A Death at Crooked Creek

The Case of the Cowboy, the Cigarmaker, and the Love Letter

Marianne Wesson

• Publisher: NYU Press
• Year: 2013
• ISBN:
  9780814789452
• Topic: Storia
• Subtopic: Storia nordamericana

"This is anextraordinary and ground-breaking book, a wonderfully creative mix of fact andtheory, imagination and drama. Anyone with an interest in law, history, or, forthat matter, great storytelling will fall in love with A Death at Crooked Creek. The startling origin of the complex'intention exception' to the hearsay evidence rule becomes canvas on which agrand and marvelously detailed tale is told. This is modern narrative at itsbest: a marriage of spectacular writing and hard, documented truth presented bya brilliant author who doubles as a gifted and fastidious legal scholar andhistorian." —Andrew Popper,American University One winter night in1879, at a lonely Kansas campsite near Crooked Creek, a man was shot to death.The dead man’s traveling companion identified him as John Hillmon, a cowboyfrom Lawrence who had been attempting to carve out a life on the blusteryprairie. The case might have been soon forgotten and the apparent widow, SallieHillmon, left to mourn—except for the $25,000 life insurance policies Hillmonhad taken out shortly before his departure. The insurance companies refused topay on the policies, claiming that the dead man was not John Hillmon, andSallie was forced to take them to court in a case that would reach the SupremeCourt twice. The companies’ case rested on a crucial piece of evidence: a fadedlove letter written by a disappeared cigarmaker, declaring his intent to travelwestward with a “man named Hillmon.” In A Death atCrooked Creek, Marianne Wesson re-examines the long-neglected evidence inthe case of the Kansas cowboy and his wife, recreating the court scenes thatled to a significant Supreme Court ruling on the admissibility of hearsayevidence. Wesson employs modern forensic methods to examine the body of thedead man, attempting to determine his true identity and finally put thisfascinating mystery to rest. This engaging andvividly imagined work combines the drama, intrigue, and emotion of excellentstorytelling with cutting-edge forensic investigation techniques and legaltheory. Wesson’s superbly imagined A Death at Crooked Creek willhave general readers, history buffs, and legal scholars alike wondering whetherhistory, and the Justices, may have misunderstood altogether the events at thatbleak winter campsite.

1

A WINTER JOURNEY LEADS TO AN INQUEST

1879

LAWRENCE, KANSAS | APRIL 1879

Sarah Ellen Quinn Hillmon pronounces exactly those four words, practicing. She has had very few occasions to say all the names together and stumbles slightly. Regarding herself reproachfully in the cloudy glass she tries again, this time with more success. She is certain she will be asked at the very outset to state her name and does not wish to be flustered by the task. Nor will she allow herself to weep when she says Hillmon, the name that has been hers for such a short time.

Then there is another ground for worry: she ironed the calico dress, her only fine one, into crisp respectability the night before, but already the damp air has softened its finish and left it limp. It really should be black under the circumstances, but she owns no dress of that color, and the ancient bombazine Mrs. Judson offered to lend her was far too large and smelt of mothballs. Turning, she attempts to see how the dress looks from behind, but the glass is too small and the light too dim to reveal much. Being in the Judsons’ chamber makes her anxious anyway, as she rarely visits this room at the rear of the house, despite her friendship with the couple and her tenancy of the second floor bedroom. It is kind of Mrs. Judson to allow her to come in to inspect her appearance this morning.

Outside the window five or six girls, the same ones who congregate on the sidewalk nearly every day, are jumping rope. Sallie has even jumped with them a few evenings on her way home from the hotel where she works, enjoying their cries of admiration for her still-nimble movements. The girls have a new chant, Sallie realizes as she listens.

John Wesley HILL-A-MAN
Said that he might KILL-A-MAN
Is he a CORPSE NOW
Or do you think he’s STILL-A-MAN?

Sadie Quinn HILL-A-MAN
Says he wouldn’t KILL-A-MAN
Will she tell the TRUTH NOW
And is her love a KILLER MAN?

Little savages. What do they know? She’s never gone by Sadie; it’s common. And the name doesn’t end with man, although the newspapers keep getting it wrong.

With her forefinger she worries the burn on her thumb, a souvenir of her inexperience with the Judson’s heavy flatiron. She hopes it will not blister. Waitressing is hard enough without a raw thumb, and her mother will be annoyed if she does not appear at the hotel’s dining room tomorrow in time to help serve breakfast.

Sallie knows that her mother was not overfond of John Hillmon. Can-dice Quinn thinks herself a shrewd judge of male character from her many years in the restaurant business, and by the time she met Hillmon she had fed too many cattlemen to be impressed with one who had no ranch of his own. When Sallie told her that she and John were to be married, the older woman said only, “I reckoned I had taught you better.”

Sallie has indeed learned much about men from her mother, including the concealment of her feelings and the maintenance of an air of indifference to gibes and compliments alike. Moreover, she can spot a lecher or a rake quicker than most. She was sure at the time that her mother was mistaken about John, whose only shortcoming as Sallie saw it was a lifelong partnership with mildly bad luck.

