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position to the motion were also offered by ' effect that Watt informed him “that he did the state. After considering the evilence not know where the parties were coming in support of the motion at length the court i from, but that he was satisfied that they said: “I think I shall overrule the motion, i were from out of town; that he (Watt) had with permission to the defense to renew it at been asked to take part.” Mr. Watt was out the close of the examination of the jurors in of town at the time the motion was presented, attendance to-morrow." Pursuant to the rul- and, although a subpæna had been issued for ing of the court, on September 29th, and after him, the sheriff had been unable to serve it, 103 jurymen had been examined and the jury and consequently the testimony of Mr. Watt list exhausted without securing a jury, the was not at the time obtainable. motion for a change of venue was renewed, With reference to the matter of the state. and based upon the additional showing of the i ments of Jr. Dron, the county clerk, it had jurymen examined since the motion was first previously been shown by affidavit and the made. The court examined the sheriff as to testimony of witnesses that Dron had rethe number of electors who in his opinion marked to one of defendant's counsel, witbwere left in the county who would be subject in the hearing of the talesman: “I'll tell to jury duty, and the sheriff gave it as his you one thing, if I had been in Austin when opinion that there were 150, approximately. this occurred, you would not have been put The court denied the motion, and a recess was to the trouble of trying the case." Because taken until 10 o'clock a. m. on October 1st, of this remark by the clerk, the court orderat which time the court notified counsel that ed him to provide a deputy and refrain from he had submitted to the county commission- attendance upon the court. With regard to ers the selection of 150 more names for jury- the remark in question the court, in considmen. At the session of court held on the 1st
ering the motion now under discussion, said: day of October the motion for change of
"You have already made a showing that the venue was again renewed, and denied by the
eight jurors in all probability heard the court. The court announced that he would
statement made by Mr. Dron, and, as it was issue a venire for 100 names, stating at the
not contradicted, it must be accepted as a same time: "I do not know whether you
fact." Upon the showing thus made the mo[the sheriff) (an find 150 in the county or
tion for leave to re-examine the jurors then not.” A recess was then taken until October
in the box was denied, and the examination 10th. On the day last mentioned court ('on
of the talesmen on the new venire was provened, and all the new veniremen responded
ceeded with, and a jury finally obtained; the to their names, excepting 26, who were re
lefendant in the meantime having exhaustturned as sick, out of the county, or not
ed all his peremptory challenges. Upon finalserved. Immediately after the convening of court counsel for defendant presenteel a mo
ly securing the jury counsel for defendant
asked for and were granted, until the followtion, supported by the affidavit of the defendant, for leave to examine the 8 jurors
ing day to prepare affidavits in support of a who had been passed and who were in the
renewal of the motion for a change of venue. box at the time the recess was taken on the
The final motion for change of venue was als Ist of October, because of a certain alleged
follows: "The plaintiff will please take nothreatened assault upon the jail to se ure
tice that on the opening of said court on the the person of the defendant by violent means,
12th day of October, 1906, the defendant will which allevel threatened assault it
move said court to change the place of trial legeil might have come to the knowledge of
of said action to some other county within
Said motion will be made and the jurymen in the box, and, further, he said state. cause of certain remarks of the county vlerk i bilsed upon the ground that a fair and immade in the hearing of certain of the tales
partial trial cannot be had within the county men. The hearing upon this metion was in of Lander, which is the county where said the absence of the jury. T. A. Oliver, the
(lefendant was indicted and where said action Teputy sheriff and jailer, testified that during
was set for trial, for the reason that 98 per the recess of the court he had been informed ! (ent, of the people of said county are incens. by George Watt, an ex-sheriff of the county, ed and angry at the defendant, and are clam"that there was going to he an effort made,
oring for his life, and have threatened him or very likely to be an effort made, to take with violence prior to the date of his said the man from the jail and lynch him, and I trial and since said trial has been in progress. had better be very cautious and get help if I At the hearing of said motion said defendcould. Ile (Watt) said he could not final ant will use his affidavit, a copy of which is out the parties, but he was told that the man hereby attached, a copy of the testimony of would not be allowed to leave town; that it the witnesses heretofore testifying on a simiwas either lynch him or break the county. lar motion, and the affidavit used on said I asked him if he coulil do nothing in the
last-named motion, together with the stenomatter, and he said he did not know whether · graphic copy of the voir dire of the juryhe could or not. If it was possible he would men E. W. Hunt, J. A. Hoskins, and Geo. do so. IIe came to me the next evening, and Litster; also the stenographic report of the told me there would be nothing done at examination of all the jurors examined in present." The witness further testified to the said case since the 24th day of September,
1906, and all of the records and files of said (ase, together with the testimony of Scott Hickey and the testimony of one Plummer."
