A FOUL MURDER – PART 3
This is the third installment of the newspaper accounts of the July 28, 1885 murder of Harvey Keith. The following articles cover the actual trial, including jury selection with the account of a juror being dismissed and fined $10 due to the fact that he was 35 minutes late because he had been playing pool in a hotel; medical testimony, as well as prisoners’ testimony regarding the Barkers; and a by-piece giving people a glimpse of the work of the court stenographers and the typewriter (which was still a novelty).
From the Kalamazoo Daily Telegraph, October 14, 1885, p.2
THE BARKER TRIAL.
TWELVE JURYMEN FINALLY SECURED.
Names of the Men who are the Center of Interest — Tampering Rumored —
A Negligent Juror Promptly Dealt with — The Judge’s Well-Timed Remarks.
Paw Paw, Oct. 14. – [Special.] — Including the special venire there were 120 men to be drawn for jurors in the Keith murder trial, and at the close of the first day Judge Mills ordered 75 more summoned. Between those excused and the number rejected by the defense on peremptory challenge, the 195 names were gone over and still the jury was not complete. About the middle of the afternoon the defense dropped the plan of thinning out the jury box, and there was a prospect of the speedy completion of the panel. The prosecution, however, rejected a man or two and then the trouble commenced again, great difficulty being experienced in getting men who did not have to be thrown out for being under the influence of previously formed opinions. The publication by the local papers of the alleged confessions figured more than anything else in disqualifying citizens for jury duty in this trial. The matter of location also played an important part. The residents about Bloomingdale and in the adjacent neighborhoods having ready communication with that place, all had opinions, and positive ones. In two or three instances, that of Mr. Seneca Anderson for one, they considered themselves able to restrict their conclusions as jurymen strictly to the evidence admitted in court, but no amount of fine points would bring them out in any other statement than that they had opinions. Pressing the case worked to the possible disadvantage of the respondents by adding some of these expressions of opinion to the general atmosphere of the court room. The two localities shown to be most colored by fixed opinion were that of the tragedy and that about the county seat, where printed reports in extenso of the alleged confessions had been most thickly circulated. On the contrary Porter and Keeler townships, near the south county line, were moderately free from this difficulty. One leading man of Keeler, Mr. Gregory, an intelligent citizen, had neither heard nor read of the case. Another peculiarity in getting this jury was the application of the new point established by an opinion from Justice Sherwood that men over 60 years of age, who have long been exempted from jury duty as a matter of privilege, are also debarred from such service, their age constituting a cause for dismissing them. One man was excused for illness and three or four on account of deafness. Judge Mills in most cases allowed the defense all the “rope” they desired in rejecting jurymen for cause, in order that they might have no legitimate ground for complaint.
At the very opening of Tuesday’s session there was a momentary sensation on a small scale, on the question by the prosecution, to the first man called to the jury box, whether he had not been in consultation with the attorneys for the defense since he was summoned. It appeared before the point was dismissed that the man, or some friend for him, had intimated to the lawyers on both sides that he was a poor man and would be glad to serve on the jury if it was all right, for the sake of the fees. He was rejected on this account, and Judge Mills took this opportunity to correct a somewhat prevalent understanding by the observation that it was punishable for any person to solicit or seek appointment on the jury. The reasons for such a law is manifest, but it is not uncommon for men to request supervisors to place them on the jury lists, in ignorance of the fact that such a request is in violation of an express statute.
At the close of the afternoon yesterday the court ordered that the officers have all persons who had not responded on the special verino present, and gave the sheriff instructions to summon 25 talesmen from the very best citizens in portions of the county least likely to be prejudiced, to be in attendance.
The jury in the celebrated Barker-Keith murder case was completed shortly before noon. The following are the jurymen: Wm. Schoolcraft, Pine Grove; John M. Kidder, Columbia; John DeHaven, Arlington, Wm. Challens, jr., Bangor; Chas. Ryder, Keeler; E. S. Dyckman, South Haven; Chas. Ferry, Porter; George G. Seeley, Geneva; Clarence Lomison, Porter; John Cook, Decatur; B. H. Newton, South Haven; Richard F. Cook, Lawrence.
There was a sensation in court this morning owing to rumors that one or more jurymen had been approached with propositions from interested parties. The only foundation for this when investigated, proved to be this: One juryman had been told by another that there were rumors of money being used on the jury. Further replies elicited that Rev. Mr. Fish, the Baptist minister, had told the latter juryman that rumors of corruption were heard on the street. The juryman who related this, Mr. Wheeler, was dismissed. Judge Mills commented in severe terms on the habit so prevalent of people assembling in companies to discuss and prejudge a case while it was still pending in court. He especially condemned such conversation when remarks could be overheard by a juryman. Such prejudice created made it difficult to do justice to both sides of a case. If a similar instance came to the notice of the court again, he intimated that a searching investigation would follow.
