SHOT WITHOUT WARNING: Tales of the Kansas Frontier

THE MURDER OF B. EDWARD JOHNSTON

 “Shot Without Warning” was the headline in the Kansas City Times the day after lawyer B. B.Edward JohnstonEdward Johnston was shot through the heart by A.W. Little, president of the Kaw Feed and Coal Company and former president of Armourdale Bank, on the streets of Kansas City, Kansas, on the evening of July 19, 1893. The Kansas City Journal headlined its story on the shooting “Deliberate murder.” The shooting, the Times reported, was the result of a coal mine deal in which Johnston and Little had been engaged and which, as the paper put it, “terminated unsatisfactorily.”

            When he was shot Johnston was standing with friends Eugene E. Towner, clerk of the Wyandotte County District Court, and Dr. C.L. Van Fossen, a dentist, on Minnesota Street in front of Holzmark’s furniture store, or Conley’s drug store, or the Masonic Temple: accounts varied. 

Johnston had just lighted a cigar he’d bought in the drugstore, the Times reported, and was standing casually, one of Van Fossen’s arms resting on his shoulder, when Johnston observed someone appearing to be A.W. Little appeared to be crossing Minnesota some distance away. The friends had a debate, with Towner offering to bet Van Fossen a dollar it was not Little. Johnston then recounted a stormy confrontation he’d had with Little earlier in the day when he’d greeted Little with a curse and an imprecation, “I don’t want you … to speak to me at any time.”

            Little continued toward the group, being joined as he crossed Minnesota by C.J. Hanks, a formerA.W. Little justice of the peace, the two talking as they approached. Without revealing whose observations it was basing its information on, the Times described in purple prose what happened next:

When within twenty feet of the group, of which Johnston was a member, Little suddenly stepped forward two paces and a revolver seemed to fairly leap into his hand from its place of concealment. Johnston glanced around and a look of surprise was manifest in his face. Without a word of warning Little fired. The bullet passed through Johnston’s heart and he fell dead in the gutter with a look of surprise still on his face.

There was a scene intensely dramatic as Johnston fell.

Little leaped forward to fire again, the smoking revolver extended at the prostrate body. Towner sprang between him and his victim and threw himself upon the corpse, not knowing that his friend was dead, and hoping to avert a murder. Little sprang upon them both and shouted:

“I’ll show the --- --- that he can not abuse me." He intended the words for ears that never heard them. He did not know his enemy was dead. Twice, thrice he struck the dead man’s head with the butt of his revolver. He was mad with anger.

          Armourdale Bank  The sensational account was a fair preface to the events that would follow. It was a case that caught and sustained the attention of people across Kansas, not only because of its dramatic nature and prominence of the individuals involved but because of its connections with other infamous stories still fresh in Kansans’ memories, including the bloody Stevens County war, the melodramatic trial of Miss Millie Pfaffman, spurned lover of J.M. Juvenal, and the less famous but still talked about trial of Fred Sorter for an 1890 murder. The evolution of the Johnston case and the stories drawn into its orbit revealed that Kansas City, Kansas, despite aspirations to be a modern metropolis, remained half a frontier town, where respectable men carried revolvers, concealed a violent past, and suspected, sometimes rightly, that conspiracies were being hatched against them.

            The Times story went on by describing Little, having “put up” his revolver, surrendering to a police officer, then begging to be allowed to go home and bid his family goodbye. Johnston, he told the police, “has been abusing me for two months and I could not stand it no longer. He abused me today and tried to strike me. O, I could not, could not stand it longer.” The police obligingly allowed Little to see his wife, while Johnston’s body was taken to the morgue. Crowds gathered in the street, with some talking of lynching Little, Dr. Van Fossen among them. In jail, Little was described as “polite and suave,” pleased that Johnston had told his confreres that he had cursed Little earlier in the day. This, the Times predicted, was probably “the nucleus around which he would build his defence.[1]

            The Times story concluded by describing Johnston’s wife falling on a sofa “almost in hysterics,” then turned to the “coal mine deal” that had precipitated the quarrel. Little blamed Johnston for his having lost $5,000 in the investment; Johnston, for his part, had withdrawn from the deal because he believed he was being “entrapped in some scheme….”  Johnston was said to have carried $5,000 in life insurance issued by Eli Potter, husband of mayoral aspirant Annie Potter. Johnston was also an active member of several secret societies, including the A.O.U.W., the Knights of Pythias and Woodmen of the World. Little was less pro minent; he had recently been mentioned as a Republican prospect for mayor, but was passed over. After that, according to the Journal, Little was “somewhat morose and out of the sympathy with the city.”  He had, the Herald reported, “”an excellent reputation” as a businessman, and was “worth fully $60,000 or $75,900,” according to the Journal, equivalent to over $2 million in contemporary dollars,

            Other newspapers covered the story, differing in a few details. The Kansas City Gazette called it “cold, calculated, deliberate murder,” and said the event occurred in front of J.R. Conley’s drug store, not Holzman’s Furniture Store, and that Johnston and Towner were occupying a settee in front. The Wyandott Herald had the group standing in front of the Masonic temple, talking about “bank failures and other current topics.” 

            The Gazette interviewed C.J. Hanks, who described Little pulling a pistol from his pocket, saying to Johnston “You d—n coward” before shooting him. Johnston had risen from the settee, the paper reported, with Towner on his right and Van Fossen on his left, the latter’s arm over Johnston’s shoulder. Johnston’s body was “half behind mine,” Van Fossen said, when Little fired. The paper noted that in addition to life insurance policies from Potter’s company and another firm, Johnston had insurance policies through the Knights of Pythias, Modern Woodmen, and Masons, amounting to over $15,000, a sizable fortune for the time.  His law partner remembered Johnston as “a noble fellow and a splendid lawyer.”

