The San Francisco Call. Newspaper, October 11, 1903, Page 14

IONS o THOMA Thomas Fitch.) in 1867 Nevada two title to by ejectment, being at law »d'to & trial by o quiet e, 1d: of you, and keep Mullen, don’t reach for y« you are looking for a C st. Come, start now; I am going to count twenty, &nd then I shall begin shooting at any man remalning in this drift. To those as don’t know me I will remark that my name is Farmer Peel. One, two, three—" Before the word twenty was reached the tunnel was empty, the big plank door d barreds and a small blue flag, held the mine, flut- tered from & crevice in the door. In half an hour & notary appeared with & complaint which had been prepared for the occasion, averring that the Hornet Company was the owners and in pos- session, etc. This was passed through the crevice in the door to Peel, who signed it and swore to it as superintendent of the Hornet Company and handed it back It was filed and served within an hour and before nightfall a force of honest miners, with picks and pistols, were at work for the Hornet Mining Company. The other company could, of course, have commenced an action in ejectment, but the suit in equity had precedence end would have peen first tried and S0 the case was compromised. A man named Janes shot and killed in & saloon in Virginia City, Nev., a bar- keeper named Dowd. The quarrel grew out of a semi-religious discussion and the influence of the Celtic population was di- rected successfully to aid in the punish- ment of the offender. He was convicted of the murder in the first degree, and, as was supposed, sentenced to death. Be- fore the time arrived for his execution James W, Nye, then Governor of Nevada Territory, commuted the sentence to im- prisonment for life in the penitentiary at Carson City. A month or two afterward the State constitution was adopted and Nevada was admitted to the Union. The Territorial Governor was authorized to act Governor of the State until the succeeding first of January. During this Interregnum Nye issued an absolute par- don to Janes, to take effect the succeed- ing February. The existence of this pardon was kept quiet for political reasons until after the Benatorial election. On the day that it was to take effect the Warden released Janes, who thereupon departed for Cali- fornia The Attorney General of the new State, noting the departure of Janes, began- to meke it troublesome for the Warden who had permitted him to go and that functionary, who had some doubts as to the legality of his action, wrote to Janes requesting him to return. The liberated men did 5o and proceedings were at once instituted to determine the legality of his imprisonment by the issuance of a writ of habeas corpus by the Supreme Court of Nevada. That tribunal upon the hearing decided: First—That the Territorial Governor was vested by the organic act with the power to pardop, but not with any power to commute, and that the commutation of sentence to imprisonment for life was in- valid. Second—That under the State constitu- tion the Governor did not possess the par- doning power, that function being vested in & pardoning board, consisting of the RECOLL ECTIONS Chief Justice 67 the Supreme nd Attorney General, and that as pardon of Nye was not made opera- itil the te Government was in tion it was invalid That the prisoner was fllegally ody of the Wafden of the State that the Sheriff of Storey s entitled to him and to his remitted to execute the e of death. fixed in the original judg- execution of Janes had passed it was necessary to have a re- and application was made to e Merick of the District Court. He d for the record of the original judg- nt. That record read as follows: That on (such a day) you be taken to the place of execution and there hung—" And there the Clerk’s journal ceased. It was not stated whether the prisoner would be hung by his neck or by his heels, or by the strap of his pantaloons, nor was it prescribed that the hanging should continue until the death of the culprit. Then the District Attorney moved to emend the judgment, but Judge Mesick shook his head. “This judgment,” said he, “was pronounced by the Judge of the Territorial Court, and that court is no longer in existence. There is grave doubt whether the judgment of a court can In a case of this kind be amended efter the expiration of the term during which it was rendered, and certainly it cannot be amended after the expiration of the court as well as the term. The de- - "BOYS, SAID N SENTENCE k TAAT THAR, BLANK ! CANNIBAL" fendant is discharged.” And Janes looked up and remarked, “I suppose, Judge, I kin now go back to my work in Strawberry Valley and not be bothered any more with this foolishness?”" And Judge Mesick replied, “Yes, I sup- pose