Jesse James died in the prime of life in a way that could only multiply and strengthen the already internationally-known legend of the James Gang. But what of his soft-spoken brother, the student of Shakespeare? What marked the end of his life in crime? Frank James was tried for robbery and murder in Gallatin in 1883.
Daviess County men who acquitted Frank James during the 1883 trial at Gallatin, MO, were standing from left: J. Snyder, B.F. Feurt, C.R. Nance, Joseph B. Smith, B.H. Shellman, William R. Merrritt, Jason Winburn, Oscar Chamberlain; seated are W.F. Richardson, L.W. Gilreath, N.E. Hale, and J.W. Boggs.
When Frank James surrendered to Gov. Crittenden, authorities in many states besides Missouri were anxious to initiate legal proceedings. From all the places landmarked as victims of a James Gang robbery, it was decided that the best available evidence to convict Frank James might come from the July 15, 1881, robbery of a Rock Island train at Winston, MO, in Daviess County.
Gov. Thomas Crittenden, one of 128 witnesses testifying during the trial of Frank James
The most famous trial of the Old West unfolded in Gallatin Aug. 20 through Sept. 6, 1883. Frank James faced charges of robbery and the murders of Conductor William Westfall and stonemason Frank McMillan during the 1881 train robbery at Winston, and also the murder of Capt. John Sheets in the 1869 bank robbery in Gallatin. The indictment against Frank James on the Sheets murder was dropped; a conviction was sought on the train robbery and murder charges only.
One of the scenes painted by Thomas Hart Benton (1889-1975) featured in the Missouri State Capitol at Jefferson City features outlaw Jesse James in a mythical train/bank robbery. Benton’s work adorns the House Lounge on the third floor of the Capitol. The murals were commissioned by the legislature in early 1935 for $16,000 and completed in December 1936.
It was truly a major event. Gallatin’s population of about 1,500 people nearly doubled. Governor Crittenden attended and testified during the proceedings, as did U.S. Senators and other officials and notables from many eastern states. Daily newspapers such as the Kansas City Evening Star, the St. Joseph Daily Gazette, the St. Louis Republican, and others sent their own correspondents and played each day’s developments into front page news.
A legal issue heightened the already emotional event. Could a Commissioner of the Supreme Court of Missouri vacate his post to act as a defense attorney? Political interest was also at stake. Could a prosecutor from Jackson County make good his campaign pledge to put Frank James behind bars? And what might acquittal mean to Gov. Crittenden who was already suspected of promising a pardon in exchange for the surrender of the notorious outlaw?
It was literally a theatrical event. The courthouse in Daviess County at the time was a nearly condemned structure. So, most of the trial was held in the opera house across the street to accommodate the crowds. It was located in the upstairs of the Alexander Building in the middle of the west side of the business square. Judge Charles Goodman of Gentry County, a host of ladies, and representatives of the press sat on the stage. The principals in the trial were situated immediately before the stage. There were 13 prominent lawyers involved, including a former Lt. Governor of Missouri.
Attorneys for the State were William H. Wallace of Kansas City, John H. Shanklin of Trenton, Daviess County Prosecutor William D. Hamilton, and J.F. Hicklin of Gallatin. Defense attorneys arguing on behalf of James were Charles P. Johnson, John M. Glover of St. Louis, John M. Slover of Independence, J.W. Alexander and Wm. Rush Jr. of Gallatin and Judge John F Phillips of Kansas City.
Other court officials included Circuit Clerk Dr. A.F. McFarland and his deputy William Sheets, Sheriff George T. Crozier and his deputy Gabe W. Cox with Major S.P. Cox, A.P. Shour, John Bowen and William Hamilton also deputies and jury attendants.
Over 200 witnesses were subpoenaed, about half from Daviess County; over 100 would give testimony. Among these were Mrs. Sarah Hite of Kentucky (called to relate incriminating conversations between the James brothers), Dick Liddell (a gang participant), Gen. Jo Shelby (a character reference for Frank James), Mrs. Zerelda Samuels (defendant’s mother), John D. Samuels and Mrs. Allen Palmer. John F. Jordin, writing for the Jamesport Gazette (Vol. 7, No. 35), reported that the Frank James trial is costing the state $250 per day.
All leading newspapers in the country sent special representation. Tickets were issued so that the throngs of onlookers would not exceed 400 — all the opera house could hold.
Chief Defense Attorney John F. Philips, left his Supreme Court post to participate in the trial
Attorney William Wallace of Jackson County prosecuted Frank James in the 1883 trial at Gallatin, MO. Ironically, Wallace was a Confederate soldier during the Civil War and was never elected again to public office after Frank James was acquitted.
Judge Goodman instructed deputies to allow no guns into the auditorium, and there was much concern about gunplay in town due to strong opinions on the innocence or guilt of Frank James. Frank James’s defense was a simple alibi. He claimed to be in Texas at the time of the Winston train robbery, visiting a sister. The prosecution’s key witness was Dick Liddell, a convicted horse thief and former James Gang member granted immunity in the case in exchange for his testimony. The trial lasted 17 days. The closing speeches provided a fitting climax. Both sides of the bench agreed to limit their final presentations — four speeches per side spanning two court days!
Civil War sympathies were a constant backdrop to proceedings despite efforts by Judge Goodman against reliving the war. Most expected a hung jury. Missouri law assigned guilt to anyone proven to have participated in the crime. Thus, Frank James would be found guilty if jurists believed he were there regardless of whether or not he actually pulled the trigger killing Conductor Westfall and stonemason McMillan.