 THE JUVENAL EXPLOSION CASE

            Johnston, said the Gazette, was remembered as the lawyer who defended Miss Millie Pfaffman in “the famous Juvenal explosion case” in 1891, making a connection with one of the most sensational stories in the recent history of the young city. One August night that year, the residence of Joseph M. (“Dick”) Juvenal on Third Street in Armourdale was wrecked by dynamite, the explosion waking everyone on the city’s south side, the Wyandott Herald reported.Juvenal, his new bride, as well as his sister and her two children, were in the house but were not injured.

            Neighbors reported seeing a woman entering the yard just before the explosion; Juvenal swore out a warrant for Miss Millie Pfaffman of Kansas City, Missouri, to whom he had once been engaged. Her trial was set for a month later, in mid-September.

            Juvenal’s troubles were not over.  Days before the Pfaffman trial was to begin, Juvenal’s wife died of poison.  Kansas governor Lyman Humphrey offered a $250 reward for arrest and conviction of the perpetrator. Juvenal offered his house, wrecked though it was, as a reward, adding with what the Gazette called  “a freezing laugh” that “if himself is proved guilty, he would not need the property.” Suspicion naturally fell on Juvenal, who had been previously married.  The attorney for his previous wife, Maggie, was John A. Hale, who was now defending Millie Pfaffman, and would be State’s attorney in the trial of A.W. Little in 1893.

            The Pfaffman trial began the day after Mrs. Juvenal’s funeral and attracted a crowd of two hundred, “composed largely of women,” reported the Kansas City Gazette.  Even before it opened there was a whiff of the Old West  in the air as court officers demanded weapons be surrendered, at which point  a “considerable portion of the men hastened to disencumber themselves” of their revolvers, although a police officer reported that Juvenal retained two pistols, one in each pants pocket, after others were disarmed. Lawyer Hale was relieved of “a short chunky derringer pistol, with two barrels of an extremely large bore,” when just at that point Juvenal pulled out a silver mounted dirk and lunged at Hale, shouting “You killed my wife.” Juvenal was wrestled to the floor by a bystander; Hale escaped injury.

            The subject of everyone’s fascination, Miss Pfaffman herself, “dressed in a becoming black costume,” meanwhile entered the courtroom on the floor above. She was not a witness to Juvenal’s attack on Hale, but was “in dread that some such an attempt might be made upon her,” the Gazette said. The judge, agreeing with the prosecution that the complainant Juvenal was “perfectly insane,” granted a two week continuance, presumably hoping  Juvenal would regain sanity in the interim and be able to explain the mysterious events surrounding him including: his “persistent claims of [Pfaffman’s] guilt; the mysterious letters threatening the lives of Juvenal and his family; the alleged attempt to poison the Juvenal family; Juvenal’s very peculiar actions; the poison found in the water and flour; the agonizing death of Mrs. Juvenal at 1 o’clock Sunday morning, and her burial Sunday….” Not to mention his attack on lawyer Hale and his carrying about of two pistols.

            Few people thought Millie Pfaffman was guilty, the Gazette stated; more suspicion fell on Juvenal, whose “silly charge” against Hale was thought to be prompted by Hale’s support for Pfaffman. For his attempt to kill Hale, Juvenal was charged the next day with assault with intent to kill, but he continued to fulminate against the unfairness of his treatment in the newspapers and his “persecution by his enemies,” telling reporters that Hale “had hounded him and dragged him down for the past five years and in the present case was trying to down him by every hook or crook.” Working himself into a fury, Juvenal threatened to kill anyone who insinuated that he had poisoned his wife, and “would have cut [Hale’s] d—n heart out yesterday if they had let me.” Trouble, the Gazette report concluded, “is liable to be precipitated at any moment.” Soon after, Juvenal sued the Kansas City Times for $25,000 for malicious slander for reporting that he had been keeping company with his ex-wife, Maggie. 

            The Pfaffman case concluded in December, 1891, with Millie Pfaffman’s exoneration. The judge concluded that circumstantial evidence wasn’t sufficient to show Millie had put a dynamite cartridge under Juvenal’s porch. Juvenal himself was in the courtroom at the time, the Gazette reported, and pronounced himself satisfied. He would now, he said, “look elsewhere” for the perpetrator.

            That was one trial, therefore, against which the trial of Johnston’s murderer could be compared, especially since some players overlapped between the two trials.  Mystery was a characteristic of both stories, greatly increasing public interest in the Little trial. The Journal referred to a “rumor of a very sensational nature” that offered an entirely different reason for the murder than the coal mine dispute and that involved “the names of some prominent parties and cannot be printed.” The implication was that a conspiracy lay behind the Johnston murder.

            The Journal initially thought that the “story of the crime is told plainly by all,” referring to the dozen eye witnesses to the shooting, “and with no variance as to facts.” But that proved not to be so. Some facts were uncontested at trial, but many, down to the smallest details, were contested and played a role in the trial’s outcome. For example, the first Journal story had Little passing the revolver he’d used to shoot Johnston to “some friend,” before surrendering to a policeman, a detail that proved relevant to the trial.  All of the bystanders, including Captain Hanks, who was walking with Little, and Johnston’s friend Van Fossen, as well as two others, J.V. Andrews, J.M. Wallace and Alph Peterson, who witnessed the shooting, were reported to agree that Johnston was shot “without being given a chance to defend himself,” another point that would be contested at trial.

