Chapter 5: Would a Competent Attorney have helped Wixom?

Email this to someoneTweet about this on TwitterShare on FacebookShare on LinkedInShare on Google+Share on RedditShare on TumblrPin on PinterestPrint this page

It is, of course, impossible to go back in history and see what a competent attorney would have been able to accomplish for Mr. Wixom, but some evidence suggests that a well-qualified lawyer could have made a difference.

Circumstantial Evidence

From the records of the Wells, Fargo & Company detective agency, we know much about the stagecoach robberies in Lander County in 1873.  On September 27, 1873, a Woodruff & Ennor’s stagecoach was traveling through a canyon near Vick’s Station when a masked highwayman aimed his rifle at the stagecoach driver Eugene Burnett and ordered him to “halt.”  Two other bandits also appeared, one carrying a shotgun and the other holding a revolver.  Each of the highwaymen obscured his face.  Unlike the stereotypical bandana worn in Hollywood westerns, the would-be robbers’ “heads were covered with masks made from barley sacks with eye holes cut out.” The gang broke open the treasure box with a hatchet and absconded with about $200.

Wells Fargo Stage, c1870The coach was transporting two passengers.  Neither of the passengers nor the driver could identify the robbers and only gave vague descriptions that the gang was composed of “one tall, one medium-sized and one short robber.”  We also know that the shortest robber was apparently “in-charge.”

Four days later on October 1, 1873, another Woodruff & Ennor’s stagecoach was robbed.  The driver gave the same general description of three masked men carrying a rifle, a shotgun, and a revolver.  “The Wells, Fargo & Company treasure box was demanded and this time it was taken a short distance from the road before being broken open.  . . .  This time the box was empty so it was expected that the robbers would strike again soon.”

The highwaymen waited four weeks before trying again.  This time only two robbers were involved.  On October 22, 1874, at about the “same point near the Reese River on the Battle Mountain stagecoach route,” two highwaymen ordered driver Bill Monk to halt.  Accompanying Monk was an armed guard named Lou Ferot.  The appearance of the highwaymen scared the team of horses and the driver could not get the horses under control immediately.  Amidst all the excitement, the robbers “simply disappeared into the brush” without further incident.  It was the third attempted robbery and the second with nothing to show for it.

Five days later on October 27, a lone road agent stopped another coach.  He was carrying a shotgun.  This may indicate that it was not the “leader” – who generally carried a rifle – but one of the other two road agents or, of course, someone entirely different.   In any event, the robber stopped the coach, was handed the box, and escaped.  The driver was Eugene Burnett, who was also driving when the stagecoach was robbed on September 27.  Additionally, there were “six passengers aboard, one atop and five inside, but they were not molested and there was no request for the U.S. mails.” None could identify the road agent.  “The amount taken from Wells, Fargo & Company’s treasure box was not disclosed but it was thought to be a very small amount so it was expected that the road agent would strike again soon.”

On November 1, 1873, yet another coach was stopped.  This time the lone robber built a barricade with sagebrush covered by a blanket – an entirely different modus operandi from the other attempts.  “Mike Kehoe was driving with ‘Major’ Stonehill and Road Superintendent W. Addington riding on top.” All three men reported the “the robber has a decided ‘Yankee accent,’” something that was not reported by any of the witnesses in any of the other recent robberies.  “There was nothing of value among the contents of the box” and “everything was still in the box when recovered, though it had been thoroughly rifled through.” It was at that point that “Wells, Fargo & Company offered a reward of $500 for the capture of the road agents.”

Perhaps, not coincidently, it was less than a week after the reward was offered that Wixom was arrested.  Did someone want the reward money and frame Wixom in a tip to Sheriff Emery?  A good lawyer would have demanded to cross-examine whoever the tipster was.

Wixom was only charged in three of the five stagecoach robberies: the last three occurring on October 22, October 27, and November 1.  Wixom was not charged in the original September 27 robbery committed by three highwaymen and the only one involving any significant amount of money.  Eugene Burnett was the driver on both September 27 and October 27, and surely he would have been able to say if Wixom robbed him both times, so was it the case that Burnett knew Wixom was not involved in the September 27 robbery?  After all, the three culprits from the September 27 and October 1 robberies were the most likely suspects for all five of the stagecoach robberies.

