The Plattsmouth journal. (Plattsmouth, Nebraska) 1901-current, June 10, 1909, Image 1

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    Neb. State Illatorlcal Eec.
moutb Journal
NO. 228
Fixes Crime as Murder in Sec
ond Degree - Last Testimony
Dr. J. S. Livingston called. Dr.
Livingston testified to having exam
ined defendant's head and finding
it more or less bruised as from a
blow. An attempt to show at what
distance such a blow could be inflict
ed was ruled out.
Peter Clarence called. Witnesss
testified to the size and demlnsions
of John Clarence's team his testi
mony showing' the team to have
been about 5 feet 4 inches in height.
Dean Austin called. Lived at
Union. The reputation of Mr,
Thacker was not quarrelsome. No
testimony as to his temper was ad
mitted. Sam Smith called. Liveryman and
Draylng In Plattsmouth. Had
measured John Clartnce team.
One mare 5 feet 3 1-2 inches and 5
feet 4 inches. The other horse was
5 feet 3 1-4 inches and 5 feet,3 1-2
inches in height.
Nelson Jones, drayman. Saw Clar
ence on Jan. 15th in Tom Troop's
cigar store. He came up street on a
horse. Went into Troop's store. He
was inquiring for police. Defendant
inquired for Mr. Cory. Defendant
unbuckled a belt with gun and holst
er in it. What he said was ruled
out. Defendant said "Mr. Cory, take
these and lock me up, I shot John
E. M. Smith called. Lived near
Union. Farmer and stockman, 56
years of age. Knew both Thacker
and Clarence. Had broken wild hor
ses and bronchos over 9 years. The
practice In the west was to carry
a revolver when breaking horses to J
protect himself from horses which
got the best of him. Knew Thack
er's reputation. It was quarrel
some. He had lived next to him 9
Mr. Gering crass-examined. Re
putation comes of a line of honor or
dishonor. Reputation is what a man
does. Character means a man's re
spectability and lntergrity, character
and reputation the same witness had
ben arrested.
By Mr. Clark. He had heard
people talk of Mr. Thacker's dis
position to quarrel. He took that In
to consideration when he spoke of
Mr. Thacker's reputation. He" had
never heard other persons discussing
the reputation of Mr. Thacker
Frank Schlagel and witness and
Lennie Crawford discussed it.
By Mr. Gering. He'had heard of
quarrel with Frank Schlagel. Had
talked with Crawford about June,
1907. Thacker had told him of
Crawford pulling a gun on him.
Crawford said they had had trouble
in the woods and his buggy had
been broke by Thacker's fault. Had
visited Mr. Thacker. Don't know
Thacker was ever arrested. Th$
Houston quarrels happened when
Houston was about 21 years old.
Had talked to Houston lately on ac
count of this case.
By M,t. Clark. ThacKer had
told him In presence of Lee Thacker
and Ed. Houston. "I went In there
calculating to whip Lennie Crawford.
He might fight and the boy had a
ix-shooter,but he could eat the bul
lets." Thacker did not claim Lennie
Crawford had shot at him.
John Klaurens, sr., called. Fath
er of defendant. He has been a
cripple a long time. About 20
years ago he got a touch of It. Hnd
used a cane about 6 or 7 years.
Caused from being thrown from a
pet mule. Could not remember his
age. Had seen him break lots of
horses. He kept lila gun strapped
Cross-examined by Mr. Goring.
Witness never carried a gun. Rid
ing witness, mare one day it slipped
and fell nearly catching him. He
then stated he would kill tho mare If
it cnught him. He allowed hlni to
ride horses whenever he wanted to.
The horse had thrown him a million
times, always hurting his knee. Dr
Gllmoro had treated him. Had
heard of trouble with Hob Kendall.
Hp did not wear a cane then. Could
not remember whether he com
menced to use a cane before or after
the trouble with Kendall.
Walter Thacker called. Resided
In Liberty precinct, aged 28 years.
