting as Sheriff, and brought a letter to me from Mr. Bowers, and I went with Mr. McCall and helped make this arrest. Before that, Mr. Evans had wrote a letter to Mr. Swilling to find out something in regard to the stage robbery. Mr. Swilling showed me that letter, and wanted that I should answer the letter. It was afterwards turned over to Judge Handy to answer. Mr. Swilling wanted me to let Mr. Evans know what I knew about the parties.
Q. Do you remember of seeing Mr. Evans out there before or after he wrote that letter?
A. I could not say whether it was before or after; but I saw Mr. Evans there.
182.
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Q. What is your recollection about that: Whether you saw the letter after
Mr. Evans was there, or before he was there. State to the best of your recollection?
A. I could not say positively, whether it was before
Q. (Interrupting.) I am not asking for your positive knowledge. I am asking you to state to the best of your recollection?
A. To the best of my recollection it was after Mr. Evans was there; but I could not swear positively that that was the case. Probably Mr. Hill would know. He knew all about this letter.
Q. Did you know that the tracks of the stage robbers had been traced near to or past Gillett?
A. I had heard several reports. One was that Mr. Evans had tracked the mail robbers to the Miami Mill in Globe District. Another report was that he had tracked them to the Verde.
Q. What other report did you hear?
A. That was all.
Q. Did you interest yourself at all, in tracking up these parties?
A. I did not.
Q. You did not think it was your duty?
A. I did not think it was any of my business.
Q. In fact, you paid no attention to it.
A. I paid no attention to it.
Q. Mr. Burnett, do you know whether Mr. Rhoads and Mr. Swilling were together a great deal, or intimate?
A. Most of the time Mr. Rhoads has been stopping at Mr. Swilling's.
Q. At Swilling's house?
A. Yes sir.
Q. Describe Rhoads as regards size and height?
A. I think he was a man that would weigh about a hundred and eighty pounds, I should judge.
Q. About how high?
A. A little taller than I am.
Q. Do you remember Bennett's size?
A. Mr. Bennett was a very small man.
Q. You don't remember the size or personelle of this man we are calling Loui?
A. No sir, I do not.
184.
Q. You don't know him at all?
A. No sir.
Q. Do you remember of seeing Mr. Reed on the stand here - the first witness?
A. No sir, I wasn't here.
Q Do you know Bill Reed?
A. No sir, I do not.
Q. You may know him by sight, and not know his name?
A. I was not here when he gave in his evidence, nor when Mr. Taylor gave in his evidence.
Q. Was Bennett a stout man?
A. Bennett is a small man, and tolerably stout for his size.
Q. Is he five foot three four or six in bight?
A. I should think he was probably five foot three or four.
Q. Did Swilling ever make any observation to you about the tracks of these supposed stage robbers passing very near where they (the Swilling party) had been?
A. I don't remember that he did.
Q. Did he ever bring up to you, the conversation of their robbing the stage, and their tracks being very similar and having gone near his?
A. I don't remember any conversation of that kind.
Q. Were you present when they buried Col. Snively's remains?
A. I was not.
Re-Direct Examination
of the witness
James C. Burnett
Mr. Fitch.
Q. You say that Rhoads stopped at Mr. Swilling’s place. Was not Mr. Swilling's place generally a free ranch for anyone who was broke. His door was always open to receive any person who was hard up. It did not require a certificate of character for them, if they were hungry and broke?
A. No sir, if he knew they were in need, they could go there and get something to eat.
Q. With regard to this letter from the United States Marshall, you speak of, Did Mr. Swilling show you that letter?
A. Yes sir.
Q. When?
186.
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A. A short time after he received the letter.
Q. What was said?
A. I could not state the contents of the letter, anymore than Mr. Evans wanted him to give him any information that he could in regard to it.
Q. What was said to you by Mr. Swilling about the letter?
Mr. Masterson.- Mr. Swilling, where is that letter? (To the Court) The letter is the best evidence and I want to get the letter.
Mr. Fitch.- You drew out the letter.
Mr. Masterson.- I did not ask for any of the contents of the letter.
Mr. Fitch.- I withdraw the question as to the contents of the letter.
Q. What did Mr. Swilling say to you?
A. Mr. Swilling came to me and says he, "If you can give Mr. Evans any news of the parties he is inquiring about, I wish you would do it". Says he "You have known this man Rhoads, and have, for years. I want you to furnish the information"; that I could tell it. I gave that information to Judge Handy at Gillett, to be sent to Mr. Evans.
Q. Now think a moment. Was it Evans or Standifer?
A. It was Evans, At least his name was signed to it.
Q. Mr. Swilling came to you with the letter, and said that as you knew Rhoads and could give the information, he wanted you to give it?
A. He told me if I could throw any light on it, to do so. I told him my suspicions. I knew Rhoads since he had been in States prison.
Q. Where was he sent from?
A. He was sent
from
(signature)
Jas. C. Burnett
Subscribed and sworn to before me
in open court this 31st day of May 1878
Harley G. Cartter
U.S. Dist Court Commissioner
3d Judicial
Diet
188.
Tesitomony of
C. F. Cate.
Called on part of defense.
Sworn: -
Mr. Fitch.-
Q. Do you know Jack Swilling?
A. Yes sir.
Q. How long have you been acquainted with him?
A. I have been acquainted with him for about seven years.
Q. Do you know his habits when he is a little under the influence of liquor?
A. Yes sir.
Q. What are they with respect to boasting or talking?
A. Well, he is very much inclined to braggadocio when he is under the influence of liquor. I have seen him when he has been under the influence of liquor, many times, and heard a great deal of his talk, and I consider it idle talk.
Q. He would claim to have committed depredations he had nothing to do with?
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A. Well, I did not think he had.
