"I supposed, at the time, he was going out to meet his wife, as she had not returned, so I went on with my breakfast. It seems, however, that he came around back of me. I did not see him, and he struck me a violent blow in the face, followed instantaneously by another blow. Coming so immediately together, the two blows seemed like one a.s.sault. I heard 'Stop, stop,' cried by Neagle. Of course I was for a moment dazed by the blows. I turned my head around and saw that great form of Terry's with his arm raised and fist clinched to strike me. I felt that a terrific blow was coming, and his arm was descending in a curved way as though to strike the side of my temple, when I heard Neagle cry out: 'Stop, stop, I am an officer.' Instantly two shots followed. I can only explain the second shot from the fact that he did not fall instantly. I did not get up from my seat, although it is proper for me to say that a friend of mine thinks I did, but I did not. I looked around and saw Terry on the floor. I looked at him and saw that particular movement of the eyes that indicates the presence of death. Of course it was a great shock to me. It is impossible for any one to see a man in the full vigor of life, with all those faculties that const.i.tute life instantly extinguished without being affected, and I was. I looked at him for a moment, then went around and looked at him again, and pa.s.sed on. Great excitement followed. A gentleman came to me, whom I did not know, but I think it was Mr. Lidgerwood, who has been examined as a witness in this case, and said: 'What is this?' I said: 'I am a Justice of the Supreme Court of the United States. My name is Judge Field. Judge Terry threatened my life and attacked me, and the deputy marshal has shot him.' The deputy marshal was perfectly cool and collected, and stated: 'I am a deputy marshal, and I have shot him to protect the life of Judge Field.' I cannot give you the exact words, but I give them to you as near as I can remember them. A few moments afterwards the deputy marshal said to me: 'Judge, I think you had better go to the car.' I said, 'Very well.' Then this gentleman, Mr. Lidgerwood, said: 'I think you had better.' And with the two I went to the car. I asked Mr.

Lidgerwood to go back and get my hat and cane, which he did.

The marshal went with me, remained some time, and then left his seat in the car, and, as I thought, went back to the dining-room. (This is, however, I am told, a mistake, and that he only went to the end of the car.) He returned, and either he or some one else stated that there was great excitement; that Mrs. Terry was calling for some violent proceedings. I must say here that, dreadful as it is to take life, it was only a question of seconds whether my life or Judge Terry's life should be taken. I am firmly convinced that had the marshal delayed two seconds both he and myself would have been the victims of Terry.

"In answer to a question whether he had a pistol or other weapon on the occasion of the homicide, Justice Field replied: 'No, sir. I have never had on my person or used a weapon since I went on the bench of the Supreme Court of this State, on the 13th of October, 1857, except once, when, years ago, I rode over the Sierra Nevada mountains in a buggy with General Hutchinson, and at that time I took a pistol with me for protection in the mountains. With that exception, I have not had on my person, or used, any pistol or other deadly weapon.'"

Judge Terry had fallen very near the place where he first stopped, near the seat occupied by Justice Field at the table.

Neagle testified that if Justice Field had had a weapon, and been active in using it, he was at such a disadvantage, seated as he was, with Terry standing over him, that he would have been unable to raise his hand in his own defense.

A large number of witnesses were examined, all of whom agreed upon the main facts as above stated. Some of them distinctly heard the blows administered by Terry upon Justice Field's face and head. All testified to the loud warning given Terry by Neagle that he was an officer of the law, accompanied by his command that Terry should desist. It was all the work of a few seconds. Terry's sudden attack, the quick progress of which, from the first blow, was neither arrested nor slackened until he was disabled by the bullet from Neagle's pistol, could have been dealt with in no other way. It was evidently a question of the instant whether Terry's knife or Neagle's pistol should prevail. Says Neagle:

"He never took his eyes off me after he looked at me, or I mine off him. I did not hear him say anything. The only thing was he looked like an infuriated giant to me. I believed if I waited two seconds I should have been cut to pieces. I was within four feet of him."

Q. "What did the motion that Judge Terry made with his right hand indicate to you?"

A. "That he would have had that knife out there within another second and a half, and trying to cut my head off."

Terry, in action at such a time, from all accounts, was more like an enraged wild animal than a human being. The supreme moment had arrived to which he had been looking forward for nearly a year, when the life of the man he hated was in his hands. He had repeatedly sworn to take it. Not privately had he made these threats. With an insolence and an audacity born of lawlessness and of a belief that he could hew his way with a bowie-knife in courts as well as on the streets, he had publicly sentenced Judge Field to death as a penalty for vindicating the majesty of the law in his imprisonment for contempt.

