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'Cbe Conservative *
HISTORICAL A CELEBRATED CRIM
INAL CASE.
Editor Conservative :
I am wondering whether you will
deem the "Hargus Case , " which
excited at the time a great deal of in
terest of sufficient importance to oc
cupy a place in your forthcoming his
tory. In all the criminal cases tried
in this country , there cannot be found
one under like conditions , and hence ,
it seems to me , it should be resuscitated
from the buried past and given a
place among the events that mark
the early settlement of Nebraska. I
am more than half inclined to write
up my recollections of this remarkable
case for The Conservative but at the
outset I find myself embarrassed for
the want of dates which are import
ant in all historical sketches.
His Lawyer.
I have not a printed or written scrap
to refresh my memory , and as the sole
attorney for Hargus before the dis
trict and supreme courts , I am not
even able to give the dates when these
courts were held. Therefore , all that
I write must be from recollections
after the lapse of forty-three years. I
do not distinctly remember all the
causes which prompted Hargus to kill
Lacy , but believe it grew out of an
interference by Lacy with the claim
of Hargus to a piece of land adjoin
ing Nebraska City on the west ; this
interference was known by the early
settlers as ' ' claim jumping. ' ' I think
the testimony was that Hargus , with
a double barreled shotgun , found Lacy
on the "jumped" eighty , building a
fence and about to join it to his fence ,
whereupon Hargus said to him : "I
told you not to join your fence to
mine , " and at once 'discharged one
barrel , wounding Lacy , who then
started on a run towards his house ,
when Hargus discharged with fatal
effect , the other barrel. This occurred
before I came to Nebraska City in
April , 185(5. ( The grand jury indicted
Simpson Hargus for manslaughter ,
and the trial was then pending , in
1857 , with Allen Bradford , formerly
district judge in Iowa , and Hiram
P. Bennett as' his attorneys. For
some reason which seemed entirely
satisfactory to these gentlemen , they
retired from the case and I was em
ployed as sole counsel. William Mc-
Lellan was prosecuting attorney for
the county and was ably assisted in
the trial by Oliver P. Mason , whose
great legal ability and forensic talent
after Nebraska became a state , elevat
ed him to the district bench , and
later he became chief justice of the
supreme court of the state. The trial
of Hargus under the indictment , was
before Honorable Samuel Black and
the court was held in "Hawk's Hall"
at the coner of Sixth and Main streets ,
Nebraska City , in the year 1858. By
reason of the universal respect for
Lacy in his life-time by all who
knew him , and the then hitherto un
blemished character of Hargus , a man
of considerable wealth , engaged at
the time in building a large brick hotel
in the city , afterwards and still known
as the "Morton House , "when the case
was called for trial , the court room
was filled to its utmost capacity
with people wrought up to a high
state of excitement. At the time of
Lacy's death the people became so
frenzied at an open air meeting on
the streets of the city as they listened
to the eloquent harangue of Mr.
Mason , as he portrayed the many
sterling virtues of the deceased , and
depicted with earnest words , the
wanton murder by Hargus , that they
were only restrained by cooler heads
from executing , then and there , sum
mary punishment. Among the aiiti-
lynchers wras the editor of The Con
servative , after whom , in gratitude ,
Hargus named his hotel.
The Hearing.
But Hargus was spared for the trial
which had called so many together ,
and it is but fair to say that he had a
few friends who were willing to ac
cord him a fair hearing before the
court. In all cases for felony each
party is allowed a certain number of
peremptory challenges when empanel
ling a jury. When the attorney for
the defendant exercised this right
in telling a juror called to step aside ,
Mr. Mason arose and in his usual em
phatic tone of voice said : ' ' Does the
attorney for the defendant pre-emptor-
ily challenge the juror ? " The attorney
in a like emphatic tone of voice re
plied : "He does not pre-emptorily
challenge the juror , but he does per
emptorily challenge him. " This di
vergence brought down the house and
seemed to relieve the strain of sup
pressed excitement against Hargus.
After the jury was empanelled the
trial occupied but a short time. The
fact of the killing was not denied. Dr.
Kay , the physician and surgeon who
was called to attend Lacy and by
whom the death was established , de
scribed with minute accuracy the mus
cles that were penetrated by the buck
shot. He was asked by the defense
but a single question : ' ' Doctor , state
how many muscles there are in the
human body. ' ' After much apparent
chagrin , lie answered that he did not
know , and left the stand evidently
mortified. The only testimony intro
duced by the defendant's counsel was
his hitherto good character. The jury ,
under the instructions of the court ,
were not long in agreeing upon a
verdict of guilty as charged in the
indictment. Counsel for the de
fendant at once moved for a new trial
and in arrest of judgment. The
grounds on which this motion w s
based were :
First. The alleged crime was-com
mitted and the indictment found be
fore the repeal of the criminal code ,
and the repealing act does not contain
a saving clause as to pending prosecu
tions.
Second. Such repeal without a sav
ing clauseoperates as an uncondition
al pardon of the defendant.
Third. The court has no power by
reason of such appeal to render judg
ment on the verdict of the jury.
If these are not the exact words , as
I write entirely from memory , they
contain the substance on which I
based my motion. With the meager
authorities at my command , I en-
deayored to convince the court that
the repealing act divested it of all au
thority to punish , and as the legis
lature in the law which was repealed ,
had defined the crime of manslaughter
and affixed the penalty , and as
this was in full force when the act
was committed , that this law alone
was violated and the penalty therein
provided was alone incurred , and its
repeal without a saving clause oper
ated as a legislative pardon. If it is
asked , ' 'Why was the legislature guilty
of doing an act so revolutionary in
its consequences ? " the answer is , "Is
this a question on which people dif
fered in opinion ? ' ' Judge Bradford was
a member of the legislature at the
time , and as he had been of counsel
for Hargus , it was said by some that
he accomplished this result for the
very purpose of shielding Hargus from
punishment. But this is simply ab
surd , and clothes Bradford with a
greater influence than he had , as no
man actuated by such motives , could
induce a majority of both houses of
the legislature to do that which
would rob the people of the protec
tion afforded by just and proper laws.
It is true that Bradford voted for
the repealing bill , but he , with many
others from the district south of the
Platte river , was an ardent advocate
for the removal of the capital from
Omaha , and the measure having been
defeated , they "donned the war
paint , " and while they were not
strong enough to pass the bill to re
move the capital , did succeed in forc
ing the repealing act through , in order
to compel the governor to call the
legislature together in extra session
to restore the criminal code , thereby
giving the friends of the removal pro
ject time to bring a public pressure to
bear upon the opponents of the meas
ure to induce them to support the re
moval bill.
But the causes and influences which
led to the repeal did not concern the
court , nor were they alluded to in the
argument. Nisi prim judges do netlike
like to have their jurisdiction called
H9 rf
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