The Turning Point | The People vs. Henry Plumer | Appeal to the Supreme Court | San Quentin

CALIFORNIA, NEVADA, and IDAHO

THE TURNING POINT

During the hectic weeks of campaigning prior to election day, a race of another sort came off at Nevada City. Lucy, the local mule who had walked away with the purse at the Fourth of July celebration, had been challenged by a champion speedster from Gold Hill, who had no name, but because he belonged to a Mr. Job was simply called "Job's Mule." The outcome of the mule race was not just a matter of local pride. There were heavy bets riding on it, which continued to be placed almost up to the last moment. On a Sunday, the contest was held at a mile-long stretch just outside town, the purse being the substantial sum of $350. As predicted, Lucy took an early lead and held on to it to the three-quarter mark, but while three lengths ahead, she stubbed a hoof against a stone on the course and fell, Job's Mule streaking by her. Though Lucy gamely picked herself up and tried to catch her challenger, it was too late. She lost by over six feet. After their initial shock and disappointment over the upset had worn off, Lucy's supporters suggested doubling the bet in a rematch, but Mr. Job of Gold Hill would not even consider their offer.[41]

Since the Democrats were in a majority in the area, they had been expected to sweep the ticket in September, but their race was not going much better than Lucy's. Party officials had insisted at the start that "the most perfect harmony and good feeling prevailed and the friends of the defeated aspirants for the several offices submitted cheerfully to the will of the majority and pledged themselves to give the ticket a hearty support."[42] In reality, the party split that had developed at the convention, rather than healing, had broken wide open. Dissenting Democrats formed a coalition with the Know-Nothing Party, led by Squire Williams, and launched an extensive campaign against the candidates for the senate and assembly -- Walsh and Plummer -- the gist of it being that both men were part of a scheme to wrest the mines from local people and put them in the hands of foreign investors. Affidavits were printed in the newspapers and handbills passed out by the hundreds at mining camps swearing that Walsh was in favor of selling the mineral lands and reducing wages to $1.50 per day and quoting Plummer as saying he was "in favor of early spring rains," a weather condition unfavorable to river miners. The charges were believable because Judge Walsh had previously operated a mine for a British company and Plummer spoke with an accent frequently mistaken as British. Judge Walsh prepared a public letter, denying the charges against him and reminding the public he was a miner himself. The editor of the party-affiliated paper printed the following defense for Plummer:

MR. PLUMER S POSITION. -- We understand that some inquisitive gentlemen of this place have ascertained that Mr. Plumer is in favor of early rains, and are using this fact with great effect against him with river miners. We are authorized to state, that Mr. Plumer has expressed no opinion about this question, and further, that he has not been in the last dog fight, and has had no hand in the next war; that he is in favor of good diggings, with the bed rock of a proper pitch, water the year round, an equitable temperature, an addition to our moonlight nights, and an immediate reform and general improvement in everything.[43]

In addition to the distrust being spread among the miners, the press reported that Plummer's reputation was also suffering badly at the hands of those who had built up a resentment against him during the past fifteen months in "the discharge of his duty.... Many persons who have been fined for violating city ordinances... have contracted a hatred against Mr. Plumer, and... they were using a great exertion to defeat him."[44] Plummer's combined enemies were doing a quite successful job of presenting him as a man of "bad character" through "constant abuse, fictitious affidavits, and lying handbills."[45]

For Plummer, who was by nature so sensitive to criticism that he felt uncomfortable with having a single enemy, the campaign weeks were particularly grueling. The result of the widespread propaganda was that both Plummer and Walsh went down to defeat, the Journal reporting that Plummer's name was "extensively erased" from the ballots, though there was "no open opposition to him like to Judge Walsh." Plummer received 1,888 votes to the winning candidate's 3,089.[46]

The election past, and with it Plummer's hopes for a career as a legislator as well as his good reputation, he resumed duties as usual. He had been taught a valuable lesson about being too enthusiastic in enforcing unpopular ordinances, but with his usual overoptimism he believed he could regain his lost popularity just as he had done before. However, small-town mentality does not lend itself to easily altering a once firmly entrenched opinion, as Wallace Williams had learned, and even before Plummer could get reestablished, he was drawn into the domestic tragedy of the Vedders, a young couple who rented his house near the foundry on Spring Street. Soon after moving in, the Vedders discovered they did not get along any better in Nevada City than they had out at Van Young's ranch, where their only child had been born, or than they had in Sacramento. For one thing, John Vedder seemed to attract bad luck. During his first five months in town, he had already been involved in a civil suit after nearly losing an eye from being struck in the forehead by a rocket set off at the Fourth of July celebration. In addition to having a bad temper and few friends, John was also losing money as a monte dealer in a gambling house.[47]

He and his wife, also named Lucy, may have hoped for a new start in Nevada City, but they quickly resumed the habit of carrying even the smallest quarrel past the point of reconciliation and then seeking outside help to remedy the situation. One day when John became more violent than usual, roughly setting Lucy down on her big trunk and telling her to use it, she walked up the hill to the courthouse and reported him to the county recorder, who, however, informed her that family problems were out of his line. In retaliation for the embarrassment she had caused him, John looked up an old acquaintance from Sacramento, a blacksmith named Rice, whose shop was located between the foundry and the Vedder residence, and asked him to go back to the house and send Lucy packing. John "had forgot to get some coal," as Rice reported the cause of the family discord, and "when he came back, she had a long face and looked black. He called her a God d- - -- d son of a b -- - h, and she had called him a d -- -- d whorehouse pimp." Rice, who had known Lucy for several years in Sacramento, went around to the house to talk to her, and she admitted to him that she liked John "better than any other man." By Rice's persuasion, the couple then "made up and kissed each other and said they loved each other."[48]