 THE STEVENS COUNTY WAR

            The day after the shooting, Johnston’s character as a “noble fellow” was called into question by testimony before the coroner’s jury. “Some interesting facts” were beginning to crop up, the Times announced:  “rumor is busy on every hand.” Perhaps the most interesting was that Johnston had told bank cashier William Connelly that he was the one who had killed Sam Wood at Hugoton two years earlier. Connelly's declaration must have produced a collective gasp from members of the community, who would vividly recall dramatic events in southern Kansas two years earlier that led to Wood’s assassination.  

            The story began with the famous “county seat war” between residents of two small towns, HugotonSit of Haymeadow Massacre and Woodsdale in Stevens County in 1888. The war culminated in the “Haymeadow Massacre,” in which four Woodsdale men were killed at a site in was in what was then No Man’s Land south of Stevens county. The perpetrators, men from Hugoton, claimed there had been a shootout, but survivors said the victims had been captured, disarmed, and executed.

            The killers were arrested, tried, convicted and sentenced to death in a court in Texas, with Sam Wood, a prominent Free State advocate, member of the Kansas Legislature, founder of Woodsdale,[2] and mortal enemy of the Hugoton faction, in the role of assistant to the prosecuting attorney. B.E. Johnston, for the Hugoton side, took the case to the United States Supreme Court, where it was determined that the Texas court had no jurisdiction. A new trial was ordered, but after several attempts to get another jury the case was dropped. The death sentences against the assassins were never carried out.

            In 1891 Sam Wood was facing trial in Hugoton for bribery before a judge with the NabokovianSam Wood moniker of Theodosius Botkin. Wood had attempted get Botkin impeached earlier in the year. Entering the courtroom in Hugoton, Wood was gunned down in front of his wife, Margaret, by James Brennan, who had been a witness in the Texas trial. Wood had insulted Brennan during that trial, but there were suspicions in this case too that a conspiracy was involved that included Judge Botkin. [3] Brennan, claiming self-defense, was arrested, but it proved impossible to find a jury in Stevens County to try the case due to “the intense partisanship in the Botkin and Wood faction.” Hugoton subsequently became county seat; Woodsdale became a ghost town.

            Johnston, the Times recalled, was at Hugoton on the day Wood was killed, and according to Connelly, revealed that he was standing near Brennan and that both fired at Wood at the same time. Johnston told Connelly he “was certain that it was the bullet from his revolver” that killed Wood. That, at least, was Connelly’s story. Johnston’s friends denied it, and the Times said that Johnston and Connelly had fallen out over a business dispute and since then had been “bitter enemies.”

            Little, the Journal reported, may also have had a violent past. A rumor circulated that he had shot a man at Medicine Lodge ten years earlier. His attorney denied the story, but admitted that there had been a confrontation in which Little fired a revolver in the air to frighten an assailant. Little, the paper said, was using his wealth to hire the best attorneys, adding that the case resembled a well known case three years earlier in which a skilled defense allowed a murderer to escape punishment. 

            That was the famous Sorter trial in which Fred Sorter had been given a ten year jail sentence for killing blacksmith Enoch Link in 1890. His attorneys appealed the sentence on various technicalities and the case had gone through two trials in District Court and been before the Kansas Supreme court two or three times. As of mid-1893, Sorter had yet to serve his sentence. Some of the dramatis personae from the Sorter case were present in the Little courtroom, including C.F. Hutchings, who was a state’s attorney, while J.A. Hale represented Sorter. Everyone in the Kansas City courtroom in 1893 must have been asking “Would yet another murderer go free?”

THE CORONER’S JURY

            The coroner’s jury in the Little case took testimony from several witnesses to the killing of Johnston, none differing significantly from each other, except that one witness described Johnston placing his hands at his side as Little approached, a detail that would prove important in the trial. Testimony was also given by men who had not seen the killing but were present when the victim or his killer threatened each other. Attorney H.A. Yonge testified that Johnston had told him that he had “done Little up financially, and if he ever crossed his path he would do him up personally.” Yonge said he told Little of Johnston’s remarks. On the other side, a laborer told the county attorney that he had seen Little abusing Johnston, calling him “vile names” and drawing a pistol on him, threatening to “do him up.’

            The coroner's jury recommended that Little be charged with first degree murder. The next stage would be a preliminary hearing before Justice George W. Betts, to determine whether evidence was sufficient for a trial. In the meantime, Little would be confined to a comfortable cell, where he was, the Times reported, "besieged all day with friends” and visited by reporters. Mrs. Little sent meals to her husband.

            Johnston’s funeral was conducted by fourteen lodges, “of different kinds,” the Times reported. The Knights of Pythias (K.of P.) took the lead, followed by delegations from Ancient Order of United Workmen (A.O.U.W.), the Improved Order of Red Men (I.O.R.M), the Uniform Rank of the Knights of Pythias and the Modern Woodmen, followed by the county bar.. Hundreds of “friends and sympathizers” came to view Johnston’s body, lying in the family home. The funeral train was at least six blocks long, “the grandest lodge funeral in this city since the funeral of John Brown, the exalted Mason,” the paper reported, referring to a former Grand Secretary of Kansas Masons. Johnston, the Times report concluded, “had many friends among the colored population and they were present in large numbers.”

