In 1884 Gleed and his brother Willis formed their law firm, Gleed, Ware, and Gleed. Their first partner was Eugene Ware, a former member of the Kansas Legislature. In that same year Judge David Brewer, after many years of service on the Kansas Supreme Court, was appointed to the United States Circuit Court for the Eighth Circuit. The Hillmon case was eventually assigned to Judge Brewer’s trial calendar. In 1885 the firm of Gleed, Ware, and Gleed was joined by George Barker, just in time for the retrial.1
The case of Hillmon v. Mutual Life Insurance Company et al. was called for trial the second time on June 6, 1885, at the same Leavenworth federal courthouse as before. The attorneys for the parties entered their appearances. For Mrs. Hillmon, S.A. Riggs, John Hutchings, and L.B. Wheat appeared; for the insurance companies, J.W. Green, George S. Barker, and C.S. Gleed. The jury selected included four men who were ex-members of the Kansas Legislature.2
Followers of the first trial would have found very little novelty in the evidence and testimony offered in the second. Mrs. Hillmon’s lawyers apparently decided to rest their case in chief largely on the recorded testimony of various witnesses who testified at the first trial. The tedium of the proceedings led the reporters away from their usual minute reporting, in favor of descriptions of Mrs. Hillmon’s appearance. According to the Leavenworth Times, on the first day she was “dressed plainly in black, even to her hat and trimmings, and wore no ornaments except a wide, thin gold band on the first finger of her right hand, and a pair of very small ear-rings.” On the second day she wore a “neat plain suit of brown”; on the fourth she was “dressed in black, with a pointed broad-rimmed black [hat] on, trimmed with a flowing ‘crush’ of black crepe and wearing her front hair loose—cut short and combed down over her forehead.”3
One of the trial’s few unexpected moments arrived when Sallie’s lawyers summoned a Dr. Patterson of Lawrence, who according to the newspaper report “identified a plaster cast of the teeth of Hillman.” (The origins of the cast went unexplained in the report, but this small mystery would be resolved in the fourth trial, when Dr. Patterson again appeared and made clear that the cast he had taken was from the corpse, not from any living man.) Patterson seems to have been a bit of a showman, for when he was handed the cast he “turned the grinning jaws toward the audience in the court room.” Mrs. Hillmon “leaned forward and looked at it intently and eagerly listened to every word that was said regarding it.”4
The insurance companies were not satisfied to rest their case on transcripts and depositions. The newspaper reports that they called forty-three witnesses, and in addition introduced numerous depositions and transcripts of prior testimony, but nearly all the testimony reiterated aspects of the case the companies had mounted in the first trial. As before, the condition of John Hillmon’s teeth received considerable attention. All the defense witnesses who had known Hillmon were united in their certainty that he had suffered from bad teeth. There was, as in the first trial, considerable variation among the witnesses as to whether the tooth/teeth were blackened, missing, or broken, whether in the upper or lower jaw, and when and how the damage first appeared.
Several witnesses praised the perfect condition of the corpse’s teeth. None of this was surprising or new, but a disastrous defense witness, a Mrs. Gilmore of Lawrence, swore that she knew Walters and that the cigarmaker had bad teeth. Moreover, she identified Walters in photographs that other witnesses had said were of Hillmon, and when shown a picture of Walters said she “wouldn’t swear that it was his picture.”
Defense witness C.R. Walters, Frederick Adolph’s brother, presented his sponsors with a few more difficulties. He identified the corpse in the photographs as his younger sibling, but he also said that his brother had a vaccination scar the last time he saw him (raising doubt that he would have allowed Hillmon to vaccinate him again, as the defense claimed), said he had a scar on his hand (defense doctors would swear the corpse had no mark at all on its hands), and admitted that in a letter he had said that his brother’s teeth had fillings (the defense was by now completely committed to the unalloyed perfection of the corpse’s teeth). Senator Buchan’s appearance may have inflicted some damage on the defense as well: he admitted that for representing John Brown he had been paid only by the insurance companies, in the sum of five hundred to seven hundred dollars. He seemed offended by the suggestion there was anything improper in this, saying he was “in the habit of taking fees for his work.”5
There were but a few more novelties. Attorney James Woods Green was compelled to acknowledge under oath that he had at one time custody of the fatal Sharps carbine rifle that had been an exhibit in the earlier trial, but that he could no longer produce it. The journal of John Hillmon was received in evidence. It described his travels up until March 14, 1879 (three days before the death at Crooked Creek). Some of the entries were touching, describing homesickness, and writing to and receiving letters from Sallie. Others were more rakish, like one saying “I am as apt to err as anyone,” and that he did not propose to “make a memorandum” of his misdeeds while away from home. There was no doubt that the journal was found tucked inside the jacket worn by the corpse, but of course considerable dispute about how it got there.6
In a curious turn, the Leavenworth Times reported that it had learned that “there was an insurance on the life of young Walters” and that the Walters family had been paid the policy amount during the trial. It did not say whether the company that made this payment to the Walters family was one of the defendants.7
In the middle of the trial, the Leavenworth Times reporter asked Sallie Hillmon if she thought she would win her case. “There is no reason why I should not,” she answered. “If right is not on my side how do I, a poor, weak woman, bear up under the strain and excitement of the trial all this time? There is not another woman in Kansas who could have borne it. The other trial stood eleven to one in my favor. I came so near winning that time, I have hope now.” When asked what the outcome would turn on, she predicted in remarkably witty, adamantine language that “the teeth will be the rock on which they will split, if there is any hard question to solve.”8
The reporter evinced some skepticism about Mrs. Hillmon and her case, reporting that “[i]t is evident that the story of the killing of Hill-man was greatly exaggerated to the attorneys for the prosecution when the case was given to them, and that Mrs. Hillman was in error on many of the main points in the case. Her statement to a reporter about the jury in the other trial, was also evidently in error, when she said it was eleven to one in her favor, as it has been since learned that the jury stood seven for the plaintiff and five for the insurance companies.” Greatly exaggerated—wonderful phrase! Not until 1897 would Samuel Clemens render it immortal by telegraphing from London that reports of his death were of that character. But the journalist’s correction of Sallie Hillmon’s claim about the previous jury’s division was the opposite of exaggerated, for his own newspaper had reported at the time that on the first jury there were seven votes for the companies to five for Sallie.9
At the close of all the testimony, the defense offered again to allow the case to be sent to the jury without argument, but the Hillmon attorneys once more insisted on their right to address the jurors in summation. The judge then allotted each attorney (three per side) two hours, for a total of twelve hours of anticipated argument. The Times reporter disclosed that the evening before the summations began, “[b]ets were freely offered among attorneys . . . that the case will result in another hung jury.”10