It would have been the wildest folly that can be conceived of for the murderous a.s.sault of such a man to have been met with mild persuasion, or an attempt to arrest him. As well order a hungry tiger to desist from springing at his prey, to sheathe his outstretched claws and suffer himself to be bound, as to have met Terry with anything less than the force to which he was himself appealing. Every man who knows anything of the mode of life and of quarrelling and fighting among the men of Terry's cla.s.s knows full well that when they strike a blow they mean to follow it up to the death, and they mean to take no chances.

The only way to prevent the execution of Terry's revengeful and openly avowed purpose was by killing him on the spot. Only a lunatic or an imbecile or an accomplice would have pursued any other course in Neagle's place than the one he pursued, always supposing he had Neagle's nerve and cool self-possession to guide him in such a crisis.

While this tragedy was being enacted Mrs. Terry was absent, having returned to the car for the satchel containing her pistol. Before she returned, the shot had been fired that defeated the conspiracy between her and her husband against the life of a judge for the performance of his official duties. She returned to the hotel with her satchel in her hand just as her husband met his death. The manager of the hotel stopped her at the door she was entering, and seized her satchel.

She did not relinquish it, but both struggled for its possession. A witness testified that she screamed out while so struggling: "Let me get at it; I will fix him." Many witnesses testified to her frantic endeavor to get the pistol. She called upon the crowd to hang the man that killed Judge Terry, and cried out, "Lynch Judge Field." Again and again she made frantic appeals to those present to lynch Judge Field.

She tried to enter the car where he was, but was not permitted to do so. She cried out, "If I had my pistol I would fix him."

The testimony subsequently taken left no room to doubt that Terry had his deadly knife in its place in his breast at the time he made the attack on Justice Field. As the crowd were all engaged in breakfasting, his movements attracted little attention, and his motion toward his breast for the knife escaped the notice of all but Neagle and one other witness. Neagle rushed between Terry and Justice Field, and the latter had not a complete view of his a.s.sailant at the moment when the blow intended for him was changed into a movement for the knife with which Judge Terry intended to dispose of the alert little man, with whom he had had a former experience, and who now stood between him and the object of his greater wrath.

But the conduct of Mrs. Terry immediately after the homicide was proof enough that her husband's knife had been in readiness. The conductor of the train swore that he saw her lying over the body of her husband about a minute, and when she rose up she unb.u.t.toned his vest and said: "You may search him; he has got no weapon on him." Not a word had been said about his having had a weapon. No one had made a movement towards searching him, as ought to have been done; but this woman, who had been to the car for her pistol and returned with it to join, if necessary, in the murderous work, had all the time and opportunity necessary for taking the knife from its resting-place under his vest, smearing one of her hands with his blood, which plainly showed where it had been and what she had been doing. Neagle could not search the body, for his whole attention was directed to the protection of Justice Field. Mrs. Terry repeated the challenge to search the body for the knife after it had been removed. This showed clearly that the idea uppermost in her mind was to then and there manufacture testimony that he had not been armed at all. Her eagerness on this subject betrayed her. Had she herself then been searched, after rising from Terry's body, the knife would doubtless have been found concealed upon her person. A number of witnesses testified to her conduct as above described. She said also: "You will find that he has no arms, for I took them from him in the car, and I said to him that I did not want him to shoot Justice Field, but I did not object to a fist bout."

This reference to a fist bout was, of course, an admission that they had premeditated the a.s.sault. It was Judge Terry's knife and not a pistol that Judge Field had to fear. Terry's threats had always pointed to some gross indignity that he would put upon Justice Field, and then kill him if he resented or resisted it. One of his threats was that he would horsewhip Judge Field, and that if he resented it he would kill him. In short, his intentions seem to have been to commit an a.s.sa.s.sination in alleged self-defense.

The train soon left the station for San Francisco. A constable of Lathrop had taken the train, and addressing Neagle told him that he would have to arrest him. This officer had no warrant and did not himself witness the homicide. Justice Field told him that he ought to have a warrant before making the arrest, remarking, if a man should shoot another when he was about to commit a felony, such as setting fire to your house, you would not arrest him for a murder; or if a highwayman got on the train to plunder. The officer replied very courteously by the suggestion that there would have to be an inquest.

Neagle at once said, "I am ready to go," thinking it better to avoid all controversy, and being perfectly willing to answer anywhere for what he had done. Arriving at the next station (Tracy), Neagle and the officer took a buggy and went to the county jail at Stockton.

Thus was a deputy marshal of the United States withdrawn from the service of his Government while engaged in a most important and as yet unfinished duty because he had with rigid faithfulness performed that duty. He was arrested by an officer who had no warrant and had not witnessed the homicide, and lodged in jail.

Meanwhile a detective in San Francisco received a telegram from the sheriff of San Joaquin county to arrest Judge Field. Supposing it to be his duty to comply with this command, the detective crossed the bay to meet the train for that purpose. Marshal Franks said to him: "You shall not arrest him. You have no right to do so. It would be an outrage, and if you attempt it I will arrest you."

