Tales from the Morgue: Tarnished badges, conclusion

MOORE AND FENTER CALM AS COURT READS VERDICT
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No Emotion Displayed by Defendants, but Wives of Prisoners Weep; Jury out Less Than Four Hours; Compromise Verdict Rumored; Motion for Retrial May Be Made by Defense
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After being out less than three hours, the jury in the Moore-Fenter case returned a verdict of murder in the second degree against the defendants. Counsel for the defense have been given until Saturday to make any motions desired. Judge Frank Smith will deliver the sentence of the court Monday. According to an announcement by Attorney John B. Wright for the defendants, a new trial will be requested, and an appeal will be made to the supreme court in case the motion is denied. Moore and Fenter maintained the same attitude of indifference that has characterized them since the beginning of the trial; but the wives of the prisoners who were in the court when the verdict was read, broke down and wept as the defendants were handed into the custody of Sheriff Forbes by the court.

Following the conclusion of the trial, the state announced its readiness to go to trial in the case of the alleged killing of Jose Maria Leon, brother of the man for whose murder they were being tried. The defense however, requested a continuance, and it is probable that the second trial will not be called at the present time.

According to rumors concerning deliberations within the jury room the verdict was the result of a compromise. It is rumored that the vote for acquittal on the first ballot was 6 to 6 or 7 to 5, indicating that there was a strong faction in the jury for acquittal, while on the other hand, the advocates for first-degree murder are reported to have been unyielding in their attitude.

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When the jury had filed into the box at eight o'clock yesterday morning, Attorney Frank Mack addressed them in the closing argument for the defense.

He said, “The district attorney has not given you any reason actuating the minds of these defendants to commit the act for which they are charged. In every criminal case, there is at the bottom of motive, and I feel that I should read to you two very important sentences, taken from the evidence. They are:

Q. “What were your instructions from Mr. Forbes?”

A. “To go out and get Encinas and bring him in dead or alive.”

“The witness testified that he was simply following his instructions from the District Attorney. What those instructions were we are not allowed to tell. The District Attorney told them to “rough them up.” (Judge Campbell heatedly objected to any further argument by the defense along this line, stating that Judge Smith had ruled such evidence in competent.)

Mr. Mack continued, “There were undoubtedly two things in the minds of these defendants when they went out to that camp. First, to bring in this criminal, Encinas, dead or alive, and secondly, to follow the instructions of the District Attorney. (Campbell objected again, saying, “such a remark was interjected in the record and was stricken therefrom upon motion—your honor ruled out all such statements, and I ask that he again be admonished by the court with reference to his statement.” Judge Smith sustained the objection.)

“The order that they had received from the sheriff to take their man dead or alive was one the of great impelling and overpowering influences that furnished the motive. For an intelligent consideration you must consider what the order was—they were there to round up a criminal, and in doing it they became convinced that Encinas had murdered a woman. The Leons were brothers-in-law of this renegade. They became satisfied that they knew of his whereabouts. Those were the things that actuated the minds of these defendants. Gentlemen, I want you to burn this fact across your hearts. If the veil from the heart could be drawn, and the mind could be read on the brow, you would see how strongly I believe those things I am not allowed to tell you.”

“I do not understand very much of the testimony of those Mexican witnesses as uttered by them, but I have eaten enough frijoles to know that “La ley fugue” to those people means to start a gringo on the run, and hit him as nearly as possible between the shoulders as he runs.”

Startling Defense.

“Where did Acuna go that night when he rode the horse out of camp—I say he went straight to Encinas, and told him these defendants had the rope around the necks of the others. And didn't Encinas, who was the sworn enemy of the deputy sheriffs ride back to the tree when they had left, and finish the job. They wanted to fix the deputy sheriffs, and forever shake Fenter and Moore off their trail. Even though they were brothers-in-law, suspicion would less likely fall upon Encinas. They probably told Jose Maria to say, ‘I was the last man—Fenter and Moore committed this crime.’ Somehow they got the information that Fenter and Moore road up to Sierras' place, and they told Sierras to say that he had been requested by the deputies to create a disturbance.”

“I was at the head of one of the departments of the New York police commission, and had 300 detectives under me. I know the way of criminals. These men are being tried for their lives, and Encinas is in full possession of the Santa Ritas. You must keep the story I have told you in mind when you go into the jury room. If you think you can handle the renegade and cutthroat with kid gloves, you are mistaken. However nicely the golden rule may work most of the time, it does not work with criminals. These defendants were convinced their prisoners had the information they desired, and they propose to get it—the only thing they had against them was that they were impeding them in their work. If any reasonable doubt arises in your minds, gentleman, concerning the affair, it must be resolved in favor of the defendants.”