Lucy Vedder had first met Plummer when he removed his personal effects from the house, John introducing him as "the Marshall of Nevada City." The Vedders had rented the house furnished with the understanding that Plummer could also store inside it certain items he had no place for at his new quarters. Among them, John noticed a rifle, which he asked to borrow for some hunting, and Plummer agreed, stopping by with a friend a few days later to pick up the gun for his own use. On a second instance Plummer came to the door saying a friend wanted to borrow the fishing line and hooks he had left at the house. Though John worked nights and was still in bed, Lucy found the fishing equipment herself and handed it out the door to Plummer. The exchange took about three minutes. She did not see the marshall again until the next family crisis, which occurred just two weeks before John Vedder's death.

The Vedders had been married two years, and their little girl, who was of rather delicate health, was just learning to walk. Though Lucy cooked, sewed, and took the precaution of barring the back door of the kitchen with a low board so the baby would not fall down the steep back stairs, John did not consider her a good mother, suspecting that while he was working nights she left the baby alone and went out. When John hired a man to observe her, Lucy realized she was being followed and raised a row with John. During this encounter, he pulled a knife from his belt, held it to her throat, and told her if she did not go back to her parents in Sacramento, he would kill her. Not wanting to leave her husband for good, Lucy took the baby and found a room for the night and the next morning began asking around about the best way to obtain protection from her husband. She later reported that Mrs. Senner, whose husband owned a saloon the Vedders frequented, suggested she contact Plummer, explaining that "she always went to him for advice." Several other persons consulted agreed with Mrs. Senner that "if they wanted counsel they would speak to Mr. Plumer."[49] Lucy accordingly sent a note to the marshall, who, after dropping by to hear her trouble, went for his friend David Belden, a prominent attorney and fellow officer of the Democratic Club. Though Belden preferred that Lucy come to his office, when Plummer explained she was unable to leave her child, Belden agreed to visit her home, Plummer accompanying him for the purposes of introduction, then leaving.

"She told me her grievances," Belden said, "and why she wished to get a divorce. She said that John was very cruel and had knocked her down and that he had been in the habit of abandoning and leaving her. She made a pitiful story and referred me to witnesses who had seen this treatment. When making the statement, she expressed herself as though John loved her and cried. I told her she did not want a divorce; the matter could be reconciled."[50]

(Click on image to see full size)
Hotel de Paris on Broad Street of Nevada City, California, where Henry Plummer and Pat Corbett took a room to protect Lucy Vedder against her husband. The bad reputation Plummer gained from his involvement with the Vedders followed him to Montana, causing leading citizens to doubt the Sherif's integrity. (Courtesy of Searls Historical Library, Nevada City, California)

After Belden left the house, Rice, who had observed what was taking place from his shop, went downtown to find John, informing him the marshall had brought a lawyer to their home. At first John refused to believe him, insisting Plummer had always been friendly to him. But since Belden had handled John's earlier civil suit and he was therefore acquainted with him, he paid a visit to his office to ask who the messenger was that had brought him to the house. Belden refused to say, but reported Vedder's inquiry to Plummer, who agreed to go and explain the situation to him. The outcome of the whole affair was a brief reconciliation, John notifying Belden to halt the divorce proceeding and commenting that she had "the G-d d -- -- dest tongue, but that she was as good a wife as any."[51

But just one week before he was killed, John again put Lucy out of the house, and an observant bystander ran for Pat Corbett, an ex-policeman, reporting to him that Mrs. Vedder was being beaten by a man. John had left by the time Corbett arrived, but he escorted Lucy and her child to the Hotel de Paris where she took a room. Despite the pretentious name, the hotel was a plain, one-story, wooden structure, appearing from the front to be about the size of a toolshed. It stretched out behind Broad Street a considerable distance, allowing enough space for several guest rooms, a dining area, and a saloon. It was particularly convenient for Lucy because she could go out the back door and through the alley to the house on Spring Street any time she wanted.

About an hour after his wife checked in at the hotel, Vedder showed up, angry and violent, and then rushed off to Belden's office, advising him to start the divorce again and adding, "She can go to hell her own way." In a short time, John returned to the hotel room, sat down on the bed, and began to play with the baby, but all the while threatening to take their small daughter to Mr. Ashmore's house of ill-fame to be raised. Apparently feeling no strong maternal instinct at the moment, Lucy replied she did not object to his taking the baby if he would put her in a respectable home.