At the opening of court this morning a delay of 35 minutes occurred in consequence of the absence of a juror. Then the court took a recess till the end of the hour when the juror appeared. It was brought out by the court that the juror, Elbridge Nutting, of Covert, was absent for no good reason; that he had been playing pool in a hotel. The court promptly fined him $10 and dismissed him from the jury.
Mr. Matt. Pinkerton of Chicago, who was so prominent in developing the case, arrived yesterday afternoon. Before dismissing for the noon recess Judge Mills made some remarks on the general features of the case, its importance and its serious nature, addressed to the jurors.
Between prejudging of the case through the newspaper reports and the free use of the right of peremptory challenge, the impaneling of the jury has been made a very expensive business for Van Buren county. The county treasurer up to last night had paid out over $1,000, all in fees to men who were summoned and on examination rejected. This does not include a further list dismissed to-day. That is not necessarily the price of intelligence. A cause is not tried by the newspapers, and if a citizen accustoms himself to forming opinions that are provisional instead of conclusive, where the information is only that of hearsay or the result of unofficial investigation by persons employed by the newspapers, he can properly sit as juryman and keep his mind clear to weigh a case solely on the merits of the testimony coming before him on a trial. The trouble of course is that people choose to think “as they’re a-mind to,” but the demand for reducing the expense of court and especially the demand among the people of Van Buren county, in this case, against a change of venue makes it the imperative duty of citizens to retain a frame of mind sufficiently free to constitute them suitable material for the jury service.
From the Kalamazoo Daily Telegraph, October 15, 1885, p.2
THE TRIAL BEGINS.
TESTIMONY OF GRIEF-STRICKEN PARENTS.
Five Witnesses Identify the Body of Harvey Keith —
The Mark Under the Neck — Theory of Prosecutors — An Alien Juror.
Paw Paw, Oct. 14. — [Special.] — Respondents and People both announced themselves content with the jury and it was sworn at 11:30. Immediately after recess was taken until 2 o’clock. The court was at once informed that the last juror drawn, Chas. Ryder, was a foreigner and unnaturalized. At the opening of the afternoon session the prosecution moved the removal of the juror for cause, and that his place be filled. The defense moved the dismissal of the whole panel and commence again de novo. Court took a recess until 4 o’clock to look up the authorities. The question seemed to be somewhat new.
On resuming the session the court ruled that the juror step aside and that the panel be filled, the defense having the right of challenge.
Lorenzo Selby had never read the confession, had no opinion, lives in Hamilton, takes no county papers, was interrogated by both the prosecution and the respondents, and was retained.
Mr. Tabor presented the people’s case to the jury. He ocupied [sic] 45 minutes. It was really painful to witness the expression of the old gentleman Barker while Mr. Tabor was detailing the prosecution’s theory of the case. In fact he could scarcely restrain himself from breaking down in grief. The prosecution called as their first witness J. O. Keith the father of deceased.
Paw Paw, Oct. 15 — [Special.] — The presentation in the opening argument directed attention to their expectation of showing that there was a concerted plan between the Barker brothers in relation to Harvey Keith, the murdered man. In line with this they would show that on the night in question when Marshall Barker left home, ostensibly to obtain work, and returned home late in the evening, he did not take the natural and direct course home but went around to his brother’s house first.
The first witness called was Mr. J. O. Keith, the father of Harvey Keith. The clothing worn by Harvey Keith was shown in the court room and his personal effects, including a straw hat, pants, vest, coat, cane, pass book, watch and chain, pen-knife and ring. The shirt on the body when found at the lake was also exhibited. Up to noon five witnesses were called: the father, mother and brother of Harvey Keith, and two neighbors, Albert D. May and his father-in-law, Gideon Shafer. Their testimony related to the identification of the body found at the lake as that of Harvey Keith, which point must be legally established; and also to showing the personal effects exhibited to be his.
Mr. Jas. O. Keith, father of Harvey Keith, was examined only as to those points at this time and will be called again later in the case. He testified that he did not identify the body at the lake, as the face was swollen beyond recognition. But afterwards the body was exhumed at the cemetery and he identified it there, the swelling of the face having gone down. That examination satisfied him that the body was that of his son. He recognized him by a scar on the left arm caused by a wound of a dirk received by Harvey at Evart, Osceola county, when defending himself from the assault of a bully. This scar was on the body exhumed.