“For the welfare of Arizona, I wouldn't give Bob Fenter's little finger for all that a Southern Pacific locomotive could pull. When the state needs a man I would take Bob Fenter. There are several instructions here over which the Deputy District Attorney will probably get blue in the face, and rant about. One of them is, “I instruct you that all murder that is committed by means of torture is murder in the first degree.” You would first have to find that what these defendants have done resulted in the death of Hilario Leon—if you have any reasonable doubt these instructions have no application.”

State Argues.

Following a recess of fifteen minutes, Deputy District Attorney John H. Campbell addressed the jury in the closing argument for the prosecution.

Judge Campbell said, “I feel positive that you are now positive of the guilt or innocence of these defendants and yet I must go over the evidence carefully for fear that there is something I have left undone. I hope, gentlemen, that those of you who know me believe that I have no vindictiveness in my heart as the defense has intimated. Through the Board of Supervisors I was asked to lend assistance to the County Attorney. It has been my lot to sentence to death several men in this very courtroom, and I did it because it was my duty, just as you must do your duty under your oath. I have a deep-seated abhorrence of the crime they committed, if they committed it, and you must have also.

“Whenever there is a scintilla of evidence on the part of the defendants that they are guilty of a crime of a lesser degree a verdict of manslaughter may be found—but there is none whatever in this case. When an assault does, as a matter of fact, result in serious bodily injury it is an aggravated assault and felony—and if, in the commission of that felony, a man dies it must be murder whether he intended to kill him or not.”

“Is a Pima County jury to say that the purpose of these deputy sheriffs was laudable—to make a widow of a poor mother? You will receive an instruction to the effect that officers of the law have no more right to assault a person than a layman. I have as much respect for an officer of the law as any man living, but gentleman, by your verdict you must not give them license to act as judge, jury and executioner. What a remarkable defense has been presented to you—this insinuation that Encinas has committed the crime—made by one who was at one time at the head of one of the departments of the New York police commission.

“I will tell you exactly what happened—they hung Francisco Leon until they thought he was dead—then they had to do something with the others and they hanged Hilario Leon until he was dead. Dr. Butler, a graduate of John's Hopkins University and with fourteen years experience, stated that Hilario could not have lived over thirty minutes after the hanging. If there were no other evidence in this case then the testimony of the defendant's and the limb of the tree upon which the men were hung, I am convinced you would find them guilty. You saw that notch in a limb that was almost as hard as ironwood—that limb did not lie—you can define how much power was put on the rope to make such a notch.

“Hilario's lips are sealed in death forever, and Jose Maria is gone as a result of this ‘laudable effort.’ Think of the old mother who lost her two sons, and think of the young wife who saw her husband go from her, full of the joy of living, and saw him return broken and destroyed. Gentlemen, if we were held responsible for the acts of our brothers-in-law, we would all be hanged sooner or later (laughter). The defense has insinuated that if any of you ever lived in Mexico you would not stand for convicting the men who had killed a Mexican. But there are good Mexicans and bad Mexicans. If you hung the dog that had bitten you, would you leave it writhing there in the dirt all night? No, you wouldn't treat even a dog that way. I do not know whether they had instructions to bring these men in dead or alive or not, I do know that if I had been counsel for the defendants I would have called Forbes here to corroborate their evidence.

“I want you to go out of this courtroom and into the jury chamber with a few words ringing in your ears—gentlemen of the jury, do your duty in this case absolutely regardless of sentiment, sympathy or anything else excepting the law and the evidence in this case, and don't listen to the appeal, ‘For God's sake turn them loose'—you have been asked to do something which you cannot do if you obey the law.”

Following the closing argument of Judge Campbell, the instructions were read to the jury by Judge Frank Smith, and they retired to the jury room for their deliberations. They returned a verdict of murder in the second degree.

FRANCISCO LEON AND ACUNA RELEASED
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Ex-Deputies Moore and Fenter Taken to Florence to Serve Terms
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With their former comrades as guards, Robert Fenter and Frank W. Moore, former deputy sheriffs of Pima county, sentenced to from ten years to life in the state penitentiary for the murder of Hilario Leon by Judge Smith Saturday, were taken to Florence at 3 o'clock Sunday morning.

With the party were Sheriff Forbes, County Ranger Taylor and Cattle Inspector Rye Miles. Fenter and Moore seemed to be in good spirits and joked and laughed all the way up. The trip was entirely uneventful. Their wives bade them goodbye the evening before and were not at the jail to see them leave.

Francisco Acuna and Francisco Leon, the two principal witnesses in the case were released early Sunday morning from the county jail. They would have been let go Saturday, but in the rush of business at the county attorney's office it had been neglected to give the order for their release.