that you can.” In the early days of Colorado the bench of one of her circults was presided over by an ideal frontier jurist named Geary. No squarer man or clearer-headed law- yer ever graced the ermine, Before Leadville was discovered, and before the Denver and Rio Grande Ralil- road Company had swung {ts aerial road- bed with steel bars to the side of the Grand Canyon of the Arkansas, and while THE SUNDAY OCALL. all that section of Colorado was unoccu- pled by man, a party of ehigrants were snowed in near the summit of the moun- tain. There came into the military reser- vation nearest to. this snowbound section one day in early spring a man who called himself John Packer, He told a horrible story. He sald that early in the preced- ing winter he was one of a party of seven BEAUTY AND THE MAN --- By S F COPYRIGHT 1903 IT or eight men who became lost in the snows. They camped and made a com- fortable shelter, but their supply of pro- visions after a few weeks gave out. Packer, who was the most experienced hunter in the party, went one day to try and find a deer. Returning late in the afternoon without success, he was met by a German, who s REITH GORDON (Copyright, 1903, by T. C. McClure.) ~5—4 URING the long talks that those two excel- lent friends — Baird Dunham and Barbara Somers — had from time to time about life, the world and : the men and women therein, he had more than once confided to her that never could he fall in love with a woman who was ngt & beauty. “I can't exactly explain how I feel eabout it,” he sald one day as they sat together in an art gallery, where his worshiping eyes- returned ever and again to a pictured face of rare beauty that looked down upon them from the warm, red walls. “It isn't that I think they are the most fascinating. Wit and beauty are not too fond of each other's company. Besides, the most attractive woman I've ever known was ugly—so ugly that at first she made You gasp. After that—well, she was your criterion of charm. When you left her, things became stale and life- less. All the color and sympathy went from the scene. You simply hungered for her.” He paused and turned toward his companion with a waiting, expectant look, as if he wanted to be sure that she understood, and she answered the unspoken question of his glance with a slow smile that did not betray, by so much es a flicker, the warm, reproach- ful, woman wrath in her heart. She had heard practically the same thing from him before, but to-day for the first time her patience gave way utterly. Apparently, all sense of her ‘womanhood had been sunk in their com- radeship. Instead of rejoicing in this state of affairs, a feeling of injury—out- rage—suddenly flared up in her heart. Did he think that because her fea- tures were iregular and her complexion dull .she was a girl who did not need to be reckoned with? Did he suppose she was the less a woman because she was plain? Had he no idea of the sting in the remarks he was forever making about feminine beauty? These were the questions she asked her- self hotly, but her voice—that low, vibrant voice that thrilled one with its rich differ- ence from other volces—betrayed in its full evenness no trace of the resentment that surged within her. “You are right,” she agreed, with im- personal candor. “All women should be beautiful.” There was a sliught pause, a hesitation just marked enough to give force to the conclusion of her sentence. “Just as all men should be big and strong!” Dunham -glanced at her quickly. For one startled moment he half thought— but no, Barbara was too good a fellow to give a man a fleck on the raw like that. It was a mere coincldence. Dunham was but five feet six, and though he was well knit and substantial, with a clean-bred look that was in itself a recommendation, he was a trifle sensi- tive on the score of the six additional inches of height that he felt should have been his. ‘A man'’s appearance isn’t of much con- quence,” he observed, somewhat stiffly. “His field is action. It is what he is, rather than how he looks.” There was more heat in his tone than he liked, but he wasn't able to suppress it. Somehow he didn’t enjoy being made to feel that he was not at all like her 1deal man—even though they were noth- ing but friends. “Perhaps you are right,” was the mild reply, and the conversation drifted to other and safer subjects. But there was & speculative look in Barbara's eyes for the rest of the afternoon, which would have told a careful observer that she ‘was turning some plan over in her mind. Her usual hour of rest before dinner she spent lying at full length on the divan in her room, with her hands clasped un- der her head and her eyes fixed on the open fire, thinking. So Baird could never love any one but & beauty! She carefully refrained from asking herself why this should pique her particularly, since her plainness had never interfered with their friendship, and he spent far more time with her than with any of the pretty girls of their set. Still— ““Well, I don’t care,” she said aloud, as, #lancing at the clock, she arose and be- gan to roll up the masses of her dark hair, sticking the great shell pins in here and there with reckless indifference. “I'm tired of hearing him talk that way. He deserves to be punished. Beauty may be the greatest thing, but it isn't greater than all other things put together! “‘A few weeks of Amy will be good for him,” she soliloguized as she went on with her dressing. Then, when she was ready for dinner, she sat down at her desk and wrote a letter to her former schoolmate—the beauty of her class—urg- ing ber to make her a long promised visit. In the course of a week or two the in- vitation had been accepted and Miss Av- enll arrived. That she was a beauty was a fact as self-evident as that the sky is blue (when it is so). 1t was a fact that admitted of no difference of opinion. Her skin was like a La France rose, her eves deeply blue and her hair sug- gested mingled gold and copper. The curves of her graclous figure swirled and flowed n linés so graceful, so alluring that even the most sluggish beholder was kindled into admiration. “She’s a beauty, all right,” Barbara de- cided, as she kissed her in greeting and conducted her to her room, and, though she kept up her part of their animated talk about old times and old friends, her eyes feasted themselves upon Amy’s love- liness. The latter's most ordinary move- ment was endowed with a grace that made Barbara half believe that beauty was the only thing after all. When other girls lifted their hands and removed their hatpins it was an action scarce worthy of notice. But when Amy's arms went up Wwith a languid grace and her rather large but beautifully molded hands, with their long, tapering fingers, drew forth a glit- tering pin and removed her hat, Barbara felt vaguely that she was witnessing a rite—that she was seeing a poem. But after a few days of her companion- ship the glamour was always bedimmed. The eyes were feasted, to be sure, but the mind and heart were starved. One wear- led of her rose-like, fluttering color and the amiable but unmeaning. smile, and even of the very perfect rows of teeth that the smile exposed. “I am going to have & friend with me for a month,” Barbara had told Baird Dunham in preparation, “a girl that I particularly want you to-meet. She’s a raving beauty and as sweet as she can If she had spoken all of her thoughts perhaps she might have added: “So sweet that at the end of a month you will want to kill her, or do something desperate and outrageous.” But with a commendable self-restraint she banished this unruly Idea to the dark chamber of unspoken thoughts. In the weeks that followed she effaced herself, pushing Amy into Dunham’s so- clety In every possible way, but doing it so0 gradually and skillfully that he scarce- ly realized how little he was seeing of his friend and comrade. If she saw less of him, however, she saw more of Jack Les- ter, whose companionship was a grateful balm, because he was not forever talking about beaugy, however much he may have admired it. At first Baird haunted the house like a spirit, while his plans for Miss Averill's entertainment fairly tumbled over each other in their eagerness. These plans, of course, always included Barbara, but with a masterly skill she withdrew from them more and more, until almost before Balrd realized what had happened, he no- ticed that he and Miss Averill were usu- ally alone. With Miss Averill's exquisite profile beside him, however, he was not in a mood to complain. Then, about the middle of the fourth week, his soaring spirit suddenly touched earth. He was guilty of a brutal, hereti- cal thought. Right in the middle of a long afternoon that they were to spend together he was seized by a great weari- ness. For the life of him he could think of nothing to say. He was bored! He stared at the beautiful Miss Averill with a sort of stupld wonder. It seemed incredible that the society of so exquisite a creature should be so uncommonly like muggy weather. It seemed an age since he had had a good, bracing talk with Barbara. Now that he thought of it, Bar- bara must be seeing a good deal of that Lester chap. Vaguely, as if he had hap- pened them in a dream, he recalled hav- ln:'“’mll them together several times lat 3 “I don’t belleve you are thinking of me at alll” pouted Miss Averill. “I've spoken to you twice and you haven't even heard me. It isn’t nice of you.” “Eh—what?" exclaimed Dunham, trying to call his roving thoughts together and insisting upon hearing the remark he had inadvertently missed. “I asked if you don’t think the Waldort assented he recklessly, “that presses it sweetly. It's just sweet,” and he cast about in his mind for some ex- cuse by which the hours that stretched before them might be shortened. He felt precisely as he had once in his childhood, when he had surreptitiously bought and eaten six charlotte russes. Miss Averill confided to Barbara that night that she didn’t like Mr. Dunham 8o well as she thought she did. “He's so dulll Den’'t you think so?