by H. W. Brands
McKeon artfully allows the jury a fallback position in case it doesn’t accept the argument of Fisk’s pistol packing. “Stokes might have been wrong, but he believed that his life was in danger. He had the hallucination that Fisk was about to jump upon him suddenly. He slept with his pistol under his pillow. Whether his belief was well founded or not makes no difference. I am sure he believed it, and if you are satisfied that he so believed, you are bound to acquit him. If you have reason to apprehend, from the desperate character of the man opposed to him, that he actually saw, or believed he saw, that man draw upon him, you will find him guiltless.”
McKeon appeals to the jurors’ humanity and to the spirit of the law. “Bear with us while we unfold this story to you. We ask you to believe us, and hear us in that spirit of mercy which the common law nobly, eloquently says would rather err on the side of mercy than on the side of justice.”
McKeon’s opening for Stokes puts New York in a frenzy of anticipation at what further twists the trial might take. When the newspapers report that the defense has listed Ned Stokes and Josie Mansfield as its principal witnesses, the prospect of seeing the two surviving parties to the infamous love triangle on the stand ratchets emotions still higher. Hours before the doors of the courtroom open the next day, the spectators line up. The police struggle to hold them back; most are turned away, only to linger outside the courthouse simply to be near the scene.
Josie’s entry produces the most visible stir of the trial so far. She has remained in seclusion since the shooting, and today she wears a veil. But as the woman at the center of the case, she is the person everyone wants to see. Her veil imparts not mourning but mystery. She walks slowly to her place, aware of the attention she draws. She seems, beneath the veil, to relish it.
Stokes, by contrast, obviously wishes he were somewhere else. He is tense, and when he takes the stand as the first witness for the defense, he can hardly speak. He fidgets in his chair and repeatedly asks for water.
Defense counsel Lyman Tremain tries to calm him with easy questions. “You are the prisoner in this case?”
“Yes, sir.”
“What is your age?”
“Thirty-one years.”
“Where were you born?”
“In Philadelphia.”
“How long did you reside there?”
“Twenty years.”
“Where did you go from there?”
“I came to this city from the Philadelphia College, and went to live with my uncle, Peyton Gilbert, in Tenth Avenue.”
“How long did you live with him?”
“I think two years.”
“What business were you engaged in?”
“I went into the produce business, and continued in it till 1865. I then went into the oil refinery business over at Hunter’s Point.”
“How long did you continue there?”
“Up to the time Mr. Fisk turned me out of it.”
The district attorney objects, and Judge Ingraham tells the jury to disregard the last statement.
Tremain asks the question again.
Stokes rephrases: “I continued in it up to 1870.”
“When did you first become acquainted with Fisk?”
“I think in the month of July 1869.”
“Where?”
“At the Erie Railroad office.”
“Did you have any business relations with him prior to this alleged homicide?”
Objection; overruled.
“Yes, sir.”
“State generally the character of those relations.”
Objection; sustained.
Tremain recasts the question: “I mean the general business nature, without detail.”
Objection; sustained.
“Had your relations been friendly and intimate?”
Objection; sustained.
Tremain appeals to Judge Ingraham. “Would it not be proper, Your Honor, to show the nature of the transactions with Fisk?”
“I don’t think you have any right to go back two years,” the judge replies.
Defense counsel McKeon interjects: “Can’t we go on to show that for several years he has been endeavoring to get his legal rights, and in consequence of the corrupt judiciary he could not do it?”
Judge Ingraham evinces no response to this slap at the court system of which he is a part. Neither do the spectators, for conventional wisdom, bolstered by repeated experience, is that justice is for sale in New York and goes, as a matter of course, to the highest bidder. Ingraham merely inquires: “What has that to do with this transaction?”
“The operation of his mind,” McKeon says. “We had got to a state of anarchy.”
McKeon hasn’t explicitly introduced insanity as a defense, in part because such defenses are comparatively novel in American jurisprudence and remain highly controversial. But his colleague Tremain essentially does so for him. “In all cases where a defense of insanity has been interposed,” Tremain says, addressing Judge Ingraham, “the prisoner has been allowed to show the transactions between himself and the deceased in connection with other evidence to prove what effect they would be likely to produce.” He cites the case of a woman who murdered her fiancé; her defense counsel showed the wrongs he had done her. “When we wanted to show that the prisoner was under apprehension of his life, and gave notice to his friends that if he should be found killed at any time, he wanted the burden of his death thrown upon the deceased, we were met by the assertion that we hadn’t laid the foundation for it. Now we want to show that the doings of the deceased were such as to operate upon an excitable temperament, and how can we show their effect upon the mind of the prisoner, without proving all the circumstances that bore upon their relations? We want to show the power of Mr. Fisk with his Erie Railroad, with the judiciary, and that in consequence the prisoner had been repeatedly foiled in his attempts to procure justice.”
