by H. W. Brands
“When we see a patient recovering from shock, his functions again working naturally,” Carnochan replies, “we would infer that there is no immediate apprehension of collapse.”
Townsend asks Dr. Benjamin Macready the same questions and receives a similar negative. “What was the cause of the death of Mr. Fisk?” Townsend then inquires.
“I have no doubt that the cause of death was directly the influence of opium,” Macready answers. “It was not shock. It was opium and nothing else.”
The defense returns to its argument that Stokes was insane, at least temporarily, at the time of the shooting. To establish a pattern of unbalance, his lawyers summon Edward H. Stokes, the seventy-two-year-old father of the prisoner. “Mr. Stokes, state to your recollection whether or not you have discovered any change in the conduct of the prisoner, and if so where and of what character?”
“From the time of his first trouble with Mr. Fisk, six or eight months before his arrest.”
“Will you state to the jury what those appearances or evidences were?”
“He complained of a great pain in his head.” The elder Stokes covers his eyes and cradles his head as if in severe pain. “There was an entire unfixedness of purpose; he would propose a thing one moment, and the next he would fly off on another subject. On one or two occasions, when I would proffer any advice, he would seem very much excited and very disrespectful, different from his former behavior.”
“Did you notice anything peculiar in his countenance or his eye?”
“Yes, sir.”
“What was it?”
“I can hardly describe it, rather different from what I had ever seen before.”
“Have there been cases of insanity in your family?”
Mr. Stokes winces visibly. “Yes, sir. I had a brother who died in the insane asylum.”
“Any other cases?”
“I had a sister who became imbecile.”
Nancy Stokes, the mother of the prisoner, testifies that her son had grown very agitated after his tangle with Fisk. “His eyes had a wild appearance that I had never seen before,” she says.
Howard Stokes, the prisoner’s brother, describes a particular manifestation of Stokes’s nervousness. “He told me he couldn’t pass a night without the pistol, and hadn’t for some time.”
Ned Stokes squirms under the testimony of those who know him best. The unconcern he affected just after Fisk’s death has vanished; escaping from this trial with his life seems to demand surrendering his self-respect. The bargain might be necessary, but he doesn’t like it.
Tremain ties together the defense’s lines of reasoning in his concluding argument. “On the poor, feeble words that may fall from my lips,” he tells the jury, “rest not only the fate of this young man with a future opening bright and beautiful before him, but little past the age of thirty, but also whether the blow shall be struck by your hands that will place upon that innocent child of his the stigma of being denounced as the son of a murderer; and whether his wife shall be hereafter pointed out as the widow of a murderer; and finally whether the gray hairs of this old father and mother shall be brought down in sorrow to the grave.
“There is a great disparity of forces here in this struggle. The prisoner, single-handed and alone, is struggling for his life against the full power of this gigantic commonwealth. Arrayed against him stands the public prosecutor. At his beck the whole police force of the city is ready to summon witnesses. The treasury of the state, the whole taxable power, the whole taxable property, is subject to the will of the public prosecutor. He comes here clothed with tenfold more power and influence before a jury than I can possibly collect, and then, in addition to all that, he has been aided by the learning, the ability, and the wisdom of two of the ablest members of our profession. The contest is an unequal one, and unless the prisoner’s defense is one that is sustained by the power of truth, he can scarcely expect that, in such a mighty contest, he will not be driven to the wall. But if he has the truth on his side, then I care not what powers are brought against him.”
Tremain sets out a series of propositions: “That the jury should not find the prisoner guilty of murder unless they are satisfied that he killed the deceased with premeditated design to effect his death; that the deceased died from the effects of a pistol-shot wound; that there was no justifiable cause of firing the pistol; and at the time the prisoner was not insane.” If the jury entertains a reasonable doubt on any of these points, it must find Ned Stokes not guilty.