Q. Do you remember the stage being robbed here about a year ago, at the time Mr. Lent was on the stage?
A. Yes sir.
Q. The night before that stage started out, do you remember the fact of Jack Swilling being in your saloon with a party named Moon, and the conversation that took place there, about that stage robbery?
Mr. Masterson.- What is that?
Mr. Fitch.- I propose to show that a year ago, at the time the stage was robbed, Swilling came in there and made a proposition to Moon; to go out and rob the stage with him, and that Swilling, was all that night in the saloon, and sure enough the stage was robbed, And the next morning Swilling claimed to have robbed it, And told Mr. Cate so, and said he had the money. And that it was a physical impossibility for him to have done it. I do that, to show he is in the
habit of claiming to have done all the stage robberies in the country.
Obj. Mr. Masterson.- It is immaterial and irrelevant.
Mr. Fitch.- This whole Case rests on the admissions of Swilling. Now if I show by this and another witness that Swilling is a man in the habit of making these drunken boasts, indulging in this foolish talk, it is sufficient, And to corroborate that, I propose to show one particular instance where he proposed to rob the stage before the stage was robbed, and claimed next morning to have robbed it, and that in that occasion he certainly did not rob it, because he was in town all night and it was a physical impossibility. I do that to show that this admission of his, is not an isolated Case, and as tending to establish the proposition which the defense make here, that all these so called Confessions of Jack Swilling, are mere vapid idle talk.
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Mr. Masterson.- The defendant cannot manufacture any such testimony for his own benefit. That seems to me to be the most novel and peculiar proposition possible. I am taken by surprise at such a legal proposition attempting to be evolved by Col. Fitch. The matter is wholly immaterial an Irrelevant to any issue before Your Honor.
Mr. Fitch.- Suppose that mental imbecility were claimed for him.
Mr. Masterson.- That is another proposition entirely.
Mr. Fitch.- While we do not claim mental insanity, yet we, say that his mind is weak, and not as much weight should be attached to his talk as if he were not in that condition.
Mr. Masterson.- If they desire to prove that Swilling is an imbecile, that is another question. If they desire to show that he Swilling is entirely irresponsible as a moral agent, that he does not know what he is doing, that is another matter.
Mr. Fitch.- I propose to show that whenever he is in liquor he is irresponsible for what he says.
Obj. Mr. Masterson.- I renew my objection.
The Court.- The objection is sustained.
Cross Examination
of the witness
C. F. Cate.
Mr. Masterson. -
Q. Mr. Cate, you know Mr. Swilling to be a desperate man, do you not? That is his character all over the country?
Objn. Mr. Fitch.- I object to that on the ground that it is irrelevant to any matter elicited in the Direct Examination.
Mr. Masterson.- I am not bringing it out for that purpose.
Mr. Fitch.- I don't care for what purpose. It is irrelevant.
Mr. Masterson.- I propose to state the purpose; namely, that Swilling’s talk is something
193)
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more than boastful and braggadocio talk, and that it has a solid foundation: That he is by no means a man unlikely to not do what he boasts to do.
Mr. Fitoh.- The same objection.
Mr. Masterson.- To cut this short, I will withdraw the question and ask this:
Q. You know Swilling's boastfulness and braggadocio to have some truth, in fact? That his talk is not mere idiotic coveting as has been characterized?
Objn Mr. Fitch.- It is Irrelevant Incompetent and Immaterial.
The Court.- The objection is overruled.
A. I don't consider Swilling a dangerous man.
Mr. Masterson.-
Q. Neither do I: but my question is, that Swilling's braggadocio and his boasting
has foundation in fact, and not the mere visionary meanderings of his own brain?
A. I am inclined to think that it is.
Q. You are?
A. Yes, and I have remarked so, a great many times; that I did not consider what Swilling said meant anything. For instance, he has told me of his murdering men, and taking in stages, and taking towns, but I considered it idle talk.
Q. Mere blood and thunder stories?
A. Yes sir, and I have remarked so.
Q. Have you not known the fact that some of his talk has been corroborated? Have you never been informed by other parties?
Objn Mr. Fitch. I object as to what the witness may have been told.
Mr. Masterson.- I withdraw that and ask.
Q. Has no knowledge ever come to you that Swilling has committed some of the acts he has boasted of?
A. Only from hearsay.
Q. You got your knowledge from hearsay?
195)
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A. I never witnessed anything that he has committed. I never have seen him do any desperate deeds. I have heard-
Mr. Fitch.- Never mind that.
Mr. Masterson.-
Q You do not consider Swilling a dangerous man?
A. I do not sir, and I have remarked so, often.
Q. You have been with Swilling a good deal when he has been under the influence of liquor?
A. Yes sir.
Q. Did you consider him a harmless man in that condition?
A.
I do. He made an attack on me at the town of
Q. Did you leave Gillett at the same time with Mr. Thorne on that occasion, when you came from Gillett?
A. Yes sir.
Q. Immediately after this trouble with Mr. Swilling?
A. The next morning.
Q. This trouble did not precipitate your trip?
A. Not a particle. We came down there in the afternoon with the intention of leaving the next morning, and left as we intended. In fact I met Swilling two or three times afterwards and we walked around the town, and he said nothing to me, nor I to him.
