Tales from the Morgue: Tarnished badges, Part 4

MANY CALLED TO TESTIFY IN MOORE-FENTER TRIAL
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Francisco Acuna, One of Men Alleged to Have Been Given the Third Degree, Is Placed on the Stand by the State and Tells Story; Limb of Tree Is Introduced as Evidence by the State
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The first witness for the prosecution took the stand yesterday in the Moore and Fenter murder case. The session opened with the reading of the names of the witnesses who will be called during the course of the trial, followed by a short opening statement to the jury by County Attorney Hilzinger, in which he embodied the main facts in the case from the standpoint of the prosecution.

Bertram L. Hitch, clerk of the board of supervisors of Pima county, was the first witness called in behalf of the state. On direct examination the statements of Mr. Hitch were in the main as follows: "On the 19th day of April, 1915, I was at my ranch at Greaterville. On that day I saw the Leons in the barn with Mr. Moore, the latter having a rifle in his hand. He stood near them, close by the manger. I simply saw them in passing and at the time did not know where Mr. Fenter was. However, when I reached the house I saw Mr. Fenter eating his supper. I had a conversation with him, and he stated that they were going to take the Leons to Tucson. It was late in the day and I suggested that the come up to the house and I would watch them while both ate supper. They did this. Mr. Moore handed me the rifle and I set it against the door. At that time I did not know Acuna. Mr. Fenter went to the barn, and returned with two ropes. One was a white rope about 50 feet in length, and the other a black rope about five feet in length. Cutting the black rope up into pieces he tied the hands of the boys. (Objection by Attorney Mack regarding the use of the word "boys"—overruled). Nothing was said while their hands were being tied behind them. Leon seemed to be protesting, and did not want to go (Attorney Mack objected to this as calling for a conclusion of the witness—sustained). Then Mr. Fenter and Mr. Moore took the boys away from the house. In order to start [a line or two is missing in the old newspaper at this point] Leon, Fenter had to push him—he continued to lag back and I saw Fenter strike him on the back with the lariat. Moore carried the rifle with him.

Leave for Helvetia.

My ranch is about 48 miles from Tucson by the road. They did not depart by either the road or the trail but started toward Helvetia. They went over a sloping hill, and were obliged to cross a barbed wire fence. They could have reached the trail by going 100 feet in a different direction—a much shorter way."

Q. "In what order did they go?"

A. "The Leons and Acuna were in line ahead of Moore and Fenter."

Q. "How were they dressed?"

A. "Jose Maria Leon was much dressed up—the others had on overalls."

Q. "When next did you see Messrs. Fenter and Moore?"

A. "At about 9 or 9:30 o'clock that night. They came up to my door while I was in bed. Acuna came and asked for Mr. Robinson."

Q. "State Acuna's manner."

A. "He talked brokenly and choked as though his throat was dry—I could not see him and could only tell by his conversation. I do not know the man well enough to know when he is normal. I should judge he was excited. (Objected to as conclusion of the witness—overruled.)

The Return.

Q. "Did anyone come to the house during the evening?"

A. "Moore and Fenter came back five or ten minutes after Acuna was there—they came to my door. I raised up in bed and looked out of the window, asking 'Is that you Bob?' 'Yes,' was the reply, and I asked, 'Do you want in?' Mr. Fenter answered 'Yes.' He continued, 'Can you take us into Tucson?' I replied, 'No, Bob, I can't; I have no lights for my auto.' He went to the kitchen and I heard him conversing with Mr. Robinson. In response to some question he replied, 'We have turned them loose—they know all about it but they will not tell.' They slept in my room and arose before I did in the morning. They suggested that I take them to the Empire ranch, if I could not take them to Tucson, and I consented to the former."

Q. "What did they put into the auto, if anything?"

A. "They put in a lariat such as I have described, a saddle, and one or two rifles. When we reached the Empire ranch, Mr. Fenter telephoned to Tucson. In replying to some questions he said, 'No, we have not anybody with us—we will tell you about it when we get in.

Search for Men.

"When I returned to my ranch I learned that the boys did not come home that night. I suggested that men be secured at Greaterville for the purpose of organizing a search party. Young and Encinas were among the men secured for this purpose. We spread out in a long line and marched in the direction I had seen Moore and Fenter going the night before. I heard a gunshot and ran in the direction of the sound over a little hill, and then saw Hilario Leon lying under a small bush."

