“Particular Intentions”
2006; Routledge; Volume: 18; Issue: 3 Linguagem: Inglês
10.1525/lal.2006.18.3.343
ISSN1541-2601
Autores Tópico(s)Criminal Law and Evidence
ResumoAbstractThe case of Mutual Life Insurance Company v. Hillmon is one of the most influential decisions in the law of evidence. Decided by the Supreme Court in 1892, it invented an exception to the hearsay rule for statements encompassing the intentions of the declarant. But this exception seems not to rest on any plausible theory of the categorical reliability of such statements. This article suggests that the case turned instead on the Court's attachment to a particular narrative about the events that gave rise to the case, events that produced a corpse of disputed Identity. The author's investigations into newspaper archives and the original case documents make the case for a different account, and propose that this important rule of evidence may have grown out of a historical error, committed by a Court too eager to narrate an attractive story. Notes* Professor of Law, Wolf-Nichol Fellow, and Senior Scholar of the Women Studies Program, University of Colorado. I wish to thank Jane Thompson and Manuel Santos of the University of Colorado Law School and Barbara Larsen and Marilyn Finke of the National Archives and Records Administration for their assistance in locating documents related to the Hillmon cases. My research was supported by the Faculty Development Fund of the University of Colorado Law School and aided by the excellent work of Katie Tepley Jackson, Hannah Wanebo, Molly Ferrer, Melissa Kerin, and especially Sarah Hamilton and Andrea Viedt. I thank my law school colleagues from the Colorado Faculty Work-in-Progress Workshop and my friends Susan Appleton, Pierre Schlag, and Hiroshi Motomura for their insightful and useful suggestions.1. See, e.g., Robert L. Rabin and Stephen D. Sugarman, eds., Torts Stories (New York: Foundation Press, 2003) [Google Scholar]; Michael C. Dorf, ed., Constitutional Law Stories (New York: Foundation Press, 2004) [Google Scholar]. A more venerable example is John A. Garraty, ed., Quarrels That Have Shaped the Constitution (New York: Harper & Row, 1987) [Google Scholar].2. The lady's first name is variously reported, sometimes as Sarah or Sadie, and her last name is sometimes rendered Hillman, but almost all of the original court documents say "Sallie E. Hillmon."3. See discussion infra notes 198–203 and accompanying text.4. The three suits were Hillmon v. Mutual Life Insurance Co. of New York, Hillmon v. The New York Life Insurance Co., and Hillmon v. Connecticut Mutual Life Insurance Co., Nos. 3147, 3148, and 3149 in the Circuit Court of the United States in and for the District of Kansas, First Division. Many of the original documents pertaining to this litigation, including Mrs. Hillmon's hand-written complaints, are archived at the National Archives and Records Administration, Central Plains Region, in Kansas City, Missouri. The three cases were eventually consolidated for trial, and for later argument on appeal to the United States Supreme Court, which decided the appeals in Mutual Life Insurance Co. of New York v. Hillmon, 145 U.S. 285 (1892).5. The most popular, and most relied-upon, account is Brooks W. Maccracken, "The Case of the Anonymous Corpse," XIX American Heritage 50 (June 1968) [Google Scholar] (hereinafter McCracken). As will be seen, however, Maccracken overlooked quite a bit.6. For example, many purport to consider the res gestae exception to the hearsay rule, a doctrine notorious for its vacuity. See cases collected in Morgan, "The Law of Evidence," 1941–45, 59 Harvard Law Review 481 (1946) [Google Scholar].7. A McGuffin, in a film or narrative, is a "thing … which appears to the characters and the audience to be of great significance but is actually only an excuse for the plot," or "a thing … which misleads the characters and the audience." Lesley Brown, ed., The New Shorter Oxford English Dictionary, 4th edition, (Oxford: Clarendon Press, 1993) [Google Scholar]. Some credit Alfred Hitchcock with the invention of the term, and the use of the concept in many of his films.8. The case was also retried three times after the 1892 decision, resulting in two more hung juries, one more verdict for Mrs. Hillmon, and