When found at the lake the tongue was protruding, the eyes were bulged out, and when the chin was drawn up a white mark three quarters of an inch wide was found. Other means of identification were color of the hair, moustache, the size of frame and the weight. He had a large frame rather inclined to be slim, broad hands and short fingers. These characteristics were those of the body found, according to these witnesses.
The testimony of Mr. J. O. Keith and his son J. L. Keith was that Marshall Barker did not bring Harvey’s clothing home, but they went to Barker’s and demanded them after Barker had brought to them Harvey’s watch, pass book and $10 in cash. Barker told them the clothes were there and said to Mr. Keith that he was going to have Harvey arrested and sent over the road, but hinted that he might be induced not to do so by a money settlement. Mr. Keith replied to find Harvey and after he and Harvey had talked it over they would see about that.
The defense attempted to show that the mark found under the neck of the corpse was made by a strip of bark, which passed around the head of the body, was used to tow the remains round through the lake to the landing place. But testimony showed that the bark was passed around the face and had, and not under the chin.
The younger Keith testified that when Marshall Barker came with the watch and passbook he asked him to give his father a list of the clothes at his house. Young Keith told him to give the list himself.
When Mr. Keith, the father, went after his son’s effects to Barker’s house, Marshall called in a man named Brown to witness the delivery of the goods.
Mrs. Keith when called to the stand was dressed in mourning, looked ill and worn. She appeared broken down with sorrow and trouble, and gave her testimony with evident distress. She identified. She was detained but a short time, the defense evidently not wishing to keep her before the jury any longer than was necessary. The other two witnesses testified to the identification of the body, the one being at the burial, the other at the examination in the cemetery.
NOTES IN COURT.
The Paw Paw court house is the usual two-story frame building adopted by most Michigan counties in the early day, painted white and surmounted by a tower. The court room is similar in proportions and arrangement to that in the old house at Kalamazoo, but neither as long nor as wide. Its square, double-sash windows do not reach to within six or seven feet of the ceiling. The side walls are of pale blue tint. The former excuse for a ventilator was a hole in the ceiling about 12 inches by 16, communicating with the attic. It is now ventilated by drafts, by means of two windows, four feet square, hung on hinges, in the rear wall near the top, and by lowering or raising the sash of the side windows. Sheriff Todd and Under Sheriff Van Auken have become experts in regulating the temperature and ventilation through these devices, and make the room generally comfortable. The judge announced to begin with that only as many people would be allowed in the room during the trial as the regular sittings would accommodate, as a precaution against vitiating the atmosphere and endangering the health of jury, court, attorneys and officers, on whose compulsory attendance the public business depends.
From the Kalamazoo Daily Telegraph, October 16, 1885, p.2
THE KEITH MURDER.
IMPORTANT PROFESSIONAL TESTIMONY.
The Doctors Agree — That Crease Under the Neck —
Marshall Barker’s Anxiety About Damages —
The Father’s Conversation with Respondents.
Paw Paw, Oct. 16. — [Special.] — The afternoon yesterday in the trial of the Barker boys for the murder of Harvey Keith at Bloomingdale July 28, was given up almost exclusively to medical testimony on the condition of the remains when taken from the lake, Saturday, Aug. 1, and when exhumed the following Tuesday, to establish certain facts. This branch of the testimony was very interesting to both professionals and laymen. It was not conducted in the usual style of putting interrogatories half a column long and containing 15 or 18 hypothetical conditions, calling for the expert’s best guess on the result of the supposed combination — questions intended principally to mystify the jury over the barrister’s scientific attainments. Where the questions were hypothetical they were simple, and generally of evident bearing on the case.
Before the physicians began two or three witnesses were examined to bring out the facts of the original finding of the body. Frank Lackey of Bloomingdale testified that as he was going to Max lake, a sheet of water a little over a mile southeast of the village, on Saturday morning Aug. 1, accompanying his sister and another young lady with the purpose of taking a ride on the lake, he saw something white a little distance away and on going to see, discovered that it was a man’s body. He immediately notified Mr. Robinson, living near by, and Justice Lockhart at the village. Mr. Robinson and Mr. Tully took a boat at Robinson’s landing, went to where the body was, fastened a strip of bark about the head and towed the body to the landing. John Tully testified to his part in the matter. The body when found had on only a shirt and was in shallow water (two feet deep), where it was weedy and miry. The hips and back part of the body were out of the water, while the head, legs and arms hung down, under water. The body did not have the socks on.