However prolix they may have seemed to the suffering jurors, the arguments in summation that began the next day seem succinct enough when rendered in the prose of the reporter. Mr. Wheat, whose opening speech “lasted all the forenoon,” apparently offered but variations on a single point: that it had been proven that Hillmon was a victim of accidental death, and the insurance companies were trying evade payment of this just claim. In the afternoon J.W. Green (the reporter refers to him as “Judge” Green, a title often used to denote respect for an attorney of distinction) made, it seems, many “strong points,” one of the best being that the only persons to swear that the body was Hillmon’s were interested parties, whereas the entire Walters family, having nothing to gain from it, had come to court and sworn that the pictures depicted their son and brother Frederick Adolph. (No mention here, of course, of the reported insurance on F.A.’s life.) The second strong point attributed to Judge Green was his recital of the evidence that proved Hillmon to be only five feet nine inches, while the corpse was two inches taller.11
The Wheat and Green summations together occupied an entire day, and the next day was given over to those of Messrs. Gleed and Barker for the defense, and Samuel Riggs for the plaintiff. The only one of these arguments the Times described at all was that of Riggs, whose address the reporter praised as “scholarly and eloquent.” Apparently concerned that the jurors would regard his client’s husband as a man desperate for money, Samuel Riggs laid stress on the point that John Hillmon could not fairly be regarded as a poor man at the time he undertook his fatal journey; the evidence, said the lawyer, suggested that Hillmon was a successful dealer in buffalo hides, cattle, and hogs. John Hillmon had purchased life insurance, said Riggs, because “it was a historical fact that the Barbour County had been raided by Indians, and that was the county he was in when he met his death.”12
At the end of the two days of argument, Judge Brewer summed up the evidence for the jury and gave them their instructions. Although he touched on a few matters of law (like his predecessor, he instructed that the releases signed by Sallie Hillmon were of no effect), he emphasized that the only real decision for the jury was whether John Hillmon was alive or dead. This, he mused aloud, “is one of those mysterious things that happen, or events that traverse a point where two guide boards meet. No question of law reaches it. It is a question of fact.” The judge then furnished the jury with the hair samples and photographs that had been placed into evidence, together with a “strong magnifying glass.” He commended them to the guidance of a Supreme Power, and released them to their deliberations.13
The twelve jurors discussed matters into the evening, and at nine o’clock they requested an audience with the judge and attorneys, to whom they reported that they could not agree. Judge Brewer was indisposed to declare a mistrial without further effort, and so sent them home. The next morning he sent them back to the jury room, where after lunch they took another ballot, and then reported again that they were deadlocked. The judge accepted defeat, and declared a mistrial. The vote was six to six, a division that according to the newspaper represented the unchanging view of each juror from the moment they had first retired to deliberate.14
Two of the jurors (they had both been in the Hillmon camp) were willing to talk to the reporter about their discussion. The foreman said that the tooth business was one of the chief obstacles to agreement, and opined they could have deliberated for another year and still not reached accord. A second member of the jury offered more detail about his logic. If John Hillmon had bad teeth, this juror reasoned, then he knew this, and realized his dental shortcomings would be the subject of identification evidence. So would he not have taken care to procure a victim whose teeth were as bad as his own, rather than one with a mouth full of perfection? Moreover, he added, the Dearest Alvina letter had “something crooked” about it. For if young Walters really had been in Wichita and had met Hillmon and Brown there, would not some witness remember his having been in that city? But no such witness was called.15
This juror was certain that the Walters family were sincere in saying they saw Frederick Adolph in the corpse photographs, but he thought the likelihood of mistake in this instance was great. He also said, “it was hard to tell which of [John Brown’s] stories were true,” but “it will be hard to make me believe but what Buchan worked him pretty hard, to get his evidence for the companies.”16
George Barker of the defense, interviewed by the same reporter, said that he had expected a verdict for his client, but was cheered that the jury’s reported even division represented a gain of one juror over the seven to five vote by the first trial jury. (He, too, seems to have forgotten that the first jury was supposed to have had seven members who voted in his clients’ favor.) Barker claimed darkly that Sallie Hillmon was only able to obtain means to prosecute the case by the assistance of a “syndicate who are furnishing the funds, with the prospect of sharing the proceeds.”17
The case would thus have to be retried yet again, this time three years hence in Topeka. But before its new judge, O.P. Shiras, applied his gavel to the bench in February 1888 Sallie Hillmon would make a surprising decision; the law firm of Gleed, Ware, and Gleed would take on many new clients; and the Kansas weather would turn catastrophically bad.
Mr. Lysander Wheat never knew John Hillmon in life, so the effect of Sallie Hillmon’s visit is perhaps even more startling than she intends. She sweeps into Wheat’s office dressed smartly in a stuff gown and embroidered shawl. Wheat is compelled to search for her small face under the loops of curl that frame it, and finds there a merry smile. She quite eclipses the sober-looking gentleman whose arm she holds close to her side. It is certainly not Levi Baldwin, her usual companion.
“What a joy to see you looking so well, Mrs. Hillmon,” the lawyer says. “But I do not think I have had the pleasure of this gentleman’s acquaintance.”
“This, Mr. Wheat,” she announces, “is my husband.”
Wheat is aware of his visible calm as though observing it from the corner of the room, but dismay squeezes his pulse like a vise.
“I am . . . astonished, Mrs. Hillmon,” he manages to say. Then, ever the lawyer, he turns and addresses himself to the man. “And perhaps even more surprised, sir, that you should show yourself so freely. The authorities will arrest you at once if you are . . . ”
“It’s Mrs. Smith now,” says Sallie. “I have remarried, Mr. Wheat! Mr. Smith is quite safe from arrest. His only crime is association with a woman accused by certain parties of evildoing, and he says he is willing to risk the hazards of such a friendship.”
“Remarried,” says Wheat, releasing a profound breath. Really, what an annoying woman! He shakes the hand of Sallie’s companion briefly, murmuring “Mr. Smith” as he does so. Of course, the man looks nothing like John Hillmon’s photographs; he should have seen it at once.
“We have just come from the registry office,” Sallie says teasingly. “You must congratulate us.”
“Oh I do, Mrs. Smith, sincerely. But you might have spoken with me about this plan.”
Sallie shrugs and turns to the quiet man for support. “We are impulsive, are we not, my dear?” He nods but does not speak. Evidently he is rather timid.
“There will be no way to keep this development from Mr. Green, you know. He will hear before sundown, for he has ears throughout the town.”
Sallie blinks with delight. “Of course. But what good will it do him to know, Mr. Wheat? He will wish it otherwise, I am sure. Possibly he will even try to conceal it when we go to court next, for does it not prove better than any other thing could that I know John Hillmon to be dead?”
Wheat nods slowly, and considers. Yes, or perhaps you might be such a clever vixen that you know John Hillmon, even if he lives, can never hazard to show his face, and so you propose to enjoy your new marriage and the insurance money as well. The lawyer composes his face into a mask of comfortable professional neutrality. “Does Levi know of your, ah, recent union?” he asks Sallie.
“We are off to tell him, are we not, James?” she says, and with that she tugs on her husband’s arm and the pair turn toward the door.
“Just a moment, Mrs. Smith,” says Wheat. “As you are here, I have some documents for you to sign. The expenses are getting very high again, but Mr. Riggs and I have found an investor who thinks highly of your prospects.”
She waves insouciantly. “I shall come back tomorrow, sir. This is my wedding day. No papers today.”
