The first great case in Dakota Territory to try the grit and strength of the lawyers was the Wintermute murder trial in 1874. Wintermute shot and killed General McCook, secretary of Dakota Territory, on the evening of September 11, 1873 in Yankton.
After Peter Wintermute shot General McCook, he was arrested by Charles Rosseuther, justice of the peace, and guarded in his own home because there was much talk of violence. During the October term of court with Judge Barnes presiding, Wintermute was indicted for manslaughter.
The trial for Wintermute was scheduled for the January 1874 term. In March of 1874 Wintermute was ordered into custody; and on motion he was admitted to bail in the sum of $35,000 ($966,000 today).
On April 15th, court convened in regular session for the trial of the case. A grand jury was summoned for the purpose of a new inquisition of the case as the former indictment had been quashed. A grand jury of nine men was empanelled and the following day the judge charged the jury concerning their duties as follows:
“You gentlemen are required to hear only the evidence on the side of the people. You are a secret tribunal. You have no right to hear evidence in favor of an accused person, or produced by him. It is absolutely unlawful for you to hear him or anyone for him.”
“It is all a mistaken idea prevailing in some parts that the grand jury room is a place for the trial of criminals. For the past six or seven hundred years, it was never held that a grand jury could try or defend a prisoner. The great object sought was to maintain it as a place to hear the witnesses of the Government and them only, and to exclude from their presence the accused and all his witnesses.”
“You have sworn to keep the counsel of the people of yourselves and of your fellows. You bound yourselves to keep absolutely secret all that may occur in your room. You are not at liberty to divulge anything said or done while arriving at your conclusion. You may not even relate outside what one of you may have said to another. There is but one exception to this. If it should become necessary hereafter in a court of justice, in order to convict a witness under indictment for perjury, a juror may testify as to what that juror witness said in their secret sessions.”
“From the ancient and general law, ‘Thou shall not kill,’ is derived our present law. Homicide, the killing of one human being by another, is of three kinds: justifiable or excusable homicide, manslaughter, and murder. Homicide is justifiable or excusable when a person is killed under certain circumstances set for by law.”
“Manslaughter can be the charge only when perpetrated without any design to effect death. So that in any case that may come before you, before you can indict for manslaughter, you must first fully believe that there was no design to cause the death of the person killed.”
“Murder is when an unlawful act is committed with a premeditated design to result in death. In the case before you, you are to inquire, first, was the killing without authority of law, and second, had he a premeditated design to affect the death of the person killed?”
After receiving these instructions from the judge and hearing the evidence presented, the jurors retired to the jury room for their deliberation of “The People vs. P. P. Wintermute” case. The following day the jury asked further instruction from the court as to whether they were compelled to act upon the exact indictment furnished them by the district attorney.
The judge explained that by act of January 8, 1873, all codes or bodies of written criminal laws were abolished, and in place thereof the regular common law practice was adopted as the standard of procedure, assimilated as nearly as possible to the practice of the United States Court. He decided that the grand jury had no power to act upon or present any bill not submitted to them by the public prosecutor.
The following day, Wednesday, April 29th, the grand jury returned to court and presented a bill of indictment charging Peter P. Wintermute with the crime of murder in killing Edwin S. McCook. He was committed to jail since the offense did not allow bail.
At the 1874 May term of court, the case was called for trial. A panel consisting of forty-eight persons had been summoned as petit jurors. The task of selecting the trial jury composed of twelve was then begun. Twelve had expressed opinions and were excused and only two of the thirty-six remaining individuals examined stood the test as to qualifying to serve on the jury.
Court adjourned until the 14th of May. On reconvening the court, examination of jurors was resumed. Finally, twelve suitable jurors were selected. Those not selected to serve on the jury had already formed an opinion of guilt, some were not able to understand the English language, and a few thrown out on preemptory challenges.
The empanelling of the jury was concluded on Saturday. Adjournment was taken until Monday, when court re-convened, and the taking of testimony on the part of the prosecution was begun on May 18th.
Author Author Clarence Shoemaker, originally published in the Gregory Times-Advocate on September 11, 2024