Q. You had no existing trouble, then, afterwards?
A. No. sir.
Q. Did you arm yourself after this trouble that Mr. Thorne spoke to you about?
A. Yes sir.
Q. Why?
197)
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A. Swilling was running with a man, or traveling in company with a man down there named Rhoads, I think his name is, Who was said to be rather a desperate man, and after the difficulty occurred in the store of Anders and Rowe, I went down to the office of the Mill Company and related what had occurred. Mr. Thorne was very much excited, and thought we were in danger and said we had better leave. Mr. Hoffman was in the room at the time, and says he "If I were in your place, Cate, I would look out for a place to get a pistol”. In the meantime, I had made the remark that I was not afraid of Jack Swilling at all, any more than of almost any body in the world; that I did not think him a dangerous man, and that I did not think he would carry out what he pretended to. And Thorne was much excited and wanted that we should leave. He was afraid we would get into difficulty. Hoffman said “If I were in your case I wou1d go and arm myself, at any rate, and the best place I know of for you to get a pistol --- I did not take any pistol with me --- is under the head of somebody's bed. There was a bed in the room, and I stepped across and took a pistol that I found there. I did not do it in fear of Swilling but Swilling was running with Rhoads, and Whitlach who I went down with, gave me the reputation of Rhoads, and he and Swilling were full and drinking.
Q. Did you go down on the stage that trip and return on horse-back. Did you not leave Gillett sooner the next morning than you wou1d have done, had you not had this supposed trouble with Swilling?
A. No sir. We came down from Gillett in the afternoon about four o’clock and
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from Gillett in the afternoon about four o'clock and Mr. Thorne when we were going down spoke of comming as far as Bumble Bee that night, because he had stayed there longer than he had anticipated and wanted to get home as soon as possible.
We stopped until we got through with our business. The only business I had was the settlement of the shipping of some ore, and we stayed there that night, and next morning about nine o’clock we left.
Q. You might have went down on the stage. How come you to leave and go down there horse-back?
A. We had transacted our business down there.
Q. Was that the reason you left?
A. Yes sir that is the reason we left, and we came into town on horse-back from Spaulding's Ranch we hired a team --- We intended at Gillett to came up on horse-back, and McAllister said he would send us with a. team, and we came
up with the team. We hired the team and came as far as Spaulding's.
I had a horse with me, one that I had taken while down there, but I thought it was more comfortable riding with a team than on horse-back, so we came that way.
Re Direct Examn.
of the witness
C. F. Cate.
Mr. Fitch.-
Q. With respect to arming yourself: it was Rhoads you were considering rather than Swilling?
A. I can't say that I took the pistol through fear of either one of them particularly, But Swilling had made an attack on me and was in company with Rhoads. I was not at all afraid of Swilling But at the suggestion of Mr. Hoffman and Thorne, I took the pistol, thinking perhaps I Might need to use it; but at the same time, I did not anticipate it.
201)
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Q. Did you have any conversation afterwards with Swilling with respect to his attack on you? (A. Yes sir) as you came up?
Q. Did not Swilling then state to you that he had no recollection whatever of this difficulty between you and him down there at Gillett?
Objn. Mr. Masterson.- I object to that as Irrelevant.
The Court.- The Objection is overruled.
A. Yes sir. He stated that he had no recollection of it, and seemed very much surprised.
Q. What was his condition at the time this difficulty occurred: Was he drunk or sober.
Objn. Mr. Masterson.- We object.
The Court.- Answer the question.
A. He was very much under the influence of liquor. I don't think myself he knew what he did, and I didn't have any idea he did, at the time.
Q. He could walk could he?
A. He could walk, Yes sir.
Testimony of
Andrew Kirby
called on part of defense
Sworn:
Mr. Fitch.
Q. State your name, residence, age and occupation?
A. My name is Andrew Kirby, age 36 years. Occupation, I prospect and mime sometimes.
Q. Do you know Jack Swilling?
A. Yes sir.
Q. Did you accompany any body and if so, whom, on an expedition after Col. Snively's remains?
A. Yes sir.
Q. Where did you start from?
A. We started from Gillett.
Q. About what time?
A. I couldn't exactly say. It was probably nine or ten o'clock in the morning --- as quick as we could get ready.
Q. About what time of the month?
A. I couldn't tell the date exactly. I think it was the latter part of the week, but the date of the month I don’t recollect.
203)
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Q. Was it about the middle or fore part of the month?
A. Somewhere about the middle, along about there.
Q. Who composed the party?
A. Swilling, George Munroe and myself were in the party.
Q. Were you mounted or on foot?
A. We were mounted.
Q. What animals did you have?
A. We had three horses and a mule.
Q. What arms?
A. We had a
Q. Did Jack have any arms.
A. No sir, not that I know of.
Q. Did Munroe have any arms?
A. No sir, not that I know of. I don't think he had, or I would have known it.
Q. How far did you go the first day?
A. The
first day we went to
Q. How far is that from Gillett?
A. I don't know exactly, as I had never been over there before. We reached there probably eight or nine o'olock at night. I could not say exactly the time. We stayed there that night.
Q. What time next morning did you leave?
A. I could not say exactly, but as quick as we could get our animals up and get our
breakfast: probably eight or nine o'clock.
Q. Was there any body else at Hot Springs but yourselves?
A. There is a man stopping there for his health.
Q. What is his name?
A. I don't recollect.
Q. Not keeping the place?
A. No sir, he was stopping for his health.
Q. Where did you go the second day?
A. The next day we went to where the remains of Col Snively, or the remains
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of somebody were, buried.
Q. What time did you reach there?
A. I couldn't swear exactly, but it was pretty early in the evening - probably three or four o'clock.
Q. Did you go over the road, or across the mountains?
A. Across the mountains: there was no road.
Q. What is the name of the place these remains were deposited?
A. I don't
know: but they call it the
Q. Have you any idea in what direction it was, or how far, from Wickenburg?
A. No I don't know. I was never through that mountain before and I was never in Wickenburg.
Q. Did you take up the remains?
A. Yes sir. We took up the remains that evening.
Q. Where did you camp that night?
A. About three or four hundred yards from there, where we found some water up a ravine.
Q. What time did you start the next morning?
A. As soon as we could get our animals up in the morning and get our breakfast.
Q. When did you start for home?
A. That day.
Q. You don't know the names of the places?
A. I couldn't tell anything about the name of the place, because I had never been through there before. It rained that morning, and we traveled on until it got camping time, before sundown.