Wheat sits heavily in his chair for a moment after they depart, then sighs and pulls a bundle of foolscap toward him. He must let Riggs and Hutchings know of this unwelcome turn. Or is it indeed unwelcome? Could Sallie Hillmon Smith be right in predicting that it will help her case? Or should it more likely cause her to lose the tender mantle of widowhood and its incomparable advantages with the jury? It is beyond his reckoning. He writes two fair copies of the same message, then calls the boy lounging in the outer office to come take and deliver them.18
The early years of the 1880s had been a boom time for Kansas. The weather seduced the homesteaders and farmers by providing abundant moisture for most of the decade that began in 1878. As organized weather records were nonexistent and most of the settlers were newcomers, they took this clemency as the norm. There was also the widespread belief that the rain would follow settlement, and thus that the western regions of the state would surrender their aridity as the homesteaders there pursued the practices of cultivation and irrigation. Farming in Kansas had all the appearance of a promising enterprise.19
The railroads, hoping to encourage the sort of settlements along their tracks that would swell their coffers with the movement of people and products, engaged in massive marketing campaigns directed at prospective settlers. A flyer produced by the Kansas City, Lawrence, and Southern Railroad in the 1880s touted “the last chance for desirable cheap homes in kansas,” and claimed that 5,825,385 acres of government land in southern Kansas were available through “homestead” and “pre-emption.” Another brochure, titled “The Immigrants’ Guide to the Most Fertile Lands of Kansas,” suggested that “[m]ultitudes in the older States can improve their condition by selling out and emigrating to these fertile fields, which can be purchased at $2.50 to $6.00 an acre on eleven years credit.” Financing was readily available from the eastern capital markets, which were attracted to the frontier because farmers and ranchers were willing to pay higher interest rates than those that prevailed back east. And the investors’ local agents, whose income came from commissions when new loans were written, were not excessively particular about the creditworthiness of loan applicants.20
The ensuing real estate boom fed the growth of many towns, especially Wichita, which grew in population from 4,911 in 1880 to about 40,000 in 1888. Wichita real estate lots increased in price tenfold during a couple of months in 1887. Farm acreage prices inflated dramatically, too, for those who wished to buy land outside the homestead program. By 1887, the per capita mortgage debt in Kansas was three times what it had been in 1880; by the decade’s end there was one mortgage for every two people in the state.21
Then in January 1886 the worst series of blizzards ever recorded in Kansas struck. In some western parts of the state temperatures stayed below zero for days, with wind chill estimates of one hundred degrees below. Eighty percent of the cattle on the overgrazed prairie died, and those that survived were generally too emaciated to be sold. The cattle barons were ruined.22
The following summer was good for crops, however, and the rains were plentiful again, but this respite from the perfidy of the weather was short-lived. The late summer of 1887 marked the arrival of an entire decade of drought, and thus very poor crops if any. Soon the real estate boom collapsed, and many of the settlers gave up on Kansas and headed west, some in covered wagons with canvas painted to proclaim “In God We Trusted, In Kansas We Busted.” Large areas of western Kansas became almost wholly depopulated, and numerous businesses were forced into bankruptcy.23
The law firm of Gleed, Ware, and Gleed, however, thrived. The Governor employed it in 1886 to represent the state before the United States Supreme Court in litigation that challenged the state’s power to enact liquor prohibition. The Court’s decision was favorable to the state, and many of the lawyers involved credited Willis Gleed’s scholarly portions of the brief for this victory. Charles Gleed’s contribution to the firm’s success was perhaps less cerebral, but just as important: he had worked for the Santa Fe Railroad before his admission to the Bar, and that organization sent a great deal of legal business the firm’s way. In 1887 Charles also became an officer and director of the Santa Fe subsidiary that owned the rail line to Chicago. He wrote many unsigned newspaper articles during this period representing the railroad’s position on various matters.24
The Gleed firm also represented several large land mortgage companies during the time when many farmers were forced by the hard economic times to default on their mortgage payments. The defaults ruined the farmers and damaged the mortgage companies and their investors, but the Gleed brothers prospered. Charles Gleed’s biographer writes that “[i]t may be that lawyers like the Gleeds were the most fortunate of all the parties who participated in the land mortgage business in Kansas during the 1880’s and 1890’s. They were able to collect their legal fees in spite of the financial losses being experienced by others.”25
Still, the losses inflicted on investors troubled the Gleed brothers, for the continued prosperity of their firm depended largely on the willingness of eastern capital to invest in the state of Kansas. Willis Gleed often expressed his opposition to proposals that the Kansas Legislature take action aimed at relieving the suffering of indebted farmers, arguing that such measures “would drive up interest rates and make capital even more scarce by alarming eastern investors.”26
This same solicitude for the needs of the investing class, including the necessity of keeping its enterprises unfettered by intrusive regulation, would mark the law firm’s efforts on behalf of three eastern life insurance companies in the Hillmon litigation and elsewhere. Wise capitalists could not be expected to do business in precincts where fraud and murder were permitted to hold sway.
The third trial of the Hillmon case convened in February 1888, not in Leavenworth, where the first two had been held, but in the state capital, Topeka. The presiding judge, the Honorable Oliver P. Shiras of Dubuque, ordinarily served as the chief judge of the Northern District of Iowa, but he had agreed to aid his fellows of the Kansas federal bench by sitting on the court in Topeka for the duration of the Hillmon trial.27
Everyone seemed to be determined to avoid a repetition of the hung-jury scenario, starting with the court officials responsible for summoning prospective jurors. By the account of the Topeka Daily Capital, these officials determined that on this occasion the jury should consist not of the “the class of men who loiter about court rooms with the hope of getting an opportunity of serving,” but rather of “men of intelligence and good standing.” The newspaper deemed this strategy of selective jury eligibility “quite successful,” and twelve highly respected white men were seated in the jury box.28
In the third trial, as in the second, many disputed matters were addressed by the employment of transcripts of testimony that had been given earlier, either in the first two trials or in the pretrial depositions. Sallie’s lawyers chose to begin with John Brown’s deposition, most of which was read to the jury over eight hours by attorney Charles S. Gleed. One hopes, for the jury’s sake, that his dramatic skills surpassed his legal ones.