Carson Street, Carson City, c1865And what of the three robberies for which Wixom was arrested?  Wells, Fargo & Company fired the two stagecoach employees, Bill Monk and Lou Ferot who were working during the October 22 robbery, for allegedly abetting other stagecoach robberies. Maybe it was Monk or Ferot who pointed the finger at Wixom to hide their own treachery.  Had a defense lawyer been present in the Lander County District Court, perhaps both Monk and Ferot would have been subpoenaed and questioned. The potential of an inside job was mentioned in the Territorial Enterprise, as during one of the stagecoach robberies for which Wixom stood accused the road agent did not even carry a gun, but used a stick as if it were a rifle. Surely a competent lawyer would have had much to say about whether an experienced stagecoach driver would stop to be robbed by a man carrying a stick.

During the October 27 robbery, one passenger was riding on top of the stagecoach and surely got a good look at the lone robber.   Though no one was able to identify the road agent that day, a defense lawyer would have wanted to question that passenger.  After all, the passenger might have testified that Wixom did not resemble the man who robbed the stagecoach on October 27.

An attorney would also likely have taken measures to have the jury hear the testimony of eye-witnesses Kehoe, Stonehill and Addington from the heist on November 1, stating that the highwayman had a decidedly “Yankee accent.”  From the 1860 United States census, we know that Shepherd L. Wixom was born in 1843 in Canada and was raised in Lexington, Michigan – not necessarily an area known for its “Yankee” accents.

But the richest trove of all for a defense attorney, had Wixom had one to represent him, was probably the evidence about the allegedly stolen coat.  The Sacramento Daily Union article on Wixom’s arrest notes that there were other “suspicious circumstances,” but the principle charge was simply that Wixom had the coat.

Wixom had married Gusta Frazier in Utah a short time before his arrest and trial.  According to the press of the day, Wixom told “conflicting stories” regarding the coat, “first saying he had bought it in Salt Lake City for his wedding and then said that it had been given to him as a gift.” One possibility is that Wixom did indeed purchase or receive the coat for his wedding, as he said. Interestingly, the Territorial Enterprise of January 17, 1874 reported the following: “It is too bad that a great, rich and powerful corporation like Wells, Fargo & Co. should descend so low as to put up a job on an innocent individual to rob him of his wedding coat.” Certainly the local reporter got the impression that the coat in question was Wixom’s.  The jury might well have reached the same conclusion if guided to it by a defense attorney.

Could it be that Wixom was given the coat by one of the three real bandits or had happened across the coat, but after learning that it was stolen just did not know how to explain that to the jury for fear that it would make him look guilty of the robberies?  Again, we do not know, but these were all avenues rich with potential defenses in the hands of an attorney.

Perhaps Wixom’s witnesses could have corroborated how he came into ownership of the coat or could have given him an alibi for the time of one or all of the three robberies.  We simply do not know because Wixom did not have a lawyer challenging his indictment or questioning witnesses or arguing his defense.

Wixom’s Criminal Record

Past behavior is often considered to be a good indicator of future actions.  It is easier to believe that someone who has committed crimes in the past is likely to commit them in the future.  Wixom was branded in the press as a “notorious highwayman” and an ex-felon.  His prior criminal record seemed to make him guilty in the eyes of public opinion.

Here is what is known of Wixom’s criminal record.  In 1871, Wixom was arrested and jailed on felony charges of horse stealing.  While waiting for his trial, he befriended another detainee, Ms. Hattie Funk.  Funk was charged with the murder of her husband, James, in Eureka.  Wixom was fully acquitted of the horse stealing charge and was released from jail.

Wixom Gravestone

Later, Wixom went back to visit Mrs. Funk at the Lander County jail.  He took her a package of men’s clothing, and Funk proceeded to walk out of the jail’s front door.   Wixom was soon discovered and arrested, even as Funk fled, but she quickly turned herself in.  Though Wixom was convicted of abetting Hattie’s escape from jail, he received a full pardon from the Governor of Nevada after serving less than eight months in prison.

Hattie Funk too was eventually acquitted of all the charges she faced.  It is purely speculative as to why she was acquitted of murder, but a newspaper account at the time suggested that the death of James Funk was the result of a domestic dispute involving “whiskey” and allegations of “domestic infelicities.”

