Chapter 1: An Arrest in Battle Mountain

On November 7, 1873, a thirty-year-old harness-maker was arrested in Battle Mountain, Nevada. He was wearing a uniquely identifiable coat that was commissioned from a haberdashery in San Francisco, and destined for the Manhattan Silver Mining Company, before it was stolen during one of a series of stagecoach heists conducted over the prior two months.

Wells Fargo Stage, c1870Shepherd L. Wixom*, the man arrested, was no saint. He had already been charged with horse stealing once and spent time in the Nevada State Prison for helping an accused murderer to escape from the Lander County jail. He had the stolen coat. He fit the general description. He was an ex-felon. He was guilty.

This was the height of the Wild West. And, though the October 7, 1873 edition of Virginia City’s Territorial Enterprise reported that “stage robberies have become so common in Eastern Nevada that they are scarcely worth noticing,” the citizenry of Austin was fed up. Between September 27 and November 1, 1873, the Woodruff & Ennors stagecoach line – the company carting passengers and cargo between such mining towns as White Pine, Eureka, and Virginia City – had been held up five times. Each time, the robbers demanded and broke open the Wells, Fargo & Company “treasure box” that often accompanied the driver of the stage. After the last of the five hold-ups, Wells, Fargo & Company posted a $500 reward for the capture of any “road agent” associated with the thefts.

Upon his arrest at Battle Mountain, Wixom demanded to be brought before the nearest committing magistrate for a preliminary examination because he wanted to procure material witnesses that would help to absolve him of the crime. Sheriff Emery denied his request. Instead, Wixom was brought to Austin and jailed.

In 1873, the Nevada court system was still in its infancy. Less than ten years had elapsed since Nevada was accepted into the United States and had adopted its state constitution, so the Nevada courts were establishing precedent with every passing case. Under the laws of criminal practice of the time, Wixom was entitled to a “speedy and public trial.” But these were the days when judges rode circuits by horseback and the thousands of miles of trails connecting the mining towns of eastern Nevada did not lend themselves to the dispensation of justice at anything approaching a rapid pace. Besides, all felony prosecutions in Nevada had to occur by indictment, so there was the need to empanel a grand jury of twenty-four men before Wixom could be arraigned. Accordingly, Wixom sat in jail through Thanksgiving and into the dawn of 1874.

State v. Wixan transcriptOn January 7, 1874, Wixom finally got his day in court. He was arraigned on a Wednesday in front of the Honorable DeWitt C. McKenney. The judge scheduled the trial for five days out, on the following Monday. Besides his not guilty plea, Wixom only made one statement: “Defendant objects to the time of trial and to the legality of his being tried without counsel.”

Why would Wixom think he had a legal right to an attorney in 1874 Nevada? It would be nearly 90 years before the United States Supreme Court guaranteed poor people the right to counsel in felony cases, with its landmark decision in Gideon v. Wainwright. Answering that question requires an historical understanding of both the Sixth Amendment to the United States Constitution as it was generally understood at the time of Wixom’s arraignment and more specifically the state of criminal justice in the 1870’s in Nevada.

* As is typical with reporting of the day, Wixom’s name is not spelled consistently throughout the historical record. For consistency, we will use Wixom.

Chapter 2: The Sixth Amendment to the United States Constitution

Photo credits: 1. Wells Fargo Stage (c. 1870). Nevada Historical Society; 2. Official minutes of the Lander County District Court in the case of State of Nevada vs. Shepard L. Wixan. Courtesy of the Nevada State Library and Archives.