            Little was reported to be preparing for his trial by taking out mortgages on his property, one raising $15,000, the other for $5,000 to benefit his attorneys, including C.F. Hutchings. His preliminary hearing in August  before Judge George W. Betts attracted, the Times reported, “the largest crowd that had ever assembled [at the District courtroom] to hear a trial.” The hearing had to be moved from the judge’s office, where it would normally be held, to the district courtroom.

 
THE PRELIMINARY HEARING

Day 1

            The defense immediately asked for a continuance on the grounds that it had not had time to secure the presence of relevant witnesses.  The two sides continued this argument for two hours, with Hale reminding Hutchings that Hutchings as prosecutor had forced an early preliminary trial in the Sorter murder case, and was now attempting to delay the Little trial. There was further argument over whether the proceedings should be typed directly on a typewriter, slowing proceedings down – preferred by the defense, which favored any and every technique of delay – or taken in shorthand and transcribed later. Little's attorneys also argued that it was unfair to have the trial so early, and that Little should be released on bail. It promised to bring forth witnesses whose evidence would acquit Little, including Margaret Wood, widow of the slain Sam Wood, who had continued to accuse Johnston of being in on the conspiracy to kill her husband. 

            Conspiracies were flowering in the Johnston case as well. Little himself, in an affidavit, argued that the local newspapers had been “retained by the State” to try his case in advance. His attorneys accused one newspaper of "efforts to inflame public sentiment" against Little. The State’s attorney said that the newspapers had been “very lenient with Little,” and Hale dismissed Little’s affidavit as being “not in due form.” Betts decided on use of the typewriter, but refused to issue a continuance. The wrangling was far from over.

            E.W. Towner, who had been with Johnston when he was shot, was forced to admit he and Johnston had been drinking just prior to the shooting, the defense setting out to prove that he was drunk at the time and unable to remember the details of the shooting. Towner also denied that there was any wager made about whether it was Little coming toward them, or that Johnston had said Little’s name, undercutting the defense case that Johnston had said of Little as the group watched him approach, “There comes the --- ---- --- now, just watch me jump him.”

 Day 2

            The defense goal in the preliminary hearing was to demonstrate that Little had acted in self-defense, showing that Johnston had maligned Little just before the shooting, as well as making prior threats on Little’s life, and had been drawing a revolver to shoot Little when he was shot down. Showing that Johnston was a dangerous man who was always armed was, the Times pointed out, an important part of the defense strategy. The Stevens County war and killing of Sam Wood would be sure to play a role in Little’s defense, if his lawyers could persuade Judge Betts of its relevance.

            The defense promised to put U.S. Marshal Dick Walker on the stand to prove that Johnson “laid in ambush with a number of other frontiersman at the time of the Stevens county-seat war two years ago to slay their opponents … for the purpose of showing that Johnston was a ‘bad man.’”  Another promised witness for the defense was none other than Mrs. Margaret Wood, witness to her husband’s assassination and author of the hagiographic “Memorial of Samuel N. Wood,” published in Kansas City in 1892.[4] A third witness, named Trumbull, was also promised who would, Little’s attorneys promised, “have enough evidence concerning the affray to clear Little.” All these promised defense witnesses were, the State said, a scheme to get all the State’s evidence out while keeping defense witnesses under wraps until the actual trial before the Court of Common Pleas.

            Little himself, the Gazette reported, was “quite at ease” before the large crowd which came to watch the hearing: “He carried an air of calm dignity and by a graceful wave of the hand he once or twice saluted an acquaintance in the throng.”

 Day 3

Margaret Wood            Perhaps he had reason to be calm: he probably knew what his attorneys were planning, beginning with the appearance of Mrs. Margaret Wood, aggrieved widow, who told the Times that Johnston “met the fate which he so richly deserved,"  as if Little had done nothing more than mete out justice. Mrs. Wood came to town intending to testify; while there she stayed at Little’s home. 

            “I am positive,” she told the Times reporter, “and, in fact, it is well known in Southwestern Kansas that Johnston was one of the ring leaders of the gang that so deliberately planned the death of my husband.” She said Johnston had various grievances against Wood over their opposing roles in the Haymeadow Massacre trial in Texas; Johnston and his Hugoton “gang” feared Wood would bring the perpetrators of the massacre to trial and convict them.  Her account made for a good newspaper story, but there was little chance she would be called to testify.

            Efforts to muddy Johnston’s reputation continued in the preliminary trial with the testimony of S.E. Miller, a clerk in the drugstore of John R. Conley. Miller had been standing with J.W. Northcutt near the scene of the shooting and testified he heard Little cursing Johnston, then after shooting Johnston telling one of those present “Get out of the way, you --- --- ---; I want to be sure he is dead.” 

            Defense attorneys attacked Miller’s testimony from two directions, first by arguing that the Conley operation was no drugstore but a barely concealed gambling house and “joint” that served alcohol and that the witness was a drifter, not a reliable citizen. Second, they suggested that Johnston and Northcutt had spent three hours at Conley’s and had not left the store to go to a restaurant for supper, as Northcutt had testified at the coroner’s inquest, leading to the implication that both were tipsy on the evening of the shooting.   

 Day 4

            The defense, stated an account in the next day’s Journal, would produce a “trustworthy and reliable witness” to show Johnston had tried to shoot Little shortly before Little shot him. Another piece of this line of defense was provided by J.V. Andrews’ claim that Johnston made “ a threatening motion” as Little approached him, leading Andrews to make a hasty exit in anticipation of “a shooting scrape.” One witness, J.W. Northcutt, could not be found, causing suspicion that either the defense or the state was keeping him out of sight to foil the other side. Prosecutor Hale intimated that the defense had bribed Northcutt to testify in Little’s favor and was keeping him concealed until the right moment:  “Money,” he said, “is more important to some people than the friendship of a dead man.”

