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Three Rivers
Hudson~Mohawk~Schoharie
History From America's Most Famous Valleys
Chapter Eleven, Benton's History of Herkimer County
CHAPTER XI.
1791 TO 1855.
William Orendorff, Aaron R. Clark, John Bowman, Samuel Bennett, Samuel Perry, Nathaniel Foster, John Allen.
The catalogue of crime of the higher grades is quite brief. It is believed there was no trial or conviction from 1791 to 1798, when Oneida county was set off. I have gleaned from criminal records of the county only six trials which resulted in convictions and acquittals.
On the 31st of May, 1809, William Orendorff was tried and convicted upon an indictment for a rape, and sentenced to the state prison during his natural life.
On the 6th of June, 1811, Aaron R. Clark was tried and convicted before Mr. Justice Van Ness of the supreme court upon an indictment for manslaughter, and sentenced to the state prison for three years and three months.
On the 15th of September, 1812, John Bowman, who had been previously indicted for murder, was arraigned before Justice Van Ness of the supreme court, D. V. W. Golden, Walter Fish and George Rosecrants county judges, and J. Ingham, assistant justice, and plead not guilty. The following are the names of the jurors empanneled to try the case: Augustus Carpenter, Lucius Wetherby, Benjamin Benjamin, Jr., Jabez D. Wolf, Oliver Miner, James Alexander, Daniel I. Petry, Jost I. Petry, Ezra Mallory, Gibson J. Stranahan, Joseph Pooler and Sheldon Harvey. There were nine witnesses sworn on the part of the prosecution, and examined. Not any witnesses were called and sworn on the part of the prisoner.
The entry of the verdict and sentence pronounced by the court is recorded in these words: "The jury found the prisoner guilty, and he was sentenced to be hanged by the neck until he was dead, on the fourth day of December next, between the hours of 11 o'clock A. M. and 1 o'clock P. M."
John Bowman was a lad not over ten years of age when he was tried and convicted for this crime. He was ably defended by Daniel Cady, Esq., now one of the justices of the supreme court of the fourth district. Bowman had killed one of his playmates, a small girl younger than himself, and the point insisted upon by Mr. Cady in the defense, was, that he was too young to possess a mind and judgment capable of understanding and appreciating the nature of the offense he had or was about to commit. The jury thought otherwise, and brought in a verdict of guilty. The judgment of the court was not executed. The sentence was commuted by a law passed November 10, 1812, to imprisonment for life in the state prison.
Samuel Bennett was convicted upon an indictment for manslaughter, on the 12th of December, 1822, before Mr. Justice Platt of the supreme court, and judges Holt and Herkimer of the common pleas, and sentenced to confinement in the state prison at Auburn for ten years. Simeon Ford, Esq.,the district attorney, conducted the prosecution, and Messrs. Hoffman and Maculey defended the prisoner. In this case the counsel for both parties exerted all their powers for conviction and acquittal, and a Herkimer audience have seldom witnessed more able forensic efforts than were displayed on this occasion.
At the September term of the oyer and terminer in this county in 1826, Samuel Perry was arraigned on an indictment for murdering his wife. The court consisted of Nathan Williams, circuit judge of the fifth circuit, and Hiram Nolton, Sanders Lansing and John Mahon, county judges. The jurors sworn were Jeremiah B. Cooper, William Williams, Henry F. Orendorff, Ehnathan Harvey, Peter House, Henry Dockey, Milton Philleo, Joseph Griswold, Eli Fortune, John Eysaman, James Van Valkenburgh and Suffrenus Snell. The whole panel having been exhausted by peremptory challenges and challenges for cause, the two last named jurors, Van Valkenburgh and Snell were summoned to sit as tales. George H. Feeter, district attorney, assisted by Abijah Mann, Jr., and David Bucklin, Esqs., conducted the prosecution, and Lauren Ford, Michael Hoffman and Oran G. Otis, Esqrs., defended the prisoner. Twenty-three witnesses were called by the prosecution and examined, and two only on the part of the defense. The trial commenced on the 14th day of September, and on the 16th the jury pronounced the prisoner guilty by their verdict. The prisoner's counsel tendered several exceptions to the ruling of the court during the progress of the trial, and the judgment upon the verdict was respited to allow the supreme court of the state to examine and give judgment upon those exceptions. The social position of the prisoner, the alleged or supposed causes which prompted the commission of the offense, and the estimable character always borne by the unfortunate victim murdered, conspired to excite in our community a deep and intense feeling. The court room in which the trial was conducted, although not as large as some in our cities and most populous counties, was quite spacious. Long before the court convened to open the trial, this room was filled almost to suffocation with an anxious and deeply excited audience; the avenues to the room were so densely thronged with people seeking admission that ingress and egress by the officers of the court was at times very difficult. I felt a strong desire to hear this trial, as I had never been present at the traverse of an indictment for murder, but my human endurance could not stand it. I once, during the trial, under the auspices of the district attorney, got into the court room, and after remaining a short time made my escape from it, and was compelled to remain an outsider. Many others were excluded from hearing the trial, and for the like reasons.