Without setting forth the contents of the numerous affidavits filed in support of the various motions for a change of venue, we will review the testimony of various witnesses in support of and in opposition to the motion, and state certain facts which are either admitted or clearly established by proof. The defendant, Dwyer, shot and killed one A. C. Williams on one of the principal streets in the town of Austin about 8 o'clock of the evening of July 31, 1906. At the same time he shot one Ilenry Dyer, the companion of Williams, inflicting a wound on Dyer which rendered him a cripple for life. There is nothing in the record showing or tending to show any motive upon the part of the defendant that would cause him to wish to kill Willianis or injure Dyer. In fact, it appears undisputed that the defendant was not even acquainted with the deceased, and had only a slight acquaintance with Dyer, and that acquaintance entirely friendly. The theory of the state, if we understand it, was that the defendant killed Williams by mistake, thinking the latter was one O'Brien, a man with whom defendant bad had trouble during the day over a prostitute. W’illiams, the deceased, was a young man highly respected in the community, where he resided with his parents. He was conductor on the local narrow-gauge railroad running between Austin and Battle Mountain, the only towns of any considerable importance in the county. He was known by the majority of the people of the county, and was regarded as a very popular young man. Dyer, the wounded associate of Williams, was at the time county recorder, a nan almost universally known in the county. The defendant had only been in Austin and in the county a few days when the homicide occurred. He was a gambler by occupation, and was without friends, and had but few acquaintances in the county where he was to be tried for his life. It does not appear, and it is not likely from the facts shown, that he had many friends of influence at any place. The shooting down of two proniinent citizens of Lander county upon one of the principal streets of the county seat, without any apparent cause, by a stranger whose character was not of the best, was something that quite naturally would arouse general public
general public indignation. Immediately following the homicide it is shown that threats of violence against the defendant were made ; some of these threats being made by prominent citizens both at Austin and at Battle Mountain. Whether or not there was ever any real danger of mob violence, the public feeling was such that the sheriff and peace officials of the county deemed it necessary to take precautions for the safety of the prisoner. The public feeling iminediately following the homicide and at
the time of the trial may be indicated by the following extracts from the testimony of witnesses given in support of and in opposition to the motion for a change of venue:
P. A. McCarran, one of defendant's attorneys, testified: That in conversation with C. F. Littrell, the postmaster of Austin, during the progress of the trial, the latter remarked concerning the defendant: "It would be a hell of a jury that wouldn't convict that fellow.” Also that in a later conversation Mr. Littrell said: "If he was acquitted tomorrow, he would not be apt to get out of town alive."
C. F. Littrell testified as follows: "I asked McCarran if he was one of the counsel, and told him he had a pretty hard fight here, and he said: "Would you want to proffer a box of cigars that we do not clear him?" I said: “It would be a hell of a jury that would turn him loose. * * * Q. Is it not true that the opinion you expressed is entertained by all the intelligent members of this community? A. At the time the thing happened there was quite a feeling, but I cannot say that I have heard any one express themselves lately. Q. Ilave you ever heard anybody express themselves contrary to the opinion that you expressed yourself? A. No, sir. *
Q. Do you remember expressing a further opinion to Mr. McCarran with reference to the probable result to the defendant in case he should be acquitted on this trial?