one more reversal of that victory by the Court, in 1903.9. See "What She Says," Topeka Capital, Mar. 6, 1888, at 2 (John Eldridge, Sallie Hillmon); "A Verdict at Last,"Topeka Capital, Mar. 22, 1888, at 4 (Judge's summing up refers to several other witnesses).10. Brown's original account, given at an inquest, is reported in the "The Hillman Horror," Lawrence Standard, Apr. 10, 1879, at 1–2. For portions of Brown's pretrial deposition, which was taken over a period of weeks in December of 1881 and January and February of 1882, see Transcript of Record, Supreme Court of the United States, The Mutual Life Insurance Co. of New York, The New York Life Insurance Company, and the Connecticut Mutual Life Insurance Company of Hartford, Con-necticut (Consolidated), Plaintiffs in Error, vs. Sallie E. Hillmon, at 162, filed Oct. 8, 1888 [hereinafter 1888 Transcript]. A transcript of the entire deposition may be found in the record of the second appeal. Transcript of Record, Supreme Court of the United States, Conn. Mutual Life Insurance Co. v. S.H. Hillmon, No. 94 (1903), filed Oct. 1899, at 342 [hereinafter 1899 Transcript].11. "The Hillman Case," Topeka Daily Commonwealth, Mar. 7, 1888, at 8; "The Hillman Case," Topeka Daily Commonwealth, Mar. 8, 1888, at 8; "The Hillman Trial," Topeka Daily Commonwealth, Mar. 9, 1888, at 8; "Contests in the Courts," Topeka Daily Commonwealth, Mar. 13, 1888, at 8.12. Brown appeared as a witness only in the first trial, and thereafter became unavailable, so in the 1888 proceeding his statements in support of the plaintiff took the form of a transcript of his pretrial deposition, which he had given after returning to his original story about the accidental death of Hillmon. Those offered by the defendant companies, containing the "Joe" version of his account, appeared in the written affidavit Brown had signed at the urging of the companies' agents. See Aff., John H. Brown, 1888 transcript, supra note 10 at 163 [hereinafter Brown Affidavit].13. "The Hillman Trial," Topeka Daily Commonwealth, Mar. 14, 1888, at 3. These Identifications were made from photographs taken of the corpse about a month after its demise.—probably it was somewhat the worse for wear, having been exhumed, autopsied, displayed to the public, buried, and exhumed again during those weeks.14. "A Verdict at Last," Topeka Capital, Mar. 22, 1888, at 4 (judge's summing-up).15. See 1888 Transcript, supra note 10 at 189 (Rieffenach deposition), 190–91 (Kasten deposition).16. "More Mystery," Leavenworth Times, June 28, 1882, at 1 (she is Identified as Elvira D. Caston)17. See, e.g., "The Hillman Case," Leavenworth Times, June 19, 1885, at 1 (second trial), in which it is reported that "Mrs. Elizabeth Reivnoeck," sister of the missing man, "repeated this letter almost verbatim." The Supreme Court's 1992 opinion reproduces Mrs. Rieffenach's recitation of the letter. Mut. Life Ins. Co. of New York v. Hillmon, 145 U.S. 285, 288 (1892).18. See 1888 Transcript, supra note 10 at 190.19. Id., at 190 (Kasten letter), 189–90 (Rieffenach testimony).20. Mut. Life Ins. Co. of New York, 145 U.S, at 295–96, quoting Ins. Co. v. Mosley, 8 Wall. 397, 404–405 (1869).21. There is a hint of this notion in the Court's observation about intentions "important only as qualifying an act." Words of gift, for example, must be accompanied by delivery to effectuate the gift.22. See Christopher B. Mueller and Laird C. Kirkpatrick, Evidence § 8.16, 3rd edition (St. Paul: Thomson/ West, 2004) [Google Scholar].23. Mut. Life Ins. Co. of New York, 145 U.S. at 296, quoting Ins. Co. v. Mosley, 8 Wall. 397, 404–405 (1869).24. See Fed. R. Evid. 804(b)(2) advisory committee's note.25. See Fed. R. Evid. 804(b)(3) advisory committee's note.26. Bartlett's Familiar Quotations describes this admonition as "an ancient proverb, sometimes attributed to Homer." John Bartlett, Bartlett's Familiar Quotations 235 n.1, 16th edition (Boston: Little, Brown, 1992).27. See infra note 32.28. Since the three cases had been consolidated for trial, Judge Shiras had allocated the statutory three challenges to the defendants jointly, and had denied them any further strikes after each had excused one juror. The statute authorized this method of allocating peremptory challenges in cases "where there are several