The respite of the judgment rendered it necessary for the prisoner to be present, when the supreme court should make a decision on the exceptions taken on his behalf, in order that the sentence of that court might be pronounced, in case the exceptions were overruled, and with the view of removing the prisoner to Albany, the sheriff of the county, John Dygert, Esq., had brought his conveyance to the jail, when a short delay occurred in starting, to permit the prisoner to execute a testamentary disposition of his property. While the will was being prepared, the sheriff's officers visited the cell where the prisoner was confined, and found him dead, or so nearly dead that he survived but a short time. He had cut his throat with a razor. This act was performed with a strong and unflinching hand, and sure instrument. The jugular artery was severed, by a long deep gash, which ended life almost as soon as made.
When the grim messenger of death bore the tidings of this man's fate to the chancery of Heaven, think ye, did the recording angel, as he registered it, drop a tear of regret upon the record, and blot it out for ever? This suicide was committed in the month of October, following the conviction, and between the two periods, Perry had devised plans of escape from prison, and flight to Canada. He had considerable pecuniary means, and was therefore enabled to subsidize fit instruments for his purpose; but all his plans were defeated by the vigilance of the public officers, and the care taken for his security.
The next capital offense appearing on our criminal records, is the case of Nathaniel Foster, indicted for the murder of Peter Waters, a St. Regis Indian. This trial was opened on the 16th and closed on the 17th of September, 1834, at the Court House in Herkimer, before the Hon. Hiram Denio, circuit judge of the fifth circuit; John B. Dygert, Abijah Osborn, Jonas Cleland and Richard Herendeen, county judges; and a jury consisting of the following persons: John Davis, John Harder, Henry Ostrander, James F. Fox, William Bouck, Peter Rickert, William Shoemaker, James Shoemaker, Lester Green, Nicholas A. Staring, Earl Trumbull and Peter Bell. James B. Hunt, the district attorney, assisted by Simeon Ford, Esq., conducted the prosecution, and Joshua A. Spencer, Aaron Hackley, George H. Feeter, Lauren Ford and E. P. Hurelbut, Esqs., appeared for the prisoner. The record shows there were five witnesses called and examined on the part of the prosecution, and five by the prisoner's counsel. The jury rendered a verdict of not guilty, after a consultation of about two hours. That Foster deliberately shot the Indian, at a time, too, when he was in no immediate danger of assault from or by the Indian, and that this act was premeditated, there can not be much doubt, if there is any reliance to be placed on human testimony. Foster and the Indian had for some months lived near neighbors on Brown's tract, so called, in the north part of the county. Both were hunters of the wild game of the northern forests, and were probably envious of each other's success, if they had no substantial causes of complaint to produce hostile feelings between them. Foster was an old man, upwards of sixty winters had bleached his locks, and the Indian was in the prime of life, stout, athletic, and like all his people indulged in the use of "firewater," when be could get it, and was easily irritated and passionate. On the morning of the day the Indian was killed, he and Foster had a scuffle, and the latter was slightly wounded by the Indian. Some bystanders interposed and parted them, or Foster would probably have been more seriously hurt. Shortly after this, the Indian and several whites started off in a boat and bark canoes on a hunting excursion on the Seven lakes, and Foster followed or preceded them five miles by land, to a point in one of the lakes, where he shot the Indian, who was then alone in his canoe, but there was another bark canoe near by, containing two white men.