A. I remember saying that I thought that if the officers had not made the arrest as soon as they did, and the defendant had attempted to get out of town, I do not think they would have ever had him locked up. Q. You mean that he would have been lynched? A. Yes, sir. Q. The public feeling at that time was very strong? A. Most assuredly. Q. If the officers had not got hold of him, the people would have lynched him? A. Yes, sir. Q. The feeling against the defendant at the present is very strong; as far as you know? A. I have not discussed with anybody except Mr. McCarran recently. I remember telling Mr. McCarran about the first part of it. Q. Did you hear Mr. McCarran testify this morning? A. Yes, sir. Q: Wasn't his testimony with reference to this matter substantially correct? A. I would differ in the point as to whether I said he would not get out of this trial, or whether I said when the arrest was made. I will not be positive about about that.
Q. Don't you think that the condition of public sentiment with reference to this matter will have some slight effect on any jury that is impaneled to try the case, however fair the jury might be? A. I could not say in regard to that. Of course, it might have some; but I don't see why a man could not be conscientious in the matter."
C. B. Francis, a native of Austin, testified that he saw the remains of A. C. Williams and the condition of Henry Dyer after the
shooting; that the general expression of Bank of Justin, also an attorney at law, tesopinion was that the party who killed him tified as follows: "Q. Some time along about "ought to be hung-summarily executed"; the 31st of July or the 1st day of August that he heard several expressions of opinion you were asked to counsel with or see the that he ought to be lynched. Subsequently defendant, were you not, or told that you the witnexs Francis was employed as a dep- could have the case, or something to that uty sheriff to assist in guarding the prisoner. effect? A. I think it was some time within Witness testified that after he was so em- a week after the killing of Mr. Williams that ployed he was approached by two or three Sheriff Jurphy came to me. I don't rememparties and asked if he would take a hand ber just what the proposition was, but the in lynching the defendant.
idea he gave me was that I could have a II. Warren, one of defendant's attorneys, place in the defense of this case if I desired testified that he had talked with more than Q. What did you reply? A. I told him 50 persons at Battle Mountain and Austin that I did not want it. Q. Why? A. I told with a view of ascertaining what the feeling him in the first place that it was the unpopwas in Lander county relative to the defend- ular side of the case, and I did not care to ant, and that he had not beard an expression go into it, and my own feelings were such of opinion farorable to defendant, but that that I did not feel that I could do Mr. Dwyhe had invariably heard expressions of opin- er justice as an attorney. Q. What did you ion strongly unfavorable to him.
consider the feelings as against the defendR. R. Landes, an employé of the Bank of ant? A. I took it that his position was so Austin, testified substantially to the follow- unpopular that I would injure myself in the ing effect: That from the expressions of opin- long run by taking any part in the case. Q. ion that he had heard the feeling in the com- Do you think there has been very much of a munity was not at all in favor of the de- change since that time? A. No, sir ; I do not. fendant, and in the majority of cases was
* * * My friendship for Henry Dyer, and very strong against him. On the night of my friendship and respect for Bert Wilthe killing, witness testified, he heard two liams, and the general view that I took of or three persons express themselves to the this killing, were such that I could not go effect that the defendant should be lynched into the defense of this man with my whole
. T. A. Oliver, deputy sheriff and jailer, tes
heart and soul, and give him what he was tified to the following: "Q. You have had an
entitled to get from me as an attorney unopportunity since to learn what the public
der the onth that I have taken before this opinion is with reference to the defendant? court.