During the week Lucy spent at the hotel, she continued to go to Spring Street to cook for John and make his bed, but the quarrel over the custody of the child continued. When on Wednesday John came to the hotel with a gun and forcibly took the baby, the hotel owner called for Plummer to settle the dispute. The marshall had a long talk with the Vedders, later explaining to one of their friends that "there was another party in the way and he was trying to fix it up between John and the woman." Though Plummer had warned of legal problems involved in taking the child away from the mother without first having her declared unfit, John paid no heed to the advice and took his daughter to the Van Young ranch, hiding her there and refusing to tell Lucy of her whereabouts. As tension between the couple continued to grow, Lucy went to Rice and confided she was "afraid for her life." That evening Rice went to Plummer, asking him if he would take care of Lucy, as marshall, but also warning that Vedder was angry over the child custody issue and had threatened to kill Plummer. The marshall answered that his men were already observing everything Vedder said or did and that he and Gorbett had also taken a room across the hall from Lucy at the Hotel de Paris so as to keep an eye on her. As for Vedder harming him, Plummer thought John had always seemed friendly enough, and he doubted there would be any trouble. But after finishing his conversation with Plummer, Rice did a strange thing: he went to the gambling house where Vedder worked and informed him that each night when he went to work, Plummer came to his house. Flying into a rage, John borrowed Rice's gun and ran immediately to the house. Though Rice ran after him, overtaking him at the corner of Pine and Spring and attempting to stop him, Vedder, a large, strong man, pushed him away, shouting that he would make a "funeral pile" of the both of them. Finding only Lucy at the house, John grabbed her by the hair and held a knife to her throat until she begged for mercy and promised to leave town immediately after receiving the divorce bill.

On Friday morning, the last day of John's life, he came very early to Lucy's room to continue the quarrel, loudly threatening to hit her, and Plummer and Corbett heard the commotion from across the hall. Pushing the door open, Plummer asked John if he would not be ashamed to strike a woman, to which John answered he would strike his own mother if she used him as badly as his wife did. Continuing a conversation with Vedder until his temper had cooled, Plummer invited him to accompany him downtown, Lucy reporting after that the two men went out of the room together, "laughing, apparently good friends."[52]

Being completely broke, John next went to an old business partner, Mr. Draper, to borrow the money to pay lawyer Belden's fee. Draper said, "I hacked my watch on the day he was killed to raise money for his divorce suit." Insisting Belden complete the paperwork at once, Vedder walked to the courthouse with him, paid the fees, and received the summons, but when he tried to pay Belden, the lawyer refused, insisting the money must come from Lucy since she had started the suit and therefore they must go find her. As they walked down the hill from the courthouse, Vedder told Belden, "Now I'm a free man," going on about his plans to leave California and cross the plains, even inviting Belden to come along. On reaching the house, Vedder handed the money to his wife, who was in the process of dismantling the house and preparing to vacate it. She in turn paid Belden the $20. At dusk, Belden again saw Vedder carting down Broad Street a large rocking chair that he tried to sell to him. Vedder took the lawyer's refusal good-naturedly enough, saying "I've got my child and my dog, and that is all I care a damn about."

"That was the last I saw of him alive," Belden said. Though Vedder actually intended on taking his daughter with him across the plains, he had nonetheless promised Lucy she could have custody, and she was expecting him to go to Van Young's ranch that evening so he could deliver the child to her before her departure to Sacramento. With his own plans in mind, however, Vedder entered a store and asked the owner to loan him a pistol, saying he "wanted to kill some son of a b---h in this town." The owner refused the loan of his gun and, after Vedder had left, called Plummer off the street to ask him if he knew why Vedder was so upset and who he was out to kill. "No one, I guess," Plummer responded.

But continuing his search, Vedder managed to find an acquaintance who was willing to confiscate the pistol of an absent owner and pocketing it and gathering his possessions and dog from the house, he took them to Rice, disclosing that he was going to kill Plummer. When Rice tried to dissuade him, Vedder walked away from him, gun still in his coat pocket, and went to the restaurant a the Hotel de Paris for supper. Being too agitated to eat, he sat pick ing at his food until the owner noticed and asked if he were ill, but John replied nothing was the matter and left the dining room. H went to a stable to hire a horse and then rode to the ranch where h had left the child. Noticing Vedder's state, Van Young insisted h stay at the ranch that night, expressing concern that there would L serious trouble if he went back to town. Vedder responded he had no fear, however, warning Van Young as he left not to give up the children to Lucy or to Plummer if either should come for her. Vedder the rode to Nevada City, went straight to the station to check for Lucy name on the stage list, and from there to the house. A little aft' midnight, residents of Spring Street were wakened by the screams Lucy Vedder, who ran into the street crying that Marshall Plummer had shot her husband. Plummer's name would never again be clear.

THE PEOPLE VS. H. PLUMER

Plummer left the house on Spring Street just ahead of Lucy Vedder and on reaching the corner of Pine, blew his police whistle several times. Receiving no answer, he continued walking in the direction Broad Street until he found Garvey. Mrs. Vedder's words were being repeated in the streets almost immediately after she had made her accusation. People milling in the business section of town were already anxious over rumors that a crowd was on its way from Downieville to hang Butler, a prisoner recently convicted of murder and lodged in the Nevada City jail, and some began to say that Plummer should be hanged with Butler.[53]

Concluding that formation of a mob might be imminent, Garvey and Plummer walked to the jail and knocked. It was about fifteen minutes past midnight when they arrived, and Deputy Van Hagan informed them he had no empty beds but invited Plummer to sleep with him. Plummer refused, saying his place was inside the jail, and when Van Hagan asked why, told him he had just shot John Vedder though he did not know if he had killed him. As Van Hagan was opening the cell occupied by Butler so he could admit Plummer, the marshall asked him if there were sufficient arms to guard the jail; at that same moment someone outside stepped up to the window and reported that Vedder was dead. Butler turned to his new cellmate, "Afraid?" he asked.

"They can't scare me," Plummer answered, holding out his hand to Butler. "Not trembling, is it?"

