United States v. Logan

• Decision Date: 01 January 1891
• Citation: 45 F. 872
• Parties: UNITED STATES v. LOGAN et al.
• Court: U.S. District Court — Northern District of Texas

45 F. 872

UNITED STATES v. LOGAN et al.

United States Circuit Court, N.D. Texas.

March Term, 1891

Eugene Marshall, U.S. Atty., and W. L. Crawford, Special Asst. U.S Atty., for the United States.

Jerome C. Kearby and Robert F. Arnold, for defendants.

McCORMICK J., (charging jury.)

The undisputed evidence in this case shows that a short time before the October term, 1888, of the United States district court for the northern district of Texas, at Graham, the five brothers, Charles Marlow, George Marlow, Eph Marlow, and Alf Marlow, citizens of the United States, and one Boone Marlow were arrested on warrants issued by F. W. Girand, a commissioner of the circuit court of the United States for the northern district of Texas, on complaints made by E. W John son, who was then acting and duly commissioned and qualified deputy United States marshal for this district charging said Marlows with an offense within the exclusive jurisdiction of the courts of the United States. That at the October term, 1888, of the said United States district court each of said Marlows was indicted for offenses within the exclusive jurisdiction of the courts of the United States, and was held in custody, under process from the courts of the United States, in the county jail of Young county, of which one M. D. Wallace, then sheriff of Young county, was ex officio jailer, until they were enlarged on bail. That after their enlargement on bail several of said Marlow brothers, with their mother and the families of Alf and Charles Marlow, went to live and labor on a farm in Young county, about 12 miles from Graham, known as the 'Denson Farm.' That on the 17th day of December, 1888, the third day after Boone Marlow was enlarged, said sheriff, M. D. Wallace, with one of his deputies, Tom Collier, went to the Denson farm about noon to arrest Boone Marlow on a capias out of one of the state courts to answer a charge of murder. That the said Boone Marlow, Charles, Marlow, and Eph Marlow, with their mother and Alf and Charles Marlow's families, were in the house occupied by them, at their noon meal, when said Wallace and Collier approached said house. That as Tom Collier was about to enter the house firing occurred, and Sheriff Wallace was wounded. That thereupon Eph Marlow hurried to Graham for a physician. That immediately a high degree of excitement took possession of the minds of the citizens of Graham and of Young county. Eph Marlow was not permitted to return home, but was put in jail, and a posse of citizens brought in Charles Marlow, George, Marlow, and Alf Marlow, and put them in jail, and shortly thereafter the bail of each of said Marlows duly surrendered them before said United States commissioner, and were beyond Dry creek, and about two miles from Graham, a large number of by said commissioner to the marshal of this district, were by said E. W. Johnson, deputy-marshal, as aforesaid, again committed to the jail of Young county in default of bail, to be held to answer said indictments in the said United States district court. On the day of the wounding of Sheriff M. D. Wallace, Boone Marlow avoided arrest, and eluded the pursuit of the officers and citizens, and was never afterwards seen alive in Young county by those seeking his arrest. That Sheriff M. C. Wallace died on the 24th of December from the wound received by him on the 17th of that month. That thereupon the four Marlows, then in custody as aforesaid, were charged by complaint before a state examining magistrate with an offense against the laws of the state of Texas, and were by the proper peace officer of Young county brought from the jail of Young county, where they were being held as aforesaid, before said examining magistrate, and granted bail on said charge, and in default of bail were on this charge committed to the county jail of Young county. That on the night of the 14th of January, 1889, they made their escape from said jail, and were on the next day (15th) recaptured by the sheriff and his posse, and returned to said county jail. That on the night of the 17th of January, 1889, a body of men, armed and partially disguised, surrounded the steel cage in the county jail, in which the Marlows were confined, and threatened and offered violence to the Marlows, and attempted to seize Charles Marlow. That on the night of the 19th of January, 1889, said E. W. Johnson, acting, or assuming to act, as deputy-marshal as aforesaid, took actual possession and control of said four Marlows and of two other United States prisoners, W. D. Burkhart and Louis Clift, who were then in custody with said Marlows in jail; the said Marlows at the time being chained, two and two together, by irons riveted around one leg of each, and a chain securely fastened, coupling the two together. W. D. Burkhart and Louis