The prosecution offered to call Mrs. Wm. K. Barker to identify the shirt found on the body as Harvey Keith’s, previous testimony having alluded to her identifying it by two small pearl buttons she sewed on when she laundried it the Saturday preceding the murder, but she was not called on.
The first physician called was Dr. Josiah Andrews of Paw Paw, who bears a remarkable resemblance to Blaine. He assisted in the post mortem examination when the body was exhumed at Evergreen cemetery, Bloomingdale, Aug. 3. The body was found bloated and livid, especially the upper part. The examination by the physicians was not made extensive, because the body was so offensive, decomposed and dangerous to work over. They examined especially the lungs and heart. The lungs were somewhat collapsed and contained no fluid or water, as is expected where death ensues from drowning. The heart, instead of being full of blood in one auricle and partly full in the other, as is usual in deaths from drowning, was entirely empty of blood and looked as though it had been washed out. There was no evidence of the frothy fluid common in the upper portion of the lungs of persons who come to their death by drowning. He also described the knife marks in the mutilation of the body (by emasculation). There were no scratches on the lower limbs such as would be expected from running through grass, weeds and brush, had Harvey Keith gone to the lake in his nearly nude condition for the purpose of suicide. The lungs contained about the amount of air of a person who dies from natural causes. Pieces of the lungs tested by dropping them in water floated. There was an absence of the usual evidences of death by drowning, but the circumstances did not indicate necessarily how death must have resulted. There was a crease around the neck more of the color of the skin, as contrasted with the dark portions of the neck that were swollen over it. It could hardly have been made by the strip of bark used to tow the body around to the landing. The mark might have been made by a stricture around the neck. With regard to the protruding of the eyes and tongue the doctor had seen similar effects caused by the pressure of gases developed by decomposition, in the bodies of soldiers who had been dead on the field several days. On cross-examination, Dr. Andrews stated that if the atmosphere and water were warm decomposition would advance much more rapidly than otherwise. The above indications were none of them absolute evidence that death could not have resulted from drowning. Strangulation usually left marks of the violence about the neck, but not always.
Dr. Hathaway of Bloomingdale, another of the physicians connected with the post mortem, was the next witness. He testified to being also present when the body was taken from the lake. He there laid off the scalp to see if there was any wound by a bludgeon or otherwise. He made an examination of the mutilation to discover whether it was the work of turtles, as Mr. Robinson had an impression that the mud turtles had been at work at the body. The missing parts had been removed by a dull knife and slashed. Witness’s first opinion was that the case was one of suicide. When the body was exhumed Aug. 3, and removed from the coffin to a platform it was too badly decomposed to enable the tracing of some of the evidences for which there would naturally be search in such a case. The putrefaction when observed at the lake had advanced more rapidly than witness would expect. There were no indications of grass or sand drawn in to the lungs, such as is frequently found when death is the result of drowning in shallow water. It was not possible to recognize the features at the lake or when the body was exhumed. The effect about the neck as if a stricture could not be produced after death. A person could probably be choked to death in two minutes. The ring or mark about the neck could be caused by the shirt neckband if the latter were only high enough up.
Dr. Hathaway was examined at great length on hypothetical cases, not as involved as in many trials in court, however. His answers showed great resources in his command of the learning of his profession.
Paw Paw, Oct. 16. — [Special.] — Expert testimony was continued this morning and Dr. Carrier of Berlamont was called. He was at the autopsy and corroborated the essential points of the previous physicians testimony. He also testified that the crease around the neck was above the Adam’s apple and made by something which caused stangulation [sic]. The point established by this was that the crease was too high up to be caused by his shirt band, but probably by something else. He also testified that the specific gravity of a man’s lungs who was drowned was increased three or four times by the crowding of other matter into the circulation. This was not so in this case. A piece of the lungs floated.
Dr. Hathaway was re-called and testified that the light crease about the neck was above the larynx, just below the chin. It was not absolutely impossible to be made by the shirt.
Dr. Hilton of Paw Paw was summoned. He was not at the autopsy, but was examined as to the general professional aspect of the case to settle the question of drowning. He said a physician first looked at heart and lungs and corroborated the other professional witnesses.
Marshal Stout of Bloomingdale, testified to being at Max lake when the body was found. He found on his way to the lake in a by way leading to the lake the mutilated remains of Harvey Keith. He gave them to R. M. Brown, who was a member of the coroner’s jury. They were then delivered to Dr. Hathaway, who gave them to Sheriff Todd, by whom they were given to Dr. Hilton. These gentlemen identified them when exhibited in court.
