Orphan Trains

by Stephen O'Connor

  “Miller is an enigma to everyone who has watched the proceedings,” wrote a reporter for the Cheyenne Daily Leader on the last day of the trial, and indeed, as a character, the Charley Miller who appeared in court and in newspaper accounts simply did not add up—especially according to the notions by which most people would have judged him in the nineteenth century.

  He was a mass of contradictions. He had confessed of his own free will because, as he said, his deeds weighed on his mind, yet every time he told his story his voice and manner revealed not the slightest remorse or awareness of the severity of what he had done. He seemed to have no trouble admitting that he had killed Emerson and Fishbaugh, but when asked at what point he had made the decision to commit the murders, he seemed to become evasive, saying only, “I don’t remember ever making it.” He also admitted freely that he had robbed the two young men immediately after killing them, but when asked about his state of mind at the time of the murders, he said not a word about material gain, but talked only of loneliness and desperation. Perhaps the most striking contradiction of all was between his prosecution and press image as a ruthless, “hardened” killer and the facts of his youth, his slight, hollow-chested frame, his inoffensive manner, and his obvious desire to please.

  The contradictions that made Charley “an enigma to everyone” also made him the center of a passionate national debate about the degree to which such factors as youth or prior abuse reduced criminal responsibility. This debate reached its peak after the state supreme court turned down Charley’s appeal and his only remaining hope was that his sentence might be commuted to life imprisonment. Over the next two months Wyoming’s acting governor, Amos Barber, was deluged by letters, petitions, and editorials urging both sides of the issue.3

  The vast majority of those advocating clemency were ministers, lawyers, congressional representatives, and other prominent figures in New York City and Washington, although Charley also had an energetic ally in the head of the Kansas chapter of the Women’s Christian Temperance Union, Mrs. C. K. Smith. Almost all of these people made the same two points. First, that Charley deserved some moral credit for having voluntarily turned himself in and confessed. And second, that his youth, his low intelligence, his hard life, and his desperation at the time he committed the crime had all diminished his capacity to make a true—and therefore fully culpable—choice between good and evil. Many of these letters and petitions also placed an extremely high value on Christian mercy, often asking Governor Barber to imagine how Jesus would judge Charley. Most of these people seemed to value mercy simply for its own sake, but some also urged it for the benefits it might bestow. Mrs. C. K. Smith, for example, maintained that contemplation of the state’s generous forgiveness might enable Charley to “grow spiritually and make some progress before being sent a drift [sic] into the world of spirits.”

  Another common characteristic of the arguments for clemency was their tendency to present Charley’s case as part of a complex dynamic. These advocates did not think that justice could be arrived at by isolating his crime from his past and possible future. Rather, they were constantly asking Governor Barber to consider the double murder as partially the product of past suffering and to bear in mind Charley’s potential to redeem himself morally, “grow spiritually,” or benefit from modern institutions and techniques for treating the insane and “incapable.”

  The opponents of clemency saw Charley’s sad history as morally irrelevant and his possibly bright future as only a sentimental illusion. He had committed a crime, so he had to suffer the prescribed punishment—and that was all there was to it. The only mercy this group advocated was that of the classic Puritan God, who shows his goodwill toward his inherently sinful creations by meeting their transgressions with sure punishment.

  Another significant fact about the opponents of clemency (at least about those who left some paper record of their opinions) was that they were all from Wyoming or Nebraska. To some extent this is indicative of classic east-west and urban-rural divisions. Charles Loring Brace sent New York City children back in time, not only to an agrarian America, but to a more antique or, as he would have put it, a more “orthodox” moral view—one that he himself had rejected vehemently. He worshiped not the stern Old Testament God as “Lawgiver” but the New Testament God as a “Father seeking our happiness,” a deity whose most distinguishing characteristic was His ability to forgive sin and recognize true repentance. The local opponents of clemency, very much in the pessimist camp, saw the human race as fundamentally immoral and needing fierce and exact punishment to be kept in line. But their rationale was not only theological. When these merchants, editorialists, and common citizens demanded that the state carry out the judgment of the jury, they were responding to a long-developing conflict about the relation between power, justice, and the law—a conflict that resulted in the loss of two lives and the jailing of some of the state’s most prominent citizens even as Governor Barber was making his decision about granting Charley clemency.

  Although the death penalty had been on Wyoming’s law books from the earliest days of settlement, it had rarely been put into effect. Before 1884 there had been only two legal executions in the territory, both of “half-breeds,” one in 1871 and the other in 1874. As the Laramie Times put it in an editorial deploring the failure of the legal system to impose the maximum punishment, there had in those years been “scores of murders, cold blooded and atrocious,” but juries had simply been unable to impose the death penalty on anyone who claimed, as all the defendants did, that he had killed in self-defense or to preserve his honor.4 Partly as a result of growing public outrage, two white men were executed in 1884, for two separate murders. And in the six years before Charley’s arrest, there had been three other executions, all of white men, the last occurring in Laramie in February 1890.