* she demanded. here have been times when he seemed 80,” Barbara confessed airily. Then she wondered if Baird's ears were gflame? Three days later the radiant Miss Aver- 1lI's visit came to an end. Soon afterward Dunham dropped in to see Barbara, quite in his old manner. “Ah, this is good,” he sald gloatingly, as he sank into the depths of his favorite chair. “There's so much talk to make up,” he went on iIn genial enjoyment, e 1 scarcely know where to begin.” Barbara turned her head to one side ana surveyed him with half-closed eyes. ‘“We might begin with feminine beauty,” she suggested helpfully. “There’s so much to be said about it.” A pause followed in which several new ideas entered Dunham's mind. Then he demanded, not without a conscious sense of guilt: - “Just what do you mean?” He leaned forward and studied her face, and though she flushed under his keen scrutiny her eyes looked back at him— proud, unwavering and a bit deflant. “I certainly admire beauty,” he began softly. “But I take back what I have sald about falling in love with one. You see, little girl, I'm so used to you that the beautles bore me.” “Really,” she scoffed, “for a worshiper of the fair!” But a palr of strong arms were about her and a rueful volce pleaded; “Scold me some other time, dearest,” REFLECT CH. BY THROMAS FITCH “TO THCSE AS DON"T KNOW ME 1 WILL REMARK THAT JAY NAME 1S FARMER . 1 Wwas a fMember of the party. The Germen was flourishing a hatchet red with blood, and, pointing to the bodies of the other party, proposed to add t of his victima Packer finding that he had to deal with a deter- mined lunatic, and seeing no other way Was open, and, acting in self-defense, shot and killed his assallant. Packer admitted that for the remainder of the winter he had subsisted upon the bodles of his com~ panions, Packer was taken to the military hos- pital, and a party was dispatched to the scene of the tragedy. Berors thelr re- turn Packer recovered, and, not being de- tained, was found missing one morning. A few days later the military party re- turned. They found the camw, but they also found evidence that Packer's tale was not true and that he had undoubt- edly murdered and robbed his companions. Nine years later Packer was discovered in a mining camp in Montana, and was arrested and returned to Colorado for trial on a charge of murder. In the meantime great mineral discoveries had been made in the mountains, a county had been created within \whose bounda- rles was included the scene of Packer's crime. This county was attached to the judicial circyit over which Judge Geary held sway, and he presided at the great “Cannibal trial,” as it was called. Packer was convicted and sentenced to death, but through some defect In the proceed- ing a new trial was granted, and on his second conviction he was sentenced to the penitentiary for life. Judge Geary had a friend and admirer, & sort of barroom Boswell, who made it his business to chronicle and laud the acts of his judicial friend. Packer at his first trial was sentenced to death, as al- ready stated, and in the Howlers' Resort that evening the Judge's admirer stood up the crowd against the bar, and gave his version of the sentence. “Boys,” sald he, “you ought to have heerd Judge Geary sentence that thar blank cannibal to-day. I tell you that he talked meat to sure. ‘John Packer,” sez the Judge, ‘you son of a blank, stand up. You have bin con- victed by a jury of your countrymen, sez he, ‘of the highest crime known to the annals of criminal jurisprudence,’ sez he. ‘Committed,” sez he, -under cip. cumstances of the most horrible charac- ter, and in deflance,’ sez he, ‘of the in- terests of the people of Colorado. Why, blankety blank your miserable low down ornery soul,’ sez he, ‘you not only vio- lated the laws of God and man, sez he, ‘but at a time In the history of our young and risin’ commonwealth, when we was all a doin' all we could to induce Eastern emigrants and capital to come in here, you discouraged capital, you checked emigration, you reduced our vis- ible resources and blistered the reputa- tion of our noble State, by killln’ and -Un’up'huwulmn-mntyot the legal voters of Guamison County.’ ™