Tremain looks to Judge Ingraham and then to the jury, before continuing. “If we show that the deceased had applied to the courts to obtain an injunction to take away the property of the prisoner—if this was followed up by suit after suit against him, tying him up in every shape and form, and that the deceased resorted to all means, legal and illegal, for the purpose of depriving him of his rights, and then we are able to follow it up by that proof of threats, pursuit by armed men of hostile intentions on the part of the deceased, all of which were known to the prisoner from his associations with the deceased, and through his friends, has not Your Honor to decide what proof we shall offer? Are we to be stopped here? Are we to be arrested and controlled in the order of our proofs, and prevented from laying that foundation which shall enable us to establish the theory of insanity? I submit that proof of their business relations ought to be received as bearing on the evidence of insanity. I think, also, we should be allowed to show that this prisoner knew the fact that Mr. Fisk was filled with hostility toward him, and that he entertained the most vindictive feelings against him.”
William Beach, for the prosecution, doesn’t like this loose definition of insanity. He objects that the defense is wandering far afield from Stokes’s mental state at the moment of the crime. “Is there any possible pretense upon which it can be asserted that this prisoner at the time of this fatal act was laboring under any insanity or delusion? Is there any proof from the last witness, who was the last man who had an interview with him previous to the fatal act, that he was suffering from a disturbed mind—that there was any hallucination? On the contrary, he goes to this act perfectly cool, and when it is done he leaves it in the same unconcerned frame of mind. In answer to the remarks in regard to the corrupt judiciary, allow me to say that my friend is altogether mistaken in his idea of the course of this prisoner. It is enough to say that neither of the litigations between Fisk and Stokes was before either of the judges charged with malconduct. This idea of a corrupt judiciary having interfered to promote the purposes of Fisk in his litigations with this prisoner is entirely incorrect.”
Tremain wants the judge to rein Beach in, but Ingraham lets Beach proceed. “It seems to me,” the prosecution counsel asserts, “that these aspersions, not only upon the judiciary of the city, but also these unfounded and atrocious calumnies uttered against the dead Mr. Fisk are intended for an ulterior object—to affect the mind of this jury and to interfere with the course of justice. I knew the faults and the foibles of the man who is in his grave, and I know, also, that he was a man of large heart, and there are men who treasure him today in spite of the assaults of this defense, and I have no shame in uttering this justification of him here when he cannot answer for himself. I do not deny that under proper conditions it is competent for the defense to prove that the deceased was of a violent, dangerous, and malignant disposition, and on certain conditions this evidence is admissible; but the settled doctrine of the Court of Appeals is that the evidence cannot be admitted until a foundation has been laid; there must be circumstances that raise the question in regard to the danger of the murderer; he must show there was danger of these threats being carried into effect, and there was reasonable ground to believe that he stood in imminent peril of his life or limb.”
Beach reads to the court from the opinion in People v. Lamb, a landmark homicide case, and glosses the finding: “In this case there was no pretense that the deceased was in a contentious mood. Why, sir, it would be one of the most atrocious propositions in the administration of criminal justice if a man who kills can justify himself by proving that he distrusted the temper or purpose of the man he slew. Did this prisoner mean to kill? That is the premeditation which the law requires. These rules are fixed, immutable, and I do not understand what these impassioned appeals from the leading counsel for the defense and these gross and atrocious narratives mean, unless it is to gather about this case a mist which shall interrupt the course of justice. There are responsibilities which rest with heavy weight upon the prosecution here; there is public justice to be conserved; there is the safety of a thousand lives to be protected. For if, under the circumstances of this case, this prisoner be justified in his act, there are a thousand ruffians in this community who will hasten to take vengeance in their own hands and make bloodier still the streets of your city, which is already running with blood.”
Beach and Tremain appear willing to argue this point all day, but Judge Ingraham finally cuts them short. He tells the defense to move on.
Tremain resumes his questioning of Stokes, who seems somewhat calmer for the distraction. “Had your relations with Fisk been intimate, friendly?”
The prosecution objects; the question is excluded.
Tremain turns to Ingraham: “Do I understand we may now show the relations between the parties some time immediately preceding the occurrence?”
“At the time of the occurrence,” Ingraham instructs.
Tremain turns back to Stokes. “What were Fisk’s relations to you at the time of the alleged homicide?”
The prosecution objects. “The question is so general, so broad.”
Tremain rephrases: “Were your relations with Fisk friendly or hostile at the time of the occurrence?”
“Very hostile.”
“How long had they been so hostile? For some weeks or months?”
Objection, but Stokes answers: “Yes, they had been hostile since January 8, 18—”
“Stop! Stop!” the district attorney shouts.
Stokes tries again: “On the morning of the day in question, I had been before Justice Bixby as a witness. I had not seen Fisk since the opening night of The Black Crook some two or three weeks before. I had heard that he was sick then, so that at the time I passed the Opera House I had no expectation of seeing him. I think we left the court about two o’clock. We came downtown in a carriage together—District Attorney Fellows, Mr. McKeon, and myself. The case was one in which Josephine Mansfield was complainant; she left the court about the time the rest did and in company with her cousin, Mrs. Williams, in another carriage. We drove down to Delmonico’s, at the corner of Broadway and Chambers Street. I remained there till half past two. I took oysters and a glass of ale with Mr. Sprague. After I took lunch at Delmonico’s I went over to the office of Mr. Rufus Andrews, right opposite.” Andrews is Stokes’s attorney. “He told me there was no chance of any indictment being found against me, and advised me to go to Providence. I was not satisfied, so I went over to Judge Bixby, and he told me by all means to go to Providence. He said the indictment had been dismissed several times. I then got into a coupé and drove up to the Hoffman House. I went up to my room for some papers for this court of appeals in Providence. I then went down into the office. I found the dispatch there”—announcing his indictment.