  Most of Wyoming’s executions, if that is not too fine a word for them, had occurred outside the legal system. During the decade prior to Charley’s arrest ten people had been lynched. The last two, James Averell and his girlfriend, Etta Watson, alleged cattle rustlers, had been hung side by side on July 20, 1890, just ten days after Wyoming officially became a state. The year and four months during which Charley’s death sentence was under appeal, however, saw a substantial increase in “vigilante justice” or “mob law.” In June 1891 another reputed rustler was lynched; a second was attacked, but managed to escape, in November; and later that same month two other rustlers were “dry-gulched”—shot to death by a stock detective and a former sheriff.

  It was no accident that nine of these vigilante lynchings, all of which went unpunished, were of cattle or horse thieves. As elsewhere in the West, there was fierce antagonism between the big ranchers—derisively called “cattle kings”—whose herds numbered in the thousands and grazed on several thousand acres, and the small homesteaders, many of them former cowboys, who typically grazed a handful of cattle on one or two hundred acres. Although there were plenty of true rustlers, like William Kingen, who stole ranchers’ cattle, altered their brands, and sold them for high profits, the vast majority of so-called rustling consisted of the homesteaders simply incorporating their cattle king neighbors’ strays into their own herds. This small-time rustling was by no means unconscious or unintentional. The antagonism between the big ranchers and the homesteaders was true class war, with each side feeling justified in its assaults against the other. But when one considers what a tiny portion of their enormous herds the big ranchers lost to rustling of any kind, it is hard to understand the ferocity of their feelings. Certainly a contributing factor was their frustration with the legal system. All but two of the nineteen rustling cases that came before the courts in Johnson County between 1886 and 1890 were dismissed, largely because the sentiment against the cattle kings was so pronounced in the public at large, and in the juries.

  In the winter of 1891–92, several leaders of the Wyoming Stock Growers Association (the big ranchers’ trade group), including its vice president, former g
overnor George Baxter, decided that since they could get no help from the courts, the time had come to take independent action. On April 5,1892, less than two weeks before Charley was scheduled to be hanged, a special train provided by the Union Pacific Railroad arrived in Cheyenne carrying twenty-five Texas gunmen, who had been brought in because the ranchers could not count on locals to do their dirty work. A short while later, having taken on supplies and twenty-four “regulators” (mostly ranch owners and managers but no cowboys, who were not considered loyal enough to the cause), the train set off again for Caspar in Johnson County, where the rustling problem was thought to have been most fierce.

  What this group, which called itself “The Invaders,” actually intended to do in Johnson County is in dispute. Some say that they carried a “dead list” of seventy men, including Caspar’s sheriff and mayor; others maintain that they intended only to give suspected rustlers twenty-four hours to get out of the county. What they actually did is the following. After arriving at the Caspar stockyards at four in the morning, they rode more than seventy-five miles to the KC ranch, where they had heard a group of rustlers was hiding. As it turned out, only two rustlers were there, and they were both killed after a daylong siege. The Invaders then set off to track down another group of rustlers but two days later were cornered at a ranch near Buffalo by an army of 200 “deputies,” led by Red Angus, the sheriff on the “dead list.”

  It is suspected that Acting Governor Amos Barber, along with Wyoming’s two senators, Warren and Cary, had known of the big ranchers’ invasion plans in advance and had at least tacitly approved of them. But Barber was certainly not in close touch with the Invaders and did not hear that they were under siege until he received a telegram from Buffalo on April 12.

  Barber had already earned wide praise in his own time and condemnation by history for his role in Wyoming’s most infamous conflict. He had not been elected governor but had taken over when the state’s first governor, Francis E. Warren, resigned after only two and a half months to become a senator. Just over a month later Barber was told that 350 Indians, grieving over the murder of Sitting Bull by Lakota police officers, had come together near Pine Ridge. Fearing that the Indians might be planning an attack, Barber sent a cavalry detachment to observe and contain them. On December 29,1890, partly through misunderstanding, the cavalry surrounded and fired at the Indians, killing at least 250 men, women, and children in what is now known as the Wounded Knee Massacre. At the time Barber was celebrated in the newspapers and saloons for having quelled an Indian “uprising” so efficiently. So when he heard about the troubles in Johnson County, he decided to employ the same strategy. On April 13, a detachment of federal cavalry arrived at the ranch where the Invaders were under siege and brought them back to Fort McKinney, both for their own protection and to answer charges for the murder of the two alleged rustlers killed at the KC ranch. On April 23 the forty-three Invaders were delivered to Fort Russell to be held for trial.

  Governor Barber did not decide whether to commute Charley’s death sentence until April 21, the eve of his execution date. Right up until the last minute, most people, including the editors of the Daily Leader, had assumed that Barber would not be able to resist the strong urgings in favor of clemency from back east. One particularly persuasive petition had been signed by twenty-five congressmen and lawyers.