The inquest into Vedder's death was conducted the next morning, and two weeks later Plummer was brought before a grand jury. Before the grand jury could reach a decision, the judge ordered them to take no further action since "many of them had formed opinion in the case."[54] However, the ruling was later reversed, and on 16 October 1857, the jury returned an indictment for murder, bail being set at $8,000. When Belden, representing Plummer, made application to have bail reduced, Judge Searls refused, and Plummer was left waiting in jail for the $8,000 bond to be raised. In the meantime, Belden entered a plea of not guilty on behalf of his client, and trial was scheduled for 21 December.

Local newspapers showed commendable restraint in the publicity they gave the shooting, stating they would withhold judgment until after the trial, but only one day after the inquest, the Sacramento Union carried an item claiming "an intimacy had existed between Plummer and Vedder's wife, which caused a separation between the married pair."[55] Belden, feeling it impossible for his client to receive an impartial trial in the area, especially after the prejudice aroused by the news article, moved for a change of venue, supporting his motion with several affidavits taken from residents concerning the kind of remarks being made at the mining claims. At Red Dog for instance, someone had said "that Henry Plummer ought to be hung, that he did not believe that a man ought to fool about another man's wife." Other affidavits swore to the "strong political and personal feeling" against Plummer that had come out of the recent political campaign.[56]

The court, ruling that before granting a change of venue an effort should be made to empanel a jury, summoned one hundred potential jurors, only seven of whom were found acceptable after examination. The court then offered Belden the opportunity to renew his motion to move the trial elsewhere, but he chose not to. One hundred more residents were summoned. Though it had taken two and one-half days to obtain a qualified jury, the testimony was completed in only one and one-half.

The most pertinent evidence came from the only witness to the shooting, Lucy Vedder, though others provided valuable background information, such as the scene of the crime. The shooting took place in the kitchen of the Spring Street house, a 12- by 12-foot room containing a table and lit candle, a stove with a chair on each side, a bedstead, and a straw mattress. Window curtains had been taken down, the front door stood open because the latch was broken, and the back door was closed.

Witness Barker explained the conflict had developed between Plummer and Vedder during the child custody dispute over Plummer's warning there would be legal problems if the child was taken away from its mother without first going to court. "If Johnny had waited a day or two longer," Plummer had told Barker, "I could have explained it to him satisfactorily."[57]

Witness Draper's testimony revealed the extent to which Vedder's hostility had built up. "Vedder said if he was to kill Plumer, he would have no show, as he had no friends here. He told me Mr. Wall said if he killed Plumer, he would go his security. But Plumer did not want to have any difficulty. He had abused Plumer, but did not think he would fight and thought he was a coward. Vedder had insulted him in every way in his power but he would not resent it; Plumer told him if he should spit in his face, he would not resent it."[58]

By the time Lucy Vedder took the stand, little had been left of her reputation. Tidbits dropped here and there throughout the testimony of others had informed the court that she "was in the habit of swearing," "was given to drink," and had "lived with" another man before John, who also had "known" her before marriage. Her husband was having her tailed because he had caught her talking with an unidentified man, and he had put the knife to her throat to force her to leave because he did not want to live in the same town with her. Though she had left for Auburn after the inquest, her problems had followed after her, a series of court battles with Vedder Senior over her daughter that had made the news. The Sacramento Union reported that

Mrs. Vedder went to the house of her father-in-law on Sunday evening and under pretense of seeing her child got possession of it and took it to the residence of a friend. A crowd assembled and some one threatened to take the child by force and restore it to its grandfather. Both mother and child were taken to the station house where they remained over night. She consented in the morning to allow the child to remain in the possession of her father-in-law until a writ of habeas corpus which she had sued out for the custody of her child was heard and decided.[59]

Vedder's violence to Lucy was corroborated by Rice, who spent considerable time in their home: "I have seen him knock her over and pinch her nose until she could scarcely get her breath."[61]

Lucy tells how the day before he was killed, John had offered to give up the house to her, saying "he would trouble her no more," and in turn she agreed to leave for Sacramento, on the understanding she could take their daughter and keep her as long as she "led a respectable life." After signing the list for the 2:00 A.M. stage, Lucy asked Plummer and Corbett if they would carry her trunk to the station when it was ready and they agreed. She ate supper at the hotel and about 7:00 P.M. crossed the alley to pack the remaining possessions in the house, planning to return to the hotel afterwards to wait for John to bring in their daughter from the Van Young ranch.

"At early candlelight," Rice stopped by the house to see her. On the stand, Rice had already mentioned this visit, the prosecution having asked him if he had worn a disguise at the time. Rice replied that he had not. "I was always free with my jokes with her, but I never was with her at Auburn. I have never been in a room with her naked," Rice said. "I did not go to Plumer repeatedly to make him believe Vedder was going to kill him, or to Vedder that Plumer would kill him."" Rice had explained that he had only stopped by that Friday evening to tell Lucy that John had gone to Van Young's to see about the child, and the entire visit had lasted only about twenty minutes.

Shortly after Rice left, Pat Corbett arrived. Lucy, who was taking down the drapes from the windows and packing them, thought he had come by to keep her company because she was "lonely and in trouble," but Corbett told the court otherwise. "I had orders from Plumer, as Marshall, to watch her. He told me to go there to see that no one harmed her." Corbett took a chair by the fire and waited for Lucy to finish her packing. "She built a large fire and said it was near time for her to go home," Corbett testified. "It was about 11 or half past 11. He told me to watch her till I saw him." Plummer arrived at the house between 11:30 and midnight and asked Lucy if she was ready to leave. When she replied that she was considering staying at the house, Plummer asked her if she were not afraid Vedder might come back and "disturb" her. As Corbett stood up to go, Plummer sat down in a chair by the fire, and Corbett went out the kitchen door facing the street, leaving the door open behind him.[63]

Lucy continued the story from that point.