Q. Mr. Cantwell, what did A. Yes, I have heard talk. Q. Will you state you consider the public opinion in this town whether or not, as far as you have heard,
and this vicinity with reference to the guilt that it is favorable or unfavorable? A. I of Mr. Dwyer at the present time? A. I should say it is unfavorable. Q. V'ery un- should judge it is almost the unanimous favorable? A. I should say very unfavor
opinion of the community that he is guilty able. Q. To what number of people of Lan- of the offense charged against him. Q. Do der county does this feeling extend? A. I you believe, from your own experience, that could not say. Q. Do you think it is enter- any one, being in this town and community tained by a small number or a large num
at the time of this occurrence, and remainber? A. Judging from our efforts to select ing here ever since, could escape a feeling a jury, I should say quite a large number of in this matter? I mean a feeling of resentpeople. Q. Do you think that a jury, if se- ment against the defendant? A. No; I do lected in this case, will not be influenced by not think they could.
* Q. Do you that opinion? A. I would not like to say not believe that any jury impaneled to try whether I do or not. Q. Don't you believe,
this case would be to some extent influenced from your knowledge of the situation, that by the feeling of prejudice against the dea jury that failed to find a verdict for con- fendant, which you say exists in this comviction would receive a very hot reception in
munity? A. Of course, there is a possibility the town of Austin? ? A. I believe they
that you could get a jury so strong-minded would. Q. You believe a verdict of that kind that they would not consider this; but I do would be very unpopular? A. Yes, sir. Q. not believe that it is possible. Q. To get a Don't you think that the fact that it would jury that would not be influenced to some exhe unpopular would influence a jury in ar- tent by the feeling of the community? A. I riving at a verdict? A. I have no right to think it would not be possible to get such a say. Q. What is your opinion? A. If I
jury.” were a juror, I would say it would have no N. E. Bartoo, master mechanic of the Neintluence. Q. With your knowledge of juries
vada Central Railroad Company, testitied as here and the community, do you think that follows: “Q. Do you know of any exciter a jury will not be influenced to some extent condition of public feeling at Battle Mounby the public feeling that exists? A. If a tain? A. Yes, sir; it was very strong. Q. juror qualifies, he should not be so; but I It is right now? A. Yes; there is some feelshould not like to say that I believe he ing there yet. Q. What were the manifestawould be. That is going too far."
tions, so far as you remember, of that feelChas. A, Cantwell, assistant cashier of the ing? A. The feeling was that they wanted
to hang Dwyer. Q. You mean by that they | fair, and if Dwyer should be taken out withwanted to hang him by violence? A. Yes, out proper precaution, and lose his life, it sir; they talked about lynching. Q. Were would be a sad reflection on the officers of you present at any meeting that was held this court, and it was to take every precauthere? A. There was not any meeting. It tion that, in the event of anything of the seemed to be a general feeling with every- kind did occur, the prisoner would have all body. Q. Didn't some of them, with the the protection it was possible to give him. view of carrying into effect the general pub- Q. You must have thought there was some lic sentiment, arrange for car or engine to danger? A. I thought there was a possibilcome to Austin? A. They asked me if they ity of an attempt to get him. Q. You thought could get an engine to bring them up here. that by reason of the excited condition of I told them, 'Yes'; that I would run the en- public opinion? A. Yes, sir." gine and help pull the string. Q. How long M. J. Murphy, sheriff of the county, was was that after the death of Mr. Williams? called by the state and gave the following A. It was on the 1st of August. Q. Did you testimony: “Q. Were you here July 31st meet Mr. Watt when you came to Austin? | last? A. No, sir; I arrived here on the 1st A. I met him the first time after I came up of August. Q. Did you on that day, or any to the funeral, in the afternoon about 2 day subsequent to that time, witness the o'clock. Q. Did you have some conversation gathering of any mob making any violent with him regarding what ought to be done manifestations, demonstrations, or clamoring regarding the matter? A. We talked the for the life of Dwyer?
for the life of Dwyer? A. Well, I did see matter over, and he said: 'I don't know as several little crowds around. Q. Did you we can do anything now. We might see hear them encouraging or soliciting each othWilliams, and if he wants to do anything, er or any one to make an attack on the jail it is not too late yet. I said if there was or otherwise get possession of Dwyer? A. anything doing I would stay. Q. Were you I did not hear them, but surmised what was discussing the lynching of defendant? A. going on. Q. You saw people standing toYes, sir.”