defendants," but the Court held that it was improper to employ it when separate cases against different defendants had been consolidated. Mut. Life Ins. Co. of New York v. Hillmon, 145 U.S. 285, 294 (1892).29. See Petition in Error, 1888 Transcript, supra note 10 at 90–101.30. Mut. Life Ins. Co. of New York, 145 U.S. at 294.31. Thayer's notes are quoted in John MacArthur Maguire, "The Hillmon Case—Thirty Three Years After," 38 Harvard Law Review 709 (1925) [Google Scholar]. Professor Maguire does not explain how he happened to have access to Thayer's teaching notes.32. It is obscure what these general principles may have been, but a cryptic comment in Thayer's notes here suggests that in conference one member, possibly Justice Henry B. Brown, remarked that the case seemed to be one of "graveyard insurance." Id. at 711, n. 11. The meaning of this dismissive characterization is murky, but at about the time of the Hillmon decision it seems to have found popular use to describe various insurance frauds. Investigators of the time employed the term to charac-terize a common scheme in which an individual or syndicate purchased insurance on the life of an ill or doddering soul, then encouraged the insured to indulge his unhealthy habits or take risks with his life; sometimes the scheme went so far as to encompass murder. See J.B. Lewis and C.C. Bombaugh, Stratagems and Conspiracies to Defraud Life Insurance Companies: An Authentic Record of Remarkable Cases 53 (New York, G.W. Carleton, 1896) [Google Scholar] (describing the practice as a "graveyard epidemic") [hereinafter Remarkable Stratagems]. For more about this unusual book, see infra notes 198–199 and accompanying text.33. See Maguire, supra note 31 at 711–712.34. Jan M. van Dunné, "Normative and Narrative Coherence in Legal Decision Making" in Law and Legal Interpretation, Fernando Atria and D. Neil MacCormick, eds. (Aldershot, Hants, England: Ashgate/ Dartmouth, 2003) [Google Scholar], p. 409.35. See, e.g., Id.; Robin West, "Jurisprudence as Narrative: An Aesthetic Analysis of Modern Legal Theory", 60 New.U. L. Rev. 145, 159 (1985); Richard Weisberg, Poethics and Other Strategies of Law and Literature (New York: Columbia University Press 1992) [Google Scholar]; Jonathan Yovell, "Invisible Precedents: On the Many Lives of Legal Stories Through Law and Popular Culture," 50 Emory Law Journal 1265 (2001) [Google Scholar].36. See West, supra note 35 at 159.37. See Brendan F. Brown, The Natural Law Reader (New York: Oceana, 1960), p. 113 [Google Scholar].38. Northrop Frye, Anatomy of Criticism (Princeton: Princeton University Press, 1957), p.195 [Google Scholar], quoted in West, supra note 35 at 48.39. Id., at 187–188 (1957), quoted in West, supra note 40 at 48. These tropes recur continually in the narratives urged by the defendants on the serial juries that heard the Hillmon case—the youth and purity of their surrogate Walters as contrasted with the age, experience, and corruption of Hillmon. This was so especially concerning teeth and scars: Hillmon's teeth were often described (by defendants' witnesses) as rotten, his body as scarred.40. See West, supra note 35 at 159.41. British literary historian David Watson Rannie, in a slender 1895 book, proposed that letters as a literary form were distinguished from essays and autobiography by their candor and artlessness, in part because they were not intended for publication. David Watson Rannie, Letter Writing as a form of Literature in Ancient and Modern Times (Oxford: B.H. Blackwell 1895), p. A2 [Google Scholar], ("the world will never pry into the dual solitude in which [the letter] has its being").42. See Yovell, supra note 35.43. See Maguire, supra note 31; Eustace Seligman, "An Exception to the Hearsay Rule," 26 Harvard Law Review 146 (1913) [Google Scholar]; James W. Payne, Jr., "The Hillmon Case—An Old Problem Revisited," 41 Virginia Law Review 1011 (1955) [Google Scholar].44. Fed. R. Evid. 803(3) advisory committee's note (emphasis added).45. For example, in the advisory committee's note after Fed. R. Evid. 804(b)(3), the Committee rejected the rule of Donnelly v. United States, 228 U.S. 243 (1913) (statement against penal interest is not an exception to the hearsay rule, even if declarant is unavailable).46. See Maguire, supra