Tremain reiterates the arguments against each of these points. Stokes did not go to the Grand Central Hotel seeking Fisk; on the contrary, the meeting there was accidental. Fisk’s death was the result of an overdose of opium, not of the gunshot wounds. Stokes had ample reason to believe that Fisk intended to harm him, culminating in Stokes’s perception—whether accurate or not—that Fisk had drawn a pistol and was about to fire. Fisk’s persecutions of Stokes had driven Stokes out of his right mind.
Tremain recapitulates the testimony of Josie Mansfield about Fisk’s repeated threats against Stokes, and he asserts that the prosecution has utterly failed to rebut this testimony. So have Fisk’s friends failed to defend their deceased partner, by their conspicuous absence at the trial and from the prosecution’s list of witnesses. “Where is Jay Gould? Where is William M. Tweed? Where are those men that knew him in life and had enjoyed his hospitalities or his bounty? Where are the men who ate those splendid state dinners that he loved to give? Was there not one to be found who would say a word for their fallen chief?”
Some in the courtroom nod and exchange looks at the mention of Gould and Tweed, as if to second the query about their absence. Others stay focused on Tremain.
Tremain takes care not to assert that Fisk deserved killing, but he says that a violent death for such a man should come as no surprise. “The power of this man, through the Erie corporation, with its arms extending all over this country, with its thousands of employees and hundreds of millions of capital, and its many branches wielded by him and his associates—Rome, in the days of her decline, with all the examples of profligacy and licentiousness on the part of her nobility, never presented such instances as is shown in the life and career of this man. Do you ask me again whether I justify murder without any sense of imminent and impending danger? No. But God moves by laws. Men who live in violation of His laws, sooner or later, although they may flourish and prosper, will fail. It is well that it is so, for the successful career of a man who tramples under foot all laws human and divine would set at naught the teachings of the Bible and the instruction of father and mother around the domestic fireside. He who takes the sword shall fall by the sword. Men who live a life of violence are ever liable to fall victims to violence.”
Tremain asks the jury to do its duty, no more and no less. And part of its duty is to inform justice with humility. This is a fundamental premise of the law. “It is found in the very unanimity which requires the agreeing of all the twelve jurors before convicting. It is found in the doctrine that it is better that ninety-nine guilty men should go free than that one innocent should suffer. It is found in the rule that if there is reasonable doubt on the whole case, it is your duty to acquit. And finally, more clearly perhaps than in any other case, it is found in the great principle that he is to be tried by twelve men with human hearts and human sympathies, with that natural reluctance which exists against consigning a man to the gallows.”
Tremain’s speech moves the spectators. Several exhibit agreement; many scrutinize Stokes less skeptically than before. The whispers sound softer, as if the whisperers are more willing to allow for human weakness.
District Attorney Garvin acknowledges the shift as he begins the conclusion for the state. “All the sympathy of the jury, the audience, the court, prosecuting officers, and counsel is with the living man, with the relatives that surround him and the associations with which he is connected,” Garvin says. This is only natural. So is the tendency to devalue those who cannot a
ppear in court. “The dead are forgotten; their good deeds are buried with them, and their bad deeds, if they have any, are brought to the surface in the course of a trial like this. Every stain on their character is referred to. Every single thing that can be brought to light against them is displayed in characters of living fire.”
Yet the quality of the life of the deceased is not the issue here, Garvin continues, but the manner of its termination. “He was struck down while going up the stairway into the ladies’ entrance of the Grand Central Hotel, and sent into eternity by a pistol shot by the prisoner, who pleads for mercy, who asks for reasonable doubt in his favor, who asks for sympathy at the hands of this jury, and who prays through counsel for the right to be heard. All these for him. Poor Fisk has no jury, no counsel, no friends. Among strangers, no human being that he ever saw before, so far as we know, except the employees of this hotel, except the prisoner, who at the head of the stairs took his life in a moment. This is not disputed. This is admitted, and nobody denies. He swears to it himself. Yet he stands here asking for protection.”