It was about 12 o'clock at night I think. I was sitting on one side of the kitchen stove three or four feet from the back door; Mr. Plumer was sitting on the other side about the same distance from the door. He asked me whether I had made up my mind to leave the fire. I said I did not like to leave a fire. He had been there but a few minutes when I heard someone coming very quietly up the back stairs, very fast, did not hesitate. I thought it was Mr. Vedder by his step. Mr. Plumer was sitting with his hands over his eyes; he heard the step and started a little. Mr. Vedder opened the door and stepped in, came over the board. He got both feet over the door. I saw a pistol in his hand, saw a flash from it. Saying to Mr. Plumer, "Your time is come," he fired a pistol. Am positive as to the words he used, told him his time was come. As he made the remark and fired the pistol, he stepped back. Mr. Plumer raised out of his chair and fired at him as he was in the act of stepping out the door. Mr. Plumer took aim and fired three or four times. Vedder did not fire again. Plumer fired standing up; he did not fire while retreating; he never spoke at all. He took one or two steps to the door and fired all from one place, did not step over the board. Vedder may have been in the act of stepping down the first stair, can't say how wide the platform is. Plumer then turned and left the house through the front door without speaking a word to me. Neither of us spoke. After Plumer left, I took a light and went to the back stairs. I could not see Mr. Vedder very plain from the top of the stairs, could not see him till I got most to him. He was lying on his back with his head towards Deer Creek and his feet toward the stairs, his hands open and within two or three feet of his head a pistol was lying. He was alive when I got there and his eyes moved. He was breathing very hard. I laid my hand on his hand and on his forehead. I thought he knew me before he died. He lived but a short time. I went back upstairs and went into the street and called for assistance; presently some gentlemen came and carried Mr. Vedder upstairs. I then left the house.[64]

The prosecution attempted to show a motive for Vedder's murder by linking Lucy and Plummer, but were unable to provide any witnesses who had seen them alone together other than on the night of the shooting, 25 September. Neighbor women had not seen Plummer come to the house when Lucy was there alone, and the hotel keeper testified that Plummer had never been in Mrs. Vedder's room other than when John was also present. The witness who had unwittingly supplied Vedder with a gun swore John told him "he did not believe his wife had been unfaithful to him with Plumer."[65]

Failing to prove "intimacy," the prosecution called to the stand Vedder Senior, who claimed Rice had told him Plummer and Corbett wanted to kill his son so they could get his daughter-in-law to a "whore house."

Rice was brought back for further questioning. "I never told old Vedder that Plumer and Corbett murdered Vedder to get her to a whore house," he said. "I told him I thought they did not want to make a whore of her. I don't think they wanted her at all; I never saw Plumer put his hands on her.[66]

The courtroom was packed throughout the trial, and after the testimony had been completed on Christmas Eve, the session was adjourned until Saturday, allowing jury members to spend the holiday at home. The first day back was taken up entirely with lawyers' arguments, the court not charging the jury with its decision until 9:30 P.M. On Sunday at 1:30 P.M., the jury returned to announce their verdict to the overcrowded room. They found Plummer guilty of murder in the second degree.[67]

APPEAL TO THE SUPREME COURT

Immediately after the delivery of the verdict, Plummer was taken into custody. When he was brought to court for sentencing three days later, Belden produced evidence that two jurors, Denny and Getchell, the foreman, had the day after Vedder was shot publicly expressed the opinion that the defendant was guilty. Accordingly Belden made motion for a new trial, but Judge Searls refused, accepting the verdict as fair and sentencing Plummer to twelve years imprisonment.

On the hope he would be found innocent, Plummer had held on to his job as marshall to the last possible moment, but he now sent in a letter of resignation to the board, who appointed E. O. Tompkins to fill the remaining four months of his term.[68]

While attorneys prepared an appeal to a higher court, Plummer spent four months in the Nevada City jail. In May 1858, he was released on bond, and in June, his appeal was heard in Sacramento. [69] "Some three hundred jurors were summoned," his attorney told California Supreme Court justices, "to enable us to get twelve men, who pretended that they had not made up their minds definitely as to his guilt, and some of whom entertained the most bitter prejudices against him personally. A clearer case of an unjust verdict can scarcely be imagined. If this defendant is not entitled to come to this Court for redress against a great wrong, disguised by judicial forms, who can be?[70]

After the deliberation, Chief Justice David Terry delivered the unanimous opinion of the court, which is quoted in detail not only because it is an eloquent defense of our legal heritage, but also because its content is so pertinent to the issues of justice involved in a consideration of the life of Henry Plummer.