Sallie’s team then presented several familiar live witnesses: the stalwart Reuben Brown, Mary Judson, Levi Baldwin, and John Eldridge (or Eldredge), an acquaintance of Hillmon’s who testified that he had seen the corpse and was sure it belonged to his friend. Two of the Medicine Lodge men who had seen Brown and Hillmon together on their first journey were summoned, and testified that they recognized the corpse as that of the man they knew as Hillmon.29
None of this was new, nor was most of Sallie Hillmon’s testimony. She did address the question of her travels during the period after Mr. Wheat had refused to give Mr. Buchan the policies. Buchan, she said, had kept her at his house, and bought her tickets to travel to Trenton, Tonganoxie, and Ottawa (Kansas), but advised her to stay away from Lawrence, where she would likely fall under Mr. Wheat’s influence.30
There is a technique in trial advocacy known as “anticipating impeachment.” If one knows that one’s witness is likely to be discredited or made to look untrustworthy, it is best to bring up the unhappy matter during direct examination, so as to at least gain credit for candor. This defensive tactic must have been what Sallie’s lawyers had in mind when they asked her to identify a pair of letters, written from her to Mr. W.J. Buchan during the weeks after she signed the releases at his instance. One of these we have seen before, for it was introduced at the first trial: in it she tells Buchan she is willing to go to Colorado as soon as Buchan sends her the ticket and money, and refers darkly to “parties in Lawrence” who are making “[e]nquiries about me and it will never do for me to see them you know how that is don’t you?” This first letter also conveys her hope that Buchan will convince someone she refers to as “B______” to “do what is right.” The second, written mere days after she signed the releases in September 1879, seems even friendlier (or perhaps more manipulative) toward Buchan. “When I started from Lawrence,” she wrote, “I had very little money and I will be obliged to ask you to send me enough to bye my ticket to your city. I wrote to L. Baldwin but he had no money for me. . . . I did write that letter to Riggs & Borgalthaus, have got no answer and don’t want any. I will be on the Wednesday’s Train without something Offle happens.”31
These are ambiguous documents at best, but one plausible interpretation is that Sallie remained determined to surrender her claims, even after Lysander Wheat refused to turn the policies over to Buchan. One could read them further as evidence that she was hindered in this goal by Wheat and her other lawyers, all the while enjoying generous treatment by Buchan and the other insurance company attorneys. By asking Sallie about these inconvenient epistles during her direct examination, her attorneys no doubt hoped that she could explain them away, or at least diminish their impact, and this effort may have succeeded to some degree. She explained the reference to “B______” doing the right thing as a plea for help in getting Levi Baldwin to pay her the balance due on some notes he had signed in favor of John Hillmon. She could not remember what she might have meant about Messrs. Riggs and Borgalthaus. She said that the persons making inquiries about her in Lawrence were a “Mr. Ellison” and Colonel Walker.32
On cross-examination she repeated her account of the reasons that she signed the releases even though she knew her husband was dead. The insurance lawyers had made representations that John Brown would testify that Hillmon was still alive, she said, and they conveyed threats by the “rich corporations” that they would “throw a cloud over [her]” in court and “wear [her] out.”33
Like an inkblot, these strangely shaped patterns of testimony can yield various apperceptions. One might see in them the understandable confusion of a naive girl confronted with machinations of a sort she has little experience with; or perhaps the marks of a dishonest woman who has succeeded rather brilliantly at turning a series of challenging predicaments at least somewhat to her advantage. Or one might rather perceive any number of less definitive portraits, in which Sallie displays an admixture of confusion and cleverness, sometimes taken advantage of and sometimes exacting her retribution. The reporter for the Topeka newspaper, obviously an admirer, carried away the following impression: “During a long and rigid cross-examination . . . Mrs. Hillmon answered all questions put to her without once displaying one particle of temper, preserving the calm demeanor and ever ready smile for which she is noted, under the most trying circumstances.”34
For me and my ongoing effort to understand who this woman Sallie Hillmon might be, the letters she sent to Buchan provoke a different sort of disquiet as well. How could the person I had imagined, the woman capable of elegant speech despite her slight education and pedestrian profession, write a sentence as ugly as “I will be on the Wednesday’s Train without something Offle happens”?
It was then the defendants’ turn, for the third time, to present the evidence they hoped would persuade the jurors that the dead man was not John Hillmon. Their first witnesses emphasized the event in which (they swore) John Hillmon had, for purposes of his life insurance application forms, reported that he was five feet eleven inches tall, but later returned to confess that he was only five nine. One of these witnesses, Major Theo. Wiseman, gave testimony concerning this and several other matters that was vaguer and less emphatic than in the earlier trials. On this day he would say only that “according to [his] best recollection” the body was not Hillmon’s, and merely that “there was something irregular” about one of Hillmon’s front teeth. It is possible that this slight retreat of his enthusiasm for the companies’ cause is explained in the very last portion of his cross-examination, in which he complains that the companies have paid him only part of what they owe him for his services, and that he has had to sue for the remainder.35
Many more defense witnesses then testified to John Hillmon’s bad tooth or teeth, a scar on his hand, or a scar on his head. Several of these same witnesses testified to having seen the body and concluding it was not John Hillmon’s. But the cross-examinations of these witnesses enjoyed some success. Many wavered on whether the tooth was damaged or missing, and they disagreed on whether it was on the right or left side of the face, and the upper or lower jaw; some said more than one tooth was bad. One (a sister of John Hillmon’s) was sure about a bad tooth but knew of no scar on his hand. Nearly every witness who testified to observing Hillmon’s bad tooth was shown to be unaware or uncertain about the condition of various friends’ and acquaintances’ teeth. Still, the vagaries of memory and perception must be accorded some role in these contradictions.36
Other testimony, however, was so clear and certain that it does not seem likely it could represent poor memory. A story told by W.W. Nichols, for example, might be either truthful or mendacious, but not mistaken: he repeated his testimony from the first trial that in 1875 he had been camped near Hillmon on a buffalo hunt in Texas when a firearms accident “almost severed the thumb” from Hillmon’s hand, leaving an ugly scar that was still noticeable when he saw Hillmon again about a year later. He also repeated an accusation he had made in the second trial (but not the first): that Sallie Hillmon had asked him not to say anything about the scar on her husband’s hand, and then accused him of being “bought by the insurance companies” when he would not agree.37
Nichols’s testimony on the matter of the hand scar was consistent in all three trials, with small exceptions. On the tooth question, less so: he progressed from saying in the first trial that he had taken no note of anything unusual about Hillmon’s teeth, to swearing in the second that Hillmon had a discolored tooth, to testifying on this third occasion that the tooth was “discolored . . . , probably gone.” When he declined to estimate Hillmon’s height, saying it would be “guess work,” Sallie’s lawyer suggested that his statements about the tooth were guesses as well, but Nichols replied, “No, I am certain it was discolored, or perhaps out.”38
The testimony of W.W. Nichols exemplifies the difficulties of assessing, at a remove of more than a century, the credibility of the witnesses in the Hillmon matter. If we believe Nichols’s account of the gun accident it is devastating to Sallie’s claim, since there is no dispute that the corpse’s hands were unmarked by such a serious scar as he describes. Her overture to him, if it happened (she always denied it), marks her as one who would lie and ask others to do so. Neither of these pieces of testimony lends itself plausibly to characterization as a possible case of faulty memory. Of course, that does not mean they are true: Nichols might simply be lying himself, and his claim that Sallie sought to suborn his false testimony might be a projected distortion of a genuine conspiracy between Nichols and the insurance companies, in which they have agreed to reward him for the fabricated account of the hand scar. The variances in his testimony about the tooth come into play here, but they cannot really clinch the matter: they’re simply too minor to confer confidence that he is a liar, rather than a witness with ordinary shortcomings of perception and memory.