            Johnston’s personal life was to be besmirched by showing that he had been twice married and divorced once; his former wife would be called, the Little defense promised, to testify that she had been subject to “abandonment, cruelty and failure to provide.” When the judge in the divorce case refused to reduce the grounds for divorce to abandonment alone, he received from Johnston “a threatening letter.”

            By this point the state was ready to rest its case, while defense attorneys had called twenty-six witnesses. The absence of one of them, the dentist Van Fossen, whom the defense claimed would testify to Johnston’s use of “very threatening language” and apparent move to draw a gun when he saw Little approachin, led the defense to again call for a continuance. Judge Betts agreed to a short continuance until Van Fossen, who was in Chicago at a dentists’ conference, could be brought to testify. 

 Day 5

The preliminary hearing resumed three days later, on August 9, with Dr. Van Fossen on the stand and a large crowd of onlookers in the courtroom. Van Fossen repeated his story that as Little approached the group Johnston told them of meeting Little earlier in the evening with J.W. Northcutt, and that he had refused to shake Little’s hand, telling “he did not want any --- --- --- --- to speak to him on the street.” Eugene Towner, who was among the group surrounding Johnston, had flatly denied in his testimony that any such conversation occurred, a matter of some importance since Little may have been close enough to hear Johnston’s animadversions.Van Fossen also said that Johnston had stepped behind him as Little lunged forward, so his right side was obscured, the implication being that no one could have seen whether or not Johnston was attempting to draw a weapon, unless a witness could be produced who could have seen the “hostile movement,” as the Gazette called it. 

That witness was J.W. Northcutt, an insurance agent, who testified that Johnston told him he was armed on the evening of the shooting, and that he was “looking for Little and would like to see him come along.” Northcutt’s testimony “fell like a bomb shell,” the Times reported. State’s Attorney Hale cross-questioned Northcutt, intimating that the defense had paid him “good money for his testimony.” Hale attempted to show that Northcutt had been approached by an attorney working for Little who offered to pay off pressing debts, although he provided no material evidence for the accusation and the objection of Little’s attorneys to Hale’s claim was sustained by Judge Betts.

A second defense witness, R.M. Ray, described an encounter he witnessed between Johnston and Little in the tunnel under the cable railroad depot at Sixth Street and Minnesota Avenue, where Johnston cursed Little and seemed to be about to draw a revolver from his hip pocket. Johnston then refused to ride in the same cable car as Little and told him he “would hear from him again.” Under cross-examination, Ray said he had seen the handle of a revolver in Johnston’s pocket;  Johnston had also mentioned he was armed. Hale objected to the defense continuing to tell of Johnston’s conversation in redirect examination, since it had not come up in the state’s questioning, and Johnston’s threats against Little had occurred outside of Little’s hearing so were not germane. Betts’ sustained Hale’s objection, leading to the sudden end of the preliminary trial.

 Day 6

On August 10, Little’s attorneys terminated the preliminary trial in “a somewhat sensational manner,” the Times reported, after accusing the judge of bias. The defense rested its case:  it would no longer attempt to get the charge reduced to a bailable offense. Little was promptly bound over to the Court of Common Pleas on the charge of murder in the first degree, for trial in September. His attorneys promised to apply for a writ of habeas corpus to the state Supreme Court to get Little out on bail, using their claim of Betts’ bias as the basis of the appeal.

            The preliminary trial did not end, however, without a reminder of the potential for violence and conspiracy. There had already been threats against Justice Betts himself: earlier in the trial he received a letter threatening his life if he admitted Little to bail, written in what the Journal described as “a good business hand.”  And just as Betts was adjourning court to end the preliminary trial, an anonymous spectator stood and shouted “Little ought to be thankful he got off so easy. He ought to be thankful he is allowed to breathe.” A constable pursued the man but, the Journal reported, he disappeared into the crowd; defense attorneys were said to be attempting to secure his arrest.

            Yet a few cynical souls might have wondered if the threats against Betts and Little weren’t stage managed by the defense to implant the idea that Little remained under dire threat from Johnston’s dangerous allies. The Times reporter, perhaps one of those souls, noted that while general excitement prevailed in the courtroom after the man’s threat, Little “seemed to be the only person in the room who was composed.” Perhaps he knew something others didn’t.

 PRE-TRIAL MANEUVERS 1, STEVENS COUNTY AGAIN

     Botkin       Almost a month passed before the Johnston murder case was back in the news, as the jury trial of A.W. Little on a charge of first degree murder came before the Court of Common Pleas. In the interim, an interesting story emerged involving none other than Judge Theodosius Botkin of Stevens County War fame. Botkin was in town to visit his old friend George W. Martin, editor of the Republican Kansas City Gazette. Botkin and Johnson belonged to the Hugoton faction in the war, the Times noted, and were “arch enemies of Sam Wood, yet they had no particular love for each other – so says Theodosius.” Yet Botkin’s portrayal of Johnston would, if he were called to testify, differ from the one the defense was attempting to build, and introduce new twists into the complicated story of the late B. Edward Johnston.

            Little’s defense attorneys had been told by U.S. Marshal Dick Walker about an incident several years ago in Stevens County in which Johnston and a gang of men had laid in ambush to kill him. At the time, according to Walker, Johnston had been working in the interests of the Missouri Pacific Railroad, and wanted to prevent Walker from attending a meeting to speak in favor of a county bond issue favoring the Rock Island Railroad. Walker said he had been prevented from attending the meeting, so escaped the ambush; Johnston’s gang stopped Judge Botkin instead, thinking he was Walker. In Walker’s account Johnston was there, carrying a Winchester.