Knew defendant. Met him on Jan
uary 13, 1909, at Ed. Midklff's
in road. Witness in a buggy. De
fendant got in buggy and lead the
team behind. Witness asked him
to sign a paper for a road through
John P. Thacker's land. Defendant
said he would sign the paper If
John got paid for his land. Wit
ness told Clarence how John felt to
ward defendant. He told defendant
to stay away from John Thacker as
John was laying for him. This was
In August.' He was told this by
John P. Thacker and he told Clar
ence on January 15, 1909. Knew
Thacker's reputation to be that of
a quarrelsome man. Thacker was
quick tempered. Brother of John P.
Thacker. Witness' father died Oct.
21, 1908.
Cross-examined by Mr. ' Gering.
His brother wanted witness to bring
Clarence up to his place in August,
1907,60 he could whip him. Witness
might have heard of deceased and
defendant being at Ed. Midklff's. He
might have told someone of John's
Mireat. Messrs. Gering and Clark
clashed over side remarks and a por
tion of them was incorporated in
the tecord. Witness could not re
member whether he had told any one
else. Walter wanted the road open
ed for his benefit and John did not
want it. This was the cause of his
telling it. He was afraid his brother
might pound defendant up. He had
always known his brother to be quar
relsome. Did not know what reputa
tion was. Mr. Clark had brought It
in as though John was quarrelsome.
Did not know what character was
nor whether it was different from re
putation. There were two living
brothers, one in Iowa and one at
Homer, Neb. Had talked to Mr.
Clark in his office going on his re
quest made In the court room. This
was during the Ossenkop case. He
thought it was after his brother
had been shot. He had told Mr.
Clark before his brother was killed
that John was quarrelsome. John
was not a fighter. He heard of the
quarrel with Crawford. Mr. Clark
asked him about the talk John" had
made to him about Clarence,
By Mr. Clark. The first talk was
concerning the private affairs of J.
P. Thacker and the witness over the
father's estate. His father was liv
ing with him when he died.
Ear Albln called. 19 years old.
Lived near Union. Was at Dar-
rough's farm on January 15, 1909.
Cousin of Jno. P. Thacker. Wit
ness was outside the crib wh$n the
trouble commenced, on the right
hand side of the wagon between the
crib. and wagon. He was talking
to Carter Albln. Carer said. "He
was a d big headed fool." Wit
ness said he probably was and want
ed Carter to get out' the wagon but
he would not. He took off his coat.
John P. Thacker came up and said
"Kill the S of a B he don't
amount to anything." Thacker got
up to about 20 feet of witness east
and In front of the wagon. Did
not hear anyone else say anything.
Clarence said something but he did
not hear what. Thacker picked up
a board and went back to where
Clarence was. Witness was 5 feet
11 Inches high. Witness could see
Johnny and Thacker. Thacker hit
John with the board. Johnny hoi
lered or screamed. Could not say
what Clarence did with IiIh cane.
There was shooting as soon as Thack
er grabbed Clarence. Witness went
to the head of the horses as soon as
the striking took place. He saw
Thacker lilt Clarence twice over the
head with the hoard which then
broke, then Thacker grabbed Clar
ence. Two shots were fired In quick
succession and the third followed
Inter. The men fell to the ground.
Thacker on top. Thacker wnH bmk
of Johnny when the second shot was
tired. They were gnpplod. Clark
and Crawford were In the crib when
the trouble started. Did nut notice
them until when Thacker got Clar
ence down. Did not know whether
John had his cane when Thacker
grabbed him or not. Carter was In
the wagon when witness started
around the head of the wagon. Lee
Thacker came down and stepped on
Johnny's hand. John Thacker had a
hold on Clarence's right hand when
they fell. After the trouble John
Clarence got up and got his pony.
Witness went to barn with defendant
who told him he was. coming to
town to give himself up.