Clift were fastened together in like manner. That the six prisoners, thus ironed and chained, two and two together, were placed in one hack, and P. A. Martin was put on this hack unarmed to drive it. That said E. W. Johnson, with Sam Criswell, Marion Wallace, and John B. Girand, all well armed, took another hack; and that Sam Waggoner and Will Hollis, also armed, took a buggy; and the three vehicles thus filled, and in close order, and in the order just given, started, after dark, but about or only a little before moonrise, towards Weatherford, on the regular mail stage road from Graham to Weatherford; and at a point just beyond Dry creek, and about two miles from Graham, a large number of men, armed and disguised, appeared in the highway, and, presenting their guns, commanded: 'Hold up.' That the Marlow brothers immediately dropped out of the hack that they were in, and reaching the other hack, procured arms, and began to resist the assailants. That many shots were fired, and Alf and Eph Marlow were killed on the spot, and George and Charles Marlow and Louis Clift each severely wounded. All of the assailants who were able to flee fled, the deputy-marshal and his posse also fled, and George Marlow, Charles Marlow, Louis Clift, and W. D. Burkhart alone remained in sight, alive, with the dead bodies of Alf and Eph Marlow, and of Sam Criswell, Bruce Wheeler, and Frank Harmeson. That by unjointing the ankle of each of their dead brothers George and Charles Marlow freed themselves from the dead bodies, and, gathering sufficient arms and ammunition on the field of battle, they, with Clift and Burkhart, resumed their seats in the hack they had left, and made their way to Finis, a small village in the adjoining county of Jack, and only a few miles from said Denson farm. Here they unshackled Clift and Burkhart, and Burkhart left them, and then Clift and the two surviving Marlows made their way by early morning to the cabin of the Marlows on the Denson farm, then occupied by the mother of the Marlows, their wives, and their little children. That in a very short time after the prisoners left the jail word was brought back to Graham of what had occurred at Dry creek, and runners were dispatched by Tom Collier, the then sheriff, to different parts of Young county, to warn the people that two of the Marlows had escaped, and to summon the people to be on the watch that night, and as many as could, and as soon as they could, to come to Graham, to organize for the capture of the surviving Marlows. A deputy-sheriff and constable were also dispatched at once in the neighboring county of Jack to solicit aid of the sheriff of that county with a posse, to assist in recapturing said Marlows; that by noon the next day the sheriff of Jack county, with a posse of 25 or 30 men, reached a point near the Marlows' cabin, where he found Tom Collier, (the sheriff of Young county,) with at least twice as large a posse, gathered from Young county, and in position near the cabin of the Marlows. That the Marlows refused to surrender to the state officers there present, but declared their willingness to surrender to the United States marshal, W. L. Cabell, or his deputy, Capt. Morton. That the sheriff of Jack county, as soon as he understood the situation, withdrew his men, and returned to Jack county. That Tom Collier, sheriff of Young county, kept a guard posse near said Marlow cabin until the morning of the 22d or 23d of January, when Capt. Morton arrived from Dallas, and took charge of the two Marlows and Clift, and removed them to Dallas.

In this court it is the exclusive province of the jury to pass on and decide all questions of fact, not only to judge of the credibility of each witness and the weight due said witness' testimony, but to decide what all the testimony permitted to go to you, taken together, proves as to the guilt or not of each of the accused. And you have to rely on your own memories as to the substance and particulars of the testimony, and act on your own impressions derived from the testimony considered, examined, and weighed by you, guided by the rules of law applicable thereto, as given you in the instructions of the judge presiding on the trial of the case. It is, however, in this court, the province and duty of the presiding judge to give you the benefit and assistance of his summing up or statement of the material features of the testimony. Such summing up or statement of the evidence by the presiding judge is not binding on you in the same manner that his instructions as to the law of the case bind you, but is only to aid you, and leaves still with you entire freedom and a perfect obligation to decide for yourselves as to all questions of fact involved in the case, and as to whether the guilt of the defendants, or of any particular defendant, is proved beyond a reasonable doubt. I have stated at considerable length the facts which I consider established by undisputed testimony, and practically admitted, showing...