Mrs. Judson looks into the room, her straw hat already askew. “Ready to go, Sallie? Arthur has brought the wagon around to the front.”

Sallie is thankful for the pressure of Mrs. Judson’s gloved hand on her own as they share the splintery backseat. Mr. Judson drives the team himself, as a driver would be an extravagance. The Judsons are not much better off than she and John are (were, she corrects herself; she must learn to speak of him in the past tense), but they have always been generous. The wagon’s sudden sway nearly robs her of balance on the narrow seat, and she looks at Mrs. Judson with surprise as the conveyance swings onto New Hampshire Street.

“Isn’t the inquest at the courthouse?”

“Yes, my dear, but Arthur thinks that you ought to go by Bailey and Smith’s before. To take a look at the body.”

Sallie shakes her head quickly. “It’s no use. They wouldn’t allow me to see it yesterday.”

She has never before seen Mrs. Judson’s motherly gaze grow so flinty. “Who prevented you?”

“That Mr. Selig from the insurance company, and the other. Griffith. They said I should remember him as he was. Anyway, I know it’s him. Arthur says so, and he knew John as well as any man. I don’t want to see him in a coffin.”

Mrs. Judson holds her hand even more tightly and Sallie flinches; her friend has unknowingly rubbed the burn. “You must, Sallie. You will insist on being admitted. Arthur has learned that numerous persons have been let into the room to view the body. He was your husband and you have a right to see him. I am sure Arthur is right that it is John, but if you do not see for yourself they will say it’s because you know it isn’t John but have not the gumption to tell a lie.”

After a moment’s reflection, which takes in the jump rope chant, Sallie can see that this is true. She nods; it will have to be done.¹

Sallie would have been astonished at this early moment to learn that her name would be given to one of the most famous and lengthy pieces of litigation in American law, a lawsuit sometimes described as an American Jarndyce v. Jarndyce. That fictitious lawsuit at the center of Charles Dickens’s Bleak House consumed its parties like a succubus; countless babies were born into it, and for generations its unhappy litigants could escape only in death. Sallie’s suit was not quite so long, nor quite so fatal. Nevertheless, a nation of observers attached their own loyalties and opinions to the dispute, and its duration spanned at least one generation; it supplied plenty of epic drama in its time, drama quite suited by its subject and parties to stand in for the struggles that preoccupied its spectators when they weren’t watching or reading about the Hillmon trials.

Kansas, at the edge of the American frontier in the years of Sallie Hillmon’s lawsuit, harbored disputation from the beginning of its written history. The former Territory of Kansas had been admitted to the Union as a free state on the eve of the Civil War, after a decade of bloody struggle, and by the seventies the worst violence occasioned by the slavery question lay in its past. But the bitter conflicts that had once earned the Territory the label “Bleeding Kansas” lingered in collective memory, as the old resentments were reinvested in new divisions: urban against rural, agricultural versus mercantile, prohibitionists against their opponents, white settler against Native American, the religious against the freethinker. The controversy over the Hillmon case took root in this troubled ground.

John Wesley Hillmon, who was born in Indiana in 1848 and served in the Union Army as a very young man, moved with his parents and siblings to a Kansas township called Grasshopper Springs in the late 1860s. This northeastern portion of Kansas close to the Missouri border was more thickly settled and easily traveled than the outlying sections, where the weather was harsher and the land less fertile. It was also safer than the lands farther west and south, where bloody battles took place well into the 1870s between the settlers, backed up by their military protectors, and the native peoples they saw as their enemies.²

Even after the Treaty of Medicine Lodge in 1867, a few bands of the plains tribes resisted the peace that agreement sought to impose on the region. They suffered much loss of life from both privation and assault, and their warriors sometimes took revenge on settlers as well as soldiers. Indeed, mere weeks before John Wesley Hillmon first applied for life insurance, a band of Northern Cheyenne people seeking to return from Indian Territory to their homeland in Montana clashed with Kansas homesteaders; there were many deaths among both groups.³

Nevertheless, thousands of homesteaders from the eastern and middle Atlantic states braved the dangers and the elements to stake out their one hundred sixty acres and hunker down in sod houses or rude cabins, hoping to endure long enough to acquire title, make enough money to pay for their claims, and become what they never could have been where they came from: landowners. Homesteaders who learned enough to survive their first hazardous winter found that if they could manage to raise a crop of any size, they could use the newly built railroad to ship their produce to distant markets where it would command a good price. For a time after the Civil War the partnership of farmers and railroad was a happy one, with enough profit for both, although later this alliance would unravel in bitter fashion. But the cultivation of food crops was always difficult in Kansas, especially as one moved westward into the arid regions, because of the harsh weather and uncertain precipitation. Many men instead tried to make a living in the livestock business. Cattle were raised in great numbers in New Mexico and Texas and driven via the great Santa Fe and Chisholm Trails to the cow towns of western Kansas, often trampling some homesteader’s fields along the way. From thence they could be loaded onto railroad cars and transported to the markets back east.