            Judge Botkin denied any of it happened. He said he had never been stopped by a crowd headed by Johnston. There was a indeed a proposed bond issue that Dick Walker wanted to get involved in, but it was Walker who was stopped and prevented from going to the meeting, said Botkin, who also implied that Mrs. Margaret Wood was “not responsible for what she said.”

            In the same Times story it was noted that Johnston’s widow had just received some of the life insurance monies due her. Mr. Eli Potter, insurance executive and husband of quondam mayoral candidate Anne Potter, presented her with a check for $5,000, with an additional $9,000 to come.

 
PRE-TRIAL MANEUVERS 2, SORTER CASE  AGAIN

             A.W. Little was arraigned on September 7 in the Court of Common Pleas, with the State’s attorneys pushing for a swift trial. To date, the defense had yet to show its full hand, though attorneys had been busy securing witnesses and taking statements. Little’s attorneys, the Times predicted, would  first try to show that Little had not received a fair preliminary hearing, since Judge Betts had refused to admit testimony about threats Johnston had made against Little if the threats had not been heard by Little. 

On this basis, the attorneys hoped to get the charge reduced from first degree to second degree murder. The defense also aimed to delay the case for a judicial term, and failing this, to push for a change of venue on the grounds that it would be impossible to get a “jury of unprejudiced men.”  The Sorter murder case was cited as an example: over 500 men had to be examined in that case, a much less sensational one, before twelve could be found to make an unbiased jury.

            The same article gave sympathetic notice that Banker Little was looking worn out from being continuously confined in a 5’ by 8’ cell for a month. More spectacular was the Journal’s  report that Little’s defense attorneys had filed affidavits claiming that Betts had said in the presence of others, including prominent hotelier and former Wyandotte County sheriff, William H. Ryus, that “he did not dare admit Little to Bail and that he” -- presumably Little, but possibly Betts as well -- “would not live to get out of the court room if he was released on bond, that a meeting had been held and plans laid to lynch him if he was given bail.”

            The attorneys were also planning to point to the presence in Betts’ courtroom of a “gang of men prepared to execute their purpose,” including the one who’d made a vociferous threat against Little. Betts was himself allegedly threatened with death by vigilante “White Caps" if he let Little out on bail, and a witness was similarly threatened if he “failed to swear hard against Little.” The defense attorney’s purpose was to show that Little had not received his full rights and so the findings of the preliminary trial should be void. 

            The state’s attorneys said these claims were all about delay and change of venue and that Little had received his due rights. John Hale, assistant prosecutor, argued that affidavits, from Ryus and others, describing Judge Betts’ fears about retribution, were not properly verified. County Attorney A.H. Cobb tried to show that despite the multiple spectacular rumors and intense factionalism the case was generating that there were enough unbiased prospective jurors in Wyandotte County that Little did get a fair trial in Betts’ court, and that the case could be tried in the County.

            Another sensational rumor emerged, also helpful to the defense, that plans had been laid to assassinate Little in jail by a sniper shooting through the windowHuron Indian cemetery of his cell. The sniper was to conceal himself in Huron Place, across the street from the jail, and in the evening when cell light would illuminate the prisoner, shoot him. There are, the Times observed helpfully, “hundreds of riflemen who could hit a smaller target than Mr. Little’s head at that distance.” Little’s attorneys said they had “heard the story,” and promised to provide witnesses to the plot.  The Journal added the details that the sniper would be concealed in the Huron Indian cemetery in Huron Place, armed with a Winchester, and that a jailer, learning of the plan, had advised Little to avoid the cell window after dark. 

            More sympathy was elicited for Little by a story in the Times that he had been subject to “great humiliation” by being confined in a cell with “a big, burly negro, named William Mullens,” who was facing a charge of attempted murder. “Little’s only cell mate is this negro,” the pro-Democratic paper reported,  "and, it is said, that this was done for political purposes.” Little had been a man of “literary taste,” the paper said, but can’t read since the cell is dark; he has always done “a great deal of exercise” but can get little in jail. 

The worst of it, however, the paper implied, is the “humiliation” of being confined with Mullen: 
“It is said that the jailer has broken an old established precedent in order to locate Little in the same cell with a negro,” the implication being that this was yet another indication of the bias of the court and prosecutors against Little. Little himself claimed to want nothing to be said of his “humiliation”: “They will think it came from me,” said he, referring to his jailers, “and then they may be more severe on me than ever. O! please don’t say a word.”

            But a word was said, and – the Times speculated – public opinion was offended by Little’s heartless treatment: “It is the opinion of the public that although Little is in jail on the charge of murder, yet he should not be subjected to any more hardships than any other white prisoner charged with a serious offense. It is claimed by some that the reason he is receiving such treatment is because he supported another Republican, W.H. Ryus, instead of the present incumbent,” for the position of sheriff. The name of W.H. Ryus again surfaces: first as witness to a statement by Judge Betts that would help Little’s defense, and second as an electoral candidate whom the accused had supported.

            It was becoming increasingly unclear who had been the victim on January 19, the deceased B. Edward Johnston or the man who shot him through the heart, poor A.W. Little, confined in a cell with a black man. There is no reason, the paper said,  “why any precedent should be broken in the Little case,” namely the precedent that a white person, even if manifestly a murderer, should never be confined in the same cell with an African American prisoner, even if the latter was accused only of attempted murder.