One could go through a similar process of thought and analysis with many other witnesses. No doubt many were simply confused or forgetful. Unquestionably, some of them lied outright, but no witness’s testimony consists solely of lies. Mary McCarthy is reported to have said of Lillian Hellman, “Every word she writes is a lie, including and and the.” It’s a funny aphorism, largely because it describes the impossible: even a compulsive liar tells the truth some of the time, if only in conjunctions and articles. But the best liars are judicious, weaving their falsehoods plausibly together with truth to camouflage them and allow them to benefit from association with their virtuous company. It’s hard to sort them out from the truthful, and even harder to distinguish them from the mistaken. Not that these are exclusive categories: some of the Hillmon witnesses were likely confused, accurate, mendacious, and forgetful, at various points in their testimony. As the Topeka Daily Capital’s reporter reminds us, “Twice has a jury of twelve men tried to straighten out the evidence, and finally given up.”39
Mr. Buchan must then be heard from for the third time. On direct examination, he gave the familiar, rather self-serving account of his representation of John Brown (and simultaneously of the insurance companies, who had, he agreed, supplied him with the only pay he received or expected in the matter). The only new disclosure in his testimony was the revelation that Sallie had actually stayed as a guest in the Buchan home for two or three weeks, during the confused period after Sallie Hillmon signed the releases and Lysander Wheat refused to turn over the policies to Buchan. This unusual nugget of information arrests my attention. Buchan knew Sallie only from his contacts with her in the case. Was she so desperate for a place to stay that she would accept the hospitality of a near stranger, who was in addition a man who rather clearly did not have her interests at heart? Or was Buchan so slippery that he managed to persuade Sallie, as he had John Brown, that his goal was to protect her against her adversaries? Or was it rather Sallie who was so confident a criminal that she believed she could win the lawyer over, or acquire some hold over him, during this period of cohabitation? What must the conversations at the breakfast table have been like? No solution to the case will erase, for me, the mystery that clings to these days of communion between guest and host.40
Buchan’s pose as benevolent protector of John Brown began to unravel, of course, on cross-examination: he must admit that he never mailed the letter Brown wrote to Sallie and entrusted to him, but instead gave it to J.W. Green; he must acknowledge that he removed the torn copy of John Brown’s affidavit from his office stove and pieced it back together. He could not deny that on at least one occasion he led a law enforcement officer to Brown at a time when the officer was authorized to arrest his client. All of this would have been familiar to anyone who had attended the first trial, but it was new to these jurors. They reportedly paid very close attention.41
A flurry of other witnesses, mostly familiar, followed J.W. Buchan to the stand. A few new themes were introduced. Two jurors from the Lawrence inquest elaborated on their earlier testimony that Sallie had not, at the inquest, been able to say anything about her husband’s appearance; they now recalled that when asked about his hair, she replied only that he had more than Mr. Green. (Photographs from later in his life show J.W. Green with a bald pate and a tonsure; apparently he was losing his hair even in 1879.) This comparison may have represented an honest effort on Sallie’s part to describe her husband’s hair; or perhaps Messrs. Good and Huffman were correct in interpreting it as a malicious witticism at Green’s expense. In any event, they seem to have taken umbrage on his behalf.42
At this juncture in the trial, Sallie’s lawyers began to display an unexpected virtuosity in the deployment of evidentiary objections. A.L. Selig, insurance agent, attempted to testify that Hillmon had made some sort of request about his height measurement; presumably Selig intended to relate, as he had in the earlier trials, that Hillmon had returned some time after he was first examined for the policies to confess that he had exaggerated how tall he was. But Sallie’s lawyers objected: any such testimony from Selig would be hearsay, they argued. They were quite right to do so, and Judge Shiras sustained the hearsay objection to any testimony from Selig about what John Hillmon might have said.43
Was the greater benefit that the hearsay rule promised for Sallie’s case beginning to dawn on her lawyers? No more than a few minutes later Lysander Wheat interrupted the proceedings to ask the judge to strike out earlier testimony by any witness or witnesses that John Brown was five feet nine inches in height, on the ground that these witnesses had no personal knowledge of Brown and therefore were only repeating what they had been told. This was, in essence, another hearsay objection, and Judge Shiras sustained it as well, ordering any such previous testimony stricken.44
“Stricken,” in courtroom parlance, does not mean what it sounds like; the matter would remain on the written transcript, but the jury would be instructed to disregard it. In itself this was no great victory: there is considerable doubt about whether jurors can successfully comply with an instruction to forget something they have earlier learned, and Brown’s height would not seem to be important anyway. But regardless of whether the Hillmon jurors would succeed in disregarding the earlier testimony, something more important is happening here. For we can see, between the lines of the newspaper account, Sallie’s lawyers discovering that they are armed with a powerful weapon in the form of the hearsay rule. This tool has rested in their armament all along, but it has taken them nearly a decade to appreciate its possibilities. Even the newspaper reporter seems to attach some significance to the turn of events, for he notes, “Messrs. Riggs and Hutchings, who have labored ably and zealously for the plaintiff, gave way yesterday for Mr. Wheat who scored a good point while his co-laborers were resting by having a batch of testimony stricken out.”45
The agent Selig contributed one more nugget of information when he agreed that John Hillmon had wanted to take a policy with the Travelers Insurance Company, because their premiums were cheaper, but discovered that their policy would require him to foreswear riding fast on horses and carrying a firearm while mounted. Hillmon explained that he was in the stock business, said the agent, and so declined to take out a policy with these restrictions. Sallie’s lawyers do not seem to note, now or later, the point that I would have taken from this account: Hillmon could have taken the cheaper policy if his only intention had been to disappear according to the plot attributed to him by the insurance companies. For the journey out west was to be accomplished by wagon; Hillmon would not be mounted.46
Another new piece of evidence arrived in testimony from a Lawrence doctor named Phillips, who said that in 1879 Levi Baldwin had made the following remark to him: “Doc, wouldn’t it be a good scheme to get your life insured for all you can and have some one represent you as dead and then skip out for Africa or some other d—n place?” Dr. Phillips testified that when he was noncommittal, Baldwin went on to opine that such a thing could be done “like a top.” (Neither Hillmon, the witness agreed, was present for this conversation.)47
The insurance companies also offered three witnesses to testify that a mysterious man named “Colton,” whom they had known in New Mexico, resembled photographs they had been shown of John Hillmon. Plainly the circumstance that nobody had seen Hillmon since the death at Crooked Creek had become, with the passage of time, more of an argument against the companies’ theory, and they were eager to provide some convincing evidence that he had been seen alive in the interim. Whether these witnesses served that need, however, was for the jury to decide. (The disappearance of Frederick Adolph Walter posed a similar difficulty for the plaintiff’s side, of course.)48
The chief innovation of this trial on the defense side, however, was the production of several witnesses who placed a young cigarmaker named Frederick Adolph Walters in Lawrence and Topeka during 1878 and 1879—that is, in more or less the right neighborhood to have met Hillmon in Wichita in late February 1879. Perhaps the presentation of this testimony was prompted by a criticism of the defense case offered three years earlier by one of the second-trial jurors. After that jury hung, the juror told a reporter that he and some others had found the Dearest Alvina letter somewhat suspicious because no witnesses had testified to seeing Walters near Wichita at or about the date of the letter.
Most of these new witnesses, however, said they had seen or known the cigarmaker in Lawrence, not Wichita. Lawrence is a long way from Wichita, and nobody reported seeing Walters in Wichita immediately before the Hillmon party set out from that city, so it is unclear whether any of this location evidence would really have satisfied skepticism about the authenticity of the letter. Moreover, it carried a danger for the defendants.
Three of these witnesses reported having worked with Frederick Adolph Walters at the farm of a man named Metsker, near Lawrence. Some said he seemed unwell at the time. One of the coworkers, a James Tuttle, had a particular memory of Walters showing him his collection of cigarmaking tools; he recalled their shared labor on the Metsker farm taking place in 1879, ending in October.