People throughout the nation were in high anticipation over the trial’s outcome. There was shock and utter disgust expressed when an acquittal was rendered, but not necessarily in Gallatin. Cheers went up in the opera house immediately after the verdict was issued, though mostly from the throngs who ventured into Gallatin to offer an old Confederate comrade their support.
Jury selection was determined by the county sheriff according to law in effect in 1883. Those impaneled by Sheriff Crozier were Southern sympathizers who acquitted Frank James.
How could Frank James be declared not guilty? Probably due to a combination of circumstances. Over 16 years had passed since the crime was committed. During this period, the legend of the James Brothers as modern day “Robin Hoods” was widely known. Perhaps the death of a younger brother and the maimed arm of his mother at the hands of Pinkerton detectives elicited sympathy for Frank James. Frank James’s own expressed desire to live a peaceful life, and his example of doing so for a period of years, was also an influence. The death of his more notorious brother, Jesse, in St. Joseph meant the end of the James Gang. Many also noted that Frank James surrendered to Gov. Crittenden rather than being captured by authorities.
All these points impressed the jury. Perhaps most importantly, however, was the composition of the jury itself. Over 100 persons were interviewed before a panel of 12 jurists was selected. The selection of the jury required four days. The jurors were: J.B. Smith, age 26; Charles R. Nance, 45; Jason Winburn, 39; Richard E. Hale, 24; James Snider, 37; Benjamin Feurt, 37; Lorenzo Gilbreath, 46; W.F. Richardson, 53; William Merritt, 33; Oscar Chamberlain, 31; A.B. Shellman, 37; James Boggs, 57.
Prosecutor William Wallace threatened to quit the trial upon learning of Sheriff Crozier’s actions in the jury selection process. He suspected a “stacked deck” of Southern sympathizers for Frank James. Only pressure by Judge Goodman, who feared gunplay if proceedings were suddenly ended, kept the trial intact.
According to the History of Daviess and Gentry Counties (J.C. Leopard, 1922 p. 158), the jury stood 11 to 1 in favor of acquittal on the first ballot. Lorenzo Gilbreath being the only one favoring conviction. He soon gave in and James was acquitted.
Public reaction to the outcome was mixed as you might expect. In an edition published in October just after the trial, the Jamesport Gazette (Vol. 5, No 38) opined: “The man who failed to hear Frank James tried at Gallatin should come to Jamesport and hear him tried every day in the week, Sundays not excepted. These trials have broken up checker playing, but it is only a substitution of one nuisance for another that is worse.” Then later (Vol. 5, No. 41) added this observation: “Since the acquittal of Frank James, the opinion is steadily gaining ground that he was truly tried by his peers, at least, so it appears.”
This trial was selected for re-enactment during the 75th anniversary of the law school at the University of Missouri-Kansas City. It was also re-enacted by the Gallatin Theatre League in the fall of 1990, near the actual site of the famous 1883 trial.
— written by Editor & Publisher Darryl Wilkinson for the Gallatin North Missourian, 1989
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The following observations were made by John Kaplan, a special guest speaker during the re-enactment of the trial performed during the 75th anniversary of the law school at the University of Missouri-Kansas City. Professor Kaplan is a noted trial authority and author of numerous published works and books. He offered insights contrasting the trial methods of the 1880s to the 1980s. His remarks, in part, were published in the Gallatin North Missourian:
“Frank James was probably guilty of these charges,” Kaplan said. “I’ve seen verdicts of guilty on less evidence than what we’ve seen here through this re-enactment.”
Kaplan explained that the manner in which the jury was picked may have had much to do with the outcome. The jury was picked by the Daviess County Sheriff, a former Confederate and thus a comrade-in-arms to Frank James. Kaplan speculates that most of the jurists were Southern sympathizers who hesitated to condemn James, particularly after the defense attorneys accused prosecutors of trying Frank James for political gain.
“To be sure, we really don’t know exactly how justice worked in the 1880s,” Kaplan said. “Historians avoided law in their works up until the last 12 to 15 years, and then most historical works focus on Puritan New England.
Kaplan has taught law at Northwestern, the University of California-Berkeley and now at Stanford. He related this relatively unresearched era of law practiced in the Midwest to what is know about law practiced in California during this same decade.
He likened Kansas City to Oakland for that decade, noting both boasted a population of about 40,000 and were growing. He thus based his comments on 1880 trial practices from his studies of Alamena County, CA.
Juries, he said, tended to be middle class males chosen by the judges. There existed a distinct class bias. There were also many exceptions to jury duty that the sheriff was routinely requested to round up a jury on short notice. This made for unusual circumstances.
Alamena County records, for instance, show where a jury was once asked to decide a liquor license civil suit. The sheriff, pressed to acquire a jury, simply entered the nearest church and summoned jurors from the congregation. Conversely, on other occasions, all jurists were selected from nearby pubs and bars.
According to a news account printed in the Oakland Tribune during 1894 read by Kaplan, people the sheriff knew were prime “targets” when a jury was needed. Sometimes a jurist might be tapped for service on two consecutive days for two separate trials.
“The biggest change in trials today from the day of Frank James has been in the picking of juries,” according to Prof. Kaplan. “The rest of the trial proceedings as we witnessed in this re-enactment is recognizable by today’s standards.”
