Col. Warner stated that he did not wish to make any captious objections; but he thought this testimony had gone far enough. He did not think such testimony would enlighten the jury. It only tended to befog their minds.
The witness continuing said he had studied this case very thoroughly since the post mortem. Has tried upon every supposition and in every way in his power to get that bullet into the heart, but could not; he don’t believe it ever went in there at all. Would not swear it made that opening in the heart or not; that could only be determined by submitting the heart to a microscope.
Mr. Erwin.-- Could the physical exertion of McWeeney striking that blow have been the exciting or approximate cause of his death?
Witness-- It could.
Mr. Erwin. --What was the approximate cause of his death?
Witness-- He died from hemorrhage of the heart. It was caused by the opening or rent.
Mr. Erwin.-- It could have been made by the physical exertion of McWeeney striking the blow?
Witness-- It could have been brought about by the exciting and physical exertion of striking a blow.
Mr. Erwin.-- Dr., a man shot in the heart, as a rule, falls on his face, does he not? Witness-- Yes.
Col. Warner on cross-examination produced a druggist’s glass for measuring liquids, a foot rule and a bullet. The object of this cross-examination was for the purpose of impeaching the testimony of witnesses as to the bullet having passed into the ventricle and not having passed out. The witness said he had been at this opinion for about a month. At the time of the autopsy we were of the opinion that the immediate cause of death was hemorrhage; that that hemorrhage was caused by a gun shot wound and that the ball entered the chest. He had a changed his opinion about a month ago, but did not state it to other doctors, although they live here; except to Dr. Ellis. If the angles were accounted for a witness would think it probable that the ball entered the heart. The postmortem examination was held on the evening of January 1, 1886, about dusk. Dr. Ruger and Dr. Ellis performed the operation and witness made the observation and minutes. Was partly governed by the remarks of all made at that time. Did not feel the heart or lungs when they were examined. As soon as we came to a conclusion as to the cause of death we stopped. Since then I have change my opinion.
Wm. M. Swanson-- Is a physician and surgeon. The usual medical examination was gone through with, and one or two lengthy hypothetical questions have been put. The hypothetical questions have been answered by the witness independent of any personal case he knows; and directly upon the supposition therein stated.
Wm. J. McIntire was now called by the defense and sworn. Is a farmer; was here in town on the night of December 31, 1885; Saw McWeeney in Boeing & Doyle’s saloon about 10 minutes before the shooting; as witness stepped into the saloon Oswald was there; witness took a cigar and walked into the back room; went back into front room to light a cigar, and saw McWeeney come in; saw McWeeney strike Oswald a blow and knock him down; he followed up the blow; it was all done very quick; Oswald fired at McWeenie; witness said to Oswald, “Billy, you ought not to have done that if you could have helped it”; he said, “McWeeney had no business to strike me”; Oswald appeared to be drunk and appeared to be having a jolly good time. Several questions were asked by Mr. Erwin which were ruled out by the court. The witness was not cross-examined by the prosecution.
John Taylor called by the defense. Was in the saloon a number of times during the evening; was there about 10 minutes before the shooting. Defense offered to show that witness was thrown over the bar about 15 minutes before the shooting. Not allowed by court. The witness saw Cowan jerk Oswald down by the collar and then take him up to the bar to drink; they were laughing and carrying on and having a good time; went hunting with Oswald a short time ago, and took a hunting knife along.
Cross-examination by Col. Warner.-- Have been acquainted with defendant for more than a year; we were in partnership; witness was playing faro in the back room.
Ed Hackett, Jr., called by the defense. Defense offered to prove that at Johnson’s saloon in this city ten days before the homicide, McWeeney asked this witness if Oswald had got home, and upon being informed that he had not, that McWeeney told witness that he was going to “do him up.“
At this point the defense offered to show that McWeeney and another killed a man at Grand Harbor two years ago. Objected to and objection sustained.
William Doll called and sworn by defense. Was taking in the sights of town on New Year’s Eve. Defense offers to show the entire town was celebrating New Year’s Eve. Objected to and sustained. Saw Oswald and McWeeney in Johnson’s saloon before the shooting; they seem to be friendly; there were several there; and we all drank together.