Like many young soldiers released from service after the Civil War, John Hillmon tried out various occupations. He worked in 1874 as a foreman at the Quartzville mine near what is now Fairplay, Colorado, and then moved on to Central City, where he worked in both mining and brickmaking. But before long he drifted back to Kansas, and into the cattle business. Hillmon was skilled on a mount from his time in the military, so he worked as a cowboy for men who bought and sold cattle, sometimes investing in his own small herd. Occasionally he dealt in buffalo hides; he was one of the many hunters and traders responsible for reducing the great bison hordes of the plains from a population of millions in 1870 to near extinction by 1890. His cattle dealing took him to Texas and back, and not everyone who dealt with him had praise for his business ethics: in 1879 the sheriff at Lawrence reported darkly that he had received “inquiries” from parties in Texas who had business complaints against Hillmon.

In the mid-1870s Hillmon worked off and on with a cattle rancher named Levi Baldwin who owned property in Tonganoxie, not far from Lawrence. Baldwin was sometimes Hillmon’s employer, sometimes his partner in certain ventures. The rancher had a cousin named Sarah Quinn, called Sallie, whom he introduced to Hillmon during this time. Sallie and John Hillmon were married after an acquaintance of several years, in October 1878, and the couple thereafter set up housekeeping in a Lawrence, renting a room in the home of a couple named Judson. John was thirty at the time; Sallie was several years younger.⁴

An ambitious cattleman like John Hillmon might reflect that a Kansan who could find the land on which to raise his own livestock, as Baldwin had, would enjoy a great advantage in proximity to the new train lines and thus to the markets. But the land around Lawrence was mostly occupied by the time John Hillmon started to speak of staking out his own claim. For homesteading one had to go farther south or west, where the government was selling land, much of it available as the result of broken treaties. The price was $1.25 to $2.50 an acre if one would settle on the land for six months (and in some places cultivate it, although that requirement was not much enforced). Land was available for purchase from the railroads in some places as well, for they had been granted outright several millions of acres as right of way for their roads, and were free to sell any acreage they had no need to use. Their prices were often as cheap as the government’s, for they saw every trackside settlement as a source of endless future shipping and travel revenues.

There were plenty of buyers, too, especially as the idea took hold that “rain follows the plow.” This early version of a belief in human-induced climate change proposed that cultivation activity could literally modify the weather, and that the skies west of the hundredth meridian thus would be made to shed moisture onto the ground by the farmers who moved westward, turned the soil, and transformed the plains into fields. It was an appealing notion; many aspiring homesteaders were persuaded. But later events would not bear out the idea that rainfall followed human settlement, and it would prove the undoing of many.⁵

Even without cultivation, the native grasses could provide some nourishment for livestock, but for most of the nineteenth century cattle ranching, as distinct from cattle driving, had been practically impossible in western Kansas. The difficulties included not only the hostilities between the would-be ranchers and the native peoples who lived on the plains, but also the unavailability of the materials needed to create enclosures for cattle: there was no stone, and insufficient hardwood timber for sawed boards. The 1867 Treaty of Medicine Lodge, however, imposed at least a theoretical peace on the prairie, and the invention of barbed wire in the 1870s solved the fencing problem. Homesteading a ranch on the prairie, somewhere between Wichita and the Territory of Colorado, had become by 1878 a possibility to which a reasonably enterprising man could aspire.⁶

John Hillmon told Sallie shortly after their wedding that he was planning to set out on a journey, accompanied by a man named John Brown. Brown was an old sidekick of his; Hillmon had supervised him at the Quartzville mines and knocked around Colorado with him a bit. The two men had run into each other again by accident at the Kansas City train station in 1876, and Hillmon had recruited Brown on the spot to join an expedition to Texas to hunt buffalo and carry on some trade in the hides. But according to Sallie, Hillmon promised her that the trip he was about to embark on with Brown in 1878 had a purpose more suitable to a married man: he would look for a place where he might start a ranch of his own. It is not known how or whether he explained his reasons for departing in the bitter midst of a Kansas winter, but Sallie Hillmon’s lawyers would later argue that it was necessary because cold-season feeding of cattle was a great expense, and a place would bear consideration only if, upon inspection, its winter range appeared sufficient to the sustenance of a herd.⁷

Thus the two Johns, Hillmon and Brown, set out for the first time shortly before Christmas 1878, taking the train as far as Wichita and then procuring a wagon and team of horses. The pair got as far as the frontier hamlet of Medicine Lodge, where they stayed for a few days and met several of the local men before striking out westward, But within a day or two, cold weather drove them home—back to Wichita together, and then Hillmon back to Lawrence and his wife for a time.

Hillmon left Sallie a second time to try the venture anew in late February 1879, traveling through Wichita to pick up Brown and heading southwest from there. After passing through Medicine Lodge again the two men camped out on the night of March 16 near a place usually called Crooked Creek—although some locals called it Spring Creek.⁸

After dark on the evening of March 17, John Brown found his way to the...