  The acting governor thought long and hard about the case, but in the end, although he tried to come down on both sides of the fence, he seems to have been moved primarily by his fears about the effect that yet another apparent failure of the legal system to follow through on a clear mandate might have on a populace already so prone to take the law into its own hands. In a brief letter to Charley’s lawyer, Frank Taggart, Barber declared that, however much his “feelings as an individual” may have prompted him to interfere with the sentence issued by the court, his thorough reexamination of the evidence led him to conclude that commuting Charley’s sentence would have been “yielding to mere sentimentality.” Surprised as the editors of the Daily Leader may have been by this decision, they roundly supported it, declaring in their April 23 edition that Charley’s hanging “will do more to discourage mob law than any event which has ever happened in Wyoming.”

  Despite the encouragement he was given by Taggart and the many other people campaigning on his behalf, Charley seems never to have held out much hope that he would be spared, or even to have particularly desired it. In an interview granted several hours before Governor Barber issued his decision, Charley told a Daily Leader reporter, “I think the die is cast, that I am to be hanged tomorrow, but I want here and now to say that ‘Kansas Charley’ will walk to the doom that cruel fate has made necessary with as much firmness and composure as he would go to a wedding.” Charley then gave the reporter a copy of the following song, which he claimed he had written himself and would sing as he stood on the gallows.

  1.

  The jury found me guilty

  The judge to me did say,

  I sentence you to hang, Miller,

  March the 20th day.

  I took my case to a higher court,

  There I met the same fate.

  Refused me a new trial

  And fixed the execution date.

  2.

  It’s fixed for the 22nd of April,

  In the year 1892.

  And I expect it to take place

  ‘Less the governor carried me through.

  But that he will not hardly do

  Because I am a boy

  And not very hard to manage

  But hard to destroy.

  3.

  Remember this life, e’er so young

  Is soon to fade away,

  Fade when it has been hung

  April the 22nd day.

  My life in this world is not long,

  It hangs by only a thread,

  Soon forever I’ll be gone,

  When to the gallows I’ll be led.

  4.

  My blood in my life will soon cease,

  When Kelly leads me to my doom.

  Then forever they will release

  Me, when I meet my doom.

  I had four days trial,

  Which seemed to me long,

  But time now is precious,

  I’ll end my dear old song.

  This song was never sung upon the gallows. When Sheriff Kelly asked Charley for his last words, he answered only, “God have mercy on me.” A little later, as the sheriff examined the noose to make sure it had been tied properly, Charley asked, “Should I step onto the trapdoor?”

  “Not yet,” said Kelly.

  While the sheriff completed his inspection, placed the noose around Charley’s neck, and finally covered his face with the black mask that would shield the audience from his death grimace, Charley remained completely silent. Only when the sheriff and his deputy had each taken one of his arms and guided him forward so that he stood directly over the trapdoor did Charley say, “You’re choking me a little.”

  “What’s that, Charley?” asked Sheriff Kelly.

  “You’re choking me.”

  Kelly loosened the noose slightly. “There, is that better?”

  “That’s all right now.”

  As Kelly and his deputy descended from the platform, Charley, now standing on the trapdoor, said one last time, “God have mercy on me.”

  The trapdoor fell open and Charley dropped five feet, suddenly rebounding as the rope snapped taut. His body swung around backward, then slowly turned forward again. Not a quiver passed through it.

  Had Charley Miller not gone west on the orphan trains but remained in New York, where the legal age of “accountability” was sixteen, he could not have been tried as an adult and therefore would not have faced the death penalty. Today in New York, and in fifteen other states, including Wyoming, no one can be executed for a murder committed before the age of eighteen, and the Supreme Court has declared that applying the death penalty to anyone who committed a mu
rder before the age of sixteen is unconstitutional. As of this writing, thirteen states and the District of Columbia do not impose the death penalty for any crime.

  In this context then, the validity of Amos Barber’s assertion that commuting a fifteen-year-old killer’s death sentence to life imprisonment would be “mere sentimentality” is not, to say the least, self-evident. His decision was commended by the Daily Leader for the effect it would have on curbing “mob violence.” But when it came to prosecuting the Invaders, whose severe punishment ought to have done the most to quell “mob violence,” the Wyoming legal system was totally ineffective.

  The trial of the Invaders for the murder of the two rustlers killed at the KC ranch was set for August 22—exactly four months after Charley’s execution. W. R. Stoll, the attorney who had prosecuted Charley’s case, crossed over to the other side of the aisle and now worked as one of the Invaders’ four defense attorneys. As it happened, however, he never got the opportunity to argue his case. Shortly before the trial date, Judge Richard H. Scott, who had presided over Charley’s case as well, learned that Johnson County was not paying the Cheyenne jail for the cost of keeping the Invaders locked up, so he ordered them all set free. The ranchers were released on their own recognizance, and the Texans on bonds paid for by the ranchers. Apparently the twenty-five Texans stayed in town only long enough to pop a few bottles of champagne with their former cellmates and employers before catching the first train home. On the basis of purely bogus technicalities, Judge Scott managed to postpone the trial to January 21, 1893. And then, after fruitlessly examining more than 1,000 people to choose twelve jurors, the Johnson County prosecutor became so discouraged that he gave up the case, and all the defendants were discharged. In the end, the only person punished for the crimes of these wealthy cattlemen and their hired guns was a lonely, emotionally disturbed teenage orphan who had never gotten a fair chance in life.