J. O. Keith father of Harvey Keith took the stand and testified that Marshall Barker came to his house on the morning of July 29th, at 5 A.M., the morning after the murder is supposed to have been committed, called Mr. K. to the door and inquired if Harvey was there. Mr. Keith told him Harvey had not returned since he went away the night before. Again at 7 A.M. Barker came and said he had found Harvey at his house the night before, and that he would send him over the road claimed Harvey owed him and wanted $50 damages. Mr. Keith told Marshall Barker that he should hold him responsible for Harvey as he was the last to see him. Marshall had just said that he saw Harvey jumping from his window with only his shirt and socks on and run down the road. Mr. Keith was busy threshing then and Marshall Barker went and conversed with his brother, who was helping thresh, then returned and showed Mr. Keith Harvey’s watch and passbook. He said he would send Harvey and his wife over the road and wanted damages for having his home broken up. While still on the premises he named over Harvey’s personal effects which were at his house. Witness went with the Barker brothers to Wm. Barker’s house. At 10 that morning witness went to Marsh Barker’s house where the wives of the brothers were both present, and Mr. Brown. There he got Harvey’s effects and asked of them where Harvey was. Marshall said Harvey had skipped. When witness walked to Wm. Barker’s with the respondents, Marsh kept saying over and over Harvey would go over the road and that he wanted damages. Witness told him after Barker talked it over with Harvey it would be time enough to settle. When the mutilated remains were established in court the respondents were evidently uneasy and nervous.
From the Kalamazoo Daily Telegraph, October 17, 1885, p.2
PAW PAW’S SENSATION
EXCITING TRIAL OF THE BARKERS.
Testimony of Physicians — How the Damaging Admissions
of Respondents Were Obtained.
PAW PAW, Oct. 17. — [Special.] — In the trial of the brothers Barker for the murder of Harvey Keith, the testimony of James O. Keith, was continued in the afternoon. He said that when Marsh Barker came to him in the morning about seven, the day after Harvey’s disappearance, Marsh said Harvey had skipped and witness would not see him again very quick. Fifty dollars was none too little to settle for breaking up his family. Witness thought Marsh said something about a fight and striking him two or three times before Harvey fled from the house the preceding night. Witness said Harvey wore no suspenders in warm weather, but was very particular about his collar and tie. When the body was found at the lake the shirt was not fastened at the top on the back and in front was ruffled and frayed and drawn down on the chest. Witness described being awakened by a whistle at midnight the second night (July 29). On partially dressing he went to the barn; saw no one; received no response to calls; found the horses safe. On going to the house saw a thick-set man pass the door and disappear past the barn; in the morning the soft ground on the corn-field (it had rained the night before) showed the tracks of a number six or seven boot in the direction the man moved.
Cross-examined by Mr. Heckert: Marsh told witness Harvey owed him and if he was any man at all he would come and pay him $50. Marsh said, when he was at witness’s house the second time Wednesday morning, that he would convince witness that Harvey had been at his house, producing the watch, etc. and list of clothes. When witness was at Marsh’s house after Harvey’s clothes and Marsh talked about getting out a warrant, witness told him to wait till Friday and they would try and find Harvey. On the redirect witness said the week the body was in the lake was a warm one.
The clothes of Harvey Keith found at Marsh Barker’s were offered in evidence. The coat and vest were of black material, rather heavy, mixed materials considerably worn about the button hole, the pants light wool, purplish grey; the watch, cane, knife, etc., were included, and the shirt found on the body. Later two plain gold rings — indicated by previous testimony as belonging to Harvey and Mrs. Marsh Barker and as having been exchanged between them, so that Harvey’s body when found had her ring on his finger — were offered in evidence.
Mr. Stout, recalled, testified that when the body was found the shirt in front was pulled down from the neck about eight inches, on the chest.
James L. Keith, brother of Harvey, was recalled. While at work threshing Wednesday morning about eight, he asked Wm. Barker, at work there, if he knew anything about the disappearance of Harvey. William said no and wanted to know if witness thought he (Barker) had anything to do with the disappearance. Witness replied that he thought he did. Barker colored and soon walked away. When Marsh Barker came and handed witness a list of Harvey’s clothes, witness read it and told him to take it to Mr. Keith, Sr., if he wanted to deliver it to any one. Witness told Marsh he would hold him responsible for producing Harvey’s body, and Marsh responded with an oath, menacingly, that he could produce it if necessary. Marsh said Harvey owed him $50 but declined to tell witness what for. On cross-examination by Mr. Clay, witness said he was satisfied at the conversation that Marsh had killed Harvey; he didn’t think Harvey had run, for Marsh had his clothes. Witness and his other brother searched the woods that day to find Harvey.
