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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.