Q. Was he alive or dead."

A. "He was dead. (Objected to as calling for a conclusion of the witness as to whether he was alive or dead—overruled.) Jose Maria was lying rather on his knees, face down, and the first I saw of him his head was moving up and down. His hands were tied behind his back with a black hair rope."

Q. "How nearly did it resemble the rope you had seen before?"

A. "Very nearly."

(At this point Judge Campbell produced a short piece of black hair rope.)

Q. "Did it compare with this rope?"

A. "It looked like that rope."

Q. "With reference to any other object, where was the body of Jose Maria Leon?"

A. "Jose Maria was nearer the tree than the body of Hilario Leon."

Photographs of Bertram Hitch's ranch and of the tree in question were marked Exhibits A and B. Mr. Hitch marked with the initials "H" and "J," the positions in the picture where the bodies were found. He testified that the limb was approximately twelve feet from the ground and that the tree was located about 500 or 600 yards north of his house. He stated that while it was on higher ground than the house, it was not visible from the latter place owing to an intervening hill.

Mr. Hitch: "When I went over to the tree with Mr. Buehman at a later date I observed a notch on a limb."

Q. "Describe the mark on that limb."

A. "It looked like the bark was torn off the tree in one place."

Q. "Was it comparatively recent or ancient?"

A. "It was an abrasion and appeared to me to have been made recently."

Introduce Limb.

At this point a picture of the limb referred to was produced, and Mr. Hitch marked to place of the abrasion with an "X."

Mr. Hitch: "After finding the bodies, we cut the rope off Jose Maria. He could talk. I heard him say 'Water, water,' in Spanish. We called Judge Robinson and he took Jose Maria to the house with the assistance of a second man. We spent the ensuing two hours searching for Francisco Leon but were unable to locate him."

Hitch Cross-examined.

Judge Campbell produced a section of a limb from a large tree and Mr. Hitch identified it. It was offered in evidence and objected to by Attorney Mack. Judge Campbell, in arguing upon the objection, stated, "It is a most cogent circumstance. These men were found near that limb." The objection was overruled. The limb, marked as an exhibit, was shown to the jury and the jurors evinced considerable interest during its inspection. The mark upon the limb was scanned closely, and questions liberally asked concerning it. Juryman Bluth asked which side of the limb the men had been pulled up on, but the witness was unable to state positively.

Mr. Hitch: "Hilario Leon's skin was discolored. There were no abrasions, but there were two distinct marks, one upon each side of his neck. Jose's neck did not show marks in the same pronounced manner as the body of Hilario—his neck was swollen and a little discolored and his hands had a few blisters upon them."

The afternoon session of the trial opened with the cross-examination of Bertram Hitch by Attorney John B. Wright. His first question threw some light upon the intention of the defense to prove necessity for the use of the rope in tying the hands of the Leons and Acuna.

Q. "On the 19th day of April did Fenter and Moore have any sheriff's handcuffs with them when they appeared at your place?"

A. "I saw none."

Q. "Did you know where Fenter got that lariat rope?"

A. "I think it belonged on his saddle. It was practically new."

Q. "Have you any knowledge of your own as to how the marks on the tree were made?"

A. "No sir."

Acuna Testifies.

Francisco Acuna, called next, testified through an interpreter, and stated that he and Hilario Leon were tying a horse when Frank and Bob (pointing to the two accused deputies) came up with a rifle. They proceeded to Mr. Robinson's house, and upon arriving there went over to the stable. His story as to what transpired prior to the time of the departure over the adjacent hill coincided with that of Mr. Hitch. Upon being asked as to whether any warrant of arrest had been served upon them up to this time or whether they had been advised as to the existence of a warrant, Acuna replied emphatically, "No sir." He demonstrated the manner in which their hands had been tied with the rope.

Acuna: "Francisco Leon asked to be taken before a judge. They told us to go ahead and pushed us."

Q. "In which direction did you go?"

A. "We went north."

Q. "Did anything happen on the way?"

A. "They struck Francisco Leon."

Stop at Tree.

Acuna testified that they stopped at a tree, and a rope was thrown over a limb. In response to the question as to which of the deputies had thrown the rope over the limb he replied, "Bob."

Acuna: They put the rope on Francisco Leon."

Q. "Where did they place it?"

A. "On his neck."

Q. "What was done?"

A. "They asked where Encinas and the woman were. Leon stated that he knew nothing about it, and then they raised him up by pulling the rope. When they let him down he fell and remained on the ground for a while."