Q. You did not
go back by the
A. No sir.
Q. You took a nearer route?
A. Yes sir, they thought it was nearer.
Q. After you camped that night, where did you go the next day?
A. We come home and got there about eleven o'clock I guess. We were starting up town, when someone told us that dinner would be ready. It must have been
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near noon by then.
Q. Swilling was with you all the time?
A. Yes sir.
Q. Did he go away or leave the party at any time?
A. Not that I know of. If he did, he went away while I was asleep and didn't know it.
Q. You say you are not sufficiently acquainted with the country to be able to say how far this mountain is where the remains were buried, from Wickenburg?
A. No sir. I was never there before.
Q. What direction was it from Gillett?
A. Well, I think it was about a South West course, as near as I can tell. I don't recollect exactly. I didn't pay much attention.
Cross Examination
of the witness
Andrew Kirby.
Mr. Masterson.-
Q. How long have you been in the Country?
A. I have been in the Country now the last time that I got in the Territory, a little over two years.
Q. Have you been most of your time at Humbug?
A. No sir: but I have been there a little over a year: around there and in that vicinity.
Q. How come you wanted to go with Swilling and Munroe on this expedition?
A. Mr. Swilling had been talking four or five months about going out and getting the remains of Col. Snively, and on this occasion, I rather wanted him to go, on account of him being drinking. I had been trying to get him to go, three or four days or a week before that. I thought it might sober him up, and I went along in order to get him to go.
Q. After you left Gillett, you made the Hot Springs the first night?
A. Yes sir.
Q. And left there the next morning about nine o'clock?
A. Along there sometime, I don't know. We had no time piece.
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Q. You got to the remains when?
A. Along in the evening, sometime. The middle of the afternoon or it may be later.
Q. You stayed with the remains all night?
A. We took up the remains that evening and went up to where we found water, and camped.
Q. In the vicinity of the remains?
A. Yes sir.
Q. And you left the next morning?
A. We started next morning for home.
Q. How near home did you get that day?
A. I could not say exactly. Probably somewhere between 15 or 20 miles, or 18 miles, may be, and may be closer.
Q. You got home about dinner time?
A. Somewhere about that time as near as I can recollect. I don’t the exact time.
Q. There was only one rifle in the party?
A. That is all.
Q. That is all so far as you saw?
A. Yes sir. That as all I Know of.
Q. No side arms at all?
A. Yes, I had a six shooter.
Q. Was that the only side arm in the party?
A. That is all I mow of.
Q. Two weapons for three men then?
A. Yes sir.
Q. Describe that rifle?
A. It was a
Q. Who carried the rifle?
A. I carried it most of the time when mounted and Jack was walking. He carried it a part of the time - when-he was walking to see if he could see a deer. I carried it when we were mounted.
Q. Munroe didn't have any arms?
A. I don't think he did, for I heard him say he had his pistol in soak at one of them saloons.
Q. Swilling started out without any arms?
211)
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A. Yes sir.
Q. Did he express a desire to go that way or to go armed?
A. He did not say anything about arms that I heard.
Q. He left his place without any arms on his person, so far as you saw?
A. Yes sir, I don't think he had any arms or I would have known it.
Q. Did he get no arms on the way out?
A. No sir, only at the times when I would let him have that gun.
Q. I mean from any other party?
A. No sir. He got no arms from any other party.
Q. Was this the first trip you had ever made with Swilling in the mountains?
A. Well, I don't know, but what it was. That is to any distance.
Q. What do you mean by any distance?
A. I might have been out in the mountains, two three or four miles with him.
------------------------------------------------------------------------------------------------------------
Q. In those trips did Swilling go armed?
A. I don't know that he ever carried any arms on any trip that I traveled with him, only one time, he carried his six-shooter.
Q. That is the only time you ever saw Swilling go out a short distance or a long distance with arms: on this one occasion?
A. I don't understand you.
Q. Is that the only time you remember of him going armed either with side arms or with a rifle or shot-gun?
A. That was the only time I recollect him ever having any with me; only one time. We were off with a wagon, and then he had a shot-gun.
Q. You went armed yourself on this trip after Col. Snively's remains?
A. Yes sir.
Q. How came you the only party armed and with a rifle and a six shooter?
213)
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A. I am always in the habit of carrying a six shooter and have one whenever I go in the mountains.
Q. On this trip of going to remove the remains of Col. Snively, Munroe
and Swilling were unarmed so far as you saw?
A. Yes sir.
Q. Swilling when he was walking borrowed your arms (Yes sir) and that, only the rifle?
A. That is all.
Q. There was no shot-gun in the party at all?
A. No sir.
Q. Do you know Mr. Murphy who is sitting ever there?
A. I have seen the gentleman.
Q. Where?
A. Here in town, and I think I have seen him in Gillett.
Q. About the first of this month at Gillett did you not tell Mr. Murphy that there was a shot gun in that party?
A. No sir.
Q. Did you not tell him at that time that at the last camp you made on your return home, some tracks passed yours, and that
Swilling remarked to you "The tracks are similar to our tracks; namely the party consisting of yourself him and Munroe, and that he Swilling proposed to go after the tracks as they were fresh, and see who they were, because if the robbery or other development was committed, that the tracks being similar to your tracks, would cause trouble, and that you objected to going after these tracks, namely on the ground that you were not heavily armed and that they probably were, and that you only had a shot gun and a rifle in the party or words to that effect?