This admission fell somewhere beyond surprising, for if true it would mark Walters as having been alive some months after the death at Crooked Creek; but it seems to have escaped much notice in the moment. The only cross-examination by Sallie’s lawyers consisted of a brief question about how the witness would know what cigarmaking tools looked like. Someone must have pointed out the mischief-making capacity of James Tuttle’s story, however, for a day later the defense recalled him to the stand—this time to amend his earlier account and say it was in 1878, not 1879, when he and Walters had worked together for Metsker. It was a near escape from disaster for the companies, and although James Tuttle would never testify again, his venture into witnessing would prove a harbinger of revelations about the cigarmaker still far in the future.49
As before, the defense witnesses whose testimony carried the most pathos were family members of Frederick Adolph Walters. The deposition of Daniel, the family patriarch, was read into evidence; it concluded with the old man’s declaration that after his son’s departure from home in 1878, the family had received letters from him every week or two until the last one, in March 1879. Then, as expected, the defendants offered into evidence a letter “signed Adolph Walters” and addressed (according to the reporter) to “Melvina Casten, Fort Madison, Iowa.”50
“Is there objection, Mr. Riggs?” Judge O.P. Shiras states the query mildly enough. Mr. Samuel Riggs rises uneasily from his seat next to Mrs. Hillmon to acknowledge the judge’s inquiry. He knows that Shiras is a man of unimpeachable formality, and the customary question need not imply that the judge thinks any particular objection is called for. But Riggs thinks that on this occasion he detects in the jurist more genuine anticipation than mere courtesy. Might there be some objection he ought to lodge?
Samuel Riggs is not accustomed to making numerous objections to his opponents’ evidence in the course of a trial. He has seen this style of advocacy, practiced chiefly by some of the younger lawyers, but regards it with some disdain. It is his belief that jurors ordinarily regard efforts to keep information from them as ungentlemanly, at best. But the conviction has been growing in him that this d——d letter is the key to the insurance companies’ very ungentlemanly treatment of Mrs. Hillmon’s claim, and he is beginning to entertain some doubts about its origins.
That Tuttle witness, for example—the one who claimed that he had worked with Frederick Adolph Walters in the fall of 1879. The next day the witness had backed off from it, but Tuttle had looked confused during his second appearance, and worried. What if he had been telling the truth the first time, but was persuaded by Green’s bullying to revise his memory?
Why, if so, then the d——d letter was a fake! If Walters was still working in or around Lawrence that fall, he wouldn’t have written that letter from Wichita six months before. And he wouldn’t have disappeared as far as his friends and family were concerned—unless he was somehow persuaded to disappear. Until this moment Riggs has been privately dubious about his client’s claim, but his convictions are growing more in her direction. Perhaps Brown has told the truth all along about the journey that ended in Crooked Creek; perhaps Walters never did travel with the Hillmon party. On the other hand, Riggs has seen the writing on the letter, and also the writing on other letters from the Walters fellow. As far as he can see, it is the same, and the penmanship teacher he has consulted is of the same opinion.
“Mr. Riggs?” O.P. Shiras is a patient man, but Riggs knows he will be not be permitted to dither all afternoon. Lysander Wheat, seated next to him at the plaintiff’s table, is fingering the arm of Riggs’s jacket to acquire his attention.
“A moment, if you would be so kind, Your Honor,” says Riggs, before turning with annoyance to his cocounsel. “What is it, sir?” he whispers, so loudly that two of the jurors exchange amused glances.
At first he does not hear, or does not take in, the single word that Wheat says. But when the older man says it again Riggs begins to sense, at first dimly and then with growing clarity, the shape of a point he should have perceived seven years before, and he turns slowly and wonderingly back toward the bench to repeat the word.
“Mr. Riggs?” Shiras has come to the end of his patience.
“Hearsay,” Samuel Riggs stammers. And then with more confidence, “Hearsay, Your Honor. The plaintiff objects to this document on the ground that it is hearsay.”
The judge’s response is immediate. He turns to the bailiff and asks him to remove the jury to the jury room. A whispered commotion issues from the defense table, where Green, Barker, and Gleed have until that moment been examining some papers without paying much heed to the colloquy between judge and plaintiff’s counsel. As soon as the door has closed behind the last juror, Dean James W. Green is on his feet.
“I do beg your pardon, Your Honor, I was momentarily inattentive. Has my learned opponent made an objection? One so provocative that it requires the jury’s removal?”
Shiras peers over his spectacles with what seems to be a certain indecorous pleasure. “Yes sir, Mr. Riggs has suggested that this document is hearsay, and I am inclined to agree with him. You do offer it to prove the truth of the matters represented therein, do you not?”
Green glances back at the seated Barker, then at Gleed. Neither face seems to offer any intelligent advice. “Sir,” says Green, summoning his most convincing air of decanal authority, “this letter was received in evidence without objection or question in each of the former trials. We are prepared to show that it is inscribed in the handwriting of Mr. Walters. It is central to the defendants’ case, and essential to the jury’s full understanding of the matter. Nobody has ever questioned its admissibility. It is far too late to do so now.”
Riggs begins to answer, but Shiras holds a hand up, palm forward, soliciting silence, and then speaks. “I do not think it is in any wise too late, Mr. Green. If such an objection had been made and overruled at one of the earlier proceedings I might take a different view of it, as one might regard such a ruling as the law of the case. But I believe this court must entertain Mr. Riggs’s objection, now it is made for the first time, on the merits. I do not understand the objection to be directed at this exhibit’s authenticity, so your handwriting comparisons would not seem to be germane. The objection is hearsay. Do you maintain that the exhibit is not hearsay? Or that it falls within the compass of an exception to the hearsay rule?”
“Your Honor,” Green begins, then pauses. Riggs, still in the process of achieving in halting mental steps a comprehension of the complete shape of the situation, watches his adversary with dazed fascination. James W. Green has always commanded a full battalion of blarney soldiers, and the sight of him at a loss for words is unprecedented. Lysander Wheat’s mind must harbor less confusion; he grins with undisguised triumph. “Your Honor,” Green repeats, louder this time, “may we have a moment to confer?”
“Certainly, Mr. Green. Perhaps this would be a good time for us to adjourn for the day in any event.” Shiras strikes the wooden surface before him decisively with his gavel. “Court will be in adjournment until nine thirty tomorrow morning, at which time it will entertain Mr. Green’s response to Mr. Riggs’s objection. The bailiff will see to the jurors’ supper, and have them ready to rejoin the court no later than ten o’clock tomorrow.”
“All rise,” the bailiff bawls, and everyone in the courtroom stands in silence as the judge departs through the exit that leads to his chambers. Some, however, can scarcely contain their sentiments. The instant the judge’s door closes, Sallie Hillmon turns to Samuel Riggs.
“What happened? The jury may not see that letter?”
It is Wheat who answers. “The judge has not ruled yet, Mrs. Hillmon. But I believe the tide has turned our way.” He turns his eyes with satisfaction toward the defense table, where the consternated Green is directing orders at Barker and Gleed in a hoarse undertone.
“Why don’t you go find your cousin and allow him to discover some supper for you?” suggests Riggs to his client. “I must pursue a bit of study before Judge Shiras reconvenes us.”
The courtroom is quiet the next morning, sunlight slanting through the dusty windows, when the bailiff calls the court to order and O.P. Shiras enters from his chambers behind the bench. The jurors are absent, and nine-thirty is early for most of the spectators to have arrived. The court’s reporter is already settled below the judge’s perch, his expression professionally blank as he stands for the judge’s entrance. Green stands near the lawyer’s podium, clasping and unclasping his large hands. Barker has not yet arrived, but when the bailiff bids the room to be seated, Charles Gleed lowers himself into a chair a few feet from Green. Gleed has inserted his right index finger between the pages of a leather-bound volume, as though to mark his place. He looks eagerly toward Green, who ignores the younger man in favor of the occasional inspection of a scribbled page that rests on the podium.