Mr. Gering cross-examined. Did
not know how many times Thacker
struck Clarence over the head. Re
lations between John P. Thacker and
witness were strained and he did not
have a friendly feeling for him. He
had dared Carter Albln to get out of
the wagon. He was Intending to
lick him but his uncle was too big a
coward. Witness was very defiant in
his manner. He testified that he had
started trouble with his uncle by
throwing corn at him out of the
crib with the intention of starting a
fight with him. Witness had shaken
his fist at his uncle after the uncle
had shaken his fist at him. Witness
pointed out on photograph where he
and his uncle were standing. Wit
ness did not know where Clark or
Crawford were when the fight start
ed. Witness looked over the hor
ses backs. He saw Thacker stoop
down and pick up a stick. Mr. Ger
vog's cross-examination was a ken
and helped to badly tangle the wit
ness up on facts of the trouble.
The witness constantly said, "I don't
know" in answer to Mr. Gering's
questions and seemed to be badly at
sea over the situation of the parties.
Witness lives now at Wausa, Neb.
The witness positively denied sever
al of the answers read him as hav
ing been asked him at the coroner's
By Mr. Clark. Witness had made
no measurements on the ground and
had not been back here.
Witness demonstrated before the
Jury how the men stood when grap
pled. Court adjourned at 5:43 p. m. un
til Monday.
Monday Morning.
The attendance in district court
this morning when court reconvened
for the coninuance of the trial of
John Clarence for the murder of
John P. Thacker, was lighter than
at any time during the case. This
was doubtless owing to the bad
weather and the early hour, at which
the trial was resumed. Court was
prompt in convening and business
was taken up at once. The defend
ant, his mother and brother occu
pied seats behind the counsel, Byron
Clark. Mrs. Thacker, her little girls
and son Lee.were also in court and
occupied seat behind County At'or-
ney Ramsey and Matthew Gering,
counsel for the prosecution.
Mrs. Maggie True called. Resided
at Union; subpoenaed by state first.
Had seen Clarence preparing to
break and breaking horses. Saw
Clarence take revolver and belt and
strap It around his waist.
Cross-examined by Mr. Gering:
Had only seen Clarence with reolver
that one time. Had seen him with
the revolver when breaking west
ern horses. Did not notice any
brand. Saw him hitch up horse to
wagon and get in wagon. Defend
ant drove away; the horse was rear
ing and kicking. He drove with the
lines and a W. which gave the
driver absolute control of the horse.
Sheriff Qulnton called: Sheriff of
Cass County; also jailor. Had the
cap which the defendant wore when
committed to jail. Cap identified.
Had examined the head of defendant
on January 16 found several small
lumps on head. This was not at tho
time Dr. Livingston examined the
defendant. One was about the cen
ter of the head and one was at the
left side.
Cross-examined by Mr. Gering:
No blood on head. One bump just
ordinary bump, the other red. Cap
taken possession of at request of
County Attorney Ramsey who had
never seen It.
By Mr. Clark: County attorney
had never asked for it.
Nelson Jones recalled by defend
ant: Was pmvnt when defendant
toon orr ins belt and revolver. Ob-
srved his horse at tho time. It
looked as If ho rode hard nnd
sweaty. Did not know at the time
what wns done with the horse. An
hour later he saw the horse In th"
barn blanketed with two blankets
ham Redmon cille.l: Lived
In I'liittsmouth. Lived nt
James Darrough's on January 1."
was shelling corn there. Arranged
for help for Job. Was there when
defendant shot Thacker. Was nt
the sheller b foro tho shooting, but
wns nwny nt tho time being at the
house, calling more tenniH. Tho
sheljer was running. He then start
ed back to the sheller and when
about half way he noticed the shel
ler was stopped and he stopped. No
quarreling when he left the sheller.
Earl Albln had been throwing corn
Into Carter's wagon. When witness
stopped he was about 60 steps north
and east of the sheller and wagon.
He stepped the distance a day or so
later. Witness saw Albln pull off
hla coat. Could not hear words
spoken. Then saw Thacker about
6 feet east of the horses' heads, go
ing west. He passed the horses'
heads a couple of feet. Remained a
very Bhort time. Ihen saw him go
ing east. Could not say how far he
ent. No one befors him nor In
that direction. The tank was Bouth
and west. Clarence was there.