Objn. Mr. Fitoh.- I object to the question, first upon the ground that it is Irrelevant to any
matter on the Direct Examination. Mr. Kirby is now out of this Case, and is therefore the same as any other witness and having the same rights is of course subject to the same rules. You cannot impeach a witness by showing
215)
216)
he has made statements out of Court different from those he makes in Court, unless he is impeached by the person who does not elicit the examination. Anything Kirby has stated on his direct; examination, ---- if he has made any statement to any other person differing from what he has stated in Court on his direct examination, then you can impeach him, but if he makes him his own. witness (as he does in this instance, for I did not ask the witness about the shot gun) then he is cut off from the right to impeach him.
The question is not relevant to any matter elicited in direct Examination.
Mr. Masterson.- It is for the purpose of impeachment, and it is not a new matter. I have a right to all the conversation between Murphy and Kirby, the same as I have a right to all the contents of a letter. The witness has stated as a fact positively that he was armed and
the others of the party were unarmed. Now for the purpose of Impeachment I ask him was there a shot gun in that party, having the intention to impeach him by Mr. Murphy.
This goes to the registrar and is no new matter.
Mr. Fitch.- (Cites 462- sec. 2 G. Leaf.)
The Court.- (After question read by the Reporter) The Objection will be sustained, to the question in that form.
Mr. Masterson.-
Q. Did you have any conversation with Mr. Murphy at that time relating to a shotgun being in the party?
A. No sir, not to my knowledge.
Q. That is your best knowledge?
A. Yes sir.
Q. Had you a conversation at all with Mr. Murphy?
A. I was talking to Mr. Murphy some, or he was to me, rather.
Q. In any of these conversations, the word shot-gun was not mentioned at all?
A. If it was mentioned I don't recollect it.
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Q. How far is it from Hot Springs to where you took up the remains of Col. Snively, as near as you know?
A. I could not tell.
Q. Is it a days ride or half a days ride?
A. It was half a days ride I recon.
Q. I understood you to say in your direct examination that you never were at Wickenburg?
A. No sir I was never there.
Q. You don't know where it is or the direction, from where Col. Snively's remains were buried before they were exhumed?
A. No sir I don't. I never was there and never was in that country before.
Q. Do you know how far it is from where you camped there, up in the ravine three hundred yards from the remains, to Wickenburg?
A. No sir I don't know how far it is.
Q. Either from your own knowledge or from what any person has intimated
to you?
A. Well, I don't recollect that it was ever told to me.
Q. You have no knowledge about it whatever?
A. No sir.
Q. Do you think that where you camped on the second night, (I mean by that, the
night of the evening you lifted the remains) that you had traveled twelve miles from Hot Springs?
A. Yes sir, We had traveled further than that, I think: that much any how. I couldn’t tell you. It was a pretty rough country most of the time. But we had traveled that far anyhow.
Q. You did not reach Gillett until the day afterwards?
A. No sir.
Q. Until noon afterwards?
A. Somewhere about that time.
Q. The first
Camp from Gillett was
A. Gillett to
Q. That being the Case, when you traveled all that day, you made your other
219)
220)
Camp where?
A. We did not travel all that day. We laid over, but I don't know how long.
Q. Still, you did some traveling that day?
A. Yes sir.
Q. Then you made another Camp that night, and then at noon the next day about dinner time, you got into Gillett?
A. Yes sir.
Q. That is the fact?
A. Yes sir. -- (signed)
Here the Court took a
recess until 3. P.M.
3. P.M.
Mr. Fitch.- We offer to have Mr. Swilling sworn as a witness.
Obj. Mr.Masterson.- The laws of the territory obtain in the question of procedure with the Case at Bar. The United States Statute being silent, the territorial practice prevails.
(cites 2d Abott sec 1024 2d Abott U S Practice 170.) and the territorial Code of Criminal Procedure, provides that the person may make a statement if he desires, But here the statement is waived.
Mr. Fitch.- I claim that there is a territorial Statute of a more recent date than the Statute of Criminal Procedure, and that wherever this statute differs from the former, the former is virtually repealed. This subsequent statute gives the defendant the right to testify in his own behalf.
Mr. Fitch.- There is but one of two courses: either to follow the territorial law or disregard it. I am by no means clear that Your Honor as Untied States Commissioner,
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222)
can follow the territorial law. Where the United States Statutes are silent, if the Common law is followed, then the defendant can neither make a statement or give his testimony. But if you conclude it will be safer to follow the Course of proceeding followed in the territorial Cases, I submit that the Act allowing the party to testify upon the Indictment or other proceeding, in his own behalf, reasonably construed, gives him the right to testify in his own behalf upon the Preliminary Examination.
And the Second Act, the Act allowing him to testify in his own behalf, being subsequent to the other, in so far as it comes in Conflict with the other Act, repeals it.
Mr. Masterson.- (Renews his former objection, and adds that it is too late for defendant
to make a Statement, as he had waived it at the proper time, and had his defense of the case.
Mr Fitch.- I will ask Your Honor if it has not been the practice here to permit the defendant to testify in his own behalf?
Mr. Masterson.- That has no bearing.
The Court. - I am under the impression that the defendants have been allowed to testify in their own behalf before the Justices here.
Mr. Masterson.- It is not law.
The Court.- I hold to the practice, Mr. Swilling can testify.
Testimony of
J. W. Swilling, deft
Called in his own behalf
Sworn: -
Mr. Fitch.
Q. State your name, residence, age and occupation?
A. J. W. Swilling, Residence Ague.
223)
Q. Without asking a great number of questions, I will request you Mr. Swilling, to go on and make a full statement to the Commissioner of your expedition in search of Col. Snively's remains, and all the particulars therewith, and all the parties connected therewith.