note 31.47. Annual Report of the Kansas State Superintendent of Insurance, reproduced in John H. Wigmore, The Principles of Judicial Proof (Boston: Little, Brown, 1913), pp. 856–896 [Google Scholar] [hereinafter Annual Report].48. See Maccracken, supra note 5 at 50.49. Id., at 75.50. Maccracken is not alone in harboring little skepticism of this report or its source. A British scholar who investigated the case opines that "no impartial reader can fail to be persuaded by the account of the facts retailed by Wigmore that the body presented was not that of Hillmon, but that of one Walters." Colin Tapper, "Hillmon Rediscovered and Lord St. Leonards Resurrected," 106 L.Q.Rev. 441, 459–60 (1990) [Google Scholar]. Professor Tapper concedes that Wigmore's account was "taken from a report by a Kansas State Insurance Commissioner who … admittedly [represented] the defendants," but credits the author as "meticulous in separating fact from opinion." Id., at 72. Wigmore's account is in fact nothing but a verbatim replication of the "Superintendent's Report."51. Wigmore gives the date of the report as 1887, but this cannot be correct, as the report says on its first page, "The cases are now (April 1888) in the Circuit Court pending the argument of a motion for new trial. If this motion is overruled, an appeal will probably be taken to the United States Supreme Court." (parenthetical material in original). See Annual Report, supra note 47, at 856–896.52. Id., at 856 (Gleed lists himself as attorney for defendants on both second and third trials); see also Id., at 884–87 (Gleed quotes at length from his own closing argument).53. See Eighteenth Annual Report of the Superintendent of Insurance of the State of Kansas for the Year Ending December 31, 1887 (Topeka, Kansas Publishing House: Clifford C. Baker, State Printer, 1888), pp. 49–74. The report, otherwise a rather dry compendium of statistics and encomia, contains only one other similar narrative, an account of a dispute over whether the daughter of Nannie C. Poinsett ought to be barred from receiving the proceeds of insurance on her mother's life because she had poisoned the lady with arsenic. The attorneys for the insurance companies in that dispute, which was tried only once and resulted in a verdict for the daughter, included Barker, Green, and Gleed, but the account of it was not written by any of the attorneys. The narrator, one Charles M. Foster (connection to the matter undisclosed), relates that one witness changed his testimony, and then changed it back again, claiming at one point that he had been pressured by attorneys for the Mutual Life Insurance Company of New York—one of whom was J.W. Green, but another of whom was C.W. Hutchings, who was still at that time and for many years thereafter attorney for Sallie Hillmon in her suit against the same company.54. John H. Wigmore, The Principles of Judicial Proof (Boston: Little, Brown, 1913), p. 856 [Google Scholar].55. See Annual Report, supra note 47 at 857.56. See "Photograph Palaver," Leavenworth Times, June 27, 1882, at 1 (first trial) (George Baldridge testifies that he took a stenographic record of the inquest at the request of Maj. Wiseman, but "never furnished either the coroner or county clerk a copy of the testimony.")57. See "The Hillman Horror," supra note 10 at 1 (testimony of Levi Baldwin).58. Id., at 2; see also "The Hillmon Cases," Leavenworth Times, June 16, 1882, at 1.59. "A Long Story," Leavenworth Times, June 17, 1882, at 1.60. Major Wiseman continued to be a useful agent for the companies throughout the next two decades of the Hillmon litigation. He described his commission as "looking up evidence to prove that the body was not Hillmon." "How Tall was He?" Topeka Daily Capital, Mar. 18, 1896, at 2. He had to confess with some rue, at the fifth trial, that he had gone unpaid and had been required to sue his employers for the $2500 they owed him for his services. Id. But he may have had his revenge for this mistreatment. See infra note 131.61. Medicine Lodge Cresset, Apr. 3, 1879, at 2. This story remarks, of Colonel Walker, "The Col.'s fame in early Kansas history is too well known to need any comment."62. Id. At later proceedings, Major Wiseman and Mr. Tillingast would testify that they knew and said, immediately