gether talking, and you surmised that they George Watt, ex-sheriff of Lander county, were discussing that subject? A. Yes, sir. testified as follows: "A. I have forgotten
Q. You took what steps were neceswhether it was the day before Bert was sary, according to your judgment and those buried, or the day after,
* * I met Bar- with whom you advised, for the safe care too in front of the post office, and we talked and protection of the defendant? A. I did. about the murder, and he asked me what I Q. Is it not a fact, Mr. Murphy, that you thought about it. I told him I thought we
openly and on more than one occasion said ought to hang him (Dwyer); but I said that, that any who made an attempt to take the if his father would not take the interest, I life of Dwyer would have to do so over your did not feel as if I cared to put myself out. dead body? A. I did.” On cross-examination Bartoo said, 'We will go down and see Wil- the witness testified: "Q. I understood you liams,' and I said 'All right.' As we walked to say you were at Battle Mountain when down the street, we met him at the corner this thing occurred? A. I was. Q. Did you of Bray's, coming down the hill. We put the hear anything of the excited condition of facts before him, and he said that he did not public opinion at that time? A. I did. Q. care to see any more of us get into trouble, By reason of which you telegraphed special and would rather we would let it drop. I instructions to the deputy here to take spesaid 'We will let it drop right here,' and cial precautions? A. Yes, sir; I wired him since then I have taken no interest in the to capture the man if possible, and use all case. Q. You are quite extensively acquaint- precaution for protection. Q. The reason of ed in Austin? A. Yes, sir; I know every one that was you were aware of the condition of here. Q. Did you hear many expressions of public opinion? A. Yes, sir. Q. When you opinion as to what ought to by done to Dwy- came to Austin, wasn't the condition of puber? A. No; I was very busy at the time,
lic opinion, to your mind, in such an excited and did not hear very much talk. As far as
state that you thought it was necessary to I heard was a general expression of opinion. employ extra guards? A. I did. Q. You did All were very much worked up over the mat- employ extra guards? A. Yes, sir. Q. How ter, nearly every one. Q. The feeling was many? A. Four. * * * Q. You have quite strong against Dwyer? A. Yes, sir."
an extensive knowledge in this county? A. A. J. Maestretti, district attorney, called Yes, sir. Q. Doesn't the feeling that existed by the defense as a witness in support of the in Austin at that time with reference to this motion, testified to certain precautions taken defendant extend generally to the county?
by the sheriff to protect the defendant in case A. As an officer I hear more or less of it
ing questions and answers appear in his testimony: "Q. You thought it necessary to take extra precaution? A. I did not think it was absolutely necessary. It is a fact that I thought a great many of the people were very angry and excited about this af.
? Yes, sir. Q. You regard it as being general? A. In a sense I do. Q. As an officer, do you believe that, with the present state of public feeling in this county, a fair and impartial jury can be obtained to try this case? A. That is a very hard question for me to answer. I believe it is possible to get 12 men of adverse criticism of his act, and the opinhere. There are good square men here. Q. ion that the penalty of the law should be visDo you think it probable? A. I will say it is ited on him. Q. Have you heard anything possible. Q. During the time these hostile | favorable to him in the way of expressions? demonstrations and feelings prevailed against A. I did hear that there was a good deal of the defendant, did you not, on more than one sympathy being manifested, but from what occasion, have to tell people in this town that quarters I could not tell. Q. Did you witthey could not take Dwyer unless they took ness the gathering of any mobs, at or about him over your dead body? A. I did. Q. any of those times, for the purpose of taking Did you believe it necessary to make those the defendant's life? A. No, sir. Q. Did statements? A. Yes, sir."