Obj. Mr. Masterson.- We object,
The Court.- Answer the question.
A. Well, we left, I think, on Thursday and went to Humbug and Camped two or
three hours and from there we went
to
three or four o'clock and took up the remains that evening, and Camped. It commenced raining just before day. We got up and started before morning. I couldn’t tell what time. It was cloudy and raining and it rained very hard on us. We then went another route back, further south, as I told George it was a desert country, and he told me he could show me three or four live springs where the tules and cane were growing, if I wanted to prospect there. And that was the reason we took that route. We went that way and the storm broke off. In the evening we stopped and cooked some dinner and camped perhaps two or three hours, and dried up our clothes. It had rained very hard. And we started again and come on across Casa Creek. Before that it had been raining
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very hard and since the rain there was one track that that went down. It was very small, only a few tracks, number five or six, And we then crossed Casa Creek and went almost on the bank of the Humbug and camped again, when we found some water in some tanks. It had been raining. In the middle of the day it rained again. After we left this camp it rained some again. We stayed there that night, and the next morning we went on down the Humbug a piece and crossed over into the Ague Frio across the hill, and went along the Agua Frio until we met the water comming down from the storm the night before, and it come so deep that the little pack mule we had and horse I was riding, we thought couldn't cross it, and I told them we would go across the
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hill, And we got into my place on Sunday. I didn’t go up town that day, nor Monday, Tuesday I went to town. We brought in the remains and buried them a few days afterwards.
Q. Who was in the party?
A. George Munroe and Andy Kirby.
Q. What weapons did you have with you?
A. We had a
Q. Whose rifle was this?
A. It belongs to Mr. Kirby.
Q. Do you
recollect making any statements to Mr. Taylor you heard
A. Yes sir. I did not drink anything and I did not go to town on that day nor Monday. I wanted to keep away from Whiskey but I was taking narcotics at the time.
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I went up town Tuesday morning, and there was a report there that the mail had been robbed, near Wickenburg. That was Tuesday morning. It was Sunday when I got in, I don't know what day of the month.
Q. When did you start out?
A. It must have been the 18th we started out; It was Thursday. We got in on Sunday and was gone four days. That is, We started the middle of the day one day and it was the middle of the day when we got back; that made three days.
Q. Do you recollect meeting Taylor at this saloon?
A. Yes, I recollect meeting him there. I was sober as I am now, and remember telling him about the mail being robbed, and telling him about the shoe track, and that it look a great deal like Charley Bennett's, and that Bennett had run off owing me some money and I wanted to follow, and Kirby and Munroe objected to it, thinking they was camped down there, he and Rhoads amongst them. Says I “I am satisfied that Rhoads and that party has done it, and Rhoads has my gun, he took it while I was out to Cane Creek and took it without my permission, and has my horse, the best horse I've got”, and says I “I would like to go and catch him”. Says I “they should come right through the same mountains, and they might follow me and George Munroe”. I recollect telling that, but as to telling him anything about showing him the money, I recollect nothing about it.
Q. Do you recollect telling Mr. Hill about the stage being robbed?
A. I recollect telling him I heard it up in town. It was the talk there in town, but
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the talk there in town, but nobody seemed to know the particulars, but the next mail they did. I don't know whether the mail brought the news or not.
Q. In regard to your statement that you had robbed the stage; What sort of talk was that?
A. I don't never recollect talking any such talk as that.
Q. If you did talk it, were you under the influence of opiates and liquor?
A. Well, Whiskey alone never does it, but taking the narcotic and Whiskey together makes me do things -- I suppose I do. My wife tells me I do -- Which is very bad, that I know I wouldn't do if sensible.
Q. You talk and do things you don't know?
A. I do.
Q. You are acquainted with the country down there pretty well.
A. Yes sir.
Q. You are a mountaineer and prospector?
A. Yes sir.
Q. In which direction from Gillett is this place where you exhumed the remains of Col. Snively?
A. I think it was about South West, or a little west of South West. It ain’t due West.
Q. How far from Wickenburg?
A. I think it is about fourteen miles from Wickenburg to White Picacho. I was out
there twice, and I intended to prospect, but I could not find water.
Q. Was this expedition of yours to take, up the remains of Col. Snively the only expedition of that kind you have been engaged in, in this country?
Mr. Masterson.- We will admit that Swilling has removed several remains.
Mr. Fitch.- It is important in this Case. I desire to show that Mr. Swilling has been in the habit of doing that sort of thing for years.
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That he has given something of his time and labors to digging up the remains of old pioneers Mountaineers and friends who have been killed by the Indians, and placing them where he could give them a decent burial.
Mr. Masterson.- Go on. That neither hurts nor assists the Case.
A. I have assisted
in a good many cases of the same kind. I have assisted with means, and I have
went myself, both in
Q. You have done that frequently?
A. Yes sir, and assisted others.
Q. Have you and Mr. Taylor had any controversy?
A. None whatever, sir.
Q. Is there any clashing of interest between you respecting a ranch?
A. I have been told that he has jumped a ranch of mine.
Q. Since your arrest?
A. No sir, before.
Q. You don't know whether he has or not?
A. No sir.
Q. Did you request Taylor at any time to go and jump a ranch in order to defeat Col. Head who had a mortgage on it, from collecting it?
A. I don't
recollect of it. If so it was sometime when I was senseless and didn't know
what I was doing. I was owing
Q. Do you
remember the conversation he speaks of, in which you were anxious to secure his
assistance in sending your children to
A. No sir. I don't recollect Taylor being at my house since I have been at Gillett.
Q. It might have occurred though, when you were unconscious?
A. I might have occurred.
Q. What is the effect of these narcotics upon your mind in this particular: That is, do you remember after the effect of the narcotic has passed away, what took
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place when you were under its influence?