“I object!” the district attorney interrupts.
“Oh, we can’t get along a step without your perpetual ‘I object. I object’?” McKeon replies.
Stokes speaks through the interruption: “I found that I had left some of the papers at Miss Mansfield’s. I got into the coupé and drove there. When I arrived there I found her house all closed, the windows all shut. I thought she might be sick. I thought then I would not disturb her, but go on downtown.”
McKeon has been watching the private counsel silently conferring on the prosecution side. “Is it quite proper for the counsel to be sitting there, winking and blinking at each other?” he asks of Judge Ingraham.
Beach, without waiting for Ingraham, responds that he is simply doing what the defense has been doing. “If you wink and blink, we shall wink and blink. And as I sit with my back to the jury, they cannot see me wink and blink.”
Judge Ingraham shakes his head and motions for Stokes to continue.
“I told the driver to take me down to the corner of the Grand Central Hotel,” Stokes says. Near the hotel he encountered a friend, a man named Bailey. “He asked me where I was going. I said to get some seats for The Black Crook. I asked him to go with me. He consented to do so. We walked across Amity Street. When we were about opposite the main entrance of the Grand Central, I noticed a lady standing in the window of this parlor”—he points to a diagram of the hotel’s floor plan that has been placed before the court. “She was looking out of the window. I thought it was a lady I had met at Saratoga; I thought she recognized me. I asked Bailey if he would come over to the hotel. He refused to go. At that time we were talking about some business of my brother Horace. I walked part of the way back with him, I think half a block. I then crossed over to the ladies’ entrance. The street was crowded with carriages; I might have run a little in crossing.
“I walked into the ladies’ entrance and up the stairs. A boy was standing on the ladder, cleaning the windows on the stairs. When I looked into the parlor at the lady, I found I was not acquainted with her. She did not recognize me. I walked along the main hall”—he points to the diagram of the hotel. “I walked along this corridor as far as I could go. It was the first time I had ever been on the second floor of the Grand Central Hotel. I looked into this parlor, then I walked back again. A lady passed me coming out of the dining room and went upstairs.
“I was going down these stairs again; I had got down three or four stairs when I saw Fisk coming up; he sprang up to this platform; he pulled out a pistol from behind; I was then on the same line with him. I said, ‘Don’t fire.’ I jumped across to the left hand; I placed my hand on the banisters; I pulled my pistol and fired.”
“You were intending to pass him?”
“Yes, I was going right out of the entrance. This boy Redmond was not inside at all; he was outside. I had no idea at first it was Mr. Fisk; I did not know it till I got four or five steps down.”
“Why did you fire?”
“Because I knew he wanted to kill me. He had his pistol out; he had it in his hand.”
“You are convinced he had a pistol?”
“He had a silver-plated pistol.”
“Did you believe he was going to fire at you?”
“He had the pistol cocked; then I fired. I could not have had tim
e to pull out my pistol if it had not been in my overcoat. He staggered a little. He had his pistol in both hands. After that he cried out, ‘I am shot.’ I turned back. I walked up the stairs. There was nobody there. The boy Redmond was in the street. I dropped my pistol between the head of the stairs and Room No. 219. It fell out of my hand. I met Mr. Hill. He said, ‘What’s up?’ I said, ‘There is a man shot.’ When I got to the foot of the stairs I said, ‘Will you go for a doctor? There is a man shot.’ Then I heard somebody say, ‘Here, they want you.’ I turned round and went with him. Two or three then came up. After that, what took place I really don’t know. I know when I was taken and confronted with Fisk.”
Stokes pauses to catch his breath. The courtroom is absolutely still. Whether the jury and spectators believe Stokes is impossible to say, but they are riveted by his story.
Tremain asks the witness to elaborate on this second meeting with Fisk.
“The officer took me into the room with Fisk,” Stokes says. “He was sitting in the center of the sofa. He had his coat off and was in his shirtsleeves. He said, ‘That is Mr. Stokes,’ and dropped his eyes. He was looking very bad. I was going to ask him to exonerate me.”
“Stop! Stop!” the prosecution objects. “We have nothing to do with your intentions. What occurred?”
Tremain prompts Stokes: “Did you understand him then as charging you with shooting?”
“No. He said, ‘That is Mr. Stokes.’ ”
“Now before you went into that house, had you any knowledge, information, or suspicion that Fisk was there?”
“Not the slightest. I did not see any carriage of Fisk’s there. I supposed that he was sick. I had no knowledge that he was going to that hotel that afternoon in his carriage.”
“When you went toward the private ladies’ entrance to go out, had you any expectation of meeting Fisk?”
“No.”
“When you came down those steps, had you any knowledge that Fisk was in the house?”