To starboard of the podium, Sallie Hillmon’s lawyers Samuel Riggs, Lysander Wheat, and John Hutchings sit stiffly in a precise row. They have studied deep into the February night, and none of them has slept for more than two hours. Their disciplined posture, however, belies their emotions. Lawyerly joy has made them buoyant, and their uniform demeanor is a consequence of efforts to conceal a shared elation rather than of any unusual commitment to rigorous courtroom etiquette. They have persuaded their client to remain in the vestibule; even though they must acknowledge that she has become ever more conversant with the ways of the courtroom during the years of their acquaintance, they fear her behavior this morning will be insufficiently guarded.
Judge Shiras grasps his gavel, taps the bench lightly, and says, “Court will resume trial of the matter of Hillmon v. Mutual Life Insurance et alia. Mr. Green, have you something for us?”
“We have, Your Honor. Mr. Gleed and I have briefed this matter and are of the opinion that the exhibit objected to by Mr. Riggs is admissible as a document created in the regular course of business.”
Samuel Riggs starts to rise, for he has foreseen this argument and has a reply to it, but Wheat tugs his elbow and thus persuades him to keep his counsel and his chair for a moment longer. O.P. Shiras examines his gavel, then peers owlishly through his glasses at James Green. “No sir,” he says mildly. “It will not do. This was no business document, and it maligns the nature of the sentiments expressed therein so to describe it. The objection is sustained.”
Green nods, as though unconcerned. In the course of the night before he has resigned himself to this outcome; moreover, he has a secondary plan. “We ask that the court note our exception to its ruling.” A perfunctory ritual.
“Noted,” responds the judge. “Shall I instruct the bailiff to bring in the jury, gentlemen?”
Riggs does rise then, and says, “Your Honor, I trust your ruling extends as well to any effort by Mrs. Rieffenach to describe the contents of the letter she claims to have received from her brother?”
Shiras looks puzzled, and Riggs remembers that he would not have heard this name before. “Your Honor, this lady is the sister of Mr. F.A. Walters,” he explains. “In earlier trials, she testified to her receipt of a letter very similar to the one the court has just excluded, although she could not furnish it, saying it had been lost.”
Shiras looks toward Green. “The witness will say that this unobtainable letter from her brother also reports having made the acquaintance of a man named Hillmon?”
“She will, sir,” replies Green, this time with some agitation in his voice. He is now doubly dependent on the sister’s testimony, and had counted on Riggs to fail to notice that it was subject to the same objection as the Kasten letter. “Mrs. Rieffenach’s testimony corroborates in every respect the contents of the letter to Miss Kasten, which is why . . .”
“Then this testimony too must be excluded, Mr. Green,” interrupts the judge, writing rapid notes on his tablet. “Even if the loss of the letter might excuse its production, the testimony is subject to precisely the same hearsay objection. A man no more writes business correspondence to his sister than to his sweetheart. Both objections are sustained. The court will note your exceptions.” Ignoring both Green’s exasperated muttering and Gleed’s efforts, book in hand, to insinuate himself at the podium and make himself heard, the judge bangs the gavel and addresses the bailiff. “Please assemble the jury, and have them take their seats.”51
The exclusion of both the Kasten letter and the testimony of Elizabeth Rieffenach about the family’s letter from Frederick Adolph must have dismayed the defense considerably, but this ruling by no means led to the collapse of the defendants’ case. Perhaps daunted but not stymied, the defense attorneys proceeded to present a lengthy parade of witnesses (both live and by deposition); it was the newspaper’s opinion, however, that these witnesses did not add much to the jurors’ store of information. This portion of the trial apparently produced a certain fatigue in those required to attend to it. The Topeka Daily Capital reported on March 16:
The jury, the attorneys and the attaches of the court who have listened to the evidence or taken part for twelve days in the Hillmon case, begin to show signs of weariness. It was of absorbing interest so long as different witnesses were being constantly brought on, and each day was pregnant with new and startling features, but the reading of exhaustive depositions corroborating evidence already in has a tendency to cause the imprisoned twelve good men and others to glance longingly out of doors these bright sun-shiny days and sigh for liberty. The thoughts of the rural peers are plowing, sowing oats of potato and garden patch, and the further exemplification of the operations and appearance of vaccine sores on a fifteen-day cadaver, or whether or not Hillmon or Walters hair was dark brown very dark brown or just medium brown is lost for want of close discrimination. When, therefore, at 3:30 yesterday afternoon the defense announced that they would rest their case, there was evidence of general pleasure and satisfaction.52
The Hillmon lawyers were allowed to present evidence in rebuttal, and briefly did so. Then the arduous trial was suddenly over, all but the summations.
As in the prior trials, the closing arguments of counsel occupied several hours. John Hutchings opened the arguments for his client, and spoke for two and one half hours. The Daily Capital records that “[i]n the course of the argument Mr. Hutchings adduced many strong and apparently incontrovertible reasons for the correctness of his conclusions.” The Topeka Daily Commonwealth opined more neutrally that Hutchings had offered “a thorough and exhaustive review of the plaintiff’s case,” and characterized the arguments on both sides as “entertaining and instructive because able.”53
Hutchings was followed by J.W. Green for the defense. The Dean laid emphasis on the peculiarity of Hillmon’s choice to seek out an insurance salesman, and particularly of his decision to purchase such a large amount of insurance. His passions fully engaged, James W. Green closed with a plea for the jurors to heed the promise they made when selected as jurors to try the case on the facts without regard to sentiment. These high-minded arguments were mingled, however, with a subtle appeal to sentimentality:
We appreciate the fact that the plaintiff in this case is a woman and that the defendant is a corporation. We know that the hearts of men go out in sympathy to women. You have sworn to try this case as if it was between individuals, and while you may sympathize with this plaintiff, you must remember that there are other parties who also deserve your sympathy. You should sympathize with the aged father of Walters, who for nine long years has mourned his son as dead—with his sisters and brothers, who are waiting for a verdict from your hands that will justify them in taking up the body buried at Lawrence and burying him beside his mother in the cemetery at Fort Madison.54
On this note the court adjourned for the day, but scarcely had the judge’s gavel called it back to order the next morning before Mr. Samuel Riggs took his turn pleading Sallie Hillmon’s case to the jurors. His métier was righteous anger—against the agents who attempted to trick Sallie Hillmon after the death was reported, against W.J. Buchan and his exploitation of John Brown’s fears of prosecution, and particularly against the witnesses from New Mexico, whom he characterized as “saloon-keepers.” The jury’s duty, he argued, was not only to do Sallie Hillmon justice, but to “vindicate her husband.”55
George Barker followed for the defense, but he seems to have been somewhat unwell. He began by saying that he “was not in condition to speak long or to present the case as he would like to,” but then he seemed to recover somewhat. In its substance Barker’s summation did not break new ground, but his style produced a more homespun oration than Green’s. He characterized the case as a “tempest in a teapot” and averred that Samuel Riggs “don’t mean half what he says.” Mr. Barker enlarged on many matters that struck him as suspicious: the lack of warmth in John Brown’s letter informing Sallie of her husband’s death; the circumstance that John Hillmon’s journal, which he carried with him on his travels, contained no reference to insurance; the absence of any testimony from Levi Baldwin’s brother Alva, who according to the testimony was present when the Medicine Lodge grave was opened. He refuted the plaintiff’s claim that the Lawrence inquest was a sham controlled by the insurance companies by proposing that “[t]here were no disreputable persons at the inquest but myself.” He defended his cocounsel Green against attacks on his behavior with sarcasm: “His sins are so many he ought to have some one to help pack them.” W.J. Buchan he described as a man “whom the people have trusted twelve years; who sat in the legislature longer than any one man,” and here Barker waxed somewhat indignant himself: “Should the reputation of years be brushed away and Buchan be branded as a rascal on the testimony of this man Brown?” The plaintiff’s only hope, he suggested, lay in the fact that there was a woman on one side and an insurance company on the other.56
Lysander B. Wheat addressed the jury last among the attorneys, and his summation, according to the reporter, was “in some respects the most notable of those delivered.” The journalist’s hand must have been tired from the day of ceaseless transcription, however, for he wrote very little about the features that made Wheat’s address so notable, observing only that “with the aid of a vivid imagination and a keen insight as to human character and human nature and actions, [he] was enabled to present some vivid word pictures illustrative of the points he desired to make, which enlisted the closest attention of the jury and spectators.”57
One matter went unmentioned in the closing arguments: the love letter. As it had been excluded from evidence, it could not be mentioned in summation. The name Frederick Adolph Walters was spoken by every lawyer in his argument, but no word about the letter bearing his name and addressed to Miss Alvina Kasten had reached the jurors’ ears.