One of the dearest rights guaranteed by our free Constitution is that of trial by jury.... A trial before a prejudiced jury, or one composed of men who had already prejudged the case, is a mere mockery of justice.... The very meaning of the word trial, which is an "examination by a test," shows that the triers are to act not upon previously formed opinions, but upon inquiry, first instituted and carried on before them. Moreover, if each juror forms his opinion before taking his seat, the case is, in reality, predetermined by persons who, at the time of making their decision, are not jurors. So that the wholesome restraint of the oath administered to the jurors -- the solemn proceedings of the Court -- the opportunity to observe the demeanor of the witnesses -- the thorough public sifting and scrutiny of the evidence -- the explanations of counsel -- the instructions of the judge, and the deliberations of the jury, enlightened by private discussion after they have retired -- are so many useless forms, and the parties have only the appearance of jury trial, without any of its benefits.... There are certain legal safeguards which must be preserved immaculate; the purity of the stream of justice is involved in it. One of these safeguards is that the jury shall be impartial and unbiased, their minds free from prejudgment. I must say that he who gives his consent to serve on a jury, when he must know that his mind is utterly disqualified from doing justice between the prisoner and the State, is guilty of gross misconduct. To convict one under such circumstances, is to perpetrate an offence little short of murder itself. Can it be insisted that the juror was impartial; that he possessed that moral perception, that sense of justice, that integrity of character which would qualify him to pass upon the life of a fellow-citizen? The affidavit of Pulse stated that Getchell, soon after the killing with which defendant was charged, declared that "the people ought to take Plummer out of jail and hang him," and on other occasions expressed a belief that he was guilty of murder. In addition to the affidavits, witnesses were examined both by the accused and the prosecution, as to the facts alleged. The testimony of the witnesses corroborate the statement in the affidavits, and, we think, clearly establish that such a declaration was made by the juror. The remark of Denny, as stated by Southwick, was that "Plummer ought to be hung, and if he was at the Bay he would be hung before night." Smith and Fraser both testify to hearing him say that Plummer ought to be hung. This conscientious juror does not seem to have troubled himself to inquire whether the defendant was guilty or not; with him, it appears that the accusation was sufficient; in the language of witness Smith, "He appeared to be down on all men situated as Plummer was." It is clear that neither of these jurors was competent to sit upon the trial of defendant, if indeed they were competent to sit in any case involving the life or liberty of a citizen. A man who could so far forget his duty as a citizen, and his allegiance to the Constitution as to openly advocate taking the life of a citizen without the form of law, and deprive him of the chance of a jury trial, would not be likely to stop at any means to secure, under the forms of a legal trial, a result which he had publicly declared ought to be accomplished by an open violation of the law. Judgment reversed, and a new trial ordered.[71]

At the first trial, witness Holmes had reported seeing Plummer and Lucy walking down Broad Street about noon two days before the shooting. They approached a "daguerrean saloon," where they were met by John Vedder. Holmes approached Plummer, asking him "what woman that was." Plummer, after correcting him with, "what lady," answered that it was Mrs. Vedder. At the retrial, Holmes completely omitted the appearance of Mr. Vedder: "I saw Mrs. Vedder and Plummer pass through Broad Street a few days before the killing of Vedder, together. They went into a daguerrean saloon together. Plummer returned in a few minutes alone and told me that it was Mrs. Vedder."[72]

The prosecution had provided the romantic link that had been missing in their earlier case, and they followed it up by introducing a new witness. "I know Mrs. Vedder and have been in her company since the trial at Nevada," Mrs. St. John testified, "and I have seen in her possession a daguerreotype of a gentleman. She told me it was the picture of Henry Plummer. I only saw it once; it was about last Christmas."

Under cross-examination, Lucy denied Mrs. St. John's statement: "I have not at any time since the trial of this case at Nevada had a daguerreotype portrait of Henry Plummer. I never did have a portrait of him in my possession at any time."[73] Though Lucy insisted the picture did not exist, Vedder Senior, who was now supporting his daughter-in-law and sleeping, though not eating, at her house, claimed he had also seen the picture on one occasion. At the first trial, Vedder Senior had proven an unreliable witness, nearly all of his testimony being declared false by other witnesses, but in this instance his words were more believable since they agreed with those of Mrs. St. John.

Before the jury began deliberation on Thursday evening, Judge Barbour provided them with instructions. If the evidence showed the defendant killed the deceased in the necessary defense of his own life, they must acquit him; but if it showed the defendant's actions were unnecessary to defend his life but that he "followed up and designedly and premeditatedly killed John Vedder while Vedder was retreating and attempting to escape from a combat with Plummer," they must find the defendant guilty of murder in the second degree.

The decision facing the jury was whether the marshall, known as a peaceable man who brought in his prisoners alive, acted in selfdefense when he shot a man who had threatened to kill him, borrowed a gun for that purpose, entered a house owned by the marshall, told him his time had come, and fired a shot at him. Doubts that Plummer's actions were strictly in self-defense were raised by the testimony of Lucy Vedder, the only eyewitness, that Vedder retreated immediately upon firing and that Plummer advanced two steps toward the door, which could be considered "following." Vedder, struck in the heart with the first shot, was obviously from that point on doing exactly what Judge Barbour had advised them about, "attempting to escape from a combat." Still, the case did not meet the judge's other stipulation that "premeditation" be present. The prosecution had made little attempt to show Plummer had planned beforehand to kill Vedder, other than the opinion Vedder Senior expressed that Corbett and Plummer had killed his son because they wanted to get Lucy to a house of ill-fame. However, even he had expressed bewilderment as to why they would want to kill his son on Friday night to be rid of him when he would be leaving town anyhow on Saturday morning.

But whether Plummer had made plans to murder Vedder was not necessarily the question debated by the jury during the hours they spent considering the case. They were more concerned with the issue of passion than that of violent death. Violence was a common means of settling disagreements, and one not necessarily frowned upon by much of the community, as proven by the instances of the two judges who heard Plummer's case.