Thacker did not go quite as far east
as defendant, but turned south
toward him. Heard no words: saw
hacker hit defendant n couple of
times with a board and defendant
striking back with his cane. They
clinched and one shot was fired then
two more as they fell. Witness did
not hear shooting until after the
blows were struck. Clarence did not
move toward Thacker. Could not
tell whether Clarence hit ThnrUor
1th the cane or not. Witness then
returned to the house. Witness saw
defendant before at the house, then
he started back. Witness did not
hear defendant make and statement
to him. Clarence ate dinner at
Darrough's. Clarence did not have
on the overcoat; saw Clarence have
revolver on his left side that day.
Cross-examined by Mr. Gering:
Could not say what cane defendant
had. Supposed the one he now had
was the one. Cane about 3 feet
long. Thought cane would come ud
to defendant's belt. Ordinary friend
of John's. No trouble when he
started for the house. John was
pulling out his wagon with a team
of horses gentle, he believed. He
was In charge of the place as Dar-
ought was gone. He thought Earl
Albln was throwing tho corn in the
wagon to start a fuss. Heard Albin's
testimony but could not remember
his staying that he threw the corn
to start a row. He, Crawford, Clark
and Earl Albln were all in the crib
shoveling corn. They threw it to
the sheller which stood east and
west. Sheller about 8 or 10 feet
long. Sheller north of Carter Al
bin's wagon. Witness testified to
various heights and measures of dif
ferent objects. There was a tree
northeast and a pile of wood; also
a pump was north of that and the
Darrough house was north of that.
Could not say whether the tank
could be seen from the west side of
the porch or not. Had lived with
Darrough since October. Saw Mld
klff and Mrs. Darrough at the house.
Telephone on the south side of the
room. Called ud Mr. Chalfant and
Mr. Petersen. Witness supposed
It to be about 300 feet from the
house to the crib. Attorney Ger
ing wanted to test by the watch the
time he would take to walk from the
house to the crib. Mr. Gering hold
ing the watch. The test resulted In
witness fixing the time at about 45
seconds. Witness had talked to
Mrs. Midklff and Mrs. Darrough
about one minute. Witness stopped
at about 180 feet from the sheller
when he, first saw Thacker. It was
nearly five minutes from the time
he left the crib until he got back to
where he stopped. Thacker came
from the east immediately after Car
ter Albln took off his coat. Witness
had made measurements of various
distances on the premises by him
self, one end of the tape being held
by a rock. Witness had posed for
photographs for Mr. Clark. Mr.
Gering showed witness defendant's
exhibit 6, a photograph, for the pur
pose of showing witness could not
see the wagon over the sheller.
Thacker was out of his view part of
lbthe time. He could see him east of
the tenm at a distance of 180 feet.
Saw Thacker strike Clarence at a
distance of C or 8 feet from tho tank.
Witness could not say whether de
fendant used one or two hands In
wielding the cane. The reins of the
tenm were dropped. The floor of
tho crib was bare some six feet
nt the door. Mr Gering showed
witness state's exhibit 4, nnd ques
tioned him on tho 2x4 studding In
the crib. Witness demonstrated
with Mr. Gering hU Idea ns to haw
rar tho men were apart, lie thought
six or eight Inches. Did not hnr u
h"t until tho in,. n had gotten to
gether, the shots nil followed one
nnother In regular succession
Thmker did not hit Clarence after
they clutched. No kIm.I were fired
until nfter they clinched when
Thinker wns not striking Clarence.
He did not see the board break.
