The First Murder Trial in Baraboo
Written for the Sauk County Historical Society
by Attorney R.T. Warner, Everett, Washington.
May 30, 1918
As near as I can remember, after the lapse of time—nearly sixty-six years—it was during the summer of 1851. I was then 9 years old. The brick court house on the public square had not been built, the old Methodist church had not been built; except for the basement, which was covered by a temporary roof, and Sunday services were held therein; and during the summer a term of the circuit court was held in this basement. The Honorable Charles H. Larrabee was at that time circuit judge, George Mertens was then clerk of the court; and I believe that David Munson was sheriff. I remember distinctly that my old neighbor, Truman J. Wood, was foreman of the jury, Nelson W. Wheeler, Esq., "Nelse" as he was familiarly called, then a rising young lawyer; I do not think he had been in practice more than a year, was district attorney (sic).
This was the case of the State vs. Osborne, Osborne was indicted for the murder of an old frontiersman, or "squaw-man" who went by the name of Hunter Davis. He was one of those advance agents of civilization, whose race is now nearly extinct. Their class embraces the old French voyageurs, the Daniel Boones, the Davy Crocketts, and the hunters, trappers and squawmen of the frontier. They toiled not, neither did they spin; but, on the crest of the wave of immigration, they followed closely the red men in their retreat before it. Subsisting by fishing and hunting, they did not deign to earn their bread by the sweat of their brows. But when the tiller of the soil came and occupied the land, built homes, churches and school houses, they followed the red man to the land of the setting sun.
The locus in quo, the place where the homicide was alleged to have occurred, was on a country road somewhere within a mile or two of Newport. Newport was on the west bank of the Wisconsin, within a mile or two of Delton. Newport, as old settlers remember it, was built on the line of the Milwaukee & La Crosse railroad, as the same was first located. When it became known that the railroad was located to that point, town site promoters got busy, and the new town grew up like a mushroom, for, of course, it would be the biggest town on the west bank of the Wisconsin river. It came up like a mushroom. It grew and flourished for a summer. But, alas! In the fall when the graders and track layers came along they built the road on the east bank on the river, went on to the foot of the Dells, and crossed the river at Kilbourn City, thus making that town the biggest town on the east bank of the Wisconsin. Newport was off the map. I remember that most of the town’s best buildings were moved to Delton and elsewhere. Some of the finest of old Newport’s finest residences were moved to Baraboo.
I do not now remember what the cause of the quarrel, that resulted in the homicide, was. In fact I do not remember that I heard the testimony of the witnesses. I know that I did not hear all of it. But I remember distinctly, that I heard the arguments of counsel; the judge’s charge to the jury, their verdict rendered; the polling of the jury; and the speech of the prisoner, made before receiving his sentence; and the sentence of the court. I can remember the summing up of the case of the state, by the district attorney; and especially his comments on the testimony of one of the witnesses for the defense. As I remember, the only defense relied upon by the defendant was that of self defense. I think they had tried to show that the deceased had threatened to kill Osborne; that the prisoner had been living in fear of Davis for som time prior to the homicide. At any rate, a witness had testified to having met the prisoner, in Newport, on the day of the homicide, that he, the prisoner, had appeared to be very much excited, and very nervous, and was perspiring freely. ‘Nelse’ was quite sarcastic in his comments upon this part of the witnesses testimony. It spearing from this witnesses’ testimony that it was a warm day in July; that the prisoner had walked in to Newport that morning, a distance of two or three miles; that when the witness met him he was "somewhat excited" and "sweat a little." "Nelse" said this story of the witness was remarkable; that it was "wondrous strange," or "words to that effect," that on a warm day in July, after walking a few miles in the hot sun; that a man should "seem"—in the language of the witness "somewhat excited, and should "sweat a little." And finally he, "Nelse" thought that if the defendant had lain in a fence corner, watching for his neighbor until he saw him coming quietly and peaceably down the road, and had then shot and killed him; that under those circumstances, it might not have been so "remarkable" or so "wondrous strange," after all, that he should "seem somewhat excited," and "sweat a little." The district attorney, the judge instructed the jury. His instructions were brief. I think it was a plain case of murder in the first degree; and there were no intricate questions of law involved. I was there when the jury returned into court and rendered their verdict of "Guilty." I remember that the jury was polled. I remember the calling of their names by the clerk. George Mertens had not at that time been very long in this country, and he did not have the control of the English language that he afterwards acquired. He propounded the question to each, beginning with the foreman something like this: "Truman J. Wood, iss dis undt vas diss your verdict?" The verdict was recorded. Then the prisoner was arraigned, and the usual question was propounded to him by the court, viz: "Prisoner at the bar have you anything to say at this time why sentence should not be pronounced against you? The prisoner replied that he would like to say a few words. As I remember he commenced by thanking the court for the opportunity, and said he wanted to state to the court, that the deceased had threatened his life, and he had been obliged to prepare to defend himself; and that when he shot him he, the deceased, was about ten yards distant from him coming towards him with a long knife in his hand. He indicated that the blade of the knife was about 6 inches long. But he said he was satisfied he had been given a fair trial. He added that he was a good shoemaker; and that, if sent to the prison at Waupun, he would work at his trade for the state, and do good work. The sentence of the court was then pronounced, viz: "It is the sentence of the court that you be confined in the state prison for a term of seven years, at hard labor. The first ten days of your term to be in solitary confinement; on a diet of bread and water."
Thus ended the first criminal trial ever witnessed by me; and as far as I know, the first murder trial in Baraboo. It is possible that there are others now living who listened to that
Trial; but if ther are, I do not know who they are, or where. I feel sure that all the parities and witnesses are gone; as well as all the officers of that court. Judge Larrabee participated in the Civil war, as Major of the 5thWisconsin regiment. But he died long since, the victim of a railroad accident, in California. Two trains collided. He was imprisoned in the wreck, and cremated. My old friends, Judge Cyrus C. Remington and Nelson W. wheeler have long since gone to the great beyond. And, of all of those who assembled in the basement of the old Methodist church to listen to that trial, court, jury, witnesses counsel, clerk, sheriff, bailiffs, and the people who came to listen, either from interest in the results of the trial, or out of curiosity, how many are still living? Who can tell?
Robert T. Warner,