The news of these exciting events produced an intense excitement in San Francisco. Upon his arrival at this place, under the escort of the marshal and many friends, Justice Field repaired to his quarters in the Palace Hotel.

CHAPTER XIV.

SARAH ALTHEA TERRY CHARGES JUSTICE FIELD AND DEPUTY MARSHAL NEAGLE WITH MURDER.

The body of Judge Terry was taken from Lathrop to Stockton, accompanied by his wife, soon after his death. On that very evening Sarah Althea Terry swore to a complaint before a justice of the peace named Swain, charging Justice Field and Deputy Marshal Neagle with murder. After the investigation before the coroner a.s.sistant District Attorney Gibson stated that the charge against Justice Field would be dismissed, as there was no evidence whatever to connect him with the killing.

Mrs. Terry did not see the shooting and was not in the hotel at the time of the homicide. Having, therefore, no knowledge upon which to base her statement, her affidavit was ent.i.tled to no greater consideration than if it had stated that it was made solely upon her belief without any positive information on the subject.

Only the most violent of Terry's friends favored the wanton indignity upon Justice Field, and his arrest, but they had sufficient influence with the district attorney, Mr. White, a young and inexperienced lawyer, to carry him along with them. The justice of the peace before whom Sarah Althea had laid the information issued a warrant on the following day for the arrest both of Justice Field and Neagle.

From this time this magistrate and the district attorney appeared to act under orders from Mrs. Terry.

The preliminary examination was set for Wednesday of the following week, during which time the district attorney stated for publication that Justice Field would have to go to jail and stay there during the six intervening days. It was obvious to all rational minds that Mrs.

Terry's purpose was to use the machinery of the magistrate's court for the purpose of taking Judge Field to Stockton, where she could execute her threats of killing him or having him killed; and if she should fail to do so, or postpone it, then to have the satisfaction of placing a justice of the Supreme Court of the United States in a prisoner's cell, and hold him there for six days awaiting an examination, that being the extreme length of time that he could be so held under the statute. The district attorney was asked if he had realized the danger of bringing Justice Field to Stockton, where he might come in contact with Mrs. Terry. The officer replied:

"We had intended that if Justice Field were brought here, Mrs. Terry would be placed under the care of _her friends_, and that all precautions to prevent any difficulty that was in the power of the district attorney would be taken." That was to say, Mrs. Terry would do no violence to Justice Field unless "her friends" permitted her to do so. As some of them were possessed of the same murderous feelings towards Justice Field as those named here, the whole transaction had the appearance of a conspiracy to murder him.

No magistrate can lawfully issue a warrant without sufficient evidence before him to show probable cause. It was a gross abuse of power and an arbitrary and lawless act to heed the oath of this frenzied woman, who notoriously had not witnessed the shooting, and had, but a few hours before, angrily insisted upon having her own pistol returned to her that she, herself, might kill Justice Field. It was beyond belief that the magistrate believed that there was probable cause, or the slightest appearance of a cause, upon which to base the issue of the warrant.

Neagle was brought into court at Stockton at 10 o'clock on the morning after the shooting, to wit, on Thursday, the 15th, and his preliminary examination set for Wednesday, the 21st. Bail could not be given prior to that examination. This examination could have proceeded at once, and a delay of six days can only be accounted for by attributing it to the malice and vindictiveness of the woman who seemed to be in charge of the proceedings.

The keen disappointment of Mrs. Terry, and those who were under her influence, at Judge Terry's failure to murder Justice Field, must have been greatly soothed by the prospect of having yet another chance at the latter's life, and, in any event, of seeing him in a cell in the jail during the six days for which the examination could be delayed for that express purpose. The sheriff of San Joaquin county proceeded to San Francisco with the warrant for his arrest on Thursday evening. In company with the chief of police and Marshal Franks, he called upon Justice Field, and after a few moments'

conversation it was arranged that he should present the warrant at one o'clock on the following day, at the building in which the federal courts are held.

CHAPTER XV.

JUSTICE FIELD'S ARREST AND PEt.i.tION FOB RELEASE ON HABEAS CORPUS.

At the appointed hour Justice Field awaited the sheriff in his chambers, surrounded by friends, including judges, ex-judges, and members of the bar. As the sheriff entered Justice Field arose and pleasantly greeted him. The sheriff bore himself with dignity, and with a due sense of the extraordinary proceeding in which his duty as an officer required him to be a partic.i.p.ant. With some agitation he said: "Justice Field, I presume you are aware of the nature of my errand." "Yes," replied the Justice, "proceed with your duty; I am ready. An officer should always do his duty." The sheriff stated to him that he had a warrant, duly executed and authenticated, and asked him if he should read it. "I will waive that, Mr. Sheriff," replied the Justice. The sheriff then handed him the warrant, which he read, folded it up and handed it back, saying pleasantly: "I recognize your authority, sir, and submit to the arrest; I am, sir, in your custody."