            After a week’s delay, the hearing on the plea of abatement to reduce the charge against Little to a bailable offense resumed in the Court of Common Pleas under Judge T.P. Anderson. The state objected that the various affidavits supporting the plea were not admissible, as they might not contain all the witness knew, but Anderson ruled they could be admitted. The state then issued subpoenas for all those named in the affidavits so they could be interrogated, a move the defense probably hoped for, as it would guarantee a long hearing. There were, the Journal reported, half a dozen affidavits on the courtroom incident alone, when the “tough looking stranger” had made threats against Little, as well as two affidavits, one from W.H. Ryus, dealing with Judge Betts’ statement that he feared he and Little would both be killed if he let Little out on bail, and almost 150 other affidavits that the defense promised to introduce at trial.

            Then Judge Anderson, saying he had examined the law books, reversed his decision, saying that the defense evidence would have to be given orally since the case would have to be tried before a jury and not before the judge. Objections went up from both sides, Little’s attorneys saying they had prepared to go ahead using the affidavits, but now wanted a jury trial, while the state objected that the defense had waived the right to a jury by introducing the affidavits. 

            The defense then said it would demand a change of venue on the grounds that there was too much prejudice against Little for him to get a fair trial. Little was arraigned but refused to plead, so a plea of not guilty was entered against him.  His attorneys presented a lengthy motion for a change of venue; reading it took eight hours, seven of which were devoted to reading articles from local papers dealing with the killing. 

            Little’s attorneys argued that the newspapers had published false statements about him, “poisoning the minds of the people against him,” in addition to the fact that the secret lodges Johnston belonged to had turned public sentiment against Little. They also slung a little mud at the deceased by saying he was a habitué of illegal “joints,” where the “lower class of people” congregated, and they were thus prejudiced against Little. This allowed Attorney Hale to attack County Attorney Alfred H. Cobb for allowing “joints” like Conley’s drug store to thrive, against Kansas prohibition laws.

            Johnston’s friend E.W. Towner was brought into the motion, as he had helped secure witnesses, and caused “great prejudice against Little,” as a member of many of the same secret organizations. The defense also claimed that Sam Wood’s widow Margaret had been threatened with “rough treatment” if she testified, so she left without testifying.

            The defense promised it would produce, and presumably read, more than two hundred affidavits showing Little would not get a fair trial in Wyandotte County; the State for its part had a similar number of affidavits showing he would. The case would be a landmark in Kansas legal history, the Times predicted;  it was “a battle between the giants, for this is a case of great moment in Wyandotte county.” The attorneys for the defense, C.F. Hutchings and D.H. Morse and for the prosecution, Henry McGrew and John A. Hale, were experienced lawyers who contested every inch of ground. 

            When the state began plodding through affidavits resisting the change of venue, Hutchings pointed out that they had been sworn before a notary public who was only 19; he argued that “an infant was not eligible” to serve in such a role. Judge Anderson ruled in favor of the state but only provisionally. It was also found that the young notary had signed off on some affidavits that were deliberately wrongly dated; “it would look better if the affidavits were dated other than Sunday,” he was told by County Attorneys Cobb and J.K. Cubbison. These irregularities alone might serve as the basis for an appeal in the event of conviction and made Cobb and Cubbison look bad in the eyes of the Judge, who lectured the poor notary but blamed the county attorney for leading him into it, and threw out the fraudulent affidavits.

            Little’s brother Lucius, a judge in Kentucky, addressed the court in favor of a change of venue, raising the specter of mob violence as a threat to a fair trial. Attorney Hutchings referred to the “harsh editorial comments” of one newspaper.  Judge Anderson agreed to a change of venue, not, he said, because he feared Little would not get a fair trial in Wyandotte county, nor out of fear of mob violence, but because putting together a jury from an already small jury box would probably drain the pool, with two terms of court ahead.

 HABEAS CORPUS HEARING

            The defense strategy prevailed: the actual trial would be delayed until early 1894, favoring the defense, which could always find additional reasons for delay once the trial began. All that remained for the defense was to get their client out on bail while awaiting trial. This would require a habeas corpus hearing before Judge Burris of the District court in Johnson County.

            First, the various documents – petitions, newspaper articles, and six hundred affidavits, had to be copied and sent to the court, requiring about ten days; the clerk of the Court of Common Pleas in Wyandotte County employed “four extra typewriters” (typists), to produce the copies, with more promised if necessary

            The habeas corpus hearing before Judge Burris in Olathe in November continued to attract large crowds: “The court room is full and ladies are crowding into the galleries,” the Journal reported, as Little’s industrious attorneys produced an entirely new and sensational witness. J. P. Dukehart , a traveling millwright, testified he had seen the shooting and had not only heard Johnston say that he would “shoot that s --- --- --- b--- on sight,” but that after Johnston was shot he saw Towner take “something that looked bright from the man who was shot and put it in his pocket.” State attorney Hale cross-examined Dukehartfor four hours without being able to shake his testimony, although the Journal noted that Dukehart was unemployed and divorced, suggesting the possibility that he had been bribed.

            Additional witnesses appeared.  One said he had seen a revolver in Johnston’s coat pocket on the day of the murder, another that a few months previous to the shooting Johnston had promised to “break [Little’s] back,” A third described a scene in front of the New York Life Building in Kansas City, Missouri, when Johnston had said to Little “You d—s--- --- --- b---, I will shoot you,” and flourished a pistol to make his point. Several local businessmen, including none other than W.H. Ryus, appeared to testify to the “quiet and peaceable” nature of A.W. Little.