Cross-examination by Mr. McGee-- Were Frank Haney and Chas. Walsh there?
Answer-- They might have been.
Richard Fanning called by the defense. Saw defendant and Oswald in Johnson’s saloon; Doll, Dignan, Johnson and myself were there; saw Oswald and McWeeney there; should judge it was between eight and nine o’clock.
John F. McGee called and sworn by the defense. The heart and lungs remained in the body till the body was exhumed; never told Dick Maybe the heart and lungs were preserved.
John William Oswald, the defendant called on his own behalf. Is about 25 years old and has lived at Devils Lake about four years; knew McWeeney about three years; was at the Benham House for supper; went to Lynch and Gorman’s after supper and drank, and was in Johnson’s saloon after that; and then went to Boeing and Doyle’s; we stayed there and drank; remembers Cowan pulled him down to the floor; saw McWeeney come in, and went up to him and said to him “You big Irish s-- of a b---- come and have a drink with me;” had hold of his arm and went up to the bar; he said “don’t call me that; call me anything, but don’t call me that;” waived the pistol before his face (witness indicated the waiving motion) but did not strike; witness was not angry at McWeeney at that time; don’t remember whether he had his revolver in his hand or not memory is indistinct as to all that occurred: when I waived my revolver in McWeeney’s face, he stepped back and hauled off and hit me and knocked me down; could not tell what it was that struck me; he knocked me quite aways; the blow was a surprise to me; it stunned me; as soon as he knocked me down he came right for me: I thought I was in danger; that is the way it looked to me. In the first place I did not expect any blow from him; we had been friends; had no distinct idea of what took place from that time; was not angry at Pat before or after he knocked me down; thought I was struck with something else; was wild after the shooting, and did not know from what side I was going to get it; did not know who would give it to me, and I endeavored to get a gun to defend myself; I never formed a determination, in hot blood, or cool blood, to take McWeeney’s life or to kill him; weighed about 180 pounds when I went into prison; McWeeney was a muscular man; once in a while I use the term that I am going to “turn myself loose; “ by which I mean I am going to get drunk; it had no reference to harming anyone: had not drank anything for 17 or 18 days before that; recollect having out a hunting knife which I borrowed from McTaggart; he asked me to return it; I put it in my pocket that morning, but did not seen him during the day; did not expect to have a collision with McWeeney or anyone else; if the pistol came in contact with McWeeney’s face was by accident; if I had intended to strike him I would have done differently.
Cross-examination by Col. Warner. Was acquainted with the use of firearms and knew the fact of firing them at a person.
Question-Did you ever shoot anyone else? Objected to, objection sustained.
This closed all the testimony except
that of the physicians.
Dr. H. M. Wheeler was called and sworn on the part of the defense. Is a physician and surgeon and lives in Grand Forks; was called to attend Patrick McWeeney in the county jail at Grand Forks; treated him for intermittent fever; he was fleshy then, but was considerable emaciated when he left the jail. Witness then described and explained various causes of heart trouble. When men left a heavyweight it dams back the blood and causes a pressure on the walls of the heart; if the lungs were distended with air a ball would enter the right ventricle nearer the right margin than the left, a little below the nipple. It is impossible for a ball to enter the chest wall as indicated, perpendicular to the surface, and enter the heart.
Cross-examination by Mr. McGee. Witness views are based entirely upon the correctness of the statements going to make up the hypothetical question.
Dr. A. J. Smith called by prosecution. Graduated at college of physicians and surgeons at Baltimore Md.; knew McWeeney by sight; was present last night and the postmortem examination held on the remains. This testimony objected to by the defense on the ground that it is immaterial and irrelevant and ex parte and made by stealth and fraud perpetrated under cover of the night; that the remains were taken up without the presence of an officer. Objection overruled. Witness stated they found a wound in the gluteal region of the back; it was a wound of entrance; we traced it and found a leaden ball; traced it with a catheter; found a wound on the left hip; found wound on the breast; the heart has been cut open and we found a gunshot wound in the heart; we traced the ball which passed into the chest; traced it and found it in the back at the right of the spinal column, a little above the point of entrance in front.