The twelve men spent their evening at home, anticipating the next morning’s instructions from Judge Shiras. Sallie Hillmon Smith would have awaited the next day as well, her spirits possibly buoyed by an extrajudicial event that had occurred in the courtroom at the beginning of the afternoon session: she had been handed a “beautiful bouquet of cut flowers” with a card attached saying “From Topeka ladies.”58
The judge’s summing-up, accomplished during roughly an hour and a quarter on the morning of March 22, 1888, was reportedly “regarded by the attorneys on both sides as able, clear, and impartial.” It considered the possible interpretations of John Brown’s act of signing the affidavit, as well as the various meanings attributable to Sallie Hillmon’s act of signing the releases. It touched on most of the disputed issues: teeth, scars, height, identification, photographs. It advised the jury concerning what matters they might take into account in assessing the credibility of various witnesses. But O.P. Shiras concluded by admonishing the jurors that all these matters were subordinate to the single question that they must decide: “whose body was it that on the evening of March 18, 1879, lay dead by the camp fire on Crooked Creek?” (The date was off by a day, but surely the jurors knew what he meant.)59
Thus instructed, the jurors retired to their deliberations. These occupied less than four hours; by 2:10 p.m. they informed the deputy who had them in charge that they had reached a verdict. Once brought into the courtroom by Judge Shiras, they disclosed through their foreman that their verdict was in favor of Sallie Hillmon. With accumulated interest, the total award was $37,650.60
The jurors, apparently a convivial group, had another communication for the judge as well. They conveyed in writing that they wished to “give expression of our appreciation of the uniform kindness and courtesy extended to the jury by the Hon. O.P. Shiras,” and further to compliment the “eminent judicial fairness and ability” of the visiting judge from Iowa. This communication was signed by each member of the jury: Samuel Kozier of Shawnee County, G.W. Coffin of Morris County, Enoch Chase of Shawnee County, Furman Baker of Shawnee County, A.S. Davidson of Dickinson County, Riley A. Elkins of Clay County, J.P. Rood of Montgomery County, Jacob Moon of Lyons County, J.W. Farnsworth of Shawnee County, H.S. Miller of Morris County, J. S. Bonton of Greenwood County, and J.S. Earnest of Shawnee County.61
In such sturdy hands had Sallie Hillmon’s cause rested, and in them found vindication. But this happy outcome (happy for her in any event) was only a way station; soon her fortunes would rest with men of very different lives and experiences than those of these Kansans, or even of Judge O.P. Shiras. By 5:30 on the afternoon of the verdict, the defendants had filed a motion for a new trial, the usual preliminary to an appeal.62
Back in Iowa, Judge Shiras summoned the attorneys to his home courtroom in June 1888 to present their arguments on the motion for new trial. The grounds put forward by the defendants were misconduct by the plaintiff, misconduct by the jury, the claim that the verdict was contrary to the evidence and the law, and “newly discovered evidence material to the defendants, which it could not by reasonable diligence have discovered upon the trial of this action.” Judge Shiras denied the defendants’ motion, whereupon the insurance companies immediately announced that they would appeal the case to the United States Supreme Court.63
What was the newly discovered evidence the defendants claimed to have found? The records do not disclose it, but it may have been related to a startling report that surfaced about a year after their motion for new trial was denied. In May 1889, while the companies’ appeal was pending before the Supreme Court, the Chicago Tribune reported that a witness had claimed that John Hillmon was alive and in custody. The source of this information was said to be Detective J.H. Franklin of the “Santa Fe secret service,” who maintained that until recently Hillmon had been living in the mountains of Old Mexico. Franklin asserted that Hillmon had been captured during a trip across the Arizona border, and was cooling his heels in the jail at Tombstone.64
Sallie Hillmon Smith, when asked for her reaction to this news, seemed unsurprised and unconcerned.
I expect some of the insurance companies were getting ready to pay me and this story was gotten up by the others to stop them. This is not the first time they have claimed to have found Mr. Hillman. It was a trick of the insurance companies or their lawyers that they always resorted to about the time my case was ready for trial. I think one of the lawyers is the author of this romance. This will not be the first time the lawyers for the defendants have sent out false reports. They once went so far as to try to damage my reputation through the press. I am resting easy, however, and am not concerned in the gossip.65
From the beginning, the Tribune seemed to credit Sallie’s account more than it did the report that Hillmon was alive. Indeed, it maintained that an agent of the New York Life Insurance Company had stated to their reporter “that his company would pay her attorney $16,500 this week, they having tired of the litigation.”66
The Kansas papers, after at first reporting breathlessly that Hillmon had been found and arrested, turned the story around within a few days. Two days after its local rival reported that “John W. Hill-man, whose supposed remains were found at Crooked Creek, in Barber County, shot through the head, has just been arrested near Tombstone, A.T., where he had been working in a mine,” the Atchison Daily Champion inserted into its gossip column an item explaining that “Messrs Gleed and Green, two of the attorneys for the insurance companies in the Hillmon case, do not put a great deal of confidence in the reported arrest of Hillmon, in Arizona. The man who arrested the supposed Hillmon is said to be a detective by the name of Miller, who has been hunting Hillmon for years, and has become something of a crank on the subject.” The Lawrence Daily Journal clarified further: “It is positively denied at the offices of the insurance company’s interested that John W. Hillman . . . had been found. It is said the companies have no trace of him whatever and it is a mystery where the story of his discovery started.”67
The Chicago Tribune’s prediction that the New York Life Insurance Company would settle with Sallie did not come to pass. None of the defendants settled her claim before the companies’ appeal reached the United States Supreme Court.
Detective J.H. Franklin was not heard from again on the subject of John Hillmon, at least not in the national press. But he would not be the last operative to represent, before the Hillmon saga ended, that he could produce its hero (or villain) alive.