Continuing, the witness testified that Fenter repeated the question and upon securing no response, hoisted Leon up by the neck again. After being held suspended for a moment he was allowed to fall to the ground a second time. According to Acuna, Fenter then said, "Get up you —————." The response to his question was evidently unsatsfactory, for he pulled upon the rope again.

Hang Second Man.

He described the placing of the rope upon the nect of Hilario Leon by Frank Moore. Hilario was asked where Encinas and the woman were. He replied that he knew nothing. Frank said "all right," and pulled the rope, raising him off the ground. He remained suspended a short time and when they let him down he could not stand until he had gotten some fresh air. The question was repeated twice more, and the hoisting operation as well. Acuna stated here: "They took us up the hill and Mr. Moore and Hilario stayed there. Frank Moore went over to where Hilario was choking, and then we did not hear any more sounds.

"When they took Jose Maria and me back to the tree we could not see Hilario, but noticed his hat." Acuna testified that Jose Maria fared in the same way as his two predecessors.

"They had him raised up quite a while. They thought he was dead and finally let him down." (Answer stricken out on objection to it as calling fro conclusion of the witness.) "He was lying down and they left him there, calling me and placing the rope about my neck. They asked me the question concerning Antonio Encinas and the woman. I told them that the wife of Encinas was at the house but that I did not know where Encinas was. They replied, 'all right,' and were going to pull the rope on me. I asked, 'Why are you going to hang me?' They said, 'She is not the woman.' I told them that I had a family, and they spoke together and then turned me loose. When they turned me loose they told me that if I said anything about what had happened they would kill me. When I went to Mr. Robinson's house I said nothing because I was afraid."

Acuna Cross-examined.

On cross-examination the following question was asked:

Q. "Did you not sign a statement in Mr. Hilzinger's office to the effect that Mr. Hitch and Mr. Robinson were present and agreed with Frank and Bob that you and the Leons were to be taken over the hill?"

A. "No sir; I did not."

On redirect examination County Attorney Hilzinger asked Acuna why he had been in the county jail since April. He replied that he had been awaiting this trial as a witness.

The third witness for the state was Lincoln F. Robinson, a rancher and justice of the peace at Greaterville. The first part of his testimony was substantially the same as that of Bertram Hitch. He stated: "When the sisters and wife of the missing men came to inquire I told them that Mr. Fenter had said he turned them loose." He spoke of the organization of the search party and the discovery of the Leons. Referring to their condition, he said: "Jose Maria was sitting up, alive and conscious. Hilario was dead. Jose Maria's hands, which were tied behind him, were blistered. His neck was discolored. Hilario had marks on his neck from ear to ear."

Q. "Tell the jury what kind."

A. "They looked as though they might be blood or something like that. I took charge of the body in my capacity as coroner."

Sally From Bench.

On cross-examination, Attorney Wright asked: "Mr. Robinson, what was your object in telephoning into Tucson for Messrs. Fenter and Moore to come out there? (Campbell objected.)

Mack: "We wish it to appear upon the record."

Judge Smith: "Yes, but there is a limit to even that."

Assistant District Attorney Campbell and Attorney Mack for the defense disputed in court as to whether Robinson could testify as to whether Fenter and Moore had applied to him for warrants. Attorney Mack claimed that the sustaining of an objection would do considerable damage to the defense, and added: "Your honor, you must not at first blush sustain this objection." Judge Smith, in a humorous vein, responded: "I am not doing anything at first or even second blush—in fact, I am not blushing at all." A ripple of laughter ran about the courtroom at this sally from the bench.

Robinson then stated that no application for warrants for the arrest of anyone had been made by the defendants.

Court was then adjourned, Judge Smith announcing that the morning session would commence at 8:30 o'clock today, in order that the cooler portion of the day might be utilized.

Among the witnesses to be called by the prosecution, in addition to those examined yesterday, are: Francisco Leon, Dr. Butler, Francisco Sierras, Charles Young, H. Leon, Ignacio Leon, L. Leon, Camilio Leon, Guadalupe Young, Patrick Coyne, S. Mendoza, John B. Anderson, J. L. Powell, J. K. Fryer, Joseph Anderson, Sheriff A. W. Forbes and William MacBeth. Witnesses for the defendants are Charles Taylor, H. P. McCoy, Gus Quickenstedt, Frank DeWolf, N. Henderson, Joe Shamrod, Mr. Bingham (Empire ranch), Lew Stevens, Harry Saxon, Wyatt, Carl Schofield, Henry Street, Jeff Milton, John Rock, B. N. Hilton and Leslie Wooddell.