Cross-examination by Mr. Erwin. Dr. Krueger, Dr. Ellis and Dr. Camp were present at the last postmortem examination; also Messrs, Morgan, Hearst and BeU witness did not disinter the body; the coffin was open, but the body was in it; body was not much decomposed but in a pretty good state of preservation; it did not smell very bad; the body was sewed up; the heart and lungs were in the thoracic cavity; they were not in the normal position, but were there; felt the ball in the back by feeling for it, and then cut down to it; we traced it from the thoracic cavity.
Adjourned to Wednesday morning.
MORE EXPERT TESTIMONY.
Court met at 8:30 a. m., on Wednesday morning, and the cross-examination of Dr. A. J. Smith was continued by Mr. Erwin. The heart and lungs were removed from the thoracic cavity; we examined the inner portion carefully; found nothing and then turned the body over; we inserted the probe in the wound from behind, followed the course of the wound and found a ball in the back about two and a half inches to the right of the spinal column. Witness was requested by District Attorney Morgan to meet about 10 o’clock; The request was made about an hour before hand. The heart and lungs were not put back into the body; I have seen them in the possession of Dr. Ellis.
M. C. Camp was called by the prosecution and sworn. Is a physician and surgeon; has been practicing about thirteen years; saw McWeeney’s remains at his former residence the night before last. Drs. Ruger, Ellis and Smith and Messrs. Bill, Hearst and one or two others were present. The thoracic cavity was opened by Dr. Ellis and witness. We found a wound on the back in the gluteal region; followed it up and found a leaden bullet; we found a superficial wound on the left itium; found a wound in the anterior wall of the thorax; traced it and found a ball in the back about four to six inches higher than the opening of the wound in the front; found a rib fractured; a rib at the back was fractured; this wound was a mortal wound.
Mr. Erwin here offered a propound the same questions to the witness in regard to the secrecy and stealth of the last postmortem examination. Overruled.
W. J. Hurst re-called by the prosecution. Is the undertaker who took charge of the remains of McWeeney he assisted in their disinterment; found the outside box, the coffin and remains as he had buried them in January; was requested to exhume the body by John J. Bell.
Dr. O. C. Ellis was re-called by the prosecution. Was present at the first and last postmortem examination on the body of McWeeney; the remains were apparently in the same condition the night before last as when the first postmortem was held; found a wound in the right gluteal region; followed it up with the probe and found a bullet near the inside of the hip; found a superficial wound on the left hip; examined the wound on the anterior wall of the thorax; followed it up and found a bullet in the back, imbedded in a muscle; in passing into the posterior wall of the thorax It fractured or splintered a rib: the ball from the chest wound went through the tissue, the heart, the right ventricle the pulmonary artery and into the back between the seventh and eighth dorsal vertebra; that the ball entered in front just below the sixth rib, as testified to in the direct examination, as a mistake; Dr. Ruger and myself did the cutting and made the examination, and Dr. O’Donnell made the notes; from the examination first name we could not on account of darkness and poor facilities see a rupture in the pulmonary artery; dipped out two or three pints of blood at the first examination; went the first time at the invitation of Dr. O’Donnell who used the witness’ instruments; in witness’ opinion the wound in the chest was fatal.
Cross-examination by Mr. Erwin--The heart and lungs were not put back in the body the night before last.
Re-direct examination--Cannot tell how the mistake occurred as to the location of entrance of wound and chest; McWeeney’s heart was healthy.
Dr. H. H. Ruger was called by prosecution. Assisted at the postmortem on McWeeney the night before last; Dr. Ellis and witness sewed up the remains after the first examination; there was no indication of the remains having been tampered with; witness shown a bullet and asked if it is the bullet found in the gluteal region, and says it is; this was a wound of entrance; when the examination was commenced we cut the stitches and checked out the heart and lungs; we cleared out the cavity and searched for the ball; it was found in the back; the remains were turned over and an examination made from the exterior of the back; the ball entered in front between the fifth and sixth ribs, entered the heart and went out through the pulmonary artery into the back; after the pericardium was opened, at the first examination, the blood flowed out; the heart was healthy and without disease; It was red; there was a rib in the back fractured; the wound where the bullet passed in front was necessarily fatal.
