21 December 2017

A Juicy Nugget From The California Statutes

I have been abstracting the California State Statutes, gleaning names and events of genealogical interest and posting them here on my blog.  Every so often I come across an entry that just begs for my attention.  This time a little nugget in the 1865-66 statutes.  There is an act authorizing a payment to S. F. Doane for his services as a witness in the Horace Smith case.  Who was S. F. Doane and why was he being paid for being a witness?  What was the Horace Smith case?

On January 1, 1861, at 10:30 am, Horace Smith stabbed and killed a man named Samuel T. Newell in San Francisco.  Both men lived in Auburn, Placer County.  Apparently, Samuel Newell had said some very improper things about Smith's wife.  The story is that Newell had met a rich young lady and a marriage announcement was impending.  That is until Smith's wife told the young lady that Newell was married and already had a wife.  The young lady then broke off all contact with Newell.  This infuriated Newell and he bad mouthed Smith's wife.  Not only bad mouthed her but was telling everyone that he was the father of her child and not Horace Smith.  Newell then went to San Francisco and Smith was right behind him.  Smith found Newell on Sacramento Street went right up to him and slugged him a good one.  Newell stumbled into an open clothing store, Smith followed and stabbed Newell in the neck and then in the back.  Smith then wiped the bloody knife on his coat, replaced it in its sheath and then grabbed the arm of a man standing there and walked away.

The man he grabbed was his brother-in-law Judge J. H. Hardy and together they walked to the police station where Smith turned himself in.  Judge Hardy was the presiding judge when Chief Justice David S. Terry was acquitted of the murder David Broderick, which is another story altogether.  Smith's lawyer immediately petitioned the court for a change of venue.  The judge in San Francisco denied the petition.  A group of influential friends of Horace Smith petitioned the California State Legislature and an Act was proposed which the Governor vetoed but was passed (56-16) to allow the change of venue.  The judge again refused stating it was unconstitutional.  So it was taken to the Supreme Court which ruled that the change of venue was not unconstitutional and so the trial was moved to Auburn in Placer County.

Horace Smith was acquitted.  Judge J. H. Hardy was indicted by the Grand Jury of San Francisco County for being accessory before the fact to the murder of Samuel Newell, got a change of venue to Alameda County and was acquitted because none of the witnesses examined were able to place him at the scene of the murder.

But the story doesn't end there.

On October 28, 1863, a man named W. H. Johnson shot Horace Smith in Virginia City, Nevada Territory.  Smith had been Johnson's attorney and wanted payment from Johnson.  An argument ensued and Johnson shot Smith.  In March 1864, Johnson was found guilty of manslaughter and sentenced to 5 years in prison. 

Just 2 months later, a petition signed by 222 people was presented to Governor Nye of the Nevada Territory asking him to pardon Johnson which he did 3 months later in August 1864.

Both Samuel T. Newell and Horace Smith were buried at Lone Mountain Cemetery in San Francisco.  The cemetery was opened in 1854, renamed Laurel Hill Cemetery in 1867 and in 1940 the entire cemetery was moved to Cypress Lawn Memorial Park in Colma.

Nevada State Library, Archives and Public Records Digital Collections
Daily Alta California, 15 July 1861
Sacramento Daily Union, October 29, 1863
Daily Alta California December 25, 1863

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