Geo. Burget, a lad of 15, living at Berlamont, two miles from Bloomingdale, and a nephew of Mrs. Wm. Barker, testified to being at the Wm. Barker house the afternoon preceding the night of the supposed murder; both Barker families were there except Marsh; also Harvey Keith; he saw Harvey and Mrs. Marsh Barker handling their two rings. Harvey was there at 5:30 when witness left for home.
Ogden Barker, a little boy of eight, child of Mr. Barker, testified to Harvey Keith being at their house that afternoon, coming over without his coat; and later on Ogden and his cousin Freddie went to Mr. Keith’s for Harvey’s coat. Ogden went to Marsh Barker’s house that night and stayed with his cousins. His uncle Marsh was not home that evening but witness saw him about before breakfast. Mr. and Mrs. Marsh Barker occupied a bed in the same room with the children’s bed. On cross-examination the child said he was asleep when his aunt came home from church and was not awakened during the night.
Several witnesses were examined to show that Harvey Keith and Mrs. Marsh Barker were at the Disciple church that Tuesday evening (July 28), and both left before the meeting was out. Among these were R. J. Merrifield, a young man, friend of Harvey, who went into the church with him; Noble Whalen, a lad who was in the church entry shortly before meeting was out and saw Mrs. Marsh Barker come out, and three or four minutes later Harvey followed; Mrs. Harriett Lane, who sat with Mrs. Barker in church, and on leaving before her and going to a store, saw Mrs. Barker and a young man pass the door; and Mrs. Mollie Spayd, who saw Mrs. Barker at church, and on going to her husband’s drug store before meeting was out (on account of a coming storm,) saw Mrs. Barker and a young man pass the store, between 8:30 and 9.
Two charts, prepared by Mr. Levi S. Warren of Hartford, showing the locality of Bloomingdale, the Barke [sic] and Keith houses, Max lake, the roads, etc., and the plan of the Marsh Barker house, were exhibited to the jury.
AN INCIDENT IN THE COURT ROOM.
During the afternoon recess yesterday, just after Ogden Barker had been on the stand, he went up to where his father, the prisoner, stood, and his venerable grandfather, and the little fellow burst out crying. Wm. Barker broke down and the grandfather too. The lad’s father, who had hitherto watched proceedings with close attention, did not seem to recover his cheerfulness the rest of the afternoon but hung his head or rested it on his hand as though absorbed in his own reflections. His child possesses a winsome appearance, and evidently is bright enough to feel the situation young as he is.
PAW PAW, Oct. 17. — [Special.] — This morning the prosecuting [sic] recalled Geo. Burget nephew of Mrs. Wm. Barker. He testified that as he was going home to Berlamont, from his aunt’s about 7:30 P.M. July 28 he met Marsh Barker going from Berlamont toward home. Witness told him his folks were not expecting him home.
B. C. Stout, marshal of Bloomingdale, testified that the spot on the log where the mutilated parts of Harvey Keith were found was dark colored and that a dark stain ran down the side of the log.
Three physicians, Drs. Hilton, Andrews and Hathaway, testified to the effect that blood would not flow from a wound of a body after death, unless a large blood vessel was cut immediately after death. Blood would ooze from a wound after death.
The lawyers had a long discussion as to the admission of the evidence of prisoners in the jail at the time the Barkers were there, the defense trying to bring Matt Pinkerton into the case. Finally as preliminary to the introduction of the prisoners the defense put in evidence as to the manner in which the admissions of the Barkers were obtained and that they were made to Pinkerton as an attorney. The defense then put Prosecuting Attorney Chandler and Sheriff Todd on the stand.
Prosecuting Attorney Chandler testified that he was not directly engaged in the employment of the Pinkertons. He had something to do with the arrest of Mr. Stearns (Pinkerton’s man) at Hartford, on a charge of forgery, and in having him sent to jail at Paw Paw. Chandler thought that Pinkerton came to represent himself as the attorney for Stearns. Saw Mr. Roos, of Kalamazoo, when he came to Paw Paw.
When Roos came he would not at first admit him to the jail. Chandler saw Barker and told him that if he wanted to employ Roos as his cousel [sic] he could. Marsh Barker had already engaged Pinkerton as his attorney. Witness was of the opinion that there was a plan for Pinkerton to get the confidence of Barker.