Cross-examination by Mr. Irwin--The wound in the back was about three inches higher than in front where the ball entered. The evidence heretofore given as to entrance of the ball and the chest was based on the correctness of the notes taken at the examination.
The prosecution then announced that it rested their case.
W. W. Wishart, the justice before whom the preliminary examination took place, was called and testified that the printed copy of the evidence taken at that examination was compared with the original shorthand notes. The printed copy was then accepted as correct by both sides.
Mr. Erwin here read from the preliminary testimony of various witnesses and compared it with the evidence of the same witnesses at the trial, counsel on both sides going through and making the points of inconsistency. Mr. Erwin’s object was to build up a basis upon which his theory of self-defense should rest.
Dr. Wheeler recalled by the defense. Mr. Erwin here stripped himself to the belt for the purpose of showing marks previously made upon his body by the witness to illustrate the course of the ball. According to the diagram upon Mr. Erwin’s breast the witness stated that a ball fired at an angle of 40° upward and backward would miss the heart.
Dr. Swanson recalled by the defense, and testified that a ball fired at a very short range upward and passing just below the fifth rib would hit the heart.
Dr. O’Donnell recalled. He testified that a ball entering as described would simply graze the heart. No such wound could be made as indicated by the testimony if fired as described. Witness stated that he was stronger in the belief than ever that the ball never entered McWeeey’s heart.
Both sides then rested their case.
At the close of the case the prosecution moved the court to take the case from the jury except as to the grade of crime, whether it be murder or manslaughter in the first degree. Some discussion arose as to the time at which this motion should be taken up, and it was finally decided that the jury withdraw and that the attorneys enter immediately upon the discussion of it. The attorneys brought in their law books and Mr. McGee commenced the argument of the motion. The position taken by the prosecution is that the evidence tends to show that there is nothing in it to justify the shooting. It was the defendant’s own unlawful at which brought on the attack from McWeeney. The first assault was made by Oswald. Attention was then called to the definition of the word “assault” and the definition of the word “willfully.”
The prosecution then referred to a case (Stoffer vs. The State, 15, Ohio Stat., 47) which holds that while the party who first commences the malicious assault continues in the combat and does not put into exercise the duty of withdrawing from the place, although he may be so fiercely pressed that he cannot retreat or is thrown upon the ground, or driven to the wall, he cannot justify taking the life of his adversary, however necessary it way be to save his own, and must be deemed to have brought upon himself the necessity of killing his fellowman. Reference was then made to the Gay case reported in the Dakota reports in which it was held that it is proper to instruct the jury that evidence which only tends to reduce the grade of the offense is not to be considered by them as tending to excuse or justify the killing; and that there being no evidence tending to excuse or justify the killing, it is not error to instruct the jury that “if you regard the oaths you have taken, your verdict must be murder or manslaughter.”
Mr. Erwin then addressed the court and said that homicide in this territory was either justifiable or excusable. There is no excusable homicide in this case. In the Gay case cited by the prosecution justifiable homicide did not enter into it. Mr. Erwin contended that if there was a feather’s weight of evidence from a witness or from the defendant himself going to show that there was the least justification it should be left with the jury.
The court here stated that he was satisfied that under the definition given by our statute that there was no excusable homicide in this case. The question is whether the committing of a misdemeanor takes from him the right to plead justifiable homicide. The defendant stated that if he hit McWeeney in the face, it was done by accident and in fun. Can the court take notice of such fun as that mentioned by the defendant when he says it was all done in fun? Suppose McWeeney had shot Oswald and killed him, would that be homicide?
Mr. Erwin claimed that he was not bound to take the testimony alone of the defendant. It is the disputed facts, and not the persons who dispute them. In a criminal case where there is one scintilla of evidence tending to prove a fact, the defendant is entitled to a trial by jury of his peers. It would be a great error for the court to take this case from the jury. The facts in the Stoffer case were not the same as in this. In the Stoffer case the defendant met the deceased on the street and attacked him and then intended to kill him, but he changed his mind and retreated. He was pursued by the deceased and he then turned and killed him. The defendant pleaded justifiable homicide and the court sat down upon him as it should.