The defense has made its case on three allegedly mitigating grounds, Garvin says. “First, insanity—want of responsibility—whatever it may be called. Second, that Fisk did not die of the wound that was inflicted upon him by this pistol shot. And third, self-defense.”
The district attorney serially dissects the defense arguments. Regarding insanity: “Is there any doubt that this man started on this day, came down from Delmonico’s to Andrews’s office, to Bixby’s court, and the Hoffman House and the Erie Railway office, and the corner of Fourth Street, to Chamberlain & Dodge’s, and to the Grand Central Hotel, and performed this deed? Anybody say he is guilty of any symptoms of insanity? Anything said or done by him that afternoon, or that day, or that week, that should indicate that he is not a sane man and knew what he is doing? Every step that he took that day, every word he said, and everything that he did, only goes to confirm the idea that he was just as responsible as he is today.”
As to the cause of death, Garvin reminds the jurors that while the doctors for the defense have asserted that shock from the gunshot wound was not the cause of death, other equally distinguished physicians have asserted that the shock was the cause of death. The jurors must make up their own minds—and recall that without the gunshot, fired by Stokes, the issue of the technical cause of death never would have arisen.
In the matter of self-defense, Stokes claims to have seen a pistol in Fisk’s hand. “Where is the pistol Fisk is alleged to have had? Was it dropped anywhere, and why was it not found? If the shot was fired in self-defense, why did Stokes not say so to the crowds on the spot? Why did he not say so to Hart when he charged him with shooting Fisk? Why did he not say so to the deceased when brought before him for recognition?”
And what is the evidence for the existence of a pistol in Fisk’s hand? “The only testimony to that effect was by the prisoner, confirmed by a woman connected with these two men, one of whom she had brought to death, the other to this peril.” He asks the jury to disregard Josie Mansfield’s testimony as entirely self-interested and wholly unreliable. He quotes Proverbs: “Deliver me from the strange woman. Her house inclineth unto death, and her paths to the dead.”
The arguments of the defense have failed, Garvin concludes. The responsibility of the jury is to judge not the dead man or his associates but the prisoner. “I care nothing for the Erie ring or the Tammany ring or any other ring. I care for right, justice, and truth.” If the jurors have doubts regarding the testimony of particular witnesses, let them ignore it. “There is evidence enough beside.” The question is simple: “If there was a killing without provocation it was murder.”
Garvin reminds the jurors that they bear great responsibility. New York is a dangerous place; he notes a recent series of violent murders that have set the entire community on edge. “If you release this man, blood will continue to flow in our streets.”
The accused has acted; now he must accept the consequence of his actions. “By the law he is to be judged; by the law he is to be punished.”
Judge Ingraham has been an intermittent presence in the trial so far, letting the lawyers predominate. Now he takes command as he gives the jury its charge. “I know that you are acting here in the performance of a disagreeable task,” he says. “But I know that you feel you have a duty to perform—a duty you owe to the public, a duty you owe to yourselves.”
The jurors must be guided solely by the evidence adduced at the trial. “Banish from your minds sympathy for the prisoner, his family, or his friends. Banish from your minds any prejudice existing against the prisoner. Banish also from your minds anything which will tend to the favor or disfavor of the prisoner, other than what has been derived from the consideration of the case.”
The jurors must keep the fundamental issue clearly in mind. “We have a simple question to try, and you have a simple answer to render on that question, and that is, whether this prisoner is guilty or innocent of the charge preferred against him.” The charge is murder in the first degree. “Murder is the killing of a human being without excuse or justification, with the intent to take life.” Much of the case as presented turns on the matter of intent. “You are to form an opinion as to the intent of this man from his acts, conduct, and declarations, by all the circumstances connected with the incidents for which he is on trial.” The prosecution has alleged that Stokes went to the hotel intending to shoot Fisk. “If you come to the conclusion that he had that intent when he came there and carried it out, and you don’t find any circumstance to warrant you seeing that he was justified or excused in that act, or that there is some other cause that rendered him irresponsible, then you will find him guilty.”