A lawyer might well have been able to prevent people from serving on Wixom’s jury who had been influenced by tales of his alleged criminality carried in the newspapers.  Even if the jurors had read or knew of the accounts in the press, the lawyer could have reminded the jury that Wixom was not guilty of the horse-stealing charge and thus had no prior conviction other than aiding Funk’s escape.  And, Hattie Funk may have merely been defending herself against her husband James in what we would today consider to be a case of domestic violence.  If so, a good lawyer may have been able to portray Shepherd Wixom as an honorable man willing to stand up for a down-trodden innocent woman who should never have been arrested in the first place.  In any event, a lawyer would most certainly have told the jury that the Nevada Governor had seen fit to fully pardon Wixom for the crime of abetting Hattie’s escape from jail.

A Differing Theory of the Case

While Wixom was in the Nevada State Prison before the Governor pardoned and released him from abetting the Funk escape, 29 other prisoners staged a large-scale escape attempt on September 17, 1871. The prisoners overtook the guards, broke into the armory, and stole weapons. After an “epic gun battle,” twenty prisoners made it free.

Some time later after Wixom was released from prison and before his arrest on the stagecoach robberies, Wixom became aware that one of the escapees, Chris Blair, was living in Ogden, Utah, under the alias Charles H. Clark.  Wixom told Sheriff Emery where Blair could be found.  Blair was captured and returned to Nevada State Prison. In the hands of a competent lawyer, such actions could be used either to demonstrate that Wixom was of good character or, perhaps, to show motive why a true outlaw like Blair may have wanted to set up Wixom as the fall guy for the stagecoach robberies.

Character

Although the Supreme Court decision in In re Wixom strengthened Wren’s bill and protected the rights of indigent defendants from 1875 onward, it did nothing for Shepherd Wixom personally.  Wixom’s only available course of action was to petition the Board of Pardons for his release.  In numerous pardon requests Wixom insisted on his innocence, reminded the Board that he was denied counsel, that the Nevada Supreme Court had enforced the right to counsel on behalf of future defendants in his name, and that he should be released. Though it is lost to the historical record, Wixom even claimed he had received a letter from Judge McKenney admitting that the judge forced him to trial without a lawyer and that it had been an “injustice” to do so. Judge McKenney did ultimately recommend Wixom for a pardon, but it did no good.  Wixom never received a pardon from the Board.  Instead, he was released from the Nevada State Prison in 1882 after serving out his sentence and left the state for good.  He settled in Shasta County, California, where he died in 1894 at the age of 51.

Lookout MountainWixom is buried at the Tuttle Gulch cemetery.  Thanks to the electronic information age in which we now live, a photograph of Wixom’s headstone is publicly available.  The headstone indicates that Wixom was a Union Civil War veteran.  He enlisted in Detroit on February 5, 1863, at the age of 20 and was a private in Company H of the Michigan 9th Cavalry Regiment. Wixom’s regiment fought numerous battles with the Confederate Army as they wound their way through Ohio, Kentucky, and on into Tennessee and Georgia.  There, Wixom’s regiment was one of the few that stayed with General Sherman on his famous march to the sea that many historians credit with breaking the backbone of the Confederacy.

Two months before Robert E. Lee would surrender in April of 1865, Shepherd L. Wixom was wounded in one of the final battles of the Civil War.  Rather than abandon the cause, Wixom transferred into the 17th Regiment Veteran’s Reserve Corps, also known as the “invalid” corps.  Despite their injuries, the men of the Reserve Corps aided the front lines with communication and supplies to the extent possible.  Wixom remained in the Reserve Corps until November 1865.

With a competent attorney, Wixom’s military career could have been used during his trial to show his good moral character and to counter the public perception that he was a “notorious highwayman.”  This might have gone a long way with Wixom’s jury, given Nevada’s reputation as the “battle born” state that achieved statehood, in part, to help Lincoln win the war effort.

Chapter 6: The Current Indigent Defense Crisis in Rural Nevada

Photo credits: 1. Wells Fargo Stage (c. 1870). Nevada Historical Society; 2. Carson Street, Carson City (c. 1865). Special Collections, University of Nevada, Reno Library; 3. Gravestone of Sheppard Wixon in Tuttle Gulch Cemetery. Courtesy of April Salinas, Redding, California; 4. The 9th Michigan Cavalry at Lookout Mountain in Chattanooga, Tennessee (July 1864). Courtesy of Richard Bishop, Michigan.