On cross-examination witness said he told Roos that Barker did not want to see him. Re-directed, Chandler testified that Pinkerton disclosed his real character to Wm. Barker on the day he was arrested. The prosecution against Stearns, the alleged forger at Hartford was dropped at witness’s instigation.
Sheriff Todd testified that he went to Chicago to see Pinkerton and arranged with him the plan of the Hartford arrest for forgery. After witness brought Stearns to jail, and Pinkerton appeared as his lawyer, witness told Marsh Barker that Pinkerton was the best lawyer he could get. Pinkerton was in Paw Paw about a week and had access to the jail. Witness still had a letter directed by Barker to Howard & Roos, Kalamazoo. The sheriff had since been told by Judge Mills that the prisoners had a right to have a letter sent to counsel.
J. S. Rogers testified he was prisoner in jail the latter half of August, and took a letter for Marsh Barker to Hartford and mailed it to Howard & Roos, Kalamazoo.
Under Sheriff Van Auken testified that he saw Roos when he came to Paw Paw, and that he had a letter Rogers mailed. The post-mark showed that it was mailed 8 or 10 days after it was written.
Frank Jones a colored boy of Decatur testified he was in jail the latter part of August and another prifoner [sic] named Du Puy. He saw Du Puy take notes from one of the Barkers to the other several times.
Wm. Barker does not seem to stand the trial and strain in court as well as the others and has weakened under it considerable. The defense has resorted to several small stratogems [sic] and devices intended to affect the atmosphere of the court-room.
From the Kalamazoo Daily Telegraph, October 19, 1885, p.2
BROUGHT INTO COURT TO-DAY.
Their Legal Value Declared — A New Move By the Defense — Du Puy’s Damaging Testimony — Trying to Break Him Down — Excitement in Court.
PAW PAW, Oct. 19. — [Special.] — Very little testimony was taken in the trial of the Barker boys Saturday afternoon, the time being largely consumed in the arguments over the law points involved in placing before the jury the admissions and confessions of the respondents. Before that began, however, Prosecuting Attorney Chandler was first placed on the stand to testify on the point of the removal from Marsh Barker’s mind of his supposition that Pinkerton was a lawyer named Trude, as Marsh had been led to believe, and that he was a detective instead. Witness told Marsh what the real fact was, on the evening of Sept. 1, in order that the prisoner might avail himself of his right to employ counsel.
Paradoxical as it seems the attorneys for the prisoners at the bar have seemed to be trying to bring in their confessions as testimony, or their “alleged confessions” as they are called in court, in deference to the respondents’ right to be held innocent in fact till proof of guilt is legally set up. On the other hand the attorneys for the people have all along been endeavoring to avoid bringing in the confessions made to Pinkerton. The reason for this apparently singular conduct on both sides readily suggests itself. The false confessions made under torture or the influence of great inducements have in the history of law worked such terrible injustice that evidence of that class is largely discredited and much of it has for a long period been absolutely barred. If the prisoners’ lawyers could only get the “Pinkerton” confessions before the jury they would have accomplished the first object sought by the defense on a murder trial, namely, the delay of the ultimate deposition of the case till the popular excitement was over; for with the confessions in evidence they would expect a reversal from the supreme court and a second trial.
The arguments before the court Saturday afternoon related chiefly to the admissibility of certain admissions made by the respondents to their fellow prisoners in jail. The court announced in advance that any admissions or confessions made by the respondents after they learned that Pinkerton was a detective and not a lawyer, would be admitted. Mr. Tabor, for the prosecution, argued that admissions to others besides those made Pinkerton as a supposed attorney could not be ruled out, because no man could reasonably suppose, even on his lawyer’s advice, that it would be for his interest to confess his crime indiscriminately.
Mr. Tabor argued also that the relation of “privileged communications” could only apply to a real attorney, which Pinkerton was not. Mr. Clay, for the defense, said that the influence on the respondent’s mind must be considered to exist till the respondents secured another attorney. The court announced in advance that it would not apply the rule of privileged communications to any confession or admissions made subsequent to the time when respondents found that Pinkerton was a detective and not a lawyer.
The testimony to-day related to the confessions and admissions of the two Barkers to prisoners in jail and to identifying notes passed between the two prisoners and which came aftewards [sic] in to the hands of the officers. Sanford N. Conkle of Bangor testified he was in jail 13 or 14 days for getting liquor for minors. He overheard Marsh Barker say to another prisoner, DuPuy, “I did kill the man.” He also saw respondents writing notes.