Judge Ingraham explains the law touching the issue of the cause of death. If the gunshot wound was mortal—that is, if it would have caused death in any event—the matter of whether the death at the precise moment it came was caused by shock or by opium is immaterial. The judge notes that none of the physicians has asserted that Fisk could have recovered. In other words, they have agreed that the wound was indeed mortal.
The defense has argued that Stokes credibly feared for his life. Ingraham reminds the jurors that Stokes and Josie Mansfield have been the principal witnesses to this effect. The jury must decide whether to believe them.
On the insanity plea, he notes, the defendant is the sole material witness. Again the jury must decide.
As in every case, he concludes his charge, the defendant must receive the benefit of reasonable doubt.
Judge Ingraham finishes at half past two in the afternoon of July 13. The jurors file out and begin their deliberations. An hour passes, then another. At a few minutes before five, they return to the courtroom to ask the judge to define “premeditation.” He does so and they retire once more. At seven Ingraham recalls them to the courtroom and asks whether they have reached a verdict. Their foreman says they have not. The judge orders them sequestered for the night. He sends Stokes back to the Tombs. The bailiff clears the courtroom.
The next day is Sunday, when New York’s courts are supposed to rest. But there is no rest in this case. The Sunday papers are filled with the latest accounts from the courtroom, and the state legislature has approved a special statute allowing Judge Ingraham to declare Sunday’s meeting of the court an extension of Saturday’s session.
The spectators line up early to learn Stokes’s fate. Perhaps because his recent testimony has reminded the city of his attractiveness to the opposite sex, perhaps because Josie’s appearance has touched a feminine nerve, the crowd today is mostly women. Along with the men in the crowd, they have neglected church in favor of the criminal court. Women and men alike try to ignore the rising heat of the midsummer morning.
The ladies are admitted to the courtroom first; after they have entered, the few remaining seats are allowed to the men. Those persons denied admission mill around outside the court, growing hotter by the minute but assuming that the news of the
verdict will be swiftly relayed from inside. Speculation is rampant regarding the jury’s decision; fittingly, for a case involving Fisk, wagers are exchanged.
Ingraham enters the courtroom as the clock chimes eleven. Stokes is brought in after the judge sits down. The prisoner is pale and drawn; as he sinks into his seat a heavy breath escapes his lips.
The judge summons the jurors; the bailiff guides them to their box. The audience examines the jurors, trying to determine whether they have reached a verdict and what it might be. Stokes alone refuses to look toward the jury. He fixes his gaze on the table in front of him.
The judge asks the foreman if the jurors have reached a conclusion. The foreman says they have not.
Stokes looks up and toward the jury. The beginning of a smile flits across his face.
The foreman adds, “There is no probability that we can agree, not the least chance. We stand exactly where we stood last night.”
Stokes’s smile broadens.
Judge Ingraham shakes his head. “I hardly feel at liberty to discharge you yet. This case has lasted nearly three weeks, and it would not be proper to let you go without giving this case further consideration.” He orders the jury to retire once more.
The spectators shift in their seats and mutter among themselves, but few leave. Those outside the court, where a slight motion of the summer air moderates the heat, begin to think they were lucky not to get in.
The clock on the courtroom wall ticks slowly. Noon comes and goes. The heat continues to mount. Few in the room want to leave and risk missing the most exciting verdict in New York in decades. But the afternoon heat, the spectators’ growing fatigue, and eventually their hunger gradually diminish their ranks. Late in the day word spreads that Judge Ingraham has gone home to his house in Harlem. Calculating that under the best of circumstances news that the jury has come to a verdict will take an hour to reach him and he will require another hour to return, the remaining spectators conclude that he won’t be back this evening, and they go home, too.