on seeing the body, that it was not Hillmon's. See "How Tall was He?," supra note 60 at 2 (testimony of Major Wiseman). But this was not the Cresset reporter's impression.63. She later said that the insurance company's men discouraged her from viewing the corpse; they denied that they had, but another witness who had been with her on the occasion confirmed her account. See "Coming to a Close," Leavenworth Times, June 30, 1882, at 4 (testimony of Mrs. Judson).64. See "The Hillman Horror," supra note 10 at 1.65. "The Hillman Trial," Topeka Daily Capital, Feb. 16, 1895, at 6.66. Id., at 6.67. "Wiseman Testifies," Topeka Daily Capital, Jan. 31, 1895, at 4.68. Id., at 2.69. Id.70. Id.71. Id.72. Id.73. Id.74. Id.75. Id.76. Id.77. "Hillman Tragedy," Medicine Lodge Cresset, Apr. 17, 1879, at 2.78. Id.79. See "The Hillman Horror," supra note 10 at 1.80. Id.81. Id.82. Id.83. Id.84. Another Lawrence newspaper had reported that, although not opposed to the inquiry "the people—very many of them—do object to having the EXPENSE foisted off upon DOUGLAS COUNTY. The proceedings here are instituted, we understand, by the Insurance companies who have $2500 at stake, and it is claimed to be simply a matter of justice that they should foot the bills, instead of our overburthened taxpayers." "The Hillman Inquest," Lawrence Daily Tribune, April 7, 1879, at 4. The taxpayers needn't have worried; as it turned out the companies were willing to pay everyone, including the witnesses and jurors. See "Wiseman Testifies," supra note 29 at 3. And this gesture seemed to quell the objections of the Tribune's editors, as they suggested a few days later that citizen curiosity about the verdict of the coroner's jury was "unseemly" as "[i]t is a private matter and hence we have no right to be too inquisitive; we do not pay the bills; we do not encourage or justify the official action; we have no right to ask any questions." Id., at 4.85. See "The Hillman Horror," supra note 10 at 2. The colorful juxtaposition of calcium light (a sort of stage light or spotlight) and truth appears also in the otherwise very different coverage of the Medicine Lodge newspaper, which proposes that the "light of calcium truth be permitted to shine through the dark and infamous swindle which the Insurance companies propose to so coolly carry out." See "Hill-man Tragedy," supra note 77 at 2.86. See "The Hillman Horror," supra note 10 at 2.87. Id.88. Id. Has any corpse outside of horror fiction ever suffered more difficulty remaining in its grave?89. See "Hillman Tragedy," supra note 77 at 2.90. "Murder Will Out!", Lawrence Standard, Apr. 17, 1879, at 4.91. Id.92. Id.93. Id. (Testimony of G.A. Stevens, Mrs. Turner Sampson, and Kitty C. Howe).94. See supra note 88 and accompanying text.95. See "Murder Will Out!" supra note 90 at 4.96. Id.97. Id.98. "The Hillman Tragedy," Lawrence Standard, June 26, 1879, at 4.99. See "Murder Will Out'" supra note 90 at 4. On April 11, the other Lawrence newspaper reported a "rumor" that "the body of the supposed Hillmon may prove to that of a man named Willey, who had been with Hillmon and Brown a great deal. His home is in Illinois and he was last heard of some sixty miles southwest of Wichita, about six weeks ago." "A Rumor," Lawrence Daily Tribune, Apr. 11, 1879, at 4. Willey's name does not seem to come up again, however.100. This phrase is displayed in the newspaper column in the manner shown.101. See "The Hillman Tragedy," supra note 98 at 4.102. Much later the coroner testified that he had issued a warrant for Brown's arrest after the jury returned its verdict, and that Mr. Green had assisted in its preparation. See "The Hillmon Trial," Topeka Daily Capital, Feb. 16, 1895, at 6. But none of the contemporaneous reporting mentions this fact, and Green himself, called as a witness twenty years later at the sixth trial, denied that he had ever issued a warrant for Brown. . "Advised His Brother to Swear to a Lie," Leavenworth Times, Oct. 24, 1899, at 4.103. Hillmon's daybook or journal, a surprisingly literate document that says nothing about any plans to kill a man (of course it wouldn't, no matter whom you believe) was found on the body at Crooked Creek. See Annual Report, supra note 47 at 857–59.104. See Brown affidavit, supra note 12 at 165.105. Brown