Meanwhile a pet.i.tion had been prepared to be presented to Judge Sawyer for a writ of _habeas corpus_, returnable at once before the United States court. As soon as the arrest was made the pet.i.tion was signed and presented to Judge Sawyer, who ordered the writ to issue returnable forthwith. In a very few minutes U.S. Marshal Franks served the writ on the sheriff.

While the proceedings looking to the issue of the writ were going on, Justice Field had seated himself, and invited the sheriff to be seated. The latter complied with the invitation, and began to say something in regard to the unpleasant duty which had devolved upon him, but Justice Field promptly replied: "Not so, not so; you are but doing your plain duty, and I mine in submitting to arrest. It is the first duty of judges to obey the law."

As soon as the _habeas corpus_ writ had been served, the sheriff said he was ready to go into the court. "Let me walk with you," said Justice Field, as they arose, and took the sheriff's arm. In that way they entered the court-room. Justice Field seated himself in one of the chairs usually occupied by jurors. Time was given to the sheriff to make a formal return to the writ; and in a few minutes he formally presented it. The pet.i.tion of Judge Field for the writ set forth his official character, and the duties imposed upon him by law, and alleged that he had been illegally arrested, while he was in the discharge of those duties, and that his illegal detention interfered with and prevented him from discharging them.

Then followed a statement of the facts, showing the arrest and detention to be illegal. This statement embraced the princ.i.p.al facts connected with the contempt proceedings in 1888, and the threats then and thereafter made by the Terrys of violence upon Justice Field; the precautions taken in consequence thereof by the Department of Justice for his protection from violence at their hands, and the murderous a.s.sault made upon him, and his defense by Deputy Marshal Neagle, resulting in the death of Terry, and that he, the pet.i.tioner, in no manner defended or protected himself, and gave no directions to the deputy marshal, and that he was not armed with any weapon. The pet.i.tion then states: "That under the circ.u.mstances detailed, the said Sarah Althea Terry, as your pet.i.tioner is informed and believes, and upon such information and belief alleges, falsely and maliciously swore out the warrant of arrest hereinbefore set out against your pet.i.tioner, without any further basis for the charge of murder than the facts hereinbefore detailed, and that the warrant aforesaid was issued by such justice of the peace, without any just or probable cause therefor. * * * And your pet.i.tioner further represents that the charge against him, and the warrant of arrest in the hands of said sheriff, are founded upon the sole affidavit of Mrs. Sarah Althea Terry, who was not present and did not see the shooting which caused the death of said David S. Terry."

In order to show the little reliance to be placed in the oath of Mrs.

Terry, the pet.i.tion stated: "That in a suit brought by William Sharon, now deceased, against her before her marriage to the said Terry, it was proved and held by the Circuit Court of the United States that she had committed the forgery of the doc.u.ment produced in that case, and had attempted to support it by perjury and subornation of perjury, and had also been guilty of acts and conduct showing herself to be an abandoned woman, without veracity. * * *

"Your pet.i.tioner further represents that the abandoned character of the said Sarah Althea Terry, and the fact that she was found guilty of perjury and forgery in the case above mentioned by the said Circuit Court, and the fact of the revengeful malice entertained toward your pet.i.tioner by said Sarah Althea Terry, are notorious in the State of California, and are notorious in the city of Stockton, and as your pet.i.tioner believes are well known to the district attorney of the said county of San Joaquin, and also to the said justice of the peace who issued the said warrant; and your pet.i.tioner further alleges that had either of the said officers taken any pains whatever to ascertain the truth in the case, he would have ascertained and known that there was not the slightest pretext or foundation for any such charge as was made, and also that the affidavit of the said Sarah Althea Terry was not ent.i.tled to the slightest consideration whatever.

"Your pet.i.tioner further states that it is to him incomprehensible how any man, acting in a consideration of duty, could have listened one moment to charges from such a source, and without having sought some confirmation from disinterested witnesses; and your pet.i.tioner believes and charges that the whole object of the proceeding is to subject your pet.i.tioner to the humiliation of arrest and confinement at Stockton, where the said Sarah Althea Terry may be able, by the aid of partisans of hers, to carry out her long-continued and repeated threats of personal violence upon your pet.i.tioner, and to prevent your pet.i.tioner from discharging the duties of his office in cases pending against her in the federal court at San Francisco."

The sheriff's return was as follows:

"Return of sheriff of San Joaquin county, Cala., County of San Joaquin, State of California:

"SHERIFF'S OFFICE.