you know of any such act? A. No, sir." L. A. Weller, justice of the peace for Aus- Cross-examination by Mr. Warren: "Q. You tin, was called by the state and testified to say that you have heard some expressions of the following: “Q. Do you believe it is sympathy in certain quarters, but you do not probable at this time, from your experience know the quarters? A. I said I heard that and opinion, and what you have heard, that there were some expressions of sympathy, a fair and impartial jury can be secured in but from what quarters I did not know. On this case? A. I have never seen any demon- the 19th of August I was introduced to a genstrations that would lead me to fear for one ; tleman for the first time, and the conversamoinent that there would be any violence or tion led up to the recent tragedy, and about attempt to take the defendant. I have heard the second expression that the gentleman it talked about more here to-day than at any made to me was that there were a great other time. Q. Do you believe that there is many people in Austin sympathizing witî the any existence of any such feeling that would defendant. Ile was a stranger here. Said have any influence whatever on a jury sworn he had never been here before, and I did not to try the case? A. I do not think there is. i ask him for specific information as to who I have not heard anything that would lead was expressing sympathy for the defendant. me to believe that there was any violence Q. It is a wonder that you did not have some contemplated. Q. Do you believe, from what
doubts as to his sanity. A. Yes, sir; I did, you have been able to hear, that in the event but he proved to be a very intelligent man. that a jury was secured to try this case, and
Q. Have you ever expressed your own opinthey would render a verdict of acquittal of ion in a public way? A. Yes, sir. Q. You this defendant, that they would be subjected have heard a number of people express the to any abuse, contempt, or anything of that same opinion that you entertain? ? A, Not kind. A. None whatever. If he was enti- quite as strong as I did. Q. It was not fatled to an acquittal, I think the community vorable to the defendant? A. No, sir.
, . Q. would applaud the act of the jury." Upon Outside of this solitary instance, you have cross-examination the witness gave the fol- | heard no expressions of sympathy for the delowing testimony: "Q. Didn't you hear, since
fendant? A. No, sir." Redirect: "Q. You this killing occurred, and haven't you heard have stated that you stated your opinion very frequently, expressions in this community emphatically. Have you any objection to against the defendant? A. I have heard ex- stating at this time the expression that you pressions against lots of people. Q. Did you made? A. No, sir; I said that if the de hear any expressions against this defendant? fendant had killed my boy in the manner in A. Not particularly. Q. Expressions of opin- which he had killed that boy, if I could get ion characterizing the offense ? A. I have
hold of my pet rifle, I would get him if it heard criticisms upon his acts. Q. Were was the last thing I did on earth.” they favorable or unfavorable? A. I have
A, B. Cooper, called on behalf of the state, heard several people say that he ought to be testified as follows: "Q. I want to read you hung for his act. Q. Didn't you yourself say a little portion of the affidavit of Mr. Dwyer that if any man ever deserved hanging it at the bottom of page 9. (Reads portion of was this defendant? A. No, sir. Q. Didn't defendant's affidavit concerning A. B. Coopyou say that in front of this courthouse? A. er.) Mr. Cooper, what have you to say as No, sir; I said if the man had committed the to the truth of those matters? A. I don't offense, in all probability he would be hung. think it is as it ought to be. I did not make Q. If he committed the offense he ought to any remark that I would lose my license if I be hung? A. It was first reported that he testified in this case. I did talk with Mr. killed these two people in cold blood. I said: Warren, and he asked me a few questions, 'If that is true, he deserves to hang.' Q. and I told him I thought I did not know What was it you said with reference to the enough about it to make a witness, and I defendant and what ought to be done to him? asked him if the prosecution did not subpona A. I said, if he was guilty of the cold-blood- me, if he would not, and he said, 'No.' Q. ed murder, he should be hung."
Did you say you were afraid to be called as Dr. A. L. Mann, a physician residing at a witness because your business would be Austin, testified on behalf of the state as ruined? A. No, sir. Q. Did you say your follows: "Q. Have you heard any expres- license would be taken away from you? A. sions of feeling with reference to this defend- No, sir. Q. If you knew any testimony that ant? A. Yes, sir; I have heard a good deal would be favorable to Dwyer, would you hes