also wrote (not just signed, as with the affidavit) another highly helpful document: a letter to Sallie Hillmon. He later would say that the letter was dictated to him by Buchan. "How It Happened," Leavenworth Times, June 20, 1882, at 1. The letter said: "I would like to know where John is, and how that business is, and what I should do, if anything. Let me know through my father. Yours truly, John H. Brown." But Mrs. Hillmon testified that she did not receive this letter, Leavenworth Times, June 11, 1885, at 4, and Buchan admitted that he did not send it on to her, See "How it Happened," supra note 105 at 1; instead he gave it to the insurance companies' representatives. Apparently it was never intended as an actual communication; it was a piece of evidence manufactured by Buchan, at a time he purported to be representing Brown, in favor of the insurance companies' theory that Brown and Sallie Hillmon were united in a continuing conspiracy.106. This was Brown's testimony at the first trial (the only one at which he appeared in person). "Brown's Letter," Leavenworth Times, June 18, 1882, at 5. In addition, it was Mrs. Hillmon's consistent account. See "How it Happened," surpa note 105 at 1.107. See Maccracken, supra note 5 at 53.108. Id., at 53, 73.109. See Annual Report, supra note 47 at 873.110. Id., at 870; Maccracken, supra note 5 at 53. Certainly this was Buchan's claim, but the elder Brown was never called to testify, by either side. The brothers Brown maintained that Buchan had approached John Brown without invitation or authority.111. Id.112. "Proceedings Before Judges Foster and Brewer—The Hillman Case," Leavenworth Times, June 14, 1885, at 4 (second trial).113. "A Long Story," Leavenworth Times, June 17, 1882, at 1. Buchan acknowledged that the deputy accompanied him on the drive over to Reuben Brown's place, but testified that his companion's law enforcement credentials were mere coincidence; the sheriff 's office just happened to have the best team of horses around, and "little use for it." "That Tooth," Leavenworth Times, June 22, 1882, at 1.114. See "A Long Story," supra note 113 at 1.115. See "How it Happened," supra note 105.116. "The Hillman Case Still Going On," Leavenworth Times, June 12, 1885, at 4 (second trial). In the 1988 trial Buchan agreed that "Brown did not read [the affidavit] over." "Hillman the Murderer," Lawrence Tribune, Mar. 16, 1888, at 2.117. See "A Long Story," supra note 113 at 1 (John Brown); "How It Happened," Leavenworth Times, June 20, 1879, at 1 (Sallie Hillmon).118. See "That Tooth," supra note 113 at 1.119. See "A Long Story," supra note 113 at 1. (first trial). He seemed willing by his account, however, to have it shown to Sallie Hillmon as an inducement to abandon her claims.120. See "That Tooth," supra note 113 at 1.121. Id.122. "Vaccine Virus," Leavenworth Times, June 23, 1882, at 1 (testimony of J.R. Buchan).123. See 1899 Transcript, supra note 10 at 166–67. See also "The Hillmon Case," Topeka Daily Capital, Mar 2, 1888, at 4.124. Id.125. See "That Tooth," supra note 113 at 1.126. "Brown's Confession," Topeka Daily Capital, Mar. 10, 1888, at 4 (second trial). See Supra n.105.127. Id.128. Id. Buchan testified that Brown's insistence on immunity not only for himself but for his partner as well complicated the negotiations, and of course if true this would suggest that Brown knew Hillmon was still alive; but Brown's testimony was different.129. Brown's deposition describes Buchan's importunings thus: "[B]y me consenting to do this would insure me that I would never have any trouble about it from that time on, and if didn't the insurance men would hunt me down and penitentiary me for murder, and that they had plenty of money, and never calculated to paying the woman her money, and it would enable him to get big pay for this paper, and that if I needed any money or anything he would give me all I wanted." See Brown Deposition, in 1866 Transcript, supra note 14 at 341(hereinafter Brown deposition).130. Brown's deposition testimony claimed that "After I told him [Buchan] of this man that camped with us at Cow Skin, then he said he could make it appear that this man was killed instead of Hillmon, and stated in his paper [the affidavit] to this effect." Id., at 401.131. "Brother and Sister