            The State had a go the next day, producing witnesses who were in the vicinity of the shooting and said they did not see J.P. Dukehart in the street. Another witness said he was Johnston’s law partner and had never known him to carry a gun; he knew him, the Times reported, as “quiet, peaceable and law-abiding citizen.” Other reputable witnesses appeared in court to say the same thing about Johnston.

            Judge Burris mentioned, as testimony concluded, that he was in a hurry since he had a case to handle in Paola and could give no further time to the Little case. The next day the state produced witnesses who testified that Little had been a troublesome neighbor, and that Johnston’s revolver had been in his wash-stand at home on the evening of the shooting. Though Mrs. Johnston was not present, County Attorney Cobb made an affidavit that she would testify that Johnson did not have fire arms on him that evening, contradicting Dukehart’s testimony. Regardless, Judge Burris, in a hurry to get to Paola, ruled that Little should be admitted to a bail of $15,000

            A few days later, the Times reported,  A.W. Little was back in his home on Washington Avenue, “in the pink of health,” which he attributed to his attentionFeed and Coal Co to diet: “Although at both jails in which he has been confined ice water was kept on tap,” the paper reported, “he always drank hydrant water, even during the hot summer months.” He promised to return to work at his coal and feed store in Armourdale while awaiting the final stage of his ordeal, the trial, or as it turned out ,trials.

 TRIAL 1

            Trial 1 started in March 12, 1894; in Johnson County district court. The trial “will take at least two weeks,” it was reported. On March 29, the case was sent to the jury after “a hard fought legal battle,” in which “every legal point has been carefully presented and the evidence thoroughly sifted. Public sentiment has been more or less divided, with a slight leaning toward the defendant.” The court room continued to be filled with spectators.

            The jury deliberated for forty-eight hours but was unable to reach a verdict, necessitating a second trial; a continuance was again requested, until November. 

 TRIAL 2

            Newspapers around the state continued to follow the case as the court convened in Olathe on November 12, to begin selecting a jury. A special train service was put on daily between Kansas City and Olathe to allow witnesses, friends of Little and Johnston, and spectators to attend the trial; over 100 witnesses were subpoenaed. 

On November 29, A.W. Little was acquitted of the murder of B.E. Johnston, the jury accepting the defense argument that he had acted in self defense. A few days later Little expressed his gratitude to his attorneys, especially D.H. Morse, a Kansas City, Kansas attorney whose “speech on all sides was pronounced a masterpiece of forensic art.” 

            Little announced that he would himself become a lawyer. In its year-end round up of the local scene, the Kansas City Gazette ran a tribute to Little, possibly written by Little himself, describing him as “an accomplished gentleman of versatile talents, with abroad [sic] intellectuality that serves him well in the profession he now follows.” The tribute, or advertisement, for Little’s legal services made only indirect reference to the Johnston murder, referring only to Little's “large circle of friends in this city whose fidelity the most trying of ordeals could not shake.”

            The two trials cost the taxpayers of Johnson County $9,466, equivalent to at least a quarter of a million dollars in current dollar values. No paper reported that A.W. Little expressed gratitude to Johnson County taxpayers.

            Fifteen years before Little’s acquittal, veteran hotelier and businessman W.H. Ryus  had told of his experiences during pioneer days as a coach conductor in runs along the old Santa Fe trail from Kansas City to Santa Fe.  His story had appeared in Henry Inman's The Old Santa Fe Trail, published in 1881. The Kansas City Gazette published an extract in 1898. 

            Ryus described a vanished frontier, when his coach traveled “for a hundred miles through the buffalo herds, never for a moment getting out of sight of them: often we saw fifty thousand to a hundred thousand on a single journey out or in. The Indians used to call them their cattle and claimed to own them. They did not, like the white man, take out only the tongue, or hump, and leave all the rest to dry upon the prairie, but ate every last morsel, even to the intestines. They said the whites were welcome to all they could eat or haul away, but they did not like to see so much meat wasted as was our custom.” Ryus described attacks on his coach by Indians, saying he “had no desire to kill one of the miserable, outraged creatures, who had been swindled out of their just rights.”

               The frontier hadn’t vanished, however. Its legacy of injustice and macho violence was on display in Kansas City, Kansas, on the evening of January 19, 1893, when A.W. Little strode down Minnesota Avenue to shoot B. Edward Johnston through the heart without warning, while  not a single person during the long series of hearings and trials -- not a judge, not a newspaperman, not a public official, not a lawyer, not a member of the public, most of whom approved of his acquittal  -- asked Little why he never went to the authorities for help and protection when he learned Johnston was gunning for him. 

           


Notes

[1] “Defence” was the common spelling for today’s “defense” in newspapers of the time. It’s now considered the most appropriate usage in British English.

[2] Thomas Allen McNeal, When Kansas Was Young, (New York: Macmillan, 1922), p. 170. Google Books https://books.google.com/books?id=h3gUAAAAYAAJ&pg

[3] Henry F. Mason, “County Seat Controversies in Southwestern Kansas,” Kansas Historical Quarterly, 2, no. 1 (February 1933), 61.

[4] Wood, Margaret L. Memorial of Samuel N. Wood, to Which is Appended ‘Wood’s Manifesto,’ His last political Address in Kansas (Kansas City: Hudson-Kimberly Publishing Company, 1892). Google books https://books.google.com/books?id=uC9EAQAAMAAJ&pg.

 

June 9 2017