Objn. Mr. Masterson.- That is not evidence, and further, witness is not an expert.
Mr. Fitch.- I will ask the question in another form.
Q. When you are not under the influence of these narcotics and are entirely conscious, do you then remember what you said or did when under their influence.
Objn. Mr. Masterson.- The same objection. That is only stating the same question in a different form.
The Court.- (After argument) Witness can answer the question.
Mr. Fitch.-
Q. When your mind is free from narcotics, do you recollect what you did or said when under their influence?
A. I know nothing about it, only what is told to me. I have done things at home I had no idea of, And there is an affidavit of mine now in my trunk, that if I do any more such things as that, to have me arrested and have me sent to an
asylum. It is an affidavit I made when sober, and made long before I was arrested.
Q. Was it only your supposition that Rhoads and others had robbed the stage? You did not know anything about it yourself, did you?
A. Nothing in the world but it was generally supposed that Rhoads and others were up to something. They were figuring around there, and Rhoads had got this gun of mine and he was armed. I knew Rhoads some ten or twelve years ago, but I knew nothing about him being a bad man, but I have heard bad tales about him (He stayed at my house helping around about the cattle and driving up horses and doing various things around,) But as for knowing anything about it, I don't know it. Taylor was there, and they camped right there close
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to my house.
Q. When did you receive this letter from the United States Marshall with reference to Rhoads and why did you go to Burnett with it?
A. Because he was an Officer, and he told me he knowed Rhoads for 15 years. He told me Rhoads had been in the penitentiary. He and Rhoads had some words at my house when Rhoads was stopping at my house, and after I heard about him being in the penitentiary, I requested Rhoads to leave my house. I told him that I would go and get him grub if he wanted it, but that as for his staying there, I thought he was not doing me any good nor himself. When I went to Burnett with the letter, I did so because he could describe him and knowed him longer than I did, and could tell about his being in the
penitentiary, What for, and so on. And he promised to do it. Says I, "If you don't I will, but you can do it better than I can, and you are an Officer.
Q. If there is any other matter or thing in explanation of your Case that you desire to make a statement about, you may do so.
A. About this narcotic I have been taking. I have been taking it 22 years. It is not a habit, but it is from pain from a hurt, and I have taken morphine for four years, putting it in liquor. Nearly four years. The doctors advised me to drink it. I got away from morphine and commenced taking laudanum and Chloeal, still worse, and has reduced mea great deal. I used to be a heavy man but just a few days before I was arrested I weighed 105. When I take laudanum and whiskey mixed together, I know nothing about when these things comes upon
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me or goes off me. I wanted to see Mr. Cates on business, and I was in town several days looking for him, and when I did see him, I was in a fix that I didn't know anything about it. I haven't got an enemy in the world, as I know of, and always looked on him as a friend, and he has always treated me so. And I don't know why I should have made any break on him.
Mr. Masterson.- I have no questions to ask.
Here the Court adjourned
until 11 o'clock A.M.
May 31st 1878.
11 AM May 31, 1878
Adjourned until June 1, 1878
7 P.M.
Court met June 1st 1878 at 7 oc1ock P.M. and the cause comming up and the cause after argument by the respective counsel was submitted to the Commissioner. And the Court being fully advised as the premisis. And it appearing to the Commissioner that there is no probable cause to believe the defendant J. W. Swilling guilty of the crime charged.
It is ordered that he be and he is hereby discharged.
H. H. Cartter
U.S Commissioner
3d
In
vs
J. W. Swilling
Andrew Kirby
Geo Munroe
-------
Filed July 9th 1878
William Wilkerson
Clerk
by
Jno: Lloyd
Deputy
(The above appears on the reverse of the preceeding page, the "Court Decision). EDH
Revised: INDEX –
(page numbers are not the original page numbers of the transcript)
Abotts United States Practice, 64
Agua Fria, 13, 32
Ague Frio, 102