Judge Barbour, while presiding over the Marysville trial, was himself under indictment for assaulting with a deadly weapon a man who had criticized his court decisions. Barbour had successfully postponed trial for four years with no apparent damage to his reputation as a judge, and even after eventually being found guilty of assault with intent to kill, he was the very next year nominated as a candidate for the assembly.[74] Likewise, Judge Terry of the supreme court, who had had a falling out with a legislator who had made insulting remarks about him, challenged his political foe to a duel. Terry won the duel, killing his opponent, and was indicted for murder. On the day of the trial, not a single witness appeared in court to testify for the prosecution, and the charge was dismissed for lack of evidence.[75]

Of course Plummer did not have the prestige or influence of either judge, but of more consequence to his case was the fact that the crime of which he was accused included a relationship with a married woman and was being decided by a jury composed mainly of miners, angry at him because during the last election it had been charged that he wished to join the state assembly for the purpose of destroying the opportunities of the small miner.

The jurors deliberating between a verdict of either self-defense or murder in the second degree were very much people of their own time, and it was a time when citizens of California believed that Holloway's Ointment was a cure-all for those at death's door, but did not necessarily subscribe to the belief that all men were created free and equal or that men had the right to deviate from accepted ways. The local prejudice can be detected in any issue of the newspapers, items slurring those who were different in any way -- racial groups, new religions, or free thinkers. Name-calling was standard journalistic practice: "Greasers," "thieving celestials," and "niggers, the inferior race." Mormons were "ignorant and fanatical," Salt Lake City being "at best but a rendezvous of murderers, thieves, and fanatics." And Democrats could be easily recognized since they were the "party who swears in broken English." Plummer was not only a sort of foreigner accused of aiding and abetting foreign investors, but also the victim of another common prejudice of the day, especially in an area where such a shortage of women existed: hatred of a "seducer," a man who destroyed a home by tempting a wife to be unfaithful to her husband. The verdict reached by the Marysville jurors would hinge on whether they decided that Plummer fell into this category.[76]

Though the members of the jury understood that Plummer's involvement with Lucy Vedder had at first been only in the line of duty -- protecting her against the violence of her husband and advising the couple about the custody of their child -- Mrs. Vedder's reported possession of a daguerreotype of Plummer indicated that a personal relationship between the two had developed later. Prosecution lawyers were quite skillful at asking questions that created suspicions in the minds of the jurors, and even when a defense witness responded to such questions with denials, the impression made by each original question remained. A classic example is Rice's response to a question insinuating that he had once caught Plummer and Lucy together: "I did not tell Vedder that Plumer was setting on Mrs. Vedder's lap."[77]

Prosecuting lawyers also led Lucy into a series of denials that served to tell the story they were contending had taken place. "I had no quarrel about Plumer with Vedder," Lucy answered. "I did not see Plumer push Vedder out of my room. I knew Mrs. Phelan. I never told her that Plumer was to pay expenses for divorce and afterwards I would marry him. I never said that if Mr. Vedder caught me and Plumer in a bad house he would smother us both. I never said Plumer advised me to get a little house a short way out of Nevada. There was no understanding I was to marry Plumer."[78] Keeping in separate compartments of the mind the insinuations offered by the prosecution and the denials made by the defense became a near impossible task for the jury. The lingering images left in their minds by the cross-examination confirmed suspicions that Lucy was a "loose" woman, one who looked on the Bible as a "novel," though she had denied that accusation. Plummer's enlightened handling of the problems of a battered wife had not only made it necessary for him to defend himself against the violence John Vedder had regularly been venting on Lucy, but also bewildered his other constituents. The only reasonable motive they could think of for Plumer defending a "bad" woman was that he was in love with her himself; either that or he wanted to "make a whore of her." It took them but a few hours to reach their decision. Plummer, who had been sick with consumption throughout the trial, was brought into court to hear the verdict: guilty of murder in the second degree.

During the time his attorneys were preparing a second appeal to the supreme court, Plummer was held in custody in Marysville, and while there received a letter from the girl he had planned to marry, saying she no longer loved him and was breaking off the engagement. The supreme court, after reviewing the second trial, agreed the questioning by the prosecution had not been "strictly proper," but concluded that a negative answer to an improper question prevents the prejudicing of a defendant's case. The supreme court therefore upheld the decision of the Marysville district court.[79]

The opinion of both the Nevada City and the Marysville juries in regards to the case of The People vs. Henry Plumer can be summed up by referring to a saloon conversation reported as part of the trial proceedings: "A man who could take another's wife away, and then shoot him down like a dog ought to be hung."[80]

Plummer had spent seventeen months in limbo, in and out of jail and in and out of court, while it was decided how he should be punished for firing back at Vedder and hitting him. Judge Barbour put a merciful end to the waiting by sentencing Plummer to ten years at state prison. On 22 February 1859, being celebrated as the birthday of the Nation's Father, Plummer was admitted to San Quentin.