At the conclusion of the argument the court ordered the jury to be brought in; and stated that counsel should proceed with the arguments, and that if he decided to do so he would take the same from the jury at the proper time.
Mr. McGee then commenced the first of the closing arguments to the jury. He said he had come now to the last duty he had to perform in this case. He characterized it as a most brutal murder; recited the story of it in a general way; and commented freely upon the testimony. Said the witness Dr. O’Donnell had been of the same opinion as Drs. Ellis and Ruger, who were his associates in the first autopsy, until about a month ago, when he suddenly changed his mind as to the primary cause of death, that is that the bullet did not penetrate the heart, but passed under it towards the back and down into the right gluteal region and passed out at the wound at the back. He charged that Dr. O’Donnell has been bought by the defense and is to receive $25 per day of the defendant’s money. He claimed that an example should be made of the defendant, not because it was Oswald, but because the law should be upheld and such a crime should be punished.
Mr. McGee was followed by Judge J. F. O’Brien who contend that the jury was not here for the purpose of making an example, but of deciding whether or not the defendant was guilty of the charge set forth in the indictment. The jury must consider only the evidence before them and decide whether or not the defendant was justified in his act. He claimed that the defendant was simply celebrating the day, which was the occasion of an old settlers’ reunion; and that it was not a very unusual thing for the citizens to celebrate in this way. He stated that his theory of the affair was that the first cause of the trouble arose from the response made by McWeeney; and that it was false pride on Patrick McWeeney’s part. You will have to decide whether death resulted from the pistol shot, or whether it was not from disease.
Mr. Irwin then made the closing argument on the part of the defense. He commenced by thanking the court for the way in which courtesy had been extended. He invoked heaven to guide him in placing before the jury the facts and facilities for the purpose of doing justice to his client, and not for the purpose of the fogging the minds of the jurors. The law presumes a man to be innocent until he’s proven guilty; and it is a duty of the prosecution to prove exactly and in every particular each obligation mentioned in the indictment. It is the man well acquainted with the science of medicine we entrust our sick wives and children. I give you my word of honor as a gentleman that before I came into this case I did not know what the ascending and descending vena cava were. Tell me why the Almighty God could not have burst the wall of the heart of Patrick McWeeney. The prosecution told you that the ball which entered the chest went in perpendicularly; they have not changed that. With jingled, heeled-bound laughter and boyish enthusiasm described to you a pistol held in a hand at an angle of forty-five degrees. If that ball had penetrated the heart the blood would have spurted out of McWeeney’s mouth; but we dare not touch open it in the hearing of the prosecution, else Daniel Blue would have come in and sworn that it did. But Daniel Blue’s mouth is now closed. Mr. Erwin charged that at one time Daniel Blue would tell one story, and at another time another story; and then dig in the night time for new facts. The evidence shows that death was a result of hemorrhage, caused by a bursting of the walls which was not caused by a pistol shot. The other branch of this defense was willingly placed at the disposition of the jury’s manhood and reason. In some instances a man is justified in taking life, and I will give you an example of it. If I draw my pistol from my pocket and say “Elliot I am going to shoot you,” and I point the pistol at you and snap it, but before it goes off you apprehend that I am going to shoot you and you quickly take my life, what will be the result? If you believed you were in great bodily danger, as you must have been, you would have been justified in killing me. A saloon is no place for man to go with their characters buttoned up under their coats. It is where men meet men. It is where they go to exchange courtesy and drink and have a good time. If you knew Patsy McWeeney you know that he knew what a pistol was. He took advantage of the first offer to have a fight with a man with a pistol in his hand. Your community can gain nothing by stringing up a survivor of an affair of this kind. We have resorted to no means to delay an investigation of this matter, and gentlemen of the jury, we have no fear of being disappointed. The people of the community have no fear of disappointment. We want your manly consideration of this matter. I pray you defend the institutions of your country. Thanking the jury on behalf of the defendant for their attention to the entire presentation of the case by the prosecution and defense, and commending them to the learned counsel who would follow him. He closed.
Devils Lake Inter-ocean. (Devils Lake, Ramsey Co., Dakota [N.D.]), 8 May 1886. Chronicling America: Historic American Newspapers. Lib. of Congress. page 1. columns 4-6.