Mrs. Todd, wife of the sheriff, described the location of the cells where the respondents were confined. Marsh’s cell was in the new part of the jail, William’s in the old part. She identified 12 or 13 notes which passed between respondents, which had been received from DuPuy another prisoner. The notes were produced in court. They were written on all kinds of paper, some on a newspaper margin, some on leaves torn from diaries, and some on larger pieces of paper. Witness heard Pinkerton tell Marsh Barker who Pinkerton was on the evening of Aug. 27, just before he left for Chicago.
Alexander DuPuy of Pine Grove testified: He was in jail charged with bigamy and gave the confessions made to him by William and Marshall Barker when in jail. William Barker told him that Marsh came to his house that night about 9 o’clock. He went away and in a short time returned. Afterwards both started for Marsh’s house. On the way Marsh told William that he would make Harvey give him $50 if he had to kill him. William stayed outside the house. Marsh pulled off his coat, went inside and struck a light. William saw Marsh with Harvey’s pants. Harvey tried to get out of the window, but Marsh caught him and pulled him back. William rushed into the house, while Marsh jumped up and down on his stomach and choked him till he was dead. Respondent did not tell witness what they did with the body. William said they were going to divide the money and Marsh would use his part to move away with. This confession was made to witness along in September. Witness said Marsh told him that he got off the train at Berlamont that evening and sat down on the railroad track just west of Bloomingdale and waited so as to get home late. He found Harvey Keith at his house and when he found matters in the shape they were he killed Harvey. Witness identified the notes he had received and passed from one respondent to the other, and which he had given to Sheriff Todd. Respondent was not asked to write notes, but paper was supplied whenever it was wanted. The defense spent about an hour trying to break down the witness. He was a little confused as to dates, but adhered closely to the main points of his testimony
TACTICS OF THE DEFENSE.
Mr. Heckert, of counsel for the defense, produced in court in a written statement purporting to be signed by DuPuy, which was drawn up in jail Saturday afternoon after court adjourned. The witness said he did not read the paper, but that Heckert read or pretended to read the contents of the paper to him. The statements contradicted some of the points testified to by the witness and when the paper was read in court witness declared it was not the same as that read to him in the jail. He declined to recognize it as his statement. The outcome of this episode is awaited with great interest.
During the production of the notes which passed between the Barkers in jail, Marsh Barker showed the first signs of uneasiness that he has exhibited during the trial. The notes were kept so carefully and made so complete a record that he was evidently disturbed and watched their disposition in court very closely. His breath became quick and short and in other ways he displayed a keen anxiety and signs of excitement.
Work of the Stenographers.
The amount of work of the stenographers and the typewriters in connection with this trial is astonishing to those not familiar with such matters. It gives to people outside of their craft a fair idea of the value of the facilities afforded by the typewriter. Mr. F. E. McGuerin, the official stenographer of the circuit, is assisted by Mr. J. J. Atkinson, a stenographer formerly of the London press, and Mr. N. Tabor, a professional type writer. The two stenographers alternate with each other every half hour in taking down the evidence or other matter to be reported, and while either one is off duty at the witness stand he is engaged in a room below in dictating from his stenographic notes to Mr. Tabor. The transfer of the report from the notes to the type-writer cannot commence, on the day’s work, till some time has elapsed, after the opening of court and the short hand man has made a start on the matter to be put into form. When noon comes, on an average day, Mr. Tabor has the report in type-manuscript up to within a half hour of the close of the session. When the testimony is from nervous or fast-speaking witnesses and has little interruption, he does not keep up quite so well. Some days the amount of matter put into this form would fill over 50 columns of the TELEGRAPH, set in close type, or “solid” as the printers say. Mr. McGuerin has the faculty of reading from one set of notes to one operator of a type-writer and of running another machine from another set of notes himself, keeping a finger at the end of the successive intervals on the notes from which he dictates to the other man. Their labor on this trial comes from the order requiring them to furnish three complete copies of each day’s proceedings, by the opening of court the following day. The three copies are of course made at one impression on the machine, three thin sheets of paper being placed together with carbon paper between, so that when the outlines of a type-letter strikes the paper it leaves its impression on all three leaves. The running of a type-writer has existed as a distinct trade or profession only two or three years and is still a novelty to a great portion of the community, but it has become such an economy or necessity that it would be very awkward to do without it. A visit to the type-writers’ room during the progress of their work forms an interesting sight.