SAN QUENTIN

The state prison stood on the slope of a misty, windswept hill on Point San Quentin, a peninsula jutting into San Francisco Bay about three miles from Marin Island. It was not the first time Plummer had seen San Quentin. He had been there before to deliver prisoners. The two-story structure with its single sentry box was intended to incarcerate about two hundred persons, the entire upper story being composed of two rows of cells separated by an aisle. The forty-eight cells, measuring 6 feet by 10 feet and designed to hold four persons each, were severely overcrowded, enrollment in 1859 being nearly three times the prison's normal capacity. To handle the overflow, one hundred of the less violent inmates were confined in one large room downstairs, the far end being used as a sick ward, though very few were allowed the luxury of its use. The lower story also held the guard's office, an armory, an apothecary shop, and a whipping room. A second building provided a tailor shop, kitchen, dining room, and quarters for female convicts. Inside of each heavy, plate-iron door, in both the cells and the downstairs room, was posted a copy of the state law that doubled the sentence of any convict caught attempting to escape. In spite of the warning, escapes were so common that residents of the area surrounding the prison were constantly writing letters expressing concern for their personal safety to members of the state legislature.[81]

The cosmopolitan population of San Quentin during the 1850s reflects the large number of states and foreign nations that had contributed to the California gold rush. Of the twenty-five countries represented there, the largest number of prisoners, excepting the United States, came from Mexico, Ireland, Chile, Germany, China, France, and England. More than forty of the inmates were mere boys under the age of seventeen.

Plummer entered this institution of correction as inmate number 1573, and on arrival was taken to a special room, where he and one Irish and one Australian prisoner admitted on the same day were stripped and then examined minutely for scars, birthmarks, or deformities that were recorded, along with other pertinent information, on the prison register. Plummer, listed as being twenty-seven years old and having worked as a clerk during the months he had been out on bail, was described as 5' 81/2" tall, with light complexion, light brown hair, and gray eyes. He had two moles on the back of his neck and another under his left shoulder blade, as well as a scar on the right knee and another round one on the back of his right hand. The inside of his left forefinger was marked with a long scar, and the remaining three fingers of the left hand were permanently closed from a cut. Because of his lung disease, he was assigned a bed in the sick ward.[82]

The state prison had been leased to a private individual, who had the tendency to overwork chain gangs on the jobs contracted at the stone quarry and to scrimp on food and care for the prisoners. A year before Plummer entered, a concerned assemblyman had sent a committee to inspect the prison, and the findings of the group had shocked the entire state. The report told of "horrifying" over-crowding of prisoners, who had not been issued uniforms but were clad in the dirty, tattered remnants of the clothing they had worn on arrival. Over a hundred men went barefoot while others bound their feet in gunnysacks. Two light meals were served per day from cooking facilities so unsanitary as to cause frequent outbreaks of food poisoning. Sleeping quarters were "filthy," and little bed covering was available.[83]

On reading the report, Governor John Weller, the Democrat elected on the same ticket on which Plummer and Walsh were defeated, took possession of the prison and commenced reforms. Weller immediately ordered meals increased to three per day, sanitation in the cooking plant improved, uniforms issued to inmates, and hospital facilities upgraded. But before any further improvements could be made, the court ruled Governor Weller's takeover unconstitutional and reinstated the private lessee. Many problems still remained unresolved by February 1859: facilities were overcrowded; there were no bathing accommodations for prisoners; and cells were infested with bedbugs, fleas, and lice. Punishment was frequent and severe. Chinese prisoners had introduced the opium habit to other inmates; hard liquor was generally available to those having the price to pay; and gambling was carried on in the yard at every available opportunity. The diet was limited, frequently consisting of stale codfish and bread served in such small portions as to leave the prisoners nearly starving, and only one month before Plummer's admittance, three hundred had suffered poisoning from contaminated bread baked at the prison.

From his first day at San Quentin, Plummer's health deteriorated, and in July, prison doctors wrote Governor Weller concerning his condition:

This is to certify that the person now confined in the penitentiary, by the name of Henry Plumer, is labouring under a disease which will in a short time prove fatal. On examination I find him to be affected with a disease of the lungs, commonly called consumption, and in all probability he will not be able to live, in his present situation, more than five or six months, at the furtherest, and I would recommend his speedy removal from confinement before it is too late. T. B. HEIRY, Physician in the State Prison, and ALFRED TALIAFERIO.[84]

Henry Plumer is a young man having an excellent character, and was elected Marshall of the city of Nevada. The fatal occurrence took place without entraps other than the female, the cause of the tragedy. The deceased when discovered was found with a drawn pistol, one or two barrels of which had been discharged. The proof, as a portion of us knew, was entirely circumstantial as to who first drew a weapon. It is a case when the innocent may suffer the disgrace and mental and bodily suffering of a lengthy incarceration. We therefore urgently solicit your Excellency for this pardon.[85]

Shortly before the petition in Plummer's behalf was presented to the governor, Weller received a third letter of petition, a lonely effort by one of the prison guards, acting completely on his own, who had written a friend in Sacramento, asking him to deliver the plea to the governor:

I have been acquainted with Mr. Plumer since my arrival here, and have through the medium of other gentlemen become familiar with the circumstances connected with his case, and it is impossible for me to witness his daily suffering without contributing my mile toward his speedy relief. Mine is an unsolicited impulse in his behalf, and I am sorry that all I can contribute is an assurance as to the good faith of Mr. Plumer's friends, and also to add my testimony to the correctness of the representation made by Mr. Plumer's physicians and friends in regard to his health condition.... Mr. Plumer is a gentleman worthy of sympathy and mercy... and it is for this reason I address you, and request you to hand to his Honor the Governor the inclosed letter, and if he does not remember me, I knew him in Ohio.... Bruce, I hope you will attend to this for me. It will not do any harm, but on the other hand may be additional testimony in Mr. Plumer's cause, and thereby contribute to his good.

Truly your Friend,

THOMAS B. LEWIS