Swear It Was Walters," Leavenworth Times, Nov. 11, 1899, at 6. Apparently, by the end of the last trial the defendants had more or less given up the claim that Frederick Adolph Walters was the "Joe Burgess" of Browns' affidavit. One of their own attorneys elicited from Major Wiseman that he had "found" both Francis (Frank) Nichols and Joe Burgess in 1879. Id. But perhaps they knew that if they did not bring out this fact, plaintiff 's counsel would have. Wiseman's belated willingness to help Sallie Hillmon may have been connected to his testimony in the fifth trial that the companies had not paid him for his services and he had been required to sue them. See "How Tall Was He," supra note 60 at 2.132. See infra note 166–68 and accompanying text.133. "Was It Waltersfi", Leavenworth Times, June 29, 1882, at 4.134. Id.135. "Foster's Findings," Leavenworth Times, July 2, 1882, at 5.136. "The Hillmon Cases," Leavenworth Times, July 4, 1882, at 2.137. "Proceedings Before Judges Brewer and Foster—the Hillman Case," Leavenworth Times, June 18, 1885, at 4.138. "The Hillman Case," Leavenworth Times, June 19, 1885, at 1. The press account spells her surname "Reivnoeck."139. "The Hillman Trial," Leavenworth Times, June 25, 1885, at 4.140. Id. (capitalization in original).141. Id.142. See "Was It Waltersfi," supra note 133 at 4.143. Id., at 4; 1888 Transcript, supra note 10 at 190–91. Rieffenach dId not appear in person at this trial. Her deposition was taken in 1880. See 1899 Transcript, supra note 10 at 1778.144. See 1888 Transcript, supra note 10 at 189–90.145. "A Verdict at Last," Topeka Daily Capital, Mar. 22, 1888, at 4.146. See supra notes 20–23 and accompanying text.147. "The Hillmon Case," Topeka Daily Capital, Feb.1, 1895, at 8. The blow-by-blow accounts of the inquest and accompanying events in Lawrence by a reporter who obviously favored the insurance companies made no mention of this event in 1879, although it seems that it would have been well-remarked at the time had it happened. When Alva Baldwin finally appeared as a live witness, at the sixth trial, he firmly denied having made the exclamation. "Mysterious Silence of Alva Baldwin Broken," Leavenworth Times, Oct. 26, 1899, at 4.148. See "The Hillmon Case," supra note 147 at 5; "Hillmon Trial Again Resumed," Topeka Daily Capital, Feb. 6, 1895, at 4.149. Leavenworth Standard, Apr. 10, 1879 at 1.150. "Say It Was Not J.W. Hillmon," Topeka Daily Capital, Feb. 2, 1895, at 5; See "Hillmon Trial Again Resumed," supra note 148 at 4.151. See "The Hillman Horror," supra note 10 at 1.152. "Walters' Sister," Topeka Daily Capital, Feb. 24, 1895, at 2.153. "Goes Right Along," Topeka Daily Capital, Feb. 23, 1895, at 5.154. Id.155. "Eleven to One," Topeka Daily Capital, Mar. 21, 1895, at 6.156. Id., at 5.157. See 1866 Transcript, supra note 10 at 1794.158. "Same Old Result," Topeka Daily Capital, Apr. 4, 1896, at 1. The Capital reported that the last poll taken of the jurors was seven to five, although one juror later claimed they had been evenly divided. It also reported that the jurors had thereafter agreed to some sort of numerical system to calculate the weight of evidence on each side by assigning a value from zero to five for each witness. On this system, the Capital's source said, the insurance companies were far ahead until one holdout juror refused to vote according to this system, and this defection caused the foreman to inform the judge that they were at an impasse. The paper also reported that the insurance companies had proposed to the Hillmon side, after this outcome, to "try the case before the five federal judges who have tried the case and abide by the decision of the majority." Id. This proposal did not, it seems, meet with agreement.159. See 1899 Transcript, supra note 10 at 1790–94.160. See "Brother and Sister Swear It Was Walters," supra note 131 at 6.161. J.W. Green explicitly noted the plaintiff 's failure to contest the Identity of the handwriting in his sum mation. "Simmons Testimony a Footless Fancy," Leavenworth Times, Nov. 17, 1899, at 4.162. This itinerary is remarkably similar to the list of cities given by Miss Alvina Kasten when she was asked in her deposition from whence she had received letters from Walte
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