Witness shown defendant's exhibit
and questioned as to the distance of
the team from the crib and also de
monstrated how far from the tank
the men fell, flxlna the distune
about 8 feet. Knew Geo. Hill and
Geo. Saxon; saw the latter with
County Attorney Ramsey and had a
conversation with the latter. Did
not remember telling him that he
was telephoning at the time and did
not Bee it. Witness had not talked
to Attorney Clark about the matter
t the time he talked to Mr. Ramsey
He had later, talked to him about
a month later. At the start of the
trouble he didn't want to get Into
the trouble but lately he had been
taking quite an active Interest in It,
taking measurements and poslnc for
photographs and returning from Mis
souri to testify.
Mr. Clark endeavored to get state
ments from the witness as to the con
versation with County Attorney
Ramsey but was ruled out by the
Mr. Gering examined. He went
back to the house as soon as he saw
the shooting. He talked to Mrs.
Midklff and Mrs. Danough. The lat
ter had written him several letters
after he went to Missouri but they
did not relate to this trial, but to
personal matters.
This witness made perhaps . the
best defense has put on yet, as his
answers wer clear and lucid.
A recess of about ten minutes was
taken at 10:30 to give the Jurors a
breathing spell.
Sam Rednion recalled by Mr. Ger
ing, testified he did not know which
man had the gun. He saw Clarence
shoot Thacker. Mr. Clark also, had
witness identify the wagon on the
photographs as James Darrough's.
Len Crawford called. Lived at
Union, aged 2G. Knew Thacker and
Clarence. At the Darrough farm on
January 15 when the shooting oc
curred. He scooped corn. Clark,
Albin, Rednion and himself doing
this. After Redmon left,. Albln
went out to quarrel with his uncle In
the wagon. Earl was between the
crib and the wagon. Witness was
sitting down when Thacker came.
Ho heard him tell Carter to get out
? the wagov Clarence then tald
Keep your mouth shut.' or "shut
your mouth." Witness then stand
ing up. Had shown witness Larsou
where he stood.. Ills feet was rest
ing on some corn. Had his eye
against the crack, Could see
Johnny and Thacker on the other
side of the wagon. Saw Thacker
come around the horses' heads then
on the east side of the wagon. Wit
ness shown defendant's exhibit No.
10. Was not present when pictures
were taken, but had pointed out
where he stood to Mr. Larson.
Shown exhibit No. 11 and Identified
the view as that he had seen
Thacker . was going north and east,
Clarence facing north. Thacker
went to where Clarence was. Could
not say whether Clarence was ad
vancing toward Thacker. Witness
saw Thacker strike Clarence twice
with the board and Clarence struck
him with his cane. They grappled
and he did not see shooting, shoot
ing was after Thacker had hit Clar
ence. Could not locnte rinru
Witness 5 feet 8 Inches high. Wit
ness explained how he Identified the
crack In the crib for Mr. Larson
Did not know how much corn had
been taken out.
Mr. Gering cross-examined: Ex
amined the witness on his testimony
before the coroner's jury as to corn
taken from the crib. Earl Albl
was a little back of the hub of the
front wheel of the wagon. Earl
Albln started the fuss by throwing
corn at Carter Albln. Earl hadn't
said anything about starting a fuss,
Witness corroborated Carter Albln
as to facts of the quarrel with Earl
Albln. The watch test as applied
Redmon was repeated with this wit
ness.he fixing the time which elupsot
when he began scooping corn to the
tlm he heard Thacker at three
fourths of a minute. Witness wai
then examined nt some length or
the location of the several wltnessei
of tho affray, and also some mens
urements. Witness got up In tin
crib nfter the sheller stopped am
took n position between two stud
ding. Witness used stnte's exhibit
5 to show tho Jury where the 13th
nnd 14 th crack v re between t
boards 'of the corn crib. Wltm
could not see tho ground on the ei
side of the horses. Saw Think
when ho was about two feet fro
Earl Albln. Looking through
cracks he was about sonic 12 or
ret from Thinker when he lien
him tell Carter to get out of
wagon. Witness did not henr John
Thacker say "Get out of the wagon
He did
not call his nephew such a name.