Ague. Frio, 101
Anders and Rowe, 90
Anders and Shingles, 78
Ander's saloon, 19
Anglo California Bank, 66
Arastra Creek, 23, 39, 101
Arastra Hill, 23
Austin, Lander County, Nevada, 86
Ayres' saloon, 24
Bank of Arizona, 66
Barnum, Mr., 15, 48
Beach, Mr., 15
Bennett, Charley, 54, 103
Bennett, Mr., 81, 82, 83, 84, 85, 103
Billy Moore's saloon, 23
Black Canon, 32
Bowen, Sheriff, 34
Bowers, Sheriff, 38
braggadocio, 87, 89, 90
Brass Lock, 69, 70, 72
Buffins, William M., 3
Buffum, Mr., 63, 66
Buffum, William M., 1
Buffum, Wm. M., 63
Bullock, John, 2, 69, 71, 72
Bumble Bee, 91
Burnett, Deputy Sheriff, 40
Burnett, James C., 2, 76, 79, 85
Burnett, Sheriff Jim, 18
Burnham, Mr., 15, 16, 17, 48, 81
Burnham, Tom, 15, 16
C & A stage Company, 5
C. & A. Stage, 67
C. and A. Stage Company, 5
C. P. Head's store, 22
Calhoun, Charles, 23, 32, 39, 49, 50
Calhoun, Chas., 2
California and Arizona stage, 9
California and Arizona Stage Company, 70
Cane Creek, 103
Cape Girardeau Missouri, 17, 18
Cardinal points, 12
Cartter, H.H., 3, 4, 38, 42, 44, 49, 106
Cartter, Harley H., 3, 13, 50
Casa Creek, 102
Cate, C. F., 2, 32, 57, 58, 86, 88, 91
Cate, C.F., 33, 87, 88
Cates, Mr., 33, 58, 106
Cherokee Jim, 80
Chloeal, 106
Clipper Saw Mill, 34
Colton, 5, 60, 62
Corpus Delecti, 73
Cottonwood, 33
Crapo, Mrs., 63, 66
Curtis, Mr., 66
Dos Palmas, 5
Dubord, Mr., 66, 68
Dubord, Robt., 2, 67, 68, 69
Dutchman, 78
Edwards, 31
Ehrenberg, 5, 60, 62
Evans, Mr., 27, 28, 31, 83, 84, 86
Examining Magistrate, 14, 62
Fitch and Churchill, 4
Florence, 62
General Grant, 74
Glade-Water, TX, 34
Grand Jury, 1, 62
Greenleaf on Evidence, 73, 74
Habeas Corpus, 51
Handy, Judge, 84, 86
Hayden, C.T., 44
Hayden, Mr., 21, 45
Head, Col., 104
Henderson Kentucky, 24
Hill, J.J., 2, 15, 21, 24, 35, 36, 46, 52, 84, 103
Hill, Mr. J. J., 20, 21, 44, 48, 50
Hill's store, 15, 35, 36
Hill's store, Mr. J.J., 20
Hoffman, Mr., 90, 92
Hogback, 8
Hot Spring, 54
Hot Springs, 19, 24, 25, 54, 55, 93, 94, 95, 99, 101
Hoyt, Gov., 23
Hoyt, Governor, 21
Hughes, Mr., 70, 71
Humbug, 95, 101, 102
Iron Lock, 69
Jackson, Jessie, 2, 55
Kentucky, 69
Kirby, Andrew, 1, 2, 3, 4, 34, 49, 92, 95, 107
Kirby, Andy, 15, 16, 18, 19, 21, 33, 42, 76, 102
Laudanum, 106
Levy, L., 2, 42, 43, 44
Levy's Saloon, 18, 36
Lewis, 45, 46, 54
Lincoln County New Mexico, 24
Los Angeles, 5, 60, 62
Loui, 81, 84
Major Domo, 7
McAllister, 91
McCall, Gen., 27, 28, 47
McCall, Genl., 21, 22
McCall, Mr., 16, 18, 20, 21, 23, 26, 31, 33, 37, 39,
40, 47, 51, 58, 83
McCall, W. H. H., 3, 33, 34, 37, 38
McCall, W. H.R., 2
Mesquit Station, 7
Mill Company, 90
Missouri, 17, 24, 78
Moon, 87
Mr. Reed, 8, 70, 71, 85
Munroe, George, 1, 3, 4, 15, 19, 21, 42, 43, 45, 47,
49, 51, 53, 54, 55, 76, 79, 80, 93, 101, 102, 103
Murphy, F.M., 2, 59
Murphy, Mr., 97, 98
Number 48, 60, 61, 66
Old Mary, 77
Otis, Mr., 59, 61, 64, 65, 66
Otis, T.W., 2, 59, 66
Pearson, Doc., 5
Peck, 13, 30
Perry Davis Pain Killer, 21
Phoenix, 51, 62
Postmaster Prescott, 59
Poughkeepsie, New York., 63, 66
Powell, Charley, 23, 29
Reed, Bill, 85
Reed, William, 1, 3, 12, 60
Reed, Wm, 2, 5, 72
Reed, Wm. W., 4
Registered letters, 60
Reynolds, Col., 66
Rhoads, James, 82, 83
Rhoads, Jim, 45, 46, 54
San Francisco, 61, 62, 63, 66
Santa Fe, 24
Session's Ranch, 33
Seven Up, 29
Silby, 29
Silsby, 37
Skull Valley, 63
Smith & Levy's Saloon, 36, 37
Smith and Weston, 35
Smith, Frank, 2, 19, 22, 40, 41, 42
Snively, Col. Jacob, 14, 15, 16, 26, 45, 51, 53, 76,
78, 85, 92, 97, 99, 101, 103
South Picacho, 101
Spaulding's Ranch, 91
St Louis, 61
States Evidence, 36
Stephens, L.A., 13, 30
Stephens, Mr., 13
Stevens, L.A., 31
Stewart, James, 5
Swilling, J. W., 2, 4, 29, 34, 42, 44, 101, 106, 107
Swilling, Jack, 1, 3, 18, 19, 20, 23, 24, 25, 26, 30,
76, 86, 87, 90, 91, 92
Swilling, Mrs., 17, 25
Swilling's Ranch, 36
Tate, C.F., 2
Taylor, L.G., 2, 13, 23, 32, 34, 35, 39, 58, 78, 102,
103, 104, 105
Taylor, Mr., 13, 19, 34, 37, 39, 50, 51, 57, 58, 85,
102, 104
Texas Pacific Rail Road, 34
Thorne, Mr., 90, 91
Tip Top Mine, 76
Tip Top, Company, 31
Tucson, 61, 62, 65
Ucatan, 78
United States Mail, 4, 5, 7, 8, 9, 12, 60, 67
United States Marshall, 75, 83, 85, 105
Verde, 15, 82, 84
Vulture Mill, 12
Walker, Joe, 22
Washington, 22, 47
Washington City, 22
Way sack, 72
Weber, Paul, 1, 4
weighed 105, 106
Weir, Sam, 82
Wells Fargo & Co, 6, 60
Wells Fargo and Company, 5
Wells Fargo Express, 7
White Picacho Mountain, 94
White Pioacho mountains, 15
Whitlach, 91
Wickenburg Coach, 17, 25
Wickenburg Stage, 41, 42
Yuma, 36, 37, 65, 66
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