On the trial, the prisoner's counsel proposed to ask one of the witnesses on the stand if he had ever heard this Indian threaten to kill Foster, insisting the evidence was competent and tended to prove that Foster was in "imminent danger " of being killed himself by the Indian; submitting the sufficiency of the proof to the consideration of the jury. Objections to the admissibility of this testimony being made, the presiding judge of course sustained the objection, and ruled that such evidence was not competent; one of the county judges concurred with Judge Denio, but the other three judges holding the evidence was admissible, the circuit judge was overruled by a majority of the common pleas bench. This was a novel decision in our criminal courts, and will not, probably, be often followed in trials for murder. The majority of the court must have hold, that when an American Indian threatens to take life, the danger becomes imminent, from the inflexible pertinacity he has always evinced in carrying such threats into execution. Id certum est quod certum potest, is a sound legal maxim, but it will not do to apply it to the future actions of an Indian, any more than to an Anglo-Saxon. It is very difficult to say what effect such evidence had upon the minds of the jurors, or might have had in a case where the killing of an Indian was not involved. It is not very material to discuss this point to any great extent, when the reasons for the acquittal are so well known as they were when the verdict was given, and even at this day. Three-fourths of the jury were of German descent, whose memories still lingered on the traditional scenes of woe and desolation inflicted upon the families of their ancestors, by the Indian races, who never claimed the protection of the laws of civilization, or submitted to the municipal regulations of the whites. I do not intend to impute any moral wrong to the twelve men who hold Foster's conviction or acquittal at their disposal, much less will I seek to impeach their judgment or motives; but truth and candor compels me to express the belief that, if, under the same circumstances, a white man had been killed by Foster, instead of the Indian, he would have been found guilty. Foster was not a bad man, although a hunter and an inhabitant of the forest nearly all his days; he was not inclined to provoke quarrels with any one. The Indians visited the wilderness between the settled parts of St. Lawrence and Herkimer and Hamilton counties, and claimed the whole country as hunting grounds, although their title had been long extinguished. This seemed to produce an unfriendly feeling between the hunters of the two races, which proved fatal to some of them, but the red men were the greatest sufferers.
The next case in the criminal annals of the county, was that of John Allen, who was arraigned on an indictment for murder, before Philo Gridley, justice of the supreme court, of the fifth district, Ezra Graves, county judge, David Humphreyville and Morgan S. Churchill, justices of the sessions, on the 5th of September, 1849. George B. Judd, district attorney, conducted the prosecution, and Messrs. V. Owen and R. Earl, the defense. Thirty-nine witnesses were called and examined by the prosecution. The jury empanneled to make "true deliverance" found the prisoner not guilty, under the direction of the court. This is the substance of the entry in the proceedings of the court, and those familiar with the expressions used, will conclude that the prosecution failed to make out a case of probable cause of guilt, against the prisoner. The murder was charged in the indictment, to have been committed in the town of Schuyler, in the winter of 1848-9. The lifeless body of a man was found, bearing strong marks of violence having been inflicted upon it, and sufficient to produce death. It was identified to be that of a foot peddler, traveling about the country, with goods of some value. It was also believed he had a small amount of money with him. The circumstances connected with this sad affair, produced a strong impression on the public mind, that the man had been murdered, in order to obtain possession of his goods and money, or that he was killed in defending himself against a violent robbery. The popular excitement in our community ran to a pretty high pitch, and a just indignation at the commission of so foul a deed, was loudly expressed. The officers of justice were soon on the alert, and the district attorney ably and resolutely performed his duty, and if he failed to convict the man indicted and arraigned, that failure can not justly be charged to a want of industry or energy, on the part of the prosecution.
This ends my catalogue of capital offenses against life, for a period of nearly sixty-four years, since the erection of the county. In all that time there have been two convictions for murder, but no public execution by the hangman. May the good Providence of God, and a just regard of our population to their duty and obedience to the laws, continue to avert from us all cause for such an exhibition of punishment.
We can not and do not claim to be exempt from the commission of crime in the lower grade of offenses, but the calendar has not been large, nor have the instances been grave or serious. The petty larceny fraternity have not yet quite left us, or abandoned their business, and there have been those who indulged in acts of felonious appropriation upon a larger scale, so as to come under the definition of grand larceny.
Bands of counterfeiters and persons engaged in passing counterfeit paper money, and spurious coin, have heretofore infested the county, the rigor with which these law-breakers were prosecuted, and the vigilance of the public officers in detecting and ferreting out these depredators upon the public, has long since cleared the county of this class of offenders. I do not mean to say we have not had instances of offenses of this sort committed in the county within twenty years, but the cases have been rare within that time compared with the period between 1820 and 1830.
Upon a careful review of the statistics of crime committed in this county the present century, and comparing them with other counties in the state, and other communities, we find much to encourage a hope that the future in our progress will present more gratifying results than the past, and that the moral sentiment of the population of the county in this respect, as in overy other duty of life, may be found the highest and best of any in the state.
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