He only heard Clarence say "Shut
your mouth." Witness denied testi
fying that he saw Clarence have the
mules lines la his the cor
oner's inquest. The men were twen.
five feet apart When Clarenon And
Thacker were talking. Witness did
not see Thacker pick up a stick.
Itness described the character of
e ground in the vicinity of the
crib. Knew Clarenen haA r.
' a u (
had seen him with it on before but
t on that day. The men went Into
the low place when they clinched
and he lost sight of them. Did
not think any shots had been fired
after they went out of his sight.
He was in the crib and two shots
ere fired in rapid succession and
ien the third one. The space oc
iipled by the events was a space of
about 26x36 feet. When the fieht
arted he looked at Thacker and
larence and did not pay any atten
tion to the Albins. When ho first
saw Earl Albin afterwards, he was
coming back with one of Clarence's
ules. Could not locate Ira Clark.
He was watching the. others. The
board9 on the crib were about four
dies wide. An objection by de
fense to this method of arriving at
leights was sustained by the court,
ra Clark wns taller that the wit
ness who stood on corn in tho crib
and looked out of tho crack. Could
not say definitely but it was a short
me from the time Clarence told
Thacker to shut his mouth until the
shots were fired. Perhaps It was
minute or maybe only half a min
ute. They hnd not clinched when
they went out cf his sight. Ho did
see anything of the gun nt that
time. Could not sny whether Clar
ence had been on his knees could
not see htm. Knew John McCarrell
nd had talked with him at Nebras
ka City in Nlchol's saloon. Dan
Cox nnd a nigger present. McCar
rell asked about the shooting nnd
witness told him he did not see It.
Could not remember telling Mc
Carrell " don't know a D - thine
about It. Was In the corn crlli and
I'm D glad of it." Witness
denied having said he lidn't
know anything about the affaif.
knew Orrln Ervln, Ernest fenitth,
Verl Klniilson. Talked. with them.
Boys" I did not see the shooting. I
knew what he was, and didn't want
any bullets through my hide. I got
out of sight." Witness denied
making this statement to those men
Had no feeling regarding Thacker
and had had trouble with him.
Monday Afternoon.
A recess was takn nt noon until
1:30 p. in., when the trial was re
sumed. The attendance at the af
ternoon session was considerably
greater than In the morning and as
before, many Indies were in attend
ance. One feature was the appear
ance of a large number of Binnll
boys In the room.
Len' Crawford again took
stand. Judge Travis ruled witness
should answer the question as to
whether he had a gun on him when
he had the altercation with Mr.
Thacker. Knew Charles Morton and
had told him he did not know any
thing amout the shooting. Denied
telling him he "didn't know a d
thing about It." Questioned as to
whether he had given testimony be-
for the coroner's Jury at varlanco
with that now given, witness admit
ted this to be the case. This con
cluded Mr. Gering's cross-examina
Mr. Clark on re-dlrecl examlna
lon had the witness explain the van
ance In portions of his testimony.
When Thacker struck Clarence the
latter kind of screamed once.
By Mr. Gering: After the affair
witness went to the house and Inter
helped to put Mr. Thacker In the
Ira Clark called: Aged 18 years
old; lived at Union. 5 feet 9 Inches
high. Was present when Olson and
Larson took pictures at tho Dar
rough farm and examined defend
ant's exhibits Nob, 9 and 12.
Identified positions shown In
photographs and certain viewpoints
within tho crib. Witness was pres
ent on tho day of tho Rhootlng and
knew tho location of various objects
nt that time. Exhibit 12 represent
ed objects correctly. Defendant of
fered in evidence exhibits Nos. !)
nnd 12. No objection nnd snine nd
mltted. Had his head against the
boards when looking through (lie
crack on that day, lookins south nnd
enst. Witness went Into tho crib
with Crawford. Earl Albln nnd Red
niou to scoop corn n little nfter
twelve o'clock. Wns there when
Redmon left and the sheller stopped
a few moments latter. Saw Earl
ithrow corn nt Carter who was on
(Continued on 2.)
and kill the S-